[Federal Register Volume 65, Number 144 (Wednesday, July 26, 2000)]
[Proposed Rules]
[Pages 45941-45942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18684]



Federal Highway Administration

23 CFR Part 1

[FHWA Docket No. FHWA-2000-7116]
RIN 2125-AE73

Engineering Services

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.


SUMMARY: The FHWA is proposing to amend the regulation for engineering 
services by removing a sentence that defined expenditures for the 
establishment, maintenance, general administration, supervision, and 
other overhead of the State highway department, or other 
instrumentality or entity referred to in the regulation, as ineligible 
for Federal participation. This proposed amendment to the regulation 
stems from a provision in the Transportation Equity Act for the 21st 
Century (TEA-21) that changed statutory requirements to allow for 
eligibility of administrative costs for State transportation 

DATES: Comments must be received on or before September 25, 2000.

ADDRESSES: Submit written, signed comments to the docket number that 
appears in the heading of this document to the Docket Clerk, U.S. DOT 
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-
0001. All comments received will be available for examination at the 
above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Max Inman, Federal-aid Financial 
Management Division, (202) 366-2853 or Mr. Steve Rochlis, Office of the 
Chief Counsel, (202) 366-1395, Federal Highway Administration, 400 
Seventh Street SW., Washington, D.C. 20590. Office hours are from 7:45 
a..m. to 4:45 p.m., e.t., Monday through Friday, except Federal 


Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL):     
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service (202) 512-1661. Internet 
users may reach the Office of the Federal Register's home page at 
http://www.nara.gov/fedreg and the Government Printing Office's 
database at http://www.access.gpo.gov/nara.


    Prior to the TEA-21 (Pub. L. 105-178, 112 Stat. 107 (1998)), 
expenditures for the establishment, maintenance, general 
administration, supervision, and other overhead of the State highway 
department, or other instrumentality or entity referred to in paragraph 
(b) of 23 CFR 1.11, were not eligible for Federal participation. 
However, section 1212(a) of the TEA-21 revised subsection (b) of 23 
U.S.C. 302 stating that compliance with subsection 302(a) had long been 
interpreted as restricting the Federal eligibility of State overhead 
costs. Subsection 302(b) now clarifies that cost eligibility is not 
    Section 302 of title 23, U.S.Code, requires a State to have a 
functioning transportation department as a condition for receiving 
Federal-aid highway funds. The FHWA has interpreted this provision, in 
accordance with legislative intent, to mean that the costs of operating 
the State transportation department were not eligible for Federal 
highway funds. This policy was inconsistent with general government 
policy issued by the Office of Management and Budget which allows 
Federal participation in a State's indirect or overhead costs. The 
purpose for this statutory change was to provide for a consistent 
policy, especially among Federal transportation agencies.
    Therefore, the FHWA is proposing to amend the regulation for 
engineering services. In 23 CFR 1.11(a), the first paragraph would be 
amended by removing the last sentence of the paragraph, ``Expenditures 
for the establishment, maintenance, general administration, 
supervision, and other overhead of the State highway department, or 
other instrumentality or entity referred to in paragraph (b) of this 
section shall not be eligible for Federal participation.''

Rulemaking Analyses and Notices

    All comments received before 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, but the FHWA may issue a final 
rule at any time after the close of the comment period. In addition to 
the late comments, the FHWA will also continue to file in the docket 
relevant information that becomes available after the comment closing 
date, and interested persons should continue to examine the docket for 
new material.

Executive Order 12866 (Regulatory Planning and Review)and DOT 
Regulatory Policies and Procedures

    We have determined that this proposed action is neither a 
significant rulemaking action within the meaning of Executive Order 
12866 nor a significant rulemaking under the regulatory policies and 
procedures of this Department. It is anticipated that the economic 
impact of this proposed rule will be minimal; therefore, a full 
regulatory evaluation is not required. Nevertheless, the FHWA solicits 
comments, information, and data on this issue.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act [5 U.S.C. 601-
612], we have evaluated the effects of this proposed action on small 
entities. Based on the evaluation and since this rulemaking action 
makes only minor amendments to the current regulations, the FHWA does 
not anticipate that the proposed rule will have a significant economic 
impact on a substantial number of small entities. In any event, States 
are not included in the definition of ``small entity'' as set forth in 
5 U.S.C. 601. Therefore, this proposed action would not have a 
significant economic impact on a substantial number of small entities 
for purposes of the Regulatory Flexibility Act.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in

[[Page 45942]]

Executive Order 13132 dated August 4, 1999. The FHWA anticipates that 
this proposed action would not have a substantial direct effect or 
sufficient federalism implications on States that would limit the 
policymaking discretion of the States. Nothing in this document 
directly preempts any State law or regulation.

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.

Paperwork Reduction Act of 1995

    This proposed rule does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501 et seq.

Unfunded Mandates Reform Act of 1995

    This proposed action does not impose a Federal mandate resulting in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any 
year. (2 U.S.C. 1531 et seq.)

Executive Order 12988 (Civil Justice Reform)

    This proposed 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 action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed action here is not economically significant and 
does not concern an environmental risk to health of safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This proposed action will not effect a taking of private property 
or otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

National Environmental Policy Act

    The FHWA has analyzed this proposed action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
has determined that this action would not have any effect on the 
quality of the environment. Therefore, an environmental impact 
statement is not required.

Regulation Identification Number

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

List of Subjects in 23 CFR Part 1

    Administration, Conflicts of interest, Engineering services, Grant 
programs-transportation, Highways and roads, Rights-of-way.

    Issued on: July 17, 2000.
Kenneth R. Wykle,
Federal Highway Administrator.
    In consideration of the foregoing, the FHWA proposes to amend, 
title 23, Code of Federal Regulations, part 1, as set forth below.


    1. The authority citation for part 1 continues to read as follows:

    Authority: 23 U.S.C. 315; and 49 CFR 1.48 (b).
    2. Revise Sec. 1.11 (a) to read as follows:

Sec. 1.11  Engineering services.

    (a) Federal participation. Costs of engineering services performed 
by the State highway department of any instrumentality or entity 
referred to in paragraph (b) of this section may be eligible for 
Federal participation only to the extent that such costs are directly 
attributable and properly allocable to specific projects.
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[FR Doc. 00-18684 Filed 7-25-00; 8:45 am]