Emergency Relief Program, 60349-60365 [2014-23806]

Download as PDF asabaliauskas on DSK5VPTVN1PROD with RULES Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 8, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today’s Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference IBR, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements. Dated: September 5, 2014. Jared Blumenfeld, Regional Administrator, Region IX. Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for Part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart F—California 2. Section 52.220 is amended by adding paragraph (c)(441)(i)(B)(2) to read as follows: ■ § 52.220 Identification of plan. * * * * * (c) * * * (441) * * * (i) * * * (B) * * * (2) Rule 247, ‘‘Natural Gas-Fired Water Heaters, Small Boilers and Process Heaters,’’ amended February 13, 2014. * * * * * [FR Doc. 2014–23876 Filed 10–6–14; 8:45 am] BILLING CODE 6560–50–P PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 60349 DEPARTMENT OF TRANSPORTATION Federal Transit Administration 49 CFR Part 602 [Docket No. FTA–2013–0004] RIN 2132–AB13 Emergency Relief Program Federal Transit Administration (FTA), DOT. ACTION: Final rule. AGENCY: This final rule establishes procedures governing the implementation of the Federal Transit Administration’s (FTA) Public Transportation Emergency Relief Program as authorized by the Moving Ahead for Progress in the 21st Century Act. DATES: This final rule becomes effective on November 6, 2014. 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, Adam.Schildge@dot.gov. For legal issues: Bonnie Graves, Office of Chief Counsel, same address, Room E56–306, phone: (202) 366–4011, or email, Bonnie.Graves@dot.gov. SUPPLEMENTARY INFORMATION: SUMMARY: 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, subject to the availability of appropriations, 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 resilience efforts in areas affected by Hurricane Sandy. The law required FTA to issue interim regulations (an interim final rule) for the Emergency Relief Program, which FTA did on March 29, 2013 (See E:\FR\FM\07OCR1.SGM 07OCR1 60350 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations 78 FR 19136, http://www.gpo.gov/fdsys/ pkg/FR-2013-03-29/pdf/201307271.pdf). FTA requested comments on the interim regulations, and in this notice FTA is addressing the comments received. This 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. asabaliauskas on DSK5VPTVN1PROD with RULES Authority Section 5324(a)(2) of title 49, United States Code, defines an ‘‘emergency’’ as 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— • The Governor of a State has declared an emergency and the Secretary has concurred; or • 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 grants and enter into contracts and other agreements (including agreements with departments, agencies, and instrumentalities of the Government) for— • 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 • eligible operating costs of public transportation equipment and facilities in an area directly affected by an emergency during— Æ the 1-year period beginning on the date of a declaration; or Æ if the Secretary determines there is a compelling need, the 2-year period beginning on the date of a declaration. 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 the Federal Emergency Management Agency (FEMA) has funded. VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 Interim Final Rule and Request for Comments FTA issued the interim final rule and request for comments on March 29, 2013. The interim final rule, which took effect immediately upon publication, and on which FTA sought comment, included definitions, policy, and eligibility, as well as provisions regarding federal share and pre-award authority, grant requirements and application procedures. Summary Discussion of Comments Received in Response to the Interim Final Rule The comment period closed on May 28, 2013. FTA received comments from eight entities: five transit agencies, two transportation workers union organizations, and one public transportation trade association. Several comments were outside the scope of the rulemaking and are therefore not addressed in this notice. For example, some comments were specific to Hurricane Sandy response or to the Disaster Relief Appropriations Act, which provided funding for Hurricane Sandy response. Where appropriate, FTA reached out to commenters to address those concerns. Comments pertaining to the rulemaking are addressed in this notice. In addition, FTA intends to issue an Emergency Relief Manual or Circular later this year that will provide more detail than what is provided in the regulation. Therefore, FTA will address some of the comments by providing guidance in the Manual or Circular rather than including text in this rule. FTA will provide interested stakeholders with notice and an opportunity to provide comment on the Emergency Relief Manual. General Comments In addition to the regulatory text, the interim final rule sought comments on several specific issues: (1) The possibility of imposing a minimum monetary damage threshold for FTA Emergency Relief grants, including the most appropriate method to calculate such a minimum monetary damage threshold; (2) the specificity of the term ‘‘forecast with some certainty to hit the affected area,’’ which under the interim final rule triggers the availability of preaward authority for evacuations and activities to protect public transportation assets in predictable weather events; (3) the appropriate extent of a benefit-cost analysis in the context of emergency repairs, permanent repairs, and resilience projects, including the extent of risk PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 analysis appropriate for resilience projects, as well as methods for evaluating collateral costs resulting from a decrease in overall transit infrastructure capacity; and (4) whether applications for Emergency Relief should incorporate requirements of Section 1315(b) of MAP–21, which requires a periodic evaluation to determine whether there are reasonable alternatives to roads, highways, or bridges that have repeatedly required repair or reconstruction in the past as a result of emergencies or major disasters. The comments and FTA responses are in the section-by-section discussion of comments, below. Section-by-Section Discussion of Comments Section 602.1 Purpose Two commenters suggested amending the purpose section. One commenter suggested removing the term ‘‘serious’’ in relation to the damage suffered, noting that currently FEMA allows reimbursement for minor and major damages, while the proposed FTA Emergency Relief program could make minor costs ineligible, requiring the transit agency to incur the costs or apply to FEMA. The commenter also noted the potential lack of eligibility for damage from terrorist acts, as such acts would not qualify as a ‘‘natural disaster,’’ and might also not meet the definition of a ‘‘catastrophic failure.’’ To address this issue, the commenter suggested including ‘‘manmade disasters’’ within the scope of this section’s purpose. Another commenter recommended that the eligibility requirements for resilience projects include projects that enhance network resilience and redundancy, and not just those projects that narrowly target the physical location of a specific piece of infrastructure. The commenter suggested that the regulatory language listing ‘‘protection, replacement, repair or reconstruction’’ should be amended to, for example, ‘‘protection, replacement, repair, redundant capability, relief, or reconstruction of public transportation equipment, facilities, capacity or networks. . . .’’ The commenter expressed specific concern about island communities and the need to access the mainland via multiple means, particularly if bridges and tunnels are impacted by an emergency or disaster. FTA declines to make the suggested changes to this section. The language included in this section comes directly from the statute, which provides that FTA may fund ‘‘capital projects to protect, repair, reconstruct or replace E:\FR\FM\07OCR1.SGM 07OCR1 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations equipment and facilities of a public transportation system . . . that the Secretary determines is in danger of suffering serious damage or has suffered serious damage, as a result of an emergency.’’ In addition, FTA interprets ‘‘catastrophic failure from an external cause’’ to include manmade disasters. As for redundancy, FTA agrees that the resilience of a transit system is dependent in part on the availability of backup systems or facilities for critical functions, such as communications, signaling, and power; and that potential alternative service configurations made possible by the availability of redundant infrastructure, such as backup storage, maintenance, or fueling facilities, can significantly improve a transit system’s emergency response and recovery efforts, while maintaining service to the public. In so far as projects to construct or install such infrastructure contribute to the protection of the equipment or facilities of a transit system, they may be eligible for funding under this program. Projects that would increase overall system capacity, such as the acquisition of vehicles or construction of infrastructure for permanent additional routes, may increase the overall resilience of a transit system, but would generally not be eligible under this program. In the event a transit agency or community has identified, through the planning process, a need for additional public transit services that may be redundant of existing services, other sources of funds, such as FTA formula funds or Capital Investment Grant program (section 5309) funds, are more appropriate for this purpose, because the primary benefit of ‘‘redundant’’ services would be to provide new capacity on a daily basis—not just in the case of a future emergency that cannot be predicted in terms of time, location, or magnitude. asabaliauskas on DSK5VPTVN1PROD with RULES Section 602.3 Applicability FTA did not receive any comments on this section, and is not amending this section. Section 602.5 Definitions Four entities submitted comments on several of the proposed definitions. The comments and agency responses are sorted by each definition, as follows: ‘‘Building’’ and ‘‘Contents Coverage.’’ FTA is adding these two definitions, which are consistent with FEMA’s National Flood Insurance Program definitions at 44 CFR 59.1, for purposes of FTA’s policy on insurance, further discussed in section 602.7, Policy. In particular, for the definition of ‘‘building,’’ FEMA requires flood insurance for ‘‘manufactured homes’’ VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 and includes these in the definition of building as structures ‘‘built on a permanent chassis, transported to its site in one or more sections, and affixed to a permanent foundation.’’ Federal transit recipients often use manufactured or modular office trailers that meet this definition. Therefore, we have included office trailers in the definition of building. ‘‘Catastrophic Failure.’’ Two commenters expressed concern over the provision that a catastrophic failure must not be primarily attributable to gradual and progressive deterioration or lack of proper maintenance. While both commenters agreed that damage caused by lack of maintenance should not be eligible under the Emergency Relief program, they asserted that the phrase as formulated presents a risk of subjectivity and ambiguous eligibility standards. One of the commenters said that the distinction should be based on the ability to link damages and related costs to the disaster, using, for example, maintenance records, photographs, and/ or engineering assessments linking damage to the event. The other commenter said that FTA should clarify the criteria and process it proposes to apply in determining whether a catastrophic failure has been experienced. FTA disagrees that the definition is ambiguous, and notes that catastrophic failure must be read with the definition of ‘‘external cause.’’ The spontaneous collapse of a transit bridge, not due to external cause, would be primarily attributable to gradual and progressive deterioration or lack of proper maintenance or to a design flaw. A transit bridge that collapses as a result, for example, of being hit by a vehicle or an act of terrorism collapses due to an external cause. In order to be eligible for Emergency Relief funds, the failure must be the result of an external cause. In the event it is not clear whether the failure of an asset is due to an external cause or to an inherent defect in or lack of maintenance of the asset, FTA will consider maintenance records, photographs, and/or engineering assessments. ‘‘Emergency Operations.’’ Two commenters addressed the definition of ‘‘emergency operations.’’ One commenter suggested that since the term ‘‘emergency operations’’ includes bus or ferry service to replace inoperable rail service or to detour around damaged areas, the definition should also include the deployment of rail service via alternate routes for the same purpose. Another commenter requested that the list of emergency operations include any costs incurred as PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 60351 a result of any memorandum of understanding (MOU) and/or any memorandum of agreement (MOA) that transit agencies may establish pre- or post-disaster. The definition of ‘‘Emergency Operations’’ in the interim final rule for temporary service stated ‘‘including but not limited to . . .’’ various types of temporary service. Deployment of rail service via alternate routes would fit within the ‘‘Emergency Operations’’ definition as a relocation of public transportation route service before, during, or after an emergency. For clarity, FTA is amending the final rule definition to provide that ‘‘bus, ferry or rail service to replace inoperable service or to detour around damaged areas,’’ is an eligible expense. Regarding the second comment, costs incurred as a result of an MOU and/or MOA that a transit agency may establish pre- or post-disaster would be eligible only to the extent that the costs related to evacuation services; rescue operations; temporary public transportation service; or reestablishing, expanding, or relocating public transportation route service before, during, or after an emergency. ‘‘Emergency Protective Measures.’’ One commenter requested that FTA depart from FEMA standards under 44 CFR 206.228(a)(2)(iii) and allow regular time as well as standby costs within the definition of emergency protective measures, as these costs were allowed for Hurricane Sandy response. The commenter opined that FEMA’s practice of disallowing regular time for in-house personnel rewards applicants who outsource emergency work to contractors, and may not be conducive to restoring transportation in a timely manner in part because a third-party contractor may not have the same expertise or availability as in-house employees or be available. Further, the commenter stated that standby costs are unavoidable during emergency evacuation, reverse evacuation, and transportation restoration. Prepositioning of resources is part of effective storm planning, and this commenter’s labor agreements, for example, require bus operators to be paid for standby time. Finally, the commenter recommended that the definition be revised to include operating costs as well as capital costs for projects undertaken immediately before, during, or after an emergency. Although this comment was submitted in reference to the definition of ‘‘Emergency Protective Measures,’’ FTA believes that some of the commenter’s concerns over regular time and standby costs are addressed within E:\FR\FM\07OCR1.SGM 07OCR1 asabaliauskas on DSK5VPTVN1PROD with RULES 60352 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations the definition of ‘‘Emergency Operations.’’ The definitions of ‘‘Emergency Operations’’ and ‘‘Emergency Protective Measures’’ are complementary: ‘‘Emergency Operations’’ encompasses operating costs and ‘‘Emergency Protective Measures’’ encompasses costs related to protecting assets and infrastructure. In general, the purpose of the Emergency Relief program is to reimburse affected recipients for extraordinary costs related to an emergency or major disaster. Regular time—as opposed to overtime— is not an extraordinary cost. However, the operating costs the commenter describes relating to regular time and standby costs would be eligible for reimbursement as long as they satisfied the definition of ‘‘Emergency Operating Costs,’’ i.e., costs relating to evacuation service; rescue operations; temporary public transportation service; or reestablishing, expanding, or relocating public transportation route service before, during, or after an emergency. Similarly, operating costs incurred to perform emergency protective measures, such as relocating rolling stock, sandbagging and debris removal, would be eligible for reimbursement. ‘‘Emergency Repairs.’’ Two commenters expressed concern that the definition of emergency repairs was limited to projects undertaken immediately following the emergency or major disaster. One commenter noted emergency repairs could be delayed for weeks or even months. The other commenter stated that once service is restored, significant time may be needed before permanent repairs are made, requiring interim or temporary repairs conducted in the meantime. The commenter suggested an additional definition for ‘‘interim repairs’’ or ‘‘temporary repairs’’ to accommodate this circumstance. In response to comments, FTA is removing the word ‘‘immediately’’ from the definition. Since emergency repairs may be either temporary or permanent, we have retained the term ‘‘emergency repairs,’’ but added an additional purpose of emergency repairs: to ensure service can continue to be provided until permanent repairs are made. This will allow interim or temporary repairs to fit within the definition of emergency repairs. ‘‘Incident Period.’’ FTA is adding a definition for ‘‘incident period:’’ the time interval during which the emergency-causing incident occurs. This definition is relevant with regard to pre-award authority, as FTA will not approve pre-award authority for projects unless the damage to be alleviated resulted from the emergency-causing VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 incident during the incident period or was incurred in anticipation of that incident. The reason for this additional definition is to have consistency with FEMA’s definition of ‘‘incident period’’ at 44 CFR 206.32(f). For each Stafford Act incident, FTA will adopt the incident period established by FEMA. The term is used in section 602.11, PreAward Authority, and replaces the phrase, ‘‘the effective date of a declaration of emergency or major disaster.’’ ‘‘Major Disaster.’’ One commenter suggested that the definition of ‘‘major disaster’’ conflicts with the definitions of ‘‘resilience’’ and ‘‘resilience projects.’’ The commenter recommended substituting the term ‘‘multi-hazard’’ for the term ‘‘natural catastrophe’’ to encompass manmade disasters. Congress defined ‘‘Major Disaster’’ in the Stafford Act, at 42 U.S.C. 5122(2), and FTA includes that definition in the rule without change. Due to the coordination between FEMA, FTA, and Emergency Relief recipients contemplated within the final rule, FTA believes it is prudent to maintain the interim final rule’s inclusion of the statutory definition of ‘‘Major Disaster.’’ ‘‘Net Project Cost.’’ One commenter suggested that the term ‘‘net’’ should be removed and the definition revised since the proposed definition does not stipulate if all costs incurred, including indirect costs, are eligible. FTA notes that Federal cost principles apply to all FTA grants and indirect costs are eligible consistent with those principles. These and other administrative requirements for all FTA programs, including the Emergency Relief program, are explained in FTA Circular 5010.1D, Grant Management Requirements. (See, http:// www.fta.dot.gov/legislation_law/12349_ 8640.html). ‘‘Resilience.’’ FTA is making minor edits to this definition in order for the definition to be consistent with Executive Order 13653, Preparing the United States for the Impacts of Climate Change, Nov. 1, 2013. ‘‘Resilience Project.’’ Several commenters expressed concern with the proposed definition of ‘‘resilience project.’’ Three of the commenters proposed deleting any reference to whether a future disaster is ‘‘likely to occur.’’ Some commenters noted that a given disaster may be unlikely to occur, but resilience principles encompass protections against unlikely events as well. One commenter suggested that ‘‘resilience project’’ should include the word ‘‘sustainability,’’ to align with FEMA’s support of the Department of PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 Housing and Urban Development (HUD) program goals, including combining hazard mitigation objectives with the community development objectives, which include livability, sustainability, and social equity values. To the extent the eligibility of resilience projects is tied to Emergency Relief funds following a specific event, FTA believes it is important to note probable occurrence or recurrence as a factor in determining eligibility for these projects. In response to comments, FTA is slightly modifying the definition to state, ‘‘. . . due to a probable occurrence or recurrence of an emergency or major disaster in the geographic area . . .’’ FTA will provide additional guidance on this in our proposed Emergency Relief Manual, which we intend to publish later this year. Since the primary purpose of resilience projects is to provide protection to transit infrastructure so the taxpayers do not repeatedly pay to replace the same assets, FTA declines to add ‘‘sustainability’’ to the definition of resilience project. Section 602.7 Policy Several commenters provided comments to this section. One commenter repeated an earlier suggestion to include manmade disasters in the relevant sections of the final rule. One commenter highlighted the connection between the interim final rule and FTA’s anticipated regulations regarding transit asset management and a definition of ‘‘state of good repair,’’ and repeated a suggestion for a high-level definition of ‘‘state of good repair.’’ As stated previously, FTA interprets ‘‘catastrophic failure from an external cause’’ to include manmade disasters. As for the definition of state of good repair, FTA recently published an advance notice of proposed rulemaking (ANPRM) requesting comments on a definition of ‘‘state of good repair.’’ (78 FR 61251, Oct. 3, 2013, available at http://www.gpo.gov/fdsys/pkg/FR-201310-03/pdf/2013-23921.pdf). The comment period has closed, but FTA encourages interested stakeholders to review the notice of proposed rulemaking when it becomes available. For purposes of the Emergency Relief program, until FTA has published a program-wide definition, we will use the definition provided in the May 29, 2013, Federal Register notice (78 FR 32296) announcing the allocation of Hurricane Sandy relief funds: ‘‘a project is considered to bring the transit assets up to a ‘state of good repair’ if it consists of the installation of comparable equipment that meets the same basic E:\FR\FM\07OCR1.SGM 07OCR1 asabaliauskas on DSK5VPTVN1PROD with RULES Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations function, class, or capacity of the equipment replaced and also meets current technological or design standards, or a like-new condition.’’ Regarding paragraph (c), which provides that recipients may include projects that increase the resilience of affected public transportation systems in conjunction with repair and reconstruction activities, two commenters supported the overall policy goal and provided further suggestions. One commenter requested clarification that resilience and reconstruction work can be done in conjunction without being part of the same project or contract. In addition, one commenter asked whether nearterm, temporary resilience projects designed to protect against the possibility of an event, such as hurricane season, would be eligible under the Emergency Relief program. If funds become available for FTA to allocate for resilience projects, such near-term projects may be eligible on a case-by-case basis. In some cases, it will make sense to do resilience projects as part of the same repair/reconstruction contract or project, and in other cases it may be more appropriate for the resilience work to be done under a separate contract or project. The language in the rule is flexible enough to allow either scenario. Regarding paragraph (e), one commenter requested further clarification regarding allocation of global insurance proceeds to prevent duplication of funding with FTA grants under the Emergency Relief program. The commenter sought specific language in this section of the rule related to allocation of insurance proceeds, and the use of insurance proceeds as local match. In response, FTA is adding language to this paragraph regarding allocation of insurance proceeds when (1) recipients receive proceeds for specified assets, and (2) recipients receive blanket, lumpsum, or otherwise unallocated proceeds. In the first case, and consistent with existing FTA policy on insurance proceeds, the recipient must either apply those proceeds to the cost of replacing or repairing the damaged or destroyed project property; or return to FTA an amount equal to the remaining Federal interest in the lost, damaged, or destroyed project property. Interested stakeholders should review the provisions of chapter IV of FTA Circular 5010.1D, as these provisions will generally apply. In some cases, a recipient’s insurance policy may not attribute insurance proceeds to specific assets, and instead will provide unallocated, or lump-sum payments. VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 Such payments may include proceeds for non-transit assets as well as for business interruption if the recipient has this coverage. In this second case, FTA, in consultation with the recipient, will determine the portion of such proceeds that the recipient must attribute to transit assets. Generally, insurance proceeds may not be used as local match. However, in some circumstances, as when a recipient receives insurance payments for activities not eligible for FTA reimbursement, any share of the proceeds that is not due to FTA may be used as local match. FTA is adding language to this effect in the rule. FTA is adding new paragraphs (f), (g) and (h) to address the flood insurance requirements for transit assets in special flood hazard areas (i.e., 100-year flood zones), and to state FTA’s policy with regard to uninsured property. Although not included in the IFR, paragraphs (f) and (g) merely summarize the preexisting requirements of the Flood Disaster Protection Act of 1973 and describe the types of transit assets that must be insured if they are located in a special flood hazard area. As stated above in Section 602.5 Definitions, FTA is adapting the definitions of ‘‘building’’ and ‘‘contents coverage’’ from FEMA’s regulation at 44 CFR 59.1 to provide consistency between the National Flood Insurance Program and FTA’s Emergency Relief program. The requirement for flood insurance for transit assets located in special flood hazard areas is not new. In order to ensure compliance with the Flood Disaster Protection Act, Section 23 of FTA’s Master Agreement requires recipients to obtain flood insurance as appropriate, and each recipient certifies annually through the certifications and assurances that it is in compliance with this requirement. In accordance with section 102 of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4012a), new paragraphs (f) and (g) make clear that a covered structure must be insured through the National Flood Insurance Program or a comparable private policy. The policy must provide coverage at least equal to the project cost for which Federal assistance is provided, or to the maximum limit of coverage available under the National Flood Insurance Act (currently $500,000 for buildings and $500,000 for equipment and fixtures), whichever amount is less. Finally, commenters were opposed to a minimum monetary damage threshold for FTA emergency relief grants, and expressed concern that setting a minimum monetary threshold for capital projects, emergency protective PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 60353 measures or emergency operations would be challenging to implement, given the varying size of transit agencies and resources available to those agencies, and that the threshold calculation, if based on ridership, passenger miles, or some other metric, could be burdensome. In addition, the cost of repairing or replacing assets varies widely depending on the asset. In response to comments, FTA is not implementing a minimum monetary damage threshold for the Emergency Relief Program. Section 602.9 Federal Share One commenter stated that since the Emergency Relief program is intended to fund transit agencies’ recovery from unplanned natural disasters, FTA should ensure significant flexibility in the local match funding requirements, which are often unbudgeted. If a one hundred percent federal share is not feasible, the commenter urged FTA to allow for flexibility in the use of matching funds, including the following: Transportation Development Credits, insurance money, over-match budgeted in other FTA funded capital projects already planned or underway in the disaster area, and funds included in approved and funded operating budgets that are intended for identifiable emergency relief tasks. In response to these comments, FTA notes that the law provides that an Emergency Relief grant shall be for up to 80 percent of the net project cost, and that the Secretary may waive the nonfederal share. FTA notes that the federal share for FEMA’s Public Assistance grants is 75 percent unless the Federal share is increased, depending on the extent of the damage related to the disaster. The rule provides only information related to the percent federal share, and not the source of local match, as the source of local match is statutory. 49 U.S.C. 5324(e)(2). Sources of local match include an undistributed cash surplus, a replacement or depreciation cash fund or reserve, or new capital. In addition, Transportation Development Credits (i.e., toll credits) are eligible as match pursuant to 23 U.S.C. 120. Further, in accordance with 42 U.S.C. 5305(i), U.S. Department of Housing and Urban Development Community Development Block Grant (CDBG) funds that are available for transportation projects may be used as non-federal match for Emergency Relief fund grants. Section 602.11 Pre-Award Authority Five commenters submitted comments on this section. One commenter suggested that the final rule E:\FR\FM\07OCR1.SGM 07OCR1 asabaliauskas on DSK5VPTVN1PROD with RULES 60354 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations should clarify whether pre-award authority would encompass resilience projects in addition to emergency preparation and response activities. The commenter also recommended that, rather than limiting pre-award authority ‘‘to a maximum amount as determined by FTA’’ based on facts specific to each disaster, FTA should instead allow preaward authority generally for ‘‘valid and justifiable expenses.’’ Another commenter suggested that when money has been appropriated specifically for a particular situation, the full amount should be made immediately available through pre-award authority. FTA appreciates the suggestions made by these commenters. Resilience projects are inherently different from recovery projects, in that there generally needs to be a benefit-cost analysis to determine if the project is reasonable and will in fact protect public transit assets from future damage. Since these projects require FTA approval in advance of incurring costs, pre-award authority will generally not be available for these projects. In addition, FTA generally will not make an entire appropriation available for pre-award authority; however, the amount FTA allocates to a recipient will be available for pre-award authority. In the event a recipient is incurring costs in excess of the pre-award authority FTA has made available, the recipient should contact FTA to discuss the circumstances and the need for a greater amount of preaward authority. Another commenter expressed concern that the provision as written would appear to condition pre-award authority on the typical pre-award requirements that projects be on the Transportation Improvement Program/ State Transportation Improvement Program (TIP/STIP), have an environmental finding in place, and be included in a grant that is in development. The commenter noted that such requirements are not appropriate in an emergency situation and suggested that the final rule include the statement from FTA’s Allocation Notice that agencies may certify that a project does not result in a substantial functional, locational, or capacity change and therefore does not require inclusion on the TIP/STIP. The joint FTA/Federal Highway Administration (FHWA) metropolitan and statewide planning rule at 23 CFR 450.324(c)(5) and 450.216(g)(5) provides that emergency relief projects that do not involve substantial functional, locational, or capacity changes are not required to be in the TIP or STIP. Resilience projects—both stand-alone projects and projects completed at the VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 same time as repairs—likely will involve substantial functional, locational, or capacity changes and must be included in the TIP/STIP. The joint FTA/FHWA environmental impact and related procedures rule at 23 CFR part 771 provides that many activities undertaken immediately following an emergency will be categorical exclusions. FTA and FHWA issued a final rule on February 19, 2013 (78 FR 11593, available at http://www.gpo.gov/ fdsys/pkg/FR-2013-02-19/pdf/201303494.pdf), providing that emergency repairs funded under 49 U.S.C. 5324 are categorically excluded (CE), absent unusual circumstances. Further, the rule provides that the repair, reconstruction, restoration, retrofitting, or replacement of any transit facility is categorically excluded if the transit facility is in operation or under construction when damaged, and the action (1) occurs within the existing right-of-way and substantially conforms to the preexisting design, function, and location, and (2) work is commenced within two years of the declared emergency or disaster. It is important to note that the availability of a categorical exclusion for emergency relief projects does not exempt the applicability of other environmental requirements. FTA recommends that any grant applicant that is concerned that a project may not clearly qualify for the categorical exclusion contact the appropriate FTA Regional Office for assistance in determining the appropriate environmental review process and level of documentation necessary before incurring costs for property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials. Project sponsors should consult with FTA directly on approaches to meeting any requirements that FTA does not determine are exempt. The existing rules ensure that recipients can undertake emergency response activities immediately after a disaster with some assurance that they will not violate Federal planning and environmental requirements. Consequently, FTA does not believe it is necessary to include similar provisions in the Emergency Relief rule. Several commenters addressed FTA’s request for comments regarding the phrase ‘‘forecast with some certainty to hit the affected area’’ with respect to pre-award authority for storms that can be predicted. Three commenters expressed dissatisfaction with the proposed language, but differed in their alternative suggestions. Two commenters suggested adopting current FEMA standards for defining the PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 beginning of an emergency, including FEMA Policy FP 010–4. One commenter suggested that pre-award authority should be linked to an agency’s documented disaster preparedness plan, noting that the plans for different disasters require different time periods. Finally, two commenters approved of the phrase suggested by FTA, with one commenter noting that it provides for maximum flexibility for future emergencies. In response to comments and for consistency with FEMA, FTA is amending this section. FTA is electing not to adopt FEMA’s Policy FP 010–4 in its entirety, as it is subject to revision every three years. Instead, we have conferred with FEMA regarding their practice and reviewed FEMA’s regulation for requests for emergency declarations at 44 CFR 206.35, and are amending the text as follows: For expected weather events, the Governor must declare a state of emergency and request concurrence by the Secretary of Transportation or make a request to the President for an emergency declaration, in advance or anticipation of the impact of an incident that threatens such damage as could result in a major disaster, and take action under State law to direct execution of the State emergency plan. In addition, the emergency operations and emergency protective measures activities must be required in anticipation of the event. Adopting this text provides affected recipients with certainty as to when FTA will fund emergency protective measures, evacuations, and other activities, and aligns FTA’s regulation with FEMA’s. Finally, FTA notes that recipients may use section 5311 and section 5307 formula funds in response to a disaster or emergency. Importantly, if section 5324 emergency relief funds are or become available, the formula funds may not be replenished from section 5324 funds. However, a recipient may find that use of formula funds is the best course of action. In this case, pre-award authority exists from the first day of the incident period, in an amount up to the amount of formula funds available to that recipient. FTA is adding text to this section of the rule to reflect this. Section 602.13 Eligible Activities Five entities commented on this section. Commenters were supportive of FTA’s decision to allow replacement of damaged assets with new assets. One commenter suggested FTA should clarify that design standards include applicable building codes and general standards of care and best practices for the industry. FTA believes that E:\FR\FM\07OCR1.SGM 07OCR1 asabaliauskas on DSK5VPTVN1PROD with RULES Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations applicable building codes and best practices are captured in the policy statement that projects should be rebuilt/repaired/replaced to a state of good repair. One commenter suggested that FTA consider allowing a certain percentage of resilience elements in a grant for emergency repairs, and another commenter stated that FTA should allocate resilience funds as soon as possible in order to allow integrated resilience measures to be funded through dollars allocated for repair. FTA agrees in concept that notification of the availability of funds for resilience projects should be made as soon as possible. However, since the funding for the Emergency Relief (ER) program is subject to congressional appropriations each fiscal year, it is not appropriate to specify that level of detail in the ER rule. Resilience projects are an eligible expense; however, it is likely that the availability of funding for resilience projects may be on a case-by-case basis, and not necessarily for all emergencies or disasters. One commenter suggested that because bus systems necessarily operate on streets and roads, there should be some eligibility in the FTA Emergency Relief Program for ‘‘transit streets’’ and ‘‘transit bridges.’’ The commenter acknowledged that these roads and bridges fall under the jurisdiction of a different agency. FTA’s Emergency Relief program allows FTA to fund capital projects to repair the facilities of a public transportation system. To the extent a bus rapid transit (BRT) system operates on a separated fixed guideway, the guideway would be eligible for ER funding if damaged, in the same way a rail fixed guideway would be eligible for ER funding. However, if the BRT system operates on streets shared with other motor vehicles, damage to the street would not be an eligible expense for FTA’s Emergency Relief Program. Repairs to the street or bridge may, however, be eligible for FEMA or FHWA ER funding. One commenter suggested that FTA be clear that repair or replacement of spare parts held in the normal course of business and damaged or destroyed are an eligible expense. FTA is amending the rule to reflect that replacement of spare parts is eligible for reimbursement. The commenter also noted that some damages could be latent, and the full impact of a disaster may not be known for months or years, and that these damages should be eligible under the Emergency Relief program. Certainly in the case of some disasters, there will be latent damage. VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 Any repairs or replacements would be eligible under the rule as drafted. Regarding the eligibility of formula and other funds available to the recipient to be used in conjunction with Emergency Relief funds to make substantial changes or improvements to an affected transit asset during the course of an Emergency Relief project, one commenter asked whether formula and other funds could be used as the local match. With the exception of CDBG funds as described above, Federal funds may not be used to match Emergency Relief funds. Affected recipients may use their FTA formula funds to augment their ER funds in order to pay for activities not eligible under the Emergency Relief Program, but may not use formula funds to match ER grants. FTA requested comment on the extent of the benefit-cost analysis that is appropriate to justify emergency repairs, permanent repairs, and resilience projects, and did not include any regulatory text regarding these analyses in the interim final rule. In response, one commenter had a list of specific suggestions: (1) Projects to restore existing assets and services should be exempt from benefit-cost analysis; (2) wherever possible, FTA should provide standard values to be used in the preparation of benefit-cost analysis to improve comparability across projects and reduce guesswork; (3) the benefitcost analysis should not be overly onerous, should not require applicants to hire consultants, and should involve mutually supportive interaction between the applicant and FTA; (4) the benefit-cost analysis should recognize transit network benefits and social benefits, including the high-value benefit of network redundancy; and (5) FTA should consider adopting the broad approach to benefits found in the FEMA Hazard Mitigation programs, rather than the narrow criteria present in the FHWA Emergency Response program. Another commenter recognized the need for benefit-cost analysis, but recommended allowing agencies to use internally-developed processes for evaluating project benefits when identifying resilience measures internally. The commenter further urged that if FTA intends to use benefit-cost analysis to compare resilience projects across properties and allocate funding on that basis, agencies should be able to consider benefits of a project to the transit system as a whole, not merely the line segment where the project will occur. Finally, the commenter suggested that broad economic impacts should also be considered in a benefit-cost analysis to compare projects across PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 60355 agencies, and allowances should be made for regional cost differences in the development of a nation-wide methodology. A third commenter suggested that the loss of function costs should include economic loss based on the financial status of transit agencies’ riders. A fourth commenter also noted that the cost element of a benefit-cost analysis for resilience projects should incorporate the full indirect costs associated with a partial or complete transit system shut-down. Two commenters suggested that the level of risk analysis performed on a project cost estimate should vary with the type of project, so that routine activities would require minimal review while more complex projects would require deeper risk analysis. FTA appreciates the comments, and will consider the comments as FTA develops guidance for benefit-cost analyses under this program. FTA is choosing not to include regulatory text related to benefit-cost analysis at this time, as we agree that the submission of a benefit-cost analysis to FTA will usually not be necessary for emergency or permanent repairs. Resilience projects will generally require the completion of some form of benefit-cost analysis, and any future notices of funding availability will specify whether FTA requires a benefit-cost analysis. If a benefit-cost analysis is required for a particular situation, FTA’s process will be consistent with OMB Circular A–94. FTA notes that FEMA has developed a rigorous benefit-cost analysis methodology, which FTA considered in developing its procedures for evaluating proposed resilience projects in its recent notice of funding availability for Hurricane Sandy resilience projects (78 FR 78486, Dec. 26, 2013, http://www.gpo.gov/fdsys/pkg/ FR-2013-12-26/pdf/2013-30867.pdf). Section 602.15 Grant Requirements Five commenters addressed the provisions in this section, focusing on FTA’s case-by-case determination of the 45-day inapplicability of FTA’s grant requirements, the requirements for Executive Order 11988 floodplain analysis, and the absence of applicability of labor protections for the Emergency Relief Program. As stated in the preamble to the interim final rule, FTA may determine the inapplicability of certain 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 E:\FR\FM\07OCR1.SGM 07OCR1 asabaliauskas on DSK5VPTVN1PROD with RULES 60356 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations 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. Several commenters stated that the 45-day waiver of the grant requirements was insufficient to provide for effective planning and the reality of disaster response. One commenter said that the Administrator should be given more explicit authority to increase the 45-day waiver period as necessary, commensurate with the intensity of the event and the restoration of normal operating service. Another commenter suggested that, while the 45-day waiver period may be sufficient in many circumstances, FTA should prospectively waive certain requirements for a longer period, and should be as flexible as possible in its implementation of the usual FTA requirements. One commenter recommended a 180-day waiver of normal FTA grant requirements and procurement rules. Two commenters suggested that FTA should be as flexible as possible with regard to procurement requirements, with one commenter recommending that procurement rules should be waived for all emergency work and permanent repairs, and that the use of pre-existing contracts, including those not procured through Federal methods, should be acknowledged and permitted. The commenter also noted that ‘‘exigent circumstances’’—a justification for sole source procurements allowed in the common grant rule—might last for several years due to the need to stage work in a way that minimizes the adverse impact to customers. FTA believes that 45 days is sufficient as a starting point for a broad inapplicability of certain FTA requirements, and that the rule provides sufficient flexibility to permit the Administrator to increase that time period as he or she deems necessary. We note that FTA provided a 90-day period after Hurricane Sandy in which certain FTA requirements were relaxed, and this was ample time for most circumstances. As stated in the preamble to the interim final rule, FTA also establishes an emergency relief VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 docket each year, by which affected recipients may request waivers from FTA requirements. See 49 CFR part 601, subpart D. The common grant rule (49 CFR 18.36) provides that noncompetitive procurement is permitted only when one of a specific set of circumstances applies. One of those circumstances is ‘‘the public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation.’’ Certainly in the first 45 days after a major disaster, affected recipients will need to respond quickly, and the public exigency circumstance will generally apply. However, in FTA’s view, while some permanent repairs will be completed soon after the emergency or disaster, many permanent repairs will be planned many months in advance and there will be ample time for competitive solicitations. Public exigency—by definition ‘‘urgency’’—is not a circumstance that will last ‘‘for several years.’’ FTA expects agencies to stage permanent repair work subsequent to an emergency or major disaster in the same manner they stage their regular, ongoing maintenance and repair work in a way that minimizes adverse impacts to customers. Regarding the application of Executive Order (E.O.) 11988, Floodplain Management, one commenter noted that the floodplain management provisions should not be applied to ferry projects, which inherently will almost always be placed in a floodplain (an area subject to a one percent or greater chance of flooding in any given year, also known as a special flood hazard area). Two commenters requested that FTA streamline the E.O. 11988 analysis procedures whenever possible, for example by allowing recipients to group and discuss similar repair and resilience projects that would likely result in similar conclusions and findings regarding floodplain impacts, or by allowing agencies to perform the E.O. 11988 analysis concurrently with FTA project development. Three commenters discussed the impracticability of relocating certain transit infrastructure outside of floodplain boundaries, and one commenter suggested that FTA should incorporate into the final rule, text from the preamble stating that elevating structures within the floodplain is not a necessary precondition to funding. In addition, this commenter recommended that FTA specify that only practical measures to mitigate future damage are required, i.e., measures whose costs are not disproportionate to the protection they provide. One commenter suggested that FTA use other official sources of PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 information in addition to FEMA, including the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Army Corps of Engineers, when determining appropriate flood elevations, and that FTA post the current sources of information to its Web site. While it is true that ferry facilities will almost always be located in a floodplain, there are actions that ferry operators can take to mitigate or prevent damage to ferry terminals and maintenance facilities, as well as the ferries themselves, in the event of a flood. Further, the Executive Order does not give FTA the discretion to exempt ferries or any other transit system from the E.O. requirements. FTA reminds recipients that while Hurricane Sandy brought a renewed focus to the effects of building in floodplains, E.O. 11988 was signed in 1977, and the analysis required by that Executive Order is not new. U.S. DOT and FTA have published guidance on floodplain management (see http://www.fta.dot.gov/12347_ 2237.html) and FTA expects to provide updated guidance as part of an emergency relief guidance document. Generally, FTA has no objection to recipients ‘‘streamlining’’ the E.O. 11988 analysis procedures as long as the recipients’ actions are consistent with the Executive Order and the DOT guidance. As to the practicality of measures to mitigate future damage within a floodplain, the E.O. discusses the ‘‘practicability’’ of alternative site locations and actions to ‘‘minimize’’ potential harm when the only practicable alternative is siting in the floodplain. The U.S. DOT Order for Floodplain Management and Protection (see http://isddc.dot.gov/OLPFiles/DOT/ 007652.pdf), published in 1979, defines ‘‘practicable’’ as ‘‘capable of being done within natural, social, and economic constraints.’’ FTA believes the E.O. and the U.S. DOT Order contemplate the sort of benefit-cost analysis suggested by the commenter, and that it will not be practicable to relocate certain transit infrastructure to non-floodplain areas. As for the suggestion that FTA use other official sources of information for determining appropriate flood elevations, the Executive Order, as amended by E.O. 12148, vests the authority for this function in FEMA. However, as stated in the preamble to the interim final rule, 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 E.O. 11988. E:\FR\FM\07OCR1.SGM 07OCR1 asabaliauskas on DSK5VPTVN1PROD with RULES Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations In the preamble to the interim final rule, we explained that recipients would also consider the best available data on sea-level rise, storm surge, scouring and erosion before rebuilding in order to comply with the requirements of E.O. 11988. This text was inadvertently left out of the regulatory text, and we have included it in this final rule at section 602.15(d)(6). FTA believes including this requirement in the regulatory text is desirable to clarify that this type of data should be reviewed when determining whether a project is located within a floodplain. Finally, two commenters urged FTA to include labor protections codified at 49 U.S.C. 5333(b) as grant requirements for the Emergency Relief program. In support of their position, the commenters pointed to the history of labor protections in the Federal transit program, the scope of work to be completed as a result of Hurricane Sandy, and the provision in the ER statute that permits the Secretary to set grant terms and conditions the Secretary determines are necessary. The Emergency Relief program is not included in the list of programs to which 49 U.S.C. 5333(b) applies, nor does the text of 49 U.S.C. 5324 reference section 5333(b) or the requirements of any other section of chapter 53. Therefore, Congress did not expressly include labor protections as a grant condition for emergency relief grants. Certification of grants by the Department of Labor adds additional time to the grant process, and in an emergency situation, the timing of grant award is often critical, especially for smaller transit agencies that do not have the resources to respond to a disaster and then wait for reimbursement. FTA understands the concerns raised by the commenters, especially in circumstances such as Hurricane Sandy, with a multi-billion dollar supplemental appropriation and the likelihood that it will take several years to complete repairs. But it is important to note that the final rule will apply to all future emergencies and major disasters, not just Hurricane Sandy response. Hurricane Sandy was the greatest transit disaster in history, and therefore is far from typical. FTA has requested a modest $25 million annual appropriation from Congress in order to provide funding for transit agencies that experience damage as a result of an emergency or major disaster. One of the commenters acknowledged that labor protections are not required under the Emergency Relief Program, argued that Congress did not prohibit the application of labor protections, and asserted that FTA has the authority to VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 apply labor protections if those protections are deemed necessary. FTA agrees with this commenter, and, given that each disaster is unique, the statutory flexibility to establish grant terms and conditions allows FTA to address the applicability of labor protections to each emergency or disaster on a case-by-case basis. For the above reasons, FTA declines to include specific regulatory text related to this issue. Section 602.17 Application Procedures Five commenters submitted comments addressing provisions of this section. Commenters suggested that six weeks is insufficient time for the preparation of damage assessment reports, and recommended that FTA adopt a 60-day time period for damage assessment reports consistent with FEMA practice. Commenters also noted that damage assessment is an iterative process, as assets that initially appear undamaged may later require repair. In addition, commenters suggested that it is unreasonable to expect initial damage assessment reports to include permanent repairs and recommended resilience projects, which may not be fully identified until after the initial response period. While the six week damage assessment report is consistent with the FHWA emergency relief rule, FTA acknowledges that transit systems, particularly rail transit systems, can be more complex, and therefore, FTA is amending the rule to allow 60 days for submission of an initial damage assessment report. As with the interim final rule, this time period is qualified by the phrase, ‘‘unless unusual circumstances prevail,’’ which allows FTA and affected recipients to take more time if needed. In addition, FTA is adding a provision permitting an affected recipient to submit an updated damage assessment report as appropriate, as when latent damage becomes known. One commenter requested clarification regarding the coordination of damage assessment reports for both FTA and FEMA. The commenter asked whether the agency would be required to file duplicate reports with both agencies; how conflicts between FTA and FEMA guidance and regulations would be resolved; and whether FTA or FEMA would be designated as the lead agency in terms of agency response. The commenter also requested that FTA include a sample damage assessment report as an appendix to Part 602, or as an attachment to the FTA/FEMA MOU PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 60357 to reflect the information required of recipients of both agencies. The rule requires coordination with FEMA when appropriate because FTA does not want affected recipients to duplicate efforts after an emergency or major disaster. Until FTA has a regular annual appropriation for the Emergency Relief Program, affected recipients will have to apply to FEMA for reimbursement of emergency relief expenses unless there is a specific appropriation for FTA, as there was with Hurricane Sandy. Alternatively, recipients may use FTA section 5307 or section 5311 formula funds to address an emergency, but those funds may not be ‘‘replenished’’ from the FTA Emergency Relief Program, FEMA, or any other Federal source of funds. Generally, affected recipients will not be required to file damage assessment reports with both FTA and FEMA, but working with both agencies prior to a specific appropriation should help to streamline the process in the event FTA receives funding. If FTA has funds, FTA will be the lead agency for disaster response. If FTA does not have funds, FEMA will be the lead agency, and FTA will provide technical assistance to affected recipients. Damage assessment reports will vary widely depending on the nature of the emergency or disaster, as well as the size of the affected recipient and the types of service it provides, so FTA declines to provide a sample as a part of this rulemaking. FTA may develop one or more sample damage assessment reports as part of its guidance for the Emergency Relief Program. One commenter suggested that, in the interest of efficiency, FTA should not require production of documents, such as disaster declarations, that are a matter of public record. Another commenter requested that as many documents as possible be kept on file and subject to the triennial review or other audit rather than attached in the Transportation Electronic Award Management system (TEAM), including the damage assessment, copy of the disaster declaration, insurance policies, and agreements with other federal agencies. A third commenter suggested that large transit agencies be afforded the discretion to choose and submit those documents that best reflect the impact of the emergency or disaster on the agency’s operations. FTA concurs with the suggestion that publicly available documents not be included in the damage assessment report, and is striking the language requiring a copy of the Governor’s or President’s declaration of emergency or disaster. If not uploaded into FTA’s E:\FR\FM\07OCR1.SGM 07OCR1 asabaliauskas on DSK5VPTVN1PROD with RULES 60358 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations electronic grant management system, supporting documents need to be provided to FTA by other means, such as email or in-person. Simply having the documents available is not sufficient, as in many cases FTA will need to become familiar with insurance policies, damage assessments, and agreements with other federal agencies. Therefore, FTA must have copies of those documents as early in the response period as possible. As with the interim final rule, the language of the final rule states, ‘‘as appropriate, the damage assessment report should include . . .’’ This allows some latitude to affected recipients to submit the most appropriate documentation. In the interim final rule, FTA requested comments regarding whether applications for Emergency Relief funds should incorporate requirements of Section 1315(b) of MAP–21, which requires a periodic evaluation to determine whether there are reasonable alternatives to roads, highways, or bridges that have repeatedly required repair or reconstruction in the past as a result of emergencies or major disasters, but did not include at that time any regulatory language. Three entities responded to this request. Two commenters stated that such an analysis would be inappropriate in the context of emergency repairs. One of the commenters noted that this requirement would significantly increase the volume of necessary documentation without adding significant value to the evaluation process. The other commenter noted that compliance with Section 1315(b) provisions would be time-consuming for transit agencies, though the commenter admitted that there should be some mechanism in place to prohibit eligibility for inherently faulty projects, and proposed that alternatively, such projects could be eligible for FEMA’s hazard mitigation program. The remaining commenter stated that any evaluation of prior repeated damage should require the applicant to explain whether the current design or proposed redesign more effectively protects against future damage. After analyzing the comments, FTA has decided to include regulatory language concerning the evaluation of alternatives. Although not included in the IFR, this regulatory language tracks closely both to what FTA requested comment on in the IFR and the comments the agency received and is, therefore, a clear logical outgrowth of the IFR. FTA agrees with commenters that an evaluation is not appropriate in the context of emergency repairs. For other projects, though, today’s final rule VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 requires an evaluation of alternatives for infrastructure that has previously required repair or reconstruction as a result of emergencies or major disasters could easily be included in the damage assessment report. Therefore, FTA is adding a new paragraph to section 602.17. As part of the damage assessment report, applicants must include an evaluation of reasonable alternatives, including change of location and addition of resilience/ mitigation elements, for any damaged transit facility that has been previously repaired or reconstructed as a result of an emergency or major disaster. If none of a transit agency’s damaged assets were previously damaged in an emergency or disaster, the damage assessment report would include that simple statement. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures A. Executive Orders 12866 and 13563 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. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. FTA does not know precisely how grants to various entities (i.e., transfer payments) would be affected by the rule. Since the rule may affect transfer payments totaling more than $100 million annually, FTA has determined that this PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 is an ‘‘economically significant’’ rule under Executive Order 12866. This determination is based on the Disaster Relief Appropriations Act of 2013 (Pub. L. 113–2), which appropriated $10.9 billion to FTA to provide assistance to public transportation systems impacted by Hurricane Sandy, and the potential for a major disaster to occur in the future. The Obama Administration’s budget requests included $25 million for each of fiscal years 2013 and 2014 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 2014 Consolidated Appropriations Act (Pub. L. 113–76). Hurricane Sandy was an extraordinary event resulting in historic 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. Eligible projects under the statute and the rule include emergency operating expenses, as well as capital projects to protect, repair, reconstruct or replace public transportation equipment and facilities. In this rule, FTA has given ‘‘protection’’ of assets two distinct meanings: emergency protective measures taken immediately before, during, or after an emergency to protect assets from damage or further damage, and resilience projects that protect against future disasters. FTA’s policy, as stated in section 602.7 of this rule, is to assist 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. In conjunction with repair and reconstruction activities, recipients may include projects that increase the resilience of affected public transportation systems to protect the systems from the effects of future emergencies and major disasters. Inherent in this policy is a prioritization of emergency operating expenses and emergency recovery and response projects over projects that protect against future emergencies. This prioritization could impact the funds available for resilience projects. Through the Emergency Relief Program, FTA will reimburse States and local governmental authorities for E:\FR\FM\07OCR1.SGM 07OCR1 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations 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. B. Need for Regulation This final rule will carry out a new Public Transportation Emergency Relief Program, codified at 49 U.S.C. 5324 and authorized by MAP–21. The Disaster Relief Appropriations Act of 2013 required FTA to issue an interim rule and today’s action makes minor changes in response to comments and finalizes the rulemaking. This rule applies not only to Hurricane Sandy, but to future emergencies and disasters that public transportation systems may experience. C. Regulatory Evaluation 1. Overview The Public Transportation Emergency Relief Program makes funding available to public transportation agencies impacted by emergencies and major disasters. The rule provides that these agencies may apply for funding in order to reimburse the costs incurred as a result of the emergency or major disaster. asabaliauskas on DSK5VPTVN1PROD with RULES 2. Covered Entities Affected recipients that will apply for funding under the Emergency Relief Program are public bodies and agencies (transit authorities and other state and local public bodies and agencies thereof) including states, municipalities, other political subdivisions of states; and public agencies and instrumentalities of one or more states that provide public transportation services. Private non-profit entities that provide public transportation service are eligible subrecipients. As this rule implements a new program, FTA can only estimate the number of transit agencies that might apply for Emergency Relief funds. Notably, emergencies and major disasters can happen at any place and at any time, in rural, small urbanized as well as large urbanized areas, so any FTA recipient may be affected by this rule. 3. Eligible and Ineligible Activities As stated previously, FTA has exercised limited discretion in interpreting 49 U.S.C. 5324, which defines the eligible activities for the Emergency Relief Program. It is necessary, however, to provide more detail than what the statute provides regarding eligible activities. FTA turned VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 to its sister agency, the Federal Highway Administration (FHWA), for definitions, eligible activities, and process, as FHWA has had an emergency relief rule for many years (23 CFR part 668). FTA also looked at eligible activities under the Stafford Act in order to ensure that affected recipients would be able to apply for all of their emergency needs from FTA, thus allowing for a streamlined application and reimbursement process. A. Eligible Expenses Emergency operations, emergency protective measures, emergency repairs, permanent repairs and resilience projects, as those terms are defined in section 602.5 of this rule, are eligible for emergency relief funding. FTA’s goal is to ensure that all projects eligible under relevant sections of the Stafford Act, including sections 403 (Essential Assistance), 406 (Repair, Restoration and Replacement of Damaged Facilities) and 419 (Emergency Public Transportation), will be eligible under FTA’s Emergency Relief Program. Actions taken by public transportation agencies to protect assets in advance of a serious weather event can have substantial financial benefits. For example, moving rolling stock to higher ground to protect it from storm surges can save millions of dollars. Further, actions taken during a weather event and in its immediate aftermath, including debris removal and dewatering, can prevent further damage to public transportation assets. It is in FTA’s and the Federal taxpayer’s interest to reimburse the cost of these activities. Public transportation agencies are an integral part of the communities they serve, and these agencies will often assist with evacuations, rescue operations, and transportation of utility workers and other first responders, often without regard to the expense of those services. In addition, reestablishing public transportation service after an emergency or major disaster may cause a public transportation agency to incur extraordinary costs that are not in the agency’s budget. Temporary and permanent repairs undertaken after an emergency or major disaster assist the transit agency with restoring service and bringing the repaired or replaced facilities into a state of good repair. Temporary repairs may be necessary to restore service, and these repairs should, when feasible, be undertaken in such a way as to reduce the cost of permanent repairs. Bringing facilities and equipment into a state of good repair has both quantifiable and non-quantifiable benefits. Systems that PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 60359 are in a state of good repair are more efficient, more reliable, and more attractive to transit riders. Public transportation systems that are in a state of good repair have fewer breakdowns, and it is often less expensive to keep equipment and facilities in a state of good repair than it is to undertake heavy maintenance projects to keep a system running. Resilience projects to address vulnerabilities to a public transportation facility or system due to the potential future recurrence of emergencies or major disasters have long-term financial benefits. Rebuilding with materials that can withstand weather events, rebuilding in a different location, or adding protective features to a facility or system can prevent the facility or system from experiencing similar damage in the future. These benefits are not only monetary; the ability to restore service in a timelier manner subsequent to an emergency or major disaster, when the facility or system has not sustained serious damage because it was strengthened by a resilience project, helps to restore the community to normalcy more quickly. Finally, there is a benefit to the public transportation agencies when they can go to FTA for reimbursement of their emergency expenses. Under FEMA’s Public Assistance Program a public transportation agency is a subgrantee and therefore receives its funding through the grantee, the State, with which many public transportation agencies do not have an ongoing funding relationship. Therefore, even after Federal obligation of the funds, it can take time before the funds are received by the public transportation agency. The establishment of FTA’s Public Transportation Emergency Relief Program should expedite reimbursement to public transportation agencies, resulting in a benefit for these agencies. B. Ineligible Expenses The purpose of the Emergency Relief Program is to provide Federal assistance for extraordinary costs resulting from an emergency or major disaster. The Emergency Relief Program should not be a substitute for good management of assets, nor should it be used for minor emergencies that do not cause serious damage. Therefore, heavy maintenance activities are not an eligible expense. In addition, any projects funded by another Federal agency, insurance policies, or already in an FTA grant are not eligible. FTA Emergency Relief funds should supplement, not supplant, these other sources of funds. Revenue losses due to service disruptions are not E:\FR\FM\07OCR1.SGM 07OCR1 60360 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations eligible expenses. The ineligibility of these expenses will help to ensure good stewardship of public transportation assets, and will ensure that FTA is not using Emergency Relief funds to pay for a project or activity that has another funding source. Some transit agencies may experience significant revenue losses due to service disruptions; however, this is something for which transit agencies can plan, and for which they can be insured. The benefit of not covering these expenses is that more funds will be available for the eligible activities. 