[Federal Register Volume 62, Number 166 (Wednesday, August 27, 1997)]
[Rules and Regulations]
[Pages 45326-45328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22797]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 140 and 646
[FHWA Docket No. FHWA-97-2681]
RIN 2125-AD86
Railroad/Highway Projects
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Interim final rule; request for comments.
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SUMMARY: The FHWA is amending its regulations on railroad/highway
projects and reimbursement for railroad work on Federal-aid highway
projects. The amendments require 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; increase the ceiling for lump sum
agreements from $25,000 to $100,000; incorporate changes brought about
by the Intermodal Surface Transportation Efficiency Act of 1991
(ISTEA), Public Law 102-240, 105 Stat. 1914; and show dimensions for
participation limits in metric units. The FHWA makes these changes to
conform the existing railroad/highway regulations to more recent laws
or regulations, and to provide State highway agencies with
clarification and more flexibility in implementing the current law.
This rulemaking is part of the FHWA's effort to implement the
President's Regulatory Reinvention Initiative.
DATES: This interim final rule is effective August 27, 1997. Written
comments must be submitted on or before October 27, 1997.
ADDRESSES: Submit written, signed comments to the docket number that
appears in the heading of this document to the Docket Clerk, U.S. DOT
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, D.C. 20590-
0001. All comments received will be available for examination at the
above address between 10 a.m. and 5 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Robert Winans, Office of Engineering,
(202) 366-0450, or Wilbert Baccus, Office of the Chief Counsel, (202)
366-0780, FHWA, 400 Seventh Street, SW., Washington, D.C. 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION: Present FHWA regulations regarding railroad/
highway projects and reimbursement for railroad work on Federal-aid
highway projects have evolved from basic principles established decades
ago, with many of the policies remaining unchanged. The present
regulations are found at 23 CFR part 140, subpart I, and part 646,
subpart B. The FHWA amends these regulations in the following manner
and for the reasons set forth below.
In part 140, subpart I, Sec. 140.904, paragraph (b)(1) is amended
to clarify that the approved program of projects is the approved
statewide transportation improvement program, as is now required under
23 U.S.C. 135.
In Sec. 140.922, paragraph (b) is amended to require railroads to
submit final billings within one year following completion of the
railroad work. Otherwise, previous payments to railroads may be
considered final and projects may be closed out. This change will
assist highway agencies in their efforts to obtain timely final
billings from the railroads. Prior to this action, it had been common
for some railroad bills to be received years after the work was
completed, thus delaying audit activity and project closure. With the
amended language, billings received from railroads after one year
following completion of the railroad work can be paid at the discretion
of the highway agency. Paragraph (b) is further amended to remove the
requirement for State certification that the work is complete,
acceptable, and in accordance with the terms of the agreement. The FHWA
believes that such certificates are not necessary on individual
projects. Instead, compliance can be reviewed on a program basis.
In part 646, subpart B, Sec. 646.200, paragraph (c) is amended to
refer to current sections of highway law. Section 405 of title 23,
U.S.C., was repealed and section 203 of the Highway Safety Act of 1973
(Pub. L. 93-87, 87 Stat. 282) was codified as part of 23 U.S.C. 130.
Paragraph (f) is removed because part 170 of title 23, CFR, no longer
exists.
Section 646.202, Authority, is removed and reserved. This section
is removed because the authority citation is placed at the part level
and, therefore, redundant as a separate section in subpart B.
Section 646.204 is amended to remove paragraph (d) which defines
obsolete terminology, to remove the paragraph designations from all
definitions, and to place the definitions in alphabetical order.
In Sec. 646.208, paragraphs (a) and (b) are revised to describe
only funding sources for rail/highway crossing projects. Information
contained in this section on Federal share is moved to Sec. 646.212.
The current text of Sec. 646.212, paragraph (b) is removed. Section
1012(a) of the ISTEA amended 23 U.S.C. 120 by removing subsection (d)
concerning Federal share payable for reconstruction of existing grade
separation projects on railway/highway crossings. Such projects are no
longer eligible for 100 percent Federal funding. Regulatory text from
Sec. 646.208(b) is redesignated and revised as a new paragraph (b) in
Sec. 646.212 in order to provide information on Federal share in one
place.
In Sec. 646.214, paragraph (a)(2) is amended to clarify that the
FHWA no longer is required to approve standards for all Federal-aid
projects. Section 1016(d) of the ISTEA amended 23 U.S.C. 109 by adding
a new subsection (p) which provided that non-NHS projects now follow
State approved standards.
