[Federal Register Volume 68, Number 84 (Thursday, May 1, 2003)]
[Proposed Rules]
[Pages 23239-23241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10692]



Federal Highway Administration

23 CFR Part 630

[FHWA Docket No. FHWA-1997-2262; Formerly FHWA 95-10]
RIN 2125-AD59

Advance Construction of Federal-Aid Projects

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.


SUMMARY: The FHWA is proposing to amend the regulation for advance 
construction of Federal-aid projects by removing the provisions that 
prescribe the policies and procedures for the execution of the project 
agreement for Federal-aid projects and for advancing the construction 
of Federal-aid highway projects without obligating Federal funds 
apportioned or allocated to the States. These provisions are no longer 
consistent with section 115 of title 23, United States Code (U.S.C.), 
due to technical amendments provided in the National Highway System 
Designation Act of 1995 (NHS Act) and the Transportation Equity Act for 
the 21st Century (TEA-21).

DATES: Comments must be received on or before June 30, 2003.

ADDRESSES: Mail or hand deliver comments for the docket number that 
appears in the heading of this document to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590-0001, or submit electronically at 
http://dms.dot.gov/submit. 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 
acknowledgement page that appears after submitting comments 
electronically. Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
U.S. 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://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Max Inman, Federal-aid Financial 
Management Division, (202) 366-2853, or Mr. Steve Rochlis, Office of 
the Chief Counsel, (202) 366-1395, Federal Highway Administration, 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 


Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL): 
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service (202) 512-1661. Internet 
users may reach the Office of the Federal Register's home page at 
http://www.archives.gov and the Government Printing Office's database 
at http://www.access.gpo.gov/nara.


    The FHWA published an interim final rule on part 630, subpart G on 
July 19, 1995, at 60 FR 36991. Interested persons were invited to 
submit comments to FHWA Docket No. 95-10. (The FHWA rearranged its 
docket system to accord with the electronic system adopted by the 
Department of Transportation in 1997. The FHWA Docket No. 95-10 was 
transferred and scanned as FHWA Docket No. 1997-2262.)
    Section 115 of title 23, U.S.C., provides for the authorization of 
advance construction projects. This statute allows States to advance 
the construction of Federal-aid highway projects without requiring that 
Federal funds be obligated at the time the FHWA approves the project. 
States may proceed with projects using only State funds and then 
request that Federal funds be made available at a later time. The State 
may request that a project be converted to a regular Federal-aid 
project at any time provided that sufficient Federal-aid funds and 
obligation authority are available. The State may request a partial 
conversion where only a portion of the Federal share of project costs 
is obligated and the remainder may be converted at a later time 
provided that funds are available. Only the amount converted is an 
obligation of the Federal Government.
    Section 308 of the NHS Act (Pub. L. 104-59, 109 Stat. 568, November 
28, 1995) replaced 23 U.S.C. 115(d), relating to the amount of advance 
construction that may be authorized. The previous limitation required 
that future year authorizations be in effect one year beyond the fiscal 
year for which an advance construction application was sought, thus 
limiting that States' flexibility to advance construct projects during 
the final year of an authorization act. The NHS Act replaced the 
limitation with a requirement that advance construction projects be on 
the approved Statewide Transportation Improvement Program (STIP). The 
STIP covers a period of at least three years and is a financially 
constrained program which is not limited to the period of the 
authorization act. This change provided the States with more 
flexibility in financing projects and developing financial plans which 
in turn allows more projects to begin construction earlier.
    The FHWA regulation governing the pre-construction procedures is 
found at 23 CFR part 630. Currently, Sec.  630.707 outlines the 
limitations are no longer in effect after the changes made to title 23, 
U.S.C., section 115(d) by the NHS Act. Therefore, the FHWA proposes to 
remove Sec.  630.707.
    Section 1226(a) of the TEA-21, Pub. L. 105-178, 112 Stat. 107 
(1998), as amended by Pub. L. 105-206, 112 Stat. 838 (1998), revised 23 
U.S.C. 115 by removing subsections (b)(2) and (b)(3) relating to 
payment of bond interest on certain Interstate construction projects 
because it is obsolete; removed subsection (c) relating to completion 
of projects; and redesignated subsection (d) as (c). Based on changes 
in the law, the FHWA proposes to remove Sec.  630.705 (c), Sec.  
630.705 (d) and

[[Page 23240]]

Sec.  630.711 relating to the payment of bond interest.

