Emergency Relief Program

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 668

[FHWA Docket No. 95-25]

RIN 2125-AD60

Emergency Relief Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA is amending its regulation on the emergency relief

(ER) program in order to incorporate changes made to 23 U.S.C. 120 and

125 by the Intermodal Surface Transportation Efficiency Act of 1991

(ISTEA) (Pub. L. 102-240,105 Stat. 1914). The time period in which the

Federal share payable for certain eligible emergency repairs is 100

percent will be extended from 90 days to 180 days as a result of this

final rule; the limit for total obligations for ER projects in any

fiscal year in the Virgin Islands, Guam, American Samoa, and the

Commonwealth of Northern Mariana Islands will be increased from $5

million to $20 million; and the term ``Federal-aid highway systems''

will be replaced with the term ``Federal-aid highways'' to conform with

terminology now used to describe highways eligible for Federal-aid ER

assistance. In addition, various statements clarifying eligible uses of

ER funding will be incorporated into the regulation.

[[Page 67208]]

EFFECTIVE DATE: January 21, 1997.

FOR FURTHER INFORMATION CONTACT: Mohan P. Pillay, Office of

Engineering, 202-366-4655, or Wilbert Baccus, Office of the Chief

Counsel, 202-366-0780, FHWA, 400 Seventh Street, SW., Washington, DC

20590.

SUPPLEMENTARY INFORMATION:

Background

The changes to the FHWA's ER regulations, which will result from

this final rule, were developed based on the comments made to a notice

of proposed rulemaking (NPRM) on this subject published in the Federal

Register on November 13, 1995, at 60 FR 56962 (FHWA Docket No. 95-25).

Interested persons were invited to participate in the development of

this final rule by submitting written comments on the NPRM to FHWA

Docket 95-25 on or before January 12, 1996. Comments were received from

7 State highway agencies (SHAs). All comments received on the

amendments proposed in the NPRM have been considered in adopting this

final rule.

The current FHWA regulations implementing the emergency relief

program are found primarily at 23 CFR part 668. Subpart A of part 668

sets forth the procedures for the administration of ER funds for the

repair or reconstruction of Federal-aid highways. This final rule

amends these regulations in the following manner and for the reasons

indicated below.

Three of the States expressed support in general for the changes

proposed by the NPRM. The other four States supported individual

changes and/or presented suggestions on further changes to be made.

Amendments to the rule, along with suggested changes by commenters, are

discussed below.

In subpart A, the terms ``Federal-aid system'' and ``Federal-aid

highway system'' will be replaced with the term ``Federal-aid

highways.'' The revision is in accordance with The Dire Emergency

Supplemental Appropriations Act (Pub. L. 102-302, 106 Stat. 248) which

amended 23 U.S.C. 125(b) by replacing the term ``Federal-aid highway

systems including the Interstate System'' with the term ``Federal-aid

highways.'' No changes were suggested by commenters.

In Sec. 668.101, the second sentence will be amended by replacing

``Federal roads not on the Federal-aid system'' with ``Federal roads

that are not part of Federal-aid highways.'' The NPRM proposal was to

replace ``Federal roads not on the Federal-aid system'' with ``roads on

Federal lands.'' One commenter recommended changing the words ``roads

on Federal lands'' to ``Federal roads that are not part of Federal-aid

highways'' to be consistent with the term Federal roads used in Part

668, Subpart B, Procedures for Federal Agencies for Federal Roads,

which is cross referenced here. The FHWA agrees with the commenter's

recommendation and it was incorporated into this final rule.

Section 668.105(e) will be amended by adding the words ``or by a

toll authority for repair of the highway facility'' after the words

``political subdivision'' in the last sentence. This amendment

clarifies that any compensation or insurance received by a toll

authority whose facility is being repaired with ER funding must be

appropriately credited to the ER project. In the case of a toll

facility, the credit would be based on that portion of the compensation

or insurance attributable to the cost of repair of capital

improvements. No comments were received on this amendment.

In Sec. 668.107, paragraph (a) will be amended to extend to 180

days the current 90-day time period following a natural disaster or

catastrophic failure in which the Federal share payable for certain

eligible emergency repair costs may amount to 100 percent. This

amendment is made to conform Sec. 668.107(a) to 23 U.S.C. 120(e) (as

amended by section 1022 of the ISTEA, Public Law 102-240, 105 Stat.

