Federal-aid Programs and Special Funding

Superseded: See the Defining and Managing Emergency Relief Repair Activities Eligible for 100 Percent Federal Funding (Revised)

U.S. Department of Transportation Federal Highway Administration

MEMORANDUM

Subject:	GUIDANCE - INFORMATION: Defining and Managing Emergency Relief Repair Activities Eligible for 100% Federal Funding	Date:	April 14, 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

The Emergency Relief (ER) program provides funding for the repair or reconstruction of Federal-aid highways and roads on Federal lands which have suffered serious damage as a result of natural disasters or catastrophic failures from an external cause. The FHWA is flexible in its response and management of the program, owing to the many variables within ER such as the type of event, magnitude of damage, and capability of agencies to respond. This memorandum intends to encourage greater consistency in how that flexibility is applied through the interpretation and implementation of 23 U.S.C. 125, Emergency Relief; 23 U.S.C. 120, Federal share payable; and 23 CFR part 668, Emergency Relief 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.

This memorandum clarifies important definitions in 23 CFR part 668 and provides useful examples of applying those definitions. This clarification will assist the FHWA Division staff in implementing the Emergency Relief for Federal-Aid Highways (ERFA) program. Some of the definitions and examples will also assist the Federal Lands Highway (FLH) Division staff in implementing the Emergency Relief for Federally Owned Roads (ERFO) program.

Within the ER Program, the term “emergency repairs” is defined in 23 CFR 668.103 as “[t]hose repairs including temporary traffic operations undertaken during or immediately following the disaster occurrence for the purpose of: (1) [m]inimizing the extent of the damage, (2) [p]rotecting remaining facilities, or (3) [r]estoring essential traffic.” Such repairs, when performed within the first 180 days of an event, are eligible for 100% Federal funding, per 23 U.S.C. 120(e)(1). The term “[e]mergency repairs” is also defined for the ERFO program under 23 CFR 668.203. “Permanent repairs” are mentioned in 23 U.S.C. 120(e)(4),¹ and “permanent work” is defined in the ERFO regulations at 23 CFR 668.203(h).² Depending upon the nature of the event, damages to a facility, and transportation system needs, work conducted for emergency purposes could constitute temporary measures as well as restoration of a facility to pre-disaster condition that is permanently left in place.

Explanation of Emergency Repairs

To qualify for 100% Federal share as an emergency repair on Federal-aid highways, the repair must meet the following two conditions:

1. Emergency repairs must meet any one of the following three criteria in accordance with the definition in 23 U.S.C. 120(e) (and codified in 23 CFR 668.103):
   • Minimizing the extent of the damage;
   • Protecting remaining facilities; or
   • Restoring essential traffic.

   These three criteria are not examples, but rather are eligibility conditions under 23 U.S.C. 120(e) that are demonstrated and documented as part of an ER application under 23 CFR 668.111, 668.113(a) and 668.213).

2. Emergency work was performed within the first 180 days following the event or within the allowable time extension due to the inability to access a site to evaluate damages and repair costs (23 U.S.C. 120(e)(1)-(3)), and therefore the work qualifies for 100% Federal share as an emergency repair.

The 180-day requirement for funding eligibility does not apply to emergency repairs under the ERFO program, since emergency repairs are eligible for 100% of the cost of the repair. See23 U.S.C. 120(e)(2). However, emergency repair work is subject to contracting and permitting flexibility for projects involving emergency repairs.³

Applicants are expected to coordinate with the FHWA Division Office to the extent practicable to demonstrate the above conditions are met. The Division Office will determine whether these requirements are satisfied based upon documentation and information provided by the Applicant, and will document the basis for the eligibility determination, the rationale for classifying projects as emergency in purpose and a description of what repairs constitute the restoration of essential traffic. The basis for the eligibility determination may include a description of why the repair is necessary, which alternative strategies or repairs were considered, and any alternate routes that were analyzed.

Work for emergency repairs is typically specific immediate work on transportation facilities in response to natural disasters or a catastrophic failure of a component of the transportation system during or immediately following an event. Such work is typically temporary in nature to satisfy an immediate need with respect to the facility, but it could remain in place as part of the permanent fix and it can be provided by either owner-controlled maintenance crews or by contracted forces. There is no requirement that emergency repairs be removed and replaced if they also serve the needs for the permanent solution. The scope of work associated with each site should include the type of emergency work determined to be appropriate in the Detailed Damage Inspection Report (DDIR).

