[Federal Register Volume 65, Number 27 (Wednesday, February 9, 2000)]
[Proposed Rules]
[Pages 6344-6350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2674]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 645

[FHWA Docket No. FHWA-99-6232]
RIN 2125-AE68


Utilities

AGENCY:  Federal Highway Administration (FHWA), DOT.

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

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SUMMARY:  The FHWA proposes to amend its regulation prescribing 
policies, procedures, and reimbursement provisions for the adjustment 
and relocation of existing utility facilities, and for the 
accommodation of new utility facilities and private lines on the right-
of-way of Federal-aid and direct Federal highway projects. These 
amendments will bring the FHWA's utilities regulation into conformance 
with recent laws, regulations, or guidance, and will provide State 
transportation departments (STDs) clarification and more flexibility in 
implementing it.

DATES:  Comments in response to this NPRM must be received on or before 
April 10, 2000.

ADDRESSES:  Submit written, signed comments to the docket number 
appearing at the top of this document. You must submit your comments to 
the Docket Clerk, U.S. DOT Dockets Room, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590. All comments will be available for 
examination at the above address between 9 a.m. and 5 p.m., e.t., 
Monday through Friday, except Federal holidays. To receive notification 
of receipt of comments you must include a pre-addressed, stamped 
envelope or postcard.

FOR FURTHER INFORMATION CONTACT:  Mr. Paul Scott, (202) 366-4104, 
Office of Program Administration, HIPA-20, or Mr. Reid Alsop, (202) 
366-0791, Office of the Chief Counsel, HCC-31. Office hours are from 
7:45 a.m. to 4:15 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 by using a 
modem and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (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.

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 23 CFR part 645. Subpart A of this part 
pertains to utility relocations, adjustments, and reimbursement. 
Subpart B pertains to the accommodation of utilities.
    The utility regulations were revised on May 15, 1985, when a final 
rule was published in the Federal Register at 50 FR 20344. Three 
significant changes have occurred since then, on February 2 and July 1, 
1988, when amendments to the regulation were published at 53 FR 2829 
and 53 FR 24932; and on July 5, 1995, when a final rule was published 
at 60 FR 34846. The February 2, 1988, 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, 
1988, 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 July 5, 1995, amendment raised the upper limit for 
FHWA forgoing preaward review and/or approval of consultant contracts 
for preliminary engineering from $10,000 to $25,000; increased the 
ceiling for lump sum agreements from $25,000 to $100,000; clarified the 
methodology to be used to compute indirect or overhead rates; required 
utilities to submit final billings within 180 calendar days following 
completion of the work; brought the definition of ``clear zone'' into 
conformance with the American Association of State Highway and 
Transportation Officials (AASHTO) ``Roadside Design Guide''; and 
conformed the utilities regulations to the Intermodal Surface 
Transportation Efficiency Act of 1991 (ISTEA), Public Law 102-240, 105 
Stat. 1914.
    The proposed amendments would change the regulation as follows:

--Eliminate the $100,000 upper limit for lump-sum agreements.
--Allow reimbursement for labor surcharge, material, and supply costs 
to be based upon unit costs, as well as average costs, in lieu of 
actual costs.
--Apply the utility regulations to facilities similar to utilities, 
i.e., facilities, such as wireless telecommunications towers, that are 
included in the definition of utility and are considered to be 
utilities by many, but not all, of the States.
--Suggest the Federal share of net income from revenues obtained by 
STDs for utility use of highway rights-of-way on Federal-aid highway 
projects be used by the State for projects eligible under title 23, 
U.S.C.
--Clarify the intent of the regulations that STDs control utility use 
of highway right-of-way on Federal-aid highway projects within the 
State and its political subdivisions, but not necessarily on all 
Federal-aid highways.
--Set forth as the most important consideration in determining whether

