[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Rules and Regulations]
[Pages 5715-5717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01583]



Federal Highway Administration

23 CFR Part 635

[FHWA Docket No. FHWA-2012-0098]
RIN 2125-AF47

Construction and Maintenance--Culvert Pipe Selection

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Final rule.


SUMMARY: Section 1525 of the Moving Ahead for Progress in the 21st 
Century Act (MAP-21) requires the Secretary of Transportation to modify 
FHWA regulations to ensure that States shall have the autonomy to 
determine culvert and storm sewer material types to be included in the 
construction of a project on a Federal-aid highway. This final rule is 
intended to implement this legislative requirement.

DATES: This rule is effective February 27, 2013.

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, 
1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 
8 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal 


Electronic Access and Filing

    This document may be viewed online through the Federal eRulemaking 
portal at http://www.regulations.gov. Retrieval help and guidelines are 
available on the Web site. It is available 24 hours each day, 365 days 
a year. 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.gpo.gov/fdsys.


    Under the ``Administrative Procedure Act'' (5 U.S.C. 553(b)), an 
agency may waive the normal notice and comment procedure if it finds, 
for good cause, that it would be impracticable, unnecessary, or 
contrary to the public interest. The FHWA finds that notice and comment 
for this rule is unnecessary because it implements a congressional 
mandate to amend 23 CFR 635.411 to allow States to choose culvert and 
storm sewer material type. The regulatory amendments in this final rule 
are based upon the statutory language and FHWA does not anticipate 
receiving meaningful comments to alter the regulation given the 
explicit mandate. Accordingly, FHWA finds good cause under 5 U.S.C. 
553(b)(3)(B) to waive notice and opportunity for comment.

Regulatory History

    The ``General Material Requirements,'' found in 23 CFR part 635 
subpart D, supports competitive bidding principles in 23 U.S.C. 112 
with certain requirements and procedures relating to product and 
material selection and use on Federal-aid highway projects.
    Securing competition in the area of culvert pipe material selection 
has been a concern of FHWA since the 1960s. In an internal Bureau of 
Public Roads (now FHWA) Memorandum issued October 7, 1963, the Bureau 
of Public Roads addressed the issue of culvert selection and in general 
product selection in writing:

    * * * a State's desire to select only one type of pipe for 
bidding purposes on the basis that such selection will favor State 
and local public interests cannot be accepted by Public Roads.

    This Memorandum further states,

    Except where otherwise dictated by engineering evaluations of 
individual site conditions, there is no basic disadvantage in 
specifying all acceptable alternate types and either calling for 
competitive bids on them or permitting the successful bidder to name 
the type he will furnish. Even when it is indicated that one type 
might receive lower bid prices, competitive bidding of the one type 
with other acceptable types could result in lower contract prices.

    Through a revision to Policy & Procedure Memorandum 21-6.3 dated 
October 3, 1972, the FHWA included a table entitled ``Summary of 
Acceptable Criteria for Specifying Types of Culvert Pipes.'' On 
September 30, 1974, the table was included in the CFR as an appendix to 
23 CFR 635.117 (39 FR 35152). According to Sec.  635.117(d), as in 
effect in 1974, Appendix A

    * * * sets forth the FHWA requirements regarding the 
specification of alternate types of culvert pipes, and the number 
and types of such alternatives which must be set forth in the 
specifications for various types of drainage installations.

On September 10, 1976, this section was redesignated as 23 CFR 635.411 
(41 FR 36204) and remained unchanged until 2006, though the market had 
changed to the extent that Appendix A no longer adequately encompassed 
the universe of available alternatives.
    Section 5514 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Pub. L. 
109.59; August 10, 2005), titled ``Competition for Specification of 
Alternative Types of Culvert Pipes,'' required 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 for other 
construction materials. To implement this provision, the FHWA issued a 
final rule on November 15, 2006 (71 FR 66450), that deleted Appendix A 
from the CFR.

MAP-21 Legislative Provision

    On July 6, 2012, President Obama signed the Moving Ahead for 
Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126 
Stat. 405. Section 1525 of MAP-21, ``State Autonomy for Culvert Pipe 
Selection,'' requires the Secretary of Transportation, within 180 days 
of the date of enactment of MAP-21 (October 1, 2012) to modify section 
635.411 of title 23 CFR, to ensure that States shall have the autonomy 
to determine culvert and storm sewer material types to be included in 
the construction of a project on a Federal-aid highway. The use of the 
word ``autonomy'' in this section gives the State transportation 
departments (State DOTs) and other direct recipients the sole authority 
and discretion to make a decision regarding culvert and storm sewer 
material types without any input or approval from the FHWA. As a 
result, a State DOT may choose to exercise its autonomy regarding 
culvert and storm sewer type selection to either:
    (a) Include all material types deemed acceptable as a result of 
engineering and economic analysis, or
    (b) Restrict the pool of available culvert and storm sewer material 
types to those which the State DOT would select.
    Although section 1525 gives the States the autonomy to determine 
culvert and storm sewer material types, section 1525 does not relieve 
the States of compliance with other applicable

