# FEMA’s Public Assistance Grant Program: Background and Considerations for Congress > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR43990 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** April 16, 2015 - **Citation:** R43990 ## Text FEMA’s Public Assistance Grant Program: Background and Considerations for Congress (name redacted) Analyst in Emergency Management and Homeland Security Policy (name redacted) Research Assistant April 16, 2015 Congressional Research Service 7-.... www.crs.gov R43990 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Summary The Public Assistance Grant Program (PA Program) is administered by the Federal Emergency Management Agency (FEMA) and combines the authorities of multiple sections of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (P.L. 93-288, as amended, the Stafford Act). The PA Program is only available for states and communities that have received a major or emergency disaster declaration through the Stafford Act (and in a more limited fashion, Fire Management Assistance Grants). The PA Program provides grant assistance for eligible purposes, including • Emergency work, as authorized by Sections 403, 407, and 502 of the Stafford Act, which provide for the removal of debris and emergency protective measures, such as the establishment of temporary shelters and emergency power generation. • Permanent work, as authorized by Section 406, which provides for the repair, replacement, or restoration of disaster-damaged, publicly owned facilities and the facilities of certain private nonprofit organizations (PNPs). PNPs are generally eligible for permanent work assistance if they provide a governmental type of service, though PNPs not providing a “critical” service must first apply to the Small Business Administration for loan assistance for facility projects. At its discretion, FEMA may provide assistance for hazard mitigation measures that are not required by applicable codes and standards. As a condition of PA assistance, applicants must obtain and maintain insurance on their facilities for similar future disasters. • Management costs, as authorized by Section 324, which reimburses some of the applicant’s administrative expenses incurred managing the totality of the PA Program’s projects and grants. FEMA will either award PA grants based on the estimated federal share of the total eligible cost of the project or award grants on the federal share of actual eligible costs evidenced through documentation from the applicant/grantee. The federal government provides a minimum of 75% of the cost of eligible assistance, and this cost-share can rise if certain criteria are met. The PA Program is appropriated for in the Disaster Relief Fund (DRF). Between FY2000 and FY2013, PA accounted for approximately 47% of all federal spending from the DRF. During this period, the PA Program provided approximately $21.2 billion in federal grants for emergency work assistance, $30.2 billion in permanent work assistance, and $1.2 billion in management assistance. Approximately $6.6 billion of these grant amounts was provided to PNPs for both emergency and permanent work. The PA Program authorities were most recently significantly amended by the Sandy Recovery Improvement Act (Division B of P.L. 113-2, SRIA). SRIA established “alternative procedures” for PA Program assistance, which has allowed FEMA to implement a Public Assistance Alternative Procedures (PAAP) Pilot Program. These procedures revise a number of elements of the PA Program, such as allowing grants for large, permanent work projects (facility restoration projects over $120,000) to be based on fixed estimates, as opposed to actual cost basis; and increasing the federal share of eligible costs when debris is removed more quickly by applicants. Congressional Research Service FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Given the importance of PA Program assistance to communities recovering from disasters, and the amount of federal dollars spent on the assistance, Congress may consider several policy issues related to the PA Program. For example, Congress may consider • Reviewing current FEMA policies implementing the authorizing statute and, when desired, codifying or overriding the policies through further clarification in law; • Evaluating major forthcoming changes to the PA Program authorized by SRIA and an earlier law, the Disaster Mitigation Act of 2000 (P.L. 106-390); • Weighing options for decreasing the improper use of PA assistance by applicants, perhaps by revising the conditions of management cost assistance or improving the collection of data in the PA Program; • Expanding or restricting the eligibility of the PA Program, possibly to exclude certain PNPs from assistance or to grant assistance to privately owned facilities; • Deciding if and how the PA Program should provide hazard mitigation assistance on facility restoration projects; and • Defining the role of PA Program as it potentially overlaps with the disaster assistance authorities of other federal agencies. Congressional Research Service FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Contents Introduction...................................................................................................................................... 1 Key Elements of the PA Program .................................................................................................... 2 Eligible Applicants .................................................................................................................... 2 Eligible Types of Assistance (Categories of Work) ................................................................... 4 Emergency Work ................................................................................................................. 4 Permanent Work .................................................................................................................. 8 Hazard Mitigation Assistance for Permanent Work .......................................................... 10 Insurance Requirements for Permanent Work ................................................................... 11 Administrative Cost Assistance ............................................................................................... 12 Grantee Cost-Shares ................................................................................................................ 14 Appeal Rights .......................................................................................................................... 15 Methods for Awarding and Disbursing Grant Funding .................................................................. 16 Estimated Cost Basis ............................................................................................................... 16 Simplified Procedure “Small” Projects ............................................................................. 17 In-Lieu “Alternate” Projects.............................................................................................. 18 Improved Projects ............................................................................................................. 20 Alternative Procedure Fixed-Estimate Grants ................................................................... 20 Actual Cost Basis .................................................................................................................... 21 Possible DMA 2000 Grant Estimating Procedure ............................................................. 22 Public Assistance Alternative Procedures Created by the Sandy Recovery Improvement Act .............................................................................................................................................. 24 Pilot Program Guidance .......................................................................................................... 24 Fixed Estimate Grants for Debris Removal ...................................................................... 25 Selective Availability of Alternative Procedures for Applicants ....................................... 25 Applicability of Alternative Procedures to Past Disasters ................................................. 26 Summary Analysis of Obligations for the Public Assistance Program .......................................... 27 Appropriations for the Public Assistance Program.................................................................. 27 Aggregate Spending on Public Assistance .............................................................................. 28 Public Assistance Spending by Type of Work, Category, and Project Size ............................. 30 Obligations for Private Nonprofit Facilities ............................................................................ 35 Obligations for Hazard Mitigation within the PA Program ..................................................... 36 Considerations for Congress .......................................................................................................... 37 Balancing the Level of Statutory Versus Executive Branch Guidance for the PA Program ................................................................................................................................ 37 Evaluating Key Prospective Changes to the PA Program........................................................ 38 SRIA Alternative Procedures Pilot Program ..................................................................... 40 Grants Based on Estimates for Large, Permanent Work Projects...................................... 41 Improper Payments, Fraud, Waste, and Abuse in PA Program ................................................ 42 Management Cost Assistance ............................................................................................ 43 Limitations of Current PA Program Data for Congressional Oversight ............................ 44 Expanding or Restricting Permanent Work Program Eligibility ............................................. 45 Private Nonprofit Eligibility.............................................................................................. 45 Privately Owned Facilities ................................................................................................ 46 Hazard Mitigation Within the PA Program .............................................................................. 47 Implementing Executive Order 13960 for the PA Program .............................................. 50 Congressional Research Service FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Clarifying the Role of the PA Program with Other Federal Agencies’ Disaster Assistance Authorities .......................................................................................................... 51 Figures Figure 1. Share of DRF Funding by Activity................................................................................. 29 Figure 2. Public Assistance Federal Obligations, FY2000-FY2013 .............................................. 30 Figure 3. Type of Work and Category as a Percent of Total Public Assistance Federal Obligations, FY2000-FY2013 .................................................................................................... 31 Figure 4. Federal Obligations for Permanent Work and Emergency Work, FY2000FY2013 ....................................................................................................................................... 32 Figure 5. Small Projects by PA Work Category, as a Percentage of Total PA Obligations, FY2000-FY2013 ......................................................................................................................... 34 Figure 6. Hazard Mitigation Obligations in the PA Program, FY2000-FY2013 ........................... 36 Tables Table 1. Eligible Types of Assistance (Categories of Work) in the PA Program ............................. 4 Table 2. Summary Comparison of Large, Permanent Work Grant Estimation Procedures ........... 23 Table 3. Appropriations to the Disaster Relief Fund, FY2000 through FY2013 ........................... 27 Table 4. Average PA Obligations per Major Disaster by Quartile, FY2000-FY2013 .................... 33 Table 5. Number of PA Projects and Federal Obligations by Size and Type of Work ................... 35 Table 6. Summary of Differences Between Mitigation Assistance Programs ............................... 48 Appendixes Appendix A. Brief Legislative History of the Public Assistance Grant Program .......................... 55 Appendix B. Worksheet Dataset Considerations ........................................................................... 57 Contacts Author Contact Information........................................................................................................... 59 Acknowledgments ......................................................................................................................... 59 Congressional Research Service FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Introduction The Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq., henceforth the Stafford Act) confers upon the President a broad set of authorities “to alleviate the suffering and damage” of affected tribal, state, and local governments, as well as individual citizens, from disasters.1 The Federal Emergency Management Agency (FEMA) of the Department of Homeland Security (DHS) has been given the responsibility of administering almost all of the President’s Stafford Act authorities through other law, a series of Executive Orders, and a DHS delegation.2 FEMA has established the Public Assistance (PA) Grant Program by combining the authority of multiple sections of the Stafford Act. The PA Program provides financial grant assistance to states, tribes, and local communities both in the response to and recovery from significant disasters. Between FY2000-FY2013, the PA Program has provided $52.6 billion in grant assistance to help communities pay for an array of eligible response and recovery activities, including debris removal, emergency protective measures, and the repair, replacement, or restoration of disaster-damaged, publicly owned facilities and the facilities of certain private nonprofit (PNP) organizations. The authorities of the PA Program were most recently significantly amended by the Sandy Recovery Improvement Act (Division B of P.L. 1132, the Disaster Relief Appropriations Act, 2013; henceforth SRIA). For a brief legislative history of PA Program authorities, see Appendix A. This report provides background on key elements of the PA Program, such as the eligibility of applicants, the types of assistance available, and the methods FEMA uses for awarding grant assistance. Summary analysis of federal obligations for PA Program assistance is also provided along important variables, such as the distribution of federal obligations across the PA Program eligible categories of work assistance. The report concludes with discussion of several policy issues that Congress may wish to consider when evaluating the PA Program in the future, including considerations of significant prospective changes to the PA Program and the role of the PA Program in the context of other federal agency disaster assistance authorities. It is beyond the scope of this report to describe in full how FEMA administers the PA Program. FEMA has many publicly available resources that explain the complexity of the PA Program in greater detail than is provided in this report.3 1 42 U.S.C. §5121(b), Section 101(b) of the Stafford Act. Section 504(a)(1)(8) of the Homeland Security Act of 2002, as amended (6 U.S.C. §314) directs the Administrator of FEMA to assist “the President in carrying out the functions” of the Stafford Act and “carrying out all functions and authorities given to the Administrator under that Act.” In addition, Executive Order 12148, 44 FR 43239 (1979), as amended most recently by Executive Order 13286, 68 FR 10619 (2003), delegates Stafford Act authorities to the Secretary of DHS, who in turn has delegated these authorities to FEMA in DHS Delegation 9001.1. The President exclusively retains the authority to declare a major disaster or emergency under 42 U.S.C. §5170, Section 401 of the Stafford Act and 42 U.S.C. §5191, Section 501 of the Stafford Act, respectively. 