[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR630.106]

[Page 146-147]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 630--PRECONSTRUCTION PROCEDURES--Table of Contents
 
             Subpart A--Project Authorization and Agreements
 
Sec. 630.106  Authorization to proceed.

    (a)(1) The State transportation department (STD) must obtain an 
authorization to proceed from the FHWA before beginning work on any 
Federal-aid project. The STD may request an authorization to proceed in 
writing or by electronic mail for a project or a group of projects.
    (2) The FHWA will issue the authorization to proceed either through 
or after the execution of a formal project agreement with the State. The 
agreement can be executed only after applicable prerequisite 
requirements of Federal laws and implementing regulations and directives 
are satisfied. Except as provided in paragraphs (c)(1) through (c)(4) of 
this section, the FHWA will obligate Federal funds in the project or 
group of projects upon execution of the project agreement.
    (b) Federal funds shall not participate in costs incurred prior to 
the date of a project agreement except as provided by 23 CFR 1.9(b).
    (c) The execution of the project agreement shall be deemed a 
contractual obligation of the Federal government under 23 U.S.C. 106 and 
shall require that appropriate funds be available at the time of 
authorization for the agreed Federal share, either pro rata or lump sum, 
of the cost of eligible work to be incurred by the State except as 
follows:
    (1) Advance construction projects authorized under 23 U.S.C. 115.
    (2) Projects for preliminary studies for the portion of the 
preliminary engineering and right-of-way (ROW) phase(s) through the 
selection of a location.
    (3) Projects for ROW acquisition in hardship and protective buying 
situations through the selection of a particular location. This includes 
ROW acquisition within a potential highway corridor under consideration 
where necessary to preserve the corridor for future highway purposes. 
Authorization of work under this paragraph shall be in accord with the 
provisions of 23 CFR part 710.
    (4) In special cases where the Federal Highway Administrator 
determines it to be in the best interest of the Federal-aid highway 
program.
    (d) For projects authorized to proceed under paragraphs (c)(1) 
through (c)(4) of this section, the executed project agreement shall 
contain the following statement: ``Authorization to proceed is not a 
commitment or obligation to provide Federal funds for that portion of 
the undertaking not fully funded herein.''
    (e) For projects authorized under paragraphs (c)(2) and (c)(3) of 
this section, subsequent authorizations beyond the location stage shall 
not be given until appropriate available funds have been obligated to 
cover eligible costs of

[[Page 147]]

the work covered by the previous authorization.
    (f)(1) The Federal-aid share of eligible project costs shall be 
established at the time the project agreement is executed in one of the 
following manners:
    (i) Pro rata, with the agreement stating the Federal share as a 
specified percentage; or
    (ii) Lump sum, with the agreement stating that Federal funds are 
limited to a specified dollar amount not to exceed the legal pro rata.
    (2) The pro-rata or lump sum share may be adjusted before or shortly 
after contract award to reflect any substantive change in the bids 
received as compared to the STD's estimated cost of the project at the 
time of FHWA authorization, provided that Federal funds are available.
    (3) Federal participation is limited to the agreed Federal share of 
eligible costs actually incurred by the State, not to exceed the maximum 
permitted by enabling legislation.
    (g) The State may contribute more than the normal non-Federal share 
of title 23, U.S.C. projects. In general, financing proposals that 
result in only minimal amounts of Federal funds in projects should be 
avoided unless they are based on sound project management decisions.
    (h)(1) Donations of cash, land, material or services may be credited 
to the State's non-Federal share of the participating project work in 
accordance with title 23, U.S.C., and implementing regulations.
    (2) Contributions may not exceed the total costs incurred by the 
State on the project. Cash contributions from all sources plus the 
Federal funds may not exceed the total cost of the project.