58908 Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 

List of Subjects in 14 CFR Part 39 

Air transportation, Aircraft, Aviation 

safety, Safety. 

The Proposed Amendment 

Accordingly, under the authority 

delegated to me by the Administrator, 

the FAA proposes to amend 14 CFR part 

39 as follows: 

PART 39—AIRWORTHINESS 

DIRECTIVES 

1. The authority citation for part 39 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701. 

§ 39.13 [Amended] 

2. The FAA amends § 39.13 by adding 

the following new AD: 

Boeing: Docket No. FAA–2008–1070; 

Directorate Identifier 2008-NM–087–AD. 

Comments Due Date 

(a) We must receive comments by 

November 24, 2008. 

Affected ADs 

(b) None. 

Applicability 

(c) This AD applies to all Boeing Model 

737–100, –200, –200C, –300, –400, and –500 

series airplanes, certificated in any category. 

Unsafe Condition 

(d) This AD results from reports of broken 

retract actuator beams of the main landing 

gear (MLG) and the subsequent failure of the 

MLG to fully retract. We are issuing this AD 

to detect and correct broken retract actuator 

beams of the MLG, which could result in 

damage to the beam arm, hydraulic tubing, 

and flight control cables. Damage to the flight 

control cables could result in loss of control 

of the airplane. 

Compliance 

(e) Comply with this AD within the 

compliance times specified, unless already 

done. 

Inspection and Related Investigative and 

Corrective Actions/Overhaul 

(f) Except as provided by paragraphs (g) 

and (h) of this AD: At the applicable times 

specified in paragraph 1.E. of Boeing Service 

Bulletin 737–32A1355, Revision 2, dated 

March 5, 2008; inspect for damage of the 

retract actuator beam of the MLG and 

overhaul the retract actuator beam, as 

applicable, by doing all the applicable 

actions specified in the Accomplishment 

Instructions of the service bulletin. Do all 

applicable related investigative and 

corrective actions before further flight. 

Repeat the applicable inspection or overhaul 

thereafter at the applicable time specified in 

paragraph 1.E. of the service bulletin. 

Exceptions to Service Information 

(g) Where Boeing Service Bulletin 737– 

32A1355, Revision 2, dated March 5, 2008, 

specifies a compliance time after ‘‘* * * the 

date on this service bulletin,’’ this AD 

requires compliance within the specified 

compliance time after the effective date of 

this AD. 

(h) Boeing Service Bulletin 737–32A1355, 

Revision 2, dated March 5, 2008, specifies 

that the actions are for airplanes with new 

MLG retract actuator beams that have not 

been overhauled having P/N 65–46108–15 

and subsequent dash numbers, and new or 

overhauled MLG retract actuator beams 

having P/N 65–46108–14 and previous dash 

numbers; however, this AD is not limited to 

new or overhauled beams. This AD requires 

that the actions required by paragraph (f) of 

this AD be done on airplanes with any MLG 

retract actuator beam having those P/Ns. 

Alternative Methods of Compliance 

(AMOCs) 

(i)(1) The Manager, Seattle Aircraft 

Certification Office (ACO), FAA, ATTN: 

Nancy Marsh, Aerospace Engineer, Airframe 

Branch, ANM–120S, FAA, Seattle Aircraft 

Certification Office, 1601 Lind Avenue, SW., 

Renton, Washington 98057–3356; telephone 

(425) 917–6440; fax (425) 917–6590; has the 

authority to approve AMOCs for this AD, if 

requested using the procedures found in 14 

CFR 39.19. 

(2) To request a different method of 

compliance or a different compliance time 

for this AD, follow the procedures in 14 CFR 

39.19. Before using any approved AMOC on 

any airplane to which the AMOC applies, 

notify your appropriate principal inspector 

(PI) in the FAA Flight Standards District 

Office (FSDO), or lacking a PI, your local 

FSDO. 

(3) An AMOC that provides an acceptable 

level of safety may be used for any repair 

required by this AD, if it is approved by an 

Authorized Representative for the Boeing 

Commercial Airplanes Delegation Option 

Authorization Organization who has been 

authorized by the Manager, Seattle ACO, to 

make those findings. For a repair method to 

be approved the repair must meet the 

certification basis of the airplane and the 

approval must specifically refer to this AD. 

Issued in Renton, Washington, on 

September 26, 2008. 

