Certification Acceptance

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.

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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

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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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