1914 (1991)). One State suggested a further extension from 180 days up

to 360 days on a case-by-case basis ``where high water levels continue

to cause damage and/or cause delays in performing emergency work.''

FHWA does not have any flexibility to extend the 180-day time period

for the 100 percent Federal share for emergency repairs. The Federal

share, including the 180-day time period, is established by 23 U.S.C.

120(e) and there is no authority to change the time period. Another

State requested clarification as to whether 180 days ``after the

disaster'' starts on the initial day of the occurrence or 180 days

after the last day of the occurrence. The intent is that 180 days

starts on the initial day of the occurrence. In certain circumstances,

emergency repair work to restore essential traffic, or to protect the

remaining facilities, or to minimize the extent of damage cannot be

undertaken on the initial day of the occurrence of the disaster. In

such circumstances, it is acceptable to consider the date on which the

first emergency work was undertaken as the beginning day of the first

180 days. It is emphasized that there is only one 180-day period for

the entire disaster.

In Sec. 668.107, the second sentence of paragraph (b) is amended to

raise to $20 million the current $5 million limit on the total amount

of obligations for emergency relief projects in any fiscal year in the

Virgin Islands, Guam, American Samoa, and the Commonwealth of the

Northern Mariana Islands. This amendment is made to conform this

provision with that set forth in 23 U.S.C. 125(b)(2) (as amended by

section 1022(b) of the ISTEA). No changes were suggested by commenters.

One State suggested several minor editorial changes to

Secs. 668.107 (a) and (b) including revised language that reflects a

new definition of ``emergency repairs.'' This new definition for

``emergency repairs'' along with FHWA reasons for not including it as

part of the final rule are discussed later in this preamble.

Additionally, the minor editorial changes did not significantly clarify

or improve the wording in these two sections. As a result, the FHWA is

making no further changes to Secs. 668.107 (a) and (b) other than those

discussed above.

Section 668.109(b) is amended to expand and clarify the eligible

uses for ER funds based on recent experiences in administering the ER

program. ER funds will now be eligible to participate in:

1. Raising of roadway grades temporarily to maintain essential

traffic service during flooding.

This is a new activity considered eligible for ER funding. No

changes were suggested by commenters. A new paragraph (b)(7) will be

added to Sec. 668.109 by this final rule to incorporate this change.

2. Raising grades of critical Federal-aid highways faced with long-

term loss of use due to an unprecedented rising in basin water level.

In the past, reconstruction or repair of highways affected by basin

flooding was generally not considered eligible for ER funding. Basin

flooding was seen as a gradual rise in water level that could be

predicted. Hence, work to prevent potential damage could be anticipated

and was not considered eligible for ER funding. Now, basin flooding is

an eligible activity under the ER program if it can be shown that (1)

there has been an unprecedented rise in water level, both in terms of

the magnitude of the increase and the time frame in which the increase

occurred; and (2) there will be long-term loss of use of Federal-aid

routes. As with any other disaster considered for funding under the ER

program, for basin flooding, the Federal share of the estimated cost to

raise the grade of critical Federal-aid routes to restore traffic

service should exceed the $500,000 minimum threshold. No changes were

suggested by the commenters. A new paragraph (b)(8)

[[Page 67209]]

will be added to Sec. 668.109 by this final rule to incorporate this

change.

3. Repair of toll facilities when the provisions of 23 U.S.C. 129

are met.

This provision clarifies that ER funds can participate in repair of

toll facilities on Federal-aid highways provided a toll agreement under

23 U.S.C. 129 is executed. No comments were received on this provision.

A new paragraph (b)(9) will be added to Sec. 668.109 by this final rule

to incorporate this change.

4. Repair of surface damage by traffic but only on designated

detour routes (both Federal-aid highways and non-Federal-aid highways)

or on Federal-aid highways where the surface damage has been caused by

traffic in route to make repairs to other damaged non-highway

transportation facilities. For a more detailed discussion of roadway

surface damage caused by this kind of traffic, see the discussion on

Sec. 668.109(c)(2) in this preamble.

In addition to the above mentioned items, one State recommended

that the regulation be changed to make the following items also

eligible for ER funding: (1) The replacement of equipment that is lost

while it is being used to protect or open a facility to traffic; (2)

the purchase of aeronautical equipment to be used in surveying site

damages; (3) the construction of statewide command centers to be used

to direct emergency service.

