Emergency Relief for Disaster-Damaged Roads October 9, 2020 and Public Transportation Systems Robert S. Kirk The U.S. Department of Transportation (DOT) provides federal assistance for disaster-damaged d isaster-damaged Specialist in roads and public transportation systems through two programs: the Emergency Relief Program Transportation Policy (ER) administered by the Federal Highway Administration (FHWA) and the Public Transportation Emergency Relief Program administered by the Federal Transit Administration William J. Mallett (FTA). These programs are funded mainly by appropriations that have varied considerably from Specialist in year to year. Over time the amounts are substantial. Since 2012FY2012, the Highway ER Program has received $5.4 billion; FTA's ER program Transportation Policy received nearly $9 billion; FTA’s ER Program has received $10.7 billion, all but $330 about $340 million of which was in response to Hurricane Sandy.

Roads and bridges that are federal-aid highways or are public-use, which occurred in 2012. Federal-aid highways and public roads on federal lands are eligible for assistance under FHWA's ’s ER Program. Following natural disasters (such as Hurricanes Harvey, Irma, and Maria in 2017, which damaged highways in Florida, Texas, Puerto Rico, and the U.S. Virgin Islands), or catastrophic failures (such as the 2013 collapse of the Skagit River Bridge in Washington State), ER funds are made I-5 overpass that was critically damaged in 2019 by an over-height truck near Chehalis, WA), ER funds are available for both emergency repairs and restoration of eligible facilities to conditions comparable to those before the disaster.

facilities to predisaster conditions. Although emergency relief for highways is a federal program, the decision to seek ER funding is made by a state government or by a federal land management agency. Local governments are not eligible to apply. The program is funded by a permanent annual authorization of $100 million from the Highway Trust Fund (HTF) along with general fund appropriations provided by Congress on a "“such sums as necessary"” basis. Appropriated ER funds have averaged roughly $730900 million annually since FY2009. FY2012. FHWA pays 100% of the cost of emergency repairs done to minimize the extent of damage, to protect remaining facilities, and to restore essential traffic during or immediately after a disaster. Emergency repairs must be completed within with in 180 days of the disaster event. Permanent repairs go beyond the restoration of essential traffic and are intended to restore damaged bridges and roads to conditions and capabilities comparable to those before the event. The federal share for permanent repairs is generally 80% for non-Interstate roads and 90% for Interstate Highways.

All ER funding is distributed through state departments of transportation or federal land management agencies such as the National Park Service. Certain " “quick release"” funds are allocated to help with initial emergency repair costs and may be released prior to completion of detailed damage inspections and cost estimates. Other allocations to the states follow a more deliberate process of completing detailed damage reports, developing cost estimates, and processing competitive bids.

Unlike the long-standing ER program in highways, the Public Transportation ER Program dates to 2012. The Public Transportation ER programProgram provides federal funding on a reimbursement basis to public transportation agencies, states, and other government authorities for damage to public transportation facilities or operations as a result of a natural disaster or other emergency and to protect assets from future damage. The Public Transportation ER programProgram provides federal support for both capital and operating expenses. Unlike the FHWA'’s ER program, FTA'’s ER program does not have a permanent annual authorization. All funds are authorized on a "“such sums as necessary"” basis and are available only pursuant to an appropriation from the general fund of the U.S. Treasury. In the absence of an appropriation, transit agencies must rely on funds from the Federal Emergency Management Agency (FEMA). Since its creation in 2012, thereThere have been twothree appropriations to the Public Transportation ER programProgram since its creation in 2012. More than $10 billion was appropriated in 2013 to respond to Hurricane Sandy and, $330 million was appropriated in 2018 to respond to Hurricanes Harvey, Irma, and Maria.

, and $10.5 million was appropriated in 2019 for major declared disasters in 2018. The Public Transportation ER Program also gives the Secretary of Transportation authority in an emergency to provide more flexibility in the use by transit agencies of urban and rural formula program funds and to waive federal requirements concerning the use of federal funding. This authority has been used in response to the Coronavirus Disease 2019 (COVID-19) pandemic. While no Public Transportation ER Program funding has been provided in response to the emergency brought on by the COVID-19 pandemic, $25 billion was provided directly by formula to transit agencies through the Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136). Two recurring issues drawing congressional attention are funding levels and funding of activities that go beyond restoring transportation facilities to predisaster conditions, such as making damaged highways more resilient to natural disasters. FTA'FTA’s ER program has fewer limits and more flexibility than the emergency relief programs administered by FEMA and FHWA; thus it too faces questions about expenditures that go beyond repairing damage from a disaster. The lack of a permanent annual authorization for FTA means FTA cannot provide funding immediately after a disaster or emergency, and transit agencies must rely on FEMA for a quick response.

Congressional Research Service link to page 4 link to page 4 link to page 5 link to page 6 link to page 6 link to page 7 link to page 8 link to page 9 link to page 9 link to page 10 link to page 10 link to page 10 link to page 11 link to page 12 link to page 13 link to page 13 link to page 14 link to page 14 link to page 15 link to page 16 link to page 17 link to page 17 link to page 18 link to page 11 link to page 16 link to page 16 link to page 20 link to page 20 link to page 20 link to page 21 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems Contents Introduction ................................................................................................................... 1 FHWA’s Emergency Relief (ER) Program .......................................................................... 1 Public Use Roads on Federal Lands.............................................................................. 2 ER Funding .............................................................................................................. 3 The Federal Share ................................................................................................ 3 Eligibility and Program Operation ................................................................................ 4 Emergency Repairs............................................................................................... 5 Permanent Repairs................................................................................................ 6 ER Funding Distribution and Management .................................................................... 6 “Quick Release” ER Allocations ............................................................................. 7 Nationwide ER Al ocations .................................................................................... 7 2017 Hurricanes: Harvey, Irma, and Maria ............................................................... 7 Funds Management .............................................................................................. 8 Program Oversight Issues ........................................................................................... 9 DOT Inspector General Report ............................................................................. 10 Public Transportation Emergency Relief Program .............................................................. 10 Funding and Federal Share........................................................................................ 11 Hurricane Sandy ................................................................................................ 11 Hurricanes Harvey, Irma, and Maria ...................................................................... 12 Extreme Weather and Earthquake in 2018 .............................................................. 13 ER Program Authority and the COVID-19 Pandemic .................................................... 14 Program Issues ........................................................................................................ 14 ER Resilience Policy Issues ............................................................................................ 15 Tables Table 1. Hurricane Harvey, Irma, and Maria Allocations........................................................ 8 Table 2. Hurricanes Harvey, Irma, and Maria Public Transportation ER Allocations ................ 13 Table 3. ER Funding Allocations for Major Declared Disasters in 2018 ................................. 13 Table A-1. Appropriated Funds for the FHWA ER Program: 1998-2020................................. 17 Table A-2. Appropriated Funds for the FTA ER Program: 2012-2020 .................................... 18 Appendixes Appendix. ER Program Appropriations............................................................................. 17 Contacts Author Information ....................................................................................................... 18 Congressional Research Service Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems Introduction Disaster-damaged roads and public transportation systems are eligible for federal assistance under two U.S. Department of Transportation (DOT) programs, the Emergency Relief (ER) Program administered by the Federal Highway Administration (FHWA) and the Public Transportation ER Program administered by the Federal Transit Administration (FTA). The two programs have different histories and legal and regulatory authorities, but they share a similar intent and face some of the same issues. For example, there are concerns with both programs about the extent to which federallyfederal y funded activities should go beyond restoring infrastructure to predisaster conditions, including so-calledcal ed resilience projects.

