Hurricane Sandy: Frequently Asked Question—Requirements

 

Hurricane Sandy: Frequently Asked Questions Main Page

Question Response
New item If a recipient receives an allocation of insurance proceeds, will this affect the amount of Federal recovery funds available to them? Please see FTA’s recent Dear Colleague letter and policy guidance on this question. If the Federal recovery allocation plus any insurance proceeds received together exceed the total amount of estimated damages, FTA will reduce the recovery allocation to equal 100 percent of the estimated damage. A grantee may request that FTA adjust the total damage estimate by submitting evidence of additional damage or increased recovery costs.
New item What is the process for determining if a project funded under FTA's Emergency Relief Program (ERP) qualifies for the exception found in 23 CFR 450.324? The FHWA and FTA joint planning rule (23 CFR 450.324) provides that "emergency relief projects" that do not involve substantial functional, locational, or capacity changes are not required to be included in the TIP/STIP. For purposes of FTA's Emergency Relief Program (ERP), "emergency relief projects" may include recovery funded projects, and if applicable, integral resiliency-elements for the said specific recovery projects. Generally, it does not apply to stand-alone or auxiliary resiliency projects funded out of a project sponsor's local priority resiliency allocation or future competitive resiliency allocations. For these category of projects and others that would not qualify under the exception, grantees must ensure the projects funded under this program are included in the TIP and STIP prior to incurring costs.

To qualify for this exception, the grantee must certify in writing that the project funded under FTA’s ERP does not involve substantial functional, locational or capacity changes and that the local share is available. The Grantee must submit this documentation to FTA in order for the project to be considered eligible for federal participation. If a Grantee is unsure whether a project qualifies as one of the exceptions, it should contact the FTA. If during the grant award process the FTA determines that the exception does not apply to a specific project that the Grantee certified, then that project must be programmed on the TIP/STIP. Absent a certification stating that the project qualifies as one of the exceptions or a previously issued waiver, the FTA expects projects funded under FTA’s ERP be included in the TIP/STIP prior to incurring costs.
New item Are there particular considerations for including Resiliency Projects funded under FTA’s ERP in a TIP/STIP? As the specific purpose of a resiliency project is to add protective features to existing infrastructure to minimize damage from future emergencies or major disasters, a resiliency project typically includes a “substantial functional, location or capacity change." As such, FTA expects project sponsors to ensure such resiliency projects are included or appropriately referenced in the MPO’s metropolitan transportation plan as well as the TIP and STIP prior to incurring costs. Please reference FHWA and FTA’s joint planning rule (23 CFR 450.324) for TIP/STIP requirements. Project sponsors are also reminded they must comply with other applicable pre-award requirements (unless specifically waived), before incurring costs for these projects.

While 23 CFR 450.324 contains an exception for "emergency relief projects" that do not involve substantial functional, locational, or capacity changes be included in the TIP/STIP, FTA does not expect resiliency projects, particularly those funded from the local priority resiliency allocations and future competitive resiliency allocations, to qualify for the reason noted above and given most are not "emergency" in nature.

However, there may be some integrated resiliency elements or projects specifically tied to a recovery project and funded from a grantee's recovery allocation that do not include "substantial functional, location, or capacity changes". Project sponsors should review the additional planning FAQs for more information about this exception and the process for certifying if a project qualifies.
New item What appropriate funding assumptions can be made to include projects funded under FTA’s Emergency Relief Program (ERP) in a TIP/STIP? Per FHWA/FTA’s joint planning rule, a project must be fully funded from “reasonably anticipated” fund sources to be included in the TIP/STIP. To meet the requirement of anticipated full funding, sponsors of ERP projects must identify all the funding sources for the ERP project including the federal funds that FTA has allocated from the ERP to individual project, any required non-federal match plus any other funds required to meet the total cost of the project. Project sponsors should not assume the availability of ERP funds for a specific project if Congress has not appropriated those funds to the ERP, or if FTA has not specifically allocated ERP funds to the specific project. Projects that have been allocated ERP funds from the Disaster Relief Appropriations Act by the Notice of Availability published May 29, 2013 can assume the ERP funds to be “reasonably available” to the project so that the project can be included in the TIP/STIP.

However, project sponsors cannot assume that any future funds that have not yet been allocated, particularly those that may be awarded on a competitive basis, are “ reasonably anticipated to be available” until FTA makes an allocation to a project. Once FTA makes an allocation, the project sponsor should work with the MPO and/or State to amend the TIP/STIP to include the ERP project, identifying all federal and other funds required to meet the full cost of the project. Project sponsors are urged to work closely with the MPO and States early to understand and plan for any TIP/STIP amendment procedures for project inclusion once FTA has allocated ERP funds.
If my agency has incurred eligibility expenses, recovery and/or resiliency, in advance of having the project programmed in the Transportation Improvement Program (TIP) and Statewide Improvement Program (STIP), can they be reimbursed from my pro-rated allocations for recovery and local priority resiliency? It depends. Some grantees, in preparation for the 2013 hurricane season, have incurred costs on local recovery and resiliency projects prior to those projects being included in the Transportation Improvement Program (TIP) or the State Transportation Improvement Program (STIP). Inclusion in the TIP/STIP is a requirement for pre-award authority. Given the short time frame for completing these projects, FTA has determined that it will reimburse costs incurred for recovery and approved resiliency projects if those projects are in the TIP/STIP by November 1, 2013. However, grantees are reminded that the planning requirement is just one of the pre-award requirements. In order to be eligible for reimbursement, the project must have met other applicable federal requirements (e.g. NEPA, procurement) or had a waiver in place. Resiliency projects also require FTA approval prior to incurring costs to confirm eligibility.