The FHWA is not expanding ER eligibility to include these three

items. The ER program is not intended to compensate a State for all the

costs it faces in responding to a disaster. For example, although ER

funding may pay for the time that equipment is used to make eligible ER

repairs, it is expected the State will assume the risks associated with

the loss or damage of this equipment. In addition, it is expected that

a State highway agency will be responsible for the costs associated

with setting up command centers and other actions, such as utilizing

aeronautical equipment, it deems necessary for managing its response to

a disaster.

Section 668.109(c), which describes activities ineligible for ER

funding, will be amended in Sec. 668.109(c)(1) to eliminate the

reference to slip-outs in cut or fill slopes which do not extend to the

traveled way. This revision will allow ER funding to be used to repair

significant slope damage, even if the slope damage does not extend into

the traveled way. Two States expressed opposition to this change,

although upon further review of their comments it appears they

misunderstood the NPRM proposal and, in fact, both States support

extending ER funding eligibility to cover this situation. One State

suggested adding the words ``off the traveled way `` after the phrase

``mud and debris deposits'' to clarify the paragraph. The FHWA agrees

this will help clarify the intent of this provision and the suggested

change was included in this final rule.

Section 668.109(c)(2) will be amended to allow limited use of ER

funds to repair roadway surface damage caused by traffic on designated

detours and by traffic in route to repair other non-highway

transportation facilities. In general, repair of traffic damage to

roadway surfaces, even if this damage is aggravated by saturated

subgrade conditions or by inundation of the roadway, is not eligible

for ER fund participation. In the past, one exception was allowed: ER

funds could participate in repair of surface damage caused by vehicles

making repairs on Federal-aid highways. For example, there may be a

need to immediately haul material to a damaged Federal-aid highway

facility to begin emergency repairs and in doing so the haul vehicles

significantly damage roadway surfaces, either of Federal-aid or non-

Federal-aid highways. In these instances, ER funds have been able to

participate in repair of the damaged roadway surfaces and this

exception is retained in the regulation.

As a result of the amendment to Sec. 668.109(c)(2), ER funds will

now be eligible for participation in the repair of surface damage to a

designated detour (which may lie on both Federal-aid and non-Federal-

aid routes) caused by traffic that has been detoured from a damaged

Federal-aid highway. This may include roadway surface repairs to

provide reasonable traffic service during the period of time the detour

is in use as well as surface repairs to the detour route to restore the

detour roadway surface to its predisaster condition after detour

traffic has been removed. A designated detour is the officially signed

detour that highway officials have established to reroute traffic

around the damaged portion of the Federal-aid highway. In addition, ER

funds will also be able to participate in the repair of surface damage

to Federal-aid highways (only) caused by vehicles making repairs to

other damaged non-highway transportation facilities, for example,

surface damage caused by vehicles hauling materials to repair a damaged

railroad facility.

Two States suggested that ER eligibility be further expanded to

include traffic damage to roadways that have saturated bases. If, after

periods of heavy rainfall or when flood waters recede, highway

officials find that roadbeds are saturated, it is expected that these

officials will control subsequent traffic use of these roads in such a

manner that this traffic will not damage the facility. Accordingly, the

FHWA plans to continue to limit ER eligibility to repair roadway

surfaces to those cases where damage has been caused directly by the

flood waters, other than those exceptional circumstances listed in

amended Sec. 668.109(c)(2).

Section 668.109(c)(6) is amended to cross-reference newly added

Sec. 668.109(b)(8) which discusses the extent to which ER funding can

participate in raising grades of Federal-aid highways to compensate for

an unprecedented rise in basin water levels.

