B-128272, JULY 18, 1956, 36 COMP. GEN. 50

B-128272, JULY 18, 1956, 36 COMP. GEN. 50

ROADS - DISASTER RELIEF - DECLARATION OF EMERGENCY REQUIREMENT FEDERAL HIGHWAY RECONSTRUCTION PAYMENTS TO THE STATE OF NORTH CAROLINA, FOR DAMAGES RESULTING FROM THE 1955 HURRICANES, WILL NOT BE OBJECTED TO IF THE ISSUANCE OF A PROCLAMATION OF EMERGENCY NINE MONTHS AFTER THE DISASTER IS ADMINISTRATIVELY DETERMINED TO COMPLY WITH SECTION 7 OF THE FEDERAL-AID HIGHWAY ACT OF 1952, WHICH REQUIRES A DECLARATION OF EMERGENCY, IN VIEW OF OTHER STEPS WHICH WERE TAKEN TO COMPLY WITH CONDITIONS FOR ENTITLEMENT TO FEDERAL AID.

TO THE SECRETARY OF COMMERCE, JULY 18, 1956:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1956, WITH ENCLOSURES, REQUESTING OUR OPINION AS TO WHETHER THE GOVERNOR OF NORTH CAROLINA HAS COMPLIED WITH THE CONDITION SET FORTH IN SECTION 7 OF THE FEDERAL-AID HIGHWAY ACT OF 1952 IN CONNECTION WITH THE REQUEST OF THE STATE OF NORTH CAROLINA FOR EMERGENCY FUNDS AS PROVIDED BY SAID SECTION FOR THE REPAIR OR RECONSTRUCTION OF BRIDGES AND SECTIONS OF HIGHWAYS ON THE FEDERAL-AID SYSTEMS WHICH WERE DAMAGED BY THREE HURRICANES IN 1955.

SECTION 7 OF THE FEDERAL-AID HIGHWAY ACT OF 1952, 66 STAT. 161, AUTHORIZED AN EMERGENCY FUND FOR EXPENDITURE BY THE COMMISSIONER OF PUBLIC ROADS, AFTER RECEIPT OF AN APPLICATION THEREFOR FROM THE HIGHWAY DEPARTMENT OF ANY STATE, IN THE REPAIR OR RECONSTRUCTION OF HIGHWAYS AND BRIDGES ON THE FEDERAL-AID HIGHWAY SYSTEMS WHICH SUFFERED SERIOUS DAMAGE AS THE RESULT OF DISASTERS OVER A WIDE AREA BY REASON OF CERTAIN NATURAL CATASTROPHES, SPECIFICALLY INCLUDING HURRICANES. THE FEDERAL SHARE OF THE EXPENSE OF SUCH REPAIR OR RECONSTRUCTION IS LIMITED TO 50 PERCENT OF THE COST THEREOF, AND IT IS FURTHER PROVIDED THAT NO EXPENDITURE SHALL BE MADE UNDER THIS SECTION IN ANY STATE UNLESS AN EMERGENCY HAS BEEN DECLARED BY THE GOVERNOR OF SUCH STATE AND CONCURRED IN BY THE SECRETARY OF COMMERCE.

