Emergency Relief (ER) Questions & Answers
Posted 9/25/2012, Updated 8/8/2013
Question 1: Has the amount of the annual authorization for ER changed?
Answer 1: No. The annual ER authorization has not changed and is authorized at not more than $100 million. These funds are available until expended and are exempt from obligation limitation. (MAP-21 § 1107; 23 U.S.C. 125(c))
Question 2: What restrictions are applied to ER participation in the repair or reconstruction of deficient bridges scheduled for replacement?
Answer 2: Section 1007 of MAP-21 incorporates into 23 U.S.C. 125 a restriction that ER funds may not be used to repair or reconstruct a bridge if the construction phase of a replacement structure is included in the approved statewide transportation improvement program at the time of an eligible event. A similar provision already exists in 23 CFR 668.109(c)(7).
Question 3: Are ER funds limited to repairing a facility to its pre-disaster condition?
Answer 3: No. Section 1107 of MAP-21 provides that the total cost of a project funded under 23 U.S.C. 125 may not exceed the cost of repair or reconstruction of a comparable facility. A "comparable facility" is a facility that meets the current geometric and construction standards required for the types and volume of traffic that the facility will carry over its design life. Additional guidance will be included in the next revision of the Emergency Relief Manual.
Question 4: Can ER funds be used to incorporate considerations of the risks associated with climate change in designing the replacement of a damaged bridge or other facility?
Answer 4: Yes. FHWA will be issuing separate guidance dealing with the eligibility of activities to adapt to climate change and extreme weather events.
Question 5: Has the application process for ER changed?
Answer 5: Yes. As provided in 23 U.S.C. 125(d)(1)(B), States are required to submit an application for ER funding to FHWA within two calendar years of the date of disaster. The application must include a comprehensive list of all eligible project sites and repair costs. (MAP-21 § 1107).
Complementing this statutory change, 23 CFR 668 contains guidance on expeditious construction of ER projects.
23 CFR 668.105(h) provides that ER projects shall be promptly constructed and that projects that have not advanced to the construction obligation stage by the end of the second fiscal year following the disaster occurrence will not be advanced unless suitable justification to warrant retention is furnished to the FHWA.
23CFR 668.111(b)(2) provides that unless very unusual circumstances prevail, the damage survey summary report should be prepared within 6 weeks following the applicant's notification.
23 CFR 668.113(a) provides that the State should submit to the FHWA Division Administrator a program of projects which defines the work needed to restore or replace the damaged facilities within 3 months of the receipt of the initial disaster notification.
Question 6: Does 23 U.S.C. 125(d)(1)(B) apply to ER events declared before October 1, 2012, for which application has not yet been received by the FHWA?
Answer 6: Yes. The requirement that States submit an application for ER funding to FHWA within two years of the disaster applies to any event for which an application has not been submitted. States and FHWA Division Offices should review the status of their pending ER applications to ensure that they comply with this provision. The FHWA will accept applications for any event for which two or more years have passed until September 30, 2012, at 11:59 pm of the time zone in which the event is located.
Question 7: What changes were made to the eligibility of the costs of debris removal?
Answer 7: Section 1107 of MAP-21 placed limits on the ER eligibility for debris removal. As a result, under 23 U.S.C. 125(d)(3), in certain instances, debris removal previously eligible for ER funding will only be eligible for FEMA funding. Four scenarios regarding debris removal eligibility following a natural disaster or catastrophic failure from an external cause may include, but are not limited to:
The event is declared to be an emergency by the Governor, but there is no Presidential declaration of a major disaster under the Stafford Act. The Secretary concurs with the Governor's emergency declaration.
If the Secretary concurs with the Governor's emergency declaration, ER funds may participate in debris removal on eligible sites on Federal-aid highways in the same manner as before MAP-21. ER funds will only be available in those counties included in the Governor's emergency declaration and any amendments for the same event.
The event is declared to be an emergency or a major disaster by the President under the Stafford Act and debris removal is eligible for assistance under sections 403, 407, or 502 of the Act. There may or may not be a Governor's emergency declaration.
FEMA will fund debris removal on affected highways, including Federal-aid highways, in accordance with FEMA's Public Assistance Program. FHWA will not participate in debris removal costs, including any excess costs not covered by FEMA.
The event is declared to be an emergency or major disaster by the President, but FEMA has determined that debris removal is not eligible for its assistance.
The ER funds can participate in debris removal costs on eligible sites on Federal-aid highways for sites that FEMA has determined to be ineligible under its program. FHWA division offices should request documentation of FEMA's determination that the debris removal is not eligible under the Stafford Act. Care should be taken to ensure that the reason for FEMA's decision of ineligibility is not also a reason for ER ineligibility.
The event is declared to be an emergency or major disaster by the President and debris removal is eligible for assistance from FEMA. There is also a Governor's emergency declaration. However, the Governor's declaration covers more counties than the President's declaration. The Secretary has concurred with the Governor's declaration.
