Second Allocation of Public Transportation Emergency Relief Funds in Response to Hurricane Sandy: Response, Recovery & Resiliency, 32296-32302 [2013-12766]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 78, Number 103 (Wednesday, May 29, 2013)]
[Notices]
[Pages 32296-32302]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12766]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration


Second Allocation of Public Transportation Emergency Relief Funds 
in Response to Hurricane Sandy: Response, Recovery & Resiliency

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of allocation of Emergency Relief funds.

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SUMMARY: The Federal Transit Administration (FTA) announces the 
allocation of $3.7 billion under the Public Transportation Emergency 
Relief Program (Emergency Relief Program, Catalogue of Federal Domestic 
Assistance 20.527) to the four FTA recipients most severely 
affected by Hurricane Sandy: the Metropolitan Transportation Authority, 
New Jersey Transit Corporation, the Port Authority of New York and New 
Jersey, and the New York City Department of Transportation. This amount 
is in addition to the initial $2 billion allocation announced in the 
March 29, 2013 Federal Register notice, bringing the total amount of 
Hurricane Sandy Emergency Relief funds allocated to-date to $5.7 
billion. Within the $3.7 billion announced in this notice, FTA is 
allocating $2.4 billion for additional recovery and rebuilding projects 
and $1.3 billion for project elements or freestanding projects that 
increase the resiliency of the affected transit systems to future 
disasters. Such resiliency investments shall be subject to specific 
conditions cited in this notice. FTA is allocating funds consistent 
with the requirements of the Disaster Relief Appropriations Act of 2013 
(Pub. L. 113-2), Interim Final Rule for the Emergency Relief Program, 
49 CFR part 602, published in the Federal Register on March 29, 2013, 
the Notice of Availability of Emergency Relief Funds published in the 
Federal Register on February 6, 2013, and additional requirements and 
program guidance included in the March 29, 2013 Federal Register 
notice.
    FTA anticipates allocating additional funding for recovery and 
rebuilding and announcing the availability of competitive funding for 
eligible resiliency projects in areas impacted by Hurricane Sandy in a 
subsequent notice.
    Prior to submitting grant applications to FTA for the funds 
allocated in this notice, recipients should develop a list of 
potentially eligible projects, consistent with the Emergency Relief 
Program rule, at 49 CFR 602.17, and submit and review the list of 
projects with the applicable FTA Regional Office.
    Affected recipients are granted pre-award authority as of the 
publication date of this notice for recovery and rebuilding projects; 
pre-award authority for the $1.3 billion allocated for resiliency 
projects may be contingent upon FTA's prior approval as described later 
in this notice. Prior to exercising pre-award authority, recipients 
should work with the appropriate Regional Office to ensure that the 
applicable Federal requirements are followed.
    All funds allocated in this notice must comply with FTA and other 
Federal requirements as described in the Interim Final Rule. Recipients 
may request waivers of FTA administrative requirements by submitting a 
request to www.regulations.gov, FTA docket number FTA-2013-0001, as 
described in the Emergency Relief Program rule at 49 CFR Sec.  602.15, 
however, recipients should not proceed with a project under the 
expectation that waivers will be provided. Additional program 
requirements, considerations and grant application procedures specific 
to these funds are included in this notice.

FOR FURTHER INFORMATION CONTACT: Contact the appropriate FTA Regional 
Office found at https://www.fta.dot.gov for application-specific 
information and other assistance needed in preparing a TEAM grant 
application. For program-specific questions, please contact Adam 
Schildge, Office of Program Management, 1200 New Jersey Ave SE., 
Washington, DC 20590, phone: (202) 366-0778, or email, 
Adam.Schildge@dot.gov. For legal questions, contact Bonnie Graves, 
Office of Chief Counsel, same address, phone: (202) 366-4011, or email, 
Bonnie.Graves@dot.gov. For questions about direct transfers to other 
modes within Department of Transportation, please contact Vinn White, 
Office of Policy, Office of the Secretary, same address, phone: (202) 
366-9044, or email, Vinn.White@dot.gov; or Ed Beightel, Office of 
Policy, Office of the Secretary, same address, phone: (202) 366-8154, 
or email, Ed.Beightel@dot.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Considerations for Recipients of Emergency Relief Funds
    A. Allocation of Funds
    B. Use of Funds for Recovery and Resiliency Projects
    C. Pre-Award Authority
    D. Planning Requirements
    E. 24 Month Expenditure Requirement
    F. Treatment of Insurance Proceeds
    G. Executive Order 11988, Floodplain Management
    H. Use of Force Accounts
    I. Eligible Sources of Local Match
    J. Waiver Process
II. Award Administration
    A. Grant Application
    B. Payment
    C. Special Conditions for Grant Agreements
    D. Reporting Requirements
    E. Oversight and Audits

[[Page 32297]]

