[Code of Federal Regulations]

[Title 23, Volume 1]

[Revised as of April 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 23CFR630.106]



[Page 139-140]

 

                           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 and project monitoring.



    (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.

    (3) The State's request that Federal funds be obligated shall be 

supported by a documented cost estimate that is based on the State's 

best estimate of costs.

    (4) The State shall maintain a process to adjust project cost 

estimates. For example, the process would require a review of the 

project cost estimate when the bid is approved, a project phase is 

completed, a design change is approved, etc. Specifically, the State 

shall revise the Federal funds obligated within 90 days after it has 

determined that the estimated Federal share of project costs has 

decreased by $250,000 or more.

    (5) The State shall review, on a quarterly basis, inactive projects 

(for the purposes of this subpart an ``inactive project'' means a 

project for which no expenditures have been charged against Federal 

funds for the past 12 months) with unexpended Federal obligations and 

shall revise the Federal funds obligated for a project within 90 days to 

reflect the current cost estimate, based on the following criteria:

    (i) Projects inactive for the past 12 months with unexpended 

balances more than $500,000,

    (ii) Projects inactive for the past 24 months with unexpended 

balances of $50,000 to $500,000, and



[[Page 140]]



    (iii) Projects inactive for the past 36 months with unexpended 

balances less than $50,000.

    (6) If the State fails to comply with the requirements of paragraphs 

(a)(3), (4), or (5) of this section, then the FHWA shall revise the 

obligations or take such other action as authorized by 23 CFR 1.36. The 

FHWA shall advise the State of its proposed actions and provide the 

State with the opportunity to respond before actions are taken. The FHWA 

shall not adjust obligations without a State's consent during the August 

redistribution process, August 1 to September 30.

    (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 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.



[66 FR 23847, May 10, 2001, as amended at 71 FR 4995, Jan. 31, 2006]