[Federal Register Volume 63, Number 33 (Thursday, February 19, 1998)]
[Proposed Rules]
[Pages 8377-8379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4172]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 668

[FHWA Docket No. FHWA 97-3105]
RIN 2125-AE27


Emergency Relief (ER) Program--$500,000 Disaster Eligibility 
Threshold

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM); request for 
comments.

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SUMMARY: The FHWA is initiating this rulemaking to evaluate the need to 
revise the FHWA's regulation (23 CFR 668.105(j)) that now provides for 
a $500,000 threshold to distinguish between heavy maintenance or 
routine emergency repair and serious damage. This threshold is used as 
one of the criteria to qualify a disaster under the FHWA's Emergency 
Relief (ER) program for repair of Federal-aid highways. The FHWA is 
publishing this ANPRM to generate discussion and comments on the 
appropriateness of the current threshold value as well as any 
additional options/concepts regarding establishment of a disaster 
eligibility threshold. Once information from this ANPRM has been 
reviewed, if appropriate, specific proposals for revision of the 
threshold will be published in the Federal Register as a Notice of 
Proposed Rulemaking (NPRM).

DATES: Comments must be received on or before April 20, 1998.

ADDRESSES: Signed, written comments should refer to the docket number 
that appears at the top of this document and must 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 10:00 a.m. and 5:00 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, DC 
20590. Office hours are from 7:45 a.m. to 4:15 p.m, e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

1. Purpose of This Rulemaking

    The regulations governing the ER program for repair of Federal-aid 
highways (23 CFR 668, subpart A) were revised in 1987 to establish, for 
the first time, dollar guidelines for consideration of whether a 
disaster would be

[[Page 8378]]

categorized as ``serious `` from the perspective of 23 U.S.C. 125. The 
requirement pertaining to dollar guidelines is contained in 23 CFR 
668.105(j). It states: ``ER program funding is only to be used to 
repair highways which have been seriously damaged and is not intended 
to fund heavy maintenance or routine emergency repair activities which 
should be normally funded as contingency items in the State and local 
road programs. An application for ER funds in the range of $500,000 or 
less must be accompanied by a showing as to why the damage repair 
involved is considered to be beyond the scope of heavy maintenance or 
routine emergency repair. As a general rule, widespread nominal road 
damages in this range would not be considered to be of a significant 
nature justifying approval by the FHWA Administrator for ER funding.''
    For the purposes of this ANPRM, the term disaster referred to 
throughout this document means a natural disaster or catastrophic 
failure. As indicated in the regulation, the ER program is not intended 
to fund heavy maintenance or routine emergency repair activities, which 
should be normally funded as contingency items in the State and local 
road programs. In essence, the regulation says that if a disaster event 
does not require more than $500,000 in ER funding to repair seriously 
damaged highways, it falls under the category of heavy maintenance and, 
therefore, normally does not qualify under the FHWA ER program for 
funding. In exceptional circumstances, such as in the case of 
Territories and in States with limited highway funding resources, a 
disaster with damage in the range of $500,000 or less may be considered 
eligible for ER funding.
    The FHWA is considering modification of the $500,000 threshold for 
the following reasons:
    (1) The current $500,000 threshold, established 10 years ago, needs 
to be routinely reviewed for appropriateness.
    (2) Several FHWA field offices have indicated that the $500,000 
threshold is too low, considering the overall highway program size in 
some States.
    (3) The number of disasters per year has increased considerably in 
the recent past, and as a result, there is a higher demand for ER 
funds, thus placing more financial burden on the already strapped ER 
program.
    The FHWA believes that setting up a higher threshold may eliminate 
funding less ``serious'' disasters which would currently be eligible 
for ER funding. For example, 47 disasters were funded in FY 1996. 
Nearly 20 percent of the funded disasters had an initial estimate under 
$1,000,000. Elevating the disaster threshold to $1,000,000, thus, could 
have eliminated nearly 20 percent of the funded disasters in FY 1996 
from emergency relief funding, representing nearly $5.2 million in 
damage. This $5.2 million, in turn, would have been available for 
disasters which individually resulted in more than $1,000,000 in 
damage.
    The FHWA is initiating this rulemaking process to generate 
discussion and proposals for revising the current regulation pertaining 
to the $500,000 threshold.

