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

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[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, https://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, https://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 
https://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 https://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, https://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 
https://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 https://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