[Federal Register Volume 60, Number 218 (Monday, November 13, 1995)]
[Proposed Rules]
[Pages 56962-56964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27502]



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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: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FHWA proposes to amend its regulation on the emergency 
relief (ER) program in order to incorporate changes made by the 
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). The 
time period in which the Federal share payable for certain eligible 
emergency repairs is 100 percent would be extended from 90 days to 180 
days; 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 would be increased from $5 million to $20 
million; and the term ``Federal-aid highway systems'' would 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 
would be incorporated into the regulation.

DATES: Written comments are due on or before January 12, 1996. Comments 
received after that date will be considered to the extent practicable.

ADDRESSES: All written, signed comments should refer to the docket 
number that appears at the top of this document and should be submitted 
to Room 4232, HCC-10, 400 Seventh Street, SW., Washington, D.C. 20590. 
All comments and suggestions received will be available for examination 
at the above address between 8:30 a.m. and 3:30 p.m., e.t., Monday 
through Friday, except Federal holidays. Those desiring notification of 
receipt of comments must include a self-addressed, stamped 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.

SUPPLEMENTARY INFORMATION:

Background

    The current FHWA regulations implementing the emergency relief 
program are found primarily in 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. The FHWA intends to 
amend these regulations in the following manner and for the reasons 
indicated below.
    In subpart A, the terms ``Federal-aid system'' and ``Federal-aid 
highway system'' would 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.''
    In section 668.101, the second sentence would be amended by 
replacing ``Federal roads not on the Federal-aid system'' with ``roads 
on Federal lands.'' This modification reflects the change in 
terminology used to describe highways eligible for Federal assistance 
and clarifies the cross reference to emergency relief funding for roads 
on Federal lands which is contained in subpart B of part 668.
    Section 668.105(e) would be amended by adding the phrase ``or by a 
toll authority for repair of the highway facility'' after the words 
``political subdivision'' in the last sentence. This amendment would 
require that an ER project receive a credit for that portion of 
insurance proceeds recovered by a toll authority that are attributable 
to the cost of capital improvements.
    In section 668.107, the last sentence in paragraph (a) would 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 would be made to conform section 668.107(a) to 
23 U.S.C 120(e) (as amended by section 1022 of the ISTEA).
    In section 668.107, the second sentence of paragraph (b) would be 
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 would parallel an 
amendment made to 23 U.S.C. 125(b)(2) by section 1022(b) of the ISTEA.
    Section 668.109 would be amended to expand and clarify the eligible 
uses for ER funds based on recent experiences in administering the ER 
program. ER funds would be eligible to participate in:
    1. Repair of traffic damage to roadway surfaces, including those on 
designated detours, attributable to emergency relief work.
    2. Repair of damage to the surface of Federal-aid highways caused 
by traffic making necessary repairs to other transportation facilities 
(for example, trucks hauling materials to repair a damaged railroad 
facility).
    3. Raising of roadway grades temporarily to maintain essential 
traffic service during flooding.
    4. Raising grades of critical Federal-aid highways faced with long-
term loss of use due to an unprecedented rising in basin water level.
    5. Repair of toll facilities when the provisions of 23 U.S.C. 129 
are met.
    Section 668.109 (c)(1) would be amended to clarify the extent to 
which certain activities listed under heavy maintenance are eligible 
for ER participation. The amendment would amend the policy that slope 
damage that does not extend into the travelled way is not eligible for 
ER participation. It is FHWA's current policy to consider repair of 
significant slip-outs of cut or fill slopes, even if the slip-outs do 
not extend into the travelled way, as an activity potentially eligible 
for ER funding.
    Section 668.109 (c)(2) would be amended to cross-reference the 
newly added Section 668.109(b)(7) which discusses the extent to which 
ER funding can participate in the repair of damage to roadway surfaces 
caused by traffic.
    Section 668.109 (c)(6) would be amended to cross-reference the 
newly added section 668.109(b)(9) which discusses the extent to which 
ER funding can participate in raising grades of Federal-aid highways 
due to an unprecedented rise in basin water levels.
    Section 668.109(c)(7) would be amended to redefine the term 
``scheduled.'' As currently defined, the term 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 

