42 U.S.C. § 5172 — Repair, restoration, and replacement of

Page 6398 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5171 tion 404 pursuant to this subsection, no further Federal funding shall be provided for construction of such project.’’ GUIDANCE ON HAZARD MITIGATION ASSISTANCE Pub. L. 115–254, div. D, § 1231, Oct. 5, 2018, 132 Stat. 3459, provided that: ‘‘(a) IN GENERAL.—Not later than 180 days after the date of enactment of this Act [Oct. 5, 2018], the Admin- istrator [of the Federal Emergency Management Agen- cy] shall issue guidance regarding the acquisition of property for open space as a mitigation measure under section 404 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170c) that in- cludes— ‘‘(1) a process by which the State hazard mitigation officer appointed for such an acquisition shall, not later than 60 days after the applicant for assistance enters into an agreement with the Administrator re- garding the acquisition, provide written notification to each affected unit of local government for such ac- quisition that includes— ‘‘(A) the location of the acquisition; ‘‘(B) the State-local assistance agreement for the hazard mitigation grant program; ‘‘(C) a description of the acquisition; and ‘‘(D) a copy of the deed restriction; and ‘‘(2) recommendations for entering into and imple- menting a memorandum of understanding between units of local government and covered entities that includes provisions to allow an affected unit of local government notified under paragraph (1) to— ‘‘(A) use and maintain the open space created by such a project, consistent with section 404 [42 U.S.C. 5170c] (including related regulations, standards, and guidance) and consistent with all adjoining prop- erty, subject to the notification of the adjoining property, so long as the cost of the maintenance is borne by the local government; and ‘‘(B) maintain the open space pursuant to stand- ards exceeding any local government standards de- fined in the agreement with the Administrator de- scribed under paragraph (1). ‘‘(b) DEFINITIONS.—In this section: ‘‘(1) AFFECTED UNIT OF LOCAL GOVERNMENT.—The term ‘affected unit of local government’ means any entity covered by the definition of local government in section 102 of the Robert T. Stafford Disaster Re- lief and Emergency Assistance Act (42 U.S.C. 5122), that has jurisdiction over the property subject to the acquisition described in subsection (a). ‘‘(2) COVERED ENTITY.—The term ‘covered entity’ means— ‘‘(A) the grantee or subgrantee receiving assist- ance for an open space project described in sub- section (a); ‘‘(B) the State in which such project is located; and ‘‘(C) the applicable Regional Administrator of the Agency.’’ [For definition of ‘‘State’’ as used in section 1231 of Pub. L. 115–254, set out above, see section 1203 of Pub. L. 115–254, set out as a Definitions note under section 5122 of this title.] § 5171. Federal facilities (a) Repair, reconstruction, restoration, or re- placement of United States facilities The President may authorize any Federal agency to repair, reconstruct, restore, or replace any facility owned by the United States and under the jurisdiction of such agency which is damaged or destroyed by any major disaster if he determines that such repair, reconstruction, restoration, or replacement is of such impor- tance and urgency that it cannot reasonably be deferred pending the enactment of specific au- thorizing legislation or the making of an appro- priation for such purposes, or the obtaining of congressional committee approval. (b) Availability of funds appropriated to agency for repair, reconstruction, restoration, or re- placement of agency facilities In order to carry out the provisions of this sec- tion, such repair, reconstruction, restoration, or replacement may be begun notwithstanding a lack or an insufficiency of funds appropriated for such purpose, where such lack or insuffi- ciency can be remedied by the transfer, in ac- cordance with law, of funds appropriated to that agency for another purpose. (c) Steps for mitigation of hazards In implementing this section, Federal agencies shall evaluate the natural hazards to which these facilities are exposed and shall take appro- priate action to mitigate such hazards, includ- ing safe land-use and construction practices, in accordance with standards prescribed by the President. (Pub. L. 93–288, title IV, § 405, formerly § 401, May 22, 1974, 88 Stat. 153; renumbered § 405, Pub. L. 100–707, title I, § 106(a)(2), Nov. 23, 1988, 102 Stat. 4696.) Editorial Notes PRIOR PROVISIONS A prior section 405 of Pub. L. 93–288 was classified to section 5175 of this title prior to repeal by Pub. L. 100–707. § 5172. Repair, restoration, and replacement of damaged facilities (a) Contributions (1) In general The President may make contributions— (A) to a State or local government for the repair, restoration, reconstruction, or re- placement of a public facility damaged or destroyed by a major disaster and for associ- ated expenses incurred by the government; and (B) subject to paragraph (3), to a person that owns or operates a private nonprofit fa- cility damaged or destroyed by a major dis- aster for the