[Federal Register Volume 64, Number 108 (Monday, June 7, 1999)]
[Proposed Rules]
[Pages 30263-30267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14290]


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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 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

[[Page 30267]]

    (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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