[Federal Register Volume 69, Number 30 (Friday, February 13, 2004)]
[Rules and Regulations]
[Pages 7116-7119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3273]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 140, 200, 630, 633, 635 and 640
RIN 2125-AF01
Contract Administration; Removal of Miscellaneous Obsolete or
Redundant Regulations
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Through this final rule the FHWA will remove several
regulations that have been superseded by legislation. We are removing
sections related to construction engineering costs, administration of
Direct Federal Construction Contracts, Interstate maintenance guidance,
and the Certification Acceptance program. The changes reflect
applicable provisions of title 23, United States Code, as amended by
legislation, and avoid any possible redundancy or conflict with other
regulations.
DATES: This rule is effective February 13, 2004.
FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Balis, Office of Program
Administration, HIPA-30, (202) 493-7302, or Mr. Michael Harkins, Office
of the Chief Counsel, (202) 366-4928, Federal Highway Administration,
400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are
from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this document may be downloaded by using a
computer, modem, and suitable communications software from the
Government Printing Office's Electronic Bulletin Board Service at (202)
512-1661. Internet users may reach the Office of the Federal Register's
Home page at: http://www.archives.gov and the Government Printing
Office's Web site at: http://www.gpo.gov.
Background
Over time various legislative or policy changes have made sections
of title 23 of the Code of Federal Regulations (CFR) obsolete. This
rulemaking will remove several regulations that have become obsolete or
redundant as a result of various surface transportation statutes and
other pertinent laws. Specifically, we believe that the following
regulations must be removed or amended as described in the following
section-by-section analysis.
Section-by-Section Discussion
Part 140 Subpart B, Construction Engineering Costs
Section 1305 of the Transportation Equity Act for the 21st Century
(TEA-21) (Pub. L. 105-178, 112 Stat. 107, June 9, 1998, as amended)
repealed former 23 U.S.C. 106(c), which contained the 15 percent
limitation previously established for Federal-aid reimbursement of
construction engineering costs. The limitation for Federal-aid
reimbursement of construction engineering costs was established by
section 1018(a) of the Intermodal Surface Transportation Efficiency Act
of 1991 (ISTEA) (Pub. L. 102-240, 105 Stat. 1914, December 18, 1991).
On July 22, 1993, the FHWA amended 23 CFR part 140 to conform with
section 1018 of the ISTEA. However, section 1305 of the TEA-21 amended
23 U.S.C. 106 by deleting 23 U.S.C. 106(c), ``Limitation on Estimates
for Construction Engineering,'' and substituting a new 23 U.S.C.
106(c), ``Assumption by States of Responsibilities of the Secretary.''
Therefore, 23 CFR 140, Subpart B, is revised to remove the limitation
on construction engineering costs.
However, this subpart is not necessary in order for a State to
recover these costs. We have determined that 23 CFR 1.11 allows for the
reimbursement of ``directly attributable and properly allocable''
engineering costs incurred by a State or local transportation
department for specific highway construction projects. For State or
local transportation departments that have chosen to include
construction engineering costs with other overhead costs, section
1212(a) of the TEA-21 amended 23 U.S.C. 302(b) to allow reimbursement
of indirect costs through a cost allocation plan approved by the FHWA.
Therefore we believe that 23 CFR part 140, Subpart B, is no longer
necessary, and may be removed without adversely impacting the ability
of the FHWA or the State or local transportation departments to carry
out the Federal-aid Highway Program (FAHP).
Part 200, Title VI Program and Related Statutes--Implementation and
Review Procedures
This subpart is revised to conform with the removal of Part 640,
Certification Acceptance. Section 200.13 is removed.
Part 630, Subpart B, Plans, Specifications and Estimates
This subpart is revised to conform with the removal of Part 640,
Certification Acceptance. Section 630.203 is revised.
Part 633, Subpart A, Federal-Aid Construction Contracts (Other Than
Appalachian Contracts)
This subpart is revised to conform with the removal of Part 640,
Certification Acceptance. Section 633.102(c) is removed and reserved.
