[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Rules and Regulations]
[Pages 19136-19147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07271]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 602

[Docket No. FTA-2013-0004]
RIN 2132-AB13


Emergency Relief Program

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: This action establishes procedures governing the 
implementation of the Federal Transit Administration's (FTA) Public 
Transportation Emergency Relief Program under 49 U.S.C. 5324, as 
authorized by the Moving Ahead for Progress in the 21st Century Act. 
FTA is issuing this interim final rule in order to comply with the 
Disaster Relief Appropriations Act of 2013. FTA will accept comments on 
the interim final rule and will publish a final rule after the comment 
period closes.

DATES: This interim final rule becomes effective on March 29, 2013. 
Comments on this interim final rule are due May 28, 2013. Late-filed 
comments will be considered to the extent practicable. In compliance 
with the Paperwork Reduction Act, FTA is also seeking

[[Page 19137]]

comment on a new information collection. See the Paperwork Reduction 
Act section under Regulatory Analyses and Notices below. Please submit 
all comments relating to new information collection requirements to FTA 
and to the Office of Management and Budget (OMB) at the address listed 
in the ADDRESSES section on or before May 28, 2013. Comments to OMB are 
most useful if submitted within 30 days of publication.

ADDRESSES: Please submit your comments by only one of the following 
methods, identifying your submission by docket number FTA-2013-0004. 
All electronic submissions must be made to the U.S. Government 
electronic site at http://www.regulations.gov.
    (1) Federal eRulemaking Portal: Go to http://www.regulations.gov 
and follow the online instructions for submitting comments.
    (2) Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
    (3) Hand Delivery or Courier: West Building Ground Floor, Room W12-
140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern 
time, Monday through Friday, except Federal holidays.
    (4) Fax: 202-493-2251.
    Comments regarding the proposed information collection should be 
submitted to FTA through one of the preceding methods and a copy should 
also be sent to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725-17th Street NW., Washington, DC 
20503, Attention: FTA Desk Officer.
    Instructions: You must include the agency name (Federal Transit 
Administration) and Docket number (FTA-2013-0004) for this notice at 
the beginning of your comments. Submit two copies of your comments if 
you submit them by mail. For confirmation that FTA received your 
comments, include a self-addressed stamped postcard. Note that all 
comments received will be posted without change to www.regulations.gov 
including any personal information provided and will be available to 
internet users. You may review DOT's complete Privacy Act Statement 
published in the Federal Register on April 11, 2000 (65 FR 19477).
    Docket: For access to the docket to read background documents and 
comments received, go to www.regulations.gov at any time or to the U.S. 
Department of Transportation, 1200 New Jersey Ave SE., Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, Washington, 
DC 20590 between 9:00 a.m. and 5:00 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: For program issues: Adam Schildge, 
Office of Program Management, 1200 New Jersey Ave. SE., Room E44-420, 
Washington, DC 20590, phone: (202) 366-0778, or email, 
[email protected]. For legal issues: Bonnie Graves, Office of Chief 
Counsel, same address, Room E56-306, phone: (202) 366-4011, or email, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Moving Ahead for Progress in the 21st Century Act (MAP-21, Pub. 
L. 112-141) authorized the Public Transportation Emergency Relief 
Program at 49 U.S.C. 5324. The Emergency Relief Program allows FTA to 
make grants for eligible public transportation capital and operating 
costs in the event of a catastrophic event, such as a natural disaster, 
that affects a wide area, as a result of which the Governor of a State 
has declared an emergency and the Secretary of Transportation has 
concurred, or the President has declared a major disaster under the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act 
(Stafford Act, 42 U.S.C. 5121-5207).
    The Disaster Relief Appropriations Act, 2013 (Pub. L. 113-2), 
enacted on January 29, 2013, provides $10.9 billion for FTA's Emergency 
Relief Program solely for recovery, relief and resiliency efforts in 
areas affected by Hurricane Sandy. The law provides that not more than 
$2 billion shall be made available no later than March 30, 2013. On 
February 6, 2013, FTA issued a notice of availability of emergency 
relief funds for the first $2 billion (78 FR 8691). In accordance with 
the statute, the remainder of the appropriated funds will be made 
available only after FTA enters into a Memorandum of Agreement (MOA) 
with the Federal Emergency Management Agency (FEMA) as required by 
section 20017(b) of MAP-21, and FTA issues interim regulations for the 
Emergency Relief Program. FTA entered into an MOA with FEMA on March 4, 
2013 (available at http://www.fta.dot.gov/documents/FTA_FEMA_MOA.pdf). This interim final rule meets the requirement for interim 
regulations.
    Projects funded through the Disaster Relief Appropriations Act of 
2013 are subject to section 904(c) of that Act, which requires 
expenditure of funds within 24 months of grant obligation, unless this 
requirement is waived for this program in accordance with guidance to 
be issued by the Office of Management and Budget. In all cases, 
oversight procedures will be put in place to ensure that projects are 
implemented in accordance with the project schedule.
    This interim final rule applies to FTA's Emergency Relief Program, 
authorized at 49 U.S.C. 5324, and is not limited to Hurricane Sandy 
response. The rule includes a description of eligible projects, the 
criteria FTA will use to identify projects for funding, and additional 
details on how FTA will administer the program. As with FTA's recent 
Federal Register notice of availability of emergency relief funds for 
Hurricane Sandy (78 FR 8691, Feb. 6, 2013), FTA will set priorities 
regarding the type of projects that will most likely receive funding 
for each specific emergency, based on the facts of the emergency and 
the type of relief most needed, as well as the availability of annual 
and supplemental appropriations. FTA seeks public comment on this 
interim final rule.

Authority

    Section 5324(a)(2) of title 49, United States Code, defines an 
``emergency'' as follows:

    The term `emergency' means a natural disaster affecting a wide 
area (such as a flood, hurricane, tidal wave, earthquake, severe 
storm, or landslide) or a catastrophic failure from any external 
cause, as a result of which--
    (A) the Governor of a State has declared an emergency and the 
Secretary has concurred; or
    (B) the President has declared a major disaster under section 
401 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5170).

    Section 5324(b) of title 49, United States Code, authorizes the 
Secretary to make awards for FTA's Emergency Relief (Emergency Relief) 
Program as follows:

    General Authority.--The Secretary may make grants and enter into 
contracts and other agreements (including agreements with 
departments, agencies, and instrumentalities of the Government) 
for--
    (1) capital projects to protect, repair, reconstruct, or replace 
equipment and facilities of a public transportation system operating 
in the United States or on an Indian reservation that the Secretary 
determines is in danger of suffering serious damage, or has suffered 
serious damage, as a result of an emergency; and
    (2) eligible operating costs of public transportation equipment 
and facilities in an area directly affected by an emergency during--

[[Page 19138]]

    (A) the 1-year period beginning on the date of a declaration 
described in subsection (a)(2); or
    (B) if the Secretary determines there is a compelling need, the 
2-year period beginning on the date of a declaration described in 
subsection (a)(2).

    In addition, section 5324(d) provides that a grant awarded under 
section 5324 shall be subject to the terms and conditions the Secretary 
determines are necessary, and made only for expenses that are not 
reimbursed under the Stafford Act. Accordingly, FTA will not fund 
project expenses that FEMA has funded.

Section-by-Section Analysis

Section 602.1 Purpose

    This section states the purpose of the rule, which is to establish 
policy and provide program requirements for the administration of 
emergency relief funds for emergency public transportation services, 
and the protection, replacement, repair or reconstruction of public 
transportation equipment and facilities which have suffered or are in 
danger of suffering serious damage by a natural disaster over a wide 
area or a catastrophic failure from an external cause.

