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MEMORANDUM

between the

U.S. FISH AND WILDLIFE SERVICE

and the

FEDERAL HIGHWAY ADMINISTRATION

for

ADMINISTERING EMERGENCY RELIEF FUNDS

under the

EMERGENCY RELIEF FOR FEDERALLY OWNED ROADS PROGRAM

The purpose of this agreement is to establish interagency procedures through which the U.S. Fish and Wildlife Service (Service) and the Federal Highway Administration (FHWA), will administer emergency relief funds under the Emergency Relief for Federally Owned Roads (ERFO) Program.  Funds for this program are provided under Title 23 United States Code (U.S.A.) 125, and

WHEREAS,the public roads owned by the Service on national wildlife refuges, national fish hatcheries, and other administrative units such as the National Conservation Training Center, meet the definition of Public Lands Highways as defined in 23 U.S.A. 101, and

WHEREAS,the Secretary of Transportation acting through the FHWA, is authorized to expend monies from emergency funds authorized under 23 U.S.A. 125 for the repair or reconstruction of Public Lands Highways which the Secretary shall find (Finding) have suffered serious damage as the result of a natural disaster over a wide area or catastrophic failure from any cause, and

WHEREAS,the authority to make a Finding for Public Lands Highways as defined in 23 U.S.A. 101 has been delegated to the Division Engineers in the Eastern, Central, and Western Federal Lands Highway Division (FLHD), by FHWA Order M 1100.1A, July 14, 1995, Part I, and

WHEREAS,the Service's Division of Engineering (DEN) has been delegated the authority by the Director to represent the Service on transportation matters,

THEREFORE:The Service and FHWA do hereby mutually agree as follows:

  1.   General

    The Service and FHWA will follow the procedures in the current ERFO Manual, current laws, regulations, and Executive Orders.

    The Service will provide a list of the public roads on Service lands by field station and State on a biannual basis to the FHWA Federal Lands Highway Office (FLHO).  Maps showing the locations of these roads will be available at the field stations for FHWA use.

    The Service agrees to apply for ERFO funds only to repair damage on public roads.

    The DEN will function as the Service's central point of contact for the ERFO program,  coordinating fully with the Service's Refuges and Hatcheries Washington Office program staffs, and regional and field station staffs to facilitate the repair of its public roads in an expeditious manner.

    The Service and FHWA will designate ERFO field coordinators.

    The Service is responsible for the administration of any ERFO funds and obligational authority.  This includes compliance with all applicable laws, regulations, and Executive Orders.

    The Service may recommend for approval by the Director, additional ERFO policies and procedures to be followed by the regions and field stations which are consistent with the ERFO Manual.

    The FHWA will provide ERFO related technical assistance and training as requested by the Service

    The Service shall make diligent efforts to recover repairs from the legally responsible parties to reduce the ERFO repair costs for highway damages which are caused by ships, barge tows, highway vehicles, vehicles with illegal loads, and similar improperly controlled objects or events.

  2. Notification, Disaster Assessment, Finding, and Damage Assessments

    The Service will:

    1. Immediately notify the FHWA (ERFO field coordinator) by telephone when it appears that damage or destruction caused by a natural disaster or catastrophic failure is sufficient to justify repair or reconstruction under the ERFO Program and the Service's intent to apply for emergency relief;
    2. Submit a Notice of Intent letter to the FHWA (FLHD) servicing that facility within two weeks of the beginning of the disaster.
    3. Assist the FHWA (ERFO field coordinator) in planning and conducting the disaster and damage assessments; and
    4. Submit initial damage survey reports to the FHWA (FLHD) within 3 months after the date of the Positive Finding letter.