Michael Kaszycki, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. E8–23828 Filed 10–7–08; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

23 CFR Parts 620, 635, 636, and 710 

[FHWA Docket No. FHWA–2008–0136] 

RIN 2125–AF29 

Fair Market Value and Design-Build 

Amendments 

AGENCY: Federal Highway 

Administration (FHWA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM); request for comments. 

SUMMARY: This NPRM proposes to 

amend FHWA regulations, to require 

State departments of transportation 

(DOT) and other public authorities to 

negotiate for and obtain fair market 

value as part of any concession 

agreement involving a facility acquired 

or constructed with Federal-aid 

highway funds. Additionally, this 

NPRM proposes to amend FHWA 

regulations to permit public agencies to 

compete against private entities for the 

right to obtain a concession agreement 

involving such facilities. Also, this 

notice proposes to amend the designbuild regulations to permit contracting 

agencies to incorporate unsuccessful 

offerors’ ideas into a design-build 

contract upon the acceptance of a 

stipend. 

DATES: Comments must be received on 

or before November 7, 2008. Late-filed 

comments will be considered to the 

extent practicable. 

ADDRESSES: Mail or hand deliver 

comments to the U.S. Department of 

Transportation, Dockets Management 

Facility, Room PL–401, 400 Seventh 

Street, SW., Washington, DC 20590, or 

submit electronically at http:// 

dms.dot.gov/submit or fax comments to 

(202) 493–2251. 

Alternatively, comments may be 

submitted to the Federal eRulemaking 

portal at http://www.regulations.gov. All 

comments should include the docket 

number that appears in the heading of 

this document. All comments received 

will be available for examination and 

copying at the above address from 9 

a.m. to 5 p.m., e.t., Monday through 

Friday, except Federal holidays. Those 

desiring notification of receipt of 

comments must include a selfaddressed, stamped postcard or you 

may print the acknowledgment page 

that appears after submitting comments 

electronically. Anyone is able to search 

the electronic form of all comments in 

any of our dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, or 

labor union). You may review DOT’s 

complete Privacy Act Statement in the 

Federal Register published on April 11, 

2000 (Volume 65, Number 70, Pages 

19477–78) or you may visit http:// 

dms.dot.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Marcus J. Lemon, Chief Counsel, Mr. 

Michael Harkins, Office of Chief 

Counsel, or Mr. Steve Rochlis, Office of 

Chief Counsel, (202) 366–0740, Federal 

Highway Administration, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590–0001. Office hours are from 7:45 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 58909 

a.m. to 4:15 p.m., e.t., Monday through 

Friday, except Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing 

You may submit or retrieve comments 

online through the Document 

Management System (DMS) at: http:// 

dms.dot.gov/submit. It is available 24 

hours each day, 365 days each year. 

Please follow the instructions online for 

more information and help. 

An electronic copy of this document 

may also be downloaded by accessing 

the Office of the Federal Register’s home 

page at: http://www.archives.gov and the 

Government Printing Office’s Web page 

at: http://www.access.gpo.gov/nara. 

Background 

In this NPRM, the FHWA is proposing 

to make changes to existing regulations 

for two reasons: (1) To clarify that fair 

market value must be negotiated for and 

received under a concession agreement 

in accordance with 23 U.S.C. 156, and 

(2) to amend the design-build 

regulations to allow contracting 

agencies to incorporate unsuccessful 

proposers’ ideas into a contract upon 

payment of a stipend. 

Fair Market Value 

In recent years, some State and local 

governments have successfully entered 

into concession agreements to provide 

for the long-term development, 

construction, operation and 

maintenance of a public highway. 

Under these agreements, a third-party 

concessionaire pays the government a 

large sum of money in return for the 

right to operate and collect revenues 

from the facility. Examples include the 

Chicago Skyway and the Indiana Toll 

Road. For the Chicago Skyway, the 

Skyway Concession Company, a joint 

venture between Cintra Concesiones de 

Infraestructuras de Transporte SA of 

Madrid, Spain (Cintra), and Macquarie 

Infrastructure Group of Australia 

(Macquarie) paid Chicago a $1.83 billion 

up-front payment for the right to operate 

the Skyway. For the Indiana Toll Road, 

the ITR Concession Company, also 

made up of Cintra and Macquarie, paid 

the State of Indiana $3.8 billion for the 

right to operate the Indiana Toll Road. 

