The Disaster Recovery Reform Act of 2018 (DRRA): A Summary of Selected Statutory Provisions
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The Disaster Recovery Reform Act of 2018
(DRRA): A Summary of Selected Statutory
Provisions
Elizabeth M. Webster, Coordinator
Analyst in Emergency Management and Disaster Recovery
Bruce R. Lindsay, Coordinator
Analyst in American National Government
July 8, 2019
Congressional Research Service
7-....
www.crs.gov
R45819
SUMMARY
The Disaster Recovery Reform Act of 2018
(DRRA): A Summary of Selected Statutory
Provisions
The Disaster Recovery Reform Act of 2018 (DRRA, Division D of P.L. 115-254) was enacted on
October 5, 2018. DRRA is the most comprehensive reform of the Federal Emergency
Management Agency’s (FEMA’s) disaster assistance programs since the passage of the Sandy
Recovery Improvement Act of 2013 (SRIA, Division B of P.L. 113-2) and the Post-Katrina
Emergency Management Reform Act of 2006 (PKEMRA, P.L. 109-295). DRRA focuses on
improving pre-disaster planning and mitigation, response, and recovery, and increasing FEMA
accountability. As such, it amends many sections of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Stafford Act, P.L. 93-288, as amended; 42 U.S.C. §§5121 et seq.)
and also includes new standalone authorities. In addition, DRRA requires reports to Congress,
rulemaking, and other actions.
This report provides an overview of selected sections of DRRA that significantly change the
provision of services or authorities under the Stafford Act, and includes:
R45819
July 8, 2019
Elizabeth M. Webster,
Coordinator
Analyst in Emergency
Management and Disaster
Recovery
-redacted-@crs.loc.gov
Bruce R. Lindsay,
Coordinator
Analyst in American
National Government
-redacted-@crs.loc.gov
For a copy of the full report,
please call 7-.... or visit
www.crs.gov.
an overview of programs as they existed prior to DRRA’s enactment, and how they were modified
following DRRA;
the context or rationale for program modifications or changes to disaster assistance policies following
DRRA’s enactment;
potential considerations and issues for Congress;
a table of amendments to the Stafford Act following DRRA’s enactment; and
tables of deadlines associated with DRRA’s reporting, rulemaking and regulations, and other
implementation actions and requirements.
This report does not specifically address every section included in DRRA, nor does it address every subsection or paragraph
of those DRRA sections which are addressed herein.
Congressional Research Service
The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provision
Contents
Introduction ..................................................................................................................................... 1
Preparedness .................................................................................................................................... 4
Section 1208: Prioritization of Facilities ................................................................................... 4
Section 1209: Guidance on Evacuation Routes ........................................................................ 5
Section 1236: Guidance and Training by FEMA on Coordination of Emergency
Response Plans....................................................................................................................... 6
Mitigation ........................................................................................................................................ 6
Section 1234: National Public Infrastructure Pre-Disaster Hazard Mitigation ......................... 6
Section 1235(a): Additional Mitigation Activities .................................................................... 8
Section 1205: Additional Activities........................................................................................... 9
Section 1217: Additional Disaster Assistance ........................................................................... 9
Section 1204: Wildfire Mitigation............................................................................................. 9
Section 1233: Additional Hazard Mitigation Activities ........................................................... 11
Section 1231: Guidance on Hazard Mitigation Assistance ..................................................... 12
Section 1215: Management Costs—Hazard Mitigation.......................................................... 12
Public Assistance ........................................................................................................................... 12
Section 1207(c) and (d): Program Improvements ................................................................... 12
Section 1206(b): Eligibility for Code Implementation and Enforcement ............................... 13
Section 1235(b), (c), and (d): Additional Mitigation Activities .............................................. 13
Section 1228: Inundated and Submerged Roads ..................................................................... 14
Section 1215: Management Costs—Public Assistance ........................................................... 14
Individual Assistance ..................................................................................................................... 14
Section 1213: Multifamily Lease and Repair Assistance ........................................................ 14
Expanding the Areas Eligible for Multifamily Lease and Repair ..................................... 15
Determining the Cost-Effectiveness of Potential Multifamily Lease and Repair
Properties ....................................................................................................................... 16
Section 1211: State Administration of Assistance for Direct Temporary Housing and
Permanent Housing Construction ........................................................................................ 18
The State or Tribal Government’s Role in Providing Direct Temporary Housing
Assistance and Permanent Housing Construction ......................................................... 18
New Requirements ............................................................................................................ 20
State and Local Reimbursement for Implementing a Housing Solution........................... 22
Section 1212: Assistance to Individuals and Households ....................................................... 22
Section 1216: Flexibility ......................................................................................................... 25
Discretionary Ability to Waive Debts ............................................................................... 25
Prohibition on Collecting Certain Assistance ................................................................... 27
Statute of Limitations—Public Assistance........................................................................ 29
Floodplain Management and Flood Insurance .............................................................................. 30
Section 1206(a): Eligibility for Code Implementation and Enforcement ............................... 30
Section 1207(b): Program Improvements ............................................................................... 30
Section 1240: Report on Insurance Shortfalls ......................................................................... 31
Other Provisions ............................................................................................................................ 32
Section 1224: Agency Accountability ..................................................................................... 32
Section 1221: Closeout Incentives .......................................................................................... 33
Section 1225: Audit of Contracts ............................................................................................ 33
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The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provision
Section 1237: Certain Recoupment Prohibited ....................................................................... 34
Section 1210: Duplication of Benefits .................................................................................... 34
Section 1239: Cost of Assistance Estimates; Section 1232: Local Impact ............................. 37
Section 1219: Right of Arbitration .......................................................................................... 38
Section 1218: National Veterinary Emergency Teams ............................................................ 42
Section 1229: Extension of Assistance.................................................................................... 43
Section 1226: Inspector General Audit of FEMA Contracts for Tarps and Plastic
Sheeting................................................................................................................................ 44
Concluding Observations .............................................................................................................. 47
Figures
Figure 1. Delivery Sequence ......................................................................................................... 35
Tables
Table 1. Major Disaster Recovery Reform Act (DRRA) Changes to the Stafford Act ................... 2
Table 2. Factors for Major Disaster Recommendations ................................................................ 38
Table A-1. Disaster Recovery Reform Act (DRRA) Reporting Requirements ............................. 49
Table A-2. Disaster Recovery Reform Act (DRRA) Rulemaking and Regulations
Requirements.............................................................................................................................. 57
Table A-3. Disaster Recovery Reform Act (DRRA) Guidance and Other Required Actions........ 59
Table B-1. Acronym Table............................................................................................................. 68
Appendixes
Appendix A. Tables of Deadlines Associated with the Implementation Actions and
Requirements of the Disaster Recovery Reform Act of 2018 .................................................... 48
Appendix B. Acronym Table ......................................................................................................... 68
Appendix C. Brief Legislative History .......................................................................................... 69
Contacts
Author Contact Information .......................................................................................................... 70
Congressional Research Service
The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provisions
Introduction
Numerous natural disasters—including the 2017 hurricane season and devastating wildfires in
California—served as catalysts for significant recent changes in federal emergency management
policy. Most of these policy changes were included in the Disaster Recovery Reform Act of 2018
(DRRA), which was included as Division D of the FAA Reauthorization Act of 2018 (P.L. 115254). DRRA is the most comprehensive reform of the Federal Emergency Management Agency’s
(FEMA’s) disaster assistance programs since the passage of the Sandy Recovery Improvement
Act of 2013 (SRIA, Division B of P.L. 113-2) and the Post-Katrina Emergency Management
Reform Act of 2006 (PKEMRA, P.L. 109-295).
As with past disaster legislation, lessons learned following recent disasters revealed areas that
could be improved through legislative and programmatic changes, including the need for
increased preparedness and pre-disaster mitigation. The legislative intent of DRRA includes
improving disaster preparedness, response, recovery, and mitigation, including pre-disaster
mitigation; clarifying assistance program eligibility, processes, and limitations, including on the
recoupment of funding; and increasing FEMA’s transparency and accountability.1 Thus, DRRA
amends many sections of the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act, P.L. 93-288, as amended; 42 U.S.C. §§5121 et seq.), which provides the authority
for the President to issue declarations of emergency and major disasters, and provides a range of
federal assistance to local, state, territorial, and Indian tribal governments, as well as certain
private nonprofit organizations, and individuals and families.2 In addition to numerous
amendments to the Stafford Act, DRRA includes new standalone authorities, and requires reports
to Congress,3 rulemaking, and other actions.4
This report is structured to first provide a tabular overview of the major changes that DDRA made
to the Stafford Act (see Table 1). The report then provides detailed explanations of the
programmatic and procedural modifications to various disaster assistance programs under DRRA.
These DRRA modifications are grouped in the following sections: preparedness; mitigation;
public assistance; individual assistance; flood plain management and flood insurance; and other
provisions. In addition to a description of DRRA’s changes to programs, each section includes
potential policy considerations for Congress. Appendix A includes the following tables of
deadlines associated with DRRA’s reporting, rulemaking/regulatory, and other implementation
actions and requirements: Table A-1, DRRA Reporting Requirements (i.e., reports to Congress);
Table A-2, DRRA Rulemaking and Regulations Requirements; and Table A-3, DRRA Guidance
and Other Required Actions. A table of common acronyms used throughout this report is also
1 U.S. Congress, House Committee on Transportation and Infrastructure, Disaster Recovery Reform Act: Summarizing
Division D of H.R. 302, as amended, 115th Cong, last accessed December 2018. This document is no longer available
online, but copies may be requested by contacting CRS.
2 42 U.S.C. §5122 defines terms used throughout the Stafford Act, including “local government”; “state,” which
includes the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of
the Northern Mariana Islands; “Indian tribal government”; and “private nonprofit facility.”
3 Examples include requirements for the FEMA Administrator to review program processes or progress in completing
tasks and reporting specific information to the House and Senate committees of jurisdiction (e.g., see DRRA Sections
1245—Review of Assistance for Damaged Underground Water Infrastructure, and 1242—FEMA Updates on National
Preparedness Assessment); and requirements for the Inspector General of the Department of Homeland Security to
conduct audits and report on audit findings and recommendations (e.g., see DRRA Section 1226—Inspector General
Audit of FEMA Contracts for Tarps and Plastic Sheeting).
4 While most of DRRA’s amendments to the Stafford Act apply to major disasters and emergencies declared on or after
August 1, 2017, some provisions have earlier implementation dates. Additionally, other new authorities apply to major
disasters and emergencies declared on or after January 1, 2016, but some have other implementation dates. See specific
sections for implementation dates.
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The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provisions
included in Table B-1 of Appendix B. Finally, a brief legislative history of DRRA is included in
Appendix C.
Report Limitations and Caveats
The following limitations and caveats apply to this report:
this report summarizes selected provisions enacted in DRRA, but it does not address every DRRA
subsection or paragraph. Instead, the focus of this report is on DRRA’s far-reaching and potentially
permanent changes in federal emergency management policy;
this report does not organize the DRRA provisions in numerical order. Rather, they are consolidated by the
program or policy subject affected by the provisions;
where possible, the report provides background information on relevant policy areas for added context; and
the information included in the three tables of deadlines associated with DRRA implementation (i.e., Table
A-1, Table A-2, and Table A-3) may be subject to change because of subsequent administrative actions or
at the discretion of Congress, and the tables may not be up to date following the publication of this report.
Table 1. Major Disaster Recovery Reform Act (DRRA) Changes to the Stafford Act
DRRA Section
(Stafford Act Section)
Section 1214. Private
Nonprofit Facility
Significant Change(s)
Possible Impact(s)
Adds food banks to the list of private
nonprofit facilities that are eligible for FEMA
assistance
May help clarify that food banks are
eligible to receive assistance, and
ensure food banks are used as
resources to support disaster
survivors.
Specifies that the personnel and facilities of
long-term recovery groups and domestic
hunger relief organizations may be used to
provide relief and assistance, and allows the
President to enter into agreements with
such organizations for the federal
government to coordinate disaster relief
activities
May help clarify that long-term
recovery groups and domestic hunger
relief organizations are eligible to
provide assistance following a disaster
Expands eligibility for hazard mitigation
funding by allowing the President to
contribute up to 75% of the cost of hazard
mitigation measures he or she determines
are cost effective and which increase
resilience
May shift priorities toward activities to
increase resilience by allowing
additional contributions to increase
resilience
Allows Hazard Mitigation Grant Program
(HMGP) assistance to be provided for Fire
Management Assistance Grant (FMAG)
declarations
May allow hazard mitigation assistance
to be provided to areas affected by
wildfires, even absent a major disaster
declaration, which may increase funding
for mitigation
(Section 102(II)(B)—Definitions,
Private, Nonprofit Facility)
Section 1227. Relief
Organizations
(Section 309—Use and
Coordination of Relief
Organizations)
Section 1235(a).
Additional Mitigation
Activities
(Section 404(a)—Hazard
Mitigation)
Section 1204. Wildfire
Prevention
(Section 420—Fire
Management Assistance)
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The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provisions
DRRA Section
(Stafford Act Section)
Section 1234. National
Public Infrastructure PreDisaster Hazard
Mitigation
(Section 203—Pre-Disaster
Hazard Mitigation)
Section 1207. Program
Improvements
(Section 428—Public Assistance
Program Alternative Procedures)
Section 1211. State
Administration of
Assistance for Direct
Temporary Housing and
Permanent Housing
Construction
Significant Change(s)
Possible Impact(s)
Allows the President to set aside funding for
pre-disaster mitigation from the Disaster
Relief Fund (DRF), with respect to each
major disaster, an amount equal to 6% of
the estimated aggregate amount of the
grants to be made pursuant to Stafford Act
Sections 403—Essential Assistance; 406—
Repair, Restoration, and Replacement of
Damaged Facilities; 407—Debris Removal;
408—Federal Assistance to Individuals and
Households; 410—Unemployment
Assistance; 416—Crisis Counseling
Assistance and Training; and 428—Public
Assistance Program Alternative Procedures
May result in significantly increased
funding from the 6% transfer from the
DRF, but this may also be a relatively
small amount in years without a lot of
large disasters; may encourage the
adoption and enforcement of the most
current building codes
Prohibits the conditioning of federal
assistance under Section 428—Public
Assistance Program Alternative Procedures
on the election of an eligible entity to
participate; requires cost estimates that are
certified by a professionally licensed
engineer and accepted by FEMA to be
presumed to be reasonable and eligible
costs
May remove the ability for FEMA to
impose conditions on the use of
Section 428—Public Assistance
Program Alternative Procedures; may
remove FEMA’s ability to make caseby-case determinations regarding
reasonable and eligible costs, including
after approval
Allows states to administer Direct
Temporary Housing Assistance and
Permanent Housing Construction, in
addition to Other Needs Assistance (ONA);
provides a mechanism for state and local
units of government to be reimbursed for
locally-implemented housing solutions
May allow states to customize disaster
housing solutions, and may expedite
disaster recovery
Separates the cap on the maximum amount
of financial assistance eligible individuals and
households may receive for housing
assistance and ONA, removes rental
assistance from the cap, and creates an
exception for accessibility-related costs
May better meet the recovery-related
needs of individuals and households
who experience significant damage to
their primary residence and personal
property as a result of a major disaster;
may expand financial assistance
eligibility for individuals with disabilities;
may increase financial assistance related
to disaster housing and ONA; may
disincentivize sufficient insurance
coverage
Expands the eligible areas for multifamily
lease and repair, and removes the
requirement that the value of the
improvements or repairs not exceed the
value of the lease agreement
May increase housing options for
disaster survivors
(Section 408(f)—Federal
Assistance to Individuals and
Households, State Role)
Section 1212. Assistance
to Individuals and
Households
(408(h)—Federal Assistance to
Individuals and Households,
Maximum Amount of
Assistance)
Section 1213. Multifamily
Lease ad Repair
Assistance
(Section 408(c)(1)(B)—Federal
Assistance to Individuals and
Households, Direct Assistance)
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The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provisions
DRRA Section
(Stafford Act Section)
Section 1216(c).
Flexibility
Significant Change(s)
Possible Impact(s)
Establishes a project-by-project statute of
limitations on FEMA’s ability to recoup
Public Assistance funding
May ease the administrative and
financial burden that the management
of disaster recovery programs places
on state, territorial, and Indian tribal
governments; may ease FEMA’s
administrative and financial burden; may
result in the federal government not
recouping funding
Adds a right of arbitration for decisions
regarding an applicant’s eligibility for or
amount of assistance
May expedite dispute resolution and
disaster recovery; may increase costs
for administering appeals
(Section 705—Disaster Grant
Closeout Procedures)
Section 1219. Right of
Arbitration
(Section 423—Appeals of
Assistance Decisions)
Source: Disaster Recovery Reform Act (DRRA), Division D of P.L. 115-254; Stafford Act, P.L. 93-288, as
amended; 42 U.S.C. §§5121 et seq.
