[Federal Register Volume 68, Number 89 (Thursday, May 8, 2003)]
[Rules and Regulations]
[Pages 24639-24641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11291]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 140 and 646

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


Railroad-Highway Projects

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA adopts as final an interim final rule that amends the 
regulation on railroad-highway projects and reimbursement for railroad 
work on Federal-aid highway projects. The purpose of adopting the 
interim final rule as final is to reflect the statutory changes brought 
about by the Intermodal Surface Transportation Efficiency Act of 1991 
(ISTEA) and to provide State transportation departments with 
clarification and more flexibility in implementing current law.

EFFECTIVE DATE: June 9, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. Rudolph Umbs, Office of Safety 
(HSA-1), (202) 366-2177, or Mr. Raymond Cuprill, Office of the Chief 
Counsel (HCC-30), (202) 366-0791. Federal Highway Administration, 400 
Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 
7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users can 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 
help.
    An electronic copy of this document may be downloaded using a 
computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.archives.gov and the Government 
Printing Office's web page at: http://www.access.gpo.gov/nara.

Background

    The FHWA published an interim final rule on parts 140 and 646, on 
August 27, 1997, at 62 FR 45326. Interested persons were invited to 
submit comments to FHWA Docket No. FHWA-97-2681. The interim final rule 
amended the

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regulation on railroad/highway projects and reimbursement for railroad 
work on Federal-aid highway projects. The changes were made to conform 
these regulations to the changes brought about by the Intermodal 
Surface Transportation Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240, 
105 Stat. 1914). Additionally, the changes were to provide State 
transportation departments with clarification and more flexibility in 
implementing the current law. Other changes required 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; and increase the 
ceiling for lump sum agreements from $25,000 to $100,000. This interim 
final rule has been in effect since August 27, 1997. To date, the FHWA 
received five comments to the docket. The last comment was received in 
October 1997. Since the interim final rule has been in effect in 1997, 
the FHWA has determined that the regulation is working effectively and 
efficiently and without significant burden to the State transportation 
departments and railroad companies. Consequently, we are adopting the 
interim final rule as final without any changes.

Summary of Comments

    The FHWA received five comments to the docket. The FHWA received 
comments from Ronald J. Ornee, representing the County of Los Angeles 
Department of Public Works; Stephanie D. Roth, representing the Railway 
Progress Institute (now known as the Railway Supply Institute, 
effective January 1, 2003); Dwight M. Bower, representing the State of 
Idaho Transportation Department; Michael J. Rush, representing the 
Association of American Railroads; and Tom Zeinz, representing the 
Illinois Central Railroad (which merged with the Canadian National 
Railway Company on July 1, 1999).
    The County of Los Angeles Department of Public Works comments 
support the FHWA's revisions as stated in the interim final rule.
    The Railway Progress Institute (RPI) submitted two recommendations. 
The RPI recommended that the lump sum payment arrangement for 
reimbursement for railroad adjustments as stated in Sec.  
646.216(d)(3)(ii) should be increased from $100,000 to $150,000. The 
RPI believes that this should be increased to ``reflect the rise in the 
number of gated crossings, which are more costly to maintain.'' The RPI 
also recommended that the Appendix Subpart of Part 646 should be 
revised to use foot-pound units instead of metric in order to eliminate 
the possibility of miscalculations, which could affect the safety of 
grade crossings.
    The State of Idaho Transportation Department (IDDOT) submitted 
three recommendations. The IDDOT recommends changing Sec.  
646.216(d)(3) to eliminate the phrase ``with its own forces,'' to 
clarify the flexibility of the railroads'' use of subcontracted work 
performed on behalf of the railroads. The second recommendation is to 
change Sec.  646.216(3)(d)(i) to include the phrase ``and other 
eligible work,'' to allow other specialized services provided to be 
included in State-railroad agreements. The third recommendation was to 
eliminate Sec.  646.2116(d)(3)(ii), due to its concern that services 
provided may exceed $100,000 (e.g., the average cost for installing 
warning devices and surfacing for a single-track at-grade crossing was 
$140,000 and $90,000, respectively, at the time of the docket comment 
submittal).
    The Association of American Railroads (AAR) submitted several 
recommendations. The AAR recommended changing Sec.  140.922(a) to 
include text regarding a time frame for payments received by the 
railroad company, based on the date the State transportation department 
received the progress billings.
    The AAR recommended adding text at the end of Sec.  140.922(b) that 
stipulates a time frame of the acceptance of billable work. The AAR 
recommended that this text include (1) a time frame for the State 
transportation department report project inspection results to the FHWA 
and railroad company; (2) when a project will be considered complete 
and accepted if no comments are received; and (3) a time frame when the 
railroad company shall receive payment from the State transportation 
agency.

