[Federal Register Volume 61, Number 20 (Tuesday, January 30, 1996)]
[Proposed Rules]
[Pages 2973-2981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1156]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 630, 635 and 771
[FHWA Docket No. 96-3]
RIN 2125-AD58
Federal-Aid Project Agreement and Contract Procedures
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA proposes to amend its regulation on project
agreements. The Intermodal Surface Transportation Efficiency Act
(ISTEA) of 1991 modified the requirement that preliminary engineering
and right-of-way projects must be advanced to the construction stage
within certain time limits. Changes to the agreement provisions are
being proposed to reflect these adjustments. Additionally, procedures
would be added to provide flexibility in the format of the agreement
document and to permit the development of a single document to serve as
both the project authorization and project agreement document. Other
changes would be made to shorten the agreement document and to add
clarity to the process.
The FHWA also proposes to amend its regulation on contract
procedures by incorporating into it provisions regarding overruns in
contract time that would be removed from the project agreement
regulation. The FHWA believes this material more appropriately belongs
under contract procedures.
DATES: Written comments are due on or before April 1, 1996. Comments
received after that date will be considered to the extent practicable.
ADDRESSES: All written, signed comments should refer to the docket
number that appears at the top of this document and should be submitted
to Federal Highway Administration, Office of Chief Counsel, Room 4232,
HCC-10, 400 Seventh Street, SW., Washington, DC 20590. All comments and
suggestions received will be available for examination at the above
address between 8:30 a.m. and 3:30 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard.
FOR FURTHER INFORMATION CONTACT: Jack Wasley, Office of Engineering,
202-366-0450, or Wilbert Baccus, Office of the Chief Counsel, 202-366-
0780, FHWA, 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: Under the provisions of 23 U.S.C. 110, a
formal agreement between the State highway agency and the FHWA is
required for Federal-aid highway projects. This agreement, referred to
as the ``project agreement,'' is in essence a written contract between
the State and the Federal Government defining the extent of the work to
be undertaken, the State and the Federal shares of a project's cost,
and commitments concerning maintenance of the project.
The present regulation, 23 CFR 630, subpart C, provides further
requirements concerning the project agreement. It includes detailed
instructions on preparation of the project agreement, a standard form
for the agreement, and an assemblage of agreement provisions that are
part of the standard form. This is a longstanding regulation and no
significant changes have been made to it in several years.
It is the FHWA's desire to update and modify the existing
regulation to incorporate needed changes to reflect adjustments made by
the ISTEA, Pub. L. 102-240, 105 Stat. 1914, to streamline the project
agreement form and provisions, and to allow more versatility in its
use. The proposed changes are discussed in the following section-by-
section analysis.
Section-by-Section Analysis
Section 630.301 Purpose
The statement of purpose would be revised with minor changes for
clarity.
Section 630.302 Definitions
It is proposed to remove Sec. 630.302. The terms calendar day,
contract time, incentives/disincentives for early completion,
liquidated damages, and workday would be relocated to 23 CFR 635.102.
The terms bond issue project,
[[Page 2974]]
Federal-aid highway project, and highway planning and research project
have such commonly recognized meanings that they would be removed from
the regulation.
Since it is proposed to move Sec. 630.305, Agreement provisions
regarding overrun in contract time, without modification to 23 CFR
635.127, definitions relevant to Sec. 630.305, i.e., certification
acceptance project, Division Administrator, and State highway agency,
would be removed from Sec. 630.302.
Section 630.303 Policy
Section 630.303 would be combined with Sec. 630.304 to create a new
Sec. 630.303, Preparation of agreement. A State would continue to be
required to prepare a project agreement for each Federal-aid highway
and FHWA planning and research project. However, it is proposed to
eliminate Form PR-2 (Federal-Aid Project Agreement) and the
instructions on its preparation. Instead, a State would develop its own
form for the project agreement, provided it contains information
identified as necessary by the regulation.
Additionally, the current practice of allowing the project
agreement and project authorization (as required under 23 CFR 630,
subpart A) to be combined into one document would be incorporated into
the regulation. This section also would allow the use of electronic
forms and signatures as developed and implemented by the FHWA.
Although the Form PR-2 would be eliminated from the regulation, it
is anticipated a sample project agreement form would be added as
nonregulatory guidance in the Federal-Aid Policy Guide. For
illustrative purposes only, a copy of a sample project agreement is
shown in Figure 1.
