[Federal Register Volume 60, Number 128 (Wednesday, July 5, 1995)]
[Rules and Regulations]
[Pages 34846-34851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16403]



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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: Final rule.

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SUMMARY: The FHWA is amending its regulations on utilities. These 
amendments eliminate the requirement for FHWA preaward review and/or 
approval of consultant contracts for preliminary engineering and 
increase the ceiling for lump sum agreements from $25,000 to $100,000. 
They clarify the meaning of the term ``approved program'' and the 
methodology to be used to compute indirect or overhead rates. They 
require utilities to submit final billings within one year following 
completion of the utility relocation work. They eliminate the 
requirements for State highway agencies (SHAs) to certify the 
completion of utility work and to provide evidence of payment prior to 
reimbursement. They bring the definition of ``clear zone'' into 
conformance with the American Association of State Highway and 
Transportation Officials (AASHTO) ``Roadside Design Guide.'' Finally, 
they incorporate an amendment conforming the utilities regulations to 
the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), 
Pub. L. 102-240, 105 Stat. 1914. The FHWA is making these changes to 
conform the utilities regulations to more recent laws, regulations, and 
guidance; to clarify these regulations; and to give the SHAs more 
flexibility in implementing them.

EFFECTIVE DATE: This final rule is effective August 4, 1995.

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

SUPPLEMENTARY INFORMATION:

Background

    The amendments in this final rule are based primarily on the notice 
of 

[[Page 34847]]
proposed rulemaking (NPRM) published in the May 17, 1994, Federal 
Register at 59 FR 25579 (FHWA Docket No. 94-8). All comments received 
in response to this NPRM have been considered in adopting these 
amendments.
    Current FHWA regulations regarding utility relocation and 
accommodation matters have evolved from basic principles established 
decades ago, with many of the policies remaining unchanged. The current 
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 SHA 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.
    This final rule amends these regulations in the following manner 
and for the reasons indicated below.
    In Sec. 645.109, paragraph (b) is amended to eliminate the 
requirement for FHWA preaward review and/or approval of consultant 
contracts for preliminary engineering and related work. The amendment 
increases the number of consultant contracts that can be advanced 
without prior FHWA approval and provides for consistency in the 
administration of consultant agreements.
    In Sec. 645.113, paragraph (f) is amended to increase the ceiling 
for lump sum agreements from $25,000 to $100,000. This provides the 
SHAs 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 increases the number of 
utility relocations potentially eligible for lump sum payment, 
anticipates future needs, and responds, 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. 645.113, paragraph (g)(1) is amended to change the term 
``approved program'' to ``Statewide transportation improvement 
program.'' Title 23, United States Code, section 135 (23 U.S.C. 135) 
requires a Statewide transportation improvement program to include all 
projects in the State which are proposed for Federal-aid highway 
funding. This program replaces the ``approved program'' previously 
required in 23 U.S.C. 105. This amendment conforms the utilities 
regulation to section 135 by specifying that utility relocation work 
must be included in an ``approved Statewide transportation improvement 
program.''
    In Sec. 645.117, paragraph (d)(1) is 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 Federal 
grants, cooperative agreements, and subawards to State, local, and 
Indian tribal governments. However, to avoid any misunderstandings and 
to assure consistency with the common rule, a reference to 48 CFR 31 is 
added to the utilities regulations.
    In Sec. 645.117, paragraph (i)(2) is revised to require utilities 
to submit final billings within one year following completion of the 
work, otherwise previous payments to utilities may be considered final 
and projects may be closed out, except as agreed to between the SHA and 
the utility. This change will assist highway agencies in their efforts 
to obtain timely 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 more 
than one year following completion of the utility relocation work may 
be paid if the SHA so desires, and Federal funds may participate in 
these payments.
    In Sec. 645.117, paragraph (i)(2) is further revised to eliminate 
the requirement that the SHA certify that utility work is complete, 
acceptable, and in accordance with the terms of the agreement. These 
certifications are no longer considered necessary because all third 
party agreements and non-construction contracts are reviewed by the 
FHWA on a program basis. This revision will reduce paperwork and 
expedite the submittal of final billings from the utilities.
    In Sec. 645.117, paragraph (i)(4) is removed. This paragraph 
prohibited Federal reimbursement for a final utility billing until the 
highway agency furnished evidence that it had paid the utility with its 
own funds. This regulation is contrary to the general FHWA practice 
whereby the FHWA reimburses the SHAs for costs incurred, not for actual 
payments made.
    Section 645.207 is amended to change the term ``clear recovery 
area'' to ``clear zone,'' to revise the definition of ``clear zone'' to 
conform to the one contained in AASHTO's ``Roadside Design Guide,''\1\ 
and to add a definition of the term ``border area'' which is contained 
in the definition of ``clear zone.'' In Sec. 645.209, paragraph (a) is 
amended to clarify the FHWA's continuing intent to accommodate 
utilities within highway rights-of-way when sufficient clear zone is 
not available, and paragraph (b) is amended to change the term ``clear 
recovery area'' to ``clear zone.'' These changes provide consistency 
with AASHTO's ``Roadside Design Guide,'' 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, the term 
``clear zone'' is incorporated into the utilities regulations.

