Emergency Relief Program

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 668

[FHWA Docket No. FHWA-97-3105]

RIN 2125-AE27

Emergency Relief Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA proposes to amend its regulation on the emergency

relief (ER) program to revise the threshold used in determining

eligibility for a disaster from $500,000 to $700,000. The threshold is

used to distinguish between heavy maintenance or routine emergency

repairs and serious damage eligible under the ER program. An advance

notice of proposed rulemaking (ANPRM) on the disaster eligibility

threshold was published in the Federal Register on February 19, 1998,

seeking comments on the need to revise the threshold and various

options to accomplish this.

In addition, the FHWA proposes to amend the regulation to include

recent clarifying guidance on administering the ER program. The

amendments include clarification of ER funding eligibility for

betterment/replacement facilities, for projects and project features

resulting from the National Environmental Policy Act (NEPA) process,

and for traffic damage caused by response vehicles. In addition,

changes made in the ER application process are included, as well as

minor revisions to guidance for eligible uses of ER funding.

DATES: Written comments are due on or before August 6, 1999. Comments

received after that date will be considered to the extent practicable.

ADDRESSES: Signed written comments should refer to the docket number

that appears at the top of this document and should be submitted to the

Docket Clerk, U.S. DOT Dockets Room PL-401, 400 Seventh Street, SW.,

Washington, D.C 20590-0001. All comments received will be available for

examination at the above address between 10 a.m. and 5 p.m., e.t.,

Monday through Friday, except Federal holidays. Those desiring

notification of receipt of comments must include a self-addressed,

stamped envelope or postcard.

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, D.C.

20590. Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday

through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users may access all comments received by the U.S. DOT

Dockets, Room PL-401, by using the universal resources locator (URL):

http://dms.dot.gov. It is available 24 hours each day, 365 days each

year. Please follow instructions online for more information and help.

An electronic copy of this document may be downloaded using a modem

and suitable communications software from the Government Printing

Office's Electronic Bulletin Board Service at (202) 512-1661. Internet

users may reach the Federal Register's home page at http://

www.nara.gov/fedreg and at the Government Printing Office's databases

at http://www.access.gpo.gov/nara.

[[Page 30264]]

Background

The current FHWA regulations implementing the emergency relief

program are found primarily in 23 CFR 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 caused by natural disasters

or catastrophic failures. For the purposes of this NPRM, the term

disaster referred to throughout this document means a natural disaster

or catastrophic failure. The FHWA proposes to amend these regulations

in the following manner and for reasons indicated below.

In response to the ANPRM published in the Federal Register on

February 19, 1998, 63 FR 8377, the FHWA received comments from a total

of 24 entities. The commenters include 17 State Departments of

Transportation (DOT), 3 county governments, 2 State Associations of

County Engineers, 1 State County Highway Association, and the American

Road and Transportation Builders Association (ARTBA).

The ANPRM solicited comments basically on two options and also

requested commenters suggest additional options and concepts. The two

options were: (1) continue to have a single ER threshold applied to all

States, but increase the threshold to a higher value--for example

$1,000,000; or (2) formulate more than one disaster eligibility

threshold using a tiered approach based on the size of a State's

highway program. Under the second option the States would be grouped

into tiers based on the size of their Federal-aid program--i.e.,

Federal-aid apportionments a State received in the previous fiscal

year. A minimum disaster eligibility threshold would be formulated for

each tier beginning from a base threshold. For example, a $500,000

threshold for Federal-aid highway apportionments under $100 million; a

$1,000,000 threshold for apportionments over $100 million and below

$500 million; and a $2,000,000 threshold for apportionments at or above

$500 million.

Discussion of Comments

Most commenters to the ANPRM are opposed to the revision of the

$500,000 threshold, with only two commenters favoring the proposal to

increase the threshold: one to $1,000,000, and the other to $750,000

adjusted to inflation every five years. The commenters' argument

against revising the existing threshold is that they allege it would

create extreme hardship on local units of government, whose resources

are very limited. Commenters assert that they do not have the

flexibility to shift resources from other areas to cover the cost of

road damage due to a natural disaster. The commenters provided no

explanation or evidence why it was appropriate or feasible for the

Federal government, rather than the State governments, to pay these

costs from its very limited resources.