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 final rule on small entities and has determined the final rule will not have a significant economic impact on a substantial number of small entities. Recipients of Emergency Relief Program funds are generally States and local governmental authorities. The only burden placed upon local governments by this rule is the paperwork burden associated with the application process, which is addressed in the Paperwork Reduction Act section. FTA has sought 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 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 up to 80 percent, and the Secretary may waive all or part of the non-Federal share. This 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). asabaliauskas on DSK5VPTVN1PROD with RULES Executive Order 13132 (Federalism) This final rule has been analyzed in accordance with the principles and criteria established by Executive Order 13132, and FTA has determined that this final rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. FTA has also determined that this final rule will not preempt any State law or State regulation or affect the States’ abilities to discharge traditional State governmental functions. VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 Executive Order 12372 (Intergovernmental Review) The regulations effectuating Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this 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). In compliance with the PRA and OMB implementing regulation at 5 CFR 1320.8(d), FTA sought longer-term approval from OMB for this Information Collection. On August 28, 2013, OMB approved FTA’s request for an information collection for the Emergency Relief Program. The modifications to the regulations in this final rule do not modify this collection. Insurance information is included in the project budget as well as the quarterly milestone/progress reports. FTA estimated that it would take recipients approximately 50 hours to develop a damage assessment report, and the addition of an evaluation of alternatives for only those assets that have previously experienced damage as a result of a disaster or emergency will not appreciably change that estimate. The approval for this information collection will expire on August 31, 2016. 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 final rule is categorically excluded under FTA’s NEPA implementing procedures at 23 CFR 771.118(c)(4), which covers planning and administrative activities that 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. PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) Executive Order 12898 and U.S. DOT Order 5610.2(a) (91 FR 27534, May 10, 2012), require DOT agencies to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of all programs, policies, and activities on minority populations and lowincome populations in the United States. The DOT Order requires DOT agencies to address compliance with the Executive Order and the DOT Order in all rulemaking activities. FTA has developed a program circular addressing environmental justice in transit projects, C 4703.1, Environmental Justice Policy Guidance for Federal Transit Administration Recipients, 77 FR 42077, July 17, 2012 (available online at www.fta.dot.gov/ legislation_law/12349_14740.html). FTA evaluated this rulemaking under the Executive Order and the DOT Order. FTA determined that the establishment of procedures governing the implementation of FTA’s Public Transportation Emergency Relief Program will not cause disproportionately high and adverse effects on minority or low income populations. The rule simply defines the eligibility criteria and outlines the process to apply for assistance under the program. At the time FTA considers an application for emergency relief, FTA has an independent obligation to conduct an evaluation of the proposed action under the applicable environmental justice (EJ) Orders and guidance as part of the environmental review process. The adoption of this rule does not affect the scope or outcome of any EJ evaluation. Outreach to ensure the effective involvement of minority and low income populations in the environmental review process is a core aspect of the EJ Orders and guidance. This rule does not affect the ability of affected populations to raise any concerns about potential EJ effects at the time FTA considers a grant application. For these reasons, FTA determined no further EJ analysis is needed and no mitigation is required in connection with this rulemaking. Executive Order 12630 (Taking of Private Property) This action will not affect a taking of private property or otherwise have E:\FR\FM\07OCR1.SGM 07OCR1 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations 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) 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. asabaliauskas on DSK5VPTVN1PROD with RULES 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). 16:08 Oct 06, 2014 Jkt 235001 Therese McMillan, Acting Administrator. PART 602—EMERGENCY RELIEF 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. VerDate Sep<11>2014 Disaster assistance, Grant programs, Mass transportation, Transportation. For the reasons set forth in the preamble, FTA amends Chapter VI of Title 49, Code of Federal Regulations, by revising part 602 to read as follows: Executive Order 13175 (Tribal Consultation) A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of List of Subjects in 49 CFR Part 602 ■ FTA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. FTA certifies that this final rule will not cause an environmental risk to health or safety that may disproportionately affect children. Regulation Identification Number 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. Sec. 602.1 602.3 602.5 602.7 602.9 602.11 602.13 602.15 602.17 Purpose. Applicability. Definitions. Policy. Federal share. Pre-award authority. Eligible activities. Grant requirements. Application procedures. Authority: 49 U.S.C. 5324 and 5334; 49 CFR 1.91. § 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 resulting from a natural disaster affecting a wide area or a catastrophic failure from an external cause. § 602.3 Applicability. This part applies to entities that provide public transportation services and that are impacted by emergencies and major disasters. § 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 that applies for a grant under 49 U.S.C. 5324. Building. For insurance purposes, a structure with two or more outside rigid walls and a fully secured roof, that is PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 60361 affixed to a permanent site. This includes manufactured or modular office trailers that are built on a permanent chassis, transported to a site in one or more sections, and affixed to a permanent foundation. 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, lack of proper maintenance or a design flaw. Contents coverage. For insurance purposes, contents are personal property within a building, including fixtures, machinery, equipment and supplies. In addition to the costs to repair or replace, contents insurance coverage shall include the cost of debris removal and the reasonable cost of removal of contents to minimize damage. 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, ferry, or rail service to replace inoperable 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) 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: E:\FR\FM\07OCR1.SGM 07OCR1 asabaliauskas on DSK5VPTVN1PROD with RULES 60362 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations (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 measures; (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 following the emergency or major disaster, until such time as permanent repairs can be undertaken, for the purpose of: (1) Minimizing the extent of the damage, (2) Restoring service, or (3) Ensuring service can continue to be provided until permanent repairs are made. 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. Incident period. The time interval during which the emergency-causing incident occurs. FTA will not approve pre-award authority for projects unless the damage to be alleviated resulted from the emergency-causing incident during the incident period or was incurred in anticipation of that incident. For each Stafford Act incident, FTA will adopt the incident period established by FEMA. 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, VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 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. The ability to anticipate, prepare for, and adapt to changing conditions and withstand, respond to, and recover rapidly from disruptions such as significant multi-hazard threats with minimum damage to social wellbeing, the economy, and the environment. Resilience project. A project designed and built to address existing and future vulnerabilities to a public transportation facility or system due to a probable occurrence or recurrence of an emergency or major disaster in the geographic area in which the public transportation system is located, and which may include the consideration of projected changes in development patterns, demographics, or climate change and extreme weather patterns. A resilience project may be a stand-alone project or may be completed at the same time as permanent repairs. 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. A State of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and the Virgin Islands. Subrecipient. An entity that operates public transportation service and receives FTA funding through a recipient. § 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 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 funds for the correction of preexisting, non-disaster related deficiencies. (c) Following an emergency, affected recipients may include projects that increase the resilience 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. (1) If a recipient receives insurance proceeds that are directly attributable to specific assets, the recipient must: (i) Apply those proceeds to the cost of replacing or repairing the damaged or destroyed project property; or (ii) Return to FTA an amount equal to the remaining Federal interest in the lost, damaged, or destroyed project property. (2) If under the terms of its policy a recipient receives insurance proceeds that are not attributable to specific assets, such as blanket, lump-sum, or unallocated proceeds, FTA, in consultation with the recipient, will determine the portion of such proceeds that the recipient must attribute to transit assets. (3) Any insurance proceeds not attributable to transit assets may be used for other purposes without obligation to FTA, including as local share for FTA grants. (f) The Flood Disaster Protection Act of 1973 (42 U.S.C. 4001 et seq.) provides that Federal agencies may not provide any financial assistance for the acquisition, construction, reconstruction, repair, or improvement of a building in a special flood hazard area (100-year flood zone) unless the recipient has first acquired flood insurance to cover the buildings and contents constructed or repaired with Federal funds, in an amount at least E:\FR\FM\07OCR1.SGM 07OCR1 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations equal to the Federal investment (less land cost) or to the maximum limit of coverage made available under the National Flood Insurance Act of 1968, whichever is less. (1) Transit facilities to which this paragraph (f) applies are buildings located in special flood hazard areas and include but are not limited to maintenance facilities, storage facilities, above-ground stations and terminals, and manufactured or modular office trailers. (2) Flood insurance is not required for underground subway stations, track, tunnels, ferry docks, or to any transit facilities located outside of a special flood hazard area. (g) Recipients must obtain and maintain flood insurance on those buildings and contents for which FTA has provided funds. § 602.9 Federal share. (a) A grant, contract, or other agreement for emergency operations, emergency protective measures, emergency repairs, permanent repairs and resilience 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. asabaliauskas on DSK5VPTVN1PROD with RULES § 602.11 Pre-award authority. (a) Except as provided in paragraph (c) of this section, pre-award authority for the Emergency Relief Program shall be effective beginning on the first day of the incident period, subject to the appropriation of Emergency Relief Program funds. (b) Recipients may use section 5307 or section 5311 formula funds to address an emergency, and, except as provided in paragraph (c) of this section, preaward authority shall be effective beginning on the first day of the incident period of the emergency or major disaster. (c) For expected weather events, preaward authority for evacuations and activities to protect public transportation vehicles, equipment and facilities, shall be effective in advance of the event under the following conditions: (1) The Governor of a State declares a state of emergency and requests concurrence by the Secretary of Transportation or makes a request to the VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 President for an emergency declaration, in advance or anticipation of the impact of an incident that threatens such damage as could result in a major disaster; (2) The Governor takes appropriate action under State law and directs execution of the State emergency plan; (3) The activities are required in anticipation of the event; and (4) Assistance for a pre-disaster emergency declaration is limited to Emergency Protective Measures and Emergency Operations. (d) 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 in response to a particular event. (e) 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). (f) Except as provided in § 602.15, all FTA statutory, procedural, and contractual requirements must be met. (g) 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. (h) 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. (i) 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. § 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; (6) Repair or replacement of spare parts that are the property of an affected recipient or subrecipient and held in the normal course of business that are damaged or destroyed; and PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 60363 (7) Resilience 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) Except for resilience projects that have been approved in advance, 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; and (8) Other project costs FTA determines are not appropriate for the Emergency Relief Program. § 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 that certain 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. E:\FR\FM\07OCR1.SGM 07OCR1 asabaliauskas on DSK5VPTVN1PROD with RULES 60364 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations (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 Agency’s (FEMA) Flood Insurance Rate Maps (FIRMs). If there are no alternatives but to locate the action in a floodplain, prior to seeking FTA funding for such action, the recipient shall design or modify 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, 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 State or local 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. (6) Recipients shall also consider the best available data on sea-level rise, storm surge, scouring and erosion before rebuilding. § 602.17 Application procedures. (a) As soon as practical after an emergency, major disaster or VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 catastrophic failure, affected recipients shall make a preliminary field survey, working cooperatively with the appropriate FTA Regional Administrator and other governmental agencies with jurisdiction over affected 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 affecting 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 resilience projects to protect equipment and facilities from future emergencies or major disasters; and (vii) An evaluation of reasonable alternatives, including change of location, addition of resilience/ mitigation elements, and any other alternative the recipient considered, for any damaged transit facility that has been previously repaired or reconstructed as a result of an emergency or major disaster. (2) Unless unusual circumstances prevail, the initial damage assessment report should be prepared within 60 days following the emergency, major disaster, or catastrophic failure. Affected recipients should update damage assessment reports as appropriate. (3) For large disasters where extensive damage to public transportation systems is readily evident, the FTA Regional Administrator may approve an application for assistance prior to submission of the damage assessment PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 report. In these 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 damage assessment report, as appropriate; (2) 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, reconstruct or replace the seriously damaged or destroyed rolling stock, equipment, facilities, and infrastructure to a state of good repair; and (3) 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 E:\FR\FM\07OCR1.SGM 07OCR1 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Rules and Regulations 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. Project information 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 project information 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. 2014–23806 Filed 10–6–14; 8:45 am] BILLING CODE 4910–57–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R9–ES–2011–0003; FXES111309F2460–145–FF09E22000] RIN 1018–AY42 Endangered and Threatened Wildlife and Plants; Listing the Straight-Horned Markhor as Threatened With a Rule Under Section 4(d) of the ESA Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), determine threatened status for the straight-horned markhor (Capra falconeri megaceros), under the Endangered Species Act of 1973, as amended (Act). We are also publishing a concurrent rule under section 4(d) of the Act. This rule protects and conserves the straighthorned markhor, while encouraging local communities to conserve additional populations of the straighthorned markhor through sustainable-use management programs. DATES: This rule becomes effective November 6, 2014. ADDRESSES: This final rule is available on the Internet at http:// www.regulations.gov and comments and materials received, as well as supporting documentation used in the preparation of this rule, will be available for public inspection, by appointment, during normal business hours at: U.S. Fish and Wildlife Service; 5275 Leesburg Pike; Falls Church, VA 22041. asabaliauskas on DSK5VPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 16:08 Oct 06, 2014 Jkt 235001 FOR FURTHER INFORMATION CONTACT: Janine Van Norman, Chief, Branch of Foreign Species, Ecological Services Program, U.S. Fish and Wildlife Service; telephone 703–358–2171; facsimile 703–358–1735. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Executive Summary I. Purpose of the Regulatory Action We are combining two subspecies of markhor currently listed under the Endangered Species Act of 1973, as amended (Act), the straight-horned markhor (Capra falconeri jerdoni) and Kabul markhor (C. f. megaceros), into one subspecies, the straight-horned markhor (C. f. megaceros), based on a taxonomic change. We are listing the straight-horned markhor (C. f. megaceros) as threatened under the Act. We are also finalizing a rule under section 4(d) of the Act that allows the import of sport-hunted straight-horned markhor trophies under certain conditions. This regulation supports and encourages conservation actions for the straight-horned markhor. II. Major Provision of the Regulatory Action This action eliminates the separate listing of the straight-horned markhor and Kabul markhor as endangered and adds the combined straight-horned markhor subspecies as threatened on the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h), and allows the import of sport-hunted straighthorned markhor trophies under certain conditions at 50 CFR 17.40(d). This action is authorized by the Act. Background The Endangered Species Act of 1973, as amended (ESA or Act) (16 U.S.C. 1531 et seq.), is a law that was passed to prevent extinction of species by providing measures to help alleviate the loss of species and their habitats. Before a plant or animal species can receive the protection provided by the Act, it must first be added to the Federal List of Endangered and Threatened Wildlife or the Federal List of Endangered and Threatened Plants; section 4 of the Act and its implementing regulations at 50 CFR part 424 set forth the procedures for adding species to these lists. Previous Federal Actions On June 14, 1976, we published in the Federal Register a rule listing the straight-horned markhor, or the PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 60365 Suleiman markhor (Capra falconeri jerdoni), and the Kabul markhor (C. f. megaceros), as well as 157 other U.S. and foreign vertebrates and invertebrates, as endangered under the Act (41 FR 24062). All species were found to have declining numbers due to the present or threatened destruction, modification, or curtailment of their habitats or ranges; overutilization for commercial, sporting, scientific, or educational purposes; the inadequacy of existing regulatory mechanisms; or some combination of the three. However, the main concerns were the high commercial importance and the inadequacy of existing regulatory mechanisms to control international trade. Subsequent to the listing in 1976, the Suleiman markhor and the Kabul markhor were later considered by some authorities to be the single subspecies C. f. megaceros (straight-horned markhor). However, the Suleiman markhor and the Kabul markhor remained listed as separate subspecies under the Act. On March 4, 1999, we received a petition from Sardar Naseer A. Tareen, on behalf of the Society for Torghar Environmental Protection and the International Union for Conservation of Nature (IUCN) Central Asia Sustainable Use Specialist Group, requesting that the Suleiman markhor (C. f. jerdoni or C. f. megaceros) population of the Torghar Hills region of the Balochistan Province, Pakistan, be reclassified from endangered to threatened under the Act. On September 23, 1999 (64 FR 51499), we published in the Federal Register a finding, in accordance with section 4(b)(3)(A) of the Act, that the petition had presented substantial information indicating that the requested reclassification may be warranted, and we initiated a status review. We opened a comment period, which closed January 21, 2000, to allow all interested parties to submit comments and information. A 12-month finding was never completed. On August 18, 2010, we received a petition dated August 17, 2010, from Conservation Force, on behalf of Dallas Safari Club, Houston Safari Club, African Safari Club of Florida, The Conklin Foundation, Grand Slam Club/ Ovis, Wild Sheep Foundation, Jerry Brenner, Steve Hornaday, Alan Sackman, and Barbara Lee Sackman, requesting the Service downlist the Torghar Hills population of the Suleiman markhor (Capra falconeri jerdoni or C. f. megaceros), in the Balochistan Province of Pakistan, from endangered to threatened under the Act. On June 2, 2011, we published in the Federal Register a finding that the E:\FR\FM\07OCR1.SGM 07OCR1