OPERATING PROCEDURES FOR THE EMERGENCY ASSISTANCE AUTHORIZED BY SECTION 7 OF THE 1952 ACT AND SECTION 9 OF THE FEDERAL-AID HIGHWAY ACT OF 1950, 23 U.S.C. 13A, WHICH FIRST CONTAINED THE REQUIREMENT FOR DECLARATION OF EMERGENCY AND CONCURRENCE THEREIN BY YOU, ARE SET FORTH IN BUREAU OF PUBLIC ROADS GENERAL ADMINISTRATIVE MEMORANDUM NO. 335 OF JANUARY 10, 1951, AND SUPPLEMENT 1 THERETO OF OCTOBER 6, 1952, COPIES OF WHICH WERE FORWARDED WITH YOUR LETTER. THESE PROCEDURES REQUIRE A STATE HIGHWAY DEPARTMENT DESIROUS OF SECURING EMERGENCY FUNDS UNDER SECTION 7 TO FILE A PRELIMINARY APPLICATION WITH THE COMMISSIONER OF PUBLIC ROADS THROUGH THE DISTRICT ENGINEER PROMPTLY AFTER OCCURRENCE OF THE DAMAGE, WHEREUPON THE DISTRICT ENGINEER WILL ARRANGE FOR A FIELD STUDY AND REPORT UPON THE EXTENT OF THE DAMAGE AND THE APPROXIMATE COST OF RESTORATION OR RECONSTRUCTION. AFTER DECLARATION OF AN EMERGENCY BY THE GOVERNOR AND THE CONCURRENCE BY YOU AND A FINDING BY THE COMMISSIONER OF PUBLIC ROADS THAT AN ALLOCATION OF EMERGENCY FUNDS IS JUSTIFIED BY THE CONDITIONS, THE STATE HIGHWAY DEPARTMENT IS SO ADVISED AND THEN MUST SUBMIT A DETAILED PROGRAM OF PROJECTS.

THE EASTERN PORTION OF THE STATE OF NORTH CAROLINA WAS STRUCK BY HURRICANES " CONNIE," " DIANE," AND " IONE" ON AUGUST 11, AUGUST 18, AND SEPTEMBER 19, 1955, RESPECTIVELY, AND SUFFERED SEVERE AND EXTENSIVE DAMAGE THEREFROM. YOUR LETTER AND ENCLOSURES INDICATE THAT IMMEDIATELY AFTER EACH HURRICANE THE GOVERNOR ADVISED THE PRESIDENT OF THE UNITED STATES OF THE "MAJOR DISASTER" CONDITIONS EXISTING IN THE STATE AS A RESULT THEREOF AND REQUESTED FEDERAL ASSISTANCE UNDER THE PROVISIONS OF PUBLIC LAW 875, 81ST CONGRESS, 64 STAT. 1109, 42 U.S.C. 1855, AND THAT SUCH ASSISTANCE WAS GRANTED. PUBLIC LAW 875, WHICH PROVIDES DISASTER ASSISTANCE UNRELATED TO AND SEPARATE AND DISTINCT FROM THE EMERGENCY ASSISTANCE PROVIDED BY SECTION 7 OF THE FEDERAL-AID HIGHWAY ACT OF 1952, DOES NOT REQUIRE THE FORMAL DECLARATION OF AN EMERGENCY BY THE GOVERNOR OF THE STATE INVOLVED, BUT PROVIDES FEDERAL AID UPON THE DETERMINATION BY THE PRESIDENT THAT THE DISASTER IS OR THREATENS TO BE OF SUFFICIENT SEVERITY AND MAGNITUDE TO WARRANT SUCH AID AND THE CERTIFICATION BY THE GOVERNOR THAT SUCH AID IS NEEDED AND THAT A REASONABLE AMOUNT OF STATE OR LOCAL FUNDS WILL BE EXPENDED TO ALLEVIATE THE CATASTROPHE.

