Public Assistance Guide

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Chapter 2: Eligibility

Table of Contents Foreword Acronyms Chapters: 1 - 2 - 3 - 4 - 5

Governing Documents
The PA Program is based on a hierarchy of statute, regulations, and policies. The statute is the federal law that authorizes the program. From the statute, regulations are published to further define program scope, and policies are written to apply the statute and regulations to specific situations. These authorities govern the eligibility criteria through which the Federal Emergency Management Agency (FEMA) provides funds for Public Assistance.

Additional statutes, Executive Orders (EOs), regulations, and policies that affect the administration of the PA Program are described in Chapter 4.

Statutes
Statutes are laws passed by the U.S. Congress and signed by the President. They cannot be changed by FEMA or any other government agency. The law that authorizes the PA Program is the Stafford Act (Appendix A). The basic provisions outlined in the Stafford Act:

  • give the President the authority to administer Federal disaster assistance;

  • define the scope and eligibility criteria of the major disaster assistance programs;

  • authorize grants and direct assistance to the States; and

  • define the minimum Federal cost-sharing levels.

Regulations
Regulations are rules designed to implement a statute based on an agency's interpretation of that statute. FEMA rules provide procedural and eligibility requirements for program operations. Typically, they are published through an official process that allows for public comment. Regulations have the same effect as law and must be complied with once they are published in final form. The regulations governing the PA Program, outlining program procedures, eligibility, and funding, are published in Title 44 of the Code of Federal Regulations (CFR) Part 206, Subparts C and G-L (Appendix B). Additionally, regulations regarding grant administration and allowable costs can be found in 44 CFR Part 13 (Appendix C) - Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.

Policies
Policies are issued by FEMA Headquarters. They clarify or provide direction for specific situations that arise in the implementation of Stafford Act provisions and various regulations that apply to the PA Program. Policies may be subject-specific (for example, applying eligibility criteria to landslides) or specific to a single disaster (for example, FEMA Policy 9524.1, Welded Steel Moment Frame Policy that was originally developed for the Northridge Earthquake). FEMA issues policies so that the regulations are interpreted consistently across the nation and from disaster to disaster. Policies are published in publications such as this and in the 9500 series policy publications. They can be obtained through the following sources:

The remainder of this chapter discusses the basic eligibility criteria for Public Assistance funding, as outlined in the governing documents. These criteria are presented in terms of the following four components: applicant, facility, work, and cost. These sometimes are referred to as the four building blocks.

Applicant
Following a disaster declaration by the President and a designation for Public Assistance grant funding by FEMA, assistance for response and recovery operations is made available to eligible applicants. Four types of entities are eligible applicants: State governments, local governments, Indian Tribes or authorized Tribal organizations and Alaskan Native Villages, and PNP organizations. Applicants that are successful in obtaining assistance are formally identified as subgrantees. In common usage, the terms "applicant" and "subgrantee" are often used interchangeably.

State and Local Governments
State and local government agencies are eligible applicants for Public Assistance. Examples of State departments include transportation, environmental resources, parks and recreation, air and water quality, and solid waste and hazardous materials. A multitude of local governments are eligible, including towns, cities, counties, municipalities, townships, local public authorities, councils of governments, regional and interstate government entities, agencies or instrumentalities of local governments, special districts or regional authorities organized under State law, school districts, and rural or unincorporated communities represented by the State or a political subdivision of the State. (See FEMA Policy 9521.5, Eligibility of Charter Schools.)

The general principle for eligibility is that the facilities must be open to the public. If a local governmental entity forms a non-profit organization under IRS 501(c), the new entity is defined as a PNP organization for treatment under the PA Program.

Indian Tribes
Federally recognized Indian Tribal governments, including Alaska Native villages and organizations, are eligible applicants. Privately owned Alaska Native corporations are not eligible applicants. (See FEMA Policy 9521.4, Administering American Indian and Alaska Native Tribal Government Funding.)

Generally Indian Tribes are considered applicants or subgrantees and receive grant funds from the State (Grantee). In some States, however, State regulations prohibit the State from acting as Grantee for an Indian Tribe. In such cases or upon their own choice, the Tribal government may act as its own Grantee. The Tribe must apply to the FEMA RA to become its own Grantee.

An Indian Tribal government that chooses to act as its own Grantee becomes responsible for the entire non-Federal share of the Public Assistance grant. In addition, the Tribal government will be required to comply with the following conditions in order to receive funding:

  • meet all requirements placed on a grantee in accordance with 44 CFR Part 13;

  • execute a formal FEMA-Tribal Agreement similar to the FEMA-State Agreement; and

  • develop and submit a PA Administrative Plan similar to the State Administrative Plan.

PNP Organizations
PNP organizations that own or operate facilities that provide certain services of a governmental nature are eligible for assistance. These organizations, their facilities, and their services must meet additional eligibility criteria beyond those that apply to governmental applicants. (See FEMA Policy 9521.3, Private Nonprofit Facility (PNP) Eligibility.)

Qualifying PNPs are those that provide education, medical, custodial care, emergency, utility, certain irrigation facilities, and other essential governmental services. Essential governmental services are:

  • museums;

  • performing arts facilities;

  • community arts centers;

  • zoos;

  • community centers;

  • libraries;

  • homeless shelters;

  • rehabilitation facilities;

  • senior citizen centers;

  • shelter workshops; and

  • health and safety services of a governmental nature, such as:

    • low-income housing;

    • alcohol and drug treatment centers;

    • residences and other facilities offering programs for battered spouses;

    • facilities offering food programs for the needy; and

    • daycare centers for children or those individuals with special needs (such as those with Alzheimer's disease, autism, and muscular dystrophy).

With the exception of educational, emergency, medical, and custodial care facilities, an eligible facility is only the location from which the qualifying service is delivered. Eligible PNPs are identified in 44 CFR §206.221(e), summarized in the list of PNP Facilities, and further described under PNP Eligible Services.

In order to be eligible for Public Assistance, PNP organizations are required by law and regulation to provide certain types of services and to follow special procedures. PNP organizations must have an effective ruling letter from the Internal Revenue Service at the time of the disaster granting tax exemption under Sections 501(c), (d), or (e) of the Internal Revenue Code, or satisfactory evidence from the State that the organization is a non-revenue producing, nonprofit entity organized or doing business under State law. Further, the specific facility for which the PNP organization is requesting funding must be used primarily for an eligible purpose consistent with the services identified above and, generally, be open to the public.

Certain types of PNPs are not required to be open to the public. These are educational, utility, emergency, medical, or custodial care services, as further defined in 44 CFR §206.221(e). For instance, a school run by a religious-oriented PNP that restricts enrollment to students of a particular religious faith will be eligible for assistance if the school is primarily used for secular educational purposes. All other types of PNPs are required to be open to the public. These include eligible irrigation facilities as well as those providing certain essential governmental services to the general public as defined in 44 CFR §206.221(e)(7).

Examples of ineligible PNPs are those restricted to:

  • a certain number of people in the community; or

  • members that have a financial interest in the facility, such as a condominium association.

To be open to the general public, access to the use of PNP services must not be restricted. Membership requirements or restrictions on services that do not disqualify PNPs for Public Assistance include:

  • fees that cover only administrative processing costs;

  • fees that can be waived upon demonstration of need; or

  • restriction to a group of users where at least one parameter is open ended, such as all youth under age 16.

Application Requirements for PNPs
Emergency Work. All PNPs that are eligible for FEMA assistance, as described above and in 44 CFR §206.221(e), apply directly to FEMA through the State for emergency assistance under 44 CFR §206.225.

Permanent Work. Eligible PNPs seeking reimbursement from FEMA for permanent repairs and restoration apply for disaster assistance according to the following requirements, depending on whether their facility is deemed to provide "critical" or "non-critical" services by the Stafford Act:

  • Critical services are defined as those providing power, water, sewer, wastewater treatment, communications, education, and emergency medical, fire protection, and emergency services. PNPs that provide critical services apply to FEMA through the State for permanent repair and restoration assistance. All other PNPs are considered to provide "non-critical" services and must follow the application process described below. PNPs that provide critical services may have damaged facilities that do not provide critical services, e.g., auditoriums. When critical and non-critical services share a single facility, the PNP is not required to apply to the Small Business Administration (SBA) for a repair loan for the facility.

  • Non-critical services are those that do not qualify as critical service facilities. PNPs with non-critical services must first apply to the SBA for a low-interest loan for repair of disaster damages.

The SBA loan application process for "non-critical" PNP services will generate one of three outcomes:

  1. If the PNP is declined for an SBA loan, then the PNP may apply to FEMA for Public Assistance.

  2. If the SBA loan fully covers eligible damages from the disaster event, then no assistance from FEMA is available.

  3. If the maximum loan for which the facility is eligible does not fully cover damage eligible under the PA Program, then the PNP may apply to FEMA for the difference.

If an applicant applies for an SBA loan, is approved, and opts not to take the loan, the applicant still may be eligible for funding by FEMA for the difference between the SBA loan and eligible costs.

PNPs providing either critical or non-critical services should submit claims to insurance carriers and apply to FEMA for uncovered emergency assistance (debris clearance and emergency protective measures). The requirement to apply for an SBA loan only applies to PNPs with non-critical services seeking assistance for permanent repair or restoration of damaged facilities.

PNPs with facilities that provide non-critical services (see PNP Facilities) are responsible for taking these actions as soon as possible after a disaster has damaged their facilities:

  1. Apply for FEMA assistance. It is important that a PNP apply to FEMA immediately after a disaster so that FEMA can inspect the disaster damages and prepare a Project Worksheet (PW). The PW will be held by FEMA until a loan decision is made by the SBA.

  2. Apply for a disaster loan from the SBA. If an SBA loan is declined or does not fully cover the damage eligible under the PA Program, the PNP may be eligible for FEMA assistance. In such cases, FEMA may not be able to fairly estimate the damages unless the PNP had applied to FEMA shortly after the disaster occurred (see A above).

When a PNP receives a loan determination from the SBA and the loan has been declined or will not fully cover the damages, the PNP should immediately notify the State and the State should immediately notify FEMA in order to reactivate the PNP's request for Public Assistance. The SBA typically provides FEMA a copy of the loan determination, but the PNP must notify FEMA of its intention to seek disaster assistance.

Figure 1 depicts the application process for PNP applicants.

Figure 1 is a flowchart depicting the application process for PNP Applicants, from determination of eligibility to obligation of eligible PWs.

PNP Eligible Services
PNP Education. Educational institutions are defined in terms of primary, secondary, and higher education schools. For primary and secondary schools, an educational institution is a day or residential school that provides primary and secondary education as determined under State law. This generally means that the school satisfies State requirements for compulsory attendance. For higher education facilities, an educational institution is defined as an institution in any State that:

  • admits as students persons having a high school diploma or equivalent;

  • is legally authorized to provide education beyond the secondary level;

  • awards a bachelor's degree or a two-year degree that is acceptable as full credit towards a bachelor's degree;

  • is a public or PNP institution; and

  • is accredited by a nationally recognized agency or association (as determined by the Secretary of Education). The PA Group Supervisor should consult with FEMA's Office of Chief Counsel (OCC) for institutions that are not accredited.

A higher education institution is also defined as any school that provides not less than a one-year training program to prepare students for gainful employment in a recognized occupation and that meets the provisions of the criteria set forth in the first, second, fourth and fifth bullets above.

Organizations that offer classes that qualify for credit at an accredited institution but do not meet the above defining requirements are not eligible applicants.

Eligible educational facilities include buildings, housing, classrooms plus related supplies, equipment, machinery, and utilities of an educational institution necessary or appropriate for instructional, administrative, and support purposes. They need not be contiguous. Buildings, structures, or related items used primarily for religious purposes or instruction are not eligible facilities.

PNP Medical. A medical facility is any hospital, outpatient facility, rehabilitation facility, or facility for long-term care, as defined below. A medical facility is also any facility similar to those listed below that offers diagnosis or treatment of mental or physical injury or disease. Eligible components include the administrative and support facilities essential to the operation of the medical facility, even if not contiguous.

Hospitals include general, tuberculosis, and other types of hospitals and related facilities, such as laboratories, outpatient departments, nursing home facilities, extended care facilities, facilities related to programs for home health services, self-care units, and central service facilities operated in connection with hospitals. This category also includes education or training facilities for health profession personnel operated as an integral part of a hospital. A medical organization that primarily furnishes home-based care is not considered a hospital under this definition.

Outpatient facilities are defined as facilities located in or apart from a hospital for the diagnosis or treatment of patients who are not actually admitted to a hospital. Such a facility may be one operated in connection with a hospital, or one in which patient care is under the professional supervision of a doctor licensed in the State.

Rehabilitation facilities are defined as facilities that are operated for the purpose of assisting the rehabilitation of disabled persons through a program of medical evaluation and services; and for psychological, social, or vocational evaluation and services that are under competent professional supervision. The major portion of these services should be furnished in the facility.

Facilities for long-term care are defined as facilities providing inpatient care for convalescent or chronic disease patients who require skilled nursing care and related medical services. Such facilities may be in a hospital, operated in connection with a hospital, or be in a location where services performed are under the professional supervision of a doctor licensed in the State, e.g., a nursing home or hospice.

Medical office buildings that are owned by PNP organizations but contain offices leased to for-profit practices of doctors and to other ineligible services are subject to special eligibility criteria. If the for-profit entities lease more than 50 percent of the building, the building is not eligible for Public Assistance. However, if at least 50 percent of the building is used for medical service activities associated with the PNP organization, FEMA will estimate damages to the entire facility, not just to the portion occupied by the eligible service/ However, such assistance would be pro-rated based on the percentage of space occupied by the PNP organization. Contents within the ineligible space (that are occupied by the for-profit services) would not be eligible for any assistance. See PNP Mixed-Use Facilities for further discussion and examples regarding mixed-use facilities. For example:

A medical office building is damaged during a declared event, and the restoration costs are estimated to be $100,000. If 60 percent of the floor space in the building is used by a PNP organization and the other 40 percent is used by a for-profit practice, the maximum eligible for the project would be $60,000.

PNP Custodial Care. Custodial care facilities are those buildings, structures, or systems, including those essential for administration and support buildings, that are used to provide institutional care for persons who do not require day-to-day medical care, but do require close supervision and some physical constraints on their daily activities for their self-protection.

PNP Emergency. Emergency facilities include buildings, structures, equipment, or systems used to provide emergency services, such as fire protection, ambulances, and rescue, even if not contiguous. Damages to their buildings, vehicles, and other equipment used directly in performing emergency services, and administrative and support facilities essential to the operation of emergency services, are eligible.

PNP Utility. A utility includes buildings, structures, or systems, even if not contiguous, of energy, communication, water supply, sewage collection and treatment, or other similar public service facilities. This includes PNP irrigation facilities that provide water for essential services of a governmental nature. Eligible irrigation facilities include those that provide water for fire suppression, generating electricity, and drinking water supply. They do not include facilities that provide water for agricultural purposes. When an irrigation facility element has mixed purposes (e.g., a pump), eligible damages may include the percentage of damages related to eligible purposes, i.e., pro-rated damages.

PNP Other. Essential governmental service facilities not falling into one of the categories described above are:

  • museums;

  • zoos;

  • performing arts facilities;

  • community arts centers;

  • community centers;

  • libraries;

  • homeless shelters;

  • rehabilitation facilities;

  • senior citizen centers;

  • shelter workshops; and

  • health and safety services of a governmental nature.

Their eligible assets need not be contiguous.