Agencies

[Federal Register Volume 79, Number 194 (Tuesday, October 7, 2014)]
[Rules and Regulations]
[Pages 60349-60365]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23806]


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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: Final rule.

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SUMMARY: This final rule establishes procedures governing the 
implementation of the Federal Transit Administration's (FTA) Public 
Transportation Emergency Relief Program as authorized by the Moving 
Ahead for Progress in the 21st Century Act.

DATES: This final rule becomes effective on November 6, 2014.

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, 
Adam.Schildge@dot.gov. For legal issues: Bonnie Graves, Office of Chief 
Counsel, same address, Room E56-306, phone: (202) 366-4011, or email, 
Bonnie.Graves@dot.gov.

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, 
subject to the availability of appropriations, 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 resilience efforts in 
areas affected by Hurricane Sandy. The law required FTA to issue 
interim regulations (an interim final rule) for the Emergency Relief 
Program, which FTA did on March 29, 2013 (See

[[Page 60350]]

78 FR 19136, http://www.gpo.gov/fdsys/pkg/FR-2013-03-29/pdf/2013-07271.pdf). FTA requested comments on the interim regulations, and in 
this notice FTA is addressing the comments received.
    This 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.

Authority

    Section 5324(a)(2) of title 49, United States Code, defines an 
``emergency'' as 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--
     The Governor of a State has declared an emergency and the 
Secretary has concurred; or
     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 grants and enter into contracts and other agreements 
(including agreements with departments, agencies, and instrumentalities 
of the Government) for--
     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
     eligible operating costs of public transportation 
equipment and facilities in an area directly affected by an emergency 
during--
    [cir] the 1-year period beginning on the date of a declaration; or
    [cir] if the Secretary determines there is a compelling need, the 
2-year period beginning on the date of a declaration.
    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 the Federal Emergency Management Agency (FEMA) 
has funded.

Interim Final Rule and Request for Comments

    FTA issued the interim final rule and request for comments on March 
29, 2013. The interim final rule, which took effect immediately upon 
publication, and on which FTA sought comment, included definitions, 
policy, and eligibility, as well as provisions regarding federal share 
and pre-award authority, grant requirements and application procedures.

Summary Discussion of Comments Received in Response to the Interim 
Final Rule

    The comment period closed on May 28, 2013. FTA received comments 
from eight entities: five transit agencies, two transportation workers 
union organizations, and one public transportation trade association. 
Several comments were outside the scope of the rulemaking and are 
therefore not addressed in this notice. For example, some comments were 
specific to Hurricane Sandy response or to the Disaster Relief 
Appropriations Act, which provided funding for Hurricane Sandy 
response. Where appropriate, FTA reached out to commenters to address 
those concerns. Comments pertaining to the rulemaking are addressed in 
this notice.
    In addition, FTA intends to issue an Emergency Relief Manual or 
Circular later this year that will provide more detail than what is 
provided in the regulation. Therefore, FTA will address some of the 
comments by providing guidance in the Manual or Circular rather than 
including text in this rule. FTA will provide interested stakeholders 
with notice and an opportunity to provide comment on the Emergency 
Relief Manual.

General Comments

    In addition to the regulatory text, the interim final rule sought 
comments on several specific issues: (1) The possibility of imposing a 
minimum monetary damage threshold for FTA Emergency Relief grants, 
including the most appropriate method to calculate such a minimum 
monetary damage threshold; (2) the specificity of the term ``forecast 
with some certainty to hit the affected area,'' which under the interim 
final rule triggers the availability of pre-award authority for 
evacuations and activities to protect public transportation assets in 
predictable weather events; (3) the appropriate extent of a benefit-
cost analysis in the context of emergency repairs, permanent repairs, 
and resilience projects, including the extent of risk analysis 
appropriate for resilience projects, as well as methods for evaluating 
collateral costs resulting from a decrease in overall transit 
infrastructure capacity; and (4) whether applications for Emergency 
Relief should incorporate requirements of Section 1315(b) of MAP-21, 
which requires a periodic evaluation to determine whether there are 
reasonable alternatives to roads, highways, or bridges that have 
repeatedly required repair or reconstruction in the past as a result of 
emergencies or major disasters. The comments and FTA responses are in 
the section-by-section discussion of comments, below.

Section-by-Section Discussion of Comments

Section 602.1 Purpose

    Two commenters suggested amending the purpose section. One 
commenter suggested removing the term ``serious'' in relation to the 
damage suffered, noting that currently FEMA allows reimbursement for 
minor and major damages, while the proposed FTA Emergency Relief 
program could make minor costs ineligible, requiring the transit agency 
to incur the costs or apply to FEMA. The commenter also noted the 
potential lack of eligibility for damage from terrorist acts, as such 
acts would not qualify as a ``natural disaster,'' and might also not 
meet the definition of a ``catastrophic failure.'' To address this 
issue, the commenter suggested including ``manmade disasters'' within 
the scope of this section's purpose. Another commenter recommended that 
the eligibility requirements for resilience projects include projects 
that enhance network resilience and redundancy, and not just those 
projects that narrowly target the physical location of a specific piece 
of infrastructure. The commenter suggested that the regulatory language 
listing ``protection, replacement, repair or reconstruction'' should be 
amended to, for example, ``protection, replacement, repair, redundant 
capability, relief, or reconstruction of public transportation 
equipment, facilities, capacity or networks. . . .'' The commenter 
expressed specific concern about island communities and the need to 
access the mainland via multiple means, particularly if bridges and 
tunnels are impacted by an emergency or disaster.
    FTA declines to make the suggested changes to this section. The 
language included in this section comes directly from the statute, 
which provides that FTA may fund ``capital projects to protect, repair, 
reconstruct or replace

[[Page 60351]]

equipment and facilities of a public transportation system . . . that 
the Secretary determines is in danger of suffering serious damage or 
has suffered serious damage, as a result of an emergency.'' In 
addition, FTA interprets ``catastrophic failure from an external 
cause'' to include manmade disasters.
    As for redundancy, FTA agrees that the resilience of a transit 
system is dependent in part on the availability of backup systems or 
facilities for critical functions, such as communications, signaling, 
and power; and that potential alternative service configurations made 
possible by the availability of redundant infrastructure, such as 
backup storage, maintenance, or fueling facilities, can significantly 
improve a transit system's emergency response and recovery efforts, 
while maintaining service to the public. In so far as projects to 
construct or install such infrastructure contribute to the protection 
of the equipment or facilities of a transit system, they may be 
eligible for funding under this program. Projects that would increase 
overall system capacity, such as the acquisition of vehicles or 
construction of infrastructure for permanent additional routes, may 
increase the overall resilience of a transit system, but would 
generally not be eligible under this program. In the event a transit 
agency or community has identified, through the planning process, a 
need for additional public transit services that may be redundant of 
existing services, other sources of funds, such as FTA formula funds or 
Capital Investment Grant program (section 5309) funds, are more 
appropriate for this purpose, because the primary benefit of 
``redundant'' services would be to provide new capacity on a daily 
basis--not just in the case of a future emergency that cannot be 
predicted in terms of time, location, or magnitude.

Section 602.3 Applicability

    FTA did not receive any comments on this section, and is not 
amending this section.

Section 602.5 Definitions

    Four entities submitted comments on several of the proposed 
definitions. The comments and agency responses are sorted by each 
definition, as follows:
    ``Building'' and ``Contents Coverage.'' FTA is adding these two 
definitions, which are consistent with FEMA's National Flood Insurance 
Program definitions at 44 CFR 59.1, for purposes of FTA's policy on 
insurance, further discussed in section 602.7, Policy. In particular, 
for the definition of ``building,'' FEMA requires flood insurance for 
``manufactured homes'' and includes these in the definition of building 
as structures ``built on a permanent chassis, transported to its site 
in one or more sections, and affixed to a permanent foundation.'' 
Federal transit recipients often use manufactured or modular office 
trailers that meet this definition. Therefore, we have included office 
trailers in the definition of building.
    ``Catastrophic Failure.'' Two commenters expressed concern over the 
provision that a catastrophic failure must not be primarily 
attributable to gradual and progressive deterioration or lack of proper 
maintenance. While both commenters agreed that damage caused by lack of 
maintenance should not be eligible under the Emergency Relief program, 
they asserted that the phrase as formulated presents a risk of 
subjectivity and ambiguous eligibility standards. One of the commenters 
said that the distinction should be based on the ability to link 
damages and related costs to the disaster, using, for example, 
maintenance records, photographs, and/or engineering assessments 
linking damage to the event. The other commenter said that FTA should 
clarify the criteria and process it proposes to apply in determining 
whether a catastrophic failure has been experienced.
    FTA disagrees that the definition is ambiguous, and notes that 
catastrophic failure must be read with the definition of ``external 
cause.'' The spontaneous collapse of a transit bridge, not due to 
external cause, would be primarily attributable to gradual and 
progressive deterioration or lack of proper maintenance or to a design 
flaw. A transit bridge that collapses as a result, for example, of 
being hit by a vehicle or an act of terrorism collapses due to an 
external cause. In order to be eligible for Emergency Relief funds, the 
failure must be the result of an external cause. In the event it is not 
clear whether the failure of an asset is due to an external cause or to 
an inherent defect in or lack of maintenance of the asset, FTA will 
consider maintenance records, photographs, and/or engineering 
assessments.
    ``Emergency Operations.'' Two commenters addressed the definition 
of ``emergency operations.'' One commenter suggested that since the 
term ``emergency operations'' includes bus or ferry service to replace 
inoperable rail service or to detour around damaged areas, the 
definition should also include the deployment of rail service via 
alternate routes for the same purpose. Another commenter requested that 
the list of emergency operations include any costs incurred as a result 
of any memorandum of understanding (MOU) and/or any memorandum of 
agreement (MOA) that transit agencies may establish pre- or post-
disaster.
    The definition of ``Emergency Operations'' in the interim final 
rule for temporary service stated ``including but not limited to . . 
.'' various types of temporary service. Deployment of rail service via 
alternate routes would fit within the ``Emergency Operations'' 
definition as a relocation of public transportation route service 
before, during, or after an emergency. For clarity, FTA is amending the 
final rule definition to provide that ``bus, ferry or rail service to 
replace inoperable service or to detour around damaged areas,'' is an 
eligible expense. Regarding the second comment, costs incurred as a 
result of an MOU and/or MOA that a transit agency may establish pre- or 
post-disaster would be eligible only to the extent that the costs 
related to evacuation services; rescue operations; temporary public 
transportation service; or reestablishing, expanding, or relocating 
public transportation route service before, during, or after an 
emergency.
    ``Emergency Protective Measures.'' One commenter requested that FTA 
depart from FEMA standards under 44 CFR 206.228(a)(2)(iii) and allow 
regular time as well as standby costs within the definition of 
emergency protective measures, as these costs were allowed for 
Hurricane Sandy response. The commenter opined that FEMA's practice of 
disallowing regular time for in-house personnel rewards applicants who 
outsource emergency work to contractors, and may not be conducive to 
restoring transportation in a timely manner in part because a third-
party contractor may not have the same expertise or availability as in-
house employees or be available. Further, the commenter stated that 
standby costs are unavoidable during emergency evacuation, reverse 
evacuation, and transportation restoration. Pre-positioning of 
resources is part of effective storm planning, and this commenter's 
labor agreements, for example, require bus operators to be paid for 
standby time. Finally, the commenter recommended that the definition be 
revised to include operating costs as well as capital costs for 
projects undertaken immediately before, during, or after an emergency.
    Although this comment was submitted in reference to the definition 
of ``Emergency Protective Measures,'' FTA believes that some of the 
commenter's concerns over regular time and standby costs are addressed 
within

[[Page 60352]]

the definition of ``Emergency Operations.'' The definitions of 
``Emergency Operations'' and ``Emergency Protective Measures'' are 
complementary: ``Emergency Operations'' encompasses operating costs and 
``Emergency Protective Measures'' encompasses costs related to 
protecting assets and infrastructure. In general, the purpose of the 
Emergency Relief program is to reimburse affected recipients for 
extraordinary costs related to an emergency or major disaster. Regular 
time--as opposed to overtime--is not an extraordinary cost. However, 
the operating costs the commenter describes relating to regular time 
and standby costs would be eligible for reimbursement as long as they 
satisfied the definition of ``Emergency Operating Costs,'' i.e., costs 
relating to evacuation service; rescue operations; temporary public 
transportation service; or reestablishing, expanding, or relocating 
public transportation route service before, during, or after an 
emergency. Similarly, operating costs incurred to perform emergency 
protective measures, such as relocating rolling stock, sandbagging and 
debris removal, would be eligible for reimbursement.
    ``Emergency Repairs.'' Two commenters expressed concern that the 
definition of emergency repairs was limited to projects undertaken 
immediately following the emergency or major disaster. One commenter 
noted emergency repairs could be delayed for weeks or even months. The 
other commenter stated that once service is restored, significant time 
may be needed before permanent repairs are made, requiring interim or 
temporary repairs conducted in the meantime. The commenter suggested an 
additional definition for ``interim repairs'' or ``temporary repairs'' 
to accommodate this circumstance.
    In response to comments, FTA is removing the word ``immediately'' 
from the definition. Since emergency repairs may be either temporary or 
permanent, we have retained the term ``emergency repairs,'' but added 
an additional purpose of emergency repairs: to ensure service can 
continue to be provided until permanent repairs are made. This will 
allow interim or temporary repairs to fit within the definition of 
emergency repairs.
    ``Incident Period.'' FTA is adding a definition for ``incident 
period:'' the time interval during which the emergency-causing incident 
occurs. This definition is relevant with regard to pre-award authority, 
as FTA will not approve pre-award authority for projects unless the 
damage to be alleviated resulted from the emergency-causing incident 
during the incident period or was incurred in anticipation of that 
incident. The reason for this additional definition is to have 
consistency with FEMA's definition of ``incident period'' at 44 CFR 
206.32(f). For each Stafford Act incident, FTA will adopt the incident 
period established by FEMA. The term is used in section 602.11, Pre-
Award Authority, and replaces the phrase, ``the effective date of a 
declaration of emergency or major disaster.''
    ``Major Disaster.'' One commenter suggested that the definition of 
``major disaster'' conflicts with the definitions of ``resilience'' and 
``resilience projects.'' The commenter recommended substituting the 
term ``multi-hazard'' for the term ``natural catastrophe'' to encompass 
manmade disasters.
    Congress defined ``Major Disaster'' in the Stafford Act, at 42 
U.S.C. 5122(2), and FTA includes that definition in the rule without 
change. Due to the coordination between FEMA, FTA, and Emergency Relief 
recipients contemplated within the final rule, FTA believes it is 
prudent to maintain the interim final rule's inclusion of the statutory 
definition of ``Major Disaster.''
    ``Net Project Cost.'' One commenter suggested that the term ``net'' 
should be removed and the definition revised since the proposed 
definition does not stipulate if all costs incurred, including indirect 
costs, are eligible. FTA notes that Federal cost principles apply to 
all FTA grants and indirect costs are eligible consistent with those 
principles. These and other administrative requirements for all FTA 
programs, including the Emergency Relief program, are explained in FTA 
Circular 5010.1D, Grant Management Requirements. (See, http://www.fta.dot.gov/legislation_law/12349_8640.html).
    ``Resilience.'' FTA is making minor edits to this definition in 
order for the definition to be consistent with Executive Order 13653, 
Preparing the United States for the Impacts of Climate Change, Nov. 1, 
2013.
    ``Resilience Project.'' Several commenters expressed concern with 
the proposed definition of ``resilience project.'' Three of the 
commenters proposed deleting any reference to whether a future disaster 
is ``likely to occur.'' Some commenters noted that a given disaster may 
be unlikely to occur, but resilience principles encompass protections 
against unlikely events as well. One commenter suggested that 
``resilience project'' should include the word ``sustainability,'' to 
align with FEMA's support of the Department of Housing and Urban 
Development (HUD) program goals, including combining hazard mitigation 
objectives with the community development objectives, which include 
livability, sustainability, and social equity values.
    To the extent the eligibility of resilience projects is tied to 
Emergency Relief funds following a specific event, FTA believes it is 
important to note probable occurrence or recurrence as a factor in 
determining eligibility for these projects. In response to comments, 
FTA is slightly modifying the definition to state, ``. . . due to a 
probable occurrence or recurrence of an emergency or major disaster in 
the geographic area . . .'' FTA will provide additional guidance on 
this in our proposed Emergency Relief Manual, which we intend to 
publish later this year. Since the primary purpose of resilience 
projects is to provide protection to transit infrastructure so the 
taxpayers do not repeatedly pay to replace the same assets, FTA 
declines to add ``sustainability'' to the definition of resilience 
project.