I. Considerations for Recipients of Emergency Relief Funds

A. Allocation of Funds

    FTA's Emergency Relief Program (49 U.S.C. 5324) was authorized by 
Congress in the Moving Ahead for Progress in the 21st Century Act (MAP-
21, Pub. L. 112-141) and provides FTA with primary responsibility for 
reimbursing emergency response and recovery costs after an emergency or 
major disaster that affects public transportation systems. The Disaster 
Relief Appropriations Act provides $10.9 billion for FTA's Emergency 
Relief Program for recovery, relief and resiliency efforts in areas 
affected by Hurricane Sandy. However, as a result of the Office of 
Management and Budget's March 1, 2013, report to Congress required by 
the Balanced Budget and Emergency Deficit Control Act of 2011 (Pub. L. 
112-25) for fiscal year (FY) 2013, approximately five percent, or 
almost $545 million of the $10.9 billion, is subject to sequestration 
and is unavailable for Hurricane Sandy disaster relief. That leaves 
approximately $10.3 billion available. FTA is allocating the remaining 
$10.3 billion in multiple tiers for response, recovery and rebuilding, 
for locally-prioritized resiliency projects, and for competitively 
selected resiliency projects, which will be solicited in a future 
notice of funding availability.
    FTA is allocating funding in this notice for recovery and 
rebuilding and for locally-prioritized resiliency projects based on 
detailed damage assessments submitted by affected agencies and prepared 
in cooperation with FTA and Federal Emergency Management Administration 
(FEMA) staff. FTA contractors validated the methodologies affected 
agencies used to estimate the costs of the damage. These affected 
agencies included the following major transit agencies:
     The Metropolitan Transportation Authority (MTA), doing 
business as:
    [cir] MTA New York City Transit (NYCT);
    [cir] MTA Bus Company (MTA Bus);
    [cir] MTA Metro-North Railroad (MNR);
    [cir] MTA Long Island Railroad (LIRR);
    [cir] MTA Capital Construction Division (MTACC);
     The New York City Department of Transportation (NYCDOT);
     The Port Authority of New York and New Jersey (PANYNJ) 
which operates Port Authority Trans Hudson (PATH) rail service and the 
rebuilding of the World Trade Center Transportation Hub and site; and
     New Jersey Transit.
    The damage assessments include an initial overall cost of recovery 
and rebuilding for the affected agencies, excluding projects to improve 
the resiliency of the affected systems to future disasters, which 
totals approximately $5.83 billion.
    On March 29, 2013, FTA published an allocation of $2 billion to 
affected recipients for eligible emergency response and recovery costs, 
less a takedown for program implementation and oversight. FTA allocated 
funds in that notice in two parts: First, FTA allocated approximately 
$576.6 million to affected agencies based on specific emergency 
response and recovery costs that were incurred or budgeted to date. 
Second, FTA allocated approximately $1.4 billion to the four agencies 
most severely impacted by Sandy proportional to each agency's projected 
overall recovery costs. Of this $1.4 billion, FTA set aside 
approximately $28 million for other affected agencies that may have 
additional response and recovery expenses not reimbursed to-date. The 
funding allocated under that notice was equivalent to approximately 32 
percent of the projected total recovery costs for the four most 
severely affected public transportation systems, not including the 
costs of improvements designed to increase the resiliency of the 
affected transit systems to future disasters. Both the current and 
previous allocations are based on detailed damage assessments compiled 
by the affected agencies in cooperation with FTA and FEMA.
    FTA is now allocating an additional $3.7 billion in Emergency 
Relief Program funding to the four agencies above, based on a 
percentage of the anticipated full cost of recovery and rebuilding. Of 
the $3.7 billion allocated in this notice, FTA is allocating $2.4 
billion for eligible recovery and rebuilding projects, as outlined in 
the previous allocation notice and the Interim Final Rule. Combined 
with the previous allocations (see 78 FR 19357, March 29, 2013), total 
allocations for recovery and rebuilding are equivalent to approximately 
70 percent of the total projected recovery costs for the hardest hit 
agencies. The remaining $1.3 billion allocated in this notice is being 
provided on a pro-rated basis to these recipients for the cost of 
projects and project components that are intended to increase those 
public transportation systems' resiliency to future disasters 
(resiliency projects). As a result of these allocations to date, the 
four hardest hit agencies will be permitted to use approximately 23 
percent of their Emergency Relief allocations for locally prioritized 
resiliency projects and improvements, subject to FTA approval.
    Based on FTA's earlier damage assessment efforts and applications 
submitted for immediate response and recovery costs, FTA is aware that 
other public agencies suffered serious damage and may request funding 
for resiliency projects, including, but not limited to, Massachusetts 
Bay Transportation Authority, Southeastern Pennsylvania Transportation 
Authority, Connecticut Department of Transportation, New York State 
Department of Transportation and many smaller transit agencies such as 
the City of Long Beach and Nassau County Intercounty Express (NICE); 
and the counties of Putnam, Rockland and Westchester. FTA has funded 
response and recovery costs for these agencies under the previous 
allocation, and has reserved approximately $28 million for additional 
longer-term recovery and rebuilding projects for these and other 
affected agencies, which may not have received a pro-rated allocation. 
These and other eligible entities, which may not be limited to transit 
agencies, will be permitted to apply for competitive resiliency project 
funding in a subsequent notice. Evaluation criteria and project 
eligibility for competitive resiliency project funding will be 
published in a notice of funding availability.
    Recipients of local prioritized resiliency funds made available 
under this notice are encouraged to pursue projects of a scale and 
nature commensurate with the funding distribution levels made herein. 
Primarily, recipients are encouraged to coordinate, as appropriate, 
resiliency improvements in tandem with recovery and rebuilding projects 
where joint implementation will prove cost effective. Local prioritized 
resiliency funds allocated under this notice are also intended for 
lower cost, stand-alone resiliency improvements that can be implemented 
relatively quickly. Conversely, larger scale, high cost resiliency 
investments--particularly those that involve major new infrastructure 
projects with longer, more complex planning and pre-construction 
activities; and/or that involve multiple agency contributions beyond a 
single recipient--will likely be better suited to the subsequent 
competitive resiliency funding, subject to a future notice that will 
specify appropriate eligibility and evaluation criteria.
    FTA encourages eligible project sponsors to secure funding 
available under the Disaster Relief Appropriations Act through the 
formula allocation set forth in this and prior notices and the