Section 668.109(c)(7) is amended to redefine the term

``scheduled.'' As currently defined, the term signifies permanent

repair or replacement of a deficient bridge is included in the approved

Federal-aid program, the current or next year's Highway Bridge

Replacement and Rehabilitation Program, or in the contract plans being

prepared. The current definition refers to an approved Federal-aid

program, which is a program incorporating various projects submitted by

a State to the FHWA for approval in accordance with the requirements of

23 U.S.C. 105; however, 23 U.S.C. 105 has been superseded by the new

requirements of 23 U.S.C. 135 and, as a result, a State now is required

to develop a Statewide Transportation Improvement Program (STIP) which

is to be submitted to the FHWA for approval. To update and simplify the

definition of ``scheduled,'' the amended definition would refer only to

the approved STIP. One State suggested that a bridge project be

considered scheduled if the construction phase is included in the FHWA

approved current annual element of the STIP. The purpose of this

provision is to prevent a State from using ER funding to replace or

reconstruct a deficient bridge when it was already planning to use

other funding sources for that purpose. The FHWA believes that an

approved STIP, in which the State has identified a funding source to

advance projects during the upcoming 3-year period, reasonably reflects

a State's intent to have used non-ER funding source for a bridge

project. Therefore, the proposal to limit the term ``scheduled'' to

only the first year of the STIP is not being adopted.

A new paragraph (c)(10) will be added to Sec. 668.109 to make clear

that the loss of toll revenue is not eligible for reimbursement. No

comments were received on this new section.

[[Page 67210]]

Section 668.113(a) is amended to remove the outdated reference to

the program requirements of 23 CFR part 630. The requirements for a

program of ER projects are adequately described in Sec. 668.113;

therefore, cross-reference to 23 CFR part 630 is no longer needed. No

comments were received regarding this change.

Section 668.113(b)(1) will be amended to reflect the current policy

on project review, oversight, and administration as applicable to ER

projects. In those cases where a regular Federal-aid project (in a

State) similar to the ER project would be handled under the

certification acceptance procedures found in 23 U.S.C. 117 or the

project oversight exceptions found in 23 U.S.C. 106, the ER project

may, as a result of this final rule, be handled under these alternate

procedures subject to the following two conditions: (1) Any betterment

to be incorporated into the project and for which ER funding is

requested must receive prior FHWA approval, and (2) the FHWA reserves

the right to conduct final inspections on ER projects as deemed

appropriate. No comments were received on this change.

In addition to the changes described above, minor editorial changes

in Secs. 668.109(b)(3) and 668.111(b)(2) will also be made for clarity.

One State commented on several sections of Part 668, subpart A

which were not proposed for change and/or modification in the NPRM. The

State suggested revision of the definition for emergency repairs and

the addition of several new definitions as well as changes to other

provisions of the regulation. These suggestions are discussed below.

The commenter proposed to revise the definition of ``emergency

repairs'' to read as follows: those repairs including traffic

operations undertaken during or within 180 days after the actual

occurrence of a natural disaster or catastrophic failure for the

purpose of (1) minimizing the extent of damage (2) protecting remaining

facilities, or (3) restoring essential travel.

The major purpose of emergency repairs is to immediately open the

road to essential travel. By eliminating the term ``immediate'' from

the current definition and also by including the term ``work undertaken

within 180 days,'' the revised definition implies that there is no

urgency in undertaking repairs. Further, the statutory 180-day limit

found in 23 U.S.C. 120(e) defines a time period for a special Federal

match and is not related to the definition of what is or is not an

emergency repair. The FHWA feels that the existing definition of

emergency repairs is adequate and no change is being made.

The commenter also proposed adding new definitions to the

regulation for the following terms: actual occurrence, betterments,

eligible repair costs, site, and sub-applicant. In some cases, these

new definitions were in conjunction with other suggested changes to the

regulation. The FHWA believes that most of the new definitions are

unnecessary at this time; however, some may be considered during future

revisions to the regulation.

The commenter proposed to amend Sec. 668.105(i) to allow

application of the small purchase procedures of the Federal common rule

regulations in 49CFR18.36(d)(1) to permanent repair and reconstruction

work. The common rule regulation may not apply to highway construction

grants as provided in 49 CFR 18.36(j) which states that ``23 U.S.C.

112(a) directs the Secretary to require recipients of highway

construction grants to use bidding methods that are `effective in

securing competition'.'' Permanent repairs and reconstruction work

under the ER program are viewed as construction grants subject to 23

U.S.C. 112(a). Therefore, this proposed change is not acceptable.

The commenter proposed to amend Sec. 668.105(j) to require that the

FHWA consider the estimated cost of non-Federal-aid highway damage in

determining whether a disaster is of a magnitude to qualify it for

assistance under the ER program. The FHWA is not adopting this change.