ERFA work that meets the criteria for emergency repairs in 23 CFR 668.103 and is performed within the first 180 days may be eligible for 100% Federal share regardless of whether the measures are intended to be temporary or permanent (non-temporary). Conversely, if eligible ERFA work is performed outside the first 180 days or does not meet the criteria for emergency repairs in 23 CFR 668.103, it may still be funded under ER at normal pro-rata share for that facility.

The following chart summarizes the eligible Federal share for repairs under the ERFA program by Work Type and Work Purpose:

Examples of Emergency Repairs Meeting 23 CFR 668.103 or 668.203

Applicants are expected to coordinate with the FHWA Division Office or FLH Division staff to the extent practicable to demonstrate the emergency work satisfies the criteria.

Minimizing the Extent of the Damage

This criterion typically involves emergency work completed immediately following an event that stops or limits the extent of damage to a facility such as, but not limited to, stopping or eliminating erosion, removing added load stressors, limiting failure modes, fire suppression, or restricting traffic loading. This work should be identified and costs accounted for in a site specific DDIR.

Examples of minimizing damage:

• Stop/eliminate/ limit erosion of underlying material
  • controlling/redirecting water flow
  • localized stream bank armor/protection
  • replacing culverts/bank armor to convey water safely
  • landslide remediation
• Remove load⁴
  • redirecting water flows from unprotected structures
  • removing floating detritus pileup on bridge substructure
  • removing landslide debris pushing on walls/foundations/embankments
• Stop/limit additional failure
  • keeping a bridge or specific structural components from collapse
  • shoring structural components
  • backfilling along roadway pavement to correct minor sloughing is not considered an emergency repair
• Fire Suppression

Protecting Remaining Facilities

This criterion typically involves work to safeguard the public or to avoid significant maintenance repair, or reconstruction that may be conducted when there is significant risk of loss, such as providing traffic control for closures, shoring of structures, redirecting rushing waters, or removal of items that could collapse and damage a facility. The determination to do this type of work and the associated cost estimate should be documented in a site specific DDIR.

Examples of protecting facilities:

• Traffic control; closing facilities for safety of the public
• Shoring of bridges/structural components
• Redirect rushing water to avoid eminent breach/erosion
• Removing trees/overhead items presenting eminent collapse (i.e., fall or rootball uplift that could create significant damage)

Restoring Essential Traffic (or Travel on Federal Roads)

Providing access for essential traffic is typically an eligible expense when a roadway or bridge site is repaired to safely allow essential traffic passage with potential limitations of travel time that might include lower design speeds, minimal pavement standards, a decreased number of lanes, and use of available detours. Closing roadways during an event and providing temporary traffic control elements should be considerations of specific limitations that are site specific determinations by agreement between the owner agency and the FHWA Division Office. The determination of the restored level of access should be documented in a site-specific DDIR submitted to FHWA.

Restoration of essential traffic should be based on evaluation of needs, and does not mean a return to normal level of service nor full reconstruction of the site.

Examples of Essential Traffic Determinations

• Closing facilities for safety of the public; temporary traffic control and maintenance of traffic while the roadway is in this configuration.
• Safe passage of emergency vehicles and construction vehicles (responding for emergency repair).
• Public access to essential locations, such as medical facilities, school, work, and grocery stores.
• Availability of reasonable detours, emergency access requirements, or even time of year (i.e. expected weather conditions). Note that this will vary between urban or rural settings as well as between residential, business, and industrial settings.

Consideration of essential traffic should involve analysis to determine that the agency is able to provide a degree of access so that the system is reasonably connected for safe travel. It does not necessarily mean the shortest or most convenient route, the same mode (e.g., ferry to detour route), or complete re-establishment of pre-disaster access.

