[Federal Register Volume 61, Number 246 (Friday, December 20, 1996)]
[Rules and Regulations]
[Pages 67207-67212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32384]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 668
[FHWA Docket No. 95-25]
RIN 2125-AD60
Emergency Relief Program
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: The FHWA is amending its regulation on the emergency relief
(ER) program in order to incorporate changes made to 23 U.S.C. 120 and
125 by the Intermodal Surface Transportation Efficiency Act of 1991
(ISTEA) (Pub. L. 102-240,105 Stat. 1914). The time period in which the
Federal share payable for certain eligible emergency repairs is 100
percent will be extended from 90 days to 180 days as a result of this
final rule; the limit for total obligations for ER projects in any
fiscal year in the Virgin Islands, Guam, American Samoa, and the
Commonwealth of Northern Mariana Islands will be increased from $5
million to $20 million; and the term ``Federal-aid highway systems''
will be replaced with the term ``Federal-aid highways'' to conform with
terminology now used to describe highways eligible for Federal-aid ER
assistance. In addition, various statements clarifying eligible uses of
ER funding will be incorporated into the regulation.
[[Page 67208]]
EFFECTIVE DATE: January 21, 1997.
FOR FURTHER INFORMATION CONTACT: Mohan P. Pillay, Office of
Engineering, 202-366-4655, or Wilbert Baccus, Office of the Chief
Counsel, 202-366-0780, FHWA, 400 Seventh Street, SW., Washington, DC
20590.
SUPPLEMENTARY INFORMATION:
Background
The changes to the FHWA's ER regulations, which will result from
this final rule, were developed based on the comments made to a notice
of proposed rulemaking (NPRM) on this subject published in the Federal
Register on November 13, 1995, at 60 FR 56962 (FHWA Docket No. 95-25).
Interested persons were invited to participate in the development of
this final rule by submitting written comments on the NPRM to FHWA
Docket 95-25 on or before January 12, 1996. Comments were received from
7 State highway agencies (SHAs). All comments received on the
amendments proposed in the NPRM have been considered in adopting this
final rule.
The current FHWA regulations implementing the emergency relief
program are found primarily at 23 CFR part 668. Subpart A of part 668
sets forth the procedures for the administration of ER funds for the
repair or reconstruction of Federal-aid highways. This final rule
amends these regulations in the following manner and for the reasons
indicated below.
Three of the States expressed support in general for the changes
proposed by the NPRM. The other four States supported individual
changes and/or presented suggestions on further changes to be made.
Amendments to the rule, along with suggested changes by commenters, are
discussed below.
In subpart A, the terms ``Federal-aid system'' and ``Federal-aid
highway system'' will be replaced with the term ``Federal-aid
highways.'' The revision is in accordance with The Dire Emergency
Supplemental Appropriations Act (Pub. L. 102-302, 106 Stat. 248) which
amended 23 U.S.C. 125(b) by replacing the term ``Federal-aid highway
systems including the Interstate System'' with the term ``Federal-aid
highways.'' No changes were suggested by commenters.
In Sec. 668.101, the second sentence will be amended by replacing
``Federal roads not on the Federal-aid system'' with ``Federal roads
that are not part of Federal-aid highways.'' The NPRM proposal was to
replace ``Federal roads not on the Federal-aid system'' with ``roads on
Federal lands.'' One commenter recommended changing the words ``roads
on Federal lands'' to ``Federal roads that are not part of Federal-aid
highways'' to be consistent with the term Federal roads used in Part
668, Subpart B, Procedures for Federal Agencies for Federal Roads,
which is cross referenced here. The FHWA agrees with the commenter's
recommendation and it was incorporated into this final rule.
Section 668.105(e) will be amended by adding the words ``or by a
toll authority for repair of the highway facility'' after the words
``political subdivision'' in the last sentence. This amendment
clarifies that any compensation or insurance received by a toll
authority whose facility is being repaired with ER funding must be
appropriately credited to the ER project. In the case of a toll
facility, the credit would be based on that portion of the compensation
or insurance attributable to the cost of repair of capital
improvements. No comments were received on this amendment.
