[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Rules and Regulations]
[Pages 50194-50196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19636]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 630
[FHWA Docket No. FHWA-2007-0020]
RIN 2125-AF23
Advance Construction of Federal-Aid Projects
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The FHWA is revising its regulation for advance construction
of Federal-aid projects by: (a) Removing the restriction that a State
must obligate all of its allocated or apportioned funds, or demonstrate
that it will use all obligation authority allocated to it for Federal-
aid highways and highway safety construction, prior to the approval of
advance construction projects; and (b) clarifying that advance
construction procedures may be used for all categories of Federal-aid
highway funds, and that any available Federal-aid funds for which a
project is eligible may be used when a project is converted to a
Federal-aid project. These revisions make the regulation consistent
with the advance construction statute, which was amended by a provision
enacted in the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU).
DATES: Effective Date: September 25, 2008.
FOR FURTHER INFORMATION CONTACT: Mr. Dale Gray, Federal-aid Financial
Management Division, (202) 366-0978, or Mr. Steven Rochlis, Office of
the Chief Counsel, (202) 366-1395, Federal Highway Administration, 1200
New Jersey Avenue, SE., Washington, DC 20590. Office hours are from
7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of the NPRM, the comments received and a copy of
this document may be viewed at www.regulations.gov. A copy of this
document may also be downloaded by accessing the Office of the Federal
Register's home page at: http://www.archives.gov or the Government
Printing Office's Web page at http://www.gpoaccess.gov/nara.
Background
Section 115 of title 23, United States Code, permits the Secretary
to authorize States to advance the construction of Federal-aid highway
projects without requiring that Federal funds be obligated at the time
the FHWA approves a project. The State may proceed with an advance
construction project using State funds as no present or future Federal
funds are actually committed to the project. At any time the State may
request that the project be converted to a Federal-aid project provided
that sufficient Federal-aid funds and obligation authority are
available. A State also may request a partial conversion where only a
portion of the Federal share of project costs is obligated and
reimbursed; and the remainder may be converted at a later time provided
that funds and associated obligation authority are available. Only the
amount converted to a Federal-aid project becomes an obligation of the
Federal Government.
[[Page 50195]]
Section 1501 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144) amended
23 U.S.C. 115 to remove a restriction that a State must obligate all of
its allocated or apportioned funds, or demonstrate that it will use all
obligation authority allocated to it for Federal-aid highways and
highway safety construction, prior to the approval of advance
construction projects. Section 1501 also amended the statute to clarify
that advance construction procedures can be used for all categories of
Federal-aid highway funds and that when a project is converted to a
regular Federal-aid project, any available Federal-aid funds may be
used to convert a project which is eligible for that funds class. The
FHWA regulations concerning advance construction, which reflect the
advance construction requirements prior to the enactment of SAFETEA-LU,
are therefore no longer consistent with the statute.
The FHWA published a notice of proposed rulemaking (NPRM) on March
6, 2008, at 73 FR 12038. In the NPRM, the FHWA proposed to (a) remove
the restriction that a State must obligate all of its allocated or
apportioned funds, or demonstrate that it will use all obligation
authority allocated to it for Federal-aid highways and highway safety
construction, prior to the approval of advance construction projects;
and (b) provide clarification that advance construction procedures may
be used for all categories of Federal-aid highway funds, and that any
available Federal-aid funds for which a project is eligible may be used
when a project is converted to a Federal-aid project.
Discussion of Comments
We received comments from the West Virginia Department of
Transportation and Pennsylvania Department of Transportation (PennDOT)
who supported the proposed revisions in the NPRM. Both respondents
noted that the proposal would result in increased flexibility in the
use of Federal-aid highway funds. Additionally, PennDOT mentioned
increased cash flow possibilities, removal of the restrictions on the
use of funds, clarification that advance construction may be used for
all categories of Federal-aid highway funds, and the ability to convert
projects using any available Federal-aid funds which a project may be
eligible, as additional benefits resulting from the changes proposed in
the NPRM.