Section 602.3 Applicability

    This section specifies that part 602 applies to entities that 
provide public transportation services and that are impacted by 
emergencies and major disasters.

Section 602.5 Definitions

    This section provides definitions that apply to terms used in part 
602. Some of the definitions are statutory, such as ``emergency,'' 
which is found in 49 U.S.C. 5324, ``major disaster,'' found in the 
Stafford Act, and ``net project cost,'' found in 49 U.S.C. 5302. Other 
definitions, such as ``catastrophic failure,'' ``emergency repairs,'' 
``external cause,'' ``heavy maintenance,'' and ``serious damage'' are 
included in the Federal Highway Administration's (FHWA) emergency 
relief rule (23 CFR part 668). For consistency, FTA has incorporated 
these definitions into the FTA Emergency Relief Program.
    The definition of ``emergency operations'' is consistent with the 
definition in 49 U.S.C. 5324. Eligible emergency operating assistance 
expenses are for operating costs outside the scope of a recipient's 
typical service or operations, and include but are not limited to: 
costs to assist with evacuations prior to an emergency and to assist 
with rescue operations; the net project cost of providing temporary 
public transportation service, such as bus or ferry service around 
inoperable rail lines, or additional service to meet the needs of an 
influx of evacuees; and the net project costs related to 
reestablishing, expanding, or relocating public transportation service 
before, during, or after an emergency or major disaster.
    Section 5324 provides that capital projects to ``protect'' 
equipment and facilities in danger of suffering serious damage are an 
eligible expense. FTA has included two definitions that address these 
types of projects. First, ``emergency protective measures'' are actions 
taken immediately before, during or after an emergency to protect 
public health and safety, and to protect property from immediate damage 
or from further immediate damage. Such actions eliminate or lessen 
immediate threats to public health or safety, or eliminate or lessen 
the immediate threat of significant damage or additional damage to an 
affected recipient's property through measures that are cost effective. 
This definition is consistent with FEMA's description of emergency 
protective measures in 44 CFR 206.225. Some examples of emergency 
protective measures include, but are not limited to: moving rolling 
stock to protect it from damage, for example, to higher ground in order 
to protect it from storm surges; emergency communications; security 
forces; sandbagging; bracing/shoring damaged structures; debris 
removal; dewatering; and removal of health and safety hazards.
    Second, for this rule, we have defined the term ``resilience'' to 
mean a capability to anticipate, prepare for, respond to, and recover 
from significant multi-hazard threats with minimum damage to social 
well-being, the economy, and the environment. This definition of 
``resilience'' is consistent with the definition in the 2010 
Interagency Climate Change Adaptation Task Force Progress Report to the 
President and America's Climate Choices: Adapting to the Impacts of 
Climate Change by the National Academy of Sciences. A ``resiliency 
project'' is a project designed and built to address future 
vulnerabilities to a public transportation facility or system due to 
future recurrence of emergencies or major disasters that are likely to 
occur again in the geographic area in which the public transportation 
system is located; or projected changes in development patterns, 
demographics, or extreme weather or other climate patterns. ``Permanent 
repairs'' are defined as those repairs undertaken following the 
disaster occurrence for the purpose of repairing, replacing or 
reconstructing seriously damaged public transportation system elements, 
including rolling stock, equipment, facilities and infrastructure to a 
state of good repair. For all capital projects, the cost to perform the 
work, whether by in-house or contracted personnel, is an eligible cost. 
FTA seeks public comment on these definitions.

Section 602.7 Policy

    This section describes FTA's policies related to the Emergency 
Relief Program. FTA's first goal in the Emergency Relief Program is to 
assist public transportation agencies in restoring public 
transportation service and in repairing and reconstructing transit 
assets to a state of good repair as expeditiously as possible. FTA has 
not defined the term ``state of good repair'' in this rule. This 
summer, FTA plans to issue interim policy guidance on the definition of 
the term state of good repair, and also plans to issue an advance 
notice of proposed rulemaking for the transit asset management program 
authorized by 49 U.S.C. 5326. In conjunction with repair and 
reconstruction activities, a second goal is to increase the resiliency 
of affected public transportation systems in order to help protect 
those systems from damage due to future emergencies and major 
disasters.
    Grants awarded with section 5324 funds, as well as grants awarded 
under sections 5307 and 5311 for emergency relief purposes, may be made 
only for expenses that are not reimbursed by FEMA under the Stafford 
Act, or by other Federal agencies, or by insurance proceeds. If an 
applicant has already received FEMA or other Federal agency funding or 
insurance proceeds, the applicant may not apply for FTA emergency 
relief funding for the same project expenses. However, partial 
compensation for a loss by such other sources will not preclude FTA 
participation for the part of the loss not compensated. For example, 
insurance proceeds may only cover the value of a vehicle at the time it 
was destroyed, and not the cost to replace that vehicle. Consistent 
with FTA Circular 5010.1D, FTA may participate in the replacement cost 
beyond what the insurance proceeds may cover.
    If FTA makes a grant and the recipient subsequently receives 
compensation from another source, the funds received from the other 
source must be used to reduce FTA's share of the project cost. FTA 
seeks public comment on the aforementioned policies and other policies 
for ensuring emergency relief funds are expended efficiently and 
consistent with the law's purposes.

[[Page 19139]]

    The language in FTA's Emergency Relief Program at 49 U.S.C. 5324 is 
the same as the FHWA's Emergency Relief Program at 23 U.S.C. 125, in 
that assets must have ``suffered serious damage.'' FHWA's Emergency 
Relief Program rule provides that the Emergency Relief Program ``is not 
intended to fund heavy maintenance or routine emergency repair 
activities which should normally be funded as contingency items in the 
State and local road programs.'' 23 CFR 668.105(j). Therefore, FHWA has 
determined that eligible Emergency Relief repair activities in a State 
in the range of $700,000 (Federal share) or more are usually 
significant enough to justify approval of Emergency Relief funds.
    FTA has not included such a provision in this interim final rule, 
but has included a definition of heavy maintenance and Sec.  602.13 
provides that heavy maintenance is not an eligible activity. FTA seeks 
public comment on whether and how, in a final rule, FTA should 
establish a similar policy that sets a minimum monetary damage 
threshold for FTA participation in the cost of repair, reconstruction, 
or replacement activities for public transportation systems after an 
emergency. Similarly, FTA seeks comment on whether there should be a 
minimum monetary cost threshold for emergency protective measures or 
emergency operations. Further, on what basis should FTA establish 
minimum cost thresholds for FTA participation, given that the size of 
public transportation systems and the resources of entities that 
operate them vary? In other words, should such a threshold vary based 
on the size of public transportation systems, as measured by annual 
revenue miles, directional miles, number of vehicles, unlinked 
passenger trips, budget, or some other basis?

Section 602.9 Federal Share

    This section of the interim final rule provides that the Federal 
share for emergency relief project funds made available under 49 U.S.C. 
5324, for both operating and capital projects, shall be for up to 80 
percent of the project cost, unless the Secretary waives the local 
share requirement. This section also provides that when a recipient 
chooses to use funds available to it under 49 U.S.C. 5307 or 5311 for 
emergency projects, the Federal share will be 80 percent for capital 
projects and 50 percent for operating projects, which is consistent 
with the Federal share requirements of those sections. FTA seeks public 
comment on these Federal share requirements.