In Sec. 668.107, paragraph (a) will be amended to extend to 180
days the current 90-day time period following a natural disaster or
catastrophic failure in which the Federal share payable for certain
eligible emergency repair costs may amount to 100 percent. This
amendment is made to conform Sec. 668.107(a) to 23 U.S.C. 120(e) (as
amended by section 1022 of the ISTEA, Public Law 102-240, 105 Stat.
1914 (1991)). One State suggested a further extension from 180 days up
to 360 days on a case-by-case basis ``where high water levels continue
to cause damage and/or cause delays in performing emergency work.''
FHWA does not have any flexibility to extend the 180-day time period
for the 100 percent Federal share for emergency repairs. The Federal
share, including the 180-day time period, is established by 23 U.S.C.
120(e) and there is no authority to change the time period. Another
State requested clarification as to whether 180 days ``after the
disaster'' starts on the initial day of the occurrence or 180 days
after the last day of the occurrence. The intent is that 180 days
starts on the initial day of the occurrence. In certain circumstances,
emergency repair work to restore essential traffic, or to protect the
remaining facilities, or to minimize the extent of damage cannot be
undertaken on the initial day of the occurrence of the disaster. In
such circumstances, it is acceptable to consider the date on which the
first emergency work was undertaken as the beginning day of the first
180 days. It is emphasized that there is only one 180-day period for
the entire disaster.
In Sec. 668.107, the second sentence of paragraph (b) is amended to
raise to $20 million the current $5 million limit on the total amount
of obligations for emergency relief projects in any fiscal year in the
Virgin Islands, Guam, American Samoa, and the Commonwealth of the
Northern Mariana Islands. This amendment is made to conform this
provision with that set forth in 23 U.S.C. 125(b)(2) (as amended by
section 1022(b) of the ISTEA). No changes were suggested by commenters.
One State suggested several minor editorial changes to
Secs. 668.107 (a) and (b) including revised language that reflects a
new definition of ``emergency repairs.'' This new definition for
``emergency repairs'' along with FHWA reasons for not including it as
part of the final rule are discussed later in this preamble.
Additionally, the minor editorial changes did not significantly clarify
or improve the wording in these two sections. As a result, the FHWA is
making no further changes to Secs. 668.107 (a) and (b) other than those
discussed above.
Section 668.109(b) is amended to expand and clarify the eligible
uses for ER funds based on recent experiences in administering the ER
program. ER funds will now be eligible to participate in:
1. Raising of roadway grades temporarily to maintain essential
traffic service during flooding.
This is a new activity considered eligible for ER funding. No
changes were suggested by commenters. A new paragraph (b)(7) will be
added to Sec. 668.109 by this final rule to incorporate this change.
2. Raising grades of critical Federal-aid highways faced with long-
term loss of use due to an unprecedented rising in basin water level.
In the past, reconstruction or repair of highways affected by basin
flooding was generally not considered eligible for ER funding. Basin
flooding was seen as a gradual rise in water level that could be
predicted. Hence, work to prevent potential damage could be anticipated
and was not considered eligible for ER funding. Now, basin flooding is
an eligible activity under the ER program if it can be shown that (1)
there has been an unprecedented rise in water level, both in terms of
the magnitude of the increase and the time frame in which the increase
occurred; and (2) there will be long-term loss of use of Federal-aid
routes. As with any other disaster considered for funding under the ER
program, for basin flooding, the Federal share of the estimated cost to
raise the grade of critical Federal-aid routes to restore traffic
service should exceed the $500,000 minimum threshold. No changes were
suggested by the commenters. A new paragraph (b)(8)
[[Page 67209]]
will be added to Sec. 668.109 by this final rule to incorporate this
change.
3. Repair of toll facilities when the provisions of 23 U.S.C. 129
are met.
This provision clarifies that ER funds can participate in repair of
toll facilities on Federal-aid highways provided a toll agreement under
23 U.S.C. 129 is executed. No comments were received on this provision.
A new paragraph (b)(9) will be added to Sec. 668.109 by this final rule
to incorporate this change.
4. Repair of surface damage by traffic but only on designated
detour routes (both Federal-aid highways and non-Federal-aid highways)
or on Federal-aid highways where the surface damage has been caused by
traffic in route to make repairs to other damaged non-highway
transportation facilities. For a more detailed discussion of roadway
surface damage caused by this kind of traffic, see the discussion on
Sec. 668.109(c)(2) in this preamble.
