83_FR_29836 83 FR 29713 - Indefinite Delivery and Indefinite Quantity Contracts for Federal-Aid Construction

83 FR 29713 - Indefinite Delivery and Indefinite Quantity Contracts for Federal-Aid Construction

DEPARTMENT OF TRANSPORTATION
Federal Highway Administration

Federal Register Volume 83, Issue 123 (June 26, 2018)

Page Range29713-29716
FR Document2018-13645

The FHWA has announced that the Indefinite Delivery and Indefinite Quantity (ID/IQ) method of contracting, including job order contracts, for low-cost construction contracts will be allowed, without FHWA approval, under certain circumstances. This advance notice of proposed rulemaking seeks comment on how FHWA may further expand this contracting method on a permanent basis.

Federal Register, Volume 83 Issue 123 (Tuesday, June 26, 2018)
[Federal Register Volume 83, Number 123 (Tuesday, June 26, 2018)]
[Proposed Rules]
[Pages 29713-29716]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-13645]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 83, No. 123 / Tuesday, June 26, 2018 / 
Proposed Rules

[[Page 29713]]



DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 635

[FHWA Docket No. FHWA-2018-0017]
RIN 2125-AF83


Indefinite Delivery and Indefinite Quantity Contracts for 
Federal-Aid Construction

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

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The FHWA has announced that the Indefinite Delivery and 
Indefinite Quantity (ID/IQ) method of contracting, including job order 
contracts, for low-cost construction contracts will be allowed, without 
FHWA approval, under certain circumstances. This advance notice of 
proposed rulemaking seeks comment on how FHWA may further expand this 
contracting method on a permanent basis.

DATES: Comments must be received on or before August 27, 2018. Late 
comments will be considered to the extent practicable.

ADDRESSES: You may submit comments, identified by the document number 
at the top of this document, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590.
     Hand Delivery/Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave. SE, between 9:00 a.m. and 5:00 p.m., 
Monday through Friday, except Federal holidays. The telephone number is 
(202) 366-9329.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For questions about this ANPRM, please 
contact Mr. John Huyer, FHWA Office of Program Administration, (651) 
291-6111, or via email at [email protected]. For legal questions, 
please contact Mr. Jomar Maldonado, FHWA Office of the Chief Counsel, 
202-366-1373, or via email at [email protected]. Office hours for 
the FHWA are from 8:00 a.m. to 4:30 p.m., ET, Monday through Friday, 
except Federal holidays.

SUPPLEMENTARY INFORMATION: On May 2, 2018,\1\ FHWA announced that 
contracting agencies no longer need to submit individual requests and 
work plans pursuant to Special Experimental Project No. 14 (SEP-14) for 
low-cost ID/IQ contracts that are awarded to the lowest responsive 
bidder based on an invitation for bids. The FHWA considers ``low-cost 
contracts'' to be 1- or 2-year contracts awarded to the lowest 
responsive bidder for construction of projects that qualify for FHWA 
categorical exclusions under the National Environmental Policy Act of 
1969 (23 CFR 771.117) and where the total value of task or work orders 
does not exceed $2,000,000 per year. However, the ID/IQ contracting 
technique continues to be authorized on an experimental basis while 
FHWA explores rulemaking to revise FHWA's regulations to accommodate 
this contracting technique. This ANPRM seeks comment on how FHWA may 
operationalize this contracting technique on a permanent basis.
---------------------------------------------------------------------------

    \1\ 83 FR 19393, May 2, 2018.
---------------------------------------------------------------------------

Background

    The ID/IQ contracts are a method of contracting that allows an 
indefinite quantity of services for a fixed time. They are used in the 
Federal Government when agencies cannot determine, above a specified 
minimum, the precise quantities of supplies or services that the 
Government will require during the contract period. For construction 
ID/IQ contracts, contractors bid unit prices for estimated quantities 
of standard work items, and task orders are used to define the location 
and quantities for specific work. The ID/IQ contracts may be awarded to 
the lowest responsive bidder based on an invitation for bids or the 
best-value proposer based on responses to Requests for Proposals. 
Contracting agencies use other names for these types of contracts, 
including on-call contracts, area-wide contracts, continuing contracts, 
push-button contracts, and task order contracts. Job Order Contracts 
(JOCs) are a form of ID/IQ contracts that utilize a construction task 
catalogue with pre-priced work item descriptions and where contractors 
bid ``mark-up rates.'' The contract is awarded to the lowest responsive 
bidder determined by their rates.
    Although ID/IQ contracts have been specifically authorized in the 
Federal procurement process (48 CFR 16.5) and for the contracting of 
architecture and engineering (A/E) services in the Federal-aid highway 
program (FAHP) (23 CFR part 172), the FAHP authorization and 
procurement laws for construction do not address the possible use of 
ID/IQ contracts. The FAHP construction procurement statute, 23 U.S.C. 
112(b)(1), requires contracts to be awarded by a competitive bidding 
process to the lowest responsive bidder (traditional design-bid-build 
project delivery method based upon the premise of a 100 percent-
complete design and a well-defined scope of work). The ID/IQ contracts 
are awarded based upon a general, but not completely defined, scope of 
work for a geographic area and limited time period (but not specific 
locations, designs, or quantities) and are often awarded based upon 
specific evaluation criteria.

