[Federal Register Volume 61, Number 246 (Friday, December 20, 1996)]
[Rules and Regulations]
[Pages 67207-67212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32384]


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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: 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