Other forms of concession agreements 

involve the financing of specific 

infrastructure improvements to the 

facility in conjunction with the right to 

operate and collect tolls. An example 

includes the Capital Beltway HOT Lanes 

Project under which Fluor-Transurban 

will finance the majority of the total 

estimated $1.9 billion project costs to 

widen and construct new lanes on the 

Capital Beltway in Virginia in return for 

the right to operate and collect tolls on 

the facility for 75 years. 

Concession agreements are very 

important tools that State and local 

agencies may use to enhance their 

transportation program. By entering into 

a concession agreement, not only can 

the State accelerate an expensive and 

needed infrastructure improvement, but 

the State can, under certain statutory 

provisions, allocate its budgetary 

resources to other highway projects and 

use the proceeds from the concession 

payment to supplement its overall 

transportation program. Given these 

benefits, many States are beginning to 

view concession agreements as a vital 

and indispensable part of their 

transportation programs, given that 

traditional methods of taxing and 

spending have largely proven to be 

ineffective in addressing congestion, 

performance, reconstruction, and 

development issues. 

Current FHWA regulations do not 

contemplate the use of concession 

agreements. While 23 U.S.C. 156 

requires State and local agencies to 

charge fair market value for the sale, 

lease, or use of any real property 

acquired with funding made available 

under title 23, U.S.C., it excludes sales, 

leases, or uses for utility use and 

occupancy or for a title 23 eligible 

project at 23 CFR 710.403(d)(5). In the 

context of concession agreements, the 

FHWA is concerned that this broad 

exception for transportation projects 

could be construed to exempt 

concession agreements from the fair 

market value requirement. Moreover, 

FHWA regulations at 23 CFR 620.203(j) 

specifically provide that State DOTs 

need not charge a public agency for a 

relinquishment of a Federal-aid facility. 

In order to avoid a situation where a 

State or local agency enters into a 

transaction at less than fair market 

value, the FHWA proposes to amend its 

regulations. The FHWA does not believe 

that the transportation project exception 

in 23 U.S.C. 156 is intended to 

encompass proceeds received under a 

concession agreement. The plain 

language of the exception is ‘‘for a 

transportation project eligible for 

assistance made available under [title 

23].’’ While a concession agreement may 

provide for the construction of a title 23 

eligible project, the legal and 

administrative costs of the State to enter 

into a concession agreement itself is not 

a Federal-aid eligible cost. The 

concession terms under these 

agreements spell out the right to operate 

and collect revenues from the facility 

over an extended period of time, which 

also are not title 23 eligible. 

The Federal Government has a 

substantial interest in assuring that fair 

market value is received since 23 U.S.C. 

requires the Federal share of the 

proceeds from these transactions to be 

reinvested into the surface 

transportation system. The Federal 

Government’s interest in States attaining 

fair market value to be reinvested in the 

surface transportation system furthers 

interstate commerce, strengthens 

national defense and security, and 

improves the overall performance of the 

national Federal-aid highway system. 

Moreover, given that the substantial 

majority of these facilities were 

constructed with public tax dollars, the 

overall public interest is better served 

when the public is able to realize 

maximum return on its tax investment 

in the form of additional surface 

transportation improvements. 

Most concession agreements to date 

have been procured pursuant to a 

competitive process. Whenever the 

concession agreement is procured 

competitively, there is a high degree of 

probability that fair market value will be 

received. As such, these regulations 

create a presumption that fair market 

value is received whenever a highway 

agency procures a concession agreement 

through a competitive process. An 

exception may be made for situations 

where the highway agency can 

demonstrate that the process used 

resulted in fair market value. 

Additionally, these amended 

regulations would permit public 

agencies to submit proposals for 

concession agreements against private 

entities in an open competition. We are 

aware of instances where public 

agencies are willing to enter into a 

concession agreement with a State DOT. 

Examples include agreements between 

the Texas Department of Transportation 

(TxDOT) and the North Texas Turnpike 

Authority (NTTA) involving State 

Highway (SH) 121 and SH 161 in Texas. 

Rather than being strictly governmental 

in nature, these are commercial 

transactions with consideration being 

exchanged between the parties with 

arm’s length negotiations being 

conducted. The agreements include 

binding legal commitments to provide 

the concession payments, meet certain 

conditional and operational 

performance requirements, and comply 

with other legally enforceable 

requirements. 

In the case of SH 121, TxDOT 

originally sought private bids and, 

through a competitive process, selected 

a private developer’s bid of $2.8 billion. 

