[Federal Register Volume 75, Number 60 (Tuesday, March 30, 2010)]
[Notices]
[Pages 15767-15770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7053]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2010-0027]


Livability Initiative under Special Experimental Project No. 14

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice; request for comments.

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SUMMARY: The FHWA is requesting comments on a livability initiative to 
harmonize and coordinate the Federal-aid Highway Program with grant-in-
aid programs administered by the Department of Housing and Urban 
Development (HUD) and the Environmental Protection Agency (EPA). Under 
this initiative, the FHWA intends to utilize Special Experimental 
Project No. 14 (SEP-14) to permit, on a case-by-case basis, the 
application of HUD requirements on Federal-aid highway projects that 
may otherwise conflict with Federal-aid Highway Program requirements. 
One such requirement is contained in HUD's Section 3 Program, the goal 
of which is to provide training, employment and contracting 
opportunities to low and very low income persons residing within the 
metropolitan area (or nonmetropolitan county) in which the project is 
located and businesses that substantially employ such persons. The 
purpose of this proposed SEP-14 experiment is to further the goals of 
the DOT, HUD, and EPA partnership on sustainable communities.

DATES: Comments must be received on or before May 14, 2010.

ADDRESSES: All comments should include the docket number that appears 
in the heading of this document and may be submitted in the following 
ways:
     E-Gov Web site: http://www.regulations.gov. This Web site 
allows the public to enter comments on any Federal Register notice 
issued by

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any agency. Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: DOT Docket Management System: U.S. Department of 
Transportation, Docket Operations, M-30, West Building Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand Delivery: DOT Docket Management System; West Building 
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 
20590-0001 between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays.
    Instructions: You should identify the docket number at the 
beginning of your comments. If you submit your comments by mail, submit 
two copies. To receive confirmation that DOT received your comments, 
include a self-addressed stamped postcard.

    Note: Comments are posted without changes or edits to http://www.regulations.gov, including any personal information provided. 
All comments received will be available for examination and copying 
at the above address from 9 a.m. to 5 p.m., 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.). 
Persons making comments may review DOT's complete Privacy Act 
Statement in the Federal Register published on April 11, 2000 
(Volume 65, Number 70, Pages 19477-78).


FOR FURTHER INFORMATION CONTACT: For technical information: Mr. Gerald 
Yakowenko, Office of Program Administration (HIPA), (202) 366-1562. For 
legal information: Mr. Michael Harkins, Office of the Chief Counsel 
(HCC-30), (202) 366-4928, Federal Highway Administration, 1200 New 
Jersey Avenue, SE., Washington, DC 20590. Office hours are from 7:45 
a.m. to 4:15 p.m., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through http://www.regulations.gov, which 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 from the 
Office of the Federal Register's home page at http://www.archives.gov/federal_register and the Government Printing Office's Web page at 
http://www.gpoaccess.gov.