The FHWA believes that in determining whether a disaster has caused

enough damage to trigger eligibility under FHWA's ER program, only

damage to Federal-aid highways should be considered. If significant

damage has occurred to non-Federal-aid highways, typically the Federal

government will assist in paying for repair of these non-Federal-aid

highways through the Federal Emergency Management Agency's program. The

ER program is not intended to take care of all repair costs. When a

disaster occurs, State and local highway agencies must expect

additional expenditures. The existing requirement that there be at

least $500,000 in estimated ER expenditures for Federal-aid highways

before a State struck by a disaster will be considered eligible for ER

funding is viewed as a reasonable threshold and will be retained.

The commenter proposed to amend Sec. 668.109(a) to read as follows:

(a) the eligibility of all work is contingent upon approval by

the Federal Highway Administrator of an application for ER in

accordance with the following: (1) prior FHWA approval or

authorization is not required for emergency repairs and related

preliminary engineering (PE), right of way and construction

engineering (CE), and (2) permanent repairs or restoration including

PE, right of way and CE must have prior FHWA program approval and

authorization unless these activities are carried out in conjunction

with emergency repairs.

Although, there is no requirement for prior FHWA approval for

emergency repairs, the emergency repair projects including preliminary

engineering and right-of-way must be included along with the permanent

repair in an approved program of projects according to the existing

regulation. This requirement satisfies the planning process

requirements of 23 U.S.C. 135 and serves the purpose of keeping an

inventory of projects funded with ER funds for subsequent reimbursement

of the costs.

Further, the commenter's proposal is more restrictive than the

existing regulation. If adopted, prior FHWA approval would be required

for preliminary engineering associated with permanent repairs. The

existing regulation does not require prior FHWA approval for

preliminary engineering regardless of whether it is associated with

permanent repair or emergency repair. Thus, the FHWA has decided not to

adopt the proposed amendment.

The commenter proposed to add a new paragraph to Sec. 668.109(b)

making costs incurred by the State to conduct preliminary field surveys

on Federal-aid highways under local jurisdiction eligible for ER

reimbursement. As noted previously, it is expected that State and local

highway agencies will assume some costs in responding to a disaster.

The FHWA believes that it is not unreasonable to expect the State to

fund costs associated with preliminary damage surveys necessary for

managing its response to a disaster. Accordingly, the FHWA is not

making this activity eligible for reimbursement.

The commenter proposed to remove the provision in

Sec. 668.109(c)(4) which does not allow ER funds to participate in

maintenance of detours. In general, the FHWA does not agree with this

proposal. Routine maintenance of a detour similar to routine

maintenance of a highway, is the responsibility of the State. Plowing

snow, mowing roadsides, maintaining drainage and normal replacement of

pre-existing permanent roadway signs, are examples of routine

maintenance activities that the State should perform on the detour

facility or detour route without ER funding assistance.

[[Page 67211]]

However, the FHWA is agreeable to the use of ER funds to perform

repairs to the roadway surface of the detour during the time the detour

is in use. For example, an interstate route is damaged and closed by a

disaster, and the interstate traffic is detoured to a parallel State

route. The State route may not have an adequate pavement structure to

handle the added traffic, and because of the need to immediately

provide traffic service, there is no time to overlay the State route

before the interstate traffic is detoured to it. The roadway surface of

the detour may begin to suffer failures that require quick repairs, so

that the detour can continue to provide reasonable traffic service.

These repairs are eligible for ER funding.

As previously discussed in the preamble, Sec. 668.109(c)(2) is

amended to allow ER funds to participate in the repair of surface

damage to a designated detour. This may include surface repairs while

the detour is in use as well as those repairs needed to restore the

surface to its predisaster condition after traffic has been removed

from the detour.

In addition, Sec. 668.109(c)(4) is amended to clarify that the

prohibition against use of ER funds for maintenance of detours is

limited to routine maintenance activities not related to the increased

traffic volumes.

The commenter proposed to amend Sec. 668.111(c)(1) on application

procedures to indicate that a copy of the Presidential declaration

itself is an acceptable option. The President's declaration is related

to disaster relief under authority of P.L. 93-288, and is in response

to a request from the Governor. The proclamation by the Governor as

required in title 23 is an entirely separate official action from the

declaration by the President of the United States. The FHWA agrees with

this revision and the section is amended to read as follows:

``A copy of the Governor's proclamation or request for

Presidential declaration or a Presidential declaration.''