This report begins by discussing FHWA assistance for the repair and reconstruction of highways and bridges damaged by disasters (such as recent flood events, Western wildfires, and ongoing permanent repairs to damage from the 2017 Hurricanes Harvey, Irma, and Maria) or catastrophic failures (such as the collapse of the Skagit River Bridge in Washington State in 2013). ThisI-5 overpass that was critical y damaged in 2019 by an over-height truck near Chehalis, WA). The report includes information on the use of ER funds on disaster-damaged federally federal y owned public-use roadways, such as National Park Service roads and U.S. Forest Service roads, under an affiliated program, the Emergency Relief for FederallyFederal y Owned Roads Program. This is followed by a discussion of FTA'’s assistance program, established in 2012, which has provided assistance to public transportation systems on twothree occasions, once after Hurricane Sandy in 2012 and again, after the 2017 hurricanes.

FHWA', and in 2019 for major declared disasters in 2018. FHWA’s Emergency Relief (ER) Program

For over 80 years, federal aid has been available for the emergency repair and restoration of disaster-damaged roads. The first legislation authorizing such use of federal funds was the Hayden-Cartwright Act of 1934 (48 Stat. 993). This act, however, provided no separate funds, and states subject to disasters had to divert their regularly apportioned federal highway funds from other uses to repairing disaster-damaged roads.

The Federal-Aid Highway and Highway Revenue Act of 1956 (70 Stat. 374 and 70 Stat. 387) was the first act that authorized separate funds for the ER program.¹1 From 1956 through 1978, funding for the program was drawn 40% from the Treasury'’s general fund revenues and 60% from the Highway Trust Fund (HTF). The HTF is supported primarily by taxes paid by highway users, mainly on gasoline and diesel fuel. Starting in 1979, the ER program was funded 100% from the HTF. In 1998 Congress made the annual $100 million mil ion HTF authorization permanent. However, beginning in 2005, while Congress continued the $100 millionmil ion permanent authorization from the HTF, it authorized supplemental appropriations from the general fund.²2 On December 4, 2015, the ER program was reauthorized through FY2020 in the Fixing America'’s Surface Transportation 1 T he program is codified at 23 U.S.C. §125. 2 Beginning with the December 30, 2005, enactment of the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (P.L. 109-148), ER supplemental appropriations have been drawn from the general fund. Congressional Research Service 1 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems s Surface Transportation Act (FAST Act; P.L. 114-94).³

).3 The FAST Act was extended through FY2021 on September 30, 2020.4 ER funds may be used for the repair and reconstruction of federal-aid highways and roads on federally federal y owned lands that have suffered serious damage as a result of either (1) a natural disaster over a wide area, such as a flood, hurricane, tidal wave, earthquake, tornado, severe storm, or landslide; or (2) a catastrophic failure from any external cause (for example, the collapse of a bridge that is struck by a barge).⁴ Historically5 Historical y, however, the vast majority of ER funds have gone for repair and reconstruction following natural disasters.

As is true with most other FHWA programs, the ER program is administered through state departments of transportation in close coordination with FHWA's division’s field offices in each state.⁵6 The decision to seek financial assistance under the program is made by state departments of transportation, not by the federal government. Local officials who wish to seek ER funding must do so through their state departments of transportation; they do not deal directly with FHWA. As state departments of transportation normallynormal y deal with FHWA division office staff division office (also referred to as field office) staff in each state on many matters, they typicallytypical y have working relationships that facilitate a quick coordinated response to disasters.

Public Use Roads on Federal Lands

For roads and bridges on federallyfederal y owned lands, ER assistance is managed via a related program, called cal ed Emergency Relief for FederallyFederal y Owned Roads. This program addresses disaster damage to facilities such as National Park Service roads, U.S. Forest Service roads, and tribal transportation facilities.⁶7 FHWA dispenses these funds through the various federal land management agencies, not the states.⁷8 Aid is restricted to facilities that are open to the general public for use with a standard passenger vehicle. FHWA pays 100% of the cost of approved repairs, but the program is designed to pay for unusuallyunusual y heavy expenses and to supplement the agencies'’ repair programs, not to cover all al repair costs. Tribal, state, and other government entities that have the authority to repair or reconstruct eligible facilities must apply through a federal land management agency.⁸ 9 The program is managed by FHWA'’s Office of Federal Lands Highways.

ER Funding

The ER program has a permanent annual authorization of $100 million 3 CRS Report R44388, Surface Transportation Funding and Programs Under the Fixing America’s Surface Transportation Act (FAST Act; P.L. 114 -94), coordinated by Robert S. Kirk. 4 H.R. 8337, the Continuing Appropriations Act, 2021 and Other Extensions Act. 5 Federal Highway Administration, Emergency Relief Manual (Federal-Aid Highways), Washington, DC, May 31, 2013, pp. 1-67, at https://www.fhwa.dot.gov/reports/erm/er.pdf. 6 CRS Report R44332, Federal-Aid Highway Program (FAHP): In Brief, by Robert S. Kirk. 7 Federal Highway Administration, Emergency Relief for Federally Owned Roads (ERFO): Web Site, at https://flh.fhwa.dot.gov/programs/erfo/. 8 T he main land management agencies are the Interior Department’s Bureau of Land Management, the National Park Service, the Fish and Wildlife Service, and the Department of Agriculture’s Forest Service. Some ER-eligible roads also serve military installations and U.S. Army Corp of Engineers and Department of Energy facilities. See FHWA, Transportation Serving Federal and Tribal Lands, at https://www.fhwa.dot.gov/policy/2015cpr/pdfs/chap12.pdf. 9 Federal Highway Administration, Emergency Relief for Federally Owned Roads: Disaster Assistance Manual, FHWA-FLH-15-001, Washington, DC, October 2014, pp. 1 -109, at https://flh.fhwa.dot.gov/programs/erfo/documents/erfo-2015.pdf. Congressional Research Service 2 link to page 20 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems ER Funding The ER program has a permanent annual authorization of $100 mil ion in contract authority to be in contract authority to be derived from the HTF. These funds are not subject to the annual obligation limitation placed on most highway funding by appropriators, which generallygeneral y means the entire $100 million is available mil ion is available each year, although the funding could be subject to sequester.⁹10 Because the costs of road repair and reconstruction following disasters typicallytypical y exceed the $100 millionmil ion annual authorization, the FAST Act authorizes the appropriation of additional funds on a "“such sums as may be necessary"” basis, generallygeneral y accomplished in either annual or emergency supplemental appropriations legislation.¹⁰11 For a listing of ER appropriations since 1998, see thethe Appendix. These funds are available until expended.

As is true with other FHWA programs, ER is a reimbursable program. A state receives payment only after making repairs and submitting vouchers to FHWA for reimbursement of the federal share. However, once the state'’s eligibility for ER funds has been confirmed by FHWA, it can incur obligations knowing that it will wil receive reimbursement.