In addition to the above mentioned items, one State recommended
that the regulation be changed to make the following items also
eligible for ER funding: (1) The replacement of equipment that is lost
while it is being used to protect or open a facility to traffic; (2)
the purchase of aeronautical equipment to be used in surveying site
damages; (3) the construction of statewide command centers to be used
to direct emergency service.
The FHWA is not expanding ER eligibility to include these three
items. The ER program is not intended to compensate a State for all the
costs it faces in responding to a disaster. For example, although ER
funding may pay for the time that equipment is used to make eligible ER
repairs, it is expected the State will assume the risks associated with
the loss or damage of this equipment. In addition, it is expected that
a State highway agency will be responsible for the costs associated
with setting up command centers and other actions, such as utilizing
aeronautical equipment, it deems necessary for managing its response to
a disaster.
Section 668.109(c), which describes activities ineligible for ER
funding, will be amended in Sec. 668.109(c)(1) to eliminate the
reference to slip-outs in cut or fill slopes which do not extend to the
traveled way. This revision will allow ER funding to be used to repair
significant slope damage, even if the slope damage does not extend into
the traveled way. Two States expressed opposition to this change,
although upon further review of their comments it appears they
misunderstood the NPRM proposal and, in fact, both States support
extending ER funding eligibility to cover this situation. One State
suggested adding the words ``off the traveled way `` after the phrase
``mud and debris deposits'' to clarify the paragraph. The FHWA agrees
this will help clarify the intent of this provision and the suggested
change was included in this final rule.
Section 668.109(c)(2) will be amended to allow limited use of ER
funds to repair roadway surface damage caused by traffic on designated
detours and by traffic in route to repair other non-highway
transportation facilities. In general, repair of traffic damage to
roadway surfaces, even if this damage is aggravated by saturated
subgrade conditions or by inundation of the roadway, is not eligible
for ER fund participation. In the past, one exception was allowed: ER
funds could participate in repair of surface damage caused by vehicles
making repairs on Federal-aid highways. For example, there may be a
need to immediately haul material to a damaged Federal-aid highway
facility to begin emergency repairs and in doing so the haul vehicles
significantly damage roadway surfaces, either of Federal-aid or non-
Federal-aid highways. In these instances, ER funds have been able to
participate in repair of the damaged roadway surfaces and this
exception is retained in the regulation.
As a result of the amendment to Sec. 668.109(c)(2), ER funds will
now be eligible for participation in the repair of surface damage to a
designated detour (which may lie on both Federal-aid and non-Federal-
aid routes) caused by traffic that has been detoured from a damaged
Federal-aid highway. This may include roadway surface repairs to
provide reasonable traffic service during the period of time the detour
is in use as well as surface repairs to the detour route to restore the
detour roadway surface to its predisaster condition after detour
traffic has been removed. A designated detour is the officially signed
detour that highway officials have established to reroute traffic
around the damaged portion of the Federal-aid highway. In addition, ER
funds will also be able to participate in the repair of surface damage
to Federal-aid highways (only) caused by vehicles making repairs to
other damaged non-highway transportation facilities, for example,
surface damage caused by vehicles hauling materials to repair a damaged
railroad facility.
Two States suggested that ER eligibility be further expanded to
include traffic damage to roadways that have saturated bases. If, after
periods of heavy rainfall or when flood waters recede, highway
officials find that roadbeds are saturated, it is expected that these
officials will control subsequent traffic use of these roads in such a
manner that this traffic will not damage the facility. Accordingly, the
FHWA plans to continue to limit ER eligibility to repair roadway
surfaces to those cases where damage has been caused directly by the
flood waters, other than those exceptional circumstances listed in
amended Sec. 668.109(c)(2).
Section 668.109(c)(6) is amended to cross-reference newly added
Sec. 668.109(b)(8) which discusses the extent to which ER funding can
participate in raising grades of Federal-aid highways to compensate for
an unprecedented rise in basin water levels.
