[Federal Register Volume 89, Number 20 (Tuesday, January 30, 2024)]
[Proposed Rules]
[Pages 5819-5823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01705]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 172

[FHWA Docket No. FHWA-2023-0046]
RIN 2125-AG12


Procurement, Management, and Administration of Engineering and 
Design Related Services

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

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

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SUMMARY: This proposed rule would update the regulations governing the 
procurement, management, and administration of engineering and design 
related services directly related to a highway construction project 
that is funded through a discretionary grant administered by FHWA. The 
intent of the proposed rule is to clarify how the regulations apply to 
recipients other than State transportation agencies (STA). This 
proposed rulemaking would also make technical changes and corrections 
to improve the administration of these regulations.

DATES: Comments must be received on or before April 1, 2024. Late 
comments will be considered to the extent practicable.

ADDRESSES: You may submit comments by any of the following methods:
    <bullet> Fax: (202) 493-2251;
    <bullet> Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE, Washington, DC 20590;
    <bullet> Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m. ET, Monday 
through Friday, except Federal holidays; or
    <bullet> Electronically through the Federal eRulemaking Portal: 
www.regulations.gov. Follow the online instructions for submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Mr. John McAvoy, Consultant Services 
Program Manager, FHWA Office of Preconstruction, Construction, and 
Pavements, (202) 853-5593, or via email at <a href="/cdn-cgi/l/email-protection#cfa5a0a7a1e1a2acaeb9a0b68faba0bbe1a8a0b9"><span class="__cf_email__" data-cfemail="f3999c9b9ddd9e9092859c8ab3979c87dd949c85">[email protected]</span></a>, or Mr. 
Lev Gabrilovich, Senior Attorney Advisor, FHWA Office of the Chief 
Counsel, (202) 366-3813, or via email at <a href="/cdn-cgi/l/email-protection#3a565f4c145d5b58485356554c5359527a5e554e145d554c"><span class="__cf_email__" data-cfemail="3f535a4911585e5d4d56535049565c577f5b504b11585049">[email protected]</span></a>. 
Office hours for the FHWA are from 8 a.m. to 4:30 p.m., ET, Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document and all comments received may be viewed online 
through the Federal eRulemaking portal at www.regulations.gov. The 
website is available 24 hours each day, 366 days this year. Please 
follow the instructions. Electronic submission and retrieval help and 
guidelines are available under the help section of the website.
    An electronic copy of this document may also be downloaded by 
accessing the Office of the Federal Register's home page at 
www.FederalRegister.gov, or the Government Printing Office's website at 
www.GovInfo.gov.
    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

[[Page 5820]]

comments, FHWA will also 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. A final rule may be published at any time after the close of 
the comment period and after FHWA has had the opportunity to review the 
comments submitted.

Background and Legal Authority

    Through this NPRM, FHWA proposes to modify existing regulations for 
the administration of engineering and design related service contracts 
to clarify how the regulations apply to recipients other than STAs that 
are awarded FHWA-administered discretionary grants and to make 
technical amendments to improve the regulations. The FHWA, through the 
Federal-aid Highway Program (FAHP) and other programs administered 
under chapter 1 of title 23, United States Code (U.S.C.), provides 
financial resources and technical assistance to State and local 
governments and other public authorities for planning, design, 
constructing, operating, preserving, and improving public roads and 
other surface transportation infrastructure. The primary authority for 
the procurement, management, and administration of engineering and 
design related services funded with a highway construction grant 
administered under chapter 1 of 23 U.S.C. is codified at 23 U.S.C. 
112(b)(2). Generally, each contract for engineering and design related 
services paid for with Federal funds and leading to a construction 
project must be awarded in accordance with the qualifications-based 
selection procedures prescribed in the Brooks Act (40 U.S.C. 1101 et 
seq.) and must accept and apply consultant indirect cost rates 
established by a cognizant Federal or State agency in accordance with 
the Federal Acquisition Regulation (FAR) cost principles (48 CFR part 
31). The FHWA promulgated 23 CFR part 172 as a means of implementing 
the Brooks Act. Part 172 defines and illustrates specific 
responsibilities of an STA and its subrecipients (entities that receive 
a subaward from their STA).
    The Infrastructure Investment and Jobs Act, (Pub. L. 117-58) also 
known as the ``Bipartisan Infrastructure Law,'' (BIL) provided $550 
billion over fiscal years 2022 through 2026 in new Federal investment 
in roads, bridges, mass transit, water infrastructure, resilience 
improvements, and broadband. The BIL provides approximately $350 
billion for Federal highway programs.