Facilities that provide health and safety services of a governmental nature include:

  • low-income housing;

  • alcohol and drug treatment centers;

  • residences and other facilities offering programs for battered spouses;

  • animal control facilities directly related to public health and safety when under contract with a State or local government;

  • facility offering food programs for the needy;

  • day care and before/after school centers for children; and

  • day care centers for those individuals with special needs (such as those with Alzheimer's disease, autism, and muscular dystrophy).

For additional guidance regarding PNP community center and museum eligibility, See FEMA Policy 9521.1, Community Center Eligibility and FEMA Policy 9521.2, Private Nonprofit Museum Eligibility.

PNP Mixed-Use Facilities
Facilities with mixed uses must be primarily used for eligible activities. "Primarily used," means that over 50 percent of the facility space or over 50 percent of the time is used for eligible activities. FEMA will then consider damages to the entire facility, not just to the portion occupied by the eligible service. However, assistance would be pro-rated based on the percentage of space used for eligible purposes. Contents within the ineligible space would not be eligible for any assistance. (See also the discussion of "Active Use".)

For example, community centers that are open to the public and established and primarily used as gathering places for a variety of social, educational enhancement, and community service activities may be eligible. However, facilities established or primarily used for religious, political, athletic, recreational, vocational, or academic training, artistic, conference, or similar activities are not eligible.

The community center must be established by the organization's charter or by-laws, and used for regularly scheduled activities, rather than simply offering space to a community organization. It may be necessary to obtain materials such as the organizational charter, articles of incorporation, activity logs, and other documents to verify use and eligibility.

A community center includes the building and associated structures and grounds. Each component must be evaluated separately to determine eligibility. For example:

If a community center complex consists of three buildings, two that serve as eligible community centers and one that serves as an administrative building, only two buildings are eligible for Public Assistance, as the administrative building does not provide an eligible activity.

PNP Ineligible Services or Facilities
Examples of ineligible services or facilities are:

  • recreational facilities;

  • job counseling or job training facilities;

  • facilities for advocacy groups not directly providing health services;

  • conference facilities;

  • political education;

  • advocacy or lobbying;

  • religious service or education;

  • facilities for social events;

  • parking facilities not in direct support of an eligible facility;

  • roads owned and operated by a Homeowners' Association or gated community; and

  • irrigation unless the facility provides water for fire suppression, drinking, or generating electricity.

Homeowners' Associations and Gated Communities
Homeowners' Associations often prohibit access with gates and other security systems. When access is restricted, the services and facilities cannot be considered open to the general public and, therefore, are not eligible for Public Assistance funding except as described below:

  • Removal of debris from roadways within the community to create an emergency path of travel is eligible if performed or contracted for by an eligible local or State level government entity with legal authority and applied for by the eligible local or State entity.

  • If the Homeowners' Association meets the criteria for an eligible PNP under the PA Program, it may claim costs for the repair of its eligible education, medical, custodial care, emergency, and utility (except irrigation) facilities.

Repairs of roadways, irrigation facilities, and facilities that provide governmental services other than those listed above are not eligible. PNP recreation facilities are ineligible whether the community is gated or not.

Other PNPs that offer a mix of eligible and ineligible facilities are subject to the same provisions as those described above.

Community Development Districts
Community Development Districts (CDDs) are special districts authorized under State law to finance, plan, establish, acquire, construct/reconstruct, extend/enlarge, equip, operate, and maintain systems, facilities, and basic infrastructure within their respective jurisdictions. Applicant eligibility criteria are: establishment under State law; legal responsibility for ownership, maintenance, and operation of an eligible facility; and open access to the general public.

When access is restricted by gates and other security systems, the services and facilities cannot be considered public and are not eligible for Public Assistance funding except as described below:

  • Removal of debris from roadways within the community to create an emergency path of travel is eligible if performed or contracted for by an eligible local or State level government entity with legal authority and applied for by the eligible local or State entity. If established for the purpose of road maintenance, the CDD may do the work and apply as an applicant.

  • Emergency protective measures for and repair of facilities for which the CDD was created. If it was created for water and sewer operations or for roads, it may claim assistance for only those facilities. Even though the CDD is an eligible applicant, its other facilities are ineligible for emergency and permanent work.

Public Entities
Certain "public entities" also may be eligible applicants. Public entities (e.g., Port Authority of New York and New Jersey) are those organizations that are formed for a public purpose and do not constitute one of the other forms of local government specified in the Stafford Act. To qualify for assistance, these types of applicants must receive direction and a majority of their funding from the State or one or more political subdivisions of the State. Application for Public Assistance, as with assistance for facilities that serve rural or unincorporated communities (see page 23), must be made by a State or a political subdivision of the State that will ensure the completion of work at the facility.

Private Nonprofit Facilities: Permanent Work
Eligible Facilities

Critical Services

  • Power facilities for generation, transmission and distribution of electric power

  • Water facilities for treatment, transmission, and distribution by a water company supplying municipal water. Water provided by an irrigation company for potable, fire protection, or electricity generation purposes

  • Sewer and wastewater facilities for collection, transmission, and treatment

  • Communications facilities for transmission, switching, and distribution of telecommunications traffic

  • Education facilities

  • Emergency medical care facilities that provide direct patient care, including hospitals, clinics, outpatient services, hospices, and nursing homes and rehabilitation centers that provide medical care

  • Fire protection/ emergency services; fire and rescue companies including buildings and vehicles essential to providing emergency services, and ambulance companies

  • Eligible facilities supporting facilities that provide critical services (e.g., hospital labs, storage, administration, and records areas) except for irrigation facilities

Non-Critical Services

  • Alcohol and drug treatment facilities that do not provide medical care

  • Rehabilitation centers that do not provide medical care

  • Animal control facilities directly related to public health and safety when under contract with State or local government

  • Community centers

  • Custodial care

  • Daycare and before/after school centers for children

  • Daycare centers for those individuals with special needs (e.g., those with Alzheimer's disease, autism, muscular dystrophy, etc.)

  • Performing arts facilities

  • Community arts centers

  • Food programs for the needy

  • Homeless shelters

  • Libraries

  • Low-income housing (as defined by Federal, State, or local law or regulation)

  • Museums

  • Residential facilities for the disabled

  • Residences and facilities offering services for battered spouses

  • Assisted living facilities

  • Senior citizen centers

  • Shelter workshops

  • Zoos

  • Eligible facilities supporting irrigation facilities and facilities that provide non-critical services

Ineligible Facilities

  • Advocacy or lobbying groups not directly providing health services

  • Cemeteries

  • Conference facilities

  • Daycare centers for those other than included as eligible

  • Irrigation facilities used solely for agricultural purposes

  • Job counseling and training centers

  • Political education facilities

  • Property owners associations' facilities such as roads and recreational facilities, except those facilities that could be classified as utilities or emergency facilities

  • Public housing, other than low income

  • Recreation facilities

  • Facilities for religious services or religious education

  • Parking facilities not in direct support to an eligible facility

Facility

A facility is defined as:

  • any publicly or PNP-owned building, works, system, or equipment (built or manufactured); or

  • certain improved and maintained natural features.

A group of buildings is not a facility.

The improvement of a natural feature should be based on a documented design that changes and improves the natural characteristics of the feature. Examples of such improvements include soil stabilization measures (such as terracing) and channel realignment. The constructed improvement must result in a measurable difference in performance over the unimproved natural feature. It is then the improvement itself that must be maintained for the natural feature to be considered a facility. The maintenance of this improvement must have been done on a regular schedule and to standards to ensure that the improvement performed as designed.

Certain improved and maintained natural features of publicly owned golf courses [e.g., sand traps, drainage, and greens (without grass)] may be considered facilities.

Examples of improvements that do not qualify as eligible facilities include agricultural lands and planted trees and shrubs.

Legal Responsibility
An eligible applicant must be legally responsible for the repair of the damaged facility or the performance of eligible emergency services at the time of the disaster. FEMA may approve a post-disaster transfer of an eligible facility from one eligible applicant to another eligible applicant in extraordinary situations. If an eligible applicant did not have legal responsibility, the facility is ineligible for assistance.

Ownership of a facility is generally sufficient to establish responsibility. If an applicant owns but leases out an eligible facility, repairs to the facility are eligible, unless the lease states that the lessee is responsible for repair of the type of damage sustained or maintaining insurance for repairs. If the applicant is the lessee (tenant), repairs to that facility are not eligible unless the lease specifically states that the lessee is responsible for the repairs. Facilities owned by Federal agencies typically are not eligible for Public Assistance. Some Federal agencies, however, may have turned responsibility for operation and maintenance of facilities over to local agencies so that the local agencies have the legal/financial responsibility for operation and maintenance. These may be eligible facilities. Examples include roads constructed by the U.S. Forest Service and the Bureau of Indian Affairs, and reservoirs and water delivery systems constructed by the U.S. Bureau of Reclamation.

Often, citizens in rural or unincorporated communities will band together for the purpose of maintaining common facilities through the formation of a legal entity. Because such facilities serve the community, they may be eligible for Public Assistance, even though they are not owned by an eligible applicant, if a State or political subdivision of the State submits the request for assistance and assumes responsibility for completion of the work. The damaged facility must be included within the purpose for which the organization was formed. The purpose of the facility must have been for use by the general public and not for private or commercial uses. The facilities must be owned by a legal entity, not just an individual, in order to be eligible.

See also "Legal Responsibility" under discussion of "Work" on pages 30-31.

Other Federal Agencies
For certain types of facilities, other Federal agencies have authority to provide disaster assistance. Public assistance is not available for the permanent repair of such facilities and is limited to emergency work. This is true even when the responsible agency lacks funds. When an applicant requests Public Assistance for a facility whose repair FEMA considers to be within the authority of another Federal agency, FEMA will ask the specific Federal agency with responsibility to review the request and advise FEMA whether the work would be eligible under that agency's authority. If the work falls outside the statutory authority of that agency, FEMA may consider providing assistance for the work under the Stafford Act.

Since some agencies must perform work or let a contract for the work themselves (and are not authorized to reimburse an applicant), an applicant may find that it cannot be reimbursed for the work it did. Denial of payment by itself is not a basis for requesting Public Assistance from FEMA. However, if there is an emergency need, FEMA may consider assistance for emergency work that has been done or paid for by the applicant. Permanent work is not eligible for Public Assistance in these circumstances.

Public Assistance funding cannot be used for the non-Federal cost share of other Federal agency funding. In addition, when another Federal agency has a minimum threshold for work, FEMA will not fund the amount under the threshold.

Federal agencies that often have authority to provide disaster assistance are discussed below.

U.S. Army Corps of Engineers (USACE). The USACE has continuing authority to conduct emergency repair and permanent restoration of damaged flood control works. Flood control works are those facilities constructed for the purpose of eliminating or reducing the threat of flooding. Examples include:

  • levees;

  • floodwalls;

  • flood control channels; and

  • dams designed for flood control.

Because permanent restoration of these facilities falls under the authority of the USACE, Public Assistance funding is not available. This restriction applies even if USACE funding is denied. However, Public Assistance funding may be provided for emergency measures to include debris removal and flood fighting.

Emergency repair may be eligible if, at the time of the disaster, the facility is not enrolled in the USACE program and the facility has not previously received FEMA assistance for emergency repairs. A condition of funding will be that the applicant enrolls the subject facility in the program; if it does not enroll, funding for the repair and restoration of the facility will not be provided in subsequent disasters. If the facility is already enrolled in the USACE program at the time of the disaster, or has received emergency repair assistance from FEMA previously, Public Assistance is not available for emergency repair.

The USACE also has the authority to construct and repair facilities that protect the shorelines of the United States. The USACE repair authority extends only to federally constructed shoreline works. It does not extend to locally owned facilities. Therefore, federally constructed facilities are not eligible for Public Assistance funding, but locally owned shoreline works may be eligible.

See FEMA Policy 9524.3 for discussion of levees and flood control works.

Department of Agriculture - Natural Resources Conservation Service (NRCS). Under the Emergency Watershed Protection Program, the NRCS has authority for the repair of flood control works that is similar to that of the USACE. Because of these overlapping authorities, the two agencies have a memorandum of understanding that provides guidance in dividing responsibilities when a disaster occurs. The NRCS authority applies to drainage basins of 400 square miles or less. (The USACE is responsible for flood works within a larger drainage basin.) The NRCS also has authority to remove debris from stream channels, road culverts, and bridges. Cost share requirements apply. This overlap with the FEMA program may result in FEMA's deferring to the NRCS.

Department of the Interior - Bureau of Indian Affairs (BIA). The BIA provides resources, such as road maintenance grants, that may help Tribal recovery. See also the Federal Highway Administration discussion below.

Federal Highway Administration (FHWA). The FHWA administers the Emergency Relief Program to assist State and local governments with the repair of Federal-Aid roads and bridges damaged during disasters. Funds from this program are used for facilities on routes identified by the FHWA. They include most public roads except those functionally classified as rural or minor collector routes. Rural or minor collection routes are eligible for FEMA assistance.

The Emergency Relief Program is the responsibility of the Secretary of Transportation and is available independently of major disaster and emergency declarations made by the President. Emergency Relief funds are used for both emergency and permanent work and are granted on the basis of inspections performed by FHWA and State highway department personnel. Eligible Emergency work includes debris removal even when there is no physical damage to the roads.

Because restoration of certain facilities falls under the authority of FHWA, the Stafford Act specifically excludes permanent restoration of them under the PA Program. As a result, Public Assistance for the permanent repair of these facilities is not available, even if the Emergency Relief Program is not available. Therefore, there will be times when no assistance is available for the permanent repair of some facilities.

FEMA may assist with limited emergency repairs and debris clearance on a case-by-case basis and only for those cases in which there is an immediate threat to the public health and safety.

There are certain roads on Indian reservations that have been designated by the Bureau of Indian Affairs as falling under the authority of the FHWA. These roads are subject to the restrictions discussed above. It may be necessary to consult the Bureau of Indian Affairs to determine repair responsibility of damaged roads on reservations.

FHWA is also discussed on page 68 under "Category A - Debris Removal" and page 80 under "Category C - Roads and Bridges."

Department of Housing and Urban Development. When a Public Housing Authority (PHA) is determined to be an eligible applicant, disaster assistance may be available from both FEMA and the Department of Housing and Urban Development (HUD). FEMA will provide assistance for emergency work including debris removal, demolition of unsafe structures, and any actions necessary to reduce an immediate threat to life, property, and public health and safety. In most cases, HUD will provide assistance for permanent restoration costs as authorized by the United States Housing Act of 1937. PHAs that do not qualify for assistance under the Housing Act of 1937 may apply directly to FEMA for permanent restoration work. [See FEMA Policy 9523.7, Public Housing Authorities (PHAs).]

Active Use
A facility must be in active use at the time of the disaster. Inactive facilities are not eligible. Exceptions to this requirement occur when:

  • the facility was only temporarily inoperative for repairs or remodeling;

  • the facility was unoccupied for a short time between tenants;

  • active use by the applicant was firmly established in an approved budget; or

  • the applicant can clearly demonstrate to FEMA that there was intent to begin use within a reasonable amount of time.

This requirement is also applied to a facility that is partially occupied and partially inactive at the time of a disaster. Inactive portions would not be eligible unless the exceptions noted above apply. In all cases, the facility in question must have been eligible for assistance during the time it was in use. When the eligible repairs would benefit a non-active area, the assistance will be pro-rated according to the percentage of the facility that was in active use.