Part 633, Subpart C, Direct Federal Construction Contracts
Prior to 1984, Federal procurement was done using one of two
procedures. The military followed the Defense Acquisition Regulations
(DAR) while civilian agencies followed the Federal Procurement
Regulations (FPR).
In the Office of Federal Procurement Policy Act of 1974 (Pub. L.
93-400, 88 Stat. 796, August 30, 1974), the Congress ordered that a
unified procurement system be developed for the Federal government. The
Federal Acquisition Regulations System (FARS) was implemented in 1984.
The FHWA is required to comply with FARS when the agency directly
procures highway-related design or construction services.
The FHWA issued 23 CFR 633, Subpart C, on June 24, 1974, at 39 FR
22418. This subpart deals primarily with supplementary language for the
Standard Form 19A (Labor Standards Provisions) which is an obsolete FPR
form. Labor Standards provisions are now covered by FARS clauses in 48
CFR 52.222. Additionally, the remaining requirements contained in
Subpart C are covered by current FARS clauses.
[[Page 7117]]
Therefore, 23 CFR part 633, subpart C, and Appendix A to subpart C are
removed to avoid any conflict with the FARS.
Part 635, Subpart A, Contract Procedures
This subpart is revised to conform with the removal of part 640,
Certification Acceptance. Sections 635.103 and 635.124 are amended.
Part 635, Subpart B, Force Account Construction
This subpart is revised to conform with the removal of part 640,
Certification Acceptance. Section 635.202 is amended.
Part 635, Subpart C, Physical Construction Authorization
This subpart is revised to conform with the removal of part 640,
Certification Acceptance. Section 635.303 is amended.
Part 635, Subpart D, General Material Requirements
This subpart is revised to conform with the removal of part 640,
Certification Acceptance. Section 635.405 is amended.
Part 635, Subpart E, Interstate Maintenance Guidelines
Section 1306(a) of the TEA-21 removed 23 U.S.C. 109(m) which
contained the requirement for Interstate maintenance guidelines.
Additionally, TEA-21, section 1107 revised 23 U.S.C. 119 to create the
Interstate Maintenance Program. Section 116 of the Surface
Transportation Assistance Act of 1978 (Pub. L. 95-599, 92 Stat. 2689),
codified as 23 U.S.C. 109(m) and 119(b), required the FHWA to issue
guidelines that would ensure the Interstate System was being maintained
appropriately. The legislation also required that we receive an annual
certification from each State transportation department that the
Interstate highways within the State were being maintained. However,
sections 1306(a) and 1107 of the TEA-21 eliminated the requirements for
both Interstate Maintenance guidelines and the annual certification;
therefore, 23 CFR part 635, subpart E, is now obsolete and is removed
from the regulations. The removal of the Interstate maintenance
guidelines and annual certification does not change the States'
responsibility for maintenance under 23 CFR 1.27, nor does it affect
the FHWA's role in ensuring that adequate maintenance is being
performed.
Part 640, Certification Acceptance
Section 1601 of the TEA-21 eliminated the certification acceptance
program implemented by this part; therefore, part 640 is removed from
the regulation without adverse impact to the FAHP. For conformity
within 23 CFR, references to the certification acceptance program are
removed from 23 CFR 200.13, 23 CFR 630.203, 23 CFR 633.102(c), 23 CFR
635.103, 635.124(b), 635.202, 635.303, and 635.405.
Rulemaking Analyses and Notices
Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an
agency may waive the prior notice and opportunity for public comment
requirements if it finds, for good cause, that the requirements are
impracticable, unnecessary, or contrary to the public interest. The
issuance of this rule without prior notice and opportunity for public
comment is based on the good cause exception in 5 U.S.C. 553(b)(3)(B).
Seeking public comment is unnecessary and contrary to the public
interest. This action is merely a ministerial action to remove obsolete
regulations from the CFR and the removal of these regulations will have
no substantive impact. Therefore, the FHWA does not anticipate
receiving meaningful comments on a proposal to remove these provisions
from the CFR. Prior notice is therefore unnecessary, and it would be
contrary to the public interest to delay unnecessarily this effort to
eliminate outdated rules. Furthermore, the FHWA believes that because
the underlying statutory authority for these regulations no longer
exist, we are eliminating any confusion that may be caused by their
existence in the CFR.