Completion of Work Within 180 Days

Under 23 U.S.C. 120(e)(3), the 180-day period may only be extended due to the inability of the Applicant to access damaged facilities to evaluate the damage and costs of repairs. Access restriction can include, but is not limited to: roadways and bridges are impassable for an extended period, another emergency event occurred preventing access, or the site is unsafe to access. The Division Office will consider written requests to extend the 180-day time period to complete the emergency repairs. The Division Office will review the justification and, if acceptable in light of 23 U.S.C. 120(e)(3), will respond back to the Applicant with a revised date by which the emergency work at the specified site must be completed. The extension is not justified merely because work is delayed starting due to lack of resources.

To the extent practicable, there should be an estimate of the number or days needed to complete the work, as an initial indicator of whether some or all of the work will be eligible for 100% funding.

Besides 100% Federal funding, work for emergency purpose allows for contracting flexibility and project delivery without FHWA prior approval.⁵ For these reasons, it is critical that FHWA Division Offices consistently apply and document determinations.

Program and Funds Management under the ERFA Program

The regulation at 23 CFR 668.107, discussing cost reimbursement of Emergency Relief events, identifies a combination of work purpose and a time period not to exceed 180 days for reimbursement of emergency repairs, and distinctly a pro-rata share reimbursement for work not eligible for 100% Federal share. The following information applies to the ERFA program.

A DDIR is used to satisfy application requirements under 23 CFR 668.111 for every site that sustained damage during an event, and should distinguish work that meets the criteria of 23 CFR 668.103. The scope of work associated with each site should include the type of repair work determined to be appropriate in the DDIR with an estimate. When possible, it is helpful to provide an estimate of the number of days (or date) for completion of the repairs to proactively assess whether the work could be all 100% Federal or a combination, and also to establish whether it could be appropriate to apply other flexibilities available within the first 180 days. The Applicant, subrecipients, and FHWA should have adequate controls to be able to separate these costs and apply the appropriate reimbursement rate. See 2 CFR 200.303.

Under 23 U.S.C. 120(e)(1), reimbursement of emergency repairs (determined by their purpose, see section I of this document) under the ERFA program may be at 100% for the cost incurred up to 180 days from the beginning date of the event. This is referred to as the “cutoff date”. After the cutoff date, the reimbursement of cost incurred shall be reduced to the pro-rata Federal-aid share for the affected roadway. Note that although the reimbursement may occur after the 180 days, the work must be performed prior to the 180 days after the event occurred. Frequently authorization requests for repairs may come after the funds have been allocated and the repairs have been completed. In these cases, at the time of authorization it should be clear whether those repairs were accomplished within the 180-day time frame.

The cutoff date should be entered into the Fiscal Management Information System (FMIS) for tracking. This cutoff date should take into account any time extension due to the inability to access a site to evaluate damages and repair costs (per 23 U.S.C. 120(e)(3)). If some sites were inaccessible and required extension of the 180 days, the cut-off date would be different only for those affected sites, not the entire event.

Per the requirements that the Applicant, subrecipients, and FHWA have adequate controls to implement the ER program, project data entry in FMIS must be able to identify and separate individual sites and activities, and the appropriate reimbursement rate(s) for work at those sites and activities. See 23 CFR 668.113(b); 2 CFR 200.303. The separation can be done within a single overall event project, site specific projects, or in a combination of these.

Consistent with 2 CFR 200.302 (Financial Management) and 200.303, (Internal Controls), the non-Federal entity must have adequate financial management systems, record documentation, and internal controls to demonstrate compliance with Federal statutes and regulations. The Applicant and the responsible Federal-aid Division Office must be able to demonstrate that the work on individual sites is properly accounted for as either meeting the criteria of 23 CFR 668.103 (100% eligible) or not meeting the criteria (functional pro-rata share eligible). Such controls may include:

1. Requiring site-specific determination of what constitutes “restored essential traffic” or the facility protected from damage or further deterioration, typically to be documented in the DDIR (or an agreed scope of work). The Applicant should have sufficient documentation to demonstrate when costs were incurred. This can be monitored via the Program of Projects for each event.
2. Tracking/identifying the 100% cutoff date.
1. Automatic notifications of near-term or imminent cut-off dates (i.e., 5-10 days in advance). Note that because billing for work within the first 180 days may come later, the State will need controls to indicate such situations. In some cases, the project agreement end date field may be used to accomplish this objective in FMIS.
2. Establish a single event based project, which then uses sub-units (detail lines in FMIS project agreement).
3. Develop a procedure to assign a separate detail on a Federal project number for work meeting the criteria for emergency repairs in 23 CFR 668.103.
4. For each DDIR, create the original project agreement in FMIS to cover the work meeting the criteria for emergency repairs in 23 CFR 668.103. Subsequently, create a modification to the project agreement to cover work not meeting the criteria for emergency repairs in 23 CFR 668.103 at pro-rata.
3. Creating Division Office standard operating procedures (SOPs) for establishing the cutoff date and reviewing (for each site) the damage assessments and invoice costs to determine that work meeting the criteria for emergency repairs in 23 CFR 668.103 was completed prior to the established end date.
4. Use of independent tracking systems (e.g., ER event summary spreadsheets) that are maintained with critical information on cost, time, and other items related to the projects, including with breakout of work meeting or not meeting the criteria for emergency repairs in 23 CFR 668.103, and periodically reviewing or updating all projects’ status (scope, cost, construction progress).
5. Working with the State to establish the end date for repairs eligible for 100% Federal funding to be completed. The DDIR provides for identification of repairs meeting the criteria for emergency repairs in 23 CFR 668.103 (including distinctions of temporary and permanent repairs) with estimated costs for such repairs.
6. Working with the State to require emergency repair contracts to provide separate contract line items for work that meets the criteria for emergency repairs in 23 CFR 668.103 and work that does not. Each bid item would be duplicated for either period of performance, thereby tying the cutoff date to contractor billing.

As with all Federal-aid programs, FHWA remains responsible for the correct application of ER Program rules and regulations and administration of funds under 23 U.S.C. 125, 23 U.S.C. 120(e), and 23 CFR part 668. Most FHWA Divisions have established program and financial controls that operate the ER program management within the context of Risk Based Stewardship & Oversight and the delegation of program administration to the State DOT. Examples of such controls include:

1. Hold a quarterly ER Program meeting to discuss status of ER events and associated projects.
2. Manually adjust all invoices after the 180-day limit from 100% to the Federal pro-rata- share for the project established under 23 U.S.C. 120, based on the cost incurred date.
3. Review State DOT tracking procedures.
4. For large events, conduct a Process Review/Billing Review of State’s financial management office’s procedures for payment reviews for the proper share. Also conduct a billing review where the work was done by a Local Public Agency (LPA) and the risk of non-compliance might be greater. Generate a report from FMIS showing expenditures that is manually reviewed.
5. Perform a Compliance Assessment Program (CAP) review, or similar, to identify a sample of billings from Emergency Relief projects, and confirm the proper application of the Federal share.
6. The State DOT tracks the start of an event and then applies the date the 180-days ends when reviewing reimbursements. The reimbursement documentation provides the dates when work was performed to determine whether 100% eligibility applies. Using documents including progressive estimates, invoices, and timesheets when reviewing that information, the State DOT also compares the work that was done to the approved DDIR to help determine emergency repairs compared to permanent repairs.

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).

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^[1] 23 U.S.C. 120(e)(4) refers to: “. . . the Federal share payable for eligible permanent repairs to restore damaged facilities to predisaster condition may amount to 90 percent of the cost of the repairs⋮” [Return to Note 1]

^[2] The regulations in 23 CFR part 668, subpart B, Procedures for Federal Agencies for Federal Roads, define “[p]ermanent work” as “[r]epair or reconstruction to pre-disaster or other allowed geometric and construction standards and related PE and CE.” [Return to Note 2]

^[3] 23 CFR 668.109; 668.205(d); 668.209(b). [Return to Note 3]

^[4] See 23 U.S.C. 125(d)(3): “Debris removal. The costs of debris removal shall be an eligible expense under this section only for –

• an event not declared a major disaster or emergency by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.);
• an event declared a major disaster or emergency by the President under that Act if the debris removal is not eligible for assistance under section 403, 407, or 502 of that Act (42 U.S.C. 5170b, 5173, 5192); or
• projects eligible for assistance under this section located on tribal transportation facilities, Federal lands transportation facilities, or other federally owned roads that are open to public travel (as defined in subsection (e)(1)).”

[Return to Note 4]

⁵ 23 CFR 668.109(a)(1). [Return to Note 5]