Background

    On March 18, 2009, DOT and HUD announced a new ``Sustainable 
Communities'' partnership to help American families gain better access 
to affordable housing, more transportation options, and lower 
transportation costs. On June 16, 2009, the EPA joined the DOT/HUD 
partnership, which helps ensure that transportation and housing goals 
are met while protecting the environment, promoting equitable 
development, and helping to address the challenges of climate change. 
The initiative underlying this partnership has a number of goals and 
principles including coordinating and leveraging Federal investment, 
increasing community revitalization and the efficiency of public works 
investments, expanding location- and energy-efficient housing choices 
for people of all incomes, and aligning DOT, HUD, and EPA policies and 
funding to remove barriers to collaboration. This initiative has been 
developed, in part, to develop measures that enhance the livability of 
communities, neighborhoods, and metropolitan areas, help communities 
attain livability goals and remove barriers to coordinated housing, 
transportation, and environmental protection investments. More 
information regarding the DOT, HUD, and EPA Sustainable Communities 
Partnership can be found at http://www.epa.gov/dced/2009-0616-epahuddot.htm.
    Recently, HUD and DOT recognized an opportunity for collaboration 
between our respective Agencies for the benefit of funding recipients 
who want to use certain HUD funds as a local match for FHWA grants-in-
aid. In exploring this opportunity, FHWA found that certain HUD 
requirements were potentially in conflict with requirements of the 
Federal-aid Highway Program. Specifically, HUD's Section 3 program at 
12 U.S.C. 1701u requires that recipients of funds from programs that 
provide certain housing and community development assistance ensure 
that opportunities for training and employment are given to low and 
very low income persons residing within the metropolitan area (or 
nonmetropolitan county) in which the project is located, to the 
greatest extent feasible, and that contracting opportunities generated 
by the expenditure of such funds be made available to businesses that 
substantially employ such persons, to the greatest extent feasible. 
Further, 12 U.S.C. 1701u(b) provides that it is the policy of the 
Congress to ensure employment and other economic opportunities 
generated by Federal financial assistance for housing and community 
development programs be directed to low and very low-income persons, 
particularly recipients of government assistance for housing.
    Under 42 U.S.C. 5305, HUD's economic opportunity requirements apply 
to, among other things, projects utilizing Community Development Block 
Grant (CDBG) funds for public infrastructure improvements. Further, 42 
U.S.C. 5305 provides that CDBG funds may be used as the non-Federal 
match required by other Federal grant-in-aid programs.
    The FHWA regulations at 23 CFR 635.117(b) and 636.107 prohibit 
contracting agencies from using geographic preferences on Federal-aid 
highway projects. The FHWA's regulations were enacted pursuant to 23 
U.S.C. 112(a), which provides that the Secretary of Transportation 
shall require such plans and specifications and such methods of bidding 
as shall be effective in securing competition, and 23 U.S.C. 112(b), 
which requires Federal-aid highway contracts be awarded by competitive 
bidding to the lowest responsive, responsible bidder.
    While it appears that CDBG- and FHWA-eligible projects would 
benefit from the use of joint funding, the potential conflict between 
HUD's economic opportunity requirements and FHWA's procurement 
requirements has been identified as a potential barrier to the 
efficient administration of joint FHWA/HUD funded projects and could 
inhibit the ability of State and local governments to utilize their HUD 
funding to support highway projects funded under Title 23.

SEP-14

    In 1988, a Transportation Research Board (TRB) task force, 
comprised of representatives from all segments of the highway industry, 
was formed to evaluate Innovative Contracting Practices. This TRB task 
force requested that the FHWA establish a project to evaluate and 
validate certain findings of the task force regarding innovative 
contracting practices, which are documented in Transportation Research 
Circular Number 386, titled, ``Innovative Contracting Practices,'' 
dated December 1991. In response, the FHWA initiated Special 
Experimental Project No. 14 (SEP-14) (http://fhwa.dot.gov/programadmin/contracts/021390.cfm).
    The SEP-14 strives to identify, evaluate, and document innovative 
contracting practices that have the

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potential to reduce the life cycle cost of projects, while at the same 
time, maintain product quality. Under SEP-14, the FHWA has the 
flexibility to experiment with innovative approaches to contracting. 
However, SEP-14 does not seek alternatives to the open competitive bid 
process.
    The innovative practices originally approved for evaluation were: 
cost-plus-time bidding, lane rental, design-build contracting, and 
warranty clauses. Forty-one States have used at least one of the 
innovative practices under SEP-14. Based on their collective 
experiences, FHWA decided that cost-plus-time bidding, lane rental, and 
warranty clauses were techniques suitable for use as non-experimental, 
operational practices and in 1995 these were made regular Federal-aid 
procedures. Additionally, design-build contracting in the Federal-aid 
Highway Program was originally conducted under SEP-14 until Congress 
modified 23 U.S.C. 112 in section 1307 of the Transportation Equity Act 
for the 21st Century (TEA-21) to permanently authorize the use of this 
contracting method. The SEP-14 continues to be used to test and 
evaluate experimental contracting practices.

