§ 5172. Repair, restoration, and replacement of damaged facilities

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(a)Contributions

(1)In general The President may make contributions—

(A)to a State or local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster and for associated expenses incurred by the government; and

(B)subject to paragraph (3), to a person that owns or operates a private nonprofit facility damaged or destroyed by a major disaster for the repair, restoration, reconstruction, or replacement of the facility and for associated expenses incurred by the person.

(2)Associated expenses For the purposes of this section, associated expenses shall include—

(A)the costs of mobilizing and employing the National Guard for performance of eligible work;

(B)the costs of using prison labor to perform eligible work, including wages actually paid, transportation to a worksite, and extraordinary costs of guards, food, and lodging;

(C)base and overtime wages for the employees and extra hires of a State, local government, or person described in paragraph

(1)that perform eligible work, plus fringe benefits on such wages to the extent that such benefits were being paid before the major disaster; and

(D)base and overtime wages for extra hires to facilitate the implementation and enforcement of adopted building codes for a period of not more than 180 days after the major disaster is declared.

(3)Conditions for assistance to private nonprofit facilities

(A)In general The President may make contributions to a private nonprofit facility under paragraph (1)(B) only if—

(i)the facility provides critical services (as defined by the President) in the event of a major disaster; or

(ii)the owner or operator of the facility—

(I)has applied for a disaster loan under section 636(b) of title 15; and

(aa)has been determined to be ineligible for such a loan; or

(bb)has obtained such a loan in the maximum amount for which the Small Business Administration determines the facility is eligible.

(B)Definition of critical services In this paragraph, the term “critical services” includes power, water (including water provided by an irrigation organization or facility), sewer, wastewater treatment, communications (including broadcast and telecommunications), education, and emergency medical care.

(C)Religious facilities A church, synagogue, mosque, temple, or other house of worship, educational facility, or any other private nonprofit facility, shall be eligible for contributions under paragraph (1)(B), without regard to the religious character of the facility or the primary religious use of the facility. No house of worship, educational facility, or any other private nonprofit facility may be excluded from receiving contributions under paragraph (1)(B) because leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice.

(4)Notification to Congress Before making any contribution under this section in an amount greater than $20,000,000, the President shall notify—

(A)the Committee on Environment and Public Works of the Senate;

(B)the Committee on Transportation and Infrastructure of the House of Representatives;

(C)the Committee on Appropriations of the Senate; and

(D)the Committee on Appropriations of the House of Representatives.

(b)Federal share

(1)Minimum Federal share Except as provided in paragraph (2), the Federal share of assistance under this section shall be not less than 75 percent of the eligible cost of repair, restoration, reconstruction, or replacement carried out under this section.

(2)Reduced Federal share The President shall promulgate regulations to reduce the Federal share of assistance under this section to not less than 25 percent in the case of the repair, restoration, reconstruction, or replacement of any eligible public facility or private nonprofit facility following an event associated with a major disaster—

(A)that has been damaged, on more than one occasion within the preceding 10-year period, by the same type of event; and

(B)the owner of which has failed to implement appropriate mitigation measures to address the hazard that caused the damage to the facility.

(3)Increased Federal share

(A)Incentive measures The President may provide incentives to a State or Tribal government to invest in measures that increase readiness for, and resilience from, a major disaster by recognizing such investments through a sliding scale that increases the minimum Federal share to 85 percent. Such measures may include—

(i)the adoption of a mitigation plan approved under section 5165 of this title;

(ii)investments in disaster relief, insurance, and emergency management programs;

(iii)encouraging the adoption and enforcement of 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 chapter for the purpose of protecting the health, safety, and general welfare of the buildings’ users against disasters;

(iv)facilitating participation in the community rating system; and

(v)funding mitigation projects or granting tax incentives for projects that reduce risk.

(B)Comprehensive guidance Not later than 1 year after February 9, 2018, the President, acting through the Administrator, shall issue comprehensive guidance to State and Tribal governments regarding the measures and investments, weighted appropriately based on actuarial assessments of eligible actions, that will be recognized for the purpose of increasing the Federal share under this section. Guidance shall ensure that the agency’s review of eligible measures and investments does not unduly delay determining the appropriate Federal cost share.

(C)Report One year after the issuance of the guidance required by subparagraph (B), the Administrator shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report regarding the analysis of the Federal cost shares paid under this section.

(D)Savings clause Nothing in this paragraph prevents the President from increasing the Federal cost share above 85 percent.

(c)Large in-lieu contributions

(1)For public facilities

(A)In general In any case in which a State or local government determines that the public welfare would not best be served by repairing, restoring, reconstructing, or replacing any public facility owned or controlled by the State or local government, the State or local government may elect to receive, in lieu of a contribution under subsection (a)(1)(A), a contribution in an amount equal to the Federal share of the Federal estimate of the cost of repairing, restoring, reconstructing, or replacing the facility and of management expenses.