Statement of the Problem

    Most of the funding in the BIL for highway projects is distributed 
to STAs based on formulas specified in Federal law. However, the BIL 
also provides funding through a wide range of discretionary grant 
programs, including the ``Rebuilding American Infrastructure with 
Sustainability and Equity'' (RAISE) program, the ``Nationally 
Significant Multimodal Freight and Highway Projects'' (INFRA) program, 
the ``National Infrastructure Project Assistance Program'' (MEGA), the 
``Safe Streets and Roads for All'' (SS4A) program, and others. Each of 
these discretionary grant programs has its own eligibility 
requirements, but for many programs, entities other than STAs are 
eligible to apply for and receive grant awards. For example, under the 
RAISE grant program, in addition to STAs, eligible entities include 
U.S. territories, Metropolitan Planning Organizations (MPO), federally 
recognized Indian Tribes, local governments, and other public 
authorities.\1\ The SS4A grants are only available to MPOs, political 
subdivisions of a State, and federally recognized Indian Tribes.\2\
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    \1\ 49 U.S.C. 6702(a)(2).
    \2\ BIL, sec. 24112(a)(2).
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    When a recipient other than an STA is awarded a discretionary grant 
under the programs described above, the award is made through an 
executed grant agreement with DOT rather than as a subaward from the 
STA. This non-STA recipient is responsible for compliance with all 
Federal regulations pertaining to the grant, including those covering 
the procurement of professional services. In their current form, the 
regulations at 23 CFR part 172 could be interpreted as applying to all 
recipients of discretionary grants administered under chapter 1 of 23 
U.S.C., not just STAs. Consequently, non-STA recipients would be 
responsible for compliance with part 172, including the requirement 
that recipients prepare and maintain written policies and procedures 
for the procurement, management, and administration of engineering and 
design related consultant services. However, the requirements of 23 
U.S.C. 112(b)(2), and therefore 23 CFR part 172, apply only to the 
procurement, management, and administration of engineering and design 
related consultant services for projects ``under [the] supervision'' of 
an STA.\3\ This includes projects administered by entities other than 
STAs when these entities are subrecipients of STAs but not when these 
entities are recipients of an award directly from DOT, and FHWA did not 
intend for 23 CFR part 172 to apply beyond the scope of 23 U.S.C. 
112(b)(2). Non-STA recipients that receive or are eligible to receive 
discretionary grant funds directly from FHWA do not necessarily have 
FHWA-approved written policies and procedures in place for the 
procurement of professional services that comply with 23 CFR part 172, 
and creating these policies and procedures from scratch would create an 
undue burden on non-STA recipients and FHWA. By removing any ambiguity 
regarding the applicability of 23 CFR part 172, this NPRM proposes to 
clarify the responsibilities of the non-STA recipients to remain 
compliant with Federal regulations while reducing unnecessary 
regulatory burden.
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    \3\ 23 U.S.C. 112(a).
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Section-by-Section Discussion of the Proposals

    The FHWA proposes to revise 23 CFR part 172-Administration of 
Engineering and Design Related Service Contracts as follows:

Authority Citation

    The FHWA proposes to revise the authority citation for 23 CFR part 
172 to remove the reference to 23 U.S.C. 402. Part 172 no longer 
applies to programs and activities authorized under 23 U.S.C. 402, and 
the remaining authorities cited provide the necessary authority for 23 
CFR part 172; therefore, citation to 23 U.S.C. 402 is unnecessary.