3 FEMA provides a considerable number of resources through its website on the PA Program, including a step-by-step guide to the grant process, frequently asked questions, policy guidance on specific topics, etc., at https://www.fema.gov/public-assistance-local-state-tribal-and-non-profit. There is also a full guide to the PA Program, though this document has not been updated to account for changes made in recent legislation, most significantly SRIA. See FEMA, Public Assistance Guide, June 2007, at http://www.fema.gov/pdf/government/grant/pa/paguide07.pdf. 2 Congressional Research Service 1 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Key Elements of the PA Program This section of the report describes key elements of the PA Program, such as major eligibility considerations, the types of grant assistance provided, and the methods for disbursing grant funding. Eligible Applicants In order to be eligible for PA grants, an applicant’s respective state or tribal government must first receive a major or emergency disaster declaration from the President through Stafford Act procedures.4 The key condition for receiving a declaration is that the disaster has consequences “beyond the capacity” of the affected state/tribe and local communities to manage. In a more limited fashion, PA grants are available to those areas receiving Fire Management Assistance Grants (often colloquially called FMAG or fire “declarations”).5 In addition, PA grants are only available in the localities of the state (or the tribal associated lands) specified in the Stafford Act declaration. Once the President has issued a disaster declaration, the primary grantee for all PA grants is the state or tribal government receiving the declaration.6 However, as subgrantees (or, by another name, applicants) PA grants are available to any tribal government, state, and local government entity in the affected area.7 Local government is broadly defined in the Stafford Act, and therefore grant assistance may be provided to local governmental bodies ranging from general purpose municipal city governments, school districts, public hospitals, public water and sewage authorities, to transportation districts. 4 Declarations are made through Section 401 and 501 of the Stafford Act (42 U.S.C. §§5170 and 5191, respectively). For an explanation and discussion of the disaster declaration process, see CRS Report R43784, FEMA’s Disaster Declaration Process: A Primer, by (name redacted). 5 The President is allowed to provide assistance using Section 403 essential assistance authorities for FMAGs (see 42 U.S.C. §5187(c), Section 420(c) of the Stafford Act). This type of PA assistance is described in the “Emergency Work” section of this report. For more on FMAGs, see CRS Report R43738, Fire Management Assistance Grants: Frequently Asked Questions, coordinated by (name redacted). 6 Tribal governments are eligible to receive a disaster declaration either separately from, or as part of, a declaration made for the state in which the tribal lands primarily reside. See Section 401(b) of the Stafford Act (42 U.S.C. §5170(b)). 7 These terms are defined at 42 U.S.C. §5122, Section 102 of the Stafford Act. State means “any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands”; Indian Tribal Government means “the governing body of any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe under the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a et seq.)”; and local government means (A) a county, municipality, city, town, township, local public authority, school district, special district, intrastate district, council of governments (regardless of whether the council of governments is incorporated as a nonprofit corporation under State law), regional or interstate government entity, or agency or instrumentality of a local government; (B) an Indian tribe or authorized tribal organization, or Alaska Native village or organization, that is not an Indian tribal government as defined in paragraph (6); and (C) a rural community, unincorporated town or village, or other public entity, for which an application for assistance is made by a State or political subdivision of a State. Congressional Research Service 2 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress PA grants are not available to private citizens or private companies,8 but they are available to certain owners of private nonprofit facilities (PNPs).The Stafford Act provides a full definition, with examples, of what constitutes an eligible PNP facility. The major condition of eligibility of a PNP is whether it falls into a specific set of facilities named in law,9 or if it otherwise provides an “essential service of a governmental nature to the general public.”10 This condition is included in the PNP definition in the law, and is expanded on in FEMA’s regulations and policy guidance.11 The PNP must also be considered a nonprofit under the terms of the U.S. Internal Revenue Service or under state law.12 The eligibility of PNPs for PA assistance changes based on whether the PNP is determined to provide a critical service, which is a smaller subset of PNPs providing essential governmental services. Critical services include power, water, sewer, education, emergency medical facilities, and more.13 If the PNP provides a critical service, it may apply directly to the PA Program for grant assistance to repair and restore its facilities as if it were a tribal, state, or local governmental entity. If it does not provide such a critical service, but does provide an essential service of a governmental nature, the PNP is first required to apply for assistance from the Small Business Administration’s (SBA’s) Disaster Loan Program. If the PNP is denied assistance from SBA or the total amount of loan assistance is less than the PA eligible damage, the eligible PNP providing non-critical governmental services may then apply for assistance from the PA Program.14 Both critical and non-critical PNPs may receive emergency work assistance, as described later in the report. Of recent interest to Congress, FEMA’s policy guidance instructs that PNP facilities are ineligible for assistance when their space is “dedicated to or primarily used for religious, political, athletic, recreational, or vocational purposes.”15 Currently, facilities owned by a religious entity are only eligible to the extent that the facility primarily provides an eligible, essential governmental service. For example, the school facilities of a church are generally eligible, so long as the primary purpose of the facilities is for secular education.16 Congress has considered legislation to 8 In limited circumstances, essential assistance through Section 403 of the Stafford Act (42 U.S.C. §5170b), especially emergency debris removal assistance, may be provided by FEMA to applicants to address public safety concerns on private property. The recipient of the grant assistance is not the private entity, though the work completed may benefit the private entity in the interest of saving lives, protecting and preserving property, or public health and safety. 9 Any “educational, utility, irrigation, emergency, medical, rehabilitational, and temporary or permanent custodial care facilities (including those for the aged and disabled) and facilities on Indian reservations,” as defined at 42 U.S.C. §5122(11)(A), Section 102(11)(A) of the Stafford Act. 10 As defined at 42 U.S.C. §5122(11)(B), Section 102(11)(B) of the Stafford Act. 11 See 44 C.F.R. §206.221(e) and (f) for expansions on the statutory definitions for PNPs, and for a full explanation of FEMA policy on PNP eligibility, see FEMA, Private Nonprofit (PNP) Facility Eligibility, DAP 9521.3, July 8, 2007, at http://www.fema.gov/media-library/assets/documents/89685. 12 Section VII.A.1 of FEMA, Private Nonprofit (PNP) Facility Eligibility, DAP 9521.3, July 8, 2007, at http://www.fema.gov/media-library/assets/documents/89685. 13 See 42 U.S.C. §5172(a)(3)(B), Section 406(a)(3)(B) of the Stafford Act, for an illustrative list of examples of what constitutes a critical service. 14 These requirements for critical versus non-critical service PNPs are established by 42 U.S.C. §5172(a)(3), Section 406 (a)(3) of the Stafford Act, and implemented by 44 C.F.R. §206.226(c). For more on the SBA program, see CRS Report R41309, The SBA Disaster Loan Program: Overview and Possible Issues for Congress, by (name redacted). 15 Section VII.D.3 of FEMA, Private Nonprofit (PNP) Facility Eligibility, DAP 9521.3, July 8, 2007, at http://www.fema.gov/media-library/assets/documents/89685. 16 See the example provided by FEMA of a fictional “Community Church School” at FEMA, Private Nonprofit (PNP) Facility Eligibility, DAP 9521.3, July 8, 2007, p. A2, at http://www.fema.gov/media-library/assets/documents/89685. Congressional Research Service 3 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress allow for the inclusion of “houses of worship” as an eligible category of PNP facilities, though doing so may present constitutional legal issues.17 Eligible Types of Assistance (Categories of Work) To administer the PA Program and describe the PA Program’s many eligible types of assistance, FEMA combines the authorities of multiple sections of the Stafford Act into “categories of work.” As shown in Table 1, FEMA has two major groups of assistance: emergency work assistance, and permanent work assistance. Within these groups, there are categories of assistance labeled A through G. Neither the Stafford Act nor FEMA’s implementing regulations specifically identify these categories of work; rather these distinctions have been developed by FEMA in policy as a means of managing and implementing the PA Program.18 While a generally useful tool to classify the types of assistance available through the PA Program, the categories are not completely distinct and similar projects could be subjectively classified under different categories in different incidents (i.e., there is some “gray area” between the categories). Table 1. Eligible Types of Assistance (Categories of Work) in the PA Program Categories Emergency Work Stafford Act Authority A: Debris Removal §§403(a)(3); 407; 502(a) B: Emergency Protective Measures §§403(a)(3); 418; 419; 502(a) C: Roads and Bridges D: Water Control Facilities Permanent Work E: Buildings and Equipment §406 F: Utilities G: Parks, Recreational Facilities, and Other Items Source: Federal Emergency Management Agency, Public Assistance Guide, FEMA 322, 2007, at http://www.fema.gov/public-assistance-policy-and-guidance; and CRS analysis of the Stafford Act. Emergency Work FEMA regulations define emergency work as “work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.”19 The authorizing statute for emergency work is found in multiple provisions of the Stafford Act, primarily in Section 403.20 Emergency work assistance is available to communities identified in both major and emergency disaster declarations. More limited emergency work assistance is also provided for areas receiving Fire Management Assistance 17 For a legal analysis and discussion of legislation, see CRS Report R42974, Federal Aid for Reconstruction of Houses of Worship: A Legal Analysis, by (name redacted). 18 Descriptions of the subcategories can be found in FEMA, Public Assistance Guide, FEMA 322, 2007, at http://www.fema.gov/public-assistance-policy-and-guidance. 19 44 C.F.R. §206.201(b). 20 42 U.S.C. §5170b. Emergency work is also authorized by Sections 418, 419, and 502(a) of the Stafford Act, 42 U.S.C. §§ 5185, 5186, and 5192(a), respectively. Congressional Research Service 4 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Grants (FMAGs). As subdivided by FEMA, it includes two categories of assistance, debris removal and emergency protective measures, which are described below. As shown later in Table 5, CRS analysis of project data from FY2000 to FY2013 indicates that approximately 35% of all PA projects were for emergency work. These emergency work projects accounted for 41%, or $21.2 billion, of the total federal obligations for assistance in the PA Program during the time period. Debris Removal21 When a disaster strikes a community, it can produce a large volume of debris ranging from tree limbs, destroyed cars, chemicals and other hazardous materials, building materials, etc. Debris can have immediate impacts such as blocking emergency routes, and can also inhibit a community’s overall recovery and prevent the safe return of residents to their homes if they were evacuated. Managing the debris removal process is a fundamental challenge in responding to any disaster, and is guided by a number of regulatory requirements.22 So long as it is in the public interest, FEMA provides grant assistance to communities for both the actual removal of the debris and the management of the process writ large, as authorized by Section 403(a)(3)(A) and Section 407 of the Stafford Act.23 This assistance, under Category A of the PA Program, is available both for emergency and major disaster declarations.24 Working with the applicant, FEMA will estimate the amount of debris following a disaster in order to provide eligible grantees expedited payments of 50% of the initial estimate for full anticipated debris removal costs.25 Eligible PNPs may receive assistance for the removal of debris on their eligible facilities. FEMA has established extensive policy guidance specifically on debris removal assistance, as the process for debris removal is relatively distinct from much of the rest of PA Program assistance.26 The Sandy Recovery Improvement Act (SRIA) established a set of alternative procedures for debris removal assistance provided by the Stafford Act.27 This new section of the Stafford Act reauthorizes similar authorities to those granted by the PA Pilot Program established by the PostKatrina Emergency Management Reform Act (PKEMRA),28 and as have been recommended in the past by the DHS Inspector General (IG).29 The alternative procedures are intended to 21 For more on how debris is managed after a disaster, see CRS Report RL34576, Managing Disaster Debris: Overview of Regulatory Requirements, Agency Roles, and Selected Challenges, by (name redacted). 