[Federal Register Volume 60, Number 33 (Friday, February 17, 1995)]
[Proposed Rules]
[Pages 9306-9309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4029]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 630
[FHWA Docket No. 94-30]
RIN 2125-AD40
Federal-Aid Project Authorization
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FHWA proposes to amend its regulation on Federal-aid
program approval and project authorization. In light of changes made by
the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) in
the area of statewide planning, and the joint FHWA/Federal Transit
Administration (FTA) regulations implementing those changes, this NPRM
proposes to remove all other project programming provisions from the
FHWA's regulations. This NPRM would also provide more flexible funding
arrangements and make the Federal-aid authorization process more
flexible. Changes contained in related laws are included.
DATES: Written comments are due on or before April 18, 1995. Comments
received after that date will be considered to the extent practicable.
ADDRESSES: All written, signed comments should refer to the docket
number that appears at the top of this document and should be submitted
to Federal Highway Administration, Office of the Chief Counsel, Room
4232, HCC-10, 400 Seventh Street, SW., Washington, D.C. 20590. All
comments received will be available for examination at the above
address between 8:30 a.m. and 3:30 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard.
FOR FURTHER INFORMATION CONTACT: Jerry L. Poston, Office of
Engineering, 202-366-0450, or Wilbert Baccus, Office of the Chief
Counsel, 202-366-0780, FHWA, 400 Seventh Street, SW., Washington, D.C.
20590. Office Hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday
through Friday except Federal holidays.
SUPPLEMENTARY INFORMATION: The initiation of work for transportation
projects funded under the Federal-aid highway program is a two-step
process. First, the State, in cooperation and consultation with local
officials, as appropriate, through the metropolitan and statewide
planning process, determines activities which will be advanced with
Federal funds made available under title 23, United States Code, and
the Federal Transit Act (49 U.S.C. 5301-5338) and develops a statewide
program of projects for these activities. Prior to passage of the
ISTEA, the requirements for developing the program of projects were
found in 23 U.S.C. 105 and the implementing regulations in 23 CFR 630,
subpart A. With passage of the ISTEA, title 23, U.S.C., was modified
and the new requirements concerning development of a program of
projects, now referred to as the Statewide transportation improvement
program, are contained in 23 U.S.C. 135. The implementing regulation
for this section are at 23 CFR 450 and were initiated through previous
rulemaking actions.
Accordingly, those requirements pertaining to a program of projects
in 23 CFR 630, subpart A, no longer need to be retained. The FHWA
therefore proposes to eliminate Secs. 630.106, 630.108, 630.110 and
630.112 along with inappropriate programming references from the
existing regulation.
The second step in initiation of work is the project authorization
process. The State highway agency (SHA) requests FHWA authorization to
proceed with a proposed Federal-aid highway project. [[Page 9307]] The
FHWA authorization commits the Federal Government to participate in the
funding of a project, except in those instances where the State
requests FHWA authorization without the commitment of Federal funds. In
addition, FHWA authorization also establishes a point in time after
which costs incurred on a project are eligible for Federal
participation. Requirements covering project authorization are also
contained in 23 CFR 630, subpart A. The FHWA proposes to modify certain
of these requirements, both for clarification and to provide the SHA a
greater degree of flexibility on certain funding arrangements. These
modifications are discussed in the following section-by-section
analysis.
Section-By-Section Analysis
Section 630.102 Purpose
The statement of purpose would be revised to eliminate the
reference to programming of projects since this activity would be
eliminated from this subpart.
Section 630.104 Applicability
The existing Sec. 630.104, Definitions, would be replaced with a
new section to identify the types of projects that are covered by this
subpart. FHWA planning and research funds, as defined in 23 CFR
420.103, are authorized using the procedures in the regulations dealing
specifically with these types of projects. At times, certain special
funding categories may have unique authorization requirements and these
types of projects are authorized as set out in implementing
instructions or regulations.
Section 630.106 Authorization to Proceed
Current Sec. 630.106, Policy, would be removed. A new Sec. 630.106,
Authorization to proceed, would be redesignated from current
Sec. 630.114 covering the authorization process. It retains many of the
basic principles set forth in existing Sec. 630.114. However, there are
modifications to provide greater flexibility in some funding areas and
additions for clarification. The following discussion covers proposed
Sec. 630.106 by individual paragraph.
Paragraph (a) would retain the requirement that FHWA authorization
to proceed with a Federal-aid project will only be given in response to
a request from the SHA, and then only if the applicable requirements in
law have been satisfied for the project.
Paragraph (b) would retain the longstanding requirement that
Federal-aid funds will only participate in costs incurred after the
date the FHWA has authorized the State to proceed with the project.
However, exceptions to this requirement have been allowed under a
process set forth in 23 CFR 1.9(b). For informational purposes, wording
has been included in paragraph (b) to identify and cross reference the
exception process.