The AAR's recommendation

    Finally, the AAR recommended changes to Sec.  140.922(c) to reduce 
the audit period from three years from the date final payment is 
received by the railroad, to one year after the date the final bill was 
received by the State transportation department. The AAR recommends 
that additional text is included stating after the one-year period, the 
final bill shall be accepted and approved, except as agreed to by the 
railroad and the State transportation department. The AAR provided 
these recommendations as a means to assist the FHWA with its efforts to 
assist State transportation departments in their efforts to obtain 
timely final billings from the railroads.
    The Illinois Central Railroad (ICRR) submitted four recommendations 
that pertained to Sec.  140.922(b). The ICRR recommended that the FHWA 
include text regarding inspections of the completed work by the State 
transportation department and the amount of time that should be 
allotted for the inspection. Second, the ICRR recommended is to include 
text that would require State transportation department's payment to 
the railroads to be made within 45 days, otherwise the railroad shall 
be entitled to receive interest at prevailing rates from the State 
transportation department on any outstanding amounts. Third, the ICRR 
recommended to include text that the State transportation departments 
shall have one year to conduct a final audit of the railroad's final 
billing before the said billing is considered accepted and final 
payment is made in full. Finally, the ICRR recommended including text 
that requires the State transportation department to conduct an audit 
and base FHWA's reimbursement to the State transportation department on 
the audited amount. The ICRR believes that these recommendations would 
facilitate State transportation departments to expedite its project 
closure and payment process.

Conclusion

    This interim final rule has been in effect since August 27, 1997. 
The FHWA has not received any additional comments to this interim final 
rule since October 27, 1997. The transportation community has been 
conforming to the interim final rule for almost six years, and the FHWA 
believes that the commerce practices between State transportation 
departments and railroad companies has benefited from the this rule. 
The interim final rule was part of FHWA's effort to implement the 
President's Regulatory Invention Initiative and Executive Order 12866 
(Regulatory Planning and Review; 58 FR 51735) by allowing 
administrative and fiscal flexibility for both the State and railroads 
as a means to implement current law. The interim final rule has 
provided the necessary flexibility to States and railroads since 1997.
    For the reasons stated above the FHWA adopts as a final rule the 
interim final rule published on August 27, 1997, at 62 FR 45326.

Rulemaking Analyses 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

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action within the meaning of Executive Order 12866 or the U.S. 
Department of Transportation regulatory policies and procedures. The 
economic impact of this rule will be minimal. This action merely adopts 
as final the interim final rule that has been in effect since August 
27, 1997.
    This final rule will not adversely affect, in a material way, any 
sector of the economy. In addition, these changes will not interfere 
with any action taken or planned by another agency and will not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 60l-612), the FHWA has evaluated the effects of this final 
rule on small entities and has determined it will not have a 
significant economic impact on a substantial number of small entities. 
This final rule adopts as final the interim final rule that clarifies, 
streamlines, and simplifies Federal-aid highway-railway crossing 
program policies for modification and management. This rule reduces the 
administrative burden on the States associated with the Federal-aid 
highway-railway crossing program actions.

Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). This rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million in any one year.
    Additionally, the definition of ``Federal mandate'' in the Unfunded 
Mandates Reform Act excludes financial assistance of the type in which 
State, local, or tribal governments have authority to adjust their 
participation in the program in accordance with changes made in the 
program by the Federal government. The railroad-highway program permits 
this type of flexibility to the States.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and the FHWA has 
determined that this action does not have sufficient federalism 
implications to warrant the preparation of a Federalism assessment. The 
FHWA also determined that this action does not preempt any State law or 
State regulation or affect the States' ability to discharge traditional 
State governmental functions.
    By adopting as final the interim final rule, this rule assists the 
States by providing more 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 under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.

National Environmental Policy Act

    The FHWA has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that this action will not have any effect on the quality of 
environment.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000. This action will not have substantial direct 
effects on one or more Indian tribes; will not impose substantial 
direct compliance costs on Indian tribal governments; and will not 
preempt tribal law. Therefore, a tribal summary impact statement is not 
required.

Executive Order 13211 (Energy Effects)

    We have analyzed this 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 rule 
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.

Executive Order 12988 (Civil Justice Reform)

    This 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 action under Executive Order 13045, 
protection of Children from Environmental Health Risks and Safety 
Risks. This action is not an economically significant rule and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This action will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Government Actions and Interference with Constitutionally Protected 
Property Rights.

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.
    In consideration of the foregoing, and under the authority of 23 
U.S.C. 109(e), 120(c), 130, 133(d)(1), and 315; and 49 CFR 1.48(b), the 
interim final rule amending 23 CFR parts 140 and 646, that was 
published at 62 FR 45326 on August 27, 1997, is adopted as a final rule 
without change.

    Issued on: May 1, 2003.
Mary E. Peters,
Federal Highway Administrator.
[FR Doc. 03-11291 Filed 5-7-03; 8:45 am]
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