Preparedness5
Section 1208: Prioritization of Facilities
DRRA Section 1208 requires the FEMA Administrator to provide guidance and annual training to
state, local, and Indian tribal governments; first responders; and utility companies on
the need to prioritize assistance to hospitals, nursing homes, and other long-term
health facilities to ensure they remain functioning, or return to functioning as
soon as possible, during power outages related to natural hazards and severe
weather;
how these medical facilities should prepare for power outages related to natural
hazards and severe weather; and
how local, state, territorial, and Indian tribal governments; first responders; utility
companies; and these medical facilities should develop a strategy to coordinate
and implement emergency response plans.6
Recent hurricanes have caused power outages affecting millions of individuals, including those in
medical care facilities. For example, following Hurricane Harvey, 200,000 people lost power in
south-east Texas. Additionally, in Florida, after Hurricane Irma made landfall, 4 million people
lost power and failed air conditioning at a nursing home led to 11 deaths.7 DRRA Section 1208
may result in medical care facilities being better prepared for power outages and help mitigate the
damage (and potential deaths) associated with power outages.
5 This section authored by Shawn Reese, Analyst in Emergency Management and Homeland Security Policy,
Government and Finance Division, Federalism and Emergency Management Section.
6
§1208(1)-(3) of DRRA, P.L. 115-254.
7 “Turning the Lights Back On After Hurricane Harvey,” Power Technology, November 7, 2017, https://www.power-
technology.com/features/turning-lights-back-hurricane-harvey/.
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The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provisions
Section 1209: Guidance on Evacuation Routes
DRRA Section 1209 requires the FEMA Administrator, in coordination with the Administrator of
the Federal Highway Administration (FHWA), to develop and issue guidance for state, local, and
Indian tribal governments in identifying evacuation routes. Specifically, the FEMA Administrator
is to revise existing guidance, or issue new guidance, on these evacuation routes.
The FEMA Administrator, in developing this guidance, is to consider
whether these evacuation routes have resisted disaster impacts and recovered
quickly from disasters;
the need to evacuate special needs populations;8
information sharing and public communications with evacuees;
sheltering evacuees, including the care, protection, and sheltering of their
animals;
the return of evacuees to their homes;
other issues or items the Administrator considers appropriate;
methods that assist evacuation route planning and implementation;9
the ability of the evacuation routes to manage contraflow operations;
the input of federal land management agencies where evacuation routes may
cross or go through public land; and
such other issues or items the FHWA Administrator considers appropriate.
Section 1209 also states that the FEMA Administrator may, in coordination with the FHWA
Administrator and local, state, territorial, and Indian tribal governments, conduct a study of the
adequacy of available evacuation routes, and submit recommendations on how to assist with
anticipated evacuation flow.10
Currently, FHWA uses various tools and technology for hurricane modeling, information sharing,
and transportation (evacuation) modeling and analysis.11 DRRA Section 1209 codifies practices
that FEMA and FHWA currently employ to address evacuation route planning and
implementation of evacuations.
8 This section states that “special needs populations” to be considered include individuals with physical and mental
disabilities; individuals in schools, daycare centers, mobile home parks, prisons, nursing homes and other long-term
care facilities, and detention centers; individuals with limited-English proficiency; the elderly; and individuals who are
tourists, seasonal workers, or homeless.
9 Assistance methods and considerations include the route’s ability to withstand disaster impact risks, to improve
durability, and provide long-term cost savings.
10
§1209 of DRRA, P.L. 115-254.
11 U.S. Department of Transportation (DOT), Federal Highway Administration (FHWA), Catastrophic Hurricane
Evacuation Plan Evaluation: A Report to Congress, Washington, DC, June 1, 2006, Appendix F,
https://www.fhwa.dot.gov/reports/hurricanevacuation/appendixf.htm; DOT, FHWA, Using Highways During
Evacuation Operations for Events with Advance Notice: Routes to Effective Evacuation Planning Primer Series,
December 2006, https://ops.fhwa.dot.gov/publications/evac_primer/primer.pdf; DOT, FHWA, Using Highways for NoNotice Evacuations: Routes to Effective Evacuation Planning Primer Series, November 2007, https://ops.fhwa.dot.gov/
publications/evac_primer_nn/primer.pdf.
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The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provisions
Section 1236: Guidance and Training by FEMA on Coordination of
Emergency Response Plans
DRRA Section 1236 requires the FEMA Administrator, in coordination with other relevant
agencies, to provide annual guidance and training on coordination of emergency response plans to
local, state, territorial, and Indian tribal governments; first responders; and hazardous material
storage facilities. Specifically, the annual guidance and training shall include:
a list of required equipment for a release of hazardous substances and material;
an outline of health risks associated with exposure to hazardous substances and
materials; and
published best practices for mitigating damage, and danger, to communities from
hazardous materials.
This required annual guidance and training is to be implemented not later than 180 days after
DRRA’s enactment (i.e., by April 3, 2019).12 Prior to DRRA and presently, the U.S. Department
of Homeland Security (DHS) provides hazardous materials information from myriad sources,
such as universities and other local and federal agencies. The available information includes
procedures and resources for responding to different types of hazardous material releases,
independent study training courses, and several resources related to medical management for
chemical exposures, but the information is broadly distributed and may not be quickly accessible
when responding to a hazardous materials incident.13 DRRA Section 1236 adds not only the plan
coordination training requirement, but also requires the development of resources that may
streamline information that can be incorporated into emergency response plans, such as the list of
required equipment and health risks.
Mitigation
Section 1234: National Public Infrastructure Pre-Disaster Hazard
Mitigation14
DRRA Section 1234 authorizes the National Public Infrastructure Pre-Disaster Mitigation Fund
(NPIPDM), which allows the President to set aside 6% from the Disaster Relief Fund (DRF) with
respect to each major disaster, establishes limitations on the receipt of pre-disaster hazard
mitigation funding, and expands the criteria considered in awarding mitigation funds.
Pre-Disaster Mitigation (PDM) funding is authorized by Stafford Act Section 203—Pre-Disaster
Hazard Mitigation,15 with the goal of reducing overall risk to the population and structures from
future hazard events, while also reducing reliance on federal funding from future disasters.16 For
12
§1236 of DRRA, P.L. 115-254.
13 U.S. Department of Homeland Security (DHS), Hazardous Materials Release, Washington, DC, last published May
4, 2018, https://www.dhs.gov/hazardous-materials-release.
14 This section authored by Diane P. Horn, Analyst in Flood Insurance and Emergency Management, Government and
Finance Division, Federalism and Emergency Management Section.
15 42 U.S.C. §5133.
16 Federal Emergency Management Agency (FEMA), Hazard Mitigation Assistance Guidance, February 27, 2015, p. 4,
https://www.fema.gov/media-library-data/1424983165449-38f5dfc69c0bd4ea8a161e8bb7b79553/
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The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provisions
FY2019, the PDM program is funded through the DRF.17 Pre-DRRA, the amount available for
PDM was appropriated separately on an annual basis, and financial assistance was limited by the
amount available in the National Pre-Disaster Mitigation Fund. FEMA awarded PDM grants
competitively, and 56 states and jurisdictions, as well as federally-recognized Indian tribal
governments, were eligible to apply. Local governments, including Indian tribes or authorized
tribal organizations, were required to apply to their state/territory as subapplicants. In FY2018,
each state, jurisdiction, and tribe was eligible for a baseline level of financial assistance in the
amount of the lesser of 1% of appropriated funding, or $575,000, although additional funding
could be awarded competitively.18 No applicant was eligible to receive more than 15% of the
appropriated funding.19 In FY2018, FEMA set aside 10% of the appropriation for federally
recognized tribes.20 FEMA sets priorities annually for the competitive PDM funding, with priority
given to applicants that have little or no disaster funding available through the Hazard Mitigation
Grant Program (HMGP).21 In FY2018, FEMA awarded $235.2 million in PDM funding.22
DRRA authorizes the NPIPDM, for which the President may set aside from the DRF, with respect
to each major disaster, an amount equal to 6% of the estimated aggregate amount of the grants to
be made pursuant to the following sections of the Stafford Act:
Section 403—Essential Assistance;
Section 406—Repair, Restoration, and Replacement of Damaged Facilities;
Section 407—Debris Removal;
Section 408—Federal Assistance to Individuals and Households;
Section 410—Unemployment Assistance;
Section 416—Crisis Counseling Assistance and Training; and
Section 428—Public Assistance Program Alternative Procedures.23
The amount set aside for PDM shall not reduce the amounts otherwise available under the
sections above.24 Funding from the NPIPDM may be used to provide technical and financial
mitigation assistance pursuant to each major disaster. An additional clause in DRRA provides that
NPIPDM funds may be used “to establish and carry out enforcement activities and implement the
latest published editions of relevant consensus-based codes, specifications, and standards that
incorporate the latest hazard-resistant designs and establish minimum acceptable criteria for the
design, construction, and maintenance of residential structures and facilities that may be eligible
for assistance under this Act.... ”25
HMA_Guidance_022715_508.pdf.
17 For more information on the Disaster Relief Fund (DRF), see CRS Report R45484, The Disaster Relief Fund:
Overview and Issues, by William L. Painter.
18 42 U.S.C. §5133(f)(2)(A).
19 42 U.S.C. §5133(f)(2)(B).
20 FEMA, National Pre-Disaster Mitigation Fund, Fiscal Year 2017 Report to Congress, Washington, DC, September
1, 2017, p. 2, https://www.dhs.gov/sites/default/files/publications/FEMA%20-%20National%20PreDisaster%20Mitigation%20Fund.pdf.
21 FEMA, National Pre-Disaster Mitigation Fund, p. 2.
22 FEMA, FY2018 Pre-Disaster Mitigation (PDM) Grant Program Fact Sheet, pp. 1-4, last updated October 3, 2018,
https://www.fema.gov/media-library/assets/documents/168111.
23 42 U.S.C. §5133(i)(1).
24 42 U.S.C. §5133(i)(3).
25 42 U.S.C. §5133(e)(1)(iv).
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The Disaster Recovery Reform Act of 2018: A Summary of Selected Statutory Provisions
The changes to PDM funding in DRRA may increase the focus on funding public infrastructure
projects that improve community resilience before a disaster occurs, though FEMA has the
discretion to shape the program in many ways. There is potential for significantly increased
funding post-DRRA through the new transfer from the DRF, but it is not yet clear how FEMA
will implement this new program.
In the Consolidated Appropriations Act, 2019 (P.L. 116-6), Congress made $250 million available
for PDM for FY2019, which may be merged with funds for the NPIPDM once it is fully
implemented. The FY2019 PDM program will be the last PDM cycle before the rollout of the
new DRRA Building Resilient Infrastructure and Communities (BRIC) Program. FEMA has
authority to operate the legacy PDM program for FY2019, after which BRIC will replace the
current PDM program. Funding not used in FY2019 will remain for the first year of BRIC, which
will likely begin in FY2020. PDM projects already in progress will continue through closeout
under the current PDM guidance. Any unobligated PDM funds may be rolled into a “carryover
PDM” funding account which could be used for obligations of PDM projects underway when
BRIC is implemented. Once BRIC is fully implemented, legacy PDM funds may be merged with
BRIC funds, which may then be used for both PDM and BRIC work.26
FEMA is in the process of determining how funds under the 6% set-aside will be allocated to
local, state, territorial, and Indian tribal governments.27 FEMA expects that BRIC will be funded
entirely by the 6% set-aside; however, nothing prohibits Congress from appropriating additional
funds for the program. FEMA anticipates setting aside the full 6% estimate from each major
disaster declaration within 180 days after declaration.28 Based on the recent funding trends of the
DRF, FEMA assumes that it would be a rare circumstance in which there is no set-aside.29
Other provisions in DRRA Section 1234 establish that mitigation funds under Stafford Act
Section 20330 would only be provided to states which had received a major disaster declaration in
the past seven years, or any Indian tribal governments located partially or entirely within the
boundaries of such states.31 Other provisions would expand the criteria to be considered in
awarding mitigation funds, including the extent to which the applicants have adopted hazardresistant building codes and design standards, and the extent to which the funding would increase
resiliency.
Section 1235(a): Additional Mitigation Activities32
DRRA Section 1235(a) amends Stafford Act Section 404(a)—Hazard Mitigation to include a
provision authorizing the President to contribute up to 75% of the cost of hazard mitigation
measures which the President has determined are cost effective and which increase resilience to
future damage, hardship, loss, or suffering in any area affected by a major disaster. The preDRRA language only authorized funding for hazard mitigation measures which substantially
reduce risk.
26 Email correspondence from FEMA Congressional Affairs staff, April 15, 2019.
27 Email correspondence from FEMA Congressional Affairs staff, March 13, 2019.
28 Email correspondence from FEMA Congressional Affairs staff, April 15, 2019.
29 Email correspondence from FEMA Congressional Affairs staff, April 15, 2019.
30 42 U.S.C. §5133.
31 42 U.S.C. §5133(g).
32 This section authored by Diane P. Horn, Analyst in Flood Insurance and Emergency Management, Government and
Finance Division, Federalism and Emergency Management Section.
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DRRA does not include definitions of reducing risk or increasing resilience. However, DRRA
Section 1235(d) requires FEMA to issue a rulemaking defining the terms resilient and resiliency,
and although these definitions relate to Stafford Act Section 406—Repair, Restoration, and
Replacement of Damaged Facilities, FEMA may consider using these definitions for mitigation
activities as well.
Section 1205: Additional Activities33
DRRA Section 1205 amends Stafford Act Section 404—Hazard Mitigation34 by adding a section
to allow recipients of hazard mitigation assistance provided under this section and Section 203—
Pre-Disaster Hazard Mitigation35 to use the funding to conduct activities to help reduce the risk of
future damage, hardship, loss, or suffering in any area affected by a wildfire or windstorm. The
section includes a nonexclusive list of wildfire and windstorm mitigation activities that are
eligible for funding. These activities were eligible for funding pre-DRRA, but this section is
intended to clarify eligible uses of funding under FEMA’s hazard mitigation grant programs.36
Section 1217: Additional Disaster Assistance37
DRRA Section 1217 amends Section 209(c)(2) of the Public Works and Economic Development
Act of 196538 such that, when assistance is given to communities whose economy has been
injured by a major disaster or emergency and which have received a major disaster or emergency
declaration under the Stafford Act, the Secretary of Commerce may encourage hazard mitigation
if appropriate. The Public Works and Economic Development Act of 1965 did not have any
previous mention of mitigation; however, this provision does not give the Secretary any
additional tools by which to encourage hazard mitigation.
Section 1204: Wildfire Mitigation39
Section 1204 of DRRA amends Stafford Act Sections 420—Fire Management Assistance and
404(a)—Hazard Mitigation40 to include HMGP for Fire Management Assistance Grant (FMAG)
declarations. The Stafford Act authorizes three types of declarations that provide federal
assistance to states and localities: (1) FMAG declarations, (2) emergency declarations, and (3)
major disaster declarations. FMAGs provide federal assistance for fire suppression activities.
33 This section authored by Diane P. Horn, Analyst in Flood Insurance and Emergency Management, Government and
Finance Division, Federalism and Emergency Management Section.
34 42 U.S.C. §5170c.
35 42 U.S.C. §5133.
36 U.S. Congress, House Committee on Transportation and Infrastructure, Report to Accompany H.R. 4460, Disaster
Recovery Reform Act, 115th Cong., 2nd sess., December 21, 2018, H.Rept. 115-1098, p. 16.
37 This section authored by Diane P. Horn, Analyst in Flood Insurance and Emergency Management, Government and
Finance Division, Federalism and Emergency Management Section.
38 42 U.S.C. §3149(c)(2).
39 This section authored by Bruce R. Lindsay, Analyst in American National Government, Government and Finance
Division, Federalism and Emergency Management Section.
40 §420 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5187; §404(a) of the Stafford Act, 42 U.S.C.
§5170c(a).