[[Page 6345]]

a proposed installation is a utility or not is how the STD views it 
under its own State laws and/or regulations.
--Suggest when a STD intends to permit utilities to use and occupy the 
right-of-way on a Federal-aid highway project, such potential use 
should be a consideration in determining the extent and adequacy of the 
right-of-way needed for the project.
    --Suggest when acquiring highway right-of-way, the STD, in 
consultation with the utilities, should consider acquiring sufficient 
right-of-way to accommodate utility needs.
    --Indicate when a STD acquires and retains right-of-way on a 
Federal-aid highway project for use by utilities in accordance with 
established standard criteria pursuant to State law, ordinance, or 
administrative practice, such right-of-way may be considered eligible 
for Federal-aid reimbursement as an integral part of the project right-
of-way.
    --Eliminate a confusing provision to clarify the intent that the 
utility regulations are not applicable to longitudinal installations of 
private lines.
    --Delete the provision encouraging STDs to adopt the alternate 
procedure for utilities.
    --Incorporate an amendment conforming the utilities regulations to 
the Transportation Equity Act for the 21st Century (TEA-21), Public Law 
105-178, 112 Stat. 107.
    The FHWA proposes to amend these regulations in the following 
manner and for the reasons indicated below.

Section-by-Section Analysis

Section 645.101  Purpose

    The term ``utility facilities'' would be changed to ``utilities.'' 
The term ``utilities'' has commonly been used to describe lines, 
facilities, or systems for producing, transmitting, or distributing 
communications, electricity, or any other similar commodity. Hence, the 
term ``utility facilities,'' as presently used to describe the purpose 
of subpart A, though technically correct, is not all inclusive as it 
fails to cover ``lines'' and ``systems.'' The term ``utilities'' is a 
more common term and better covers all possible adjustment or 
relocation activities.

Section 645.105  Definitions

    Paragraph designations would be removed from all definitions and 
all definitions would be placed in alphabetical order in order to 
conform subpart A to the existing format in subpart B. Also, the 
definitions ``State highway agency'' and ``Highway agency (HA)'' would 
be changed to ``State transportation department'' and ``Transportation 
department,'' respectively, to conform the utilities regulation to 
section 1212(a) of the TEA-21. The definition ``adjustment'' would be 
added, and the definition ``relocation'' would be revised. Adjustment 
and relocation are two separate activities in subpart A, but both are 
included under the definition for relocation. This amendment would 
merely separate the one, all-inclusive definition, into two separate 
definitions without changing the intent or meaning of either activity.

Section 645.113  Agreements and Authorizations

    Paragraph (f) would be amended to eliminate the $100,000 ceiling 
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. The FHWA believes 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.

Section 645.117  Cost Development and Reimbursement

    Paragraphs (c)(1) and (e)(4) would be revised to: Allow 
reimbursement for labor surcharge, material, and supply costs based 
upon unit costs, as well as average costs, in lieu of actual costs; 
indicate average rates or unit costs may be adjusted as deemed 
appropriate by the STD or the FHWA; and indicate approval of the 
methodology to be used and periodic STD reviews may provide all the 
oversight necessary to satisfy the intent of the regulations. The 
proposed amendments would provide the States greater flexibility in 
utilizing the lump sum payment arrangement. They would also decrease 
unnecessary paperwork and encourage innovation.
    Paragraph (i)(2) would be revised to clarify the intent of the 
regulation requiring utilities to submit final billings within 180 
calendar days following completion of work. The intent was to authorize 
STDs to require utilities to submit final bills for utility relocation 
work within one year of completion of the work, and if final bills were 
not submitted within that time frame, to consider previous payments to 
the utility to be final. This regulation was intended to be a tool to 
help STDs close out projects in a timely manner; however, the intent 
was also to allow STDs to make exceptions. If they desire, STDs may pay 
bills received from utilities more than one year following completion 
of the work and be reimbursed with Federal-aid highway funds for 
eligible items.

