Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Rules and Regulations 25441

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 668

[FHWA Docket No. 97–3105]

RIN 2125—AE27

Emergency Relief Program

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Final rule.

SUMMARY: The FHWA is amending its

regulation on the emergency relief (ER)

program to revise the threshold used in

determining eligibility for a disaster

from $500,000 to $700,000. The

threshold is used to distinguish between

heavy maintenance or routine

emergency repairs and serious damage

eligible under the ER program. In

addition, the FHWA is amending the

regulation to include the recent

clarifying guidance on administering ER

funding eligibility for betterment/

replacement facilities, for project and

project features resulting from the

National Environmental Policy Act

(NEPA) process, and for traffic damage

caused by response vehicles. Also, this

document presents changes to the ER

application process; minor revisions to

guidance for eligible uses; and the

revised policy of delegating the

approval authority to FHWA Division

Administrators, previously exercised by

the Federal Highway Administrator, to

make the initial ‘‘finding’’ approving ER

assistance for a new disaster and related

administrative procedural changes.

EFFECTIVE DATE: June 1, 2000.

FOR FURTHER INFORMATION CONTACT:

Mohan P. Pillay, Office of Program

Administration, 202–366–4655, or

Harold Aikens, Office of the Chief

Counsel, 202–366–0764, FHWA, 400

Seventh Street, SW., Washington, D.C.

20590. Office hours are from 7:45 a.m.

to 4:15 p.m., e.t., Monday through

Friday, except holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users may access all

comments received by the U.S. DOT

Dockets, Room PL–401, by using the

universal resource locator (URL): http:/

/dms.dot.gov. It is available 24 hours

each day, 365 days each year. Please

follow the instructions online for more

information and help.

An electronic copy of this may be

downloaded by using a computer,

modem and suitable communications

software from the Government Printing

Office’s Electronic Bulletin Board

Service at (202)512–1661. Internet users

may reach the Office of the Federal

Register’s home page at: http://

www.nara.gov/fedreg and the

Government Printing Office’s web page

at: http://www.access.gpo.gov/nara.

Background

The changes to the FHWA’s ER

regulations embraced in 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

June 7, 1999, at 64 FR 30263 (FHWA

Docket No. 97–3105). This NPRM was

published based on an advanced notice

of proposed rulemaking (ANPRM)

published in the Federal Register on

February 19, 1998, to generate

discussion and comments on the

appropriateness of the previous

threshold value, as well as any

additional options/concepts regarding

establishment of a disaster eligibility

threshold. Interested persons were

invited to participate in the

development of this final rule by

submitting written comments on the

NPRM to FHWA Docket 97–3105 on or

before August 6, 1999. Comments were

received from 11 entities. The

commenters include: 8 State

Departments of Transportation (DOT), 1

county government, 1 State Association

of County Engineers, and the American

Road and Transportation Builders

Association (ARTBA). All comments

received in response to amendments 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.

ER Threshold

After considering all comments

received, the FHWA has decided to

increase the threshold to $700,000. In

§ 668.105(j), the second sentence is

being amended by replacing $500,000

with $700,000. This amendment is

made to reflect the change in the current

purchasing power of the dollar based on

the increase in the composite bid price

index for Federal-aid highway

construction from 1987 to 1997. The

FHWA plans to periodically review the

threshold and adjust it, as appropriate,

through future rulemakings. In

exceptional circumstances, such as in

the case of Territories and in States with

small highway programs, a disaster

under the $700,000 threshold could be

considered eligible for ER funding, as

has been the case with damage in the

range of $500,000 or slightly less under

the previous disaster eligibility

threshold.

Of the comments received with regard

to the ER threshold, seven opposed and

two supported the increase in the

threshold. One commenter expressed

concern about the effect the increase

could have on a local agency when the

disaster is isolated to a small area of the

State and substantial amount of damage

costs would be incurred by a local

agency, yet the $700,000 threshold is

not met statewide. Another commenter

suggested that the threshold should be

determined by using a tier system that

would insure fairness to those States

which have a lesser ability to cope with

disasters.