[[Page 32298]]

competitive application process that will be announced in a future 
notice. FTA nonetheless recognizes that there may be some projects that 
are eligible for funding under the Disaster Relief Appropriations Act 
that are not readily fundable through FTA's Emergency Relief Program. 
In those limited cases, the Secretary may use his authority under the 
Act to directly transfer resiliency funds to other agencies to fund 
programs authorized under titles 23 and 49, United States Code, in 
order to carry out resiliency projects in areas impacted by Hurricane 
Sandy. Necessity and urgency are among the factors the Department of 
Transportation (DOT) will consider in allocating funding to a project 
outside the formula or competitive processes. While project sponsors 
are encouraged to use the formula and competitive sponsors if feasible, 
interested parties may contact the Office of the Secretary for 
additional information about the direct transfer process. Should the 
Secretary make any such transfers, those funds would be administered by 
the agency receiving the transfer, separate and apart from FTA 
administrative requirements outlined in this notice.
    The following chart \1\ illustrates the overall allocation of 
funding under the FTA Emergency Relief Program:
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    \1\ The Secretary is authorized by the Disaster Relief 
Appropriations Act to transfer emergency relief resiliency funding 
to other DOT operating administrations for eligible projects.

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             Award type                    Applicants           Available funding     Damage assessment/criteria
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Response, Recovery & Rebuilding....  Affected FTA            $4.4 billion..........  Damage assessments
                                      Recipients.                                     submitted by affected
                                                                                      agencies and reviewed by
                                                                                      FTA, and costs incurred by
                                                                                      affected agencies.
Locally-Prioritized Resiliency.....  MTA, NJT, PANYNJ,       $1.3 billion..........  Resiliency Projects and
                                      NYCDOT.                                         Project Components as
                                                                                      outlined in this notice.
Competitive Resiliency.............  Statutorily Eligible..  TBD in subsequent       TBD in subsequent notice.
                                                              notice.
Response, Recovery & Rebuilding....  Affected FTA            $1.1 billion (to be     Damage assessments
                                      Recipients.             announced in a          submitted by affected
                                                              subsequent notice).     agencies and reviewed by
                                                                                      FTA, and costs incurred by
                                                                                      affected agencies.
Direct Transfer Resiliency.........  Eligible DOT grantees/  TBD...................  TBD.
                                      funding recipients
                                      implementing programs
                                      authorized under
                                      titles 23 and 49
                                      U.S.C.
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B. Use of Funds for Recovery and Resiliency Projects