22 Ibid. 23 42 U.S.C. §§5170b(a)(3)(A) and 5173, respectively. See also Sections 403(a)(3)(A) and 502(a)(5) of the Stafford Act. 24 42 U.S.C. §5192(a)(5), Section 502(a)(5) of the Stafford Act authorizes the provision of debris removal assistance in accordance with Section 407 of the Stafford Act for emergency declarations. 25 42 U.S.C. §5173(e), Section 407(e) of the Stafford Act. 26 See FEMA, Public Assistance Debris Management Guide, FEMA-325, July 2007, at http://www.fema.gov/pdf/ government/grant/pa/demagde.pdf. See also FEMA, Public Assistance Debris Monitoring Guide, FEMA-327, October 2010, at https://www.fema.gov/pdf/government/grant/pa/fema_327_debris_monitoring.pdf. 27 Section 1102 of P.L. 113-2, 127 Stat. 41; as codified at 42 U.S.C. §5189f(e)(2), Section 428(e)(2) of the Stafford Act. 28 Section 689j of Division B of P.L. 109-295, 120 Stat. 1455. For more on the PKEMRA PA Pilot program, see FEMA, Public Assistance Pilot Program: Fiscal Year 2009 Report to Congress, May 20, 2009, at http://www.fema.gov/library/viewRecord.do?id=3683. 29 See Department of Homeland Security, Office of Inspector General, FEMA’s Oversight and Management of Debris (continued...) Congressional Research Service 5 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress incentivize the faster completion of projects while saving local and federal monies. As implemented currently by FEMA in pilot program guidance,30 the alternative procedures for debris removal allow: • Use of a sliding scale for the federal share of debris removal based on the time it takes to finish debris removal. FEMA is to provide a larger federal share of the eligible cost the quicker an applicant removes the debris. For debris removed by a subgrantee within 30 days of the disaster, the federal share is 85% (a 10% increase from the minimum 75%); and within the next 60 days (i.e., days 30-90 post-disaster), 80% of the federal share. • Applicants to recycle debris and use the proceeds from such recycling without reducing the awarded amount of grant assistance. FEMA has created several eligible uses for the proceeds, including using it to meet the grantee cost share requirement and to improve future debris removal operations. • Reimbursement of state, tribal, and local governments or owner/operators of private nonprofits for the base and overtime wages of their own employees that are performing or administering debris removal projects. • Provision of financial incentives for applicants with a FEMA-approved debris removal plan and one or more prequalified debris removal contracts prior to a disaster. FEMA is providing a one-time 2% cost share adjustment for a single disaster declaration for all debris removal work completed within 90 days if the applicants have a debris removal plan and at least one prequalified debris removal contract in place. Emergency Protective Measures Emergency protective measures (Category B) is perhaps the broadest eligible form of assistance in the PA Program, as it includes all activities that are “undertaken by a community before, during, and following a disaster that are necessary to ... eliminate or reduce an immediate threat to life, public health, or safety; or eliminate or reduce an immediate threat of significant damage to improved public or private property through cost-effective measures.”31 Examples of eligible activities include the establishment of temporary shelters and community service facilities, critical power generation, demolition of unsafe buildings, operation of emergency communications systems, and more.32 In addition to assistance that applicants, including PNPs, may receive for the emergency protection of their own eligible facilities, applicants may also receive grant assistance to provide emergency protective measures for the general public during the preparedness for or response to a disaster, such as volunteer fire departments for search and rescue operations. Regulations on emergency protective measures33 are expanded upon (...continued) Removal Operations, OIG-11-40, February 2011, http://www.oig.dhs.gov/assets/Mgmt/OIG_11-40_Feb11.pdf. 30 See FEMA, Public Assistance Alternative Procedures Pilot Program, Guide for Debris Removal, Version 2, June 27, 2014, https://www.fema.gov/media-library/assets/documents/33376?id=7776. 31 FEMA, Public Assistance Guide, June, 2007, p. 71, at http://www.fema.gov/pdf/government/grant/pa/paguide07.pdf. 32 Ibid., pp. 71-78. 33 Generally, 44 C.F.R. §206.225. Congressional Research Service 6 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress considerably by numerous policy documents, ranging from policies on the eligibility of building inspection costs to the eligibility of removing hazardous stumps.34 SRIA specified that the President may reimburse both the base and overtime pay and benefits of permanent employees of state, tribal, and local governments for emergency protective measures.35 FEMA anticipates implementing this legislative change through the regulatory process, but has not done so as of the date of publication of this report.36 Under past regulations and policy directives, FEMA determined that, in general, only the overtime wages of permanent employees working for the state and local governments were eligible for reimbursement (that is, not the base pay and benefits or “straight time” of an employee).37 In contrast, FEMA had determined that the full cost of contract labor for this work is eligible for reimbursement. This change made by SRIA did not impact the treatment of wages for private nonprofits, and it continues to allow the reimbursement of overtime and hazardous duty pay of all state and local permanent employees conducting emergency protective measures, consistent with past FEMA policy. FEMA implemented a novel use of emergency protective measures authority during the response to Hurricane Sandy. Emblematic of the potentially flexible nature of the underlying statute, FEMA designed the Sheltering and Temporary Essential Power (STEP) Pilot Program to restore the basic habitability of individual residences, thereby allowing people to “shelter” in their own homes as opposed to using other government-funded temporary facilities or receiving rental assistance for hotels and hotel-like accommodations.38 However, consistent with other PA assistance, the grant assistance provided by FEMA (a maximum of $10,000 per residence) was not provided directly to individuals, but rather was provided to eligible PA applicants such as local governments to reimburse them for the emergency protective measure work done on residences. In other words, the grant was provided to local governments, who in turn used the funding for essential repair to private residences (essentially passing through the assistance). In a rapid response audit of the STEP Pilot Program, the DHS IG found that the program was innovative but consistent with the authorities of the Stafford Act and “may substantially reduce the overall long-term costs associated with sheltering and disaster housing.”39 However, the IG also noted that by the very nature of it being a pilot program, the STEP Pilot Program was more vulnerable to waste, fraud, and abuse.40 GAO reiterated these concerns, noting that FEMA did not require sufficient collection of data on recipients of STEP assistance that would enable FEMA to 34 See 9500 policies at FEMA’s website at http://www.fema.gov/9500-series-policy-publications. Section 1108(b) of SRIA (127 Stat. 47), as codified at 42 U.S.C. §5170b(d), Section 403(d) of the Stafford Act. 36 For updates on the status of implementing all SRIA changes, see FEMA’s website at https://www.fema.gov/sandyrecovery-improvement-act-2013. 37 See primarily 44 C.F.R. §206.228(a)(2) and FEMA, Labor Costs—Emergency Work, FEMA Recovery Policy RP9525.7, November 16, 2006, at http://www.fema.gov/pdf/government/grant/pa/9525_7.pdf. An exception to this standard is provided in 44 C.F.R. §206.202(f)(1)(ii), which allows for the reimbursement of the base salaries of a hoststate’s permanently employed staff who are supporting evacuations or shelters. 38 See FEMA, Sheltering and Temporary Essential Power (STEP) Pilot Program, November 16, 2012, https://www.fema.gov/media-library/assets/documents/29829. 39 This potential benefit of the STEP Pilot Program has yet to be audited further, and cannot be readily confirmed. In theory, by obligating assistance through the STEP Pilot Program, fewer people may have sought and received more expensive assistance through the Transitional Shelter Assistance (TSA) Program (another eligible cost under Section 403 of the Stafford Act). See Department of Homeland Security, Office of Inspector General, FEMA’s Sheltering and Temporary Essential Power Pilot Program, OIG-13-15, December 7, 2012, p. 3, at http://www.oig.dhs.gov/assets/ Mgmt/2013/OIG_13-15_Dec12.pdf. 40 Ibid. 35 Congressional Research Service 7 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress determine if these same recipients were receiving assistance through other FEMA programs in violation of program guidance and restrictions on the duplication of benefits.41 GAO, reporting on FEMA-provided data, found that as much as $418 million was spent through the STEP Pilot Program in the aftermath of Hurricane Sandy.42 FEMA is conducting its own internal review of the STEP Pilot. Direct Federal Assistance Given that a disaster can significantly exceed the management capabilities of communities, the Stafford Act grants the President broad authority to direct any Federal agency, with or without reimbursement, to utilize its authorities and the resources granted to it under Federal law (including personnel, equipment, supplies, facilities, and managerial, technical and advisory services) in support of State and local emergency assistance efforts to save lives, protect property and public health and safety, and lessen or avert the threat of a catastrophe, including precautionary evacuations.43 In addition, at the request of the governor or tribal chief executive, federal government agencies may be tasked with providing emergency work assistance whenever states, tribes, and local governments cannot provide the assistance themselves or through contract support. Collectively, this type of assistance is generally referred to as direct federal assistance.44 Prior to providing this assistance, FEMA requires grantees and applicants to agree to a number of conditions, including that the federal government is indemnified from damages and any claims against the federal government arising from the assistance provided.45 Permanent Work In the section of the Stafford Act authorizing permanent work assistance, it states that the President may provide financial assistance to grantees to help to restore eligible facilities on the basis of the design of such facility as it existed immediately prior to the major disaster and in conformity with current applicable codes, specifications, and standards (including floodplain management and hazard 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 eligible cost of such repair, restoration, reconstruction, or replacement [italics added].46 Therefore, eligible federal costs associated with restoring permanent facilities generally fall into three groups: • Costs associated with restoring the facility to its predisaster design. In regulations and implementing policy, FEMA has expanded the definition of predisaster 41 U.S. Government Accountability Office, FEMA Has Improved Disaster Aid Verification but Could Act to Further Limit Improper Assistance, GAO-15-15, December 2014, pp. 32-34, at http://www.gao.gov/assets/670/667469.pdf. 42 Ibid., p. 12. 43 42 U.S.C. §§5170a(1) and 5192(a)(1), Sections 402(1) and 502(a)(1) of the Stafford Act, respectively. 44 44 C.F.R. §206.208. 45 44 C.F.R. §206.208(b)(1)(ii). 46 42 U.S.C. §5172(e), Section 406(e) of the Stafford Act. Congressional Research Service 8 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress design to mean that the repaired/replaced facility should have the same function and relative capacity of the previous facility.47 • Costs associated with improvements made to the facility to bring it into conformity with current codes, specifications, and standards. These codes and standards must also be found to be “reasonable” by FEMA, be in effect at the time of the disaster, and be applied uniformly across the community prior to the disaster, among other requirements.48 Prior to 1999, FEMA considered eligible the costs associated with repairing/replacing facilities to meet a new building code, adopted after a disaster, so long as the project had not yet been approved by FEMA. This allowed grantees to adopt new standards and have the cost of meeting those standards shared by the PA Program. However, this policy was reformed and restricted by regulation when FEMA reassessed its legal interpretation of the statute.49 • Costs associated with complying with the President’s floodplain and hazard mitigation criteria or other federal laws, as explained later in the report.50 Permanent work assistance is only available in areas receiving a major disaster declaration, and is not available to communities receiving emergency declarations or FMAGs. In order to receive permanent work assistance, eligible grantees must also have a FEMA-approved state or tribal mitigation plan in accordance with regulatory requirements. This restriction does not affect receipt of emergency work assistance through the PA Program.51 The subcategories of permanent work (Categories C through G) refer to the types of facilities eligible for restoration. For example, utilities (Category F) can include water treatment plants and delivery systems; power generation and distribution facilities, including natural gas systems, wind turbines, generators, substations, and power lines; sewage collection systems and treatment plants; and communications.52 As shown later in Table 5, CRS analysis of project data from 47 Predisaster design is defined in regulations (44 C.F.R. §206.202(k)) as “the size or capacity of a facility as originally designed and constructed or subsequently modified by changes or additions to the original design. It does not mean the capacity at which the facility was being used at the time the major disaster occurred if different from the most recent designed capacity.” See also FEMA, Public Assistance Guide, June, 2007, p. 79, at http://www.fema.gov/pdf/ government/grant/pa/paguide07.pdf. 48 See 44 C.F.R. §206.226(d). For more on the eligibility of improvements to meet codes and standards, see FEMA, Public Assistance Guide, June, 2007, pp. 33-35, at http://www.fema.gov/pdf/government/grant/pa/paguide07.pdf. 49 FEMA believed there were unintended consequences of the pre-1999 policy, including “protracted delays in repairing eligible projects as applicants debate the adoption of codes and standards that will affect eligible damaged facilities and the amount of Federal assistance they will receive.” See the notice of public rulemaking for an explanation at FEMA, “Disaster Assistance; Restoration of Damaged Facilities,” 61 Federal Register 55262, October 25, 1996; and the final rule at FEMA, “Disaster Assistance; Restoration of Damaged Facilities,” 63 Federal Register 5895, February 5, 1998. 