The ER funding structure of having a modest annual authorization supplemented by appropriations addressed the fact that small smal disaster events occur every year but large disasters do not. However, the $100 million mil ion annual authorization has not changed since 1972. To equal the current purchasing power of $100 millionmil ion in FY1972 would require an authorization in the neighborhood of $500 million mil ion to $600 mil ion.12to $600 million.¹¹ Because the value of the $100 million mil ion permanent authorization has diminished over time, the program has become increasingly dependent on supplemental appropriations. Over the last 10 fiscal years, $7.3 billion8.1 bil ion in supplemental appropriations have been provided in six appropriations acts. Roughly 1210.4% of the total amount made available was provided by the permanent annual authorization; the other 8889.6% was provided in appropriations acts. Consequently, an issue for Congress in the upcoming reauthorization of the FAST Act, which expires in FY2020, is a surface transportation reauthorization issue is whether to raise the permanent annual authorization to account for its loss of value since 1972 or to continue to rely heavily on supplemental appropriations to fund emergency repairs to highways.

highways. The Federal Share

Emergency repairs to restore essential travel, minimize the extent of damage, or protect remaining facilities, if accomplished within 180 days after thea disaster, may be reimbursed with a 100% federal share. Permanent repair projects, such as rebuilding a bridge or a segment of damaged road, are reimbursed at the same federal share that would normallynormal y apply to the federal-aid 10 ER funds were subject to the FY2013 sequester under the Balanced Budget and Emergency Deficit Control Act, as amended. T he sequester amount for the $100 million of contract authority was $5.1 million, and the sequester amount for the $2.022 billion of supplementary funds provided in the Disaster Relief Appropriations Act of 2013 ( P.L. 113-2) was $101.1 million. See Federal Highway Administration, Sequestration of Highway Funds for Fiscal Year (FY) 2013, Notice 4510.762, Washington, DC, March 22, 2013, at https://www.fhwa.dot.gov/legsregs/directives/notices/n4510762.cfm. Sequester amounts for the annually authorized $100 million in contract authority since FY2013 are as follows: FY2014, $7.2 million; FY2015, $7.3 million; FY2016, $6.8 million; FY2017, $6.9 million; FY2018, $6.6 million; FY2019, $6.2 million; and FY2020, $5.9 million. 11 T he extensive damage caused by Hurricane Katrina in 2005 raised doubts about whether emergency supplemental ER expenditures could be drawn from the highway account of the HT F without constraining the ability of the HT F to fully fund other authorized surface transportation programs. For that reason, supplemental ER appropriations have come from the general fund since December 2005. 12 T he amount varies depending on the deflator used: using the GDP deflator calculates to $473 million; the Consumer Price Index calculat es to $630 million. Congressional Research Service 3 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems apply to the federal-aid highway facility. For Interstate System highways the federal share would be 90%, and for most other highways, including Federal Lands Access Program facilities,¹²13 the share would be 80%. If the total expenses a state incurs to deal with disaster-damaged roads in a fiscal year exceed the state'state’s total federal-aid highway formula funds for that year, the share becomes "“up to 90%"” for any federal-aid road. The requirement that the state provide a share of the funding for permanent repairs applies whether or not the repairs are completed during the first 180 days after the disaster.

disaster. Congress has on occasion authorized FHWA to pay 100% of ER program expenses for repair and reconstruction projects related to particular disasters. Legislation for that purpose was enacted following the 2005 Gulf Coast hurricanes and the collapse of the I-35W Bridge in Minneapolis in 2007. More recently, a provision in the Bipartisan Budget Act of 2018 (P.L. 115-123) provided for a 100% federal share for damage caused by Hurricanes Irma and Maria in Puerto Rico in 2017.

Eligibility and Program Operation¹³

Operation14 The ER program divides all al repair work into two categories: emergency repairs and permanent repairs. Only repairs on federal-aid highways or federallyfederal y owned roads and bridges that have suffered damage during a declared disaster or catastrophic failure are eligible for ER assistance.¹⁴ 15 The intent of ER assistance is to restore highway facilities to conditions comparable to those before the disaster, not to increase capacity or fix non-disaster-related deficiencies. However, current law broadly defines "“comparable facility"” as one that "“meets the current geometric and construction standards required for the types and volume of traffic that the facility will wil carry over its design life."” Thus, for example, ER funds could be used to rebuild an older disaster-damaged road or bridge that had narrow lanes with wider lanes that meet current FHWA guidelines.

FHWA' FHWA’s ER handbook also directs that "“design and construction of repairs should consider the long-term resilience of the facility."” FHWA defines resilience as the "“capability to anticipate, prepare for, respond to, and recover from significant multi-hazard threats with minimum damage to social wellwel -being, the economy, and the environment."

”16 In regard to bridges, ER funds are not to be used if the construction phase of a replacement structure has already been included in the state'’s approved transportation improvement program 13 Federal Lands Access Program is for roads that are located on or adjacent to, or that provide access to, federal lands. T he funds are allocated to the states using a formula based on mileage, number of bridges, land area, and visitation. See Federal Highway Administration, Federal Lands Access Program : Fact Sheet, Washington, DC, February 8, 2017, at https://www.fhwa.dot.gov/fastact/factsheets/fedlandsaccessfs.cfm. 14 Federal Highway Administration, Emergency Relief Manual (Federal-Aid Highways), Washington, DC, May 31, 2013, pp. 1-67, at https://www.fhwa.dot.gov/reports/erm/er.pdf. 15 A governor may issue a formal proclamation of the occurrence of a disaster. A presidential declaration or the governor’s request for this declaration can serve the same purpose. T he state files a letter of intent to apply for ER funding with the FHWA division office within the state. T he FHWA division administrator may then concur that a disaster occurred and substantial damage has occurred to federal-aid highway system roads, or that the criteria for a catastrophic failure were met and that the damage is eligible under 23 U.S.C. §125. When the President has issued a major disaster declaration, the division administrator’s concurrence is not necessary. See Federal Highway Administration, Em ergency Relief Manual (Federal-Aid Highways), Washington, DC, updated May 31, 2013, at http://www.fhwa.dot.gov/reports/erm/er.pdf, pp. 30-31. FHWA (via the director of each Federal Lands Highway Division) determines whether a disaster has occurred in regard to Emergency Relief for Federally Owned Roads, although this is not necessary when there has been a presidential declaration of a major disaster. 16 FHWA, Emergency Relief Manual, p. 2. Congressional Research Service 4 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems s approved transportation improvement program at the time of the disaster or if the bridge had been permanently closed to vehicular traffic prior to the disaster.

Contracts supported by ER funding must meet all al conditions required by 23 C.F.R. Part 633A, which regulates highway contracts involving federal funding. All Al contractors receiving ER funds must pay prevailing wages as required under the Davis-Bacon Act.¹⁵17 ER-funded contracts must abide by Disadvantaged Business Enterprises requirements, Americans With Disability Act requirements, "“Buy America"” regulations, and prohibitions against the use of convict labor (23 U.S.C. §114).¹⁶

18 Repair projects funded under the ER program are subject to the requirements of the National Environmental Policy Act (NEPA) of 1969. The impact, however, is generallygeneral y limited because work funded by the ER program generallygeneral y must occur within the federal-aid highway right-of- way. This means that emergency repairs are normallynormal y classified as categorical exclusions under 23 C.F.R. Section §771.117 (c)(9), as are projects to permanently restore an existing facility "“in kind"” to its predisaster condition. "Betterments"“Betterments” (e.g., added protective features, added lanes, added and added access control) may, in some cases, require NEPA review.

States must apply and provide a comprehensive list of all eligible al eligible project sites and repair costs within two years of the disaster or catastrophic event.

Emergency Repairs

State and local transportation agencies can begin emergency repairs during or immediately following a disaster to meet the program goals to "“restore essential traffic, to minimize the extent of damage, or to protect the remaining facilities."¹⁷”19 Prior approval from FHWA is not required. Once the FHWA division administrator finds that the disaster work is eligible, properly documented costs can be reimbursed retrospectively. To be eligible for a 100% federal share, emergency repair work must be completedaccomplished within 180 days of the disaster, although FHWA may extend this time period if there is a delay in access to the damaged areas, for example due to flooding. Examples of emergency repairs are regrading roads, removal of landslides, construction of temporary road detours, erection of temporary detour bridges, and use of ferries as an interim substitute for highway or bridge service. Debris removal is generallygeneral y the responsibility of the Federal Emergency Management Agency (FEMA).¹⁸20 Debris removal from tribal transportation facilities, federal land transportation facilities, and on other federallyfederal y owned roads open to public travel is eligible for funding under the Emergency Relief for FederallyFederal y Owned Roads program. The emergency repair provisions in the ER program are designed to permit work to start immediately, ahead of a finding of eligibility and programming of a project. In some instances, state departments of transportation have been able to let initial ER-funded contracts on the day of a disaster event.¹⁹