All commenters, except 4 State DOTs, oppose the tier concept which

involves formulating more than one minimum disaster eligibility

threshold based on the funding size of a State's Federal-aid highway

program. It should be noted that a substantial portion of the ER

program funds in most of the eligible disasters goes to repair damages

on Federal-aid highways owned and administered by the counties and

other local jurisdictions. The tier concept is opposed mainly because

commenting entities indicated that the counties and other local

agencies would not be treated equally from State to State.

Two commenters suggested applying a flat rate percentage to the

State's Federal-aid highway program to come up with a threshold value.

One State DOT recommended that the threshold level be set at 0.4

percent of total Federal-aid apportionments for all States. Another

State DOT stated that, in lieu of a tiered system, the threshold for a

qualifying disaster be set at \1/2\ of 1 percent of the amount

``allocated to a State by Congress.''

One State DOT recommended adjusting the minimum threshold to

$750,000 with an inflationary adjustment every five years based on the

road construction cost index.

ER Threshold

After considering all comments received, the FHWA has decided not

to further pursue the tier option concept and the proposed fixed

percentage concept. Both approaches would have the same adverse impact

on county and local governments. Upon further evaluation, we believe

that it would not be advisable to pursue either the tier option or the

fixed percentage option because the counties and other local agencies

would not be treated equally from State to State. For example, a county

whose Federal-aid highways have sustained $1.5 million of eligible ER

repair costs, but is located in a State where the ER eligibility

threshold is set at $2 million, would not receive any benefits from

FHWA ER program funds. On the other hand, another county with the same

amount of damage, but located in a State with a $1 million threshold,

would be eligible to receive ER assistance. Also, we are concerned that

under either the tier or fixed percentage approach, the States with

larger highway programs could lose some ER funding, as the higher

disaster eligibility threshold in these States might eliminate some

disasters which would have qualified for funding under the current

threshold.

The FHWA believes that a revision of the current threshold is

reasonable and prudent. It should be noted that 23 CFR 668, subpart A,

was revised in 1987 to establish, for the first time, dollar guidelines

for consideration of whether a disaster would be categorized as

``serious `` from the perspective of 23 U.S.C. 125. The $500,000

threshold was established to distinguish between heavy maintenance or

routine emergency repairs and serious damage eligible under the ER

program. This threshold at a minimum, must be elevated to reflect the

change in the current purchasing power of the dollar.

The FHWA, therefore, proposes to use the increase in the composite

index for the Federal-aid highway construction from 1987 to 1997.

Section 668.105(j) would be amended to increase the minimum disaster

eligibility threshold to $700,000. The FHWA would plan to periodically

review the threshold and adjust as appropriate, through future

rulemakings. In exceptional circumstances, such as in the case of

Territories and in States with small highway programs, a disaster under

the $700,000 threshold could be considered eligible for ER funding as

is now the case with damage in the range of $500,000 or slightly less

under the existing ER threshold.

ER Program Administration

In addition, the FHWA proposes to amend the part 668 regulation as

follows to include recent clarifying guidance on administering the ER

program:

Section 668.103 would be amended to include the following

definition for betterments: ``Betterments.--Added protective features,

such as rebuilding of roadways at a higher elevation or the lengthening

of bridges, or changes which modify the function or character of a

highway facility from what existed prior to the disaster or

catastrophic failure, such as additional lanes or added access

control.'' This amendment would clarify betterment guidance since there

has been wide interpretation of the term ``betterments'' for

determining ER funding eligibility. This definition of betterments

would clearly establish the meaning of this term for the purposes of

the FHWA's ER program.

Section 668.103 would also be amended to modify the definition of

emergency repairs by replacing the

[[Page 30265]]

word ``travel'' with the word ``traffic'' to be consistent with other

use of this phrase in title 23 United States Code, and in this

regulation concerning the ER program. This revision would make item (3)

under the definition read ``restoring essential traffic'' instead of

``restoring essential travel.''

Section 668.109(b)(6) would be amended to eliminate from the first

sentence, ``such as relocation, replacement, upgrading or other added

features not existing prior to the disaster.'' This would make this

section consistent with the modified definition of betterments proposed

to be included in Section 668.103. This revision would eliminate

confusion in interpreting the term ``betterments'' for ER funding

eligibility determination and would make it clear that relocation or

replacement of a highway facility is not always a betterment under the

ER program.

