04-3273. 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Through this final rule the FHWA will remove several regulations that have been superseded by legislation.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, [phone], or Mr. Michael Harkins, Office of the Chief Counsel, [phone], 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 [phone]. 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 L. 105-178, 112 Stat. 107, June 9, 1998, as amended) repealed former 23 U.S.C. 106(c), which contained the 15 percent limitation previously established for Federal-aid reimbursement of construction engineering costs.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. 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 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.

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]

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]

2. Remove and reserve part 140, subpart B.

PART 200—[AMENDED]

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.

§ 200.13

[Removed]

4. Remove § 200.13.

PART 630—[AMENDED]

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).

6. Revise § 630.203 to read as follows:

§ 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]

7. The authority citation for part 633 continues to read as follows:

Authority: 23 U.S.C. 114 and 315; 49 CFR 1.48.

§ 633.102

[Amended]

8. In § 633.102, remove and reserve paragraph (c).

Subpart C to Part 633—[Removed]

9. Remove subpart C to part 633 and Appendix A to subpart C of part 633.

PART 635—[AMENDED]

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)

11. Revise § 635.103 to read as follows:

§ 635.103

Applicability.

The policies, requirements, and procedures prescribed in this subpart shall apply to all Federal-aid highway projects.

12. Revise paragraph (b) of § 635.124 to read as follows:

§ 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.

* * * * *

13. Revise § 635.202 to read as follows:

§ 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).

14. Revise § 635.303 to read as follows:

§ 635.303

Applicability.

The provisions of this subpart are applicable to all Federal-aid highway construction projects.

15. Revise § 635.405 to read as follows:

§ 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]

16. Remove subpart E to part 635.

PART 640—[REMOVED]

17. Remove part 640.