17 T he Davis-Bacon requirements can be suspended by executive order (ref. 40 U.S.C. §276a-5). President George W. Bush did this in response to Hurricane Katrina. He reimposed the requirements on November 8, 2005. 18 A state may request a waiver of the Buy America requirements from FHWA based on a public interest rationale under 23 C.F.R. §635.4109(c)(1)(i). 19 Federal Highway Administration, Emergency Relief Manual (Federal-Aid Highways). 20 T he 2012 authorization act, Moving Ahead for Progress in the 21 st Century Act (MAP-21; P.L. 112-141), restricted debris removal under ER to events not declared a major disaster by the President or declared a major disaster but where debris removal is not eligible under the Stafford Act. Congressional Research Service 5 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems a disaster event.21 Emergency repairs do not have to adhere to normal competitive bidding requirements and are general y treated as categorical exclusions under NEPA.22 Permanent Repairs Permanent Repairs

Permanent repairs go beyond the restoration of essential traffic and are intended to restore damaged bridges and roads to conditions and capabilities comparable to those before the event.²⁰ Generally23 General y, where the damaged parts of the road can be repaired without replacement or reconstruction, this is done. Current law includes a limitation that the total cost of an ER project cannot exceed the cost of repair or reconstruction of a comparable facility.

ER funds may be used for temporary or permanent repair of a repairable bridge or tunnel. If a bridge is destroyed or repair is not feasible, then ER funds may participate in building a new, comparable bridge to current design standards and to accommodate traffic volume projected over its design life. In some cases betterments may be eligible, but they must be shown to be economicallyeconomical y justified based on a cost/benefit analysis of the future savings in recurring repair costs.

costs. Permanent repair and reconstruction contracts not classified as emergency repairs must meet competitive bidding requirements. A number of techniques are available to accelerate projects, including design-build contracting, abbreviated plans, shortened advertisement periods for bids, and cost-plus-time (A+B) bidding²¹bidding24 that includes monetary incentive/disincentive clauses designed to encourage contractors to complete projects ahead of time. For example, the contract for the replacement of the I-35W Bridge in Minneapolis, which collapsed in August 2007, used incentives for early completion. The new bridge was built in 11 months and was completed three months ahead of schedule.²²

25 ER Funding Distribution and Management

Because the program is funded primarily through supplemental appropriations, the amounts available available for distribution can vary greatly from year to year. The amount available at any one time, however, is limited. FHWA manages the distribution of these limited funds through a process of allocationsal ocations and withdrawals as well wel as procedures to manage funding shortfalls.

shortfal s. There are two processes used to apply for ER funds following a disaster: quick release and the standard method. AllocationsAl ocations for quick-release funding often occur individuallyindividual y, whereas standard allocations are periodically al ocations are periodical y distributed to all eligible al eligible states nationwide at one time.

"Quick Release" 21 T his occurred following the 1994 Northridge earthquake in California. See Effects of Catastrophic Events on Transportation System Managem ent and Operations (Washington, DC: FHWA, 2004), pp. 37-45. 22 23 C.F.R. § 771.117(c)(9)(i). 23 FHWA, Emergency Relief Manual, pp. 21-24. 24 Cost-plus-time bidding (A+B method) includes two components. The A component is the traditional bid for all work to be performed. T he B component is a bid of the total number of calendar days required to complete the project. T he contract includes a disincentive for overrunning the time bid and an incentive for earlier completion. 25 Minnesota Department of T ransportation, Interstate 35W Bridge in Minneapolis, at http://www.dot.state.mn.us/i35wbridge/index.html. Congressional Research Service 6 link to page 11 link to page 11 link to page 11 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems “Quick Release” ER Allocations The FHWA ER Allocations

The FHWA Emergency Relief Manual describes the "“quick release"” method for developing and processing a state request for ER funding as a method that

provides limited, initial ER funds for large disasters quickly. Quick Release applications are processed based on preliminary assessment of damage and a damage survey typically typicaly does not accompany the application. Quick release funds are intended as a "“down payment" ” to immediately provide funds for emergency operations until the standard application may be submitted and approved.²³

26 A total of $140 million mil ion of quick-release funding has been allocatedal ocated for road damage from Hurricanes Harvey, Irma, and Maria,; see; see Table 1. Other examples of quick-release allocations include the $1 million Wisconsin received on July 2, 2018; the $2 million Michigan received on July 3, 2018; and the $3 million Kentucky received, on July 16, 2018, all for repairs to flood-damaged roads.

FHWA al ocations include $5 mil ion for earthquake-damaged roads in Puerto Rico on January 16, 2020; $5 mil ion for flood-damaged roads in Alabama on March 11, 2020; and $2 mil ion for flood-damaged roads in Kentucky on March 11, 2020. FHWA holds some funding in reserve to assure that there will wil always be funds available for quick-release needs. The amount reserved is at the discretion of the FHWA Administrator with the concurrence of the Secretary of Transportation.

Nationwide ER Allocations

The standard application method is more deliberate, requiring that site inspections and a damage survey summary report be submitted to the division office. This process is mostly used for permanent repairs. The standard allocationsal ocations address both recent and backlogged project needs from past disasters.27 Money is usually allocatedusual y al ocated twice each fiscal year. In FY2018, FHWA released two nationwide allocationsal ocations of ER funds totaling $1.35 billion, bil ion, in addition to $226 million mil ion for disaster-damaged roads on federal lands.²⁴ Allocations to repair damage from the 2017 hurricanes appear in Table 1.

The two FY2019 al ocations totaled $1.29 bil ion plus $282 mil ion for federal lands. The two FY2020 al ocations totaled $1.06 bil ion plus $165 mil ion for federal lands. These al ocations funded a wide range of disaster response road and bridge repairs in al regions of the United States, including damage from the 2018 earthquake in Alaska, repeated wildfires and flooding in California, flooding across the Midwest, and damage from hurricanes Michael, Florence, and Dorian in the East. Al ocations to the ongoing repairs to damage from the 2017 hurricanes appear in Table 1. 2017 Hurricanes: Harvey, Irma, and Maria 2017 Hurricanes: Harvey, Irma, and Maria

In the wake of the 2017 hurricanes, the Bipartisan Budget Act of 2018 provided a supplemental appropriation of $1.4 billionbil ion for the ER program. The language providing additional appropriations did not specify which disasters the funds were to be used for. The act did include a special provision raising the federal share to 100% for ER funds made available to Puerto Rico to respond to damage cause by Hurricanes Irma and Maria. Table 1 presents the allocationsal ocations of ER funding attributable to these disaster events through September 29, 2020. 26 FHWA, Emergency Relief Manual, pp. 30, 33-34, at http://www.fhwa.dot.gov/reports/erm/er.pdf. 27 Federal Highway Administration, Emergency Relief Program , Policy and Guidance, Washington, DC, April 17, 2018, at https://www.fhwa.dot.gov/programadmin/erelief.cfm. Congressional Research Service 7 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems Table 1. Hurricane Harvey, Irma, and Maria Allocations (through September 29, 2020, in current $) Quick Release Total Allocations Allocation Allocated State Disaster Event Date Range ($) ($) ($) Texas Hurricane Harvey 8/29/2017-9/05/2019 25,000,000 76,542,393 101,542,393 Florida Hurricane Irma 9/11/2017-2/27/2020 25,000,000 103,277,927 128,277,927 Puerto Rico Hurricanes Irma & 9/14/2017-9/29/2020 77,500,000 467,075,656 544,575,656 Maria Virgin Hurricanes Irma & 9/13/2017-2/27/2020 12,900,000 56,542,910 69,442,910 Islands Maria Total 140,400,000 703,438,886 843,838,886 Source: Federal Highway Administration. Includes withdrawals of $1.6 mil ion on November 22, 2017, and $7 mil ion on June 8, 2018, of Virgin Islands’ al ocations. Additional al ocations after June 8, 2018, were compiled by CRS from FHWA al ocation memoranda available at https://www.fhwa.dot.gov/programadmin/erelief.cfm. Some recent withdrawals or real ocations may not be included. Figures include al ocations for Emergency Relief for Federal y Owned Roads. funding attributable to these disaster events through June 8, 2018.