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Emergency declarations trigger aid that protects property, public health, and safety and lessens or
averts the threat of an incident becoming a catastrophic event.41
A major disaster declaration constitutes the broadest authority for federal agencies to provide
supplemental assistance to help state and local governments, families and individuals, and certain
nonprofit organizations recover from the incident. Major disaster declarations also authorize
statewide hazard mitigation grants to states and tribes through FEMA’s HMGP. Authorized under
Stafford Act Section 404—Hazard Mitigation,42 HMGP can be used to fund mitigation projects to
protect either private or public property, provided that the project fits within local, state,
territorial, and Indian tribal government mitigation strategies to address risk and complies with
HMGP guidelines.43
HMGP grant amounts are provided on a sliding scale based on the percentage of funds spent for
Public and Individual Assistance for each presidentially-declared major disaster declaration. For
states and federally-recognized tribes with a FEMA-approved Standard State or Tribal Mitigation
Plan, the formula provides for up to 15% of the first $2 billion of estimated aggregate amounts of
disaster assistance, up to 10% for amounts between $2 billion and $10 billion, and 7.5% for
amounts between $10 billion and $35.333 billion.44
DRRA Section 1204 also requires the FEMA Administrator to submit a report one year after
enactment and annually thereafter containing a summary of any mitigation projects carried out,
and any funding provided to those projects, to the Senate Committee on Homeland Security and
Governmental Affairs (HSGAC), the House Committee on Transportation and Infrastructure, and
the House and Senate Committees on Appropriations.
One potential issue of congressional concern is the cost implications of providing mitigation
funding for FMAG declarations. All things being equal, making HMGP available for FMAGs will
increase federal expenditures for HMGP because it expands the number of incidents eligible for
HMGP. The additional costs, however, may not be significant compared to HMGP funding for
major disaster declarations. As previously discussed, HMGP grants are based on the percentage of
funds spent for Public and Individual Assistance. Though it is unclear how the HMGP formula
will be applied to FMAG declarations, HMGP grant amounts would likely be less than what is
typically provided for major disasters because funding for major disasters is significantly more
than what is provided for FMAGs. For example, from FY2017 to FY2018, $12.3 million has been
obligated for FMAG declarations. In contrast, $1.7 billion has been obligated for Hurricane
Matthew.45 Furthermore, HMGP funding for FMAGs could be considered an investment because
the projects they fund can help save recovery costs for future disasters.
41 Given their purpose, emergency declarations may precede an event.
42 §404 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5170c.
43 FEMA, Hazard Mitigation Grant Program, brochure, last accessed May 6, 2019, https://www.fema.gov/media-
library-data/1437513326617-c124385de1b6061509f775a164c9aabd/FEMA_HMA_HMGP_tri_2015_508.pdf.
44 FEMA, Hazard Mitigation Grant Program.
45 Fire Management Assistance Grant (FMAG) obligations provided by FEMA. Hurricane Matthew obligations
obtained from: FEMA, Disaster Relief Fund: Monthly Report, April 5, 2019, p. 13, https://www.fema.gov/medialibrary-data/1554754907409-9b903dabb493d864465306565b67b743/April2019DisasterReliefFundReport.pdf.
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Section 1233: Additional Hazard Mitigation Activities46
DRRA Section 1233 authorizes recipients of hazard mitigation assistance to use the assistance to
reduce the risk of earthquake damage, hardship, loss, or suffering for areas in the United States
affected by earthquake hazards.47 DRRA Section 1233 addresses three areas of earthquake
mitigation, all related to improving the capability for an earthquake early-warning system:
1. improvements to regional seismic networks;
2. improvements to geodetic networks;48 and
3. improvements to seismometers, global positioning system (GPS) receivers, and
associated infrastructure.
The earthquake hazards and mitigation community long ago shifted away from an early focus on
predicting earthquakes to mitigating earthquake hazards and reducing risk,49 and more recently to
a focus on activities that would enhance the effectiveness of an earthquake early-warning system.
An earthquake early-warning system would send a warning after an earthquake occurred but
before the damaging seismic waves reach a community that would be affected by the earthquakeinduced shaking. In contrast, an earthquake prediction would provide a date, time, and location of
a future earthquake.
The National Earthquake Hazards Reduction Program Reauthorization Act of 2018 (P.L. 115-307)
removed statutory language referencing the goal of earthquake prediction, substituting instead the
goal of issuing earthquake early warnings and alerts. Since 2006, the U.S. Geological Survey
(USGS), together with several cooperating institutions, has been working to develop a U.S.
earthquake early-warning system. According to the USGS, the goal is to create and operate such a
system for the nation’s highest-risk regions, beginning with California, Oregon, and
Washington.50 Other seismically active western states, such as Alaska, also may eventually be
incorporated into an early-warning system, and possibly a region in the Midwest known as the
New Madrid Seismic Zone.51
The authority provided in DRRA Section 1233 could help improve the U.S. early-warning
capability because it addresses many of the components for earthquake detection (e.g.,
seismometers, the instruments that detect shaking), location (e.g., GPS receivers and
infrastructure for more precise mapping of where shaking will occur), and improvements to the
connected regional networks of seismometers and geodetic instruments. Part of the challenge in
46 This section authored by Peter Folger, Specialist in Energy and Natural Resources Policy, Resources, Science and
Industry Division, Natural Resources and Earth Sciences Section.
47 For more specific information about earthquake hazards and the federal role, see CRS Report R43141, The National
Earthquake Hazards Reduction Program (NEHRP): Issues in Brief, by Peter Folger.
48 Geodetic networks establish the spatial reference framework for accurately and precisely locating points on the
Earth’s surface.
49 Earthquake prediction has proved virtually insoluble over time. See, for example, U.S. Geological Survey (USGS),
“Can You Predict Earthquakes?,” last accessed May 6, 2019, https://www.usgs.gov/faqs/can-you-predict-earthquakes?
qt-news_science_products=0#qt-news_science_products.
50 See USGS, “Earthquake Early Warning,” last accessed May 6, 2019, https://earthquake.usgs.gov/research/
earlywarning/overview.php.
51 Also referred to as the New Madrid fault zone. In this region in the central United States, a series of major
earthquakes occurred in 1811-1812. Seismologists note that large earthquakes occur in the region roughly every 500
years. See American Geosciences Institute, “Earthquake Hazards Near the New Madrid Fault Zone,” last accessed May
6, 2019, https://www.americangeosciences.org/critical-issues/factsheet/new-madrid-fault-zone.
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implementing an effective earthquake early-warning system is communicating the timing and
location of dangerous shaking once the earthquake occurs. The section does not appear to address
that challenge directly; however, improvements to the components specified in the section would
likely improve overall early-warning system performance.
Section 1231: Guidance on Hazard Mitigation Assistance52
DRRA Section 1231 requires FEMA, not later than 180 days after enactment (April 3, 2019), to
issue guidance regarding the acquisition of property for open space as a mitigation measure under
Stafford Act Section 404—Hazard Mitigation.53 This guidance shall include a process by which
the State Hazard Mitigation Officer (SHMO) appointed for the acquisition shall provide written
notification to the local government, not later than 60 days after the applicant for assistance enters
into an agreement with FEMA regarding the acquisition, that includes (1) the location of the
acquisition; (2) the state-local assistance agreement for the Hazard Mitigation Grant Program; (3)
a description of the acquisition; and (4) a copy of the deed restrictions. The guidance shall also
include recommendations for entering into and implementing a memorandum of understanding
between units of local government and the grantee or subgrantee, the state, and the regional
FEMA Administrator that includes provisions to (1) use and maintain the open space consistent
with Section 404 and all associated regulations, standards and guidance, and consistent with all
adjoining property, so long as the cost of the maintenance is borne by the local government; and
(2) maintain the open space pursuant to standards exceeding any local government standards
defined in the agreement with FEMA.
Section 1215: Management Costs—Hazard Mitigation54
DRRA Section 1215 amends Stafford Act Section 324(b)(2)(A)—Management Costs55 by setting
out specific management cost caps for hazard mitigation.56 A grantee under Stafford Act Section
404—Hazard Mitigation57 may be reimbursed not more than 15% of the total award, of which not
more than 10% may be used by the grantee and 5% by a subgrantee.
Public Assistance58
Section 1207(c) and (d): Program Improvements
DRRA Section 1207(c) amends Stafford Act Section 428(d)—Public Assistance Program
Alternative Procedures to prohibit the conditioning of federal assistance under the Stafford Act on
the election of an eligible entity to participate in the alternative procedures set forth in Section
52 This section authored by Diane P. Horn, Analyst in Flood Insurance and Emergency Management, Government and
Finance Division, Federalism and Emergency Management Section.
53 42 U.S.C. §5170c.
54 This section authored by Diane P. Horn, Analyst in Flood Insurance and Emergency Management, Government and
Finance Division, Federalism and Emergency Management Section.
55 42 U.S.C. §5165b(b).
56 §1215 of DRRA, P.L. 115-254, as it amends §324 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5165b.
57 42 U.S.C. §5170c.
58 This section authored by Natalie Keegan, Analyst in American Federalism and Emergency Management Policy,
Government and Finance Division, Federalism and Emergency Management Section.
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428 of the Stafford Act.59 Prior to enactment of this provision of DRRA, FEMA had the discretion
to impose conditions on the use of Section 428 procedures.
DRRA Section 1207(d) amends Section 428(e)(1) to add a provision that requires cost estimates
submitted under Section 428 procedures that are certified by a professionally licensed engineer
and accepted by the FEMA Administrator to be presumed to be reasonable and eligible costs
unless there is evidence of fraud.60 Prior to enactment of this provision, FEMA had the discretion
to make case-by-case determinations regarding whether costs were reasonable and eligible, and
FEMA had the discretion to change the determinations even after an original cost estimate had
been approved.
Section 1206(b): Eligibility for Code Implementation and
Enforcement
DRRA Section 1206(b) amends Stafford Act Section 406—Repair, Restoration, and Replacement
of Damaged Facilities to add base and overtime wages for extra hires to facilitate implementation
and enforcement of adopted building codes as an allowable expense.61 Allowable base and
overtime wages are authorized for not more than 180 days after a major disaster declaration is
issued.
Section 1235(b), (c), and (d): Additional Mitigation Activities
DRRA Section 1235(b) amends Stafford Act Section 406—Repair, Restoration, and Replacement
of Damaged Facilities to specify that eligible costs for assistance provided under Section 406 be
based on estimates of repairing, restoring, reconstructing, or replacing a public facility or private
nonprofit facility in conformity with “the latest published editions of relevant consensus-based
codes, specifications, and standards that incorporate the latest hazard-resistant designs and
establish minimum acceptable criteria for the design, construction, and maintenance of residential
structures and facilities.”62 DRRA Section 1235 also requires that such eligible costs include
estimates of replacing eligible projects under Stafford Act Section 406 “in a manner that allows
the facility to meet the definition of resilient” developed pursuant to Section 406(e)(1)(A). Prior
to DRRA’s enactment, FEMA required that such project cost estimates be based on more general
language of “codes, specifications, and standards” in place at the time the disaster occurred.
DRRA Section 1235(c) amends Stafford Act Section 406 to authorize the contributions for
eligible costs to be provided on an actual cost basis or based on cost-estimation procedures63 and
DRRA Section 1235(d) directs the FEMA Administrator, in consultation with the heads of
relevant federal agencies, to establish new rules regarding defining “resilient” and “resiliency” for
59 §1207(c) of DRRA, P.L. 115-254, as it amends §428(d) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5189f(d).
60 §1207(d) of DRRA, P.L. 115-254, as it amends §428(e)(1) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5189f(e)(1).
61 §1206(b) of DRRA, P.L. 115-254, as it amends §406(a)(2) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5172(a)(2).
62 §1235(b) of DRRA, P.L. 115-254, as it amends §406(e)(1)(A) of the Stafford Act, P.L. 93-288, as amended, 42
U.S.C. §5172(e)(1)(A).
63 §1235(c) of DRRA, P.L. 115-254, as it amends §406(e)(1) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5172(e)(1).
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the purposes of eligible costs under Section 406 of the Stafford Act.64 DRRA directs the
President, acting through the FEMA Administrator, to issue a final rulemaking notice on the new
rules not later than 18 months after DRRA’s enactment (i.e., by April 5, 2020), and requires a
final report summarizing the regulations and guidance issued defining “resilient” and “resiliency”
to be submitted to Congress no later than two years after DRRA’s enactment (i.e., by October 5,
2020).65
Section 1228: Inundated and Submerged Roads
DRRA Section 1228 requires the FEMA Administrator, in coordination with the FHWA
Administrator, to develop and issue guidance for local, state, territorial, and Indian tribal
governments regarding repair, restoration, and replacement of inundated and submerged roads
damaged or destroyed by a major disaster.66 The guidance must address associated expenses
incurred by the government for roads eligible for assistance under Stafford Act Section 406—
Repair, Restoration, and Replacement of Damaged Facilities.67 Prior to DRRA’s enactment,
FEMA did not issue guidance specifically addressing inundated and submerged roads and
alternatives in the use of federal disaster assistance for the repair, restoration, and replacement of
roads damaged by a major disaster.
Section 1215: Management Costs—Public Assistance
DRRA Section 1215 amends Stafford Act Section 324(b)(2)(B)—Management Costs to place a
cap on any direct administrative costs, and any other administrative associated expenses, of not
more than 12% of the total award amount provided under Stafford Act Sections 403—Essential
Assistance, 406—Repair, Restoration, and Replacement of Damaged Facilities, 407—Debris
Removal, and 502—Federal Emergency Assistance.68 The 12% cap is to be divided between the
primary grantee and subgrantees with the primary grantee receiving not more than 7%, and
subgrantees receiving not more than 5% of the total award amount.
Individual Assistance69
Section 1213: Multifamily Lease and Repair Assistance
DRRA Section 1213 amends Stafford Act Section 408(c)(1)(B)(ii)—Federal Assistance to
Individuals and Households, Temporary Housing, Direct Assistance, Lease and Repair of Rental
Units for Temporary Housing to expand the eligible areas for multifamily lease and repair
properties, and remove the requirement that the value of the improvements or repairs not exceed
the value of the lease agreement.70 FEMA’s Multifamily Lease and Repair program is a form of
64 §1235(d) of DRRA, P.L. 115-254, as it amends §406(e) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5172(e).
65 Prior to enactment of DRRA, FEMA did not issue such rules.
66 §1228 of DRRA, P.L. 115-254.
67 §1228 of DRRA, P.L. 115-254.
68 §1215 of DRRA, P.L. 115-254, as it amends §324 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5165b.
69 This section authored by Elizabeth M. Webster, Analyst in Emergency Management and Disaster Recovery,
Government and Finance Division, Federalism and Emergency Management Section.
70 §1213 of DRRA, P.L. 115-254, as it amends §408(c)(1)(B)(ii) of the Stafford Act, P.L. 93-288, as amended, 42
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direct temporary housing assistance under Stafford Act Section 408.71 When eligible individuals
and households are unable to use Rental Assistance due to a lack of available housing resources72
and when it is determined to be a cost-effective alternative to other temporary housing options,73
FEMA may enter into lease agreements with the owners of multifamily rental property units and
may make improvements or repairs, in order to provide temporary housing.74
Expanding the Areas Eligible for Multifamily Lease and Repair
FEMA guidance includes limitations on the conditions of eligibility required to authorize
properties for multifamily lease and repair.75 Prior to DRRA’s enactment, multifamily lease and
repair properties had to be located in areas covered by an emergency or major disaster
declaration.76 Following DRRA’s enactment, however, eligible properties also include those
“impacted by a major disaster.”77 According to the House Transportation and Infrastructure
Committee’s Disaster Recovery Reform Act Report (DRRA Report), in amending this section of
the Stafford Act, Congress intended to “allow greater flexibility and options for housing disaster
victims.”78 Thus, DRRA Section 1213 expands program eligibility for properties, which may
increase the number of FEMA-leased multifamily rental properties. This may:
increase available housing stock for eligible individuals and households; and
U.S.C. §5174(c)(1)(B)(ii).
71 42 U.S.C. §5174(c)(1)(B)(ii); see also FEMA, Recovery Policy: Multi-Family Lease and Repair Program—Direct
Temporary Housing, 9459.1, September 10, 2013, https://www.fema.gov/media-library-data/138445235771895f11f1ef06e063e305edd22bee70964/MLRP_Policy.pdf; and FEMA, Individual Assistance Program and Policy Guide
(IAPPG), FP 104-009-03, March 2019, p. 107, https://www.fema.gov/media-library-data/15517134300461abf12182d2d5e622d16accb37c4d163/IAPPG.pdf (note that FEMA’s IAPPG applies to any disaster declared on or
after March 1, 2019).
72 FEMA, Individuals and Households Program Unified Guidance (IHPUG), FP 104-009-03, September 2016, pp. 61
and 73, https://www.fema.gov/media-library-data/1483567080828-1201b6eebf9fbbd7c8a070fddb308971/
FEMAIHPUG_CoverEdit_December2016.pdf (note that FEMA’s IHPUG applies to any disaster declared on or after
September 30, 2016); FEMA, IAPPG, p. 107.
73 42 U.S.C. §5174(c)(1)(B)(ii)(I); see also FEMA, IHPUG, pp. 74-75 (note that the IHPUG provides the steps to
determine cost-effectiveness); and FEMA, IAPPG, pp. 107-112.