Section 630.304 Preparation of Agreement
This section would be eliminated because of the proposal to combine
Sec. 630.304 with Sec. 630.303 to create a new Sec. 630.303 with the
section heading, Preparation of agreement. As discussed, the regulation
would no longer provide for use of a specific form. Instead, a State
would be allowed the flexibility to use whatever format is suitable to
provide the information required for a project agreement document.
Section 630.305 Agreement Provisions Regarding Overruns in Contract
Time
This section, which covers provisions regarding overruns in
contract time, would be relocated to 23 CFR 635.127, without
modification. Because these provisions deal with aspects of contract
administration, they would more appropriately be included in FHWA's
regulation on contract procedures, 23 CFR 635, subpart A.
Section 630.306 Modification of Original Agreement
It is proposed to revise this section and redesignate it as new
Sec. 630.305 with retention of the same section heading. A State would
continue to be required to prepare a modification to a project
agreement as changes occur. However, it is proposed to eliminate the
specified Form PR-2A (Modification of Federal-Aid Project Agreement).
Instead, a State could develop its own form for modification of project
agreement, provided it contains necessary information as identified by
the regulation.
Although the Form PR-2A would be eliminated from the regulation, it
is anticipated that a sample form for a modification of project
agreement would be added as nonregulatory guidance in FHWA's Federal-
Aid Policy Guide (available for copying and inspection as prescribed at
49 CFR Part 7, appendix D). For illustrative purposes only, a copy of a
sample modification of project agreement is shown in Figure 2.
Section 630.307 Agreement Provisions
A new section would be added identifying the provisions that must
be a part of each agreement. Currently, the Form PR-2 contains 20
boilerplate provisions. These provisions take up three pages and add
considerably to the bulk of the form. In addition, many provisions just
restate requirements of law that apply to Federal-aid projects in
general.
It is FHWA's desire to simplify the project agreement by
eliminating all the boilerplate provisions from the agreement itself.
The provisions that are necessary would be included in this section of
the regulation. The simplified project agreement would then, by
reference to this section, incorporate the provisions into each
agreement. The following discussion covers each of the existing 20
boilerplate provisions and describes what deletions or revisions are
being proposed.
Provision 1, Responsibility for Work, would be eliminated and
replaced with the general provision that now appears on the top front
of the sample project agreement form. (This would appear as
Sec. 630.307(a) in the proposed regulation.) Under this general
provision, the State agrees to comply with title 23, United States Code
(U.S.C.), the regulations implementing title 23, and the policies and
procedures established by the FHWA. In addition, language has been
added reflecting that States must also comply with all other applicable
Federal laws and regulations. This general provision is broad in scope
and there is little need for other provisions, such as, Provision 1
which covers only a limited feature of title 23, U.S.C.
Provision 2, Highway Planning and Research Project, would be
eliminated. Requirements concerning planning, research funding, and
projects are set forth in 23 CFR 420. In light of proposed new
Provision 1 and its broad scope, there is no need for Provision 2.
Provision 3, Project for Acquisition of Rights-of-Way, would be
retained (proposed Sec. 630.307(c)(1)) because it corresponds to a
requirement in 23 U.S.C. 108(a) that the agreement between the State
and the FHWA shall include a provision that construction shall begin
within a specified period of time. However, Provision 3 would be
modified to change the specified time period from 10 years to 20 years.
This reflects an amendment to 23 U.S.C. 108(a) resulting from passage
of section 1017(a) of the ISTEA.
Provision 4, Preliminary Engineering Projects, would be retained
(proposed Sec. 630.307(c)(2)) but modified. Prior to passage of the
ISTEA, this provision represented an administrative decision by the
FHWA to require repayment of Federal-aid highway funds authorized for
preliminary engineering if right-of-way acquisition or actual
construction had not begun within 5 years after authorization of the
preliminary engineering. The general concept of this provision is now
found in the statute; section 1016(a) of the ISTEA incorporated this
provision into 23 U.S.C. 102(b). One significant difference between the
statutory provision and the existing FHWA practice is that 10 years
instead of 5 years must pass before payback is required. Provision 4
would be modified to reflect the 10-year payback period.
Provision 5, Interstate System Project, would be eliminated.
