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Code · REGISTER · 2007-08-14 · Federal Energy Regulatory Commission, DOE · Rules and Regulations

Rules and Regulations. Final rule

17,456 words·~79 min read·/register/2007/08/14/07-3959

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 3510-NK-M DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 2, 3c, 4, 5, 6, 8, 11, 16, 33, 35, 131, 153, 154, 157, 292, 300, 366, 375, 376, 380, and 385 [Docket No. RM07-7-000; Order No. 699] Conforming Changes Issued August 6, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Final rule. SUMMARY: The Commission is issuing this Final Rule to make minor changes to its regulations. This Final Rule revises a number of references that have become outdated for various reasons.
It also updates several provisions to conform to recent legislation and revises the Commission's delegations of authority both to allow the Secretary to refer complaint proceedings to the Commission's Dispute Resolution Service, and to organize better and clarify other delegations. DATES: *Effective Date:* The rule will become effective August 14, 2007. FOR FURTHER INFORMATION CONTACT: Wilbur Miller, Office of General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-8953. SUPPLEMENTARY INFORMATION: Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff. Final Rule I. Discussion 1. This Final Rule amends a number of sections of the Commission's regulations to revise outdated references to various Commission offices. An internal reorganization in 2003 resulted in functions previously carried out by the Offices of Pipeline Regulation and Electric Power Regulation being distributed between the Offices of Markets, Tariffs and Rates
(OMTR)and Energy Projects (OEP). In addition, the functions of the Office of Hydropower Licensing were moved to OEP. Since then, OMTR has been renamed the Office of Energy Markets and Reliability (OEMR). The Commission's regulations currently contain references to the three former offices, as well as several references to OMTR. This rulemaking changes these references to OEMR or OEP, as appropriate. 2. This Final Rule also revises the delegations to the Director of OEMR 1 contained in 18 CFR 375.307. The majority of these revisions are intended to organize better and to clarify those delegations rather than modify them. The revisions delete redundant language; revise language concerning electric, gas and oil filings to better ensure consistency in the delegations of authority; and reorganize the language by program. 1 The Director's delegations were recently revised to reflect the transfer of some functions to the Office of Enforcement. *Delegations of Authority* , 118 FERC ¶ 61,060 (2007). This Final Rule makes additional revisions. 3. In a few instances, OEMR's delegated authority has been expanded. In such cases, these authorities are intended to assist the Commission in processing routine, noncontroversial matters in an efficient manner. New section 375.307(a)(2) includes delegated authority to assist OEMR in implementing certain reliability provisions of Federal Power Act section 215, which were enacted by the Energy Policy Act of 2005. 2 New sections 375.307(a)(4)(iii) and (a)(6) also delegate to the Director of OEMR authority to assist in implementing the provisions of the Energy Policy Act of 2005. 3 New sections 375.307(a)(10)(iii) and
(iv)add delegated authority to act in routine matters involving natural gas pipeline rates and charges under section 311 of the Natural Gas Policy Act of 1978 4 that is similar to the authority delegated to the Director of OEMR to act on natural gas pipeline rates and charges under section 4 of the Natural Gas Act. New section 375.307(b)(2)(i) delegates authority to act on waiver requests for various forms, while new section 375.307(b)(3)(ii) delegates to the Director of OEMR authority to request further information relating to matters processed by OEMR. Finally, because new section 375.307(a)(4) includes authority to act on uncontested FERC-65A and FERC-65B filings, overlapping authority is being deleted from section 366.4. 2 Pub. L. No. 109-58, 1211, 119 Stat. 594, 982-83 (2005). 3 Id., 1253, 1275(b). 4 *See* 18 CFR 284.123. 4. The rule updates one of the standards of conduct for Commission employees to include a reference to a relevant provision in the Energy Policy Act of 2005. Current 18 CFR 3c.2(a), which prohibits Commission employees from disclosing nonpublic information, contains references to relevant provisions of the Federal Power Act and Natural Gas Act. The revision adds a reference to a similar statutory provision, section 1264(d) of the new Public Utility Holding Company Act of 2005, added by the Energy Policy Act, Pub. L. No. 109-58, § 1264(d), 119 Stat. 594, 974 (2005). 5. This rule also makes two changes to the delegations to the Secretary of the Commission contained in 18 CFR 375.302. The first amends § 375.302 to add a new paragraph (y), which delegates to the Secretary the authority to refer complaint proceedings to the Commission's Dispute Resolution Service (DRS). Under the new provision, the Secretary is authorized to direct DRS staff to contact the parties in any complaint proceeding subject to the Commission's jurisdiction so that DRS can assist the parties in determining whether use of an alternative dispute resolution
(ADR)process is appropriate to address matters raised in the complaint. 5 The Secretary is also authorized to establish a date by which DRS must report to the Commission whether an ADR process will be pursued by the parties. 5 Under the Commission's existing regulations, complainants are required to state, among other things, whether DRS, the Enforcement Hotline, tariff-based dispute resolution mechanisms, or other informal dispute resolution procedures have been used prior to the filing of the complaint and whether the complainant believes that use of an ADR process could successfully resolve the complaint. *See* 18 CFR 385.206(b)(9). 6. The second change to the Secretary's delegations, new paragraph (z), allows the Secretary to specify formatting requirements for documents submitted to the Commission on electronic media. Allowing the Secretary to do so, through instructions issued to the public and posted on the Commission's Web site, is more efficient and thus preferable to specifying formats in a regulation. Technological needs and capabilities change frequently. This revision will allow Commission staff to update formats without delay. 7. A minor change is being made to the Commission's regulations on recreational opportunities and development at licensed hydroelectric projects. The provision governing filing of Form No. 80 6 is being revised to require filing with the Commission rather than with a Regional Office. This will facilitate electronic filing of the form, which the Commission expects to implement in the near future. In addition, we are eliminating section 8.11(a)(3), which provides that the filer need only update a previously filed form rather than file a completely new form. This change similarly anticipates electronic filing, which will allow prior forms to be easily saved, stored and edited for resubmittal. 6 18 CFR 8.11. 8. The delegation to the Director of External Affairs to take necessary actions in connection with requests under the Freedom of Information Act
(FOIA)7 is being deleted. The delegation is unnecessary because the Commission's regulations implementing FOIA afford the Director the needed authority. 8 7 5 U.S.C. 552 (2006). 8 18 CFR 388.108. 9. A minor clarification is being made to allow the rejection of applications for certificates of public convenience and necessity within ten business days rather than ten calendar days. 9 This parallels similar language in the provision regarding notice of acceptance of an application. 10 9 18 CFR 157.8(a). 10 18 CFR 157.9. 10. Finally, the Commission's regulations are being revised to correct erroneous or outdated references or language in the following sections: 2.9, 4.30, 4.32, 4.33, 4.41, 4.71, 4.81, 4.92, 4.107, 5.9, 5.18, 6.1, 11.10, 16.12, 16.16, 16.19, 16.22, 131.20, 157.14, 157.209, 375.308, and 388.2201. II. Information Collection Statement 11. The Office of Management and Budget's
(OMB)regulations require that OMB approve certain information collection requirements imposed by agency rule. 11 This Final Rule does not contain information reporting requirements and is not subject to OMB approval. 11 5 CFR Part 1320. III. Environmental Analysis 12. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the quality of the human environment. 12 Issuance of this Final Rule does not represent a major federal action having a significant adverse effect on the quality of the human environment under the Commission's regulations implementing the National Environmental Policy Act. Part 380 of the Commission's regulations lists exemptions to the requirement to draft an Environmental Analysis or Environmental Impact Statement. Included is an exemption for procedural, ministerial or internal administrative actions. 13 This rulemaking is exempt under that provision. 12 *Regulations Implementing the National Environmental Policy Act* , Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987). 13 18 CFR 380.4(1) and (5). IV. Regulatory Flexibility Act 13. The Regulatory Flexibility Act of 1980
(RFA)14 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. This Final Rule concerns matters of internal agency procedure and the Commission therefore certifies that it will not have such an impact. An analysis under the RFA is not required. 14 5 U.S.C. 601-12. V. Document Availability 14. In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( *http://www.ferc.gov* ) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426. 15. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 16. User assistance is available for eLibrary and the FERC's Web site during normal business hours. For assistance, please contact FERC Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at *ferconlinesupport@ferc.gov* ), or the Public Reference Room at
(202)502-8371 Press 0, TTY
(202)502-8659. (e-mail at *public.referenceroom@ferc.gov* ). VI. Effective Date and Congressional Notification 17. These regulations are effective immediately upon publication in the **Federal Register** . In accordance with 5 U.S.C. 553(d)(3), the Commission finds that good cause exists to make this Final Rule effective immediately. It concerns only matters of internal operations or is ministerial in nature and will not affect the rights of persons appearing before the Commission. There is, therefore no reason to make this rule effective at a later time. 18. The provisions of 5 U.S.C. 801 regarding Congressional review of Final Rules do not apply to this Final Rule, because this Final Rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties. 19. The Commission is issuing this as a Final Rule without a period for public comment. Under 5 U.S.C. 553(b), notice and comment procedures are unnecessary where a rulemaking concerns only agency procedure and practice, or where the agency finds that notice and comment is unnecessary. This Final Rule concerns only matters of agency procedure and will not significantly affect regulated entities or the general public. List of Subjects 18 CFR Part 2 Administrative practice and procedure, Electric power, Natural gas, Pipelines, Reporting and recordkeeping requirements. 18 CFR Part 3c Government employees, Standards of conduct. 18 CFR Part 4 Administrative practice and procedure, Electric power, Reporting and recordkeeping requirements. 18 CFR Part 5 Administrative practice and procedure, Electric power, Reporting and recordkeeping requirements. 18 CFR Part 6 Electric power. 18 CFR Part 8 Electric power, Recreation and recreation areas, Reporting and recordkeeping requirements. 18 CFR Part 11 Electric power, Reporting and recordkeeping requirements. 18 CFR Part 16 Administrative practice and procedure, Electric power, Reporting and recordkeeping requirements. 18 CFR Part 33 Electric utilities, Reporting and recordkeeping requirements, Securities. 18 CFR Part 35 Electric power, Reporting and recordkeeping requirements. 18 CFR Part 131 Electric power, Electric power plants, Electric utilities, Natural gas, Reporting and recordkeeping requirements. 18 CFR Part 153 Exports, Imports, Natural gas, Reporting and recordkeeping requirements. 18 CFR Part 154 Alaska, Natural gas, Natural gas companies, Pipelines, Rate schedules and tariffs, Reporting and recordkeeping requirements. 18 CFR Part 157 Administrative practice and procedure, Natural gas, Reporting and recordkeeping requirements. 18 CFR Part 292 Electric power, Reporting and recordkeeping requirements. 18 CFR Part 300 Electric power, Reporting and recordkeeping requirements. 18 CFR Part 366 Electric power, Natural gas, Reporting and recordkeeping requirements. 18 CFR Part 375 Authority delegations (Government agencies), Seals and insignia, Sunshine Act. 18 CFR Part 376 Civil defense, Organization and functions (Government agencies). 18 CFR Part 380 Environmental impact statements, Reporting and recordkeeping requirements. 18 CFR Part 385 Administrative practice and procedure, Electric utilities, Penalties, Pipelines, Reporting and recordkeeping requirements. By the Commission. Nathaniel J. Davis, Sr., Acting Deputy Secretary. In consideration of the foregoing, the Commission amends parts 2, 3c, 4, 5, 6, 8, 11, 16, 33, 35, 131, 153, 154, 157, 292, 300, 366, 375, 376, 380 and 385, Chapter I, Title 18, *Code of Federal Regulations,* as follows. PART 2—GENERAL POLICY AND INTERPRETATIONS 1. The authority citation for part 2 continues to read as follows: Authority: 5 U.S.C. 601; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 792-825y, 2601-2645; 42 U.S.C. 4321-4361, 7101-7352; Pub. L. No. 109-58, 119 Stat. 594.2. 2. Section 2.9 is amended by revising the list following paragraph
(c)to read as follows: § 2.9 Conditions in preliminary permits and licenses—list of and citations to “P-” and “L-” forms.