74 FEMA, Recovery Policy: Multi-Family Lease and Repair Program.
75 FEMA, IAPPG, p. 107.
76 42 U.S.C. §5174(c)(1)(B)(ii)(I)(aa) (2017), https://www.govinfo.gov/content/pkg/USCODE-2017-title42/pdf/
USCODE-2017-title42-chap68-subchapIV-sec5174.pdf#page=2; see also FEMA, IHPUG, p. 73. The IHPUG details
requirements for properties to meet the conditions of eligibility for participation in the multifamily lease and repair
program. It states “[t]he property must be located in an area included in a major disaster or emergency declaration.”
77 §1213(b) of DRRA, P.L. 115-254, as it amends §408(c)(1)(B)(ii)(I)(aa) of the Stafford Act, P.L. 93-288, as amended,
42 U.S.C. §5174(c)(1)(B)(ii)(I)(aa); see also 44 C.F.R. §206.2(a)(6); FEMA, IHPUG, p. 3; and FEMA, IAPPG, p. 5.
When an emergency or major disaster is declared, areas of the affected state are “designated” as having been deemed
eligible for federal assistance. A designated area is “[a]ny emergency or major disaster-affected portion of a State
which has been determined eligible for Federal assistance” (44 C.F.R. §206.2(a)(6)). Designated areas may include
counties, parishes, or tribal lands, as well as municipalities, villages, or districts (FEMA, IAPPG, p. 5). Note that the
IHPUG lists counties, parishes, or tribal lands, and the IAPPG expands this list to also include municipalities, villages,
or districts (FEMA, IHPUG, p. 3).
78 U.S. Congress, House Committee on Transportation and Infrastructure (House Transportation and Infrastructure),
Disaster Recovery Reform Act (DRRA) Report, committee print, 115th Cong., 2nd sess., December 21, 2018, H.Rept.
115-1098, p. 31.
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reduce FEMA’s reliance on other, less cost-effective forms of direct assistance (e.g.,
Transportable Temporary Housing Units (TTHUs)).79
Although it was released following DRRA’s enactment, FEMA’s most recent guidance—the
Individual Assistance Program and Policy Guide (IAPPG)80—states that in order to be eligible
for multifamily lease and repair, “[t]he property must be located in an area designated for IA
[Individual Assistance] included in a major disaster declaration,” which is inconsistent with
Stafford Act Section 408(c)(1)(B)(ii)(I)(aa), as amended by DRRA. The IAPPG does, however,
add the ability for FEMA to add counties/jurisdictions to the major disaster declaration designed
for IA “specifically for the purpose of implementing MLR [Multifamily Lease and Repair].”81
Thus, while FEMA’s most recent guidance expands the agency’s ability to implement MLR, it
still states that properties must be in designated areas. In order to reflect the changes to the
Multifamily Lease and Repair program post-DRRA, FEMA would need to update its guidance to
be consistent with Stafford Act Section 408(c)(1)(B)(ii)(I)(aa), as amended, and may consider
defining what it means for a property to be “impacted by a major disaster,” and any additional,
related eligibility criteria.
Determining the Cost-Effectiveness of Potential Multifamily Lease and Repair
Properties
Prior to DRRA’s enactment, the value of the improvements or repairs were not permitted to
exceed the value of the lease agreement,82 which, per FEMA policy, could not be greater than the
Fair Market Rent (FMR).83 Post-DRRA, the restriction that improvements or repairs not exceed
the value of the lease agreement has been removed from Stafford Act Section
408(c)(1)(B)(ii)(II)—Federal Assistance to Individuals and Households, Temporary Housing,
Direct Assistance, Lease and Repair of Rental Units for Temporary Housing, as amended.84
Additionally, and as was the case prior to DRRA, the cost-effectiveness of the potential
79 FEMA, IAPPG, pp. 95-96 and 107-112.
80 FEMA’s IAPPG was published in March 2019.
81 FEMA, IAPPG, p. 108. Per the IAPPG, in order to add counties/jurisdictions, the following requirements must be
met: (1) the designated counties/jurisdictions include insufficient properties to meet the housing need; (2) FEMA has
identified suitable multifamily lease and repair properties within counties/jurisdictions that are proposed to be
designated; (3) the properties are necessary to provide temporary housing within a reasonable commuting distance; and
(4) the governor (or Governor’s Authorized Representative (GAR)) submits a written request to add the
counties/jurisdictions, and the request is approved by the FEMA Associate Administrator for Response and Recovery.
In addition, FEMA’s IAPPG increases flexibility by redefining multifamily rental housing as a “rental property that
contains three or more dwelling units ... ,” as opposed to a “property that contains not less than five dwelling units ... ”
per the IHPUG (FEMA, IAPPG, p. 107; FEMA, IHPUG, p. 73).
82 42 U.S.C. §5174(c)(1)(B)(ii)(II)(bb) (2017); see also FEMA, IHPUG, pp. 74-75.
83 FEMA, IHPUG, pp. 50-51 and 74-75; FEMA, IAPPG, pp. 85-86 and 107-112; see also 44 C.F.R. §206.111. Fair
Market Rent (FMR) is defined in FEMA policy as “housing market-wide estimates of rents that provide opportunities
to rent standard quality housing throughout the geographic area in which rental housing units are in competition. The
fair market rent rates applied are those identified by HUD [U.S. Department of Housing and Urban Development] as
being adequate for existing rental housing in a particular area. FEMA uses the applicable rate based upon the location
of the housing unit, the number of bedrooms in the housing unit, and the fiscal year in which the major disaster
declaration was issued.” FEMA uses its FMR Calculator to evaluate the need for a Rental Assistance rate increase and
will authorize a rate increase only when the published HUD FMR for the declared disaster area or host area is
significantly less than the prevailing market rates.
84 42 U.S.C. §5174(c)(1)(B)(ii)(II); see also U.S. Congress, Senate Committee on Homeland Security and
Governmental Affairs (HSGAC), Disaster Recovery Reform Act of 2018 (DRRA) Report, committee print, 115th Cong.,
2nd sess., December 19, 2018, S.Rept. 115-446, p. 11.
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multifamily lease and repair property must still be considered when FEMA determines whether or
not to enter into a lease agreement with a property owner for the purpose of providing
Multifamily Lease and Repair assistance.85 As stated above, when eligible individuals and
households are unable to use Rental Assistance and when it is determined to be a cost-effective
alternative to other temporary housing options, FEMA may use multifamily lease and repair to
provide temporary housing.86 According to FEMA’s guidance, the process by which the agency
determines the cost-effectiveness of a potential multifamily lease and repair property is that
“FEMA will determine the value of the lease agreement by multiplying the approved monthly
Rental Assistance rate by the number of units, and then multiplying the number of months
remaining between the date the repairs are completed and the end of the 18-month period of
assistance.”87 FEMA guidance, however, currently states that there are three steps that FEMA
must take to determine the cost-effectiveness of a potential multifamily lease and repair property.
FEMA would need to update the IAPPG to clarify the process by which FEMA determines costeffectiveness and to reflect the fact that the cost-effectiveness determination is not based on a
three-step test.88
Additionally, it is unclear whether the removal of the restriction that improvements or repairs not
exceed the value of the lease agreement will have a significant impact on program administration.
There are several reasons the impact of this legislative change may not be significant including:
the property must be found to be cost-effective even if a potential property requiring
improvements or repairs in excess of the value of the lease agreement may be otherwise
eligible; and
prior to DRRA’s enactment, it was possible for FEMA to enter into lease agreements
when the value of the improvements or repairs exceeded the value of the lease agreement,
provided the necessary written justification was submitted and approved.89
Finally, within two years (i.e., due by October 5, 2020), the Inspector General (IG) of DHS must
assess the use of FEMA’s direct assistance authority, including the adequacy of the benefit-cost
analysis conducted, to justify this alternative to other temporary housing options, and submit a
report to Congress.90
85 42 U.S.C. §5174(c)(1)(B)(ii)(I); see also FEMA, IHPUG, pp. 74-75.
86 FEMA, Recovery Policy: Multi-Family Lease and Repair Program.
87 Email correspondence from FEMA Congressional Affairs staff, May 10, 2019. In the email, FEMA responded that
the bullet that states “‘FEMA will determine the value of the lease agreement by multiplying the approved monthly
Rental Assistance rate by the number of units, and then multiplying the number of months remaining between the date
the repairs are completed and the end of the 18-month period of assistance’ describes how FEMA determines cost
effectiveness. This language will be replaced when we issue our interim policy memo for MLR to implement the
DRRA section 1213 and those changes will also be included in the next version of the IAPPG.”
88 FEMA, IHPUG, pp. 50-51 and 74-75; FEMA, IAPPG, pp. 85-86 and 107-112. CRS contacted FEMA’s Office of
Congressional Affairs to request clarification regarding the three-step test because it is unclear from the IAPPG what
the specific three-step test entails, and how the results are applied to assess cost-effectiveness. In email correspondence
from FEMA Congressional Affairs staff received on May 10, 2019, FEMA responded that “[t]here is no ‘three step test
for MLR.’ That language was included from an earlier version of the document in error. The preceding bullet, ‘FEMA
will determine the value of the lease agreement by multiplying the approved monthly Rental Assistance rate by the
number of units, and then multiplying the number of months remaining between the date the repairs are completed and
the end of the 18-month period of assistance’ describes how FEMA determines cost effectiveness. This language will
be replaced when we issue our interim policy memo for MLR to implement the DRRA section 1213 and those changes
will also be included in the next version of the IAPPG.”
89 FEMA, IHPUG, pp. 74-75.
90 §1213(c) of DRRA, P.L. 115-254.
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Section 1211: State Administration of Assistance for Direct
Temporary Housing and Permanent Housing Construction
The State or Tribal Government’s Role in Providing Direct Temporary
Housing Assistance and Permanent Housing Construction
DRRA Section 1211(a) amends Stafford Act Section 408(f)—Federal Assistance to Individuals
and Households, State Role to expand the types of FEMA Individuals and Households Program
(IHP) assistance that a state, territorial, or Indian tribal government may request to administer
under Stafford Act Section 408(f)(1)(A) to include Direct Temporary Housing Assistance under
Section 408(c)(1)(B) and Permanent Housing Construction under Section 408(c)(4), in addition to
Other Needs Assistance (ONA) under Section 408(e).91 Prior to DRRA’s enactment, Stafford Act
Section 408(f)(1) only allowed state, territorial, and Indian tribal governments to request financial
assistance to manage ONA.92
According to Senate HSGAC’s Disaster Recovery Reform Act of 2018 Report (DRRA Report),
this section of DRRA “emphasizes the need for and provides tools to execute an effective local
response to disasters ... [in part by] empowering states to administer housing assistance efforts.”93
FEMA has also stated that:
[s]tate and tribal officials have the best understanding of the temporary housing needs for
survivors in their communities. This provision incentivizes innovation, cost containment
and prudent management by providing general eligibility requirements while allowing
them the flexibility to design their own programs.94
These statements highlight a key aspect of this amendment to the Stafford Act—that, because the
federal share of eligible housing costs is 100%,95 in effect, FEMA may now provide state,
territorial, and Indian tribal governments with a block grant for disaster housing assistance,
provided certain requirements are met (see below).96 Allowing state, territorial, or Indian tribal
governments to administer these housing programs, in addition to ONA, using a flexible, blockgrant program that “leverag[es] state autonomy”97 “to tailor a solution that specifically addresses
the needs of disaster victims”98 may expedite and enhance disaster recovery.99 Despite these
91 §1211(a)(1) of DRRA, P.L. 115-254, as it amends §408(f)(1)(B) of the Stafford Act, P.L. 93-288, as amended, 42
U.S.C. §5174(f)(1)(B).
92 42 U.S.C. §5174(c)(1)(B)(ii)(I)(aa) (2017).
93 HSGAC, DRRA Report, p. 1; see also §1211(a)(2) of DRRA, P.L. 115-254, as it amends §408(f)(3)(H) of the
Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5174(f)(3)(H). Congress appears to have also intended to
incentivize state, territorial, and Indian tribal participation in administering these programs, as FEMA is required to
submit a report to HSGAC and the House Transportation and Infrastructure Committee on a potential incentive
structure to encourage eligible state, territorial, or Indian tribal governments to participate, including potentially
adjusting the cost-share requirement and management costs.
94 FEMA, “Disaster Recovery Reform Act of 2018 (DRRA) Transforms Field of Emergency Management,” press
release, October 5, 2018, https://www.fema.gov/news-release/2018/10/05/disaster-recovery-reform-act-2018transforms-field-emergency-management.
95 42 U.S.C. §5174(g).
96 HSGAC, DRRA Report, p. 10.
97 HSGAC, DRRA Report, p. 5.
98 House Transportation and Infrastructure, DRRA Report, p. 18.
99 See §1211(a)(2) of DRRA, P.L. 115-254, as it amends §408(f)(3)(G)(i) of the Stafford Act, P.L. 93-288, as amended,
42 U.S.C. §5174(f)(3)(G)(i). The DHS IG is supposed to provide a report to Congress on whether the state, territorial,
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benefits, the ability for state, territorial, or Indian tribal governments to design and administer
customized versions of these programs has the potential to result in challenges. For example:
individuals and households may face challenges to participating in these
programs if application processes and program requirements are not clearly
defined, or if their past participation in these programs differs from future
program implementation;
client advocates and case managers may have trouble supporting individuals and
households seeking to and/or participating in these programs if application
processes and program administration differ from jurisdiction to jurisdiction, or if
a state/territorial/Indian tribal government implements the programs differently
for different disasters;
state, territorial, and Indian tribal governments seeking to administer these
programs may also struggle to administer active programs with different
application processes and program administration requirements, and may find it
difficult to manage programs when future program implementation differs from
past program implementation; and
federal partners supporting state, territorial, and Indian tribal governments may
find it difficult to keep track of application processes and program administration
that differs from jurisdiction to jurisdiction, or when future program
implementation differs from past program implementation.
In addition to the programmatic flexibility accorded by this amendment to the Stafford Act, state,
territorial, or Indian tribal governments that elect to administer housing assistance and/or ONA
under Section 408(f) are eligible to expend up to 5% of the amount of the grant for administrative
costs.100 This may increase their capacity to quickly and effectively administer these programs.101
With the addition of the ability of state, territorial, or Indian tribal governments to administer
Direct Temporary Housing Assistance and Permanent Housing Construction, it is possible that the
state, territorial, or Indian tribal government may be required to select an option for
administration of assistance, as in the case with ONA.102 Within two years of DRRA’s enactment
or Indian tribal government has effectively provided assistance under this section, and the report shall include an
assessment of “whether the State or Indian tribal government’s role helped to improve the general speed of disaster
recovery.” This supports Congress’s intent to expedite disaster recovery in amending this section of the Stafford Act.
100 42 U.S.C. §5174(f)(1)(B).
101 §1211(a)(2) of P.L. 115-254 as it amends §408(f)(3)(G)(ii) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5174(f)(3)(G)(ii). The DHS IG is supposed to provide a report to Congress on whether state, territorial, or Indian
tribal governments have effectively provided assistance under this section, and the report shall include an assessment of
“whether the State or Indian tribal government providing assistance under this section had the capacity to administer
this section.” This, coupled with the ability to expend administrative costs under §408(f)(1)(B), make it appear that
Congress intended to ensure the capacity of the state, territorial, or Indian tribal government to administer the program
in amending this section of the Stafford Act. See also FEMA, “Disaster Recovery Reform Act of 2018 (DRRA)
Transforms Field of Emergency Management,” press release, October 5, 2018, https://www.fema.gov/news-release/
2018/10/05/disaster-recovery-reform-act-2018-transforms-field-emergency-management.