The commenter proposed to amend Sec. 668.113(b) to add, for

clarification, a cross-reference to FHWA's Environmental Impact and

Related Procedures regulation, 23 CFR part 771, where there is a

provision stating that emergency repair work is considered a

categorical exclusion and normally does not require further approval

under the National Environmental Policy Act. The FHWA agrees that such

a cross reference would be useful and a new provision is being added to

Sec. 668.113(b) to read as follows: ``Emergency repair work meets the

criteria for categorical exclusions pursuant to 23 CFR 771.117 and

normally does not require any further National Environmental Policy Act

(NEPA) approvals.''

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this action is not a significant

regulatory action within the meaning of Executive Order 12866 or

significant within the meaning of the Department of Transportation

regulatory policies and procedures. It is anticipated that the economic

impact of this rulemaking will be minimal. These changes will not

adversely affect, in a material way, any sector of the economy. In

addition, these changes will not interfere with any action taken or

planned by another agency and will not materially alter the budgetary

impact of any entitlements, grants, user fees, or loan programs. This

rulemaking merely amends current regulations implementing the emergency

relief program to incorporate changes made to this program by Congress

in the ISTEA. It is not anticipated that these changes will affect the

total Federal funding available under the ER program. Consequently, a

full regulatory evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-

612), the FHWA has evaluated the effects of this rule on small

entities. Based on the evaluation, the FHWA hereby certifies that this

action will not have a significant economic impact on a substantial

number of small entities. These amendments will only clarify and

simplify procedures used for providing emergency relief assistance to

States in accordance with the existing laws, regulations, and guidance.

The ER funds received by the States will not be significantly affected

by these proposed amendments. States are not included in the definition

of ``small entity'' set forth in 5 U.S.C. 601. Therefore, this action

will not have a significant economic impact on a substantial number of

small entities for the purposes of the Regulatory Flexibility Act.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this action does not have sufficient federalism implications to

warrant the preparation of a federalism assessment. These amendments

will not preempt any State law or State regulation, and no additional

costs or burdens will be imposed on the States thereby. In addition,

this rule will not affect the States' ability to discharge traditional

State governmental functions.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.205,

Highway Planning and Construction. The regulations implementing

Executive Order 12372 regarding intergovernmental consultation on

Federal programs and activities apply to this program.

Paperwork Reduction Act

This action does not contain a collection of information

requirement for the purposes of the Paperwork Reduction Act of 1995, 44

U.S.C. 3501-3500.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has

determined that this action would not have any effect on the quality of

the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN number contained in the

heading of this document can be used to cross reference this action

with the Unified Agenda.

List of Subjects in 23 CFR 668

Emergency Relief Program, Grant programs--transportation, Highways

and roads.

Issued on: December 12, 1996.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA is amending title 23,

Code of Federal Regulations, part 668 as set forth below.

PART 668--EMERGENCY RELIEF PROGRAM

1. The authority citation for part 668 is revised to read as set

forth below and all other authority citations which appear throughout

part 668 are removed:

Authority: 23 U.S.C. 101, 120(e), 125 and 315; 49 CFR 1.48(b).

[[Page 67212]]

Subpart A--Procedures for Federal-Aid Highways

Sec. 668.101 [Amended]

2. In Sec. 668.101, the second sentence is amended by removing the

words ``Federal roads not on the Federal-aid system'' and adding in

their place the words ``Federal roads that are not part of the Federal-

aid highways''.

Sec. 668.103 [Amended]

3. Section 668.103 is amended by removing the paragraph

designations (a) through (i) from the definitions; in the definition

for ``Applicant'' by removing the words ``Federal-aid highway system''

and adding in their place the words ``Federal-aid highways''.

Sec. 668.105 [Amended]

4. In Sec. 668.105, the last sentence of paragraph (e) is amended

by adding the words ``or by a toll authority for repair of the highway

facility'' after the words ``political subdivision.''

Sec. 668.107 [Amended]

5. Section 668.107, is amended in paragraph (a) by removing the

words ``within 90 days'' and adding in their place the words ``within

180 days'' and in paragraph (b) by removing the figure ``$5 million''

and inserting in its place the figure ``$20 million''.