50 See the section “Hazard Mitigation Assistance for Permanent Work” of this report. 51 Section 322 of the Stafford Act (42 U.S.C. §5165) encourages grantees to submit a mitigation plan in order to receive additional amount of assistance through the hazard mitigation grant program (HMGP, Section 404 of the Stafford Act, 42 U.S.C. §5170c). In implementing regulations, 44 C.F.R. §201.4, FEMA has required that a grantee has an approved “standard” hazard mitigation in order to receive permanent work assistance through the PA Program. To receive the additional amount of HMGP assistance allowed by Section 322 of the Stafford Act, a grantee must have an approved “enhanced” mitigation plan, per 44 C.F.R. §201.5. This regulation is explained further in FEMA, Restrictions on Grant Obligations to State, Tribal and Local Governments Without a FEMA-Approved Mitigation Plan, FP 306-112-1, August 19, 2013, at http://www.fema.gov/media-library/assets/documents/34437. 52 FEMA, Public Assistance Guide, June 2007, p. 85, at http://www.fema.gov/pdf/government/grant/pa/paguide07.pdf. Congressional Research Service 9 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress FY2000-FY2013 indicates that approximately 65% of all PA projects were for permanent work. This accounted for 59%, or $30.2 billion, of the total federal obligations for assistance in the PA Program. Hazard Mitigation Assistance for Permanent Work Hazard mitigation, as defined in FEMA regulations, is “any cost effective measure which will reduce the potential for damage to a facility from a disaster event.”53 Through its administration of the PA Program, FEMA has issued regulations stipulating that Regional Administrators have the authority to require certain hazard mitigation measures in addition to those required by local building codes and standards. The “hazard mitigation criteria required by the President” allowed by law is principally formulated by policy guidance issued by FEMA. This policy guidance explains the conditions by which FEMA will approve assistance for hazard mitigation measures (with examples provided).54 The criteria do not establish any fixed set of requirements on facility design in the manner of a supplement to local or state building codes. FEMA’s criteria were updated in 2010 to reflect an increased emphasis by Administrator Craig Fugate to “maximize section 406 mitigation so as to reduce the risk of damage to the same facilities in future disasters.”55 As shown later in Figure 6, FEMA-supplied data indicate that $3.7 billion has been obligated for PA hazard mitigation assistance between FY2000-FY2013. FEMA considers the authority to include hazard mitigation measures on projects to be discretionary, meaning in essence that “only FEMA has the authority to determine which hazard mitigation measures it will fund” and that “The Stafford Act and applicable regulations do not authorize State or local building officials or agencies to determine the amount of hazard mitigation funding FEMA will contribute to a project.”56 With this discretion, FEMA has determined that additional hazard mitigation measures can only be applied to facilities that are being repaired (not replaced in full) and only to areas of the building that are damaged by the disaster.57 In addition to the hazard mitigation measures required and allowed under FEMA’s criteria, there are other forms of assistance provided by the PA Program that may have the effect of mitigating future disaster risks. First, there are those costs that are eligible to comply with federal floodplain management standards, namely building code standards related to the National Flood Insurance Program (NFIP) and Executive Order 11988, Floodplain Management, as most recently amended by Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input.58 For example, all facilities in 53 44 C.F.R. §206.2(14). FEMA, Hazard Mitigation Funding Under Section 406 (Stafford Act), 9526.1, March 30, 2010, at http://www.fema.gov/hazard-mitigation-funding-under-section-406. 55 W. Craig Fugate, Section 406 Mitigation, FEMA, Memorandum to Regional Administrators, Acting Regional Administrators, and Federal Coordinating Officers, July 10, 2009. 56 Ibid., Section VI.A.4, p. 3. 57 In the PA Guide, FEMA states that mitigation measures cannot be applied to replacement buildings because “new construction will be to current codes and standards, which are intended to ensure structural integrity for local conditions, mitigation funding applies only to building repairs, which generally are not covered by codes and standards.” See FEMA, Public Assistance Guide, June, 2007, p. 125, at http://www.fema.gov/pdf/government/grant/pa/ paguide07.pdf. 58 Executive Order 11988, “Floodplain Management,” 42 Federal Register 26951, May 24, 1997, as amended; Executive Order 13960, “Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting (continued...) 54 Congressional Research Service 10 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress the special flood hazard area that are being replaced or substantially improved with federal assistance must be elevated to or above the base flood elevation level.59 Second, there are those costs associated with bringing the undamaged parts of a facility into compliance with applicable codes and standards are generally referred to as “triggered costs” by FEMA. These triggered costs are eligible costs under the PA Program, so long as they are found reasonable, and could be considered as a hazard mitigation obligation through permanent work assistance as they may assist in improving the facility’s design in a manner that will “reduce the potential for damage to a facility.” Not all triggered costs may have this hazard mitigation benefit. For example, some triggered costs may be associated with increasing the accessibility of facility, which, though a potentially valuable improvement, may or may not reduce future risk. Insurance Requirements for Permanent Work Section 311 of the Stafford Act requires that applicants receiving assistance for permanent work projects obtain and maintain insurance on the facility to the extent that insurance is “reasonably available, adequate, and necessary to protect against future loss to such property,” as determined by the President.60 This insurance requirement is implemented further through regulations and FEMA policy guidance.61 In order to determine whether insurance is “reasonably available,” FEMA is required to defer to the appropriate state insurance commissioner to certify the type and extent of insurance that is reasonable for the facility and region.62 At a minimum, FEMA requires that facility owners obtain and maintain insurance that provides coverage equal to the amount of assistance being provided by the PA Program (i.e., equal to the cost of eligible damage to the facility) for the hazard type responsible for the damage (e.g., earthquake insurance for damage caused by earthquakes).63 Generally, a state insurance commissioner only becomes involved at the request of the applicant in certifying what is “reasonable” other than the standard set by FEMA. If facility owners fail to obtain and maintain insurance as required by FEMA, the facility is ineligible for permanent work assistance in a future disaster of the same hazard type (this restriction does not apply to emergency work assistance).64 In all circumstances, the dollar amount of PA grant assistance provided by FEMA is reduced by the amount of eligible insurance coverage in force at the time of the disaster. This is required by legal restrictions against the duplication of benefits, where an applicant cannot receive assistance from the PA Program if an insurance policy will provide the same benefit.65 Therefore, in theory, (...continued) and Considering Stakeholder Input,” 80 Federal Register 6425, February 4, 2015; and 44 C.F.R. Part 9 (Floodplain Management and Protection of Wetlands). 59 See, generally, conditions of 44 C.F.R. Part 60. It is beyond the scope of this report to discuss all of these requirements. 60 42 U.S.C. §5154. This insurance requirement of the Stafford Act also applies to a grant assistance from the Economic Development Administration issued as a result of a declared disaster, as codified at 42 U.S.C. §3149(c)(2). 61 See 44 C.F.R. Part 206, Subpart I (§§206.250-53). FEMA also has two fact sheets relating to the insurance requirement, one for applicants and one for FEMA field personnel. See FEMA, Insurance Considerations for Applicants, 9580.3, May 29, 2008, at https://www.fema.gov/pdf/government/grant/pa/9580_3.pdf; and FEMA, Insurance Responsibilities for Field Personnel, 9580.2, June, 4, 2007, at https://www.fema.gov/pdf/government/grant/ pa/9580_2.pdf. 62 42 U.S.C. §5154(a)(2), Section 311(a)(2) of the Stafford Act. 63 See 44 C.F.R. §§206.252(d) and 206.253(b). 64 42 U.S.C. §5154(b), Section 311(b) of the Stafford Act. 65 For more on the duplication of benefits restriction, see 42 U.S.C. §5155, Section 312 of the Stafford Act; and 44 (continued...) Congressional Research Service 11 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress proper implementation of the “obtain and maintain” insurance requirement reduces future PA Program costs by increasing the financial risk transfer to the insurance market (either public or private insurance). However, the DHS IG recently found past situations where this requirement has not been implemented adequately by FEMA and grantees.66 The legal requirements related to insurance for facilities that are in an identified special flood hazard area67 are further increased in Section 406(d) of the Stafford Act. For these facilities, the dollar amount of permanent work assistance provided by the PA Program may be reduced by the maximum amount of available flood insurance, regardless of whether the facility had previously obtained that insurance. Generally, the amount of flood insurance available is limited to the maximum coverage amounts of a policy through the National Flood Insurance Program (NFIP).68 Thus, owners of facilities in these special flood hazard areas are strongly incentivized to obtain flood insurance pre-disaster, and essentially are penalized if they do not. Facility owners at risk of other types of disasters are not similarly incentivized to obtain their respective forms of insurance (e.g., facilities at risk of earthquake damage are not penalized for failing to carry earthquake insurance if not previously required to do so because of a past disaster). FEMA has proposed a revision to existing policies on the insurance requirement. Among other changes, if implemented as proposed, the new policy would formally allow applicants (i.e., local governments, PNPs, etc.), to retain some or all of their risk through a self-insurance plan at the approval of FEMA, not just states.69 As of the date of this report, the new policy had yet to be implemented, though FEMA had already solicited public comment on the policy.70 Administrative Cost Assistance The Disaster Mitigation Act of 2000 (DMA 2000) revised the Stafford Act to direct the President to establish regulations for providing grant assistance to cover the management expenses of grantees and applicants.71 Since this directive, FEMA has had two distinct processes for providing (...continued) C.F.R. §206.191. 66 The DHS IG found that in addition to upwards of $177 million in assistance provided that could have been offset by insurance proceeds, FEMA may have also inappropriately waived the “obtain and maintain” insurance requirement. In the IG’s estimation, “as a result, FEMA potentially stands to lose up to a billion dollars in future Florida disasters because many Florida communities may not have adequate insurance coverage for future disasters such as those that occurred in 2004 and 2005.” See Department of Homeland Security, Office of Inspector General, FEMA Insurance Reviews of Applicants Receiving Public Assistance Grant Funds for 2004 and 2005 Florida Hurricanes Were Not Adequate, OIG-15-19-D, December 18, 2014, http://www.oig.dhs.gov/assets/GrantReports/2015/OIG_15-19D_Dec14.pdf. 67 As defined in regulations at 44 C.F.R. §206.250(e) and 44 C.F.R. §59.1. In general, this is the area at risk for flooding by the “1 in 100 year” standard (1% standard), often referred to as the “base flood.” 68 The maximum amount of coverage for non-residential buildings under the NFIP is $500,000 for the building, and $500,000 for contents. See FEMA, National Flood Insurance Program: Summary of Coverage for Commercial Property, F-778, https://www.floodsmart.gov/floodsmart/pdfs/NFIP_Summary_of_Coverage.pdf. 69 See the proposed policy, Section VII, Part 1, C (p. 3) of FEMA, Public Assistance Policy on Insurance, Draft, 9530.1, at http://www.regulations.gov/#!documentDetail;D=FEMA-2014-0029-0002. States are currently legally allowed to act as a self-insurer for their facilities, as prescribed at 42 U.S.C. 5154(c), Section 311(c) of the Stafford Act. 70 See FEMA, “Public Assistance Policy on Insurance, RP9530.1,” 79 Federal Register 60861, October 8, 2014. 