102 44 C.F.R. §206.120; see also FEMA, IHPUG, pp. 91-92; and FEMA, IAPPG, p. 135. FEMA’s regulation on the
provision of ONA requires a state, territorial, or Indian tribal government to select one of three options for
administration of the ONA: the FEMA Option, the Joint Option, or the State, Territorial or Indian Tribal Government
Option. Under the FEMA Option, FEMA is responsible for all tasks associated with the administration of ONA. Under
the State, Territorial, or Indian Tribal Government Option, FEMA provides ONA as a grant to the state, territorial, or
Indian tribal government, which administers ONA. Under the Joint Option, the state, territorial, or Indian tribal
government administers ONA jointly with FEMA, splitting responsibilities for various administrative tasks. FEMA
stated that it is developing a State-Administered Direct Housing Grant Guide that will provide the guidance that
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(i.e., by October 5, 2020), FEMA is required to issue final regulations to establish how a state,
territorial, or Indian tribal government is to administer Direct Temporary Housing Assistance and
Permanent Housing Construction. In the intervening period, FEMA has the ability to administer
this as a pilot program until the final regulations are promulgated (an example of such a
regulation can be found in 44 C.F.R. §206.120—State Administration of Other Needs Assistance,
which sets out the regulations for state administration of ONA).103
New Requirements
In addition to expanding the types of assistance state, territorial, and Indian tribal governments
may administer, DRRA adds requirements for the receipt of approval to administer such
assistance.104 Prior to DRRA’s enactment, in order to administer ONA, a governor had to request
a grant to provide financial assistance.105 Post-DRRA, if a state, territorial, or Indian tribal
government would like to administer Direct Temporary Housing Assistance, Permanent Housing
Construction, and/or ONA, then it must “submit to the President an application for a grant to
provide financial assistance under the program [emphasis added].”106 DRRA also includes criteria
for the approval of applications, as follows:
(i) a requirement that the State or Indian tribal government submit a housing strategy under
subparagraph (C) [Requirement of Housing Strategy];
(ii) the demonstrated ability of the State or Indian tribal government to manage the program
under this section;
(iii) there being in effect a plan approved by the President as to how the State or Indian
tribal government will comply with applicable Federal laws and regulations and how the
State or Indian tribal government will provide assistance under its plan;
(iv) a requirement that the State or Indian tribal government comply with rules and
regulations established pursuant to subsection (j); and
(v) a requirement that the President, or the designee of the President, comply with
subsection (i) [Verification Measures]. 107
Three requirements intended to ensure the state, territorial, or Indian tribal government that seeks
to administer these programs has the capacity to do so, include:108
enables implementation of the pilot program for the administration of Direct Temporary Housing Assistance and
Permanent Housing Construction. The guide is under development as of the date of publication. It is possible that the
guidance may address options for how the state, territorial, and Indian tribal government housing options may be
administered. Email correspondence from FEMA Congressional Affairs staff, May 16, 2019.
103 §1211(a)(2) of DRRA, P.L. 115-254, as it amends §408(f)(3)(J) of the Stafford Act, P.L. 93-288, as amended, 42
U.S.C. §5174(f)(3)(J).
104 §1211(a)(2) of DRRA, P.L. 115-254.
105 42 U.S.C. §5174(f)(1)(A) (2017).
106 §1211(a)(2) of DRRA, P.L. 115-254, as it amends §408(f)(3)(A) of the Stafford Act, P.L. 93-288, as amended, 42
U.S.C. §5174(f)(3)(A).
107 §1211(a)(2) of DRRA, P.L. 115-254, as it amends §408(f)(3)(B) of the Stafford Act, P.L. 93-288, as amended, 42
U.S.C. §5174(f)(3)(B).
108 FEMA, “DRRA Transforms Emergency Management”; see also HSGAC, DRRA Report, p. 1.
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the state, territorial, or Indian tribal government must have an approved housing
strategy, which may encourage the development of disaster housing strategies to
better enable effective local response to disasters;109
the state, territorial, or Indian tribal government must have the demonstrated
ability to manage the program—although it is unclear what evidence may be used
to demonstrate the capacity to manage the housing-related programs (note that
FEMA is developing guidance for the administration of Direct Temporary
Housing and Permanent Housing Construction).110 An approved State
Administrative Plan is a requirement to administer ONA, and FEMA considers
this sufficient to demonstrate the state, territorial, or Indian tribal government’s
capability to manage ONA;111 and
the President or designee shall implement policies, procedures, and internal
controls to prevent “waste, fraud, abuse, and program mismanagement”; it is
possible for the President to withdraw the approval for the state, territorial, or
Indian tribal government to administer Direct Temporary Housing Assistance,
Permanent Housing Construction, or ONA.112
FEMA may need to clarify the application and approval requirements because it is unclear (1)
how concepts such as “waste” and “abuse” are defined in this context; (2) how the determination
that “the State or Indian tribal government is not administering the program ... in a manner
satisfactory to the President” will be made—although DRRA includes a requirement that the DHS
IG periodically audit the programs administered by the state, territorial, or Indian tribal
governments, and these audits may be used to assess program administration;113 and (3) how
program administration will be managed following a withdrawal of approval and/or whether there
will be an opportunity for the state, territorial, or Indian tribal government to remedy any issues
identified with regard to program administration or appeal a decision withdrawing approval.
Within two years of DRRA’s enactment (i.e., by October 5, 2020), FEMA is required to issue
final regulations on the administration of this program, in which FEMA may consider addressing
the administration of the application and approval processes and requirements, including the
requirements for demonstrating the capacity to manage the program, and the process for the
109 §1211(a)(2) of DRRA, P.L. 115-254, as it amends §408(f)(3)(C) of the Stafford Act, P.L. 93-288, as amended, 42
U.S.C. §5174(f)(3)(C).
110 FEMA stated that it is developing a State-Administered Direct Housing Grant Guide that will provide the guidance
that enables implementation of the pilot program for the administration of Direct Temporary Housing Assistance and
Permanent Housing Construction. The guide is under development as of the date of publication. Email correspondence
from FEMA Congressional Affairs staff, May 16, 2019.
111 The State Administrative Plan describes the procedures that will be used to administer ONA. FEMA, IAPPG, p.
137; 44 C.F.R. §206.120(c); email correspondence from FEMA Congressional Affairs staff, May 16, 2019.
112 §1211(a)(2) of DRRA, P.L. 115-254, as it amends §408(f)(3)(D) of the Stafford Act, P.L. 93-288, as amended, 42
U.S.C. §5174(f)(3)(D).
113 §1211(a)(2) of DRRA, P.L. 115-254, as it amends §408(f)(3)(E) of the Stafford Act, P.L. 93-288, as amended, 42
U.S.C. §5174(f)(3)(E). Stafford Act Section 408(f)(3), as amended by DRRA, includes reporting requirements to help
Congress evaluate the effectiveness of the state, territorial, or Indian tribal government in providing assistance under
this section. Specifically, the DHS IG is required to submit a report to HSGAC and the House Transportation and
Infrastructure Committee on the effectiveness of the state, territorial, or Indian tribal government’s role in providing
assistance under this section not later than 18 months after the date of enactment (i.e., due by April 5, 2020). This
report must include information about whether the state, territorial, or Indian tribal government’s role expedited
recovery, whether it had the capacity to administer the program(s), and recommendations to improve the program if the
state, territorial, or Indian tribal government’s role should continue.
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withdrawal of approval and any remedies the state, territorial, or Indian tribal government may
have.114
State and Local Reimbursement for Implementing a Housing Solution
DRRA Section 1211(b) provides a mechanism for state and local units of government to be
reimbursed in the event they do not request a grant to administer housing assistance, if the
solution they implement satisfies several conditions.115 Specifically, DRRA Section 1211(b) notes
that FEMA shall reimburse state and local “units of government” for locally-implemented
housing solutions that meet three requirements, provided the request for reimbursement is
received within a three-year period after a major disaster declaration116 under Stafford Act Section
401—Procedure for Declaration.117 The three requirements are that the solution:
(1) costs 50 percent of comparable FEMA solution or whatever the locally implemented
solution costs, whichever is lower;
(2) complies with local housing regulations and ordinances; and
(3) the housing solution was implemented within 90 days of the disaster. 118
It is unclear how and when a reimbursement will be provided when a housing solution meets the
proper eligibility conditions set forth above. FEMA may issue a new rulemaking and/or policy
guidance to establish how the cost of the locally-implemented solution will be assessed and
compared with the FEMA solution, as well as how reimbursement requests will be processed.
Section 1212: Assistance to Individuals and Households
DRRA Section 1212 amends Stafford Act Section 408(h)—Federal Assistance to Individuals and
Households, Maximum Amount of Assistance—to create separate caps for the maximum amount
of financial assistance eligible individuals and households may receive for housing assistance and
for ONA, and allow for accessibility-related costs. Under FEMA’s IHP, financial assistance (e.g.,
assistance to rent alternate housing accommodations, conduct home repairs, and ONA) and/or
direct assistance (e.g., Multifamily Lease and Repair and TTHUs) may be available to eligible
individuals and households who, as a result of a disaster, have uninsured or under-insured
necessary expenses and serious needs that cannot be met through other means or forms of
assistance.119 Prior to DRRA, an individual or household could receive up to $33,300 (FY2017;
adjusted annually)120 in financial assistance, which included both housing assistance and ONA.121
Post-DRRA, financial assistance for housing-related needs may not exceed $34,900 (FY2019;
114 §1211(a)(2) of DRRA, P.L. 115-254, as it amends §408(f)(3)(J) of the Stafford Act, P.L. 93-288, as amended, 42
U.S.C. §5174(f)(3)(J).
115 §1211(b) of DRRA, P.L. 115-254. Section 1211(a) of DRRA makes it possible for state, territorial, and Indian tribal
governments to request and receive a grant to provide Direct Temporary Housing Assistance and Permanent Housing
Construction, which in the past, FEMA exclusively provided directly to eligible individuals and households.
116 §1211(b) of DRRA, P.L. 115-254.
117 §401 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5170.
118 §1211(b) of DRRA, P.L. 115-254.
119 42 U.S.C. §5174.
120 FEMA, DHS, “Notice of Maximum Amount of Assistance Under the Individuals and Households Program,” 81
Federal Register 70431, October 12, 2016, https://www.govinfo.gov/content/pkg/FR-2016-10-12/pdf/2016-24626.pdf.
121 42 U.S.C. §5174(h) (see versions from 2017 and prior), https://www.govinfo.gov/content/pkg/USCODE-2017title42/pdf/USCODE-2017-title42-chap68-subchapIV-sec5174.pdf.
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adjusted annually),122 and, separate from that, financial assistance for ONA may not exceed
$34,900 (FY2019; adjusted annually).123 Thus, separate caps of equal amounts have been
established for financial housing assistance and ONA. In addition, financial assistance to rent
alternate housing accommodations is not subject to the cap.124 As of the date of this report’s
publication, FEMA’s IAPPG has not been updated to reflect DRRA’s changes to the maximum
amount of financial assistance. It still notes that Rental Assistance is subject to the cap, which has
the potential to create confusion for local, state, territorial, Indian tribal, and federal governments,
nonprofit partners, and other entities that assist disaster survivors seeking to rely on the IAPPG as
a resource for FEMA’s IA policies and procedures.125 However, FEMA has posted a
memorandum on the policy changes to its website,126 and has stated that the changes will be
“incorporated into a subsequent publication of the IAPPG.”127
DRRA Section 1212 also amends Stafford Act Section 408(h) to create exclusions to the
maximum amount of assistance for individuals with disabilities for expenses to repair or replace:
accessibility-related property improvements under FEMA’s Repair Assistance,
Replacement Assistance, and Permanent Housing Construction;128 and
accessibility-related personal property under Financial Assistance to Address
Other Needs—Personal Property, Transportation, and Other Expenses
Assistance.129
Thus, the addition of Stafford Act Section 408(h)(4) may expand the eligibility of individuals
with disabilities for financial assistance.130
In response to the IHP changes post-DRRA, FEMA began processing retroactive payments to
applicants who either reached or exceeded the financial cap for disasters declared on or after
122 FEMA, “Notice of Maximum Amount of Assistance Under the Individuals and Households Program,” 83 Federal
Register 53281, October 22, 2018, https://www.govinfo.gov/content/pkg/FR-2018-10-22/pdf/2018-22884.pdf. Note
that the maximum amount of financial assistance is adjusted annually to reflect changes in the Consumer Price Index
(44 C.F.R. §206.110(b)). Post-DRRA, housing-related needs that are subject to the cap on the maximum amount of
financial assistance an individual or household may be eligible to receive include Home Repair Assistance and Home
Replacement Assistance. Lodging Expense Reimbursement, Rental Assistance, and Continued Rental Assistance are
not subject to the cap. FEMA, “Policy Changes to the Individuals and Households Program resulting from the Disaster
Recovery Reform Act of 2018, Section 1212,” memorandum, March 25, 2019, p. 1, https://www.fema.gov/medialibrary-data/1557238500138-2c015fa2d9c8d73935ea392520d6a068/Chris_Signature_DRRA_1212_Memo_32519.pdf.
123 §1212 of DRRA, P.L. 115-254.
124 §1212 of DRRA, P.L. 115-254; FEMA, “Policy Changes to the Individuals and Households Program,” p. 1; see also
HSGAC, DRRA Report, pp. 10-11.
125 FEMA, IAPPG, p. 80. Although the IAPPG is guidance, and DRRA—as the law—supersedes FEMA’s guidance,
FEMA should work to ensure its guidance aligns with the Stafford Act as amended by DRRA, and the standalone
sections of DRRA that effect programmatic changes, because the IAPPG is intended to serve as a “comprehensive
guide to programs and activities available to the state, territory, tribe, or local government following a disaster”
(FEMA, IAPPG, p. 1).
126 FEMA, “Individual Assistance Program and Policy Guide March 2019 Signed,” https://www.fema.gov/medialibrary/assets/documents/177489.
127 FEMA, “Policy Changes to the Individuals and Households Program,” p. 1.
128 §1212 of DRRA, P.L. 115-254, as it amends §408(h)(4)(A) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5174(h)(4)(A).
129 §1212 of DRRA, P.L. 115-254, as it amends §408(h)(4)(B) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5174(h)(4)(B).
130 FEMA, “DRRA Transforms Emergency Management”; see also HSGAC, DRRA Report, pp. 6 and 10-11.
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August 1, 2017,131 and stated that, in April 2019, it would begin evaluating applications to assess
whether some survivors may be eligible for additional rental assistance, which may enable
eligible applicants to receive additional funds.132 Administrative challenges may arise if eligible
applicants who received the previous maximum amount of financial assistance now request
additional financial assistance for programs to which they did not previously apply. For example,
an eligible applicant may not have requested ONA if their request for Repair Assistance already
equaled or exceeded the cap.
In the past, the combined—housing assistance and ONA—cap on the maximum amount of
financial assistance that an individual or household was eligible to receive may have resulted in
applicants with significant home damage and/or other needs having insufficient funding to meet
their disaster-caused needs, including little to no remaining funding available to pay for rental
assistance. Thus, changes to Stafford Act Section 408(h) post-DRRA have the potential to result
in increased assistance to eligible disaster survivors, and increased federal spending on temporary
disaster housing assistance and ONA.133 This may help to better meet the recovery-related needs
of individuals and households who experience significant damage to their primary residence and
personal property as a result of a major disaster. However, there is also the potential that this
change may disincentivize sufficient insurance coverage because of the new ability for eligible
individuals and households to receive separate and increased housing assistance and ONA awards
that more comprehensively cover disaster-related real and personal property losses.
131 §1202 of DRRA, P.L. 115-254. Amendments to the Stafford Act apply to major disasters and emergencies declared
on or after August 1, 2017.
132 FEMA, “FEMA Bulletin Week of March 18, 2019: FEMA Announces Retroactive Payments to Disaster Survivors,”
press release, March 19, 2019, https://content.govdelivery.com/accounts/USDHSFEMA/bulletins/237ddd7. FEMA’s
website that tracks its implementation of DRRA has included an implementation update for Section 1212, which states
that “[r]etroactive payments began in March 2019” and that it “[a]utomatically applied to new disasters as of April
2019” (FEMA, “Disaster Recovery Reform Act of 2018,” last updated June 11, 2019, https://www.fema.gov/disasterrecovery-reform-act-2018).
133 42 U.S.C. §5174(c)(3); see also 44 C.F.R. §206.119(c)(6)(i) and (d); FEMA, IAPPG, pp. 62 and 159-163; and
FEMA, IHPUG, pp. 23 and 112-114. Financial assistance provided under ONA can also be used to purchase flood
insurance, and the separation of the maximum amount of financial assistance cap for housing and ONA may result in
increased funding to pay for flood insurance, when required. Per the IAPPG and IHPUG, the National Flood Insurance
Reform Act (NFIRA) and FEMA regulations require applicants who receive financial assistance—in the context of the
IHP, this includes Home Repair Assistance, Home Replacement Assistance, Permanent Housing Construction, and/or
Personal Property—to purchase flood insurance for future flood damage to any insurable real or personal property for
acquisition or construction purposes. This applies to property that is, or will be, in a designated Special Flood Hazard
Area (SFHA) and can be insured under the National Flood Insurance Program (NFIP). For IHP purposes, applicants
who live in a designated SFHA and receive IHP assistance must obtain and maintain flood insurance coverage for at
least the amount of disaster assistance they receive from FEMA, and can satisfy this requirement by purchasing private
insurance or a policy through the NFIP. Applicants who do not obtain and maintain flood insurance will be ineligible
for IHP assistance for future flood-damaged real or personal property. Disaster-related expenses covered by ONA may
include the purchase of a Group Flood Insurance Policy (GFIP), provided the cost of the GFIP policy does not exceed
the remaining amount of ONA, per the maximum amount of financial assistance provision. Thus, FEMA may pay $600
under ONA for three years of flood insurance for eligible ONA recipients who experienced flood-damage. FEMA and
the state IHP staff are required to provide the NFIP with records of individuals and households that receive ONA
awards and are to be insured through the GFIP, and those individuals and households are covered unless determined to
be ineligible based on exclusions established by the NFIP (e.g., items that are damaged must be insurable under the
NFIP, and the applicant cannot have a previous flood insurance requirement as a condition of receiving future IHP
assistance). As noted above, applicants are responsible for purchasing flood insurance, regardless of whether the
funding comes out of their ONA award or they personally purchase a policy.
