[Federal Register Volume 60, Number 177 (Wednesday, September 13, 1995)]
[Rules and Regulations]
[Pages 47480-47484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22583]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 640

[FHWA Docket No. 95-19]
RIN 2125-AD62


Certification Acceptance

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: The FHWA is adopting an interim policy for certification 
acceptance (CA) which modifies the current FHWA policy. The interim 
policy streamlines and simplifies the existing procedures for CA 
applications to be consistent with the new program provisions in 
sections such as 1016(f) and 1105(e) of the Intermodal Surface 
Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, 105 
Stat. 1914. The modifications simplify the current regulations by 
eliminating unnecessary and prescriptive requirements. The new policy 
will allow State highway agencies (SHAs) to use the CA alternate 
procedures to supplement the administrative flexibility provided in the 
ISTEA for non-Interstate projects.

DATES: This regulation is effective September 13, 1995. Written 
comments must be received on or before December 12, 1995.

ADDRESSES: Submit written, signed comments to FHWA Docket No. 95-19, 
Federal Highway Administration, Room 4232, HCC-10, 400 Seventh Street 
SW., Washington, DC 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. Those desiring notification of receipt of 
comments must include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Donald J. Marttila, Interstate and 
Program Support Branch, Federal-Aid and Design Division, Office of 
Engineering, (202) 366-4637, or Mr. Wilbert Baccus, Office of the Chief 
Counsel, (202) 366-0780, Federal Highway Administration, 400 Seventh 
Street SW., Washington, DC 20590. 

[[Page 47481]]
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: This interim final rule establishes the 
procedures to be followed by SHAs for the processing of transportation 
projects under CA. This document allows the timely use by SHAs of the 
simplified CA procedures. The mandatory requirement for evaluation of 
all areas under CA administration every four years is eliminated, 
however the revised regulation retains the general requirements of the 
FHWA's fundamental provisions of law in title 23, United States Code, 
with respect to the basic structure of the Federal-aid highway program. 
The requirement that the State's laws, regulations, directives, and 
standards must aim to comply with title 23, U.S.C., policies is also 
retained. In keeping with the streamlining effort, specific 
requirements of the States for CA, including reports, are deleted 
because title 23, U.S.C. requirements will be subject to periodic 
changes. The revised CA regulation provides that States may be 
requested to furnish reports and information at the discretion of the 
FHWA. All references to the Secondary Road Plan (SRP) and its limited-
coverage State certification procedures are removed because the SRP 
program was eliminated under the ISTEA restructuring.
    The CA procedures are not being completely eliminated because, even 
in light of the additional flexibility provided by the ISTEA, and in 
particular 23 U.S.C. 106, certain National Highway System (NHS) 
projects can still be handled under CA. Some of those projects were not 
given the additional flexibility provided by the ISTEA. In addition, 
some States continue to use CA notwithstanding the more flexible 
options available.

Section-by-Section Analysis

Section 640.101  Purpose

    The statement of purpose remains unchanged.

Section 640.103  Definitions

    The definition of ``secondary road plan'' is removed because the 
Federal-aid secondary road system has been repealed by the ISTEA.
    The definition of ``State highway/transportation agency'' is added 
to include all departments, commissions, boards or officials charged 
with responsibility for highway construction. The meaning is the same 
as that given for ``State highway department'' in 23 U.S.C. 101.
    The term ``transportation'' is added to the definition of ``State 
certification'' to conform to the definition of ``State highway/
transportation agency.''

Section 640.105  Effect of Certification Acceptance

    Paragraph (d) is revised to eliminate the listing of fundamental 
provisions of law in title 23, U.S.C. The listing has become outdated 
and is subject to periodic changes. This does not change the finding 
required in 23 U.S.C. 117 that Federal-aid projects under CA will be 
carried out in accordance with State laws, regulations, directives and 
standards which will accomplish the policies and objectives issued 
pursuant to title 23, U.S.C.

Section 640.107  Coverage

    Paragraphs (a) and (c) are revised to conform to the language in 
the ISTEA and 23 U.S.C. 135, Statewide Planning, is added for the 
projects listed in paragraph (b) and excluded from coverage under CA.
    Paragraph (d) is eliminated because it allowed a simplified CA 
application procedure based on evaluation of the State's operations and 
performance under the SRP which has been eliminated. The simplified 
procedure is not needed because the special rules in 23 U.S.C. 106, 
provided under the ISTEA, allow increased flexibility in approval of 
projects using Federal-aid funds on non-NHS projects, low-cost NHS 
projects, and 3R projects on the NHS.
Section 640.109  Requirements for Certification Acceptance

