Emergency Relief Program Guidance, 60222-60224 [2015-25187]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 80, Number 192 (Monday, October 5, 2015)]
[Notices]
[Pages 60222-60224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25187]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration


Emergency Relief Program Guidance

AGENCY: Federal Transit Administration (FTA), U.S. Department of 
Transportation (DOT).

ACTION: Notice of availability of final guidance for FTA's Emergency 
Relief Program.

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SUMMARY: The Federal Transit Administration (FTA) has published final 
guidance on FTA's Emergency Relief (ER) Program for states and transit 
agencies that may be affected by a declared emergency or disaster and 
that may seek Federal funding under FTA's ER Program. The guidance is 
contained in the newly revised Reference Manual for States & Transit 
Agencies on Response and Recovery from Declared Disasters and FTA's 
Emergency Relief Program, which replaces Response and Recovery from 
Declared Emergencies and Disasters: A Reference for Transit Agencies, 
last updated in June 2013. This final guidance addresses one public 
comment received in response to the proposed guidance published on 
February 4, 2015. In addition to guidance on the ER Program, this 
document provides information on other disaster relief resources 
available through FTA and from the Federal Emergency Management Agency 
(FEMA). This guidance is now available on FTA's Web site at 
www.fta.dot.gov/emergencyrelief.

FOR FURTHER INFORMATION CONTACT: For questions about the ER Program, 
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 regarding the final program 
regulations, contact Bonnie Graves, Office of Chief Counsel, 1200 New 
Jersey Ave. SE., Washington, DC 20590, phone: (202) 366-0944, or email, 
Bonnie.Graves@dot.gov.

SUPPLEMENTARY INFORMATION: The FTA has published final guidance on 
FTA's ER Program for states and transit agencies that may be affected 
by a declared emergency or disaster and that may seek Federal disaster 
assistance for emergency related expenses. This guidance document, 
Reference Manual for States & Transit Agencies on Response and Recovery 
from Declared Disasters and FTA's Emergency Relief Program, includes 
information on disaster relief resources available for transit systems 
from both FTA and FEMA, in addition to detailed program guidance and 
application instructions for FTA's Emergency Relief Program. This 
manual has been produced in coordination with FEMA, and incorporates 
current guidance on FEMA disaster relief programs. It also includes 
guidance for transit agencies on the appropriate circumstances under 
which to apply to FTA or FEMA for disaster relief assistance.
    This reference manual includes background information on other 
sources of Federal disaster relief assistance, in addition to 
recommended practices for states and transit agencies for disaster 
preparation and response previously included in ``Response and Recovery 
from Declared Emergencies and Disasters: A Reference for Transit 
Agencies.'' This information has been updated and is contained in 
Chapters 1, 2 and 3 of this reference manual.
    Guidance specific to FTA's ER Program is contained in Chapter 4 of 
this reference manual.
    This includes an overview of eligible recipients, eligible 
projects, application procedures, and other key program policies and 
requirements. The guidance in this manual is based on final program 
regulations published on October 7, 2014 at 49 C.F.R part 602 (79 FR 
60349), which were developed through a public notice and comment 
process. The guidance document includes previously issued policy 
statements and information from Federal Register notices that FTA 
published subsequent to Hurricane Sandy.
    The final Emergency Relief program guidance incorporates several 
clarifications in response to the one consolidated public comment 
received on the proposed guidance published February 4, 2015. Specific 
comments and responses are explained below:

Chapter 1: Introduction

    Comment 1: The commenter suggests that FTA avoid using the term 
``should'' in the context of recommended practices, because local 
circumstances may make certain disaster relief preparation 
recommendations inappropriate or insufficient.
    FTA response: The final guidance retains the use of ``should'' 
where appropriate. The term ``should'' is not intended to impose a 
requirement, but is used where the recommendation is clear and 
consistent for the majority of potentially affected transit agencies.