Section 668.109(c)(7) is amended to redefine the term
``scheduled.'' As currently defined, the term signifies permanent
repair or replacement of a deficient bridge is included in the approved
Federal-aid program, the current or next year's Highway Bridge
Replacement and Rehabilitation Program, or in the contract plans being
prepared. The current definition refers to an approved Federal-aid
program, which is a program incorporating various projects submitted by
a State to the FHWA for approval in accordance with the requirements of
23 U.S.C. 105; however, 23 U.S.C. 105 has been superseded by the new
requirements of 23 U.S.C. 135 and, as a result, a State now is required
to develop a Statewide Transportation Improvement Program (STIP) which
is to be submitted to the FHWA for approval. To update and simplify the
definition of ``scheduled,'' the amended definition would refer only to
the approved STIP. One State suggested that a bridge project be
considered scheduled if the construction phase is included in the FHWA
approved current annual element of the STIP. The purpose of this
provision is to prevent a State from using ER funding to replace or
reconstruct a deficient bridge when it was already planning to use
other funding sources for that purpose. The FHWA believes that an
approved STIP, in which the State has identified a funding source to
advance projects during the upcoming 3-year period, reasonably reflects
a State's intent to have used non-ER funding source for a bridge
project. Therefore, the proposal to limit the term ``scheduled'' to
only the first year of the STIP is not being adopted.
A new paragraph (c)(10) will be added to Sec. 668.109 to make clear
that the loss of toll revenue is not eligible for reimbursement. No
comments were received on this new section.
[[Page 67210]]
Section 668.113(a) is amended to remove the outdated reference to
the program requirements of 23 CFR part 630. The requirements for a
program of ER projects are adequately described in Sec. 668.113;
therefore, cross-reference to 23 CFR part 630 is no longer needed. No
comments were received regarding this change.
Section 668.113(b)(1) will be amended to reflect the current policy
on project review, oversight, and administration as applicable to ER
projects. In those cases where a regular Federal-aid project (in a
State) similar to the ER project would be handled under the
certification acceptance procedures found in 23 U.S.C. 117 or the
project oversight exceptions found in 23 U.S.C. 106, the ER project
may, as a result of this final rule, be handled under these alternate
procedures subject to the following two conditions: (1) Any betterment
to be incorporated into the project and for which ER funding is
requested must receive prior FHWA approval, and (2) the FHWA reserves
the right to conduct final inspections on ER projects as deemed
appropriate. No comments were received on this change.
In addition to the changes described above, minor editorial changes
in Secs. 668.109(b)(3) and 668.111(b)(2) will also be made for clarity.
One State commented on several sections of Part 668, subpart A
which were not proposed for change and/or modification in the NPRM. The
State suggested revision of the definition for emergency repairs and
the addition of several new definitions as well as changes to other
provisions of the regulation. These suggestions are discussed below.
The commenter proposed to revise the definition of ``emergency
repairs'' to read as follows: those repairs including traffic
operations undertaken during or within 180 days after the actual
occurrence of a natural disaster or catastrophic failure for the
purpose of (1) minimizing the extent of damage (2) protecting remaining
facilities, or (3) restoring essential travel.
The major purpose of emergency repairs is to immediately open the
road to essential travel. By eliminating the term ``immediate'' from
the current definition and also by including the term ``work undertaken
within 180 days,'' the revised definition implies that there is no
urgency in undertaking repairs. Further, the statutory 180-day limit
found in 23 U.S.C. 120(e) defines a time period for a special Federal
match and is not related to the definition of what is or is not an
emergency repair. The FHWA feels that the existing definition of
emergency repairs is adequate and no change is being made.
The commenter also proposed adding new definitions to the
regulation for the following terms: actual occurrence, betterments,
eligible repair costs, site, and sub-applicant. In some cases, these
new definitions were in conjunction with other suggested changes to the
regulation. The FHWA believes that most of the new definitions are
unnecessary at this time; however, some may be considered during future
revisions to the regulation.
The commenter proposed to amend Sec. 668.105(i) to allow
application of the small purchase procedures of the Federal common rule
regulations in 49CFR18.36(d)(1) to permanent repair and reconstruction
work. The common rule regulation may not apply to highway construction
grants as provided in 49 CFR 18.36(j) which states that ``23 U.S.C.
112(a) directs the Secretary to require recipients of highway
construction grants to use bidding methods that are `effective in
securing competition'.'' Permanent repairs and reconstruction work
under the ER program are viewed as construction grants subject to 23
U.S.C. 112(a). Therefore, this proposed change is not acceptable.
