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Proposed Rule

Advance Construction of Federal-Aid Projects

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Information about this document as published in the Federal Register.

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Federal Highway Administration (FHWA), DOT.


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


The FHWA is proposing to amend the regulation for advance construction of Federal-aid projects by removing the provisions that prescribe the policies and procedures for the execution of the project agreement for Federal-aid projects and for advancing the construction of Federal-aid highway projects without obligating Federal funds apportioned or allocated to the States. These provisions are no longer consistent with section 115 of title 23, United States Code (U.S.C.), due to technical amendments provided in the National Highway System Designation Act of 1995 (NHS Act) and the Transportation Equity Act for the 21st Century (TEA-21).


Comments must be received on or before June 30, 2003.


Mail or hand deliver comments for the docket number that appears in the heading of this document to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, or submit electronically at​submit. 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 acknowledgement page that appears after submitting comments electronically. Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the U.S. 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

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Mr. Max Inman, Federal-aid Financial Management Division, (202) 366-2853, or Mr. Steve Rochlis, Office of the Chief Counsel, (202) 366-1395, Federal Highway Administration, 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.

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Electronic Access

Internet users may access all comments received by the U.S. DOT Dockets, Room PL-401, by using the universal resource locator (URL): It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

An electronic copy of this document may be downloaded using a modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at and the Government Printing Office's database at​nara.


The FHWA published an interim final rule on part 630, subpart G on July 19, 1995, at 60 FR 36991. Interested persons were invited to submit comments to FHWA Docket No. 95-10. (The FHWA rearranged its docket system to accord with the electronic system adopted by the Department of Transportation in 1997. The FHWA Docket No. 95-10 was transferred and scanned as FHWA Docket No. 1997-2262.)

Section 115 of title 23, U.S.C., provides for the authorization of advance construction projects. This statute allows States to advance the construction of Federal-aid highway projects without requiring that Federal funds be obligated at the time the FHWA approves the project. States may proceed with projects using only State funds and then request that Federal funds be made available at a later time. The State may request that a project be converted to a regular Federal-aid project at any time provided that sufficient Federal-aid funds and obligation authority are available. The State may request a partial conversion where only a portion of the Federal share of project costs is obligated and the remainder may be converted at a later time provided that funds are available. Only the amount converted is an obligation of the Federal Government.

Section 308 of the NHS Act (Pub. L. 104-59, 109 Stat. 568, November 28, 1995) replaced 23 U.S.C. 115(d), relating to the amount of advance construction that may be authorized. The previous limitation required that future year authorizations be in effect one year beyond the fiscal year for which an advance construction application was sought, thus limiting that States' flexibility to advance construct projects during the final year of an authorization act. The NHS Act replaced the limitation with a requirement that advance construction projects be on the approved Statewide Transportation Improvement Program (STIP). The STIP covers a period of at least three years and is a financially constrained program which is not limited to the period of the authorization act. This change provided the States with more flexibility in financing projects and developing financial plans which in turn allows more projects to begin construction earlier.

The FHWA regulation governing the pre-construction procedures is found at 23 CFR part 630. Currently, § 630.707 outlines the limitations are no longer in effect after the changes made to title 23, U.S.C., section 115(d) by the NHS Act. Therefore, the FHWA proposes to remove § 630.707.

Section 1226(a) of the TEA-21, Pub. L. 105-178, 112 Stat. 107 (1998), as amended by Pub. L. 105-206, 112 Stat. 838 (1998), revised 23 U.S.C. 115 by removing subsections (b)(2) and (b)(3) relating to payment of bond interest on certain Interstate construction projects because it is obsolete; removed subsection (c) relating to completion of projects; and redesignated subsection (d) as (c). Based on changes in the law, the FHWA proposes to remove § 630.705 (c), § 630.705 (d) and Start Printed Page 23240§ 630.711 relating to the payment of bond interest.

Discussion of Comments

We received five comments, all from State transportation departments (California, Massachusetts, North Dakota, Virginia, and Washington). Each comment welcomed changes in giving the States flexibility to partially convert regular Federal-aid projects. One comment (North Dakota) recommended that the regulation clearly state that a project or partial project can be converted to a regular Federal-aid project. Two of the five comments (California and Massachusetts) proposed clearer language to the regulation in regard to limitation. These States recommended that the regulation read that an advance construction project is limited to a State's expected apportionment of authorized funds which are eligible to finance the project. While the FHWA agrees that these recommendations will help clarify, we believe by removing the sections we propose to remove that the regulation will be clearer and easier to understand.

Rulemaking Analyses and Notices

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

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

The FHWA has considered the impact of this proposal and has determined that it is not a significant rulemaking 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 would be minimal; therefore, a full regulatory evaluation is not required. These proposed changes would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements or grants. This rulemaking proposes to amend current regulations governing the advance construction of Federal-aid projects based on changes in law. It is not anticipated that these proposed changes would affect the Federal funding allocated to the states. Consequently, a full regulatory evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act [5 U.S.C. 601-612], the FHWA has evaluated the effects of this proposed rule on small entities. The FHWA does not believe that this proposed action would not have a significant economic impact on a substantial number of small entities. States are not included in the definition of “small entity” set forth in 5 U.S.C. 601. Therefore, the FHWA hereby certifies that this proposal would 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 dated August 4, 1999, and it has been determined that this proposal would not have a substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States. Nothing in this proposal directly preempts any State law or 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.

Unfunded Mandates Reform Act of 1995

This proposed action would not impose a Federal mandate resulting in the expenditure by State, local, tribal governments, in the aggregate, or by the sector, of $100 million or more in any year. (2 U.S.C. 1531 et seq.)

Executive Order 12630 (Taking of Private Property)

This proposed action would not affect a taking of private property or otherwise have taking implications under Executive Order 12630. Governmental Actions and Interface with Constitutionally Protected Property Rights.

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)

We have analyzed this proposed action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This action does not involve an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.

Paperwork Reduction Act

This proposed 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 FHWA has analyzed this proposed 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. Therefore, an environmental impact statement is not required.

Executive Order 13175 (Tribal Consultation)

The FHWA has analyzed this proposed action under Executive Order 13175, and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

We have analyzed this proposed action 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 under Executive Order 13211 is not required. Start Printed Page 23241

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 ear. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

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List of Subjects in 23 CFR Part 630

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Issued on: April 25, 2003.

Mary E. Peters,

Federal Highway Administrator.

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

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

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Authority: 23 U.S.C. 106, 109, 315, 320, and 402(a); 23 CFR 1.32; and 49 CFR1.48(b).

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Subpart G—Advance Construction of Federal-Aid Projects [Revised]


2. In § 630.705, remove paragraphs (c) and (d).

[Removed and Reserved]

3. Remove and reserve § 630.707.


4. Remove § 630.711.

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[FR Doc. 03-10692 Filed 4-30-03; 8:45 am]