[Federal Register Volume 63, Number 33 (Thursday, February 19, 1998)]
[Proposed Rules]
[Pages 8377-8379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4172]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 668
[FHWA Docket No. FHWA 97-3105]
RIN 2125-AE27
Emergency Relief (ER) Program--$500,000 Disaster Eligibility
Threshold
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Advance notice of proposed rulemaking (ANPRM); request for
comments.
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SUMMARY: The FHWA is initiating this rulemaking to evaluate the need to
revise the FHWA's regulation (23 CFR 668.105(j)) that now provides for
a $500,000 threshold to distinguish between heavy maintenance or
routine emergency repair and serious damage. This threshold is used as
one of the criteria to qualify a disaster under the FHWA's Emergency
Relief (ER) program for repair of Federal-aid highways. The FHWA is
publishing this ANPRM to generate discussion and comments on the
appropriateness of the current threshold value as well as any
additional options/concepts regarding establishment of a disaster
eligibility threshold. Once information from this ANPRM has been
reviewed, if appropriate, specific proposals for revision of the
threshold will be published in the Federal Register as a Notice of
Proposed Rulemaking (NPRM).
DATES: Comments must be received on or before April 20, 1998.
ADDRESSES: Signed, written comments should refer to the docket number
that appears at the top of this document and must be submitted to the
Docket Clerk, U.S. DOT Dockets, Room PL 401, 400 Seventh Street, SW.,
Washington, D.C. 20590-0001. All comments received will be available
for examination at the above address between 10:00 a.m. and 5:00 p.m.,
e.t., Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Mohan P. Pillay, Office of
Engineering, 202-366-4655, or Wilbert Baccus, Office of the Chief
Counsel, 202-366-0780, FHWA, 400 Seventh Street, SW., Washington, DC
20590. Office hours are from 7:45 a.m. to 4:15 p.m, e.t., Monday
through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
1. Purpose of This Rulemaking
The regulations governing the ER program for repair of Federal-aid
highways (23 CFR 668, subpart A) were revised in 1987 to establish, for
the first time, dollar guidelines for consideration of whether a
disaster would be
[[Page 8378]]
categorized as ``serious `` from the perspective of 23 U.S.C. 125. The
requirement pertaining to dollar guidelines is contained in 23 CFR
668.105(j). It states: ``ER program funding is only to be used to
repair highways which have been seriously damaged and is not intended
to fund heavy maintenance or routine emergency repair activities which
should be normally funded as contingency items in the State and local
road programs. An application for ER funds in the range of $500,000 or
less must be accompanied by a showing as to why the damage repair
involved is considered to be beyond the scope of heavy maintenance or
routine emergency repair. As a general rule, widespread nominal road
damages in this range would not be considered to be of a significant
nature justifying approval by the FHWA Administrator for ER funding.''
For the purposes of this ANPRM, the term disaster referred to
throughout this document means a natural disaster or catastrophic
failure. As indicated in the regulation, the ER program is not intended
to fund heavy maintenance or routine emergency repair activities, which
should be normally funded as contingency items in the State and local
road programs. In essence, the regulation says that if a disaster event
does not require more than $500,000 in ER funding to repair seriously
damaged highways, it falls under the category of heavy maintenance and,
therefore, normally does not qualify under the FHWA ER program for
funding. In exceptional circumstances, such as in the case of
Territories and in States with limited highway funding resources, a
disaster with damage in the range of $500,000 or less may be considered
eligible for ER funding.
The FHWA is considering modification of the $500,000 threshold for
the following reasons:
(1) The current $500,000 threshold, established 10 years ago, needs
to be routinely reviewed for appropriateness.
(2) Several FHWA field offices have indicated that the $500,000
threshold is too low, considering the overall highway program size in
some States.
(3) The number of disasters per year has increased considerably in
the recent past, and as a result, there is a higher demand for ER
funds, thus placing more financial burden on the already strapped ER
program.