    \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, 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) is 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 
ISTEA changing the term ``Federal-aid system'' in 23 U.S.C. 109(l) to 
``Federal-aid highway.'' 

[[Page 34848]]


Discussion of Comments

    Interested persons were invited to participate in the development 
of this final rule by submitting written comments on the NPRM to Docket 
94-8 on or before July 18, 1994. Comments were received from 10 SHAs 
and 6 utilities representatives. A summary of the comments received 
relative to each proposed amendment follows.
    In Sec. 645.109, paragraph (b) is amended to eliminate the 
requirement for FHWA preaward review and/or approval of consultant 
contracts for preliminary engineering. Four SHAs and 5 utilities 
commenters were in favor of the amendment proposed in the NPRM to 
increase the upper limit on the value of such contracts from $10,000 to 
$25,000. One SHA recommended that the upper limit be increased even 
more.
    In Sec. 645.113, paragraph (f) is amended to increase the ceiling 
for lump sum agreements from $25,000 to $100,000. Four SHAs were in 
favor of this proposed amendment; 5 utilities commenters recommended 
that the upper limit be increased even more.
    In Sec. 645.117, paragraph (d)(1) is amended to clarify the 
methodology to be used to compute indirect or overhead rates. Four SHAs 
and 5 utilities commenters were in favor of this proposed amendment.
    In Sec. 645.117, paragraph (i)(2) is amended to require utilities 
to submit final billings within one year following completion of work. 
Four SHAs were in favor of the amendment proposed in the NPRM to 
establish a 180-day final billing deadline. Three SHAs and 6 utilities 
commenters recommended that the final billing deadline be established 
for a period of time longer than 180 calendar days proposed in the NPRM 
and suggested several other time periods.
    In Secs. 645.207 and 645.209, the definition of ``clear zone'' is 
revised to parallel the definition of this term in AASHTO's ``Roadside 
Design Guide.'' Four SHAs were in favor of this proposed amendment; 1 
SHA recommended that the Texas Transportation Institute's (TTI) ``A 
Supplement to a Guide for Selecting, Designing, and Locating Traffic 
Barriers'' be included with the AASHTO ``Roadside Design Guide'' as a 
good technical reference; 5 utilities commenters recommended that the 
clear zone definition specify that the clear zone ends at the right-of-
way line.
    Section 645.215 incorporates a conforming amendment contained in 
section 1016(f)(1)(B) of the ISTEA that changes the term ``Federal-aid 
systems'' to ``Federal-aid highways.'' Four SHAs were in favor of this 
proposed amendment.
    A discussion of the specific comments received and the FHWA 
responses to them follows.

Comment 1

    One SHA recommended that Sec. 645.109(b) be modified to increase 
the upper limit on the value of consultant contracts for preliminary 
engineering for which the FHWA may forgo preaward review and/or 
approval from $10,000 to $100,000, rather than simply increasing it to 
$25,000 as the FHWA had proposed.