(c)* * * P-1: Preliminary Permit, 11 F.P.C. 699 (December 2, 1952), 16 F.P.C. 1303 (December 4, 1956), 54 F.P.C. 1797 (October 31, 1975). L-1: Constructed Major Project Affecting Lands of the United States, 12 F.P.C. 1262 (September 25, 1953), 32 F.P.C. 71 (July 8, 1964), 54 F.P.C. 1799 (October 31, 1975). L-2: Unconstructed Major Project Affecting Lands of the United States, 12 F.P.C. 1137 (August 7, 1953), 17 F.P.C. 62 (January 18, 1957), 31 F.P.C. 528 (March 10, 1964), 54 F.P.C. 1808 (October 31, 1975). L-3: Constructed Major Project Affecting Navigable Waters of the United States, 12 F.P.C. 836 (February 6, 1953), 17 F.P.C. 385 (March 4, 1957), 30 F.P.C. 1658 (November 21, 1963), 32 F.P.C. 1114 (October 15, 1964), 36 F.P.C. 971 (December 6, 1966), 40 F.P.C. 1136 (October 29, 1968), 54 F.P.C. 1817 (October 31, 1975). L-4: Unconstructed Major Project Affecting Navigable Waters of the United States, 16 F.P.C. 1284 (November 29, 1956), 32 F.P.C. 839 (September 21, 1964), 42 F.P.C. 280 (July 30, 1969), 54 F.P.C. 1824 (October 31, 1975). L-5: Constructed Major Project Affecting Navigable Waters and Lands of the United States, 12 F.P.C. 1329 (October 23, 1953), 17 F.P.C. 110 (January 13, 1957), 38 F.P.C. 203 (July 26, 1967), 54 F.P.C. 1832 (October 31, 1975). L-6: Unconstructed Major Project Affecting Navigable Waters and Lands of the United States, 12 F.P.C. 1271 (September 29, 1953), 16 F.P.C. 1127 (October 29, 1956), 31 F.P.C. 284 (February 5, 1964), 34 F.P.C. 1114 (October 7, 1965), 54 F.P.C. 1842 (October 31, 1975). L-7 (retired): Minor Project Affecting Lands of the United States, 12 F.P.C. 911 (March 30, 1953), 17 F.P.C. 486 (April 2, 1957). L-8 (retired): Minor-Part Project (Transmission Line), 12 F.P.C. 1017 (June 12, 1953), 41 F.P.C. 217 (March 5, 1969). L-9: Constructed Minor Project Affecting Navigable Waters of the United States, 32 F.P.C. 577 (August 10, 1964), 54 F.P.C. 1852 (October 31, 1975). L-10: Constructed Major Project Affecting the Interests of Interstate or Foreign Commerce, 37 F.P.C. 860 (May 9, 1967), 40 F.P.C. 1489 (December 20, 1968), 54 F.P.C. 1858 (October 31, 1975). L-11: Unconstructed Major Project Affecting the Interests of Interstate or Foreign Commerce, 34 F.P.C. 602 (August 26, 1965), 36 F.P.C. 687 (September 26, 1966), 41 F.P.C. 719 (June 6, 1969), 54 F.P.C. 1864 (October 31, 1975). L-12: Constructed Minor Project Affecting the Interests of Interstate or Foreign Commerce, 35 F.P.C. 875 (June 3, 1966), 40 F.P.C. 1447 (December 10, 1968), 54 F.P.C. 1871 (October 31, 1975). L-13: (retired): Unconstructed Major Project Affecting the Interests of Interstate or Foreign Commerce and Affecting Lands of the United States, 42 F.P.C. 367 (August 6, 1969). L-14: Unconstructed Minor Project Affecting Navigable Waters of the United States, 54 F.P.C. 1876 (October 31, 1975). L-15: Unconstructed Minor Project Affecting the Interests of Interstate or Foreign Commerce, 54 F.P.C. 1883 (October 31, 1975). L-16: Constructed Minor Project Affecting Lands of the United States, 54 F.P.C. 1888 (October 31, 1975). L-17: Unconstructed Minor Project Affecting Lands of the United States, 54 F.P.C. 1896 (October 31, 1975). L-18: Constructed Minor Project Affecting Navigable Waters and Lands of the United States, 54 F.P.C. 1903 (October 31, 1975). L-19: Unconstructed Minor Project Affecting Navigable Waters and Lands of the United States, 54 F.P.C. 1911 (October 31, 1975). L-20: Constructed Transmission Line Project, 54 F.P.C. 1919 (October 31, 1975). L-21: Unconstructed Transmission Line Project, 54 F.P.C. 1923 (October 31, 1975). PART 3c—STANDARDS OF CONDUCT 3. The authority citation for part 3c is revised to read as follows: Authority: 15 U.S.C. 717g; 16 U.S.C. 825(b); 42 U.S.C. 7171, 7172. 4. Section 3c.2 is amended by revising paragraph
(a)to read as follows: § 3c.2 Nonpublic information.
(a)Section 1264(d) (42 U.S.C. 16452(d)) of the Public Utility Holding Company Act of 2005, section 301(b) (16 U.S.C. 825(b)) of the Federal Power Act, and section 8(b) (15 U.S.C. 717g) of the Natural Gas Act prohibit any employee, in the absence of Commission or court direction, from divulging any fact or information which may come to his or her knowledge during the course of examination of books or other accounts. PART 4—LICENSES, PERMITS, EXEMPTIONS AND DETERMINATION OF PROJECT COSTS 5. The authority citation for part 4 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352. § 4.30 [Amended] 6. Section 4.30 is amended by amending paragraph (b)(6)(ii) to remove the phrase “April 20, 1977” and add in its place the phrase “July 22, 2005,” and by amending paragraph (b)(28)(iii) to add the phrase “(40 MW in the case of a municipal water supply project)” before the semi-colon. § 4.32 [Amended] 7. Section 4.32 is amended by amending paragraph
(h)to remove the phrase “Hydropower, Environment and Engineering” and add in its place the phrase “Hydropower Licensing.” § 4.33 [Amended] 8. Section 4.33 is amended by amending paragraph (b)(2) to add the word “except” before the phrase “as provided.” § 4.41 [Amended] 9. Section 4.41 is amended by amending paragraph (f)(4)(vii) to remove the phrase “fourteen copies” and add in its place the phrase “eight copies,” and by amending paragraph (f)(6)(v) to remove the phrase “measures of facilities” and add in its place the phrase “measures or facilities.” § 4.71 [Amended] 10. Section 4.71 is amended by amending paragraph (a)(6)(i) to remove the phrase “and distribution power” and add in its place the phrase “and distributing power.” § 4.81 [Amended] 11. Section 4.81 is amended by amending paragraph
(d)to remove the phrase “Exhibit 4” and add in its place the phrase “Exhibit 3.” § 4.92 [Amended] 12. Section 4.92 is amended by amending the text following paragraph
(b)to remove the phrase “paragraph (b)(26)(v)” and add in its place the phrase “paragraph (b)(28)(v).” § 4.96 [Amended] 13. Section 4.96 is amended by amending paragraph
(c)to remove the phrase “Hydropower Licensing” and add in its place the phrase “Energy Projects.” § 4.104 [Amended] 14. Section 4.104 is amended by amending paragraph
(c)to remove the phrase “Hydropower Licensing” and add in its place the phrase “Energy Projects.” § 4.107 [Amended] 15. Section 4.107 is amended by amending paragraph
(a)to remove the phrase “the fee prescribed in § 381.601 of this chapter.” PART 5—INTEGRATED LICENSE APPLICATION PROCESS 16. The authority citation for part 5 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352. § 5.9 [Amended] 17. Section 5.9 is amended by amending paragraph (b)(3) to remove the phrase “is a not resource agency” and add in its place the phrase “is not a resource agency” and by amending paragraph (b)(6) to remove the word “filed” and add in its place the word “field.” § 5.18 [Amended] 18. Section 5.18 is amended by amending paragraph (a)(5)(i) to remove the phrase “Exhibits A, B, C, D, F, and G” and add in its place the phrase “Exhibits A, F, and G.” PART 6—SURRENDER OR TERMINATION OF LICENSE 19. The authority citation for part 6 continues to read as follows: Authority: Secs. 6, 10(i), 13, 41 Stat. 1067, 1068, 1071, as amended, sec. 309, 49 Stat. 858; 16 U.S.C. 799, 803(i), 806, 825h; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 *et seq.* ), unless otherwise noted. § 6.1 [Amended] 20. Section 6.1 is amended by amending the cross references to remove the phrase “§§ 4.40 to 4.42” and add in its place the phrase “§§ 4.40 to 4.41,” and to remove the last sentence. PART 8—RECREATIONAL OPPORTUNITIES AND DEVELOPMENT AT LICENSED PROJECTS 21. The authority citation for part 8 continues to read as follows: Authority: 5 U.S.C. 551-557; 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352. § 8.11 [Amended] 22. Section 8.11 is amended by amending paragraph (a)(1) to remove the phrase “a Commission Regional Office” and replace it with the phrase “the Commission”; by amending paragraph (a)(2) to remove the phrase “April 1, 1991” and replace it with the phrase “April 1, 2009,” and to remove the phrase “December 31, 1990” and replace it with the phrase “December 31, 2008”; by removing paragraph (a)(3); and by redesignating paragraph (a)(4) as new paragraph (a)(3). PART 11—ANNUAL CHARGES UNDER PART 1 OF THE FEDERAL POWER ACT 23. The authority citation for part 11 continues to read as follows: Authority: 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352. § 11.10 [Amended] 24. Section 11.10 is amended by amending paragraph (c)(5) to remove the phrase “the lesser or” and add in its place the phrase “the lesser of.” PART 16—PROCEDURES RELATING TO TAKEOVER AND RELICENSING OF LICENSED PROJECTS 25. The authority citation for part 16 continues to read as follows: Authority: 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352. § 16.12 [Amended] 26. Section 16.12 is amended by amending paragraph
(b)to remove the phrase “16.10(d), and 16.10(e)” and add in its place the phrase “and 16.10(d).” § 16.16 [Amended] 27. Section 16.16 is amended by amending paragraph
(a)to remove the phrase “§ 385.2010” and add in its place the phrase “§ 385.212.” § 16.19 [Amended] 28. Section 16.19 is amended by amending paragraph (c)(2) to remove the phrase “[insert the effective date of the rule]” and add in its place the phrase “July 3, 1989.” § 16.22 [Amended] 29. Section 16.22 is amended by amending paragraph
(b)to remove the phrase “16.9(d), and 16.20(c)” and add in its place the phrase “and 16.9(d).” PART 33—APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203 30. The authority citation for part 33 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; Pub. L. No. 109-58, 119 Stat. 594. § 33.10 [Amended] 31. Section 33.10 is amended by removing the phrase “Markets, Tariffs and Rates” and adding in its place the phrase “Energy Markets and Reliability.” PART 35—FILING OF RATE SCHEDULES AND TARIFFS 32. The authority citation for part 35 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. § 35.2 [Amended] 33. Section 35.2 is amended by amending paragraph
(c)to remove the phrase “Electric Power Regulation” and add in its place the phrase “Energy Markets and Reliability.” § 35.5 [Amended] 34. Section 35.5 is amended by amending paragraph
(b)to remove the phrase “Markets, Tariffs and Rates” and add in its place the phrase “Energy Markets and Reliability” and to remove the phrase “§ 375.307(k)(3)” and add in its place the phrase “§ 375.307(a)(1)(ii).” § 35.13 [Amended] 35. Section 35.13 is amended by amending paragraph (a)(3) to remove the phrase “Electric Power Regulation” and add in its place the phrase “Energy Markets and Reliability.” PART 131—FORMS 36. The authority citation for part 131 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. § 131.20 [Amended] 37. Section 131.20 is amended by amending the text at paragraph
(5)to remove the phrase “section 9(b)” and add in its place the phrase “section 9(a)(2).” PART 153—APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE OR MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS 38. The authority citation for part 153 continues to read as follows: Authority: 15 U.S.C. 717b, 717o; E.O. 10485, 3 CFR, 1949-1953 Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136, DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984). § 153.8 [Amended] 39. Section 153.8 is amended by amending paragraphs (a)(5) and (a)(6) to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects.” § 153.21 [Amended] 40. Section 153.21 is amended by amending paragraph