Section 602.7 Policy

    Several commenters provided comments to this section. One commenter 
repeated an earlier suggestion to include manmade disasters in the 
relevant sections of the final rule. One commenter highlighted the 
connection between the interim final rule and FTA's anticipated 
regulations regarding transit asset management and a definition of 
``state of good repair,'' and repeated a suggestion for a high-level 
definition of ``state of good repair.''
    As stated previously, FTA interprets ``catastrophic failure from an 
external cause'' to include manmade disasters. As for the definition of 
state of good repair, FTA recently published an advance notice of 
proposed rulemaking (ANPRM) requesting comments on a definition of 
``state of good repair.'' (78 FR 61251, Oct. 3, 2013, available at 
http://www.gpo.gov/fdsys/pkg/FR-2013-10-03/pdf/2013-23921.pdf). The 
comment period has closed, but FTA encourages interested stakeholders 
to review the notice of proposed rulemaking when it becomes available. 
For purposes of the Emergency Relief program, until FTA has published a 
program-wide definition, we will use the definition provided in the May 
29, 2013, Federal Register notice (78 FR 32296) announcing the 
allocation of Hurricane Sandy relief funds: ``a project is considered 
to bring the transit assets up to a `state of good repair' if it 
consists of the installation of comparable equipment that meets the 
same basic

[[Page 60353]]

function, class, or capacity of the equipment replaced and also meets 
current technological or design standards, or a like-new condition.''
    Regarding paragraph (c), which provides that recipients may include 
projects that increase the resilience of affected public transportation 
systems in conjunction with repair and reconstruction activities, two 
commenters supported the overall policy goal and provided further 
suggestions. One commenter requested clarification that resilience and 
reconstruction work can be done in conjunction without being part of 
the same project or contract. In addition, one commenter asked whether 
near-term, temporary resilience projects designed to protect against 
the possibility of an event, such as hurricane season, would be 
eligible under the Emergency Relief program. If funds become available 
for FTA to allocate for resilience projects, such near-term projects 
may be eligible on a case-by-case basis.
    In some cases, it will make sense to do resilience projects as part 
of the same repair/reconstruction contract or project, and in other 
cases it may be more appropriate for the resilience work to be done 
under a separate contract or project. The language in the rule is 
flexible enough to allow either scenario.
    Regarding paragraph (e), one commenter requested further 
clarification regarding allocation of global insurance proceeds to 
prevent duplication of funding with FTA grants under the Emergency 
Relief program. The commenter sought specific language in this section 
of the rule related to allocation of insurance proceeds, and the use of 
insurance proceeds as local match.
    In response, FTA is adding language to this paragraph regarding 
allocation of insurance proceeds when (1) recipients receive proceeds 
for specified assets, and (2) recipients receive blanket, lump-sum, or 
otherwise unallocated proceeds. In the first case, and consistent with 
existing FTA policy on insurance proceeds, the recipient must either 
apply those proceeds to the cost of replacing or repairing the damaged 
or destroyed project property; or return to FTA an amount equal to the 
remaining Federal interest in the lost, damaged, or destroyed project 
property. Interested stakeholders should review the provisions of 
chapter IV of FTA Circular 5010.1D, as these provisions will generally 
apply. In some cases, a recipient's insurance policy may not attribute 
insurance proceeds to specific assets, and instead will provide 
unallocated, or lump-sum payments. Such payments may include proceeds 
for non-transit assets as well as for business interruption if the 
recipient has this coverage. In this second case, FTA, in consultation 
with the recipient, will determine the portion of such proceeds that 
the recipient must attribute to transit assets.
    Generally, insurance proceeds may not be used as local match. 
However, in some circumstances, as when a recipient receives insurance 
payments for activities not eligible for FTA reimbursement, any share 
of the proceeds that is not due to FTA may be used as local match. FTA 
is adding language to this effect in the rule.
    FTA is adding new paragraphs (f), (g) and (h) to address the flood 
insurance requirements for transit assets in special flood hazard areas 
(i.e., 100-year flood zones), and to state FTA's policy with regard to 
uninsured property. Although not included in the IFR, paragraphs (f) 
and (g) merely summarize the preexisting requirements of the Flood 
Disaster Protection Act of 1973 and describe the types of transit 
assets that must be insured if they are located in a special flood 
hazard area. As stated above in Section 602.5 Definitions, FTA is 
adapting the definitions of ``building'' and ``contents coverage'' from 
FEMA's regulation at 44 CFR 59.1 to provide consistency between the 
National Flood Insurance Program and FTA's Emergency Relief program.
    The requirement for flood insurance for transit assets located in 
special flood hazard areas is not new. In order to ensure compliance 
with the Flood Disaster Protection Act, Section 23 of FTA's Master 
Agreement requires recipients to obtain flood insurance as appropriate, 
and each recipient certifies annually through the certifications and 
assurances that it is in compliance with this requirement.
    In accordance with section 102 of the Flood Disaster Protection Act 
of 1973 (42 U.S.C. 4012a), new paragraphs (f) and (g) make clear that a 
covered structure must be insured through the National Flood Insurance 
Program or a comparable private policy. The policy must provide 
coverage at least equal to the project cost for which Federal 
assistance is provided, or to the maximum limit of coverage available 
under the National Flood Insurance Act (currently $500,000 for 
buildings and $500,000 for equipment and fixtures), whichever amount is 
less.
    Finally, commenters were opposed to a minimum monetary damage 
threshold for FTA emergency relief grants, and expressed concern that 
setting a minimum monetary threshold for capital projects, emergency 
protective measures or emergency operations would be challenging to 
implement, given the varying size of transit agencies and resources 
available to those agencies, and that the threshold calculation, if 
based on ridership, passenger miles, or some other metric, could be 
burdensome. In addition, the cost of repairing or replacing assets 
varies widely depending on the asset.
    In response to comments, FTA is not implementing a minimum monetary 
damage threshold for the Emergency Relief Program.

Section 602.9 Federal Share

    One commenter stated that since the Emergency Relief program is 
intended to fund transit agencies' recovery from unplanned natural 
disasters, FTA should ensure significant flexibility in the local match 
funding requirements, which are often unbudgeted. If a one hundred 
percent federal share is not feasible, the commenter urged FTA to allow 
for flexibility in the use of matching funds, including the following: 
Transportation Development Credits, insurance money, over-match 
budgeted in other FTA funded capital projects already planned or 
underway in the disaster area, and funds included in approved and 
funded operating budgets that are intended for identifiable emergency 
relief tasks.
    In response to these comments, FTA notes that the law provides that 
an Emergency Relief grant shall be for up to 80 percent of the net 
project cost, and that the Secretary may waive the non-federal share. 
FTA notes that the federal share for FEMA's Public Assistance grants is 
75 percent unless the Federal share is increased, depending on the 
extent of the damage related to the disaster. The rule provides only 
information related to the percent federal share, and not the source of 
local match, as the source of local match is statutory. 49 U.S.C. 
5324(e)(2). Sources of local match include an undistributed cash 
surplus, a replacement or depreciation cash fund or reserve, or new 
capital. In addition, Transportation Development Credits (i.e., toll 
credits) are eligible as match pursuant to 23 U.S.C. 120. Further, in 
accordance with 42 U.S.C. 5305(i), U.S. Department of Housing and Urban 
Development Community Development Block Grant (CDBG) funds that are 
available for transportation projects may be used as non-federal match 
for Emergency Relief fund grants.

Section 602.11 Pre-Award Authority

    Five commenters submitted comments on this section. One commenter 
suggested that the final rule

[[Page 60354]]

should clarify whether pre-award authority would encompass resilience 
projects in addition to emergency preparation and response activities. 
The commenter also recommended that, rather than limiting pre-award 
authority ``to a maximum amount as determined by FTA'' based on facts 
specific to each disaster, FTA should instead allow pre-award authority 
generally for ``valid and justifiable expenses.'' Another commenter 
suggested that when money has been appropriated specifically for a 
particular situation, the full amount should be made immediately 
available through pre-award authority.
    FTA appreciates the suggestions made by these commenters. 
Resilience projects are inherently different from recovery projects, in 
that there generally needs to be a benefit-cost analysis to determine 
if the project is reasonable and will in fact protect public transit 
assets from future damage. Since these projects require FTA approval in 
advance of incurring costs, pre-award authority will generally not be 
available for these projects. In addition, FTA generally will not make 
an entire appropriation available for pre-award authority; however, the 
amount FTA allocates to a recipient will be available for pre-award 
authority. In the event a recipient is incurring costs in excess of the 
pre-award authority FTA has made available, the recipient should 
contact FTA to discuss the circumstances and the need for a greater 
amount of pre-award authority.
    Another commenter expressed concern that the provision as written 
would appear to condition pre-award authority on the typical pre-award 
requirements that projects be on the Transportation Improvement 
Program/State Transportation Improvement Program (TIP/STIP), have an 
environmental finding in place, and be included in a grant that is in 
development. The commenter noted that such requirements are not 
appropriate in an emergency situation and suggested that the final rule 
include the statement from FTA's Allocation Notice that agencies may 
certify that a project does not result in a substantial functional, 
locational, or capacity change and therefore does not require inclusion 
on the TIP/STIP.
    The joint FTA/Federal Highway Administration (FHWA) metropolitan 
and statewide planning rule at 23 CFR 450.324(c)(5) and 450.216(g)(5) 
provides that emergency relief projects that do not involve substantial 
functional, locational, or capacity changes are not required to be in 
the TIP or STIP. Resilience projects--both stand-alone projects and 
projects completed at the same time as repairs--likely will involve 
substantial functional, locational, or capacity changes and must be 
included in the TIP/STIP. The joint FTA/FHWA environmental impact and 
related procedures rule at 23 CFR part 771 provides that many 
activities undertaken immediately following an emergency will be 
categorical exclusions. FTA and FHWA issued a final rule on February 
19, 2013 (78 FR 11593, available at http://www.gpo.gov/fdsys/pkg/FR-2013-02-19/pdf/2013-03494.pdf), providing that emergency repairs funded 
under 49 U.S.C. 5324 are categorically excluded (CE), absent unusual 
circumstances. Further, the rule provides that the repair, 
reconstruction, restoration, retrofitting, or replacement of any 
transit facility is categorically excluded if the transit facility is 
in operation or under construction when damaged, and the action (1) 
occurs within the existing right-of-way and substantially conforms to 
the preexisting design, function, and location, and (2) work is 
commenced within two years of the declared emergency or disaster. It is 
important to note that the availability of a categorical exclusion for 
emergency relief projects does not exempt the applicability of other 
environmental requirements. FTA recommends that any grant applicant 
that is concerned that a project may not clearly qualify for the 
categorical exclusion contact the appropriate FTA Regional Office for 
assistance in determining the appropriate environmental review process 
and level of documentation necessary before incurring costs for 
property acquisition, demolition, construction, and acquisition of 
vehicles, equipment, or construction materials. Project sponsors should 
consult with FTA directly on approaches to meeting any requirements 
that FTA does not determine are exempt. The existing rules ensure that 
recipients can undertake emergency response activities immediately 
after a disaster with some assurance that they will not violate Federal 
planning and environmental requirements. Consequently, FTA does not 
believe it is necessary to include similar provisions in the Emergency 
Relief rule.
    Several commenters addressed FTA's request for comments regarding 
the phrase ``forecast with some certainty to hit the affected area'' 
with respect to pre-award authority for storms that can be predicted. 
Three commenters expressed dissatisfaction with the proposed language, 
but differed in their alternative suggestions. Two commenters suggested 
adopting current FEMA standards for defining the beginning of an 
emergency, including FEMA Policy FP 010-4. One commenter suggested that 
pre-award authority should be linked to an agency's documented disaster 
preparedness plan, noting that the plans for different disasters 
require different time periods. Finally, two commenters approved of the 
phrase suggested by FTA, with one commenter noting that it provides for 
maximum flexibility for future emergencies.
    In response to comments and for consistency with FEMA, FTA is 
amending this section. FTA is electing not to adopt FEMA's Policy FP 
010-4 in its entirety, as it is subject to revision every three years. 
Instead, we have conferred with FEMA regarding their practice and 
reviewed FEMA's regulation for requests for emergency declarations at 
44 CFR 206.35, and are amending the text as follows: For expected 
weather events, the Governor must declare a state of emergency and 
request concurrence by the Secretary of Transportation or make a 
request to the President for an emergency declaration, in advance or 
anticipation of the impact of an incident that threatens such damage as 
could result in a major disaster, and take action under State law to 
direct execution of the State emergency plan. In addition, the 
emergency operations and emergency protective measures activities must 
be required in anticipation of the event. Adopting this text provides 
affected recipients with certainty as to when FTA will fund emergency 
protective measures, evacuations, and other activities, and aligns 
FTA's regulation with FEMA's.
    Finally, FTA notes that recipients may use section 5311 and section 
5307 formula funds in response to a disaster or emergency. Importantly, 
if section 5324 emergency relief funds are or become available, the 
formula funds may not be replenished from section 5324 funds. However, 
a recipient may find that use of formula funds is the best course of 
action. In this case, pre-award authority exists from the first day of 
the incident period, in an amount up to the amount of formula funds 
available to that recipient. FTA is adding text to this section of the 
rule to reflect this.

Section 602.13 Eligible Activities

    Five entities commented on this section. Commenters were supportive 
of FTA's decision to allow replacement of damaged assets with new 
assets. One commenter suggested FTA should clarify that design 
standards include applicable building codes and general standards of 
care and best practices for the industry. FTA believes that

[[Page 60355]]

applicable building codes and best practices are captured in the policy 
statement that projects should be rebuilt/repaired/replaced to a state 
of good repair.
    One commenter suggested that FTA consider allowing a certain 
percentage of resilience elements in a grant for emergency repairs, and 
another commenter stated that FTA should allocate resilience funds as 
soon as possible in order to allow integrated resilience measures to be 
funded through dollars allocated for repair. FTA agrees in concept that 
notification of the availability of funds for resilience projects 
should be made as soon as possible. However, since the funding for the 
Emergency Relief (ER) program is subject to congressional 
appropriations each fiscal year, it is not appropriate to specify that 
level of detail in the ER rule. Resilience projects are an eligible 
expense; however, it is likely that the availability of funding for 
resilience projects may be on a case-by-case basis, and not necessarily 
for all emergencies or disasters.
    One commenter suggested that because bus systems necessarily 
operate on streets and roads, there should be some eligibility in the 
FTA Emergency Relief Program for ``transit streets'' and ``transit 
bridges.'' The commenter acknowledged that these roads and bridges fall 
under the jurisdiction of a different agency. FTA's Emergency Relief 
program allows FTA to fund capital projects to repair the facilities of 
a public transportation system. To the extent a bus rapid transit (BRT) 
system operates on a separated fixed guideway, the guideway would be 
eligible for ER funding if damaged, in the same way a rail fixed 
guideway would be eligible for ER funding. However, if the BRT system 
operates on streets shared with other motor vehicles, damage to the 
street would not be an eligible expense for FTA's Emergency Relief 
Program. Repairs to the street or bridge may, however, be eligible for 
FEMA or FHWA ER funding.
    One commenter suggested that FTA be clear that repair or 
replacement of spare parts held in the normal course of business and 
damaged or destroyed are an eligible expense. FTA is amending the rule 
to reflect that replacement of spare parts is eligible for 
reimbursement. The commenter also noted that some damages could be 
latent, and the full impact of a disaster may not be known for months 
or years, and that these damages should be eligible under the Emergency 
Relief program. Certainly in the case of some disasters, there will be 
latent damage. Any repairs or replacements would be eligible under the 
rule as drafted.
    Regarding the eligibility of formula and other funds available to 
the recipient to be used in conjunction with Emergency Relief funds to 
make substantial changes or improvements to an affected transit asset 
during the course of an Emergency Relief project, one commenter asked 
whether formula and other funds could be used as the local match. With 
the exception of CDBG funds as described above, Federal funds may not 
be used to match Emergency Relief funds. Affected recipients may use 
their FTA formula funds to augment their ER funds in order to pay for 
activities not eligible under the Emergency Relief Program, but may not 
use formula funds to match ER grants.
    FTA requested comment on the extent of the benefit-cost analysis 
that is appropriate to justify emergency repairs, permanent repairs, 
and resilience projects, and did not include any regulatory text 
regarding these analyses in the interim final rule. In response, one 
commenter had a list of specific suggestions: (1) Projects to restore 
existing assets and services should be exempt from benefit-cost 
analysis; (2) wherever possible, FTA should provide standard values to 
be used in the preparation of benefit-cost analysis to improve 
comparability across projects and reduce guesswork; (3) the benefit-
cost analysis should not be overly onerous, should not require 
applicants to hire consultants, and should involve mutually supportive 
interaction between the applicant and FTA; (4) the benefit-cost 
analysis should recognize transit network benefits and social benefits, 
including the high-value benefit of network redundancy; and (5) FTA 
should consider adopting the broad approach to benefits found in the 
FEMA Hazard Mitigation programs, rather than the narrow criteria 
present in the FHWA Emergency Response program.
    Another commenter recognized the need for benefit-cost analysis, 
but recommended allowing agencies to use internally-developed processes 
for evaluating project benefits when identifying resilience measures 
internally. The commenter further urged that if FTA intends to use 
benefit-cost analysis to compare resilience projects across properties 
and allocate funding on that basis, agencies should be able to consider 
benefits of a project to the transit system as a whole, not merely the 
line segment where the project will occur. Finally, the commenter 
suggested that broad economic impacts should also be considered in a 
benefit-cost analysis to compare projects across agencies, and 
allowances should be made for regional cost differences in the 
development of a nation-wide methodology.
    A third commenter suggested that the loss of function costs should 
include economic loss based on the financial status of transit 
agencies' riders. A fourth commenter also noted that the cost element 
of a benefit-cost analysis for resilience projects should incorporate 
the full indirect costs associated with a partial or complete transit 
system shut-down.
    Two commenters suggested that the level of risk analysis performed 
on a project cost estimate should vary with the type of project, so 
that routine activities would require minimal review while more complex 
projects would require deeper risk analysis.
    FTA appreciates the comments, and will consider the comments as FTA 
develops guidance for benefit-cost analyses under this program. FTA is 
choosing not to include regulatory text related to benefit-cost 
analysis at this time, as we agree that the submission of a benefit-
cost analysis to FTA will usually not be necessary for emergency or 
permanent repairs. Resilience projects will generally require the 
completion of some form of benefit-cost analysis, and any future 
notices of funding availability will specify whether FTA requires a 
benefit-cost analysis. If a benefit-cost analysis is required for a 
particular situation, FTA's process will be consistent with OMB 
Circular A-94. FTA notes that FEMA has developed a rigorous benefit-
cost analysis methodology, which FTA considered in developing its 
procedures for evaluating proposed resilience projects in its recent 
notice of funding availability for Hurricane Sandy resilience projects 
(78 FR 78486, Dec. 26, 2013, http://www.gpo.gov/fdsys/pkg/FR-2013-12-26/pdf/2013-30867.pdf).