A. Experience Under Special Experimental Project Number 14 (SEP-14)

    The FHWA has used its authority in 23 U.S.C. 502(b)(1) to test the 
use of ID/IQ contracts for the construction of FAHP projects through 
the SEP-14 Program for innovative contracting techniques. Under the 
SEP-14 Program, contracting agencies interested in testing an 
innovative contracting technique submit project-specific (or 
programmatic) work plans to FHWA for

[[Page 29714]]

their implementation. The FHWA Division Office evaluates the work plan, 
coordinates with FHWA Headquarters, and, if it finds the work plan to 
be acceptable, FHWA approves the use of the technique on a temporary 
basis for a project or group of pilot projects. Over time, FHWA 
Headquarters staff assess the initiative to determine if it is a 
technique that should be operationalized for the FAHP on a permanent 
basis without the need for individual requests, work plans, and 
evaluation reports. Operationalizing SEP-14 experiments has taken 
different paths in the past based on the source of the policy 
warranting innovation and FHWA's risk assessment, such as FHWA-
initiated memoranda (for example, cost plus time bidding and lane 
rental), FHWA-initiated rulemaking (for example, warranty clauses at 23 
CFR 635.413), and congressionally initiated statutory amendments (for 
example, design-build and contractor manager/general contractor under 
23 U.S.C. 112(b)(3)-(4)). More information on SEP-14 can be found at 
https://www.fhwa.dot.gov/construction/cqit/sep14.cfm.
    From 2007 to the present, FHWA, State departments of transportation 
(State DOTs), and Local Public Agencies (LPAs) through the State DOTs 
have experimented with the use of ID/IQ contracts and JOCs for 
construction. The FHWA has approved the use of this contracting method 
under SEP-14 for 16 different State DOTs and 6 LPAs. Evaluation reports 
indicate that JOCs and ID/IQ contracts allow for cost-effective 
contracting for small value contracts and preventive maintenance 
programs. Specifically, the reports indicate that these contracts 
eliminate the need for contracting agencies to advertise and award 
numerous small contracts and provide contracting agencies with wide 
flexibility in programming and addressing preventive maintenance needs.
    Having evaluated the use of JOCs and ID/IQ contracts for 
construction in the FAHP for over a decade, FHWA has now determined 
that they are suitable for operationalization. This is consistent with 
Senate report language accompanying fiscal years 2017 and 2018 
appropriations to operationalize JOCs. S. Rept. No. 114-243, 43 (April 
21, 2016); S. Rept. No. 115-138, 52 (July 27, 2017). The approach is 
also consistent with the Department of Justice's Office of Legal 
Counsel (OLC) opinion regarding competition and contracting 
requirements. See Competitive Bidding Requirements Under the Federal-
Aid Highway Program, 23 U.S.C. 112 (Aug. 23, 2013).

B. Steps for Operationalizing ID/IQs and JOCs for Construction in the 
FAHP

    The FHWA is proceeding with two phases to operationalize ID/IQ 
contracts and JOCs for construction in the FAHP. The first phase is the 
issuance of an FHWA Notice on how FHWA will allow ID/IQ contracts and 
JOCs for construction without the need for project-specific work plans 
from contracting agencies. The FHWA published a Federal Register Notice 
requesting public comment on allowing contracting agencies to establish 
ID/IQ and JOCs for low-cost construction contracts at 83 FR 19393 (May 
2, 2018). Please refer to that notice for details on the proposed 
implementation of phase one. The second phase is the initiation of this 
rulemaking.
    Amendments to the construction and approval regulations are 
necessary in order to allow the contracting technique on a permanent 
basis. To assist the Agency in this effort, FHWA seeks public comments 
on the following questions:
    1. Would it be appropriate to allow notice and award of the base 
ID/IQ contract or JOC prior to approval of plans, specifications and 
estimates, environmental review, and right-of-way clearances, but 
require these prior to the issuance of individual tasks?
    2. Would the allowance of time extensions be appropriate? What 
should be the minimum time extension length? What should be the maximum 
time extension length?
    3. Is the $2,000,000 per year limitation appropriate? Should this 
figure be indexed? If so, how?
    4. Should FHWA consider allowing ID/IQ contracts using best value 
considerations? What criteria (for example, past performance, quality, 
timeliness) should be considered for best value determinations?
    5. Should multiple award ID/IQ contracts be allowed? If so, what 
conditions or criteria should be used for awarding work orders?
    6. What contract term/extension limits should be allowed? Should 
``on-ramp'' procedures be used to allow new contractors to be 
considered for the award pool after the initial award and ``off-ramp'' 
procedures be used to discontinue the use of contractors who are not 
performing satisfactorily?
    7. What procedures should be in place to ensure fairness and 
transparency in the selection and implementation of multiple-award ID/
IQ contracts?
    8. What change conditions clause would be appropriate for ID/IQ 
contracts and JOCs? What would be an appropriate clause for significant 
changes in the character of work?
    9. How should the contracting agencies address the estimates 
required under 23 CFR 635.115? Would the estimate quantities be the 
minimum value provided under the contract, the estimate for the base 
contract, or the estimated maximum value under the contract including 
contract extensions?
    10. How would the 30 percent self-performance requirement in 23 CFR 
635.116(a) apply to ID/IQ contracts and JOCs? How would it be enforced 
given the nature of the task orders?
    11. How should authorizations to proceed with work be given for 
individual task orders?
    12. What costs, benefits, and cost-savings would result from 
allowing this contracting technique on a permanent basis? Please submit 
data that would help FHWA quantify cost-effectiveness, as well as 
quantifiable cost-savings associated with advertising and awarding 
small contracts and increasing flexibility in programming, and any 
other efficiencies that may result from the operationalization of this 
contracting method.
    13. Are there any other aspects related to the use of ID/IQ 
contracts or JOC for construction in the FAHP that FHWA should 
consider?
    The FHWA will consider all responses and comments and take them 
into account in the development of a notice of proposed rulemaking 
(NPRM) on this subject.

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, 
FHWA also will continue to file relevant information in the docket as 
it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material. An NPRM may be published at any time after close of the 
comment period.

Executive Order 13771 (Reducing Regulations and Controlling Regulatory 
Costs), Executive Order 12866 (Regulatory Planning and Review), 
Executive Order 13563 (Improving Regulation and Regulatory Review), and 
DOT Regulatory Policies and Procedures

    The FHWA has preliminarily determined that this action would not be 
a significant regulatory action within the meaning of Executive Order 
(E.O.)