In Sec. 646.216, paragraph (d)(3)(ii) is amended to increase the
ceiling from $25,000 to $100,000 for using the lump sum payment
arrangement for reimbursement for railroad adjustments (other than
installation or improvement of grade crossing warning devices and/or
grade crossing surfaces) on Federal-aid and direct Federal highway
projects. The amendment provides the States greater flexibility in
utilizing the lump sum payment arrangement. The purpose of allowing
lump sum agreements, in lieu of agreements based on an accounting of
actual costs, is to reduce the administrative burden associated
[[Page 45327]]
with railroad adjustment projects. Under the lump sum process, cost
accounting is easier, project billings are simplified, and final audit
of detailed cost records is not required. Typically, final project
costs are quite close to the costs estimated for small, routine
projects. If more detailed cost accounting methods were followed,
however, the FHWA believes that the small degree of accuracy that might
be realized would not justify the extra cost involved in carrying out
detailed audits. This revision increases the number of railroad
adjustments potentially eligible for lump sum payment, anticipates
future needs and responds, in part, to the fact that since the $25,000
limit was established in 1982, inflation has reduced the number and
limited the scope of projects eligible for lump sum payments.
In Sec. 646.216, paragraph (e)(1) is amended to clarify that the
approved program of projects is the approved statewide transportation
improvement program now required under 23 U.S.C. 135.
The appendix to subpart B is amended to change the dimensions for
horizontal and vertical clearances to metric units, in keeping with
FHWA's metric transition timetable of September 30, 1996, published on
August 31, 1993, at 58 FR 46036. Since that time, section 205(c) of the
National Highway System Designation Act of 1995, Public Law 104-59, 109
Stat. 568, 577, amended the compliance date for use of the metric
system (SI) on Federal-aid projects to September 30, 2000.
Rulemaking Analyses and Notices
The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,
allows agencies engaged in rulemaking to dispense with prior notice and
opportunity for comment when the agency for good cause finds that such
procedures are impracticable, unnecessary, or contrary to the public
interest. 5 U.S.C. 553(b)(3)(B). For the reasons set further below, the
FHWA has determined that prior notice to the public and opportunity for
comment on this action are unnecessary and contrary to the pubic
interest.
The changes made by this rulemaking provide greater flexibility to
the States and conform the existing regulations to current law. First,
the changes provide the States with greater flexibility in their
billing procedures by allowing them to require railroads to submit
final billings on a timely basis and by removing the requirement that
States certify that work is complete for each project. Second, the
changes increase the ceiling for lump sum agreements, which gives
States greater flexibility in utilizing the lump sum payment
arrangement, an option already available to them. Finally, the changes
set forth in this interim final rule conform existing regulations to
more current laws or regulations. Given the nature of these changes,
the FHWA is not exercising its discretion in such a way that could
meaningfully be affected by public comment. Moreover, the FHWA believes
that it is in the public interest to make these changes effective
without the delay associated with prior notice and opportunity for
comment.
Under the APA, 5 U.S.C. 553(d)(3), agencies can, upon a finding of
good cause, make a rule effective immediately and avoid the 30-day
delay effective requirement. The FHWA has determined that good cause
exists to make this rule effective upon publication for the following
reasons. First, the FHWA finds that good cause exists to dispense with
the 30-day delay effective requirement because the changes adopted by
this action give the States greater flexibility in billing and rid the
States of the burden to provide certification that railroad work is
complete. Second, good cause further exists because the increased
ceiling for lump sum agreements reduces the administrative burden on
the States associated with railroad adjustment projects. Finally, the
additional changes made by this rulemaking are merely technical in
nature, ensuring that the existing regulations conform to current law.
For these same reasons, the FHWA has also determined that prior
notice and opportunity for comment are not required under the
Department of Transportation's regulatory policies and procedures, as
it is not anticipated that such action would result in the receipt of
useful information. Therefore, the FHWA is proceeding directly to an
interim final rule which is effective upon publication. Nevertheless,
in issuing an interim final rule, the FHWA affords interested persons
with an opportunity to comment on this action. Comments received will
be carefully considered in evaluating whether any change to this
interim final rule is needed.
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. It is anticipated that the economic
impact of this rulemaking will be minimal; therefore, a full regulatory
evaluation is not required. The FHWA does not consider this action to
be a significant regulatory action because the amendments would merely
update the railroad regulations for Federal-aid highway projects to
conform to recent laws or regulations, and provide States with
clarification and flexibility to implement the current law.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Based on that evaluation, the FHWA certifies that this action
will not have a significant economic impact on a substantial number of
small entities. The amendments only clarify or simplify procedures used
by State highway agencies in accordance with existing laws or
regulations.
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 separate federalism assessment. This rule
does not impose additional costs or burdens on the States, including
the likely sources of funding for the States, nor does it affect the
ability of the States to discharge the traditional State government
functions. This document merely assists the States by giving them
additional 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 for purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3520.
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
[[Page 45328]]
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 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.
Issued on: August 20, 1997.
Gloria J. Jeff,
Acting Administrator.
