Justia Regulation Tracker

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[Federal Register: August 26, 2008 (Volume 73, Number 166)]
[
Rules and Regulations]               
[Page 50194-50196]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au08-6]                         

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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.

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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]

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