repair, restoration, reconstruc- tion, or replacement of the facility and for associated expenses incurred by the person. (2) Associated expenses For the purposes of this section, associated expenses shall include— (A) the costs of mobilizing and employing the National Guard for performance of eligi- ble work; (B) the costs of using prison labor to per- form eligible work, including wages actually paid, transportation to a worksite, and ex- traordinary costs of guards, food, and lodg- ing; (C) base and overtime wages for the em- ployees and extra hires of a State, local gov- ernment, or person described in paragraph (1) that perform eligible work, plus fringe benefits on such wages to the extent that such benefits were being paid before the major disaster; and Page 6399 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5172 (D) base and overtime wages for extra hires to facilitate the implementation and enforcement of adopted building codes for a period of not more than 180 days after the major disaster is declared. (3) Conditions for assistance to private non- profit facilities (A) In general The President may make contributions to a private nonprofit facility under paragraph (1)(B) only if— (i) the facility provides critical services (as defined by the President) in the event of a major disaster; or (ii) the owner or operator of the facil- ity— (I) has applied for a disaster loan under section 636(b) of title 15; and (II)(aa) has been determined to be in- eligible for such a loan; or (bb) has obtained such a loan in the maximum amount for which the Small Business Administration determines the facility is eligible. (B) Definition of critical services In this paragraph, the term ‘‘critical serv- ices’’ includes power, water (including water provided by an irrigation organization or fa- cility), sewer, wastewater treatment, com- munications (including broadcast and tele- communications), education, and emergency medical care. (C) Religious facilities A church, synagogue, mosque, temple, or other house of worship, educational facility, or any other private nonprofit facility, shall be eligible for contributions under paragraph (1)(B), without regard to the religious char- acter of the facility or the primary religious use of the facility. No house of worship, edu- cational facility, or any other private non- profit facility may be excluded from receiv- ing contributions under paragraph (1)(B) be- cause leadership or membership in the orga- nization operating the house of worship is limited to persons who share a religious faith or practice. (4) Notification to Congress Before making any contribution under this section in an amount greater than $20,000,000, the President shall notify— (A) the Committee on Environment and Public Works of the Senate; (B) the Committee on Transportation and Infrastructure of the House of Representa- tives; (C) the Committee on Appropriations of the Senate; and (D) the Committee on Appropriations of the House of Representatives. (b) Federal share (1) Minimum Federal share Except as provided in paragraph (2), the Fed- eral share of assistance under this section shall be not less than 75 percent of the eligible cost of repair, restoration, reconstruction, or replacement carried out under this section. (2) Reduced Federal share The President shall promulgate regulations to reduce the Federal share of assistance under this section to not less than 25 percent in the case of the repair, restoration, recon- struction, or replacement of any eligible pub- lic facility or private nonprofit facility fol- lowing an event associated with a major dis- aster— (A) that has been damaged, on more than one occasion within the preceding 10-year period, by the same type of event; and (B) the owner of which has failed to imple- ment appropriate mitigation measures to address the hazard that caused the damage to the facility. (3) Increased Federal share (A) Incentive measures The President may provide incentives to a State or Tribal government to invest in measures that increase readiness for, and re- silience from, a major disaster by recog- nizing such investments through a sliding scale that increases the minimum Federal share to 85 percent. Such measures may in- clude— (i) the adoption of a mitigation plan ap- proved under section 5165 of this title; (ii) investments in disaster relief, insur- ance, and emergency management pro- grams; (iii) encouraging the adoption and en- forcement of the latest published editions of relevant consensus-based codes, speci- fications, and standards that incorporate the latest hazard-resistant designs and es- tablish minimum acceptable criteria for the design, construction, and maintenance of residential structures and facilities that may be eligible for assistance under this chapter for the purpose of protecting the health, safety, and general welfare of the buildings’ users against disasters; (iv) facilitating participation in the community rating system; and (v) funding mitigation projects or grant- ing tax incentives for projects that reduce risk. (B) Comprehensive guidance Not later than 1 year after February 9, 2018, the President, acting through the Ad- ministrator, shall issue