Federal Register / Vol. 61, No. 20 / Tuesday, January 30, 1996 / Proposed Rules 2973

until March 6, 1996. Comments are to be

identified with the docket number

found in brackets in the heading of this

document.

A summary of the workshop will be

included in a subsequent Federal

Register notice related to this

prescription drug labeling initiative.

Dated: January 22, 1996.

William K. Hubbard,

Associate Commissioner for Policy

Coordination.

[FR Doc. 96–1740 Filed 1–29–96; 8:45 am]

BILLING CODE 4160–01–F

DEPARTMENT OF STATE

Bureau of Economic and Business

Affairs

22 CFR Part 89

[Public Notice No. 2323]

Foreign Prohibitions on Longshore

Work by U.S. Nationals

AGENCY: Department of State.

ACTION: Proposed rule; Extension of

comment period.

SUMMARY: On November 24, 1995, the

Department of State issued a proposed

rulemaking regarding longshore work by

foreign nationals in U.S. ports and

waters. To assess the full effects of the

proposed rule, the Department is

extending the deadline for comments by

7 days, from January 26, 1996 to

February 2, 1996.

DATES: Interested parties are invited to

submit comments in triplicate no later

than February 2, 1996.

ADDRESSES: Comments may be mailed to

the Office of Maritime and Land

Transport (EB/TRA/MA), Room 5828,

Department of State, Washington, DC

20520–5816.

FOR FURTHER INFORMATION CONTACT:

Richard T. Miller, Office of Maritime

and Land Transport, Department of

State, (202) 647–6961.

SUPPLEMENTARY INFORMATION: On

November 24, 1995, the Department of

State issued a proposed rulemaking (60

FR 58026) updating the list of longshore

work by particular activity, of countries

where performance of such a particular

activity by crewmembers aboard United

States vessels is prohibited by law,

regulation or in practice in the country.

The crews of ships registered in or

owned by nationals of the countries on

the list may not perform the activities

enumerated on the list. On December

20, 1995, the Department extended the

comment period by thirty days in

response to requests from a number of

parties (60 FR 65609). To assess the full

effects of the proposed rule, the

Department is further extending the

deadline for comments by one week,

from January 26, 1996 to February 2,

1996.

(8 U.S.C. 1288, Pub. L. 010–649, 104 Stat,

4878)

Dated: January 25, 1996.

Daniel K. Tarullo,

Assistant Secretary Economic and Business

Affairs Department of State.

[FR Doc. 96–1821 Filed 1–26–96; 10:43 am]

BILLING CODE 4710–07–M

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.

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-ofway 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 selfaddressed, 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-bysection 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 § 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,
2974 Federal Register / Vol. 61, No. 20 / Tuesday, January 30, 1996 / Proposed Rules

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

§ 630.305, Agreement provisions

regarding overrun in contract time,

without modification to 23 CFR

635.127, definitions relevant to

§ 630.305, i.e., certification acceptance

project, Division Administrator, and

State highway agency, would be

removed from § 630.302.

Section 630.303 Policy

Section 630.303 would be combined

with § 630.304 to create a new

§ 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

§ 630.304 with § 630.303 to create a new

§ 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 § 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 FederalAid 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

§ 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 § 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

§ 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-ofway 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.
Federal Register / Vol. 61, No. 20 / Tuesday, January 30, 1996 / Proposed Rules 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: § 630.307(c)(3) for drug-free

workplace certification required by 49

CFR 29.630, § 630.307 (c)(4) for

suspension/debarment certification

required by 49 CFR 29.510, and

§ 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 § 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 drugfree 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 FederalAid 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 § 630.302(b),

(d), (h), (i), and (k). These definitions

apply to § 630.305, Agreement

provisions regarding overrun in contract

time. Due to the proposal to move

§ 630.305 to § 635.127, the definitions

contained in § 630.302(b), (d), (h), (i),

and (k) would be moved and inserted in

alphabetical order into the definitions
2976 Federal Register / Vol. 61, No. 20 / Tuesday, January 30, 1996 / Proposed Rules

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 § 630.305

as § 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

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.

BILLING CODE 4910–22–P
Federal Register / Vol. 61, No. 20 / Tuesday, January 30, 1996 / Proposed Rules 2977
2978 Federal Register / Vol. 61, No. 20 / Tuesday, January 30, 1996 / Proposed Rules

BILLING CODE 4910–22–C
Federal Register / Vol. 61, No. 20 / Tuesday, January 30, 1996 / Proposed Rules 2979

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 § 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.

§ 630.305 [Redesignated as § 635.127]

3. Section 630.305 is redesignated as

§ 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.

§ 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 Federalaid 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.

§ 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.
2980 Federal Register / Vol. 61, No. 20 / Tuesday, January 30, 1996 / Proposed Rules

(Approved by the Office of Management

and Budget under control number 2125–

0529)

§ 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.

§ 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-ofway. In the event that actual

construction of a road on this right-ofway 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;
Federal Register / Vol. 61, No. 20 / Tuesday, January 30, 1996 / Proposed Rules 2981

1The FHWA Division Office can provide the

latest information on the availability of this form.

(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 FormLLL,1 Disclosure Form to Report

Lobbying, in accordance with its

instructions;

(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 § 635.102 to read as follows:

§ 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.

§ 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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[FRL–5321–5]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; State of Massachusetts;

Change in National Policy Regarding

Applicability of Conformity

Requirements to Redesignation

Requests

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA proposes to approve

the State Implementation Plan (SIP)

revision submitted by the State of

Massachusetts to redesignate the Boston

area from nonattainment to attainment