Section 602.11 Pre-Award Authority

    This section describes the conditions under which FTA will grant 
pre-award authority. The purpose of pre-award authority is to allow 
affected recipients to respond to critical needs in preparation for, or 
in the immediate aftermath of, an emergency or major disaster, and in 
advance of receiving a grant from FTA under the Emergency Relief 
Program. Generally, pre-award authority will be effective beginning on 
the effective date of the declared emergency or major disaster, and 
subject to the appropriation of Emergency Relief Program funds. In 
expected weather events, such as hurricanes, pre-award authority for 
evacuations and activities to protect public transportation vehicles, 
equipment and facilities, shall be effective within a reasonable period 
of time in advance of the event, such as during the period the storm is 
forecast with some certainty to hit the affected area. FTA seeks 
comment on whether the language ``forecast with some certainty to hit 
the affected area'' is specific enough, or if FTA should adopt a policy 
with more specificity. FEMA Policy FP 010-4, May 18, 2012, (pre--
disaster--emergency--declaration--requests--policy--fp010--4[2].pdf) 
provides the conditions under which FEMA will fund pre-disaster 
emergency protective measures. For example, a Federal agency must 
determine or affirm that a potential major disaster is imminent, the 
Governor must take action under State law and direct execution of the 
State emergency plan, and Direct Federal Assistance must be needed to 
meet critical emergency protection requirements before impact that are 
beyond the capability or capacity of the State, tribal or local 
governments; or the appropriate State, tribal, or local governments 
must have issued evacuation orders for three or more areas or for a 
geographical area with a combined population of more than 100,000 
individuals. Adopting text similar to this in the final rule would 
provide affected recipients with some certainty as to when FTA would 
fund emergency protective measures, evacuations, etc.
    Pre-award authority shall be subject to a maximum amount as 
determined by FTA. Except as provided in section 602.15 of this interim 
final rule, all applicable Federal grant requirements must be met for 
the project to remain eligible for Federal funding. As with pre-award 
authority for FTA's other programs, pre-award authority is not a legal 
or implied commitment that the project will be approved for FTA 
assistance or that FTA will obligate Federal funds, and affected 
recipients expend local funds at their own risk. Furthermore, pre-award 
authority is not a legal or implied commitment that all activities 
undertaken by the applicant will be eligible for inclusion in the 
project. In other words, not all activities undertaken by the applicant 
may be eligible for Federal assistance, even if the project is 
otherwise eligible. FTA seeks public comment on the use of pre-award 
authority for the Emergency Relief Program.

Section 602.13 Eligible Activities

    This section describes the eligible activities under 49 U.S.C. 
5324, as well as activities ineligible for emergency relief funding. An 
affected recipient may apply for section 5324 emergency relief funds on 
behalf of itself as well as affected subrecipients.
    Emergency operations, emergency protective measures, emergency 
repairs, permanent repairs and resiliency projects, as those terms are 
defined in section 602.5 of this rule, are eligible for emergency 
relief funding. Affected recipients should repair, replace or 
reconstruct seriously damaged public transportation system elements as 
necessary to restore the elements to a state of good repair taking into 
account current as well as future conditions and risks. For example, 
replace destroyed rolling stock with new rolling stock, replace older 
seriously damaged elements with new ones, incorporate current design 
standards, replace a destroyed facility at a different location when 
replacing at the existing location is not practical or feasible, or 
when doing so will eliminate vulnerabilities to future disasters, 
incorporate additional required features resulting from the 
environmental review process, and incorporate or add protective 
features or design standards in order to protect the equipment or 
facilities from future damage. In other words, FTA does not expect 
affected recipients to replace old, destroyed rolling stock, equipment, 
and elements of facilities with similarly-aged rolling stock, 
equipment, and elements of facilities. Instead, affected recipients 
should replace these destroyed elements with new ones. New rolling 
stock acquired to replace destroyed rolling stock should be fully 
compliant with current safety and other design standards, including the 
Americans with Disabilities Act (ADA), as well as Buy America 
requirements. Facilities damaged by the emergency or disaster that 
require substantial work to bring into a state of good repair should be 
similarly brought up to current design standards, including the ADA. In 
addition, where

[[Page 19140]]

feasible, resiliency projects should be incorporated into replacement 
and repairs such that equipment, facilities and infrastructure will be 
protected from future disasters.
    It is not the intent or purpose of the Emergency Relief Program to 
provide substitute funding for regular capital maintenance that is not 
a result of an emergency or major disaster. Therefore, heavy 
maintenance and projects for which funds were obligated in an FTA grant 
prior to the declared emergency or major disaster are not eligible 
expenses under the Emergency Relief Program. In addition, FTA will not 
fund project costs for which the recipient has received funding through 
FEMA, another Federal agency or through insurance proceeds. In general, 
projects that change the function of the original infrastructure, and 
do not enhance or otherwise improve system resiliency--for example, a 
change from a bus rapid transit system to light rail, or a replacement 
of bus shelters with intermodal facilities, or projects that 
significantly upgrade a maintenance facility--do not qualify for 
Emergency Relief funding. However, formula and other funds available to 
the recipient may be used in conjunction with Emergency Relief Program 
funds to make substantial changes or improvements to an affected 
transit asset during the course of an Emergency Relief project.
    Replacing damaged diesel buses with compressed natural gas or other 
clean fuel buses is eligible under the Emergency Relief Program, but 
any costs associated with new alternative fueling stations or 
maintenance facilities is not eligible for Emergency Relief funds. 
Those associated costs are eligible, however, under FTA's formula 
programs, and recipients and subrecipients may use funds apportioned 
under sections 5307 or 5311 formula funds for those costs. Lost revenue 
as a result of service disruptions is not an eligible expense. Finally, 
project costs associated with the replacement or replenishment of 
stockpiles of materials that are not the property of the affected 
recipient and have not yet been integrated into the public 
transportation system are not eligible. This would include contractor-
owned property on a construction site that has not yet been installed, 
and would be covered by the contractor's insurance company. This is 
distinguished from the cost to replace spare parts and other 
maintenance items necessary for the operation of the system that are 
seriously damaged or destroyed as a result of an emergency, which is an 
eligible expense. FTA seeks public comment on the list of eligible and 
ineligible activities.
    FTA also requests comment on the extent of the benefit-cost 
analysis that is appropriate to carry out in the context of emergency 
repairs, permanent repairs, and resiliency projects. Because the 
benefits of resiliency projects include a reduction in the risk of 
damage from future emergencies, FTA particularly requests comments on 
the extent of risk analysis that should be conducted for resiliency 
projects. Similarly, factoring in the full cost of the loss of the 
function or service provided by critical transit infrastructure can 
affect how benefit-cost analyses should be addressed. For example, 
damage to rail and transit infrastructure can result in additional 
costs to transit riders who would use alternative modes of travel or 
forgo a trip, and result in decreases in business productivity because 
employees cannot get to work. Similarly, the transit system serves to 
help move people and goods before, during and after an emergency, a 
function that is very detrimental to lose and expensive to replace once 
lost. FTA welcomes comment on how these costs should be taken into 
account in a benefit-cost analysis.