The APA also allows agencies, upon finding of good cause, to make a
rule effective immediately upon publication (5 U.S.C. 533(d)(3)). For
the same reasons discussed above, the agency believes good cause exists
for making this action effective immediately upon publication.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
We have determined that this action is not a significant regulatory
action within the meaning of Executive Order 12866 nor is it
significant within the meaning of Department of Transportation
regulatory policies and procedures. We anticipate that the economic
impact of this rulemaking will be minimal. The removal of 23 CFR part
140, subpart B, and 23 CFR part 633, subpart C, eliminates redundancy
and the removal of part 635, subpart E, and 23 CFR part 640 conforms
with TEA-21. For conformity within the regulations, obsolete references
to 23 CFR part 640 are removed from 23 CFR parts 200, 630, 633, and
635.
This final rule will not adversely affect, in a material way, any
sector of the economy. In addition, these changes will not interfere
with any action taken or planned by another agency and will not
materially alter the budgetary impact of any entitlements, grants, user
fees, or loan programs.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (RFA) of 1980 (5
U.S.C. 601-612), we have evaluated the effects of this action on small
entities and have determined that the action will not have a
significant economic impact on a substantial number of small entities.
Deletion of these regulations will eliminate redundancy and possible
conflicts within the regulations. Administration of Federal-aid highway
construction projects by small entities will not be affected by the
deletions. For these reasons, we certify that this action would not
have a significant economic impact on a substantial number of small
entities.
Unfunded Mandates Assessment
This rule does not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48,
March 22, 1995) as it will not result in a $100 million or more
expenditure (adjusted annually for inflation) in any one year by State,
local, and tribal governments, in the aggregate, or by the private
sector (2 U.S.C. 1532). This rule simply deletes obsolete and redundant
regulatory provisions.
Executive Order 13132, Federalism
The FHWA has analyzed this rule in accordance with the principles
and criteria of Executive Order 13132, dated August 4, 1999. We have
determined that this action will not have a substantial direct effect
on the States. Since this rule is intended only to remove obsolete or
redundant regulations from title 23 of the Code of Federal Regulations,
we have determined that this rule does not have federalism
implications.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
et. seq.), the FHWA must obtain approval from the Office of Management
and Budget (OMB) for each collection of information we conduct,
sponsor, or require through regulations. Since we do not seek to
collect any information
[[Page 7118]]
through this rule, the requirements of the PRA do not apply.
National Environmental Policy Act
We have analyzed this action for the purposes of the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.),
and have determined that it would not have any effect on the quality of
the environment.
Executive Order 13175 (Tribal Consultation)
We have analyzed this rule under Executive Order 13175, dated
November 6, 2000, and we believe that our action will not have
substantial direct effects on one or more Indian tribes; will not
impose substantial direct compliance costs on Indian tribal
governments; and will not preempt tribal laws. Therefore, a tribal
summary impact statement is not required.
Executive Order 13211 (Energy Effects)
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use dated May 18, 2001. We have determined that this
rule is not a significant energy action under that order since it is
not a significant regulatory action under Executive Order 12866 and is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. Therefore, a Statement of Energy Effects
is not required.
Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not economically significant and does not concern an environmental
risk to health or safety that might disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This rule will not result in a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
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.
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. You can use the RIN contained in the
heading of this document to cross reference this action with the
Unified Agenda.
List of Subjects
23 CFR Part 140
Bonds, Claims, Grant programs--transportation, Highways and roads,
Railroads.
23 CFR Part 200
Civil rights, Highways and roads.
23 CFR Part 630
Bonds, Government contracts, Grant programs--transportation,
Highways and roads, Reporting and recordkeeping requirements.
23 CFR Part 633
Government contracts, Grant programs--transportation, Highways and
roads.
23 CFR Part 635
Grant programs--transportation, Highways and roads, Reporting and
recordkeeping requirements.