The FHWA believes that setting up a higher threshold may eliminate
funding less ``serious'' disasters which would currently be eligible
for ER funding. For example, 47 disasters were funded in FY 1996.
Nearly 20 percent of the funded disasters had an initial estimate under
$1,000,000. Elevating the disaster threshold to $1,000,000, thus, could
have eliminated nearly 20 percent of the funded disasters in FY 1996
from emergency relief funding, representing nearly $5.2 million in
damage. This $5.2 million, in turn, would have been available for
disasters which individually resulted in more than $1,000,000 in
damage.
The FHWA is initiating this rulemaking process to generate
discussion and proposals for revising the current regulation pertaining
to the $500,000 threshold.
2. Rulemaking Process
This document is first in a series of actions to address the issue
of the $500,000 threshold established to distinguish heavy maintenance
from ``serious'' damage. Based upon the comments to this ANPRM, the
FHWA will consider formulating specific proposals and publishing a
NPRM. The NPRM would also provide a comment period for additional
public response to specific proposals. The FHWA now anticipates that a
final rule may be developed and published in 1998. The following
options are provided with the intent to generate discussion and
comments which may help in formulating specific proposals for the NPRM.
Additional options and concepts are welcome.
Option 1--Continue to have a single threshold applied to all
States, but increase the threshold.
Under this option, the existing threshold would be increased to a
higher value--for example, $1,000,000. The advantages are:
(1) The program would better serve as intended--to fund unusually
heavy expenses of repairing ``serious'' damage from natural disasters
or catastrophic failures, and to eliminate funding low-cost disasters;
(2) The overall cost to the ER program would be reduced, as those
disasters with an initial estimate under $1,000,000 normally would not
qualify for funding; and
(3) The administrative costs at all levels would be reduced as time
involved in disaster surveys, documentation, and processing would be
reduced.
A disadvantage is that a higher threshold would place a greater
funding burden on the States with smaller highway programs. They may be
adversely affected as resources may not be readily available to respond
to disasters under the minimum $1,000,000 disaster eligibility
threshold. Additionally, the application of the same threshold value to
all States would be administratively simple; however, it does not
equitably reflect the financial impact of a disaster based on the size
of a State's program.
Option 2--Formulate more than one minimum disaster eligibility
threshold, using a tiered approach based on the size of a State's
highway program.
Under this option the States would be grouped into tiers based on
the size of their Federal-aid program--i.e, Federal-aid apportionments
received in the prior fiscal year. A minimum disaster eligibility
threshold would be formulated for each tier beginning from a base
threshold. This concept is illustrated using a three tier approach in
the following example:
Tier 1 would be those States that received Federal-aid highway
apportionments under $100 million for the previous fiscal year. Tier 1
States would be subject to a minimum threshold of $500,000;
Tier 2 would be those States that received Federal-aid highway
apportionments of at least $100 million and not exceeding $500 million
for the previous fiscal year. Tier 2 States would use a minimum
threshold of $1,000,000; and
Tier 3 would be those States which received Federal-aid highway
apportionments over $500 million for the previous fiscal year. Tier 3
States would use a minimum threshold of $2,000,000.
Based on the FY 1997 Federal-aid highway apportionments, the number
of States including the District of Columbia and Puerto Rico, in each
tier in the above illustration would be as follows: Tier 1 States--7;
Tier 2 States--33; and Tier 3 States--12. Other scenarios, as
appropriate may be developed.
The advantages are:
(1) This approach would not place a disproportionate burden on
States with smaller highway programs; rather it treats States more or
less in an equitable fashion;
(2) The program would better serve as intended--to fund unusually
heavy expenses of repairing ``serious'' damage from natural disasters
or catastrophic failures. New higher thresholds on disaster eligibility
would eliminate funding low-cost disasters for States with larger
programs;
(3) The overall cost to the ER program would be reduced as certain
disasters might not meet the new disaster eligibility thresholds and
therefore might not qualify for funding; and
(4) The administrative costs would be reduced at all levels, as
time involved
[[Page 8379]]
in disaster surveys, documentation, and processing would be reduced.