[[Page 56963]]
result, State now is required to develop a Statewide transportation 
improvement program which is to be submitted to the FHWA for approval. 
The existing definition of ``scheduled'' also refers to the current or 
next fiscal year's Highway Bridge Replacement and Rehabilitation 
Program or to a determination if contract plans are prepared. To update 
and simplify the definition of ``scheduled,'' the proposed definition 
would refer only to the approved Statewide transportation improvement 
program.
    A new paragraph (c)(10) would be added to Section 668.109 to make 
clear that the loss of toll revenue is not eligible for reimbursement.
    Section 668.113(a) would be 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 
section 668.113 and therefore cross-reference to 23 CFR part 630 is no 
longer needed.
    Section 668.113(b)(1) would 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 can 
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.
    A few minor editorial changes in sections 668.109(b)(3) and 
668.11(b)(2) would be made for clarity.

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 Department of Transportation 
regulatory policies and procedures. It is anticipated that the economic 
impact of this rulemaking will be minimal. These proposed 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 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 will not have a significant economic impact on a substantial 
number of small entities. These amendments would 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 would 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 proposed 
amendments would not preempt any State law or State regulation, and no 
additional costs or burdens would be imposed on the States thereby. In 
addition, this 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 action does not contain a collection of information 
requirement for the purpose of the Paperwork Reduction Act of 1980, 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 Part 668

    Disaster assistance, Grant programs-transportation, Highways and 
roads, Reporting and recordkeeping requirements.

    Issued on: October 23, 1995.
Rodney E. Slater,
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 is added to read as set 
forth below and the authority citations for subparts A and B are 
removed:

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

[[Page 56964]]


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 stead the words ``roads on Federal lands''.


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 adding in its place the figure ``$20 million''.
    6. Section 668.109, is amended in paragraph (b)(3) by revising the 
misspelled word ``Actural'' to read ``Actual''; in paragraph (b)(5) by 
removing the word ``and'' after the semicolon; by removing the period 
at the end of paragraph (b)(6) and adding a semicolon in its place; by 
adding paragraphs (b)(7), (b)(8), (b)(9), and (b)(10); by republishing 
the introductory text of paragraph (c); by revising paragraphs (c)(1), 
(c)(2), (c)(6), and (c)(7); by removing the period at the end of 
paragraph (c)(8) and adding ``; and'' in its place; and by adding 
paragraph (c)(9) to read as follows:


Sec. 668.109  Eligibility.

* * * * *
    (b) * * *
    (7) Repair of traffic damage to roadway surfaces, including those 
on designated detours, caused by the movement of traffic during or 
following the incident period attributable to emergency relief work; 
and repair of damage to surface of Federal-aid highways caused by 
traffic making necessary repairs to Federal-aid highways as well as 
traffic making repairs to other transportation facilities, i.e., 
railroads, airports, ports, etc.;
    (8) Temporary work to maintain essential traffic, such as, raising 
a roadway grade during a period of flooding by placing fill and 
temporary surface material;
    (9) 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
    (10) 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, 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 for 
traffic damage repair as noted in paragraph (b)(7) of this section;
* * * * *
    (6) Repair or reconstruction of facilities affected by long-term, 
pre-existing conditions or predictable developing situations, such as, 
gradual, longterm rises in water levels in basins or slow moving 
slides;
    (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);
* * * * *
    (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''.
    8. In Sec. 668.113, paragraph (a) is amended by revising the first 
and second sentences, and paragraph (b)(1) is revised 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.
* * * * *
[FR Doc. 95-27502 Filed 11-9-95; 8:45 am]
BILLING CODE 4910-22-P