For PNP facilities, over 50 percent of the facility had to be in active use for an eligible purpose at the time of the disaster in order for the facility to be eligible. See the PNP Mixed-Use Facilities section on pages 19-20 for further discussion and examples regarding pro-rating assistance for these circumstances.

 

Alternate Use If a facility is being used for purposes other than those for which it was originally designed, the eligible cost of restoration for that facility is limited to:

 

  • restoring the facility to its original design and capacity; or

  • restoring the facility to the immediate pre-disaster alternate purpose, whichever costs less.

For example:

If an office building is being used as a storage facility at the time of a disaster, only those repairs that may be needed to restore a storage facility are eligible. Any special lighting or wall and floor finishes that are typical of an office building would not be necessary for a storage facility and, therefore, would not be eligible.

In the case of PNP facilities, the primary purpose for the establishment of the facility is important for the eligibility determination. For example:

A facility established as a church (an ineligible purpose) might be used on occasion as a homeless shelter, while its primary purpose remained as a church. It would be ineligible based on the primary or majority use.

Facilities Under Construction or Scheduled for Replacement
Typically, a facility under construction is the responsibility of the contractor until the owner has accepted the work as complete. Because a contractor is not an eligible applicant, the portion of the facility under the contractor's responsibility is not eligible for Public Assistance. In the event of damage to a facility under construction, FEMA must determine if the applicant is responsible for repairs before granting assistance. Repairs are eligible if the contract under which the work is being performed places responsibility for damage on the applicant during the construction period. Repairs are also eligible if, prior to the disaster, the applicant had accepted the work and had, therefore, assumed responsibility. If the applicant had accepted responsibility for a portion of the site, repairs to only that portion of the site would be eligible.

When a facility or portion of that facility is under contract for repair or replacement using non-Federal funds, damage to the portion of the facility under contract is eligible, but FEMA will subtract the contract amount from the cost of the work. This restriction in funding applies even if the work has not started at the time of the disaster. However, if an applicant had included a project in a budget but had not yet let a contract at the time of the disaster, that project is eligible.

If a facility has been scheduled for replacement using Federal funds and work is scheduled to begin within 12 months of the time the disaster struck, the facility is not eligible for funding. An example of a continuing program of this nature is the FHWA Bridge Replacement and Rehabilitation Program. The program provides for State or locally owned bridges to be replaced with FHWA assistance. The State sets priorities for this program and determines which bridges will be replaced. If a disaster damages or destroys a bridge scheduled for replacement, the State should be able to reschedule so that the damaged bridge can be replaced immediately rather than later in the year.

Work There are three general types of work that may be eligible, with different criteria for each:

  • debris removal;

  • emergency protective measures; and

  • permanent restoration.

Debris removal and emergency protective measures are considered "emergency work." Permanent work includes restoring the facility back to its pre-disaster design, function, and capacity, including any codes and standards applicable to the approved work. Emergency and permanent work are discussed in the latter part of this chapter. Three general criteria apply to all types of work and to all applicants. These criteria are discussed below.

Direct Result. Work must be required as a direct result of the declared major disaster or emergency. The declaration by the President will designate the event, such as a severe storm, tornado, or flood, for which the declaration is being made. Damage that results from a cause other than the designated event, such as a pre-disaster damaging event, post-disaster damaging event, or work to correct inadequacies that existed prior to the disaster, is not eligible. Damage caused during the performance of eligible work may be eligible.

FEMA establishes an incident period after consultation with the GAR. The incident period is the time span during which the disaster-causing incident occurs. This period varies in length, depending on the type of incident. For example:

The incident period for a flood event could be several weeks because the water has to crest and recede, while the incident period for a tornado would be one day because the damage occurs in a matter of minutes.

Damage that occurs during the incident period, or damage that is the direct result of events that occurred during the incident period, is eligible. Protective measures and other preparation activities performed within a reasonable and justified time in advance of the event also may be eligible. For example, if a flood crest on a major river is forecast a few weeks in advance, sandbagging and construction of temporary levees to protect the community may be eligible if a disaster is later declared.

Protective measures to alleviate or lessen threats caused by the event may be performed after the incident period. Damage that occurs after the close of an incident period that can be tied directly to the declared event also may be eligible. Such damage may occur even a few months after the event and still be considered. For example:

A hillside becomes saturated during a declared rain or flood event, but no movement of or damage to the slope is observed during the incident period. After the incident period closes, the slope fails due to loss of strength caused by the saturated condition, causing damage to adjacent eligible facilities. Resulting damage may be eligible for Public Assistance. In some cases, a geotechnical investigation may be necessary.

Designated Disaster Area. Eligible work must be located within a designated disaster area. When a declaration of a major disaster is made for a State, FEMA will designate those counties of the State that are eligible for Public Assistance. Except for unusual situations, counties or independent cities are designated. Declarations for Tribal lands may be considered independent from surrounding communities, such that a Tribal land may receive a declaration even if the adjacent or surrounding county or city does not.

If the damaged facility is located within the designated area but the owner of the facility is from an undesignated area, the damaged facility may be eligible and that owner may apply for assistance. However, if an owner from within the designated area has a damaged facility located outside the designated area, that facility is not eligible, even if damaged by the same event.

The types of assistance available in the designated disaster area may vary among counties. Some counties may be eligible for reimbursement for both emergency and permanent work while others may be eligible to receive funding for emergency work only.

Legal Responsibility. As with eligible facilities (see page 23), work must be the legal responsibility of the applicant at the time of the disaster to be eligible. Ownership of a facility is generally sufficient to establish the responsibility for work to repair the facility. However, if an applicant leases a facility as a tenant, repairs to that facility are not eligible unless the lease states that the lessee is responsible to insure for and/or make minor and/or extraordinary repairs. A copy of the lease agreement should be provided to FEMA to determine responsibility. The lease usually contains general repair and maintenance language; however, responsibility for damage resulting from a disaster may not be established. In the absence of any mention in the lease, the owner of the facility will be assumed to be responsible for the repair. (See also "Legal Responsibility" under discussion of "Facility" on page 23.)

Negligence
Damage caused by negligence on the part of the applicant after the event is not eligible. This issue often arises when an applicant fails to take prudent measures to protect a facility from further damage in the wake of a disaster. For example:

The roof of a library is damaged during a hurricane, but the applicant does not install tarps on the roof to protect the building's interior for several weeks. Repeated rain showers during that time destroy the exposed books and furnishings. The damage caused by the rains would not be eligible unless the applicant could document and justify why emergency protective measures were not implemented in a timely manner.

Damage caused by an applicant's actions, if unavoidable, may not necessarily be negligence, especially in cases where the damage occurs during emergency response efforts. For example:

While using heavy equipment to build a temporary berm for emergency flood protection, an applicant damages the roads that provide access to the site. Even though the applicant caused the damage, the repairs to the roads back to their original condition may be eligible as Category B - Emergency Work. For Federal-Aid roads, only emergency repairs would be eligible. For local roads, repairs to pre-disaster conditions would be eligible.

In instances where ground is disturbed due to movement of heavy equipment performing eligible work, such as that described above or when repairing underground utilities within landscaped areas, replacement of damaged trees, shrubs or other ground cover is not eligible. See page 87 for further discussion of "Trees and Ground Cover."

Also note that damage caused by inadequate design is not necessarily considered negligence. For example:

If an undersized culvert contributes to damage to a road, the repair of the road still may be eligible.

Mold
Extensive disaster-related damage from external sources or from broken water pipes may cause eligible facilities to become inundated or exposed to wet and humid conditions for several days following a disaster. The disruption of electrical power may inhibit the use of water-extraction, pumping, and drying electrical equipment, and the limited availability of private repair and restoration contractors may delay cleanup activities. If this happens, water saturation may cause growth and propagation of mold on structures and interior contents, causing health-related problems and increasing the cost of repairs.

Mold remediation may be eligible under the PA Program, either as an emergency protective measure in the immediate aftermath of a disaster, or as part of the permanent repair work. For mold remediation to be eligible, the mold must not be a result of poor facility maintenance or failure to take protective measures in a reasonable time after the event. The following information guides FEMA's decision of whether the mold growth is a direct result of the disaster or pre-disaster in origin:

  • Windows and exterior vents are susceptible to water infiltration if not properly sealed. Evidence of poor seals may indicate pre-disaster leaks, which could have caused mold growth.

  • Poor surface water drainage flow around the structure could result in a propensity for water to accumulate around the building. The evidence of standing water against an exterior wall may indicate that the facility had a history of water intrusion, which could have caused the mold growth.

  • The presence of rusted rain gutters or drains and vegetative growth in gutters is an indicator of poor building maintenance practices. Poorly maintained drain gutters could cause localized flooding at the base of the structures, water intrusion, and subsequent mold growth that could have existed before the disaster event. Likewise, the absence of rain gutters could have caused the same effects.

  • If ceiling tiles have evidence of leakage, water intrusion may have occurred before the disaster event and caused mold growth.

See Fact Sheet 9580.100, Mold Remediation.

Maintenance
To meet the basic rule of eligibility, an item of work must be required as a direct result of the declared disaster. Normal maintenance items that existed prior to the disaster, such as pothole repair, routine pulling of ditches, and minor gravel replacement; and deferred maintenance, such as replacing rotted timber, and repairing deteriorated asphalt and leaking roofs, are not eligible because they do not meet the criterion of being disaster-related. For example:

If a culvert's annual maintenance report indicates that the culvert was full of debris (tree limbs and sediment) before the disaster, the work to remove the obstructions from the culvert would not be eligible.

For facilities that require routine maintenance to maintain their designed function, such as culverts, roads, bridges and dams, it may be possible to review pre-disaster maintenance or inspection reports to verify the pre-disaster condition and to assess eligible disaster damage.

In instances where damage can be attributed to the disaster instead of lack of maintenance, repairs are eligible. It is the applicant's responsibility to show that the damage is disaster-related. Funding of repairs may be made contingent upon the repair of pre-disaster damage with the applicant's own funds. For example:

FEMA may determine that repairs to a damaged bridge deck are eligible. However, the deck cannot be repaired unless the applicant replaces rotting timbers that support the deck.

Codes and Standards
When a facility must be repaired or replaced, FEMA may pay for upgrades that are necessary to meet specific requirements of reasonable current codes and standards. This situation typically occurs when older facilities must be repaired in accordance with codes and standards that were adopted after the original construction. These codes and standards may include Federal requirements, such as those mandated by EO 12699 (seismic requirements for new buildings) or the Americans with Disabilities Act (ADA), as discussed later in this section. However, this does not mean that Public Assistance grant funds will be provided to bring a facility into full compliance with current codes and standards. For example, FEMA will not fund construction of increased capacity because such work is beyond that necessary to restore the pre-disaster design capacity of the facility, except as noted for Category E (pages 83-85). Bringing facilities in violation of code or standard (at the time of the disaster) up to code is not an eligible program cost. The determination of which codes and standards are applicable to the work is very important in determining eligible work. Often codes are for new construction and not for repairs. For an upgrade to be eligible, the code or standard requiring the upgrade must meet the five criteria listed below.

  1. The code or standard must apply to the repair work or restoration required. If a facility must be replaced, an upgrade would apply throughout the facility. However, if a facility needs repair work only, upgrades would apply to the damaged elements only. For example:

    FEMA would pay to install a code-required new sprinkler system throughout a multi-story building if that building were being replaced. However, FEMA would not pay for installing such a system if the eligible work involved repair only, unless it was required based on the amount of repair. FEMA would have to determine that the requirement is reasonable for the type and extent of the repair.

  2. The code or standard must be appropriate to the pre-disaster use of the facility. For example, if a former classroom facility that was being used by a school district as a warehouse before the disaster is destroyed, standards applicable to the design and construction of classrooms do not apply; only those for warehouses would be eligible.

  3. The code or standard must be reasonable, in writing, and formally adopted, and implemented prior to the disaster declaration date or be a legal Federal requirement. The appropriate legislative authority within the applicable jurisdiction must have taken all requisite actions to implement the code or standard. The effective date of the code provision must be before the declaration date. It is the responsibility of FEMA to determine the reasonableness of a code or standard. Federal requirements are subject to the same criteria as local or State standards.

  4. The code or standard must apply uniformly to all facilities of the type being repaired within the applicant's jurisdiction. The code or standard cannot allow selective application; it cannot be subject to discretionary enforcement by public officials; it must be applied regardless of the source of funding for the upgrade work; and it cannot be applied selectively based on the availability of funds.

  5. The code or standard must have been enforced during the time that it was in effect. FEMA may require documentation showing prior application of the standard.

See also "Category E - Buildings and Equipment" on pages 83-85.

EO 12699. EO 12699, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction, requires that all eligible construction of new buildings under the PA Program use appropriate seismic design and construction standards and practices. This is true regardless of the cause of the declared disaster and even if the applicant does not have applicable local or State seismic codes.

If a damaged building is eligible for replacement, the costs of meeting required and reasonable seismic codes are also eligible. (See FEMA Policy 9527.1, Seismic Safety - New Construction.) However, for new construction of an alternate or improved project, any additional costs to satisfy appropriate seismic requirements beyond those that would have been required, if any, for the original approved project are not eligible; yet the measures necessary to satisfy these requirements are required as a condition of the grant.

The Americans with Disabilities Act. The ADA applies to restoration of damaged facilities under the Stafford Act. The ADA requires that any building or facility that is accessible to the public or any residence or workplace be accessible to and useable by disabled persons.

When FEMA provides assistance to replace a damaged facility, the facility must meet applicable access requirements. FEMA will provide funds to comply with ADA when replacing a facility, whether or not the facility met compliance prior to the disaster. However, a new facility funded as an alternate or improved project is limited to the eligible funding for the original facility even when the new facility has to comply with additional ADA requirements. Applicants notified of an ADA violation prior to the disaster and required to bring the facility into compliance are not eligible to receive FEMA funding to comply with accessibility requirements related to that violation.

For buildings eligible for repair, FEMA will fund the cost of ADA compliance requirements to the damaged elements of the facility. [See FEMA Policy 9525.5, Americans with Disabilities Act (ADA) Access Requirements.] In addition, FEMA may fund ADA compliance requirements for non-damaged elements associated with a path of travel for a primary function area that is damaged. A primary function area is where a major activity occurs for which the facility is intended, such as the dining area of a cafeteria. For primary function areas, FEMA will fund ADA compliance requirements for providing an accessible travel path and service facilities up to 20 percent of the total cost of repair to the primary function area.

Non-damaged areas of a damaged facility are not required to meet ADA requirements unless they are part of the travel path or service facility to a damaged primary function area, as described above.

Repair vs. Replacement (50 Percent Rule)
FEMA will restore an eligible facility to its pre-disaster design. Restoration is divided into two categories: repair or replacement. [See FEMA Policy 9524.4, Eligibility of Facilities for Replacement (the 50% Rule).] The following calculation, known as the "50 Percent Rule," is used to determine whether replacement is eligible:

IF (Repair Cost / Replacement Cost) < 50% THEN only the repair cost is eligible

IF (Repair Cost / Replacement Cost) > 50% THEN the replacement cost is eligible

Repair Cost includes only those repairs, including non-emergency mold remediation, associated with the damaged components and the codes and standards that apply to the repair of the damaged components. This cost does not include upgrades of other components triggered by codes and standards, design, demolition of the entire facility, site work, or applicable project management costs, even though such costs may be eligible for Public Assistance. The cost of contents and hazard mitigation measures is not included in the repair cost.

Replacement Cost includes the costs for all work necessary to provide a new facility of the same size or design capacity and function as the damaged facility in accordance with current codes and standards. The replacement cost does not include demolition, site work, and applicable project management costs, even though these costs may be eligible for Public Assistance.

