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###### Department of Transportation

###### Federal Highway Administration

          - 23 CFR Part 635
          - [FHWA Docket No. FHWA-2009-0029]
          - RIN 2125-AF31

# AGENCY:

Federal Highway Administration (FHWA), DOT.

# ACTION:

Notice of proposed rulemaking; request for comments.

# SUMMARY:

                        This NPRM proposes to eliminate regulations which require                               ( print page 29635)                            contractors on National Highway System (NHS) projects of $1 million or more to submit Form FHWA-47. Since the FHWA no longer uses this information, the FHWA is proposing to eliminate this reporting requirement.                    

# DATES:

Comments must be received on or before July 23, 2009. 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, 1200 New Jersey Avenue, SE., Washington, DC 20590, or submit electronically at                         *http://www.regulations.gov*                         or fax comments to (202) 493-2251. 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., et., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or may print the acknowledgment page that appears after submitting comments electronically. Anyone is able to search the electronic form of all comments received into 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, labor union,                         *etc.*). You may review DOT's complete Privacy Act Statement in the                         **Federal Register**                         published on April 11, 2000 (Volume 65, Number 70, Page 19477-78), or you may visit                         *http://dms.dot.gov*.                    

# FOR FURTHER INFORMATION CONTACT:

Mr. Robert S. Wright, Office of Program Administration, (202) 366-4630; or Mr. Michael Harkins, Office of the Chief Counsel (202) 366-4928, Federal Highway Administration, 1200 New Jersey Ave., SE., 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:

## Electronic Access and Filing

                    You may submit or retrieve comments online through the Federal Rulemaking portal at:                     *http://www.regulations.gov*. Electronic submission and retrieval help and guidelines are available under the help section of the Web site. It is available 24 hours each day, 365 days each year. Please follow the instructions. An electronic copy of this document also may be downloaded from 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

                    During a 2003 Government Accountability Office (GAO) review of the States' highway construction costs, the GAO reviewed the FHWA's bid price data collection requirements. In a November 2003 report, GAO made recommendations to FHWA to review the usefulness and accuracy and/or under reporting of the bid price data collected.[1]                                          In response to GAO's review the FHWA Office of Infrastructure, Office of Program Administration, in collaboration with the Office of Transportation Policy Studies, hired a consultant to review the need, quality, and value of the current data collections system in partnership with the American Association of State Highway and Transportation Officials. This review also included data collected for material and labor prices and bid tabulation. As a result, FHWA has decided to discontinue the reporting requirements for the Form FHWA-45, Bid Price Data; Form FHWA-47, Statement of Materials and Labor Used by Contractors on Highway Construction Involving Federal Funds; and Form FHWA-810, Bid Tabulation Data. This decision is documented in a May 22, 2007, policy memorandum (                    *see http://www.fhwa.dot.gov/​federalaid/​052207.cfm*) as well as in a change to the Federal-Aid Policy Guide through Transmittal 38, dated July 3, 2007 (                    *see http://www.fhwa.dot.gov/​legsregs/​directives/​fapg/​1trans38.htm*).                

                    Form FHWA-45, Bid Price Data, was collected on NHS projects over $500,000. Form FHWA-45 served as a means to compute the highway construction bid price index, which is published in the document “Price Trends for Federal-aid Highway Construction.” [2]                                          The data were used in our “Highway Statistics” [3]                                          publication and by other outside sources. With the discontinuance of the Form FHWA-45, the future of FHWA's construction price trends reporting has been temporarily suspended. Currently, the FHWA has a contract for the development of a new highway construction cost indexing system, which will involve the use of the Oman System Bid Tabs data. This system utilizes construction price data extracted directly from State DOT data bases. Targeted completion for the new reporting system to be online is late FY 2009-early FY 2010.                

