[Federal Register Volume 68, Number 203 (Tuesday, October 21, 2003)]
[Rules and Regulations]
[Pages 60031-60033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26557]


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DEPARTMENT OF TRANSPORTATION

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: Final rule.

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SUMMARY: The FHWA amends its regulation for advance construction of 
Federal-aid projects by removing certain provisions that limit the 
approval of advance construction projects and that allow for the 
payment of bond interest cost. 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).

EFFECTIVE DATE: November 20, 2003.

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, 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: 

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 
help.
    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.

[[Page 60032]]

Background

    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.) On May 1, 2003 
(68 FR 23239), the FHWA published a notice of proposed rulemaking 
(NPRM) proposing to remove certain provisions that limit the approval 
of advance construction projects and that allow for the payment of bond 
interest cost. Advance construction authority allows States to advance 
the construction of Federal-aid highway projects without obligating 
Federal funds apportioned or allocated to the States.
    Section 115, title 23, U.S. Code, authorizes advance construction 
projects. After FHWA approval, States can initiate the construction of 
a Federal-aid highway project using State funds without obligating 
Federal funds. Later, the State can request that the project be 
converted to a regular Federal-aid project by obligating all or a 
portion of the Federal share, provided that Federal-aid funds and 
obligation authority are available. The Federal government is only 
committed to the State for the amount of Federal funds obligated.
    Section 308 of the NHS Act (Pub. L. 104-59, 109 Stat. 568, November 
28, 1995), which replaced section 115(d) of title 23, U.S.C., requires 
that advance construction projects be on the approved Statewide 
Transportation Improvement Program (STIP), instead of requiring that 
future year authorizations be in effect when the advance construction 
project is approved. The STIP is a financially constrained program that 
covers a period of at least three years. This change allows the States 
more flexibility in financing projects and developing financial plans, 
and provides an opportunity for States to begin construction earlier.
    Pre-construction procedures are found at 23 CFR part 630. The 
limitations outlined in Sec.  630.707 are no longer valid, and will be 
removed, due to the changes made to title 23, U.S.C., section 115(d) by 
the NHS Act.
    Section 1226(a) of the TEA-21, Public Law 105-178, 112 Stat. 107 
(1998), as amended by section 9003(a) of Public Law 105-206, 112 Stat. 
838 (1998), revised 23 U.S.C. 115 by removing obsolete subsections 
relating to payment of bond interest on certain Interstate construction 
projects. Based on changes in the law relating to payment of bond 
interest on certain Interstate construction projects, the FHWA removes 
Sec. Sec.  630.705(c) and (d), and 630.711.

Discussion of Comments

    We received one comment to the docket from a private individual. 
The comment welcomed changes in giving States more flexibility in 
financing projects and developing financial plans which will allow 
projects to begin construction earlier; and agreed that the FHWA should 
remove Sec. Sec.  630.705(c) and (d), and 630.711. The comment also 
listed other benefits of the rule change including better use of 
taxpayers' dollars and stimulating the economy. While the FHWA agrees 
with the comment, the primary reason for the rule change is to conform 
to revisions in the authorizing statute.

Conclusion

    Since no comments were received opposing the language proposed in 
the NPRM, the FHWA is adopting the revisions proposed in the NPRM as 
final without change.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has considered the impact of this final action 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 will be 
minimal; therefore, a full regulatory evaluation is not required. This 
action will not adversely affect, in a material way, any sector of the 
economy. In addition, this final rule will 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 action 
amends current regulations governing the advance construction of 
Federal-aid projects based on changes in law. It is not anticipated 
that this action will affect the Federal funding allocated to the 
States.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act [5 U.S.C. 601-
612], the FHWA has evaluated the effects of this action rule on small 
entities. The FHWA believes that this action will 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 action 
will not have a significant economic impact on a substantial number of 
small entities.

Executive Order 13132 (Federalism)

    This 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 final rule will not have a substantial 
direct effect or sufficient federalism implications on States that 
would limit the policymaking discretion of the States. Nothing in this 
final rule 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 final action will 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 action will 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 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 final rule 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.

[[Page 60033]]

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 FHWA 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 will 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 action under Executive Order 13175, and 
believes that the final rule 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 
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.

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 630

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

    Issued on: October 15, 2003.
Mary E. Peters,
Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA amends title 23, Code of 
Federal Regulations, as set forth below:

PART 630--[AMENDED]

0
1. The authority citation for part 630 continues to read as follows:

    Authority: 23 U.S.C. 106, 109, 115, 315, 320, and 402(a); 23 CFR 
1.32; and 49 CFR 1.48(b).

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


Sec.  630.705  [Amended]

0
2. In Sec.  630.705, remove paragraphs (c) and (d).


Sec.  630.707  [Removed and Reserved]

0
3. Remove and reserve Sec.  630.707.


Sec.  630.711  [Removed]

0
4. Remove Sec.  630.711.

[FR Doc. 03-26557 Filed 10-20-03; 8:45 am]
BILLING CODE 4910-22-P