[[Page 29715]]

12866 and within the meaning of the DOT regulatory policies and 
procedures. This action complies with E.O.s 12866, 13563, and 13771 to 
improve regulation. The FHWA anticipates that this rulemaking would be 
a deregulatory action and result in cost-savings because it proposes to 
remove the traditional procurement requirements for Federal-aid highway 
construction work for small construction work that would result in 
expeditious project delivery of low-cost and/or repetitive work. The 
FHWA seeks data on the costs, benefits, and cost-savings associated 
with this action.
    Based upon the information received in response to this ANPRM, FHWA 
intends to carefully consider the costs and benefits associated with 
this rulemaking. Accordingly, comments, information, and data are 
solicited on the economic impact of any proposed recommendation.
    This ANPRM is not a regulatory action under Executive Order 13771.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), and based upon the information received in response 
to this ANPRM, FHWA will evaluate the effects of any action proposed on 
small entities. This action merely seeks information regarding the use 
of the ID/IQ method of contracting, including JOCs, for low-cost 
construction contracts. Therefore, FHWA is unable to certify at this 
time whether or not it will have a significant impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    Because of the preliminary nature of this document and lack of 
necessary information on costs, FHWA is unable to evaluate the effects 
of the potential regulatory changes in regard to imposing a Federal 
mandate involving expenditure by State, local, and Indian Tribal 
governments, in the aggregate, or by the private sector, of $151.1 
million or more in any one year (2 U.S.C. 1532). Nevertheless, FHWA 
will evaluate any regulatory action that might be proposed in 
subsequent stages of this rulemaking to assess the effects on State, 
local, and Indian Tribal governments and the private sector.

Executive Order 12988 (Civil Justice Reform)

    The FHWA will evaluate any rule that may be proposed in response to 
comments received to ensure that such action meets applicable standards 
in section 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to 
minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The FHWA will evaluate any rule that may be proposed in response to 
comments received to ensure that such action meets the requirements of 
E.O. 13045, Protection of Children from Environmental Health Risks and 
Safety Risks. The Agency does not, however, anticipate that any such 
rule would be economically significant or would present an 
environmental risk to health or safety that may disproportionately 
affect children.

Executive Order 12630 (Taking of Private Property)

    The FHWA will evaluate any rule that may be proposed in response to 
comments received to ensure that any such rule will not affect a taking 
of private property or otherwise have taking implications under E.O. 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights.

Executive Order 13132 (Federalism)

    The FHWA will analyze any action that might be proposed in 
accordance with the principles and criteria contained in E.O. 13132, 
and FHWA anticipates that any action contemplated will not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. The FHWA also anticipates that any action taken 
will not preempt any State law or State regulation or affect the 
States' ability to discharge traditional State governmental functions. 
We encourage commenters to consider these issues.

Executive Order 13175 (Tribal Consultation)

    The FHWA will analyze any proposal under E.O. 13175, dated November 
6, 2000. The FHWA preliminarily believes that any proposal 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 law. Therefore, a Tribal 
summary impact statement may not be required.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing E.O. 
12372 regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), 
Federal agencies must obtain approval from the Office of Management and 
Budget (OMB) for each collection of information they conduct, sponsor, 
or require through regulations. Any action that might be contemplated 
in subsequent phases of this proceeding will be analyzed for the 
purpose of the PRA for its impact upon information collection. The FHWA 
would be required to submit any proposed collections of information to 
OMB for review and approval at the time the NPRM is issued, and, 
accordingly, seeks public comments. Interested parties are invited to 
send comments regarding any aspect of any proposed information 
collection requirements, including, but not limited to: (1) Whether the 
collection of information would be necessary for the performance of the 
functions of FHWA, including whether the information would have 
practical utility; (2) the accuracy of the estimated burden; (3) ways 
to enhance the quality, utility, and clarity of the collection of 
information; and (4) ways to minimize the collection burden without 
reducing the quality of the information collected.

National Environmental Policy Act

    The FHWA will analyze any action that might be proposed for the 
purposes of the National Environmental Policy Act of 1969, as amended 
(42 U.S.C. 4321-4347) to assess whether there would be any effect on 
the quality of the environment.

Executive Order 13211 (Energy Effects)

    The FHWA will analyze any proposed action under E.O. 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use, to assess whether there would be any adverse 
effect on the supply, distribution, or use of energy.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this section with the 
Unified Agenda.

List of Subjects in 23 CFR Part 635

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

    Authority: 23 U.S.C. 112 and 502; 23 CFR 635.


[[Page 29716]]


    Issued on June 20, 2018 under authority delegated in 49 CFR 
1.85.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2018-13645 Filed 6-25-18; 8:45 am]
BILLING CODE 4910-22-P



                                                                                                                                                                                                    29713

                                                  Proposed Rules                                                                                                 Federal Register
                                                                                                                                                                 Vol. 83, No. 123