Section 602.15 Grant Requirements

    Five commenters addressed the provisions in this section, focusing 
on FTA's case-by-case determination of the 45-day inapplicability of 
FTA's grant requirements, the requirements for Executive Order 11988 
floodplain analysis, and the absence of applicability of labor 
protections for the Emergency Relief Program.
    As stated in the preamble to the interim final rule, FTA may 
determine the inapplicability of certain 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

[[Page 60356]]

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.
    Several commenters stated that the 45-day waiver of the grant 
requirements was insufficient to provide for effective planning and the 
reality of disaster response. One commenter said that the Administrator 
should be given more explicit authority to increase the 45-day waiver 
period as necessary, commensurate with the intensity of the event and 
the restoration of normal operating service. Another commenter 
suggested that, while the 45-day waiver period may be sufficient in 
many circumstances, FTA should prospectively waive certain requirements 
for a longer period, and should be as flexible as possible in its 
implementation of the usual FTA requirements. One commenter recommended 
a 180-day waiver of normal FTA grant requirements and procurement 
rules. Two commenters suggested that FTA should be as flexible as 
possible with regard to procurement requirements, with one commenter 
recommending that procurement rules should be waived for all emergency 
work and permanent repairs, and that the use of pre-existing contracts, 
including those not procured through Federal methods, should be 
acknowledged and permitted. The commenter also noted that ``exigent 
circumstances''--a justification for sole source procurements allowed 
in the common grant rule--might last for several years due to the need 
to stage work in a way that minimizes the adverse impact to customers.
    FTA believes that 45 days is sufficient as a starting point for a 
broad inapplicability of certain FTA requirements, and that the rule 
provides sufficient flexibility to permit the Administrator to increase 
that time period as he or she deems necessary. We note that FTA 
provided a 90-day period after Hurricane Sandy in which certain FTA 
requirements were relaxed, and this was ample time for most 
circumstances. As stated in the preamble to the interim final rule, FTA 
also establishes an emergency relief docket each year, by which 
affected recipients may request waivers from FTA requirements. See 49 
CFR part 601, subpart D.
    The common grant rule (49 CFR 18.36) provides that noncompetitive 
procurement is permitted only when one of a specific set of 
circumstances applies. One of those circumstances is ``the public 
exigency or emergency for the requirement will not permit a delay 
resulting from competitive solicitation.'' Certainly in the first 45 
days after a major disaster, affected recipients will need to respond 
quickly, and the public exigency circumstance will generally apply. 
However, in FTA's view, while some permanent repairs will be completed 
soon after the emergency or disaster, many permanent repairs will be 
planned many months in advance and there will be ample time for 
competitive solicitations. Public exigency--by definition ``urgency''--
is not a circumstance that will last ``for several years.'' FTA expects 
agencies to stage permanent repair work subsequent to an emergency or 
major disaster in the same manner they stage their regular, ongoing 
maintenance and repair work in a way that minimizes adverse impacts to 
customers.
    Regarding the application of Executive Order (E.O.) 11988, 
Floodplain Management, one commenter noted that the floodplain 
management provisions should not be applied to ferry projects, which 
inherently will almost always be placed in a floodplain (an area 
subject to a one percent or greater chance of flooding in any given 
year, also known as a special flood hazard area). Two commenters 
requested that FTA streamline the E.O. 11988 analysis procedures 
whenever possible, for example by allowing recipients to group and 
discuss similar repair and resilience projects that would likely result 
in similar conclusions and findings regarding floodplain impacts, or by 
allowing agencies to perform the E.O. 11988 analysis concurrently with 
FTA project development. Three commenters discussed the 
impracticability of relocating certain transit infrastructure outside 
of floodplain boundaries, and one commenter suggested that FTA should 
incorporate into the final rule, text from the preamble stating that 
elevating structures within the floodplain is not a necessary 
precondition to funding. In addition, this commenter recommended that 
FTA specify that only practical measures to mitigate future damage are 
required, i.e., measures whose costs are not disproportionate to the 
protection they provide. One commenter suggested that FTA use other 
official sources of information in addition to FEMA, including the 
National Oceanic and Atmospheric Administration (NOAA) and the U.S. 
Army Corps of Engineers, when determining appropriate flood elevations, 
and that FTA post the current sources of information to its Web site.
    While it is true that ferry facilities will almost always be 
located in a floodplain, there are actions that ferry operators can 
take to mitigate or prevent damage to ferry terminals and maintenance 
facilities, as well as the ferries themselves, in the event of a flood. 
Further, the Executive Order does not give FTA the discretion to exempt 
ferries or any other transit system from the E.O. requirements. FTA 
reminds recipients that while Hurricane Sandy brought a renewed focus 
to the effects of building in floodplains, E.O. 11988 was signed in 
1977, and the analysis required by that Executive Order is not new. 
U.S. DOT and FTA have published guidance on floodplain management (see 
http://www.fta.dot.gov/12347_2237.html) and FTA expects to provide 
updated guidance as part of an emergency relief guidance document. 
Generally, FTA has no objection to recipients ``streamlining'' the E.O. 
11988 analysis procedures as long as the recipients' actions are 
consistent with the Executive Order and the DOT guidance. As to the 
practicality of measures to mitigate future damage within a floodplain, 
the E.O. discusses the ``practicability'' of alternative site locations 
and actions to ``minimize'' potential harm when the only practicable 
alternative is siting in the floodplain. The U.S. DOT Order for 
Floodplain Management and Protection (see http://isddc.dot.gov/OLPFiles/DOT/007652.pdf), published in 1979, defines ``practicable'' as 
``capable of being done within natural, social, and economic 
constraints.'' FTA believes the E.O. and the U.S. DOT Order contemplate 
the sort of benefit-cost analysis suggested by the commenter, and that 
it will not be practicable to relocate certain transit infrastructure 
to non-floodplain areas. As for the suggestion that FTA use other 
official sources of information for determining appropriate flood 
elevations, the Executive Order, as amended by E.O. 12148, vests the 
authority for this function in FEMA. However, as stated in the preamble 
to the interim final rule, 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 E.O. 11988.

[[Page 60357]]

    In the preamble to the interim final rule, we explained that 
recipients would also consider the best available data on sea-level 
rise, storm surge, scouring and erosion before rebuilding in order to 
comply with the requirements of E.O. 11988. This text was inadvertently 
left out of the regulatory text, and we have included it in this final 
rule at section 602.15(d)(6). FTA believes including this requirement 
in the regulatory text is desirable to clarify that this type of data 
should be reviewed when determining whether a project is located within 
a floodplain.
    Finally, two commenters urged FTA to include labor protections 
codified at 49 U.S.C. 5333(b) as grant requirements for the Emergency 
Relief program. In support of their position, the commenters pointed to 
the history of labor protections in the Federal transit program, the 
scope of work to be completed as a result of Hurricane Sandy, and the 
provision in the ER statute that permits the Secretary to set grant 
terms and conditions the Secretary determines are necessary.
    The Emergency Relief program is not included in the list of 
programs to which 49 U.S.C. 5333(b) applies, nor does the text of 49 
U.S.C. 5324 reference section 5333(b) or the requirements of any other 
section of chapter 53. Therefore, Congress did not expressly include 
labor protections as a grant condition for emergency relief grants. 
Certification of grants by the Department of Labor adds additional time 
to the grant process, and in an emergency situation, the timing of 
grant award is often critical, especially for smaller transit agencies 
that do not have the resources to respond to a disaster and then wait 
for reimbursement.
    FTA understands the concerns raised by the commenters, especially 
in circumstances such as Hurricane Sandy, with a multi-billion dollar 
supplemental appropriation and the likelihood that it will take several 
years to complete repairs. But it is important to note that the final 
rule will apply to all future emergencies and major disasters, not just 
Hurricane Sandy response. Hurricane Sandy was the greatest transit 
disaster in history, and therefore is far from typical. FTA has 
requested a modest $25 million annual appropriation from Congress in 
order to provide funding for transit agencies that experience damage as 
a result of an emergency or major disaster.
    One of the commenters acknowledged that labor protections are not 
required under the Emergency Relief Program, argued that Congress did 
not prohibit the application of labor protections, and asserted that 
FTA has the authority to apply labor protections if those protections 
are deemed necessary. FTA agrees with this commenter, and, given that 
each disaster is unique, the statutory flexibility to establish grant 
terms and conditions allows FTA to address the applicability of labor 
protections to each emergency or disaster on a case-by-case basis. For 
the above reasons, FTA declines to include specific regulatory text 
related to this issue.

Section 602.17 Application Procedures

    Five commenters submitted comments addressing provisions of this 
section.
    Commenters suggested that six weeks is insufficient time for the 
preparation of damage assessment reports, and recommended that FTA 
adopt a 60-day time period for damage assessment reports consistent 
with FEMA practice. Commenters also noted that damage assessment is an 
iterative process, as assets that initially appear undamaged may later 
require repair. In addition, commenters suggested that it is 
unreasonable to expect initial damage assessment reports to include 
permanent repairs and recommended resilience projects, which may not be 
fully identified until after the initial response period.
    While the six week damage assessment report is consistent with the 
FHWA emergency relief rule, FTA acknowledges that transit systems, 
particularly rail transit systems, can be more complex, and therefore, 
FTA is amending the rule to allow 60 days for submission of an initial 
damage assessment report. As with the interim final rule, this time 
period is qualified by the phrase, ``unless unusual circumstances 
prevail,'' which allows FTA and affected recipients to take more time 
if needed. In addition, FTA is adding a provision permitting an 
affected recipient to submit an updated damage assessment report as 
appropriate, as when latent damage becomes known.
    One commenter requested clarification regarding the coordination of 
damage assessment reports for both FTA and FEMA. The commenter asked 
whether the agency would be required to file duplicate reports with 
both agencies; how conflicts between FTA and FEMA guidance and 
regulations would be resolved; and whether FTA or FEMA would be 
designated as the lead agency in terms of agency response. The 
commenter also requested that FTA include a sample damage assessment 
report as an appendix to Part 602, or as an attachment to the FTA/FEMA 
MOU to reflect the information required of recipients of both agencies.
    The rule requires coordination with FEMA when appropriate because 
FTA does not want affected recipients to duplicate efforts after an 
emergency or major disaster. Until FTA has a regular annual 
appropriation for the Emergency Relief Program, affected recipients 
will have to apply to FEMA for reimbursement of emergency relief 
expenses unless there is a specific appropriation for FTA, as there was 
with Hurricane Sandy. Alternatively, recipients may use FTA section 
5307 or section 5311 formula funds to address an emergency, but those 
funds may not be ``replenished'' from the FTA Emergency Relief Program, 
FEMA, or any other Federal source of funds. Generally, affected 
recipients will not be required to file damage assessment reports with 
both FTA and FEMA, but working with both agencies prior to a specific 
appropriation should help to streamline the process in the event FTA 
receives funding. If FTA has funds, FTA will be the lead agency for 
disaster response. If FTA does not have funds, FEMA will be the lead 
agency, and FTA will provide technical assistance to affected 
recipients. Damage assessment reports will vary widely depending on the 
nature of the emergency or disaster, as well as the size of the 
affected recipient and the types of service it provides, so FTA 
declines to provide a sample as a part of this rulemaking. FTA may 
develop one or more sample damage assessment reports as part of its 
guidance for the Emergency Relief Program.
    One commenter suggested that, in the interest of efficiency, FTA 
should not require production of documents, such as disaster 
declarations, that are a matter of public record. Another commenter 
requested that as many documents as possible be kept on file and 
subject to the triennial review or other audit rather than attached in 
the Transportation Electronic Award Management system (TEAM), including 
the damage assessment, copy of the disaster declaration, insurance 
policies, and agreements with other federal agencies. A third commenter 
suggested that large transit agencies be afforded the discretion to 
choose and submit those documents that best reflect the impact of the 
emergency or disaster on the agency's operations.
    FTA concurs with the suggestion that publicly available documents 
not be included in the damage assessment report, and is striking the 
language requiring a copy of the Governor's or President's declaration 
of emergency or disaster. If not uploaded into FTA's

[[Page 60358]]

electronic grant management system, supporting documents need to be 
provided to FTA by other means, such as email or in-person. Simply 
having the documents available is not sufficient, as in many cases FTA 
will need to become familiar with insurance policies, damage 
assessments, and agreements with other federal agencies. Therefore, FTA 
must have copies of those documents as early in the response period as 
possible. As with the interim final rule, the language of the final 
rule states, ``as appropriate, the damage assessment report should 
include . . .'' This allows some latitude to affected recipients to 
submit the most appropriate documentation.
    In the interim final rule, FTA requested comments regarding whether 
applications for Emergency Relief funds should incorporate requirements 
of Section 1315(b) of MAP-21, which requires a periodic evaluation to 
determine whether there are reasonable alternatives to roads, highways, 
or bridges that have repeatedly required repair or reconstruction in 
the past as a result of emergencies or major disasters, but did not 
include at that time any regulatory language. Three entities responded 
to this request. Two commenters stated that such an analysis would be 
inappropriate in the context of emergency repairs. One of the 
commenters noted that this requirement would significantly increase the 
volume of necessary documentation without adding significant value to 
the evaluation process. The other commenter noted that compliance with 
Section 1315(b) provisions would be time-consuming for transit 
agencies, though the commenter admitted that there should be some 
mechanism in place to prohibit eligibility for inherently faulty 
projects, and proposed that alternatively, such projects could be 
eligible for FEMA's hazard mitigation program. The remaining commenter 
stated that any evaluation of prior repeated damage should require the 
applicant to explain whether the current design or proposed redesign 
more effectively protects against future damage.
    After analyzing the comments, FTA has decided to include regulatory 
language concerning the evaluation of alternatives. Although not 
included in the IFR, this regulatory language tracks closely both to 
what FTA requested comment on in the IFR and the comments the agency 
received and is, therefore, a clear logical outgrowth of the IFR. FTA 
agrees with commenters that an evaluation is not appropriate in the 
context of emergency repairs. For other projects, though, today's final 
rule requires an evaluation of alternatives for infrastructure that has 
previously required repair or reconstruction as a result of emergencies 
or major disasters could easily be included in the damage assessment 
report. Therefore, FTA is adding a new paragraph to section 602.17. As 
part of the damage assessment report, applicants must include an 
evaluation of reasonable alternatives, including change of location and 
addition of resilience/mitigation elements, for any damaged transit 
facility that has been previously repaired or reconstructed as a result 
of an emergency or major disaster. If none of a transit agency's 
damaged assets were previously damaged in an emergency or disaster, the 
damage assessment report would include that simple statement.

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

A. Executive Orders 12866 and 13563

    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.
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. FTA does not know precisely how grants to various entities 
(i.e., transfer payments) would be affected by the rule. Since the rule 
may affect transfer payments totaling more than $100 million annually, 
FTA has determined that this is an ``economically significant'' rule 
under Executive Order 12866. This determination is based on the 
Disaster Relief Appropriations Act of 2013 (Pub. L. 113-2), which 
appropriated $10.9 billion to FTA to provide assistance to public 
transportation systems impacted by Hurricane Sandy, and the potential 
for a major disaster to occur in the future.
    The Obama Administration's budget requests included $25 million for 
each of fiscal years 2013 and 2014 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 2014 Consolidated 
Appropriations Act (Pub. L. 113-76). Hurricane Sandy was an 
extraordinary event resulting in historic 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.
    Eligible projects under the statute and the rule include emergency 
operating expenses, as well as capital projects to protect, repair, 
reconstruct or replace public transportation equipment and facilities. 
In this rule, FTA has given ``protection'' of assets two distinct 
meanings: emergency protective measures taken immediately before, 
during, or after an emergency to protect assets from damage or further 
damage, and resilience projects that protect against future disasters. 
FTA's policy, as stated in section 602.7 of this rule, is to assist 
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. In conjunction with repair and 
reconstruction activities, recipients may include projects that 
increase the resilience of affected public transportation systems to 
protect the systems from the effects of future emergencies and major 
disasters. Inherent in this policy is a prioritization of emergency 
operating expenses and emergency recovery and response projects over 
projects that protect against future emergencies. This prioritization 
could impact the funds available for resilience projects.
    Through the Emergency Relief Program, FTA will reimburse States and 
local governmental authorities for

[[Page 60359]]

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.

