Rule2025-09736
Rescinding Preliminary Engineering Project 10-Year Repayment Provision
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 30, 2025
Effective
May 30, 2025
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
This final rule rescinds a portion of the regulations issued on May 10, 2001, Federal-Aid Project Agreement, which required that State Departments of Transportation (DOTs) repay FHWA Federal funds provided for preliminary engineering for a project if right-of-way acquisition for, or actual construction of, the road for which this preliminary engineering is undertaken is not started in ten years.
Full Text
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<title>Federal Register, Volume 90 Issue 103 (Friday, May 30, 2025)</title>
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[Federal Register Volume 90, Number 103 (Friday, May 30, 2025)]
[Rules and Regulations]
[Pages 22858-22860]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-09736]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 630
RIN 2125-AG25
Rescinding Preliminary Engineering Project 10-Year Repayment
Provision
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule rescinds a portion of the regulations issued
on May 10, 2001, Federal-Aid Project Agreement, which required that
State Departments of Transportation (DOTs) repay FHWA Federal funds
provided for preliminary engineering for a project if right-of-way
acquisition for, or actual construction of, the road for which this
preliminary engineering is undertaken is not started in ten years.
DATES: This final rule is effective May 30, 2025.
FOR FURTHER INFORMATION CONTACT: For questions about this final rule,
please contact Mr. Anthony DeSimone, FHWA Office of Infrastructure,
317-226-5307, or via email at <a href="/cdn-cgi/l/email-protection#81c0eff5e9eeeff8afc5e4d2e8eceeefe4c1e5eef5afe6eef7"><span class="__cf_email__" data-cfemail="3d7c5349555253441379586e54505253587d595249135a524b">[email protected]</span></a>. For legal
questions, please contact Mr. David Serody, FHWA Office of Chief
Counsel, 202-366-4241, or via email at <a href="/cdn-cgi/l/email-protection#b4f0d5c2ddd09ae7d1c6dbd0cdf4d0dbc09ad3dbc2"><span class="__cf_email__" data-cfemail="86c2e7f0efe2a8d5e3f4e9e2ffc6e2e9f2a8e1e9f0">[email protected]</span></a>. Office
hours for FHWA are from 8 a.m. to 4:30 p.m., eastern time (E.T.),
Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
An electronic copy of this document may also be downloaded from the
Office of Federal Register's website at <a href="http://www.federalregister.gov">www.federalregister.gov</a> and the
U.S. Government Publishing Office's website at <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
I. General Discussion
Through this final rule, FHWA is rescinding a portion of the rule
issued on May 10, 2001, Federal-Aid Project Agreement, via 66 FR 23845,
amending Sec. 630.112(c)(2) of title 23 Code of Federal Regulations
(CFR). This rule amended the regulation of project agreements.
Specifically for the purpose of this rescission, this rule included a
provision that required repayment of preliminary engineering for which
right-of-way or construction was not started by the tenth fiscal year
following authorization. For the reasons explained below, FHWA has
determined that this subparagraph is unnecessary and will rescind it in
full.
Section 1016(a) of the Intermodal Surface Transportation Efficiency
Act of 1991 amended 23 U.S.C. 102(b) to state: ``If on-site
construction of, or acquisition of right-of-way for, a highway project
is not commenced within 10 years after the date on which Federal funds
are first made available, out of the Highway Trust Fund (other than
Mass Transit Account), for preliminary engineering of such project, the
State shall pay an amount equal to the amount of Federal funds made
available for such engineering. The Secretary shall deposit in such
Fund all amounts paid to the Secretary under this section.'' This
provision was modified by section 1304 of the Transportation Equity Act
for the 21st Century in 1998 to allow the Secretary of Transportation
the ability to grant time extensions of this requirement. In 2001, FHWA
amended its regulation on project agreement provisions, 23 CFR 635.112,
to, in part, require that States accept and comply with the 10-year
payback provision under 23 U.S.C. 102(b) as a condition to payment of
any Federal funds obligated. 23 CFR 635.112(c)(2).
Section 11310(a) of the Infrastructure Investment and Jobs Act
(Pub. L. 117-58) repealed the 10-year payback requirements formerly
found in 23 U.S.C. 102(b). Accordingly, FHWA finds good reason to
eliminate this regulatory provision entirely. The repeal of 23 U.S.C.
102(b) removes the statutory authority for FHWA to demand the
reimbursement of preliminary engineering funds if on-site construction
of, or acquisition of right-of-way for, a project is not commenced
within 10 years of the date on which Federal funds were first made
available for the preliminary engineering on the project. Similarly,
the statutory change removes the obligation of State DOTs to repay such
preliminary engineering costs in these circumstances. For these
reasons, FHWA finds it unnecessary to maintain a provision that FHWA
cannot enforce due to lack of statutory authority and that State DOTs
have no legal obligation to follow.
The FHWA notes that the repeal of the 10-year payback provision
under 23 U.S.C. 102(b) and FHWA's termination of 23 CFR 630.112(c)(2)
does not change any other requirements that may allow FHWA to demand
repayment of funds used for preliminary engineering. For example, FHWA
notes that it may require the repayment and recovery of funds used for
preliminary engineering if it finds improper or ineligible use of such
funding otherwise not in compliance with Federal requirements. See 23
CFR 1.36. The purpose of the rescission of 23 CFR 635.112(c)(2) is only
that FHWA will not use the 10-year payback rule as the basis to demand
such repayment, as there is no longer statutory authority for such a
requirement.
