[Federal Register Volume 71, Number 73 (Monday, April 17, 2006)]
[Proposed Rules]
[Pages 19667-19669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-5651]



Federal Highway Administration

23 CFR Part 635

[FHWA Docket No. FHWA-FHWA-2006-23552]
RIN 2125-AF18

Construction and Maintenance

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.


SUMMARY: The FHWA proposes to revise certain provisions in 23 CFR part 
635 subpart D to address section 5514 of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU) that requires the FHWA to ensure that the States provide 
for competition with respect to the specification of alternative types 
of culvert pipes. This action is in addition to the FHWA's guidance 
memoranda previously issued on this subject.

DATES: Comments must be received on or before June 16, 2006.

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 20590-0001, or submit electronically at 
http://dmses.dot.gov/submit or fax comments to (202) 493-2251.
    Alternatively, comments may be submitted via the 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 self-addressed, stamped postcard or you may print the 
acknowledgment page that appears after submitting comments 
electronically. Anyone is able to search the electronic form on all 
documents 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, Pages 19477-78) or 
you may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Gerald Yakowenko, Office of 
Program Administration, (202) 366-1562 or Mr. Michael Harkins, Office 
of the Chief Counsel, (202) 366-4928, Federal Highway Administration, 
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 


Electronic Access

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dmses.dot.gov/submit. The DMS is 
available 24 hours each day, 365 days each year. Electronic submission 
and retrieval help and guidelines are available under the help section 
of the Web site. An electronic copy of this document may also be 
downloaded by using the Internet to reach the Office of the Federal 
Register's Home page at: http://www.archives.gov or the Government 
Printing Office's Web page at: http://www.access.gpo.gov/nara.


    On May 11, 2005, the FHWA issued a policy memorandum to clarify the 
interpretation of our material or product selection policy regarding 
culvert pipes. Titled ``Guidance on Pipe Selection,'' \1\ this 
memorandum stated that 23 CFR 635.411(d), Appendix A was not intended 
to limit or restrict the use of certain pipe materials in specific 
drainage installations, nor was it intended to prohibit the specifying 
of alternative materials when the appendix did not require it. The FHWA 
stated that it would consider further policy changes to clarify this 
issue following the enactment of reauthorization legislation.

    \1\ See memorandum titled: ``Guidance on Pipe Selection,'' dated 
May 11, 2005, which is available on the FHWA's home page: http://www.fhwa.dot.gov/programadmin/contracts/051105.cfm.

    On August 10, 2005, the President signed the SAFETEA-LU (Pub. L. 
109-59; Aug. 10, 2005). Section 5514 of the SAFETEA-LU titled 
``Competition for Specification of Alternative Types of Culvert 
Pipes,'' requires the Secretary of Transportation to ensure that States 
provide for competition with respect to the specification of 
alternative types of culvert pipes through requirements that are 
commensurate with competition requirements for other construction 
materials. This section requires the Secretary to accomplish this 
action not later than 180 days after the enactment of SAFETEA-LU (or by 
February 6, 2006).
    On October 6, 2005, the FHWA issued a memorandum titled ``SAFETEA-

[[Page 19668]]

Section 5514'' \2\ to reaffirm the May 11, 2005, memorandum and comply 
with the requirements of section 5514. In this memorandum, the FHWA 
indicated that it would consider this issue and other potential 
revisions to 23 CFR part 635 during a future rule making.

    \2\ See memorandum titled: ``SAFETEA-LU Section 5514,'' dated 
October 6, 2005, which is availale on the FHWA's home page: http://www.fhwa.dot.gov/programadmin/contracts/100605.cfm.

    In each of the above memoranda, we indicated that we would consider 
appropriate revisions to 23 CFR part 635 in a future rule making. 
Therefore, we are now proposing to amend 23 CFR 635.411 to implement 
these changes.