                                                                                                                                                                 Tuesday, June 26, 2018



                                                  This section of the FEDERAL REGISTER                       Instructions: All submissions received              require during the contract period. For
                                                  contains notices to the public of the proposed          must include the agency name and                       construction ID/IQ contracts,
                                                  issuance of rules and regulations. The                  docket number for this rulemaking. All                 contractors bid unit prices for estimated
                                                  purpose of these notices is to give interested          comments received will be posted                       quantities of standard work items, and
                                                  persons an opportunity to participate in the            without change to www.regulations.gov,                 task orders are used to define the
                                                  rule making prior to the adoption of the final
                                                                                                          including any personal information                     location and quantities for specific
                                                  rules.
                                                                                                          provided.                                              work. The ID/IQ contracts may be
                                                                                                             Docket: For access to the docket to                 awarded to the lowest responsive bidder
                                                  DEPARTMENT OF TRANSPORTATION                            read background documents or                           based on an invitation for bids or the
                                                                                                          comments received, go to                               best-value proposer based on responses
                                                  Federal Highway Administration                          www.regulations.gov.                                   to Requests for Proposals. Contracting
                                                                                                          FOR FURTHER INFORMATION CONTACT: For                   agencies use other names for these types
                                                  23 CFR Part 635                                         questions about this ANPRM, please                     of contracts, including on-call contracts,
                                                                                                          contact Mr. John Huyer, FHWA Office of                 area-wide contracts, continuing
                                                  [FHWA Docket No. FHWA–2018–0017]
                                                                                                          Program Administration, (651) 291–                     contracts, push-button contracts, and
                                                  RIN 2125–AF83                                           6111, or via email at John.Huyer@                      task order contracts. Job Order Contracts
                                                                                                          dot.gov. For legal questions, please                   (JOCs) are a form of ID/IQ contracts that
                                                  Indefinite Delivery and Indefinite                      contact Mr. Jomar Maldonado, FHWA                      utilize a construction task catalogue
                                                  Quantity Contracts for Federal-Aid                      Office of the Chief Counsel, 202–366–                  with pre-priced work item descriptions
                                                  Construction                                            1373, or via email at Jomar.Maldonado@                 and where contractors bid ‘‘mark-up
                                                                                                          dot.gov. Office hours for the FHWA are                 rates.’’ The contract is awarded to the
                                                  AGENCY: Federal Highway
                                                                                                          from 8:00 a.m. to 4:30 p.m., ET, Monday                lowest responsive bidder determined by
                                                  Administration (FHWA), U.S.
                                                                                                          through Friday, except Federal holidays.               their rates.
                                                  Department of Transportation (DOT).
                                                                                                          SUPPLEMENTARY INFORMATION: On May 2,                      Although ID/IQ contracts have been
                                                  ACTION: Advance notice of proposed
                                                                                                          2018,1 FHWA announced that                             specifically authorized in the Federal
                                                  rulemaking (ANPRM).                                                                                            procurement process (48 CFR 16.5) and
                                                                                                          contracting agencies no longer need to
                                                  SUMMARY:   The FHWA has announced                       submit individual requests and work                    for the contracting of architecture and
                                                  that the Indefinite Delivery and                        plans pursuant to Special Experimental                 engineering (A/E) services in the
                                                  Indefinite Quantity (ID/IQ) method of                   Project No. 14 (SEP–14) for low-cost ID/               Federal-aid highway program (FAHP)
                                                  contracting, including job order                        IQ contracts that are awarded to the                   (23 CFR part 172), the FAHP
                                                  contracts, for low-cost construction                    lowest responsive bidder based on an                   authorization and procurement laws for
                                                  contracts will be allowed, without                      invitation for bids. The FHWA                          construction do not address the possible
                                                  FHWA approval, under certain                            considers ‘‘low-cost contracts’’ to be 1-              use of ID/IQ contracts. The FAHP
                                                  circumstances. This advance notice of                   or 2-year contracts awarded to the                     construction procurement statute, 23
                                                  proposed rulemaking seeks comment on                    lowest responsive bidder for                           U.S.C. 112(b)(1), requires contracts to be
                                                  how FHWA may further expand this                        construction of projects that qualify for              awarded by a competitive bidding
                                                  contracting method on a permanent                       FHWA categorical exclusions under the                  process to the lowest responsive bidder
                                                  basis.                                                  National Environmental Policy Act of                   (traditional design-bid-build project
                                                                                                          1969 (23 CFR 771.117) and where the                    delivery method based upon the
                                                  DATES:  Comments must be received on                    total value of task or work orders does                premise of a 100 percent-complete
                                                  or before August 27, 2018. Late                         not exceed $2,000,000 per year.                        design and a well-defined scope of
                                                  comments will be considered to the                      However, the ID/IQ contracting                         work). The ID/IQ contracts are awarded
                                                  extent practicable.                                     technique continues to be authorized on                based upon a general, but not
                                                  ADDRESSES: You may submit comments,                     an experimental basis while FHWA                       completely defined, scope of work for a
                                                  identified by the document number at                    explores rulemaking to revise FHWA’s                   geographic area and limited time period
                                                  the top of this document, by any of the                 regulations to accommodate this                        (but not specific locations, designs, or
                                                  following methods:                                      contracting technique. This ANPRM                      quantities) and are often awarded based
                                                    • Federal eRulemaking Portal: http://                 seeks comment on how FHWA may                          upon specific evaluation criteria.
                                                  www.regulations.gov. Follow the                         operationalize this contracting                        A. Experience Under Special
                                                  instructions for submitting comments.                   technique on a permanent basis.                        Experimental Project Number 14 (SEP–
                                                    • Fax: 1–202–493–2251.
                                                                                                          Background                                             14)
                                                    • Mail: Docket Management Facility,
                                                  U.S. Department of Transportation, 1200                   The ID/IQ contracts are a method of                    The FHWA has used its authority in
                                                  New Jersey Ave. SE, West Building                       contracting that allows an indefinite                  23 U.S.C. 502(b)(1) to test the use of ID/
sradovich on DSK3GMQ082PROD with PROPOSALS




                                                  Ground Floor, Room W12–140,                             quantity of services for a fixed time.                 IQ contracts for the construction of
                                                  Washington, DC 20590.                                   They are used in the Federal                           FAHP projects through the SEP–14
                                                     • Hand Delivery/Courier: West                        Government when agencies cannot                        Program for innovative contracting
                                                  Building Ground Floor, Room W12–140,                    determine, above a specified minimum,                  techniques. Under the SEP–14 Program,
                                                  1200 New Jersey Ave. SE, between 9:00                   the precise quantities of supplies or                  contracting agencies interested in
                                                  a.m. and 5:00 p.m., Monday through                      services that the Government will                      testing an innovative contracting
                                                  Friday, except Federal holidays. The                                                                           technique submit project-specific (or
                                                  telephone number is (202) 366–9329.                       1 83   FR 19393, May 2, 2018.                        programmatic) work plans to FHWA for


                                             VerDate Sep<11>2014   16:21 Jun 25, 2018   Jkt 244001   PO 00000   Frm 00001   Fmt 4702   Sfmt 4702   E:\FR\FM\26JNP1.SGM   26JNP1