(b)to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects.” PART 154—RATE SCHEDULES AND TARIFFS 41. The authority citation for part 154 continues to read as follows: Authority: 15 U.S.C. 717-717w; 31 U.S.C. 9701; 42 U.S.C. 7102-7352. § 154.5 [Amended] 42. Section 154.5 is amended by removing the phrase “Pipeline Regulation” and adding in its place the phrase “Energy Markets and Reliability” and by removing the phrase “§ 375.307(b)(2)” and adding in its place the phrase “§ 375.307(a)(8)(iii).” § 154.302 [Amended] 43. Section 154.302 is amended by amending paragraph
(b)to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Markets and Reliability.” PART 157—APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER SECTION 7 OF THE NATURAL GAS ACT 44. The authority citation for part 157 continues to read as follows: Authority: 15 U.S.C. 717-717w. § 157.8 [Amended] 45. Section 157.8 is amended by amending paragraph
(a)to remove the phrase “Pipeline Regulation may reject the application within 10 days” and add in its place the phrase “Energy Projects or the Director of the Office of Energy Markets and Reliability may reject the application within 10 business days,” and by amending paragraph
(c)to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects or the Director of the Office of Energy Markets and Reliability.” § 157.14 [Amended] 46. Section 157.14 is amended by amending paragraph
(a)to remove the phrase “G-I, G-II, and H(iv)” and add in its place the phrase “G-I, and G-II.” § 157.205 [Amended] 47. Section 157.205 is amended by amending paragraphs (c), (f), and
(g)to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects.” § 157.206 [Amended] 48. Section 157.206 is amended by amending paragraph
(c)to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects.” § 157.208 [Amended] 49. Section 157.208 is amended by amending paragraphs
(d)and
(g)to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects” and by amending paragraph
(d)to remove the phrase “375.307(d)” and add in its place the phrase “375.308(x)(1).” § 157.209 [Amended] 50. Section 157.209 is amended by amending paragraph
(a)to remove the phrase “§ 158.208(d)” and add in its place the phrase “§ 157.208(d).” Appendix II to Subpart F [Amended] 51. Appendix II to subpart F is amended by amending paragraph (1)(b) to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects.” PART 292—REGULATIONS UNDER SECTIONS 201 AND 210 OF THE PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978 WITH REGARD TO SMALL POWER PRODUCTION AND COGENERATION 52. The authority citation for part 292 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. § 292.210 [Amended] 53. Section 292.210 is amended by amending paragraph (e)(3) to remove the phrase “Hydropower Licensing” and add in its place the phrase “Energy Projects.” § 292.211 [Amended] 54. Section 292.211 is amended by amending paragraphs
(f)and
(g)to remove the phrase “Hydropower Licensing” and add in its place the phrase “Energy Projects.” PART 300—CONFIRMATION AND APPROVAL OF THE RATES OF FEDERAL POWER MARKETING ADMINISTRATIONS 55. The authority citation for part 300 continues to read as follows: Authority: 16 U.S.C. 825s, 832-832l, 838-838k, 839-839h; 42 U.S.C. 7101-7352; 43 U.S.C. 485-485k. § 300.10 [Amended] 56. Section 300.10 is amended by amending paragraph (h)(2) to remove the phrase “Electric Power Regulation” and add in its place the phrase “Energy Markets and Reliability.” § 300.20 [Amended] 57. Section 300.20 is amended by amending paragraph (b)(1)(i) to remove the phrase “Electric Power Regulation” and add in its place the phrase “Energy Markets and Reliability.” PART 366—PUBLIC UTILITY HOLDING COMPANY ACT OF 2005 58. The authority citation for part 366 continues to read as follows: Authority: 42 U.S.C. 16451-16463. 59. Section 366.4 is amended by revising paragraphs (b)(1) and (c)(1) to read as follows: § 366.4 FERC-65, notification of holding company status, FERC-65A, exemption notification, and FERC-65B, waiver notification.
(b)*FERC-65A (exemption notification) and petitions for exemption.*
(1)Persons who, pursuant to § 366.3(b)(2), seek exemption from the requirements of § 366.2 and the accounting, record-retention, and reporting requirements of §§ 366.21, 366.22, and 366.23, may seek such exemption by filing FERC-65A (exemption notification); FERC-65A must be subscribed, consistent with § 385.2005(a) of this chapter, but need not be verified. These filings will be noticed in the **Federal Register** ; persons who file FERC-65A must include a form of notice suitable for publication in the **Federal Register** in accordance with the specifications in § 385.203(d) of this chapter. Persons who file FERC-65A in good faith shall be deemed to have a temporary exemption upon filing. If the Commission has taken no action within 60 days after the date of filing FERC-65A, the exemption shall be deemed to have been granted. The Commission may toll the 60-day period to request additional information or for further consideration of the request; in such case, the temporary exemption will remain in effect until such time as the Commission has determined whether to grant or deny the exemption. Authority to toll the 60-day period is delegated to the Secretary or the Secretary's designee.
(c)*FERC-65B (waiver notification) and petitions for waiver.*
(1)Persons who, pursuant to § 366.3(c), seek waiver of the accounting, record-retention, and reporting requirements of §§ 366.21, 366.22, and 366.23, may seek such waiver by filing FERC-65B (waiver notification); FERC-65B must be subscribed, consistent with § 385.2005(a) of this chapter, but need not be verified. FERC-65B will be noticed in the **Federal Register** ; persons who file FERC-65B must include a form of notice suitable for publication in the **Federal Register** in accordance with the specifications in § 385.203(d) of this chapter. Persons who file FERC-65B in good faith shall be deemed to have a temporary exemption upon filing. If the Commission has taken no action within 60 days after the date of filing of FERC-65B, the waiver shall be deemed to have been granted. The Commission may toll the 60-day period to request additional information or for further consideration of the request; in such case, the temporary waiver will remain in effect until such time as the Commission has determined whether to grant or deny the waiver. Authority to toll the 60-day period is delegated to the Secretary or the Secretary's designee. PART 375—THE COMMISSION 60. The authority citation for part 375 continues to read as follows: Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352. 61. Section 375.302 is amended by adding paragraphs
(y)and
(z)as follows: § 375.302 Delegations to the Secretary.
(y)Direct the staff of the Dispute Resolution Service
(DRS)to contact the parties in a complaint proceeding and establish a date by which DRS must report to the Commission whether a dispute resolution process to address the complaint will be pursued by the parties.
(z)Specify file format requirements for submissions on electronic media or via electronic means. 62. Section 375.307 is revised to read as follows: § 375.307 Delegations to the Director of the Office of Energy Markets and Reliability. The Commission authorizes the Director or the Director's designee to:
(a)*Program-Specific Delegated Authority:* Take the following actions with respect to the following programs:
(1)*Sections 205 and 206 of the Federal Power Act.*
(i)Accept for filing all uncontested tariffs or rate schedules and uncontested tariff or rate schedule changes submitted by public utilities, including changes that would result in rate increases, if they comply with all applicable statutory requirements, and with all applicable Commission rules, regulations and orders for which waivers have not been granted, or if waivers have been granted by the Commission, if the filings comply with the terms of the waivers;
(ii)Reject a tariff or rate schedule filing, unless accompanied by a request for waiver in conformity with § 385.2001 of this chapter, if it fails patently to comply with applicable statutory requirements and with all applicable Commission rules, regulations and orders;
(iii)Take appropriate action on requests or petitions for waivers of notice as provided in section 205(d) of the Federal Power Act, provided the requests conform to the requirements of § 385.2001 of this chapter;
(iv)Refer to the Chief Administrative Law Judge (Chief ALJ) for action by the Chief ALJ, with the Chief ALJ's concurrence, uncontested motions that would result in lower interim settlement rates, pending Commission action on settlement agreements;
(v)Sign and issue deficiency letters; and
(vi)Act on requests for authorization for a designated representative to post and file rate schedules of public utilities which are parties to the same rate schedules.
(2)*Section 215 of the Federal Power Act.*
(i)Approve uncontested applications, including uncontested revisions to Electric Reliability Organization or Regional Entity rules or procedures;
(ii)Reject an application, unless accompanied by a request for waiver in conformity with § 385.2001 of this chapter, if it fails patently to comply with applicable statutory requirements or with all applicable Commission rules, regulations or orders;
(iii)Act on any request or petition for waiver, consistent with Commission policy;
(iv)Sign and issue deficiency letters; and
(v)Direct the Electric Reliability Organization, regional entities, or users, owners, and operators of the Bulk-Power system within the United States (not including Alaska and Hawaii) to provide such information as is necessary to implement section 215 of the FPA pursuant to §§ 39.2(d) and 39.11 of this chapter.
(3)*Other sections of the Federal Power Act.*
(i)Pass upon any uncontested application for authorization to issue securities or to assume obligations and liabilities filed by public utilities and licensees pursuant to Part 34 of this chapter;
(ii)Take appropriate action on uncontested applications for the sale or lease or other disposition of facilities, merger or consolidation of facilities, purchase or acquisition or taking of securities of a public utility, or purchase or lease or acquisition of an existing generation facility under section 203 of the Federal Power Act;
(iii)Take appropriate action on uncontested applications for interlocking positions under section 305(b) of the Federal Power Act; and
(iv)Sign and issue deficiency letters for filings under Federal Power Act sections 203, 204, and 305(b).
(4)*Public Utility Holding Company Act of 2005.* Take appropriate action on:
(i)Uncontested FERC-65A (exemption notification) filings;
(ii)Uncontested FERC-65B (waiver notification) filings; and
(iii)Uncontested applications under section 1275(b) of the Energy Policy Act of 2005 and/or the Federal Power Act to allocate service company costs to members of a holding company system.
(5)*Federal Power Marketing Administration Filings.* Approve uncontested rates and rate schedules filed by the Secretary of Energy or his designee, for power developed at projects owned and operated by the federal government and for services provided by federal power marketing agencies.
(6)*Section 210(m) of the Public Utility Regulatory Policies Act of 1978.*
(i)Approve uncontested applications;
(ii)Reject an application, unless accompanied by a request for waiver in conformity with § 385.2001 of this chapter, if it fails patently to comply with applicable statutory requirements or with all applicable Commission rules, regulations and orders;
(iii)Act on any request or petition for waiver, consistent with Commission policy; and
(iv)Sign and issue deficiency letters.