71 Section 202 of P.L. 106-390, 114 Stat. 1560, as codified at 42 U.S.C. §5165b. Prior to DMA 2000, grantees were afforded some administrative expenses as codified at 42 U.S.C. §5172(f) (1988 edition), the former Section 406(f) of (continued...) Congressional Research Service 12 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress this assistance for both the PA Program and the Hazard Mitigation Grant Program. For disasters declared before November 2007, grantees and applicants received a “sliding scale” reimbursement model, whereby they were given an extra amount of grant assistance for management costs based on a small percentage of the total assistance provided by FEMA.72 After November 2007 (essentially starting in FY2008), FEMA established a new procedure.73 The costs for applicants and grantees are grouped into two categories: • Direct administrative costs (often referred to as DAC) are costs incurred by the grantee or applicant that “can be identified separately and assigned to a specific project.”74 • Indirect, management costs that a grantee or applicant “reasonably incurs in administering and managing the PA grant that are not directly chargeable to a specific project.”75 Eligible direct administrative costs are provided by FEMA directly on the grant award for activities such as travel expenses and preparing documentation related to the specific project. The amount provided is based on the actual cost of these activities, or an estimate of their cost. GAO recently audited the past and current process for providing assistance for these costs, and found that the change made in 2007 may have had several unintended consequences, including increasing the workload of grantees and applicants/subgrantees because of the complexity of DAC procedures.76 In GAO’s recent analysis of FEMA data from FY2008 to FY2012, GAO found that direct administrative costs totaled approximately $107 million, about 0.77% of the total spending for the PA Program.77 Management costs (or indirect costs) are provided directly to the grantee (the state or tribal government with the disaster declaration), not to the individual applicants in the communities. For indirect management costs, FEMA has established that it will provided a maximum of 3.34% of the federal share of projected eligible PA Program costs for major disaster declarations and 3.9% of the federal share of projected eligible program costs for emergency declarations.78 FEMA, through the Chief Financial Officer, works with the grantees to develop a “lock-in” amount of management costs within 12 months of the declaration, and that amount cannot exceed (...continued) the Stafford Act. 72 See 44 C.F.R. §207.9 for a description of this process. 73 The new process was established by regulation, see the interim final rule at FEMA, “Management Costs,” 72 Federal Register 57869, October 11, 2007. For the initial proposed rulemaking for this procedure, see FEMA, “Management Costs,” 67 Federal Register 56130, August 30, 2002. 74 See 44 C.F.R. §207.2 for official definitions, and FEMA, Section 324 Management Costs and Direct Administrative Costs, March 12, 2008, p. 2, at https://www.fema.gov/9500-series-policy-publications/95259-section-324-managementcosts-direct-administrative-costs. 75 Ibid. 76 In the same report, GAO audited both the administrative costs FEMA incurs to manage the federal government’s support to communities in response to disasters, and the administrative costs reimbursed to grantees and applicants for the PA Program. See U.S. Government Accountability Office, Federal Emergency Management Agency: Opportunities Exist to Strengthen Oversight of Administrative Costs for Major Disasters, GAO-15-65, December 2014, pp. 24-36, at http://www.gao.gov/products/GAO-15-65. 77 Ibid., p. 27. 78 44 C.F.R. §207.5(b)(4). The projected amount excludes direct federal assistance. Congressional Research Service 13 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress $20 million unless specifically exempted by FEMA. The amount “locked-in” may be less than the 3.34% or 3.9% cap for major disaster and emergencies, respectively.79 FEMA has produced guidance to applicants on examples of activities that should be classified as direct versus management costs.80 Grantee Cost-Shares There are no legal or regulatory limits on the amount of money that can be awarded through PA grants for any one project, applicant, or disaster declaration. So long as the project is otherwise eligible, FEMA will award funding (subject to sufficient funds being available in the Disaster Relief Fund for the project).81 The PA Program has a minimum federal cost-share of 75%, meaning that the maximum a grantee is responsible for is 25% of the total eligible amount of grant assistance, for both emergency and permanent work.82 The President may decide to increase this cost-share, often on the recommendation of FEMA under a regulatory assessment.83 The costshare can also be adjusted by separate laws specifying the cost-share for specific disaster declarations.84 Under regulatory procedures, FEMA may recommend that the President increase the federal share up to 90% of the eligible costs for emergency and permanent work if the assessed damage from the disaster exceeds certain per capita damage thresholds. In addition, FEMA may recommend that the federal cost-share be increased to 100% for emergency work for a limited period of time after an incident, regardless of any per capita damage assessment.85 FEMA also has a specific policy for providing 100% cost-share on direct federal assistance.86 Cost-shares for individual disasters are established in the FEMA/state agreement which is completed as early as possible following an incident (and amended thereafter).87 A full discussion of cost-share adjustments for all Stafford Act assistance programs, including the PA Program, is provided in a separate CRS report.88 In DMA 2000, the President was directed to establish regulations by which the federal cost-share for permanent work assistance (restoring facilities) could be reduced for facilities damaged on more than one occasion over a ten-year period by the same type of event (e.g., a flood, tornado, or 79 This process is explained by FEMA in FEMA, Section 324 Management Costs and Direct Administrative Costs, March 12, 2008, at https://www.fema.gov/9500-series-policy-publications/95259-section-324-management-costsdirect-administrative-costs. 80 See FEMA, Section 324 Management Costs and Direct Administrative Costs, Public Assistance Program Indirect and Direct Administrative Activity List, March 12, 2008, at http://www.fema.gov/pdf/government/grant/pa/ 9525_9_pa_indirect_direct_administrative_activity_list.pdf/. 81 For more on the Disaster Relief Fund, see the “Appropriations for the Public Assistance Program” section of this report and CRS Report R43537, FEMA’s Disaster Relief Fund: Overview and Selected Issues, by (name redacted). 82 This cost share is established in multiple sections of the Stafford Act under the authorities used by the PA Program, see 42 U.S.C. §§5170b(b), 5172(b), 5173(d); Sections 403(b), 406(b), and 407(d) of the Stafford Act respectively. 83 44 C.F.R. §206.47. 84 For example, see Section 4501 of P.L. 110-28, 121 Stat. 156. This provision set the federal cost-share at 100% of all eligible costs under the Stafford Act assistance programs for the States of Louisiana, Mississippi, Florida, Alabama and Texas in connection with Hurricanes Katrina, Wilma, Dennis and Rita. 85 44 C.F.R. §206.47. 86 See FEMA, 100% Funding for Direct Federal Assistance and Grant Assistance, 9523.9, June 9, 2006, at https://www.fema.gov/9500-series-policy-publications/100-funding-direct-federal-assistance-and-grant-assistance. 87 See 44 C.F.R. §206.44 for more on the FEMA/state agreement. 88 See CRS Report R41101, FEMA Disaster Cost-Shares: Evolution and Analysis, by (name redacted) . Congressional Research Service 14 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress earthquake) and only if the owner of the facility had failed to properly mitigate the facility to prevent repetitive damages.89 By law, the federal cost-share could be reduced to not less than 25% (meaning the federal share would be a minimum of 25%, and the grantee share no more than 75%).90 FEMA proposed a regulation for this reduction in 2009, but the regulation has yet to be finalized so the legal requirement is not in effect.91 In the proposed rulemaking, FEMA has interpreted the language of the statute as meaning that the cost share would be reduced on the third occasion that a facility is damaged by the same event within a ten-year window, not the second.92 FEMA has suggested that their current means of tracking projects and applicants across these multiple disasters and years does not allow the ready identification of these types of facilities, thereby preventing easy implementation of the cost-share reduction requirement.93 There is no reliable estimate for how many facilities—if any at all—would ultimately have their cost-share reduced because of this unenforced requirement. Appeal Rights The Stafford Act specifically provides a “right of appeal” to all grantees and applicants regarding any decision on the “eligibility for, from, or amount of assistance under this title [the Stafford Act].”94 The statute also establishes a timeline for the appeals process. Appeals must be filed within 60 days of being notified of the decision in question, and the federal official responsible for administering the appeal has 90 days to reach a decision after it is filed. This statute on an appeals process applies for every Stafford Act assistance program, and the PA Program in particular has expanded on it in regulations and administrative policies.95 The traditional PA appeal process has two stages of appeal; the initial appeal goes to the FEMA Regional Administrator where the disaster occurred and the second appeal goes to FEMA’s Assistant Administrator for Recovery for a decision, which is final.96 SRIA established a new alternative dispute resolution (ADR) procedure for PA Program assistance decisions related to a major disaster declaration.97 The history of this provision and 89 Section 205(b) of DMA 2000, 114 Stat. 1563, as codified at 42 U.S.C. §5172(b)(2), Section 406(b)(2) of the Stafford Act. 90 Section 205 of P.L. 106-390, 114 Stat. 1563; as codified at 42 U.S.C. §5172(b)(2), Section 406(b)(2) of the Stafford Act. 91 FEMA, “Disaster Assistance; Public Assistance Repetitive Damage,” 74 Federal Register 40124, August 11, 2009. 92 For an explanation, see Section II.C, 74 Federal Register 40126. 93 In-person meeting with FEMA staff, October 31, 2014. In the proposed rule, FEMA notes that it would need to track the history of the provision of disaster assistance following Presidentially-declared major disasters by applicant and facility through the use of its National Emergency Management Information System (NEMIS)/Emergency Management Mission Integrated Environment (EMMIE) computer program and database in which all PW’s are stored. FEMA would use the latitude and longitude documented on the PW and entered into NEMIS/EMMIE for the damaged facility to track repetitively damaged facilities. Tracking and recording this information in NEMIS/EMMIE would assist FEMA in correctly and consistently interpreting the requirements in this proposed rule, and if the Federal cost-share is reduced it would serve as essential documentation for resolving appeals that may follow. (Section II.G, 74 Federal Register 40127). 94 42 U.S.C. §5189a(a), Section 423(a) of the Stafford Act. 95 See 44 C.F.R. §206.206 and FEMA, Public Assistance Program Appeal Procedures, Version 3, April 7, 2014, at https://www.fema.gov/media-library/assets/documents/93610. 96 44 C.F.R. §206.206(b). 97 Section 1105 of SRIA, 127 Stat. 43-45. The ADR procedure applies to assistance provided by Sections 403, 406, and (continued...) Congressional Research Service 15 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress possible rationale are described in another CRS report.98 Since SRIA, FEMA has implemented the ADR procedure in regulations, and created a new manual on the appeals process to explain the procedure.99 FEMA also maintains a database of appeals online, and has created a new Public Assistance Appeals Branch to centrally manage the appeals process.100 Methods for Awarding and Disbursing Grant Funding There are two general methods FEMA currently uses to determine the amount of, and award, grant assistance for both emergency and permanent work under the PA Program. FEMA will either award grants based on the estimated federal share of the total eligible cost for the project, or it will award grants on the federal share of actual eligible costs evidenced through documentation by the applicant/grantee. Succinctly, when a grant is provided by estimate, the applicant receives the full amount of assistance at the time the project is approved. The actual cost basis method reimburses the applicant for eligible expenses only as actual costs are documented by the applicant. When and how these methods are applied is described briefly below. Estimated Cost Basis Under current practice, FEMA issues grants based on the estimated federal share of eligible costs for PA projects when: • The project is eligible for simplified procedures as authorized in Section 422 of the Stafford Act (a “small project” in FEMA terminology); • An applicant has decided to receive an in-lieu contribution through Section 406(c) of the Stafford Act (an “alternate project” in FEMA terminology); • Certain projects that include significant improvements for the facility (an “improved project” in FEMA terminology); or • An applicant chooses to use the alternative procedure for a permeant work, large project grant to be based on a fixed estimate. These types of PA projects are described in greater detail below. (...continued) 407 of the Stafford Act. 98 For more background on the SRIA ADR requirement, see CRS Report R42991, Analysis of the Sandy Recovery Improvement Act of 2013, by (name redacted), (name redacted), and (name redacted). 99 See 44 C.F.R. §206.210 and FEMA, Public Assistance Program Appeal Procedures, Version 3, April 7, 2014, at https://www.fema.gov/media-library/assets/documents/93610. 