    Consistent with the February 6, 2013, Federal Register notice, 
funds allocated in this notice for recovery and rebuilding projects 
must be used by affected agencies for the cost of emergency operations, 
emergency protective measures, and emergency and permanent repairs to 
(or the replacement of) assets that suffered serious damage as a result 
of the storm. Eligible projects include the repair or replacement of 
public transportation vehicles, infrastructure and other assets that 
were seriously damaged by Hurricane Sandy.
    Since a significant portion of the seriously damaged transit 
infrastructure was technologically obsolete, and hence not appropriate 
to replace in-kind or to restore to the exact previous condition, FTA 
will fund recovery and rebuilding projects that bring transit assets up 
to a state of good repair. For the purposes of this allocation, a 
project is considered to bring the transit assets up to a ``state of 
good repair'' if it consists of the installation of comparable 
equipment that meets the same basic function, class, or capacity of the 
equipment replaced and also meets current technological or design 
standards, or a like-new condition. FTA may permit some adjustment to 
meet current needs, for example, to match other recent equipment 
purchases of an agency and to ensure compatibility or consistency (e.g. 
replacing a 35' bus with a 40' bus, purchasing a bus with a different 
propulsion system; installing the same fare payment systems as other 
recent acquisitions). Projects that significantly alter the function or 
capacity of the underlying transit asset or infrastructure are not 
eligible recovery and rebuilding projects.
    Specifically, when repairing or replacing facilities and 
infrastructure damaged or destroyed by Hurricane Sandy, the following 
activities are eligible for Emergency Relief funding: (1) Replacement 
of older features with new ones; (2) incorporation of current design 
standards, including those that decrease an asset's vulnerability to 
future disasters or that increase access to persons with disabilities, 
including those who use wheelchairs, to the extent practicable; (3) 
replacement of a destroyed facility to a different location (from its 
existing location) when driven by resiliency decision-making or when 
replacing it at the existing location is not practical or feasible; and 
(4) additional required features resulting from the National 
Environmental Policy Act (NEPA) process. Rolling stock and other 
equipment used in public transportation that was damaged or destroyed 
before the end of its useful life may be replaced with new rolling 
stock and equipment. The cost of improvements or changes designed 
solely to improve the resiliency of transit infrastructure is not 
eligible as a recovery and rebuilding project expense, and must be 
funded from the $1.3 billion allocated in this notice specifically for 
resiliency projects or resiliency funds made available in the future.
    Resiliency projects funded from the $1.3 billion must be intended 
to reduce the risk of serious damage from future disasters. As defined 
in the Interim Final Rule, resiliency is defined as ``a capability to 
anticipate, prepare for, respond to, and recover from significant 
multi-hazard threats with minimum damage to social well-being, the 
economy, and the environment.'' Further, a resiliency project is ``a 
project designed and built to address future vulnerabilities to a 
public transportation facility or system due to future recurrence of 
emergencies or major disasters that are likely to occur again in the 
geographic area in which the public transportation system is located; 
or projected changes in development patterns, demographics, or extreme 
weather or other climate patterns.''
    As such, resiliency projects include eligible FTA transit capital 
projects as defined under 49 U.S.C. 5302(3) that are designed and built 
to reduce the risk of serious damage to a vulnerable asset or

[[Page 32299]]

aspect of the public transportation system. Resiliency projects may 
also consist of the costs of specific improvements associated with 
eligible recovery and rebuilding projects that increase the resiliency 
of the transit asset or system once rebuilt. All resiliency projects 
funded from the agency's resiliency allocation must be reviewed and 
approved by FTA, either individually or as part of a program of 
projects.
    Examples of resiliency projects may include: The relocation of 
critical infrastructure above projected flood levels; waterproofing 
sensitive equipment and facilities; installing additional or higher 
capacity water pumps; implementing infrastructure improvements to 
reduce the intrusion of water into the transit system; improving 
communications equipment used in disaster management; and the 
installation of alternate or redundant sources of power for lighting, 
flood pumps, and dispatch facilities. Specific resiliency projects and 
improvements should be identified in relationship to the identified 
vulnerabilities of the transit system to future disasters.
    As indicated in section I.A. ``Allocation of Funds,'' resiliency 
funding allocated in this notice is intended primarily for local 
priority improvements that can be implemented in tandem with 
restoration and recovery projects; as well as lower cost stand-alone 
projects that can be implemented relatively quickly. To inform their 
project priorities, recipients should use information such as damage 
assessments from past disasters, including Hurricane Sandy, FEMA's 
Advisory Base Flood Elevation (ABFE) Maps (see, e.g., https://www.region2coastal.com/sandy/abfe), or other hazard vulnerability 
assessments, and should consider identifying and prioritizing projects 
for funding based on at least these five considerations:
    (1) the identification of and assessment of the reasonable 
likelihood of a potential hazard or disaster,
    (2) the vulnerability of a particular system or asset to a 
particular hazard or disaster, and the criticality of that asset to the 
overall performance of the transit system,
    (3) the potential extent of damage to the asset or system from the 
identified hazard(s),
    (4) the total cost of implementing the proposed hazard mitigation 
or resiliency improvement, and
    (5) the anticipated reduction in damage or other negative impacts 
that will result from the proposed project.
    In addition, with regard to a Hurricane Sandy-related resiliency 
project located in a floodplain, FTA recipients should consider the 
requirements of Executive Order 11988 discussed later in this notice.
    Recipients are encouraged to consult resources published by FTA for 
transit agencies under FTA's Climate Change Adaptation Initiative 
(https://fta.dot.gov/climatechange), including the report ``Flooded Bus 
Barns and Buckled Rails: Public Transportation & Climate Change 
Adaptation.'' Although the procedures for developing and selecting 
resiliency projects may differ between FTA and FEMA programs, FTA 
recipients are also encouraged to review FEMA's hazard mitigation 
planning and project development resources at https://www.fema.gov/hazard-mitigation-planning-resources.