Section 172.1--Purpose and Applicability

    Section 172.1 would be amended to clarify that the provisions of 23 
CFR part 172 apply only to STAs and their subrecipients.

Section 172.3--Definitions

    In section 172.3, the definitions for the terms ``Consultant'' and 
``Subconsultant'' would be modified to remove outdated citations to 2 
CFR part 200 that formerly contained definitions of ``Recipient'' and 
``Subrecipient.'' The proposed rule would add definitions for 
``Recipient'' and ``Subrecipient'' and give those terms the same 
meaning as they are defined in 2 CFR 200.1. Finally, the definition of 
``Contracting agencies'' would be revised to eliminate reference to 
``other recipients.''

Section 172.5--Program Management and Oversight

    Section 172.5 would be amended to remove the references to 
``recipient'' and ``other recipient'' to clarify that the

[[Page 5821]]

regulations apply only to STAs and their subrecipients. Also, a 
reference to a provision in 2 CFR part 200 would be revised to reflect 
the current location of that provision in 2 CFR part 200.

Section 172.7--Procurement Methods and Procedures

    Section 172.7 would be amended to remove the references to 
``recipient'' and ``other recipient'' to clarify the applicability of 
the regulations only to STAs and their subrecipients. Also, references 
to a provision in 2 CFR part 200 would be revised to reflect the 
current location of that provision in 2 CFR part 200.

Section 172.9--Procurement Methods and Procedures

    Section 172.9 would be amended to remove a reference to 
``recipient'' to clarify the applicability of the regulations only to 
STAs and their subrecipients. A reference to a provision in 2 CFR part 
200 would be revised to reflect the current location of that provision 
in 2 CFR part 200. Also, a typographical error in an internal cross-
reference in Sec.  172.9(a)(3)(iv)(B)(1) will be corrected. The 
regulation in this paragraph currently references Sec.  
172.5(a)(1)(ii); the corrected reference would read Sec.  
172.7(a)(1)(ii).

Section 172.11--Allowable Costs and Oversight

    Section 172.11 would be amended to remove references to 
``recipient'' and ``other recipient,'' and where appropriate, 
substitute ``STA'' to clarify that the regulations apply only to STAs 
and their subrecipients.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    The FHWA has considered the impacts of this rule under Executive 
Order (E.O.) 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and 
Review, as amended by E.O. 14094 (``Modernizing Regulatory Review''), 
and DOT's regulatory policies and procedures. This proposed rule 
complies with E.O. 12866 and E.O. 13563 to improve regulation. The 
Office of Information and Regulatory Affairs within the Office of 
Management and Budget (OMB) has determined that this rulemaking is not 
a significant regulatory action under section 3(f) of E.O. 12866. 
Accordingly, OMB has not reviewed it under that E.O.
    It is anticipated that the proposed rule would not be economically 
significant for purposes of E.O. 12866. The proposed rule would not 
have an annual effect on the economy of $200 million or more. The 
proposed rule would not adversely affect in a material way the economy, 
any sector of the economy, productivity, competition, or jobs. In 
addition, the proposed changes would not interfere with any action 
taken or planned by another Agency and would not materially alter the 
budgetary impact of any entitlements, grants, user fees, or loan 
programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed rule 
on small entities, such as local governments and businesses. Based on 
the evaluation, FHWA anticipates that this action would not have a 
significant economic impact on a substantial number of small entities. 
The proposed rule would clarify the applicability of the requirements 
for the procurement, management, and administration of engineering and 
design related services that use FHWA-administered funding and are 
directly related to a construction project. Specifically, the proposed 
rule would clarify that the regulations in 23 CFR part 172 do not apply 
to recipients of FHWA-administered grants that are not STAs. 
Consequently, the economic impact of this proposed rule on small 
entities is expected to be minimal. Therefore, FHWA certifies that the 
proposed action would not have a significant economic impact on a 
substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires 
Federal Agencies to prepare a written statement, which includes 
estimates of anticipated impacts, before proposing ``any rule that 
includes any Federal mandate that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more (adjusted annually for 
inflation) in any one year.'' The current threshold after adjustment 
for inflation is $183 million, using the most current (2023) Implicit 
Price Deflator for the Gross Domestic Product. This rule will not 
result in the expenditure by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $183 million or more in any 
one year (2 U.S.C. 1532). Further, in compliance with the Unfunded 
Mandates Reform Act of 1995, FHWA will evaluate any regulatory action 
that might be proposed in subsequent stages of the proceeding to assess 
the effects on State, local, and Tribal governments and the private 
sector. In addition, the definition of ``Federal Mandate'' in the 
Unfunded Mandates Reform Act excludes financial assistance of the type 
in which State, local, or tribal governments have authority to adjust 
their participation in the program in accordance with changes made in 
the program by the Federal Government. The FAHP and other FHWA-
administered financial assistance impacted by this proposed rule permit 
this type of flexibility.