23 CFR Part 640
Government procurement, Grant programs--transportation, Highways
and roads.
Issued on: February 6, 2004.
Mary E. Peters,
Federal Highway Administrator.
0
Under the authority of title 23, United States Code, and as discussed
in the preamble, the FHWA amends, title 23, Code of Federal
Regulations, parts 140, 200, 630, 633, 635, and 640 to read as follows:
PART 140--[AMENDED]
0
1. The authority citation for part 140 continues to read as follows:
Authority: 23 U.S.C. 101(e), 106, 109(e), 114(a), 120(g), 121,
122, 130, and 315; and 49 CFR 1.48(b).
Subpart B--[Removed and Reserved]
0
2. Remove and reserve part 140, subpart B.
PART 200--[AMENDED]
0
3. The authority citation for part 200 continues to read as follows:
Authority: Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d to 2000d-4; Title VIII of the Civil Rights Act of 1968, 42
U.S.C. 3601-3619; 42 U.S.C. 4601 to 4655; 23 U.S.C. 109(h); 23
U.S.C. 324.
Sec. 200.13 [Removed]
0
4. Remove Sec. 200.13.
PART 630--[AMENDED]
0
5. The authority citation for part 630 continues to read as follows:
Authority: 23 U.S.C. 106, 109, 315, 320, 402(a); 23 CFR 1.32;
and 49 CFR 1.48(b).
0
6. Revise Sec. 630.203 to read as follows:
Sec. 630.203 Applicability.
The provisions of this regulation apply to all highway construction
projects financed in whole or in part with Federal-aid highway funds
and to be undertaken by a State or political subdivision.
PART 633--[AMENDED]
0
7. The authority citation for part 633 continues to read as follows:
Authority: 23 U.S.C. 114 and 315; 49 CFR 1.48.
Sec. 633.102 [Amended]
0
8. In Sec. 633.102, remove and reserve paragraph (c).
Subpart C to Part 633--[Removed]
0
9. Remove subpart C to part 633 and Appendix A to subpart C of part
633.
PART 635--[AMENDED]
0
10. The authority citation for part 635 continues to read as follows:
Authority: 23 U.S.C. 101(note), 109, 112, 113, 114, 116, 119,
128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334, 4601 et seq.; Sec.
1041 (a), Pub. L. 102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR
1.48(b)
0
11. Revise Sec. 635.103 to read as follows:
Sec. 635.103 Applicability.
The policies, requirements, and procedures prescribed in this
subpart shall apply to all Federal-aid highway projects.
0
12. Revise paragraph (b) of Sec. 635.124 to read as follows:
[[Page 7119]]
Sec. 635.124 Participation in contract claim awards and settlements.
* * * * *
(b) The FHWA shall be made aware by the STD of the details of the
claim at an early stage so that coordination of efforts can be
satisfactorily accomplished. It is expected that STDs will diligently
pursue the satisfactory resolution of claims within a reasonable period
of time. Claims arising on exempt non-NHS projects should be processed
in accordance with the State's approved Stewardship Plan.
* * * * *
0
13. Revise Sec. 635.202 to read as follows:
Sec. 635.202 Applicability.
This subpart applies to all Federal-aid and other highway
construction projects financed in whole or in part with Federal funds
and to be constructed by a State transportation department or a
subdivision thereof in pursuant of agreements between any other State
transportation department and the Federal Highway Administration
(FHWA).
0
14. Revise Sec. 635.303 to read as follows:
Sec. 635.303 Applicability.
The provisions of this subpart are applicable to all Federal-aid
highway construction projects.
0
15. Revise Sec. 635.405 to read as follows:
Sec. 635.405 Applicability.
The requirements and procedures prescribed in this subpart apply to
all contracts relating to Federal-aid highway projects.
Subpart E to Part 635--[Removed]
0
16. Remove subpart E to part 635.
PART 640--[REMOVED]
0
17. Remove part 640.
[FR Doc. 04-3273 Filed 2-12-04; 8:45 am]
BILLING CODE 4910-22-P