[Federal Register: March 6, 2008 (Volume 73, Number 45)]
[Proposed Rules]
[Page 12038-12041]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06mr08-13]
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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: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA is proposing to 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; and 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
[[Page 12039]]
to a Federal-aid project. These revisions will 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: Comments must be received on or before May 5, 2008. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: Mail or hand deliver comments to Docket Management Facility:
U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room
W12-140, Washington, DC 20590. You may also submit comments
electronically at http://www.regulations.gov, or fax comments to (202)
493-2251. All comments should include the docket number that appears in
the heading of this document. All comments received will be available
for examination and copying at the above address from 9 a.m. to 5 p.m.,
e.t., Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped postcard or you may print the acknowledgment page that appears
after submitting comments electronically. Anyone is able to search the
electronic form of all comments in any one of our dockets by the name
of the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, or labor union). You
may review the DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (Volume 65, Number 70, Pages
19477-78) or you may visit http://DocketsInfo.dot.gov.
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 and Filing
You may submit or retrieve comments online through the Federal
eRulemaking portal at http://www.regulations.gov. It is available 24
hours each day, 365 days each year. Electronic submission and retrieval
help and guidelines are available under the help section of the Web
site. An electronic 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 are available. Only the amount converted becomes an
obligation of the Federal Government.
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. 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.
Discussion of Proposed Change
Section 630.703 Eligibility
In this NPRM the FHWA proposes to revise the regulations for
advance construction, contained in 23 CFR 630.703, so they are
consistent with the advance construction statute as amended by section
1501 of SAFETEA-LU. These proposed revisions would make two changes.
First, they would 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. Second, the revisions will clarify that advance
construction procedures may be used for all categories of Federal-aid
highway funds, and that any available Federal-aid funds may be used
when a project is converted to a Federal-aid project. These revisions
will make 23 CFR part 630 consistent with the advance construction
statute at 23 U.S.C. 115, as amended by section 1501 of SAFETEA-LU.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments, the
FHWA will also continue to file relevant information in the docket as
it becomes available after the comment period closing date, and
interested persons should continue to examine the docket for new
material. A final rule may be published at any time after close of the
comment period.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined preliminarily 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
proposed rule will not adversely affect, in a material way, any sector
of the economy. This proposed 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 proposal 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 rule. In addition, these proposed 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.
[[Page 12040]]
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 proposed
action on small entities and have determined that the proposed 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 proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132, and the
FHWA has preliminarily determined that this proposed action would not
warrant the preparation of a Federalism assessment. The FHWA has
determined that this proposed 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. Accordingly, the
FHWA solicits comments on this issue.
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
proposal does not contain collection of information requirements for
the purposes of the PRA.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This proposed 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) Further, in
compliance with the Unfunded Mandates Reform Act of 1995, the FHWA will
evaluate any regulatory action that might be proposed in subsequent
stages of the proceeding to assess the effects on State, local, and
tribal governments and the private sector.
Executive Order 12988 (Civil Justice Reform)
This proposed 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 proposed action under Executive Order
13045, Protection of Children from Environmental Health Risks and
Safety Risks. The FHWA certifies that this proposed 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 proposed rule under Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights. The FHWA does not anticipate that this
proposed action would affect a taking of private property or otherwise
have taking implications under Executive Order 12630.
National Environmental Policy Act
The FHWA has analyzed this proposed 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 proposed 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 proposed action 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 proposed 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: February 28, 2008.
James D. Ray,
Acting Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend
Chapter I of title 23, Code of Federal Regulations as set forth below.
PART 630--PRECONSTRUCTION PROCEDURES
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 Pub. L. 109-59, 119 Stat. 1144; Pub. L. 105-
178, 112 Stat. 193; Pub. L. 104-59, 109 Stat. 582; Pub. L. 97-424,
96 Stat. 2106; Pub. L. 90-495, 82 Stat. 828; Pub. L. 85-767, 72
Stat. 896; Pub. L. 84-627, 70 Stat. 380; 23 CFR 1.32 and 49 CFR
1.48(b).
Subpart G--Advance Construction of Federal-Aid Projects
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
[[Page 12041]]
authorized to proceed under this section from any category of funds for
which the project is eligible.
Sec. 630.709 [Amended]
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. E8-4338 Filed 3-5-08; 8:45 am]
BILLING CODE 4910-22-P