Note that the design capacity of the facility, either as originally designed or as modified by later design, governs the extent of eligible work when a facility is being replaced. If a facility was being used in excess of its design capacity, that factor does not increase the eligible capacity of a replacement facility. Note also that the 50 Percent Rule applies to the overall facility. It is not to be used to calculate replacement of the facility's individual components, e.g., equipment, a roof, a wall, or mechanical system. Consult CEF guidance when using the CEF to calculate the 50% threshold. Multiple buildings on a campus are analyzed individually.

The following table illustrates eligible cost determinations.

Table 2: Repair/Replacement
 

Conditions

Eligible Costs

1.

The repair cost* does not exceed 50% of the replacement cost** and no upgrades are triggered

Repair of eligible damage only

2.

The repair cost* does not exceed 50% of the replacement cost** and whole building upgrade is triggered and the total of the two items is greater than 50% but less than 100% of replacement cost**

Repair of eligible damage plus upgrade cost.

3.

The repair cost* does not exceed 50% of the replacement cost** and whole building upgrade is triggered and the total of the two items is estimated to be greater than 100% of replacement cost**

Repair of eligible damage plus upgrade cost, but total eligible costs capped at the replacement cost.

4.

The repair cost* exceeds 50% of replacement cost**

The building's full replacement cost (but no more than its replacement cost) is eligible.

NOTES:
*    "Repair cost" in these examples includes repair of damaged components only, as described on page 36.
**    "Replacement cost" is replacement of the same size or designed capacity and function of the building to all applicable codes, as described on page 36.

In most cases, the criteria outlined in this table are adequate for repair and replacement projects. However, particular attention should be paid to the repair of damaged historic buildings. Such repair could trigger a requirement to upgrade a structure to new construction standards, while at the same time maintaining historic features. The total restoration cost, in this situation, may exceed replacement cost, as in condition 3 in the table, but the excess over the replacement cost is not eligible.

The regulations contain an exception to the funding limitation described in Table 2 that applies only when a facility is eligible for listing or listed in the National Register of Historic Places. If an applicable standard requires a facility to be restored in a certain manner and disallows other options, such as leaving the facility unrestored, the eligible cost to complete the restoration may exceed the replacement cost. See 44 CFR 206.226(f)(3).

Temporary Relocation
When buildings that house essential services, such as school classrooms, police and fire department facilities, government offices, and certain PNP functions, such as critical health facilities, are damaged extensively enough that they cannot be used until repairs are made, temporary relocation of the essential services may be necessary. Other PNP facilities may be eligible if they are directly related to public health and safety and under contract with State and local government to provide the health and safety functions. Temporary relocation may also be necessary in instances where such buildings are undamaged but inaccessible due to disaster-related conditions in the immediate vicinity. The criticality of the service and safety of the facility are the factors used to determine the need for temporary relocation. Temporary relocation is permitted as an emergency protective measure under Section 403 of the Stafford Act.

The costs associated with temporary relocation are eligible but are subject to cost comparisons of alternate methods of providing facilities. Such costs include the rental or purchase of temporary space and equipment. The decision whether to rent or purchase space and equipment must be based on cost effectiveness. Utilities, maintenance, and operating costs of the temporary facility are not eligible. However, applicants who perform essential services in leased facilities who have had to temporarily relocate to other leased facilities as a result of the disaster may be eligible for a reasonable rental cost differential if the temporary facilities are more costly than the pre-disaster facilities.

The moving costs, as well as necessary alterations at the new location, might be eligible if the continued operation of the facility is necessary to eliminate immediate threats to life or property.

The length of time that rental costs are eligible is based on the time estimated to complete repair work that will bring the damaged facility to pre-disaster design, not including time for completion of improvements. Normally, the period of time for which temporary relocation assistance may be provided is 6 months, based on the regulatory time limitation for the completion of emergency work. If no additional funds are involved, the GAR may approve a time extension if the GAR is satisfied that extenuating circumstances beyond the control of the applicant prevented the completion of the work within the initial time limit and that the applicant has provided the design proposal, a schematic, and a revised timeline for the permanent project. If additional funds are required, the GAR may recommend to FEMA a time extension based on extenuating circumstances beyond the control of the applicant that prevented the completion of the work within the initial time limit and the provision of the design proposal, a schematic, and a revised timeline for the permanent project. An extension requiring additional funding may not be granted without a design proposal, schematic, and timeline for the permanent work. Extensions beyond a total temporary relocation period of 12 months are extremely rare, but may be approved by the FEMA Regional Administrator if construction began within the 12-month period. (See FEMA Policy 9523.3, Provision of Temporary Relocation Facilities.)

Permanent Relocation
An applicable Federal, State, or local standard, such as a floodplain management regulation, may require that a damaged facility be relocated away from a hazardous area. Such relocations also may be required by FEMA if the facility is subject to repetitive heavy damage because of its location. In either case, FEMA will provide assistance for the relocation project only if it is cost effective and not barred by any other FEMA regulations or policies. Eligible costs of a relocation project include:

  • demolition and removal of the old facility;

  • land acquisition;

  • construction of the new facility, including compliance with environmental requirements; and

  • construction of ancillary facilities, such as roads and utilities.

To determine cost effectiveness, benefits are measured in terms of the damage prevented by moving away from the hazardous location. Generally, the project will only be cost effective if the damage is severe enough that the facility qualifies for replacement.

When a relocation to outside a hazard area is approved, no future Public Assistance funding for the repair or replacement of any facility subsequently built at the old site will be approved. An exception is given for facilities or structures that facilitate an open space use. Examples include minimal facilities for a park, such as benches, tables, restrooms, and minor gravel roads. When such a restriction is placed on a site, the applicant will be notified.

If relocation is not desired, feasible or cost effective, and restoration in the original location is not a practicable alternative because of floodplain, environmental, historic preservation, or other Special Considerations, the applicant may request that the funding be applied to an alternate project. Alternate projects are discussed in more detail on pages 111-112 of this guide.

Cost Generally, costs that can be directly tied to the performance of eligible work are eligible.

Such costs must be:

  • reasonable and necessary to accomplish the work;

  • compliant with Federal, State, and local requirements for competitive procurement (including 44 CFR Part 13); and

  • reduced by all applicable credits, such as anticipated insurance proceeds and salvage values.

A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost. In other words, a reasonable cost is a cost that is both fair and equitable for the type of work being performed. For example:

If the going rental rate for a backhoe is $25/hour, it would not be reasonable to pay $50/hour for a backhoe.

In the immediate aftermath of a disaster, shortages in equipment, materials, and labor may affect costs. Costs also may stabilize in the months after the disaster. These variations should be considered when establishing reasonable costs of repair.

Consideration should also be given to whether the cost is of a type generally recognized as ordinary and necessary for the subject facility and type of work and whether the individuals concerned acted with prudence in conducting the work. In addition, normal procedures must not be altered because of the potential for reimbursement from Federal funds. Reasonable costs can be established through:

  • the use of historical documentation for similar work;

  • average costs for similar work in the area;

  • published unit costs from national cost estimating databases; and

  • FEMA cost codes, equipment rates, and engineering and design services curves.

  • FEMA staff make the final determination on the reasonableness of a cost.

In performing work, applicants must adhere to all Federal, State, and local procurement requirements.

An applicant may not receive funding from two sources for the same item of work. The Stafford Act prohibits such a duplication of benefits. (See FEMA Policy 9525.3, Duplication of Benefits.) If FEMA funds are duplicated by another source, the FEMA funds must be returned. If another Federal agency has specific authority to fund certain work, then FEMA generally cannot provide funds for that project. A State disaster assistance program is not considered a duplication of Federal funding.

A duplication of benefits most commonly occurs with insurance settlements. If a damaged facility is insured, FEMA is required to reduce the amount of the grant by any insurance proceeds that the applicant anticipates or receives for the insured facility. If the applicant has not completed negotiations with the insurer at the time the Project Worksheet is developed, FEMA will estimate the anticipated proceeds and this value will be used for the reduction. See Chapter 4 for additional discussion regarding insurance requirements.

Grants and cash donations received from non-Federal sources designated for the same purpose as Public Assistance funds are considered a duplication of benefits. However, such grants and donations, including disaster relief funds provided by the State, may be applied towards the non-Federal cost share and are not considered a duplication of benefits. Grants and cash donations, including disaster relief funds provided by the State, that are received for unspecified purposes or ineligible work also do not constitute a duplication of benefits and can be applied to the non-Federal cost share.

Applicant "rainy day" funds are not considered a duplication of benefits.

The eligible cost criteria referenced above apply to all direct costs, including labor, materials, equipment, and contracts awarded for the performance of eligible work. This also includes any additional costs for compliance with codes and standards that meet FEMA's eligibility criteria, as well as any costs necessary to obtain permits. Compliance with environmental and historic preservation laws, regulations, and EOs may constitute eligible costs. (See Chapter 4, Special Considerations.)

Labor
Force account labor is defined as labor performed by the applicant's employees, rather than by a contractor. Force account labor costs associated with the conduct of eligible work may be claimed at an hourly rate. Labor rates include actual wages paid plus fringe benefits paid or credited to personnel. Different eligibility criteria apply to labor rates for different kinds of employees and work, as described below.

Permanent Employees. For debris removal and emergency protective measures, only overtime labor is eligible, regardless of normal duties or assignments. (See FEMA Policy 9525.7, Labor Costs - Emergency Work.)

For permanent work, both regular time and overtime are eligible. Regular time of permanent employees who are funded from an external source (e.g., by a grant from a Federal agency, statutorily dedicated funds, or rate payers) to work on specific non-disaster tasks is an eligible cost when the employee is performing emergency work. Overtime or compensatory time for "exempt" employees is not eligible, except where written policies allow for it, and cannot be contingent upon Federal funding. The costs of salaries and benefits for individuals sent home or told not to report due to the emergency conditions are not eligible for reimbursement. However, extraordinary costs for essential employees who are called back to duty during administrative leave to perform disaster-related emergency work are eligible if the procedures were provided for in a written policy prior to the disaster.

Seasonal Employees. Seasonally employed personnel, when covered under existing budgets and used for a disaster during the normal season of employment, are considered permanent employees for the purpose of cost eligibility.

Reassigned Employees. Many times during a disaster, employees are assigned to perform tasks that are not part of their normal jobs. The labor cost for the reassigned employee is eligible as long as the reassigned employee is performing eligible work.

For emergency work, only overtime is eligible for reassigned employees. For permanent work, both regular and overtime are eligible. An example of a reassigned employee performing eligible work is having an office employee stacking sandbags or a police officer removing debris from a roadway. The pay rate is based on the reassigned employee's normal rate of pay, not the pay level appropriate to the work.

Backfill Employees. When a permanent employee is performing eligible disaster-related work, it is sometimes necessary to provide a person to fill their normal position and duties. The following examples provide guidance on determining the eligibility of these backfill employee costs:

  • If the backfill employee is an extra hire, the cost of this person represents an extra cost to the applicant. Straight time salary, benefits, and overtime costs are eligible for work performed by the backfill employee.

  • If the backfill employee is a regular employee of the applicant, there is no extra cost. Only the overtime cost for work performed by the backfill employee is eligible.

  • If the backfill employee is a regular employee who is called in on a weekend or other day off, there may be an extra cost. Straight time, benefits, and overtime costs are eligible for work performed by the backfill employee.

  • If the backfill employee is called in from vacation, there is no extra cost because the vacation can be rescheduled. Only overtime costs are eligible for work performed by the backfill employee.

Temporary Employees. Temporary employees are extra personnel hired as a direct result of the disaster to perform eligible work. An example of a temporary employee would be a laborer hired to perform repairs to roads damaged during the disaster. Regular and overtime costs are eligible for both emergency and permanent work performed by temporary employees when they are doing eligible work.

Force Account Mechanics. Time spent maintaining and repairing applicant-owned equipment is not eligible because this cost is included in equipment rates described on pages 48-49. Repair of disaster damage to equipment may be eligible, as described later in this chapter under Category E.

Foremen and Supervisors. Labor for both foremen and supervisors may be eligible for work forces engaged in disaster-related field activities to the extent that the time is associated with eligible work. (See "Project Supervision and Management Costs," pages 61-65, for further discussion.) However, the salaries of commissioners, mayors, department directors, police and fire chiefs, and other administrators usually are not eligible.

Contract Supervision. Reasonable costs of contractors hired to accomplish emergency work are eligible for reimbursement. Regular time salaries of the applicant's employees overseeing contractors performing emergency work are not eligible. However, regular time salaries of force account labor for overseeing contractors performing permanent work are eligible.

National Guard Labor and Prisoner Labor. The Stafford Act contains specific reference to costs of National Guard labor and prisoner labor. Costs of using National Guard personnel to perform eligible work are eligible to the extent that those costs are being paid by the State. Prisoner labor costs are eligible at the rate normally paid to prisoners. Costs of prisoner labor also include transportation to the worksite and extraordinary costs of guards, food, and lodging.

General Criteria for Labor Costs Davis-Bacon Act. The Davis-Bacon Act requires Federal agencies to pay workers under contract to them the "prevailing wage," defined by the Department of Labor. The provisions of the Davis-Bacon Act do not apply to State or local contracts for work completed using Public Assistance funds under the Stafford Act. However, the provisions do apply to contracts let by other Federal agencies, such as the USACE, when operating under a Mission Assignment from FEMA. If a State or local government incorporates Davis-Bacon wage rates as part of its normal practice for all contracts, regardless of funding source, those rates are eligible.

Regular Time and Overtime. For debris removal and emergency protective measures, only overtime labor is eligible for permanent employees, regardless of normal duties or assignments. For permanent work, both regular time and overtime are eligible for all employees. Policies for payment of overtime or premium pay must be reasonable and not be contingent on Federal funding. The policy must have set criteria for its activation and not be open to the discretion of management.

Compensatory Time. If an applicant has a written policy in place prior to the disaster for providing compensatory time in place of overtime, FEMA reimbursement will be based on that policy. Funding at a reasonable rate is eligible if the written policy requires it.

Fringe Benefits. Fringe benefits that are actually paid or credited as part of an established policy are eligible. Because certain items in a benefit package are not dependent on hours worked, such as health insurance, the fringe benefit rate will be different for regular and overtime hours. The overtime fringe benefit rate is usually significantly lower.

The following steps may be used to calculate the percentage of fringe benefits paid on an applicant's employee's salary. Note that items and percentages will vary from one entity to another.

  1. The normal year consists of 2080 hours (52 weeks x 5 workdays/week x 8 hours/day). This makes no allowance for holidays and vacations.

  2. Determine the employee's basic hourly pay rate (annual salary/2080 hours).

  3. Fringe benefit percentage for vacation time: Divide the number of hours of annual vacation time provided to the employee by 2080 (80 hours (assuming 2 weeks)/2080 = 3.85%).

  4. Fringe benefit percentage for paid holidays: Divide the number of paid holiday hours by 2080 (64 hours (assuming 8 holidays)/2080 = 3.07%).

  5. Retirement pay: Because this measure varies widely, use only the percentage of salary matched by the employer.

  6. Social Security and Unemployment Insurance: Both are standard percentages of salary.

  7. Insurance: This benefit varies by employee. Divide the amount paid by the applicant by the basic pay rate determined in Step 2.

  8. Workman's Compensation: This benefit also varies by employee. Divide the amount paid by the applicant by the basic pay rate determined in Step 2. Use the rate per $100 to determine the correct percentage.