One of the arguments by commenters

against revising the existing threshold is

that they allege it would create extreme

hardship on local units of government,

which have very limited resources, and

could force States and local

governments to divert funds from other

pressing State and local highway

investments. Commenters also assert

that they do not have the flexibility to

shift resources from other areas to cover

the cost of road damage due to a natural

disaster. Another comment was that the

cumulative budgetary impact for the

State Department of Transportation and

for the local municipalities can be

significant during times of multiple

events within a short time span. The

commenters provided no explanation or

evidence why it was appropriate or

feasible for the Federal government,

rather than the State governments, to

pay these costs from its very limited

resources.

One commenter referred to the

ANPRM and pointed out that ‘‘only 20

percent of disasters funded in1996

involved sums of less than $1 million

and this suggests that a threshold of

$500,000 is not causing FHWA to be

flooded with small applications for

disaster relief and that FHWA is

proposing to fix a problem that simply

does not exist.’’ The principle reason

the FHWA is increasing the threshold is

not to reduce the financial and/or

administrative burden of this program

on the Federal government; rather, the

increase to the threshold reflects the

change in purchasing power of the

dollar since the $500,000 threshold was

established in 1987.

Since the proposed rulemaking allows

for a disaster under the $700,000

threshold to be considered in

exceptional circumstances for States

25442 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Rules and Regulations

1This document is available for inspection and

copying as prescribed in 49 CFR part 7.

with small highway programs, one

commenter recommended that

consideration also be given to local

agencies where there is a substantial

amount of damage even though the

$700,000 threshold was not met

statewide. This recommendation would

mean that any State where a local

agency sustained a substantial amount

of damage, but below the $700,000

threshold, could qualify for the ER

program funding assistance. This

approach would defeat the very purpose

of the threshold concept, and, therefore

the FHWA has not adopted this

recommendation.

One commenter wanted all public

highway facilities to be eligible for the

ER program by including those nonFederal-aid highway facilities currently

eligible for the Federal Emergency

Management (FEMA) public assistance

program. The Congress, by statute, has

limited the ER program to Federal-aid

highways and roads on Federal lands.

Any change to have the ER program

cover all public roads would require a

statutory amendment and is beyond the

scope of this rulemaking activity. Also,

the commenter states that repair costs

for both damaged Federal-aid and nonFederal-aid highways should be

considered when determining whether

an event meets the threshold under the

ER program. The FHWA does not agree

with this concept. Since the ER program

is limited by statute to repair of Federalaid highways, determinations of the

extent of damage necessary to trigger ER

funding for an event should be directly

related to eligible repair costs under the

ER program.

One commenter is of the opinion that

determining the threshold based on a

tiered system would insure fairness to

those States which have a lesser ability

to cope with disasters that should meet

a higher threshold to be eligible under

the ER program. The FHWA believes

that counties and other local agencies

would not be treated equally from State

to State if a tiered approach is adopted.

For example, a county whose Federalaid highways that have sustained $1.5

million of eligible ER repair costs, but

located in a State where the ER

eligibility threshold is set at $2 million,

would not receive any benefits from the

FHWA ER program funds. On the other

hand, another county with the same

amount of damage, but located in a State

with a $1 million threshold, would be

eligible to receive ER assistance.

One commenter expressed concern

about the application of the threshold to

basin flooding situations. It is FHWA’s

position that the threshold would

normally be applied to each individual

basin; however, situations can arise

where several basins in close proximity

can be treated as one event for

application of the threshold.

ER Program Administration

The regulation is being amended to

include recent clarifying guidance on

administering the ER program. Also,

amendments are included to reflect the

recent revised procedure that delegated

the approval authority to the FHWA

Division Administrator to make the

initial ‘‘finding’’ approving ER

assistance for a new disaster, and to

incorporate related administrative and

procedural changes to the ER program.

