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###### Department of Transportation

###### Federal Highway Administration

          - 23 CFR Part 630
          - [FHWA Docket No. FHWA-2007-0020]
          - RIN 2125-AF23

# AGENCY:

Federal Highway Administration (FHWA), DOT.

# ACTION:

Final rule.

# SUMMARY:

The FHWA is revising its regulation for advance construction of Federal-aid projects by: (a) 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 (b) 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 to a Federal-aid project. These revisions 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:

*Effective Date:*                         September 25, 2008.                    

# 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

                    An electronic copy of the NPRM, the comments received and a copy of this document may be viewed at                     *www.regulations.gov*. A 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 and associated obligation authority are available. Only the amount converted to a Federal-aid project becomes an obligation of the Federal Government.                          ( print page 50195)    

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 for that funds class. 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.

The FHWA published a notice of proposed rulemaking (NPRM) on March 6, 2008, at 73 FR 12038. In the NPRM, the FHWA proposed to (a) 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; and (b) provide clarification 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 to a Federal-aid project.

## Discussion of Comments

We received comments from the West Virginia Department of Transportation and Pennsylvania Department of Transportation (PennDOT) who supported the proposed revisions in the NPRM. Both respondents noted that the proposal would result in increased flexibility in the use of Federal-aid highway funds. Additionally, PennDOT mentioned increased cash flow possibilities, removal of the restrictions on the use of funds, clarification that advance construction may be used for all categories of Federal-aid highway funds, and the ability to convert projects using any available Federal-aid funds which a project may be eligible, as additional benefits resulting from the changes proposed in the NPRM.

The docket did not receive any comments opposing the language in the NPRM. The FHWA is adopting the revisions as proposed in the NPRM as final.

## 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 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 final rule will not adversely affect, in a material way, any sector of the economy. This 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 action 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 final rule. 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. 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 final rule on small entities and have determined that the 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 final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the FHWA has determined that this action would not warrant the preparation of a Federalism assessment. The FHWA has determined that this 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.

### 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 final rule does not contain collection of information requirements for the purposes of the PRA.

### Unfunded Mandates Reform Act of 1995

This rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 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 $128.1 million or more in any one year. (2 U.S.C. 1532)

### 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)

The FHWA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this 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 final rule under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630.                          ( print page 50196)    

### National Environmental Policy Act

The FHWA has analyzed this 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 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 final rule 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 final 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: August 15, 2008.

James D. Ray,

Acting Federal Highway Administrator.

In consideration of the foregoing, the FHWA amends Chapter I of title 23, Code of Federal Regulations, by revising Part 630, 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 Public Law 109-59, 119 Stat. 1144; Public Law 105-178, 112 Stat. 193; Public Law 104-59, 109 Stat. 582; Public Law 97-424, 96 Stat. 2106; Public Law 90-495, 82 Stat. 828; Public Law 85-767, 72 Stat. 896; Public Law 84-627, 70 Stat. 380; 23 CFR 1.32 and 49 CFR 1.48(b).

2. Revise § 630.703 to read as follows: 

§ 630.703 

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

§ 630.709 

3. Amend § 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. E8-19636 Filed 8-25-08; 8:45 am]

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