Note: Typically, the applicant should not be charging the same rate for regular time and overtime. Those fringe benefits that vary with the number of hours worked may be eligible at the higher rate.

Sample Rates
Although some rates may differ greatly between organizations, the table below provides some general guidelines that can be used as a test of reasonableness when reviewing submitted claims. These rates are based on experience in developing fringe rates for several State departments. The rates presented are determined using the gross wage method applicable to the personnel hourly rate method. The net available hours method would result in higher rates.

The Applicant's Benefit Calculation Worksheet is available in the PA Forms Library.

Table 3: Paid Fringe Benefits

Item

Rate

Holiday Leave

4.00% (or less)

Accrued Vacation Leave

7.00% (or less)

Sick Leave

4.00% (or less)

Social Security Matching

6.2% of employee earnings up to $94,200 (in 2006)

Medicare

1.35%

Unemployment Insurance

0.25% (or less)

Worker's Compensation

3.00% (or less)

Retirement - Regular

17.00% (or less)

Retirement - Special Risk

25.00% (or slightly more)

Health Insurance

12.00% (or less)

Life & Disability Insurance

1.00% (or less)

Administrative Leave

0.50% (or less)

Compensatory Leave

2.00% (or less)

Rates outside of these ranges are possible, but should be justified.

See Also: Applicant's Benefits Calculation Worksheet

Materials The cost of supplies that were purchased or taken from an applicant's stock and used during the performance of eligible work is eligible. Replacement costs may be determined by contacting area vendors.

Equipment
Certain ownership and operating costs for force account (that is, applicant-owned) equipment used to perform eligible work are eligible. Costs for use of automobiles and pick-up trucks may be reimbursed on the basis of mileage if less costly than hourly rates. For all other types of equipment, costs are reimbursed using an hourly rate. Reimbursable equipment rates typically include operation (including fuel), insurance, depreciation, and maintenance; however, they do not include the labor of the operator. Stand-by time for equipment is not eligible. However, if an applicant uses equipment intermittently for more than half of the normally scheduled working hours for a given day, use for the entire day may be claimed if adequate documentation is submitted. Equipment that is used for less than half of the normally scheduled working day is reimbursable only for the hours used.

See FEMA Policy 9525.8, Damage to Applicant Owned Equipment, for guidance on recovering costs related to the repair of force account equipment damaged during the performance of eligible disaster work, including transit to the work site.

FEMA recognizes three types of equipment rates. Each is described as follows.

FEMA Rates. FEMA has published a schedule of equipment rates that is applicable on a national basis. If a piece of equipment used by an applicant is not on the FEMA schedule, documentation to justify the requested rate must be submitted to FEMA for the DRM's approval. If an entity has established rates for use in its normal day-to-day operations, the criteria listed below under State and local rates apply. If an entity does not have established rates, FEMA rates will be used.

State Rates. An applicant may claim reasonable rates that were developed using State guidelines up to $75 per hour. Rates over $75 per hour may be approved by the Disaster Recovery Manager (DRM) on a case-by-case basis. A State guideline would be an equipment cost methodology used by a State agency to account for the costs of using its own equipment. Care must be taken to examine the rate schedule before applying it to State or locally owned equipment. Some State highway departments have a schedule of rates for "force account" work, the meaning of which is generally different from its meaning in the PA Program. State highway usage of the term may mean a rate for contractor's equipment doing extra work on a project. PA Program usage means a rate for applicant-owned equipment. Therefore, FEMA may request verification that any such rate schedule is actually for applicant-owned equipment.

Local Rates. Rates developed by a local government can be used. Where local rates have been developed, reimbursement is based on the local rates or FEMA's rates, whichever is lower. If the local rate is lower and the applicant certifies that the rates do not reflect all actual costs, the higher FEMA rates may be used. The applicant may be requested to provide documentation of the basis for its rates.

Equipment and Supplies Purchased for Disaster Use
There are many instances where an applicant will not have sufficient equipment and supplies to respond to the disaster in an effective manner. For the purpose of this section, the following definitions apply:

  • The term "equipment" means tangible, non-expendable, personal property having a useful life of more than one year and an acquisition cost of $5,000 or more per unit.

  • The term "supplies" means all tangible personal property other than equipment.

While FEMA may assist the applicant in purchasing the needed equipment and supplies, the applicant is required to compensate FEMA for the Federal share of the cost of individual items of equipment and the aggregate total of supplies with a current fair market value in excess of $5,000 when the items are no longer needed for the disaster. For equipment and supplies below this threshold, the applicant may sell or otherwise dispose of the items with no compensation to FEMA. (See FEMA Policy 9525.12, Disposition of Equipment, Supplies and Salvaged Materials.)

The fair market value is the value of equipment and supplies determined by selling them in a competitive market or researching advertised prices for similar items on the used market. The current fair market value should be determined at the time the equipment and supplies are no longer needed for disaster operations regardless of when actual disposition takes place.

Salvage Value
When applicable, salvage value should be deducted from the estimated replacement cost. Disposition of salvaged materials must be at fair market value and the value must be reimbursed to FEMA to reduce the total project cost. For example, debris resulting from disasters, such as timber debris, mulched debris, and scrap metal, may have a market value. Reasonable costs for administering and marketing the sale of the salvageable materials is allowed to be recouped by the applicant from the fair market value. To reduce contract costs, applicant debris removal contracts may provide for the contractors to take possession of salvageable material and benefit from its sale in order to lower bid prices. When the salvage values are taken into account in the bid and award, no salvage value needs to be recouped at the end of the project. (See FEMA Policy 9525.12, Disposition of Equipment, Supplies and Salvaged Materials.)

Third Party Liability
When a third party causes damage (e.g., an oil spill) or otherwise increases the cost of repair or cleanup, the applicant is required to pursue the third party for recovery. If recovery is not adequate despite the applicant's good faith effort, costs may be funded through a PW. Reasonable costs (including reasonable legal fees) of such recovery may be deducted from the recovery before the deduction is made from the eligible costs.

Mutual Aid Agreements
In some cases, State or local governments use mutual aid agreements as an emergency preparedness device. A mutual aid agreement is an agreement between jurisdictions or agencies to provide services across boundaries in an emergency or major disaster. Such agreements usually provide for reciprocal services or direct payment for services. FEMA will reimburse mutual aid costs for eligible emergency work, when requested by the applicant (receiving entity) in accordance with FEMA Policy 9523.6, Mutual Aid Agreements for Public Assistance. Key provisions are:

  • reimbursement to the providing entity is not contingent on the receipt of Federal funding;

  • the assistance is for the performance of eligible work;

  • the claimed costs are reasonable;

  • the work accomplished, the billing for assistance, and the payment for the assistance can be documented; and

  • the claimed costs are in accordance with FEMA's mutual aid policy.

When a pre-event agreement provides for reimbursement, but also provides for an initial period of unpaid assistance, FEMA will pay the eligible costs of assistance after the initial unpaid period. When a pre-event mutual aid agreement provides for reimbursement and there is a consistent record of reimbursement without Federal funds, FEMA re-imbursement will follow the provisions of the agreement.

When the parties do not have a pre-event written mutual aid agreement, the Requesting and Providing entities may verbally agree on the type and extent of mutual aid resources to be provided to the current event, and the terms, conditions, and costs of such assistance. Post-event verbal agreements must be documented in writing and executed by an official of each entity with authority to request and provide assistance, and provided to FEMA as a condition of receiving reimbursement.

The Emergency Management Assistance Compact (EMAC) is a form of mutual aid. It establishes procedures whereby a disaster-impacted state can request and receive assistance from other member states quickly and efficiently. EMAC resolves two key issues up front: liability and reimbursement. The requesting State agrees to (1) assume liability for out-of-state workers deployed under EMAC and (2) reimburse assisting states for deployment-related costs. There are two types of work potentially eligible for FEMA reimbursement; grant management work and emergency work. To the extent the specific agreement between states meets the requirements of the FEMA policy on mutual aid agreements and the work meets FEMA eligibility requirements, costs may be eligible for FEMA assistance. Reimbursement for these costs would be subject to the Federal/non-Federal cost share for that disaster.

To be allowable, costs must be consistent with policies, regulations, and procedures that apply uniformly to both Federal awards and other activities of the applicant. The receiving entity is responsible for requesting FEMA assistance and for the non-Federal cost share.

Contracts
Contracts must be of reasonable cost, generally must be competitively bid, and must comply with Federal, State, and local procurement standards. FEMA regulations at 44 CFR Part 13 - Uniform Administrative Requirements For Grants And Cooperative Agreements To State And Local Governments provide specific guidance on contracts. FEMA finds four methods of procurement acceptable. Each is described below in general terms.

Small Purchase Procedures. Small purchase procurement is an informal method for securing services or supplies that do not cost more than $100,000 by obtaining several price quotes from different sources.

Sealed Bids. Sealed bid procurement is a formal method where bids are publicly advertised and solicited, and the contract is awarded to the bidder whose proposal is the lowest in price (this method is the preferred method for procuring construction contracts).

Competitive Proposals. Competitive procurement is a method similar to sealed bid procurement in which contracts are awarded on the basis of contractor qualifications instead of solely on price (this method is often used for procuring architectural or engineering professional services).

Noncompetitive Proposals. Noncompetitive procurement is a method whereby a proposal is received from only one source. Noncompetitive proposals should be used only when the award of a contract is not feasible under small purchase procedures, sealed bids, or competitive proposals, and one of the following circumstances applies:

  • the item is available only from a single source;

  • there is an emergency requirement that will not permit a delay for competition;

  • FEMA authorizes a noncompetitive proposal; or

  • solicitation from a number of sources has been attempted, and competition is determined to be inadequate.

"Piggyback contracting" is a concept of expanding a previously awarded contract. Piggyback contracting does not meet the requirements of 44 CFR Part 13 because it is non-competitive and may have an inappropriate price structure. This type of contract is not eligible. However, FEMA may separately evaluate and reimburse costs it finds fair and reasonable.

It is important to recognize that an applicant may provide a contract that meets the legal and administrative procurement requirements but includes aspects that would not be eligible for FEMA funding. Each type of contract must be reviewed carefully to assure compliance with the FEMA scope of eligible work.

FEMA provides reimbursement for three types of contracts. They are:

  • lump sum contracts for work within a prescribed boundary with a clearly defined scope and a total price;

  • unit price contracts for work done on an item-by-item basis with cost determined per unit; and

  • cost plus fixed fee contracts, which are either lump sum or unit price contracts with a fixed contractor fee added into the price.

Applicants should avoid using time and materials contracts. FEMA may provide assistance for work completed under such contracts for a limited period (generally not more than 70 hours) for work that is necessary immediately after the disaster has occurred when a clear scope of work cannot be developed. Monitoring is critical and a competitive process still should be used to include labor and equipment rates. Trimming trees of dangerous hangers may be an appropriate use of this type of contract, but only if an acceptable unit price contract is not feasible. Applicants must carefully monitor and document contractor expenses, and a cost ceiling or "not to exceed" provision must be included in the contract. If a time and materials contract has been used, the applicant should contact the State to ensure proper guidelines are followed. Cost plus a percentage of cost contracts are not eligible. However, FEMA may separately evaluate and reimburse costs it finds fair and reasonable. FEMA may review proposed contracts for compliance with FEMA eligibility rules and reasonableness of costs, but such a review does not constitute approval.

FEMA has developed an on-line debris contractor registry tool to assist State and local governments in identifying and contacting contractor resources. The registry tool can be found on FEMA's website (www.fema.gov/business/contractor.shtm). The information provided in the registry is maintained by contractors and their representatives. FEMA does not verify, and takes no responsibility for, the accuracy of any of the information submitted. FEMA does not endorse, approve, or recommend any contractors, including those in the registry. State and local governments should perform all appropriate due diligence prior to entering into a contract. Contracting with any of the entities listed in the registry does not assure a State or local government of reimbursement under a Federal grant. State and local governments should follow their competitive procurement procedures when selecting a contractor.

Loss of Revenue
The loss of revenue is not an eligible cost authorized by the Stafford Act and, therefore, cannot be funded through the PA Program. Loss of revenue may occur:

  • when a hospital releases non-critical patients in order to make room for disaster victims;

  • when a hospital sustains damage that reduces its pre-disaster capacity;

  • when a toll road is opened for evacuation of traffic and the normal toll is not charged;

  • when the State waives the normal fee for ferry service to encourage alternate transportation after a disaster event; or

  • when a utility system is shut down as the result of a disaster.

Applicants may suffer other costs that are ineligible for FEMA assistance, such as payment of salaries for employees sent home during an emergency.

Increased Operating Expenses
The costs of operating a facility or providing a service may increase due to or after a disaster. With few exceptions, these costs are not eligible. Some examples of ineligible costs are:

  • increased hospital patient care costs;

  • increased costs for feeding residents and staff of critical facilities;

  • increased costs of administrative operations;

  • increased costs for care and feeding of prisoners and people in residential facilities (schools, nursing homes, etc.);

  • increased costs of telecommunications (e.g., additional cell phone instruments and fees);

  • increased costs for copying, parcel delivery, photography, supplies, fuel, materials, and similar costs;

  • food service (other than mass feeding as an emergency protective measure);

  • increased cost of obtaining electrical power from an alternate source;

  • increased cost of obtaining water from an alternate source; and

  • costs of finance charges, e.g., interest on loans and bond costs to finance rebuilding.

However, reasonable short-term additional costs to an applicant that are directly related to accomplishing specific emergency health and safety tasks as part of eligible emergency protective measures may be eligible. If they can be documented and identified with a specific emergency task, some examples of potentially eligible costs are:

  • increased utility costs of a permanently mounted generator at a hospital or at a police station;

  • increased water-testing and water-treatment supplies in the immediate aftermath of a disaster to counter a specific threat;

  • increased fuel for increased use of a pumping station;

  • increased costs of vector control; and

  • increased facility costs (e.g., electricity) for emergency operating centers of eligible applicants.

Examples of Emergency Protective Measures are given on pages 71-74.

Surveys for Damage
The owner of a facility is responsible for determining the extent of damage. Surveys are not eligible work under a PW. Such activities are covered by an applicant's administrative allowance. Examples of ineligible survey costs include:

  • general surveys for eligible facilities;

  • video inspection of sewer lines;

  • bridge inspections to determine the possibility of damage; and

  • pier inspections to determine the possibility of damage.

In some instances, damage to an inaccessible structure or structural component may be evident based on other observations, such as sunken ground above a buried pipeline, loss of or increased flow in a pipe, or visible damage to finishes. If such conditions are evident, FEMA may pay for inspections to determine the extent of damage and method of repair. When disaster-related damage is discovered during a survey or is evident from other observation, inspection of only the damaged section is eligible. That limited cost may be included in the PW for the damages.

After a facility is determined to be damaged, costs for an engineering evaluation to determine the type and extent of repairs necessary to return the facility to its pre-disaster condition is eligible as part of the costs of permanent repair.

Donated Resources
Third party donated resources (volunteer labor, donated equipment, and donated materials) are eligible to offset the non-Federal portion of the cost for emergency work. (See FEMA Policy 9525.2, Donated Resources.) The amount of credit that can be applied to a project is capped at the non-Federal share so that the Federal share will not exceed the applicant's actual out-of-pocket costs. Any excess credit can be applied to other emergency work projects of the same applicant.

Donated resources must apply to actual eligible emergency work, such as debris removal or the filling and placing of sandbags. An example of ineligible donated resources is volunteers helping individuals applying for assistance. The donated services must be documented and must include a record of hours worked, number of workers at the work site, and a description of work.