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Section 1216: Flexibility
Discretionary Ability to Waive Debts
DRRA Section 1216(a) allows FEMA to waive debts owed to the United States related to
assistance provided under Stafford Act Section 408—Federal Assistance to Individuals and
Households.134
Federal laws require federal agencies, including FEMA, to identify and recover improper
payments.135 Specifically, the Improper Payments Information Act of 2002 (IPIA, P.L. 107-300)
and the Improper Payments Elimination and Recovery Act of 2010 (IPERA, P.L. 111-204) direct
the head of each federal agency to review and identify all programs and activities administered by
the agency that may be “susceptible to significant improper payments.”136 IPERA also includes
the requirement that the agency take action to collect overpayments.137 Several federal programs
account for a significant portion of improper payments, including FEMA’s IHP.138 The dual—and
sometimes conflicting—goals of (1) expediting FEMA assistance to disaster survivors and (2)
maintaining administrative controls to ensure program eligibility may contribute to improper
payments. Nonetheless, FEMA reviews disaster assistance payments following every disaster and
works to collect overpayments.139
FEMA does have some discretion not to pursue recoupment.140 Additionally, the need for FEMA
to have discretion with regard to recoupment was previously identified—albeit for a limited
period of time. Congressional “concerns about the fairness of FEMA collecting improper
payments caused by FEMA error especially when a significant amount of time had elapsed before
134 §1216(a) of DRRA, P.L. 115-254. FEMA’s website that tracks its implementation of DRRA has included an
implementation update for Section 1216(a) and (b), which states that “FEMA Instruction [was] updated May 14, 2019”
and that “[i]nformation on how to apply for a waiver [was] added to debt letters” (FEMA, “Disaster Recovery Reform
Act of 2018,” last updated June 11, 2019, https://www.fema.gov/disaster-recovery-reform-act-2018).
135 §2(d)(2) of the Improper Payments Information Act of 2002 (IPIA, P.L. 107-300) defines improper payments as
“any payment that should not have been made or that was made in an incorrect amount (including overpayments and
underpayments) ... and includes any payment to an ineligible recipient, any payment for an ineligible service, any
duplicate payment.... ” For more information, see CRS Report R45257, Improper Payments in High-Priority
Programs: In Brief, by Garrett Hatch. Applicable federal laws include the Debt Collection Improvement Act of 1996
(DCIA), IPIA, Improper Payments Elimination and Recovery Act of 2010 (IPERA), and Improper Payments
Elimination and Recovery Improvement Act of 2012 (IPERIA).
136 §2(a) of IPIA, P.L. 107-300; §2(a)(1) of IPERA, P.L. 111-204.
137 §2(h)(E) of IPERA, P.L. 111-204. In addition, the regulatory provisions included in 31 U.S.C. §§3711 et seq.—
Claims of the United States Government—influence how FEMA addresses the recoupment of funding provided to
recipients of Individual Assistance.
138 See U.S. Office of Management and Budget (OMB), Annual Improper Payments Datasets, “Payment Accuracy
2015 Dataset,” https://paymentaccuracy.gov/resources/#data (note: see FY2015 Root Cause Results ($ in millions) tab);
see also OMB, Annual Improper Payments Datasets, “Payment Accuracy 2017 Dataset,” https://paymentaccuracy.gov/
resources/#data (note: see All Program Results tab).
139 FEMA, IAPPG, p. 164; see also IPIA, P.L. 107-300; IPERA, P.L. 111-204; 31 U.S.C. §§3711 et seq. After trying to
collect improperly awarded funds, the FEMA Administrator may seek to collect by administrative offset. 31 U.S.C.
§3701 defines administrative offset as “withholding funds payable by the United States (including funds payable by the
United States on behalf of a State government) to, or held by the United States for, a person to satisfy a claim.”
Additionally, there is no limitation on the period within which an offset may be initiated or taken (31 U.S.C. §3716(a)
and (e)).
140 FEMA, IAPPG, pp. 164-166. Note that “FEMA will not initiate recoupment activity for any potential debt valued
less than $250.00 [because the cost of recovery will exceed the amount owed] unless a significant enforcement
principle is at stake” (e.g., if the assistance was obtained through fraudulent means).
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FEMA provided actual notice to the debtors” led to the passage of the Disaster Assistance
Recoupment Fairness Act of 2011 (DARFA, Division D, Section 565 of the Consolidated
Appropriations Act, 2012, P.L. 112-74).141 DARFA provided FEMA with the discretionary
authority to waive debts arising from improper payments for disasters declared between August
28, 2005, and December 31, 2010—which included Hurricanes Katrina and Rita, as well as other
disasters.142
DRRA Section 1216(a) mirrors the factors included in DARFA. Following DRRA’s enactment,
FEMA may waive a debt related to covered assistance143 if:
distributed in error by FEMA;
there was no fault on behalf of the debtor; and
collection would be “against equity and good conscience.”144
This section is retroactive, and applies to major disasters or emergencies declared on or after
October 28, 2012.145
Thus, DRRA Section 1216(a) expands FEMA’s discretionary ability with regard to debt
collection by authorizing FEMA to waive the collection of a debt as long as the above-listed
factors are also satisfied—the exception is if the debt involves fraud, a false claim, or
141 Department of Homeland Security Office of Inspector General (DHS IG), FEMA’s Efforts to Recoup Improper
Payments in Accordance with the Disaster Assistance Recoupment Fairness Act of 2011 (6), OIG-13-1001, June 2013,
pp. 5-6, https://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-100_Jun13.pdf.
142 Disaster Assistance Recoupment Fairness Act of 2011 (DARFA, Division D, §565 of the Consolidated
Appropriations Act, 2012, P.L. 112-74). The State of Louisiana received a major disaster declaration for Hurricane
Katrina on August 29, 2005 (see FEMA, Louisiana Hurricane Katrina (DR-1603), last updated November 1, 2005,
https://www.fema.gov/disaster/1603). During this period, FEMA made improper payments totaling more than $418.3
million (as estimated by FEMA), and FEMA determined there was “sufficient justification” not to recoup improper
payments totaling approximately $225 million; however, the DHS IG found that FEMA lacked adequate
documentation for $58 million of the $225 million (DHS IG, FEMA’s Efforts to Recoup, p. 3). Still, the DHS IG found
that FEMA’s use of its discretionary authority to recoup improper payments in accordance with DARFA was cost
effective given the circumstances (noting, however, that it would have been more cost effective to attempt to recoup
from all debtors who received improper payments) (DHS IG, FEMA’s Efforts to Recoup, p. 6.), because FEMA
collected more from debtors who did not meet the DARFA requirements than the agency expended on DARFA-related
activities (DHS IG, FEMA’s Efforts to Recoup, pp. 5-6).
143 §1216(a)(1) of DRRA, P.L. 115-254. The term covered assistance refers to assistance provided under Stafford Act
Section 408—Federal Assistance to Individuals and Households in relation to a major disaster or emergency that is
declared by the President under Stafford Act Sections 401—Procedure for Declaration (Major Disaster) or 501—
Procedure for Declaration (Emergency), respectively, on or after October 28, 2012 (note that this date differs from that
included in DRRA §1216(b)(2)).
144
§1216(a)(2) of DRRA, P.L. 115-254.
145 FEMA, “Disaster Declarations by Year: Major Disaster Declaration,” 2012, last accessed May 6, 2019,
https://www.fema.gov/disasters/year/2012?field_dv2_declaration_type_value=DR; see also FEMA, “Disaster
Declarations by Year: Emergency Declaration,” 2012, last accessed May 6, 2019, https://www.fema.gov/disasters/year/
2012?field_dv2_declaration_type_value=EM. The application of this section to major disasters or emergencies
declared on or after October 28, 2012, includes the major disaster declarations for Hurricane Sandy in New York (DR4085), New Jersey (DR-4086), and Connecticut (DR-4087), which were declared on October 29, 2012; as well as
Rhode Island (DR-4089), which was declared on November 2, 2012; Delaware (DR-4090), which was declared on
November 15, 2012; Maryland (DR-4091), which was declared on November 19, 2012; Virginia (DR-4092), which
was declared on November 25, 2012; West Virginia (DR-4093), which was declared on November 26, 2012; and New
Hampshire (DR-4095), which was declared on November 27, 2012. It also applies to some, but not all, of the
emergency declarations for Hurricane Sandy, including in Pennsylvania (EM-3356), which was declared on October
28, 2012.
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misrepresentation by the debtor or party having an interest in the claim.146 However, if FEMA’s
distributions of covered assistance based on federal agency error exceed 4% of the total amount
of covered assistance distributed in any 12-month period, then the DHS IG, charged with
monitoring the distribution of covered assistance, shall remove FEMA’s waiver authority based
on an excessive error rate.147 That said, according to the House Transportation and Infrastructure
Committee’s DRRA Report, “FEMA has implemented controls to avoid improper payments ...
[and] FEMA’s current error rate for improper payments to individuals is less than two percent.”148
It is unclear how FEMA will review and process waivers of improper payments, although FEMA
may use the DHS IG’s recommendations—put forth post-DARFA—for reviewing and processing
future debt recoupment cases as outlined in its FEMA’s Efforts to Recoup Improper Payments in
Accordance with the Disaster Assistance Recoupment Fairness Act of 2011 report.149 FEMA may
also consider issuing a rulemaking and/or policy guidance to
require that FEMA’s comprehensive quality assurance review procedures apply
to the review of recoupment cases, per the DHS IG’s recommendation;150
establish an audit trail for FEMA waiver of recoupment decisions, per the DHS
IG’s recommendation;151 and
clarify the considerations for approving a waiver (e.g., defining the
circumstances under which collection of the debt would be “against equity and
good conscience”), which may be especially important given that disaster
survivors may face financial hardship if required to repay assistance that they
have already spent on recovering from a disaster.152
Prohibition on Collecting Certain Assistance
DRRA Section 1216(b) restricts FEMA’s ability to recoup assistance provided under Stafford Act
Section 408—Federal Assistance to Individuals and Households.153 Specifically, Section 1216(b)
states:
146 §1216(a)(2)(B) of DRRA, P.L. 115-254. In order to be eligible for the Individuals and Households Program, an
applicant—whether the person is an owner or renter—must prove that they occupied the disaster-damaged primary
residence in order to receive temporary housing assistance and some types of ONA (see FEMA, IAPPG, pp. 52-54).
Thus, providing false documentation to FEMA in order to get the agency to incorrectly verify the applicant’s
occupancy would be an example of fraud/false claim/misrepresentation by the applicant.
147 §1216(a)(3) of DRRA, P.L. 115-254.
148 House Transportation and Infrastructure, DRRA Report, p. 18.
149 The DHS IG found that recipients who were granted waivers by FEMA pursuant to DARFA did not always have
adequate support to justify the waiver. The DHS IG went on to state that, in order to improve its quality control for
processing such cases in the future, “FEMA needs to ensure its adjudicators adequately assess debt cases for
inconsistencies; check and compare the debt to other registrations for duplication of benefits; and ensure proof of
occupancy, primary residence and other areas that were prime causes for improper payments.” FEMA must also
“improve its tracking of disaster assistance cases,” including maintaining records and documentation for each
registrant, and “improve its quality assurance assessment plans for reviewing recoupment cases.” DHS IG, FEMA’s
Efforts to Recoup, pp. 4, 8, and 9.
150 DHS IG, FEMA’s Efforts to Recoup, p. 11.
151 DHS IG, FEMA’s Efforts to Recoup, p. 11.
152 House Transportation and Infrastructure, DRRA Report, p. 28; see also §1216(a)(2)(A) of DRRA, P.L. 115-254.
153 §1216(b) of DRRA, P.L. 115-254. FEMA’s website that tracks its implementation of DRRA has included an
implementation update for Section 1216(a) and (b), which states that “FEMA Instruction [was] updated May 14, 2019”
and that “[i]nformation on how to apply for a waiver [was] added to debt letters” (FEMA, “Disaster Recovery Reform
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unless there is evidence of civil or criminal fraud, [FEMA] may not take any action to
recoup covered assistance ...154 if the receipt of such assistance occurred on a date that is
more than 3 years before the date on which the Agency first provides to the recipient written
notification of an intent to recoup [emphasis added].
This section is retroactive, and applies to major disasters or emergencies declared on or after
January 1, 2012.155
According to the House Transportation and Infrastructure Committee’s DRRA Report, this
provision “will help ensure that FEMA initiates any collection actions as quickly as possible,
reduce administrative costs, and provide more certainty to individuals recovering from
disasters.”156 FEMA stated that the agency’s understanding of this provision is that it establishes a
three-year statute of limitations on the agency’s ability to recoup debts provided under IHP.157
Despite apparent congressional158 and agency intent, FEMA’s guidance states that:
[w]hile there is no statute of limitations on initiating recoupment of IHP debt owed to the
U.S. Government through administrative means, FEMA’s goal is to notify applicants of
any potential debt owed within three years after the date of the final IHP Assistance
payment. FEMA’s failure to meet this goal will not preclude it from initiating recoupment
of potential debt when otherwise appropriate.... FEMA may notify applicants of any
potential debt beyond three years after the date of the final IHP Assistance payment in
cases where it considers recovery of funds to be in the best interest of the Federal
government.... 159
Congress may require FEMA to update its guidance to reflect DRRA Section 1216(b).
Additionally, the legislative language in DRRA Section 1216(b) may result in confusion when
interpreting whether the section is discretionary or mandatory. This is because the legislation
Act of 2018”).
154 §1216(b)(2) of DRRA, P.L. 115-254. The term covered assistance refers to assistance provided under Stafford Act
Section 408—Federal Assistance to Individuals and Households in relation to a major disaster or emergency that is
declared by the President under Stafford Act Sections 401—Procedure for Declaration (Major Disaster) or 501—
Procedure for Declaration (Emergency), respectively, on or after January 1, 2012 (note that this date differs from that
included in DRRA §1216(a)(1)).
155 FEMA, “Disaster Declarations: Major Disaster,” 2012; FEMA, “Disaster Declarations: Emergency,” 2012. The
application of this section to major disasters or emergencies declared on or after January 1, 2012, includes the
emergency and major disaster declarations for Hurricanes Isaac and Sandy, as well as other significant incidents that
occurred in 2012, including severe storms, tornadoes, straight-line winds, flooding, wildfires, and winter storms.
156 House Transportation and Infrastructure, DRRA Report, p. 18. With regard to DRRA Section 1216(b), according to
both HSGAC’s DRRA Report and the House Transportation and Infrastructure Committee’s DRRA Report, the
Government Accountability Office (GAO) reported that “about 3 percent of the approximately $1.6 billion spent by
FEMA for individual assistance between 2012 and 2014 for Hurricane Sandy relief were improper or fraudulent,” and
the Congressional Budget Office (CBO) estimated that less than 5% of improper payments made to individuals and
households between 2012 and 2014 were the result of fraud (HSGAC, DRRA Report, pp. 22-23; House Transportation
and Infrastructure, DRRA Report, pp. 27-28). Thus, using recoupment rate information from FEMA, the CBO estimates
that approximately $30 million in improper payments can no longer be collected (note: the estimate is about $27
million per the HSGAC, DRRA Report, and $30 million per the House Transportation and Infrastructure, DRRA
Report), but this has no net effect on direct spending over the 2019-2028 period because the amounts would have been
available to FEMA for future disaster relief payments and fewer collections reduce outlay (HSGAC, DRRA Report, pp.
22-23 (note, however, that there is a $1 million cost over the 2019-2023 period because spending lags recoupment));
House Transportation and Infrastructure, DRRA Report, p. 28 (note that House Transportation and Infrastructure notes
that the $1 million cost is over the period of 2019-2022)).
157 Telephone conversation coordinated with FEMA Office of Congressional Affairs staff, May 9, 2019.
158 House Transportation and Infrastructure, DRRA Report, p. 18.
159 FEMA, IAPPG, p. 170.
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states that FEMA “may not take any action to recoup covered assistance ... ”—as opposed to
FEMA “shall not take any action to recoup covered assistance.... ” Thus, confusion may exist
despite the apparent congressional intent that FEMA should not be able to take any action to
recoup covered assistance three years after its receipt and the fact that FEMA has stated it
interprets the provision as being mandatory.160 One action available to Congress is to clarify,
through legislation, that this section is mandatory (if that is the intent of Congress) in order to
avoid potential ambiguity when interpreting the law.