Requirements for agreements relating to use of and access to rights-of-
way on the Interstate system are contained in 23 U.S.C. 111. In light
of proposed new Provision 1 and its broad scope, there is no need for
Provision 5.
Provision 6, Project for Construction in Advance of Apportionment,
would be eliminated. The requirement in Provision 6(a) is adequately
covered in 23 U.S.C. 115. Provision 6(b) is considered superfluous.
Provision 7, Stage Construction, would be eliminated. This is dated
policy that is no longer appropriate in many cases.
[[Page 2975]]
Provision 8, Bond Issue Projects, would be eliminated. Requirements
concerning bond projects are found in 23 U.S.C. 122 and the
implementing regulation 23 CFR 630, subpart G. In light of proposed new
Provision 1 and its broad scope, there would be no need for Provision
8.
Provision 9, Special Highway and Planning Research Project, would
be eliminated. Requirements on planning and research projects are set
forth in 23 CFR 420. In light of proposed new Provision 1 and its broad
scope, there would be no need for Provision 9.
Provision 10, Parking Regulation and Traffic Control, would be
eliminated. The State is ultimately responsible for any project
undertaken with the cooperation of another government agency (23 CFR
1.3) and for maintenance of the project (23 U.S.C. 116 and 23 CFR
1.27). Adequately maintaining a project includes the issue of parking
regulations and traffic control. In light of proposed new Provision 1
and its broad scope, there would be no need for Provision 10.
Provision 11, Signing and Marking, would be eliminated. The FHWA
believes that 23 U.S.C. 109(d) and the implementing regulations in 23
CFR 655 adequately address this issue. In light of proposed new
Provision 1 and its broad scope, there would be no need for Provision
11.
Provision 12, Maintenance, would be eliminated. Maintenance
requirements for Federal-aid highway projects are found in 23 U.S.C.
116. In light of proposed new Provision 1 and its broad scope, there
would be no need for Provision 12.
Provision 13, Liquidated Damages, would be eliminated. Requirements
concerning liquidated damages are contained in FHWA regulations
(presently in 23 CFR 630, subpart C, although this proposed rulemaking
would transfer these requirements to 23 CFR 635, subpart A). In light
of proposed new Provision 1 and its broad scope, there would be no need
for Provision 13.
Provision 14, Implementation of Clear Air Act and Federal Water
Pollution Control Act, would be eliminated. These are requirements of
Federal law and they apply to Federal-aid projects in general. The
existing reference in the project agreement to these other Federal laws
serves no legal purpose and is considered extraneous information that
could be removed from the form.
Provisions 15, 16 and 17, covering Equal Opportunity,
Nondiscrimination, and Minority Business Enterprises, would be
eliminated. These same requirements are expressed in 23 CFR 200, 230,
and 633 subpart A. The three provisions have been updated and
incorporated into the Form FHWA-1273, ``Required Contract Provisions,
Federal-Aid Construction Contracts.'' Subpart A of part 633 contains
the regulatory requirements for Form FHWA-1273. In light of proposed
new Provision 1 and its broad scope, there would be no need for
Provisions 15, 16 and 17.
Provision 18, Bicycle Transportation and Pedestrian Walkways, would
be eliminated. The requirements of this provision are found in 23
U.S.C. 217 and 23 CFR 652. In light of proposed new Provision 1 and its
broad scope, there would be no need for Provision 18.
Provision 19, Modified or Terminated Highway Projects, would be
eliminated. This provision merely highlights exceptions to the payback
requirements that are found in other existing regulations. In light of
proposed new Provision 1 and its broad scope, there would not be a need
for Provision 19.
Provision 20, Environmental Impact Mitigation Features, would be
removed from 23 CFR Part 630 and moved to 23 CFR Part 771. The
requirements of this provision ensure that State Highway agencies
comply with Federal mitigation standards as directed by the Council on
Environmental Quality (CEQ) regulations for implementing National
Environmental Policy Act (NEPA)(40 CFR 1505.3). The State Highway
agencies would then be required to comply with 23 CFR 771 through the
broad scope of proposed new Provision 1.
New provisions would be added to require that certain
certifications be given to the FHWA. These certifications would be:
Sec. 630.307(c)(3) for drug-free workplace certification required by 49
CFR 29.630, Sec. 630.307 (c)(4) for suspension/debarment certification
required by 49 CFR 29.510, and Sec. 630.307(c)(5) for lobbying
certification required by 49 CFR 20.110. States must provide these
certifications for each project. Placing language in the project
agreement as part of the general provisions is considered an effective
solution to providing a separate certification action for every
project.
