[Federal Register Volume 59, Number 94 (Tuesday, May 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11845]


[[Page Unknown]]

[Federal Register: May 17, 1994]


                                                    VOL. 59, NO. 94

                                              Tuesday, May 17, 1994

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 645

[FHWA Docket No. 94-8]
RIN 2125-AD31

 

Utilities

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The FHWA proposes to amend its regulation on utilities. The 
proposed amendments would raise the upper limit for FHWA forgoing 
preaward review and/or approval of consultant contracts for preliminary 
engineering from $10,000 to $25,000 and would increase the ceiling for 
lump sum agreements from $25,000 to $100,000. They would clarify the 
methodology to be used to compute indirect or overhead rates and would 
require utilities to submit final billings within 180 calendar days 
following completion of the work. They would bring the definition of 
``clear zone'' into conformance with the American Association of State 
Highway and Transportation Officials (AASHTO) ``Roadside Design 
Guide.'' They would incorporate an amendment conforming the utilities 
regulations to the Intermodal Surface Transportation Efficiency Act of 
1991 (ISTEA). The FHWA proposes these changes to conform the utilities 
regulations to more recent laws, regulations, or guidance and to 
provide the State highway agencies clarification and more flexibility 
in implementing them.

DATES: Written comments are due on or before July 18, 1994.

ADDRESSES: All written, signed comments should refer to the docket 
number that appears at the top of this document and should be submitted 
to Federal Highway Administration, Office of Chief Counsel, Room 4232, 
HCC-10, 400 Seventh Street, SW., Washington, D.C. 20590. All comments 
and suggestions received will be available for examination at the above 
address between 8:30 a.m. and 3:30 p.m., e.t., Monday through Friday, 
except Federal legal holidays. Those desiring notification of receipt 
of comments must include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Jerry L. Poston, Office of 
Engineering, 202-366-0450, or Wilbert Baccus, Office of the Chief 
Counsel, 202-366-0780, FHWA, 400 Seventh Street, SW., Washington, DC 
20590.

SUPPLEMENTARY INFORMATION:

Background

    Present FHWA regulations regarding utility relocation and 
accommodation matters have evolved from basic principles established 
decades ago, with many of the policies remaining unchanged. The present 
regulations are found in title 23, Code of Federal Regulations, part 
645 (23 CFR part 645). Subpart A of this part pertains to utility 
relocations, adjustments, and reimbursement. Subpart B pertains to the 
accommodation of utilities. Part 645 was revised on May 15, 1985, when 
a final rule was published in the Federal Register at 50 FR 20344. Two 
significant changes have occurred since then, on February 2 and July 1, 
1988, when amendments to the regulation were published in the Federal 
Register at 53 FR 2829 and 53 FR 24932. The February 2 amendment 
provided that each State must decide, as part of its utility relocation 
plan, whether to allow longitudinal utility installations within the 
access control limits of freeways and if allowed under what 
circumstances. The July 1 amendment clarified that costs incurred by 
highway agencies in implementing projects solely for safety corrective 
measures to reduce the hazards of utilities to highway users are 
eligible for Federal-aid participation. The FHWA proposes to amend 
these regulations in the following manner and for the reasons indicated 
below.
    In Sec. 645.109, paragraph (b) would be amended to increase the 
ceiling from $10,000 to $25,000 for FHWA approval of consultant 
contracts for preliminary engineering and related work. This would 
allow the FHWA to forgo pre-award review and/or approval of proposed 
consultant contracts which are not expected to exceed $25,000. The 
proposed amendment would increase the number of consultant contracts 
that could be advanced without prior FHWA approval and would conform 
Sec. 645.109 to 23 CFR part 172, Administration of Engineering and 
Design Related Service Contracts, as revised on April 30, 1991.
    In Sec. 645.113, paragraph (f) would be amended to increase the 
ceiling from $25,000 to $100,000 for using the lump sum payment 
arrangement for reimbursement for utility adjustments on Federal-aid 
and direct Federal highway projects. The proposed amendment would 
provide the States greater flexibility in utilizing the lump sum 
payment arrangement. The purpose of allowing lump sum agreements in 
lieu of agreements based on an accounting of actual costs is to reduce 
the administrative burden associated with utility relocation projects. 
Under the lump sum process, cost accounting is easier, project billings 
are simplified, and a final audit of detailed cost records is not 
required. Final project costs are typically quite close to the costs 
estimated for small, routine projects. The FHWA believes that the small 
degree of accuracy that might be realized if more detailed cost 
accounting methods were followed does not justify the extra cost 
involved in carrying out detailed audits. This revision would increase 
the number of utility relocations potentially eligible for lump sum 
payment, would anticipate future needs, and would respond, in part, to 
the fact that since the $25,000 limit was established in 1983, 
inflation has reduced the number and limited the scope of projects 
eligible for lump sum payments.
    In Sec. 645.117, paragraph (d)(1) would be amended to clarify the 
methodology to be used for computing indirect overhead rates. The 
definition of indirect costs, and what may or may not be included, is 
set forth in 48 CFR part 31, Contract Cost Principles and Procedures. 
Part 31 is referenced in 49 CFR part 18, the common rule for State and 
local government program application to ``for-profit'' organizations. 
However, to avoid any misunderstandings and to assure consistency with 
the common rule, a reference to 48 CFR 31 will be placed in title 23. 
Section 645.117 would be further amended by revising paragraph (i)(2) 
to require utilities to submit final billings within 180 calendar days 
following completion of the work, otherwise previous payments to 
utilities may be considered final and projects may be closed out. This 
change would assist highway agencies in their efforts to timely obtain 
final billings from the utilities. Some utility bills are received 
years after the work is completed, thus delaying audit activity and 
project closure. Billings received from utilities after 180 calendar 
days following completion of work could be paid at the discretion of 
the highway agency.
    Section 645.207 would be amended to change the term ``clear 
recovery area'' to ``clear zone'' and to revise the definition of clear 
zone. In Sec. 645.209, paragraph (b) would be amended to change the 
term ``clear recovery area'' to ``clear zone.'' These changes would 
provide consistency with AASHTO's ``Roadside Design Guide,''\1\ a 1989 
document which should be used as a guide for establishing clear zones 
for various types of highways and operating conditions. The term 
``clear recovery area'' originated in 1985 and, though worded somewhat 
differently, meant essentially the same as the term ``clear zone.'' 
These terms were often used interchangeably. The ``Roadside Design 
Guide,'' however, uses the term ``clear zone'' exclusively. Hence, to 
avoid confusion and to comply with the predominant guidance document, 
the term ``clear zone'' is proposed to be incorporated into the utility 
regulations.
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    \1\The ``Roadside Design Guide'' is incorporated by reference at 
23 CFR 625.5(a)(3). It is available for purchase from the American 
Association of State Highway and Transportation Officials, suite 
225, 444 North Capitol Street, NW., Washington, DC 20001. Also, it 
is available for inspection as provided in 49 CFR part 7, appendix 
D.
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    In Sec. 645.215, paragraph (a) would be amended to change the term 
``Federal-aid system'' to ``Federal-aid highway.'' This revision is in 
accordance with a conforming amendment in section 1016(f)(1)(B) of the 
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) which 
changed the term ``Federal-aid system'' in 23 U.S.C. 109(l) to 
``Federal-aid highway.''

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, but the FHWA may issue a final 
rule at any time after the close of the comment period. In addition to 
late comments, the FHWA will also continue to file relevant information 
in the docket as it 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

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. The proposed amendments would 
simply make minor changes to update the utilities regulations to 
conform to recent laws, regulations, or guidance and to clarify 
existing policies. It is anticipated that the economic impact of this 
rulemaking will be minimal because the proposed amendments would only 
clarify or simplify procedures presently being used by State highway 
agencies and utilities. Therefore, a full regulatory evaluation is not 
required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small 
entities. Based on the evaluation, the FHWA certifies that this action 
will not have a significant economic impact on a substantial number of 
small entities. This is because the proposed amendments would only 
clarify or simplify procedures used by State highway agencies and 
utilities in accordance with existing laws, regulations, or guidance.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this action does not have sufficient federalism implications to 
warrant the preparation of a federalism assessment.

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 do not apply to this program.

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1980, 44 
U.S.C. 3501-3520.

National Environmental Policy Act

    The agency has analyzed this 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.

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 action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 645

    Grant Programs--transportation, Highways and roads, Utilities--
relocations, adjustment, reimbursement.