ER may participate in debris removal costs on eligible sites on Federal-aid highways in the same manner as before MAP-21 for those sites subject to the Governor's declaration but not the President's declaration.
When Stafford Act funds are used for debris removal, the requirements of 44 CFR 206.224 will apply. These requirements are elaborated further in the FEMA Public Assistance Policy Digest which can be found at http://www.fema.gov/pdf/government/grant/pa/pdigest08.pdf.
When Title 23 funds are used for debris removal, the requirements of 23 CFR 668 will apply. These requirements are elaborated further in the Emergency Relief Manual which can be found at http://www.fhwa.dot.gov/reports/erm/.
Question 8: What types of debris are included in the term "debris removal"?
Answer 8: Debris typically includes trees, tree limbs, other woody materials, sand, mud, silt, gravel, rocks, etc.
Question 9: When will the change in the eligibility of debris removal be effective?
Answer 9: This change will apply to all new events that are eligible under the Stafford Act occurring after October 1, 2012.
Question 10: Are substitute traffic costs eligible for ER participation?
Answer 10: Section 1107 of MAP-21 added "additional transit service" as an eligible ER expense when providing substitute traffic service around a damaged facility. Now, under 23 U.S.C. 125(d)(5), the actual and necessary costs of operation and maintenance of ferryboats and additional transit service providing temporary substitute highway traffic service, less the amount of fares charged, are eligible for ER participation.
Question 11: Are there other expansions of ER eligibility provided by MAP-21?
Answer 11: Section 1107 of MAP-21 allows up to five percent of the ER authorization to be used for projects that the Secretary determines are necessary to protect the public safety or to maintain or protect roadways that are included within the scope of an emergency declaration and the Governor deems to be an ongoing concern in order to maintain vehicular traffic on the roadway. (23 U.S.C. 125(g)). Guidance will be included in the next revision of the Emergency Relief Manual.
Question 12: Does MAP-21 allow for the extension of the 180 day time period for 100 percent eligibility of emergency repairs?
Answer 12: Yes, the revised 23 U.S.C. 120(e)(3) provides that the 180 day time period for 100 percent eligibility of emergency repairs will be extended if a State cannot access a site to evaluate damages and the cost of repair. (MAP-21 § 1508)
Since the ability to access facilities to evaluate damages and the cost of repair is location specific, it will be necessary for a State to request, and the FHWA Division Office to approve and document, extensions on a case-by-case basis for specific locations that cannot be accessed. Such extensions should not be extended for all sites in the disaster area unless all sites are not accessible.
This extension is for situations where the site cannot be physically accessed. It should not be granted for sites that can be physically accessed but where the assessment is not made in a timely manner for other reasons.
Question 13: May a State receive an increased Federal share up to 90% for ER projects?
Answer 13: Yes, provided threshold criteria are met, the revised 23 U.S.C. 120(e)(4) permits an increase in the Federal share to 90 percent for permanent repairs funded by 23 U.S.C. 125 if eligible ER expenses resulting from a disaster(s) or failure(s) exceed the State's combined annual Federal-aid apportionments under 23 U.S.C. 104 for the fiscal year when the disaster(s) or failure(s) occurred.
To determine eligibility for the increased Federal share under section 120(e)(4), the following procedural steps are necessary:
- For all events that occur in a fiscal year, sum up all eligible expenditures during that and any subsequent years.
- Compare the total to the State's apportionments under 23 U.S.C. 104 for the fiscal year in which the disaster(s) occurred.
- If the cumulative eligible expenditures associated with a disaster(s) are greater than the State's apportionments under 23 U.S.C. 104, new project agreements for permanent repairs may record obligations reflecting a 90 percent Federal share. Other permanent repair projects originally funded at a lower Federal share may be modified to a 90 percent Federal share, and a resulting credit will be due to the State.
This provision does not apply to the Federal share for emergency repairs.
This provision cannot be combined with other provisions such as the sliding scale provisions in 23 U.S.C. 120 to further increase the Federal share when the State's applicable sliding scale rate is above 90 percent.
The Federal share under 23 USC 120(e)(4) has no effect on the 100 percent Federal share for ER projects on qualifying Federal Lands Access Transportation Facilities.
The Federal share under 23 U.S.C. 120(e)(4) has no effect on ER permanent repair projects on the Interstate, which are currently eligible for a 90 percent Federal share.
Question 14: What is the effect of 23 U.S.C. 125(g), Protecting Public Safety and Maintaining Roadways, which was added by section 1107 of MAP-21?