The FHWA is considering whether specific requirements of applicable
Federal laws and regulations should be expressly covered in the
proposed regulation. Proposed Sec. 630.307(a) provides that the States
generally agree, in the project agreement process, to comply with all
other applicable Federal laws and regulations. This general provision
would include laws such as title VI of the 1964 Civil Rights Act. The
FHWA is considering whether reference should be made to specific laws,
such as title VI. One possible option, for example, would be to have
the regulation require certification to the FHWA by the State that it
has met the Standard DOT title VI Assurance requirements, just as the
proposed rule would require certification for a drug-free work-place or
lobbying. Another option would be to list on the revised project
agreement certain Federal laws, such as title VI, with which the State
agrees to comply by signing the agreement itself. Comment is solicited
on the need to specifically refer to other non-title 23 Federal laws
and regulations with which the States must comply, such as through a
statement incorporating those laws and regulations by reference or
listing them directly on the project agreement form.
Appendix A--Federal-Aid Project Agreement, Form PR-2
The existing Form PR-2 would be eliminated. No specific form for
the project agreement would be specified. Instead, a State would have
the flexibility to develop its own form provided it includes the
appropriate information. For illustrative purposes only, a copy of a
sample project agreement is shown in Figure 1.
Appendix B--Modification of Federal-Aid Project Agreement, Form PR-2A
The existing Form PR-2A would be eliminated. No specific form for
the modification of project agreement would be specified. Instead, a
State would have the flexibility to develop its own form provided it
includes the appropriate information. For illustrative purposes only, a
copy of a sample modification of project agreement is shown in Figure
2.
Appendix C--Federal-Aid Project Agreement (National Cooperative Highway
Research Program), Form PR-2.1
This form would be eliminated. It is no longer needed because the
greater flexibility for the project agreement process would allow for
planning and research project requirements.
Section 635.102 Definitions
This section would incorporate the definitions contained in
Sec. 630.302(b), (d), (h), (i), and (k). These definitions apply to
Sec. 630.305, Agreement provisions regarding overrun in contract time.
Due to the proposal to move Sec. 630.305 to Sec. 635.127, the
definitions contained in Sec. 630.302(b), (d), (h), (i), and (k) would
be moved and inserted in alphabetical order into the definitions
[[Page 2976]]
currently in this section. The term Secondary Road Plan would be
removed as this plan no longer exists.
Section 635.127 Agreement Provisions Regarding Overruns in Contract
Time
It is proposed to redesignate Sec. 630.305 as Sec. 635.127. The
text of the section would remain unchanged.
The following table is provided to assist the user in locating
regulatory paragraph changes proposed by this rulemaking:
------------------------------------------------------------------------
Old section New section
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630.301................................... 630.301.
630.302................................... Removed (except (b), (d),
(h), (i), and (k).
630.302(b)................................ 635.102.
630.302(d)................................ 635.102.
630.302(h)................................ 635.102.
630.302(i)................................ 635.102.
630.302(k)................................ 635.102.
630.303................................... 630.303.
630.304................................... 630.303.
630.305................................... 635.127.
630.306................................... 630.305.
Appendix A................................ Removed.
Prov. 1................................... Removed.
Prov. 2................................... Removed.
Prov. 3................................... 630.307(c)(1).
Prov. 4................................... 630.307(c)(2).
Prov. 5 through 19........................ Removed.
Prov. 20.................................. 771.109(d).
Appendix B................................ Removed.
Appendix C................................ Removed.
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Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable, but the FHWA may issue a final
rule at any time after the close of the comment period. In addition to
late comments, the FHWA will also continue to file relevant information
in the docket as it becomes available after the comment closing date,
and interested persons should continue to examine the docket for new
material.
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. The proposed amendments would
update the Federal-aid project agreement regulation to conform to
recent laws, regulations, or guidance and to clarify existing policies.
It is anticipated that the economic impact of this rulemaking will be
minimal; therefore, a full regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Based on the evaluation, the FHWA certifies that this action
will not have a significant economic impact on a substantial number of
small entities. The proposed amendments would clarify or simplify
procedures used by State highway agencies in accordance with existing
laws, regulations, or guidance.