Section 602.15 Grant Requirements

    Section 5324(d) of title 49, United States Code provides that a 
grant awarded under sections 5324, 5307 and 5311 that is made to 
address an emergency shall be subject to the terms and conditions the 
Secretary determines are necessary. In general, projects will be 
subject to the requirements of chapter 53 of title 49, United States 
Code, as well as cross-cutting requirements, including but not limited 
to those outlined in FTA's Master Agreement.
    This section provides information as to when FTA may determine the 
inapplicability of Federal requirements in order to expedite 
restoration of service through delivery of Emergency Relief Program 
funds. FTA will determine the terms and conditions of Emergency Relief 
grants based on the circumstances of a specific emergency or major 
disaster for which funding is available under the Emergency Relief 
Program.
    FTA may determine the inapplicability of requirements associated 
with public transportation programs as necessary and appropriate for 
emergency repairs, permanent repairs, and emergency operating expenses 
that are incurred within 45 days of the emergency or major disaster, or 
longer as determined by FTA. This 45-day period is consistent with 
FTA's charter rule at 49 CFR 604.2(f), which provides that the charter 
rule does not apply to a recipient for actions directly responding to 
an emergency or major disaster. If FTA determines that any requirement 
does not apply, this determination shall apply to all eligible 
activities undertaken with funds authorized under 49 U.S.C. 5324 within 
the 45-day period, as well as funds authorized under 49 U.S.C. 5307 and 
5311 and used for eligible emergency relief activities.
    In the event an affected recipient or subrecipient finds that FTA 
requirements would limit the recipient's or subrecipient's ability to 
respond to an emergency or major disaster, the affected recipient or 
subrecipient may request that applicable requirements be waived in 
accordance with the emergency relief docket process as outlined below. 
Affected recipients and subrecipients should never assume that a waiver 
will be granted.
    Under 49 CFR part 601, subpart D, FTA establishes an emergency 
relief docket each calendar year. The purpose of the docket is to allow 
recipients affected by national or regional emergencies to request 
relief from FTA administrative requirements set forth in FTA policy 
statements, circulars, guidance documents, and regulations. As stated 
above, 49 U.S.C. 5324(d) provides that a grant awarded under section 
5324 or under section 5307 or 5311 to address an emergency shall be 
subject to the terms and conditions the Secretary determines are 
necessary. Effective with calendar year 2013, recipients affected by an 
emergency or major disaster may request waivers of chapter 53 
requirements when the requirement(s) will limit a recipient's or 
subrecipient's ability to respond to an emergency or major disaster. 
Recipients must follow the procedures as set forth in 49 CFR part 601, 
subpart D when requesting a waiver of statutory or administrative 
requirements. FTA seeks public comment on the types of requirements 
that FTA should prospectively determine inapplicable or waived in the 
event of an emergency or major disaster.
    Executive Order 11988, Floodplain Management, requires Federal 
agencies to avoid to the extent possible the long and short-term 
adverse impacts associated with the occupancy and modification of 
floodplains and to avoid direct and indirect support of floodplain 
development wherever there is a practicable alternative. The Executive 
Order provides an eight-step process that agencies should carry out as 
part of their decision-making on projects that have potential impacts 
to or within the floodplain. Executive Order 11988 is

[[Page 19141]]

further implemented by DOT Order 5650.2, Floodplain Management and 
Protection.
    Since this rule addresses natural disasters, including weather 
events that can produce serious flooding, FTA has included a provision 
in this rule that addresses Executive Order 11988. Specifically, 
recipients shall not use grant funds for any activity in an area 
delineated as a `special flood hazard area' or equivalent, as labeled 
in the Federal Emergency Management Administration's (FEMA) most recent 
and current data source, unless, prior to seeking FTA funding for such 
action, the recipient designs or modifies its actions in order to 
minimize potential harm to or within the floodplain, in accordance with 
Executive Order 11988. To guide decision making, recipients shall use 
the ``best available information'' as identified by FEMA, which 
includes advisory data (such as Advisory Base Flood Elevations), 
preliminary and final Flood Insurance Rate Maps (FIRMs), and Flood 
Insurance Studies (FISs). If FEMA data is mutually determined by FTA 
and the recipient to be unavailable or insufficiently detailed, other 
Federal, State, or local data may be used as the ``best available 
information'' in accordance with Executive Order 11988.
    The final determination on ``best available information'' shall be 
used to establish such reconstruction requirements as a project's 
minimum elevation. In certain situations, notably where a project or 
activity is located within a special flood hazard area, use of FTA 
funds will require that a project and activity shall be designed and 
constructed in accordance with specific and additional reconstruction 
terms, such as elevated minimums for project elevations (e.g. best 
available data plus one foot in elevation), as determined necessary to 
adequately enhance long-term structural resilience, and mitigate 
against the reoccurrence of flood-related damages. Additionally, in 
scenarios where higher minimum elevations are required by either State 
or locally adopted building codes or standards, the higher of the 
competing minimums would apply. This standard does not necessarily mean 
that transit agencies will be required to move existing facilities to a 
higher elevation; however, in order to minimize potential harm within 
the floodplain in accordance with Executive Order 11988, recipients 
should consider updated design features or added protective features 
(resiliency projects) in order to reduce the risk of damage from future 
disasters. A base flood elevation from an interim or preliminary or 
non-FEMA source cannot be used if it is lower than the current FIRM. 
Recipients shall also consider the best available data on sea-level 
rise, storm surge, scouring and erosion before rebuilding. In all 
instances, FTA retains the authority to award funds in direct alignment 
with recipient acceptance of and continued compliance with Federal 
determinations regarding increased standards for floodplain management. 
FTA seeks public comment on this provision.

Section 602.17 Application Procedures

    Applications for Emergency Relief funding must include a detailed 
damage assessment report to support the request for assistance for 
capital projects. Typically, a damage assessment involves on-the-ground 
visits to the damaged sites to verify the extent of the damage and to 
estimate the cost of repairs. The damage assessment report should be 
coordinated with FEMA, if appropriate, to avoid duplication of effort. 
FTA seeks comment on how to maximize harmonization of FTA and FEMA 
requirements for damage assessment reports. The damage assessment 
report should include, by political subdivision or other generally 
recognized administrative or geographic boundaries, a description of 
the types and extent of damage to public transportation systems and a 
preliminary estimate of cost of restoration, replacement, or 
reconstruction for seriously damaged systems in each jurisdiction. 
Pictures showing the kinds and extent of damage and sketch maps 
detailing the damaged areas should be included, as appropriate, in the 
damage assessment report. In addition, the damage assessment report 
should include recommendations for resiliency projects to protect 
equipment and facilities from future emergencies and disasters.
    FTA is requesting public comment regarding whether, with respect to 
requests for Emergency Relief funding for permanent repairs or 
resiliency projects relating to damaged or destroyed facilities, it is 
appropriate to incorporate requirements of Section 1315(b) of MAP-21 
such that the damage assessment report should include an evaluation of 
whether such damaged or destroyed facilities have repeatedly required 
repair or reconstruction in the past. If so, FTA seeks comment as to 
whether the applicant should evaluate whether there are reasonable 
alternatives that could reduce the need for Federal funds to be 
expended on such repair or reconstruction activities in the future, 
better protect public safety, health and the environment, and/or meet 
transportation needs as described in relevant and applicable Federal, 
State, local and tribal plans.
    Generally, a damage assessment report should be completed within 
six weeks of the emergency or major disaster. For large disasters where 
extensive damage to public transportation systems is readily evident, 
the appropriate FTA Regional Administrator may approve a grant 
application under section 602.17(f) prior to submission of the damage 
assessment report. In these cases, the applicant shall prepare and 
submit to the appropriate FTA Regional Administrator an abbreviated or 
preliminary damage assessment report, summarizing eligible repair costs 
by jurisdiction, after the damage inspections have been completed.
    The applicant shall include the damage assessment report as an 
appendix to the grant application. In addition to the report, an 
applicant shall submit a copy of the Governor's declaration or a 
Presidential declaration; a list of projects which describes emergency 
operations, emergency protective measures, and emergency repairs 
completed as well as permanent work needed to repair or replace the 
damaged or destroyed rolling stock, equipment, facilities, and 
infrastructure; and supporting documentation showing other sources of 
funding available, including insurance policies, agreements with other 
Federal agencies, and any other source of funds available to address 
the damage resulting from the emergency or major disaster.
    Applications for emergency operating expenses must include the 
dates, hours, number of vehicles, and total fare revenues received (if 
any) for the emergency service. Only net project costs may be 
reimbursed.
    Applicants that apply for and/or receive funding from another 
Federal agency, including FEMA, for operating expenses and also seek 
funding from FTA for operating costs must include a copy of the 
agreement with the other Federal agency, including the scope of the 
agreement, the amount funded, and the dates the other Federal agency 
funded operating costs, as well as the scope of service and dates for 
which the applicant is seeking FTA funding. Applicants that apply for 
and/or receive funding from another Federal agency, including FEMA, for 
emergency or permanent repairs or emergency protective measures and 
also seek funding from FTA for emergency or permanent repairs or 
emergency protective measures must include a copy of the agreement with 
the other Federal agency, including the scope of