[[Page 5716]]

Federal requirements, such as Buy America, culvert design standards in 
23 CFR part 625, and the restriction against the use of patented and 
proprietary products in 23 CFR 635.411. Also, while a State may choose 
to specify only one type of material, the State may not specify only 
one specific product among several of the same material type that is 
chosen unless otherwise permitted to do so under section 635.411. Also, 
with respect to design standards, the specified type would have to 
conform to engineering design standards such as structural load, 
hydraulic capacity, corrosion resistance, etc., and would have to fit 
into the natural and constructed environment. These culvert design 
standards are encompassed in the various standards found in 23 CFR part 


23 CFR 635.411

    This final rule amends subsection 635.411 to add a paragraph (f) to 
grant autonomy to State DOTs regarding the selection of culvert and 
storm sewer material types to be included in Federal-aid highway 
construction projects. The language would not permit FHWA to limit 
Federal-aid participation in costs based on the culvert or storm sewer 
material type selected by the State DOT. However, the State DOTs' use 
of culvert and storm sewer material shall otherwise comply with all 
applicable Federal requirements, such as the provisions regarding the 
use of patented and proprietary products set forth in this section as 
well as the design standards set forth in 23 CFR part 625.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory 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, and 
within the meaning of the U.S. Department of Transportation's 
regulatory policies and procedures. Since this rulemaking implements a 
congressional mandate to merely allow States to choose culvert and 
storm sewer material type, and does not require or prohibit the use of 
a particular type of culvert and storm sewer material, the FHWA 
anticipates that the economic impact of this rulemaking would be 
minimal. The FHWA anticipates that this final rule will not adversely 
affect, in a material way, any sector of the economy. Additionally, 
this action complies with the principles of Executive Order 13563. In 
addition, these changes will not interfere with any action taken or 
planned by another agency and would not materially alter the budgetary 
impact of any entitlements, grants, user fees, or loan programs. 
Consequently, a full regulatory evaluation is not required.

Regulatory Flexibility Act

    Since FHWA finds good cause under 5 U.S.C. 553(b)(3)(B) to waive 
notice and opportunity for comment for this rule, the provisions of the 
Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) do not 
apply. However, the FHWA has evaluated the effects of this action on 
small entities and has determined that the action would not have a 
significant economic impact on a substantial number of small entities. 
The amendment addresses 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.

Unfunded Mandates Reform Act of 1995

    This final 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, in the aggregate, or by the private sector, 
of $148.1 million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. 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 a substantial direct effect or sufficient 
federalism implications on the States. The FHWA has also determined 
that this 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. Accordingly FHWA 
solicits comments on this issue.

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 for each collection of information they conduct, 
sponsor, or require through regulations. The FHWA has analyzed this 
final rule under the PRA and has determined that this rule does not 
contain collection of information requirements for the purposes of the 

National Environmental Policy Act

    The FHWA has analyzed this 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 action would not have any effect on the 
quality of the environment and meets the criteria for the categorical 
exclusion at 23 CFR 771.117(c)(20).

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this final rule under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights. The FHWA does not anticipate that this final rule 
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 rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. The FHWA 
certifies that this 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 action under Executive Order 13175, 

[[Page 5717]]

November 6, 2000, and believes that the 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. This final rule 
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)

    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 this is not a 
significant energy action under that order since it is not a 
significant regulatory action under Executive Order 12866 and 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

    Construction materials, Design-build, Grant programs, 
Transportation, Highways and roads, Culvert material types.

    Issued on: January 17, 2013.
Victor M. Mendez,
Federal Highway Administrator.

    In consideration of the foregoing, title 23, Code of Federal 
Regulations, part 635 is amended as follows:


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

    Authority: Sec. 1525 of Pub. L. 112-141, Sec. 1503 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 1.85(a)(1).

2. Amend Sec.  635.411 by adding paragraph (f) to read as follows:

Sec.  635.411  Material or product selection.

* * * * *
    (f) State transportation departments (State DOTs) shall have the 
autonomy to determine culvert and storm sewer material types to be 
included in the construction of a project on a Federal-aid highway.

[FR Doc. 2013-01583 Filed 1-25-13; 8:45 am]