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.
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
The information collection requirements associated with this
rulemaking in Sec. 630.303 have been approved by the Office of
Management and Budget under control number OMB 2125-0529 and expire
June 30, 1997. The information collection requirements associated with
this rulemaking would update and modify existing requirements to
reflect statutory changes to the project agreement process enacted by
the ISTEA, streamline the project agreement form and provisions, and
allow more versatility in its use.
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 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 Parts 630, 635, and 771
Government contracts, Grant programs--Transportation, Highways and
roads, Project agreement procedures.
In consideration of the foregoing, the FHWA proposes to amend Title
23, Code of Federal Regulations, by revising Parts 630, 635, and 771 as
set forth below.
Issued on: January 12, 1996.
Rodney E. Slater,
Federal Highway Administrator.
PART 630--PRECONSTRUCTION PROCEDURES
1. The authority citation for part 630 is revised to read as
follows and all other authority citations which appear throughout part
630 are removed:
Authority: 23 U.S.C. 105, 106, 109, 110, 115, 315, 320, and
402(a); 23 CFR 1.32; 49 CFR 1.48(b).
PART 635--[AMENDED]
2. The authority citation for part 635 is revised to read as
follows:
Authority: 23 U.S.C. 101(note), 109, 112, 113, 114, 116, 117,
119, 128, and 315; 31 U.S.C. 6506; 42 U.S.C. 3334, 4601 et seq.; 23
CFR 1.32; 49 CFR 1.48(b); sec. 1041(a), Pub. L. 102-240, 105 Stat.
1914.
Sec. 630.305 [Redesignated as Sec. 635.127]
3. Section 630.305 is redesignated as Sec. 635.127.
4. Part 630, subpart C is revised to read as follows:
Subpart C--Project Agreements
Sec.
630.301 Purpose.
630.303 Preparation of agreement.
630.305 Modification of original agreement.
630.307 Agreement provisions.
Sec. 630.301 Purpose.
The purpose of this subpart is to prescribe the procedures for the
execution of the project agreement required by 23 U.S.C. 110(a) for
Federal-aid projects, except for forest highway projects pursuant to 23
U.S.C. 204, and for non-highway public mass transit projects
administered by the Federal Transit Administration.
Sec. 630.303 Preparation of agreement.
(a) The State highway agency (SHA) shall prepare a project
agreement for each Federal-aid highway and FHWA planning and research
project eligible for Federal-aid funding.
(b) The SHA may develop the project agreement in a format
acceptable to both the SHA and the FHWA provided the following are
included:
(1) A description of the project location including State and
project termini;
(2) The Federal-aid project number;
(3) The phases of work covered by the agreement along with the
effective date of authorization for each phase;
(4) The total project cost and amount of Federal funds under
agreement;
(5) The Federal share expressed as either a pro rata percentage or
a lump sum;
(6) A statement that the State accepts and will comply with the
agreement provisions set forth in 23 CFR 630.307; and
(7) Signatures of officials from both the State and the FHWA and
date executed.
(c) The project agreement may be combined with the project
authorization required under 23 CFR 630, Subpart A.
(d) The SHA may use an electronic version of the agreement as
provided by the FHWA.
[[Page 2980]]
(Approved by the Office of Management and Budget under control number
2125-0529)
Sec. 630.305 Modification of original agreement.
(a) When changes are needed to the original project agreement, a
modification of agreement shall be prepared.
(b) The SHA may develop the modification of project agreement in a
format acceptable to both the SHA and the FHWA provided the following
are included:
(1) The Federal-aid project number and State;
(2) A sequential number identifying the modification;
(3) A reference to the date of the original project agreement to be
modified;
(4) The original total project cost and the original amount of
Federal funds under agreement;
(5) The revised total project cost and the revised amount of
Federal funds under agreement;
(6) The reason for the modifications; and,
(7) Signatures of officials from both the State and the FHWA and
date executed.
(c) The SHA may use an electronic version of the modification of
project agreement as provided by the FHWA.
Sec. 630.307 Agreement provisions.
(a) The State, through its highway agency, accepts and agrees to
comply with the applicable terms and conditions set forth in Title 23,
United States Code, Highways, the regulations issued pursuant thereto,
the policies and procedures promulgated by the FHWA relative to the
designated project in which the FHWA authorized certain work to
proceed, and all other applicable Federal laws and regulations.