[[Page 19142]]

the agreement, the amount funded, and a list of projects included in 
the other Federal agency's application.
    Each applicant is responsible for preparing and submitting a grant 
application, and the appropriate FTA regional office may provide 
technical assistance to the applicant in preparing a list of projects 
for the grant application. This work may involve joint site inspections 
to view damage and reach tentative agreement on the type of permanent 
corrective work the applicant will undertake. The data collected must 
be sufficient to make a determination of eligibility of the proposed 
work. The FTA Regional Administrator's approval of the grant 
application constitutes a finding of eligibility under 49 U.S.C. 5324. 
FTA seeks public comment on the application procedures.

Rulemaking Analyses and Notices

    All comments received on or 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. A final rule may be 
published at any time after close of the comment period.

Immediate Effective Date

    As required by the Disaster Relief Appropriations Act of 2013, FTA 
is issuing this interim final rule in order to implement the Emergency 
Relief Program and to provide information regarding the application 
procedures for Emergency Relief Program grants in response to Hurricane 
Sandy. This interim final rule is effective immediately. In addition, 
FTA requests comments on the rule, given that its requirements will 
apply to the Emergency Relief Program in general, and not only to grant 
funds disbursed in response to Hurricane Sandy.
    The Administrative Procedure Act (5 U.S.C. 553(d)) requires that a 
rule be published 30 days prior to its effective date unless one of 
three exceptions applies. One of these exceptions is when the agency 
finds good cause for a shorter period. Here, FTA has determined that 
good cause exists for immediate effectiveness of this rule because the 
rule is expected to address the immediate need to repair transit system 
facilities, infrastructure and equipment damaged by Hurricane Sandy. 
Hurricane Sandy affected mid-Atlantic and northeastern states in 
October 2012, and particularly devastated transit operations in New 
Jersey and New York. Through immediate promulgation of the interim 
final rule, many of the much-needed Hurricane Sandy recovery efforts 
can occur in a more expeditious manner. Thus, it is in the public 
interest for this final rule to have an immediate effective date.
    FTA will publish a notice responding to any comments received and, 
if appropriate, will amend provisions of the rule. If FTA subsequently 
establishes criteria or conditions for grants made under the Emergency 
Relief Program that are different from those in this interim final 
rule, the different criteria or conditions will not be applied 
retroactively to applications submitted or grants awarded consistent 
with this interim final rule, unless the change benefits the applicant.

Executive Order 12866 (Regulatory Planning and Review), EO 13563 
(Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    FTA has determined preliminarily that this action is a significant 
regulatory action within the meaning of Executive Order 12866 and is 
significant within the meaning of Department of Transportation 
regulatory policies and procedures because of substantial 
congressional, State and local government, and public interest. Those 
interests include restoring public transportation service as quickly as 
possible after an emergency or major disaster, the receipt of Federal 
financial support for repairing and replacing public transportation 
investments damaged or destroyed by emergencies and major disasters as 
expeditiously as possible, and the receipt of Federal financial support 
for emergency operations before, during and after emergencies and major 
disasters.
    FTA has determined that this is an economically significant rule 
within the meaning in Executive Order 12866 because of the amount of 
funding FTA reasonably expects to distribute as a result of Hurricane 
Sandy. FTA was appropriated $10.9 billion for the Emergency Relief 
Program in response to Hurricane Sandy, and FTA expects to distribute 
more than $100 million to entities impacted by the hurricane in the 
upcoming year. The Obama Administration's budget request included $25 
million for fiscal year 2013 for the Emergency Relief program, and the 
authorization in 49 U.S.C. 5338(f) is for ``such sums as are necessary 
to carry out section 5324.'' Congress did not appropriate any funds for 
the Emergency Relief Program in the 2013 Continuing Appropriations 
Resolution (Pub. L. 112-175). Hurricane Sandy was an extraordinary 
event resulting in historical damage to public transportation systems. 
While it is impossible to predict how much funding Congress might 
appropriate for the Emergency Relief Program for extraordinary events 
such as Hurricane Sandy, in a typical year without an extraordinary 
event such as Hurricane Sandy, FTA does not expect this rule to have an 
economic impact greater than $100 million.
    The purpose of this interim final rule is to provide grant 
application procedures and describe eligible activities as directed by 
statute. The rule itself does not affect the total amount of grant 
funds available to States or local governmental authorities. That 
amount will be specified in annual or supplemental appropriations acts 
of Congress. FTA will distribute funds through the Emergency Relief 
Program consistent with the requirements of this rule to those States 
and local governmental authorities that have experienced emergencies or 
major disasters.
    Through the Emergency Relief Program, FTA will reimburse affected 
recipients for eligible operating and capital costs incurred as a 
result of an emergency or major disaster. MAP-21 generally prescribes 
the criteria and types of projects eligible for emergency relief 
grants, and FTA has exercised limited discretion in this rulemaking to 
implement the statute.
    While complying with the application procedures set forth in this 
rule is a requirement for receiving grant funds, the rule does not 
impose any mandate on States or governmental authorities to submit an 
application. However, should a State or local governmental authority 
choose to submit an application, there are some costs and burdens 
associated with the application process. FTA received emergency 
clearance from OMB under the Paperwork Reduction Act (PRA) for funds 
made available by the Disaster Relief Appropriations Act, and included 
in this notice is a request for comment for the information collection 
required by this rule. Interested persons should consult the Paperwork 
Reduction Act section of this document for further information.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FTA has evaluated the effects of this interim final 
rule on small entities and has determined the interim final rule will 
not have a significant economic impact on a substantial number of small 
entities. Recipients of

[[Page 19143]]

Emergency Relief Program funds are generally States and local 
governmental authorities. The only burden placed upon local governments 
by this rule is the small paperwork burden associated with the 
application process, which is addressed in the Paperwork Reduction Act 
section of this notice and is designed to minimize the paperwork 
burdens of the rule. For this reason, FTA certifies that this action 
will not have a significant economic impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act of 1995

    This interim final rule will not impose unfunded mandates as 
defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 
March 22, 1995, 109 Stat. 48). The Federal share for grants made under 
the Emergency Relief Program is 80 percent, and the Secretary may waive 
all or part of the non-Federal share. This interim final rule will not 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $143.1 million or more in 
any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism)

    This interim final rule has been analyzed in accordance with the 
principles and criteria established by Executive Order 13132, and FTA 
has determined that this interim final rule will not have sufficient 
Federalism implications to warrant the preparation of a Federalism 
assessment. FTA has also determined that this interim final rule will 
not preempt any State law or State regulation or affect the States' 
abilities to discharge traditional State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    The regulations effectuating Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities apply 
to this interim final rule.

