[Federal Register Volume 75, Number 1 (Monday, January 4, 2010)]
[Rules and Regulations]
[Pages 46-48]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31106]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 635

[FHWA Docket No. FHWA-2009-0029]
RIN 2125-AF31


Discontinuance of Form FHWA-47

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule eliminates regulations which require 
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 eliminating this reporting requirement.

DATES: This rule is effective February 3, 2010.

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 retrieve a copy of the notice of proposed rulemaking 
(NPRM), comments submitted to the docket, and a copy of this final rule 
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).
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    \1\ See GAO-04-113R. (http://www.gao.gov/new.items/d04113r.pdf)
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    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 system is early in calendar year 
2010.
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    \2\ See Price Trends for Federal-aid Highway Construction 
(http://www.fhwa.dot.gov/programadmin/pricetrends.cfm).
    \3\ See Highway Statistics (http://www.fhwa.dot.gov/policy/ohpi/hss/hsspubs.cfm).
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    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 final rule, 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.
    On June 23, 2009, FHWA published in the Federal Register at 74 FR 
29634 a NPRM proposing to delete section 635.126 of title 23, Code of 
Federal Regulations, since the FHWA no longer intends to use the 
information submitted through Form FHWA-47. The FHWA received one 
comment to the docket from a member of the public in response to the 
NPRM. This commenter was against the discontinuance of Form FHWA-47 
because the commenter believes it would hold contractors accountable 
for their work, the timeline of their work, the products and materials 
that go into their work for safety reasons, and the cost of their work. 
The FHWA disagrees. While FHWA does not disagree that all contractors 
should be held accountable

[[Page 47]]

for their work, the purpose of the FHWA-47 was not to serve as a tool 
to reinforce accountability. Its purpose, as noted in the earlier 
background paragraph, was to provide information on material usage 
factors for all projects on the NHS that were $1 million or more. This 
information was used by vendors, private sector engineers, state DOTs, 
etc., for estimators to determine various trends for construction. 
However, the rate of submitting the forms declined over the years and 
thus rendered the data inaccurate. As noted above, Form FHWA-47 has not 
been collected by the FHWA since 2007, and the FHWA believes there is 
little utility in such a data collection activity. As such, this final 
rule adopts the NPRM without change.

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 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: December 21, 2009.
Victor M. Mendez,
Administrator.

0
In consideration of the foregoing, the FHWA amends chapter I of title 
23, Code of Federal Regulations, as set forth below:

[[Page 48]]

PART 635-CONSTRUCTION AND MAINTENANCE

0
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).


Sec.  635.126  [Removed and Reserved]

0
2. Remove and reserve Sec.  635.126.

[FR Doc. E9-31106 Filed 12-31-09; 8:45 am]
BILLING CODE 4910-22-P