100 For the appeals database, see https://www.fema.gov/appeals; for more on the appeals branch, see https://www.fema.gov/public-assistance-appeals-branch. Congressional Research Service 16 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Simplified Procedure “Small” Projects Section 422 of the Stafford Act allows applicants to request that FEMA provide PA grants based on the federal share of the estimated total eligible cost of the project, as opposed to reimbursing on eligible actual costs.101 The statute establishes a cap on the size of projects allowed to use this method at $35,000, adjusted annually for inflation.102 For the period FY2000 through FY2013 this threshold ranged between $48,900 and $68,500.103 Providing this assistance via a federal estimate, as opposed to actual cost, is deemed a simplified procedure, though projects under this ceiling and using this method are often referred to by FEMA as small projects. The simplified procedure can be applied for any category of work assistance in the PA Program. In general, the simplified procedures are intended to reduce administrative expenses, for both FEMA and the applicant, and to speed up the delivery of assistance to the affected communities.104 SRIA revised Section 422 to require the Administrator of FEMA to analyze and report whether it would be appropriate to raise the estimated cost ceiling on small projects, based on a number of considerations including how the threshold impacts “cost-effectiveness, speed of recovery, capacity of grantees, past performance, and accountability measures.”105 FEMA produced a report analyzing this issue on January 29, 2014, one year after enactment of SRIA and in fulfillment of the legislative deadline.106 In addition to reviewing the size of the maximum estimated cost threshold for simplified procedures, FEMA also reviewed its minimum estimated cost threshold to receive grant assistance—currently set at $1,000.107 Through an analysis of past legislative intent on the size of small projects and a benefit-cost analysis, among other factors, FEMA recommended raising the eligibility for simplified Procedures to $120,000 for the maximum estimated cost threshold and $3,000 for the minimum estimated cost threshold. Based on past data from the PA Program, FEMA believes that the new small project thresholds will capture approximately 93% of all PA projects, though only 20% of the total costs of assistance in the PA Program.108 CRS analysis of project data from FY2000-FY2013 indicates that approximately 87% of all PA projects were small projects, and 9% of the total federal obligations for assistance in the PA Program. Therefore, the new thresholds may increase the number of small projects by roughly 6 percentage points, and the amount of assistance provided through simplified procedures by 11 101 42 U.S.C. §5189. Specifically, eligible costs under Section 403, 406, 407, or 502 of the Stafford Act. This $35,000 figure was set in 1988 by Section 106(k) of P.L. 100-707, 102 Stat. 4705, and is adjusted annually according to the Consumer Price Index for All Urban Customers. 103 FEMA, “Notice of Adjustment of Disaster Grant Amounts,” 64 Federal Register 215, November 8, 1999. FEMA, “Notice of Adjustment of Disaster Grant Amounts,” 78 Federal Register 208, October 28, 2013. This example, from FY2000, establishes the rate of $48,900. The notice states that “the increase is based on a rise in the Consumer Price Index for All Urban Consumers of 2.3 percent for the prior 12-month period.” 104 For a description of the legislative intent behind the simplified procedures, see Section B, History of Simplified Procedures Threshold, in FEMA, Determination on the Public Assistance Simplified Procedures Thresholds, Analysis Report for Sandy Recovery Improvement Act of 2013, January 29, 2014, at https://www.fema.gov/media-library/ assets/documents/90458. 105 Section 1107 of SRIA (127 Stat. 46) as codified at 42 U.S.C. §5189(b)(1), Section 422(b)(1) of the Stafford Act 106 FEMA, Determination on the Public Assistance Simplified Procedures Thresholds, Analysis Report for Sandy Recovery Improvement Act of 2013, January 29, 2014, at https://www.fema.gov/media-library/assets/documents/ 90458. 107 A minimum threshold for project size is not a requirement of the Stafford Act, but is established in FEMA’s implementing regulations, see 44 C.F.R. §206.202(d)(2). 108 See FEMA, Determination on the Public Assistance Simplified Procedures Thresholds, Analysis Report for Sandy Recovery Improvement Act of 2013, January 29, 2014, p. 22, at https://www.fema.gov/media-library/assets/documents/ 90458. 102 Congressional Research Service 17 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress percentage points.109 As required by law, following their analysis of the cost thresholds, FEMA established the new floor for the minimum project amount and a ceiling for small project eligibility by regulation. Thus, these new thresholds of $3,000 for a minimum project size, and $120,000 for the simplified procedure maximum, are effective as of February 26, 2014.110 By law, FEMA is also required to adjust the thresholds annually by the Consumer Price Index and to review the thresholds no later than every three years.111 Validation Process for Small Project Estimates As explained above, small projects are based on the federal estimate for the cost of the project. However, applicants are encouraged to produce their own estimates on the cost of small projects and provide them on project worksheets to FEMA for validation. This process is established in FEMA policy, not law or regulation, and is designed to “confirm the eligibility, compliance, accuracy and reasonableness of small projects formulated by an applicant.”112 FEMA will review a 20% sample size of all small projects submitted by the applicant under a particular disaster declaration, but will individually review any that have identified special considerations, such as residing in the floodplain or historical preservation issues. FEMA does not have an established process to review whether the estimated cost of small projects ultimately reflects the final cost for completing the project. In-Lieu “Alternate” Projects The Stafford Act authorizes the President to provide certain applicants, at their request, an “inlieu” contribution based on the amount of estimated cost of the eligible damage for the eligible facility. Under current law, this authority only applies to permanent work projects, and the in-lieu contribution/grant can be used to repair or build an existing or new alternate facility. An applicant may also use the in-lieu contribution to fund mitigation measures on another facility.113 Thus, FEMA refers to grants using this authority as “alternate” projects (not to be confused with alternative procedures).114 For example, if an elementary school was substantially destroyed after a disaster, a local government may decide that instead of rebuilding that particular school (and having FEMA reimburse them for the federal share of the eligible cost of doing so), the community may be better served by using that money to build a new high school or to better protect a nearby police station (perhaps because of shifting demographic needs in their population). The decision by an applicant to receive an in-lieu contribution for a different project 109 See Table 5 of this report for more data. See FEMA, “Amendment to the Public Assistance Program’s Simplified Procedures Project Thresholds,” 79 Federal Register 10685, February 26, 2014. FEMA has also sought public comment on the thresholds, see FEMA, “Simplified Procedures Project Thresholds for the Public Assistance Program,” 79 Federal Register 688899, November 19, 2014. 111 Section 1107 of SRIA (127 Stat. 46) as codified at 42 U.S.C. §5189(b), Section 422(b) of the Stafford Act. 112 FEMA, Public Assistance Program, Validation of Small Projects, 9570.6 Standard Operating Procedure, September 1999, p. 3, at http://www.fema.gov/media-library-data/20130726-1847-25045-1794/ 9570.6_validation_of_small_projects_sop.pdf. 113 42 U.S.C. §5172(c), Section 406(c) of the Stafford Act. Regulations for in-lieu contributions are found at 44 C.F.R. §206.203(d)(2), and supplemental policy guidance at FEMA, Alternate Projects Disaster Assistance Policy, 9525.13, August 22, 2008, at http://www.fema.gov/site-page/alternate-projects. 114 The “alternate project” name of in-lieu contributions projects can now be easily confused with alternative procedure projects (not alternate), so CRS refers to them as in-lieu projects or in-lieu contributions. 110 Congressional Research Service 18 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress needs to be in the interest of the public welfare, as determined by the applicant, and the new project should serve the “same general area that was being served by the originally funded project.”115 In order to estimate the size of the in-lieu contribution, FEMA uses a cost-estimating process called the Cost Estimating Format, or CEF, to estimate the eligible damages on the original project. In other words, for in-lieu contributions, the CEF helps identify the amount of assistance that would have been provided to the applicant had they elected to repair or replace the existing facility. The CEF tool was initially developed following the 1994 Northridge Earthquake in California, and was most recently revised in 2009.116 The CEF is not used to estimate the costs of small projects described previously. Once the original project cost is estimated using the CEF, FEMA is obligated by law to reduce the amount of assistance contributed in-lieu to the applicant for the new project. For governmental applicants, the reduction is 10% of the federal share of eligible costs for repairing the existing facility (meaning FEMA provides 90% of the amount it would otherwise have provided), for private nonprofit applicants, the reduction is 25% of the federal share (meaning FEMA provides 75% of the amount it otherwise would have provided).117 The reduction of the federal share of assistance for public facility in-lieu projects was lowered from 25% of the eligible costs to the current 10% by P.L. 109-347.118 FEMA applies the reduction to the federal share of the estimated eligible cost of repairing the current facility, not the estimated costs of new project or mitigation activities.119 This penalty on the in-lieu contribution can be considered a deterrent to applicants from recovering facilities in innovative ways as opposed to rebuilding and repairing the facility back to the way it was prior to the disaster. Under the alternative procedures for the PA Program established by SRIA, the in-lieu contributions for different projects are not reduced by 10% for public facilities or 25% for private nonprofit facilities.120 In order to receive this benefit, FEMA requires that an applicant first accept and negotiate a grant based on fixed estimate of cost (this process is described later in the report).121 FEMA reported to CRS that the authority for in-lieu contributions is used very rarely by grantees as a percent of the number of total permanent work projects (fluctuating year to year, ranging 115 Section VII.E of FEMA, Alternate Projects Disaster Assistance Policy, 9525.13, August 22, 2008, at http://www.fema.gov/site-page/alternate-projects. 116 See FEMA, “Public Assistance Cost Estimating Format for Large Projects,” 78 Federal Register 61227, October 3, 2013. For more on how and when FEMA currently uses the CEF, see an explanation at FEMA, Public Assistance: Cost Estimating Format Standard Operating Procedure, at http://www.fema.gov/public-assistance-cost-estimating-formatstandard-operating-procedure. 117 See 42 U.S.C. §5172(c)(1)(A) for public applicants, and (c)(2)(A) for private nonprofit applicants (§406(c)(1)(A) and (2)(A) of the Stafford Act). 118 See Section 609 of Security and Accountability For Every Port Act of 2006 (SAFE Port Act, P.L. 109-347, 120 Stat. 1942). 119 Returning to the example of the school, this means FEMA provides 90% of what they estimated to be the total eligible federal assistance for repairing the original damaged elementary school, not 90% of the new eligible costs of building a different high school or mitigating future damages to the police station. 120 Section 1102 of SRIA (127 Stat. 40), as codified at 42 U.S.C. §5189f(d), Section 428(d) of the Stafford Act. 121 FEMA, Public Assistance Alternative Procedures Pilot Program, Guide for Permanent Work, Version 2, December 19, 2013, p. 12, at https://www.fema.gov/media-library/assets/documents/89754. Congressional Research Service 19 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress from 0.02% of permanent work projects in 2005 to 0.53% in 2008).122 FEMA also reports that certain types of facilities eligible for permanent work assistance are more likely to receive in-lieu contributions than others. For example, approximately 0.09% of roads and bridge projects (Category C) used in-lieu contribution authority versus 0.33% of building projects (Category E) from FY2000 to FY2014.123 Improved Projects Improved projects for permanent work assistance allow the applicant to significantly alter the predisaster design of the facility when repairing or replacing an eligible facility.124 So long as the facility serves the same intended purpose and function (e.g., it was a police station and remains a police station afterwards), an improved project does not have a reduced federal cost share as is required with an in-lieu contribution. However, FEMA only provides the federal share of estimated eligible costs for repairing/replacing the facility as it was designed originally, not for the additional “improvements” of the project. An improved project uses an estimated cost basis if it is either a small project or the costs for the improvement cannot by distinguished from repairing or replacing the facility to pre-existing design. If the improved project is estimated, the estimate of the original project, minus improvements, is developed using the CEF. Thus, for example, if an applicant wishes to significantly expand the capacity of a fire station by building it with three truck bays instead of its original two bays, FEMA will not provide assistance for the additional cost of the third bay.125 In this example, one assumes the costs for the third truck bay cannot be isolated from repairing the original two bays. Alternative Procedure Fixed-Estimate Grants As part of the new SRIA alternative procedures for the PA Program, FEMA is directed to issue grants to applicants for large, permanent work projects (facility repair and restoration) based on estimates of the eligible cost. By law,126 SRIA required the estimation procedure to include methods for: • Using a “fixed” estimate, meaning that after the estimate is agreed upon and set, the estimate will not change due to changes in the project or other factors. As implemented by FEMA, these estimated grants function much in the same way as an in-lieu contribution does, as once the amount is agreed upon, the grants “provide [applicants] with flexibility to repair or rebuild a facility as it deems necessary for its operations with no requirement to rebuild to pre-disaster design, capacity or function.”127 122 Email correspondence from FEMA staff, received January 7, 2015. Ibid. 124 Improved projects are not specifically authorized in the text of the Stafford Act, but rather are approved through FEMA’s interpretation of Section 406 authorities. In regulations, see 44 C.F.R. §206.203(d)(1), and supplemental policy guidance at FEMA’s website at https://www.fema.gov/public-assistance-project-formulation-cost-estimating/ improved-project. 