Note: This document was superseded on 5/13/2016 by: Emergency Relief for Federally Owned Roads (ERFO) Program Implementation Guidance

Emergency Relief for Federally Owned Roads (ERFO) MAP-21 Program Guidance

U.S. Department of Transportation Federal Highway Administration

Memorandum

This purpose of this memorandum is to provide guidance for changes to the Emergency Relief for Federally Owned Roads (ERFO) program.

July 6, 2012, amended 23 U.S.C. 125 "Emergency Relief" as follows:

• (e) TRIBAL TRANSPORTATION FACILITIES, FEDERAL LANDS TRANSPORTATION FACILITIES, AND PUBLIC ROADS ON FEDERAL LANDS.-

  • (1) DEFINITION OF OPEN TO PUBLIC TRAVEL.-In this subsection, the term 'open to public travel' means, with respect to a road, that, except during scheduled periods, extreme weather conditions, or emergencies, the road is open to the general public for use with a standard passenger vehicle, without restrictive gates or prohibitive signs or regulations, other than for general traffic control or restrictions based on size, weight, or class of registration.

  • (2) EXPENDITURE OF FUNDS.-Notwithstanding subsection (d)(1), the Secretary may expend funds from the emergency fund authorized by this section, independently or in cooperation with any other branch of the Federal Government, a State agency, a tribal government, an organization, or a person, for the repair or reconstruction of tribal transportation facilities, Federal lands transportation facilities, and other federally owned roads that are open to public travel, whether or not those facilities are Federal-aid highways.

  • (3) REIMBURSEMENT.-

    • (A) IN GENERAL.-The Secretary may reimburse Federal and State agencies (including political subdivisions) for expenditures made for projects determined eligible under this section, including expenditures for emergency repairs made before a determination of eligibility.

    • (B) TRANSFERS.-With respect to reimbursements described in subparagraph (A)-

      • (i) those reimbursements to Federal agencies and Indian tribal governments shall be transferred to the account from which the expenditure was made, or to a similar account that remains available for obligation; and

      • (ii) the budget authority associated with the expenditure shall be restored to the agency from which the authority was derived and shall be available for obligation until the end of the fiscal year following the year in which the transfer occurs.

Section 1508 of MAP-21 amended 23 U.S.C. 120 "Federal share payable" as follows:

• (e) EMERGENCY RELIEF.-The Federal share payable for any repair or reconstruction provided for by funds made available under section 125 for any project on a Federal-aid highway, including the Interstate System, shall not exceed the Federal share payable on a project on the system as provided in subsections (a) and (b), except that-

  • (1) the Federal share payable for eligible emergency repairs to minimize damage, protect facilities, or restore essential traffic accomplished within 180 days after the actual occurrence of the natural disaster or catastrophic failure may amount to 100 percent of the cost of the repairs;

  • (2) the Federal share payable for any repair or reconstruction of Federal land transportation facilities, Federal land access transportation facilities, and tribal transportation facilities may amount to 100 percent of the cost of the repair or reconstruction;

Effective October 1, these provisions will be implemented as follows:

• In addition to tribal transportation facilities and Federal lands transportation facilities, other Federally owned roads that are "open to public travel", whether or not those facilities are Federal-aid highways, are eligible for ERFO funds. This provides ERFO eligibility to Federally owned roads that may not meet the definition of a tribal transportation facility or a Federal lands transportation facility. The intent of this provision is to focus the limited ERFO funds on those facilities that are surfaced and maintained for standard passenger vehicles. Therefore, roads passable ONLY by high-clearance vehicles are not eligible for ERFO under this provision. High clearance roads no longer eligible for ERFO may be eligible for assistance under FEMA or other programs.

• To be eligible for ERFO funding under 23 U.S.C. 125(e)(2), trails and transit systems must be included in the inventory of Tribal or Federal Lands Transportation Facilities. Trails included in the inventory should provide access to high-use recreation sites or Federal economic generators.

• Section 125(e)(3) of title 23, United States Code, was amended to add language affecting the reimbursement to Federal Land Management Agencies (FLMAs). When FLMAs use their own funds for emergency and permanent repairs, ERFO funds can go back to the FLMAs original account or a similar account and remains available for obligation. Additionally, the budget authority shall be restored to the agency from which the authority was derived and shall be available for obligation until the end of the following fiscal year.

• The Forest Highway program is repealed at the end of FY12. Forest Highways are no longer eligible for ERFO funding, unless they are Federally-owned roads that meet the requirements of 23 U.S.C. 125(e). Other State and local roads that do not meet the requirements of 23 U.S.C. 125(e) may be eligible under the Federal-aid Emergency Relief program or FEMA.

• For eligible ERFO repairs accomplished more than 180 days after the occurrence of the natural disaster or catastrophic failure on facilities other than those meeting the definition of a Federal land transportation facility or tribal transportation facility, the Federal share payable shall be in accordance with 23 U.S.C. 120, including the sliding scale provision of 23 U.S.C. 120(b).

• Federal land access transportation facilities are not eligible for ERFO funding under 23 U.S.C. 125.

Repairs for Program of Projects (POPs) approved prior to and after October 1 will proceed under MAP-21 provisions. See FHWA Treatment of Carryover Highway Program Funding table. If you have any further questions, please contact Mr. Sergio Mayorga at 202-366-9491.