(B)Use of funds Funds contributed to a State or local government under this paragraph may be used—

(i)to repair, restore, or expand other selected public facilities;

(ii)to construct new facilities; or

(iii)to fund hazard mitigation measures that the State or local government determines to be necessary to meet a need for governmental services and functions in the area affected by the major disaster.

(C)Limitations Funds made available to a State or local government under this paragraph may not be used for—

(i)any public facility located in a regulatory floodway (as defined in section 59.1 of title 44, Code of Federal Regulations (or a successor regulation)); or

(ii)any uninsured public facility located in a special flood hazard area identified by the Administrator of the Federal Emergency Management Agency under the National Flood Insurance Act of 1968 (42 U.S.C. 4001 et seq.).

(2)For private nonprofit facilities

(A)In general In any case in which a person that owns or operates a private nonprofit facility determines that the public welfare would not best be served by repairing, restoring, reconstructing, or replacing the facility, the person may elect to receive, in lieu of a contribution under subsection (a)(1)(B), a contribution in an amount equal to the Federal share of the Federal estimate of the cost of repairing, restoring, reconstructing, or replacing the facility and of management expenses.

(B)Use of funds Funds contributed to a person under this paragraph may be used—

(i)to repair, restore, or expand other selected private nonprofit facilities owned or operated by the person;

(ii)to construct new private nonprofit facilities to be owned or operated by the person; or

(iii)to fund hazard mitigation measures that the person determines to be necessary to meet a need for the person’s services and functions in the area affected by the major disaster.

(C)Limitations Funds made available to a person under this paragraph may not be used for—

(i)any private nonprofit facility located in a regulatory floodway (as defined in section 59.1 of title 44, Code of Federal Regulations (or a successor regulation)); or

(ii)any uninsured private nonprofit facility located in a special flood hazard area identified by the Administrator of the Federal Emergency Management Agency under the National Flood Insurance Act of 1968 (42 U.S.C. 4001 et seq.).

(d)Flood insurance

(1)Reduction of Federal assistance If a public facility or private nonprofit facility located in a special flood hazard area identified for more than 1 year by the Administrator pursuant to the National Flood Insurance Act of 1968 (42 U.S.C. 4001 et seq.) is damaged or destroyed, after the 180th day following November 23, 1988, by flooding in a major disaster and such facility is not covered on the date of such flooding by flood insurance, the Federal assistance which would otherwise be available under this section with respect to repair, restoration, reconstruction, and replacement of such facility and associated expenses shall be reduced in accordance with paragraph (2). This section shall not apply to more than one building of a multi-structure educational, law enforcement, correctional, fire, or medical campus, for any major disaster or emergency declared by the President under section 5170 or 5191, respectively, of this title on or after January 1, 2016, through December 31, 2018.

(2)Amount of reduction The amount of a reduction in Federal assistance under this section with respect to a facility shall be the lesser of—

(A)the value of such facility on the date of the flood damage or destruction, or

(B)the maximum amount of insurance proceeds which would have been payable with respect to such facility if such facility had been covered by flood insurance under the National Flood Insurance Act of 1968 on such date.

(3)Exception Paragraphs

(1)and

(2)shall not apply to a private nonprofit facility which is not covered by flood insurance solely because of the local government’s failure to participate in the flood insurance program established by the National Flood Insurance Act.

(4)Dissemination of information The President shall disseminate information regarding the reduction in Federal assistance provided for by this subsection to State and local governments and the owners and operators of private nonprofit facilities who may be affected by such a reduction.

(e)Eligible cost

(1)Determination

(A)In general For the purposes of this section, for disasters declared on or after August 1, 2017, or a disaster in which a cost estimate has not yet been finalized for a project, or for any project for which the finalized cost estimate is on appeal, the President shall estimate the eligible cost of repairing, restoring, reconstructing, or replacing a public facility or private nonprofit facility—

(i)on the basis of the design of the facility as the facility existed immediately before the major disaster;

(ii)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 that may be eligible for assistance under this chapter for the purposes of protecting the health, safety, and general welfare of a facility’s users against disasters (including floodplain management and hazard mitigation criteria required by the President or under the Coastal Barrier Resources Act (16 U.S.C. 3501 et seq.)); and

(iii)in a manner that allows the facility to meet the definition of resilient developed pursuant to this subsection.

(B)Cost estimation procedures

(i)In general Subject to paragraph (2), the President shall use the cost estimation procedures established under paragraph

(3)to determine the eligible cost under this subsection.

(ii)Applicability The procedures specified in this paragraph and paragraph

(2)shall apply only to projects the eligible cost of which is equal to or greater than the amount specified in section 5189 of this title.

(C)Contributions Contributions for the eligible cost made under this section may be provided on an actual cost basis or on cost-estimation procedures.