The revised procedure on delegation of

approval authority is considered a

matter relating to internal agency

management. Prior notice and comment

are unnecessary under the

Administrative Procedure Act or under

DOT Order 2100.5, Policies and

Procedures for Simplification, Analysis,

and Review of Regulations,’’ dated May

22, 1980.1

In § 668.103, a definition for

‘‘betterments’’ is being added. Because

there has been a wide variety of

interpretations, this addition will clarify

guidance for determining ER funding

eligibility and clearly establish the

meaning of the term for the purposes of

the FHWA’s ER program. There was no

opposition in the discussion of this term

in the regulation.

One commenter expressed concern

that the phrase ‘‘rebuilding of roadways

at a higher elevation’’ included in the

betterment definition conflicts with

§ 668.109(b)(8) relative to grade raises

made necessary by long term loss of use

of a highway due to basin flooding. It is

noted that typically the repair of a road

damaged due to basin flooding involves

raising the grade of the road which does

not require justification as a betterment

as long as the proposed grade raise is

reasonable and limited to critical

Federal-aid highways. The FHWA

agrees that clarification is helpful, and

is modifying § 668.109(b)(8) to clearly

indicate that grade raises associated

with basin flooding are not considered

to be a betterment for the purpose of 23

CFR 668.109(b)(6).

Also, § 668.103 is being amended to

modify the definition of ‘‘emergency

repairs’’ by replacing the word ‘‘travel’’

with the word ‘‘traffic’’ to be consistent

with other uses of this phrase in title 23,

United States Code, and in this

regulation concerning the ER program.

In § 668.109(b)(6), the phrase ‘‘such as

relocation, replacement, upgrading or

other added features not existing prior

to the disaster,’’ is being removed to

eliminate confusion in interpreting the

term ‘‘betterments’’ for the ER funding

eligibility determination. Neither

relocation or replacement of a highway

facility is always considered a

betterment under the ER program. There

were no comments concerning the

recommended change.

Section 668.109(c)(2)(i) is being

amended to insert the term ‘‘to any

public road’’ after the word ‘‘damage’’ to

further clarify the meaning of the

sentence. No comments were received

on this change.

Section 668.109(c)(2)(iii) is being

amended to expand the eligibility of ER

funds to repair damages to Federal-aid

highways caused by vehicles making

repairs to other transportation facilities

as well as by vehicles, such as fire

engines or trucks removing debris,

which are responding to a disaster. No

comments were received on this change.

Section 668.109(c)(8) is being

amended to add the term ‘‘including

snow and ice removal’’ after the word

‘‘system.’’ This will clarify that snow

and ice removal are part of the other

normal maintenance activities and are

not eligible for ER funding. No

comments were received on this change.

Section 668.109 (d) is being amended

to further clarify the guidance on

eligibility of replacement highway

facilities, particularly in those special

cases where replacement of a damaged

highway is not practical or feasible at its

existing location, and an alternative is

developed through the National

Environmental Policy Act (NEPA) (42

U.S.C. 4321 et seq.) process. No

comments were received concerning on

this change.

Section 668.113(b)(1) is being revised

to reflect the current project procedures.

The reference to ‘‘the certification

acceptance procedures found in 23

U.S.C. 117’’ is being eliminated because

the method using certification

acceptance procedures in administering

Federal-aid projects has been eliminated

from title 23, U. S. Code, by the

Transportation Equity Act for the 21st

Century (TEA–21), Public Law 105–178,

112 Stat.107(1998) No comments were

received concerning this change.

Several sections of the regulation are

amended to reflect the recently revised

procedure which delegated to the

FHWA Division Administrator the

approval authority to determine

whether an event qualifies for ER

assistance. Previously this approval

authority rested with the Federal

Highway Administrator in the

Washington Headquarters, and the

requests for an ER determination with

supporting documents from the FHWA

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Rules and Regulations 25443

Division offices had to be sent to the

Federal Highway Administrator for

approval. By delegating this approval

authority to the FHWA Division

Administrator, the agency’s

determination should be made more

quickly, thus providing prompt

affirmation to State and local highway

officials concerning the eligibility of an

event for ER assistance and also

allowing permanent repair work to

commence sooner. Accordingly, this

approval action change will also require

further changes to the regulation

involved with preparation and

submission of information supporting

the request for ER funding for an event.

