[Federal Register Volume 60, Number 177 (Wednesday, September 13, 1995)]
[Rules and Regulations]
[Pages 47480-47484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22583]
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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: Interim final rule; request for comments.
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SUMMARY: The FHWA is adopting an interim policy for certification
acceptance (CA) which modifies the current FHWA policy. The interim
policy streamlines and simplifies the existing procedures for CA
applications to be consistent with the new program provisions in
sections such as 1016(f) and 1105(e) of the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, 105
Stat. 1914. The modifications simplify the current regulations by
eliminating unnecessary and prescriptive requirements. The new policy
will allow State highway agencies (SHAs) to use the CA alternate
procedures to supplement the administrative flexibility provided in the
ISTEA for non-Interstate projects.
DATES: This regulation is effective September 13, 1995. Written
comments must be received on or before December 12, 1995.
ADDRESSES: Submit written, signed comments to FHWA Docket No. 95-19,
Federal Highway Administration, Room 4232, HCC-10, 400 Seventh Street
SW., Washington, DC 20590. All comments received will be available for
examination at the above address between 8:30 a.m. and 3:30 p.m., e.t.,
Monday through Friday. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard.
FOR FURTHER INFORMATION CONTACT: Mr. Donald J. Marttila, Interstate and
Program Support Branch, Federal-Aid and Design Division, Office of
Engineering, (202) 366-4637, or Mr. Wilbert Baccus, Office of the Chief
Counsel, (202) 366-0780, Federal Highway Administration, 400 Seventh
Street SW., Washington, DC 20590.
[[Page 47481]]
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: This interim final rule establishes the
procedures to be followed by SHAs for the processing of transportation
projects under CA. This document allows the timely use by SHAs of the
simplified CA procedures. The mandatory requirement for evaluation of
all areas under CA administration every four years is eliminated,
however the revised regulation retains the general requirements of the
FHWA's fundamental provisions of law in title 23, United States Code,
with respect to the basic structure of the Federal-aid highway program.
The requirement that the State's laws, regulations, directives, and
standards must aim to comply with title 23, U.S.C., policies is also
retained. In keeping with the streamlining effort, specific
requirements of the States for CA, including reports, are deleted
because title 23, U.S.C. requirements will be subject to periodic
changes. The revised CA regulation provides that States may be
requested to furnish reports and information at the discretion of the
FHWA. All references to the Secondary Road Plan (SRP) and its limited-
coverage State certification procedures are removed because the SRP
program was eliminated under the ISTEA restructuring.
The CA procedures are not being completely eliminated because, even
in light of the additional flexibility provided by the ISTEA, and in
particular 23 U.S.C. 106, certain National Highway System (NHS)
projects can still be handled under CA. Some of those projects were not
given the additional flexibility provided by the ISTEA. In addition,
some States continue to use CA notwithstanding the more flexible
options available.
Section-by-Section Analysis
Section 640.101 Purpose
The statement of purpose remains unchanged.
Section 640.103 Definitions
The definition of ``secondary road plan'' is removed because the
Federal-aid secondary road system has been repealed by the ISTEA.
The definition of ``State highway/transportation agency'' is added
to include all departments, commissions, boards or officials charged
with responsibility for highway construction. The meaning is the same
as that given for ``State highway department'' in 23 U.S.C. 101.
The term ``transportation'' is added to the definition of ``State
certification'' to conform to the definition of ``State highway/
transportation agency.''
Section 640.105 Effect of Certification Acceptance
Paragraph (d) is revised to eliminate the listing of fundamental
provisions of law in title 23, U.S.C. The listing has become outdated
and is subject to periodic changes. This does not change the finding
required in 23 U.S.C. 117 that Federal-aid projects under CA will be
carried out in accordance with State laws, regulations, directives and
standards which will accomplish the policies and objectives issued
pursuant to title 23, U.S.C.
Section 640.107 Coverage
Paragraphs (a) and (c) are revised to conform to the language in
the ISTEA and 23 U.S.C. 135, Statewide Planning, is added for the
projects listed in paragraph (b) and excluded from coverage under CA.
