Federal-aid Programs and Special Funding

U.S. Department of Transportation Federal Highway Administration

MEMORANDUM

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. Consistent with applicable statutes and regulations, 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 provides guidance on how that flexibility is applied through the implementation of Title 23, United States Code (U.S.C.), Section 125, Emergency relief; 23 U.S.C. 120, Federal share payable; and Title 23, Code of Federal Regulations (CFR), part 668, Emergency Relief Program. This memorandum replaces the FHWA memorandum, “GUIDANCE - INFORMATION: Defining and Managing Emergency Relief Repair Activities Eligible for 100% Federal Funding (Revised),” dated March 7, 2022.

Except for the statutes and regulations cited, the contents of this memorandum do not have the force and effect of law and are not meant to bind the States or the public in any way. This memorandum is intended only to provide clarity regarding existing requirements under the law or agency policies.

This memorandum provides guidance on important definitions in 23 CFR 668 and provides useful examples for applying those definitions. This guidance will assist FHWA Division staff in implementing the Emergency Relief for Federal-Aid Highways (ERFA) program. Some of the definitions and examples also will assist Federal Lands Highway (FLH) Division staff in implementing the Emergency Relief for Federally Owned Roads (ERFO) program. In addition, it provides important information concerning the applicability and implementation of the National Environmental Policy Act (NEPA) for ER projects. Furthermore, this memorandum provides details on program and funds management.

Within the ERFA Program, the term “emergency repairs” is defined in 23 CFR 668.103 as “those repairs including temporary traffic operations undertaken during or immediately following the disaster occurrence for the purpose of: (1) minimizing the extent of the damage, (2) protecting remaining facilities, or (3) restoring essential traffic.” The term “emergency repairs” is also defined for the ERFO program under 23 CFR 668.203.

I. Federal Share Payable Under 23 U.S.C. 120

Prior to the enactment of the Bipartisan Infrastructure Law (BIL, Public Law 117-58, enacted as the Infrastructure Investment and Jobs Act), 23 U.S.C. 120(e)(1) provided that emergency repairs were eligible for 100 percent Federal share when accomplished within 180 days of an emergency event. Section 11107 of BIL amended 23 U.S.C. 120(e)(1) so that emergency repairs are now eligible for 100 percent Federal funding when accomplished within 270 days of an emergency event. The amendment to the Federal share provision in 23 U.S.C. 120(e)(1) went into effect on October 1, 2021. See BIL, § 10003. Therefore, emergency events that have an event start date on or after October 1, 2021, will be subject to the language contained in 23 U.S.C. 120(e)(1) as amended by BIL.

Emergency events that have an event start date prior to October 1, 2021, will be subject to the previous language contained in 23 U.S.C. 120(e)(1). Emergency repairs associated with these events that are accomplished within 180 days are eligible for 100 percent Federal share.

When applying the timeframe referenced within this memo of “270 days,” Divisions should first confirm the event start date of the subject ER event to determine whether the ER event start date occurred prior to October 1, 2021.

Depending upon the nature of the event, the extent of damage to the eligible facility, and transportation system needs, to the extent possible and permitted, work conducted as emergency repairs should be constructed to allow for incorporation into the permanent repair reconstruction.

In accordance with 23 U.S.C. 120(e)(3), the 270-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.

Outside of the 270-day¹ emergency repair timeframe and pursuant to 23 U.S.C. 120(e)(4), the Federal share payable for eligible repairs to restore damaged facilities to pre-disaster condition may amount to a 90-percent Federal Share if the eligible expenses incurred by the State due to the natural disasters or catastrophic failures in a Federal fiscal year exceed the total annual apportionment of the State under 23 U.S.C. 104 for the fiscal year in which the disasters or failures occurred.