(7)*Other sections of the Public Utility Regulatory Policies Act of 1978.* Take appropriate action on:
(i)Filings related to uncontested nonexempt qualifying small power production facilities;
(ii)Uncontested applications for certification of qualifying status for small power production and cogeneration facilities under § 292.207 of this chapter;
(iii)Requests or petitions for waivers of the requirements of subpart C of Part 292 of this chapter governing cogeneration and small power production facilities made by any state regulatory authority or nonregulated electric utility pursuant to § 292.402 of this chapter;
(iv)Requests or petitions for waivers of the Commission's regulations under the Federal Power Act related to nonexempt qualifying small power production facilities and related authorizations consistent with *Massachusetts Refusetech, Inc.,* 31 FERC ¶ 61,048 (1985), and the orders cited therein without limitation as to whether qualifying status is by Commission certification or notice of qualifying status, provided that, in the case of a notice of qualifying status, any waiver is granted on condition that the filing party has correctly noticed the facility as a qualifying facility; and
(v)Requests or petitions for waivers of the technical requirements applicable to qualifying small power production facilities and qualifying cogeneration facilities.
(8)*Sections 4 and 5 of the Natural Gas Act.*
(i)Accept for filing all uncontested tariffs or rate schedules and uncontested tariff or rate schedule changes, except major pipeline rate increases under section 4(e) of the Natural Gas Act and under subpart D of Part 154 of this chapter, if they comply with all applicable statutory requirements, and with all applicable Commission rules, regulations and orders for which waivers have not been granted, or if waivers have been granted by the Commission, if the filings comply with the terms of the waivers;
(ii)Accept for filing all uncontested tariff or rate schedules changes made in compliance with Commission orders;
(iii)Reject a tariff or rate schedule filing, unless accompanied by a request for waiver in conformity with § 385.2001 of this chapter, if it patently fails to comply with applicable statutory requirements and with all applicable Commission rules, regulations and orders;
(iv)Take appropriate action on requests or petitions for waiver of notice as provided in section 4(d) of the Natural Gas Act, provided the request conforms to the requirements of § 385.2001 of this chapter; and
(v)Refer to the Chief Administrative Law Judge (Chief ALJ) for action by the Chief ALJ, with the Chief ALJ's concurrence, uncontested motions that would result in lower interim settlement rates, pending Commission action on settlement agreements.
(9)*Section 7 of the Natural Gas Act.* Take appropriate action on the following types of uncontested applications for authorizations and uncontested amendments to applications and authorizations filed pursuant to section 7 of the Natural Gas Act and impose appropriate conditions:
(i)Applications by a pipeline for the deletion of delivery points but not facilities;
(ii)Applications to abandon pipeline services, but not facilities, involving a specific customer or customers, if such customer or customers have agreed to the abandonment;
(iii)Applications for temporary or permanent certificates (and for amendments thereto) for services, but not facilities, in connection with the transportation;
(iv)Blanket certificate applications by interstate pipelines and local distribution companies served by interstate pipelines filed pursuant to §§ 284.221 and 284.224 of this chapter;
(v)Applications for temporary certificates involving transportation service or sales, but not facilities, pursuant to § 157.17 of this chapter;
(vi)Dismiss any protest to prior notice filings involving existing service, made pursuant to § 157.205 of this chapter, that does not raise a substantive issue and fails to provide any specific detailed reason or rationale for the objection;
(vii)Applications pertaining to approval of changes in customer names where there is no change in rate schedule, rate, or other incident of service;
(viii)Applications for approval of customer rate schedule shifts;
(ix)Applications filed under section 1(c) of the Natural Gas Act and Part 152 of this chapter, for declaration of exemption from the provisions of the Natural Gas Act and certificates held by the applicant;
(x)Applications and amendments requesting authorizations filed pursuant to section 7(c) of the Natural Gas Act for new or additional service through existing facilities to right-of-way grantors either directly or through distributors, where partial consideration for the granting of the rights-of-way was the receipt of gas service pursuant to section 7(c) of the Natural Gas Act;
(xi)An uncontested request from the holder of an authorization, granted pursuant to the Director's delegated authority, to vacate all or part of such authorization; and
(xii)Sign and issue deficiency letters.
(10)*Natural Gas Policy Act of 1978.*
(i)Notify jurisdictional agencies within 45 days after the date on which the Commission receives notice of a determination pursuant to § 270.502(b) of this chapter that the notice is incomplete under § 270.204 of this chapter;
(ii)Issue preliminary findings under § 270.502(a)(1) of this chapter;
(iii)Accept any uncontested item that has been filed under § 284.123 of this chapter consistent with Commission regulations and policy;
(iv)Reject an application filed pursuant to § 284.123 of this chapter, unless accompanied by a request for waiver in conformity with § 385.2001 of this chapter, if it fails patently to comply with applicable statutory requirements or Commission rules, regulations and orders; and
(v)Take appropriate action on petitions to permit after an initial 60-day period one additional 60-day period of exemption pursuant to § 284.264(b) of this chapter where the application for extension arrives at the Commission no later than 45 days after the commencement of the initial period of exemption and where only services are involved.
(11)*Regulation of Oil Pipelines Under the Interstate Commerce Act.*
(i)Accept any uncontested item that has been filed consistent with Commission regulations and policy;
(ii)Reject any filing, unless accompanied by a request for waiver in conformity with § 385.2001 of this chapter, that patently fails to comply with applicable statutory requirements and with all applicable Commission rules, regulations and orders; and
(iii)Prescribe for carriers the classes of property for which depreciation charges may be properly included under operating expenses, review the fully documented depreciation studies filed by the carriers, and authorize or revise the depreciation rates reflected in the depreciation study with respect to each of the designated classes of property.
(b)*General, Non-Program-Specific Delegated Authority.*
(1)Take appropriate action on:
(i)Any notice of intervention or motion to intervene, filed in an uncontested proceeding processed by the Office of Energy Markets and Reliability; and
(ii)Applications for extensions of time to file required filings, reports, data and information and to perform other acts required at or within a specific time by any rule, regulation, license, permit, certificate, or order by the Commission.
(2)Take appropriate action on requests or petitions for waivers of:
(i)Filing requirements for the appropriate statements and reports processed by the Office of Energy Markets and Reliability under Parts 46, 141, 260 and 357 of this chapter, §§ 284.13 and 284.126 of this chapter, and other relevant Commission orders; and
(ii)Fees prescribed in §§ 381.403 and 381.505 of this chapter in accordance with § 381.106(b) of this chapter.
(3)Undertake the following actions:
(i)Issue reports for public information purposes. Any report issued without Commission approval must:
(A)Be of a noncontroversial nature, and
(B)Contain the statement, “This report does not necessarily reflect the views of the Commission,” in bold face type on the cover;
(ii)Issue and sign requests for additional information regarding applications, filings, reports and data processed by the Office of Energy Markets and Reliability; and
(iii)Accept for filing, data and reports required by Commission regulations, rules or orders, or presiding officers' initial decisions upon which the Commission has taken no further action, if such filings are in compliance with such regulations, rules, orders or decisions and, when appropriate, notify the filing party of such acceptance. § 375.308 [Amended] 63. Section 375.308 is amended by amending paragraph
(a)to add the phrase “in opposition” following the phrase “motion or notice of intervention.” § 375.311 [Removed and Redesignated] 64. Remove § 375.311 and redesignate § 375.314 as new § 375.311. PART 376—ORGANIZATION, MISSION, AND FUNCTIONS; OPERATIONS DURING EMERGENCY CONDITIONS 65. The authority citation for part 376 continues to read as follows: Authority: 5 U.S.C. 553; 42 U.S.C. 7101-7352; E.O. 12009; 3 CFR 1978 Comp., p. 142. § 376.204 [Amended] 66. Section 376.204 is amended by amending paragraph (b)(2)(x) to remove the phrase “Assistant General Counsels” and add in its place the phrase “Deputy Associate General Counsels.” § 376.207 [Amended] 67. Section 376.207 is amended by removing the phrase “Director of the Office of Finance, Accounting and Operations” and adding in its place the phrase “Executive Director.” PART 380—REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT 68. The authority citation for part 380 continues to read as follows: Authority: 42 U.S.C. 4321-4370a, 7101-7352; E.O. 12009, 3 CFR, 1978 Comp., p. 142. § 380.12 [Amended] 69. Section 380.12 is amended by amending paragraph (a)(3) to remove the phrase “OPR” and add in its place the phrase “the Office of Energy Projects,” by amending paragraphs (c)(3)(ii), (c)(3)(iii), and (f)(5) to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects,” and by amending paragraph
(f)to remove the phrase “ *OPR's* ” and add in its place the phrase “ *Office of Energy Projects' (OEP).”* § 380.13 [Amended] 70. Section 380.13 is amended by amending paragraphs (b)(2)(iii), (b)(5)(iv), and
(c)to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects” and by amending paragraph (b)(5)(iv) to remove the phrase “OPR” and add in its place the phrase “OEP.” § 380.14 [Amended] 71. Section 380.14 is amended by amending paragraph (a)(3) to remove the phrase “Pipeline Regulation” and add in its place the phrase “Energy Projects.” PART 385—RULES OF PRACTICE AND PROCEDURE 72. The authority citation for part 385 continues to read as follows: Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16 U.S.C. 791a-825v, 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 42 U.S.C. 7101-7352, 16441, 16451-16463; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988). § 385.2201 [Amended] 73. Section 385.2201 is amended by amending paragraph (h)(1) to remove the phrase “paragraph (f)(1)” and add in its place the phrase “paragraph (f)(2).” [FR Doc. E7-15664 Filed 8-13-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 74 [Docket No. 1995C-0286] (formerly Docket No. 95C-0286) Listing of Color Additives Subject to Certification; D&C Black No. 3; Confirmation of Effective Date AGENCY: Food and Drug Administration, HHS. ACTION: Final rule; confirmation of effective date. SUMMARY: The Food and Drug Administration
(FDA)is confirming the effective date of July 20, 2007, for the final rule that appeared in the **Federal Register** of June 19, 2007 (72 FR 33664). The final rule amended the color additive regulations to provide for the safe use of D&C Black No. 3 (bone black, subject to FDA batch certification) as a color additive in the following cosmetics: Eyeliner, eye shadow, mascara, and face powder. DATES: Effective date confirmed: July 20, 2007. FOR FURTHER INFORMATION CONTACT: Judith Kidwell, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 301-436-1071. SUPPLEMENTARY INFORMATION: In the **Federal Register** of June 19, 2007 (72 FR 33664), FDA amended the color additive regulations to add § 74.2053 (21 CFR 74.2053) to provide for the safe use of D&C Black No. 3 as a color additive in the following cosmetics: Eyeliner, eye shadow, mascara, and face powder. FDA gave interested persons until July 19, 2007, to file objections or requests for a hearing. The agency received no objections or requests for a hearing on the final rule. Therefore, FDA finds that the effective date of the final rule that published in the **Federal Register** of June 19, 2007, should be confirmed. List of Subjects in 21 CFR Part 74 Color additives, Cosmetics, Drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e) and under authority delegated to the Commissioner of Food and Drugs (1410.10 of the FDA Staff Manual Guide), notice is given that no objections or requests for a hearing were filed in response to the June 19, 2007, final rule. Accordingly, the amendments issued thereby became effective July 20, 2007. Dated: August 7, 2007. Jeffrey Shuren, Assistant Commissioner for Policy. [FR Doc. E7-15831 Filed 8-13-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Parts 630, 635, and 636 [FHWA Docket No. FHWA-2006-22477] RIN 2125-AF12 Design-Build Contracting AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Final rule. SUMMARY: The FHWA is amending its regulations for design-build contracting as mandated by section 1503 of the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users' (SAFETEA-LU). This rule will allow State transportation departments or local transportation agencies to issue request-for-proposal documents, award contracts, and issue notices-to-proceed for preliminary design work prior to the conclusion of the National Environmental Policy Act
(NEPA)process. EFFECTIVE DATE: September 13, 2007. 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., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access This document and all comments received by the DOT Dockets, Room PL-401, may be viewed through the Docket Management System