    The FHWA (FLHD) will:

    1. Dispatch FHWA emergency response team(s) to provide technical assistance during and immediately after a natural disaster or catastrophic failure;
    2. Promptly acknowledge the Service's letter in writing within 7 calendar days of receipt of the Service's Notice of Intent letter;
    3. Plan and conduct a disaster assessment and determine if there has been a natural disaster of sufficient extent and intensity or catastrophic failure to warrant ERFO funding consideration;
    4. Make a Finding (positive or negative) that serious damage did or did not occur on Service roads within 60 calendar days of the receipt of the Service's Notice of Intent letter;
    5. Advise the Service by letter of the Negative Finding, and close the disaster file;
    6. Advise the Service by letter of the Positive Finding and explain the remaining process.  If a quick release of ERFO funding is appropriate, include its approval of ERFO funds in the Positive Finding letter;
    7. Arrange for Service or regional engineering staff and FHWA field personnel to be assigned to perform and conduct damage assessments; and
    8. Review and recommend approval or denial of each completed damage survey report and furnish a photocopy to the Service after any necessary revisions have been made.

  3. Application and the programming of ERFO repairs projects

    The Service will:

    1. Submit, by letter within 3 months after the Positive Finding was made, the ERFO program of projects for each disaster to the FHWA (FLHD) servicing that facility.  This should also include the list of ERFO repairs which the Service wants the FHWA (FLHD) to administer; and
    2. Submit, by letter to the FHWA (FLHD), any changes to the approved ERFO program of projects for each disaster.

    The FHWA (FLHD) will:

    1. Review and approve or deny the quick release of ERFO funds before an ERFO program of projects is approved for the disaster.
    2. Advise the Service by letter within 30 calendar days, of the approved program of projects for each disaster and provide guidance relative to the administration of ERFO projects.  This includes the FHWA (FLHD) need to approve the plans, specifications, and estimate (PS&E) package, concurrence in award/rejection of bids, approval of force account work by the Service, acceptance of completed construction for individual projects on major work sites during the program of projects approval process, and those repairs which it will administer; and
    3. Review and approve or deny by letter to the Service within 30 calendar days, changes to the approved ERFO program of projects for each disaster.

  4. Performing ERFO repairs

    The Service will:

    1. Submit for FHWA (FLHD) approval, if required, PS&E packages, concurrence in award/rejection of bids, approval of force account work, and acceptance of completed construction for individual projects on major work sites;
    2. Ensure that metric units are used in the PS&E package in accordance with the Service's metric implementation plan;
    3. Promptly and efficiently complete temporary and permanent ERFO repairs.  This includes compliance with all applicable laws, regulations, Executive Orders, and reporting requirements in the ERFO Manual.  All ERFO permanent repairs should be under construction by the end of the second fiscal year following the year in which the disaster occurred;
    4. Submit suitable justification for time extension to complete permanent repairs at least 60 days prior to the end of the second fiscal year to the FHWA (FLHD) for approval; and
    5. Review all completed construction projects, prepare a final report, and forward it to the FHWA (FLHD) after the completion of all projects for an  individual disaster.  This report must include a final accounting of all costs claimed.

    The FHWA (FLHD) will:

    1. Review and approve or deny required PS&E packages, concurrence in award/rejection of bids, approval of force account work if it is in the best interest of the Government, and acceptance of completed construction for individual projects on major work sites within 30 calendar days of receipt;
    2. Promptly and efficiently complete temporary and permanent ERFO repairs which are being administered by FHWA.  This includes compliance with all applicable laws, regulations, and Executive Orders.  All ERFO permanent repairs should be under construction by the end of the second fiscal year following the year in which the disaster occurred;
    3. Review selected completed construction projects and prepare a final report after the completion of projects administered by the FHWA for an individual disaster;
    4. Review and approve or deny by letter to the Service within 30 calendar days, time extensions for completing permanent repairs on a disaster;
    5. May withdraw approval and funding for ERFO repair work which is not in progress after 36 months of the date of the Positive Finding letter; and
    6. Conduct a disaster closeout review of repairs made by the Service on a disaster within 30 calendar days after notification by the Service