II. Explanation of Emergency Repairs

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

1. Emergency repairs must meet any of the following three criteria stated in 23 U.S.C. 120(e)(1) (and codified in 23 CFR 668.103). Specifically, the repairs must be for the purpose of:
   
   
   • Minimizing the extent of the damage;
   • Protecting remaining facilities; or
   • Restoring essential traffic.

   These three criteria are not examples² but are eligibility conditions under 23 U.S.C. 120(e). The primary purpose of an emergency repair is to meet one or more of the three outcomes listed in the above criteria. In most situations, this repair will be temporary in nature and performed right away, as provided in 23 CFR 668.105(g) (“The processing of ER requests shall be given prompt attention and shall be given priority over non-emergency work.”). However, depending upon the nature of the event, damages to a facility, and transportation system needs, there may be a rare scenario where emergency repairs are all that is needed to finalize the site and no further repairs are necessary (see examples in Appendix 1). In this situation, the exception stated in 23 CFR 668.105(i) could apply and the repairs could be eligible for 100 percent reimbursement. The Applicant must provide clear justification in writing to FHWA that finalizing the project as an emergency repair was the only viable alternative.³

   Unless this repair is the only viable alternative, restoring an eligible damaged site to its pre-disaster condition (even if completed within 270 days) is considered a permanent repair and as such, must follow all applicable Federal-aid requirements and will be reimbursed at the appropriate pro-rata share.

2. Emergency work was accomplished within the first 270 days following the event or within the allowable time extension due to the inability to access a site to evaluate damages and repair costs. See 23 U.S.C. 120(e)(1) and (e)(3).

Work conducted for emergency purposes could involve temporary measures but may also include placement of items that remain in place as part of the permanent repair. Except for scenarios where the Applicant provides adequate justification to FHWA that emergency repairs are all that is needed to finalize the site and no further repairs are necessary, restoring an eligible damaged site to its pre-disaster condition (even if completed within 270 days) is considered a permanent repair and must follow all applicable Federal-aid requirements.

The 270-day requirement for funding eligibility does not apply to emergency repairs under the ERFO program because all repairs are eligible for 100 percent of the cost of the repair. See 23 U.S.C. 120(e)(2). However, both the ERFO and ERFA programs have contracting and permitting flexibility for emergency repairs.⁴

Applicants should coordinate with the FHWA Division Office and demonstrate that the above conditions are met. The Division Office will determine whether these requirements are satisfied based on documentation provided by the Applicant. The Division Office shall document:

• The basis for the eligibility determination, which may include a description of why the repair is necessary, which alternative strategies or repairs were considered, and any alternate routes that were analyzed.
• The rationale for classifying projects as emergency in purpose.
• A description of what repairs constitute the restoration of essential traffic.

Emergency repairs typically involve 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 include elements that remain in place as part of the future permanent repair, 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).

Any ERFA work that meets the criteria for emergency repairs in 23 CFR 668.103 and is accomplished within the first 270 days may be eligible for 100 percent Federal share regardless of whether the measures are intended to be temporary measures or include elements that remain in place as part of a future permanent repair. Conversely, if eligible ERFA work is accomplished outside the first 270 days (without an approved time extension) or does not meet the criteria for emergency repairs in 23 CFR 668.103, it may still be funded under the ER Program at a Federal share payable on a project on that facility not to exceed the Federal share as provided in 23 U.S.C. 120.⁵

¹ As defined in 23 CFR 668.103.
² This is not anticipated as a common work purpose scenario.

III. 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 that the emergency work satisfies the criteria of an emergency repair.

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 an eligible site. This work should be identified and costs accounted for in a site-specific DDIR.

Examples of minimizing damage on eligible sites:

• Stopping, eliminating, or limiting erosion of underlying material:
• Controlling or redirecting water flow.
• Localized stream bank armor/protection.
• Replacing culverts or bank armor to convey water safely.
• Landslide remediation.
• Removing debris:⁶
• Redirecting water flows from unprotected structures.
• Removing floating detritus pileup on bridge substructure.
• Removing landslide debris pushing on walls, foundations, or embankments.
• Stopping or limiting additional failure:⁷
• Keeping a bridge or specific structural components from collapse.
• Shoring structural components.
• Fire Suppression.

