 U.S. Department of Transportation Federal Highway Administration |
MEMORANDUM |
| Subject: | GUIDANCE - INFORMATION: Estimating Event Damage and Emergency Relief Program Eligible Costs |
Date: | April 9, 2021 |
| From: |
/s/ Original signed by: Hari Kalla Associate Administrator for Infrastructure |
Refer To: | HISM-10 |
| To: | Associate Administrators Division Administrators Directors of Field Services Federal Lands Division Directors |
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The purpose of this memorandum is to highlight the importance of Emergency Relief (ER) Program funds management and to supplement the responsibilities outlined in FHWA Order 5182.1 by providing additional instructions for FHWA Division and Federal Lands Highway (FLH) Division staff on establishment of ER event damage estimates. This memorandum also contains information pertinent to the Emergency Relief for Federally Owned Roads (ERFO) program.
The contents of this memorandum do not have the force and effect of law and are not meant to bind the public in any way; however, compliance with the statutes and regulations cited is required. This memorandum is intended only to provide clarity regarding existing requirements under the law or agency policies.
Due to the nature of the ER program, rapid recovery following a disaster should be a top priority for the State Transportation Agency, Federal Land Management Agency and FHWA agreement Tribe governments (recipient). The ER regulations require that the processing of ER requests and emergency relief work shall be given priority over non-emergency work.1
The following distinctions are identified for the Emergency Relief for Federal-Aid highways (ERFA) and the Emergency Relief for Federally-Owned Roads (ERFO) programs, respectively. For the ERFA program, all eligible project sites and repair costs must be identified within two years of the disaster to be eligible for ER program funds.2 For the ERFO program, projects not under construction by the end of the second fiscal year following the year in which the disaster occurred will be withdrawn from the approved program of projects unless suitable justification is provided by the applicant to warrant retention.3
The ER program receives a limited annual authorization of $100 million intended to cover all nationwide ER program repairs.4 This annual authorization falls short of addressing all nationwide ER needs in a given year. To address ER program funding shortfalls, Congress has historically enacted supplemental appropriations to provide additional funding for the ER program. The amount provided is based on current known nationwide event costs and obligation needs that are reported by program recipients. When recipients accurately maintain and report their latest cost estimates, they ultimately benefit if Congress moves to provide additional ER funding based on those needs for all events nationwide.
Accurate accounting of program funding needs and subsequent recovery of funds that are no longer needed are central parts of FHWA oversight of ER program expenditures. Division Office upkeep of damage assessment documentation for each event, including timely establishment of total event damage, helps FHWA accurately gauge upcoming program funding needs over 0-6 month/6-12 month/12-18 month/18+ month timeframes. The Federal-aid (HISM- 10) and the Office of Federal Lands Highway Headquarters (HFL) Programs Team can then reliably calculate funding needed over time to reimburse the recipients for eligible expenses.
Division staff are responsible for establishing cost estimates as follows:5
- For the ERFA program, FHWA Divisions should develop Detailed Damage Inspection Reports (DDIRs) within 3 months of the event start date to support development of the initial damage estimate. After the development of a Program of Projects (POP), it is expected that the estimate will evolve over time in response to work completed and project development on permanent repairs.
- Note that for the ERFO program, the applicant will submit an application which shall include a list of projects for which emergency relief is requested. The application shall be submitted within 3 months after an affirmative finding that the road has suffered serious damage as the result of a natural disaster over a wide area, or a catastrophic failure. See 23 CFR 668.213(a).
- For ERFA repairs, within the first 3-5 months, the total event estimate should be refined and the expected repair costs should not change substantially unless new projects are added (which can be done within the first two years after an event6) or significant scope changes occur at a site/sites due to project development activities.
- For ERFA and ERFO repairs, to align with biannual allocation of ER funds, FHWA Division and FLH Division staff should ensure that total event estimate and obligation plans are updated within the first 6 months of the event and subsequently every 6-months.
- For ERFA repairs, within two years of the event, the FHWA Division should consider the estimate to be final, per the requirement for a comprehensive list of all eligible project sites and repair costs in 23 U.S.C. 125(d)(1)(B). Some slight adjustment may arise from bid openings and minor changes to project details or scope, but monitor projects to ensure that cost increases are not the result of unjustified or ineligible scope changes.7
- Note that for ERFO repairs using the recipient’s forces, it is expected that such work be completed by the second year and therefore the estimate at that point considered final. Under special circumstances, the recipient may request approval from FHWA for a time extension.8
- FHWA Divisions and HFL should update the Data Portal as new information becomes available that affects the event damage estimate, whether an increase or decrease. If the total event damage estimate changes significantly, per Table 1 below, the FHWA Division Staff and HFL should document the change in the Data Portal, with an explanation and a description of the Division Office role and coordination with the recipient. Such tracking will allow for more accurate forecasting of funding needs for scheduled biannual allocations of ER funding to recipients and the FLH Division Offices by HISM-10 and HFL.
Table 1 identifies the percent change or dollar change to damage estimates after which Divisions should document the change in the data portal.
ERFA |
ERFO |
|---|---|
The total estimated event damages change by 20% or more. |
The cost estimate increases more than $50,000 for DSRs less than $250,000. The cost estimate increases more than 20 percent for DSRs over $250,000. |
Through the Data Portal and MSAR, Division Staff will continue to report expectations of recipient and FLH Division Office obligation plans over 6-month periods, which will form the basis for semi-annual allocation of ER funding. Division Offices should track progress of projects associated with events to expeditiously close an event and deallocate unexpended funds.
Please direct Federal-aid ER questions to Mr. Greg Wolf (202-366-4655) or Ms. Kathleen Hulbert (202-809-4758) of the Office of Stewardship, Oversight and Management and Federal Lands ER questions to Mr. Sergio Mayorga (703-404-6234) of the Office of Federal Lands Highway (Headquarters).
[1] 1 23 CFR 668.105(g); 23 CFR 668.205(b). [Return to Note 1]
[2] 2 23 U.S.C. 125(d)(1)(B). [Return to Note 2]
[3] 23 CFR 668.205(e). [Return to Note 3]
[4] See 23 U.S.C. 125(c). [Return to Note 4]
[5] These responsibilities are identified in FHWA Order 5182.1 for the Emergency Relief Federal-aid (ERFA) program. Responsibilities related to the ERFO program are contained in 23 CFR Part 668, Subpart B. [Return to Note 5]
[6] Under 23 U.S.C. 125(d)(1)(B), for the ERFA program, the FHWA Division must receive an application that includes a comprehensive list of all eligible project sites and repair costs by not later than 2 years after the natural disaster or catastrophic failure. [Return to Note 6]
[7] FHWA Order 5182.1, paragraph 7.b.7. [Return to Note 7]
[8] 23 CFR 668.205(e). [Return to Note 8]