[Federal Register Volume 68, Number 33 (Wednesday, February 19, 2003)]
[Rules and Regulations]
[Pages 7921-7922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3987]



Federal Highway Administration

23 CFR Part 636

[FHWA Docket No. FHWA-2000-7799]
RIN 2125-AE79

Design-Build Contracting

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Correction to final rule.


SUMMARY: This document corrects the final rule on design-build 
contracting published in the Federal Register on December 10, 2002 (67 
FR 75902). The FHWA is correcting a typographical error concerning the 
relative weight of evaluation factors other than cost or price.

EFFECTIVE DATE: The final rule is effective January 9, 2003.

FOR FURTHER INFORMATION CONTACT: For technical information: Mr. Gerald 
Yakowenko, Office of Program Administration (HIPA), (202) 366-1562. For 
legal information: Mr. Harold Aikens, Office of the Chief Counsel (HCC-
30), (202) 366-1373, Federal Highway Administration, 400 Seventh 
Street, SW., Washington, DC 20590-0001. Office hours are from 8 a.m. to 
4:30 p.m., e.t., Monday through Friday, except Federal holidays.


Electronic Access

    This document, the final rule, the NPRM, and all comments received 
by the U.S. Dockets Facility, Room PL-410, may be viewed through the 
Docket Management System (DMS) at http://dms.dot.gov. The DMS is 
available 24 hours each day, 365 days a year. Electronic submission and 
retrieval help and guidelines are available under the help section of 
this web site.
    An electronic copy of this document may be downloaded by using a 
computer, modem and suitable communication software from the Government 
Printing Office's Electronic Bulletin Board Service at (202) 512-1661.
    Internet users may reach the Office of the Federal Register's home 
page at: http://www.archives.gov and the Government Printing Office's 
Web site at: http://www.access.gpo.gov/nara.


    Section 1307 of the Transportation Equity Act for the 21st Century 
(TEA-21, Public Law 105-178, 112 Stat. 107 (1998)) amends 23 U.S.C. 112 
to allow the design-build contracting method after the FHWA promulgates 
a regulation prescribing the Secretary's approval criteria and 
procedures on qualified projects. The TEA-21 defined qualified projects 
as projects that comply with the criteria in this regulation and whose 
total costs are estimated to exceed: (1) $5 million for intelligent 
transportation system projects, and (2) $50 million for any other 
project. It also provides certain key requirements that the FHWA must 
address in the development of these regulations.
    On December 10, 2002, at 67 FR 75902, the FHWA published a final 
rule on Design-Build Contracting that implemented the regulations for 
design-build contracting as mandated by section 1307 of TEA-21. The 
regulations list the criteria and procedures that will be used by the 
FHWA in approving the use of design-build contracting by the State 
transportation departments. The regulation does not require the use of 
design-build contracting, but allows State transportation departments 
to use it as an optional technique in addition to traditional 
contracting methods.
    After publication of the final rule, we realized that Sec.  
636.211(b)(2)(i) and (b)(2)(iii) read word for word identical to say, 
``Significantly less important than cost or price.'' However, Sec.  
636.211(b)(2)(i) should read, ``Significantly more important than cost 
or price.'' This was stated clearly in the preamble to the final rule 
in the section-by-section analysis; however, when the rule language was 
typed in, both sections were identical, and the word ``less'' appeared 
in both sections. The FHWA is correcting Sec.  636.211(b)(2)(i) to 
replace the word ``less'' with the word ``more.''

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 
within the meaning of the U.S. Department of Transportation's 
regulatory policies and procedures because it is merely a correction of 
a minor mistake in the regulatory language. This correction will not 
adversely affect, in a material way, any section of the economy.
    In addition, this correction to the rule will not interfere with 
any action taken or planned by another agency and will not materially 
alter the budgetary impact of any entitlements, grants, user fees, or 
loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this action on small 
entities and has determined that the final rule will not have a 
significant economic impact on a substantial number of small entities 
and hereby certifies that this correction to the final rule will not 
have a significant economic impact on a substantial number of small 

[[Page 7922]]

Unfunded Mandates Reform Act of 1995

    This action will not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). This action will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year. (2 U.S.C. 1531 et 
seq.). This action makes a ministerial correction to the final rule 
that allows STDs to use a contracting method that has only been used in 
the Federal-aid highway program on an experimental basis to date.

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 
the FHWA has determined that this action would not have sufficient 
federalism implications to warrant the preparation of a Federal 
assessment. Nothing in this document directly preempts any State law or 
regulation or affects 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 the minor correction will not 
have substantial direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. The final rule does not 
address issues that are related to tribal operations. Therefore, a 
tribal summary impact statement 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 apply to this program.

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 action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. The final rule is not economically significant and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This action will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Action 
Concerning Regulation That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a significant 
energy action under that order because it is not a significant 
regulatory action under Executive Order 12866 and 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.

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. The FHWA has reviewed 
this rule and determined that it does not contain collection of 
information requirements for the purposes of the PRA.

National Environmental Policy Act

    The agency has analyzed this action for the purposes of the 
National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 
4321 et seq.), and has determined that this rule will 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 proposed action with 
the Unified Agenda.

List of Subjects in 23 CFR Part 636

    Design-build, Grant programs-transportation, Highways and roads.

    Issued on: February 13, 2003.
James A. Rowland,
Chief Counsel, Federal Highway Administration.

    In consideration of the foregoing, the FHWA amends title 23, Code 
of Federal Regulations, part 636, as follows:


    1. The authority citation for 23 CFR part 636 continues to read as 

    Authority: Sec. 1307 of Pub. L. 105-178, 112 Stat. 107: 23 
U.S.C. 110, 109, 112, 113, 114, 115, 119, 128, and 315; 49 CFR 

Sec.  636.211  [Corrected]

    2. Correct paragraph (b)(2)(i) of Sec.  636.211 to remove the word 
``less'' and replace it with the word ``more''.

[FR Doc. 03-3987 Filed 2-18-03; 8:45 am]