However, prior to accepting the bid, the 

Texas Legislature enacted a law 

mandating that local toll agencies, such 


dwashington3 on PRODPC61 with PROPOSALS
58910 Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 

1The VPPP requires toll revenue to be used first 

for the project’s operating costs. This has been 

interpreted to include the facility’s debt service, 

reasonable return on investment to a private party, 

and costs necessary for the proper operation and 

maintenance. 73 FR 53478 (2008). 

as NTTA, be given a right of first refusal. 

After conducting a market valuation 

analysis, as required by Texas State law, 

TxDOT awarded 50-year concession to 

NTTA for $3.3 billion. In the case of SH 

161, TxDOT awarded a 50-year 

concession to NTTA for $1.1 billion 

after conducting the required market 

valuation analysis. 

In these situations, TxDOT may have 

benefitted from conducting a 

competition. In fact, with respect to SH 

121, the Texas legislature originally 

directed that TxDOT open the bidding 

process to NTTA. Although the timing 

of the Texas legislature’s mandate was 

too late in the procurement process that 

had already been initiated for the 

project, FHWA regulations for Federalaid construction contracts prohibited 

even the option of a competition 

involving both public and private 

entities. By opening up the competitive 

process to public agencies, the changes 

in this proposed rule would provide 

States an opportunity to expand the 

range of potential bidders for concession 

agreements. However, the States still 

retain the option to award these 

agreements exclusively to public 

agencies in accordance with their own 

policy objectives provided the States 

can demonstrate to the FHWA that fair 

market value for the concession has 

been obtained. 

In addition to complying with 23 

U.S.C. 156, these regulations also ensure 

that these transactions comply with the 

revenue use restrictions under the 

Federal tolling provisions. The Federal 

tolling provisions include the general 

toll program at 23 U.S.C. 129; high 

occupancy toll (HOT) lanes at 23 U.S.C. 

166; the value pricing pilot program 

(VPPP) at section 1012(b) of the 

Intermodal Surface Transportation 

Efficiency Act (ISTEA), as amended by 

section 1216(a) of the Transportation 

Equity Act for the 21st Century (TEA– 

21) and section 1604(a) of the Safe, 

Accountable, Flexible, Efficient, 

Transportation Efficiency Act: A Legacy 

for Users (SAFETEA–LU); the Interstate 

System reconstruction and 

rehabilitation pilot program (ISRRPP) at 

section 1216(b) of TEA–21; the express 

lanes demonstration program at section 

1604(b) of SAFETEA–LU; and the 

Interstate System construction toll pilot 

program (ISCTPP) at section 1604(c) of 

SAFETEA–LU. Each of these programs 

require toll revenue to be used first (1) 

for debt service, (2) to provide a 

reasonable return on investment to any 

private party financing a project, and (3) 

for the costs that are necessary for the 

proper operation and maintenance of 

the facility.1 With the exception of the 

ISRRPP and ISCTPP, toll revenues in 

excess may be applied to other projects 

eligible for assistance under title 23, 

United States Code. 

The FHWA considers concession 

payments, which are substantively lease 

acquisition payments, to be included in 

the costs incurred by the concessionaire 

to operate the facility and operational 

costs for purposes of the toll revenue 

use restrictions under the Federal toll 

programs. However, the amount of the 

concession payment must be based on 

the market value of acquiring an interest 

in the facility. The concession amount 

may not be based exclusively on factors 

unrelated to the market value of the 

facility, such as State transportation 

program funding needs or shortfalls in 

other areas such as transit or bridges. 

This change would bring consistency 

with other pilot programs such as the 

ISRRPP, which require a similar 

showing of an arm’s length transaction. 

Otherwise, the concession payment is 

not a valid operating cost and simply 

becomes a means to create excess toll 

revenue. 

Design-Build 

The FHWA also proposes to amend 23 

CFR Part 636 to permit contracting 

agencies to incorporate unsuccessful 

offerors’ technical concepts into a 

contract or future solicitation upon the 

acceptance of a stipend by the 

unsuccessful offeror whose ideas the 

contracting agency intends to use. 

FHWA regulations currently permit 

contracting agencies to use unsuccessful 

offerors’ ideas upon acceptance of a 

stipend for other solicitations. However, 

current regulations do not permit 

contracting agencies to do so in the 

negotiations conducted with the 

winning offeror after source selection, 

but rather only allow such a transaction 

before contract execution. Although 

prohibited by current regulations, the 

FHWA has permitted States to use 

unsuccessful offeror’s ideas for other’s 

solicitations upon acceptance of a 

stipend after source selection through 

Special Experimental Project 14 (SEP– 

14). This practice has generally been 

well received and afforded more 

flexibility to contracting agencies in 

tailoring their projects to best suit the 

public interest. Therefore, we are 

proposing to amend 23 CFR Part 636 

accordingly to allow maximum design 

flexibility and ingenuity. 