Paragraph (d) is eliminated because it allowed a simplified CA
application procedure based on evaluation of the State's operations and
performance under the SRP which has been eliminated. The simplified
procedure is not needed because the special rules in 23 U.S.C. 106,
provided under the ISTEA, allow increased flexibility in approval of
projects using Federal-aid funds on non-NHS projects, low-cost NHS
projects, and 3R projects on the NHS.
Section 640.109 Requirements for Certification Acceptance
Paragraphs (a) and (b) are revised and combined into a new
paragraph (a) to simplify and streamline reviews and to eliminate
redundant or unnecessary requirements. The detailed list of title 23
requirements is eliminated and the itemized evaluation of a State's
performance and resources, to be used to determine the State's
capability to carry out project responsibilities, is replaced by a more
flexible approach. The approach is based on process reviews and
evaluations conducted as part of the overall FHWA evaluation of the
State's performance and resources. Procedures to accept limited-
coverage CA, based on an evaluation of operations and performance under
an approved SRP, are eliminated because of the repeal of the secondary
road system by the ISTEA and because the limited-coverage of projects
is not necessary given the special rules provided for in the ISTEA
which have replaced the need for CA of such projects.
Paragraph (c) is redesignated as paragraph (b).
Section 640.111 Content of State Certification
Paragraph (a) is revised to eliminate the procedures for limited-
coverage State certification which are no longer applicable. Such
certification is not necessary for non-NHS projects, low-cost NHS
projects, and 3R projects on the NHS under the provisions of 23 U.S.C.
106.
Section 640.113 Procedures
The text is revised and rearranged to simplify and streamline the
procedures and eliminate redundant and unnecessary requirements. The
revision implements guidance issued by the FHWA for program oversight
in conformance with the ISTEA provisions, giving greater flexibility to
the administration of Federal-aid projects.
Paragraph (a) is eliminated as redundant and because its subject is
covered in Sec. 640.105(d). Paragraph (b) is redesignated as paragraph
(a). Paragraph (c) is redesignated as paragraph (b) and the text
revised to conform to current FHWA guidance on processing design
exceptions for projects administered under CA. Paragraph (d) is
redesignated as paragraph (c) and the information on project agreements
is updated to the requirements in 23 CFR Part 630, subpart C. Paragraph
(e) and Appendix A, referenced in paragraph (e), are eliminated because
the listing in Appendix A is outdated and not all inclusive and because
the reports required by Appendix A on Federal-aid projects are subject
to periodic changes. Paragraph (f) is redesignated as paragraph (d) and
the text is revised to conform to the ISTEA provision for acceptance of
Federal-aid projects. Paragraph (g) is redesignated as paragraph (e)
and the text revised to remove the requirement that the State submit
the final voucher on a specific form known as ``FHWA 1447''.
Paragraph (h) is redesignated as paragraph (f).
Section 640.115 Evaluations
Paragraphs (a) and (b) are revised to provide more flexibility in
administering the CA procedures, in keeping with the spirit of ISTEA
and recommendations made in the 1993 report by the Office of Program
Review, entitled ``Stewardship Under ISTEA Program Efficiencies.''
Paragraph (a) is revised to provide that evaluations will be periodic,
on an ``as deemed appropriate' basis, rather than requiring evaluations
at least once every 4 years.
[[Page 47482]]
Paragraph (b) retains the requirement that an evaluation report, with
recommendations, be prepared when a State fails to comply with CA
requirements. This evaluation report is retained to provide a means for
determining whether acceptance of a State's certification should be
rescinded.
Section 640.117 Rescission of State Certification
The text is not changed in this section.
Review Procedure
Based on an analysis of public comments received, the FHWA will
reexamine its determination that this interim final rule is acceptable
as the basis for CA and whether further change is warranted.
Rulemaking Analysis 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. For the reasons set forth below, the FHWA has determined that
prior notice to the public on this action is unnecessary and contrary
to the public interest.
The FHWA has determined that prior notice and opportunity for
comment are unnecessary because the changes being adopted in this
rulemaking involve streamlining and provide more administrative
flexibility in the use of the regulation. This revision, as part of the
government regulatory review effort, updates and simplifies the
existing CA regulation. This rule provides a less burdensome system for
gathering information from the States with respect to the CA process
and provides more flexible reporting arrangements for States that are,
at their option, participating in the CA program. The previous
requirements for periodic reports are deleted. Instead, the States may
be requested by the FHWA to furnish reports and information from time
to time. Overall, the CA procedures are relaxed and do not impose any
additional restrictions on the public.