Proposed Changes

    The FHWA proposes to revise its regulation for material and product 
selection in 23 CFR 635.411.
    In Sec.  635.411, we propose to delete paragraph (d) and re-
designate paragraphs (e) and (f) as (d) and (e) respectively. We also 
propose to delete Appendix A to subpart D--``Summary of Acceptable 
Criteria for Specifying Types of Culvert Pipes'' in its entirety. 
Appendix A to subpart D of part 635 was officially incorporated into 
FHWA's regulations on September 30, 1974. Appendix A contained the 
requirements concerning the specification, number and types of culvert 
pipes specified on Federal-aid highway construction projects. These 
requirements were intended to encourage competition and lower the cost 
of culvert pipes by encouraging the consideration of alternate culvert 
pipe materials in certain drainage installations.
    The FHWA's policies in 23 CFR subpart D--General Material 
Requirements support the competitive bidding principles in Title 23 
U.S.C. 112 by providing for the broadest consideration of materials to 
encourage competition. Where alternative products are judged to be of 
satisfactory quality and equally acceptable on the basis of engineering 
and economic analysis, the FHWA requires equal consideration in the 
specification of materials. Therefore, to further implement the 
provisions of section 5514, and be consistent with the long-standing 
policy of ensuring the consideration of the largest number of 
appropriate alternatives that lead to the lowest overall life cycle 
cost, the FHWA is proposing to delete Appendix A to subpart D of 23 CFR 
part 635. This will eliminate the specific requirement for the 
consideration of alternative types of culverts for certain drainage 
installations. By doing so, the selection and specification of culvert 
types would be governed by the same regulatory policy for all other 
materials in 23 CFR 635.411 thus ensuring competition in the selection 
of pipes.

Rulemaking Analyses and Notices

    All comments received on or 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 the late comments, the FHWA will also continue to file in 
the docket relevant information that 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 preliminarily that this action would not be 
a significant regulatory action within the meaning of Executive Order 
12866, and within the meaning of the U.S. Department of 
Transportation's regulatory policies and procedures. We anticipate 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 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. Consequently, a full regulatory evaluation is not required.
    The proposed changes to the FHWA's Material or Product Selection 
policies are considered to be minor in nature. The proposed deletion of 
Appendix A to subpart D of 23 CFR part 635 eliminates the specific 
requirement for the consideration of alternative types of culverts for 
certain drainage installations. Culvert pipes will be subject to the 
same selection policies as all other highway materials and products.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), we have evaluated the effects of this action on small entities 
and have determined that the action would not have a significant 
economic impact on a substantial number of small entities. The proposed 
amendment addresses the obligation of Federal funds to States for 
Federal-aid highway projects. As such, it affects only States and 
States are not included in the definition of small entity set forth in 
5 U.S.C. 601. Therefore, the Regulatory Flexibility Act does not apply, 
and the FHWA certifies that the proposed 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, 
March 22, 1995), as it will not result in the expenditure by State, 
local, tribal governments, or by the private sector, of $120.7 million 
or more in any one year (2 U.S.C. 1532 et seq.). 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 affects on State, local, and tribal 
governments and the private sector.
    Additionally, the definition of ``Federal mandate'' in the Unfunded 
Mandates Reform Act excludes financial assistance of the type in which 
State, local, or tribal governments have authority to adjust their 
participation in the program in accordance with changes made in the 
program by the Federal Government. The Federal-aid highway program 
permits this type of flexibility.

Executive Order 13132 (Federalism)

    This proposed 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 proposed action would 
not have a substantial direct effect or sufficient federalism 
implications on the States. The FHWA has also determined that this 
proposed action would not preempt any State law or regulation or affect 
the States' ability to discharge traditional State governmental 

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.

[[Page 19669]]

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), the FHWA must obtain approval from the Office of Management and 
Budget (OMB) for each collection of information we conduct, sponsor, or 
require through regulations. The FHWA has determined that this proposal 
does not contain a collection of information requirement for purposes 
of the PRA.

National Environmental Policy Act

    The FHWA has analyzed this proposed action for the purpose of the 
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 
et seq.), and has determined that this proposed action would not have 
any effect on the quality of the environment.

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.

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 proposed 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 an 
environmental risk to health or safety that might disproportionately 
affect children.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed action under Executive Order 
13175, dated November 6, 2000, and believes that the proposed action 
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 laws. The proposed rulemaking 
addresses obligations of Federal funds to States for Federal-aid 
highway projects and would not impose any direct compliance 
requirements on Indian tribal governments. Therefore, a tribal summary 
impact statement is not required.

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 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 is not required.

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 number 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

    Grant programs--transportation, Highways and roads, Reporting and 
recordkeeping requirements.

    Issued on: April 11, 2006.
J. Richard Capka,
Acting Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend part 
635 of title 23, Code of Federal Regulations, as follows:


    1. Revise the authority citation for part 635 to read as follows:

    Authority: Sec. 5514 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).

Sec.  635.411  [Amended]

    2. Amend 23 CFR 635.411 by removing paragraph (d) and redesignating 
paragraphs (e) and (f) as (d) and (e) respectively.

Subpart D--[Amended]

    3. Amend 23 CFR Part 635, Subpart D by removing Appendix A to 
Subpart D.

 [FR Doc. E6-5651 Filed 4-14-06; 8:45 am]