comprehensive guid- ance to State and Tribal governments re- garding the measures and investments, weighted appropriately based on actuarial assessments of eligible actions, that will be recognized for the purpose of increasing the Federal share under this section. Guidance shall ensure that the agency’s review of eli- gible measures and investments does not un- duly delay determining the appropriate Fed- eral cost share. (C) Report One year after the issuance of the guid- ance required by subparagraph (B), the Ad- ministrator shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee Page 6400 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5172 on Homeland Security and Governmental Affairs of the Senate a report regarding the analysis of the Federal cost shares paid under this section. (D) Savings clause Nothing in this paragraph prevents the President from increasing the Federal cost share above 85 percent. (c) Large in-lieu contributions (1) For public facilities (A) In general In any case in which a State or local gov- ernment determines that the public welfare would not best be served by repairing, re- storing, reconstructing, or replacing any public facility owned or controlled by the State or local government, the State or local government may elect to receive, in lieu of a contribution under subsection (a)(1)(A), a contribution in an amount equal to the Federal share of the Federal estimate of the cost of repairing, restoring, recon- structing, or replacing the facility and of management expenses. (B) Use of funds Funds contributed to a State or local gov- ernment under this paragraph may be used— (i) to repair, restore, or expand other se- lected public facilities; (ii) to construct new facilities; or (iii) to fund hazard mitigation measures that the State or local government deter- mines to be necessary to meet a need for governmental services and functions in the area affected by the major disaster. (C) Limitations Funds made available to a State or local government under this paragraph may not be used for— (i) any public facility located in a regu- latory floodway (as defined in section 59.1 of title 44, Code of Federal Regulations (or a successor regulation)); or (ii) any uninsured public facility located in a special flood hazard area identified by the Administrator of the Federal Emer- gency Management Agency under the Na- tional Flood Insurance Act of 1968 (42 U.S.C. 4001 et seq.). (2) For private nonprofit facilities (A) In general In any case in which a person that owns or operates a private nonprofit facility deter- mines that the public welfare would not best be served by repairing, restoring, recon- structing, or replacing the facility, the per- son may elect to receive, in lieu of a con- tribution under subsection (a)(1)(B), a con- tribution in an amount equal to the Federal share of the Federal estimate of the cost of repairing, restoring, reconstructing, or re- placing the facility and of management ex- penses. (B) Use of funds Funds contributed to a person under this paragraph may be used— (i) to repair, restore, or expand other se- lected private nonprofit facilities owned or operated by the person; (ii) to construct new private nonprofit facilities to be owned or operated by the person; or (iii) to fund hazard mitigation measures that the person determines to be necessary to meet a need for the person’s services and functions in the area affected by the major disaster. (C) Limitations Funds made available to a person under this paragraph may not be used for— (i) any private nonprofit facility located in a regulatory floodway (as defined in sec- tion 59.1 of title 44, Code of Federal Regu- lations (or a successor regulation)); or (ii) any uninsured private nonprofit fa- cility located in a special flood hazard area identified by the Administrator of the Fed- eral Emergency Management Agency under the National Flood Insurance Act of 1968 (42 U.S.C. 4001 et seq.). (d) Flood insurance (1) Reduction of Federal assistance If a public facility or private nonprofit facil- ity located in a special flood hazard area iden- tified for more than 1 year by the Adminis- trator pursuant to the National Flood Insur- ance Act of 1968 (42 U.S.C. 4001 et seq.) is dam- aged or destroyed, after the 180th day fol- lowing November 23, 1988, by flooding in a major disaster and such facility is not covered on the date of such flooding by flood insur- ance, the Federal assistance which would oth- erwise be available under this section with re- spect to repair, restoration, reconstruction, and replacement of such facility and associ- ated expenses shall be reduced in accordance with paragraph (2). This section shall not apply to more than one building of a multi- structure educational, law enforcement, cor- rectional, fire, or medical campus, for any major disaster or emergency declared by the President under section 5170 or 5191, respec- tively, of this title on or after January 1, 2016, through December 31, 2018. (2) Amount of reduction The amount of a reduction in Federal assist- ance under this section with respect to a facil- ity shall be the lesser of— (A) the value of such facility on the date of the flood damage or