  5. Funding and Reporting

    The Service will:

    1. Request ERFO funds by disaster, in writing, from the FHWA (FLHO);
    2. Advise the Service's regional offices and field stations of the amount of ERFO available for their disasters;
    3. Transfer funds necessary for ineligible work being done on a FHWA (FLHD) administered ERFO repair project to the FHWA.  Transfers shall be accomplished using a SF-1151, Nonexpenditure Transfer Authorization Form:
    4. Furnish the following reports and data as indicated for ERFO repair projects, for which the Service is responsible: (1) SF-133, Report on Budget Execution Form, reflecting specific financial and budget data for each different type of allocation and overall summary by Treasury symbol; (2) annual TFS-2108, Year-End Closing Statement; (3) midyear and year-end status reports; and (4) other required reports described in the ERFO Manual;
    5. Request liquidating cash from the Chief, Finance Division, FHWA, Room 4306, HFS-20, 400 Seventh Street, S.W., Washington, D.C. 20590;
    6. Return unobligated ERFO funds to FHWA before the end of the fiscal year if the amount is known and certain; and
    7. Request that the FHWA (FLHO) reinstatement of year-end unobligated ERFO fund balances.

    The FHWA will:

    1. Transfer ERFO funds and obligation authority, by letter within 7 calendar days after receipt of the request, when funds are available, to the Service for ERFO repair projects which the Service will perform.  This includes preparing the FHWA 370, Advice of Funds Available for Obligation Form;
    2. Transfer liquidating cash to the Service to meet current expenditure needs within 7 calendar days of the receipt of the request;
    3. Notify the Service in writing, when ERFO funds are not available or limited by the $100 million limit for a disaster or when the $100 million limit is waived;
    4. Monitor the obligation and use of ERFO funds by the Service. This includes adjusting the allocations of ERFO funds for disasters as necessary and withdraw excess authority upon completion of a repair project or all repairs for a disaster;
    5. Assist the Service in making the year-end adjustments of ERFO fund allocations and obligations.  This may include the withdrawal of any unobligated ERFO funds from the Service at the end of the fiscal year and reinstatement in the next fiscal year; and
    6. Furnish reports for the portion of ineligible work funded undertaken by the FHWA including: (1) SF-133, Report on Budget Execution Form, reflecting specificfinancial and budget data for each different type of allocation and overall summary by Treasury symbol; (2) annual TFS-2108, Year-End Closing Statement; (3) midyear and year-end status reports; and (4) other required reports described in the ERFO Manual.

  6. Miscellaneous

    Nothing in this agreement is intended to diminish or otherwise affect the authority of either agency to execute its respective statutory functions.

    This agreement is not intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its offices, or its employees.

    The DEN, Service regional and Washington Office staffs, and FHWA field personnel are encouraged to consult together and agree on such matters that fall within their scope of responsibility.  Matters which cannot be resolved at the field level should be submitted to the Service Director and the FHWA Federal Lands Highway Program Administrator for resolution.

    Each agency is encouraged to find ways to improve the administration of the ERFO program and to make mutually agreeable changes to effect improvements in the ERFO program.

    This agreement is not intended to fix the procedures to be followed so rigidly as to prevent logical, practical, and responsible actions by the Service or FHWA, but rather to outline the responsibilities, procedures, or actions for most projects and activities.

    This agreement does not abrogate, amend, or modify any other existing agreements between the Service and FHWA.

    This agreement shall become effective on the date of the last approving signature and will continue in effect until termination by either party upon giving a 60-day written notice.

    Renegotiation of any part of this agreement can be initiated at any time by either party.

    Original signed by:
      ___________________________
    Director
    U.S. Fish and Wildlife Service
    Date: March 13, 1998
    Original signed by Kenneth R. Wykle
    _____________________________ 
    Administrator
    Federal Highway Administration
    Date: 29 April 1998

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