Section 668.109(c)(2)(i) would be amended by inserting the term to

any public road'' after the word ``damage'' to further clarify the

meaning of the sentence.

Section 668.109(c)(2)(iii) would be revised to expand the

eligibility of ER funds to repair damages to Federal-aid highways

caused by, not only vehicles making repairs to other transportation

facilities, but also vehicles, such as fire engines or trucks removing

debris, which are responding to a disaster.

Section 668.109(c)(8) would be amended by adding the term

``including snow and ice removal'' after the word ``system.'' This

would clarify that snow and ice removal are part of the other normal

maintenance activities and are not eligible for ER funding.

Section 668.109 (d) would be amended by replacing the phrase

``highway facilities'' with the phrase ``of a highway facility at its

existing location'' in the first sentence after the term

``replacement;'' and by adding the following sentence after the last

sentence: ``Where it is neither practical nor feasible to replace a

damaged highway facility in kind at its existing location, an alternate

facility selected through the National Environmental Policy Act (NEPA)

process, if of comparable function and character to the destroyed

facility, is eligible for ER reimbursement.'' This would further

clarify the guidance on eligibility of replacement highway facilities,

particularly in those special cases where replacement of a damaged

highway is not practical or feasible at its existing location, and an

alternative is developed through the NEPA process.

Section 668.111(b) on application procedures and the need for the

field report would be modified to acknowledge the quick release

process. The ``Quick Release'' process is used to very quickly deliver

ER assistance to large disasters where damage is obvious and evident

and there is an immediate need to make ER funds available to States

within a very short time frame.

Section 668.111(c)(2) would be amended to add the term ``as

appropriate'' after the term ``field report.'' This would allow enough

flexibility in those instances where the quick release process is used

as outlined in the added new section 668.111(b)(3). This would clarify

section 668.111(c)(2) that an ER application need not include a field

report if the application is to be processed under the ``Quick

Release'' method.

Section 668.113(b)(1) would be revised to reflect the current

project procedures. The reference to ``the certification acceptance

procedures found in 23 U.S.C. 117'' would be eliminated because the

method using certification acceptance procedures in administering

Federal-aid projects has been eliminated from Title 23, U.S.C. by

Transportation Equity Act for the 21st Century, TEA-21, P.L. 105-178.

Rulemaking Analysis and Notices

All comments received before the close of business on the comment

closing date indicated above will be considered and will be available

for examination in the docket at the above address. Comments received

after the comment closing date will be filed in the docket and will be

considered to the extent practicable, but the FHWA may issue a final

rule at any time after the close of the comment period. In addition to

the late comments, the FHWA will also continue to file relevant

information in the docket as it becomes available after the comment

closing date, and interested persons should continue to examine the

docket for new material.

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 U.S. Department of

Transportation's regulatory policies and procedures. It is anticipated

that the economic impact of this rulemaking would be minimal. These

proposed changes would not adversely affect, in a material way, any

sector of the economy. In addition, these changes would not interfere

with any action taken or planned by another agency and would not

materially alter the budgetary impact of any entitlements, grants, user

fees, or loan programs. This rulemaking proposes to amend current

regulations implementing the emergency relief program to revise the ER

eligibility threshold established 10 years ago, as well as to

incorporate changes made to clarify the guidance on the ER program. It

is not anticipated that these proposed changes would 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 would not have a significant economic impact on a substantial

number of small entities.

The economic impact on States and local jurisdictions would be

minimal because the increase in threshold value is kept at a minimum

level only to account for inflation based on the increase in the

composite index for Federal-aid highway construction from 1987 to 1997.

These amendments would 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 would not be significantly affected by these proposed

amendments. In any event, States are not included in the definition of

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

action would not have a significant economic impact on a substantial

number of small entities for the purposes of the Regulatory Flexibility

Act.

Unfunded Mandates Reform Act

Under Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub.