    Paragraphs (a) and (b) are revised and combined into a new 
paragraph (a) to simplify and streamline reviews and to eliminate 
redundant or unnecessary requirements. The detailed list of title 23 
requirements is eliminated and the itemized evaluation of a State's 
performance and resources, to be used to determine the State's 
capability to carry out project responsibilities, is replaced by a more 
flexible approach. The approach is based on process reviews and 
evaluations conducted as part of the overall FHWA evaluation of the 
State's performance and resources. Procedures to accept limited-
coverage CA, based on an evaluation of operations and performance under 
an approved SRP, are eliminated because of the repeal of the secondary 
road system by the ISTEA and because the limited-coverage of projects 
is not necessary given the special rules provided for in the ISTEA 
which have replaced the need for CA of such projects.
    Paragraph (c) is redesignated as paragraph (b).

Section 640.111  Content of State Certification

    Paragraph (a) is revised to eliminate the procedures for limited-
coverage State certification which are no longer applicable. Such 
certification is not necessary for non-NHS projects, low-cost NHS 
projects, and 3R projects on the NHS under the provisions of 23 U.S.C. 
106.

Section 640.113  Procedures

    The text is revised and rearranged to simplify and streamline the 
procedures and eliminate redundant and unnecessary requirements. The 
revision implements guidance issued by the FHWA for program oversight 
in conformance with the ISTEA provisions, giving greater flexibility to 
the administration of Federal-aid projects.
    Paragraph (a) is eliminated as redundant and because its subject is 
covered in Sec. 640.105(d). Paragraph (b) is redesignated as paragraph 
(a). Paragraph (c) is redesignated as paragraph (b) and the text 
revised to conform to current FHWA guidance on processing design 
exceptions for projects administered under CA. Paragraph (d) is 
redesignated as paragraph (c) and the information on project agreements 
is updated to the requirements in 23 CFR Part 630, subpart C. Paragraph 
(e) and Appendix A, referenced in paragraph (e), are eliminated because 
the listing in Appendix A is outdated and not all inclusive and because 
the reports required by Appendix A on Federal-aid projects are subject 
to periodic changes. Paragraph (f) is redesignated as paragraph (d) and 
the text is revised to conform to the ISTEA provision for acceptance of 
Federal-aid projects. Paragraph (g) is redesignated as paragraph (e) 
and the text revised to remove the requirement that the State submit 
the final voucher on a specific form known as ``FHWA 1447''.
    Paragraph (h) is redesignated as paragraph (f).

Section 640.115  Evaluations

    Paragraphs (a) and (b) are revised to provide more flexibility in 
administering the CA procedures, in keeping with the spirit of ISTEA 
and recommendations made in the 1993 report by the Office of Program 
Review, entitled ``Stewardship Under ISTEA Program Efficiencies.'' 
Paragraph (a) is revised to provide that evaluations will be periodic, 
on an ``as deemed appropriate' basis, rather than requiring evaluations 
at least once every 4 years. 

[[Page 47482]]
Paragraph (b) retains the requirement that an evaluation report, with 
recommendations, be prepared when a State fails to comply with CA 
requirements. This evaluation report is retained to provide a means for 
determining whether acceptance of a State's certification should be 
rescinded.

Section 640.117  Rescission of State Certification

    The text is not changed in this section.

Review Procedure

    Based on an analysis of public comments received, the FHWA will 
reexamine its determination that this interim final rule is acceptable 
as the basis for CA and whether further change is warranted.
Rulemaking Analysis and Notices

    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 
allows agencies engaged in rulemaking to dispense with prior notice and 
opportunity for comment when the agency for good cause finds that such 
procedures are impracticable, unnecessary, or contrary to the public 
interest. For the reasons set forth below, the FHWA has determined that 
prior notice to the public on this action is unnecessary and contrary 
to the public interest.
    The FHWA has determined that prior notice and opportunity for 
comment are unnecessary because the changes being adopted in this 
rulemaking involve streamlining and provide more administrative 
flexibility in the use of the regulation. This revision, as part of the 
government regulatory review effort, updates and simplifies the 
existing CA regulation. This rule provides a less burdensome system for 
gathering information from the States with respect to the CA process 
and provides more flexible reporting arrangements for States that are, 
at their option, participating in the CA program. The previous 
requirements for periodic reports are deleted. Instead, the States may 
be requested by the FHWA to furnish reports and information from time 
to time. Overall, the CA procedures are relaxed and do not impose any 
additional restrictions on the public.
    The FHWA has also determined that prior notice and opportunity for 
comment would be contrary to the public interest. As noted earlier, the 
adoption of this interim final rule would allow a timely use by SHAs of 
the streamlined and simplified CA procedures. Through the streamlined 
process and simplified reporting requirements, States that have chosen 
to participate in the CA program can do so to administer their State 
highway programs more efficiently.
    Furthermore, the FHWA has also determined that prior notice and 
opportunity for comment are not required under the Department of 
Transportation's Regulatory Policies and Procedures because it is not 
anticipated that such action will result in the receipt of useful 
information.
    The APA, according to 5 U.S.C. 553(d)(3), also allows agencies, 
upon a finding of good cause, to make a rule effective immediately and 
avoid the 30-day delayed effective requirement. The FHWA has determined 
that good cause exists to make this rule effective upon publication 
because the rule streamlines the CA process and provides less 
prescriptive requirements for its use. Making this rule effective upon 
publication will enable the States to take advantage of the simplified 
procedures immediately. Moreover, it should be noted that participation 
by the States in the CA program is voluntary.
    Nevertheless, public comment is solicited on this action. Comments 
received will be carefully considered in evaluating whether any change 
to this action is needed.