The commenter proposed to amend Sec. 668.105(j) to require that the
FHWA consider the estimated cost of non-Federal-aid highway damage in
determining whether a disaster is of a magnitude to qualify it for
assistance under the ER program. The FHWA is not adopting this change.
The FHWA believes that in determining whether a disaster has caused
enough damage to trigger eligibility under FHWA's ER program, only
damage to Federal-aid highways should be considered. If significant
damage has occurred to non-Federal-aid highways, typically the Federal
government will assist in paying for repair of these non-Federal-aid
highways through the Federal Emergency Management Agency's program. The
ER program is not intended to take care of all repair costs. When a
disaster occurs, State and local highway agencies must expect
additional expenditures. The existing requirement that there be at
least $500,000 in estimated ER expenditures for Federal-aid highways
before a State struck by a disaster will be considered eligible for ER
funding is viewed as a reasonable threshold and will be retained.
The commenter proposed to amend Sec. 668.109(a) to read as follows:
(a) the eligibility of all work is contingent upon approval by
the Federal Highway Administrator of an application for ER in
accordance with the following: (1) prior FHWA approval or
authorization is not required for emergency repairs and related
preliminary engineering (PE), right of way and construction
engineering (CE), and (2) permanent repairs or restoration including
PE, right of way and CE must have prior FHWA program approval and
authorization unless these activities are carried out in conjunction
with emergency repairs.
Although, there is no requirement for prior FHWA approval for
emergency repairs, the emergency repair projects including preliminary
engineering and right-of-way must be included along with the permanent
repair in an approved program of projects according to the existing
regulation. This requirement satisfies the planning process
requirements of 23 U.S.C. 135 and serves the purpose of keeping an
inventory of projects funded with ER funds for subsequent reimbursement
of the costs.
Further, the commenter's proposal is more restrictive than the
existing regulation. If adopted, prior FHWA approval would be required
for preliminary engineering associated with permanent repairs. The
existing regulation does not require prior FHWA approval for
preliminary engineering regardless of whether it is associated with
permanent repair or emergency repair. Thus, the FHWA has decided not to
adopt the proposed amendment.
The commenter proposed to add a new paragraph to Sec. 668.109(b)
making costs incurred by the State to conduct preliminary field surveys
on Federal-aid highways under local jurisdiction eligible for ER
reimbursement. As noted previously, it is expected that State and local
highway agencies will assume some costs in responding to a disaster.
The FHWA believes that it is not unreasonable to expect the State to
fund costs associated with preliminary damage surveys necessary for
managing its response to a disaster. Accordingly, the FHWA is not
making this activity eligible for reimbursement.
The commenter proposed to remove the provision in
Sec. 668.109(c)(4) which does not allow ER funds to participate in
maintenance of detours. In general, the FHWA does not agree with this
proposal. Routine maintenance of a detour similar to routine
maintenance of a highway, is the responsibility of the State. Plowing
snow, mowing roadsides, maintaining drainage and normal replacement of
pre-existing permanent roadway signs, are examples of routine
maintenance activities that the State should perform on the detour
facility or detour route without ER funding assistance.
[[Page 67211]]
However, the FHWA is agreeable to the use of ER funds to perform
repairs to the roadway surface of the detour during the time the detour
is in use. For example, an interstate route is damaged and closed by a
disaster, and the interstate traffic is detoured to a parallel State
route. The State route may not have an adequate pavement structure to
handle the added traffic, and because of the need to immediately
provide traffic service, there is no time to overlay the State route
before the interstate traffic is detoured to it. The roadway surface of
the detour may begin to suffer failures that require quick repairs, so
that the detour can continue to provide reasonable traffic service.
These repairs are eligible for ER funding.
As previously discussed in the preamble, Sec. 668.109(c)(2) is
amended to allow ER funds to participate in the repair of surface
damage to a designated detour. This may include surface repairs while
the detour is in use as well as those repairs needed to restore the
surface to its predisaster condition after traffic has been removed
from the detour.
In addition, Sec. 668.109(c)(4) is amended to clarify that the
prohibition against use of ER funds for maintenance of detours is
limited to routine maintenance activities not related to the increased
traffic volumes.