Funds Management

Funds Management Once funding is allocatedal ocated for a disaster event, FHWA can enter into project agreements and incur obligations (which legallylegal y commit the federal government to pay the federal share). If funds are unavailable, the request is added to a list of nationwide unfunded requests.²⁵

Typically28 Typical y, requests for allocationsal ocations exceed the available ER funding. For example, as of August 12, 2018October 28, 2019, FHWA had an unallocatedunal ocated balance of $831 million available 1,222 mil ion available to respond to unfunded requests of $2.5 billion.,109 mil ion, leaving a shortfal of $887 mil ion.29 Because FHWA may not commit to funding beyond its authorized and appropriated amounts, FHWA adjusts the distribution of funds to stay within the program'’s means.

When the unallocatedunal ocated balance is insufficient to cover the reserved quick release funds and the upcoming biannual nationwide distribution, the distributions are provided on a proportional basis. Each state's allocation’s al ocation would be computed based on a ratio of total available funding to total needs. FHWA cannot make the allocationsal ocations whole unless Congress makes additional ER funding available. FHWA also has the option of skipping or delaying a standard nationwide distribution, allowingal owing time for its funds to be replenished via the annual $100 million mil ion authorization or further supplemental appropriations.

During a funding shortfallshortfal , ER projects can be funded using a state'’s regular formula funds under the Federal-Aid Highway Program. That funding would then be reimbursed when and if ER funds become available. This, however, could lead to delays in the funding of other planned projects as the state awaits reimbursement from ER funds.

FHWA 28 T he unfunded request list includes state and federal land management agency estimates for both recent disaster events and older disasters as well as for projects that were funded using state funds and are awaiting reimbursement. 29 Federal Highway Administration, Emergency Relief (ER) Program Obligation Plans as of October 28, 2019 , Washington, DC, 2019. Congressional Research Service 8 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems FHWA reviews the unobligated and unexpended balances of funds that have been allocatedal ocated on a monthly basis and coordinates the withdrawal of excess ER funds. Withdrawn funds are then available for reallocationavailable for real ocation. The agency also tracks recovery of insurance proceeds every six months. These proceeds are then available for allocation.²⁶

al ocation.30 Program Oversight Issues

Government Accountability Office (GAO) reports in 2007 and 2011 expressed concern about the financial sustainability of the ER program. Both reports found that the scope of the ER program had expanded beyond its original goal of restoring damaged facilities to predisaster conditions, described as "“mission creep."” The reports also raised questions about FHWA'’s ability to recapture unused funds that it had allocatedal ocated to states.31 In addition to states.²⁷

More recently, a 2012 GAO report found that FHWA officials in some states were reluctant to recoup funds from inactive ER highway projects over concerns about "“harming their partnership with the state."” In addition, "FHWA “FHWA has shown a lack of independence in decisions, putting its partners'partners’ interests above federal interests,"” GAO said.²⁸32 A broader issue, which may influence the states'states’ reluctance to agree with the withdrawal of unused allocationsal ocations, is the "“available until expended" expended” nature of the ER funding. Federal-Aid Highway formula funds are generallygeneral y available for obligation for only four years. This difference could encourage some states to commit their limited matching state funds to non-ER projects first for fear of having their Federal-Aid Highway funding expire. Highway funding expire. For states with constrained transportation budgets, delaying ER-funded projects could make sense from a budgetary perspective. Congress could consider placing a time limit on the availability of ER funds for obligation to encourage states to prioritize the obligation of funds to ER projects.²⁹

33 Since the release of thethese reports, legal and procedural changes have mitigated some of GAO's ’s concerns. FHWA has updated the Emergency Relief Manual to clarify eligibility and procedural issues. States'’ applications for ER funding must now include a comprehensive list of all eligible al eligible project sites and repair costs by not later than two years after the event. The definition of "“comparable facility"” has broadened and clarified the non-betterment repairs that are eligible for ER funding. In 2016, FHWA issued an order, "“Emergency Relief Program Responsibilities," ” providing procedures for administration of the ER program, to further "to further “strengthen the administration and oversight of the ER program to ensure the effective use of limited ER funding for eligible projects.”34 In October 2019, GAO released a report that found that FHWA did not document its decisionmaking when classifying a project as an emergency repair and therefore eligible for 100% federal share and expedited contracting and environmental procedures.35 GAO identified 30 Federal Highway Administration, Emergency Relief Program Responsibilities, FHWA Order 5182.1, Washington, DC, February 22, 2016, p. 9, at https://www.fhwa.dot.gov/legsregs/directives/orders/51821.cfm. 31 Government Accountability Office (GAO), Highway Emergency Relief: Reexamination Needed to Address Fiscal Im balance and Long-term Sustainability, GAO-07-245, February 23, 2007, at http://www.gao.gov/products/GAO-07-245; Government Accountability Office, Highway Em ergency Relief: Strengthened Oversight of Project Eligibility Decisions Needed, GAO-12-45, November 2011, pp. 1-56, at http://www.gao.gov/products/GAO-12-45. 32 GAO, Highway Infrastructure: Federal-State Partnership Produces Benefits and Poses Oversight Risks, GAO-12-474, April 2012, pp. 21-22, 27-28, at http://www.gao.gov/products/GAO-12-474. 33 Limiting the availability of ER funds to a specific number of years is not a new concept. See U.S. Congress, House Committee on Public Works, Em ergency Highway Relief, Report to accompany H.R. 6790, 89 th Cong., 1st sess., July 7, 1965, H. Rept. 89-596 (Washington: GPO, 1965), p. 7. T he report recommended an availability of three years. T he provision was not included in the legislation as passed (P.L. 80 -41). 34 Federal Highway Administration, “Emergency Relief Program Responsibilities,” FHWA Order 5182.1, February 22, 2016, at https://www.fhwa.dot.gov/legsregs/directives/orders/51821.cfm. 35 U.S. Government Accountability Office, Highway Emergency Relief: the Federal Highway Administration Should Congressional Research Service 9 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems projects that had been inappropriately classified and recommended that FHWA document its emergency repair decisions and clearly define what constitutes restoration of essential traffic . It also urged FHWA to clarify its policy on when expedited contracting and environmental procedures are al owed. The effectiveness of these changes could be of congressional oversight interest. projects."³⁰ The effectiveness of these changes could be of congressional oversight interest.

ER Resilience Policy Issues

DOT Inspector General Report

DOT Inspector General Report In January 2018, the Department of Transportation Office of Inspector General (IG) released a review of FHWA's "’s “guidance and processes for incorporating resilience improvement into emergency relief projects to rebuild damaged highway infrastructure."³³”36 The report found that FHWA'FHWA’s ER program guidance did not define "“resilience improvement"” or inform states how to incorporate resilience improvements into ER-funded projects. The report also found that FHWA had no process to track efforts by state transportation departments to include resilience improvements in their ER-funded projects.³⁴37 The IG recommended that FHWA

• 1. 1. revise the ER Manual to include a definition of "resilience improvement"“resilience improvement” and to and to identify procedures states should use to incorporate resilience into ER projects;
• 2. 2. develop best practices for improving the resilience of ER projects and share them with the Division Offices and the state departments of transportation; and
• 3. 3. develop and implement a process to track the consideration of resilience improvements for ER projects and their costs.