(2)Modification of eligible cost

(A)Actual cost greater than ceiling percentage of estimated cost In any case in which the actual cost of repairing, restoring, reconstructing, or replacing a facility under this section is greater than the ceiling percentage established under paragraph

(3)of the cost estimated under paragraph (1), the President may determine that the eligible cost includes a portion of the actual cost of the repair, restoration, reconstruction, or replacement that exceeds the cost estimated under paragraph (1).

(B)Actual cost less than estimated cost

(i)Greater than or equal to floor percentage of estimated cost In any case in which the actual cost of repairing, restoring, reconstructing, or replacing a facility under this section is less than 100 percent of the cost estimated under paragraph (1), but is greater than or equal to the floor percentage established under paragraph

(3)of the cost estimated under paragraph (1), the State or local government or person receiving funds under this section shall use the excess funds to carry out cost-effective activities that reduce the risk of future damage, hardship, or suffering from a major disaster.

(ii)Less than floor percentage of estimated cost In any case in which the actual cost of repairing, restoring, reconstructing, or replacing a facility under this section is less than the floor percentage established under paragraph

(3)of the cost estimated under paragraph (1), the State or local government or person receiving assistance under this section shall reimburse the President in the amount of the difference.

(C)No effect on appeals process Nothing in this paragraph affects any right of appeal under section 5189a of this title.

(3)Expert panel

(A)Establishment Not later than 18 months after October 30, 2000, the President, acting through the Administrator of the Federal Emergency Management Agency, shall establish an expert panel, which shall include representatives from the construction industry and State and local government.

(B)Duties The expert panel shall develop recommendations concerning—

(i)procedures for estimating the cost of repairing, restoring, reconstructing, or replacing a facility consistent with industry practices; and

(ii)the ceiling and floor percentages referred to in paragraph (2).

(C)Regulations Taking into account the recommendations of the expert panel under subparagraph (B), the President shall promulgate regulations that establish—

(i)cost estimation procedures described in subparagraph (B)(i); and

(ii)the ceiling and floor percentages referred to in paragraph (2).

(D)Review by President Not later than 2 years after the date of promulgation of regulations under subparagraph

(C)and periodically thereafter, the President shall review the cost estimation procedures and the ceiling and floor percentages established under this paragraph.

(E)Report to Congress Not later than 1 year after the date of promulgation of regulations under subparagraph (C), 3 years after that date, and at the end of each 2-year period thereafter, the expert panel shall submit to Congress a report on the appropriateness of the cost estimation procedures.

(4)Special rule In any case in which the facility being repaired, restored, reconstructed, or replaced under this section was under construction on the date of the major disaster, the cost of repairing, restoring, reconstructing, or replacing the facility shall include, for the purposes of this section, only those costs that, under the contract for the construction, are the owner’s responsibility and not the contractor’s responsibility.

(5)New rules

(A)In general Not later than 18 months after October 5, 2018, the President, acting through the Administrator of the Federal Emergency Management Agency, and in consultation with the heads of relevant Federal departments and agencies, shall issue a final rulemaking that defines the terms “resilient” and “resiliency” for purposes of this subsection.

(B)Interim guidance Not later than 60 days after October 5, 2018, the Administrator shall issue interim guidance to implement this subsection. Such interim guidance shall expire 18 months after October 5, 2018, or upon issuance of final regulations pursuant to subparagraph (A), whichever occurs first.

(C)Guidance Not later than 90 days after the date on which the Administrator issues the final rulemaking under this paragraph, the Administrator shall issue any necessary guidance related to the rulemaking.

(D)Report Not later than 2 years after October 5, 2018, the Administrator shall submit to Congress a report summarizing the regulations and guidance issued pursuant to this paragraph.

(Pub. L. 93–288, title IV, § 406, as added Pub. L. 100–707, title I, § 106(b), Nov. 23, 1988, 102 Stat. 4699; amended Pub. L. 106–390, title II, § 205(a)–(d)(1), (e), Oct. 30, 2000, 114 Stat. 1562–1564, 1566; Pub. L. 109–295, title VI, § 689h, Oct. 4, 2006, 120 Stat. 1453; Pub. L. 109–347, title VI, § 609, Oct. 13, 2006, 120 Stat. 1942; Pub. L. 111–351, § 3(c)(2), Jan. 4, 2011, 124 Stat. 3864; Pub. L. 114–111, § 2(b), Dec. 18, 2015, 129 Stat. 2240; Pub. L. 115–123, div. B, title VI, §§ 20604(b), 20606, Feb. 9, 2018, 132 Stat. 86; Pub. L. 115–254, div. D, §§ 1206(b), 1207(a), (b), 1235(b)–(d), Oct. 5, 2018, 132 Stat. 3440, 3463, 3464.)

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