Response

    The FHWA has decided to totally eliminate the requirement for FHWA 
preaward review and/or approval of consultant contracts for preliminary 
engineering, consistent with the administration of other consultant 
agreements. The determination to allow a utility to use a consultant 
for preliminary engineering should be made by the SHA, not the FHWA, 
when the utility agreement is executed. This change will be 
accomplished by eliminating the last sentence of Sec. 645.109(b).

Comment 2

    Five utilities commenters recommended that Sec. 645.113(f) be 
modified to increase the ceiling for lump sum agreements from $25,000 
to $200,000. They asserted that this was desirable because the 
administrative cost of tracking ``actual cost'' projects adds 
significantly to the cost of the undertaking for both the utility and 
the SHAs that must approve the billing.
Response

    This recommendation was not adopted. The increase from $25,000 to 
$100,000 will increase the number of utility relocations potentially 
eligible for lump sum payments and reduce the administrative burden 
associated with utility relocation projects. An increase even higher 
than $100,000, such as to the recommended $200,000, may have been 
possible. However, it is desired at this time to retain the $100,000 
figure because it seems to represent a good break point between major 
and minor work and because it corresponds more closely to increasing 
inflation rates which have over the years reduced the number and 
limited the scope of projects eligible for lump sum payments. 
Provisions for lump sum payments for utility relocation work were first 
addressed by the FHWA in Policy and Procedure Memorandum 30-4 (PPM 30-
4)\2\ dated December 31, 1957. These provisions pertained to very minor 
work estimated to cost less than $2,500, work that normally would be 
performed by a utility with its own forces. Increases up to the present 
$25,000 limit, which was established in 1983, were based primarily upon 
inflation rates. Projecting inflation from 1983 to 1995 provides a 
figure which is slightly less than $100,000, but the $100,000 figure is 
used several other places in the Federal regulations as a break point 
between major and minor work. Even so, the FHWA will monitor the 
effects of increasing the lump sum ceiling to $100,000, primarily 
through discussions with States and utilities' coordinators, and will 
consider the possibility of increasing the figure in the near future if 
such is deemed appropriate.

    \2\The Federal Highway Administration's Policy and Procedure 
Memorandums are available for inspection and copying from the FHWA 
headquarters and field offices as prescribed at 49 CFR part 7, 
appendix D.
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Comment 3

    Three SHAs and 6 utilities commenters had reservations about the 
proposed amendment to Sec. 645.117(i)(2) to require utilities to submit 
final billings within 180 calendar days following completion of work. 
They all basically supported the concept of establishing a deadline for 
submitting final billings, but strongly indicated that 180 calendar 
days were not enough. The utilities commenters recommended that at 
least 270 calendar days be provided. Two SHAs recommended 365 calendar 
days. The utilities commenters asserted that (a) a 180 calendar day 
requirement would be burdensome to utilities, especially those that are 
joint pole users, because of cross billing from other parties, and (b) 
it is often very difficult to secure final bills simply because of the 
number of parties involved and the time required to verify and 
reconcile the accuracy of the billing. One SHA stated that the 180 
calendar day limit would not provide the utilities sufficient time to 
compile changes and submit their final bills, and that, historically, 
80 percent of utility billings are received between 180 and 365 
calendar days after completion of the utility relocation work. Another 
SHA indicated that the 180 calendar day limit would put an unreasonable 
burden on the State since its regulations did not contain a time limit.

Response

    These recommendations were adopted with a slight, but more 
flexible, modification. The comments revealed a 

[[Page 34849]]
general consensus that it would be desirable to establish a time period 
following completion of the utility relocation work during which final 
billings must be submitted, but that 180 calendar days were not enough. 
Hence, Sec. 645.117(i)(2) is amended to require utilities to submit 
final billings within one year following completion of the utility 
relocation work, otherwise previous payments to the utility may be 
considered final, except as agreed to between the SHA and the utility.

Comment 4

    One SHA requested clarification of the term ``completion of work'' 
as it is used in the proposed amendment to Sec. 645.117(i)(2). For 
example, the commenter asked whether the work would be completed when 
finished in the field by the utility or its contractor, when the 
highway project was finished, or at some other milestone.