C. Pre-Award Authority

    In the February 6, 2013, Federal Register notice, FTA granted pre-
award authority to affected recipients for expenses incurred in 
preparation for Hurricane Sandy (e.g., evacuation, relocation, 
protecting and safeguarding assets) and for response and recovery 
expenses incurred as a result of Hurricane Sandy. Pre-award authority 
allows affected recipients to incur certain project costs before grant 
approval and retain the eligibility of those costs for subsequent 
reimbursement after grant approval.
    If a recipient intends to use pre-award authority for the recovery 
and rebuilding funds allocated in this notice, FTA recommends the 
recipient submit a proposed program of projects to FTA to verify that 
all pre-requisite requirements have been met, and that the proposed 
costs are all eligible under the Emergency Relief Program, in advance 
of incurring any costs. Pre-award authority for resiliency projects is 
not automatic; FTA may require a resiliency project funded from the 
agency's resiliency allocation be reviewed and approved by FTA, either 
individually or as part of a program of projects, prior to incurring 
costs. Since this program is new and interim final regulations were 
published in March 2013, recipients may not be familiar with all 
applicable statutory and regulatory requirements for this program, 
including those that might be different from other FTA grant programs. 
If funds are expended for an ineligible project or activity, or for an 
eligible activity but at an inappropriate time (e.g., prior to 
environmental review completion), FTA will be unable to reimburse the 
project sponsor and, in certain cases, the entire project may be 
rendered ineligible for FTA assistance.
    Pre-award authority is described in the Emergency Relief Program 
rule at 49 CFR 602.11. In considering the use of pre-award authority, 
recipients should be aware of the following:
    (i) Pre-award authority is not a legal or implied commitment that 
the subject project will be approved for FTA assistance or that FTA 
will obligate Federal funds. Furthermore, it is not a legal or implied 
commitment that all activities undertaken by the applicant will be 
eligible for inclusion in the project.
    (ii) Except as provided for Categories One, Two and Three in 
section II.D. of the February 6, 2013, Federal Register notice, or 
waived pursuant to the waiver process described in section J of this 
notice, all FTA statutory, procedural, and contractual requirements 
must be met.
    (iii) The recipient must take no action that prejudices the legal 
and administrative findings that FTA must make in order to approve a 
project.
    (iv) The Federal amount of any future FTA assistance awarded to the 
recipient for the project will be determined on the basis of the 
overall scope of activities and the prevailing statutory provisions 
with respect to the Federal/non-Federal match ratio at the time the 
funds are obligated.
    (v) When FTA subsequently awards a grant for the project, the 
Federal Financial Report in TEAM-Web must indicate the use of pre-award 
authority.

D. Planning Requirements

    Emergency Relief projects, excluding initial response and recovery 
projects under Categories 1, 2 and 3, for which FTA has issued a waiver 
of the planning requirements, are subject to the joint Federal Highway 
Administration (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 title 23 
U.S.C. and 49 U.S.C. chapter 53 be included in the Transportation 
Improvement Program (TIP) and Statewide Transportation Improvement 
Program (STIP) prior to incurring costs, unless the project qualifies 
as one of the exceptions listed in the rule. The planning rule at 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.

[[Page 32300]]

    To qualify for this exception, the recipient 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 recipient 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, including 
resiliency projects, to be included in the TIP/STIP prior to incurring 
costs. Recipients may petition FTA for a waiver from this requirement 
by using the FTA docket process outlined in section J of this notice. 
FTA encourages recipients to work closely with their metropolitan 
planning organization (MPO) in determining whether to include emergency 
relief projects in the TIP, and ultimately in the STIP.

E. 24 Month Expenditure Requirement

    Projects funded through the Disaster Relief Appropriations Act of 
2013 are subject to section 904(c) of that Act, which requires 
expenditure of funds within 24 months of grant obligation, unless this 
requirement is subsequently waived for this program in accordance with 
guidance to be issued by the Office of Management and Budget. Absent a 
waiver, oversight procedures will be put in place to ensure that 
projects are implemented in accordance with the project schedule.

F. Treatment of Insurance Proceeds

    If a recipient receives or allocates insurance proceeds to a cost 
for which FTA either allocated or awarded Emergency Relief Program 
funds, the recipient will be required to amend the grant to reflect a 
reduced Federal amount, and will be required to reimburse FTA for any 
FTA payments (drawdown of funds) in excess of the new Federal amount. 
FTA will deobligate any excess funds from the grant. FTA will 
subsequently reallocate these funds through the Emergency Relief 
Program for other eligible Hurricane Sandy emergency relief projects.
    If a recipient receives an insurance settlement that is not 
entirely allocable to specific losses, FTA may require the recipient to 
allocate a percentage of the settlement to response, recovery and 
resiliency projects funded by FTA in proportion to the amount of damage 
that is eligible for funding under the Emergency Relief Program 
relative to the overall damage sustained by the transit agency. FTA 
will publish further guidance regarding the treatment of insurance 
proceeds.