Livability Features Under SEP-14

    The FHWA proposes to permit States to request SEP-14 approval for 
contracting practices intended to enhance livability and sustainability 
as part of any project that is to be jointly funded with HUD. In order 
to receive SEP-14 approval, States would need to follow the normal 
process and submit work plans to the appropriate FHWA division office.
    In particular, with respect to projects involving activities that 
otherwise meet the requirements for the use of FHWA and HUD funds, the 
FHWA proposes to permit States to experiment under SEP-14 by combining 
these funding sources for single, integrated projects that are procured 
and bid under a single contract while complying with training, 
employment and contracting requirements of HUD's Section 3, to the 
greatest extent feasible. The purpose of the experiment will be to 
gauge the extent to which HUD funding may be used for highway projects, 
the effects on competition whenever HUD's economic opportunity 
requirements are used on a joint FHWA/HUD project, and the extent to 
which the alignment of FHWA and HUD requirements further livability. As 
such, States would be asked to address at least four points in 
developing their work plans. First, States would be asked to describe 
how they will evaluate the effects of HUD's economic opportunity 
requirements on competitive bidding. In doing so, the States may wish 
to compare the bids received for the proposed project to prior projects 
of similar size and scope and in the same geographic area. Second, 
States would be asked to quantify and report on the expected economic 
benefits from advancing the joint FHWA/HUD project under a single 
contract.
    Third, States wishing to utilize SEP-14 to permit the use of HUD-
required hiring preferences on joint FHWA/HUD projects would be asked 
to identify the amount of HUD and FHWA funding involved in the project 
as well as the estimated total project cost. In order to qualify for a 
SEP-14 approval to use a geographic preference for a joint FHWA/HUD 
project, we propose that the amount of HUD funding involved with the 
project must be at least 10 percent of the amount of Title 23 eligible 
work, or with respect to projects financed with $100,000,000 or more in 
Federal funding in the aggregate, 5 percent of such eligible work. In 
any event, the FHWA may reject SEP-14 work plans for projects with only 
de minimis amount of HUD funding. Fourth, States would be asked to 
address in the work plan the degree to which the project enhances 
livability and sustainability.
    Livability investments are projects that not only deliver 
transportation benefits, but are also designed and planned in such a 
way that they have a positive impact on qualitative measures of 
community life. This element of long-term outcomes delivers benefits 
that are inherently difficult to measure. However, it is implicit to 
livability that its benefits are shared and therefore magnified by the 
number of potential users in the affected community. Therefore, we 
propose that descriptions of how projects enhance livability should 
include a description of the affected community and the scale of the 
project's impact. Factors relevant to whether a project improves the 
quality of the living and working environment of a community include:
     Will the project significantly enhance user mobility 
through the creation of more convenient transportation options for 
travelers?
     Will the project improve existing transportation choices 
by enhancing points of modal connectivity or by reducing congestion on 
existing modal assets?
     Will the project improve accessibility and transport 
services for economically disadvantaged populations, non-drivers, 
senior citizens, and persons with disabilities, or to make goods, 
commodities, and services more readily available to these groups?
     Is the project the result of a planning process which 
coordinated transportation and land-use planning decisions and 
encouraged community participation in the process?
    Sustainability refers to whether a project promotes a more 
environmentally sustainable transportation system. Factors relevant to 
sustainability include:
     Does the project improve energy efficiency, reduce 
dependence on oil and/or reduce greenhouse gas emissions? Applicants 
would be encouraged to provide quantitative information regarding 
expected reductions in emissions of CO2 or fuel consumption as a result 
of the project, or expected use of clean or alternative sources of 
energy. Projects that demonstrate a projected decrease in the movement 
of people or goods by less energy-efficient vehicles or systems would 
be given priority under this factor.
     Does the project maintain, protect or enhance the 
environment, as evidenced by its avoidance of adverse environmental 
impacts (for example, adverse impacts related to air quality, wetlands, 
and endangered species) and/or by its environmental benefits (for 
example, improved air quality, wetlands creation or improved habitat 
connectivity)?
     Does the project further the goals of the DOT, HUD, and 
EPA Sustainable Communities Partnership discussed above?
    The FHWA would only consider the possible use of HUD's economic 
opportunity requirements under SEP-14 in the context of a joint FHWA/
HUD project and only to the extent necessary to comply with applicable 
HUD statutes. The FHWA would not consider the use of such preferences 
unless necessary to meet the requirements of a Federal grant-in-aid 
program.

Request for Comments

    The FHWA requests comments on all aspects of this notice, including 
the FHWA's proposal to use SEP-14 to test contracting methods that 
enhance livability and sustainability in projects funded jointly with 
HUD. Additionally, the FHWA specifically requests comments on the use 
of SEP-14 to experiment with the use of geographic preferences in joint 
FHWA/HUD projects and the type of data the FHWA should receive from 
States in evaluating this SEP-14 experiment.

    Authority: 23 U.S.C. 315.


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    Issued on: March 22, 2010.
Victor M. Mendez,
Administrator.
[FR Doc. 2010-7053 Filed 3-29-10; 8:45 am]
BILLING CODE 4910-22-P