[Federal Register Volume 62, Number 166 (Wednesday, August 27, 1997)]
[Rules and Regulations]
[Pages 45326-45328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22797]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 140 and 646

[FHWA Docket No. FHWA-97-2681]
RIN 2125-AD86


Railroad/Highway Projects

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: The FHWA is amending its regulations on railroad/highway 
projects and reimbursement for railroad work on Federal-aid highway 
projects. The amendments require railroads to: Submit final billings 
within one year following completion of the railroad work; remove the 
requirement of a State's certification that work is complete; remove 
the ``G'' Funds terminology; increase the ceiling for lump sum 
agreements from $25,000 to $100,000; incorporate changes brought about 
by the Intermodal Surface Transportation Efficiency Act of 1991 
(ISTEA), Public Law 102-240, 105 Stat. 1914; and show dimensions for 
participation limits in metric units. The FHWA makes these changes to 
conform the existing railroad/highway regulations to more recent laws 
or regulations, and to provide State highway agencies with 
clarification and more flexibility in implementing the current law. 
This rulemaking is part of the FHWA's effort to implement the 
President's Regulatory Reinvention Initiative.


DATES: This interim final rule is effective August 27, 1997. Written 
comments must be submitted on or before October 27, 1997.

ADDRESSES: Submit written, signed comments to the docket number that 
appears in the heading of this document to the Docket Clerk, U.S. DOT 
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, D.C. 20590-
0001. All comments received will be available for examination at the 
above address between 10 a.m. and 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Robert Winans, 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: Present FHWA regulations regarding railroad/
highway projects and reimbursement for railroad work on Federal-aid 
highway projects have evolved from basic principles established decades 
ago, with many of the policies remaining unchanged. The present 
regulations are found at 23 CFR part 140, subpart I, and part 646, 
subpart B. The FHWA amends these regulations in the following manner 
and for the reasons set forth below.
    In part 140, subpart I, Sec. 140.904, paragraph (b)(1) is amended 
to clarify that the approved program of projects is the approved 
statewide transportation improvement program, as is now required under 
23 U.S.C. 135.
    In Sec. 140.922, paragraph (b) is amended to require railroads to 
submit final billings within one year following completion of the 
railroad work. Otherwise, previous payments to railroads may be 
considered final and projects may be closed out. This change will 
assist highway agencies in their efforts to obtain timely final 
billings from the railroads. Prior to this action, it had been common 
for some railroad bills to be received years after the work was 
completed, thus delaying audit activity and project closure. With the 
amended language, billings received from railroads after one year 
following completion of the railroad work can be paid at the discretion 
of the highway agency. Paragraph (b) is further amended to remove the 
requirement for State certification that the work is complete, 
acceptable, and in accordance with the terms of the agreement. The FHWA 
believes that such certificates are not necessary on individual 
projects. Instead, compliance can be reviewed on a program basis.
    In part 646, subpart B, Sec. 646.200, paragraph (c) is amended to 
refer to current sections of highway law. Section 405 of title 23, 
U.S.C., was repealed and section 203 of the Highway Safety Act of 1973 
(Pub. L. 93-87, 87 Stat. 282) was codified as part of 23 U.S.C. 130. 
Paragraph (f) is removed because part 170 of title 23, CFR, no longer 
exists.
    Section 646.202, Authority, is removed and reserved. This section 
is removed because the authority citation is placed at the part level 
and, therefore, redundant as a separate section in subpart B.
    Section 646.204 is amended to remove paragraph (d) which defines 
obsolete terminology, to remove the paragraph designations from all 
definitions, and to place the definitions in alphabetical order.
    In Sec. 646.208, paragraphs (a) and (b) are revised to describe 
only funding sources for rail/highway crossing projects. Information 
contained in this section on Federal share is moved to Sec. 646.212.
    The current text of Sec. 646.212, paragraph (b) is removed. Section 
1012(a) of the ISTEA amended 23 U.S.C. 120 by removing subsection (d) 
concerning Federal share payable for reconstruction of existing grade 
separation projects on railway/highway crossings. Such projects are no 
longer eligible for 100 percent Federal funding. Regulatory text from 
Sec. 646.208(b) is redesignated and revised as a new paragraph (b) in 
Sec. 646.212 in order to provide information on Federal share in one 
place.
    In Sec. 646.214, paragraph (a)(2) is amended to clarify that the 
FHWA no longer is required to approve standards for all Federal-aid 
projects. Section 1016(d) of the ISTEA amended 23 U.S.C. 109 by adding 
a new subsection (p) which provided that non-NHS projects now follow 
State approved standards.
    In Sec. 646.216, paragraph (d)(3)(ii) is amended to increase the 
ceiling from $25,000 to $100,000 for using the lump sum payment 
arrangement for reimbursement for railroad adjustments (other than 
installation or improvement of grade crossing warning devices and/or 
grade crossing surfaces) on Federal-aid and direct Federal highway 
projects. The amendment provides the States greater flexibility in 
utilizing the lump sum payment arrangement. The purpose of allowing 
lump sum agreements, in lieu of agreements based on an accounting of 
actual costs, is to reduce the administrative burden associated