6. Section 668.109, is amended in paragraph (b)(3) by replacing the

misspelled word ``Actural'' with the word ``Actual'; in paragraph

(b)(5) by removing the word ``and'' after the semicolon; by replacing

the period at the end of paragraph (b)(6) with a semicolon; by adding

paragraphs (b)(7), (b)(8), and (b)(9); by revising paragraphs (c)(1),

(c)(2), (c)(4), (c)(6), and (c)(7); and by adding paragraph (c)(9) to

read as follows:

Sec. 668.109 Eligibility.

* * * * *

(b) * * *

(7) Temporary work to maintain essential traffic, such as raising

roadway grade during a period of flooding by placing fill and temporary

surface material;

(8) Raising the grades of critical Federal-aid highways faced with

long-term loss of use due to basin flooding as defined by an

unprecedented rise in basin water level both in magnitude and time

frame; and

(9) Repair of toll facilities when the provisions of 23 U.S.C. 129

are met. If a toll facility does not have an executed toll agreement

with the FHWA at the time of the disaster, a toll agreement may be

executed after the disaster to qualify for that disaster.

(c) ER funds may not participate in:

(1) Heavy maintenance such as repair of minor damages consisting

primarily of eroded shoulders, filled ditches and culverts, pavement

settlement, mud and debris deposits off the traveled way, slope

sloughing, slides, and slip-outs in cut or fill slopes. In order to

simplify the inspection and estimating process, heavy maintenance may

be defined using dollar guidelines developed by the States and

Divisions with Regional concurrence;

(2) Repair of surface damage caused by traffic whether or not the

damage was aggravated by saturated subgrade or inundation, except ER

funds may participate in:

(i) Repair of surface damage caused by traffic making repairs to

Federal-aid highways;

(ii) Repair of surface damage to designated detours (which may lie

on both Federal-aid and non-Federal-aid routes) caused by traffic that

has been detoured from a damaged Federal-aid highway; and

(iii) Repair of surface damage to Federal-aid highways caused by

vehicles making necessary repairs to other damaged non-highway

transportation facilities, ie; railroads, airports, ports, etc.;

* * * * *

(4) Routine maintenance of detour routes, not related to the

increased traffic volumes, such as mowing, maintaining drainage,

pavement signing, snow plowing, etc.

* * * * *

(6) Repair or reconstruction of facilities affected by long-term,

pre-existing conditions or predictable developing situations, such as,

gradual, long-term rises in water levels in basins or slow moving

slides, except for raising grades as noted in Sec. 668.109(b)(8).

(7) Permanent repair or replacement of deficient bridges scheduled

for replacement with other funds. A project is considered scheduled if

the construction phase is included in the FHWA approved Statewide

Transportation Improvement Program (STIP);

(8) * * *

(9) Reimbursing loss of toll revenue.

* * * * *

Sec. 668.111 [Amended]

7. In Sec. 668.111, paragraph (b)(2) is amended by removing the

words ``receipt of'', and paragraph (c)(1) is revised to read as

follows:

Sec. 668.111 Application Procedures.

* * * * *

(c) * * *

(1) A copy of the Governor's proclamation, request for a

Presidential declaration, or a Presidential declaration; and

* * * * *

8. In Sec. 668.113, paragraph (a) is amended by revising the first

and second sentences, paragraph (b)(1) is revised, and paragraph (b)(3)

is added to read as follows:

Sec. 668.113 Program and project procedures.

(a) Immediately after approval of an application, the FHWA Division

Administrator will notify the applicant to proceed with preparation of

a program which defines the work needed to restore or replace the

damaged facilities. It should be submitted to the FHWA Division

Administrator within 3 months of receipt of this notification. * * *.

(b) Project Procedures. (1) Projects for permanent repairs shall be

processed in accordance with regular Federal-aid procedures, except in

those cases where a regular Federal-aid project (in a State) similar to

the ER project would be handled under the certification acceptance

procedures found in 23 U.S.C. 117 or the project oversight exceptions

found in 23. U.S.C. 106, the ER project can be handled under these

alternate procedures subject to the following two conditions:

(i) Any betterment to be incorporated into the project and for

which ER funding is requested must receive prior FHWA approval; and

(ii) The FHWA reserves the right to conduct final inspections on ER

projects as deemed appropriate.

(2) * * *

(3) Emergency repair meets the criteria for categorical exclusions

pursuant to 23 CFR 771.117 and normally does not require any further

National Environmental Policy Act (NEPA) approvals.

[FR Doc. 96-32384 Filed 12-19-96; 8:45 am]

BILLING CODE 4910-22-P