destruction, or (B) the maximum amount of insurance proceeds which would have been payable with respect to such facility if such facility had been covered by flood insurance under the National Flood Insurance Act of 1968 on such date. (3) Exception Paragraphs (1) and (2) shall not apply to a private nonprofit facility which is not covered by flood insurance solely because of the local government’s failure to participate in the flood insurance program established by the National Flood Insurance Act. (4) Dissemination of information The President shall disseminate information regarding the reduction in Federal assistance Page 6401 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5172 provided for by this subsection to State and local governments and the owners and opera- tors of private nonprofit facilities who may be affected by such a reduction. (e) Eligible cost (1) Determination (A) In general For the purposes of this section, for disas- ters declared on or after August 1, 2017, or a disaster in which a cost estimate has not yet been finalized for a project, or for any project for which the finalized cost estimate is on appeal, the President shall estimate the eligible cost of repairing, restoring, re- constructing, or replacing a public facility or private nonprofit facility— (i) on the basis of the design of the facil- ity as the facility existed immediately be- fore the major disaster; (ii) in conformity with the latest pub- lished editions of relevant consensus-based codes, specifications, and standards that incorporate the latest hazard-resistant de- signs and establish minimum acceptable criteria for the design, construction, and maintenance of residential structures and facilities that may be eligible for assist- ance under this chapter for the purposes of protecting the health, safety, and general welfare of a facility’s users against disas- ters (including floodplain management and hazard mitigation criteria required by the President or under the Coastal Barrier Re- sources Act (16 U.S.C. 3501 et seq.)); and (iii) in a manner that allows the facility to meet the definition of resilient devel- oped pursuant to this subsection. (B) Cost estimation procedures (i) In general Subject to paragraph (2), the President shall use the cost estimation procedures established under paragraph (3) to deter- mine the eligible cost under this sub- section. (ii) Applicability The procedures specified in this para- graph and paragraph (2) shall apply only to projects the eligible cost of which is equal to or greater than the amount specified in section 5189 of this title. (C) Contributions Contributions for the eligible cost made under this section may be provided on an ac- tual cost basis or on cost-estimation proce- dures. (2) Modification of eligible cost (A) Actual cost greater than ceiling percent- age of estimated cost In any case in which the actual cost of re- pairing, restoring, reconstructing, or replac- ing a facility under this section is greater than the ceiling percentage established under paragraph (3) of the cost estimated under paragraph (1), the President may de- termine that the eligible cost includes a por- tion of the actual cost of the repair, restora- tion, reconstruction, or replacement that ex- ceeds the cost estimated under paragraph (1). (B) Actual cost less than estimated cost (i) Greater than or equal to floor percent- age of estimated cost In any case in which the actual cost of repairing, restoring, reconstructing, or re- placing a facility under this section is less than 100 percent of the cost estimated under paragraph (1), but is greater than or equal to the floor percentage established under paragraph (3) of the cost estimated under paragraph (1), the State or local gov- ernment or person receiving funds under this section shall use the excess funds to carry out cost-effective activities that re- duce the risk of future damage, hardship, or suffering from a major disaster. (ii) Less than floor percentage of estimated cost In any case in which the actual cost of repairing, restoring, reconstructing, or re- placing a facility under this section is less than the floor percentage established under paragraph (3) of the cost estimated under paragraph (1), the State or local gov- ernment or person receiving assistance under this section shall reimburse the President in the amount of the difference. (C) No effect on appeals process Nothing in this paragraph affects any right of appeal under section 5189a of this title. (3) Expert panel (A) Establishment Not later than 18 months after October 30, 2000, the President, acting through the Ad- ministrator of the Federal Emergency Man- agement Agency, shall establish an expert panel, which shall include representatives from the construction industry and State and local government. (B) Duties The expert panel shall develop rec- ommendations concerning— (i) procedures for estimating the cost of repairing, restoring, reconstructing, or re- placing a facility consistent with industry practices; and (ii) the ceiling and floor percentages re- ferred to in paragraph (2). (C) Regulations Taking into account the recommendations of the expert panel under subparagraph (B), the President shall promulgate regulations that establish— (i) cost estimation procedures described in subparagraph (B)(i); and (ii) the ceiling and floor percentages re- ferred to in paragraph (2). (D) Review by President Not later than 2 years after the date of promulgation of regulations under subpara- graph (C) and periodically thereafter, the President shall review the cost estimation Page 6402 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5172 procedures and the ceiling and floor percent- ages established under this paragraph. (E) Report to Congress Not later than 1 year after the date of pro- mulgation of regulations under subpara- graph (C), 3 years after that date, and at the end of each 2-year period thereafter, the ex- pert panel shall submit to Congress a report on the appropriateness of the cost esti- mation procedures. (4) Special rule In any case in which the facility being re- paired, restored, reconstructed, or replaced under this section was under construction on the date of the major disaster, the cost of re- pairing, restoring, reconstructing, or replacing the facility shall include, for the purposes of this section, only those costs that, under the contract for the construction, are the owner’s responsibility and not the contractor’s respon- sibility. (5) New rules (A) In general Not later than 18 months after October 5, 2018, the President, acting through the Ad- ministrator of the Federal Emergency Man- agement Agency, and in consultation with the heads of relevant Federal departments and agencies, shall issue a final rulemaking that defines the terms ‘‘resilient’’ and ‘‘re- siliency’’ for purposes of this subsection. (B) Interim guidance Not later than 60 days after October 5, 2018, the Administrator shall issue interim guid- ance to implement this subsection. Such in- terim guidance shall expire 18 months after October 5, 2018, or upon issuance of final reg- ulations pursuant to subparagraph (A), whichever occurs first. (C) Guidance Not later than 90 days after the date on which the Administrator issues the final rulemaking under this paragraph, the Ad- ministrator shall issue any necessary guid- ance related to the rulemaking. (D) Report Not later than 2 years after October 5, 2018, the Administrator shall submit to Congress a report summarizing the regulations and guidance issued pursuant to this paragraph. (Pub. L. 93–288, title IV, § 406, as added Pub. L. 100–707, title I, § 106(b), Nov. 23, 1988, 102 Stat. 4699; amended Pub. L. 106–390, title II, § 205(a)–(d)(1), (e), Oct. 30, 2000, 114 Stat. 1562–1564, 1566; Pub. L. 109–295, title VI, § 689h, Oct. 4, 2006, 120 Stat. 1453; Pub. L. 109–347, title VI, § 609, Oct. 13, 2006, 120 Stat. 1942; Pub. L. 111–351, § 3(c)(2), Jan. 4, 2011, 124 Stat. 3864; Pub. L. 114–111, § 2(b), Dec. 18, 2015, 129 Stat. 2240; Pub. L. 115–123, div. B, title VI, §§ 20604(b), 20606, Feb. 9, 2018, 132 Stat. 86; Pub. L. 115–254, div. D, §§ 1206(b), 1207(a), (b), 1235(b)–(d), Oct. 5, 2018, 132 Stat. 3440, 3463, 3464.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (b)(3)(A)(iii) and (e)(1)(A)(ii), 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 National Flood Insurance Act of 1968, referred to in subsecs. (c)(1)(C)(ii), (2)(C)(ii) and (d)(1), (2)(B), is title XIII of Pub. L. 90–448, Aug. 1, 1968, 82 Stat. 572, which is classified principally to chapter 50 (§ 4001 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 4001 of this title and Tables. The National Flood Insurance Act, referred to in sub- sec. (d)(3), probably means the National Flood Insur- ance Act of 1968. See above. The Coastal Barrier Resources Act, referred to in sub- sec. (e)(1)(A)(ii), is Pub. L. 97–348, Oct. 18, 1982, 96 Stat. 1653, which is classified principally to chapter 55 (§ 3501 et seq.) of Title 16, Conservation. For complete classi- fication of this Act to the Code, see Short Title note set out under section 3501 of Title 16 and Tables. PRIOR PROVISIONS A prior section 5172, Pub. L. 93–288, title IV, § 402, May 22, 1974, 88 Stat. 153, related to repair and restoration of damaged facilities, prior to repeal by Pub. L. 100–707, § 106(b). A prior section 406 of Pub. L. 93–288 was renumbered section 409 by Pub. L. 100–707 and is classified to section 5176 of this title. AMENDMENTS 2018—Subsec. (a)(2)(D). Pub. L. 115–254, § 1206(b), added subpar. (D). Subsec. (a)(3)(C). Pub. L. 115–123, § 20604(b), added sub- par. (C). Subsec. (b)(3). Pub. L. 115–123, § 20606, added par. (3). Subsec. (c)(1)(A). Pub. L. 115–254, § 1207(a)(1), struck out ‘‘90 percent of’’ before ‘‘the Federal share’’. Subsec. (c)(2)(A). Pub. L. 115–254, § 1207(a)(2), struck out ‘‘75 percent of’’ before ‘‘the Federal share’’. Subsec. (d)(1). Pub. L. 115–254, § 1207(b), inserted at end ‘‘This section shall not apply to more than one building of a multi-structure educational, law enforce- ment, correctional, fire, or medical campus, for any major disaster or emergency declared by the President under section 5170 or 5191, respectively, of this title on or after January 1, 2016, through December 31, 2018.’’ Subsec. (e)(1)(A). Pub. L. 115–254, § 1235(b)(1), inserted ‘‘for disasters declared on or after August 1, 2017, or a disaster in which a cost estimate has not yet been fi- nalized for a project, or for any project for which the finalized cost estimate is on appeal,’’ after ‘‘section,’’ in introductory provisions. Subsec. (e)(1)(A)(i). Pub. L. 115–254, § 1235(b)(2), struck out ‘‘and’’ at end. Subsec. (e)(1)(A)(ii). Pub. L. 115–254, § 1235(b)(3), sub- stituted ‘‘the latest published editions of relevant con- sensus-based codes, specifications, and standards that incorporate the latest hazard-resistant designs and es- tablish minimum acceptable criteria for the design, construction, and maintenance of residential struc- tures and facilities that may be eligible for assistance under this chapter for the purposes of protecting the health, safety, and general welfare of a facility’s users against disasters’’ for ‘‘codes, specifications, and stand- ards’’ and ‘‘(16 U.S.C. 3501 et seq.)); and’’ for ‘‘(16 U.S.C. 3501 et seq.)) applicable at the time at which the dis- aster occurred.’’ Subsec. (e)(1)(A)(iii). Pub. L. 115–254, § 1235(b)(4), added cl. (iii). Subsec. (e)(1)(C). Pub. L. 115–254, § 1235(c), added sub- par. (C). Subsec. (e)(5). Pub. L. 115–254, § 1235(d), added par. (5). 2015—Subsec. (a)(3)(B). Pub. L. 114–111 substituted ‘‘communications (including broadcast and tele- communications),’’ for ‘‘communications,’’. 2011—Subsecs. (c)(1)(C)(ii), (2)(C)(ii), (d)(1), (e)(3)(A). Pub. L. 111–351 substituted ‘‘Administrator’’ for ‘‘Direc- tor’’. 2006—Subsec. (a)(3)(B). Pub. L. 109–295 inserted ‘‘edu- cation,’’ after ‘‘communications,’’. Page 6403 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5172 Subsec. (c)(1)(A). Pub. L. 109–347, § 609(1), substituted ‘‘90’’ for ‘‘75’’. Subsec. (c)(1)(B) to (D). Pub. L. 109–347, § 609(2), (3), re- designated subpars. (C) and (D) as (B) and (C), respec- tively, and struck out former subpar. (B). Prior to amendment, text of subpar. (B) read as follows: ‘‘In any case in which a State or local government determines that the public welfare would not best be served by re- pairing, restoring, reconstructing, or replacing any public facility owned or controlled by the State or local government because soil instability in the dis- aster area makes repair, restoration, reconstruction, or replacement infeasible, the State or local government may elect to receive, in lieu of a contribution under subsection (a)(1)(A) of this section, a contribution in an amount equal to 90 percent of the Federal share of the Federal estimate of the cost of repairing, restoring, re- constructing, or replacing the facility and of manage- ment expenses.’’ 2000—Subsec. (a). Pub. L. 106–390, § 205(a), added sub- sec. (a) and struck out heading and text of former sub- sec. (a). Text read as follows: ‘‘The President may make contributions— ‘‘(1) to a State or local government for the repair, restoration, reconstruction, or replacement of a pub- lic facility which is damaged or destroyed by a major disaster and for associated expenses incurred by such government; and ‘‘(2) to a person who owns or operates a private non- profit facility damaged or destroyed by a major dis- aster for the repair, restoration, reconstruction, or replacement of such facility and for associated ex- penses incurred by such person.’’ Subsec. (b). Pub. L. 106–390, § 205(b), added subsec. (b) and struck out heading and text of former subsec. (b). Text read as follows: ‘‘The Federal share of assistance under this section shall be not less than— ‘‘(1) 75 percent of the net eligible cost of repair, res- toration, reconstruction, or replacement carried out under this section; ‘‘(2) 100 percent of associated expenses described in subsections (f)(1) and (f)(2) of this section; and ‘‘(3) 75 percent of associated expenses described in subsections (f)(3), (f)(4), and (f)(5) of this section.’’ Subsec. (c). Pub. L. 106–390, § 205(c), added subsec. (c) and struck out heading and text of former subsec. (c) which provided that, upon a determination that the public welfare would not be best served by repairing, restoring, reconstructing, or replacing either a public facility or a private nonprofit facility, an election could be made to receive, in lieu of a contribution under subsec. (a), a contribution of not to exceed 90 per- cent of the Federal share of the Federal estimate of the cost of repairing, restoring, reconstructing, or replac- ing the facility and of associated expenses, with the re- striction that such funds not be used for any State or local government cost-sharing contribution required under this chapter. Subsec. (e). Pub. L. 106–390, § 205(d)(1), added subsec. (e) and struck out heading and text of former subsec. (e). Text read as follows: ‘‘(1) GENERAL RULE.—For purposes of this section, the cost of repairing, restoring, reconstructing, or replac- ing a public facility or private nonprofit facility on the basis of the design of such facility as it existed imme- diately prior to the major disaster and in conformity with current applicable codes, specifications, and standards (including floodplain management and haz- ard mitigation criteria required by the President or by the Coastal Barrier Resources Act (16 U.S.C. 3501 et seq.)) shall, at a minimum, be treated as the net eligi- ble cost of such repair, restoration, reconstruction, or replacement. ‘‘(2) SPECIAL RULE.