The sections of the regulation being

amended are described below:

1. Sections 668.105(j) and 668.109(a)

indicate to show that the FHWA

Division Administrator, instead of the

Federal Highway Administrator, is

making the determination as to whether

an event qualifies for ER assistance; and

2. Section 668.111 covering

application procedures, reflect that the

approval authority now rests with the

FHWA Division Administrator. A field

report will no longer be required.

Instead, a damage survey summary

report is to be prepared which will

provide a factual basis for the FHWA

Division Administrator to make a

determination that serious damage has

occurred to Federal-aid highways. The

damage survey summary report should

include by political subdivision or other

recognized geographic boundaries, a

description of the types and extent of

damage to highways and a preliminary

estimate of cost of restoration or

reconstruction of damaged Federal-aid

highway in each jurisdiction. Use of the

‘‘Quick Release’’ method for an ER

application and determination will also

be incorporated into the procedures.

Rulemaking Analysis 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 U.S. Department of

Transportation’s regulatory policies and

procedures. It is anticipated that the

economic impact of this rulemaking

would be minimal. These proposed

changes would not adversely affect, in

a material way, any sector of the

economy. In addition, these changes

would not interfere with any action

taken or planned by another agency and

would not materially alter the budgetary

impact of any entitlements, grants, user

fees, or loan programs. This rulemaking

proposes to amend current regulations

implementing the emergency relief

program to revise the ER eligibility

threshold established 10 years ago, as

well as to incorporate changes made to

clarify the guidance on the ER program.

It is not anticipated that these changes

would affect the total Federal funding

available under the ER program.

Consequently, a full regulatory

evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory

Flexibility Act (5 U.S.C. 601–612), the

FHWA has evaluated the effects of this

rule on small entities. Based on the

evaluation, the FHWA hereby certifies

that this action would not have a

significant economic impact on a

substantial number of small entities.

The economic impact on States and

local jurisdictions would be minimal

because the increase in threshold value

is kept at a minimum level only to

account for inflation based on the

increase in the composite index for

Federal-aid highway construction from

1987 to 1997. These amendments 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 are not

significantly affected by this final rule.

In any event, 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.

Unfunded Mandates Reform Act

Under Section 202 of the Unfunded

Mandates Reform Act of 1995 (Pub. L.

104–4), the FHWA must prepare a

budgetary impact statement on any

proposal or final rule that includes a

Federal mandate that may result in

estimated annual costs to State, local or

tribal government of $100 million or

more. The Congressional Budget Office

has also concluded that Pub. L. 105–117

would impose no Federal mandates, as

defined in the Unfunded Mandates

Reform Act, and would impose no

significant costs on State, local, or tribal

government. The FHWA concurs in that

conclusion, and does not intend to

impose any duties upon State, local, or

tribal governments beyond those

prescribed by Pub. L. 105–117.

Executive Order 12988 (Civil Justice

Reform)

This action meets the 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)

We have analyzed this action under

Executive Order 13045, Protection of

Children from Environmental Health

Risks and Safety Risks. This rule is not

an economically significant rule and

does not concern an environmental risk

to health or safety that may

disproportionately affect children.

Executive Order 12630 (Taking of

Private Property)

This rule will not effect 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 13132 (Federalism)

This action has been analyzed in

accordance with the principles and

criteria contained in Executive Order

13132 dated August 4, 1999, and it has

been determined this action does not

have a substantial direct effect or

sufficient federalism implications on

States that would limit the

policymaking discretion of the States.

Nothing in this document directly

preempts any State law or regulation.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number 20.205,

Highway Planning and Construction.

