[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Proposed Rules]
[Pages 12038-12041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4338]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 630

[FHWA Docket No. FHWA-2007-0020]
RIN 2125-AF23


Advance Construction of Federal-Aid Projects

AGENCY: Federal Highway Administration (FHWA), DOT.

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

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SUMMARY: The FHWA is proposing to revise the regulation for advance 
construction of Federal-aid projects by: Removing the restriction that 
a State must obligate all of its allocated or apportioned funds, or 
demonstrate that it will use all obligation authority allocated to it 
for Federal-aid highways and highway safety construction, prior to the 
approval of advance construction projects; and clarifying that advance 
construction procedures may be used for all categories of Federal-aid 
highway funds, and that any available Federal-aid funds for which a 
project is eligible may be used when a project is converted

[[Page 12039]]

to a Federal-aid project. These revisions will make the regulation 
consistent with the advance construction statute, which was amended by 
a provision enacted in the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU).

DATES: Comments must be received on or before May 5, 2008. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Mail or hand deliver comments to Docket Management Facility: 
U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room 
W12-140, Washington, DC 20590. You may also submit comments 
electronically at http://www.regulations.gov, or fax comments to (202) 
493-2251. 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 acknowledgment page that appears 
after submitting comments electronically. Anyone is able to search the 
electronic form of all comments in any one of our dockets by the name 
of the individual submitting the comment (or signing the comment, if 
submitted on behalf of an association, business, or labor union). You 
may review the 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://DocketsInfo.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Dale Gray, Federal-aid Financial 
Management Division, (202) 366-0978, or Mr. Steven Rochlis, Office of 
the Chief Counsel, (202) 366-1395, Federal Highway Administration, 1200 
New Jersey Avenue, SE., 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 and Filing

    You may submit or retrieve comments online through the Federal 
eRulemaking portal at http://www.regulations.gov. It is available 24 
hours each day, 365 days each year. Electronic submission and retrieval 
help and guidelines are available under the help section of the Web 
site. An electronic copy of this document may also be downloaded by 
accessing the Office of the Federal Register's home page at: http://www.archives.gov or the Government Printing Office's Web page at http://www.gpoaccess.gov/nara.

Background

    Section 115 of title 23, United States Code, permits the Secretary 
to authorize States to advance the construction of Federal-aid highway 
projects without requiring that Federal funds be obligated at the time 
the FHWA approves a project. The State may proceed with an advance 
construction project using State funds as no present or future Federal 
funds are actually committed to the project. At any time the State may 
request that the project be converted to a Federal-aid project provided 
that sufficient Federal-aid funds and obligation authority are 
available. A State also may request a partial conversion where only a 
portion of the Federal share of project costs is obligated and 
reimbursed; and the remainder may be converted at a later time provided 
that funds are available. Only the amount converted becomes an 
obligation of the Federal Government.
    Section 1501 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144) amended 
23 U.S.C. 115 to remove a restriction that a State must obligate all of 
its allocated or apportioned funds, or demonstrate that it will use all 
obligation authority allocated to it for Federal-aid highways and 
highway safety construction, prior to the approval of advance 
construction projects. Section 1501 also amended the statute to clarify 
that advance construction procedures can be used for all categories of 
Federal-aid highway funds and that when a project is converted to a 
regular Federal-aid project, any available Federal-aid funds may be 
used to convert a project which is eligible. The FHWA regulations 
concerning advance construction, which reflect the advance construction 
requirements prior to the enactment of SAFETEA-LU, are therefore no 
longer consistent with the statute.

Discussion of Proposed Change

Section 630.703 Eligibility

    In this NPRM the FHWA proposes to revise the regulations for 
advance construction, contained in 23 CFR 630.703, so they are 
consistent with the advance construction statute as amended by section 
1501 of SAFETEA-LU. These proposed revisions would make two changes. 
First, they would remove the restriction that a State must obligate all 
of its allocated or apportioned funds, or demonstrate that it will use 
all obligation authority allocated to it for Federal-aid highways and 
highway safety construction prior to the approval of advance 
construction projects. Second, the revisions will clarify that advance 
construction procedures may be used for all categories of Federal-aid 
highway funds, and that any available Federal-aid funds may be used 
when a project is converted to a Federal-aid project. These revisions 
will make 23 CFR part 630 consistent with the advance construction 
statute at 23 U.S.C. 115, as amended by section 1501 of SAFETEA-LU.

Rulemaking Analyses and Notices

    All comments received before the 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. In addition to late comments, the 
FHWA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period.