Chapter 2: Disaster Preparation Considerations for Transit Agencies

    Comment 2: Given the wide range of governmental structures and 
variation across regions with regard to the mandate and/or capacity of 
Metropolitan Planning Organizations (MPOs), Emergency Operations 
Centers (EOCs), transit agencies, and local governments, the commenter 
suggests that the section on coordinating and pre-planning evacuations 
should be revised to lay out the critical activities involved in 
coordinating an evacuation, without assigning responsibilities.
    FTA Response: This manual is directed specifically to transit 
agencies and related entities, and contains recommendations on the 
types of coordination, in which a transit agency should be involved. 
Such recommendations do not override local arrangements where a transit 
agency is a subordinate party to such a coordinated emergency plan.
    In response, this section has been revised to emphasize cooperation 
with other responsible organizations and levels of government.
    Comment 3: Regarding the manual's recommendation that transit 
agencies develop policies for suspending fare collection during an 
emergency, the commenter noted that the decision to suspend fares is 
likely to depend on particular circumstances of the emergency and that 
transit agencies should have flexibility to make this decision on a 
case-by-case basis.
    FTA response: The section has been clarified to emphasize that this 
recommendation pertains not only to the development of policies on when 
and how such a decision might be made, but also to the development of 
operational plans for implementing such a policy.
    Comment 4: With regard to contracting requirements, the commenter 
recommends that FTA add a discussion regarding the recommended use of 
federal provisions in emergency response and recovery contracts and to 
clarify the timeline and potential for waivers of Federal contracting 
requirements.
    FTA response: The FTA has added language to clarify that although 
contracting provisions and requirements may be waived, recipients 
should not assume that FTA will waive requirements; therefore it is 
advisable to follow Federal procurement requirements for any emergency 
relief

[[Page 60223]]

contracts where Federal funding may be sought. The FTA has made further 
clarifications regarding the timeline and process for requesting and 
receiving waivers of Federal requirements for emergency relief 
projects.
    Comment 5: The commenter suggested that FTA revise a footnote about 
cost effectiveness methodologies and recommended that FTA point out 
that cost effectiveness can be measured by evaluating the criticality 
of the asset to the transit system, the vulnerability of asset given 
different threats, and the replacement cost.
    FTA response: The footnote refers to an analytical tool used by FTA 
to evaluate projects for competitively selected resilience funding, but 
FTA does not require the use of that tool by transit agencies investing 
in resilience improvements. Nonetheless, the factors cited by the 
commenter are insufficient to determine the cost effectiveness of a 
resilience project, which must also include the probability of various 
damage scenarios and differing degrees of damage and disruption posed 
by each scenario and mitigated by the proposed projects. The FTA notes 
that it is developing a simplified tool that will make this type of 
analysis more available for transit agencies to use as a tool for 
decision-making.

Chapter 3: Overview of Disaster Response and Recovery Funding and 
Resources

    Comment 6: The commenter recommends that FTA expand the discussion 
of FTA-ER appropriations to state that in the absence of FTA funding, 
transit agencies should follow both FTA and FEMA procedures until it is 
clear whether Congress will provide Federal funding for the FTA ER 
Program. The commenter also requests that FTA further clarify how FTA 
and FEMA will coordinate on Federal emergency relief capabilities, 
including the damage assessment process.
    FTA Response: Although this manual already makes this 
recommendation and discusses FTA-FEMA coordination in depth, additional 
language has been added to further address this topic.
    Comment 7: The commenter suggests that FTA discuss the differences 
between FEMA and FTA procurement guidelines to clarify that FEMA allows 
local procedures to be followed for the duration of recovery, while the 
FTA ER program requires agencies to follow all federal procedures after 
an initial waiver period. Reiterating this difference could help 
grantees maximize their ability to recover costs from federal sources.
    FTA Response: The manual addresses coordination between FTA and 
FEMA in the aftermath of a disaster, but is not intended to provide 
specific guidance on FEMA procurement requirements.
    Comment 8: Funds for emergency transportation services under FTA's 
ER Program. The commenter recommended that the flow chart be revised to 
include the disaster declaration process and a decision point regarding 
the need for congressional action to provide FTA ER funding.
    FTA Response: The FTA intends to keep in the flow chart a level of 
detail appropriate for users to quickly understand the general 
procedures and milestones in FTA's ER Program. Detailed discussion on 
the criteria for each box is better suited for the chapter narratives.

Chapter 4: Federal Transit Administration Emergency Relief Program 
Policies and Requirements

