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Questions and Answers Regarding Implementation of 23 CFR Part 667: Periodic Evaluation of Facilities Repeatedly Requiring Repair and Reconstruction Due to Emergency Events

Posted 11/26/2018

This document is guidance only and does not create any requirements other than those stipulated in statute or regulation. 

Note: For the purposes of this Questions and Answers Document, “repeatedly damaged facilities” are roads, highways, and bridges that have required repair and reconstruction activities on two or more occasions due to natural disasters or catastrophic failures resulting in emergencies declared by the Governor of the State or the President (23 CFR 667.1). For purposes of 23 CFR part 667 evaluations, a catastrophic failure is a sudden failure of a major element or segment of a road, highway, or bridge due to an external cause (23 CFR 667.3). The failure must not be primarily attributable to gradual and progressive deterioration or lack of proper maintenance (23 CFR 667.3).

Q: How do States identify repeatedly damaged facilities?

A: State Departments of Transportation (DOTs) must use reasonable efforts to obtain data to identify repeatedly damaged facilities (23 CFR 667.5(b)). Data sources can include reports or other information required to receive emergency repair funds under Title 23, other sources used to apply for Federal or nonfederal funding, and State or local records pertaining to damage sustained and/or funding sought. If data is not available, then the State DOT must document the lack of available information for that facility in the evaluation (23 CFR 667.5(b)), and should indicate what sources were reviewed and the reasonable efforts taken to obtain the data.

Q: Is it necessary that the previous damage to the repeatedly damaged facility required both “repair” and “reconstruction”? If so, would a repeatedly damaged facility that only needed to be repaired without full reconstruction be exempt from the evaluation?

A: No. In the regulation, “repair and reconstruction” is defined as a single “term” that includes either repair activities or reconstruction activities or both repair and reconstruction activities. The term includes permanent repairs such as restoring pavement surfaces, reconstructing damaged bridges and culverts, repairing damaged roadway elements, or replacing highway appurtenances, but excludes “emergency repairs” as defined under the Emergency Relief Program in 23 CFR 668.103. (23 CFR 667.3). A repeatedly damaged facility that was damaged such that it needed permanent repair activities to be restored, even if this repair need would not result in full reconstruction, would not be exempt from evaluation.

Q: Is it a requirement that the actual “repair and reconstruction” occurred? Does the need for repair and reconstruction, even if the action were not taken, qualify the roadway to be included in the evaluation process? For example, if the roadway was damaged and was not reconstructed to open it to traffic but did require reconstruction, would it still need to be evaluated?

A: The actual repair and reconstruction does not need to be completed to meet the requirement to be evaluated (23 CFR 667.1). However, it is necessary that the repeatedly damaged facility has been damaged by an emergency event as defined in 23 CFR 667.3, resulting in the need for repair or reconstruction whether or not repair or reconstruction has been completed.

Q: Is the State responsible for making FHWA aware that the facility was evaluated and providing the results of the evaluation to FHWA? If so, is this done once at a network level (possibly by providing a list of roadways), or is the State responsible for communicating this each time the facility is included in a program or project level Federal action?

A: The regulation does not require the State to notify FHWA when a facility is evaluated, but the State DOT must make the evaluations available to FHWA on request (23 CFR 667.9(b)). The FHWA will periodically review the State DOT's compliance with this regulation, including evaluation performance, consideration of evaluation results during project development, and overall results achieved. The FHWA does not approve the evaluations, but FHWA may consider the results in projects requiring FHWA actions. Independent of 23 CFR part 667, States must meet the requirements for using information from the evaluations in their asset management plans under 23 CFR part 515.

Q: How are repeatedly damaged facilities removed from the evaluation process? If a reasonable alternative is carried out to address the root cause of the damage, can the repeatedly damaged facility be removed from future evaluations?

A: If the root cause of the damage to the repeatedly damaged facility has been addressed and implemented, that facility may be removed from the evaluation process. If the same facility is later damaged by two other emergency events, then that should be considered as a repeated occurrence of damage to that facility and the facility should be evaluated.

Q: How should States handle a facility that has been damaged by multiple events, when the events and their damage are different in nature?

A: Repeatedly damaged facilities must be evaluated even if the damaged is by more than one kind of emergency event (e.g., fire, slide, flood, catastrophic failure, etc.) The State DOT should take into consideration the nature of the damaging emergency events (causes), and the type(s) of damage incurred (effects), when assessing reasonable alternatives to address the root cause of the damage.

Q: Are Federally owned roadways to be included in the evaluation?

A: No, the definition of “roads, highways, and bridges” in 23 CFR 667.3 specifically excludes tribally owned and Federally owned roads, highways, and bridges.

Q: Is there a minimum length of roadway to use in qualifying repeatedly damaged facilities subject to the evaluation? For example, how close do two repeatedly damaged locations need to be to each other to be considered recurring damage?

A: There is no minimum or maximum length of roadway specified. The regulation requires an identification of a reasonable alternative that will mitigate, or partially or fully resolve, the cause of the repeated damage (23 CFR 667.1 and 667.3). If two or more repeatedly damaged facilities in close proximity experience damage that is caused by a similar disaster pattern and the locations can be effectively addressed with a single reasonable alternative, then they can be considered together in the same evaluation. The decision to consider multiple repeatedly damaged facilities as a single repeatedly damaged facility can be made on a case-by-case basis. The decision should focus on an effective reasonable alternative, not simply the distance between the damaged sites.