G. Executive Order 11988, Floodplain Management

    Executive Order 11988, Floodplain Management, requires Federal 
agencies to avoid to the extent possible the long and short-term 
adverse impacts associated with the occupancy and modification of 
floodplains and to avoid direct and indirect support of floodplain 
development wherever there is a practicable alternative. In accordance 
with the Executive Order, recipients shall not use grant funds for any 
activity in an area delineated as a `special flood hazard area' or 
equivalent, as labeled in FEMA's most recent and current data source, 
unless, prior to seeking FTA funding for such action, the recipient 
designs or modifies its actions in order to minimize potential harm to 
or within the floodplain. To guide decision making, recipients shall 
use the ``best available information'' as identified by FEMA, which 
includes advisory data (such as Advisory Base Flood Elevations), 
preliminary and final Flood Insurance Rate Maps (FIRMs), and Flood 
Insurance Studies (FISs). If FEMA data is mutually determined by FTA 
and the recipient to be unavailable or insufficiently detailed, other 
Federal, State, or local data may be used as the ``best available 
information'' in accordance with Executive Order 11988.
    For Hurricane Sandy, the Secretary of Transportation has determined 
that if a Federally-funded project or activity is located in a 
floodplain, that the ``best available information'' requires a minimum 
baseline standard for elevation no less than that found in FEMA's 
Advisory Base Flood Elevations, at the 1 percent elevation (also 
referred to as the 100 year flood elevation), where available, plus one 
foot (ABFE+1). This determination recognizes that some of the existing 
FIRMs were developed more than 25 years ago. Updated FIRMs are yet to 
be finalized and will not be available in time to provide updated 
information to support vital and immediate reconstruction efforts. This 
determination is based on FEMA's assessment that, following recent 
storm events including Hurricane Sandy, the base flood elevations shown 
on some existing FIRMs do not adequately reflect the current coastal 
flood hazard risk. FEMA recognizes that the ABFEs are based on sound 
science and engineering, and are derived from more recent data and 
improved study methodologies compared to existing FIRMs. To reduce the 
likelihood of future damage from such risks as storm surge, coastal 
hazards, and projections of sea level rise, the application of an 
ABFE+1 standard provides a limited safeguard against the natural 
recurrence of flood hazards.
    Thus, for projects in floodplains, when considering alternatives to 
avoid adverse effects and determining how to design or modify actions 
in order to minimize potential harm to or within the floodplain 
consistent with Executive Order 11988, recipients should consider that 
the ``best available information'' for baseline elevation is ABFE at 
the 1 percent elevation, or, if that is not available, FIRM, +1 foot. 
This standard does not necessarily mean that transit agencies will be 
required to move existing facilities to a higher elevation; however, in 
order to minimize potential harm within the floodplain in accordance 
with Executive Order 11988, recipients must consider the best available 
information (ABFE or FIRMs), including sea level rise consistent with 
the addition of at least one foot over the most up-to-date elevations. 
Particularly with respect to existing facilities where relocating them 
may not be feasible, examples of actions to minimize potential harm to 
or within the floodplain and reduce the risk of damage from future 
disasters may include but are not limited to updated design features or 
added protective features (resiliency projects). Recipients must also 
consider the best available data on sea-level rise, storm surge, 
scouring and erosion before rebuilding. Consistent with FTA's interim 
final rule, if State or locally-adopted code or standards require 
higher elevations, those higher standards would apply.

H. Use of Force Accounts

    Force accounts refer to the use of a recipient's own labor force to 
carry out a capital project. Force account work may consist of design, 
construction, refurbishment, inspection, and construction management 
activities, if eligible for reimbursement under the grant. Incremental 
labor costs from flagging protection, service diversions, or other 
activities directly related to the capital grant may also be defined as 
force account work. Force account work does not include grant or 
project administration activities which are otherwise direct project 
costs. Force account work also does not include preventive maintenance 
or other items under the expanded definition of capital (i.e. security 
drills, mobility management) which are traditionally not a capital 
project.
    Any one of the following four conditions may warrant the use of a 
recipient's own labor force. These are: (1) Cost savings, (2) exclusive 
expertise, (3) safety and efficiency of operations,

[[Page 32301]]

and (4) union agreement. Recipients are required to maintain a force 
account plan for projects funded under the Emergency Relief program and 
the plan should be in place prior to incurring costs, unless waived by 
FTA pursuant to the waiver process described in section J of this 
notice. Recipients are not required to obtain prior FTA approval of 
force account plans (including justifications for the use of force 
accounts) for emergency response and recovery work, however, recipients 
are encouraged to update force account plans as needed for response and 
recovery projects on which force account labor will be used.