Section-by-Section Analysis 

Section 620.203(b) 

This subsection would be amended to 

clarify that a concession agreement 

awarded to a public entity is not to be 

considered a relinquishment. As such, 

whenever a concession agreement is 

awarded to a public entity, the State 

would be required to negotiate for and 

charge fair market value. 

Section 635.112(e) 

This subsection would be amended to 

permit public agencies to compete 

against private entities for concession 

agreements. As proposed, the public 

entity could either submit a bid for itself 

or join a team with other public or 

private entities to submit a bid. 

Section 636.113 

This section would be amended by 

adding a new subsection to require 

contracting agencies to clearly state in 

their RFPs of their intention to 

incorporate an unsuccessful offeror’s 

ideas into the final contract with the 

selected design-builder upon acceptance 

of a stipend. 

Section 636.513 

This section would be amended to 

permit contracting agencies to conduct 

negotiations to incorporate an 

unsuccessful offeror’s ideas into the 

contract with the selected designbuilder. 

Section 710.405(d)(5) 

This section would be amended to 

clarify that concession agreements do 

not meet the transportation project 

exemption under 23 U.S.C. 156(a). 

Section 710.701 

This section would establish that the 

purpose of Subpart G is to prescribe the 

standards to ensure fair market value is 

received under concession agreements 

involving Federally funded highways. 

Section 710.703 

This section would establish the 

definitions that are applicable to 23 CFR 

Part 710 Subpart G. Fair market value, 

for purposes of this Subpart, is defined 

to be the price at which a highway 

agency is ready and willing to enter into 

a concession or a contractual agreement 

to lease a Federally funded highway on 

the open market and in an arm’s length 

transaction. The acquisition price of the 

facility should reflect the value that it is 

worth on the open market for a 

reasonable period of time to any willing, 

knowledgeable and able buyers. The 

value should include not only the 

market value of the land, but also the 


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Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 58911 

facility’s capital earning potential taking 

into account both any toll revenues that 

are expected to be collected and any 

additional ancillary income, such as 

parking fees, commercial revenue, and 

advertising. Also, in order to be 

considered fair market value, the 

transaction in which the agreement is 

negotiated and the price is established 

would be required to be an arm’s length 

transaction. In order to be considered an 

arm’s length transaction, the parties, 

including the public entities, would 

have to be able to act independently 

from each other and free from any 

conflicts of interest. 

Also, consistent with 23 U.S.C. 156, a 

Federally funded highway would be 

defined as any highway acquired with 

Federal assistance made available under 

title 23, United States Code. This 

definition would clarify that the phrase 

‘‘acquired with Federal assistance’’ 

applies not only to Federal assistance in 

the actual purchase of real property, but 

also to any capital expenditure or 

improvements including any fixtures 

located on any real property. Thus, a 

highway would be subject to these 

regulations if any title 23, United States 

Code, funds participated in the costs 

associated with the facility, as by way 

of example, costs incurred in design, 

construction or reconstruction of the 

facility. 

Section 710.705 

This section would provide that 

subpart G applies to all concession 

agreements involving Federally funded 

highways. 

Section 710.707 

This section would establish that fair 

market value must be received for any 

concession agreement involving a 

Federally funded highway. 

Section 710.709 

This section would set forth general 

requirements concerning how fair 

market value is to be determined. First, 

this section would provide that fair 

market value may be determined either 

on a best value basis or on the basis of 

the highest bid received. Whichever 

method the highway agency elects to 

use would have to be specified in the 

relevant solicitation documents. 

Second, this section would provide that 

the terms of the concession agreement 

must be legally binding and enforceable. 

This includes agreements between two 

public entities. Third, this section 

would establish a rule that any 

concession agreement procured through 

a fair and open competition is presumed 

to be fair market value. Fourth, if a 

highway agency does not wish procure 

the agreement through a competitive 

process, then the highway agency would 

have to demonstrate to the FHWA that 

the process used resulted in fair market 

value being received. Finally, this 

section would clarify that Parts 172, 

635, and 636, as applicable, must be 

followed whenever any Federal funds 

are to be used for a project under the 

concession agreement. 