(DMS)at *http://dms.dot.gov.* It is available 24 hours each day, 365 days each 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 from 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 Section 1503 of the SAFETEA-LU (Pub. L. 109-59; August 10, 2005, 119 Stat. 1144) revises the definition of a design-build “qualified project” (23 U.S.C. 112(b)(3)). This change removes a previous monetary threshold for design-build projects, thus eliminating the requirement to approve Federal-aid design-build projects exceeding certain dollar thresholds under Special Experimental Project No. 14 (SEP-14). 1 When appropriate, the FHWA will continue to make SEP-14 available for projects that do not conform to the requirements of 23 CFR part 636. 1 Information concerning Special Experimental Project No. 14 (SEP-14), “Innovative Contracting Practices,” is available on FHWA's home page: *http://www.fhwa.dot.gov.* Additional information may be obtained from the FHWA Division Administrator in each State. Section 1503 also requires the Secretary of Transportation to make certain changes to the design-build regulations at 23 CFR part 636. Generally, section 1503 requires the Secretary to amend the design-build rule to permit a State transportation department to release requests for proposals and award design-build contracts prior to the completion of the NEPA process, but preclude a contractor from proceeding with final design or construction before NEPA is complete. Notice of Proposed Rulemaking
(NPRM)The FHWA published a NPRM on May 25, 2006, (71 FR 30100) proposing certain changes to comply with section 1503 of SAFETEA-LU. All comments received in response to the NPRM have been considered in drafting this final rule. We received 36 comments. The commenters include: one private individual, one Federal agency, the Governor of the State of Indiana, 18 State departments of transportation (State DOTs), 3 local public agencies, 8 industry organizations, and 4 firms that provide engineering and construction services. We classified the American Association of State Highway and Transportation Officials (AASHTO) as a State DOT, because it represents State DOT interests. It is noted that the State DOTs of Idaho, Montana, North Dakota, and South Dakota submitted a combined comment. It is also noted that these State DOTs, as well as the Wyoming Department of Transportation, simply commented that they support the comments submitted by AASHTO. Additionally, an organization known as the E-470 Public Highway Authority simply commented that it supports the comments submitted by the Texas Department of Transportation (TxDOT). Lastly, the FHWA notes that the Southern California Association of Governments
(SCAG)submitted its comments on the design-build NPRM to the docket for the FHWA's planning NPRM (Docket No. FHWA-2005-22986). The FHWA considered SCAG's comments along with all other comments submitted to the rulemaking docket for the design-build NPRM in developing this final rule. General The following discussion summarizes the major comments submitted to the docket by the commenters on the NPRM, notes where and why changes have been made to the rule, and, where relevant, states why particular recommendations or suggestions have not been incorporated into the final rule. Analysis of NPRM Comments and FHWA Response by Section Section 630.106 Authorization to proceed The Virginia Department of Transportation (VDOT), Utah Department of Transportation (UDOT), TxDOT, Associated General Contractors
(AGC)of America, Design-Build Institute of America (DBIA), and Bechtel Infrastructure Corporation (Bechtel) each commented on the changes proposed for this section. Bechtel commented that the project agreement for a design-build project should be executed prior to the completion of the NEPA process. The FHWA disagrees with this comment to the extent that Bechtel is requesting that the project agreement cover final design and physical construction. The execution of the project agreement for a project constitutes an obligation of Federal funds to the project, and the FHWA is precluded under 40 CFR 1508.18 and 23 CFR 771.109 and 771.113 from funding final design or physical construction. However, the FHWA agrees that project agreements may be executed for preliminary engineering, preliminary design, and other preconstruction activities for design-build projects. Accordingly, we have amended the final regulatory text in section 630.106(a)(3) to clarify that only project agreements for final design and physical construction must wait until the conclusion of the NEPA process. AGC of America commented that there is no definition of preliminary engineering, while preliminary design is defined in section 636.103. Preliminary design is defined because the amendments to 23 U.S.C. 112(b)(3) in section 1503 of SAFETEA-LU make a distinction between preliminary design and final design. Under these amendments, a design-builder may proceed to conduct preliminary design, but not final design. There is nothing in the SAFETEA-LU amendments to preclude preliminary engineering, which generally consists of those activities necessary for the analysis of a project or project alternatives, including environmental impacts, as necessary to complete the NEPA process. As such, preliminary engineering may continue to be authorized prior to the completion of the NEPA process as it has been prior to the SAFETEA-LU amendments. Thus, the FHWA does not believe that a separate definition of preliminary engineering is necessary. TxDOT, UDOT, and DBIA were each concerned that the language would preclude authorization for activities which may be carried out prior to the completion of the NEPA process other than preliminary engineering. Similarly, VDOT commented that the proposed regulatory change would preclude authorization for preconstruction activities that may not necessarily be preliminary engineering. The FHWA agrees with these comments and has amended the final regulation to include the term “preliminary design” as defined in section 636.103. It is not FHWA's intent to preclude Federal participation in preliminary engineering or other activities that can be carried out consistent with NEPA. Section 635.112 Advertising for bids and proposals Bechtel and the National Council for Public Private Partnerships (NCPPP) both commented on the proposed changes to this section. In general, both suggested that the FHWA should extend the FHWA's concurrence to the selection of the proposer and execute a project agreement. The FHWA disagrees with these comments. First, the FHWA cannot commit funds to a project before the NEPA process is complete. The execution of a project agreement for a design-build project would result in the obligation of Federal funds for the construction of the project prior to the completion of the NEPA process. Second, section 1503 of SAFETEA-LU amended 23 U.S.C. 112(b)(3) to expressly require the Secretary's concurrence prior to issuing a request for proposals (RFP), awarding a design-build contract, and issuing notices to proceed with preliminary design. Bechtel and NCPPP's comments would result in the Secretary only concurring in the RFP. Section 635.309 Authorization The FHWA is making a technical, conforming amendment to the regulation at section 635.309(p)(1). Specifically, the FHWA is deleting the parenthetical providing that the States' authority to advertise or release a request for proposals document may not be granted until the NEPA review process has been concluded. In place of the parenthetical, the FHWA has inserted the words “for final design and physical construction.” This amendment is necessary to ensure that there is no confusion in the regulations concerning whether an request for proposals document may be released, or a design-build contract may be awarded, in accordance with 23 U.S.C. 112(b)(3)(D). However, this section would continue to preclude project authorization for final design and physical construction of a design-build project until after the NEPA review process is complete. The substance of this amendment, which is to allow the release of a request for proposals document prior to the completion of the NEPA process, was addressed in the NPRM. Specifically, the proposed changes to sections 635.112 and 636.109 both expressly dealt with the advertising and release of a request for proposals document for a design-build project prior to the conclusion of the NEPA process. Additionally, the decision to prohibit project authorization for the final design and physical construction of a design-build project were proposed in sections 630.106 and 636.109 of the NPRM. Section 635.413 Guaranty and warranty clauses Bechtel and NCPPP commented on the proposed amendments to this section. In general, Bechtel and NCPPP commented that this section should be revised to allow for additional warranties beyond the normal construction/contractor warranties of 1-2 years. The FHWA disagrees with these comments. The FHWA's funding authority is generally limited to participation in construction and preventive maintenance. The FHWA will authorize the use of Federal funding to procure a warranty, if the warranty is for a construction or preventative maintenance project. The proposed regulatory language does not preclude the contracting agency from procuring warranties for projects other than construction and preventative maintenance with its own funds. Section 636.103 What are the definitions of terms used in this part? We received several comments on the proposed definitions under this section in the NPRM. These comments are discussed under each respective definition below. “Developer” VDOT, UDOT, TxDOT, AASHTO, and DBIA each commented on the proposed definition of “developer.” These comments generally stated that the distinction between developer and design-builder is unclear and that the definition duplicates the language in the proposed definition of public-private agreement. The FHWA agrees with these comments and has decided to strike the definition of developer from the final rule. Since the FHWA has struck the changes to 636.119, as discussed below, the term developer no longer has any significance to the regulations. “Final Design” TxDOT, UDOT, Maryland State Highway Administration (MdSHA), Pennsylvania Department of Transportation (PennDOT), Missouri Department of Transportation (MoDOT), New Jersey Department of Transportation (NJDOT), Louisiana Department of Transportation and Development (LDOTD), Indiana Governor Mitch Daniels, AASHTO, AGC of America, DBIA, Jacobs Civil, Inc. (JCI), and the Nossaman, Guthner, Knox, and Elliott LLP law firm/The Ferguson Group LLC (Nossaman) each commented on this proposed definition. In general, the comments stated that the definition is too restrictive and that the definition should be limited to work directly associated with the preparation of final construction plans and detailed technical specifications. The comments arguing that the definition is too restrictive are based on the comments to the proposed definition of preliminary design, which are discussed below. As explained below, the proposed definition of preliminary design has been broadened in the final rule. Thus, the language in the definition of final design stating that final design includes any design activities following preliminary design has been retained and the language concerning any design activities not necessary to complete the NEPA process has been stricken. Moreover, since a number of commenters stated that final design includes work directly related to the preparation of final construction plans and detailed specifications, these activities have been expressly included in the definition of final design. “Preliminary Design” All of the commenters substantially commented on the proposed definition of “preliminary design.” Specifically, LDOTD, Georgia Department of Transportation (GDOT), Indiana Governor Mitch Daniels, NJDOT, MoDOT, PennDOT, Knik Arm Bridge and Toll Authority (KABATA), California Department of Transportation (Caltrans), VDOT, Ohio Department of Transportation (OhDOT), Oregon Department of Transportation (OrDOT), UDOT, Minnesota Department of Transportation (Mn/DOT), Florida Department of Transportation (FDOT), MdSHA, TxDOT, AASHTO, AGC of America, American Council of Engineering Companies (ACEC), NCPPP, Nossaman, Bechtel, Washington Group International (WGI), JCI, Michael T. McGuire, Professional Engineers in California Government, and SCAG all commented on this proposed definition. Michael T. McGuire commented that allowing a design-builder to proceed with preliminary design prior to NEPA is a conflict of interest. The FHWA disagrees with this comment. So long as the design-builder does not prepare the NEPA documents, the conflict of interest provision in the Council on Environmental Quality
(CEQ)regulation, 40 CFR 1506.5(c), is met. The Professional Engineers in California Government commented that they agreed with the proposed definition of “preliminary design.” All other commenters felt that the proposed definition is too narrow. In general, these commenters were concerned that the definition would exclude activities needed to comply with other environmental laws and omit activities that have been traditionally considered preliminary engineering, that do not materially affect the consideration of alternatives in the NEPA analysis, and that work to advance the design of the preferred alternative as permitted in 23 U.S.C. 139(f)(4)(D), which was added by section 6002 of SAFETEA-LU. Several commenters also listed specific activities that have traditionally been allowed to proceed during the NEPA review process. After considering these comments, the FHWA agrees that the proposed definition is too narrow. It is not the FHWA's intent to preclude the States from conducting preliminary engineering and other pre-decisional project-related activities consistent with NEPA when a request for proposals is issued or design-build contract is awarded, prior to the completion of the NEPA process. Accordingly, the FHWA has revised the definition of preliminary design to mean activities undertaken to define the general project location and design concepts. The FHWA has also specified some general activities that may be conducted as preliminary design that typically do not compromise the objectivity of the NEPA process. These activities were specifically identified by VDOT, OhDOT, MdSHA, TxDOT, UDOT, AASHTO, DBIA, and Nossaman. The activities specified in this definition are not intended to be an exhaustive list of activities that may be considered preliminary design. However, any activity, regardless of its inclusion in the definition of preliminary design, must not materially affect the object consideration of alternatives in the NEPA review process. “Public-Private Agreement” UDOT, TxDOT, AASHTO, and DBIA each submitted comments on the proposed definition of “public-private agreement.” In general, these comments stated that the definition is overly broad and makes the distinction between design-build contracts and public-private agreements unclear. The FHWA agrees with these comments and has adopted a modified version of the language suggested by UDOT, TxDOT, and DBIA to the definition of public-private agreement in the final rule. “Qualified Project” The AGC of Texas, NJDOT, and GDOT each commented on the proposed definition of “qualified project.” GDOT commented that it agrees with the definition. NJDOT asked whether FHWA approval is needed to award any design-build contract, even if it has limited scope and low total project cost. Pursuant to 23 CFR 636.109(c), FHWA approval is needed before awarding any design-build contract funded under title 23, United States Code. AGC of Texas commented that the regulation should retain the $50 million general project and $5 million Intelligent Transportation System