(b) Federal funds obligated for the project must not exceed the
amount agreed to on the project agreement, the balance of the estimated
total cost being an obligation of the State. Such obligation of Federal
funds extends only to project costs incurred by the State after the
FHWA authorization to proceed with the project involving such costs.
(c) The State must stipulate that as a condition to payment of the
Federal funds obligated, it accepts and will comply with the following
applicable provisions:
(1) Project for acquisition of rights-of-way. In the event that
actual construction of a road on this right-of-way is not undertaken by
the close of the twentieth fiscal year following the fiscal year in
which the project is authorized, the SHA will repay to the FHWA the sum
or sums of Federal funds paid to the highway agency under the terms of
the agreement.
(2) Preliminary engineering project. In the event that right-of-way
acquisition for, or actual construction of, the road for which this
preliminary engineering is undertaken is not started by the close of
the tenth fiscal year following the fiscal year in which the project is
authorized, the SHA will repay to the FHWA the sum or sums of Federal
funds paid to the highway agency under the terms of the agreement.
(3) Drug-free workplace certification. The SHA agrees that it will
provide a drug-free workplace by:
(i) Publishing a statement notifying its employees that the
unlawful manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the SHA's workplace and
specifying the actions that will be taken against employees for
violation of such prohibition;
(ii) Establishing an ongoing drug-free awareness program to inform
its employees about--
(A) The dangers of drug abuse in the workplace;
(B) The SHA's policy of maintaining a drug-free workplace;
(C) Any available drug counseling, rehabilitation, and employment
assistance programs; and
(D) The penalties that may be imposed upon employees for drug abuse
violations occurring at the workplace;
(iii) Making it a requirement that each of its employees engaged in
the performance of the work covered by the project agreement be given a
copy of the statement required by paragraph (c)(3)(i) of this section;
(iv) Notifying its employees in the statement required by paragraph
(c)(3)(i) of this section that, as a condition of employment on work
covered by the project agreement, the employee will--
(A) Abide by the terms of the statement; and
(B) Notify the employer in writing of his/her conviction for a
violation of a criminal drug statute occurring in the workplace no
later than 5 calendar days after such conviction;
(v) Notifying the FHWA Division Administrator in writing, within 10
calendar days after receiving notice under paragraph (c)(3)(iv)(B) of
this section from an employee or otherwise receiving actual notice of
such conviction. Such notification shall include the employee's
position title and the identification number(s) of the project(s)
employed on;
(vi) Taking one of the following actions, within 30 calendar days
of receiving notice under paragraph (c)(3)(iv)(B), with respect to any
of its employees so convicted--
(A) Taking appropriate personnel action against such an employee,
up to and including termination, consistent with the requirements of
the Rehabilitation Act of 1973, Public Law 93-112, 87 Stat. 355, as
amended; or
(B) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purpose by
a Federal, State, or local health, law enforcement, or other
appropriate agency;
(vii) Making a good faith effort to continue to maintain a drug-
free workplace through implementation of paragraphs (c)(1) through
(c)(5) of this section.
(4) Suspension and debarment certification. The SHA agrees that its
principals engaged in the performance of the work covered by the
project agreement:
(i) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded by any Federal Department
or Agency;
(ii) Have not within a 3-year period preceding the agreement been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of
Federal or State antitrust statutes or commission of embezzlement,
theft, forgery, bribery, falsification or destruction of records,
making false statements, or receiving stolen property;
(iii) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph (c)(4)(ii) of
this section; and
(iv) Have not within a 3-year period preceding the agreement had
one or more public transactions (Federal, State or local) terminated
for cause or default.
(5) Lobbying certification. The SHA agrees that:
(i) No Federal appropriated funds have been paid or will be paid,
by or on behalf of the SHA, to any person for influencing or attempting
to influence an officer or employee of a Federal agency, a Member of
Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any contract, or
modification of any contract covered by the project agreement;
[[Page 2981]]
(ii) If any funds, other than Federal appropriated funds, have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any Federal agency, a Member of
Congress, or an employee of a Member of Congress in connection with
work covered by the project agreement, the SHA shall complete and
submit to the FHWA Division Administrator Standard Form- LLL,1
Disclosure Form to Report Lobbying, in accordance with its
instructions;
1The FHWA Division Office can provide the latest
information on the availability of this form.