Protecting Remaining Facilities

This criterion typically involves work to safeguard the public or to avoid additional damage, or reconstruction that may be conducted when there is significant risk of loss of an eligible site. 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 or structural components.
• Redirect rushing water to avoid imminent breach or erosion.
• Removing trees or overhead items presenting imminent collapse.

Restoring Essential Traffic (or Essential Travel on Federal Roads)

Providing access for essential traffic is typically an eligible expense when an eligible 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. The determination of the restored level of access should be documented in a site-specific DDIR.

Restoration of essential traffic should be based on evaluation of need and does not mean a return to normal level of service or full reconstruction of the site.

Examples of Essential Traffic:

• Providing a detour route (from an eligible ER site), including temporary traffic control and maintenance of traffic while the roadway is closed.
• Safe passage of emergency vehicles and construction vehicles (responding to eligible emergency repair).
• Public access to essential locations, such as medical facilities, school, work, and grocery stores (must meet site eligibility criteria, see 23 CFR 668.103 and 668.109).

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. Essential traffic determinations will vary between urban or rural settings as well as between residential, business, and industrial settings.

IV. Extending the 100 Percent Federal Share Beyond 270 Days

Under 23 U.S.C. 120(e)(3), the 270-day period may be extended only due to the inability of the Applicant to access damaged facilities to evaluate the damage and costs of repairs. Access restrictions can include, but are 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 270-day time period to accomplish the emergency repairs. The Division Office will review the justification and, if the justification is 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 repairs may amount to 100 percent of the cost of repairs. To the extent practicable, the emergency repair timeframe extension request should include an estimate of the number of additional days needed to complete the work.

Work delays due to lack of resources are not by themselves an acceptable justification for an extension.

In addition to being eligible for 100 percent Federal share, work for emergency repairs accomplished within 270 days of the event start date allows for contracting flexibility and project delivery without FHWA’s prior approval. ⁸  For these reasons, it is critical that FHWA Division Offices consistently apply and document determinations regarding emergency repairs.

V. Environmental Requirements

All repair projects under the ER Program must comply with NEPA, 42 U.S.C. 4321, et seq. Emergency work to restore essential traffic, minimize the extent of damage, or protect remaining facilities are normally classified as categorical exclusions (CE) under 23 CFR 771.117(c)(9)(i). Permanent repair projects do not meet the criteria for “emergency repairs” identified in 23 CFR 668.103 and 668.203 but may also qualify as a CE if the work:

• Occurs within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original (which may include upgrades to meet existing codes and standards as well as upgrades warranted to address conditions that have changed since the original construction); and
• Commences within a 2-year period beginning on the date of the declaration.

If the proposed action does not qualify as a CE identified above or under one of the other CEs provided in regulation, the lead agency should then determine the significance of environmental impacts of the proposed action. If the expected environmental impacts from the proposed action are not considered to be “significant” or the significance of the environmental impacts is unknown, the lead agency would conduct an environmental assessment. If the proposed action is expected to have significant environmental impacts that cannot be mitigated to a less than significant level, then the lead agency would prepare an environmental impact statement (EIS).

The Council on Environmental Quality (CEQ) regulations provide for alternative arrangements for NEPA compliance when there is insufficient time to prepare an EIS before action is needed in emergency situations.⁹ These alternative arrangements do not waive the requirement to comply with NEPA but establish an alternative means for NEPA compliance limited to actions necessary to control the immediate impacts of the emergency. If alternative arrangements for NEPA compliance are needed, the FHWA Division Office should reach out to the FHWA Office of Project Development and Environmental Review (HEPE). HEPE, in coordination with the FHWA Division office, should consult with CEQ as soon as possible to develop the alternative arrangements, as outlined in CEQ’s 2020 guidance memorandum titled “Emergencies and the National Environmental Policy Act Guidance.”