B. Need for Regulation

    This final rule will carry out a new Public Transportation 
Emergency Relief Program, codified at 49 U.S.C. 5324 and authorized by 
MAP-21. The Disaster Relief Appropriations Act of 2013 required FTA to 
issue an interim rule and today's action makes minor changes in 
response to comments and finalizes the rulemaking. This rule applies 
not only to Hurricane Sandy, but to future emergencies and disasters 
that public transportation systems may experience.

C. Regulatory Evaluation

1. Overview
    The Public Transportation Emergency Relief Program makes funding 
available to public transportation agencies impacted by emergencies and 
major disasters. The rule provides that these agencies may apply for 
funding in order to reimburse the costs incurred as a result of the 
emergency or major disaster.
2. Covered Entities
    Affected recipients that will apply for funding under the Emergency 
Relief Program are public bodies and agencies (transit authorities and 
other state and local public bodies and agencies thereof) including 
states, municipalities, other political subdivisions of states; and 
public agencies and instrumentalities of one or more states that 
provide public transportation services. Private non-profit entities 
that provide public transportation service are eligible subrecipients.
    As this rule implements a new program, FTA can only estimate the 
number of transit agencies that might apply for Emergency Relief funds. 
Notably, emergencies and major disasters can happen at any place and at 
any time, in rural, small urbanized as well as large urbanized areas, 
so any FTA recipient may be affected by this rule.
3. Eligible and Ineligible Activities
    As stated previously, FTA has exercised limited discretion in 
interpreting 49 U.S.C. 5324, which defines the eligible activities for 
the Emergency Relief Program. It is necessary, however, to provide more 
detail than what the statute provides regarding eligible activities. 
FTA turned to its sister agency, the Federal Highway Administration 
(FHWA), for definitions, eligible activities, and process, as FHWA has 
had an emergency relief rule for many years (23 CFR part 668). FTA also 
looked at eligible activities under the Stafford Act in order to ensure 
that affected recipients would be able to apply for all of their 
emergency needs from FTA, thus allowing for a streamlined application 
and reimbursement process.
A. Eligible Expenses
    Emergency operations, emergency protective measures, emergency 
repairs, permanent repairs and resilience projects, as those terms are 
defined in section 602.5 of this rule, are eligible for emergency 
relief funding.
    FTA's goal is to ensure that all projects eligible under relevant 
sections of the Stafford Act, including sections 403 (Essential 
Assistance), 406 (Repair, Restoration and Replacement of Damaged 
Facilities) and 419 (Emergency Public Transportation), will be eligible 
under FTA's Emergency Relief Program. Actions taken by public 
transportation agencies to protect assets in advance of a serious 
weather event can have substantial financial benefits. For example, 
moving rolling stock to higher ground to protect it from storm surges 
can save millions of dollars. Further, actions taken during a weather 
event and in its immediate aftermath, including debris removal and 
dewatering, can prevent further damage to public transportation assets. 
It is in FTA's and the Federal taxpayer's interest to reimburse the 
cost of these activities.
    Public transportation agencies are an integral part of the 
communities they serve, and these agencies will often assist with 
evacuations, rescue operations, and transportation of utility workers 
and other first responders, often without regard to the expense of 
those services. In addition, reestablishing public transportation 
service after an emergency or major disaster may cause a public 
transportation agency to incur extraordinary costs that are not in the 
agency's budget.
    Temporary and permanent repairs undertaken after an emergency or 
major disaster assist the transit agency with restoring service and 
bringing the repaired or replaced facilities into a state of good 
repair. Temporary repairs may be necessary to restore service, and 
these repairs should, when feasible, be undertaken in such a way as to 
reduce the cost of permanent repairs. Bringing facilities and equipment 
into a state of good repair has both quantifiable and non-quantifiable 
benefits. Systems that are in a state of good repair are more 
efficient, more reliable, and more attractive to transit riders. Public 
transportation systems that are in a state of good repair have fewer 
breakdowns, and it is often less expensive to keep equipment and 
facilities in a state of good repair than it is to undertake heavy 
maintenance projects to keep a system running.
    Resilience projects to address vulnerabilities to a public 
transportation facility or system due to the potential future 
recurrence of emergencies or major disasters have long-term financial 
benefits. Rebuilding with materials that can withstand weather events, 
rebuilding in a different location, or adding protective features to a 
facility or system can prevent the facility or system from experiencing 
similar damage in the future. These benefits are not only monetary; the 
ability to restore service in a timelier manner subsequent to an 
emergency or major disaster, when the facility or system has not 
sustained serious damage because it was strengthened by a resilience 
project, helps to restore the community to normalcy more quickly.
    Finally, there is a benefit to the public transportation agencies 
when they can go to FTA for reimbursement of their emergency expenses. 
Under FEMA's Public Assistance Program a public transportation agency 
is a subgrantee and therefore receives its funding through the grantee, 
the State, with which many public transportation agencies do not have 
an ongoing funding relationship. Therefore, even after Federal 
obligation of the funds, it can take time before the funds are received 
by the public transportation agency. The establishment of FTA's Public 
Transportation Emergency Relief Program should expedite reimbursement 
to public transportation agencies, resulting in a benefit for these 
agencies.
B. Ineligible Expenses
    The purpose of the Emergency Relief Program is to provide Federal 
assistance for extraordinary costs resulting from an emergency or major 
disaster. The Emergency Relief Program should not be a substitute for 
good management of assets, nor should it be used for minor emergencies 
that do not cause serious damage. Therefore, heavy maintenance 
activities are not an eligible expense. In addition, any projects 
funded by another Federal agency, insurance policies, or already in an 
FTA grant are not eligible. FTA Emergency Relief funds should 
supplement, not supplant, these other sources of funds. Revenue losses 
due to service disruptions are not

[[Page 60360]]

eligible expenses. The ineligibility of these expenses will help to 
ensure good stewardship of public transportation assets, and will 
ensure that FTA is not using Emergency Relief funds to pay for a 
project or activity that has another funding source. Some transit 
agencies may experience significant revenue losses due to service 
disruptions; however, this is something for which transit agencies can 
plan, and for which they can be insured. The benefit of not covering 
these expenses is that more funds will be available for the eligible 
activities.

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 final rule on 
small entities and has determined the final rule will not have a 
significant economic impact on a substantial number of small entities. 
Recipients of Emergency Relief Program funds are generally States and 
local governmental authorities. The only burden placed upon local 
governments by this rule is the paperwork burden associated with the 
application process, which is addressed in the Paperwork Reduction Act 
section. FTA has sought 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 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 up to 80 percent, and the Secretary may waive all or 
part of the non-Federal share. This 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 final rule has been analyzed in accordance with the principles 
and criteria established by Executive Order 13132, and FTA has 
determined that this final rule will not have sufficient Federalism 
implications to warrant the preparation of a Federalism assessment. FTA 
has also determined that this 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 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). In compliance with the PRA and OMB 
implementing regulation at 5 CFR 1320.8(d), FTA sought longer-term 
approval from OMB for this Information Collection. On August 28, 2013, 
OMB approved FTA's request for an information collection for the 
Emergency Relief Program. The modifications to the regulations in this 
final rule do not modify this collection. Insurance information is 
included in the project budget as well as the quarterly milestone/
progress reports. FTA estimated that it would take recipients 
approximately 50 hours to develop a damage assessment report, and the 
addition of an evaluation of alternatives for only those assets that 
have previously experienced damage as a result of a disaster or 
emergency will not appreciably change that estimate. The approval for 
this information collection will expire on August 31, 2016.

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 final rule is categorically excluded under FTA's NEPA 
implementing procedures at 23 CFR 771.118(c)(4), which covers planning 
and administrative activities that 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 and U.S. DOT Order 5610.2(a) (91 FR 27534, 
May 10, 2012), require DOT agencies to make environmental justice part 
of their mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects, including interrelated social and economic effects, of all 
programs, policies, and activities on minority populations and low-
income populations in the United States. The DOT Order requires DOT 
agencies to address compliance with the Executive Order and the DOT 
Order in all rulemaking activities. FTA has developed a program 
circular addressing environmental justice in transit projects, C 
4703.1, Environmental Justice Policy Guidance for Federal Transit 
Administration Recipients, 77 FR 42077, July 17, 2012 (available online 
at www.fta.dot.gov/legislation_law/12349_14740.html).
    FTA evaluated this rulemaking under the Executive Order and the DOT 
Order. FTA determined that the establishment of procedures governing 
the implementation of FTA's Public Transportation Emergency Relief 
Program will not cause disproportionately high and adverse effects on 
minority or low income populations. The rule simply defines the 
eligibility criteria and outlines the process to apply for assistance 
under the program.
    At the time FTA considers an application for emergency relief, FTA 
has an independent obligation to conduct an evaluation of the proposed 
action under the applicable environmental justice (EJ) Orders and 
guidance as part of the environmental review process. The adoption of 
this rule does not affect the scope or outcome of any EJ evaluation. 
Outreach to ensure the effective involvement of minority and low income 
populations in the environmental review process is a core aspect of the 
EJ Orders and guidance. This rule does not affect the ability of 
affected populations to raise any concerns about potential EJ effects 
at the time FTA considers a grant application. For these reasons, FTA 
determined no further EJ analysis is needed and no mitigation is 
required in connection with this rulemaking.

Executive Order 12630 (Taking of Private Property)

    This action will not affect a taking of private property or 
otherwise have

[[Page 60361]]

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 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.

Therese McMillan,
Acting Administrator.


0
For the reasons set forth in the preamble, FTA amends Chapter VI of 
Title 49, Code of Federal Regulations, by revising part 602 to read as 
follows:

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 
resulting from a natural disaster affecting 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 that applies for a grant 
under 49 U.S.C. 5324.
    Building. For insurance purposes, a structure with two or more 
outside rigid walls and a fully secured roof, that is affixed to a 
permanent site. This includes manufactured or modular office trailers 
that are built on a permanent chassis, transported to a site in one or 
more sections, and affixed to a permanent foundation.
    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, lack of proper maintenance or a design flaw.
    Contents coverage. For insurance purposes, contents are personal 
property within a building, including fixtures, machinery, equipment 
and supplies. In addition to the costs to repair or replace, contents 
insurance coverage shall include the cost of debris removal and the 
reasonable cost of removal of contents to minimize damage.
    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, 
ferry, or rail service to replace inoperable 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) 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:

[[Page 60362]]

    (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 measures;
    (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 following the 
emergency or major disaster, until such time as permanent repairs can 
be undertaken, for the purpose of:
    (1) Minimizing the extent of the damage,
    (2) Restoring service, or
    (3) Ensuring service can continue to be provided until permanent 
repairs are made.
    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.
    Incident period. The time interval during which the emergency-
causing incident occurs. FTA will not approve pre-award authority for 
projects unless the damage to be alleviated resulted from the 
emergency-causing incident during the incident period or was incurred 
in anticipation of that incident. For each Stafford Act incident, FTA 
will adopt the incident period established by FEMA.
    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. The ability to anticipate, prepare for, and adapt to 
changing conditions and withstand, respond to, and recover rapidly from 
disruptions such as significant multi-hazard threats with minimum 
damage to social well-being, the economy, and the environment.
    Resilience project. A project designed and built to address 
existing and future vulnerabilities to a public transportation facility 
or system due to a probable occurrence or recurrence of an emergency or 
major disaster in the geographic area in which the public 
transportation system is located, and which may include the 
consideration of projected changes in development patterns, 
demographics, or climate change and extreme weather patterns. A 
resilience project may be a stand-alone project or may be completed at 
the same time as permanent repairs.
    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. A State of the United States, the District of Columbia, 
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and 
the Virgin 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 the correction of preexisting, non-disaster related 
deficiencies.
    (c) Following an emergency, affected recipients may include 
projects that increase the resilience 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.
    (1) If a recipient receives insurance proceeds that are directly 
attributable to specific assets, the recipient must:
    (i) Apply those proceeds to the cost of replacing or repairing the 
damaged or destroyed project property; or
    (ii) Return to FTA an amount equal to the remaining Federal 
interest in the lost, damaged, or destroyed project property.
    (2) If under the terms of its policy a recipient receives insurance 
proceeds that are not attributable to specific assets, such as blanket, 
lump-sum, or unallocated proceeds, FTA, in consultation with the 
recipient, will determine the portion of such proceeds that the 
recipient must attribute to transit assets.
    (3) Any insurance proceeds not attributable to transit assets may 
be used for other purposes without obligation to FTA, including as 
local share for FTA grants.
    (f) The Flood Disaster Protection Act of 1973 (42 U.S.C. 4001 et 
seq.) provides that Federal agencies may not provide any financial 
assistance for the acquisition, construction, reconstruction, repair, 
or improvement of a building in a special flood hazard area (100-year 
flood zone) unless the recipient has first acquired flood insurance to 
cover the buildings and contents constructed or repaired with Federal 
funds, in an amount at least

[[Page 60363]]

equal to the Federal investment (less land cost) or to the maximum 
limit of coverage made available under the National Flood Insurance Act 
of 1968, whichever is less.
    (1) Transit facilities to which this paragraph (f) applies are 
buildings located in special flood hazard areas and include but are not 
limited to maintenance facilities, storage facilities, above-ground 
stations and terminals, and manufactured or modular office trailers.
    (2) Flood insurance is not required for underground subway 
stations, track, tunnels, ferry docks, or to any transit facilities 
located outside of a special flood hazard area.
    (g) Recipients must obtain and maintain flood insurance on those 
buildings and contents for which FTA has provided funds.


Sec.  602.9  Federal share.

    (a) A grant, contract, or other agreement for emergency operations, 
emergency protective measures, emergency repairs, permanent repairs and 
resilience 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 (c) of this section, pre-award 
authority for the Emergency Relief Program shall be effective beginning 
on the first day of the incident period, subject to the appropriation 
of Emergency Relief Program funds.
    (b) Recipients may use section 5307 or section 5311 formula funds 
to address an emergency, and, except as provided in paragraph (c) of 
this section, pre-award authority shall be effective beginning on the 
first day of the incident period of the emergency or major disaster.
    (c) For expected weather events, pre-award authority for 
evacuations and activities to protect public transportation vehicles, 
equipment and facilities, shall be effective in advance of the event 
under the following conditions:
    (1) The Governor of a State declares a state of emergency and 
requests concurrence by the Secretary of Transportation or makes a 
request to the President for an emergency declaration, in advance or 
anticipation of the impact of an incident that threatens such damage as 
could result in a major disaster;
    (2) The Governor takes appropriate action under State law and 
directs execution of the State emergency plan;
    (3) The activities are required in anticipation of the event; and
    (4) Assistance for a pre-disaster emergency declaration is limited 
to Emergency Protective Measures and Emergency Operations.
    (d) 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 in response to a particular event.
    (e) 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).
    (f) Except as provided in Sec.  602.15, all FTA statutory, 
procedural, and contractual requirements must be met.
    (g) 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.
    (h) 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.
    (i) 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;
    (6) Repair or replacement of spare parts that are the property of 
an affected recipient or subrecipient and held in the normal course of 
business that are damaged or destroyed; and
    (7) Resilience 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) Except for resilience projects that have been approved in 
advance, 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; and
    (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 that certain 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.

[[Page 60364]]

    (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 Agency's (FEMA) Flood 
Insurance Rate Maps (FIRMs). If there are no alternatives but to locate 
the action in a floodplain, prior to seeking FTA funding for such 
action, the recipient shall design or modify 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, 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 State or 
local 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.
    (6) Recipients shall also consider the best available data on sea-
level rise, storm surge, scouring and erosion before rebuilding.


Sec.  602.17  Application procedures.

    (a) As soon as practical after an emergency, major disaster or 
catastrophic failure, affected recipients shall make a preliminary 
field survey, working cooperatively with the appropriate FTA Regional 
Administrator and other governmental agencies with jurisdiction over 
affected 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 affecting 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 resilience projects to protect equipment and 
facilities from future emergencies or major disasters; and
    (vii) An evaluation of reasonable alternatives, including change of 
location, addition of resilience/mitigation elements, and any other 
alternative the recipient considered, for any damaged transit facility 
that has been previously repaired or reconstructed as a result of an 
emergency or major disaster.
    (2) Unless unusual circumstances prevail, the initial damage 
assessment report should be prepared within 60 days following the 
emergency, major disaster, or catastrophic failure. Affected recipients 
should update damage assessment reports as appropriate.
    (3) For large disasters where extensive damage to public 
transportation systems is readily evident, the FTA Regional 
Administrator may approve an application for assistance prior to 
submission of the damage assessment report. In these 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 damage assessment report, as appropriate;
    (2) 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, reconstruct or replace the seriously damaged or 
destroyed rolling stock, equipment, facilities, and infrastructure to a 
state of good repair; and
    (3) 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

[[Page 60365]]

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. Project information 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 
project information 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. 2014-23806 Filed 10-6-14; 8:45 am]
BILLING CODE 4910-57-P