Paperwork Reduction Act

    On February 6, 2013, in compliance with the Paperwork Reduction Act 
of 1995 (PRA) (44 U.S.C. 3501 et seq.) and the Office of Management and 
Budget (OMB) implementing regulation at 5 CFR 1320.13, FTA received 
emergency approval from OMB for an Information Collection for funds 
appropriated by the Disaster Relief Appropriations Act (Information 
Collection number 2132-0575). The approval for this information 
collection will expire on August 13, 2013.
    In compliance with the PRA and OMB implementing regulation at 5 CFR 
1320.8(d), FTA is seeking longer-term approval from OMB for Information 
Collection number 2132-0575, for which FTA received emergency approval, 
as abstracted below. The Information Collection includes not only funds 
specific to Hurricane Sandy but for the Emergency Relief Program in its 
entirety. In order to receive emergency relief funds, applicants will 
be required to fill out and submit a grant application. This is the 
same grant application used by FTA recipients for other FTA programs 
and will be submitted electronically through the Transportation 
Electronic Award and Management (TEAM) system. In addition to the grant 
application, applicants will be required to develop a damage assessment 
report. FTA is seeking comment on whether the information collected 
will have practical utility; whether its estimation of the burden of 
the proposed information collection is accurate; whether the burden can 
be minimized through the use of automated collection techniques or 
other forms of information technology; and for ways in which the 
quality, utility, and clarity of the information can be enhanced.
    Type of Review: OMB Clearance. Updated information collection 
request.
    Respondents: In any given year, FTA estimates that as many as 20 
recipients may experience an emergency that is declared by a Governor 
of a State or the President. The PRA estimate was based on a total of 
20 recipients seeking emergency relief funds per year.
    Frequency: Information will be collected periodically whenever an 
applicant applies for emergency relief funding.
    Estimated Total Annual Burden Hours: 3,600. FTA estimates the 
average annual time burden per applicant is 180 hours. This estimate 
includes: (1) 50 hours for preparation of a grant application, 
including any supplemental emergency relief forms (49 CFR 602.17(b)); 
(2) 50 hours per grant recipient to develop a damage assessment report 
(49 CFR 602.17(a)); and 80 hours for project management, including 
submission of Milestone Progress Reports, Federal Financial Reports and 
other required reports.
    Additional documentation detailing FTA's Paperwork Reduction Act 
Information Collection Request, including FTA's Justification 
Statement, may be accessed from OMB's Web site at http://www.reginfo.gov/public/do/PRASearch, Information Collection number 
2132-0575. OMB is required to file comments or make a decision 
concerning the proposed information rule within 60 days after receiving 
the information collection request submission from FTA. FTA will 
summarize and respond to any comments on the proposed information 
collection request from OMB and the public in the preamble to the final 
rule.

National Environmental Policy Act

    The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.), requires Federal agencies to analyze the potential environmental 
effects of their proposed actions either through a Categorical 
Exclusion, an Environmental Assessment or an Environmental Impact 
Statement. This interim final rule is categorically excluded under 
FTA's NEPA implementing procedures at 23 CFR 771.118(c)(4), which 
covers planning and administrative activities which do not involve or 
lead directly to construction, such as the promulgation of rules, 
regulations and directives. FTA has determined that no unusual 
circumstances exist and that this Categorical Exclusion is applicable.

Executive Order 12898 (Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations)

    Executive Order 12898 directs every Federal agency to make 
environmental justice part of its mission by identifying and addressing 
the effects of all programs, policies, and activities on minority 
populations and low-income populations. The DOT's environmental justice 
initiatives accomplish this goal by involving the potentially affected 
public in developing transportation projects that fit harmoniously 
within their communities without sacrificing safety or mobility. FTA 
has developed a program circular addressing environmental justice in 
transit projects, C 4703.1, Environmental Justice Policy Guidance for 
Federal Transit Administration Recipients. The Circular is designed to 
provide a framework to assist recipients as they integrate principles 
of environmental justice into their transit decision-making process. 
The Circular contains recommendations for State DOTs, MPOs and transit 
providers on (1) How to fully engage environmental justice populations 
in the transportation decision-making process; (2) how to determine 
whether environmental justice populations would be subjected to 
disproportionately high and adverse human health or environmental 
effects of a public transportation project, policy, or activity; and 
(3) how to avoid, minimize, or mitigate these effects.

[[Page 19144]]

Executive Order 12630 (Taking of Private Property)

    This action will not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FTA has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. FTA certifies that this interim final rule will not cause an 
environmental risk to health or safety that may disproportionately 
affect children.

Executive Order 13175 (Tribal Consultation)

    FTA has analyzed this action under Executive Order 13175 (Nov. 6, 
2000), and believes that it will not have substantial direct effects on 
one or more Indian tribes; will not impose substantial direct 
compliance costs on Indian tribal governments; and will not preempt 
tribal laws. Therefore, a tribal summary impact statement is not 
required.

Executive Order 13211 (Energy Effects)

    FTA has analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). FTA has determined that it is not 
a significant energy action under that order since it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Therefore, a Statement of Energy Effects is not required.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review U.S. 
DOT's complete Privacy Act Statement in the Federal Register published 
on April 11, 2000 (65 FR 19477).

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 set forth in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 602

    Disaster assistance, Grant programs, Mass transportation, 
Transportation.

    Issued on: March 25, 2013.
Peter M. Rogoff,
Administrator.

    For the reasons set forth in the preamble, FTA amends Chapter VI of 
Title 49, Code of Federal Regulations, by adding Part 602, as set forth 
below.

PART 602--EMERGENCY RELIEF

Sec.
602.1 Purpose.
602.3 Applicability.
602.5 Definitions.
602.7 Policy.
602.9 Federal share.
602.11 Pre-award authority.
602.13 Eligible activities.
602.15 Grant requirements.
602.17 Application procedures.

    Authority: 49 U.S.C. 5324 and 5334; 49 CFR 1.91.


Sec.  602.1  Purpose.

    This part establishes the procedures and eligibility requirements 
for the administration of emergency relief funds for emergency public 
transportation services, and the protection, replacement, repair or 
reconstruction of public transportation equipment and facilities which 
are found to have suffered or are in danger of suffering serious damage 
by a natural disaster over a wide area or a catastrophic failure from 
an external cause.


Sec.  602.3  Applicability.

    This part applies to entities that provide public transportation 
services and that are impacted by emergencies and major disasters.


Sec.  602.5  Definitions.

    The following definitions apply to this part:
    Affected recipient. A recipient or subrecipient that operates 
public transportation service in an area impacted by an emergency or 
major disaster.
    Applicant. An entity that operates or allocates funds to an entity 
to operate public transportation service and applies for a grant under 
49 U.S.C. 5324.
    Catastrophic failure. The sudden failure of a major element or 
segment of the public transportation system due to an external cause. 
The failure must not be primarily attributable to gradual and 
progressive deterioration or lack of proper maintenance.
    Emergency--A natural disaster affecting a wide area (such as a 
flood, hurricane, tidal wave, earthquake, severe storm or landslide) or 
a catastrophic failure from any external cause, as a result of which:
    (1) The Governor of a State has declared an emergency and the 
Secretary of Transportation has concurred; or
    (2) The President has declared a major disaster under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170).
    Emergency operations. The net project cost of temporary service 
that is outside the scope of an affected recipient's normal operations, 
including but not limited to: evacuations; rescue operations; bus or 
ferry service to replace inoperable rail service or to detour around 
damaged areas; additional service to accommodate an influx of 
passengers or evacuees; returning evacuees to their homes after the 
disaster or emergency; and the net project costs related to 
reestablishing, expanding, or relocating public transportation service 
before, during, or after an emergency or major disaster.
    Emergency protective measures. (1) Capital projects undertaken 
immediately before, during or following the emergency or major disaster 
for the purpose of protecting public health and safety or for 
protecting property. Such projects:
    (i) Eliminate or lessen immediate threats to public health or 
safety; or
    (ii) Eliminate or lessen immediate threats of significant damage or 
additional damage to an affected recipient's property through measures 
that are cost effective.
    (2) Examples of such projects include, but are not limited to:
    (i) Moving rolling stock in order to protect it from damage, e.g., 
to higher ground in order to protect it from storm surges;
    (ii) Emergency communications;
    (iii) Security forces;
    (iv) Sandbagging;
    (v) Bracing/shoring damaged structures;
    (vi) Debris removal;
    (vii) Dewatering; and
    (viii) Removal of health and safety hazards.
    Emergency repairs. Capital projects undertaken immediately 
following the