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(iii) The language of this certification shall be included in the
award documents for all contracts and subcontracts, covered by the
project agreement, which exceed $100,000 and all recipients of such
contracts and subcontracts shall be required to certify and disclose
accordingly.
PART 635--CONSTRUCTION AND MAINTENANCE [AMENDED]
5. Subpart A of part 635 is amended by revising Sec. 635.102 to
read as follows:
Sec. 635.102 Definitions.
As used in this subpart:
Administrator means the Federal Highway Administrator.
Calendar day means each day shown on the calendar but, if another
definition is set forth in the State contract specifications, that
definition will apply.
Certification acceptance means the alternative procedure which may
be used for administering certain highway projects involving Federal
funds pursuant to 23 U.S.C. 117.
Contract time means the number of workdays or calendar days
specified in a contract for completion of the contract work. The term
includes authorized time extensions.
Division Administrator means the chief FHWA official assigned to
conduct business in a particular State. A State is as defined in 23
U.S.C. 101.
Force account means a basis of payment for the direct performance
of highway construction work with payment based on the actual cost of
labor, equipment, and materials furnished and consideration for
overhead and profit.
Formal approval means approval in writing or the electronic
transmission of such approval.
Incentive/disincentive for early completion as used in this
subpart, describes a contract provision which compensates the
contractor a certain amount of money for each day identified critical
work is completed ahead of schedule and assesses a deduction for each
day the contractor overruns the incentive/disincentive time. Its use is
primarily intended for those critical projects where traffic
inconvenience and delays are to be held to a minimum. The amounts are
based upon estimates of such items as traffic safety, traffic
maintenance, and road user delay costs.
Liquidated damages means the daily amount set forth in the contract
to be deducted from the contract price to cover additional costs
incurred by a State highway agency because of the contractor's failure
to complete the contract work within the number of calendar days or
workdays specified. The term may also mean the total of all daily
amounts deducted under the terms of a particular contract.
Local public agency means any city, county, township, municipality,
or other political subdivision that may be empowered to cooperate with
the State highway agency in highway matters.
Major change or major extra work means a change which will
significantly affect the cost of the project to the Federal Government
or alter the termini, character or scope of the work.
Materially unbalanced bid means a bid which generates a reasonable
doubt that award to the bidder submitting a mathematically unbalanced
bid will result in the lowest ultimate cost to the Federal Government.
Mathematically unbalanced bid means a bid containing lump sum or
unit bid items which do not reflect reasonable actual costs plus a
reasonable proportionate share of the bidder's anticipated profit,
overhead costs, and other indirect costs.
Public agency means any organization with administrative or
functional responsibilities which are directly or indirectly affiliated
with a governmental body of any nation, State, or local jurisdiction.
Publicly owned equipment means equipment previously purchased or
otherwise acquired by the public agency involved primarily for use in
its own operations.
Specialty items means work items identified in the contract which
are not normally associated with highway construction and require
highly specialized knowledge, abilities or equipment not ordinarily
available in the type of contracting organizations qualified and
expected to bid on the contract; in general these items are to be
limited to minor components of the overall contract.
State highway agency (SHA) means that department, commission,
board, or official of any State charged by its laws with the
responsibility for highway construction. The term ``State'' should be
considered equivalent to ``State highway agency'' if the context so
implies.
Workday means a calendar day during which construction operations
could proceed for a major part of a shift, normally excluding
Saturdays, Sundays, and State-recognized legal holidays.
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
6. The authority citation for part 771 is revised to read as
follows and all other authority citations which appear throughout part
771 are removed:
Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 109, 110, 128, 138
and 315; 49 U.S.C. 303(c), 5301(e), 5323, and 5324; 40 CFR part 1500
et seq.; 49 CFR 1.48(b) and 1.51.
Sec. 771.109 [Amended]
7. Section 771.109 is amended by adding paragraph (d) to read as
follows:
* * * * *
(d) When entering into Federal-aid project agreements pursuant to
23 U.S.C. 110, it shall be the responsibility of the State highway
agency to ensure that the project is constructed in accordance with and
incorporates all committed environmental impact mitigation measures
listed in approved environmental documents unless the State requests
and receives written Federal Highway Administration approval to modify
or delete such mitigation features.
[FR Doc. 96-1156 Filed 1-29-96; 8:45 am]
BILLING CODE 4910-22-P