The commenter proposed to amend Sec. 668.111(c)(1) on application
procedures to indicate that a copy of the Presidential declaration
itself is an acceptable option. The President's declaration is related
to disaster relief under authority of P.L. 93-288, and is in response
to a request from the Governor. The proclamation by the Governor as
required in title 23 is an entirely separate official action from the
declaration by the President of the United States. The FHWA agrees with
this revision and the section is amended to read as follows:
``A copy of the Governor's proclamation or request for
Presidential declaration or a Presidential declaration.''
The commenter proposed to amend Sec. 668.113(b) to add, for
clarification, a cross-reference to FHWA's Environmental Impact and
Related Procedures regulation, 23 CFR part 771, where there is a
provision stating that emergency repair work is considered a
categorical exclusion and normally does not require further approval
under the National Environmental Policy Act. The FHWA agrees that such
a cross reference would be useful and a new provision is being added to
Sec. 668.113(b) to read as follows: ``Emergency repair work meets the
criteria for categorical exclusions pursuant to 23 CFR 771.117 and
normally does not require any further National Environmental Policy Act
(NEPA) approvals.''
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of the Department of Transportation
regulatory policies and procedures. It is anticipated that the economic
impact of this rulemaking will be minimal. These changes will not
adversely affect, in a material way, any sector of the economy. In
addition, these changes will not interfere with any action taken or
planned by another agency and will not materially alter the budgetary
impact of any entitlements, grants, user fees, or loan programs. This
rulemaking merely amends current regulations implementing the emergency
relief program to incorporate changes made to this program by Congress
in the ISTEA. It is not anticipated that these changes will affect the
total Federal funding available under the ER program. Consequently, a
full regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Based on the evaluation, the FHWA hereby certifies that this
action will not have a significant economic impact on a substantial
number of small entities. These amendments will only clarify and
simplify procedures used for providing emergency relief assistance to
States in accordance with the existing laws, regulations, and guidance.
The ER funds received by the States will not be significantly affected
by these proposed amendments. States are not included in the definition
of ``small entity'' set forth in 5 U.S.C. 601. Therefore, this action
will not have a significant economic impact on a substantial number of
small entities for the purposes of the Regulatory Flexibility Act.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism assessment. These amendments
will not preempt any State law or State regulation, and no additional
costs or burdens will be imposed on the States thereby. In addition,
this rule will not affect the States' ability to discharge traditional
State governmental functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
Federal programs and activities apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for the purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3500.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN number contained in the
heading of this document can be used to cross reference this action
with the Unified Agenda.
List of Subjects in 23 CFR 668
Emergency Relief Program, Grant programs--transportation, Highways
and roads.
Issued on: December 12, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA is amending title 23,
Code of Federal Regulations, part 668 as set forth below.
PART 668--EMERGENCY RELIEF PROGRAM
1. The authority citation for part 668 is revised to read as set
forth below and all other authority citations which appear throughout
part 668 are removed:
Authority: 23 U.S.C. 101, 120(e), 125 and 315; 49 CFR 1.48(b).
[[Page 67212]]
Subpart A--Procedures for Federal-Aid Highways
Sec. 668.101 [Amended]
2. In Sec. 668.101, the second sentence is amended by removing the
words ``Federal roads not on the Federal-aid system'' and adding in
their place the words ``Federal roads that are not part of the Federal-
aid highways''.
Sec. 668.103 [Amended]
3. Section 668.103 is amended by removing the paragraph
designations (a) through (i) from the definitions; in the definition
for ``Applicant'' by removing the words ``Federal-aid highway system''
and adding in their place the words ``Federal-aid highways''.
Sec. 668.105 [Amended]
4. In Sec. 668.105, the last sentence of paragraph (e) is amended
by adding the words ``or by a toll authority for repair of the highway
facility'' after the words ``political subdivision.''
Sec. 668.107 [Amended]
5. Section 668.107, is amended in paragraph (a) by removing the
words ``within 90 days'' and adding in their place the words ``within
180 days'' and in paragraph (b) by removing the figure ``$5 million''
and inserting in its place the figure ``$20 million''.
6. Section 668.109, is amended in paragraph (b)(3) by replacing the
misspelled word ``Actural'' with the word ``Actual'; in paragraph
(b)(5) by removing the word ``and'' after the semicolon; by replacing
the period at the end of paragraph (b)(6) with a semicolon; by adding
paragraphs (b)(7), (b)(8), and (b)(9); by revising paragraphs (c)(1),
(c)(2), (c)(4), (c)(6), and (c)(7); and by adding paragraph (c)(9) to
read as follows:
Sec. 668.109 Eligibility.