Executive Order 13132 (Federalism Assessment)

    The E.O. 13132 requires Agencies to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that may have a substantial, direct effect on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. The FHWA has analyzed this proposed rule in accordance 
with the principles and criteria contained in E.O. 13132. The FHWA has 
determined that this proposed rule would not have sufficient federalism 
implications to warrant the preparation of a federalism assessment. The 
FHWA has also determined that this proposed rule would not preempt any 
State law or State regulation or affect the States' ability to 
discharge traditional State governmental functions.

Paperwork Reduction Act

    Federal Agencies must obtain approval from OMB for each collection 
of information they conduct, sponsor, or require through regulations. 
This proposed action does not contain a collection of information 
requirement for the purpose of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501, et seq.).

National Environmental Policy Act

    The FHWA has analyzed this rule pursuant to the National 
Environmental Policy Act (NEPA) and has determined that it is 
categorically excluded under 23 CFR 771.117(c)(20), which applies to 
the promulgation of rules, regulations, and directives. Categorically 
excluded actions meet the criteria for categorical exclusions under the 
Council on Environmental Quality regulations and under 23 CFR 
771.117(a) and normally do not require any further NEPA approvals by 
FHWA. This proposed rule

[[Page 5822]]

would clarify the applicability of FHWA regulations governing the 
requirements for the procurement, management, and administration of 
engineering and design related services that use FHWA-administered 
grant funding and are directly related to a construction project. The 
FHWA does not anticipate any adverse environmental impacts from this 
rule; moreover, no unusual circumstances are present under 23 CFR 
771.117(b).

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed action under E.O. 13175, dated 
November 6, 2000, and believes that this proposed action would not have 
substantial direct effects on one or more Indian Tribes, would not 
impose substantial direct compliance costs on Indian Tribal 
governments, and would not preempt Tribal law. This proposed rule would 
clarify the applicability of FHWA regulations governing the 
requirements for the procurement, management, and administration of 
engineering and design related services that use FHWA-administered 
grant funding and are directly related to a construction project. As 
such, this proposed rule would not impose any direct compliance 
requirements on Indian Tribal governments nor would it have any 
economic or other impacts on the viability of Indian Tribes. Therefore, 
a Tribal summary impact statement is not required.

Executive Order 12898 (Environmental Justice)

    The E.O. 12898 requires that each Federal Agency make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. The FHWA has 
determined that this proposed rule does not raise any environmental 
justice issues.

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 172

    Government procurement, Grant programs--transportation, Highways 
and roads.

Shailen P. Bhatt,
Administrator, Federal Highway Administration.