Volunteer labor will be valued at the same hourly labor rate as a similarly qualified person in the applicant's organization who normally performs similar work. If the applicant does not have employees performing similar work, the rate should be consistent with that for a similarly qualified person ordinarily performing the work in the same labor market.

The value for donated equipment should be determined by using the applicable FEMA equipment rate and multiplying it by the number of hours the piece of equipment was used to perform eligible work.

Donated materials are valued at the current commercial rate. If the materials were donated by a Federal agency, such as sandbags donated by the USACE, the value of the materials cannot be applied as credit.

Engineering and Design Services
The costs of basic engineering and design services normally performed by an architectural-engineering firm on complex construction projects are eligible for reimbursement. Such services include:

  • preliminary engineering analysis;

  • preliminary design;

  • final design; and

  • construction inspection.

While a final inspection and reconciliation will be used to determine the actual costs for reimbursement of these services, the costs can be estimated during project formulation using a percentage of the construction cost. Percentages are derived from FEMA engineering and design services cost curves. These curves, which were developed for FEMA from data developed by the American Society of Civil Engineers Committee on Professional Practice in 2005, show a correlation between engineering costs and total construction costs. These curves are shown in Figures 3 and 4. To use the curves, estimate construction costs for a project. Find the construction cost on the horizontal axis and, using the appropriate curve for either force account or contract work, read the associated percentage of engineering and design services from the vertical axis. This percentage can be multiplied by the estimated construction cost to determine an appropriate engineering and design cost estimate.

Curve A applies to projects of above-average complexity and non-standard design. Examples of such projects include:

  • airports with extensive terminal facilities;

  • water, wastewater, and industrial waste treatment plants;

  • hospitals, schools, and office buildings;

  • power plants;

  • large dams and complicated small dams;

  • highway and railway tunnels;

  • pumping stations;

  • incinerators; and

  • complicated waterfront and marine terminal facilities.

Graph of the compensation for basic services expressed as a percentage of construction cost for projects of above-average complexity and non-standard design

NOTE: "Contract" and "Force Account" above mean engineering and design services performed by contract or by an applicant's own employees, respectively.

Curve B applies to projects of average complexity. Examples of such projects include:

industrial buildings, warehouses, garages, hangars, and comparable structures;
bridges and other structures of conventional design;
simple waterfront facilities;
roads and streets;
conventional levees, floodwalls, and retaining walls;
small dams;
storm sewers and drains;
sanitary sewers;
water distribution lines;
irrigation works, except pumping plants; and
airports, except as classified for Curve A.

In addition to the basic engineering services, special services may be required for some projects. Such services include engineering surveys, soil investigations, services of a resident engineer, and feasibility studies. Because special services are not required on all projects, they are not included in the percentages on the engineering and design services curves. These services are estimated separately.

If a project requires only basic construction management, a fee not exceeding 3 percent of construction costs may be used for the estimate. Management functions include review of bids, work site inspection visits, checking and approval of material samples, review of shop drawings and change orders, review of contractor's request for payment, and acting as the client's representative. An example of a project requiring only inspection services but no design and engineering would be a building repair project that only included patching and painting damaged interior wall. Another example would be where a contractor is hired to repair local roads back to the pre-disaster condition, using local construction standards.

Estimates for engineering and design services and construction inspection typically are not included in small project estimates or emergency work project estimates except for complex projects or projects where special services are required.

Graph of the compensation for basic services expressed as a percentage of construction cost for projects of average complexity

NOTE: "Contract" and "Force Account" above mean engineering and design services performed by contract or by an applicant's own employees, respectively.

Actual costs, not estimated costs, for eligible engineering and design services should be claimed in large project final inspection and reconciliation. Costs that exceed the amounts determined by use of these curves will be reviewed for reasonableness and funded accordingly.

Project Supervision and Grant Management Costs
Applicants have several types of eligible supervisory and management costs available that serve different purposes and need to be identified and claimed separately. (See FEMA Policy 9525.6, Project Supervision and Management Costs of Subgrantees.) Commingling of these various costs and claiming them incorrectly may result in loss of eligible reimbursement. Project management costs provided when using the Cost Estimating Format methodology for estimating project costs (see pages 105-106) must not duplicate other requests for reimbursement.

The following items may be eligible project supervision and management costs:

  1.  

  2. Supervision and Management by Force Account. In general, applicant expenses for administration and management activities not specifically accountable to an eligible work project are ineligible. The regular time salaries of an applicant's permanently employed personnel who supervise or manage emergency work performed by an applicant's employees (or by contractors) are not eligible; only overtime costs are eligible for emergency work. Labor costs of second level supervisors (and above) are ineligible unless the applicant can account for specific time spent on eligible permanent projects. Generally, the labor costs of only first line supervisors of permanent work are eligible.

     

  3. Project Management Activities. Project management is the oversight of an eligible project from the design phase to the completion of work. Eligible project management activities are those activities that the applicant would have performed in the absence of Federal funding, such as:

    • direct management of projects in the concept and design stages that are being designed by an applicant's in-house staff, or by an architectural/engineering firm retained to analyze and design the repair or replacement of damaged facilities;

    • procurement activities for architectural/engineering services and performance of work;

    • review and approval of the project design regardless of who performs the design work; and

    • management of construction work by contractors.

  4. Master Service Agreements. Local governments occasionally enter into Service Agreements or Master Service Agreements (MSAs) with private contractors for management or overview of disaster work. The agreements typically involve a broadly defined scope of services, allowing the local government to use the contractor for multiple tasks. An MSA might include various tasking for architectural/engineering services, construction and construction management services, procurement assistance (bid document preparation, bid analysis and review, etc.), and other technical services (environmental and historic consulting etc.). The eligibility of specific costs payable under an MSA depends upon the nature of the work. If a task under the MSA meets FEMA eligibility criteria, complies with 44 CFR Part 13, does not duplicate other work funded by FEMA, and is directly related to a specific, FEMA-approved project, the cost may be incorporated into the PW for the project it is supporting. Any general MSA costs not directly related to the performance of a specific eligible project are not eligible for reimbursement. Some of these costs may be covered by the Administrative Allowance (e.g., preparing the grant application). A separate PW just for MSA activities may not be prepared. Grantees employing similar services may request coverage of these expenses on a State Management PW.

  5. Administrative Allowance.Federal regulations for grant programs allow the grant recipients to claim reasonable administrative costs, unless the law authorizing a grant program includes specific provisions for these costs. For the PA Program, the Stafford Act stipulates that each grant recipient be provided an allowance to meet the cost of administering the grant. The allowance is calculated differently for applicants and States and covers different costs for each.

    Applicants. The Administrative Allowance for applicants (subgrantees) covers direct and indirect costs incurred in requesting, obtaining, and administering Public Assistance, i.e., grant management. No other administrative or indirect costs incurred by an applicant are eligible. Examples of the activities that this allowance is intended to cover include:

    • identifying damage (to include photographs and flyovers of damaged areas);

    • attending the Applicants' Briefing;

    • completing forms necessary to request assistance;

    • preparing PWs for small projects or assisting the Project Specialist (Project Officer) in completing PWs for large projects;

    • establishing files, and providing copies and documentation;

    • assessing damage, collecting cost data, and developing cost estimates;

    • working with the State during project monitoring, final inspection, and audits; and

    • preparing for audits.

    The allowance is not intended to cover direct costs of managing specific projects that are completed using Public Assistance funds. These costs are eligible as part of the grant for each project, as long as they can be specifically identified and justified as necessary to do the work. For example:

    The wages of a foreman on the site of a repair project would be a direct cost associated with that project and would not be included in an applicant's Administrative Allowance.

    At the time of publication of this guide, FEMA was preparing to change the system for calculating the amount of compensation due. Until that new method is finalized, the following method will continue to be used.

    The Administrative Allowance for an applicant is calculated as a percentage of all approved eligible costs that the applicant receives for a given disaster. The applicant is not required to submit documentation for its administrative allowance, but records are required to be kept for audit purposes. If there are surplus Administrative Allowance funds, they must be returned to FEMA. Retaining unspent funds and using them for another purpose is not permitted by Federal regulation. This percentage is calculated using a sliding scale as indicated in Table 4.

    Table 4: Administrative Allowance - Applicants

    Total Amount of PA Project Funds

    Allowance

    First $100,000 of net eligible costs

    3 percent of net eligible costs

    Next $900,000 of net eligible costs

    2 percent of that $900,000 or less

    Next $4,000,000 of net eligible costs

    1 percent of that $4,000,000 or less

    Net eligible costs in excess of $5,000,000

    ½ percent of that excess

    States. The Administrative Allowance for States is provided for the extraordinary costs incurred for overtime pay, per diem, and travel expenses for State employees who participate in the administration of Public Assistance grants. It does not cover regular time labor costs, equipment purchases, contractor assistance, or other costs directly associated with grant administration.

    Examples of administrative activities covered by the allowance include:

    • field inspections;

    • preparation of damage assessments and cost estimates;

    • conducting Applicants' Briefings;

    • working with applicants; and

    • project monitoring, processing of appeals, final inspections, and audits.

    The Administrative Allowance is calculated as a percentage of the Federal share of all Public Assistance funds (under Sections 403, 406, 407, 502, and 503 of the Stafford Act) actually awarded in the State for a given disaster. The percentage is calculated on the Federal share of eligible Public Assistance costs for the entire disaster using the same sliding scale as that used for applicants. Costs covered under the State Management Administrative Costs (see Table 5) are not included in the base calculation of the Administrative Allowance. The State is not required to submit documentation for its Administrative Allowance, but records are required to be kept for audit purposes.

    At the time of publication of this guide, FEMA was preparing to change the system for calculating the amount of compensation due. Until that new method is finalized, the following method will continue to be used.

    Table 5: Administrative Allowance - Grantee

    Total Amount of PA Grant Funds

    Allowance

    First $100,000 of net eligible costs

    3 percent of net eligible costs

    Next $900,000 of net eligible costs

    2 percent of that $900,000 or less

    Next $4,000,000 of net eligible costs

    1 percent of that $4,000,000 or less

    Net eligible costs in excess of $5,000,000

    ½ percent of that excess

  6. State Management Administrative Costs. In addition to reimbursement under the Administrative Allowance, a State Management PW is prepared to cover the regular time of State employees and other grant administration costs associated with performing grant management activities. If it is necessary for a Grantee to employ a contractor to perform this work, reasonable contractor costs, including overtime, travel, and per diem, are eligible. (See FEMA Policy 9525.11, Payment of Contractors for Grant Management Tasks.) FEMA will continue to fund State costs by the current system until FEMA publishes regulations for management costs.

  7. State Indirect Cost Reimbursement. Indirect cost reimbursement is contingent on the State submitting a State Indirect Cost Rate Proposal or a Public Assistance Cost Allocation Plan per Attachments D and E of Office of Management and Budget (OMB) Circular A-87. The proposal or plan should be submitted to FEMA, Office of Financial Management, Disaster Finance Branch, Disaster Reports and Analysis Section, for approval.

Categories of Work

 

To facilitate the processing of Public Assistance grants, FEMA has divided disaster-related work into two broad categories, emergency work and permanent work. Emergency and permanent work are further divided into the seven defined categories shown in Table 6.

Table 6: Categories of Work

Category

Type of Work

Emergency Work:

A

Debris Removal

B

Emergency Protective Measures

Permanent Work:

C

Roads and Bridges

D

Water Control Facilities

E

Buildings and Equipment

F

Utilities

G

Parks, Recreational Facilities, and Other Items

 

Emergency Work
Emergency work is that which must be performed to reduce or eliminate an immediate threat to life, protect public health and safety, and to protect improved property that is threatened in a significant way as a result of the disaster. Specific eligibility criteria for the two emergency work categories, Category A Debris Removal and Category B Emergency Protective Measures, are discussed in detail in the individual category discussions that follow.

Within the referenced criteria, the term "immediate threat" describes imminent danger or the threat of additional damage or destruction from an event that could reasonably be expected to occur within 5 years. It must be kept in mind, however, that the definition of "emergency" or "immediate threat" may differ where the requirements of other laws or Federal agencies are concerned. The following are examples of how this definition applies to various disaster scenarios.

For a flood, the immediate threat exists if a 5-year flooding event could cause damage or threaten lives, public health, and safety. This is not a flood that necessarily happens within 5 years, but a flood that has a 20 percent chance of occurring in any given year.

For a landslide, an immediate threat may exist if the earth on a slope could slide as the result of a moderate amount of rainfall. A geotechnical study may be necessary to determine if an immediate threat exists.

For an earthquake, an immediate threat may exist if moderate ground shaking, such as might be expected during an aftershock, could cause further damage to a structure or threaten the safety of the structure's occupants.

For a hurricane, an immediate threat may exist if improved property could be exposed to flooding from a 5-year event. Similarly, if a wind-damaged facility is subject to additional damage by moderate winds, such winds could be considered an immediate threat.

State authorities must document the determination that an immediate health or safety threat is present pursuant to established State or local ordinances, regulations, or other engineering criteria.

"Improved property" means a structure, facility, or item of equipment that was built, constructed, or manufactured. It includes improved and maintained natural features. It does not include land improved for agricultural purposes.

Category A - Debris Removal

 

Potentially eligible debris removal activities include the clearance of:

  • trees and woody debris;

  • building components or contents;

  • sand, mud, silt, and gravel;

  • wreckage produced during conduct of emergency protective measures (e.g., drywall); and

  • other disaster-related wreckage.

To be eligible for Public Assistance, debris removal must be in the public interest, which is when removal is necessary to:

  • eliminate immediate threats to lives, public health and safety;

  • eliminate immediate threats of significant damage to improved public or private property when the measures are cost effective;

  • ensure economic recovery of the affected community to the benefit of the community-at-large; or

  • mitigate the risk to life and property by removing substantially damaged structures and associated appurtenances as needed to convert property acquired using FEMA hazard mitigation program funds to uses compatible with open space, recreation, or wetlands management practices. (See FEMA Policy 9523.4, Demolition of Private and Public Facilities.)

In all cases, the costs associated with these activities must be reasonable.

Public Property
In general, debris on public property that must be removed to allow continued safe operation of governmental functions or to alleviate an immediate threat is eligible. Debris that is blocking streets and highways is a threat to public health and safety because it blocks passage of emergency vehicles or it blocks access to emergency facilities such as hospitals. Debris in a natural stream or flood channel may cause flooding from a future storm. If such flooding would cause an immediate threat of damage to improved property, removal of the disaster-related debris only to the extent necessary to protect against an immediate threat would be eligible. However, not all public property clearance will necessarily be eligible. For example, removal of fallen trees in an unused forested or wilderness area would not be eligible.

Where temporary levees have been constructed as an emergency protective measure, removal of them will be eligible only to protect public health and safety or to protect improved public or private property.

Debris cleared from roads and highways, including the travel lanes and shoulders, roadside ditches and drainage structures, and the maintained right-of-way, may be eligible. When the Emergency Relief Program is activated for an area, FHWA assistance is available for debris removal on Federal-Aid roads and FEMA assistance is not available for these roads. If the Emergency Relief Program is not activated, then FEMA assistance may be available. (See pages 25-26 for further discussion of FHWA programs.)