125 See FEMA, Public Assistance Guide, June 2007, p. 110, at http://www.fema.gov/pdf/government/grant/pa/ paguide07.pdf. 126 Section 1102 of SRIA (127 Stat. 40), as codified at 42 U.S.C. §5189f(e)(1), Section 428(e)(1) of the Stafford Act. 127 FEMA, Public Assistance Alternative Procedures Pilot Program, Guide for Permanent Work, Version 2, December 19, 2013, p. 5, at https://www.fema.gov/media-library/assets/documents/89754. 123 Congressional Research Service 20 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress • Accepting the estimates of professionally licensed engineers provided by the applicant, so long as the estimate complies with FEMA regulations, policy, and guidance. As implemented, FEMA uses the CEF whenever the applicant does not provide an estimate. It also requires the applicant’s professional engineer to either use “the CEF or a methodology and format consistent in the CEF’s level of detail.”128 • Using an independent expert panel, at the applicant’s request, to review and validate the cost estimate where the estimated cost is over $5 million. As implemented, FEMA has determined that it will pay for all expenses of the panel and the reviews.129 SRIA also provided guidance on what happens if the estimated grant amount does not equal the final actual cost of the applicant’s project.130 In other words, SRIA dictates what happens if the grant approved by fixed estimate provides more or less assistance than was ultimately determined to be eligible costs—often many years later. In instances where the amount provided by grant is less than the actual cost of the project, the applicant will pay the overages. In instances where the estimated grant amount is more than the actual project cost, FEMA will allow the applicant to use the extra funds for PA hazard mitigation activities or other activities improving future PA operations.131 Actual Cost Basis FEMA’s policies state they currently use an actual cost basis for reimbursing grantees for large projects (currently over the $120,000 threshold) that are either emergency or permanent work.132 As with in-lieu contributions, the CEF tool is used by FEMA for actual cost projects to help anticipate the end expenditure for the project. This enables FEMA to anticipate future costs and outlays for PA projects, and obligate in advance the expected cost of the project. Though funds are obligated by FEMA at project approval, the funds are only incrementally disbursed as actual costs are documented by the applicant.133 Therefore, FEMA provides the full assistance amount to the applicant only after all eligible work on a PA project has been completed in its entirety. The process for reimbursing by actual costs is governed by regulations,134 and allows for the scope of the project to evolve as the project is commenced, so long as these changes are approved by FEMA.135 Changes to the scope of work are generally not allowed when FEMA issues a grant based on estimates of eligible costs. 128 Ibid., p. 7. Ibid., p. 8. 130 Section 1102 of SRIA (127 Stat. 40), as codified at 42 U.S.C. §5189f(e)(1)(D), Section 428(e)(1)(D) of the Stafford Act. 131 A list of unacceptable uses is also provided at FEMA, Public Assistance Alternative Procedures Pilot Program, Guide for Permanent Work, Version 2, December 19, 2013, p. 12, at https://www.fema.gov/media-library/assets/ documents/89754. 132 For more on the large versus small project distinction, see the “Simplified Procedure “Small” Projects” section of this report. 133 FEMA will, under some circumstances, provide advances on assistance funds (see 44 C.F.R. §13.21). 134 Namely, 44 C.F.R. §§13.21, 206.204, and 206.205(b). 135 See 44 C.F.R. §206.204(e). 129 Congressional Research Service 21 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Possible DMA 2000 Grant Estimating Procedure As described above, large, permanent work project grants are currently awarded on an actual cost basis. Section 205(d) of DMA 2000 required the President to develop and implement a procedure for awarding these grants based on the estimates of the eligible cost.136 The President was directed to convene an expert panel on how costs should be estimated by FEMA, and to issue regulations implementing these cost estimation procedures. Although the expert panel convened twice and issued a report with recommendations for how the estimating procedure should be developed,137 final regulations implementing the statute have not been issued. However, in October 2013, FEMA proposed a final rule to implement the grant estimating procedure required by DMA 2000.138 As shown later in Table 5, the impact on the PA Program of this proposed change in procedure is significant. CRS analysis of project data from FY2000 to FY2013 indicates that large, permanent work projects accounted for approximately 7% of all PA projects between FY2000-FY2013, but 53%, or $27.2 billion, of total federal obligations for assistance. If and when this regulation becomes final, the only remaining category of PA projects that would be reimbursed on an actual cost basis is large, emergency work projects. CRS analysis of project data from FY2000-FY2013 indicates that large, emergency work projects accounted for approximately 6% of all PA projects, but 38%, or $19.6 billion, of total federal obligations for assistance. In addition, any large, permanent work project that is more than 90% complete at the time of estimation would still be reimbursed on an actual cost basis.139 See the text box on how the status of the statutory changes made by DMA 2000 only become effective after these regulations are finalized. Explanation of the Effective Status of Section 406(e) of the Stafford Act DMA 2000 revised, among other provisions, the text of Section 406(e) of the Stafford Act (42 U.S.C. §5172(e)) to require the creation of the large, permanent work grant estimation procedure. This change is not yet effective, however, because FEMA has yet to finalize the rulemaking implementing the grant estimation procedure. Therefore, the Section 406(e) statutory text that is effective is the same as it was before passage of DMA 2000, until such a point that the proposed rulemaking is finalized and the DMA 2000 revision becomes effective. Lay observers can find this change confusing, as Section 406(e) of the Stafford Act in the official version of U.S. Code (namely, as published by the Government Publication Office) reflects the DMA 2000 revised language, not what is in effect until the implementation of the rulemaking. The active, pre-DMA 2000 text, is provided in the annotated code as a note to Section 406 and should be referenced as the “true” code until the proposed rulemaking is finalized.140 If and when the DMA 2000 grant estimation regulation is finalized by FEMA, the possibility exists that there may be two different options available to applicants to receive grants based on estimates for large, permanent work projects. There could be the new, DMA 2000 method, and the alternative procedure method. The two options would only be available if FEMA were 136 P.L. 106-390, 114 Stat. 1564. FEMA, Public Assistance: Expert Panel on Cost Estimating, Recommendation Report of Federal Advisory Committee 10733, October 2002, at http://www.fema.gov/media-library-data/20130726-1836-25045-8450/cefrep.pdf. 138 FEMA, “Public Assistance Cost Estimating Format for Large Projects,” 78 Federal Register 61227, October 3, 2013. 139 FEMA believes that since a project is almost complete at 90% status, there is no need to estimate the remaining portion of the project and it should just be reimbursed on an actual cost basis. See Section V. A. of FEMA, “Public Assistance Cost Estimating Format for Large Projects,” 78 Federal Register 61238, October 3, 2013. 140 See p. 5534 of the Title 42 of the U.S. Code, 2013 edition. 137 Congressional Research Service 22 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress continuing the alternative procedures pilot, or had implemented the alternative procedure permanently, after the DMA 2000 grant estimation rulemaking is finalized. Likewise, FEMA may decide to incorporate some of the processes of the alternative procedures into the DMA 2000 grant estimation final regulation (or vice versa), eliminating some of the possible differences between the two methods.141 Table 2 provides a summary comparison of the two methods as they are currently designed. Table 2. Summary Comparison of Large, Permanent Work Grant Estimation Procedures DMA 2000 Procedurea SRIA Alternative Procedureb Estimate is developed using the... Cost Estimating Format (CEF), as approved by the expert panel established to create the CEF. CEF if produced by FEMA, or by using the applicant’s estimate from a licensed engineer that using the CEF or similar estimating format. If applicant and FEMA disagree on estimate... Applicant may appeal using standard PA appeal procedures. Applicant may request an independent expert panel review and validate the estimate amount only for eligible projects over $5 million. If applicant is unsatisfied by expert panel, it may elect to use an actual cost basis for the grant. For eligible projects estimated under $5 million, applicant may appeal using standard PA appeal procedures. If final actual costs differ from estimate... There are ceiling and floor thresholds of 10% for cost underruns and overruns. If costs underrun (the actual cost of the project is less than estimate) by less than 10%, the applicant may use extra funds for hazard mitigation measures, similar to those authorized by the Hazard Mitigation Grant Program (Section 404 of the Stafford Act). If the underrun is greater than 10%, the applicant must reimburse the federal share of the difference. If the actual costs exceed the 10% thresholds, applicant can receive additional funding, or must repay funding, in the excess amount of the federal cost share. As a fixed estimate grant, any actual cost overruns are borne by applicant. Actual cost underruns are kept by the applicant and may be used for PA Program-related purposes such as hazard mitigation activities or activities to improve future PA permanent work operations. Source: CRS analysis of PA Program documents cited in notations. Notes: a. For a full explanation of the proposed DMA 2000 procedure for grant estimation, see Federal Emergency Management Agency, “Public Assistance Cost Estimating Format for Large Projects,” 78 Federal Register 61227, October 3, 2013. b. For full explanation of the SRIA Alternative Procedure for grant estimation, see Federal Emergency Management Agency, Public Assistance Alternative Procedures Pilot Program, Guide for Permanent Work, Version 2, December 19, 2013, at https://www.fema.gov/media-library/assets/documents/89754. 141 The statutes authorizing both the alternative procedure and the DMA 2000 grant estimation procedure contain different base requirements. However, there is enough flexibility within the statutes that the President, via FEMA’s administrative discretion, could develop similar methods for the DMA 2000 grant estimation procedure and the alternative procedure for PA grants. Congressional Research Service 23 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Public Assistance Alternative Procedures Created by the Sandy Recovery Improvement Act The Sandy Recovery Improvement Act (SRIA) reformed numerous Stafford Act assistance authorities, including the PA Program.142 The foremost change of SRIA to the PA Program was to create a new section of the Stafford Act, Section 428, establishing “alternative procedures” for the PA Program.143 Many of the changes made by SRIA were initially piloted under Section 689j of P.L. 109-295, the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA).144 This section describes how FEMA chose to implement the SRIA alternative procedures and discusses some of the decisions made in this implementation process that may be of interest to Congress. The changes made by SRIA to the PA Program are discussed in detail in the prior sections of this report and in a separate report by CRS.145 Pilot Program Guidance In SRIA, Congress specifically granted FEMA the authority to carry out the alternative procedures as a pilot program, and allowed FEMA to waive having to go through the normal rulemaking process so that it could expeditiously implement the procedures.146 Consequently, FEMA has established the Public Assistance Alternative Procedures (PAAP) Pilot Program, and provided the policies it uses to administer the PAAP Pilot Program through a series of guides and supplementary documents made available on its website.147 FEMA has generally split the PAAP Pilot Program into those new rules it is applying for alternative procedures on debris removal projects in emergency work (Category A projects) and large, permanent work projects (Categories C-G).148 It is unclear when, or if, FEMA intends to revise regulations on the PA Program, namely 44 C.F.R §206, to formally adopt the alternative procedures pilot program. SRIA suggests, but does not require, that FEMA ultimately adopt these policies in regulation.149 It is beyond the scope of this report to analyze the PAAP Pilot Program guidance provided by FEMA in full. However, a few issues that may be of interest to Congress are discussed below. 142 Division B of P.L. 113-2, the Disaster Relief Appropriations Act, 2013 42 U.S.C. §5189f. 144 120 Stat. 1455. For more on the PKEMRA PA Pilot program, see FEMA, Public Assistance Pilot Program: Fiscal Year 2009 Report to Congress, May 20, 2009, at http://www.fema.gov/library/viewRecord.do?id=3683. 145 See CRS Report R42991, Analysis of the Sandy Recovery Improvement Act of 2013, by (name redacted), (name redac ted), and (name redacted). 146 Section 1102 of SRIA (127 Stat. 41), as codified at 42 U.S.C. §5189f(f), Section 428(f) of the Stafford Act. 147 See FEMA’s PAAP website for all supporting documentation, at https://www.fema.gov/alternative-procedures. 148 See the “Eligible Types of Assistance (Categories of Work)” section of this report for more on these categories. SRIA also permanently amended Section 403 of the Stafford Act the eligibility of certain types of salaries and benefits of local government employees for emergency protective measure grants (Category B). For a description of this revision, see CRS Report R42991, Analysis of the Sandy Recovery Improvement Act of 2013, by (name redacted), (name redacted), and (name redacted). 