(ITS)project thresholds in the final rule. Since Congress specifically amended 23 U.S.C. 112(b)(3)(C) in section 1503 of SAFETEA-LU to abolish these monetary thresholds, the FHWA does not believe that retaining them in the final rule is appropriate. Section 636.106 Is the FHWA's Special Experimental Project No. 14—“Innovative Contracting” (SEP-14) approval necessary for a design-build project? MoDOT, PennDOT, and Mn/DOT each commented on the changes proposed for this section. MoDOT pointed out that the preamble to the NPRM mentioned a monetary threshold while the proposed regulation did not. To clarify this apparent inconsistency, the proposed regulation was intended to abolish the monetary threshold for SEP-14 approval. Since Congress amended 23 U.S.C.112 to eliminate the design-build contracting monetary thresholds, SEP-14 approval is no longer needed for design-build projects below a certain monetary threshold. After considering this comment, the FHWA has decided that it is not necessary to expressly include SEP-14 as part of the final regulations, since it appears that SEP-14 is no longer needed. However, SEP-14 will continue to be available on a case-by-case basis as new innovative approaches to delivering design-build projects are proposed. PennDOT requested clarification that the reporting requirements are no longer necessary. To answer this question, there are no reporting requirements contained in this final rule. Mn/DOT asked whether this rule replaces the SEP-15 program. The answer to the question is “no.” SEP-15 continues to be available on a case-by-case basis consistent with the parameters of the program. (For more information, see 69 FR 59983, October 6, 2004.) Section 636.107 May contracting agencies use geographic preference in Federal-aid design-build or public-private partnership projects? TxDOT, UDOT, MoDOT, DBIA, and AGC of America each commented on the proposed changes to this section. AGC of America supports the prohibition on geographic preferences. MoDOT suggested deleting the parenthetical contained in the proposed language in order to avoid future misinterpretation that would exclude non-geographic based incentives. This section only applies to geographic preferences and the parenthetical is merely intended to clarify that all means of such preferences are prohibited. Thus, the FHWA has retained the parenthetical in the final language. TxDOT, UDOT, and DBIA suggested eliminating the word “prohibit” and making other minor revisions because they felt that this language implies that the contract documents must affirmatively address these issues. The FHWA agrees with these comments and has revised the final rule to incorporate the suggested language. Section 636.109 How does the NEPA process relate to the design-build procurement process? There were several comments on the changes to this proposed section in the NPRM. These comments are discussed under each respective subsection below. Section 636.109(a) PennDOT, UDOT, TxDOT, DBIA, and WGI each commented on the proposed changes to section 636.109(a). WGI commented that it supports these changes. PennDOT commented that it needs clarification that the FHWA will grant concurrence to proceed with the activities outlined in section 636.109(a), so long as the conditions outlined in the proposed rule are met. The FHWA assumes that PennDOT's comments are based on the preamble to the NPRM, where the FHWA stated that contracting agencies need FHWA concurrence prior to proceeding with any of the activities specified in the proposed subsection. To clarify this issue, a contracting agency does not need FHWA concurrence to issue a request for qualifications at any point in the process. However, FHWA concurrence for the other activities specified in this subsection is required. FHWA intends to concur with the activities outlined in section 636.109(a), (such as issuing an RFP, awarding a contract, proceeding with preliminary design, etc.), provided all applicable Federal requirements are met. UDOT, TxDOT, and DBIA stated that some minor changes are needed in order to clarify the intent in the first paragraph under section 636.109 as well as section 636.109(a)(1). The FHWA agrees to add the language suggested by UDOT, TxDOT, and DBIA in section 636.109(a)(1) concerning the protection of contracting agencies in the first paragraph of section 636.109, but does not agree to strike the language concerning the protection of design-build proposers in the first paragraph. The FHWA believes that this section protects the interests of both contracting agencies and design-build proposers. Additionally, UDOT, TxDOT, and DBIA requested that language be added to clarify that a design-builder can proceed with final design and construction for projects that have already obtained final NEPA approval. An example to amplify these comments would be a project that is being conducted under a tiered NEPA analysis. At any given point, tier 2 NEPA approvals could be given at different times for any portions with independent utility and logical termini within the tier 1 NEPA document. The FHWA agrees with these comments and has added a new paragraph
(6)to section 636.109(a) to clarify this issue. Section 636.109(b) MdSHA, FDOT, Mn/DOT, UDOT, VDOT, TxDOT, Caltrans, MoDOT, Indiana Governor Mitch Daniels, AASHTO, DBIA, ACEC, NCPPP, Bechtel, Wilbur Smith Associates, Nossaman, and the Environmental Protection Agency
(EPA)each commented on proposed 636.109(b). First, UDOT, TxDOT, and DBIA commented that the language should be clarified to ensure that a design-builder can proceed with final design and construction on projects that have already obtained NEPA approval. The FHWA agrees that a design-builder should be allowed to proceed with such work on projects for which NEPA approval has been obtained and intends that design-builders be allowed to do so under these regulations. However, the FHWA does not believe that additional language is needed to clarify this intent. Second, MdSHA, FDOT, Mn/DOT, UDOT, Indiana Governor Mitch Daniels, AASHTO, ACEC, NCPPP, and Nossaman each commented that the contracting agencies and design-builders should be allowed to proceed with final design activities at risk. In general, States can proceed with final design activities under the design-bid-build method of contracting so long as those activities include no Federal funding and the State understands that its preferred alternative could ultimately be rejected by the FHWA. *See, e.g., Burkholder* v. *Wykle* , 268 F. Supp. 2d 835 (N.D. Ohio 2002). However, the amendment to 23 U.S.C. 112(b)(3)(D)(iii) in section 1503 of SAFETEA-LU expressly requires the design-build regulations to “preclude the design-build contractor from proceeding with final design or construction of any permanent improvement prior to the completion of the process of such section 102.” In other words, Congress has directed that the regulations must preclude the design-build contractor from proceeding with either final design or construction. Therefore, the FHWA is unable to permit the design-builder to proceed with final design, regardless of whether these activities are funded by the FHWA, the State, or the contractor itself. Third, FDOT, UDOT, TxDOT, VDOT, Caltrans, Indiana Governor Mitch Daniels, AASHTO, DBIA, and ACEC each commented on whether the design-builder is precluded from preparing the NEPA decision document or any NEPA document. In general, these comments pointed out an inconsistency between the preamble to the NPRM, which refers to NEPA documents, and the proposed regulatory text in sections 636.109(b)(4) and (5), which uses the term “NEPA decision document.” To clarify this issue, the FHWA intends for the regulations to preclude a design-builder from preparing not only the NEPA decision documents ( *i.e.* Categorical Exclusion (CE), Finding of No Significant Impact (FONSI), and Record of Decision (ROD)), but also the NEPA analysis documents ( *i.e.* Environmental Assessment
(EA)and Environmental Impact Statement (EIS)). The CEQ conflict of interest regulation at 40 CFR 1506.5(c) expressly prohibits a contractor, who has an interest in the outcome of the NEPA process, from preparing an EIS. Additionally, this regulation has also been applied to EAs. *See, e.g., Burkholder* v. *Peters, 58 Fed. Appx. 94 (6th Cir. 2003)* . Thus, the final regulations at section 636.109(b)(6) and
(7)have been amended to clarify that the design-builder is precluded from preparing all NEPA documents, rather than just the NEPA decision documents. However, while the design-builder cannot prepare the NEPA documents, the FHWA notes that there is nothing in the final regulations that would prohibit a design-builder from financing the preparation of the NEPA documents, so long as the criteria in section 636.109(b)(7) are met. Fourth, UDOT, TxDOT, and DBIA suggested some minor clarifications to proposed section 636.109(b)(6) to ensure that the States can consider any work provided by the design-builder in the NEPA analysis. The FHWA agrees with these comments and has revised section 636.109(b)(8) to incorporate UDOT, TxDOT, and DBIA's suggested language. Fifth, Wilbur Smith Associates commented that barring consultants who are participating in the preparation of the NEPA documents from joining a design-build team will result in less economical projects. Although the FHWA appreciates eliminating unnecessary costs, FHWA notes that the CEQ regulations at 40 CFR 1506.5(c) prohibit such consultants from having a financial or other interest in the outcome of the project to avoid either the reality or the appearance of a conflict, thereby maintaining the credibility of the environmental review process. Sixth, the EPA had several general comments on section 636.109(b). The EPA states that it is supportive of the provisions in the proposed rule intended to ensure an adequate review process and supports the prohibition on the design-builder from having any decisionmaking responsibility on the NEPA process. The EPA further commented that avoiding conflicts of interest and premature commitments to a particular alternative are difficult to ensure in practice. As such, the EPA suggested that the FHWA provide examples of appropriate contract provisions that would ensure that the merits of all alternatives are evaluated. An example of one such provision would be one precluding the commitment of significant financial resources to any particular alternative. Another example would be a provision that clearly allows the State to decide not to move forward with the project in the event the no-build alternative is selected, while allowing the design-build contractor to receive a reasonable reimbursement of certain costs the contractor may have incurred in advancing the project. The FHWA is committed to work with the States to develop any such provisions to also ensure the integrity of the NEPA process is maintained. The EPA also expressed a concern about using financial incentives linked to milestones that could result in contractor reluctance to revise the NEPA analysis when appropriate. While the FHWA is not aware of any specific problems in this area, the FHWA shares the EPA's concern and will discourage the use of any timeline-based incentives that may have an undue influence on the NEPA process. Additionally, the EPA commented on how appropriate oversight will be maintained under the surface transportation project delivery pilot program at 23 U.S.C. 327. Since this pilot program is limited only to the States' assumption of the Secretary's environmental responsibilities, the FHWA will retain full oversight over the contracting process. Moreover, the pilot program requires a memorandum of understanding to be executed between the State and the FHWA whenever a State assumes any of the Secretary's responsibilities under the pilot program. Appropriate oversight provisions will be specified in these MOUs. Lastly, the FHWA is adding two new provisions at sections 636.109(b)(1) and (2). Section 636.109(b)(1) is intended to clarify that the design-builder may proceed with preliminary design under a design-build contract. Section 636.109(b)(2) is intended to clarify that the States may permit any design and engineering activities to be undertaken for the purposes of defining the project alternatives and completing the NEPA alternatives analysis and review process; complying with other related environmental laws and regulations; supporting agency coordination, public involvement, permit applications, or development of mitigation plans; or developing the design of the preferred alternative to a higher level of detail when the lead agencies agree that it is warranted in accordance with 23 U.S.C. 139(f)(4)(D). As previously discussed, several comments on the proposed definition of preliminary design expressed the concern that the States would not be able to conduct activities needed to comply with other related environmental laws or advance the design of the preferred alternative as permitted in 23 U.S.C. 139(f)(4)(D). The addition of section 636.109(b)(2) clarifies that the States may conduct these types of activities. Section 636.109(c) and