The docket did not receive any comments opposing the language in
the NPRM. The FHWA is adopting the revisions as proposed in the NPRM as
final.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 and would
not be significant within the meaning of the U.S. Department of
Transportation's regulatory policies and procedures. This final rule
will not adversely affect, in a material way, any sector of the
economy. This action would revise the regulation for advance
construction of Federal-aid projects by removing the restriction that a
State must obligate all of its allocated or apportioned funds, or
demonstrate that it will use all obligation authority allocated to it
for Federal-aid highways and highway safety construction, prior to the
approval of advance construction projects. This action also clarifies
that advance construction procedures may be used for all categories of
Federal-aid highway funds, and that any available Federal-aid funds for
which the project is eligible may be used when a project is converted
to a Federal-aid project. There will not be any additional costs
incurred by any affected group as a result of this final rule. In
addition, these changes will not interfere with any action taken or
planned by another agency and will not materially alter the budgetary
impact of any entitlements, grants, user fees or loan programs.
Consequently, a regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), we have evaluated the effects of this final rule on
small entities and have determined that the action would not have a
significant economic impact on a substantial number of small entities.
The FHWA certifies that this action will not have a significant
economic impact on a substantial number of small entities.
Executive Order 13132 (Federalism)
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132, and the FHWA has
determined that this action would not warrant the preparation of a
Federalism assessment. The FHWA has determined that this action would
not affect the States' ability to discharge traditional State
government functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
Federal programs and activities apply to this program.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501),
Federal agencies must obtain approval from the Office of Management and
Budget (OMB) for each collection of information they conduct, sponsor,
or require through regulations. The FHWA has determined that this final
rule does not contain collection of information requirements for the
purposes of the PRA.
Unfunded Mandates Reform Act of 1995
This rule would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This rule will not result in the expenditure by State, local and tribal
governments, in the aggregate, or by the private sector, of $128.1
million or more in any one year. (2 U.S.C. 1532)
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)
The FHWA has analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The FHWA certifies that this action would not cause any
environmental risk to health or safety that may disproportionately
affect children.
Executive Order 12630 (Taking of Private Property)
The FHWA has analyzed this final rule under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights. The FHWA does not anticipate that this action would
affect a taking of private property or otherwise have taking
implications under Executive Order 12630.
[[Page 50196]]
National Environmental Policy Act
The FHWA has analyzed this action for the purposes of the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347) and
has determined that this action will not have any effect on the quality
of the environment.
Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this action under Executive Order 13175,
dated November 6, 2000, and believes that the final rule would not have
substantial direct effects on one or more Indian tribes; would not
impose substantial compliance costs on Indian tribal governments; and
will not preempt tribal law. Therefore, a tribal summary impact
statement is not required.
Executive Order 13211 (Energy Effects)
We have analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a significant
energy action under that order because it is not a significant
regulatory action under Executive Order 12866 and 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.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory section 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 contained in the heading of
this document can be used to cross-reference this section with the
Unified Agenda.
List of Subjects in 23 CFR Part 630
Reimbursement, Grants programs--transportation, Highways and roads.
Issued on: August 15, 2008.
James D. Ray,
Acting Federal Highway Administrator.
0
In consideration of the foregoing, the FHWA amends Chapter I of title
23, Code of Federal Regulations, by revising Part 630, as set forth
below.
PART 630--PRECONSTRUCTION PROCEDURES
0
1. The authority citation for part 630 is revised to read as follows:
Authority: 23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a);
Sec. 1501 and 1503 of Public Law 109-59, 119 Stat. 1144; Public Law
105-178, 112 Stat. 193; Public Law 104-59, 109 Stat. 582; Public Law
97-424, 96 Stat. 2106; Public Law 90-495, 82 Stat. 828; Public Law
85-767, 72 Stat. 896; Public Law 84-627, 70 Stat. 380; 23 CFR 1.32
and 49 CFR 1.48(b).
0
2. Revise Sec. 630.703 to read as follows:
Sec. 630.703 Eligibility.
(a) The State Department of Transportation (DOT) may proceed with a
project authorized in accordance with title 23, United States Code:
(1) Without the use of Federal funds; and
(2) In accordance with all procedures and requirements applicable
to the project other than those procedures and requirements that limit
the State to implementation of a project--
(i) With the aid of Federal funds previously apportioned or
allocated to the State; or
(ii) With obligation authority previously allocated to the State.
(b) The FHWA, on the request of a State and execution of a project
agreement, may obligate all or a portion of the Federal share of a
project authorized to proceed under this section from any category of
funds for which the project is eligible.
Sec. 630.709 [Amended]
0
3. Amend Sec. 630.709 by removing the term ``SHA'' in each place it
appears, and add in its place the term ``State Department of
Transportation.''
[FR Doc. E8-19636 Filed 8-25-08; 8:45 am]
BILLING CODE 4910-22-P