[[Page 19145]]

emergency or major disaster, until such time as permanent repairs can 
be undertaken, for the purpose of:
    (1) Minimizing the extent of the damage, or
    (2) Restoring service.
    External cause. An outside force or phenomenon that is separate 
from the damaged element and not primarily the result of existing 
conditions.
    Heavy maintenance. Work usually done by a recipient or subrecipient 
in repairing damage normally expected from seasonal and occasionally 
unusual natural conditions or occurrences, such as routine snow 
removal, debris removal from seasonal thunderstorms, or heavy repairs 
necessitated by excessive deferred maintenance. This may include work 
required as a direct result of a disaster, but which can reasonably be 
accommodated by a recipient or subrecipient's routine maintenance, 
emergency or contingency program.
    Major Disaster. Any natural catastrophe (including any hurricane, 
tornado, storm, high water, wind-driven water, tidal wave, tsunami, 
earthquake, volcanic eruption, landslide, mudslide, snowstorm, or 
drought), or, regardless of cause, any fire, flood, or explosion, in 
any part of the United States, which in the determination of the 
President causes damage of sufficient severity and magnitude to warrant 
major disaster assistance under the Stafford Act to supplement the 
efforts and available resources of States, local governments, and 
disaster relief organizations in alleviating the damage, loss, 
hardship, or suffering caused thereby. 42 U.S.C. 5122.
    Net project cost. The part of a project that reasonably cannot be 
financed from revenues. 49 U.S.C. 5302.
    Permanent repairs. Capital projects undertaken following the 
emergency or major disaster for the purpose of repairing, replacing or 
reconstructing seriously damaged public transportation system elements, 
including rolling stock, equipment, facilities and infrastructure, as 
necessary to restore the elements to a state of good repair.
    Recipient. An entity that operates public transportation service 
and receives Federal transit funds directly from FTA.
    Resilience/Resiliency. A capability to anticipate, prepare for, 
respond to, and recover from significant multi-hazard threats with 
minimum damage to social well-being, the economy, and the environment.
    Resiliency Project. A project designed and built to address future 
vulnerabilities to a public transportation facility or system due to 
future recurrence of emergencies or major disasters that are likely to 
occur again in the geographic area in which the public transportation 
system is located; or projected changes in development patterns, 
demographics, or extreme weather or other climate patterns.
    Serious damage. Heavy, major or unusual damage to a public 
transportation facility which severely impairs the safety or usefulness 
of the facility. Serious damage must be beyond the scope of heavy 
maintenance.
    State. Any one of the United States, the District of Columbia, 
Puerto Rico or the Virgin Islands, Guam, American Samoa or Commonwealth 
of the Northern Mariana Islands.
    Subrecipient. An entity that operates public transportation service 
and receives FTA funding through a recipient.


Sec.  602.7  Policy.

    (a) The Emergency Relief Program is intended to aid recipients and 
subrecipients in restoring public transportation service and in 
repairing and reconstructing public transportation assets to a state of 
good repair as expeditiously as possible following an emergency or 
major disaster.
    (b) Emergency relief funds are not intended to supplant other 
Federal funds for correction of preexisting, non-disaster related 
deficiencies.
    (c) In conjunction with repair and reconstruction activities, 
recipients may include projects that increase the resiliency of 
affected public transportation systems to protect the systems from the 
effects of future emergencies and major disasters.
    (d) The expenditure of emergency relief funds for emergency repair 
shall be in such a manner so as to reduce, to the greatest extent 
feasible, the cost of permanent restoration work completed after the 
emergency or major disaster.
    (e) Emergency relief funds, or funds made available under 49 U.S.C. 
5307 (Urbanized Area Formula Program) or 49 U.S.C. 5311 (Rural Area 
Formula Program) awarded for emergency relief purposes shall not 
duplicate assistance under another Federal program or compensation from 
insurance or any other source. Partial compensation for a loss by other 
sources will not preclude FTA emergency relief fund assistance for the 
part of such loss not compensated otherwise. Any compensation for 
damages or insurance proceeds for repair or replacement of the public 
transit equipment or facility must be used upon receipt to reduce FTA's 
emergency relief fund participation in the project.


Sec.  602.9  Federal share.

    (a) A grant, contract, or other agreement for emergency operations, 
emergency protective measures, emergency repairs, permanent repairs and 
resiliency projects under 49 U.S.C. 5324 shall be for up to 80 percent 
of the net project cost.
    (b) A grant made available under 49 U.S.C. 5307 or 49 U.S.C. 5311 
to address an emergency shall be for up to 80 percent of the net 
project cost for capital projects, and up to 50 percent of the net 
project cost for operations projects.
    (c) The FTA Administrator may waive, in whole or part, the non-
Federal share required under paragraphs (a) and (b) of this section.


Sec.  602.11  Pre-award authority.

    (a) Except as provided in paragraph (b) of this section, pre-award 
authority for the Emergency Relief Program shall be effective beginning 
on the effective date of a declaration of emergency or major disaster, 
and subject to the appropriation of Emergency Relief Program funds.
    (b) For expected weather events, pre-award authority for 
evacuations and activities to protect public transportation vehicles, 
equipment and facilities, shall be effective within a reasonable period 
of time in advance of the event, such as during the period the storm is 
forecast with some certainty to hit the affected area.
    (c) Pre-award authority shall be subject to a maximum amount 
determined by FTA based on estimates of immediate financial need, 
preliminary damage assessments, available Emergency Relief funds and 
other criteria to be determined.
    (d) Pre-award authority is not a legal or implied commitment that 
the subject project will be approved for FTA assistance or that FTA 
will obligate Federal funds. Furthermore, it is not a legal or implied 
commitment that all activities undertaken by the applicant will be 
eligible for inclusion in the project(s).
    (e) Except as provided in Sec.  602.15, all FTA statutory, 
procedural, and contractual requirements must be met.
    (f) The recipient must take no action that prejudices the legal and 
administrative findings that the FTA Regional Administrator must make 
in order to approve a project.
    (g) The Federal amount of any future FTA assistance awarded to the 
recipient for the project will be determined on the basis of the 
overall scope of activities and the prevailing statutory provisions 
with respect to the Federal/non-Federal match ratio at the time the 
funds are obligated.

[[Page 19146]]

    (h) When FTA subsequently awards a grant for the project, the 
Financial Status Report in FTA's electronic grants management system 
must indicate the use of pre-award authority.


Sec.  602.13  Eligible activities.

    (a) An affected recipient may apply for emergency relief funds on 
behalf of itself as well as affected subrecipients.
    (b) Eligible uses of Emergency Relief funds include:
    (1) Emergency operations;
    (2) Emergency protective measures;
    (3) Emergency repairs;
    (4) Permanent repairs;
    (5) Actual engineering and construction costs on approved projects; 
and
    (6) Resiliency projects.
    (c) Ineligible uses of Emergency Relief funds include:
    (1) Heavy maintenance;
    (2) Project costs for which the recipient has received funding from 
another Federal agency;
    (3) Project costs for which the recipient has received funding 
through payments from insurance policies;
    (4) Projects that change the function of the original 
infrastructure;
    (5) Projects for which funds were obligated in an FTA grant prior 
to the declared emergency or major disaster;
    (6) Reimbursements for lost revenue due to service disruptions 
caused by an emergency or major disaster.
    (7) Project costs associated with the replacement or replenishment 
of damaged or lost material that are not the property of the affected 
recipient and not incorporated into a public transportation system such 
as stockpiled materials or items awaiting installation.
    (8) Other project costs FTA determines are not appropriate for the 
Emergency Relief Program.