FHWA concurred with recommendations 1 and 2. With respect to recommendation 3, FHWA agreed to track the consideration of resilience improvements but argued against a requirement that resilience costs be tracked, given that such improvements might be incorporated as part of a project's design and construction standards, making resilience improvement costs hard to separate out. Implementation of the recommendations FHWA concurred with recommendations 1 and 2. The Emergency Relief Manual is in the process of being updated. In FY2021 the FHWA Office of Infrastructure is to prepare a series of case studies on implementation of resilience measures as part of ER repairs. In regard to recommendation 3, to help FHWA gather information on the extent of the application of resilience improvements, FHWA established an Emergency Relief Data Portal where agencies can identify whether resilience improvements have been considered or implemented in repairs in regard to new disaster events and sites. Implementation of these measures could be of oversight could be of oversight interest to Congress.

Public Transportation Emergency Relief Program

The Public Transportation Emergency Relief Program (49 U.S.C. §5324; 49 C.F.R. §602), established in Section 20017 of the Moving Ahead for Progress in the 21^st21st Century Act (MAP-21; P.L. 112-141), is administered by the Federal Transit Administration (FTA) and is similar in intent to FHWA'’s ER program. FTA'’s program provides federal funding on a reimbursement basis to states, territories, local government authorities, Indian tribes, and public transportation agencies for damage to public transportation facilities or operations as a result of a natural disaster or other Enhance Accountability over Project Decisions, GAO 20-32, October 2019, at https://www.gao.gov/products/GAO-20-32. 36 U.S. Department of T ransportation Inspector General, FHWA Lacks Detailed Guidance on Infrastructure Resilience for Emergency Relief Project and a Process to T rack Related Improvements, January 10, 2018, pp. 1 -20, at https://www.oig.dot.gov/sites/default/files/FHWA%20ER%20Resilience%20Final%20Report%5E1 -10-18.pdf. 37 T he IG concluded that the ER Manual definition of resilience was stricter than the definition in FHWA’s subsequent policy directive on resilience; see FHWA, Transportation System Preparedness and Resilience to Clim ate Change and Extrem e Weather Events, FHWA Order 520, December 15, 2014, at https://www.fhwa.dot.gov/legsregs/directives/orders/5520.cfm. Congressional Research Service 10 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems emergency and to protect assets from future damage.38emergency and to protect assets from future damage.³⁵ In the past, funding for these purposes was provided by FEMA or through appropriations administered by FTA following a specific disaster. For example, in response to the September 11, 2001, terrorist attacks, which caused severe damage to rapid transit lines in New York City, about $4.7 billion bil ion was provided in emergency supplemental appropriations for transit, some of which was administered by FTA.³⁶

39 The Public Transportation ER programProgram provides federal support for both capital and operating expenses. Capital expenses include projects for repairing and replacing transit facilities that have been damaged, as well wel as projects to protect facilities from future damage, knownknow n as resilience projects. Sometimes a capital project can involve both damage restoration and resilience elements. Operating expenses include evacuation activities, rescue operations, and temporary transit service before, during, or after an emergency event. Operating costs are eligible for reimbursement for one year beginning on the date a disaster is declared, although the Secretary of Transportation may extend that period to two years after determining a compelling need.³⁷

compel ing need.40 The Public Transportation ER Program also gives the Secretary of Transportation authority to provide more flexibility to transit agencies in the use of urban and rural formula program funds for emergency purposes and to waive federal requirements in the use of federal funding. For example, noncompetitive procurement can be al owed in an emergency when a competitive bidding process would be too time-consuming. Funding and Federal Share Unlike the FHWA’Funding and Federal Share

Unlike the FHWA's ER program, FTA'’s ER program does not have a permanent annual authorization. All Al funds are authorized on a "“such sums as necessary"” basis and require an appropriation from the Treasury'’s general fund. The federal share for most capital and operating projects under the program is 80%, but the Secretary of Transportation may increase this share up to 100%. Emergency funding will wil not be provided when project costs are reimbursed by another federal agency, such as FEMA, have been funded through insurance proceeds, or are already funded in an existing FTA grant.

Since its enactment in 2012, there There have been twothree appropriations to the Public Transportation ER programProgram since its enactment in 2012. Funds were appropriated as part of (1) the Disaster Relief Appropriations Act ((P.L. 113-2) in January 2013 in response to Hurricane Sandy, which struck the United States in October 2012; (2)October 2012. Funds were also appropriated as part of the Bipartisan Budget Act of 2018 (P.L. 115-123) in response to Hurricane Harvey, which struck the United States in August 2017, and Hurricanes Irma and Maria, which struck the United States in September 2017.³⁸

; and (3) the Additional Supplemental Appropriations for Disaster Relief Act of 2019 (P.L. 116-20) in June 2019 in response to several extreme weather events and an earthquake in 2018. Hurricane Sandy Hurricane Sandy

Hurricane Sandy affected 12 states and the District of Columbia; New York and New Jersey, states with some of the largest public transportation systems in the country, were the hardest hit. 38 Federal T ransit Administration (FT A), Emergency Relief Manual: A Reference Manual for States & Transit Agencies on Response and Recovery from Declared Disasters and FTA’s Emergency Relief Program (49 U.S.C. 5324), at https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/FT A_Emergency_Relief_Manual_and_Guide_ -_Sept_2015.pdf. 39 GAO, September 11: Overview of Federal Disaster Assistance to the New York City Area , October 2003, GAO-04-72. 40 49 U.S.C. §5324(b)(2). Congressional Research Service 11 link to page 16 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems The Disaster Relief Appropriations Act of 2013 provided $10.9 bil ion for FTA’The Disaster Relief Appropriations Act of 2013 provided $10.9 billion for FTA's Public Transportation ER Program for recovery, relief, and resilience projects and activities in areas impacted by Hurricane Sandy. Approximately $10.4 billionbil ion remained available after sequestration under the Budget Control Act of 2011 (P.L. 112-25), and $185 millionmil ion was transferred from FTA to the Federal Railroad Administration. FTA allocatedal ocated the remaining approximately $10.2 billion bil ion according to several funding categories:³⁹

• $5.2 billion 41  $5.2 bil ion for response, recovery, and rebuilding costs incurred by affected agencies;
• $1.3 billion for locally agencies;  $1.3 bil ion for local y prioritized resilience projects at designated transportation agencies in the New York metropolitan area;
• $3.6 billion  $3.6 bil ion for competitive resilience projects that will wil protect or otherwise increase the resilience of public transportation equipment and facilities to future hurricanes and storms in the areas affected by Hurricane Sandy;⁴⁰ and
• $76 million 42 and  $76 mil ion for oversight and administration.

According to FTA, approximately $7.1 billion 9.3 bil ion of the Hurricane Sandy funding had been obligated by March 31, 2018.⁴¹