The FHWA has also determined that prior notice and opportunity for
comment would be contrary to the public interest. As noted earlier, the
adoption of this interim final rule would allow a timely use by SHAs of
the streamlined and simplified CA procedures. Through the streamlined
process and simplified reporting requirements, States that have chosen
to participate in the CA program can do so to administer their State
highway programs more efficiently.
Furthermore, 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 because it is not
anticipated that such action will result in the receipt of useful
information.
The APA, according to 5 U.S.C. 553(d)(3), also allows agencies,
upon a finding of good cause, to make a rule effective immediately and
avoid the 30-day delayed effective requirement. The FHWA has determined
that good cause exists to make this rule effective upon publication
because the rule streamlines the CA process and provides less
prescriptive requirements for its use. Making this rule effective upon
publication will enable the States to take advantage of the simplified
procedures immediately. Moreover, it should be noted that participation
by the States in the CA program is voluntary.
Nevertheless, public comment is solicited on this action. Comments
received will be carefully considered in evaluating whether any change
to this action 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. As stated, this revised 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 interim 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 1980, 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: September 5, 1995.
Rodney E. Slater,
Federal Highway Administrator.
For the reasons set out above, the FHWA amends chapter I of title
23, Code of Federal Regulations, by revising part 640 to read as set
forth below.
[[Page 47483]]
PART 640--CERTIFICATION ACCEPTANCE
Sec.
640.101 Purpose.
640.103 Definitions.
640.105 Effect of certification acceptance.
640.107 Coverage.
640.109 Requirements for certification acceptance.
640.111 Content of State certification.
640.113 Procedures.
640.115 Evaluations.
640.117 Rescission of State certification.
Authority: 23 U.S.C. 101(e), 117, and 315; 49 CFR 1.48(b).
Sec. 640.101 Purpose.
The purpose of this part is to provide instructions for preparation
and acceptance of State certification proposals to accomplish the
policies and objectives of title 23, U.S.C., using State laws,
regulations, directives, and standards. Also covered are procedures for
administering projects under certification acceptance and evaluating
State performance.
Sec. 640.103 Definitions.
Unless otherwise specified in this part, the definitions in 23
U.S.C. 101(a) are applicable to this part. As used in this part:
Certification acceptance (CA) means the alternative procedure
authorized by 23 U.S.C. 117(a) for administering Federal-aid highway
projects not on the Interstate System.
State certification means a written statement prepared by a State
highway/transportation agency setting forth the laws, regulations,
directives, and standards it will use, or cause to be used, in the
administration of certain highway projects.
State highway/transportation agency has the same meaning as that
given for State highway department in 23 U.S.C. 101.
Sec. 640.105 Effect of certification acceptance.
(a) Acceptance of a State certification permits a State to
discharge certain responsibilities otherwise assigned to the Secretary
under title 23, U.S.C., for Federal-aid highway projects. A State may
permit performance and project certification by capable local
governments.
(b) Acceptance of a State certification does not constitute a
commitment or obligation of Federal funds.
(c) Acceptance of a State certification does not preclude FHWA
access to and review of a Federal-aid project at any time.
(d) Certification acceptance as an alternative procedure does not
replace the fundamental provisions of law in title 23, U.S.C., with
respect to the basic structure of the Federal-aid highway program.
Acceptance of a CA proposal does not preclude application of any
provision of title 23, U.S.C., that may be advantageous to the State.
(e) Nothing in this part shall affect or discharge any
responsibility or obligation of the FHWA under any Federal law other
than title 23, U.S.C.
Sec. 640.107 Coverage.
(a) Certification acceptance may apply to Federal-aid highway
projects except projects on the Interstate System. If other FHWA
regulations and title 23, U.S.C., allow, projects not on a Federal-aid
highway may be administered under the provisions of an accepted State
certification.
(b) The CA procedure shall not apply to transportation planning and
research (23 U.S.C. 134, 135, and 307), highway safety (chapter 4,
title 23, U.S.C.), or those public transportation projects not
administered by FHWA under title 23, U.S.C.
(c) A State certification may provide for either full or partial
coverage of the Federal-aid highway projects, programs, phases of work,
and classes of projects.