Response

    The intent of the proposed amendment was to require utilities to 
submit final billings within a certain time period following physical 
completion of the utility relocation work in the field. Hence, 
Sec. 645.117(i)(2) is amended to require utilities to submit final 
billings within one year following completion of the utility relocation 
work.

Comment 5

    One SHA suggested that the proposed amendment to require utilities 
to submit final billings within 180 calendar days following completion 
of work be modified to allow for time extensions beyond the 180 
calendar day limit if the SHA should so choose. The SHA argued that 
this modification was needed to alleviate conflicts with a State law 
permitting claims against the State to be submitted within one year 
from the time of accrual.

Response

    This recommendation was adopted. As stated in the NPRM, the FHWA 
intended to allow billings received after the specified time period to 
be paid at the discretion of the highway agency. Hence, 
Sec. 645.117(i)(2) is amended to require utilities to submit final 
billings within one year following completion of the utility relocation 
work, with exceptions as agreed to between the SHA and the utility.

Comment 6

    Five utilities commenters recommended that the definition of 
``clear zone'' in the proposed amendment to Sec. 645.207 be modified to 
clearly indicate that the clear zone ends at the right-of-way line.

Response

    This suggested amendment was not made to the ``clear zone'' 
definition, but was incorporated elsewhere in the regulations. The 
purpose for amending Sec. 645.207 was to provide consistency with 
AASHTO's ``Roadside Design Guide.'' To do so, the term ``clear recovery 
area'' was changed to ``clear zone'' and the definition of ``clear 
zone'' in the ``Roadside Design Guide'' was adopted. However, to 
clarify the intent of the revised regulation, a definition of ``border 
area'' was added. This, taken together with the definition of ``clear 
zone,'' means that the area that actually can be made available for the 
safe use of errant vehicles is limited by the right-of-way width. For 
all practical purposes, the old definition of ``clear recovery area'' 
is the same as the actual clear zone. In cases where sufficient right-
of-way is not available to accommodate the minimum clear zone distance 
required, highway agencies should consider acquiring additional right-
of-way, taking into account not only clear zone but other highway and 
utility needs. In all cases, full consideration should be given to 
sound engineering principles and economic factors. Utility facilities 
should be treated the same as other roadside hazards. Little will be 
gained by moving utilities, unless their presence in the clear zone 
presents a significantly greater hazard to motorists than any other 
hazards.
Comment 7

    One SHA suggested that TTI's ``A Supplement to a Guide for 
Selecting, Designing, and Locating Traffic Barriers'' be included with 
the AASHTO ``Roadside Design Guide'' as a good technical reference in 
the proposed amendment to Sec. 645.207.

Response

    This suggestion was not adopted. AASHTO's ``Roadside Design 
Guide,'' 1989, superseded AASHTO's ``Guide for Selecting, Designing, 
and Locating Traffic Barriers,'' 1977, and the TTI supplement which 
came into use in the early 1980's, even though much of the guidance in 
the new document was the same as in the superseded documents. One 
significant difference between the ``Roadside Design Guide'' and the 
two earlier documents is the determination of minimum clear zones on 
slopes. Current AASHTO guidelines consider embankment slopes between 
3:1 and 4:1 to be non-recoverable (i.e., any vehicle leaving the 
roadway will likely go to the bottom of the slope). Consequently, the 
clear zone should not end on the slope itself, and a clear run-out area 
beyond the toe of such a slope is desirable. This was not considered in 
the 1977 barrier guide or the TTI supplement, so the information in 
these documents is no longer accurate for non-recoverable slopes. Any 
SHA may modify the earlier guidance and continue to use it to determine 
minimum clear zones on existing facilities. However, the FHWA believes 
a more practical approach is for each highway agency to develop and 
implement a policy on utility pole locations that encourages maximum 
offsets consistent with existing conditions and based on a cost-
effectiveness analysis.