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. As stated, this revised regulation 
merely streamlines and updates the current CA regulation by giving 
added flexibility to the States in their use of CA. It is anticipated 
that the economic impact of the rulemaking will be minimal; therefore, 
a full 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), the FHWA has evaluated the effects of this rule on 
small entities. Based on the evaluation, the FHWA hereby certifies that 
this action will not have a significant economic impact on a 
substantial number of small entities. The FHWA made this determination 
based on the fact that the interim final rule for CA is an update of a 
current regulation and will provide greater flexibility in using the CA 
alternate procedures in the administration of projects consistent with 
the provisions of ISTEA.

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. This rule does not 
impose additional costs or burdens on the States, including the likely 
source of funding for the States, nor does it affect the ability of the 
States to discharge traditional State government functions. The intent 
of this rule is to provide the States with additional administrative 
flexibility in the use of the regulation.

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 et seq.

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 number 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 640

    Government procurement, Grant programs-transportation, Highways and 
roads.

    Issued on: September 5, 1995.
Rodney E. Slater,
Federal Highway Administrator.

    For the reasons set out above, the FHWA amends chapter I of title 
23, Code of Federal Regulations, by revising part 640 to read as set 
forth below. 

[[Page 47483]]


PART 640--CERTIFICATION ACCEPTANCE

Sec.
640.101  Purpose.
640.103  Definitions.
640.105  Effect of certification acceptance.
640.107  Coverage.
640.109  Requirements for certification acceptance.
640.111  Content of State certification.
640.113  Procedures.
640.115  Evaluations.
640.117  Rescission of State certification.

    Authority: 23 U.S.C. 101(e), 117, and 315; 49 CFR 1.48(b).


Sec. 640.101  Purpose.

    The purpose of this part is to provide instructions for preparation 
and acceptance of State certification proposals to accomplish the 
policies and objectives of title 23, U.S.C., using State laws, 
regulations, directives, and standards. Also covered are procedures for 
administering projects under certification acceptance and evaluating 
State performance.


Sec. 640.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Certification acceptance (CA) means the alternative procedure 
authorized by 23 U.S.C. 117(a) for administering Federal-aid highway 
projects not on the Interstate System.
    State certification means a written statement prepared by a State 
highway/transportation agency setting forth the laws, regulations, 
directives, and standards it will use, or cause to be used, in the 
administration of certain highway projects.
    State highway/transportation agency has the same meaning as that 
given for State highway department in 23 U.S.C. 101.


Sec. 640.105  Effect of certification acceptance.

    (a) Acceptance of a State certification permits a State to 
discharge certain responsibilities otherwise assigned to the Secretary 
under title 23, U.S.C., for Federal-aid highway projects. A State may 
permit performance and project certification by capable local 
governments.
    (b) Acceptance of a State certification does not constitute a 
commitment or obligation of Federal funds.
    (c) Acceptance of a State certification does not preclude FHWA 
access to and review of a Federal-aid project at any time.
    (d) Certification acceptance as an alternative procedure does not 
replace the fundamental provisions of law in title 23, U.S.C., with 
respect to the basic structure of the Federal-aid highway program. 
Acceptance of a CA proposal does not preclude application of any 
provision of title 23, U.S.C., that may be advantageous to the State.
    (e) Nothing in this part shall affect or discharge any 
responsibility or obligation of the FHWA under any Federal law other 
than title 23, U.S.C.


Sec. 640.107  Coverage.

    (a) Certification acceptance may apply to Federal-aid highway 
projects except projects on the Interstate System. If other FHWA 
regulations and title 23, U.S.C., allow, projects not on a Federal-aid 
highway may be administered under the provisions of an accepted State 
certification.
    (b) The CA procedure shall not apply to transportation planning and 
research (23 U.S.C. 134, 135, and 307), highway safety (chapter 4, 
title 23, U.S.C.), or those public transportation projects not 
administered by FHWA under title 23, U.S.C.
    (c) A State certification may provide for either full or partial 
coverage of the Federal-aid highway projects, programs, phases of work, 
and classes of projects.