Answer 14: 23 U.S.C. 125(g) provides that the Secretary may use up to 5 percent of ER funds for projects that the Secretary determines necessary to protect the public safety or to maintain or protect roadways that are included within the scope of an emergency declaration by the Governor or the President and that the Governor deems to be an ongoing concern in order to maintain vehicular traffic on the roadway. These projects would occur on roadways within the disaster area that have not failed, but have the potential to fail in the future. As this is a discretionary authority and because the ER program is heavily oversubscribed, we anticipate this optional use of funds will be used infrequently and that it will be administered by FHWA Headquarters.
Question 15: Section 1107 of MAP-21 eliminated the $100,000,000 per State per event cap that was previously contained in 23 U.SC 125. Does the elimination of the cap apply to events that occurred before October 1, 2012?
Answer 15: No. The elimination of the $100 million per State per event cap by section 1107 of MAP-21 applies only to events that occur after the MAP-21 effective date of October 1, 2012.
Supplemental Appropriations Provided in 2013 under the Disaster Relief Assistance Act, 2013 ("Hurricane Sandy Appropriations Act")
Question 16: If an event occurred prior to October 1, 2012, and a State had already exceeded the $100 million cap for that event under 23 U.S.C. 125, is that State eligible to receive any funds provided in the Hurricane Sandy Appropriations Act?
Answer 16: No, such a State would not be eligible to receive any supplemental funds because the Hurricane Sandy Appropriations Act does not eliminate the $100 million cap applicable to the pre-October 1, 2012 event.
Question 17: If an event occurred prior to October 1, 2012, and a State had already exceeded the $100 million cap for that event under 23 U.S.C. 125, but such event received a statutory waiver of the $100 million cap, is that State eligible to receive supplemental funds provided under the Hurricane Sandy Appropriations Act?
Answer 17: Yes, the State would be eligible to receive up to $100 million in supplemental funds for the event. For example, Hurricane Irene received a waiver from the cap requirement under 23 U.S.C. 125, prior to the enactment of MAP-21. The Hurricane Irene waiver remains in effect and would enable Vermont to be eligible to receive supplemental funds related to Hurricane Irene provided under the Hurricane Sandy Appropriations Act up to $100 million, regardless of the amount the State may have already received under the ER program.
Question 18: If a non-Hurricane Sandy event occurs on or after October 1, 2012, is a State in which such an event occurred eligible to receive supplemental funds provided under the Hurricane Sandy Appropriations Act?
Answer 18: Yes, the State would be eligible to receive supplemental funds under the Hurricane Sandy Appropriations Act up to $100 million, regardless of the amount the State may have already received under the ER program. As of October 1, 2012, there is no overall cap for an event in a State under the ER program.
Question 19: If a State has ER-eligible damage related to Hurricane Sandy, would it be eligible to receive supplemental funds provided under the Hurricane Sandy Appropriations Act, regardless of the amount such State may have already received under the ER program?
Answer 19: Yes, such a State would be eligible to receive up to $500 million in supplemental funds under the Hurricane Sandy Appropriations Act. Although the amount that may be used from this Act is capped at $500 million, there is no per State cap that applies to Hurricane Sandy, since it occurred after October 1, 2012.
Guidance on Eligibility for Funding Under the ER Program at 100 Percent Federal Share as a Federal Lands Access Transportation Facility
Question 20: What Federal-aid facilities are eligible for 100% Federal share for repair or reconstruction under the emergency relief (ER) program as provided in 23 U.S.C. 120(e)(2)? (added 5/29/2013)
Answer 20: Federal-aid highways that are also eligible for funding as a "Federal Lands Access Transportation Facility" (FLATF) are eligible for the increased Federal share under 23 U.S.C. 120(e)(2). To receive the increased Federal share, the facility to be repaired or reconstructed as a result of an eligible disaster needs to qualify for funding as a Federal-aid highway and a FLATF.
The Federal-aid Division office should consult with the FLH Division office that has jurisdiction to establish whether the highway segment that requires repair or reconstruction is eligible as a FLATF under the Federal Lands Access program (FLAP). Federal-aid Division offices and FLH Divisions should pay particular attention to the termini of the highway that provides access to the Federal lands.
To determine if a highway meets the definition of a facility that provides "access to" Federal lands, the proximity to Federal lands should be considered. The terminus of a highway "providing access to" Federal lands should be the point at which it intersects (outside the Federal boundary) with a highway functionally classified as a major collector or higher in both urban and rural areas. In the case of Federal lands without a regular defined boundary, the same definition from the point where the road crosses the property line separating Federal land from non-Federal land should apply.
Generally, FHWA expects most FLATFs to be within Federal lands or within 10 miles or less from the boundary. There may be unique situations, especially in the western United States, where access roads are greater in length because of their remote nature, and the terminus with a major collector highway is more than 10 miles away. The FLH Division office should use discretion, but the definition of a FLATF should be applied uniformly across the country.
 Consolidated and Further Continuing Appropriations Act, 2012; Public-Law 112-55 (November 18, 2011).