I. Eligible Sources of Local Match

    The non-Federal share of Emergency Relief grants may be provided 
from an undistributed cash surplus, a replacement or depreciation cash 
fund or reserve, or new capital. In addition, recipients may utilize 
the following provisions for complying with the non-Federal share 
requirement.
    The Community Development Block Grant (CDBG) statute at 42 U.S.C. 
5305(i) provides that ``payment of the non-Federal share required in 
connection with a Federal grant-in-aid program undertaken as part of 
activities assisted under [chapter 53 of title 42]'' is an eligible 
activity. Since the CDBG statute specifically is available to fund the 
``non-Federal share'' of other Federal grant programs, if the activity 
is eligible under the CDBG program, FTA will accept CDBG funds as local 
match.
    Recipients may also utilize Transportation Development Credits 
(TDCs), formerly known as Toll Revenue Credits, in place of the non-
Federal share. The use of TDCs must be approved by the State, which 
must send a letter to the FTA Regional Office certifying the 
availability of sufficient TDCs and approving their use prior to 
submitting a grant application. Recipients are advised that the use of 
TDCs means that no local funds will be required for projects in the 
grant, and that the funds allocated by FTA will not alone be sufficient 
to fund the entirety of the proposed Emergency Relief projects. FTA 
will not allocate additional Federal funds to recipients that use TDCs 
in place of the non-Federal share, so sufficient alternative funds will 
need to be located to fully finance projects utilizing TDCs. FTA will 
not approve a retroactive application of TDCs.

J. Waiver Process

    Recipients may request waivers of FTA administrative requirements 
by submitting a request to www.regulations.gov, FTA docket number FTA-
2013-0001, as described in the February 6, 2013 Federal Register 
notice, and in the Emergency Relief Program rule at 49 CFR Sec.  
602.15, however, recipients should not proceed with a project with the 
expectation that waivers will be provided.

II. Award Administration

A. Grant Application

    Once FTA allocates Emergency Relief funds to a recipient, the 
recipient will be required to submit a grant application electronically 
via FTA's TEAM system. Prior to submitting a grant application or 
modification for new recovery and rebuilding projects and for 
resiliency projects, recipients must submit a proposed list of projects 
and expenses to FTA's Regional Office for review, consistent with 49 
CFR Sec.  602.17. This review will ensure that all proposed projects 
and costs are eligible under the Emergency Relief Program.
    Distinct project identification numbers have been assigned for 
recovery/rebuilding projects and for resiliency projects. Recipients 
should work with the FTA Regional Offices to determine when, if 
appropriate, multiple grant applications may be required. While there 
is nothing that precludes the obligation of funding allocated for 
resiliency projects in the same grant as recovery and rebuilding 
projects, recipients will be required to track these costs separately 
and to include a separate non-add scope for costs associated with 
resiliency projects. This will allow FTA to track the obligation of 
funds for resiliency costs.
    Recipients are required to maintain records, including but not 
limited to all invoices, contracts, time sheets, and other evidence of 
expenses to assist FTA in periodically validating the eligibility and 
completeness of a recipient's reimbursement requests under the Improper 
Payment Information Act.

B. Payment

    Upon award, payments to recipients will be made by electronic 
transfer to the recipient's financial institution through FTA's 
Electronic Clearing House Operation (ECHO) system.

C. Grant Requirements

    Emergency Relief funds may only be used for eligible purposes as 
defined under 49 U.S.C. 5324 and as described in the Emergency Relief 
Program Rule (49 CFR part 602) and the February 6, 2013, Notice of 
Availability of Emergency Relief Funds.
    Recipients of section 5324 funds must comply with all applicable 
Federal requirements, including FTA's Master Agreement. Each grant for 
section 5324 funds will include special grant conditions, including but 
not limited to, application of insurance proceeds, application of any 
FEMA funds received, section 904(c) of the Disaster Relief 
Appropriations Act of 2013, Federal share, and enhanced oversight. 
These special conditions will be incorporated into the grant agreement 
for all Hurricane Sandy Emergency Relief funds.

D. Reporting Requirements

    Post-award reporting requirements include a monthly submission of 
the Federal Financial Report and Milestone reports in TEAM consistent 
with FTA's grants management Circular 5010.1D, as well as any other 
reporting requirements FTA determines are necessary.