Beyond November 1, the agency will need to determine if we will permit reimbursement of costs incurred that were not in compliance with the planning rule.

FTA also already published guidance in a previous Q&A about exceptions that may apply to recovery projects that do not involve substantial functional, locational, or capacity changes. If you have a recovery project that may qualify for this exception to the planning rule (23 CFR 450.324), please submit the request in writing to the FTA Sandy Office. (http://www.fta.dot.gov/legislation_law/about_FTA_15174.html)
Does NEPA apply to the expenses under Cat 1-3? If not, does it apply to grants for other Sandy-related expenses? FTA has determined, in consultation with Council on Environmental Quality, that the requirements of the National Environmental Policy Act (NEPA) do not apply for Category 1, 2 or 3 projects as these are activities that were already complete, in process, or committed to as of January 29th. However, FTA has determined that other related environmental statutes, such as Section 106, do not apply to Category 1 expenses, but may apply to Category 2 and 3 expenses. For any questions relating to NEPA, please contact the FTA Regional Office.

For any other Sandy-related expenses that will be funded with future allocations (e.g. pro-rated allocation) outside of Categories One, Two, and Three, normal NEPA requirements (and related statutes) apply. It is probable that many recovery projects funded from a prorated or future allocation will fall under FTA’s Emergency Categorical Exclusion (Emergency CE) or another of FTA’s newly revised CEs. Resiliency projects might not fall under one of FTA’s CEs and may require further environmental documentation to be in compliance.
Is there a requirement to fully expend and close the grant 24 months from the date of obligation? FTA has received numerous inquiries regarding the 24 month timeframe. FTA is pursuing a blanket waiver from this requirement for Hurricane Sandy Emergency Relief projects. Further guidance will be provided once it is available.
Is Department of Labor grant review/approval required before FTA obligation? No. Section 5333(b) aka 13(c) does not apply to the FTA’s Emergency Relief program or funds allocated under the Disaster Relief Appropriations Act of 2013
What is the period of availability of ER funds allocated to an agency? Funds made available for the FTA Emergency Relief Program are available until expended, and thus do not have a lapse date. Once obligated, funds must be expended within 24 months. FTA is working to resolve questions and concerns regarding this issue and will post information as it becomes available.
What is the process for requesting waivers for projects NOT in Categories 1, 2 and 3? Recipients affected by Hurricane Sandy may request an FTA Administrator determination that certain terms and conditions not apply when the requirement(s) will limit a recipient’s or sub-recipient’s ability to respond to an emergency or major disaster. Recipients must follow the procedures as set forth in 49 CFR part 601, subpart D when requesting such a determination or seeking a waiver of administrative requirements. The docket is available on www.regulations.gov, and the docket number for calendar year 2013 is FTA–2013–0001. More information is available in the Notice of Availability of Emergency Relief Funding.
Do projects funded under the ER Program need to be included in the TIP/STIP? Emergency Relief Operating and Capital Projects that have been validated by FTA for Categories 1-3 do not need to be placed in the TIP/STIP. See February 6, 2012 FRN.

Other Emergency Relief projects, including those funded through a pro-rated or future allocation, are subject to the joint FHWA-FTA planning rule (23 CFR 450.324). The joint planning rule requires that capital and non-capital surface transportation projects (or phases of projects) within the boundaries of the metropolitan planning area proposed for funding under 23 U.S.C. and 49 U.S.C. Chapter 53 be included in the TIP (and STIP) prior to incurring costs, unless the project qualifies as one of the exceptions listed in the rule. 23 CFR 450.324 provides that emergency relief projects are not required to be included in the TIP (and STIP) except for those involving substantial functional, locational, or capacity changes.

To qualify for this exception, the grantee must certify in writing that the emergency relief project does not involve substantial functional, locational or capacity changes and that the local share is available. The Grantee must submit this documentation to FTA in order for the project to be eligible for federal participation. Absent such certification, FTA expects Emergency Relief projects to be included in the TIP/STIP prior to incurring costs. Grantees may petition FTA for a waiver from this requirement by using the FTA docket process outlined in this Q&A document. FTA encourages grantees to work closely with their MPO in determining whether to include emergency relief projects in the TIP, and ultimately in the STIP.

Guidance for addressing Resiliency Projects will be forthcoming.