L. 104-4), the FHWA must prepare a budgetary impact statement on any

proposal or final rule that includes a Federal mandate that may result

in estimated annual costs to State, local or tribal government of $100

million or more. The Congressional Budget Office has also concluded

that Pub. L. 105-117 would impose no Federal mandates, as defined in

the Unfunded Mandates Reform Act, and would impose no significant costs

on State, local, or tribal government. The FHWA concurs in that

conclusion, and does not intend to impose any duties upon State, local,

or tribal governments beyond those prescribed by Pub. L. 105-117.

[[Page 30266]]

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 proposed

amendments would not preempt any State law or State regulation, and no

significant additional costs or burdens would be imposed on the States

thereby. In addition, this proposed rule would 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 proposed action does not contain a collection of information

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

U.S.C. 3501-3520.

National Environmental Policy Act

The agency has analyzed this proposed 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

Disaster assistance, Emergency Relief Program, Grant programs-

transportation, Highways and roads.

Issued on: May 25, 1999.

Kenneth R. Wykle,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend title

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

PART 668-- EMERGENCY RELIEF PROGRAM

1. The authority citation for part 668 continues to read as

follows:

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

2. Section 668.103 is amended by adding the term ``Betterments'' in

alphabetical order, and by revising paragraph (3) of the term

``Emergency repairs'' to read as follows:

Sec. 668.103 Definitions.

* * * * *

Betterments. Added protective features, such as rebuilding of

roadways at a higher elevation or the lengthening of bridges, or

changes which modify the function or character of a highway facility

from what existed prior to the disaster or catastrophic failure, such

as additional lanes or added access control.

* * * * *

Emergency repairs. * * *

(3) Restoring essential traffic.

* * * * *

3. Section 668.105(j), is amended by removing the figure

``$500,000'' and inserting in its stead the figure ``$700,000''.

4. Section 668.109 is amended by revising paragraphs (b)(6),

(c)(2)(i) and (iii), (c)(8), and (d) to read as follows:

Sec. 668.109 Eligibility.

* * * * *

(b) * * *

(6) Betterments, only where clearly economically justified to

prevent future recurring damage. Economic justification must weigh the

cost of betterment against the risk of eligible recurring damage and

the cost of future repair;

* * * * *

(c) * * *

(2) * * *

(i) Repair of surface damage to any public road caused by traffic

making repairs to Federal-aid highways.

* * * * *

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

vehicles responding to a disaster; provided the surface damage has

occurred during the first 60 days after a disaster occurrence, unless

otherwise approved by the FHWA Division Administrator.

* * * * *

(8) Other normal maintenance and operation functions on the highway

system including snow and ice removal; and

* * * * *

(d) Replacement of a highway facility at its existing location is

appropriate when it is not technically and economically feasible to

repair or restore a seriously damaged element to its predisaster

condition and is limited in ER reimbursement to the cost of a new

facility to current design standards of comparable capacity and

character to the destroyed facility. With respect to a bridge, a

comparable facility is one which meets current geometric and

construction standards for the type and volume of traffic it will carry

during its design life. Where it is neither practical nor feasible to

replace a damaged highway facility in kind at its existing location, an

alternative selected through the National Environmental Policy Act

(NEPA) process, if of comparable function and character to the

destroyed facility, is eligible for ER reimbursement.

* * * * *

5. Section 668.111 is amended by adding paragraph (b)(3); and

revising paragraph (c)(2) to read as follows:

Sec. 668.111 Application procedures.

* * * * *

(b) * * *

(3) For large disasters where extensive damage to Federal-aid

highways is readily evident, the FHWA Administrator may approve an

application under paragraph (d) of this section prior to preparation of

the field report. In these cases, an abbreviated field report,

summarizing eligible repair costs by jurisdiction, is to be prepared

and submitted to FHWA Headquarters after the damage inspections have

been completed.

(c) * * *

(2) A copy of the field report as appropriate.

* * * * *

6. Section 668.113 is amended by revising paragraphs (b)(1) and

(b)(3) to read as follows:

Sec. 668.113 Program and project procedures.

* * * * *

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

processed in accordance with regular Federal-aid procedures. In those

cases where a regular Federal-aid project in a State similar to the ER

project would be handled under the project oversight exceptions found

in title 23 of the United States Code, the ER project can be handled in

a similar fashion 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

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

all ER projects. The Division Administrator has the discretion to

undertake 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

NEPA approvals.

[FR Doc. 99-14290 Filed 6-4-99; 8:45 am]

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