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: 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

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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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