    Comment 9: The commenter recommended that FTA delete the statement 
that FTA may ``establish additional requirements for recipients of ER 
funding,'' or at a minimum acknowledge that all efforts will be made to 
adhere to published ER program requirements. The commenter stated that 
the proposed open-ended statement will hinder agencies' ability to 
ensure compliance, particularly since the waiver period may be over 
before FTA issues new requirements. The commenter also suggested that 
FTA revise the proposed manual to include a time frame for waiver 
approval and also make it very clear that waiver approvals should not 
be assumed. This will help agencies plan repair projects following the 
waiver period.
    FTA Response: The FTA has made revisions to further clarify that 
waivers of Federal requirements might not be granted. Furthermore, FTA 
retains the discretion to establish additional requirements as 
necessary for recipients of ER funding. In response to the comment, FTA 
has revised this section to clarify various types of additional 
requirements that may be necessary, and to state that FTA will advise 
recipients as early as possible regarding any additional requirements 
for recipients of ER funding.
    Comment 10: The commenter states that interim measures, such as 
emergency repairs, should be included as part of a disaster damage 
assessment, particularly in instances where the damage assessment 
report is used to inform Congress on the need for a special 
appropriation.
    FTA Response: The FTA concurs with emergency repairs and other 
interim measures generally will be eligible for emergency relief 
funding, and has revised this section to recommend that emergency 
repairs be included in the post-disaster damage assessment report.
    Comment 11: The commenter requested that FTA allow for local 
entities to determine what may be considered a capital expenses versus 
an operating expense, with regard to eligibility for funding under the 
ER Program.
    FTA Response: Standard FTA definitions for capital and operating 
expenses will continue to apply under the ER program. This manual 
explains how these definitions apply to emergency response and 
rebuilding activities.
    Comment 12: The commenter recommends that increased maintenance and 
inspections be added to the category of emergency repairs and 
explicitly be identified as eligible expenses. The commenter further 
recommends that these costs not be specifically designated as 
``capital'' or ``operating''.
    FTA Response: The FTA does not agree that increased maintenance and 
inspections should be considered emergency repairs. Such costs should 
be considered either as part of an emergency or permanent repair, or 
should be budgeted as an ongoing preventive maintenance expense.
    Comment 13: The commenter suggests that FTA state that emergency 
operations ``include, but are not limited to'' the listed activities.
    FTA Response: The FTA has revised this section as requested. This 
revision is consistent with program regulations, which do not define an 
exclusive list of eligible emergency operations activities.
    Comment 14: The commenter does not agree that force account plans 
should be required for emergency repairs. In the normal course of 
business, force account plans are required when an agency uses in-house 
labor rather than a third party contractor to implement a project, and 
the use of in-house labor for access and protection does not trigger 
the need for a force account plan.
    FTA Response: The FTA concurs that force account plans will not be 
required for emergency repairs, and has updated this section 
accordingly. Force account plans will continue to be required for 
permanent repairs, in accordance with FTA Circular 5010: Grant 
Management Requirements.
    Comment 15: The commenter strongly supports FTA's proposal that 
transit agencies be allowed to replace damaged assets with new assets 
that incorporate current design standards, replace

[[Page 60224]]

obsolete equipment, and bring assets to a state of good repair as part 
of its recovery effort. We request that FTA clarify that ``current 
design standards'' may include standards developed by the transit 
agency or industry as well as state, local, or federal codes or 
standards.
    FTA Response: This section has been revised to clarify that current 
design standards also includes the industry's or an agency's own 
current operational specifications.
    Comment 16: The commenter states that to be consistent with FEMA 
and the Federal Highway Administration's (FHWA's) emergency relief 
programs, heavy maintenance should be an eligible expense for declared 
disasters. However, FTA should not adopt FHWA's approach of utilizing a 
dollar threshold to define heavy maintenance, since transit agency 
size, utilization, regional costs and other factors impact the cost of 
work. Instead, we suggest that the heavy maintenance definition be 
based on each agency's annual maintenance budget, including its budget 
for emergency contingency.
    FTA Response: The FTA has added language to clarify that the 
threshold for heavy maintenance will be determined on a case-by-case 
basis and that damages in excess of heavy maintenance to an asset or 
system will mean that all otherwise eligible disaster-related repair 
and emergency response costs may be eligible for reimbursement. 
Further, FTA does not propose to establish a dollar value threshold, 
either absolute or relative to agencies' annual budgets, for defining 
heavy maintenance.
    Comment 17: The commenter requests that if a State or local 
building code requires a higher minimum elevation than FEMA requires, 
that higher elevation should apply. In cases where the transit agency 
has its own documented standards, those should be allowable as well.
    FTA Response: This section has been revised to allow a transit 
agency's documented flood elevation standards to apply for emergency 
relief projects, provided that they are higher than FEMA's elevations 
and comply with State and local building codes.
    Comment 18: The commenter expressed appreciation for the detailed 
discussion of different insurance settlement scenarios since policy 
structures vary widely across agencies. In this section or elsewhere in 
the proposed manual, FTA should address the scenario where the cost to 
repair damages exceeds the total of insurance proceeds plus FTA ER 
funding.
    FTA Response: The FTA has added language addressing this potential 
scenario. In some cases, multiple similar or closely related comments 
have been summarized in this discussion of comments and responses.
    The final guidance document is available on FTA's Web site at: 
www.fta.dot.gov/emergencyrelief.

Therese W. McMillan,
Acting Administrator.
[FR Doc. 2015-25187 Filed 10-2-15; 8:45 am]
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