                                                  29714                    Federal Register / Vol. 83, No. 123 / Tuesday, June 26, 2018 / Proposed Rules

                                                  their implementation. The FHWA                          B. Steps for Operationalizing ID/IQs and                  9. How should the contracting
                                                  Division Office evaluates the work plan,                JOCs for Construction in the FAHP                      agencies address the estimates required
                                                  coordinates with FHWA Headquarters,                        The FHWA is proceeding with two                     under 23 CFR 635.115? Would the
                                                  and, if it finds the work plan to be                    phases to operationalize ID/IQ contracts               estimate quantities be the minimum
                                                  acceptable, FHWA approves the use of                    and JOCs for construction in the FAHP.                 value provided under the contract, the
                                                  the technique on a temporary basis for                  The first phase is the issuance of an                  estimate for the base contract, or the
                                                  a project or group of pilot projects. Over              FHWA Notice on how FHWA will allow                     estimated maximum value under the
                                                  time, FHWA Headquarters staff assess                    ID/IQ contracts and JOCs for                           contract including contract extensions?
                                                  the initiative to determine if it is a                  construction without the need for                         10. How would the 30 percent self-
                                                  technique that should be                                project-specific work plans from                       performance requirement in 23 CFR
                                                  operationalized for the FAHP on a                       contracting agencies. The FHWA                         635.116(a) apply to ID/IQ contracts and
                                                  permanent basis without the need for                    published a Federal Register Notice                    JOCs? How would it be enforced given
                                                  individual requests, work plans, and                    requesting public comment on allowing                  the nature of the task orders?
                                                  evaluation reports. Operationalizing                    contracting agencies to establish ID/IQ                   11. How should authorizations to
                                                  SEP–14 experiments has taken different                  and JOCs for low-cost construction                     proceed with work be given for
                                                  paths in the past based on the source of                contracts at 83 FR 19393 (May 2, 2018).                individual task orders?
                                                  the policy warranting innovation and                    Please refer to that notice for details on                12. What costs, benefits, and cost-
                                                  FHWA’s risk assessment, such as                         the proposed implementation of phase                   savings would result from allowing this
                                                  FHWA-initiated memoranda (for                           one. The second phase is the initiation                contracting technique on a permanent
                                                  example, cost plus time bidding and                     of this rulemaking.                                    basis? Please submit data that would
                                                  lane rental), FHWA-initiated rulemaking                    Amendments to the construction and                  help FHWA quantify cost-effectiveness,
                                                  (for example, warranty clauses at 23                    approval regulations are necessary in                  as well as quantifiable cost-savings
                                                  CFR 635.413), and congressionally                       order to allow the contracting technique               associated with advertising and
                                                  initiated statutory amendments (for                     on a permanent basis. To assist the                    awarding small contracts and increasing
                                                  example, design-build and contractor                    Agency in this effort, FHWA seeks                      flexibility in programming, and any
                                                  manager/general contractor under 23                     public comments on the following                       other efficiencies that may result from
                                                  U.S.C. 112(b)(3)–(4)). More information                 questions:                                             the operationalization of this
                                                  on SEP–14 can be found at https://                         1. Would it be appropriate to allow                 contracting method.
                                                  www.fhwa.dot.gov/construction/cqit/                     notice and award of the base ID/IQ                        13. Are there any other aspects related
                                                  sep14.cfm.                                              contract or JOC prior to approval of                   to the use of ID/IQ contracts or JOC for
                                                     From 2007 to the present, FHWA,                      plans, specifications and estimates,                   construction in the FAHP that FHWA
                                                  State departments of transportation                     environmental review, and right-of-way                 should consider?
                                                  (State DOTs), and Local Public Agencies                 clearances, but require these prior to the                The FHWA will consider all
                                                  (LPAs) through the State DOTs have                      issuance of individual tasks?                          responses and comments and take them
                                                  experimented with the use of ID/IQ                         2. Would the allowance of time                      into account in the development of a
                                                  contracts and JOCs for construction. The                extensions be appropriate? What should                 notice of proposed rulemaking (NPRM)
                                                  FHWA has approved the use of this                       be the minimum time extension length?                  on this subject.
                                                  contracting method under SEP–14 for 16                  What should be the maximum time                        Rulemaking Analyses and Notices
                                                  different State DOTs and 6 LPAs.                        extension length?
                                                  Evaluation reports indicate that JOCs                      3. Is the $2,000,000 per year                          All comments received before the
                                                  and ID/IQ contracts allow for cost-                     limitation appropriate? Should this                    close of business on the comment
                                                  effective contracting for small value                   figure be indexed? If so, how?                         closing date indicated above will be
                                                  contracts and preventive maintenance                       4. Should FHWA consider allowing                    considered and will be available for
                                                  programs. Specifically, the reports                     ID/IQ contracts using best value                       examination in the docket at the above
                                                  indicate that these contracts eliminate                 considerations? What criteria (for                     address. Comments received after the
                                                  the need for contracting agencies to                    example, past performance, quality,                    comment closing date will be filed in
                                                  advertise and award numerous small                      timeliness) should be considered for                   the docket and will be considered to the
                                                  contracts and provide contracting                       best value determinations?                             extent practicable. In addition to late
                                                  agencies with wide flexibility in                          5. Should multiple award ID/IQ                      comments, FHWA also will continue to
                                                  programming and addressing preventive                   contracts be allowed? If so, what                      file relevant information in the docket
                                                  maintenance needs.                                      conditions or criteria should be used for              as it becomes available after the
                                                     Having evaluated the use of JOCs and                 awarding work orders?                                  comment period closing date, and
                                                  ID/IQ contracts for construction in the                    6. What contract term/extension                     interested persons should continue to
                                                  FAHP for over a decade, FHWA has                        limits should be allowed? Should ‘‘on-                 examine the docket for new material.
                                                  now determined that they are suitable                   ramp’’ procedures be used to allow new                 An NPRM may be published at any time
                                                  for operationalization. This is consistent              contractors to be considered for the                   after close of the comment period.
                                                  with Senate report language                             award pool after the initial award and
                                                  accompanying fiscal years 2017 and                                                                             Executive Order 13771 (Reducing
                                                                                                          ‘‘off-ramp’’ procedures be used to
                                                  2018 appropriations to operationalize                                                                          Regulations and Controlling Regulatory
                                                                                                          discontinue the use of contractors who
                                                  JOCs. S. Rept. No. 114–243, 43 (April                                                                          Costs), Executive Order 12866
                                                                                                          are not performing satisfactorily?
                                                  21, 2016); S. Rept. No. 115–138, 52 (July                  7. What procedures should be in place               (Regulatory Planning and Review),
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                                                  27, 2017). The approach is also                         to ensure fairness and transparency in                 Executive Order 13563 (Improving
                                                  consistent with the Department of                       the selection and implementation of                    Regulation and Regulatory Review),
                                                  Justice’s Office of Legal Counsel (OLC)                 multiple-award ID/IQ contracts?                        and DOT Regulatory Policies and
                                                  opinion regarding competition and                          8. What change conditions clause                    Procedures
                                                  contracting requirements. See                           would be appropriate for ID/IQ                           The FHWA has preliminarily
                                                  Competitive Bidding Requirements                        contracts and JOCs? What would be an                   determined that this action would not
                                                  Under the Federal-Aid Highway                           appropriate clause for significant                     be a significant regulatory action within
                                                  Program, 23 U.S.C. 112 (Aug. 23, 2013).                 changes in the character of work?                      the meaning of Executive Order (E.O.)