Paragraphs (c), (d) and (e) would retain the requirement that at
the time a Federal-aid project is authorized, the appropriate Federal
funds for this project must be available. Five general categories for
exceptions to this rule are presented, these being the same five
categories that are in the existing regulation.
Paragraph (f) is new and would be added for purposes of
clarification. The FHWA authorization represents a contractual action
by the FHWA and the Federal share of eligible costs must be agreed upon
when the authorization occurs. The Federal share may be in the form of
a specified percentage of eligible costs or a lump sum amount. Use of
the lump sum share is a relatively new concept and is introduced to
accommodate those instances where there is a desire to commit a fixed
amount of Federal funds to a project. The lump sum amount may not
exceed the legal pro rata share for the Federal funds involved. This
may require downward adjustment of the lump sum amount when costs of
eligible work on a project are less than the initial estimates at the
time of FHWA authorization.
The Federal share agreed to at FHWA authorization would continue
through the life of the project. Manipulation of funding levels of
individual projects to accommodate program funding changes or needs
would not be allowed. However, adjustments to the Federal share would
be permitted for projects in situations where bid prices are
significantly different from the estimates at the time of FHWA
authorization.
Paragraph (g) is new and would incorporate the cost sharing
principles of title 23, U.S.C., into the regulation. For Federal-aid
projects, the Federal share of eligible costs incurred by the State
cannot exceed the maximum share permitted by legislation. There is an
agreed to Federal share of eligible costs and the non-Federal share of
eligible costs must come from State funds (State match). Local
government funds are considered to be State funds. Thus, local
government funds can be combined with SHA funds to cover the required
State match of eligible costs.
Cash contributions from private sources are a different matter.
FHWA participates in costs incurred on Federal-aid projects. Donations
of private cash contributions for a specific Federal-aid project reduce
the cost incurred; therefore, the private funds cannot be used to
reduce the required State match. Private cash contributions can be
applied to either eligible or ineligible items of work. However, when a
private cash contribution is applied to costs eligible for Federal
participation, the private cash contribution is considered to have
reduced the cost of the project and thus reduced the cost incurred by
the State.
On the other hand, if a private cash contribution is made to a
State or local government with no designation to a specific project,
then the private cash contribution can be treated as funds of the State
or local government and may be used in any way State or local funds are
authorized to be used, including providing State match on Federal-aid
projects.
Contributions of funds from other Federal agencies to a specific
project are for the most part treated similarly to private cash
donations. These other Federal agency funds may not be used to provide
the required State match on a Federal-aid project but, instead, are
viewed as having reduced the cost incurred by the State on the project.
The only exception is in those cases where the other Federal agency has
specific legislative authority to use its funds to match other Federal
funds.
Paragraph (h) is new and would require that all contributions to a
project be accounted for and properly credited to the project. The sum
of cash contributions from all sources plus the Federal funds may not
exceed the total cost of the project.
Paragraph (i) is new and would incorporate into the regulation the
provision in 23 U.S.C. 120(i) that allows the State to contribute more
than the normal State match on a Federal-aid project. This provision
has been interpreted to mean that a State may overmatch without being
tied to a mandatory Federal share. However, token financing, such as
when the Federal share represents only a minor percentage of eligible
work or when large contributions are applied to the project to reduce
the total cost, would not be permitted. As a general rule of thumb, it
would be expected that the amount of Federal funds requested will
represent at least 50 percent of eligible project costs. Exceptions to
the 50 percent level should be based on sound project development or
management reasons.
The following table is provided to assist the user in locating
regulatory [[Page 9308]] paragraph changes proposed by this rulemaking:
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Old Section New section
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630.102............................... 630.102
630.104............................... Removed
None.................................. 630.104
630.106............................... Removed
630.108............................... Removed
630.110............................... Removed
630.112............................... Removed
630.114(b)............................ 630.106(a)
630.114(g)............................ 630.106(b)
630.114(h)............................ 630.106(c)
630.114(h)(3)......................... 630.106(d)
630.114(h)(3)......................... 630.106(e)
None.................................. 630.106(f) through (i)
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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, but the FHWA may issue a final
rule at any time after the close of the comment period. In addition to
late comments, the FHWA will also continue to file relevant information
in the docket as it becomes available after the comment closing date,
and interested persons should continue to examine the docket for new
material.
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 or
significant within the meaning of Department of Transportation
regulatory policies and procedures. It is anticipated that the economic
impact of this rulemaking would be minimal; therefore, a full
regulatory evaluation is not required. The FHWA does not consider this
action to be a significant regulatory action because the proposed
amendments would update the Federal-aid project authorization
regulation to conform to recent laws, regulations, and to clarify
existing policies.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Based on the evaluation, the FHWA certifies that this action
would not have a significant economic impact on a substantial number of
small entities. The proposed amendments would only clarify or simplify
procedures used by SHA's in accordance with existing laws, regulations,
or guidance.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism assessment.
