[Federal Register Volume 61, Number 216 (Wednesday, November 6, 1996)]
[Rules and Regulations]
[Pages 57330-57331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28577]


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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: Final rule.

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SUMMARY: The FHWA, in an interim final rule published in the Federal 
Register on September 13, 1995, adopted a policy that allows State 
highway agencies (SHAs) to use the certification acceptance (CA) 
procedures for non-Interstate projects to supplement the administrative 
flexibility provided in the Intermodal Surface Transportation 
Efficiency Act of 1991 (ISTEA), Public Law 102-240, 105 Stat. 1914. 
This final rule contains one minor modification to the CA policy to 
clarify that certain project actions do not require FHWA approval.

EFFECTIVE DATE: This regulation is effective December 6, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. Felix Rodriguez-Soto, Federal-Aid 
and Design Division, Office of Engineering, (202) 366-1564, or Mr. 
Wilbert Baccus, Office of the Chief Counsel, (202) 366-0780, Federal 
Highway Administration, 400 Seventh Street, SW., 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: On September 13, 1995, the FHWA published an 
interim final rule (60 FR 47480) establishing the procedures to be 
followed by SHAs for the processing of transportation projects under 
CA. A 90-day period for agencies, firms, or individuals to provide 
comments was allowed. The changes made to the CA regulation by the 
interim final rule are discussed below.
    The interim final rule eliminated the mandatory requirement for 
evaluation of the CA program in each State every four years. The 
requirement that the State's laws, regulations, directives, and 
standards must accomplish the policies and objectives contained in 
title 23, U.S.C., was retained. In keeping with the streamlining 
effort, specific requirements of the States for CA, including reports, 
were deleted because title 23, U.S.C., requirements will be subject to 
periodic changes. The revised CA regulation provided that States may be 
requested to furnish reports and information at the discretion of the 
FHWA. All references to the Secondary Road Plan (SRP) were removed 
because the SRP program was eliminated under the ISTEA restructuring.
    The CA procedures were not completely eliminated because, even in 
light of the additional flexibility provided by the ISTEA and, in 
particular, 23 U.S.C. 106, National Highway System (NHS) projects may 
be administered under CA and may not be administered under 23 U. S. C. 
106. In addition, some SHAs continue to use CA notwithstanding the more 
flexible options available under 23 U. S. C. 106.

Discussion of Comments

    This section addresses the comments received on the interim final 
rule. The FHWA received comments from six SHAs and one organization.

General Comments

    Five States supported the regulation (two as published in the 
interim final rule and three with minor modifications).
    One State commented that CA has worked successfully in that State. 
This State was concerned that partial or full revocation by the FHWA of 
a State's CA plan could be based on process review findings which may 
not be part of a State's CA plan. This State also recommended that the 
final rule establish the nature of the process reviews and other 
evaluations and that an appeal process be established in case of 
partial or full revocation. In response, the FHWA maintains that the 
revisions to the CA regulation were meant to update the regulation to 
conform to new program provisions, to simplify the existing regulation 
by eliminating unnecessary and prescriptive requirements, and to allow 
for the use of process reviews which are already the primary form of 
program oversight by the FHWA. The use of process reviews is not unique 
for CA projects and the FHWA's methods of conducting process reviews 
should be familiar to SHA's. The States' right to appeal was not 
changed by the interim final rule.
    The one organization that commented contends that an interim rule, 
without previous issuance of a notice of proposed rulemaking, inhibits 
public participation and debate on a proposed regulation and causes 
reliance by States on interim policy which may subsequently change as 
result of public comments. In addition, it alleges that the 
supplementary information section in the preamble to the interim rule, 
as published in the Federal Register (60 FR 47480), is inaccurate when 
it characterizes a State CA procedure as legally acceptable if it 
merely ``aims to comply'' with title 23, U. S. C., policies, and that 
``streamlining'' of CA is a full retreat from Federal monitoring of the 
use of Federal highway construction dollars.
    In response to this organization's contention concerning the use of 
an interim rule, the FHWA maintains that the interim rule merely 
updated the CA regulation, removed unnecessary prescriptive 
requirements as part of the government regulatory review effort, 
provided more administrative flexibility in the use of the regulation, 
and did not impose any additional restrictions on the public. The FHWA 
intends that a State accomplish title 23, U.S.C., policies through its 
CA procedures. The FHWA also maintains that the ``streamlining'' is not 
a ``retreat'' from FHWA oversight, but an acknowledgment that the use 
of process reviews and evaluations is the current and primary method of 
project oversight by the FHWA and that it accomplishes the same 
objective as the former project specific reviews. In addition, the

[[Page 57331]]

interim rule with request for comments allowed SHAs who choose to 
participate in the CA program and others adequate opportunity to 
comment on the interim rule. The FHWA, based on an analysis of public 
comments received, has re-examined its decision to go forward with the 
interim final rule as the basis for CA and has determined that an 
interim rule was the appropriate choice in this case. The FHWA also 
determined that prior notice and opportunity for comment were not 
required under the Department of Transportation's Regulatory Policies 
and Procedures because it was not anticipated that such action would 
result in the receipt of useful information.

Specific Comments

    No specific comments were received for Secs. 640.107, 640.109, 
640.111, 640.115, and 640.117 and these sections are unchanged.
    Section 640.113 is being revised to conform to comments received. 
Comments from the States included: (1) one State recommended removal of 
paragraph (e) to be consistent with the removal of 23 CFR 140, Subpart 
A, formerly titled ``Reimbursable Vouchers''; and (2) two States 
suggested removal of the reference to FHWA approval of exceptions in 
paragraph (e) to be consistent with 640.113(b) which only requires the 
States to justify and document the approval of the exceptions. In the 
final rule, the requirements of FHWA approval of exceptions and the 
submission of final vouchers to the FHWA in paragraph (e) are removed 
and the remaining text in paragraph (e) is merged into paragraph (d). 
Paragraph (f) is redesignated as paragraph (e) in the final rule.

Rulemaking Analysis 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 or 
significant within the meaning of Department of Transportation 
Regulatory Policies and Procedures. As stated, this 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 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 1995, 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: October 28, 1996.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the interim rule published at 60 
FR 47480 on September 13, 1995, title 23, Code of Federal Regulations, 
Part 640 is adopted as a final rule with the following changes:

PART 640--CERTIFICATION ACCEPTANCE

    1. The authority citation continues to read as follows:

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

    2. Section 640.113 is amended by revising paragraph (d), by 
removing paragraph (e), and by redesignating paragraph (f) as paragraph 
(e) to read as follows:


Sec. 640.113  Procedures.

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    (d) The FHWA may accept projects based on inspections of a type and 
frequency necessary to ensure the projects are completed in accordance 
with appropriate standards. The State is to notify the FHWA when a 
project is complete and/or ready for such inspection and will certify 
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 
State.
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[FR Doc. 96-28577 Filed 11-5-96; 8:45 am]
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