* * * * *
(b) * * *
(7) Temporary work to maintain essential traffic, such as raising
roadway grade during a period of flooding by placing fill and temporary
surface material;
(8) Raising the grades of critical Federal-aid highways faced with
long-term loss of use due to basin flooding as defined by an
unprecedented rise in basin water level both in magnitude and time
frame; and
(9) Repair of toll facilities when the provisions of 23 U.S.C. 129
are met. If a toll facility does not have an executed toll agreement
with the FHWA at the time of the disaster, a toll agreement may be
executed after the disaster to qualify for that disaster.
(c) ER funds may not participate in:
(1) Heavy maintenance such as repair of minor damages consisting
primarily of eroded shoulders, filled ditches and culverts, pavement
settlement, mud and debris deposits off the traveled way, slope
sloughing, slides, and slip-outs in cut or fill slopes. In order to
simplify the inspection and estimating process, heavy maintenance may
be defined using dollar guidelines developed by the States and
Divisions with Regional concurrence;
(2) Repair of surface damage caused by traffic whether or not the
damage was aggravated by saturated subgrade or inundation, except ER
funds may participate in:
(i) Repair of surface damage caused by traffic making repairs to
Federal-aid highways;
(ii) Repair of surface damage to designated detours (which may lie
on both Federal-aid and non-Federal-aid routes) caused by traffic that
has been detoured from a damaged Federal-aid highway; and
(iii) Repair of surface damage to Federal-aid highways caused by
vehicles making necessary repairs to other damaged non-highway
transportation facilities, ie; railroads, airports, ports, etc.;
* * * * *
(4) Routine maintenance of detour routes, not related to the
increased traffic volumes, such as mowing, maintaining drainage,
pavement signing, snow plowing, etc.
* * * * *
(6) Repair or reconstruction of facilities affected by long-term,
pre-existing conditions or predictable developing situations, such as,
gradual, long-term rises in water levels in basins or slow moving
slides, except for raising grades as noted in Sec. 668.109(b)(8).
(7) Permanent repair or replacement of deficient bridges scheduled
for replacement with other funds. A project is considered scheduled if
the construction phase is included in the FHWA approved Statewide
Transportation Improvement Program (STIP);
(8) * * *
(9) Reimbursing loss of toll revenue.
* * * * *
Sec. 668.111 [Amended]
7. In Sec. 668.111, paragraph (b)(2) is amended by removing the
words ``receipt of'', and paragraph (c)(1) is revised to read as
follows:
Sec. 668.111 Application Procedures.
* * * * *
(c) * * *
(1) A copy of the Governor's proclamation, request for a
Presidential declaration, or a Presidential declaration; and
* * * * *
8. In Sec. 668.113, paragraph (a) is amended by revising the first
and second sentences, paragraph (b)(1) is revised, and paragraph (b)(3)
is added to read as follows:
Sec. 668.113 Program and project procedures.
(a) Immediately after approval of an application, the FHWA Division
Administrator will notify the applicant to proceed with preparation of
a program which defines the work needed to restore or replace the
damaged facilities. It should be submitted to the FHWA Division
Administrator within 3 months of receipt of this notification. * * *.
(b) Project Procedures. (1) Projects for permanent repairs shall be
processed in accordance with regular Federal-aid procedures, except in
those cases where a regular Federal-aid project (in a State) similar to
the ER project would be handled under the certification acceptance
procedures found in 23 U.S.C. 117 or the project oversight exceptions
found in 23. U.S.C. 106, the ER project can be handled under these
alternate procedures subject to the following two conditions:
(i) Any betterment to be incorporated into the project and for
which ER funding is requested must receive prior FHWA approval; and
(ii) The FHWA reserves the right to conduct final inspections on ER
projects as deemed appropriate.
(2) * * *
(3) Emergency repair meets the criteria for categorical exclusions
pursuant to 23 CFR 771.117 and normally does not require any further
National Environmental Policy Act (NEPA) approvals.
[FR Doc. 96-32384 Filed 12-19-96; 8:45 am]
BILLING CODE 4910-22-P