[[Page 45327]]

with railroad adjustment projects. Under the lump sum process, cost 
accounting is easier, project billings are simplified, and final audit 
of detailed cost records is not required. Typically, final project 
costs are quite close to the costs estimated for small, routine 
projects. If more detailed cost accounting methods were followed, 
however, the FHWA believes that the small degree of accuracy that might 
be realized would not justify the extra cost involved in carrying out 
detailed audits. This revision increases the number of railroad 
adjustments potentially eligible for lump sum payment, anticipates 
future needs and responds, in part, to the fact that since the $25,000 
limit was established in 1982, inflation has reduced the number and 
limited the scope of projects eligible for lump sum payments.
    In Sec. 646.216, paragraph (e)(1) is amended to clarify that the 
approved program of projects is the approved statewide transportation 
improvement program now required under 23 U.S.C. 135.
    The appendix to subpart B is amended to change the dimensions for 
horizontal and vertical clearances to metric units, in keeping with 
FHWA's metric transition timetable of September 30, 1996, published on 
August 31, 1993, at 58 FR 46036. Since that time, section 205(c) of the 
National Highway System Designation Act of 1995, Public Law 104-59, 109 
Stat. 568, 577, amended the compliance date for use of the metric 
system (SI) on Federal-aid projects to September 30, 2000.

Rulemaking Analyses 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. 5 U.S.C. 553(b)(3)(B). For the reasons set further below, the 
FHWA has determined that prior notice to the public and opportunity for 
comment on this action are unnecessary and contrary to the pubic 
interest.
    The changes made by this rulemaking provide greater flexibility to 
the States and conform the existing regulations to current law. First, 
the changes provide the States with greater flexibility in their 
billing procedures by allowing them to require railroads to submit 
final billings on a timely basis and by removing the requirement that 
States certify that work is complete for each project. Second, the 
changes increase the ceiling for lump sum agreements, which gives 
States greater flexibility in utilizing the lump sum payment 
arrangement, an option already available to them. Finally, the changes 
set forth in this interim final rule conform existing regulations to 
more current laws or regulations. Given the nature of these changes, 
the FHWA is not exercising its discretion in such a way that could 
meaningfully be affected by public comment. Moreover, the FHWA believes 
that it is in the public interest to make these changes effective 
without the delay associated with prior notice and opportunity for 
comment.
    Under the APA, 5 U.S.C. 553(d)(3), agencies can, upon a finding of 
good cause, make a rule effective immediately and avoid the 30-day 
delay effective requirement. The FHWA has determined that good cause 
exists to make this rule effective upon publication for the following 
reasons. First, the FHWA finds that good cause exists to dispense with 
the 30-day delay effective requirement because the changes adopted by 
this action give the States greater flexibility in billing and rid the 
States of the burden to provide certification that railroad work is 
complete. Second, good cause further exists because the increased 
ceiling for lump sum agreements reduces the administrative burden on 
the States associated with railroad adjustment projects. Finally, the 
additional changes made by this rulemaking are merely technical in 
nature, ensuring that the existing regulations conform to current law.
    For these same reasons, 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, as 
it is not anticipated that such action would result in the receipt of 
useful information. Therefore, the FHWA is proceeding directly to an 
interim final rule which is effective upon publication. Nevertheless, 
in issuing an interim final rule, the FHWA affords interested persons 
with an opportunity to comment on this action. Comments received will 
be carefully considered in evaluating whether any change to this 
interim final rule 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. It is anticipated that the economic 
impact of this rulemaking will 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 amendments would merely 
update the railroad regulations for Federal-aid highway projects to 
conform to recent laws or regulations, and provide States with 
clarification and flexibility to implement the current law.

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 that evaluation, the FHWA certifies that this action 
will not have a significant economic impact on a substantial number of 
small entities. The amendments only clarify or simplify procedures used 
by State highway agencies in accordance with existing laws or 
regulations.

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 separate federalism assessment. This rule 
does not impose additional costs or burdens on the States, including 
the likely sources of funding for the States, nor does it affect the 
ability of the States to discharge the traditional State government 
functions. This document merely assists the States by giving them 
additional flexibility and clarification in implementing railroad/
highway regulations.

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. 3501-3520.

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

[[Page 45328]]

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

23 CFR Part 140

    Bonds, Claims, Grant programs--transportation, Highways and roads, 
Railroads.

23 CFR Part 646

    Grant programs--transportation, Highways and roads, Insurance, 
Railroads.

    Issued on: August 20, 1997.
Gloria J. Jeff,
Acting Administrator.

    In consideration of the foregoing, the FHWA amends title 23, Code 
of Federal Regulations, by revising part 140, subpart I, and part 646, 
subpart B, to read as set forth below.