    For the reasons stated in the preamble, FHWA proposes to amend 
title 23, Code of Federal Regulations, part 172, as follows:

PART 172--PROCUREMENT, MANAGEMENT, AND ADMINISTRATION OF 
ENGINEERING AND DESIGN RELATED SERVICES

0
1. The authority citation for part 172 is revised to read as follows:

    Authority: 23 U.S.C. 106, 112, 114(a), 302, and 315; 40 U.S.C. 
1101 et seq.; 48 CFR part 31; 49 CFR 1.48(b); and 2 CFR part 200.
0
2. Amend Sec.  172.1 by revising the fourth sentence and adding a 
sentence at the end of the section. The revision and addition read as 
follows:


Sec.  172.1  Purpose and applicability.

    * * * State transportation agencies (STA) shall ensure that 
subrecipients comply with the requirements of this part and the Uniform 
Administrative Requirements, Cost Principles and Audit Requirements For 
Federal Awards rule. * * * The provisions of this part shall only apply 
to State transportation agencies and their subrecipients.
0
3. Amend Sec.  172.3 as follows:
0
a. Revise the definitions for Consultant and Contracting agencies;
0
b. Add a definition in alphabetical order for Recipient;
0
c. Revise the definition of Subconsultant; and
0
b. Add a definition in alphabetical order for Subrecipient.
    The revisions and additions read as follows:


Sec.  172.3  Definitions.

* * * * *
    Consultant means the individual or firm providing engineering and 
design related services as a party to a contract with a recipient or 
subrecipient of Federal assistance.
* * * * *
    Contracting agencies means a State transportation agency or a 
procuring agency of the State acting in conjunction with and at the 
direction of the State transportation agency and all subrecipients that 
are responsible for the procurement, management, and administration of 
engineering and design related services.
* * * * *
    Recipient has the same meaning as defined in 2 CFR 200.1.
* * * * *
    Subconsultant means the individual or firm contracted by a 
consultant to provide engineering and design related or other types of 
services that are part of the services which the consultant is under 
contract to provide to a recipient or subrecipient (as defined in of 
Federal assistance.
    Subrecipient has the same meaning as defined in 2 CFR 200.1.
0
4. Amend Sec.  172.5 by revising paragraph (a) introductory text, the 
third sentence of paragraph (a)(4), paragraph (b)(1) introductory text, 
the second and third sentences of paragraph (c) introductory text, and 
paragraph (c)(15) to read as follows:


Sec.  172.5  Program management and oversight.

    (a) STA responsibilities. STAs shall develop and sustain 
organizational capacity and provide the resources necessary for the 
procurement, management, and administration of engineering and design 
related consultant services, reimbursed in whole or in part with FAHP 
funding, as specified in 23 U.S.C. 302(a). Responsibilities shall 
include the following:
* * * * *
    (4) * * * Nothing in this part shall be taken as relieving the STA 
of its responsibility under laws and regulations applicable to the FAHP 
for the work performed under any consultant agreement or contract 
entered into by a subrecipient.
    (b) * * *
    (1) Adopting written policies and procedures prescribed by the 
awarding STA for the procurement, management, and administration of 
engineering and design related consultant services in accordance with 
applicable Federal and State laws and regulations; or when not 
prescribed, shall include:
* * * * *
    (c) * * * The FHWA shall approve the written policies and 
procedures, including all revisions to such policies and procedures, of 
the STA to assess compliance with applicable requirements. The STA 
shall approve the written policies and procedures, including all 
revisions to such policies and procedures, of a subrecipient to assess 
compliance with applicable requirements. * * *
* * * * *
    (15) Retaining supporting programmatic and contract records, as

[[Page 5823]]

specified in 2 CFR 200.334 and the requirements of this part;
* * * * *
0
5. Amend Sec.  172.7 by revising paragraph (a)(1)(iv)(F), the first 
sentence of paragraph (a)(1)(v)(E), paragraph (b)(1)(i), and the first 
sentence of paragraph (b)(5)(i) to read as follows:


Sec.  172.7  Procurement methods and procedures.