In consideration of the foregoing, the FHWA amends title 23, Code
of Federal Regulations, by revising part 140, subpart I, and part 646,
subpart B, to read as set forth below.
PART 140--REIMBURSEMENT
1. The authority citation for part 140 continues to read as
follows:
Authority: 23 U.S.C. 101(e), 106(c), 109(e), 114(a), 120(g),
121(d), 122, 130, and 315; and 49 CFR 1.48(b).
Subpart I--Reimbursement for Railroad Work
2. In Sec. 140.904, paragraph (b)(1) is revised to read as follows:
Sec. 140.904 Reimbursement basis.
* * * * *
(b) * * *
(1) For work which is included in an approved statewide
transportation improvement program.
* * * * *
3. In Sec. 140.922, paragraph (b) is revised to read as follows:
Sec. 140.922 Billings.
* * * * *
(b) The company shall provide one final and complete billing of all
incurred costs, or of the agreed-to lump sum, within one year following
completion of the reimbursable railroad work. Otherwise, previous
payments to the company may be considered final, except as agreed to
between the SHA and the railroad.
* * * * *
PART 646--RAILROADS
4. The authority citation for part 646 is revised to read as
follows:
Authority: 23 U.S.C. 109(e), 120(c), 130, 133(d)(1), and 315; 49
CFR 1.48(b).
Subpart B--Railroad-Highway Projects
5. In Sec. 646.200, paragraph (f) is removed and paragraph (c) is
revised to read as follows:
Sec. 646.200 Purpose and applicability.
* * * * *
(c) Additional instructions for projects involving the elimination
of hazards of railroad/highway grade crossings pursuant to 23 U.S.C.
130 are set forth in 23 CFR part 924.
* * * * *
Sec. 646.202 [Removed and Reserved]
6. Section 646.202 is removed and reserved.
7. Section 646.204 is amended by removing paragraph (d); by
removing the paragraph designations; and by placing the definitions in
alphabetical order.
8. Section 646.208 is revised to read as follows:
Sec. 646.208 Funding.
(a) Railroad/highway crossing projects may be funded through the
Federal-aid funding source appropriate for the involved project.
(b) Projects for the elimination of hazards at railroad/highway
crossings may, at the option of the State, be funded with the funds
provided by 23 U.S.C. 133(d)(1).
9. In Sec. 646.212, paragraph (b) is revised to read as follows:
Sec. 646.212 Federal share.
* * * * *
(b) The Federal share of railroad/highway crossing projects may be:
(1) Regular pro rata sharing as provided by 23 U.S.C. 120(a) and
120(b).
(2) One hundred percent Federal share, as provided by 23 U.S.C.
120(c).
(3) Ninety percent Federal share for funds made available through
23 U.S.C. 133(d)(1).
10. In Sec. 646.214, paragraph (a)(2) is revised to read as
follows:
Sec. 646.214 Design.
(a) * * *
(2) Facilities that are the responsibility of the highway agency
for maintenance and operation shall conform to the specifications and
design standards and guides used by the highway agency in its normal
practice for Federal-aid projects.
* * * * *
11. Section 646.216 is amended in paragraph (d)(3)(ii) by replacing
the figure ``$25,000'' with the figure ``$100,000''; and by revising
paragraph (e)(1) to read as follows:
Sec. 646.216 General procedures.
* * * * *
(e) Authorizations. (1) The costs of preliminary engineering,
right-of-way acquisition, and construction incurred after the date each
phase of the work is included in an approved statewide transportation
improvement program and authorized by the FHWA are eligible for
Federal-aid participation. Preliminary engineering and right-of-way
acquisition costs which are otherwise eligible, but incurred by a
railroad prior to authorization by the FHWA, although not reimbursable,
may be included as part of the railroad share of project cost where
such a share is required.
* * * * *
Appendix to Subpart B--Horizontal and Vertical Clearance Provisions for
Overpass and Underpass Structures--[Amended]
12. The appendix to subpart B is amended as follows:
A. By replacing the words ``20 feet'' with ``6.1 meters''
wherever they appear;
B. By replacing the words ``20-foot'' with ``6.1-meters''
wherever they appear;
C. By replacing the words ``8 feet'' with ``2.5 meters''
wherever they appear;
D. By replacing the words ``9 feet'' with ``2.8 meters''
wherever they appear;
E. By replacing the words ``23 feet'' with ``7.1 meters''
wherever they appear;
F. By replacing the words ``24 feet 3 inches'' with ``7.4
meters'' wherever they appear; and
G. By replacing the words ``26 feet'' with ``8.0 meters''
wherever they appear.
F. By replacing the words ``Nine feet'' with ``Two and eight
tenths meters'' wherever they appear.
[FR Doc. 97-22797 Filed 8-26-97; 8:45 am]
BILLING CODE 4910-22-P