If emergency situations involve immediate threats to public health or safety, or immediate threats to property, including natural resources, emergency repairs as defined in 23 CFR 668.103 can start as soon as possible with the environmental reviews occurring afterward. All other repairs require the completion of environmental reviews (i.e., NEPA approval) prior to the start of repair work.

Other Environmental Requirements

Although some projects may be categorically excluded under NEPA, other Federal environmental laws, executive orders and regulations may also apply, such as the Endangered Species Act, National Historic Preservation Act (NHPA), Clean Water Act, or Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations). Agencies must comply with these and other applicable authorities, which may have their own emergency exemptions and expedited procedures for compliance. For example, immediate rescue and salvage operations conducted to preserve life or property are exempt from the provisions of Section 106 of the NHPA (36 CFR 800.12(d)). In addition to this exemption, Section 106 programmatic agreements may have expedited procedures for emergency projects.

VI. Program and Funds Management under the ERFA Program

Introduction

Section 120(e) of 23 U.S.C. discussing cost reimbursement of ER events identifies a combination of work purpose and a time period not to exceed 270 days for reimbursement of emergency repairs at a 100-percent Federal share, and a pro-rata Federal share reimbursement for work not eligible for a 100-percent Federal share. The following information applies to the ERFA program.

Detailed Damage Inspection Reports

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 for emergency repairs under 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 a cost estimate. It is helpful to provide an estimate of the number of days for completion of the repairs to proactively assess whether the emergency repair work will be partially or entirely eligible for reimbursement at 100 percent Federal share, and also to establish whether it could be appropriate to apply other flexibilities available within the first 270 days. The Applicant and subrecipients must have adequate controls to be able to separate these costs and apply the appropriate reimbursement rate. See 2 CFR 200.302; 23 CFR 630.108.

Emergency Repair “Cutoff Date”

Under 23 U.S.C. 120(e)(1), emergency repairs (determined by their purpose, see section I of this document) under the ERFA program may be reimbursed at 100 percent Federal share for work accomplished up to 270 days after the 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 share for the affected roadway.

Note that although the reimbursement may occur after the 270 days, the work must be accomplished within 270 days after the event occurred. Frequently, project authorization requests for repairs may come after the emergency repairs have been completed. In these cases, at the time of project authorization it should be clear whether those repairs have been accomplished within the 270-day time frame.

The cutoff date should be entered into the Recipient Remarks in the Fiscal Management Information System (FMIS). If some sites were inaccessible and required extension of the 270 days, the cutoff date would be different only for those affected sites, not the entire event.

ER Financial Management and Internal Controls

Consistent with 2 CFR 200.302 (Financial Management) and 200.303, (Internal Controls), the Applicant and its subrecipients, if any, must have and maintain (a) a financial management system that satisfies the requirements of 2 CFR 200.302 and (b) a system of internal controls that meets the requirements of 2 CFR 200.303 to provide reasonable assurance that they are managing Federal awards in compliance with Federal statutes, regulations, and the terms and conditions of the Federal award.

Documentation is a necessary part of an effective internal control system required under
2 CFR 200.303; applicants and their subrecipients must document their internal controls and all transactions and other significant events in a manner that allows the documentation to be readily available for examination. Data entered in FMIS must be sufficient 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.

Multiple reimbursement rates for one site may be authorized within a single FMIS project. Separate FMIS Detail Lines should be used within each Federal-aid agreement if the associated site(s) includes multiple Federal fund types, with varying Federal shares, including work for emergency repairs during the first 270 days after the event start date. Using different Federal shares by detail lines in a single project agreement should occur only if the Applicant’s financial system can track the variations and can bill to the appropriate detail line.