2020.43 Hurricanes Harvey, Irma, and Maria

Congress appropriated $330 millionmil ion for FTA'’s Public Transportation ER Program in response to Hurricanes Harvey, Irma, and Maria on February 9, 2018. Damage to transit systems associated with Hurricane Harvey was concentrated in Texas, particularly flooding in Houston, and the damage associated with Hurricane Irma was concentrated in Puerto Rico and Florida. Hurricane Maria'Maria’s effects on transit systems were concentrated in Puerto Rico. On May 31, 2018, FTA announced its allocational ocation of these funds by purpose and locationlocation (Table 2).44 41 FT A, “Fourth Allocation of Public T ransportation Emergency Relief Funds in Response to Hurricane Sandy,” 81 Federal Register 43705-43707, July 5, 2016; See also FT A, “ Notice of Funding Availability for Resilience Projects in Response to Hurricane Sandy,” 78 Federal Register 78486-78493, December 26, 2013; FT A, “Notice of Availability of Emergency Relief Funds in Response to Hurricane Sandy,” 78 Federal Register 8691-8697, February 6, 2013; “ Second Allocation of Public T ransportation Emergency Relief Funds in Response to Hurricane Sandy: Response, Recovery & Resiliency,” 78 Federal Register 32296-32302, May 29, 2013 (see also correction of June 4, 2013, 33467 -33468). 42 FT A, “Resilience Projects in Response to Hurricane Sandy,” September 22, 2014, at https://www.transit.dot.gov/funding/grant -programs/emergency-relief-program/resilience-projects-response-hurricane-sandy. 43 FT A, “ FT A Grants Awarded for Hurricane Sandy Recovery and Resiliency ,” at https://www.transit.dot.gov/funding/grant-programs/emergency-relief-program/fta-grants-awarded-hurricane-sandy-recovery-and. 44 FT A, “Allocation of Public T ransportation Emergency Relief Funds in Response to Hurricanes Harvey, Irma, and Maria,” 83 Federal Register 25104-25108, May 31, 2018. Congressional Research Service 12 link to page 16 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems Table 2. Hurricanes Harvey, Irma, and Maria Public Transportation ER Allocations Response, Recovery, State/Territory and Rebuilding Resilience Total Florida $16,163,000 $6,619,000 $22,782,000 Georgia $187,000 — $187,000 Puerto Rico $197,789,000 $25,721,000 $223,510,000 Texas $16,615,000 $6,713,000 $23,328,000 Virgin Islands $1,554,000 $5,164,000 $6,718,000 Total $232,308,000 $44,217,000 $276,525,000 Al ocation for states and direct recipients without a direct al ocation $1,000,000 Unal ocated $50,000,000 Reserved for administrative expenses and program management oversight $2,475,000 Total appropriation $330,000,000 Source: Federal Transit Administration, “Al ocation of Public Transportation Emergency Relief Funds in Response to Hurricanes Harvey, Irma, and Maria,” 83 Federal Register 25104-25108, May 31, 2018. Note: Unal ocated is held in reserve for “latent damages, damages not assessed in smal er areas, cost increases, and additional Emergency Relief needs.” Extreme Weather and Earthquake in 2018 Congress appropriated $10.5 mil ion for the Public Transportation ER Program for major declared disasters in 2018. FTA al ocated these funds, less 0.75% for administration, for damage caused by events including Hurricanes Michael and Florence, Typhoon Mangkhut and Super Typhoon Yutu, and the earthquake that occurred in Alaska on November 30, 2018 (Table 3). Table 3. ER Funding Allocations for Major Declared Disasters in 2018 State/Territory Disaster Funding Recipient Amount Alaska Flooding (May 11-13, 2018) Alaska Railroad Corporation $797,000 Alaska Earthquake (Nov. 30, 2018) Alaska Railroad Corporation $5,475,935 Alaska Earthquake (Nov. 30, 2018) Municipality of Anchorage $159,000 Florida Hurricane Michael (Oct. 7-19, Bay County Transportation $3,643,000 2018) Organization Northern Mariana Typhoon Mangkhut (Sept. 10- Commonwealth Office of $351,000 Islands 11, 2018) and Super Typhoon Transit Authority Yutu (Oct. 24-26, 2018) North Carolina Hurricane Florence (Sept. 7- Research Triangle Regional $29,000 29) Public Transportation Authority South Carolina Hurricane Florence (Sept. 7- Charleston Area Regional $8,000 29) Transportation Authority Reserved for administrative expenses and program management oversight (0.75%) $790,650 Total appropriation $10,542,000 Congressional Research Service 13 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems Source: Federal Transit Administration, “FTA Emergency Relief Funding Al ocations for Transit Systems Affected by Major Declared Disasters Occurring in 2018,” at https://www.transit.dot.gov/grant-programs/emergency-relief-program/fta-emergency-relief-funding-al ocations-transit-systems. Notes: Dates are incident periods as determined by FEMA. ER Program Authority and the COVID-19 Pandemic No Public Transportation ER Program funding was provided in response to the emergency brought on by Coronavirus Disease 2019 (COVID-19). Instead, $25 bil ion was provided directly by formula to transit agencies through the Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136). However, FTA used authority provided in the Public Transportation ER Program to al ow transit agencies to use regular urban and rural formula funds for capital and operating expenses directly related to the COVID-19 emergency, such as vehicle cleaning and temporary transit services. FTA permitted transit agencies to use federal funds for emergency-related operating expenses with a 100% federal share, even in large urban areas where using federal funds for operating expenses is typical y not al owed. FTA also established a mechanism for transit agencies to request temporary relief from federal requirements.45 Program Issues Because the Public Transportation ER Program (Table 2).⁴²

Program Issues

Because the Public Transportation ER program does not have a permanent annual authorization, FTA cannot provide funding immediately after a disaster or emergency. Transit agencies, therefore, typicallytypical y rely on FEMA for funding their immediate needs. GAO observes that this could make it more difficult for some transit agencies to respond immediately after a disaster, and that the reliance on FEMA can cause transit agencies to be confused about which federal agency to approach for help if FTA funds do later become available. An existingA memorandum of understanding between FEMA and FTA seeks to coordinate their roles and responsibilities, but FTA cannot define its role with certainty ahead of an appropriation. Consequently, as GAO has noted, "“FTA and FEMA will wil have to determine their specific roles and responsibilities on a per-incident basis."⁴³

”46 Adding a quick-release mechanism to FTA'’s ER program, similar to that in FHWA'’s ER program, would allowal ow FTA funds to be approved and distributed within a few days of a disaster. FHWA'FHWA’s ER program has an annual authorization of funds from the HTF, and FTA'’s program could similarly be authorized an amount from the mass transit account of the fund. Such an authorization, however, would place a new claim on resources of the HTF, adding to the current gap between revenues and outlays.⁴⁴

47 GAO has observed that FTA'’s ER program has fewer limits and more flexibility than the emergency relief programs administered by FEMA and, to some extent, FHWA.⁴⁵48 The FTA'’s ER program, for example, does not have a limit on the amount that can be spent on resilience projects as FEMA funding does, and it also allowsal ows damaged assets to be replaced with those that are improved or upgraded. As FTA notes, "improved or upgraded when being replaced. FEMA funding is general y limited to restoring a facility to its predisaster design. 45 Federal T ransit Administration, “ U.S. Department of T ransportation Announces Increased Flexibility to Help T ransit Agencies Respond to Coronavirus,” March 13, 2020, at https://www.transit.dot.gov/about/news/us-department -transportation-announces-increased-flexibility-help-transit-agencies. 46 GAO, Emergency Transportation Relief: Agencies Could Improve Collaboration Begun during Hurricane Sandy Response, GAO-14-512, May 28, 2014, p. 29, at https://www.gao.gov/assets/670/663627.pdf. 47 CRS Report R44674, Funding and Financing Highways and Public Transportation , by Robert S. Kirk and William J. Mallett . 48 GAO, Emergency Transportation Relief, pp. 16-22. Congressional Research Service 14 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems But, as FTA notes, “it may not always be feasible or advisable to replace damaged assets with identical facilities, vehicles, or equipment. As a result, projects to repair, replace, or reconstruct assets may include improvements and upgrades as necessary to meet current safety and design standards."⁴⁶

