[Federal Register Volume 61, Number 216 (Wednesday, November 6, 1996)]
[Rules and Regulations]
[Pages 57330-57331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28577]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 640
[FHWA Docket No. 95-19]
RIN 2125-AD62
Certification Acceptance
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: The FHWA, in an interim final rule published in the Federal
Register on September 13, 1995, adopted a policy that allows State
highway agencies (SHAs) to use the certification acceptance (CA)
procedures for non-Interstate projects to supplement the administrative
flexibility provided in the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA), Public Law 102-240, 105 Stat. 1914.
This final rule contains one minor modification to the CA policy to
clarify that certain project actions do not require FHWA approval.
EFFECTIVE DATE: This regulation is effective December 6, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Felix Rodriguez-Soto, Federal-Aid
and Design Division, Office of Engineering, (202) 366-1564, or Mr.
Wilbert Baccus, Office of the Chief Counsel, (202) 366-0780, 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: On September 13, 1995, the FHWA published an
interim final rule (60 FR 47480) establishing the procedures to be
followed by SHAs for the processing of transportation projects under
CA. A 90-day period for agencies, firms, or individuals to provide
comments was allowed. The changes made to the CA regulation by the
interim final rule are discussed below.
The interim final rule eliminated the mandatory requirement for
evaluation of the CA program in each State every four years. The
requirement that the State's laws, regulations, directives, and
standards must accomplish the policies and objectives contained in
title 23, U.S.C., was retained. In keeping with the streamlining
effort, specific requirements of the States for CA, including reports,
were deleted because title 23, U.S.C., requirements will be subject to
periodic changes. The revised CA regulation provided that States may be
requested to furnish reports and information at the discretion of the
FHWA. All references to the Secondary Road Plan (SRP) were removed
because the SRP program was eliminated under the ISTEA restructuring.
The CA procedures were not completely eliminated because, even in
light of the additional flexibility provided by the ISTEA and, in
particular, 23 U.S.C. 106, National Highway System (NHS) projects may
be administered under CA and may not be administered under 23 U. S. C.
106. In addition, some SHAs continue to use CA notwithstanding the more
flexible options available under 23 U. S. C. 106.
Discussion of Comments
This section addresses the comments received on the interim final
rule. The FHWA received comments from six SHAs and one organization.
General Comments
Five States supported the regulation (two as published in the
interim final rule and three with minor modifications).
One State commented that CA has worked successfully in that State.
This State was concerned that partial or full revocation by the FHWA of
a State's CA plan could be based on process review findings which may
not be part of a State's CA plan. This State also recommended that the
final rule establish the nature of the process reviews and other
evaluations and that an appeal process be established in case of
partial or full revocation. In response, the FHWA maintains that the
revisions to the CA regulation were meant to update the regulation to
conform to new program provisions, to simplify the existing regulation
by eliminating unnecessary and prescriptive requirements, and to allow
for the use of process reviews which are already the primary form of
program oversight by the FHWA. The use of process reviews is not unique
for CA projects and the FHWA's methods of conducting process reviews
should be familiar to SHA's. The States' right to appeal was not
changed by the interim final rule.
The one organization that commented contends that an interim rule,
without previous issuance of a notice of proposed rulemaking, inhibits
public participation and debate on a proposed regulation and causes
reliance by States on interim policy which may subsequently change as
result of public comments. In addition, it alleges that the
supplementary information section in the preamble to the interim rule,
as published in the Federal Register (60 FR 47480), is inaccurate when
it characterizes a State CA procedure as legally acceptable if it
merely ``aims to comply'' with title 23, U. S. C., policies, and that
``streamlining'' of CA is a full retreat from Federal monitoring of the
use of Federal highway construction dollars.