Form FHWA-810, Bid Tabulation Data, was collected on all NHS projects. The data from the Form FHWA-810 have been used to compute national summaries on the largest contract awards and contract size statistics. The data were also used to produce State-by-State summaries on contracts awards, number of bids and average number of bids.

Section 635.126 of title 23, Code of Federal Regulations, requires Form FHWA-47, Statement of Materials and Labor Used by Contractors on Highway Construction Involving Federal Funds, which is the subject of this NPRM, to be collected on all NHS projects over $1,000,000. Form FHWA-47 served as a means to collect data related to the quantities of materials, supplies and labor used for various types of highway construction. The data reported on this form were used primarily to compute usage factors for these various materials, supplies, and labor. These factors were used to determine the economic impacts of cuts or increases in the cost of Federal-aid highway construction. Since the FHWA no longer intends to use the information submitted through Form FHWA-47, the FHWA proposes to delete section 635.126 of title 23, Code of Federal Regulations.

## Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures

The FHWA has determined that this action would not be a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of U.S. Department of Transportation regulatory policies and procedures. The enacted change is not anticipated to adversely affect, in any material way, any sector of the economy. The FHWA expects that the enacted change will alleviate confusion and provide policy consistency and clarity at little or no additional expense to public agencies or the motoring public. In addition, the enacted change would not create a serious inconsistency with another agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Therefore, 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. 601-612), FHWA has evaluated the effects of this change on small entities and has determined that this action would not have a significant economic                           ( print page 29636)                        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, March 22, 1995). This proposed action would 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 1 year (2 U.S.C. 1532) period to comply with these changes.

## Executive Order 13132 (Federalism)

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this rulemaking will not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

## Executive Order 13175 (Tribal Consultation)

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that it would not have substantial direct effects on one or more Indian Tribes; would not impose substantial direct compliance costs on Indian Tribal governments; and would not preempt Tribal law. Therefore, a Tribal summary impact statement is not required.

## Executive Order 13211 (Energy Effects)

The FHWA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that it is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 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 Order 12372 regarding intergovernmental consultation on Federal programs and activities do apply to this program.

## Paperwork Reduction Act

                    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,                     *et seq.*), 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. Form FHWA-47 was previously approved under OMB Control Number 2125-0033 in July 1998, and was associated with 5 burden hours. We allowed this control number to expire because we no longer needed the information. Since this action eliminates a current reporting requirement and does not require any entity to write or submit new reports, the FHWA request for approval from OMB under the provisions of the PRA is not required.                

## 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)

The FHWA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not concern an environmental risk to health or safety that may disproportionately affect children.

## Executive Order 12630 (Taking of Private Property)

The FHWA does not anticipate that this action would effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

## National Environmental Policy Act

The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that it 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 Part 635

      - Contract Procedures
      - Force Account Construction
      - Physical Construction Authorization
      - General Material Requirements

Issued on: June 9, 2009.

Jeffrey F. Paniati,

Acting Deputy Administrator, Federal Highway Administration.

In consideration of the foregoing, the FHWA proposes to amend chapter I of title 23, Code of Federal Regulations, as set forth below:

# PART 635—CONSTRUCTION AND MAINTENANCE

1. The authority citation of part 635 continues to read as follows:

Authority:                            Sec. 1503 of Public Law 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), Public Law 102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR 1.48(b).                        

§ 635.126 

2. Remove and reserve § 635.126.

# Footnotes

1.                                                     *See*                         GAO-04-113R. (                        *http://www.gao.gov/​new.items/​d04113r.pdf*)                    
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2.                                                     *See*                         Price Trends for Federal-aid Highway Construction (                        *http://www.fhwa.dot.gov/​programadmin/​pricetrends.cfm*).                    
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3.                                                     *See*                         Highway Statistics (                        *http://www.fhwa.dot.gov/​policy/​ohpi/​hss/​hsspubs.cfm*).                    
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[FR Doc. E9-14669 Filed 6-22-09; 8:45 am]

BILLING CODE 4910-22-P