E. Oversight and Audits

    Recipients are advised that FTA is implementing an enhanced 
oversight process for Disaster Relief Appropriation Act funds awarded 
under the Emergency Relief Program. FTA intends to undertake a risk 
analysis of each recipient and grant to determine the appropriate level 
of oversight. Within a grant or for scopes in multiple grants FTA will 
review projects (or scopes) over $100 million separately. Based on 
these assessments FTA may assign program level reviews such as 
procurement system reviews or financial management oversight reviews. 
FTA also will review random samplings of payments to examine 
eligibility of costs and proper documentation. FTA will monitor the use 
of insurance proceeds to ensure they meet program requirements. FTA may 
undertake other reviews of projects, such as Technical Capacity and 
Capability Assessments; Risk Assessments; Cost, Schedule, and Scope 
Reviews; and other reviews FTA determines are necessary.
    Project scopes with over $100 million in Federal funds, or those 
that are generally expected to exceed $100 million in Federal funds, 
will be declared Major Capital Projects (MCPs) and subject to the 
requirements of Project Management Oversight in 49 CFR 633 Project 
Management Oversight. However, approval of Project Management Plans 
will be required before funds drawdown rather than before grant award. 
All MCPs will be required to have a review meeting at least once every 
quarter. The meeting requires the participation of FTA and the project 
sponsor and shall include the FTA Regional Administrator or his or her 
designee and the project

[[Page 32302]]

sponsor's Chief Executive Officer or designee. The objective of the 
meeting is for FTA and the project sponsor to discuss the overall 
health of the agency, the status of its project(s), address project 
issues and discuss potential solutions. Project scopes less than $100 
million may also be declared MCPs at FTA's discretion under the 
criteria set forth in 49 CFR 633.5.
    Construction Grant Agreements will be required for all projects 
over $500 million and will be considered for all projects over $100 
million. These construction agreements will: (a) Serve as the legal 
instrument by which section 5324 funds will be provided to the 
sponsoring recipient consistent with the Appropriations Act and the 
interim final rule; (b) describe the project with particularity, and 
set forth the mutual understandings, terms, conditions, rights and 
obligations of FTA and the implementing recipient; (c) establish 
certain limitations on the Federal financial assistance for the project 
and the manner in which Federal funds will be awarded and released to 
the implementing recipient; (d) establish the implementing recipient's 
obligations to complete the project with a specified amount of Federal 
funds; and (e) ensure timely and efficient management of the project by 
the implementing recipient.
    Any recipient receiving over $100 million in Disaster Relief 
Appropriations Act funds will be required to hire and use independent 
Integrity Monitors. It is FTA's expectation that such Integrity 
Monitors will conduct an initial review of all existing procedures and 
processes for susceptibility to fraud, corruption and cost abuse; 
recommend and assist in implementing procedures designed to mitigate 
all risks identified in its initial review; conduct forensic reviews of 
payment requisitions and supporting documentation, payments, 
change[hyphen]orders, and review for indications of bid rigging and 
overcharging; provide investigative services, as necessary; conduct 
periodic, unannounced headcounts of workers to detect and deter the 
practice of no[hyphen]show jobs; attend bid openings, scope reviews, 
and meeting with prospective contractors and vendors to ensure 
procurements are conducted in accordance with the recipient's rules and 
regulations and that a ``level playing field'' is being maintained for 
all involved; and make recommendations to tighten controls on the 
procurement process.
    In addition, recipients should anticipate a high likelihood of 
additional scrutiny by the Government Accountability Office (GAO) and 
the Department of Transportation's Office of the Inspector General 
(OIG).

                                                             FEDERAL TRANSIT ADMINISTRATION
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Additional
        State(s)                   Agency           Discretionary funding ID       Previous         recovery and        Resiliency     Total allocations
                                                                                  allocation        restoration
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        FTA Section 5324 Emergency Relief Program
                                                      Allocations for Hurricane Sandy, by Agency\*\
--------------------------------------------------------------------------------------------------------------------------------------------------------
NY......................  New York Metropolitan     D2013-SAND-014 (recov.);     $1,194,309,560     $1,702,462,214       $897,848,194    $ 3,794,619,968
                           Transportation            D2013-SAND-015 (resil.).
                           Authority.
 
rNY.....................  New York City Department  D2013-SAND-016 (recov.);         33,918,813          2,834,128          8,561,124         45,314,065
                           of Transportation.        D2013-SAND-017 (resil.).
NY, NJ..................  Port Authority of New     D2013-SAND-018 (recov.);        489,120,634        583,904,018        287,391,637      1,360,416,289
                           York and New Jersey.      D2013-SAND-019 (resil.).
NJ......................  New Jersey Transit        D2013-SAND-020 (recov.);        231,191,117        110,799,640        106,199,045        448,189,802
                           Corporation.              D2013-SAND-021 (resil.).
Mult....................  Other affected agencies.  ........................          2,456,379  .................          2,456,379
Multi...................  Reserved for future       ........................         28,048,497  .................  .................         28,048,497
                           allocation.
                                                                             ---------------------------------------------------------------------------
    Grand Total.............................................................      1,979,045,000      2,400,000,000      1,300,000,000      5,679,045,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Allocation amounts reflect reductions due to sequestration.


    Issued in Washington, DC, this 23rd day of May, 2013.
Peter Rogoff,
Administrator.
[FR Doc. 2013-12766 Filed 5-28-13; 8:45 am]
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