The removal of debris from parks and recreational areas used by the public is eligible when it affects public health or safety or proper utilization of such facilities. Trees frequently constitute a large part of debris in these areas. Normally, trees requiring removal are flush cut at the ground. Stump removal is not eligible unless it is determined that the stump itself poses a hazard, as when the tree has been uprooted. When eligible, stump removal will be accomplished by the most economical means. [For additional guidance regarding debris operations and FEMA eligibility criteria, See FEMA Policy 9523.11, Hazardous Stump Extraction and Removal Eligibility; FEMA Policy 9523.12, Debris Operations: Hand-Loaded Trucks and Trailers; the Debris Management Guide (FEMA publication 325); FEMA 9580.1, Public Assistance Debris Operations Job Aid; FEMA Fact Sheet 9580.201, Debris Removal Applicant's Contracting Checklist; and FEMA Fact Sheet 9580.202, Debris Removal Authorities of Federal Agencies.]

Private Property
Debris on private property rarely meets the public interest standard because it does not affect the public at large and may not be the legal responsibility of a State or local government. Debris removal from private property is the responsibility of the individual property owner aided by insurance settlements and assistance from volunteer agencies. Many homeowner fire and extended coverage insurance policies have specific coverage for debris removal and for demolition of heavily damaged structures. FEMA assistance is not available to reimburse private property owners for the cost of removing debris from their property; however, an eligible local or State government may pick up and dispose of disaster-related debris placed at the public right-of-way by those private individuals. This type of work must be carefully controlled with regard to extent and duration.

If debris on private business and residential property is so widespread that public health, safety, or the economic recovery of the community is threatened, the actual removal of debris from the private property by an applicant may be eligible. Such debris removal must benefit the general public and not just an individual or a limited group of individuals within the community. The use of the economic recovery criterion is normally restricted to the removal of disaster-related debris from large commercial areas when a significant percentage of the commercial sector of a community is impacted and coordinated debris removal is necessary to expedite restoration of the economic viability of the affected community. It does not normally apply to residential property. In each of these situations, the work must be done, or be contracted for, by an eligible applicant. If the local government and the State are both incapable of arranging for the work to be done, direct Federal assistance may be requested. Direct Federal Assistance is discussed in more detail on pages 76-78 of this guide. FEMA must approve removal of debris from private property before the work begins for that work to be eligible. Additionally, debris removal from private property will not be approved until the State or local government has agreed in writing before work begins to indemnify FEMA from any claims arising from such removal and has obtained unconditional authorization to remove the debris from the property owner. This indemnification includes Right-of-Entry agreements, release from liability, and signed agreements with property owners that any available insurance proceeds will be pursued and credited back to FEMA. Debris removal from agricultural land is not eligible. See the discussion of Homeowners' Associations and Gated Communities on pages 20-21 for further information on debris on private property.

A governmental resolution after a disaster by an applicant declaring that debris on private property constitutes a threat to public health and safety does not in itself make the debris removal eligible. The applicant should submit its established, specific legal requirements for declaring the existence of a threat to public health and safety to FEMA for review and approval. Conditions that could make the removal of debris from private property eligible for reimbursement include:

  • a damaged structure may be a public health and safety hazard if it could be condemned as such pursuant to the provisions of an applicant's ordinance related to condemnation of damaged structures. Such a determination must be made by an individual qualified to do so, such as a certified building inspector; or

  • a public health hazard may exist if such a determination is made pursuant to the provision of an applicant's ordinance related to public health. Such a determination must be made by an individual qualified to do so, such as a public health official.

In general, even if private property debris removal is authorized, FEMA will not pay for removal of the following:

  • privately owned vehicles, whether or not insured;

  • old white goods (refrigerators, washers, dryers, etc.) located on private property awaiting proper disposal before the disaster;

  • old tires, batteries, or any equipment/material located on private property awaiting proper disposal before the disaster;

  • other equipment or material stored on the property or awaiting disposal before the disaster;

  • damaged swimming pools and basements;

  • damaged foundations (unless it is part of a mitigation buy-out project); or

  • reconstruction debris, private or public, sometimes called construction rubble. This is material resulting from reconstruction activities. Removal is the responsibility of the property owner. Removal of reconstruction debris from an eligible facility may be included in the repair/replacement Project Worksheet for that facility.

Category B - Emergency Protective Measures

 

Emergency protective measures are those activities undertaken by a community before, during, and following a disaster that are necessary to do one of the following:

  • eliminate or reduce an immediate threat to life, public health, or safety; or

  • eliminate or reduce an immediate threat of significant damage to improved public or private property through cost-effective measures.

Generally, those prudent actions taken by a community to warn residents, reduce the disaster damage, ensure the continuation of essential public services, and protect lives and public health or safety are eligible for assistance. Such activities should be evaluated to ensure that they meet the criteria of the law. The following list provides examples of activities that may be eligible:

  • Warning of risks and hazards.

  • Search and rescue, including transportation of disaster victims.

  • Emergency medical facilities. Eligible costs include any additional temporary facilities and equipment required to treat disaster victims when existing facilities are overloaded or damaged. Ineligible costs include any costs for emergency medical treatment (including vaccinations), labor costs (physicians, medical personnel, etc.), follow-on treatment, increased operational and administrative costs, and loss of revenue. (See FEMA Policy 9525.4, Medical Care and Evacuations.)

  • Emergency evacuations of medical and custodial care facilities. Eligible costs include transportation and extraordinary labor costs for non-medical staff assisting in the evacuations. Ineligible costs include medical staff and supplies utilized during the evacuations. (See FEMA Policy 9525.4, Medical Care and Evacuations.)

  • Facility costs (but not labor costs) for emergency mass care and shelter operations provided by volunteer agencies. Eligible costs generally include supplies, durable medical equipment, security, cleanup, minor repairs, and increased utility costs. Lease costs are not eligible except in the most extraordinary of disaster situations.

  • Facility costs (including labor costs allowed under FEMA Policy 9525.7, Labor Costs - Emergency Work) for emergency mass care and shelter operations provided by governmental entities when volunteer agencies are unable to provide emergency mass care and shelter. Eligible costs generally include supplies, durable medical equipment, security, cleanup, minor repairs, and increased utility costs. Lease costs are not eligible costs except in the most extraordinary of disaster situations.

  • Expenses of PNPs for providing emergency protective measures for their facilities are eligible if their facilities are otherwise eligible for assistance.

  • Security in the disaster area.

  • Provision of food, water, ice, and other essential needs at central distribution points for use by the local population.

  • Temporary generators for facilities that provide health and safety services.

  • Rescue, care, shelter, and essential needs for household pets and service animals if claimed by a State or local government. Service animals will be sheltered with their owners in congregate shelters. (See FEMA Policy 9523.18, Eligible Costs Related to Pet Evacuations and Sheltering.)

  • The provisions of rescue, evacuation, movement of supplies and persons, care, shelter, and essential needs for human populations affected by the outbreak and spread of influenza pandemic. Three conditions must be met for a pandemic to start: a) a new influenza virus subtype must emerge for which there is little or no human immunity; b) it must infect humans and cause illness; and c) it must spread easily and sustainably (continue without interruption) among humans.

  • Provision of temporary facilities for schools (public and PNP) and essential community services. Examples of temporary facilities include construction of a temporary bridge or detour road to replace an essential crossing facility, temporary hookup of utilities, and essential temporary buildings for schools or government offices. Eligibility criteria for temporary relocation are outlined on pages 38-39. (See FEMA Policy 9523.3, Provision of Temporary Relocation Facilities.)

  • Activation of a State or local emergency operations center to coordinate and direct the response to a disaster event. Costs must be associated with a time frame related to circumstances justified by the nature of the emergency or disaster. Often an emergency operations center is used to direct response activities for a period of time, and then its primary activity shifts to managing the Federal assistance.

  • Because the Stafford Act places limitations on reimbursement for the costs of administering the Federal grant, the applicant must keep track of which duties are being performed by the center's personnel. Applicant pre-disaster pay policies related to overtime, compensatory time, and Fair Labor Standards Act designations are integral to eligibility determinations regarding costs.

  • Demolition and removal of damaged public and private buildings and structures that pose an immediate threat to the safety of the general public. The threat must be identified by local officials according to established local ordinances and verified by State and Federal officials. In some instances, securing a damaged building from access is sufficient to alleviate the threat and demolition is not necessary. Buildings that were condemned as a safety hazard before the disaster are not eligible. (See FEMA Policy 9523.4, Demolition of Private and Public Facilities.)

  • Removal of health and safety hazards. Such activities may include the following:

    • disposal of dead animals;

    • pumping of trapped floodwaters that threaten improved property;

    • pumping of flooded basements, but only if there is a widespread need affecting numerous homes and businesses in the community;

    • pumping of septic tanks or decontamination of wells, but only if there is a widespread pollution threat; and.

    • vector control of rodents or insects when there is a serious health hazard. A serious health threat exists when a specific threat posed by the increased vector population is identified. Verification of the threat by the Federal Centers for Disease Control or State or local health agencies in accordance with established ordinances is required. [See FEMA Policy 9523.10, Vector Control (Mosquito Abatement).]

  • Construction of emergency protective measures to protect lives or improved property to include the following:

    • temporary levees, berms, dikes, and sandbagging by itself or on top of a levee;

    • buttressing, bracing, or shoring of a damaged structure to protect against further damage to the structure, or to protect the general public;

    • emergency repairs to protective facilities (work is limited to that which would provide protection from a 5-year event or would restore the facility to its pre-disaster design, whichever is less); and placement of sand on a beach to serve as protection of improved property from waves and flooding (the same criteria regarding the level of protection apply).

     

  • Emergency measures to prevent further damage to an eligible facility. Boarding windows or doors, covering the roof, and remediation to stop the spread of mold in the immediate aftermath of the disaster are examples of this work.

  • Restoration of access. If a privately owned access (such as a driveway, road, or bridge) is damaged, funds for restoration of this access may be eligible either under FEMA's Individuals and Households Program or FEMA's PA Program. In cases where homes are inaccessible as a result of the damage, work to establish emergency access may be eligible under PA if an eligible applicant has legal authority to perform the work and provided that the emergency access economically eliminates the need for temporary housing. The PA Program staff should coordinate with the Individuals and Households Program staff to eliminate duplication of effort and funds.

Other Types of Emergency Work
Specific eligibility criteria may also apply to the provision of emergency communications, public transportation, building inspections, and snow removal. These criteria are defined as follows.

Emergency Communications. The communications system in a local community may be damaged by a disaster to the extent that the local officials are unable to carry out their duties of providing essential community services or responding to the disaster. A temporary emergency communications system, such as a mobile radio system or cellular telephones, may be needed. Such a system is meant to supplement the portion of the community's communications that remains operable, not to replace or expand the pre-disaster system. The community is expected to repair the damaged system on an expedited basis so that the assistance can be terminated when there is no longer an emergency need.

The temporary system may be eligible for assistance, but only through Direct Federal Assistance. FEMA, through a Mission Assignment, would use appropriate Federal agencies to perform the eligible work. See pages 76-78 for additional discussion regarding Direct Federal Assistance and Mission Assignments.

Emergency Public Transportation. The essential portions of a community's transportation system may be damaged by a disaster to such an extent that the vital functions of community life are disrupted. This situation may involve damage to buses, a subway system, or a bridge between two sections of the city. For some of these damaged facilities, replacement with temporary facilities may provide the solution. In other situations, there may not be a specific damaged facility, but there is still a need to supplement existing transportation.

This condition may result from temporary changes in the location of government facilities or residential areas or a need to access different shopping areas. The supplemental system must be required to ensure access to public places, employment centers, post offices, and schools so that a normal pattern of life may be restored as soon as possible.

The emergency transportation, such as extra buses or trains, additional school buses to transport relocated students, or new bus routes, may be eligible for assistance, but only through Direct Federal Assistance. FEMA, through a Mission Assignment, would use appropriate Federal agencies to perform the eligible work.

The damaged facilities should be restored, or the need for supplemental transportation should be addressed, as soon as possible so that the assistance can be terminated when there is no longer an emergency need.

Building Inspection. Safety inspections are eligible if necessary to establish whether a damaged structure poses an immediate threat to life, public health, or safety. Inspections associated with a determination of substantial damage under the National Flood Insurance Program, the determination if a building should be elevated or relocated, a determination of what repairs are needed to make a building habitable, and code enforcement during reconstruction are not eligible, because these inspections go beyond the scope of a safety inspection. (See FEMA Policy 9523.2, Eligibility of Building Inspections in a Post-Disaster Environment.)

Snow Removal. Snow removal assistance may be eligible for Public Assistance provided that:

  • the snowfall is of record or near record amount using National Oceanic and Atmospheric Administration (NOAA) data;

  • the response is beyond the State and local government capabilities; and.

  • the action is necessary to save lives, protect public health and safety, and protect improved property.

Heavy snowfall over an extended period of time, severe winds and extraordinary drifting, extraordinary ice formations, and the cumulative effect of snow on the ground may be the basis for assistance when the snow depth is a near-record amount.

Snow removal assistance is eligible for a 48-hour period to address the most critical emergency needs. The 48-hour period may begin at a time other than when the storm actually began. Each applicant designates the beginning of its 48-hour period. All snow plowing, salting, sanding, and related emergency work performed during the 48-hour period are eligible. (See FEMA Policy 9523.1, Snow Assistance Policy.)

Direct Federal Assistance
When the impact of a disaster is so severe that neither the State nor local government can adequately respond, either by direct performance or by contract, the State may request that certain emergency work be performed directly by a Federal agency. See 44 CFR §206.208 for a discussion of types of Direct Federal Assistance. Under the provisions of the regulations, FEMA, through "Mission Assignments," may use appropriate Federal agencies to perform work or to contract for it to be performed.

The work to be performed must be eligible under the Stafford Act and Federal regulations and is limited to:

  • debris removal;

    • The duration of mission assignments for debris removal will be limited to 60 days from the declaration date. The Federal Coordinating Officer may approve extensions for up to an additional 60 days, if a State or local government demonstrates a continued lack of capability to assume oversight of the debris removal mission. Further extensions will require approval by the Assistant Administrator of the Disaster Assistance Directorate.

  • emergency protective measures;

  • emergency communications; and.

  • emergency public transportation.

The assistance is subject to the cost-sharing provisions applicable to the disaster. The State must reimburse FEMA for the appropriate non-Federal share of the cost of the work, including any administrative costs of the performing Federal agency.

A request for direct Federal assistance must be submitted by the State to the DRM either on its own behalf or on behalf of an applicant. The request must include the items listed below.

  • A written agreement that the State will:

    • provide, without cost to the United States, all lands, easements, and rights-of-way necessary to complete the approved work;

    • hold and save the United States free from damages due to the requested work and indemnify the Federal government against any claims arising from such work;

    • provide reimbursement to FEMA for the non-Federal share of the cost of the work; and.

    • assist the performing Federal department or agency in all support and local jurisdictional matters.

  • A statement explaining why the State and local governments are unable to perform or contract for the work.

  • If the State is legally unable to agree to the first two items listed under the first bullet above, an agreement from the applicant that it will be responsible for the items. The provision of lands, easements, or rights-of-way without cost to the United States means that any leasing or purchase costs will be borne by non-Federal interests. The costs of preparation for the assistance operations and costs of restoration to pre-operation conditions will be eligible for Federal assistance.

When the President approves 100% funding for debris removal or emergency protective measures, FEMA Policy 9523.9, 100% Funding for Direct Federal Assistance and Grant Assistance, gives guidance on eligibility and duration of this work. Two provisions of the policy that may be applicable to emergency work are:

  • The policy provides for up to 100% Federal funding for Direct Federal Assistance when warranted by the needs of the disaster. Such assistance is limited to work completed during the first 72 hours following the Presidential declarations of a major disaster.