2. Rulemaking Process

    This document is first in a series of actions to address the issue 
of the $500,000 threshold established to distinguish heavy maintenance 
from ``serious'' damage. Based upon the comments to this ANPRM, the 
FHWA will consider formulating specific proposals and publishing a 
NPRM. The NPRM would also provide a comment period for additional 
public response to specific proposals. The FHWA now anticipates that a 
final rule may be developed and published in 1998. The following 
options are provided with the intent to generate discussion and 
comments which may help in formulating specific proposals for the NPRM. 
Additional options and concepts are welcome.
    Option 1--Continue to have a single threshold applied to all 
States, but increase the threshold.
    Under this option, the existing threshold would be increased to a 
higher value--for example, $1,000,000. The advantages are:
    (1) The program would better serve as intended--to fund unusually 
heavy expenses of repairing ``serious'' damage from natural disasters 
or catastrophic failures, and to eliminate funding low-cost disasters;
    (2) The overall cost to the ER program would be reduced, as those 
disasters with an initial estimate under $1,000,000 normally would not 
qualify for funding; and
    (3) The administrative costs at all levels would be reduced as time 
involved in disaster surveys, documentation, and processing would be 
reduced.
    A disadvantage is that a higher threshold would place a greater 
funding burden on the States with smaller highway programs. They may be 
adversely affected as resources may not be readily available to respond 
to disasters under the minimum $1,000,000 disaster eligibility 
threshold. Additionally, the application of the same threshold value to 
all States would be administratively simple; however, it does not 
equitably reflect the financial impact of a disaster based on the size 
of a State's program.
    Option 2--Formulate more than one minimum disaster eligibility 
threshold, using a tiered approach based on the size of a State's 
highway program.
    Under this option the States would be grouped into tiers based on 
the size of their Federal-aid program--i.e, Federal-aid apportionments 
received in the prior fiscal year. A minimum disaster eligibility 
threshold would be formulated for each tier beginning from a base 
threshold. This concept is illustrated using a three tier approach in 
the following example:
    Tier 1 would be those States that received Federal-aid highway 
apportionments under $100 million for the previous fiscal year. Tier 1 
States would be subject to a minimum threshold of $500,000;
    Tier 2 would be those States that received Federal-aid highway 
apportionments of at least $100 million and not exceeding $500 million 
for the previous fiscal year. Tier 2 States would use a minimum 
threshold of $1,000,000; and
    Tier 3 would be those States which received Federal-aid highway 
apportionments over $500 million for the previous fiscal year. Tier 3 
States would use a minimum threshold of $2,000,000.
    Based on the FY 1997 Federal-aid highway apportionments, the number 
of States including the District of Columbia and Puerto Rico, in each 
tier in the above illustration would be as follows: Tier 1 States--7; 
Tier 2 States--33; and Tier 3 States--12. Other scenarios, as 
appropriate may be developed.
    The advantages are:
    (1) This approach would not place a disproportionate burden on 
States with smaller highway programs; rather it treats States more or 
less in an equitable fashion;
    (2) The program would better serve as intended--to fund unusually 
heavy expenses of repairing ``serious'' damage from natural disasters 
or catastrophic failures. New higher thresholds on disaster eligibility 
would eliminate funding low-cost disasters for States with larger 
programs;
    (3) The overall cost to the ER program would be reduced as certain 
disasters might not meet the new disaster eligibility thresholds and 
therefore might not qualify for funding; and
    (4) The administrative costs would be reduced at all levels, as 
time involved

[[Page 8379]]

in disaster surveys, documentation, and processing would be reduced.
    The disadvantages are:
    (1) 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; and
    (2) The FHWA would be required to track States with different 
disaster eligibility thresholds, resulting in more review time and 
paperwork.
    Commenters are invited to present their views on the options 
discussed above. In addition, the FHWA welcomes other suggestions 
concerning the current dollar threshold and appropriate methods to 
update this threshold.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined preliminarily that any action taken 
regarding the disaster eligibility threshold will not be a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of the Department of Transportation's 
regulatory policies and procedures. It is anticipated that the economic 
impact of any action taken in this rulemaking will be minimal. Any 
changes are not anticipated to adversely affect, in a material way, any 
sector of the economy. In addition, any changes are not likely to 
interfere with any action taken or planned by another agency or 
materially alter the budgetary impact of any entitlement, grants, user 
fees, or loan programs.
    The FHWA emphasizes, however, that this document is published to 
generate discussion and comments which may be used in formulating 
specific proposals for the revision of a section of the current 
regulation dealing with disaster eligibility determinations for ER 
funding. 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. In any event, we strongly 
encourage and will actively consider comments on this matter, as well 
as other issues relating to the projected impact of actions 
contemplated in this ANPRM.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA will evaluate the effects of any action proposed on 
small entities. This ANPRM will only generate comments and discussions 
on one of the disaster eligibility criteria used for providing 
emergency relief assistance to States in accordance with the existing 
laws, regulations and guidance. Thus, it would be premature to assess 
the economic impact of any action that might be contemplated. Because 
the States are not included in the definition of ``small entity'' set 
forth in 5 U.S.C. 601, we do not anticipate that any adjustment to the 
disaster eligibility threshold that might be considered would have a 
substantial economic impact on small entities within the meaning of the 
Regulatory Flexibility Act. We encourage commenters to evaluate any 
options addressed here with regard to their potential for impact, 
however, and to formulate their comments accordingly.

Executive Order 12612 (Federalism Assessment)

    Any action that might be proposed in subsequent stages of this 
proceeding will be analyzed in accordance with the principles and 
criteria contained in Executive Order 12612. Given the nature of the 
issues involved in this proceeding, the FHWA anticipates that any 
action contemplated will not have sufficient federalism implications to 
warrant the preparation of a federalism assessment. Nor does the FHWA 
anticipate that any action taken would preempt any State law or State 
regulation or affect the States' ability to discharge traditional State 
governmental functions. We encourage commenters to consider these 
issues, however, as well as matters concerning any costs or burdens 
that might be imposed on the States as a result of actions considered 
here.

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

    Any action that might be contemplated in subsequent phases of this 
proceeding is not likely to involve a collection of information 
requirement for the purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501-3500, or information collection requirements not already 
approved for the ER program. The FHWA, however, will evaluate any 
actions that might be considered in accordance with the terms of the 
Paperwork Reduction Act.

National Environmental Policy Act

    The agency also will analyze any action that might be proposed for 
the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 
4321-4347) to assess whether there would be 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

    Emergency relief program, Grant programs-transportation, Highways 
and roads.

    Authority: 23 U.S.C. 315; 23 U.S.C. 101; 23 U.S.C. 120(e); 23 
U.S.C. 125; 49 CFR 1.48(6).

    Issued on: February 11, 1998.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
[FR Doc. 98-4172 Filed 2-18-98; 8:45 am]
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