Sec. 640.109 Requirements for certification acceptance.
(a) Acceptance of either a full or partial coverage State
certification as described in Sec. 640.107(c) will be based upon:
(1) A State request and identification of the State laws,
regulations, directives, and standards that either separately or
collectively will accomplish the policies and objectives contained in
or issued pursuant to title 23, U.S.C., and
(2) An FHWA finding that the State highway/transportation agency
has the capability to carry out project responsibilities in accordance
with such State requirements. The FHWA finding will be based on
previous process reviews and evaluations conducted as part of FHWA's
oversight of Federal-aid programs and an FHWA evaluation of the State's
performance and resources. If information from process reviews and that
available from previous evaluations are considered to be insufficient
to form a reasonable judgment, they may be supplemented by additional
reviews and inquiries of the State agency.
(b) A State certification may be accepted in whole or in part,
depending on FHWA findings. Where minor deficiencies are found,
acceptance may be conditioned or may exclude the affected State
operations until the deficiencies are corrected. Where deficiencies are
found which are of such magnitude as to create doubt that the policies
and objectives of title 23, U.S.C., would be accomplished, the State
certification will not be accepted until the deficiencies are
corrected.
Sec. 640.111 Content of State certification.
(a) The State certification will include the following:
(1) The name of the State highway/transportation agency and the
legal authority which permits such agency to accomplish the policies
and objectives contained in or issued pursuant to title 23, U.S.C.;
(2) A statement of the programs, phases of work, and classes of
projects or combinations thereof that the State is including in the
certification being submitted for acceptance;
(3) For submissions providing full or partial coverage of projects
as provided in Sec. 640.107(c), a listing of the title 23, U.S.C.,
policies and objectives and citation of State laws, regulations,
directives, and standards that will be applied. Any policies and
objectives that are not applicable due to partial coverage may be
omitted; and
(4) A description of the State's methods for assuring local
government knowledge of and compliance with State and Federal
requirements where they will perform services on projects administered
under CA.
(b) Existing assurances and formal agreements between the State and
the FHWA with respect to equal employment opportunity, current billing,
and control of outdoor advertising will continue in full force and
effect and may be incorporated by reference. Likewise, the State's
procedures accepted under 23 U.S.C. 109(h) may be incorporated by
reference.
(c) State certifications are to be signed by the chief official of
the State highway/transportation agency and submitted to the FHWA
Division Administrator.
Sec. 640.113 Procedures.
(a) Authorization by the FHWA to proceed with work on a CA project
will be in response to a written request from the State highway/
transportation agency.
(b) If the State finds that exceptions to CA procedures or
standards are appropriate on a project, the State will justify and
document such decisions.
(c) A project agreement, or modification to a project agreement,
will be executed as required by 23 CFR Part 630, subpart C, Project
Agreements.
(d) The FHWA may accept projects based on inspections of a type and
frequency necessary to ensure the projects are completed in accordance
[[Page 47484]]
with appropriate standards. The State is to notify the FHWA when a
project is complete and/or ready for such inspection.
(e) Final vouchers will be submitted to the FHWA with the State
certifying 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 FHWA.
(f) Revisions or amendments to State certifications will be made
when necessary and processed as provided in Sec. 640.111(c). The
existing State certification is to be reviewed periodically to
determine its adequacy in light of this part, the statutes in effect at
the time of the review, and the operational reviews made by FHWA.
Sec. 640.115 Evaluations.
(a) The FHWA may conduct periodic evaluations, as deemed
appropriate, of the State's operations under CA. These evaluations may
include coverage of any or all areas of the State's administration of
CA projects.
(b) If a failure to comply with Federal or State laws occurs and
the State is unable or unwilling to effect corrective action of the
deficiency, an evaluation report, including recommendations, will be
prepared by the FHWA as a basis for considering whether acceptance of
the State certification should be rescinded under Sec. 640.117.
Sec. 640.117 Rescission of State certification.
The acceptance of a State certification may be rescinded at any
time upon request of the State or if considered necessary by the FHWA
to protect the Federal interest. The rescission may be applied to all
or part of the programs or projects covered in the State certification.
[FR Doc. 95-22583 Filed 9-12-95; 8:45 am]
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