  • The policy also provides for up to 100% Federal funding for grant assistance (i.e., when the applicant performs the work or contracts it out) when warranted by the needs of the disaster. The period for work to be completed is a 72-hour period selected by the applicant within a window from 12:01 a.m. of the date of a Governor's or city or county official's declaration of emergency through 11:59 p.m. of the seventh full day after the date of the Presidential declaration of a major disaster. The period may be different for Category A and Category B work.

For additional guidance regarding mission assignments performed by the Environmental Protection Agency, see FEMA Policy 9523.8, Mission Assignments for ESF #10.

Permanent Work
Permanent work is that which is required to restore a damaged facility, through repair or restoration, to its pre-disaster design, function, and capacity in accordance with applicable codes or standards. Each of these items is defined below.

Design: FEMA provides funds to restore a facility to its pre-disaster design or to a design in accordance with an applicable standard. Such a standard must meet the requirements for eligible standards discussed on pages 33-36. Uniform use of the standard in situations when Federal funds are not involved for similar types of facilities is a key factor in the evaluation of a standard. Standards might involve sizing of a replacement culvert pipe or the type of material it is made of. Standards might also have "triggers" that require alteration to other parts of the facility, even undamaged parts. This type of requirement in a standard must be found "reasonable," another key factor in evaluating a standard. Additionally, the design must be limited to the original design or to the immediate pre-disaster alternate use, whichever costs less. See pages 27 for additional discussion of alternate use facilities.

Function: The facility must perform the same function that it was performing before the disaster. For example, a school gymnasium is in need of repair after an earthquake. The school district proposes to convert the space into a two-story office complex. Only the repairs to return the building to its use as a gymnasium are eligible. FEMA cannot provide funding for the conversion to office space, except as an alternate project.

Capacity: The restored facility must operate at the capacity available before the disaster. For example, a school designed for 100 students is damaged beyond repair during a hurricane. The eligible replacement facility must be designed for no more than 100 students. If code dictates a larger area per unit of capacity (e.g., square footage per student), FEMA may provide assistance to increase the size of the building. FEMA will not reimburse for the cost to build a larger school required due to a greater service area or over-utilization of space. A larger facility with greater capacity may be built as an improved project (see pages 110-111).

Category C - Roads and Bridges

 

Roads, bridges, and associated facilities (e.g., auxiliary structures, lighting, and signage) are eligible for Public Assistance. For roads (paved, gravel, and dirt), eligible items include:

  • surfaces;

  • bases;

  • shoulders;

  • ditches;

  • drainage structures; and.

  • low water crossings.

For bridges, eligible items include:

  • decking and pavement;

  • piers;

  • girders;

  • abutments;

  • slope protection; and.

  • approaches.

Only repairs of disaster-related damage are eligible. In some cases, it may be possible to review pre-disaster bridge inspection reports to determine if damage to a bridge was present before the disaster. As discussed on pages 25-26, permanent restoration of any facility, whether it is a road, bridge, or related structure, that is part of a Federal-Aid route and falls under the authority of the FHWA, is not eligible for Public Assistance. Other examples of ineligible facilities include roads that service USACE or NRCS levees and dams. Private roads, including homeowners' association roads, are not eligible.

For Category C work, upgrades necessary to meet current standards for road and bridge construction, such as standards for pavement and lane width, may be eligible for Public Assistance. If code requires, and if the applicant has consistently implemented that code, or if there has been no opportunity to implement the code but the applicant agrees to in the future, FEMA will fund changes in the bridge design to include changing it from one lane to two lanes and access modification for a short distance. However, FEMA will not fund construction of additional lanes (for example, from two to four lanes or from four to six lanes) because such work is beyond that necessary to restore the pre-disaster capacity of the facility.

Landslides. Specific eligibility criteria also apply to slope failures and washouts that are considered landslides. The term landslide describes a wide variety of processes that result in the downward and outward movement of slope-forming materials including soil, artificial fill, or a combination of these. Stabilization or restoration of failed slopes is only eligible in the situations described below. (See FEMA Policy 9524.2, Policy on Landslides and Slope Failures.)

Emergency work: If a disaster-caused landslide poses an immediate threat to life, public health, and safety, or improved public or private property, emergency protective measures to stabilize slopes may be eligible. However, the work must be the least cost option, must be completed within 6 months of the declaration, and must meet the requirements for work under Section 403 of the Stafford Act and 44 CFR §206.225(a)(3). Examples of eligible emergency protective measures include, but are not limited to:

  • temporary drainage measures;

  • temporary ground protection to better stabilize the mass (riprap, sheeting);

  • partial excavation at the head of a sliding mass to reduce driving force;

  • backfilling or buttressing at the toe of a sliding mass (gabions, rock toes, cribwalls, binwalls, soldier pile walls, etc.);

  • installation of barriers to redirect the debris flow; and.

  • temporary relocation of facilities' function, when cost effective and otherwise meeting criteria for temporary relocation.

Such measures must be temporary. Public assistance will be provided to address the area of the immediate threat only, not the stabilization of the entire hillside or long-term stabilization of the limited area. The Regional Administrator may authorize funding for post-disaster inspections and limited geotechnical investigations to determine if the disaster created an unsafe condition that poses an immediate threat to life or property.

Permanent work: If a landslide damages an eligible facility, repairs to that facility are eligible as long as the site is stable; the replacement of a reasonable amount of integral ground necessary to support the facility is also eligible. If the site instability was caused by the disaster, the site is eligible only if the work to stabilize the site is cost effective. However, if the site was unstable before the disaster, the applicant must pay to stabilize the site before Public Assistance funds are provided to repair the facility. Natural slopes and hillsides do not meet the definition of eligible facilities and are not eligible for permanent work assistance. The Regional Administrator may authorize post-disaster site inspections and geotechnical investigations to determine site stability.

Category D - Water Control Facilities

 

Water control facilities include:

  • dams and reservoirs;

  • levees;

  • lined and unlined engineered drainage channels;

  • canals;

  • aqueducts;

  • sediment basins;

  • shore protective devices;

  • irrigation facilities [for PNP irrigation eligibility, see 44 CFR §206.221(e)(3)]; and.

  • pumping facilities.

As described on pages 24-25, the USACE and NRCS have primary authority for repair of flood control works, whether constructed with Federal or non-Federal funds, as well as authority over federally funded shore protective devices. Permanent repairs to these facilities are not eligible through the PA Program. Other water control facilities may be eligible for FEMA assistance. (See FEMA Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works.)

Restoration of the carrying or storage capacity of engineered channels and debris basins may be eligible, but maintenance records or surveys must be produced to show the pre-disaster capacity of these facilities. The pre-disaster level of debris in the channel or basin is of particular importance to determine the amount of newly deposited disaster-related debris. Such a facility must also have had a regular clearance schedule to be considered an actively used and maintained facility.

Restoration of reservoirs to their pre-disaster capacity also may be eligible in accordance with the criteria for debris basins described above. Not all reservoirs are cleaned out on a regular basis, and evidence of pre-disaster maintenance must be provided to FEMA. In addition, removal of debris that poses an immediate threat of clogging or damaging intake or adjacent structures may be eligible. Only the removal of disaster-related debris is eligible. If all debris is removed, the project would be considered an improved project and costs would be pro-rated. Removal of debris to restore a facility to its pre-disaster capacity is Category A work.

Category E - Buildings and Equipment

 

Buildings, structural components, interior systems such as electrical or mechanical work, equipment, and contents including furnishings, are eligible for repair or replacement. Public assistance may be provided for the replacement of pre-disaster quantities of consumable supplies and inventory and for the replacement of library books and publications. Damaged or lost files are eligible only for stabilization (e.g., freeze drying or copying); re-establishing files and records from original information is not eligible. Removal of mud, silt, or other accumulated debris is eligible as permanent work if the debris does not pose an immediate threat but its removal, along with any cleaning and painting, is necessary to restore the building. If the work meets the immediate threat criteria, removal of disaster-related debris and treatment of spreading mold (in the immediate aftermath of the disaster) may be eligible as emergency work.

If an insurance policy applies to a building, equipment, contents, etc., FEMA must take that policy into account before providing funds for restoration of the building. The owners of insured buildings must provide FEMA with policy and settlement information as soon as possible after a disaster occurs. Detailed information on insurance is contained in Chapter 4.

FEMA may reimburse for upgrades that are required by certain codes and standards provided the upgrade work is required as a direct result of the disaster. An example might be roof bracing installed following a hurricane. For repairs, upgrades are limited to damaged elements only unless a reasonable code with a trigger requires upgrades to other parts of the facility. If a structure must be replaced, the new facility must comply with all appropriate codes and standards. See pages 33-36 for further information.

FEMA may fund the replacement of a damaged building if the building is completely destroyed or if the severity of damage meets FEMA's 50 Percent Rule for replacement (see pages 36-38). If a damaged building must be replaced, FEMA has the authority to reimburse for a building with the same capacity as the original structure (see page 79). However, if a written standard for space per occupant has changed since the original structure was built, FEMA may reimburse for construction of a larger building that accommodates the original design capacity. A Federal, State, or local agency or statute must mandate the increase in space in accordance with a written code; the increase cannot be based only on design practices for an industry or profession. FEMA will not fund additional capacity necessary due to increased population or use, even if required by code. (See "Codes and Standards" on pages 33-36 for general eligibility criteria.)

When museums, either publicly owned or owned by a PNP, are involved in disasters, culturally significant collections or objects may be damaged. Collections and objects in a museum, by their very nature, generally are one-of-a-kind and thus cannot be replaced. Therefore, replacement of destroyed collections or objects is not an eligible cost.

FEMA may, however, fund stabilization measures. Stabilization involves taking the minimum steps necessary to return a collection or object to a condition in which it can function in the same capacity as it did prior to the disaster. FEMA's Preservation Officer, in consultation with the applicant and the State, will use professional judgment to determine if additional treatment beyond stabilization is necessary to maintain the integrity of the collection or object and return it to its pre-disaster function. (See FEMA Policy 9524.6, Collections and Individual Objects.)

When equipment, including vehicles, is not repairable, FEMA will approve the cost of replacement with used items that are approximately the same age, capacity, and condition. FEMA may use "blue book" values or similar price guides to determine the eligible cost for used equipment and vehicles. Replacement of an item with a new item may be approved only if a used item is not available within a reasonable time and distance.

When a piece of applicant-owned equipment is performing eligible disaster work, extraordinary damage to the equipment that is caused by the disaster may be eligible. However, the cost of increased maintenance resulting from excess use is not eligible, because the cost of maintenance is included in FEMA's equipment rates. Damage that could have been reasonably avoided such as an accident also is not eligible. Reimbursement for the eligible damage is in addition to the applicable FEMA equipment rate being paid for the time the equipment was performing eligible work. (See FEMA Policy 9525.8, Damage to Applicant-Owned Equipment.)

Animals, birds, fish, and insects are treated as contents as long as they can be obtained through legal means from reputable sources by reasonable methods and at reasonable prices. Reimbursement is authorized only for juvenile specimens unless mature specimens are equivalently priced. (Research time and materials spent on developing the specimens is not eligible under the PA Program.)

Category F - Utilities

 

Utilities include:

  • water treatment plants and delivery systems;

  • power generation and distribution facilities, including natural gas systems, wind turbines, generators, substations, and power lines;

  • sewage collection systems and treatment plants; and.

  • communications.

The owner of a facility is responsible for determining the extent of damage; as with any facility, FEMA does not provide funds for general surveys to look for damage, such as video inspection of sewer lines. However, if disaster-related damage is evident, such as by observed loss of ground above a buried pipeline or loss of or increased flow in a pipe, FEMA may pay for inspections to determine the extent of the damage and method of repair. The extent of damage to equipment utilized in the generation or distribution of utilities should be confirmed through testing to determine if damage actually exists and that repair is sufficient or replacement is warranted. An example of this would be a pump in a lift station that has been flooded. The pump should be turned on or inspected and then tested to determine if the pump is damaged and if so, to what extent. Generally, large pieces of equipment such as a pump can be rebuilt rather than replaced. When disaster-related damage is discovered during a general survey, inspection of only the damaged section is eligible. When evaluating the repair of damage at multiple locations in a pipeline or other continuous facility, FEMA may consider the possibility of replacing a whole section if it is cost-effective when compared to repairing individual sites.

While FEMA may provide assistance for restoration of damaged utilities, FEMA does not provide assistance for increased operating expenses resulting from a disaster or for revenue lost if a utility is shut down (see page 54). However, the cost of establishing temporary emergency services in the event of a utility shut-down may be eligible (e.g., providing a temporary sewage facility).

Category G - Parks, Recreational, and Other

 

Eligible publicly owned facilities in this category include:

  • mass transit facilities such as railways;

  • playground equipment;

  • swimming pools;

  • bath houses;

  • tennis courts;

  • boat docks;

  • piers;

  • picnic tables;

  • golf courses;

  • fish hatcheries; and.

  • facilities that do not fit Categories C-F.

Other types of facilities, such as roads, buildings and utilities, that are located in parks and recreational areas are also eligible and are subject to the eligibility criteria for Categories C, D, E, and F.

PNP-owned park and recreational facilities are not eligible, nor are the supporting facilities, such as roads, buildings, and utilities.

As stated on page 22 of this guide, natural features are not eligible facilities unless they are improved and maintained. This restriction applies to features located in parks and recreational areas. Specific criteria apply to beaches and to trees and ground cover, as described below.

Beaches. Emergency placement of sand on a natural or engineered beach may be eligible when necessary to protect improved property from an immediate threat. Protection may be to a 5-year storm profile or to its pre-storm profile, whichever is less costly.

A beach is considered eligible for permanent repair if it is an improved beach and has been routinely maintained prior to the disaster. A beach is considered to be an "improved beach" if the following criteria apply:

  • the beach was constructed by the placement of sand to a designed elevation, width, grain size, and slope; and.

  • the beach has been maintained in accordance with a maintenance program involving the periodic re-nourishment of sand.

Typically, FEMA requests the following from an applicant before approving assistance for permanent restoration of a beach:

  • design documents and specifications, including analysis of grain size;

  • "as-built" plans;

  • documentation of regular maintenance or nourishment of the beach; and.

  • pre- and post-storm cross sections of the beach.

Restoration of sand on natural beaches beyond that necessary to provide emergency protection is not eligible.

Trees and Ground Cover. The replacement of trees, shrubs, and other ground cover is not eligible. (See FEMA Policy 9524.5, Trees, Shrubs and Other Plantings Associated with Facilities.) This restriction applies to trees and shrubs in recreational areas, such as parks, as well as trees and shrubs associated with public facilities, such as those located in the median strips along roadways and those used as landscaping for public buildings. This restriction also applies to instances where ground is disturbed due to movement of heavy equipment performing eligible work, such as when repairing underground utilities within landscaped areas.

Grass and sod are eligible only when necessary to stabilize slopes and minimize erosion.

This restriction does not affect removal of tree debris or the removal of trees as an emergency protective measure. FEMA will reimburse for the removal of tree debris and the removal of eligible trees, or buttressing if less costly than removal and disposal, as an emergency protective measure if it eliminates an immediate threat to lives, public health and safety, or improved property. However, FEMA will not pay for further costs or reimburse for the replacement of these trees.


June 2007
This guide describes FEMA's Public Assistance Program's basic provisions and application procedures. Because this document is not exhaustive and the provisions are subject to modification, the information contained herein should be verified with FEMA PA Program officials before becoming the basis for decision making.

Last Updated: 
07/24/2014 - 16:00
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