149 The law states that “Until such time as the Administrator promulgates regulations to implement this section.... ” The law does not specify if the Administrator is required to issue regulations, and if so, when they are required to do so. See Section 1102 of SRIA (127 Stat. 41), as codified at 42 U.S.C. §5189f(f), Section 428(f) of the Stafford Act. 143 Congressional Research Service 24 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Fixed Estimate Grants for Debris Removal FEMA is not yet issuing grants by fixed-estimate for debris removal emergency work projects, as noted in PAAP guidance.150 This fixed-estimate procedure is being provided for large, permanent work projects. Though SRIA requires the Administrator to provide such a method as a condition of the alternative procedures,151 FEMA indicated to CRS that there is not currently an accurate enough method available to estimate the amount of debris following a disaster, and therefore the cost of removing the debris. FEMA also suggested that they have not received sufficient interest from grantees or applicants in using this alternative procedure.152 However, FEMA does currently use methods to estimate the amount of debris following a disaster in order to provide eligible grantees expedited payments of 50% of the initial estimate for full anticipated debris removal costs, as required by current law.153 Presumably, these estimation methods are considered insufficient for the purposes of making grants based on fixed estimates. In addition, in a past pilot program for debris removal procedures authorized by PKEMRA, FEMA did pilot a fixed grant estimating procedure for debris removal projects under $500,000. However, FEMA indicated that too few applicants used the grant estimating procedure to determine what impact, if any, it would have had on the efficacy of the assistance.154 Selective Availability of Alternative Procedures for Applicants SRIA did not directly specify how an applicant may choose to participate in the alternative procedures, only that it was at their discretion.155 Generally, FEMA has determined that an applicant may choose among some or all of the alternative procedures on a project-by-project basis, with certain limitations.156 This approach is more flexible than other methods FEMA could have used. FEMA could have, for example, decided that if an applicant wished to use alternative procedures on one of their projects, the applicant would need to use the same procedure on all of their projects, or decided that an applicant must use all features of the alternative procedures for a project instead of just some of them. Not unexpectedly, early statistics provided to CRS by FEMA on the usage of alternative procedures by December 2014 indicate that some alternative procedures are considerably more popular with applicants than others (e.g., relatively few 150 See FEMA, Public Assistance Alternative Procedures Pilot Program, Guide for Debris Removal, Version 2, June 27, 2014, p. 4, https://www.fema.gov/media-library/assets/documents/33376?id=7776. 151 Section 1102 of SRIA (127 Stat. 41), as codified at 42 U.S.C. §5189f(e)(2)(A), Section 428(e)(2)(A of the Stafford Act. 152 In-person meeting with FEMA staff, October 31, 2014. 153 42 U.S.C. §5173(e), Section 407(e) of the Stafford Act. For an explanation of these methods, see FEMA, Debris Estimating Field Guide, FEMA 329, September, 2010, at http://www.fema.gov/pdf/government/grant/pa/ fema_329_debris_estimating.pdf 154 FEMA, Public Assistance Pilot Program: Fiscal Year 2009 Report to Congress, May 20, 2009, at http://www.fema.gov/library/viewRecord.do?id=3683. 155 Section 1102 of SRIA (127 Stat. 40), as codified at 42 U.S.C. §5189f(d), Section 428(d) of the Stafford Act. 156 Limitations are explained in the PAAP Pilot Program guides. See both FEMA, Public Assistance Alternative Procedures Pilot Program, Guide for Debris Removal, Version 2, June 27, 2014, at https://www.fema.gov/media-library/assets/documents/33376?id=7776; and FEMA, Public Assistance Alternative Procedures Pilot Program, Guide for Permanent, Version 2, December 19, 2013, at https://www.fema.gov/media-library/assets/documents/89754. Congressional Research Service 25 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress applicants are recycling debris while many more are using the sliding scale for accelerated debris removal).157 Applicability of Alternative Procedures to Past Disasters SRIA explicitly provided that FEMA may approve alternative procedures for PA projects for disasters declared after date of enactment, and that it may apply alternative procedures for PA projects “for which construction ha[d] not yet begun on the date of enactment.”158 In its PAAP Pilot Program guidance for permanent work projects, FEMA makes available alternative procedures for any major disaster declared on or after May 20, 2013, and states it may also approve subgrants before then if construction has not begun.159 FEMA does not specify further how one defines when construction begins (e.g., before or after any demolition occurs, before or after the metaphoric first shovel of dirt, etc.). However, FEMA has approved alternative procedures for permanent work projects in Louisiana for major disaster declarations issued for Hurricanes Katrina and Gustav (in August 2005 and September 2008, respectively).160 More recently, many more projects have been approved or are under review with alternative procedures stemming from Hurricane Sandy, especially in New York, all of which pre-date the start of the pilot on May 20, 2013. In its PAAP Pilot Program guidance for emergency work debris removal projects, FEMA has established a pilot “performance period” for disaster declarations between June 28, 2013, and June 27, 2015, when the pilot would end.161 Notably, this period does not include disaster declarations for Hurricane Sandy (made around the end of October, 2012), and began approximately six months following enactment of SRIA.162 FEMA states that it will conduct an analysis of the effectiveness of the alternative procedures after the end of the pilot and determine whether to discontinue the pilot, extend it, or issue regulations making it more permanent.163 The 157 Email correspondence from FEMA staff, received January 7, 2015. Early statistics from FEMA indicate that 11 applicants have used the recycling debris alternative procedure, and by comparison 436 have used the sliding scale accelerated debris removal procedure. 158 Date of enactment was January 29, 2013. Section 1102 of SRIA (127 Stat. 42), as codified at 42 U.S.C. §5189f(a), Section 428(a) of the Stafford Act. 159 FEMA, Public Assistance Alternative Procedures Pilot Program, Guide for Permanent, Version 2, December 19, 2013, p. 2, at https://www.fema.gov/media-library/assets/documents/89754. 160 Disaster declarations 1603 and 1786, respectively. Early statistics provided by email from FEMA staff, received January 7, 2015. 161 However, between June 28, 2013, and June 27, 2014, of this period, only large projects for debris removal were eligible for alternative procedures beyond reimbursement of straight-time labor costs. After June 27, 2014, all debris removal alternative procedures except for fixed grant estimates are available to both small and large projects. See FEMA, Public Assistance Alternative Procedures Pilot Program, Guide for Debris Removal, Version 2, June 27, 2014, p. 2, at https://www.fema.gov/media-library/assets/documents/33376?id=7776. 162 However, in an immediate final rule issued on November 9, 2012, FEMA implemented a policy for reimbursing state, tribal, and local governments or owner/operators of private nonprofits for the base and overtime wages of employees that are performing or administering debris removal projects. This rule implemented a similar policy as is found in the alternative procedures, but only for disasters related to Hurricane Sandy. See Department of Homeland Security, “Debris Removal: Eligibility of Force Account Labor Straight-Time Costs under the Public Assistance Program for Hurricane Sandy,” 77 Federal Register 67285, November 9, 2012. 163 Ibid. It is unclear from current guidance what the “end” of the program period means for project eligibility for alternative procedures. For instance, one interpretation could be that debris removal projects for all disasters declared before that date are eligible, or that all debris removal projects approved before that date, or other interpretations. FEMA is currently addressing how it will implement the performance period, and whether there will be an immediate (continued...) Congressional Research Service 26 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress PAAP Pilot Program guidance for permanent work does not contain an explicit end date for the pilot. Summary Analysis of Obligations for the Public Assistance Program The following section provides analysis of PA Program spending for major disasters in the period FY2000 through FY2013. FY2014, and early data from FY2015, were excluded from this analysis because these more recent data are subject to considerable modification as the recovery from major disasters advances and more PA projects are approved or have their obligations revised. This could also affect actual obligation levels for early fiscal years to a lesser degree. The data for this analysis were derived from FEMA datasets, including publicly available data that can be accessed through the OpenFEMA website.164 Additional information on these data, as well as important considerations regarding their reliability, is available in Appendix B. Appropriations for the Public Assistance Program The PA Program is financed from the Disaster Relief Fund (DRF), which typically receives noyear appropriations and is the primary funding source for Stafford Act disaster assistance authorities.165 Appropriations to the DRF do not separately identify funding amounts for the varied programs authorized by the Stafford Act, thus the PA Program has not historically received a distinct appropriation. Appropriations to the DRF as a whole, from FY2000 through FY2013, are shown in Table 3. Table 3. Appropriations to the Disaster Relief Fund, FY2000 through FY2013 Enacted Annual Appropriations and Supplemental Appropriations Fiscal Year Annual Appropriation Supplemental Appropriation Total Appropriation 2000 $2,780 $0 $2,780 2001 $1,600 $2,000 $3,600 2002 $2,164 $7,008 $9,172 2003 $800 $1,426 $2,226 2004 $1,789 $2,500 $4,289 2005 $2,042 $43,091 $45,133 (...continued) extension. 164 As stated by FEMA, “the OpenFEMA initiative provides approved mission relevant data for stakeholders to leverage in value-added ways such as research, analysis, app development, and other purposes.” Information can be accessed at https://www.fema.gov/openfema. 165 The funds for no-year accounts are available until expended—any remaining funds at the end of the fiscal year are carried over to the next fiscal year. One benefit of a no-year account is that the unobligated balance in the account can be used to pay for future disasters the next fiscal year. For more on the DRF, see CRS Report R43537, FEMA’s Disaster Relief Fund: Overview and Selected Issues, by (name redacted). Congressional Research Service 27 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Fiscal Year Annual Appropriation Supplemental Appropriation Total Appropriation 2006 $1,770 $6,000 $7,770 2007 $,1487 $4,256 $5,743 2008 $1,324 $10,960 $12,284 2009 $1,278 $0 $1,278 2010 $1,600 $5,100 $6,700 2011 $2,645 $0 $2,645 2012 $7,100 $6,400 $13,500 2013 $7,007 $11,485 $18,492 Total $35,386 $100,226 $135,612 Source: CRS analysis of appropriations statutes, as reported in CRS Report R43537, FEMA’s Disaster Relief Fund: Overview and Selected Issues. Notes: Does not include rescissions or transfers unless they have been incorporated in appropriations acts. The Budget Control Act of 2011 (BCA) created an allowable adjustment specifically to cover disaster relief (defined as the costs of major disasters under the Stafford Act), separate from emergency appropriations. Under the BCA, which was in place for both FY2012 and FY2013 in the table above, the President’s budget request and enacted appropriation levels were higher than in prior years. A discussion of this change can be found in CRS Report R42352, An Examination of Federal Disaster Relief Under the Budget Control Act, by (name redacted), (name re dacted), and (name redacted). Aggregate Spending on Public Assistance The PA Program has consistently been the largest source of federal obligations from the DRF.166 For the period FY2000 through FY2013, more than 90% of all major disaster declarations made through the Stafford Act included provision of assistance through the PA Program. In addition, obligations for PA grants accounted for 47% of total DRF obligations for major disaster declarations. As shown in Figure 1, this is the largest activity funded from the DRF during that time. 166 Analysis of DRF obligations was conducted using obligation data provided by FEMA. These figures do not include projected future obligations. Congressional Research Service 28 FEMA’s Public Assistance Grant Program: Background and Considerations for Congress Figure 1. Share of DRF Funding by Activity FY2000-FY2013 Source: CRS analysis of DRF obligation data for major disaster declarations provided by FEMA. Notes: FEMA data groups obligations for Technical Assistance Contracts (TAC) with obligations for the PA Program under the broad category of “Infrastructure.” As a result, other analysis of DRF obligations, including previous research done by Government Accountability Office, will group these obligations together. During this time period, the percent of overall DRF obligations attributable to PA grants ranged from a low of 36% in FY2005 to a high of 66% in FY2013. Figure 2 displays both total federal obligations for PA grants during this period, as well as the percentage of all DRF obligations spent on these grants. Federal obligations for PA grants for major disaster declarations ranged between $0.37 billion and $17.1 billion per fiscal year, for an average annual obligation of $3.9 billion.167 This obligation total does not include the funding provided by state and local governments as part of their cost-share requirement. For most of the declarations during this period, the federal government funded 75% of PA costs; however, for certain declarations the cost-share was increased through either FEMA’s administrative discretion or through statute.168 During this period, FY2005 had the largest amount of PA obligations i [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR43990. Public record. Not legal advice.