II. Administrative Procedure Act
Under the Administrative Procedure Act (APA), the requirement for
prior notice and an opportunity for public comment does not apply when
the agency, for good cause, finds that those procedure are
``impracticable, unnecessary, or contrary to the public interest.'' See
5 U.S.C. 553(b)(B). The FHWA finds that notice and an opportunity for
public comment are unnecessary for this rulemaking because this
rulemaking because the legal provisions underlying the rule are no
longer operative and the regulation is unenforceable. Therefore, FHWA
finds good cause to issue this final rule without notice and an
opportunity for public comment.
Furthermore, under the APA, there must be at least thirty days
between publication of a substantive rule and its effective date except
``as otherwise provided by the agency for good cause and published with
the rule.'' See 5 U.S.C. 553(d)(3). For similar reasons as above,
because FHWA is rescinding a legally inoperative requirement, a period
of 30 days between publication and effectiveness is unnecessary. The
requirements in 23 CFR 635.112(c)(2) are inoperative now and will be as
[[Page 22859]]
inoperative at publication as they will be thirty days later with or
without publication of this final rule. Therefore, FHWA finds good
cause to issue this final rule with immediate effectiveness.
III. Rulemaking Analyses and Notices
A. Executive Orders 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and DOT
Regulatory Policies and Procedures
This final rule does not meet the criteria of a ``significant
regulatory action'' under Executive Order (E.O.) 12866, as amended by
Executive Orders 14215 and 13563. Therefore, the Office of Management
and Budget (OMB) has not reviewed this rule under those orders.
This final rule rescinds regulations that are currently inoperative
for projects going forward. For that reason, FHWA does not believe
there are any costs to this rulemaking, as opposed to the deregulatory
benefit of removing unnecessary provisions from the CFR.
These 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, grants, user
fees, or loan programs. Consequently, a full regulatory evaluation is
not required.
B. Executive Order 14192 (Unleashing Prosperity Through Deregulation)
This final rule is not an E.O. 14192 regulatory action. This rule
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 impacts of any entitlements, grants, user fees, or loan
programs. Consequently, a full regulatory evaluation is not required.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) (as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996; 5 U.S.C. 601 et seq.), agencies must prepare and make available
for public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). No regulatory
flexibility analysis is required, however, if the head of an agency or
an appropriate designee certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
FHWA has concluded and hereby certifies that this rule will not have a
significant economic impact on a substantial number of small entities;
therefore, an analysis is not included. This final rule will only
remove regulations that are already inoperative for any future
projects.
D. Unfunded Mandates Reform Act
This final rule does not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, 109 Stat.
48) for State, local, and Tribal governments, or the private sector of
$100 million or more in any one year. Thus, the rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
E. Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in E.O. 13132. The FHWA has determined that this
action does not have sufficient federalism implications to warrant the
preparation of a federalism assessment. The FHWA has also determined
that this action does not preempt any State law or State regulation or
affect the States' ability to discharge traditional State governmental
functions.
F. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520), an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information, unless the
collection displays a currently valid Office of Management and Budget
(OMB) control number. This final rule is deregulatory and so would not
impose any additional information collection requirements.
G. National Environmental Policy Act
FHWA has analyzed this rule pursuant to the NEPA and has determined
that it is categorically excluded under 23 CFR 771.117(c)(2), which
applies to the promulgation of rules, regulations, and directives.
Categorically excluded actions meet the criteria for categorical
exclusions under 23 CFR 771.117(a) and normally do not require any
further NEPA approvals by FHWA. This rule will rescind a legally
inoperative requirement. FHWA does not anticipate any adverse
environmental impacts from this rule, and no unusual circumstances are
present under 23 CFR 771.117(b).
H. Executive Order 13175 (Tribal Consultation)
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes. FHWA has assessed the impact
of this final rule on Indian tribes and determined that this rule would
not have tribal implications that require consultation under Executive
Order 13175.
I. Regulation Identifier Number
A 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 the spring and fall of each
year. The RIN contained in the heading of this document can be used to
cross reference this action with the Unified Agenda.
J. Rulemaking Summary, 5 U.S.C. 553(b)(4)
As required by 5 U.S.C. 553(b)(4), a summary of this rule can be
found at <a href="http://regulations.gov">regulations.gov</a>, under the docket number.
List of Subjects in 23 CFR Part 630
Government contracts, Grant programs--transportation, Highways and
roads, Project agreement procedures.
Issued in Washington, DC, under authority delegated in 49 CFR
1.85.
Gloria M. Shepherd,
Executive Director, Federal Highway Administration.
For the reasons stated in the preamble, FHWA amends 23 CFR part 630
as set forth below:
PART 630--PRECONSTRUCTION PROCEDURES
0
1. The authority citation for part 630 continues to read as follows:
Authority: 23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a);
Sec. 1110, 1501, and 1503 of Pub. L. 109-59, 119 Stat. 1144; Pub. L.
105-178, 112 Stat. 193; Pub. L. 104-59, 109 Stat. 582; Pub. L. 97-
424, 96 Stat. 2106; Pub. L. 90-495, 82 Stat. 828; Pub. L. 85-767, 72
Stat. 896; Pub. L. 84-627, 70 Stat. 380; 23 CFR 1.32 and 49 CFR 1.81
and 1.85, and Pub.
[[Page 22860]]
L. 112-141, 126 Stat. 405, sections 1303 and 1405.
Sec. 630.112 [Amended]
0
2. Amend Sec. 630.112 by removing and reserving paragraph (c)(2).
[FR Doc. 2025-09736 Filed 5-27-25; 4:15 pm]
BILLING CODE 4910-22-P
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