(d)UDOT, TxDOT, MdSHA, DBIA, Association of Engineering Employees of Oregon, and Profession Engineers in California Government each commented on the proposed changes in section 636.109(c) and (d). The Association of Engineering Employees of Oregon and Professional Engineers in California Government commented that section 639.109(c) does not go far enough in protecting the integrity of the NEPA process. Section 636.109(c) would require certain FHWA approvals during the project development process and would clarify that any such approval is not a commitment of Federal funds. The FHWA believes that not committing any Federal funds until after the NEPA process is complete, in conjunction with the various FHWA approvals during the project development process as well as the requirements in section 636.109(b), adequately protect the integrity of the NEPA process. UDOT, TxDOT, MdSHA, and DBIA questioned why the FHWA is requiring concurrence in the issuance of a notice to proceed with preliminary design. Section 1503 of SAFETEA-LU amended 23 U.S.C. 112(b)(3)(D)(ii) to require the States to receive concurrence from the Secretary prior to carrying-out any activity specified in 23 U.S.C. (b)(3)(D)(i), which includes the issuance of notices to proceed with preliminary design work. Thus, the States must receive FHWA concurrence prior to issuing a notice to proceed with preliminary design work. Section 636.116 What organizational conflict of interest requirements apply to design-build projects? TxDOT, UDOT, VDOT, PennDOT, DBIA, ACEC each commented on the proposed changes to section 636.116. ACEC supports the proposed changes to section 636.116, because it believes that firms have been unfairly eliminated from competing for design-build contracts merely by virtue of providing some technical work on a NEPA document. ACEC further suggests that the language be revised to preclude the States from disallowing such firms to compete for design-build contracts. In contrast to ACEC's comments, PennDOT commented that it is concerned about the conflict of interest that may arise if the State subsequently needs the firm to provide additional input or work on the NEPA analysis for the project. The FHWA agrees with both ACEC and PennDOT. The FHWA has accommodated ACEC's concern in the final rule by giving the States the flexibility to allow such firms to compete for design-build contracts. The FHWA has also accommodated PennDOT's concern by making the changes discretionary on the part of the States rather than mandatory as requested by ACEC. VDOT, TxDOT, UDOT, and DBIA all supported the proposed changes to section 636.116. However, TxDOT, UDOT, and DBIA further commented that the contracting agency should have the flexibility to release a subconsultant to the consultant responsible for preparing the NEPA documents from further NEPA responsibilities and allow such firm to compete for a design-build contract. The FHWA supports giving the States this flexibility and has added a new subsection
(d)to section 636.116 in the final rule. Section 636.119 How does this Part apply to public-private agreements? TxDOT, FDOT, UDOT, MdSHA, Indiana Governor Mitch Daniels, AGC of America, NCPPP, WGI, and Bechtel each commented on this proposed section. WGI commented that it supports making public-private agreement procurements subject to State law. SCAG, Bechtel, and NCPPP were concerned that the numerous approvals required under this proposed section would add time and cost to the project delivery process. AGC of America commented that it supports the oversight provisions in the proposed section. TxDOT, UDOT, Indiana Governor Mitch Daniels, and SCAG commented that it is inappropriate for the FHWA to assert approval rights over State procedures. TxDOT, UDOT, and MdSHA commented that it is unnecessary for the FHWA to concur in requests for qualifications. TxDOT and UDOT further commented that some provisions of this proposed section were unclear, and FDOT commented that public-private agreement requirements should be an entirely separate part in the Code of Federal Regulations. After considering these comments, the FHWA agrees that some further revisions may be necessary and that it is more appropriate for these requirements to be contained in a separate part in the Code of Federal Regulations. Accordingly, the FHWA has struck the proposed changes to section 636.119 and will consider whether a future rulemaking for these requirements is necessary. Minor revisions have been made to section 636.119(b) to define the FHWA's requirements for preserving Federal-aid eligibility in any procurement actions under a public-private partnership. Section 636.302 Are there any limitations on the selection and use of proposal evaluation factors? TxDOT, UDOT, PennDOT, DBIA, Professional Engineers in California Government, and Association of Engineering Employees of Oregon each commented on the proposed changes to section 636.302. Professional Engineers in California Government and Association of Engineering Employees of Oregon commented that the price evaluation requirements should continue. The FHWA shares the concern about eliminating the price evaluation requirement. After considering these comments and taking a closer look at the proposed regulation, the FHWA has decided to add a new subparagraph to section 636.302(a)(1)(ii) to require that price be considered to the extent that the contract requires payment from the contracting agency utilizing Federal-aid highway funds to the design-builder for any services to be provided prior to final design or construction. The FHWA is adding this requirement, because the FHWA believes that the consideration of price will ensure that a project does not incur unreasonable costs. This provision will ensure that, to the extent the State must make any payments to the design-builder, the price to be paid for these services is one of the factors that States must consider. The FHWA has also added language to section 636.302(a)(1)(iv) to clarify that the price reasonableness requirement only applies to the extent that the contracting agency wishes to use Federal funds for final design or construction. These provisions also respond to the comments made by TxDOT, UDOT, and DBIA who were concerned that some public-private agreements may not require any payment to be made to the design-builder. However, whenever a contract is awarded prior to the completion of the NEPA process, it is impossible to consider the price of the total contract because an alternative has not yet been selected and final design has not yet been completed. Thus, a contracting agency will be able to consider price only to a certain extent. PennDOT commented that the proposed procedures in section 636.302(a)(1) would be very complex and hard to implement. Since the statute now permits States to award contracts prior to the conclusion of the NEPA process, which will require the costs for final design and construction to be negotiated later, the States and FHWA must find a way to control the costs under the contract and ensure that the public gets a fair price for these services. Thus, the State will need to develop methodologies through which the State can determine whether the final fixed price for the project is reasonable. An open-book negotiation method through which both the contractor and the State share supporting data on the prices of the items being negotiated can be an effective way to make this determination. While the FHWA recognizes the difficulties in ensuring that the public gets the best price whenever a design-build contract is awarded prior to the conclusion of the NEPA process, we believe that a price reasonableness standard for these costs will be the most effective approach. The FHWA will provide appropriate guidance and support to the States in implementing this standard. Finally, TxDOT, UDOT, and DBIA each commented that the FHWA should not concur in the States' price reasonableness determination, but rather only the methodologies the States use to make that determination. The FHWA disagrees with this comment. The FHWA is the steward of all Federal funds that are used in highway projects. Since total contract price cannot be considered during the competition to award a contract prior to the conclusion of the NEPA process, the FHWA must have some mechanism to ensure that price for the project for which Federal funds proposed to be used is reasonable. Rulemaking Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures The FHWA has determined that this rule is 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. The Office of Management and Budget
(OMB)has reviewed this document under E.O. 12866. This rule is significant, because of the substantial State, environmental, and industry interest in the design-build contracting technique. The economic impact of this rulemaking will be minimal and it will not adversely affect, in a material way, any sector of the economy. This rulemaking merely revises the FHWA's policies concerning the design-build contracting technique. The final rule will not affect the total Federal funding available to the State DOTs under the Federal-aid highway program. Therefore, an increased use of design-build delivery method will not yield significant economic impacts to the Federal-aid highway program. Additionally, this 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. Consequently, a full regulatory evaluation is not required. The FHWA does not have sufficient data to quantify the economic impacts of this rule. However, the FHWA believes that increased use of the design-build contracting method may result in certain efficiencies in the cost and time it normally takes to deliver a transportation project. We also believe that States will not use the design-build contracting technique if using such a technique will increase the cost of a project. The design-build contracting technique is important to increasing the involvement of the private sector in the delivery of transportation projects. Insofar as this rule will increase the uses of the design-build contracting technique, it may result in increased private sector financial investment in transportation. The FHWA did not receive any comments on the economic impacts analysis in the NPRM. 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 will not have a significant economic impact on a substantial number of small entities. The rule 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 rule will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 This rule will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995), because it will not result in the expenditure by State, local, tribal governments, or by the private sector, of $128.1 million or more in any 1 year (2 U.S.C. 1532 *et seq.* ). This rule merely updates the design-build regulation to reflect the changes made by SAFETEA-LU. The design-build regulation allows, but does not require, States to use the design-build technique for the delivery of Federal-aid projects. States use the design-build contracting technique because, in some instances, it may reduce the time and cost of delivering a project. Further, 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 rule 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 rule will not have a substantial direct effect or sufficient federalism implications on the States. The FHWA has also determined that this final rule will not preempt any State law or regulation or affect the States' ability to discharge traditional State governmental functions. 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. The FHWA did not receive any comments on the intergovernmental review analysis. 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 OMB for each collection of information we conduct, sponsor, or require through regulations. The FHWA has determined that this rule does not contain a collection of information requirement for purposes of the PRA. National Environmental Policy Act The FHWA has analyzed this rule 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 rule will not have any effect on the quality of the environment. The promulgation of regulations has been identified as a categorical exclusion under 23 CFR 771.117(c)(20). However, Federal-aid highway projects on which design-build is used, must still comply with the National Environmental Policy Act of 1969, as amended. Executive Order 12630 (Taking of Private Property) The FHWA has analyzed this rule under Executive Order 12630, Governmental Actions and Interface with Constitutionally Protected Property Rights. This rule will not 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 rule will not cause an environmental risk to health or safety that might disproportionately affect children. Executive Order 13175 (Tribal Consultation) The FHWA has analyzed this rule under Executive Order 13175, dated November 6, 2000, and believes that the rule 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 laws. The rule addresses obligations of Federal funds to States for Federal-aid highway projects and will 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 dated May 18, 2001. We have determined that it is not a significant energy action under that order, because, although it is a significant regulatory action under Executive Order 12866, it will not 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 23 CFR Part 630 Bonds, Government contracts, Grant programs—transportation, Highways and roads, Reporting and recordkeeping requirements. 23 CFR Part 635 Construction and maintenance, Grant programs—transportation, Highways and roads, Reporting and recordkeeping requirements. 23 CFR Part 636 Design-build, Grant programs—transportation, Highways and roads. Issued on: August 7, 2007. J. Richard Capka, FHWA Administrator. In consideration of the foregoing, the FHWA amends parts 630, 635, and 636 of title 23, Code of Federal Regulations, as follows: PART 630—PRECONSTRUCTION PROCEDURES 1. Revise the authority citation for part 630 to read as follows: Authority: Sec. 1503 of Pub. L. 109-59, 119 Stat.1144; 23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a); 23 CFR 1.32 and 49 CFR 1.48(b). 2. Amend § 630.106 by revising the section heading and adding paragraph (a)(7) to read as follows: § 630.106 Authorization to proceed.
(a)* * *
(7)For design-build projects, the execution or modification of the project agreement for final design and physical construction, and authorization to proceed, shall not occur until after the completion of the NEPA process. However, preliminary design (as defined in 23 CFR 636.103) and preliminary engineering may be authorized in accordance with this section. PART 635—CONSTRUCTION AND MAINTENANCE 3. Revise the authority citation for part 635 to read as follows: Authority: 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 1.48(b). 4. Amend § 635.112 by revising paragraph (i)(1); by redesignating paragraphs (i)(2) and (i)(3) as (i)(3) and (i)(4), respectively; and by adding a new paragraph (i)(2) to read as follows: § 635.112 Advertising for bids and proposals.