    Issued on: May 9, 1994.
Rodney E. Slater,
Federal Highway Administrator.
    In consideration of the foregoing, the FHWA proposes to amend title 
23, Code of Federal Regulations, part 645 as set forth below:

PART 645--UTILITIES

    1. The authority citation for part 645 continues to read as 
follows:

    Authority: 23 U.S.C. 101, 109, 111, 116, 123, and 315; 23 CFR 
1.23 and 1.27; 49 CFR 1.48(b); and E.O. 11990, 42 FR 26961 (May 24, 
1977).


Sec. 645.109  [Amended]

    2. In Sec. 645.109, paragraph (b) is amended by removing the figure 
``$10,000'' wherever it appears and adding in its place the figure 
``$25,000''.


Sec. 645.113  [Amended]

    3. In Sec. 645.113, paragraph (f) is amended by removing the figure 
``$25,000'' wherever it appears and adding in its place the figure 
``$100,000''.
    4. In Sec. 645.117, paragraphs (d)(1) and (i)(2) are revised to 
read as follows:


Sec. 645.117  Cost development and reimbursement.

* * * * *
    (d) Overhead and indirect construction costs. (1) Overhead and 
indirect construction costs not charged directly to work order or 
construction accounts may be allocated to the relocation provided the 
allocation is made on an equitable basis. All costs included in the 
allocation shall be eligible for Federal reimbursement, reasonable, 
actually incurred by the utility, and consistent with the provisions of 
48 CFR part 31.
* * * * *
    (i) Billings. * * * (2) The utility shall provide one final and 
complete billing of all costs incurred, or of the agreed-to lump-sum, 
within 180 calendar days following completion of the work, otherwise 
previous payments to the utility may be considered final. The final 
billing to the FHWA shall include a certification by the SHA that the 
work is complete, acceptable, and in accordance with the terms of the 
agreement.
* * * * *


Sec. 645.207  [Amended]

    5. Section 645.207 is amended by removing the paragraph 
designations from all definitions, by placing the definitions in 
alphabetical order, by removing the definition of ``clear recovery 
area,'' by revising the first sentence in the definition for ``clear 
roadside policy'' and by adding the definition ``clear zone'' to read 
as follows:


Sec. 645.207  Definitions.

* * * * *
    Clear roadside policy--that policy employed by a highway agency to 
provide a clear zone in order to increase safety, improve traffic 
operations, and enhance the aesthetic quality of highways by designing, 
constructing and maintaining highway roadsides as wide, flat, and 
rounded as practical and as free as practical from natural or 
manufactured hazards such as trees, drainage structures, nonyielding 
sign supports, highway lighting supports, and utility poles and other 
ground-mounted structures. * * *
    Clear zone--the total roadside border area starting at the edge of 
the traveled way, available for safe use by errant vehicles. This area 
may consist of a shoulder, a recoverable slope, a non-recoverable 
slope, and/or the area at the toe of a non-recoverable slope available 
for safe use by an errant vehicle. The desired width is dependent upon 
the traffic volumes and speeds, and on the roadside geometry. The 
American Association of State Highway and Transportation Officials 
(AASHTO) ``Roadside Design Guide,'' 1989, should be used as a guide for 
establishing clear zones for various types of highways and operating 
conditions. It is available for inspection from the FHWA Washington 
Headquarters and all FHWA Division and Regional Offices as prescribed 
in 49 CFR part 7, appendix D. Copies of current AASHTO publications are 
available for purchase from the American Association of State Highway 
and Transportation Officials, suite 225, 444 North Capitol Street, NW., 
Washington, DC 20001.
* * * * *


Sec. 645.209  [Amended]

    6. In Sec. 645.209, paragraph (b) is amended by removing the words 
``clear recovery'' in the second sentence and removing the words 
``clear recovery area'' in the third sentence and adding in their place 
the words ``clear zone''.


Sec. 645.215  [Amended]

    7. In Sec. 645.215, paragraph (a), the fifth sentence is amended by 
removing the words ``of the Federal-aid highway system'' and adding in 
their place the words ``of Federal-aid highways''.

[FR Doc. 94-11845 Filed 5-16-94; 8:45 am]
BILLING CODE 4910-22-P