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                                                                           Federal Register / Vol. 83, No. 123 / Tuesday, June 26, 2018 / Proposed Rules                                            29715

                                                  12866 and within the meaning of the                     litigation, eliminate ambiguity, and                   Paperwork Reduction Act of 1995
                                                  DOT regulatory policies and procedures.                 reduce burden.                                           Under the Paperwork Reduction Act
                                                  This action complies with E.O.s 12866,                                                                         of 1995 (PRA) (44 U.S.C. 3501), Federal
                                                                                                          Executive Order 13045 (Protection of
                                                  13563, and 13771 to improve regulation.                                                                        agencies must obtain approval from the
                                                                                                          Children)
                                                  The FHWA anticipates that this                                                                                 Office of Management and Budget
                                                  rulemaking would be a deregulatory                         The FHWA will evaluate any rule that                (OMB) for each collection of
                                                  action and result in cost-savings because               may be proposed in response to                         information they conduct, sponsor, or
                                                  it proposes to remove the traditional                   comments received to ensure that such                  require through regulations. Any action
                                                  procurement requirements for Federal-                   action meets the requirements of E.O.                  that might be contemplated in
                                                  aid highway construction work for small                 13045, Protection of Children from                     subsequent phases of this proceeding
                                                  construction work that would result in                  Environmental Health Risks and Safety                  will be analyzed for the purpose of the
                                                  expeditious project delivery of low-cost                Risks. The Agency does not, however,                   PRA for its impact upon information
                                                  and/or repetitive work. The FHWA                        anticipate that any such rule would be                 collection. The FHWA would be
                                                  seeks data on the costs, benefits, and                  economically significant or would                      required to submit any proposed
                                                  cost-savings associated with this action.               present an environmental risk to health                collections of information to OMB for
                                                     Based upon the information received                  or safety that may disproportionately                  review and approval at the time the
                                                  in response to this ANPRM, FHWA                         affect children.                                       NPRM is issued, and, accordingly, seeks
                                                  intends to carefully consider the costs                                                                        public comments. Interested parties are
                                                                                                          Executive Order 12630 (Taking of
                                                  and benefits associated with this                                                                              invited to send comments regarding any
                                                                                                          Private Property)
                                                  rulemaking. Accordingly, comments,                                                                             aspect of any proposed information
                                                  information, and data are solicited on                    The FHWA will evaluate any rule that                 collection requirements, including, but
                                                  the economic impact of any proposed                     may be proposed in response to                         not limited to: (1) Whether the
                                                  recommendation.                                         comments received to ensure that any                   collection of information would be
                                                     This ANPRM is not a regulatory                       such rule will not affect a taking of                  necessary for the performance of the
                                                  action under Executive Order 13771.                     private property or otherwise have                     functions of FHWA, including whether
                                                                                                          taking implications under E.O. 12630,                  the information would have practical
                                                  Regulatory Flexibility Act                              Governmental Actions and Interference                  utility; (2) the accuracy of the estimated
                                                    In compliance with the Regulatory                     with Constitutionally Protected Property               burden; (3) ways to enhance the quality,
                                                  Flexibility Act (Pub. L. 96–354, 5 U.S.C.               Rights.                                                utility, and clarity of the collection of
                                                  601–612), and based upon the                                                                                   information; and (4) ways to minimize
                                                  information received in response to this                Executive Order 13132 (Federalism)
                                                                                                                                                                 the collection burden without reducing
                                                  ANPRM, FHWA will evaluate the effects                     The FHWA will analyze any action
                                                                                                                                                                 the quality of the information collected.
                                                  of any action proposed on small entities.               that might be proposed in accordance
                                                  This action merely seeks information                    with the principles and criteria                       National Environmental Policy Act
                                                  regarding the use of the ID/IQ method                   contained in E.O. 13132, and FHWA                        The FHWA will analyze any action
                                                  of contracting, including JOCs, for low-                anticipates that any action contemplated               that might be proposed for the purposes
                                                  cost construction contracts. Therefore,                 will not have sufficient federalism                    of the National Environmental Policy
                                                  FHWA is unable to certify at this time                  implications to warrant the preparation                Act of 1969, as amended (42 U.S.C.
                                                  whether or not it will have a significant               of a federalism assessment. The FHWA                   4321–4347) to assess whether there
                                                  impact on a substantial number of small                 also anticipates that any action taken                 would be any effect on the quality of the
                                                  entities.                                               will not preempt any State law or State                environment.
                                                                                                          regulation or affect the States’ ability to
                                                  Unfunded Mandates Reform Act of                         discharge traditional State governmental               Executive Order 13211 (Energy Effects)
                                                  1995                                                    functions. We encourage commenters to                    The FHWA will analyze any proposed
                                                    Because of the preliminary nature of                  consider these issues.                                 action under E.O. 13211, Actions
                                                  this document and lack of necessary                                                                            Concerning Regulations that
                                                  information on costs, FHWA is unable                    Executive Order 13175 (Tribal
                                                                                                                                                                 Significantly Affect Energy Supply,
                                                  to evaluate the effects of the potential                Consultation)
                                                                                                                                                                 Distribution, or Use, to assess whether
                                                  regulatory changes in regard to                           The FHWA will analyze any proposal                   there would be any adverse effect on the
                                                  imposing a Federal mandate involving                    under E.O. 13175, dated November 6,                    supply, distribution, or use of energy.
                                                  expenditure by State, local, and Indian                 2000. The FHWA preliminarily believes
                                                  Tribal governments, in the aggregate, or                that any proposal will not have                        Regulation Identification Number
                                                  by the private sector, of $151.1 million                substantial direct effects on one or more                A regulation identification number
                                                  or more in any one year (2 U.S.C. 1532).                Indian Tribes, will not impose                         (RIN) is assigned to each regulatory
                                                  Nevertheless, FHWA will evaluate any                    substantial direct compliance costs on                 action listed in the Unified Agenda of
                                                  regulatory action that might be proposed                Indian Tribal governments, and will not                Federal Regulations. The Regulatory
                                                  in subsequent stages of this rulemaking                 preempt Tribal law. Therefore, a Tribal                Information Service Center publishes
                                                  to assess the effects on State, local, and              summary impact statement may not be                    the Unified Agenda in April and
                                                  Indian Tribal governments and the                       required.                                              October of each year. The RIN contained
                                                  private sector.                                                                                                in the heading of this document can be
                                                                                                          Executive Order 12372                                  used to cross-reference this section with
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                                                  Executive Order 12988 (Civil Justice                    (Intergovernmental Review)                             the Unified Agenda.
                                                  Reform)                                                   Catalog of Federal Domestic
                                                                                                                                                                 List of Subjects in 23 CFR Part 635
                                                    The FHWA will evaluate any rule that                  Assistance Program Number 20.205,
                                                  may be proposed in response to                          Highway Planning and Construction.                       Grant programs—transportation,
                                                  comments received to ensure that such                   The regulations implementing E.O.                      Highways and roads, Reporting and
                                                  action meets applicable standards in                    12372 regarding intergovernmental                      recordkeeping requirements.
                                                  section 3(a) and 3(b)(2) of E.O. 12988,                 consultation on Federal programs and                     Authority: 23 U.S.C. 112 and 502; 23 CFR
                                                  Civil Justice Reform, to minimize                       activities apply to this program.                      635.