THE GOVERNOR OF THE STATE OF NORTH CAROLINA FULFILLED THE REQUIREMENTS OF PUBLIC LAW 875 AND THE STATE RECEIVED AID THEREUNDER, BUT NO FORMAL DECLARATION OF EMERGENCY WITH RESPECT TO THE THREE HURRICANES, AS REQUIRED BY SECTION 7 OF THE FEDERAL-AID HIGHWAY ACT, WAS MADE UNTIL MAY 23, 1956. MOREOVER, BY LETTER OF SEPTEMBER 26, 1955, ONE WEEK AFTER THE THIRD HURRICANE, THE NORTH CAROLINA STATE HIGHWAY ENGINEER ADVISED THE DISTRICT ENGINEER OF THE BUREAU OF PUBLIC ROADS AT RALEIGH, NORTH CAROLINA, THAT INSOFAR AS HE KNEW THE STATE HIGHWAY AND PUBLIC WORKS COMMISSION OF NORTH CAROLINA DID NOT PLAN TO REQUEST SECTION 7 EMERGENCY FUNDS. HOWEVER, ON SEPTEMBER 20, 1955, IMMEDIATELY AFTER THE THIRD HURRICANE, THE DISTRICT ENGINEER AT RALEIGH HAD INSTITUTED THE FIELD STUDY PROVIDED FOR BY GAM NO. 335. THIS PROGRAM WAS NOT APPROVED, SINCE AT THAT TIME THE GOVERNOR HAD NOT FORMALLY DECLARED AN EMERGENCY AS REQUIRED BY SECTION 7, AND FURTHER ACTION THEREON HAS BEEN HELD IN ABEYANCE. SUBSEQUENTLY, ON MAY 23, 1956, THE GOVERNOR OF NORTH CAROLINA ISSUED A FORMAL PROCLAMATION OF EMERGENCY DECLARING THAT "A STATE OF EMERGENCY DID EXIST IN THESE COASTAL AREAS IN THE EASTERN PART OF NORTH CAROLINA" BEGINNING WITH THE FIRST HURRICANE AND CONTINUING THROUGH AND AUGMENTED BY THE REMAINING TWO, SPECIFYING THE COUNTIES INVOLVED, AND REQUESTING YOUR CONCURRENCE. THIS PROCLAMATION FURTHER STATED THAT THE TOTAL DAMAGE EXCEEDED $193,000,000 OF WHICH $506,763.60 COMPRISED THE DAMAGE TO THE FEDERAL-AID HIGHWAY SYSTEMS.

WHILE THE INTENT OF CONGRESS IN ENACTING SECTION 7 OF THE 1952 ACT AND ITS PREDECESSOR, SECTION 9 OF THE 1950 ACT, APPARENTLY WAS TO AUTHORIZE PROMPT ASSISTANCE IN REPAIRING ROADS AND BRIDGES ON THE FEDERAL-AID HIGHWAY SYSTEM WHICH WERE DAMAGED BY THE SPECIFIED CATASTROPHES (SEE PAGE 5, SENATE REPORT NO. 1596, 82D CONGRESS), THE ACTS AND THEIR HISTORIES ARE SILENT WITH RESPECT TO A TIME LIMITATION FOR A DECLARATION OF EMERGENCY BY THE GOVERNOR OF THE STATE. ALTHOUGH PROMPTNESS IS OBVIOUSLY DESIRABLE, IT IS EQUALLY OBVIOUS THAT THE MAIN OBJECTIVE OF THIS LEGISLATION WAS TO ASSIST THE STATES IN REPAIRING OR RECONSTRUCTING SUCH DAMAGED HIGHWAYS AND BRIDGES.

AS STATED IN YOUR LETTER, THE GOVERNOR IN REPORTING THE EXISTENCE OF "MAJOR DISASTER" CONDITIONS IN SEEKING AID UNDER OTHER FEDERAL LEGISLATION MAY WELL HAVE THOUGHT HE HAD TAKEN THE NECESSARY STEPS TO ESTABLISH AN EMERGENCY. IN VIEW OF THE ACTION TAKEN BY HIM, THE ACTION TAKEN BY THE DISTRICT ENGINEER ON SEPTEMBER 20, 1955, IN DISPATCHING TEAMS OF MEN TO SURVEY AND REPORT ON THE DAMAGE AND THE STATE'S LETTER OF DECEMBER 14, 1955, REQUESTING FEDERAL-AID PARTICIPATION IN EMERGENCY REPAIRS, IT WOULD SEEM THAT ALL NECESSARY STEPS SHORT OF A FORMAL DECLARATION OF EMERGENCY BY THE GOVERNOR WERE TAKEN. ACCORDINGLY, WE WOULD NOT RAISE ANY QUESTION IF YOU SHOULD DETERMINE THAT THE GOVERNOR OF NORTH CAROLINA HAS COMPLIED WITH THE CONDITION SET FORTH IN SECTION 7 OF THE FEDERAL-AID HIGHWAY ACT OF 1952.