The regulations implementing Executive

Order 12372 regarding

intergovernmental consultation on

Federal programs and activities apply to

this program.

Paperwork Reduction Act

This proposed action does not contain

a collection of information requirement

for the purpose of the Paperwork

Reduction Act of 1995, 44 U.S.C. 3501–

3520.

National Environmental Policy Act

The agency has analyzed this

proposed action for the purpose of the

National Environmental Policy Act of

1969 (42 U.S.C. 4321–4347) and has

determined that this action would not

have any effect on the quality of the

environment.

Regulation Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

25444 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Rules and Regulations

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.

Issued on: April 25, 2000.

Kenneth R. Wykle,

Federal Highway Administrator.

In consideration of the foregoing, the

FHWA amends title 23, Code of Federal

Regulations, part 668 as set forth below:

PART 668— EMERGENCY RELIEF

PROGRAM

1. The authority citation for part 668

continues to read as follows:

Authority: 23 U.S.C. 101, 120(e), 125, and

315; 49 CFR 1.48(b)

Subpart A—Procedures for Federal-Aid

Highways

2. Section 668.103 is amended by

adding in alphabetical order the term

‘‘Betterments’’, and by amending the

term ‘‘Emergency repairs’’ by revising

paragraph (3) to read as follows:

§ 668.103 Definitions.

* * * * *

Betterments. Added protective

features, such as rebuilding of roadways

at a higher elevation or the lengthening

of bridges, or changes which modify the

function or character of a highway

facility from what existed prior to the

disaster or catastrophic failure, such as

additional lanes or added access

control.

* * * * *

Emergency Repairs ***

(3) Restoring essential traffic.

* * * * *

§ 668.105 [Amended]

3. Section 668.105(j), is amended by

removing the figure ‘‘$500,000 and

adding in its stead the figure ‘‘$700,000’’

and by moving the term ‘‘FHWA

Administrator’’ and adding the term

‘‘FHWA Division Administrator.’’

* * * * *

§ 668.107 [Amended]

4. Section 668.107(b) is amended by

removing the last sentence.

* * * * *

5. Section 668.109 is amended by

revising paragraphs (a), introductory

text, (b)(6), (b)(8), (c)(2)(i) and (iii),

(c)(8), and (d) to read as follows:

§ 668.109 Eligibility.

(a) The eligibility of all work is

contingent upon approval by the FHWA

Division Administrator of an

application for ER and inclusion of the

work in an approved program of

projects.

* * * * *

(b) * * *

(6) Betterments, only where clearly

economically justified to prevent future

recurring damage. Economic

justification must weigh the cost of

betterment against the risk of eligible

recurring damage and the cost of future

repair;

* * * * *

(8) Raising the grades of critical

Federal-aid highways faced with longterm loss of use due to basin flooding as

defined by an unprecedented rise in

basin water level both in magnitude and

time frame. Such grade raises are not

considered to be a betterment for the

purpose of 23 CFR 668.109(b)(6); and

* * * * *

(c) * * *

(2) * * *

(i) Repair of surface damage to any

public road caused by traffic making

repairs to Federal-aid highways.

* * * * *

(iii) Repair of surface damage to

Federal-aid highways caused by

vehicles responding to a disaster;

provided the surface damage has

occurred during the first 60 days after a

disaster occurrence, unless otherwise

approved by the FHWA Division

Administrator.

* * * * *

(8) Other normal maintenance and

operation functions on the highway

system including snow and ice removal;

and

* * * * *

(d) Replacement of a highway facility

at its existing location is appropriate

when it is not technically and

economically feasible to repair or

restore a seriously damaged element to

its predisaster condition and is limited

in ER reimbursement to the cost of a

new facility to current design standards

of comparable capacity and character to

the destroyed facility. With respect to a

bridge, a comparable facility is one

which meets current geometric and

construction standards for the type and

volume of traffic it will carry during its

design life. Where it is neither practical

nor feasible to replace a damaged

highway facility in kind at its existing

location, an alternative selected through

the National Environmental Policy Act

(NEPA) process, if of comparable

function and character to the destroyed

facility, is eligible for ER

reimbursement.