Sec.  602.15  Grant requirements.

    (a) Funding available under the Emergency Relief program is subject 
to the terms and conditions FTA determines are necessary.
    (b) The FTA Administrator shall determine the terms and conditions 
based on the circumstances of a specific emergency or major disaster 
for which funding is available under the Emergency Relief Program.
    (1) In general, projects funded under the Emergency Relief Program 
shall be subject to the requirements of chapter 53 of title 49, United 
States Code, as well as cross-cutting requirements, including but not 
limited to those outlined in FTA's Master Agreement.
    (2) The FTA Administrator may determine requirements associated 
with public transportation programs are inapplicable as necessary and 
appropriate for emergency repairs, permanent repairs, emergency 
protective measures and emergency operating expenses that are incurred 
within 45 days of the emergency or major disaster, or longer as 
determined by FTA. If the FTA Administrator determines any requirement 
is inapplicable, the determination shall apply to all eligible 
activities undertaken with funds authorized under 49 U.S.C. 5324 within 
the 45-day period, as well as funds authorized under 49 U.S.C. 5307 and 
5311 and used for eligible emergency relief activities.
    (3) FTA shall publish a notice on its Web site and in the emergency 
relief docket established under 49 CFR part 601 regarding the grant 
requirements for a particular emergency or major disaster.
    (c) In the event an affected recipient or subrecipient believes an 
FTA requirement limits its ability to respond to the emergency or major 
disaster, the recipient or subrecipient may request that the 
requirement be waived in accordance with the emergency relief docket 
process as outlined in 49 CFR part 601, subpart D. Applicants should 
not proceed on projects assuming that requests for such waivers will be 
granted.
    (d) In accordance with Executive Order 11988, Floodplain 
Management, recipients shall not use grant funds for any activity in an 
area delineated as a special flood hazard area or equivalent, as 
labeled in the Federal Emergency Management Administration's (FEMA) 
most recent and current data source unless, prior to seeking FTA 
funding for such action, the recipient designs or modifies its actions 
in order to minimize potential harm to or within the floodplain.
    (1) Except as otherwise provided in this subparagraph, recipients 
shall use the ``best available information as identified by FEMA, which 
includes advisory data (such as Advisory Base Flood Elevations 
(ABFEs)), preliminary and final Flood Insurance Rate Maps (FIRMs), or 
Flood Insurance Studies (FISs).
    (2) If FEMA data is mutually determined by FTA and the recipient to 
be unavailable or insufficiently detailed, other Federal, State, or 
local data may be used as ``best available information'' in accordance 
with Executive Order 11988.
    (3) The final determination on ``best available information'' shall 
be used to establish such reconstruction requirements as a project's 
minimum elevation.
    (4) Where higher minimum elevations are required by either State or 
locally adopted building codes or standards, the higher of the 
competing minimums would apply.
    (5) A base flood elevation from an interim or preliminary or non-
FEMA source may not be used if it is lower than the current FIRM.


Sec.  602.17  Application procedures.

    (a) As soon as practical after occurrence, affected recipients 
shall make a preliminary field survey, working cooperatively with the 
appropriate FTA Regional Administrator and other governmental agencies 
with jurisdiction over eligible public transportation systems. The 
preliminary field survey should be coordinated with the Federal 
Emergency Management Agency, if applicable, to eliminate duplication of 
effort. The purpose of this survey is to determine the general nature 
and extent of damage to eligible public transportation systems.
    (1) The affected recipient shall prepare a damage assessment 
report. The purpose of the damage assessment report is to provide a 
factual basis for the FTA Regional Administrator's finding that serious 
damage to one or more public transportation systems has been caused by 
a natural disaster over a wide area, or a catastrophic failure. As 
appropriate, the damage assessment report should include by political 
subdivision or other generally recognized administrative or geographic 
boundaries--
    (i) The specific location, type of facility or equipment, nature 
and extent of damage;
    (ii) The most feasible and practical method of repair or 
replacement;
    (iii) A preliminary estimate of cost of restoration, replacement, 
or reconstruction for damaged systems in each jurisdiction.
    (iv) Potential environmental and historic impacts;
    (v) Photographs showing the kinds and extent of damage and sketch 
maps detailing the damaged areas;
    (vi) Recommended resiliency projects to protect equipment and 
facilities from future emergencies or major disasters.
    (2) Unless unusual circumstances prevail, the damage assessment 
report should be prepared within six weeks following the natural 
disaster or catastrophic failure.
    (3) For large disasters where extensive damage to public 
transportation systems is readily evident, the FTA Regional 
Administrator may approve an application prior to submission of the 
damage assessment report. In these

[[Page 19147]]

cases, the applicant shall prepare and submit to the FTA Regional 
Administrator an abbreviated or preliminary damage assessment report, 
summarizing eligible repair costs by jurisdiction, after the damage 
inspections have been completed.
    (b) Before funds can be made available, a grant application for 
emergency relief funds must be made to, and approved by, the 
appropriate FTA Regional Administrator. The application shall include:
    (1) A copy of the Governor's declaration or a Presidential 
declaration;
    (2) A copy of the damage assessment report, as appropriate;
    (3) A list of projects, as documented in the damage assessment 
report, identifying emergency operations, emergency protective 
measures, and emergency repairs completed as well as permanent repairs 
needed to repair or replace the damaged or destroyed rolling stock, 
equipment, facilities, and infrastructure; and
    (4) Supporting documentation showing other sources of funding 
available, including insurance policies, agreements with other Federal 
agencies, and any other source of funds available to address the damage 
resulting from the emergency or major disaster.
    (c) Applications for emergency operations must include the dates, 
hours, number of vehicles, and total fare revenues received for the 
emergency service. Only net project costs may be reimbursed.
    (d) Applicants that receive funding from another Federal agency for 
operating expenses and also seek funding from FTA for operating 
expenses must include:
    (1) A copy of the agreement with the other Federal agency, 
including the scope of the agreement, the amount funded, and the dates 
the other agency funded operating costs; and
    (2) The scope of service and dates for which the applicant is 
seeking FTA funding.
    (e) Applicants that receive funding from another Federal agency for 
emergency or permanent repairs or emergency protective measures and 
also seek funding from FTA for emergency or permanent repairs or 
emergency protective measures must include:
    (1) A copy of the agreement with the other Federal agency, 
including the scope of the agreement and the amount funded; and
    (2) A list of projects included in the other agency's application 
or equivalent document.
    (f) Applicants are responsible for preparing and submitting a grant 
application. The FTA regional office may provide technical assistance 
to the applicant in preparation of a program of projects. This work may 
involve joint site inspections to view damage and reach tentative 
agreement on the type of permanent repairs the applicant will 
undertake. Program data should be kept to a minimum, but should be 
sufficient to identify the approved disaster or catastrophe and to 
permit a determination of the eligibility of proposed work. If the 
appropriate FTA Regional Administrator determines the damage assessment 
report is of sufficient detail to meet these criteria, additional 
program support data need not be submitted.
    (g) The appropriate FTA Regional Administrator's approval of the 
grant application constitutes a finding of eligibility under 49 U.S.C. 
5324.

[FR Doc. 2013-07271 Filed 3-28-13; 8:45 am]
BILLING CODE P