Request for Comment 

The FHWA invites and requests 

comments on the proposed regulations 

contained in this NPRM. 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. In 

addition to late comments, the FHWA 

will also continue to file relevant 

information in the docket as it becomes 

available after the comment period 

closing date, and interested persons 

should continue to examine the docket 

for new material. A final rule may be 

published at any time after close of the 

comment period. 

Rulemaking Analyses and Notices 

Executive Order 12866 (Regulatory 

Planning and Review) and USDOT 

Regulatory Policies and Procedures 

The FHWA has determined 

preliminarily that this action would not 

be a significant regulatory action within 

the meaning of Executive Order 12866 

and would not be significant within the 

meaning of U.S. Department of 

Transportation regulatory policies and 

procedures. It is anticipated that the 

economic impact of this rulemaking 

would be minimal. These proposed 

changes would not adversely affect, in 

a material way, any sector of the 

economy. In addition, these changes 

would not interfere with any action 

taken or planned by another agency and 

would not materially alter the budgetary 

impact of any entitlements, grants, user 

fees, or loan programs. Consequently, a 

full regulatory evaluation is not 

required. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (Pub. L. 96–354, 5 U.S.C. 

60l–612) the FHWA has evaluated the 

effects of this proposed action on small 

entities and has determined that the 

proposed action would not have a 

significant economic impact on a 

substantial number of small entities. 

This proposed action does not affect any 

funding distributed under any of the 

program administered by the FHWA. It 

ensures that State and local 

governments comply with both 23 

U.S.C. 156 to receive fair market value 

and the Federal tolling provision listed 

above regarding operating expenses 

whenever a concession agreement is 

executed involving a Federally funded 

highway. For these reasons, the FHWA 

certifies that this action would not have 

a significant economic impact on a 

substantial number of small entities. 

Unfunded Mandates Reform Act of 1995 

This proposed rule would not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 109 Stat. 48). This 

proposed rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $128.1 million or more 

in any one year (2 U.S.C. 1532). Further, 

in compliance with the Unfunded 

Mandates Reform Act of 1995, the 

FHWA will evaluate any regulatory 

action that might be proposed in 

subsequent stages of the proceeding to 

assess the effects on State, local, tribal 

governments and the private sector. 

Executive Order 13132 (Federalism 

Assessment) 

This proposed action has been 

analyzed in accordance with the 

principles and criteria contained in 

Executive Order 13132, and the FHWA 

has determined preliminarily that this 

proposed action would not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

assessment. The FHWA has also 

determined that this proposed action 

would not preempt any State law or 

State regulation or affect the States’ 

ability to discharge traditional State 

governmental functions. 

Executive Order 13211 (Energy Effects) 

We have analyzed this action under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use, dated May 18, 

2001. We have determined that it is not 

a significant energy action under that 

order since it 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 12372 

(Intergovernmental Review) 

Catalog of Federal Domestic 

Assistance Program Number 20.205, 

Highway Planning and Construction. 

The regulations implementing Executive 


dwashington3 on PRODPC61 with PROPOSALS
58912 Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 

Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities apply to 

this program. Accordingly, the FHWA 

solicits comments on this issue. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501), Federal 

agencies must obtain approval from the 

Office of Management and Budget 

(OMB) for each collection of 

information they conduct, sponsor, or 

require through regulations. The FHWA 

has determined that this proposal does 

not contain collection of information 

requirements for the purposes of the 

PRA. 

Executive Order 12988 (Civil Justice 

Reform) 

This action meets 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. The FHWA 

certifies that this proposed action would 

not cause any environmental risk to 

health or safety that might 

disproportionately affect children. 

Executive Order 12630 (Taking of 

Private Property) 

The FHWA has analyzed this 

proposed rule under Executive Order 

12630, Governmental Actions and 

Interface with Constitutionally 

Protected Property Rights. The FHWA 

does not anticipate that this proposed 

action would affect a taking of private 

property or otherwise have taking 

implications under Executive Order 

12630. 

National Environmental Policy Act 

The agency has analyzed this 

proposed action for the purpose of the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321–4347) and has 

determined that this proposed 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 

23 CFR Part 620 

Grant programs—transportation, 

Highways and roads, Rights-of-way. 

23 CFR Part 635 

Construction and maintenance, Grant 

programs-transportation, Highways and 

roads, Reporting and recordkeeping 

requirements. 

23 CFR Part 636 

Design-build, Grant programs— 

transportation, Highways and roads. 

