00-18684. 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 departments.

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, [phone] or Mr. Steve Rochlis, Office of the Chief Counsel, [phone], 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 holidays.

SUPPLEMENTARY INFORMATION:

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 help.

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 [phone]. 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.

Background

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 restricted.

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 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.

PART 1—GENERAL

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 § 1.11 (a) to read as follows:

§ 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.

* * * * *