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                                                  29716                    Federal Register / Vol. 83, No. 123 / Tuesday, June 26, 2018 / Proposed Rules

                                                    Issued on June 20, 2018 under authority               building access list to attend the hearing             conveyors at surface and underground
                                                  delegated in 49 CFR 1.85.                               Regina Johnson at (202) 317–6901 (not                  mines. The Mine Safety and Health
                                                  Brandye L. Hendrickson,                                 toll-free numbers).                                    Administration (MSHA) is taking a
                                                  Acting Administrator, Federal Highway                   SUPPLEMENTARY INFORMATION: The                         number of actions related to mobile
                                                  Administration.                                         subject of the public hearing is the                   equipment and belt conveyors to
                                                  [FR Doc. 2018–13645 Filed 6–25–18; 8:45 am]             notice of proposed rulemaking (REG–                    improve miners’ safety, including
                                                  BILLING CODE 4910–22–P                                  132434–17) that was published in the                   providing technical assistance,
                                                                                                          Federal Register on Wednesday, March                   conducting awareness campaigns, and
                                                                                                          28, 2018 (83 FR 13206).                                developing best practices and training
                                                  DEPARTMENT OF THE TREASURY                                 The rules of 26 CFR 601.601(a)(3)                   materials. MSHA is also considering the
                                                                                                          apply to the hearing. Persons who wish                 role of engineering controls that would
                                                  Internal Revenue Service                                to present oral comments at the hearing                increase the use of seatbelts, enhance
                                                                                                          that submitted written comments by                     equipment operators’ ability to see all
                                                  26 CFR Part 301                                         June 26, 2018, must submit an outline                  areas near the machine, warn equipment
                                                                                                          of the topics to be addressed and the                  operators of potential collision hazards,
                                                  [REG–132434–17]                                                                                                prevent equipment operators from
                                                                                                          amount of time to be devoted to each
                                                  RIN 1545–BO12                                           topic by Thursday, July 19, 2018.                      driving over a highwall or dump point,
                                                                                                             A period of 10 minutes is allotted to               and help prevent entanglement hazards
                                                  Certain Non-Government Attorneys                        each person for presenting oral                        related to working near moving or re-
                                                  Not Authorized To Participate in                        comments. After the deadline for                       energized belt conveyors. MSHA is
                                                  Examinations of Books and Witnesses                     receiving outlines has passed, the IRS                 seeking information and data on
                                                  as a Section 6103(n) Contractor;                        will prepare an agenda containing the                  engineering controls that could reduce
                                                  Hearing                                                 schedule of speakers. Copies of the                    the risk of accidents and improve miner
                                                                                                          agenda will be made available, free of                 safety. MSHA is also seeking
                                                  AGENCY:  Internal Revenue Service (IRS),                                                                       suggestions from stakeholders on: Best
                                                                                                          charge, at the hearing or by contacting
                                                  Treasury.                                                                                                      practices, training materials, policies
                                                                                                          the Publications and Regulations Branch
                                                  ACTION: Notification of a public hearing                at (202) 317–6901 (not a toll-free                     and procedures, innovative
                                                  on notice of proposed rulemaking.                       number).                                               technologies, and any other information
                                                                                                             Because of access restrictions, the IRS             they may have to improve safety in and
                                                  SUMMARY:   This document provides a                                                                            around mobile equipment, and working
                                                  notification of public hearing on                       will not admit visitors beyond the
                                                                                                          immediate entrance area more than 30                   near and around belt conveyors.
                                                  proposed regulations relating to section                                                                          MSHA will hold stakeholder meetings
                                                  7602(a) of the Internal Revenue Code                    minutes before the hearing starts. For
                                                                                                          information about having your name                     to provide the mining community an
                                                  relating to administrative proceedings.                                                                        opportunity to discuss and share
                                                                                                          placed on the building access list to
                                                  DATES: The public hearing is being held                                                                        information about the issues raised in
                                                                                                          attend the hearing, see the FOR FURTHER
                                                  on Tuesday, July 31, 2018, at 10:00 a.m.                INFORMATION CONTACT section of this                    this notice. A separate notice