Sec. 640.109  Requirements for certification acceptance.

    (a) Acceptance of either a full or partial coverage State 
certification as described in Sec. 640.107(c) will be based upon:
    (1) A State request and identification of the State laws, 
regulations, directives, and standards that either separately or 
collectively will accomplish the policies and objectives contained in 
or issued pursuant to title 23, U.S.C., and
    (2) An FHWA finding that the State highway/transportation agency 
has the capability to carry out project responsibilities in accordance 
with such State requirements. The FHWA finding will be based on 
previous process reviews and evaluations conducted as part of FHWA's 
oversight of Federal-aid programs and an FHWA evaluation of the State's 
performance and resources. If information from process reviews and that 
available from previous evaluations are considered to be insufficient 
to form a reasonable judgment, they may be supplemented by additional 
reviews and inquiries of the State agency.
    (b) A State certification may be accepted in whole or in part, 
depending on FHWA findings. Where minor deficiencies are found, 
acceptance may be conditioned or may exclude the affected State 
operations until the deficiencies are corrected. Where deficiencies are 
found which are of such magnitude as to create doubt that the policies 
and objectives of title 23, U.S.C., would be accomplished, the State 
certification will not be accepted until the deficiencies are 
corrected.


Sec. 640.111  Content of State certification.

    (a) The State certification will include the following:
    (1) The name of the State highway/transportation agency and the 
legal authority which permits such agency to accomplish the policies 
and objectives contained in or issued pursuant to title 23, U.S.C.;
    (2) A statement of the programs, phases of work, and classes of 
projects or combinations thereof that the State is including in the 
certification being submitted for acceptance;
    (3) For submissions providing full or partial coverage of projects 
as provided in Sec. 640.107(c), a listing of the title 23, U.S.C., 
policies and objectives and citation of State laws, regulations, 
directives, and standards that will be applied. Any policies and 
objectives that are not applicable due to partial coverage may be 
omitted; and
    (4) A description of the State's methods for assuring local 
government knowledge of and compliance with State and Federal 
requirements where they will perform services on projects administered 
under CA.
    (b) Existing assurances and formal agreements between the State and 
the FHWA with respect to equal employment opportunity, current billing, 
and control of outdoor advertising will continue in full force and 
effect and may be incorporated by reference. Likewise, the State's 
procedures accepted under 23 U.S.C. 109(h) may be incorporated by 
reference.
    (c) State certifications are to be signed by the chief official of 
the State highway/transportation agency and submitted to the FHWA 
Division Administrator.


Sec. 640.113  Procedures.

    (a) Authorization by the FHWA to proceed with work on a CA project 
will be in response to a written request from the State highway/
transportation agency.
    (b) If the State finds that exceptions to CA procedures or 
standards are appropriate on a project, the State will justify and 
document such decisions.
    (c) A project agreement, or modification to a project agreement, 
will be executed as required by 23 CFR Part 630, subpart C, Project 
Agreements.
    (d) The FHWA may accept projects based on inspections of a type and 
frequency necessary to ensure the projects are completed in accordance 

[[Page 47484]]
with appropriate standards. The State is to notify the FHWA when a 
project is complete and/or ready for such inspection.
    (e) Final vouchers will be submitted to the FHWA with the State 
certifying that the plans, design, and construction for the project 
were in accord with the laws, regulations, directives, and standards 
contained in the State certification or such project exceptions as were 
approved by the FHWA.
    (f) Revisions or amendments to State certifications will be made 
when necessary and processed as provided in Sec. 640.111(c). The 
existing State certification is to be reviewed periodically to 
determine its adequacy in light of this part, the statutes in effect at 
the time of the review, and the operational reviews made by FHWA.


Sec. 640.115  Evaluations.

    (a) The FHWA may conduct periodic evaluations, as deemed 
appropriate, of the State's operations under CA. These evaluations may 
include coverage of any or all areas of the State's administration of 
CA projects.
    (b) If a failure to comply with Federal or State laws occurs and 
the State is unable or unwilling to effect corrective action of the 
deficiency, an evaluation report, including recommendations, will be 
prepared by the FHWA as a basis for considering whether acceptance of 
the State certification should be rescinded under Sec. 640.117.


Sec. 640.117  Rescission of State certification.

    The acceptance of a State certification may be rescinded at any 
time upon request of the State or if considered necessary by the FHWA 
to protect the Federal interest. The rescission may be applied to all 
or part of the programs or projects covered in the State certification.

[FR Doc. 95-22583 Filed 9-12-95; 8:45 am]
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