In response to this organization's contention concerning the use of
an interim rule, the FHWA maintains that the interim rule merely
updated the CA regulation, removed unnecessary prescriptive
requirements as part of the government regulatory review effort,
provided more administrative flexibility in the use of the regulation,
and did not impose any additional restrictions on the public. The FHWA
intends that a State accomplish title 23, U.S.C., policies through its
CA procedures. The FHWA also maintains that the ``streamlining'' is not
a ``retreat'' from FHWA oversight, but an acknowledgment that the use
of process reviews and evaluations is the current and primary method of
project oversight by the FHWA and that it accomplishes the same
objective as the former project specific reviews. In addition, the
[[Page 57331]]
interim rule with request for comments allowed SHAs who choose to
participate in the CA program and others adequate opportunity to
comment on the interim rule. The FHWA, based on an analysis of public
comments received, has re-examined its decision to go forward with the
interim final rule as the basis for CA and has determined that an
interim rule was the appropriate choice in this case. The FHWA also
determined that prior notice and opportunity for comment were not
required under the Department of Transportation's Regulatory Policies
and Procedures because it was not anticipated that such action would
result in the receipt of useful information.
Specific Comments
No specific comments were received for Secs. 640.107, 640.109,
640.111, 640.115, and 640.117 and these sections are unchanged.
Section 640.113 is being revised to conform to comments received.
Comments from the States included: (1) one State recommended removal of
paragraph (e) to be consistent with the removal of 23 CFR 140, Subpart
A, formerly titled ``Reimbursable Vouchers''; and (2) two States
suggested removal of the reference to FHWA approval of exceptions in
paragraph (e) to be consistent with 640.113(b) which only requires the
States to justify and document the approval of the exceptions. In the
final rule, the requirements of FHWA approval of exceptions and the
submission of final vouchers to the FHWA in paragraph (e) are removed
and the remaining text in paragraph (e) is merged into paragraph (d).
Paragraph (f) is redesignated as paragraph (e) in the final rule.
Rulemaking Analysis 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 or
significant within the meaning of Department of Transportation
Regulatory Policies and Procedures. As stated, this regulation merely
streamlines and updates the current CA regulation by giving added
flexibility to the States in their use of CA. It is anticipated that
the economic impact of the rulemaking will be minimal; therefore, a
full 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), the FHWA has evaluated the effects of this rule on
small entities. Based on the evaluation, the FHWA hereby certifies that
this action will not have a significant economic impact on a
substantial number of small entities. The FHWA made this determination
based on the fact that the final rule for CA is an update of a current
regulation and will provide greater flexibility in using the CA
alternate procedures in the administration of projects consistent with
the provisions of ISTEA.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism assessment. This rule does not
impose additional costs or burdens on the States, including the likely
source of funding for the States nor does it affect the ability of the
States to discharge traditional State government functions. The intent
of this rule is to provide the States with additional administrative
flexibility in the use of the 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.
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 agency 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 would not have any effect on the quality of
the environment.
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 640
Government procurement, Grant programs-transportation, Highways and
roads.
Issued on: October 28, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the interim rule published at 60
FR 47480 on September 13, 1995, title 23, Code of Federal Regulations,
Part 640 is adopted as a final rule with the following changes:
PART 640--CERTIFICATION ACCEPTANCE
1. The authority citation continues to read as follows:
Authority: 23 U.S.C 101(e), 117, and 315; 49 CFR 1.48.
2. Section 640.113 is amended by revising paragraph (d), by
removing paragraph (e), and by redesignating paragraph (f) as paragraph
(e) to read as follows:
Sec. 640.113 Procedures.
* * * * *
(d) The FHWA may accept projects based on inspections of a type and
frequency necessary to ensure the projects are completed in accordance
with appropriate standards. The State is to notify the FHWA when a
project is complete and/or ready for such inspection and will certify
that the plans, design, and construction for the project were in accord
with the laws, regulations, directives, and standards contained in the
State certification or such project exceptions as were approved by the
State.
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[FR Doc. 96-28577 Filed 11-5-96; 8:45 am]
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