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

    The FHWA has determined preliminarily that this action is not a 
significant regulatory action within the meaning of Executive Order 
12866 and would not be significant within the meaning of the U.S. 
Department of Transportation's regulatory policies and procedures. This 
proposed rule will not adversely affect, in a material way, any sector 
of the economy. This proposed action would revise the regulation for 
advance construction of Federal-aid projects by removing the 
restriction that a State must obligate all of its allocated or 
apportioned funds, or demonstrate that it will use all obligation 
authority allocated to it for Federal-aid highways and highway safety 
construction, prior to the approval of advance construction projects. 
This proposal also clarifies that advance construction procedures may 
be used for all categories of Federal-aid highway funds, and that any 
available Federal-aid funds for which the project is eligible may be 
used when a project is converted to a Federal-aid project. There will 
not be any additional costs incurred by any affected group as a result 
of this rule. In addition, these proposed 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.

[[Page 12040]]

Consequently, a 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), we have evaluated the effects of this proposed 
action on small entities and have determined that the proposed action 
would not have a significant economic impact on a substantial number of 
small entities. The FHWA certifies that this action will 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, and the 
FHWA has preliminarily determined that this proposed action would not 
warrant the preparation of a Federalism assessment. The FHWA has 
determined that this proposed action would not affect the States' 
ability to discharge traditional State government functions.

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. Accordingly, the 
FHWA solicits comments on this issue.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), 
Federal agencies must obtain approval from the Office of Management and 
Budget (OMB) for each collection of information they conduct, sponsor, 
or require through regulations. The FHWA has determined that this 
proposal does not contain collection of information requirements for 
the purposes of the PRA.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This proposed rule will not result in the expenditure by State, local 
and tribal governments, in the aggregate, or by the private sector, of 
$128.1 million or more in any one year. (2 U.S.C. 1532) Further, in 
compliance with the Unfunded Mandates Reform Act of 1995, the FHWA will 
evaluate any regulatory action that might be proposed in subsequent 
stages of the proceeding to assess the effects on State, local, and 
tribal governments and the private sector.

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)

    The FHWA has analyzed this proposed action under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. The FHWA certifies that this proposed action would not 
cause any environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this proposed rule under Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights. The FHWA does not anticipate that this 
proposed action would affect a taking of private property or otherwise 
have taking implications under Executive Order 12630.

National Environmental Policy Act

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

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000, and believes that the proposed action would not 
have substantial direct effects on one or more Indian tribes; would not 
impose substantial 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 proposed rule 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 is not required.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory section 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 section with the 
Unified Agenda.

List of Subjects in 23 CFR Part 630

    Reimbursement, Grants programs--transportation, Highways and roads.

    Issued on: February 28, 2008.
James D. Ray,
Acting Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend 
Chapter I of title 23, Code of Federal Regulations as set forth below.

PART 630--PRECONSTRUCTION PROCEDURES

    1. The authority citation for part 630 is revised to read as 
follows:

    Authority: 23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a); 
Sec. 1501 and 1503 of Pub. L. 109-59, 119 Stat. 1144; Pub. L. 105-
178, 112 Stat. 193; Pub. L. 104-59, 109 Stat. 582; Pub. L. 97-424, 
96 Stat. 2106; Pub. L. 90-495, 82 Stat. 828; Pub. L. 85-767, 72 
Stat. 896; Pub. L. 84-627, 70 Stat. 380; 23 CFR 1.32 and 49 CFR 
1.48(b).

Subpart G--Advance Construction of Federal-Aid Projects

    2. Revise Sec.  630.703 to read as follows:


Sec.  630.703  Eligibility.

    (a) The State Department of Transportation (DOT) may proceed with a 
project authorized in accordance with title 23, United States Code:
    (1) Without the use of Federal funds; and
    (2) In accordance with all procedures and requirements applicable 
to the project other than those procedures and requirements that limit 
the State to implementation of a project--
    (i) With the aid of Federal funds previously apportioned or 
allocated to the State; or
    (ii) With obligation authority previously allocated to the State.
    (b) The FHWA, on the request of a State and execution of a project 
agreement, may obligate all or a portion of the Federal share of a 
project

[[Page 12041]]

authorized to proceed under this section from any category of funds for 
which the project is eligible.


Sec.  630.709  [Amended]

    3. Amend Sec.  630.709 by removing the term ``SHA'' in each place 
it appears, and add in its place the term ``State Department of 
Transportation.''

[FR Doc. E8-4338 Filed 3-5-08; 8:45 am]
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