Comment 8

    One SHA expressed a concern about non-regulatory guidance in the 
FHWA's ``Federal-Aid Policy Guide''\3\ dealing with the use of fixed 
amount (lump sum) payments to utilities. The wording in the non-
regulatory supplement to part 645 (NS 23 CFR 645A, Attachment), case I, 
paragraph 2, indicates that the lump sum payments may be made for work 
performed by a utility with its own forces. It was requested that the 
FHWA guidance in the non-regulatory supplement be revised to allow lump 
sum payments to be made for work performed for a utility under a 
utility-let or continuing contract.

    \3\The Federal Highway Administration's ``Federal-Aid Policy 
Guide'' is available for inspection and copying from the FHWA 
headquarters and field offices as prescribed at 49 CFR part 7, 
appendix D.
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Response

    Provisions for lump sum payments for utility relocation work were 
first addressed by the FHWA in PPM 30-4 dated December 31, 1957. These 
provisions pertained to very minor work estimated to cost less than 
$2,500, work that normally would be performed by a utility with its own 
forces. There was no apparent intent, however, in PPM 30-4 or any 
subsequent FHWA guidance or regulation, to preclude lump sum payments 
for work performed by a contractor under a utility-let contract. If the 
utility uses an existing continuing contractor, payment should be made 
by the method the utility has previously established with the 
contractor. If the continuing contract establishes a lump sum payment 
for certain types of work, this payment method can be used for the 
Federal-aid project if the SHA believes the cost is reasonable. If the 
utility lets a contract, payment should be based on the methods that 
are customary and acceptable for the work 

[[Page 34850]]
involved, which could potentially include the lump sum payment method.
    In light of these comments, the FHWA is revising its regulations to 
incorporate the amendments outlined in the NPRM with some modifications 
to clarify the proposals and to address concerns raised by commenters.

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 amendments would simply make 
minor changes to update the utilities regulations to conform to recent 
laws, regulations, and guidance and to clarify existing policies. It is 
anticipated that the economic impact of this rulemaking will be minimal 
because the amendments would only clarify or simplify procedures 
presently being used by SHAs 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 amendments would only clarify or 
simplify procedures used by SHAs and utilities in accordance with 
existing laws, regulations, and 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 it does not have sufficient federalism implications to warrant the 
preparation of a separate federalism assessment. This action merely 
conforms the utilities regulations to recent laws, regulations, and 
guidance; clarifies these regulations; and gives the SHAs more 
flexibility in implementing them.

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

    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.

    In consideration of the foregoing, title 23, Code of Federal 
Regulations, part 645 is amended as set forth below.


    Issued on: June 22, 1995.
Rodney E. Slater,
Federal Highway Administrator.
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 last 
sentence.


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'', and paragraph (g)(1) is amended by revising the term 
``approved program'' to read ``approved Statewide transportation 
improvement program''.
    4. In Sec. 645.117, paragraph (i)(4) is removed, and 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. (1) * * *
    (2) The utility shall provide one final and complete billing of all 
costs incurred, or of the agreed-to lump-sum, within one year following 
completion of the utility relocation work, otherwise previous payments 
to the utility may be considered final, except as agreed to between the 
SHA and the utility.
* * * * *
    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 removing the words ``clear recovery area'' from the first 
sentence in the definition for ``clear roadside policy'' and adding in 
their place the words ``clear zone''; and by adding the definitions of 
``border area'' and ``clear zone'' as follows:


Sec. 645.207  Definitions.

* * * * *
    Border area--the area between the traveled way and the right-of-way 
line.
* * * * *
    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 
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, 

[[Page 34851]]
444 North Capitol Street, NW., Washington, DC. 20001.
* * * * *
    6. In Sec. 645.209, paragraph (a) is amended by adding a new 
sentence between the existing third and fourth sentences to read as set 
forth below, and paragraph (b) is amended by removing the words ``clear 
recovery'' in the second sentence and ``clear recovery area'' in the 
third sentence and adding in their place the words ``clear zone''.


Sec. 645.209  General requirements.

    (a) Safety. * * * The lack of sufficient right-of-way width to 
accommodate utilities outside the desirable clear zone, in and of 
itself, is not a valid reason to preclude utilities from occupying the 
highway right-of-way. * * *


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. 95-16403 Filed 7-3-95; 8:45 am]
BILLING CODE 4910-22-P