23 CFR Part 710 

Grant programs—transportation, 

Highways and roads, Real property 

acquisition, Rights-of-way, Reporting 

and recordkeeping requirements. 

Issued on: October 1, 2008. 

Thomas J. Madison, Jr., 

Federal Highway Administrator. 

In consideration of the foregoing, the 

FHWA amends chapter I of title 23, 

Code of Federal Regulations, as set forth 

below: 

PART 620—ENGINEERING 

1. The authority citation for part 620 

continues to read as follows: 

Authority: 23 U.S.C. 315 and 318; 49 CFR 

1.48, 23 CFR 1.32. 

2. Revise § 620.203(b) to read as 

follows: 

§ 620.203 Procedures. 

* * * * * 

(b) Other than a conveyance made as 

part of a concession agreement as 

defined in § 710.703 of this chapter, for 

purposes of this section, relinquishment 

is defined as the conveyance of a 

portion of a highway right-of-way or 

facility by a State highway agency 

(SHA) to another Government agency 

for highway use. 

* * * * * 

PART 635—CONSTRUCTION AND 

MAINTENANCE 

3. The authority citation for part 635 

continues to read as follows: 

Authority: Sec. 1503 of Pub. L. 109–59, 119 

Stat. 1144; 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). 

4. Revise § 635.112(e) to read as 

follows: 

§ 635.112 Advertising for bids and 

proposals. 

* * * * * 

(e) Except in the case of a concession 

agreement, as defined in § 710.703 of 

this chapter, no public agency shall be 

permitted to bid in competition or to 

enter into subcontracts with private 

contractors. 

* * * * * 

PART 636—DESIGN-BUILD 

CONTRACTING 

5. The authority citation for part 636 

continues to read as follows: 

Authority: Sec. 1503 of Pub. L. 109–59, 119 

Stat. 1144; Sec. 1307 of Pub. L. 105–178, 112 

Stat. 107; 23 U.S.C. 101, 109, 112, 113, 114, 

115, 119, 128, and 315; 49 CFR 1.48(b). 

6. Amend § 636.113 by adding a new 

paragraph (c) to read as follows: 

§ 636.113 Bid opening and bid tabulations. 

* * * * * 

(c) If you intend to incorporate the 

ideas from unsuccessful offerors into the 

same contract on which they 

unsuccessfully submitted a proposal, 

you must clearly provide notice of your 

intent to do so in the RFP. 

7. Amend § 636.513 by designating 

the existing text as paragraph (a) and 

adding a new paragraph (b) to read as 

follows: 

§ 636.513 Are limited negotiations allowed 

prior to contract execution? 

* * * * * 

(b) Limited negotiations conducted 

under this section may include 

negotiations necessary to incorporate 

the ideas and concepts from 

unsuccessful offerors into the contract if 

a stipend is offered by the contracting 

agency and accepted by the 

unsuccessful offeror and if the 

requirements of § 636.113 are met. 

PART 710—RIGHT-OF-WAY AND REAL 

ESTATE 

8. The authority citation for part 710 

continues to read as follows: 

Authority: Sec. 1307, Pub. L. 105–178, 112 

Stat. 107; 23 U.S.C. 101(a), 107, 108, 111, 

114, 133, 142(f), 156, 204, 210, 308, 315, 317, 

and 323; 42 U.S.C. 2000d et seq., 4633, 4651– 

4655; 49 CFR 1.48(b) and (cc), 18.31, and 

parts 21 and 24; 23 CFR 1.32. 

9. Amend 710.403(d)(5) to read as 

follows: 

§ 710.403 Management. 

(d) * * * 

(5) Use for transportation projects 

eligible for assistance under title 23 of 

the United States Code, except for 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 58913 

concession agreements as defined in 

§ 710.703. 

* * * * * 

10. Add new Subpart G to Part 710 to 

read as follows: 

Subpart G—Concession Agreements 

Sec. 

710.701 Purpose. 

710.703 Definitions. 

710.705 Applicability. 

710.707 Fair market value. 

710.709 Determination of fair market value. 

Authority: 23 U.S.C. 129,156, 166, 315; 

Pub. L. 102–240, section 1012(b); Pub. L. 

105–178, section 1216(b); Pub. L. 109–59, 

section 1604. 

§ 710.701 Purpose. 

The purpose of this subpart is to 

prescribe the standards that ensure fair 

market value is received by a highway 

agency under concession agreements 

involving Federally funded highways. 