* * * * *

6. Section 668.111 is revised to read

as follows:

§ 668.111 Application procedures.

(a) Notification. As soon as possible

after the disaster, the applicant shall

notify the FHWA Division

Administrator of its intent to apply for

ER funds.

(b) Damage survey. As soon as

practical after occurrence, the State will

make a preliminary field survey,

working cooperatively with the FHWA

Division Administrator and other

governmental agencies with jurisdiction

over eligible highways. The preliminary

field survey should be coordinated with

the Federal Emergency Management

Agency work, if applicable, to eliminate

duplication of effort. The purpose of

this survey is to determine the general

nature and extent of damage to eligible

highways.

(1) A damage survey summary report

is to be prepared by the State. The

purpose of the damage survey summary

report is to provide a factual basis for

the FHWA Division Administrator’s

finding that serious damage to Federalaid highways has been caused by a

natural disaster over a wide area or a

catastrophe. The damage survey

summary report should include by

political subdivision or other generally

recognized administrative or geographic

boundaries, a description of the types

and extent of damage to highways and

a preliminary estimate of cost of

restoration or reconstruction for

damaged Federal-aid highways 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

survey summary report.

(2) Unless very unusual

circumstances prevail, the damage

survey summary report should be

prepared within 6 weeks following the

applicant’s notification.

(3) For large disasters where extensive

damage to Federal-aid highways is

readily evident, the FHWA Division

Administrator may approve an

application under § 668.111(d) prior to

submission of the damage survey

summary report. In these cases, an

abbreviated damage survey summary

report, summarizing eligible repair costs

by jurisdiction, is to be prepared and

submitted to the FHWA Division

Administrator after the damage

inspections have been completed.

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Rules and Regulations 25445

1The PHAS Transition Notice issued by HUD on

October 21, 1999 (64 FR 56677) advised that PHAs

with fiscal years ending September 30, 1999, or

December 31, 1999, would receive PHAS advisory

scores. The January 11, 2000 PHAS final rule is

consistent with the transition notice in providing

that the first PHAS scores will be issued for PHAs

with fiscal years ending on or after March 31, 2000.

(c) Application. Before funds can be

made available, an application for ER

must be made to, and approved by the

FHWA Division Administrator. The

application shall include:

(1) A copy of the Governor’s

proclamation, request for a Presidential

declaration, or a Presidential

declaration; and

(2) A copy of the damage survey

summary report, as appropriate.

(d) Approval of application. The

FHWA Division Administrator’s

approval of the application constitutes

the finding of eligibility under 23 U.S.C.

125 and shall constitute approval of the

application.

7. Section 668.113 is amended in

paragraph (a), last sentence, by

removing ‘‘field report’’ and adding

‘‘damage survey summary report’’, and

by revising paragraphs (b)(1) and (b)(3)

to read as follows:

§ 668.113 Program and project procedures

* * * * *

(b) Project procedures. (1) Projects for

permanent repairs shall be processed in

accordance with regular Federal-aid

procedures. In those cases where a

regular Federal-aid project in a State

similar to the ER project would be

handled under the project oversight

exceptions found in title 23, United

States Code, the ER project can be

handled in a similar fashion subject to

the following two conditions:

(i) Any betterment to be incorporated

into the project and for which ER

funding is requested must receive prior

FHWA approval; and

(ii) The FHWA reserves the right to

conduct final inspections on all ER

projects. The FHWA Division

Administrator has the discretion to

undertake final inspections on ER

projects as deemed appropriate.

* * * * *

(3) Emergency repair meets the

criteria for categorical exclusions

pursuant to 23 CFR 771.117 and

normally does not require any further

NEPA approvals.