                                                  The IRS must receive outlines of the                    document.                                              announcing stakeholder meetings will
                                                  topics to be discussed at the public                                                                           be published in the Federal Register at
                                                  hearing by Thursday, July 19, 2018.                     Martin V. Franks,                                      a later date.
                                                  ADDRESSES: The public hearing is being                  Chief, Publications and Regulations Branch,            DATES: Comments must be received or
                                                  held in the IRS Auditorium, Internal                    Legal Processing Division, Associate Chief
                                                                                                                                                                 postmarked by midnight Eastern
                                                  Revenue Service Building, 1111                          Counsel, (Procedure and Administration).
                                                                                                                                                                 Daylight Time on December 24, 2018.
                                                  Constitution Avenue NW, Washington,                     [FR Doc. 2018–13695 Filed 6–25–18; 8:45 am]
                                                                                                                                                                 ADDRESSES: Comments must be
                                                  DC 20224. Due to building security                      BILLING CODE 4830–01–P
                                                                                                                                                                 identified with ‘‘RIN 1219–AB91’’ and
                                                  procedures, visitors must enter at the                                                                         may be sent to MSHA by any of the
                                                  Constitution Avenue entrance. In                                                                               following methods:
                                                  addition, all visitors must present a                   DEPARTMENT OF LABOR                                       • Federal E-Rulemaking Portal:
                                                  valid photo identification to enter the                                                                        http://www.regulations.gov. Follow the
                                                  building.                                               Mine Safety and Health Administration
                                                                                                                                                                 on-line instructions for submitting
                                                    Send Submissions to CC:PA:LPD:PR                                                                             comments.
                                                  (REG–132434–17), Room 5205, Internal                    30 CFR Parts 56 and 75
                                                                                                                                                                    • Email: zzMSHA-comments@
                                                  Revenue Service, P.O. Box 7604, Ben                     [Docket No. MSHA–2018–0016]                            dol.gov.
                                                  Franklin Station, Washington, DC                                                                                  • Mail: MSHA, Office of Standards,
                                                  20044. Submissions may be hand-                         RIN 1219–AB91                                          Regulations, and Variances, 201 12th
                                                  delivered Monday through Friday to                                                                             Street South, Suite 4E401, Arlington,
                                                  CC:PA:LPD:PR (REG–132434–17),                           Safety Improvement Technologies for
                                                                                                          Mobile Equipment at Surface Mines,                     Virginia 22202–5452.
                                                  Couriers Desk, Internal Revenue                                                                                   • Hand Delivery or Courier: 201 12th
                                                  Service, 1111 Constitution Avenue NW,                   and for Belt Conveyors at Surface and
                                                                                                          Underground Mines                                      Street South, Suite 4E401, Arlington,
                                                  Washington, DC 20224 or sent                                                                                   Virginia, between 9:00 a.m. and 5:00
                                                  electronically via the Federal                          AGENCY:  Mine Safety and Health                        p.m. Monday through Friday, except
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                                                  eRulemaking Portal at                                   Administration, Labor.                                 Federal holidays. Sign in at the
                                                  www.regulations.gov (IRS REG–132434–                                                                           receptionist’s desk on the 4th Floor East,
                                                                                                          ACTION: Request for information.
                                                  17).                                                                                                           Suite 4E401.
                                                  FOR FURTHER INFORMATION CONTACT:                        SUMMARY:  Mining safety could be                          • Fax: 202–693–9441.
                                                  Concerning the proposed regulations,                    substantially improved by preventing                      Instructions: All submissions must
                                                  William V. Spatz (202) 317–5461;                        accidents that involve mobile                          include ‘‘RIN 1219–AB91’’ or ‘‘Docket
                                                  concerning submissions of comments,                     equipment at surface coal mines and                    No. MSHA 2018–0016.’’ Do not include
                                                  the hearing and/or to be placed on the                  metal and nonmetal mines and belt                      personal information that you do not


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Document Created: 2018-06-26 00:51:36
Document Modified: 2018-06-26 00:51:36
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionAdvance notice of proposed rulemaking (ANPRM).
DatesComments must be received on or before August 27, 2018. Late comments will be considered to the extent practicable.
ContactFor questions about this ANPRM, please contact Mr. John Huyer, FHWA Office of Program Administration, (651) 291-6111, or via email at [email protected] For legal questions, please contact Mr. Jomar Maldonado, FHWA Office of the Chief Counsel, 202-366-1373, or via email at [email protected] Office hours for the FHWA are from 8:00 a.m. to 4:30 p.m., ET, Monday through Friday, except Federal holidays.
FR Citation83 FR 29713 
RIN Number2125-AF83
CFR AssociatedGrant Programs-Transportation; Highways and Roads and Reporting and Recordkeeping Requirements

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