—In any case in which the facility being repaired, restored, reconstructed, or replaced under this section was under construction on the date of the major disaster, the cost of repairing, restoring, reconstructing, or replacing such facility shall include, for purposes of this section, only those costs which, under the contract for such construction, are the own- er’s responsibility and not the contractor’s responsi- bility.’’ Subsec. (f). Pub. L. 106–390, § 205(e), struck out subsec. (f) which set out various associated expenses, including necessary and extraordinary costs, and costs of using the National Guard and prison labor. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–254 applicable to each major disaster and emergency declared by the Presi- dent 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 sec- tion 1202 of Pub. L. 115–254, set out as a note under sec- tion 5121 of this title. Amendment by section 20604(b) of Pub. L. 115–123 ap- plicable to provision of assistance in response to major disaster or emergency declared on or after Aug. 23, 2017, or, with respect to any application for assistance that, as of Feb. 9, 2018, is pending before Federal Emergency Management Agency, and any application for assist- ance that has been denied, where a challenge to that denial is not yet finally resolved as of Feb. 9, 2018, see section 20604(c) of Pub. L. 115–123, set out as a note under section 5122 of this title. EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106–390, title II, § 205(d)(2), Oct. 30, 2000, 114 Stat. 1566, as amended by Pub. L. 115–254, div. D, § 1235(e), Oct. 5, 2018, 132 Stat. 3464, provided that: ‘‘The amendment made by paragraph (1) [amending this sec- tion] takes effect on the date of the enactment of this Act [Oct. 30, 2000] and applies to funds appropriated after the date of the enactment of this Act, except that paragraph (1)(B) of section 406(e) of the Robert T. Staf- ford Disaster Relief and Emergency Assistance Act [subsec. (e)(1) of this section] (as amended by paragraph (1)) takes effect on the date on which the cost esti- mation procedures established under paragraph (3) of that section take effect.’’ TRANSFER OF FUNCTIONS For transfer of all functions, personnel, assets, com- ponents, authorities, grant programs, and liabilities of the Federal Emergency Management Agency, including the functions of the Under Secretary for Federal Emer- gency Management relating thereto, to the Federal Emergency Management Agency, see section 315(a)(1) of Title 6, Domestic Security. For transfer of functions, personnel, assets, and li- abilities of the Federal Emergency Management Agen- cy, including the functions of the Director of the Fed- eral Emergency Management Agency relating thereto, to the Secretary of Homeland Security, and for treat- ment of related references, see former section 313(1) and sections 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. GUIDANCE ON INUNDATED AND SUBMERGED ROADS Pub. L. 115–254, div. D, § 1228, Oct. 5, 2018, 132 Stat. 3459, provided that: ‘‘The Administrator of the Federal Emergency Management Agency, in coordination with the Administrator of the Federal Highway Administra- tion, shall develop and issue guidance for State, local, and Indian tribal governments regarding repair, res- toration, and replacement of inundated and submerged roads damaged or destroyed by a major disaster, and for associated expenses incurred by the Government, with respect to roads eligible for assistance under sec- tion 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5172).’’ [For definition of ‘‘State’’ as used in section 1228 of Pub. L. 115–254, set out above, see section 1203 of Pub. L. 115–254, set out as a note under section 5122 of this title.] Page 6404 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5173 GUIDANCE AND RECOMMENDATIONS Pub. L. 115–254, div. D, § 1230, Oct. 5, 2018, 132 Stat. 3459, provided that: ‘‘(a) GUIDANCE.—The Administrator [of the Federal Emergency Management Agency] shall provide guid- ance to a common interest community that provides essential services of a governmental nature on actions that a common interest community may take in order to be eligible to receive reimbursement from a grantee that receives funds from the [Federal Emergency Man- agement] Agency for certain activities performed after an event that results in a major disaster declared by the President under section 401 of the Robert T. Staf- ford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170). ‘‘(b) RECOMMENDATIONS.—Not later than 90 days after the date of enactment of this Act [Oct. 5, 2018], the Ad- ministrator shall provide to the Committee on Trans- portation and Infrastructure of the House of Represent- atives and the Committee on Homeland Security and Governmental Affairs of the Senate a legislative pro- posal on how to provide eligibility for disaster assist- ance with respect to common areas of condominiums and housing cooperatives. ‘‘(c) EFFECTIVE DATE.—This section shall be effective on the date of enactment of this Act.’’ POST-DISASTER BUILDING SAFETY ASSESSMENT Pub. L. 115–254, div. D, § 1241, Oct. 5, 2018, 132 Stat. 3466, provided that: ‘‘(a) BUILDING SAFETY ASSESSMENT TEAM.— ‘‘(1) IN GENERAL.—The Administrator [of the Fed- eral Emergency Management Agency] shall coordi- nate with State and local governments and organiza- tions representing design professionals, such as archi- tects and engineers, to develop guidance, including best practices, for post-disaster assessment of build- ings by licensed architects and engineers to ensure the design professionals properly analyze the struc- tural integrity and livability of buildings and struc- tures. ‘‘(2) PUBLICATION.—The Administrator shall publish the guidance required to be developed under para- graph (1) not later than 1 year after the date of enact- ment of this Act [Oct. 5, 2018]. ‘‘(b) NATIONAL INCIDENT MANAGEMENT SYSTEM.—The Administrator shall revise or issue guidance as re- quired to the National Incident Management System Resource Management component to ensure the func- tions of post-disaster building safety assessment, such as those functions performed by design professionals are accurately resource typed within the National Inci- dent Management System. ‘‘(c) EFFECTIVE DATE.—This section shall be effective on the date of enactment of this Act.’’ [For definition of ‘‘State’’ as used in section 1241 of Pub. L. 115–254, set out above, see section 1203 of Pub. L. 115–254, set out as a note under section 5122 of this title.] REVIEW OF ASSISTANCE FOR DAMAGED UNDERGROUND WATER INFRASTRUCTURE Pub. L. 115–254, div. D, § 1245, Oct. 5, 2018, 132 Stat. 3468, provided that: ‘‘(a) DEFINITION OF PUBLIC ASSISTANCE GRANT PRO- GRAM.—The term ‘public assistance grant program’ means the public assistance grant program authorized under sections 403, 406, 407, 428, and 502(a) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170b, 5172, 5173, [5189f,] 5192(a)). ‘‘(b) REVIEW AND BRIEFING.—Not later than 60 days after the date of enactment of this Act [Oct. 5, 2018], the Administrator [of the Federal Emergency Manage- ment Agency] shall— ‘‘(1) conduct a review of the assessment and eligi- bility process under the public assistance grant pro- gram with respect to assistance provided for damaged underground water infrastructure as a result of a major disaster declared under section 401 of such Act (42 U.S.C. 5170), including wildfires, and shall include the extent to which local technical memoranda, pre- pared by a local unit of government in consultation with the relevant State or Federal agencies, identi- fied damaged underground water infrastructure that should be eligible for the public assistance grant pro- gram; and ‘‘(2) provide to the Committee on Homeland Secu- rity and Governmental Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a briefing on the review conducted under paragraph (1). ‘‘(c) REPORT AND RECOMMENDATIONS.—The Adminis- trator shall— ‘‘(1) not later than 180 days after the date of enact- ment of this Act, issue a report on the review con- ducted under subsection (b)(1); and ‘‘(2) not later than 180 days after the date on which the Administrator issues the report required under paragraph (1), initiate a rulemaking, if appropriate, to address any recommendations contained in the re- port.’’ [For definition of ‘‘State’’ as used in section 1245 of Pub. L. 115–254, set out above, see section 1203 of Pub. L. 115–254, set out as a note under section 5122 of this title.] § 5173. Debris removal (a) Presidential authority The President, whenever he determines it to be in the public interest, is authorized— (1) through the use of Federal departments, agencies, and instrumentalities, to clear de- bris and wreckage resulting from a major dis- aster from publicly and privately owned lands and waters; and (2) to make grants to any State or local gov- ernment or owner or operator of a private non- profit facility for the purpose of removing de- bris or wreckage resulting from a major dis- aster from publicly or privately owned lands and waters. (b) Authorization by State or local government; indemnification agreement No authority under this section shall be exer- cised unless the affected State or local govern- ment shall first arrange an unconditional au- thorization for removal of such debris or wreck- age from public and private property, and, in the case of removal of debris or wreckage from pri- vate property, shall first agree to indemnify the Federal Government against any claim arising from such removal. (c) Rules relating to large lots The President shall issue rules which provide for recognition of differences existing among urban, suburban, and rural lands in implementa- tion of this section so as to facilitate adequate removal of debris and wreckage from large lots. (d) Federal share The Federal share of assistance under this sec- tion shall be not less than 75 percent of the eli- gible cost of debris and wreckage removal car- ried out under this section. (e) Expedited payments (1) Grant assistance In making a grant under subsection (a)(2), the President shall provide not less than 50 percent of the President’s initial estimate of the Federal share of assistance as an initial payment in accordance with paragraph (2).