The disadvantages are:
(1) States with larger highway programs could lose some ER funding
as the higher disaster eligibility threshold in these States might
eliminate some disasters which would have qualified for funding under
the current threshold; and
(2) The FHWA would be required to track States with different
disaster eligibility thresholds, resulting in more review time and
paperwork.
Commenters are invited to present their views on the options
discussed above. In addition, the FHWA welcomes other suggestions
concerning the current dollar threshold and appropriate methods to
update this threshold.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined preliminarily that any action taken
regarding the disaster eligibility threshold will not be a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of the Department of Transportation's
regulatory policies and procedures. It is anticipated that the economic
impact of any action taken in this rulemaking will be minimal. Any
changes are not anticipated to adversely affect, in a material way, any
sector of the economy. In addition, any changes are not likely to
interfere with any action taken or planned by another agency or
materially alter the budgetary impact of any entitlement, grants, user
fees, or loan programs.
The FHWA emphasizes, however, that this document is published to
generate discussion and comments which may be used in formulating
specific proposals for the revision of a section of the current
regulation dealing with disaster eligibility determinations for ER
funding. It is not anticipated that these changes will affect the total
Federal funding available under the ER program. Consequently, a full
regulatory evaluation is not required. In any event, we strongly
encourage and will actively consider comments on this matter, as well
as other issues relating to the projected impact of actions
contemplated in this ANPRM.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA will evaluate the effects of any action proposed on
small entities. This ANPRM will only generate comments and discussions
on one of the disaster eligibility criteria used for providing
emergency relief assistance to States in accordance with the existing
laws, regulations and guidance. Thus, it would be premature to assess
the economic impact of any action that might be contemplated. Because
the States are not included in the definition of ``small entity'' set
forth in 5 U.S.C. 601, we do not anticipate that any adjustment to the
disaster eligibility threshold that might be considered would have a
substantial economic impact on small entities within the meaning of the
Regulatory Flexibility Act. We encourage commenters to evaluate any
options addressed here with regard to their potential for impact,
however, and to formulate their comments accordingly.
Executive Order 12612 (Federalism Assessment)
Any action that might be proposed in subsequent stages of this
proceeding will be analyzed in accordance with the principles and
criteria contained in Executive Order 12612. Given the nature of the
issues involved in this proceeding, the FHWA anticipates that any
action contemplated will not have sufficient federalism implications to
warrant the preparation of a federalism assessment. Nor does the FHWA
anticipate that any action taken would preempt any State law or State
regulation or affect the States' ability to discharge traditional State
governmental functions. We encourage commenters to consider these
issues, however, as well as matters concerning any costs or burdens
that might be imposed on the States as a result of actions considered
here.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
Federal programs and activities apply to this program.
Paperwork Reduction Act
Any action that might be contemplated in subsequent phases of this
proceeding is not likely to involve a collection of information
requirement for the purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3500, or information collection requirements not already
approved for the ER program. The FHWA, however, will evaluate any
actions that might be considered in accordance with the terms of the
Paperwork Reduction Act.
National Environmental Policy Act
The agency also will analyze any action that might be proposed for
the purpose of the National Environmental Policy Act of 1969 (42 U.S.C.
4321-4347) to assess whether there would be any effect on the quality
of the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN number contained in the
heading of this document can be used to cross reference this action
with the Unified Agenda.
List of Subjects in 23 CFR Part 668
Emergency relief program, Grant programs-transportation, Highways
and roads.
Authority: 23 U.S.C. 315; 23 U.S.C. 101; 23 U.S.C. 120(e); 23
U.S.C. 125; 49 CFR 1.48(6).
Issued on: February 11, 1998.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
[FR Doc. 98-4172 Filed 2-18-98; 8:45 am]
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