”49 FTA ER funding can also be spent on a project that is included in a statewide transportation improvement program (STIP), whereas FHWA ER funding cannot be used, for example, to permanently repair or reconstruct a bridge if the construction phase of the project is included in the STIP at the time of a disaster.50 Although there may be advantages to including upgrades and resilience with Public Transportation ER funds, including these elements requires Congress to appropriate larger amounts than might otherwise be necessary. ItER could also be a way for transit agencies to fund betterments and new facilitiesprojects that have little direct connection to the goals of repairing damages and making the transit systems resilient to future storm events. GAO found that some Hurricane Sandy funding awards were were used for projects that were probably outside the scope of the program.51 ER Resilience Policy Issues The resilience of U.S. highway and public transportation infrastructure has been a growing issue both within the context of broad concerns about the impacts of climate change as wel as regional concerns such as fears of an earthquake generating a tsunami in the Cascadia subduction zone, off the Pacific Northwest coast.52 The existing ER programs are primarily reactive programs. For example, the current highway ER program does not al ow expenditure of emergency relief funds to improve the resilience of facilities not damaged by a natural disaster or catastrophic event, although states may use their regularly apportioned federal-aid highway funds on such resilience projects. Also, resilience measures on damaged highway facilities are eligible for highway ER funding only if they are consistent with current rules on “betterments” and wil save the program money in the long run.53 Despite these limitations, the ER Manual states that “while ER funds are primarily provided for repair activities following a disaster; design and construction of repairs should consider the long term resilience of the facility.” The Public Transportation Emergency ER program’s eligibility for resilience projects is broader than the highway ER program and has even al ocated funds specifical y for resilience purposes. If it wished, Congress could encourage attention to surface transportation infrastructure resilience in a number of ways, including the following:  Retaining the current programmatic structure, but broadening eligibilities to al ow for more funding of resilience measures than al owed under current law. In the case of highways, for example, this could be done by expanding the funding of “betterments” to al ow for benefits other than direct savings to the ER program. Congress could provide additional funds through the appropriations process to facilitate increased resilience measures following disasters. 49 FT A, Emergency Relief Manual, p. 30. 50 GAO, Emergency Transportation Relief, p. 19. 51 GAO, DOT Discretionary Grants: Problems with Hurricane Sandy Transit Grant Selection Process Highlight the Need for Additional Accountability, GAO-17-20, at https://www.gao.gov/assets/690/681603.pdf. 52 State of Oregon, Office of Emergency Management, State of Oregon Cascadia Subduction Zone Catastrophic Earthquake and Tsunam i Operations Plan , September 2012, at http://www.oregon.gov/OMD/OEM/Pages/plans_train/CSZ.aspx. 53 CRS In Focus IF10728, After the Storm: Highway Reconstruction and Resilience, by Robert S. Kirk. Congressional Research Service 15 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems  Expanding the resilience mission and funding of the two existing ER programs. The mission could, for example, be expanded to more fully cover climate change risk to undamaged surface transportation infrastructure. The additional amounts could be made available in annual or supplemental appropriations bil s as needed. This could, however, increase demands for ER funds and again raise concerns about “mission creep.”  Creating a stand-alone program dedicated to preventive retrofitting or rebuilding of at-risk road and public transportation infrastructure. The program could be authorized permanently or as part of the normal surface transportation authorization of funds from the HTF. This could, however, widen the existing gap between HTF revenues and outlays.  Encouraging the states and transportation authorities to use their federal formula funds for resilience efforts by providing an increased federal share for resilience projects. The extension of the FAST Act through FY2021 effectively shifts the congressional consideration of resilience measures in surface transportation reauthorization into the 117th Congress.54 54 T wo bills to reauthorize surface transportation programs saw action in the 116 th Congress. In August 2019, the Senate Committee on Environment and Public Works unanimously reported the America’s T ransportation Infrastructure Act of 2019 (AT IA; S. 2302). In July 2020, the House of Representatives passed the Investing in a New Vision for the Environment and Surface T ransportation (INVEST ) in America Act as part of the larger Mo ving Forward Act (H.R. 2). Both bills would have made modest changes to the highway ER program’s eligibility requirements to encourage the inclusion of resilience features in the progr am’s repair projects. T he bills also include broader climate adaptation programs and provisions that would fund and encourage resilience efforts. See CRS Report R46452, Surface Transportation Reauthorization and Clim ate Change: H.R. 2 and S. 2302 , by William J. Mallett , pp. 11-13. Neither of these bills was enacted; instead, Congress extended the authorizations of surface transportation programs through September 30, 2021, in the Continuing Appropriations Act, 2021, and Other Extensions Act (P.L. 116-159). Congressional Research Service 16 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems Appendix. ER Program Appropriations Table A-1. Appropriated Funds for the FHWA ER Program: 1998-2020 (excludes annual $100 mil ion permanent authorization) Date Highway General Public Law Enacted Title of Appropriations Act Trust Fund Fund P.L. 105-174 May 1, 1998 1998 Supplemental Appropriations and $259,000,000 Rescissions Act P.L. 106-346 Oct. 23, 2000 Dept. of Transportation and Related $720,000,000 Agencies Appropriations, 2001 P.L. 107-117 Jan. 10, 2002 Dept. of Defense and Emergency $175,000,000 Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002 P.L. 107-206 Aug. 2, 2002 2002 Supplemental Appropriations Act for $265,000,000 Further Recovery from and Response to Terrorist Attacks on the United States P.L. 108-324 Oct. 13, 2004 Military Construction Appropriations and $1,202,000,000 Emergency Hurricane Supplemental Appropriations Act, 2005 P.L. 108-447 Dec. 8, 2004 Consolidated Appropriations Act, 2005 $741,000,000 P.L. 109-148 Dec. 30, 2005 Dept. of Defense, Emergency Supplemental $2,750,000,000 Appropriations to Address Hurricanes in the Gulf of Mexico and Pandemic Influenza Act, 2006 P.L. 109-234 June 15, 2006 Emergency Supplemental Appropriations Act $702,362,500 for Defense, the Global War on Terror, and Hurricane Recovery, 2006 P.L. 110-28 May 25, 2007 U.S. Troop Readiness, Veterans’ Care, $871,022,000 Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 P.L. 110-161 Dec. 26, 2007 Consolidated Appropriations Act, 2008 $195,000,000 P.L. 110-329 Sept. 30, 2008 Consolidated Security, Disaster Assistance, $850,000,000 and Continuing Appropriations Act, 2009 P.L. 112-55 Nov. 18, 2011 Consolidated and Further Continuing $1,622,000,000 Appropriations Act, 2012 P.L. 113-2 Jan. 29, 2013 Disaster Relief Appropriations Act of 2013 $1,920,900,000 P.L. 114-254 Dec. 10, 2016 Further Continuing and Security Assistance $1,004,017,000 Appropriations Act, 2017 P.L. 115-31 May 5, 2017 Consolidated Appropriations Act, 2017 $528,000,000 P.L. 115-123 Feb. 9, 2018 Bipartisan Budget Act of 2018 $1,374,000,000 P.L. 116-20 June 6, 2019 Additional Supplemental Appropriations for $1,650,000,000 Disaster Relief Act, 2019 Source: FHWA, Office of Program Administration. Notes: P.L. 113-2 provided $2.022 bil ion. Amount shown reflects 5% rescission due to sequestration. Congressional Research Service 17 Emergency Relief for Disaster-Damaged Roads and Public Transportation Systems Table A-2. Appropriated Funds for the FTA ER Program: 2012-2020 Highway Public Law Date Enacted Title of Appropriations Act Trust Fund General Fund P.L. 113-2 Jan. 29, 2013 Disaster Relief Appropriations Act of 2013 $10,355,000,000 P.L. 115-123 Feb. 9, 2018 Bipartisan Budget Act of 2018 $330,000,000 P.L. 116-20 June 6, 2019 Additional Supplemental Appropriations for $10,542,000 Disaster Relief Act, 2019 Source: P.L. 113-2, P.L. 115-123, P.L. 116-20 and FTA. Notes: P.L. 113-2 provided $10.9 bil ion. Amount shown reflects 5% rescission due to sequestration . Author Information Robert S. Kirk William J. Mallett Specialist in Transportation Policy Specialist in Transportation Policy Disclaimer This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material. Congressional Research Service R45298 · VERSION 4 · UPDATED 18 for projects that were probably outside the scope of the program. Consequently, GAO recommended a better alignment of program purposes with project evaluation and selection, and an examination of funded projects for duplication with other efforts to improve resilience.⁴⁷

Appendix. ER Program Appropriations