    (a) * * *
    (1) * * *
    (iv) * * *
    (F) The contracting agency shall retain supporting documentation of 
the solicitation, proposal, evaluation, and selection of the consultant 
in accordance with this section and the provisions of 2 CFR 200.334.
    (v) * * *
    (E) The contracting agency shall retain documentation of 
negotiation activities and resources used in the analysis of costs to 
establish elements of the contract in accordance with the provisions of 
2 CFR 200.334. * * *
* * * * *
    (b) * * *
    (1) * * *
    (i) STAs and their subrecipients shall comply with procurement 
requirements established in State and local laws, regulations, 
policies, and procedures that are not addressed by or are not in 
conflict with applicable Federal laws and regulations, as specified in 
2 CFR part 1201.
* * * * *
    (5) * * *
    (i) When FAHP funds participate in a consultant services contract, 
the contracting agency shall receive approval from FHWA, or the STA, as 
appropriate, before utilizing a consultant to act in a management 
support role for the contracting agency; unless an alternate approval 
procedure has been approved. * * *
* * * * *
0
6. Amend Sec.  172.9 by revising paragraph (a)(3)(iv)(B)(1), paragraph 
(c)(1)(iv), and paragraph (d)(1)(vii) to read as follows:


Sec.  172.9  Contracts and administration.

    (a) * * *
    (3) * * *
    (iv) * * *
    (B) * * *
    (1) Through an additional qualifications-based selection procedure, 
which may include, but does not require, a formal RFP in accordance 
with Sec.  172.7(a)(1)(ii); or
* * * * *
    (c) * * *
    (1) * * *
    (iv) Access by the STA, subrecipient, FHWA, the U.S. Department of 
Transportation's Inspector General, the Comptroller General of the 
United States, or any of their duly authorized representatives to any 
books, documents, papers, and records of the consultant which are 
directly pertinent to that specific contract for the purpose of making 
audit, examination, excerpts, and transcriptions;
* * * * *
    (d) * * *
    (1) * * *
    (vii) Documenting contract monitoring activities and maintaining 
supporting contract records, as specified in 2 CFR 200.334.
* * * * *
0
7. Amend Sec.  172.11 by revising paragraph (b)(1)(iii) introductory 
text, the second and third sentences of paragraph (c)(2) introductory 
text, the second sentence of paragraph (c)(3)(i), and the second and 
third sentences of paragraph (d) to read as follows:


Sec.  172.11  Allowable costs and oversight.

* * * * *
    (b) * * *
    (1) * * *
    (iii) When the indirect cost rate has not been established by a 
cognizant agency in accordance with paragraph (b)(1)(ii) of this 
section, the STA shall perform an evaluation of a consultant's or 
subconsultant's indirect cost rate prior to acceptance and application 
of the rate to contracts administered by the STA or its subrecipients. 
The evaluation performed by STAs to establish or accept an indirect 
cost rate shall provide assurance of compliance with the Federal cost 
principles and may consist of one or more of the following:
* * * * *
    (c) * * *
    (2) * * * An STA may employ a risk-based oversight process to 
provide reasonable assurance of consultant compliance with Federal cost 
principles on FAHP funded contracts administered by the STA or its 
subrecipients. If employed, this risk-based oversight process shall be 
incorporated into STA written policies and procedures, as specified in 
Sec.  172.5(c). * * *
* * * * *
    (3) * * *
    (i) * * * The certification requirement shall apply to all indirect 
cost rate proposals submitted by consultants and subconsultants for 
acceptance by an STA. * * *
* * * * *
    (d) * * * FHWA, STAs, and subrecipients of FAHP funds may share 
audit information in complying with the STA's or subrecipient's 
acceptance of a consultant's indirect cost rates pursuant to 23 U.S.C. 
112 and this part provided that the consultant is given notice of each 
use and transfer. Audit information shall not be provided to other 
consultants or any other government agency not sharing the cost data, 
or to any firm or government agency for purposes other than complying 
with the STA's or subrecipient's acceptance of a consultant's indirect 
cost rates pursuant to 23 U.S.C. 112 and this part without the written 
permission of the affected consultants. * * *

[FR Doc. 2024-01705 Filed 1-29-24; 8:45 am]
BILLING CODE 4910-22-P


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