Discussion of Comments

    We received five comments, all from State transportation 
departments (California, Massachusetts, North Dakota, Virginia, and 
Washington). Each comment welcomed changes in giving the States 
flexibility to partially convert regular Federal-aid projects. One 
comment (North Dakota) recommended that the regulation clearly state 
that a project or partial project can be converted to a regular 
Federal-aid project. Two of the five comments (California and 
Massachusetts) proposed clearer language to the regulation in regard to 
limitation. These States recommended that the regulation read that an 
advance construction project is limited to a State's expected 
apportionment of authorized funds which are eligible to finance the 
project. While the FHWA agrees that these recommendations will help 
clarify, we believe by removing the sections we propose to remove that 
the regulation will be clearer and easier to understand.

Rulemaking Analyses and Notices

    All comments received before 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 
the late comments, the FHWA will also continue to file in the docket 
relevant information that 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 considered the impact of this proposal and has 
determined that it is not a significant rulemaking 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. These 
proposed changes would not adversely affect, in a material way, any 
sector of the economy. In addition, these changes would not interfere 
with any action taken or planned by another agency and would not 
materially alter the budgetary impact of any entitlements or grants. 
This rulemaking proposes to amend current regulations governing the 
advance construction of Federal-aid projects based on changes in law. 
It is not anticipated that these proposed changes would affect the 
Federal funding allocated to the states. Consequently, a full 
regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act [5 U.S.C. 601-
612], the FHWA has evaluated the effects of this proposed rule on small 
entities. The FHWA does not believe that this proposed action would not 
have a significant economic impact on a substantial number of small 
entities. States are not included in the definition of ``small entity'' 
set forth in 5 U.S.C. 601. Therefore, the FHWA hereby certifies that 
this proposal would 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 dated August 
4, 1999, and it has been determined that this proposal would not have a 
substantial direct effect or sufficient federalism implications on 
States that would limit the policymaking discretion of the States. 
Nothing in this proposal directly preempts any State law or 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.

Unfunded Mandates Reform Act of 1995

    This proposed action would not impose a Federal mandate resulting 
in the expenditure by State, local, tribal governments, in the 
aggregate, or by the sector, of $100 million or more in any year. (2 
U.S.C. 1531 et seq.)

Executive Order 12630 (Taking of Private Property)

    This proposed action would not affect a taking of private property 
or otherwise have taking implications under Executive Order 12630. 
Governmental Actions and Interface with Constitutionally Protected 
Property Rights.

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)

    We have analyzed this proposed action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This action does not involve an economically significant rule 
and does not concern an environmental risk to health or safety that may 
disproportionately affect children.

Paperwork Reduction Act

    This proposed 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 FHWA has analyzed this proposed 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. Therefore, an environmental impact 
statement is not required.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed action under Executive Order 
13175, and believes that the proposed action would not have substantial 
direct effects on one or more Indian tribes; would not impose 
substantial direct compliance costs on Indian tribal governments; and 
would not preempt tribal law. Therefore, a tribal summary impact 
statement is not required.

Executive Order 13211 (Energy Effects)

    We have analyzed this proposed action 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 under Executive Order 
13211 is not required.

[[Page 23241]]

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 ear. 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 630

    Bonds, Government contracts, Grant programs; transportation, 
Highways and roads, Reporting and recordkeeping requirements.

    Issued on: April 25, 2003.
Mary E. Peters,
Federal Highway Administrator.
    In consideration of the foregoing, the FHWA proposes to amend title 
23, Code of Federal Regulations, as set forth below:


    1. The authority citation for part 630 continues to read as 

    Authority: 23 U.S.C. 106, 109, 315, 320, and 402(a); 23 CFR 
1.32; and 49 CFR1.48(b).

Subpart G--Advance Construction of Federal-Aid Projects [Revised]

Sec.  630.705  [Amended]

    2. In Sec.  630.705, remove paragraphs (c) and (d).

Sec.  630.707  [Removed and Reserved]

    3. Remove and reserve Sec.  630.707.

Sec.  630.711  [Removed]

    4. Remove Sec.  630.711.
[FR Doc. 03-10692 Filed 4-30-03; 8:45 am]