An additional consideration with regard to this provision is that the three-year window to recoup
IHP payments will be different for each award to an individual/household, and this will likely
pose an administrative challenge for FEMA given the volume of awards provided under the IHP
program.
Statute of Limitations—Public Assistance
DRRA Section 1216(c) amends Stafford Act Section 705—Disaster Grant Closeout Procedures to
change how the statute of limitations for Public Assistance (PA)161 is defined. Prior to DRRA’s
enactment, the statute of limitations on FEMA’s ability to recover payments made to a state or
local government was three years after the date of transmission of the final expenditure report for
the disaster or emergency.162 DRRA amends the statute of limitations such that no administrative
action to recover payments can be initiated “after the date that is 3 years after the date of
transmission of the final expenditure report for project completion as certified by the grantee
[emphasis added].”163 Additionally, this provision applies retroactively to disaster or emergency
assistance provided on or after January 1, 2004, and any pending administrative actions were
terminated as of the date of DRRA’s enactment, if prohibited under Stafford Act Section
705(a)(1), as amended by DRRA.164
It may take years to close all of the projects associated with a disaster, and, prior to DRRA,
FEMA could recoup funding from projects that may have been completed and closed years prior
to FEMA’s pursuit of funding because the disaster was still open. This post-DRRA project-byproject statute of limitations is a significant change that has the potential to ease the
administrative and financial burden that the management of disaster recovery programs places on
state, territorial, and Indian tribal governments because it creates certainty as to the projects that
may be subject to recoupment. It may also incentivize the timely closeout of PA projects by state
and local governments, which may also ease FEMA’s administrative and financial burdens.
160 Telephone conversation coordinated with FEMA Office of Congressional Affairs staff, May 9, 2019.
161 §1216(c) of DRRA, P.L. 115-254, as it amends §705 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5205.
162 42 U.S.C. §5205(a)(1) (2017), https://www.govinfo.gov/content/pkg/USCODE-2017-title42/pdf/USCODE-2017title42-chap68-subchapV-sec5205.pdf.
163 42 U.S.C. §5205(a)(1).
164 §1216(c) of DRRA, P.L. 115-254, as it amends §705(a)(1) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5205(a)(1).
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Floodplain Management and Flood Insurance165
Section 1206(a): Eligibility for Code Implementation and
Enforcement
DRRA Section 1206(a) amends Stafford Act Section 402—General Federal Assistance166 to allow
state and local governments to use general federal assistance funds for the administration and
enforcement of building codes and floodplain management ordinances, including inspections for
substantial damage167 compliance. If a building in a Special Flood Hazard Area (SFHA)168 is
determined to be substantially damaged, it must be brought into compliance with local floodplain
management standards. Local communities can require the building to be rebuilt to current
floodplain management requirements even if the property previously did not need to do so. For
instance, the new compliance standard may require the demolition and elevation of the rebuilt
building to above the Base Flood Elevation.169
FEMA does not make a determination of substantial damage; this is the responsibility of the local
government, generally by a building department official or floodplain manager. Similarly, the
enforcement of building codes and floodplain management ordinances are the responsibility of
local government. Particularly following a major flood, communities may be required to assess a
large number of properties at the same time, and, as a result, additional resources may be needed.
This provision affords an additional source of funding to support communities in carrying out
such activities.
Section 1207(b): Program Improvements
DRRA Section 1207(b) amends Stafford Act Section 406(d)(1)—Repair, Restoration, and
Replacement of Damaged Facilities170 to provide relief from a reduction in disaster assistance for
certain public facilities and private nonprofit facilities with multi-structure campuses which were
damaged by disasters in 2016 to 2018. Applicants for Public Assistance (PA) for repair,
restoration, reconstruction, and replacement are required to obtain flood insurance on damaged
insurable facilities (buildings, equipment, contents, and vehicles) as a condition of receiving PA
grant funding. Insurance coverage must be subtracted from all applicable PA grants in order to
avoid duplication of financial assistance. In addition, the applicant must maintain flood insurance
on these facilities in order to be eligible for PA funding in future disasters, whether or not a
facility is in the SFHA. If an eligible insurable facility damaged by flooding is located in a SFHA
that has been identified for more than one year and the facility is not covered by flood insurance
or is underinsured, FEMA will reduce the amount of eligible PA funding for flood losses in the
SFHA by the maximum amount of insurance proceeds that would have been received had the
165 This section authored by Diane P. Horn, Analyst in Flood Insurance and Emergency Management, Government and
Finance Division, Federalism and Emergency Management Section.
166 42 U.S.C. §5170a.
167 44 C.F.R. §59.1 defines substantial damage as damage of any origin sustained by a structure in a Special Flood
Hazard Area (SFHA) whereby the cost of restoring the structure to its before-damaged condition would equal or exceed
50% of the structure’s market value before the damage occurred.
168 An SFHA is defined by FEMA as an area with a 1% or greater risk of flooding every year.
169 The Base Flood Elevation is the elevation of surface water resulting from a flood that has a 1% chance of being
equaled or exceeded in any given year.
170 42 U.S.C. §5172(d)(1).
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buildings and contents been fully covered by a standard National Flood Insurance Program
(NFIP) policy. For nonresidential buildings, this is currently a maximum of $500,000 for contents
and $500,000 for the building.171 The Stafford Act previously required that this reduction in
disaster assistance should be applied to each individual building in the case of multi-unit
campuses, which could result in a significant reduction in PA funding for entities with uninsured
multi-structure campuses.
The new provision in DRRA provides that the reduction in assistance shall not apply to more than
one building of a multi-structure educational, law enforcement, correctional, fire, or medical
campus. This amendment applies to disasters declared between January 1, 2016, and December
31, 2018. This means that organizations without flood insurance that had Public Assistance
funding reduced under the pre-DRRA Stafford Act provisions will have funding restored for
floods such as the 2016 Louisiana floods, and Hurricanes Matthew, Harvey, Irma, Maria, and
Florence.
Section 1240: Report on Insurance Shortfalls
DRRA Section 1240 requires FEMA to submit a report to Congress not later than two years after
enactment, and each year after until 2023, on Public Assistance self-insurance shortfalls. As
described in “Section 1207(b): Program Improvements,” applicants for PA for repair, restoration,
reconstruction, and replacement in an SFHA are required to obtain flood insurance on damaged
insurable facilities as a condition of receiving PA grant funding, and maintain insurance on these
facilities in order to be eligible for PA funding in future disasters. However, an applicant may
apply in writing to FEMA to use a self-insurance plan to comply with the insurance requirement.
The details required for the self-insurance plan are set out in FEMA guidance.172 The DHS IG has
issued four reports on applicants’ compliance with PA insurance requirements that have identified
concerns with applicant compliance with these requirements and FEMA’s tracking of applicants’
compliance.173 However, these reports have not focused specifically on self-insurance. The new
reports under DRRA Section 1240 will include information on the number of instances and the
estimated amounts involved, by state, in which self-insurance amounts have been insufficient to
address flood damages.
171 See CRS Report R44593, Introduction to the National Flood Insurance Program (NFIP), by Diane P. Horn and
Baird Webel.
172 See FEMA, Public Assistance Policy on Insurance, FP 206-086-1, Washington, DC, June 29, 2015, pp. 1-11,
https://www.fema.gov/media-library-data/1436442397459-a1a4197f9528308d6d190ceb14418327/FP206-0861_PublicAssistancePolicyInsurance_062915.pdf.
173 See DHS IG, Compliance with Public Assistance Program’s Insurance Purchase Requirement, I-01-01,
Washington, DC, January 2001; DHS IG, FEMA’s Process for Tracking Public Assistance Insurance Requirements,
OIG-12-18, Washington, DC, December 2011, https://www.oig.dhs.gov/assets/Mgmt/OIG_12-18_Dec11.pdf; DHS IG,
Verification Review: FEMA’s Lack of Process for Tracking Public Assistance Insurance Requirements Places Billions
of Tax Dollars at Risk, OIG-17-50-VR, Washington, DC, June 9, 2017, https://www.oig.dhs.gov/sites/default/files/
assets/2017/OIG-17-50-VR-Jun17.pdf; and DHS IG, Special Report: Lessons Learned from Previous Audit Reports on
Insurance Under the Public Assistance Program, OIG-18-12, Washington, DC, November 7, 2017,
https://www.oig.dhs.gov/sites/default/files/assets/2017-11/OIG-18-12-Nov17.pdf.
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Other Provisions
Section 1224: Agency Accountability174
DRRA Section 1224 amends Title IV of the Stafford Act to establish a new section, Section
430—Agency Accountability, addressing public assistance, mission assignments, disaster relief
monthly reports, contracts, and the collection of public assistance recipient and subrecipient
contracts.175
Subsection (a) of the new Stafford Act Section 430, established by DRRA Section 1224, requires
the FEMA Administrator to publish on the FEMA website award information for grants awarded
under Stafford Act Section 406—Repair, Restoration, and Replacement of Damaged Facilities in
excess of $1,000,000. For each such grant, FEMA shall provide the following information:
FEMA region;
declaration number;
whether the grantee is a private nonprofit organization;
damage category code;
amount of the federal share obligated; and
the date of the award.
Prior to DRRA’s enactment, FEMA did not publish contract information on the FEMA website.
Stafford Act Section 430(d) requires the FEMA Administrator to publish information about each
contract executed by FEMA in excess of $1,000,000 on the FEMA website within the first 10
days of each month. For each such contract, FEMA shall provide the following information:
contractor name;
date of contract award;
amount and scope of the contract;
whether the contract was competitively bid;
whether and why there was a no competitive bid;
the authority used to bypass competitive bidding if applicable;
declaration number; and
the damage category code.
Section 430(d) also requires the FEMA Administrator to provide a report to the appropriate
congressional committees on the number of contracts awarded without competition, reasons why
there was no competitive bidding process, total amount of the no-competition contracts, and the
applicable damage category codes for such contracts.
Section 430(e) requires the FEMA Administrator to initiate efforts to maintain and store
information on contracts entered into by a Public Assistance recipient or subrecipient of funding
through Stafford Act Sections 324—Management Costs, 403—Essential Assistance, 404—
Hazard Mitigation, 406—Repair, Restoration, and Replacement of Damaged Facilities, 407—
Debris Removal, 428—Public Assistance Program Alternative Procedures, and 502—Federal
174 This section authored by Natalie Keegan, Analyst in American Federalism and Emergency Management Policy,
Government and Finance Division, Federalism and Emergency Management Section.
175 §1224 of DRRA, P.L. 115-254, adding a new §430 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5189h.
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Emergency Assistance for contracts with an estimated value of more than $1,000,000. Collected
contract information shall include the following:
disaster number;
project worksheet number;
category of work;
name of contractor;
date of the contract award;
amount of the contract;
scope of the contract;
period of performance for the contract; and
whether the contract was awarded through a competitive bid process.
The FEMA Administrator is required to make such collected information available to the DHS
IG, the Government Accountability Office (GAO), and appropriate congressional committees
upon request.176 The FEMA Administrator is also required to submit a report to relevant
committees within 365 days of DRRA’s enactment on the efforts of FEMA to collect the required
contract information (i.e., by October 5, 2019).177 Prior to DRRA’s enactment, FEMA did not
appear to have comprehensive contract information to make available upon request and did not
submit annual reports to Congress regarding collection of such information.
Section 1221: Closeout Incentives178
DRRA Section 1221 amends Stafford Act Section 705—Disaster Grant Closeout Procedures to
authorize the FEMA Administrator to develop incentives and penalties relating to grant closeout
activities to encourage grantees to close out disaster-related expenditures on a timely basis.179
DRRA Section 1221 also requires the FEMA Administrator to improve closeout practices and
reduce the time between awarding a grant under Stafford Act provisions and closing out
expenditures for the award. The FEMA Administrator is also directed to issue regulations relating
to facilitating grant closeout. Prior to DRRA’s enactment, FEMA had discretion to engage in
activities that would incentivize or penalize grantees for delayed closeouts. This provision made
such activities a requirement rather than at FEMA’s discretion. Congress designed Section 1221
to improve the timeliness of closeout procedures by limiting or preventing delays in the process.
Section 1225: Audit of Contracts180
DRRA Section 1225 prohibits the FEMA Administrator from reimbursing grantees for any
activities made pursuant to a contract entered into after August 1, 2017, that prohibits the FEMA
176 §1224 of DRRA, P.L. 115-254, adding §430 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5189h.
177 §1224 of DRRA, P.L. 115-254, adding §430 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5189h.
178 This section authored by Natalie Keegan, Analyst in American Federalism and Emergency Management Policy,
Government and Finance Division, Federalism and Emergency Management Section.
179 §1221 of DRRA, P.L. 115-254, as it amends §705 of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C. §5205.
180 This section authored by Natalie Keegan, Analyst in American Federalism and Emergency Management Policy,
Government and Finance Division, Federalism and Emergency Management Section.
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Administrator or the Comptroller General of the United States from auditing or reviewing all
aspects relating to the contract.181
Section 1237: Certain Recoupment Prohibited182
DRRA Section 1237 directs FEMA to “deem any covered disaster assistance to have been
properly procured, provided, and utilized, and shall restore any funding of covered disaster
assistance previously provided but subsequently withdrawn or deobligated.”183 “Covered disaster
assistance” is defined as assistance provided to a local government under Stafford Act Sections
403—Essential Assistance, 406—Repair, Restoration, and Replacement of Damaged Facilities, or
407—Debris Removal in which the DHS IG has made a determination, through an audit, that the
following conditions were present:
(A) the Agency deployed to the local government a Technical Assistance Contractor to
review field operations, provide eligibility advice, and assist with day-to-day decisions;
(B) the Technical Assistance Contractor provided inaccurate information to the local
government; and
(C) the local government relied on the inaccurate information to determine that relevant
contracts were eligible, reasonable, and reimbursable.184
Section 1210: Duplication of Benefits185
DRRA Section 1210 amends Stafford Act Section 312(b) by providing the President the authority
to waive the prohibition on duplication of benefits (upon a gubernatorial request) if the “waiver is
in the public interest and will not result in waste, fraud, or abuse.” When making the waiver
decision, the President may consider (1) recommendations from the Administrator of FEMA or
other agencies administering the duplicative program; (2) if granted, whether the assistance is
cost effective; (3) “equity and good conscience”; and (4) “other matters of public policy
considered appropriate by the President.”186
Duplication of benefits has been an ongoing issue of congressional concern and DRRA Section
1210 is the most recent attempt to reduce hardships caused by duplication of benefits recoupment.
Individuals and households often need to use multiple sources of assistance to fully recover from
a major disaster. If the assistance exceeds their unmet disaster needs, then the assistance is
considered a “duplication of benefits.” Stafford Act Section 312(a)—Duplication of Benefits
prohibits the “financial assistance to persons, business concerns, or other entities suffering losses
as a result of a major disaster or emergency ... [for] which he has received financial assistance
under any other program or from insurance or any other source.”187 Stafford Act Section 312(c)
states that the recipient of duplicative assistance is liable to the United States and that the agency
181 §1225 of DRRA, P.L. 115-254.
182 This section authored by Natalie Keegan, Analyst in American Federalism and Emergency Management Policy,
Government and Finance Division, Federalism and Emergency Management Section.
183 §1237 of DRRA, P.L. 115-254.
184 §1237(b)(2) of DRRA, P.L. 115-254.
185 This section authored by Bruce R. Lindsay, Analyst in American National Government, Government and Finance
Division, Federalism and Emergency Management Section.
186 DRRA Section 1210 applies to any emergency or major disaster declared under the Stafford Act between January 1,
2016, and December 31, 2021.
187 42 U.S.C. §5155.
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that provided the duplicative assistance is responsible for debt collection. The federal duplication
of benefits policy is intended to prevent waste, fraud, and abuse of program assistance.188
44 C.F.R. §206.191 provides procedural guidance known as a “delivery sequence” to prevent the
duplication of benefits between federal assistance programs such as FEMA’s Individuals and
Households Program and the Small Business Administration’s (SBA’s) Disaster Loan Program,
state assistance programs, other assistance programs (e.g., volunteer programs), and insurance
benefits (see Figure 1). An organization’s position within the delivery sequence determines the
order in which it should provide assistance and what other resources need to be considered before
that assistance is provided. The regulation requires individuals to repay all duplicated assistance
to the agency providing the assistance based on the delivery sequence hierarchy that outlines the
order assistance should be provided. Critics have argued that the delivery sequence lacks
specificity. For example, the U.S. Department of Housing and Urban Development’s (HUD’s)
Community Development Block Grant—Disaster Recovery (CDBG-DR) Program, which is often
duplicated with other assistance sources, is not listed in the delivery sequence.