(i)* * *
(1)When a Request for Proposals document is issued after the NEPA process is complete, the FHWA Division Administrator's approval of the Request for Proposals document will constitute the FHWA's project authorization and the FHWA's approval of the STD's request to release the document. This approval will carry the same significance as plan, specification and estimate approval on a design-bid-build Federal-aid project.
(2)Where a Request for Proposals document is issued prior to the completion of the NEPA process, the FHWA's approval of the document will only constitute the FHWA's approval of the STD's request to release the document. 5. Revise § 635.309(p)(1) introductory text to read as follows: § 635.309 Authorization.
(p)* * *
(1)The FHWA's project authorization for final design and physical construction will not be issued until the following conditions have been met: 6. Revise § 635.413(e)(1)(i) to read as follows: § 635.413 Guaranty and warranty clauses.
(e)* * *
(1)* * *
(i)The term of the warranty is short (generally one to two years); however, projects developed under a public-private agreement may include warranties that are appropriate for the term of the contract or agreement. PART 636—DESIGN-BUILD CONTRACTING 7. Revise the authority citation for part 636 to read as follows: Authority: Sec. 1503 of Pub. L. 109-59, 119 Stat. 1144; Sec. 1307 of Pub. L. 105-178, 112 Stat. 107; 23 U.S.C. 101, 109, 112, 113, 114, 115, 119, 128, and 315; 49 CFR 1.48(b). Subpart A—General 8. Amend § 636.103 by adding in alphabetical order the definitions of “final design,” “preliminary design,” “price reasonableness,” and “public-private agreement,” and by revising the definition of a “qualified project” as follows: § 636.103 What are the definitions of terms used in this Part? *Final design* means any design activities following preliminary design and expressly includes the preparation of final construction plans and detailed specifications for the performance of construction work. *Preliminary design* defines the general project location and design concepts. It includes, but is not limited to, preliminary engineering and other activities and analyses, such as environmental assessments, topographic surveys, metes and bounds surveys, geotechnical investigations, hydrologic analysis, hydraulic analysis, utility engineering, traffic studies, financial plans, revenue estimates, hazardous materials assessments, general estimates of the types and quantities of materials, and other work needed to establish parameters for the final design. Prior to completion of the NEPA review process, any such preliminary engineering and other activities and analyses must not materially affect the objective consideration of alternatives in the NEPA review process. *Price reasonableness* means the determination that the price of the work for any project or series of projects is not excessive and is a fair and reasonable price for the services to be performed. *Public-private agreement* means an agreement between a public agency and a private party involving design and construction of transportation improvements by the private party to be paid for in whole or in part by Federal-aid highway funds. The agreement may also provide for project financing, at-risk equity investment, operations, or maintenance of the project. *Qualified project* means any design-build project (including intermodal projects) funded under Title 23, United States Code, which meets the requirements of this Part and for which the contracting agency deems to be appropriate on the basis of project delivery time, cost, construction schedule, or quality. § 636.106 [Removed] 9. Remove and reserve § 636.106. 10. Revise § 636.107 to read as follows: § 636.107 May contracting agencies use geographic preference in Federal-aid design-build or public-private partnership projects? No. Contracting agencies must not use geographic preferences (including contractual provisions, preferences or incentives for hiring, contracting, proposing, or bidding) on Federal-aid highway projects, even though the contracting agency may be subject to statutorily or administratively imposed in-State or local geographical preferences in the evaluation and award of such projects. § 636.108 [Removed] 11. Remove and reserve § 636.108. 12. Revise § 636.109 to read as follows: § 636.109 How does the NEPA process relate to the design-build procurement process? The purpose of this section is to ensure that there is an objective NEPA process, that public officials and citizens have the necessary environmental impact information for federally funded actions before actions are taken, and that design-build proposers do not assume an unnecessary amount of risk in the event the NEPA process results in a significant change in the proposal, and that the amount payable by the contracting agency to the design-builder does not include significant contingency as the result of risk placed on the design-builder associated with significant changes in the project definition arising out of the NEPA process. Therefore, with respect to the design-build procurement process:
(a)The contracting agency may:
(1)Issue an RFQ prior to the conclusion of the NEPA process as long as the RFQ informs proposers of the general status of NEPA review;
(2)Issue an RFP after the conclusion of the NEPA process;
(3)Issue an RFP prior to the conclusion of the NEPA process as long as the RFP informs proposers of the general status of the NEPA process and that no commitment will be made as to any alternative under evaluation in the NEPA process, including the no-build alternative;
(4)Proceed with the award of a design-build contract prior to the conclusion of the NEPA process;
(5)Issue notice to proceed with preliminary design pursuant to a design-build contract that has been awarded prior to the completion of the NEPA process; and
(6)Allow a design-builder to proceed with final design and construction for any projects, or portions thereof, for which the NEPA process has been completed.
(b)If the contracting agency proceeds to award a design-build contract prior to the conclusion of the NEPA process, then:
(1)The contracting agency may permit the design-builder to proceed with preliminary design;
(2)The contracting agency may permit any design and engineering activities to be undertaken for the purposes of defining the project alternatives and completing the NEPA alternatives analysis and review process; complying with other related environmental laws and regulations; supporting agency coordination, public involvement, permit applications, or development of mitigation plans; or developing the design of the preferred alternative to a higher level of detail when the lead agencies agree that it is warranted in accordance with 23 U.S.C. 139(f)(4)(D);
(3)The design-build contract must include appropriate provisions preventing the design-builder from proceeding with final design activities and physical construction prior to the completion of the NEPA process (contract hold points or another method of issuing multi-step approvals must be used);
(4)The design-build contract must include appropriate provisions ensuring that no commitments are made to any alternative being evaluated in the NEPA process and that the comparative merits of all alternatives presented in the NEPA document, including the no-build alternative, will be evaluated and fairly considered;
(5)The design-build contract must include appropriate provisions ensuring that all environmental and mitigation measures identified in the NEPA document will be implemented;
(6)The design-builder must not prepare the NEPA document or have any decisionmaking responsibility with respect to the NEPA process;
(7)Any consultants who prepare the NEPA document must be selected by and subject to the exclusive direction and control of the contracting agency;
(8)The design-builder may be requested to provide information about the project and possible mitigation actions, and its work product may be considered in the NEPA analysis and included in the record; and
(9)The design-build contract must include termination provisions in the event that the no-build alternative is selected.
(c)The contracting agency must receive prior FHWA concurrence before issuing the RFP, awarding a design-build contract and proceeding with preliminary design work under the design-build contract. Should the contracting agency proceed with any of the activities specified in this section before the completion of the NEPA process (with the exception of preliminary design, as provided in paragraph
(d)of this section), the FHWA's concurrence merely constitutes the FHWA approval that any such activities complies with Federal requirements and does not constitute project authorization or obligate Federal funds.
(d)The FHWA's authorization and obligation of preliminary engineering and other preconstruction funds prior to the completion of the NEPA process is limited to preliminary design and such additional activities as may be necessary to complete the NEPA process. After the completion of the NEPA process, the FHWA may issue an authorization to proceed with final design and construction and obligate Federal funds for such purposes. 13. Amend § 636.116 by adding paragraphs
(c)and
(d)to read as follows: § 636.116 What organizational conflict of interest requirements apply to design-build projects?
(c)If the NEPA process has been completed prior to issuing the RFP, the contracting agency may allow a consultant or subconsultant who prepared the NEPA document to submit a proposal in response to the RFP.
(d)If the NEPA process has not been completed prior to issuing the RFP, the contracting agency may allow a subconsultant to the preparer of the NEPA document to participate as an offeror or join a team submitting a proposal in response to the RFP only if the contracting agency releases such subconsultant from further responsibilities with respect to the preparation of the NEPA document. 14. Revise § 636.119(b)(1) and
(2)to read as follows: § 636.119 How does this part apply to a project developed under a public-private partnership?
(b)* * *
(1)If the public-private agreement establishes price, then all subsequent contracts executed by the developer are considered to be subcontracts and are not subject to Federal-aid procurement requirements.
(2)If the public-private agreement does not establish price, the developer is considered to be an agent of the owner, and the developer must follow the appropriate Federal-aid procurement requirements (23 CFR part 172 for engineering service contracts, 23 CFR part 635 for construction contracts and the requirements of this part for design-build contracts) for all prime contracts (not subcontracts). 15. Revise § 636.302(a)(1) to read as follows: § 636.302 Are there any limitations on the selection and use of proposal evaluation factors?
(a)* * *
(1)You must evaluate price in every source selection where construction is a significant component of the scope of work. However, where the contracting agency elects to release the final RFP and award the design-build contract before the conclusion of the NEPA process (see § 636.109), then the following requirements apply:
(i)It is not necessary to evaluate the total contract price;
(ii)Price must be considered to the extent the contract requires the contracting agency to make any payments to the design-builder for any work performed prior to the completion of the NEPA process and the contracting agency wishes to use Federal-aid highway funds for those activities;
(iii)The evaluation of proposals and award of the contract may be based on qualitative considerations;
(iv)If the contracting agency wishes to use Federal-aid highway funds for final design and construction, the subsequent approval of final design and construction activities will be contingent upon a finding of price reasonableness by the contracting agency;
(v)The determination of price reasonableness for any design-build project funded with Federal-aid highway funds shall be based on at least one of the following methods:
(A)Compliance with the applicable procurement requirements for part 172, 635, or 636, where the contractor providing the final design or construction services, or both, is a person or entity other than the design-builder;
(B)A negotiated price determined on an open-book basis by both the design-builder and contracting agency; or
(C)An independent estimate by the contracting agency based on the price of similar work;
(vi)The contracting agency's finding of price reasonableness is subject to FHWA concurrence. [FR Doc. 07-3959 Filed 8-9-07; 3:55 pm]
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  • Pub. L. 109-58
  • 119 Stat. 594
  • 18 CFR 3
  • 18 CFR 8.11
  • 5 CFR 1320
  • 5 USC 601-12
  • 18 CFR 2
  • 18 CFR 4
  • 18 CFR 5
  • 18 CFR 6
  • 18 CFR 8
  • 18 CFR 11
  • 18 CFR 16
  • 18 CFR 33
  • 18 CFR 35
  • 18 CFR 131
  • 18 CFR 153
  • 18 CFR 154
  • 18 CFR 157
  • 18 CFR 292
  • 18 CFR 300
  • 18 CFR 366
  • 18 CFR 375
  • 18 CFR 376
  • 18 CFR 380
  • 18 CFR 385
  • 15 USC 717-717w
  • 16 USC 792-825y
  • 42 USC 4321-4361
  • 16 USC 791a-825r
  • 42 USC 7101-7352
  • 41 Stat. 1067
  • 49 Stat. 858
  • Pub. L. 96-511
  • 94 Stat. 2812
  • 5 USC 551-557
  • 42 USC 7102-7352
  • 43 USC 485-485k
  • 42 USC 16451-16463
  • 16 USC 791-825r
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C.F.R.§ 375.307
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C.F.R.§ 385.206
U.S.C.§ 552
C.F.R.§ 388.108
C.F.R.§ 157.8
C.F.R.§ 157.9
C.F.R.§ 380.4
F. Supp.268 F. Supp. 2d 835
Pub. L.Pub. L. 109-58
Stat.119 Stat. 594
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