The Applicant must be able to demonstrate to the Division Office that the work on individual sites is properly accounted for as either meeting the criteria of 23 CFR 668.103 (100 percent eligible for Emergency Repairs if other conditions are met) or not meeting the criteria (pro-rata Federal share eligible).

Controls should be implemented so as to prevent emergency repairs performed after the
270-day cutoff date from receiving a 100 percent Federal share and may include:

1. Requiring a site-specific determination of what constitutes restored essential traffic or the facility being protected from damage or further deterioration, typically to be documented in the DDIR (or an agreed scope of work).
2. The Applicant should have sufficient documentation to demonstrate when costs were incurred. This can be monitored via the Program of Projects for each event.
3. Tracking/identifying the 100 percent Federal share cutoff date:
   
1. Automatic notifications of near-term or imminent cutoff dates (e.g., 5-10 days in advance). Because billing for work accomplished within the first
   270 days may come later, the Applicant 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. 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 and those accomplished within 270 days after the event start date.
3. 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 Federal share.
   
4. Creating Division Office standard operating procedures for establishing the cutoff date and reviewing (for each site) the damage assessments and the invoice costs to determine that work meeting the criteria for emergency repairs in 23 CFR 668.103 was accomplished within 270 days after the event start date.
5. 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 that meets or does not meet the criteria for emergency repairs in 23 CFR 668.103, to periodically review or update all projects’ status (scope, cost, construction progress).
6. Working with the State to establish the end date for emergency repairs eligible for 100-percent 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 emergency and permanent repairs) with estimated costs for such repairs.
7. Working with the State to require contracts to provide separate contract line items for emergency repairs that are accomplished within 270 days after the event start date and work that extends beyond the first 270 days. Each emergency repair bid item would be tied to the appropriate 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. Under 23 U.S.C. 106(g), FHWA is required to establish an oversight program that, at a minimum, is responsive to all areas relating to financial integrity and project delivery. To carry out the requirements of 23 U.S.C. 106(g), FHWA uses a risk management framework to identify and analyze risks and develop response strategies and controls. Examples of oversight for the ER Program include:

1. Holding a quarterly ER Program meeting to discuss status of ER events and associated projects.
2. Manually adjusting all invoices after the 270-day limit from 100 percent to the pro-rata Federal share for the project established under 23 U.S.C. 120, based on the cost incurred date.
3. Reviewing State department of transportation (State DOT) tracking procedures:
   
1. Observing how the State DOT tracks the start of an event and the type of repairs, and then how the State DOT applies the date when the 270 days ends while reviewing emergency repair reimbursements.
2. Observing whether the reimbursement documentation provides the dates when work was accomplished to determine whether the 100 percent Federal share applies.
3. Observing how the State DOT also compares the work that was done to the approved DDIR to help distinguish emergency repairs from permanent repairs. This may be done using documents including inspector diary notes, field note records, invoices, and timesheets.
4. For large events:
   
   
1. Conducting a billing review to verify Federal share on ER projects. Based upon review results conducting a state process review if needed.
2. Conducting a billing review where the work was done by a Local Public Agency and the risk of non-compliance might be greater.
3. Generating a report from FMIS showing expenditures that were billed at
   100 percent and request documentation to support that the work was accomplished within 270 days after the event start date.
   
   
5. Performing a review of ER projects to identify a sample of billings from ER projects and confirm the proper application of the Federal share.

Appendix 1. Examples of Emergency and Permanent Repairs

Emergency repairs must be accomplished within 270 days to be reimbursed at 100 percent Federal share (23 U.S.C. 120(e)(1)). Under 23 U.S.C. 120(e)(3), the 270-day period may be extended only due to the inability of the Applicant to access damaged facilities to evaluate the damage and costs of repairs.

Please direct ER questions to Mr. Alex Appel (202-366-4652), and the Emergency Relief Team (HISM_10@dot.gov) of the Office of Stewardship, Oversight and Management.