[FR Doc. 00–10780 Filed 5–1–00; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

24 CFR Part 905

[Docket No. FR–4423–C–08]

RIN 2577–AB87

Allocation of Funds Under the Capital

Fund; Capital Fund Formula;

Amendment

AGENCY: Office of the Assistant

Secretary for Public and Indian

Housing, HUD.

ACTION: Final rule; amendment.

SUMMARY: On March 16, 2000, HUD

published its final rule to implement the

new formula system for allocation of

funds to public housing agencies for

their capital needs. This rule makes one

amendment to the March 16, 2000 final

rule to correct the regulatory provision

concerning performance awards for high

performing PHAs.

DATES: Effective Date. June 1, 2000.

FOR FURTHER INFORMATION CONTACT:

William Flood, Director, Office of

Capital Improvements, Public and

Indian Housing, Room 4134,

Department of Housing and Urban

Development, 451 Seventh Street, SW,

Washington, DC 20410–0500; telephone

(202) 708–1640 ext. 4185 (this telephone

number is not toll-free). Hearing or

speech-impaired individuals may access

this number via TTY by calling the tollfree federal Information Relay Service at

1–800–877–8339.

SUPPLEMENTARY INFORMATION:

I. Background

On March 16, 2000 (65 FR 14422),

HUD issued its final rule to implement

the new formula system for allocation of

funds to public housing agencies for

their capital needs, as required by

statute. The March 16, 2000 final rule

followed publication of a September 14,

1999 proposed rule which was

developed through the negotiated

rulemaking process, and which took

into consideration public comment

received on the proposed rule. This rule

amends the March 16, 2000 final rule to

correct an error concerning performance

awards for high performing PHAs.

In the preamble to the final rule, HUD

stated that § 905.10(j) of the proposed

rule, which addresses the performance

reward factor, was revised at the final

rule stage to reflect the status of

implementation of the Public Housing

Assessment System (PHAS). (See 65 FR

14423, first column.)

Section 905.10(j)(3) of the rule text

provided as follows:

The first performance awards will be given

based upon PHAS scores for PHA fiscal years

ending December 31, 2000, March 31, 2001,

June 30, 2001, and September 30, 2001, with

PHAs typically having received those PHAS

scores within approximately 3 months after

the end of those fiscal years. (See 65 FR

14429, third column)

The regulatory text, however, did not

accurately reflect the status of

implementation of PHAS. The final rule

that made amendments to the PHAS

was published on January 11, 2000 (65

FR 1712), and took effect on February

10, 2000. The PHAS final rule provides

that the first PHAS scores will be issued

for PHAs with fiscal years ending on or

after March 31, 2000, and therefore

these PHAs will be the first to be

eligible for a performance award. Given

the January 11, 2000 PHAS final rule,

§ 905.10(j)(3) of the Capital Fund final

rule did not reflect the status of

implementation of PHAS, as the

preamble to the Capital Fund rule

advised that this section would.1

To correct the inconsistency between

the preamble and the regulatory text in

the March 16, 2000 final rule, HUD is

amending the March 16, 2000 final rule

to remove paragraph (3) of § 902.10(j).

On further consideration, HUD

determined that there is no need for the

rule to list the dates when PHAs will be

eligible for performance awards under

the Capital Fund Formula based on

PHAS scores. As noted in the preamble,

PHAs are eligible for a performance

award upon receipt of their PHAS

scores (whenever the PHAS scores are

issued) and if they are designated high

performers under PHAS.

II. Justification for Final Rulemaking

In general, HUD publishes a rule for

public comment before issuing a rule for

effect, in accordance with its own

regulations on rulemaking at 24 CFR

part 10. Part 10, however, provides for

exceptions from that general rule where

HUD finds good cause to omit advance

notice and public participation. The

good cause requirement is satisfied

when the prior public procedure is

‘‘impracticable, unnecessary, or contrary

to the public interest’’ (24 CFR 10.1).

HUD finds that good cause exists to

publish this rule for effect without first

soliciting public comment, in that prior

public procedure is unnecessary. The

purpose of this rule is limited to

amending an error in the March 16,