Figure 1. Delivery Sequence
44 C.F.R. §206.191(d)(2)
Source: Based on CRS interpretation of 44 C.F.R. §206.191.
Note: Housing assistance under Section 408—Federal Assistance to Individuals and Households includes
assistance to individuals and households who are displaced from their pre-disaster primary residences or whose
pre-disaster primary residences are rendered uninhabitable, or with respect to individuals with disabilities,
rendered inaccessible or uninhabitable as a result of a major disaster. Section 408 includes temporary housing
assistance, as well as repairs. Other Needs Assistance (ONA) under Section 408 includes both SBA-dependent
and non-SBA-dependent ONA. SBA-dependent ONA may be available for applicants who do not qualify for an
SBA disaster loan, or whose loan amount is insufficient; this type of ONA includes personal property,
transportation, and moving and storage assistance. Non-SBA-dependent ONA includes financial assistance for
188 For more information on duplication of benefits, see CRS Report R44553, SBA and CDBG-DR Duplication of
Benefits in the Administration of Disaster Assistance: Background, Policy Issues, and Options for Congress, by Bruce
R. Lindsay and Eugene Boyd.
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medical, dental, funeral, childcare, and miscellaneous expenses. Cora Brown of Kansas City, MO, died in 1977.
She left a portion of her estate to the United States to be used as a special fund to relieve human suffering
caused by natural disasters. For more information on the Cora Brown Fund, see https://www.fema.gov/medialibrary-data/1434639028239-341e17807cb06b0bf000d21cc7552b2c/CoraBrown-FactSheet-final508.pdf.
However, in addition to prohibiting duplication of benefits, Stafford Act Section 312 also
stipulates that assistance cannot be withheld. Section 312(b)(1) states:
this section shall not prohibit the provision of federal assistance to a person who is or may
be entitled to receive benefits for the same purposes from another source if such person has
not received such other benefits by the time of application for federal assistance and if such
person agrees to repay all duplicative assistance to the agency providing the federal
assistance.189
The delivery sequence, therefore, is not rigid—it can be broken in certain cases. The most
common example is when adhering to the delivery sequence prevents the timely receipt of
essential assistance. In some cases, assistance can be provided more quickly by an organization or
agency that is lower in the sequence than an agency or organization that is at a higher level. For
example, SBA disaster loans can generally be processed more quickly than FEMA grants; CDBGDR grants take longer still because CDBG-DR disaster funding generally requires Congress to
pass an appropriation. Once appropriated, the funding is usually released to the state in the form
of a block grant, which is then disbursed by the state to disaster survivors.190
The underlying rationale for providing assistance when it becomes immediately available instead
of rigidly adhering to the delivery sequence is to make sure disaster survivors receive aid as
quickly as possible. Advocates of this view argue that preventing duplication of benefits is of
secondary importance—it can be rectified and recouped later. This practice, however, has led to
problems, particularly for individuals and households. In some cases, the federal government may
fail to identify the duplication. In others cases, it may take a prolonged period of time to identify
the duplication and the recoupment notification that they owe money to the federal government
may come as a surprise to disaster survivors who did not realize they exceeded their allowable
assistance. In some cases they may have spent all of the assistance on recovery, and repaying
duplicative assistance constitutes a financial burden to the disaster survivor.
One of the most significant changes instituted by DRRA Section 1210 is that it prohibits the
President from determining loans as duplicative assistance provided all federal assistance is used
toward loss resulting from an emergency or major disaster under the Stafford Act. This arguably
removes SBA disaster loans from the delivery sequence. However, the rulemaking on this policy
has not been issued. Thus, it remains to be seen how this provision of DRRA will be
implemented.
Finally, DRRA Section 1210(a)(5) requires the FEMA Administrator, in coordination with
relevant federal agencies, to provide a report with recommendations to improve “the
comprehensive delivery of disaster assistance to individuals following a major disaster or
emergency declaration.” The report must include (1) actions planned or taken by the agencies as
well as legislative proposals to improve coordination between agencies with respect to delivering
disaster assistance; (2) a clarification of the delivery sequence; (3) a clarification of federal-wide
interpretation of Stafford Act Section 312 when providing assistance to individuals and
households; and (4) recommendations to improve communication to disaster assistance
189 42 U.S.C. §5155.
190 For more information on CDBG-DR, see CRS Report RL33330, Community Development Block Grant Funds in
Disaster Relief and Recovery, by Eugene Boyd.
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applicants, including the breadth of programs available and the potential impacts of utilizing one
program versus another.191
Section 1239: Cost of Assistance Estimates; Section 1232: Local
Impact192
DRRA Section 1239—Cost of Assistance Estimates and Section 1232—Local Impact both
require FEMA to review and initiate a rulemaking to update the factors considered when
evaluating a governor’s request for a major disaster declaration, including how FEMA estimates
the cost of major disaster assistance. They also require FEMA to consider anything that may
affect a local jurisdiction’s capacity to respond to a disaster. Section 1232 in particular requires
FEMA to give greater consideration to severe local impact or recent multiple disasters.
Both sections address the way FEMA has made major disaster recommendations to Presidents.
FEMA uses factors about the severity of the incident (including how the state was affected by the
incident) to assess the state’s need for federal assistance.193 The estimated cost of assistance (also
known as the per capita threshold) has been a key factor used by FEMA to evaluate the disaster’s
severity and to determine if the state has the capacity to handle the disaster without federal
assistance. Two thresholds are used for estimated cost of assistance: (1) $1 million in public
infrastructure damages and (2) a formula based on the state’s population (according to the most
recent census data) and public infrastructure damages. Based on these thresholds, FEMA has
generally recommended that a major disaster be declared if public infrastructure damages exceed
$1 million and meet or exceed $1.50 per capita.194
The underlying rationale for using a per capita threshold is that state fiscal capacity should be
sufficient to deal with the disaster if damages and costs fall under the per capita amount.
However, concerns related to relying on the per capita threshold include that:
the per capita threshold may be difficult to reach for some states. For example, a
rural area in a highly populated state may be denied federal disaster assistance
because damages and costs do not exceed the per capita threshold;
these incidents still warrant federal assistance because they overwhelm local
response and recovery capacity in spite of not exceeding the statewide threshold;
and
the application of the per capita threshold is inequitable because the same
incident may affect multiple states but only result in a major disaster declaration
for some states by virtue of differences in state population.
Pursuant to DRRA Section 1239, within two years of DRRA’s enactment (i.e., by October 5,
2020), FEMA is required to initiate a rulemaking to update the factors considered when
evaluating a governor’s request for a major disaster declaration, including how the cost of
assistance is estimated, as well as other impacts on the jurisdiction’s response capacity. As part of
191 DRRA Section 1216, P.L. 115-254.
192 This section authored by Bruce R. Lindsay, Analyst in American National Government, Government and Finance
Division, Federalism and Emergency Management Section.
193 For more information about the factors, see CRS Report R44977, Preliminary Damage Assessments for Major
Disasters: Overview, Analysis, and Policy Observations, by Bruce R. Lindsay.
194 FEMA, “Notice of Adjustment of Statewide per Capita Impact Indicator,” 83 Federal Register 53279, October 22,
2018, last accessed July 15, 2019, https://www.govinfo.gov/content/pkg/FR-2018-10-22/pdf/2018-22888.pdf.
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the review and rulemaking, FEMA may consider whether the per capita threshold is an
appropriate mechanism for evaluating capacity, and additional information, such as the results of
the 2020 U.S. Census, may factor into the final rule. DRRA Section 1232 also requires FEMA to
adjust agency policy and regulations to grant greater consideration to severe local impact or
recent multiple disasters, which may enable jurisdictions that struggle to reach the per capita
threshold to provide evidence supporting the request for a major disaster declaration as no single
factor is dispositive and the determination to grant a request for a major disaster is at the
President’s discretion.
FEMA currently uses nine factors to evaluate a state or territory’s request for a major disaster
declaration (see Table 2).195 To some, these factors entail a more nuanced evaluation of major
disaster requests by assessing both damages and state and local resources. However, it appears
that the per capita threshold is still being applied to determine the “amount and type of damages
caused by the incident.” If that is the case, per capita damages may still figure more prominently
than other factors—such as local impacts—when making major disaster declaration
recommendations to the President.
Table 2. Factors for Major Disaster Recommendations
The Amount and Type of Damages Caused by the
Incident
The Impact of the Damages on Affected Individuals, the
State, and Local Governments
The Available Resources of the State and Local
Governments and Other Disaster Relief Organizations
The Extent and Type of Insurance in Effect to Cover
the Losses
Assistance Available from other Federal Programs and
other Sources
Imminent Threats to Public Health and Safety
Recent Disaster History in the State
Hazard Mitigation measures taken by the State or Local
Governments (especially implementation of measures
required as a result of previous major disaster
declarations)
Other Pertinent Factors
Source: Based on CRS interpretation of FEMA Revised Regulations as of October 1, 2017, 44 C.F.R.
§206.37(c)(1).
Section 1219: Right of Arbitration196
DRRA Section 1219 amends Stafford Act Section 423—Appeals of Assistance Decisions to add a
right of arbitration.197 Per Stafford Act Section 423, applicants for assistance have the right to
195 44 C.F.R. §206.37(c)(1).
196 This section authored by Elizabeth M. Webster, Analyst in Emergency Management and Disaster Recovery,
Government and Finance Division, Federalism and Emergency Management Section.
197 §1219(c) of DRRA, P.L. 115-254, as it amends §423(d) of the Stafford Act, P.L. 93-288, as amended, 42 U.S.C.
§5189a(d).
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appeal decisions regarding “eligibility for, from, or amount of assistance” within 60 days after
receiving notification of award or denial of award.198 FEMA then has to render a decision within
90 days of receiving a notice of appeal.199 Prior to DRRA, the appeal process outlined in the
Stafford Act only provided a way for FEMA to review its own decisions, and did not include a
way for applicants to bring claims before an independent arbiter. The need for arbitration,
however, was recognized by Congress200 following Hurricanes Katrina and Rita, which made
landfall in 2005, due to disputes that arose from public assistance payments under Stafford Act
Sections 403—Essential Assistance, 406—Repair, Restoration, and Replacement of Damaged
Facilities, and 407—Debris Removal.201 Post-Hurricanes Katrina and Rita, the arbitration process
was established pursuant to the authority granted under Section 601 of the American Recovery
and Reinvestment Act of 2009 (ARRA, P.L. 111-5).202
Notwithstanding any other provision of law, the President shall establish an arbitration
panel under the Federal Emergency Management Agency public assistance program to
expedite the recovery efforts from Hurricanes Katrina and Rita within the Gulf Coast
Region. The arbitration panel shall have sufficient authority regarding the award or denial
of disputed public assistance applications for covered hurricane damage under section 403,
406, or 407 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5170b, 5172, or 5173) for a project the total amount of which is more than
$500,000.203
FEMA’s public assistance appeal process remains in effect following DRRA’s enactment. In
addition, post-DRRA a right of arbitration has been added to Stafford Act Section 423 under the
authority granted under ARRA Section 601.204 Applicants, which are states in the context of this
section, may request arbitration in order to “dispute the eligibility for assistance or repayment of
assistance provided for a dispute of more than $500,000 for any disaster that occurred after
January 1, 2016.”205 (Applicants in rural areas are eligible to pursue arbitration if the amount of
assistance is $100,000.206) FEMA’s Public Assistance Appeals and Arbitration Under the
Disaster Recovery Reform Act fact sheet notes that applicants may file a second appeal or request
arbitration pursuant to Section 423(d) either (1) within 60 days after receipt of the first appeal
198 44 C.F.R. §206.206(c); see also 42 U.S.C. §5189a(a).
199 44 C.F.R. §206.206(c)(3); see also 42 U.S.C. §5189a(b).
200 General Provisions—This Title, §601 of P.L. 111-5; see also Bill Barrow, “Landrieu Says Hurricane Relief
Arbitration Panel Coming Within Weeks,” The Times-Picayune, June 1, 2009, https://www.nola.com/politics/2009/06/
landrieu_says_hurricane_relief.html.
201 For example, when Charity Hospital, located in New Orleans, LA, was severely damaged, a dispute between FEMA
and the grantee arose because the grantee felt replacement of the hospital was needed, rather than repair. Arbitration to
settle the dispute then occurred before the Civilian Board of Contract Appeals (CBCA), per the arbitration process, and
the Arbitration Agreement was the complete resolution of all claims regarding Charity Hospital. FEMA, “Appeal
Timeliness: Second Appeal Brief, PA ID# 025-70275-00; LSU Health Care Services Division Medical Center of
Louisiana at New Orleans, PW ID# RPA; Appeal Timeliness,” Appeal Brief, October 23, 2017, https://www.fema.gov/
appeal/319671; see also FEMA, “Appeal Timeliness: Second Appeal Analysis, PA ID# 025-70275-00; LSU Health
Care Services Division Medical Center of Louisiana at New Orleans, PW ID# RPA; Appeal Timeliness,” Appeal
Analysis, October 23, 2017, https://www.fema.gov/appeal/319671?appeal_page=analysishttps://www.fema.gov/appeal/
319671.
202 42 U.S.C. §5189a(d)(5)(A).
203 General Provisions—This Title, §601 of P.L. 111-5.
204 42 U.S.C. §5189a(d); see also General Provisions—This Title, §601 of P.L. 111-5.
205 42 U.S.C. §5189a(d)(1).
206 42 U.S.C. §5189a(d)(3) and (4). As defined in this section, the term rural area means an area with a population of
less than 200,000 outside an urbanized area.
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decision (if the decision is not appealed or arbitration is not requested, then the first level appeal
decision becomes the final agency determination and the applicant no longer has a right to appeal
or arbitrate); or (2) at any time after 180 days of filing a first level appeal if the applicant has not
received a decision from the agency—in which case they may withdraw the first level appeal and
request Section 423 arbitration.207
In the event an applicant requests arbitration, the Civilian Board of Contract Appeals (CBCA)
will conduct the arbitration, and their decision shall be binding.208 FEMA has stated that the
Agency intends to “initiate rulemaking to implement Section 423 arbitration and revise 44 C.F.R.
§206.206,” including amending regulations that provide for only a first and second level appeal
process.209 In the interim, FEMA has stated that it will rely on the Public Assistance Appeals and
Arbitration Under the Disaster Recovery Reform Act fact sheet and the CBCA’s Interim Fact
Sheet.210 The CBCA published proposed rules of procedure to implement Section 423 arbitration
in the Federal Register on March 5, 2019.211 Additionally, while new regulations are being
promulgated, FEMA will provide information on how applicants may request either a second
level appeal or arbitration when FEMA provides first level appeal denials for disputes arising
from declarations for disasters occurring after January 1, 2016.212
There is disagreement regarding whether the arbitration process expedites dispute resolution. The
House Transportation and Infrastructure Committee’s DRRA Report states that the CBCA panel
provides a faster resolution, citing that arbitration was used as a tool for resolving disputes
following both Hurricanes Katrina and Sandy to facilitate recovery.213 FEMA, however, in an
207 FEMA, Public Assistance Appeals and Arbitration Under the Disaster Recovery Reform Act, fact sheet, March
2019, https://www.fema.gov/media-library-data/1553698031170-126e5dcfa4f1a27b799475831c5168df/
Section1219ArbitrationFactSheet3.27.19final.pdf.
208 42 U.S.C. §5189a(d)(1); see also 44 C.F.R. §206.209.
209 FEMA, Public Assistance Appeals and Arbitration Under the Disaster Recovery Reform Act, fact sheet.
210 FEMA, Public Assistance Appeals and Arbitration Under the Disaster Recovery Reform Act, fact sheet. The CBCA
“Interim Fact Sheet on Arbitration of Public Assistance Eligibility or Repayment Under 42 U.S.C. §5189a(d)” is
available at https://cbca.gov/files/FEMA-interim-fact-sheet.pdf.
211 Civilian Board of Contract Appeals, General Services Agency, “Civilian Board of Contract Appeals; Rules of
Procedure of the Civilian Board of Contract Appeals,” 84 Federal Register 7861-7864, March 5, 2019,
https://www.govinfo.gov/content/pkg/FR-2019-03-05/pdf/2019-03873.pdf.
212 FEMA, Public Assistance Appeals and Arbitration Under the Disaster Recovery Reform Act, fact sheet.
213 House Transportation and Infrastructure, DRRA Report, p. 18. In addition to the establishment of an arbitration
panel following Hurricane Katrina per ARRA, Section 1105—Dispute Resolution Pilot Program—of the Sandy
Recovery Improvement Act of 2013 (SRIA, Division B of P.L. 113-
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