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
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. 3501-3520.
National Environmental Policy Act
The Agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et. seq.) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action 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 action with the
Unified Agenda.
List of Subjects in 23 CFR Part 630
Government contracts, Grant programs--transportation, Highways and
roads, Project authorization.
In consideration of the foregoing, the FHWA proposes to amend title
23, Code of Federal Regulations, by revising Part 630, subpart A to
read as set forth below.
Issued on: February 10, 1995.
Rodney E. Slater,
Federal Highway Administrator.
PART 630--PRECONSTRUCTION PROCEDURES
Subpart A--Federal-Aid Project Authorization
Sec.
630.102 Purpose.
630.104 Applicability.
630.106 Authorization to proceed.
Authority: 23 U.S.C. 106, 118, 120, and 315; 49 CFR 1.48(b).
Sec. 630.102 Purpose.
The purpose of this subpart is to prescribe policies for
authorizing Federal-aid projects.
Sec. 630.104 Applicability.
(a) This subpart is applicable to all Federal-aid projects unless
specifically exempted.
(b) Projects financed with FHWA planning and research funds, as
defined in 23 CFR 420.103 are not covered by this subpart. These
projects are to be handled in accordance with 23 CFR parts 420 and 450.
(c) Other projects which involve special procedures shall be
authorized as set out in the implementing instructions.
Sec. 630.106 Authorization to proceed.
(a) The FHWA issuance of an authorization to proceed with a
Federal-aid project shall be in response to a written request from the
State highway agency (SHA). Authorization can be given only after
applicable prerequisite requirements of Federal laws and implementing
regulations and directives have been satisfied.
(b) Federal funds shall not participate in costs incurred prior to
the date of authorization to proceed except as provided by 23 CFR
1.9(b).
(c) Authorization to proceed shall be deemed a contractual
obligation of the Federal Government under 23 U.S.C. 106 and shall
require that appropriate funds be available at the time of
authorization for the agreed Federal share, either pro rata or lump
sum, of the cost of eligible work to be incurred by the State except as
follows:
(1) Advance construction projects authorized under 23 U.S.C. 115.
(2) Bond issue projects authorized under 23 U.S.C. 122.
(3) Projects for preliminary studies for the portion of the
preliminary engineering and right-of-way (ROW) phase(s) through the
selection of a location.
(4) Projects for ROW acquisition in hardship and protective buying
[[Page 9309]] situations through the selection of a particular
location. This includes ROW acquisitions within a potential highway
corridor under consideration where necessary to preserve the corridor
for future highway purposes. Authorization of work under this paragraph
shall be in accord with the provisions of 23 CFR part 712.
(5) In special cases where the Federal Highway Administrator
determines it to be in the best interest of the Federal-aid highway
program.
(d) The authorization to proceed with a project under 23 CFR
630.106(c)(3) through (c)(5) shall contain the following statement:
``Authorization to proceed shall not constitute any commitment of
Federal funds, nor shall it be construed as creating in any manner any
obligation on the part of the Federal Government to provide Federal
funds for that portion of the undertaking not fully funded herein.''
(e) When a project has received an authorization under 23 CFR
630.106 (c)(3) and (c)(4), subsequent authorizations beyond the
location stage shall not be given until appropriate available funds
have been obligated to cover eligible costs of the work covered by the
previous authorization.
(f)(1) The Federal-aid share of eligible project costs shall be
established at the time of project authorization in one of the
following manners:
(i) Pro rata, with the authorization stating the Federal share as a
specified percentage, or
(ii) Lump sum, with the authorization stating that Federal funds
are limited to a specified dollar amount not to exceed the legal pro
rata.
(2) The pro-rata or lump sum share may be adjusted to reflect any
substantive change in the bids received as compared to the SHA's
estimated cost of the project at the time of FHWA authorization,
provided that Federal funds are available.
(g) Federal participation is limited to the agreed Federal share of
eligible costs actually incurred by the State, not to exceed the
maximum permitted by enabling legislation. Any private cash
contributions to the project must be credited to, and thereby such
contributions reduce, the total project cost and are not considered to
be costs incurred by the State. Private cash contributions may be
applied to participating or nonparticipating work. Cash contributions
provided by a local government are considered the same as State funds.
(h) The sum of cash contributions from all sources plus the Federal
funds may not exceed the total cost of the project.
(i) The State may contribute more than the normal non-Federal share
of title 23, U.S.C., projects. However, proposals resulting in token
Federal financing of a Federal-aid project shall not be approved.
[FR Doc. 95-4029 Filed 2-16-95; 8:45 am]
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