Q: Does the State have discretion to determine the format of the evaluation?

A: The format and level of detail of the evaluation may be decided by the State DOT as long as the evaluation meets the requirements in the definition of “evaluation” in 23 CFR 667.3. The regulation requires the State DOT to carry out an evaluation in such a manner that the process will, for each identified location, identify alternatives that will mitigate, or partially or fully resolve, the root cause of the recurring damage, an estimate of the costs of the solution, and the likely duration of the solution. The evaluation must consider the risk of recurring damage and cost of future repairs under current and future environmental conditions (23 CFR 667.3). The State DOT should consider how the evaluation can best inform its preparation of the transportation asset management plan (TAMP) and Statewide Transportation Improvement Plan (STIP). Further, the State may consider multiple approaches to how it uses the information from the evaluation, such as: within project-level environmental review and design decisions; within strategic network-level studies where strategies are developed that are used to guide planning and programming decisions; and/ or to support corridor-level studies.

Q: When a new emergency event occurs, is the State required to redo all of its evaluations, or can the State simply add an evaluation of any new facilities with suggested reasonable alternatives?

A: The regulation requires a review and updating of the evaluations for NHS facilities at least every four years (23 CFR 667.7). In setting the re-evaluation cycle, the State DOT should consider how the evaluations can best inform the preparation of its TAMP and STIP. If there is an emergency event between the normal re-evaluation cycle for NHS facilities, the State DOT does not need to redo all evaluations. However, the State DOT is required to add an evaluation for any new NHS roads, highways, or bridges that were affected by the event and were previously damaged by another event after January 1, 1997 (23 CFR 667.7(a)).

Q: How does the evaluation need to be considered in the fully compliant TAMP due on June 30, 2019?

A: For the fully compliant TAMP due on June 30, 2019, the part 667 evaluations must be included and considered in accordance with 23 CFR 515.7(c)(1), 515.7(c)(6), 515.9(d)(3), and 515.9(d)(6) (as well as 23 CFR 515.9(l) if assets other than NHS pavements and bridges are included in the TAMP). Such consideration includes the identification of risks that can affect condition of NHS pavements and bridges and the performance of the NHS, including risks related to recurring damage and costs as identified through the part 667 evaluations. Similarly, States should consider the results of evaluations that could affect whole life costs of assets in life cycle planning processes, particularly those related to extreme weather events and current and future environmental conditions as discussed in 23 CFR 515.7(b).

Q: How should a State consider the evaluations in its planning, programming, and project development, including STIPs, Transportation Improvement Program (TIP), National Environmental Policy Act (NEPA) reviews, etc.?

A: State DOTs are required to consider the results of the evaluations when developing Federal-aid highway projects (23 CFR 667.9(a)). When developing projects, activities that could include consideration of the evaluations are project planning, the environmental review process, and preliminary and final design that move a highway project to construction.

State DOTs and MPOs are encouraged to include consideration of the evaluations during the development of transportation plans and programs, including TIPs and STIPs, and during the environmental review process under 23 CFR part 771.

Evaluations should consider highway design, safety, and security elements to make future Federal-aid highway projects in high-risk areas more resilient against various types of emergency events (e.g., floods, earthquakes, wildfires, landslides).

Q: When is a State expected to consider the evaluations in its decisions?

A: Beginning not later than November 23, 2018, the State DOT is required to consider the evaluations when developing projects on the Federal-aid National Highway System (NHS) (23 CFR 667.7(a) and 667.9(a)), and in its asset management plan under 23 CFR part 515. For all other roads, highways, and bridges subject to 23 CFR part 667, beginning on November 23, 2020, the State DOT must prepare an evaluation prior to including a project for the repeatedly damaged facility in the STIP (23 CFR 667.7(b)), and the State DOT must consider the evaluation when developing the project (23 CFR 667.9(a)). Pursuant to 23 CFR 667.9(b), FHWA must periodically review compliance with this regulation. When determining whether a State has met part 667 requirements for consideration of an evaluation, FHWA may take into consideration whether there was sufficient time following the emergency event that triggered the evaluation requirement for a repeatedly damaged facility for the State to complete the evaluation and include the evaluation in its decision-making process.

Q: What steps will FHWA take to ensure State DOT compliance with the 23 CFR part 667 requirements?

A: The FHWA initially plans to focus on the States’ compliance with 23 CFR part 667 through the FHWA reviews of the risk-based TAMPs due June 30, 2019. The TAMPs must comply with part 667-related requirements in 23 CFR 515.7(c)(1), 515.7(c)(6), 515.9(d)(3), and 515.9(d)(6) (and in 23 CFR 515.9(l) if assets other than NHS pavements and bridges are included in the TAMP). After June 30, 2019, FHWA will periodically review State DOT compliance. The review may include actions such as requesting the evaluations and reviewing the level of consideration in planning, programming, and project level decision-making. Compliance reviews at that time would be for requirements applicable to NHS routes. On and after November 23, 2020, compliance reviews would include requirements applicable to non-NHS routes as well. After this date, the State DOT must complete an evaluation for the affected portion of the repeatedly damaged facility before a project for that facility on a non-NHS route can be included in the STIP (23 CFR 667.7(b)), and the State DOT must consider the evaluation when developing the project (23 CFR 667.9(a)). When reviewing a State DOT’s authorization requests for projects not on the NHS, Division Offices should check whether the facility is subject to the evaluation requirement before the project can go on the STIP.

Updated: 11/26/2018
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