§ 710.703 Definitions. 

As used in this subpart: 

(a) Best value means the proposal 

offering the most overall public benefits 

as determined through an evaluation of 

the amount of the concession payment 

and other appropriate considerations. 

Such other appropriate considerations 

may include, but are not limited to, 

qualifications and experience of the 

concessionaire, expected quality of 

services to be provided, the history or 

track record of the concessionaire in 

providing the services, timelines for the 

delivery of services, performance 

standards, complexity of the services to 

be rendered, and revenue sharing. 

(b) Concession agreement means an 

agreement between a highway agency 

and a concessionaire under which the 

concessionaire is given the right to 

operate and collect revenues or fees for 

the use of a Federally funded highway 

in return for compensation to be paid to 

the highway agency. A concession 

agreement may include, but not be 

limited to, obligations concerning the 

development, design, construction, 

maintenance, operation, level of service, 

and/or capital improvements to a 

facility over the term of the agreement. 

(c) Concessionaire means any private 

or public entity that enters into a 

concession agreement with a highway 

agency. 

(d) Fair market value, for purposes of 

this Subpart, means the price at which 

a highway agency is ready and willing 

to enter into a concession agreement for 

a Federally funded highway on the open 

market for a reasonable period of time 

and in an arm’s length transaction to 

any willing, knowledgeable, and able 

buyer. 

(e) Federally funded highway means 

any highway (including highways, 

bridges, and tunnels) acquired with 

Federal assistance made available under 

title 23, United States Code. A highway 

shall be deemed to be acquired with 

Federal assistance if Federal assistance 

participated in either the purchase of 

any real property, or in any capital 

expenditures in any fixtures located on 

real property, within the right-of-way, 

including the highway and any 

structures located upon the property. 

(f) Highway agency means any State 

transportation department or other 

public authority with jurisdiction over a 

Federally funded highway. 

§ 710.705 Applicability. 

This subpart applies to all concession 

agreements involving Federally funded 

highways. 

§ 710.707 Fair market value. 

A highway agency shall receive fair 

market value for any concession 

agreement involving a Federally funded 

highway. 

§ 710.709 Determination of fair market 

value. 

(a) Fair market value may be 

determined either on a best value basis 

or upon the basis of highest bid 

received, as may be specified by the 

highway agency in the request for 

proposals or other relevant solicitation. 

(b) In order to be considered fair 

market value, the terms of the 

concession agreement must be both 

legally binding and enforceable. 

(c) Any concession agreement 

awarded pursuant to a competitive 

process shall be presumed to be fair 

market value. Any such competitive 

process shall afford all interested 

proposers an equal opportunity to 

submit a proposal for the concession 

agreement and shall comply with 

applicable State and local law. 

(d) If a concession agreement is not 

awarded pursuant to a competitive 

process, the highway agency must 

demonstrate to the FHWA that the 

process used resulted in fair market 

value being received. 

(e) Nothing in this subpart is intended 

to waive the requirements of Part 172, 

Part 635, and Part 636 of this chapter 

whenever any Federal-aid (including 

TIFIA assistance) is to be used for a 

project under the concession agreement. 

[FR Doc. E8–23729 Filed 10–7–08; 8:45 am] 

BILLING CODE 4910–22–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2008–0538; FRL–8726–8] 

Approval and Promulgation of 

Implementation Plans; State of 

Missouri 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to grant 

conditional approval of Missouri’s 

attainment demonstration State 

Implementation Plan (SIP) for the lead 

National Ambient Air Quality Standard 

(NAAQS) nonattainment area of 

Herculaneum, Missouri. The state 

asserts that it will adopt and submit 

specific enforceable measures to EPA by 

date certain, which will be no later than 

one year following any EPA approval of 

the plan, in order to meet the conditions 

described in this proposal. EPA 

proposes conditional approval because 

Missouri’s SIP submission provides 

substantial progress toward improving 

air quality, and Missouri has committed 

to submitting a SIP revision to meet all 

applicable requirements of the Clean Air 

Act. 

DATES: Comments must be received on 

or before November 7, 2008. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2008–0538, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: yoshimura.gwen@epa.gov. 

3. Mail, Hand Delivery or Courier: 

Gwen Yoshimura, Environmental 

Protection Agency, Air Planning and 

Development Branch, 901 North 5th 

Street, Kansas City, Kansas 66101. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2008– 

0538. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 


dwashington3 on PRODPC61 with PROPOSALS