PART 140--REIMBURSEMENT

    1. The authority citation for part 140 continues to read as 
follows:

    Authority: 23 U.S.C. 101(e), 106(c), 109(e), 114(a), 120(g), 
121(d), 122, 130, and 315; and 49 CFR 1.48(b).

Subpart I--Reimbursement for Railroad Work

    2. In Sec. 140.904, paragraph (b)(1) is revised to read as follows:


Sec. 140.904  Reimbursement basis.

* * * * *
    (b) * * *
    (1) For work which is included in an approved statewide 
transportation improvement program.
* * * * *
    3. In Sec. 140.922, paragraph (b) is revised to read as follows:


Sec. 140.922  Billings.

* * * * *
    (b) The company shall provide one final and complete billing of all 
incurred costs, or of the agreed-to lump sum, within one year following 
completion of the reimbursable railroad work. Otherwise, previous 
payments to the company may be considered final, except as agreed to 
between the SHA and the railroad.
* * * * *

PART 646--RAILROADS

    4. The authority citation for part 646 is revised to read as 
follows:

    Authority: 23 U.S.C. 109(e), 120(c), 130, 133(d)(1), and 315; 49 
CFR 1.48(b).

Subpart B--Railroad-Highway Projects

    5. In Sec. 646.200, paragraph (f) is removed and paragraph (c) is 
revised to read as follows:


Sec. 646.200  Purpose and applicability.

* * * * *
    (c) Additional instructions for projects involving the elimination 
of hazards of railroad/highway grade crossings pursuant to 23 U.S.C. 
130 are set forth in 23 CFR part 924.
* * * * *


Sec. 646.202  [Removed and Reserved]

    6. Section 646.202 is removed and reserved.
    7. Section 646.204 is amended by removing paragraph (d); by 
removing the paragraph designations; and by placing the definitions in 
alphabetical order.
    8. Section 646.208 is revised to read as follows:


Sec. 646.208  Funding.

    (a) Railroad/highway crossing projects may be funded through the 
Federal-aid funding source appropriate for the involved project.
    (b) Projects for the elimination of hazards at railroad/highway 
crossings may, at the option of the State, be funded with the funds 
provided by 23 U.S.C. 133(d)(1).
    9. In Sec. 646.212, paragraph (b) is revised to read as follows:


Sec. 646.212  Federal share.

* * * * *
    (b) The Federal share of railroad/highway crossing projects may be:
    (1) Regular pro rata sharing as provided by 23 U.S.C. 120(a) and 
120(b).
    (2) One hundred percent Federal share, as provided by 23 U.S.C. 
120(c).
    (3) Ninety percent Federal share for funds made available through 
23 U.S.C. 133(d)(1).
    10. In Sec. 646.214, paragraph (a)(2) is revised to read as 
follows:


Sec. 646.214  Design.

    (a) * * *
    (2) Facilities that are the responsibility of the highway agency 
for maintenance and operation shall conform to the specifications and 
design standards and guides used by the highway agency in its normal 
practice for Federal-aid projects.
* * * * *
    11. Section 646.216 is amended in paragraph (d)(3)(ii) by replacing 
the figure ``$25,000'' with the figure ``$100,000''; and by revising 
paragraph (e)(1) to read as follows:


Sec. 646.216  General procedures.

* * * * *
    (e) Authorizations. (1) The costs of preliminary engineering, 
right-of-way acquisition, and construction incurred after the date each 
phase of the work is included in an approved statewide transportation 
improvement program and authorized by the FHWA are eligible for 
Federal-aid participation. Preliminary engineering and right-of-way 
acquisition costs which are otherwise eligible, but incurred by a 
railroad prior to authorization by the FHWA, although not reimbursable, 
may be included as part of the railroad share of project cost where 
such a share is required.
* * * * *

Appendix to Subpart B--Horizontal and Vertical Clearance Provisions for 
Overpass and Underpass Structures--[Amended]

    12. The appendix to subpart B is amended as follows:
    A. By replacing the words ``20 feet'' with ``6.1 meters'' 
wherever they appear;
    B. By replacing the words ``20-foot'' with ``6.1-meters'' 
wherever they appear;
    C. By replacing the words ``8 feet'' with ``2.5 meters'' 
wherever they appear;
    D. By replacing the words ``9 feet'' with ``2.8 meters'' 
wherever they appear;
    E. By replacing the words ``23 feet'' with ``7.1 meters'' 
wherever they appear;
    F. By replacing the words ``24 feet 3 inches'' with ``7.4 
meters'' wherever they appear; and
    G. By replacing the words ``26 feet'' with ``8.0 meters'' 
wherever they appear.
    F. By replacing the words ``Nine feet'' with ``Two and eight 
tenths meters'' wherever they appear.

[FR Doc. 97-22797 Filed 8-26-97; 8:45 am]
BILLING CODE 4910-22-P