Section 645.119  Alternate Procedure

    The first sentence in paragraph (c) would be amended to delete the 
provision encouraging STDs to adopt the alternate procedure for 
utilities, but would continue to indicate that if they want to adopt 
the alternate procedure, they may do so by filing a formal application 
to the FHWA for approval. The alternate procedure was a forerunner of 
the certification acceptance process and was similar in many ways. But, 
with passage of the TEA-21, the States were given the option of 
exempting the FHWA from oversight on many Federal-aid projects under 
the provisions of 23 U.S.C. 106(b). As a result, there became limited 
interest in using the alternate procedure for utilities. The alternate 
procedure will remain available for STDs that want to use it, but the 
FHWA will no longer encourage STDs to use it.

Section 645.201  Purpose

    The term ``utility facilities'' would be changed to ``utilities.'' 
The term ``utilities'' has commonly been used to describe lines, 
facilities, or systems for producing, transmitting, or distributing 
communications, electricity, or any other similar commodity. The term 
``utility facilities,'' as presently used to describe the purpose of 
subpart B, though technically correct, is not all inclusive as it fails 
to cover ``lines'' and ``systems.'' The term ``utilities'' better 
covers all possible accommodation activities.

Section 645.203  Applicability

    Paragraph (e) would be added to apply the utility regulations to 
facilities similar to utilities, i.e., facilities, such as wireless 
telecommunications towers, that are considered by the FHWA to be 
included in the definition of ``utility'' in this subpart and are 
considered to be utilities by many, but not all, of the States. This 
proposed amendment would only effect the FHWA

[[Page 6346]]

accommodation procedures. Presently, utilities may be accommodated on 
highway right-of-way under provisions in this subpart; whereas, non-
utilities may also be accommodated on highway right-of-way, but under 
provisions in another regulation, 23 CFR 1.23(c). The FHWA definition 
of ``utilities'' and many States' definitions of ``utilities'' cover 
wireless telecommunications towers; whereas, some States' definitions 
of ``utilities'' do not. The proposed amendment would allow wireless 
telecommunications towers, and other similar facilities, whether 
considered by an individual State to be ``utilities'' or not, to be 
accommodated under the provisions contained in this part of the utility 
regulations. This will provide uniformity by avoiding wireless 
telecommunications towers, and similar facilities, from being 
accommodated under one FHWA procedure in one State and a different FHWA 
procedure in another State.

Section 645.205  Policy

    Paragraph (e) is added to indicate States may charge a fee for 
utility use of highway rights-of-way on Federal-aid highway projects, 
but suggests that if they do the proceeds should be used for title 23, 
U.S.C., projects. It has been the FHWA's policy for many years to allow 
States to charge fees for utility use if they desire, but to allow them 
to use the proceeds as they see fit. The FHWA has informally encouraged 
the States to use such proceeds for transportation purposes. This 
proposed amendment would formally establish the FHWA's desire for 
proceeds from fees charged for utility use of highway right-of way to 
be used for title 23, U.S.C., purposes.

Section 645.207  Definitions

    The definitions ``State highway agency'' and ``Highway agency'' 
would be changed to ``State transportation department'' and 
``transportation department,'' respectively, to conform the utilities 
regulation to section 1212(a) of the TEA-21.
    The definition ``utility facility'' would be changed to 
``utility,'' and in the definition ``private lines'' the term ``utility 
facility'' would be changed to ``utility.'' As discussed previously, 
the term ``utilities'' has commonly been used to describe lines, 
facilities, or systems for producing, transmitting, or distributing 
communications, electricity, or any other similar commodity. Hence, the 
term ``utility facilities,'' as presently used to describe the purpose 
of subpart B, though technically correct, is not all inclusive as it 
fails to cover ``lines'' and ``systems.'' The term ``utilities'' better 
covers all possible accommodation activities.
    The definition of ``clear zone'' is amended to remove the date of 
the referenced publication and to indicate that the most current 
edition should be used, and to remove the reference to FHWA Regional 
Offices. The purpose for deleting the date of the publication and 
making reference to ``the most current edition'' would be to ensure the 
most recent information is used. Reference to FHWA Regional Offices 
would be deleted because in a recent reorganization all FHWA Regional 
Offices were abolished. All utility-related responsibilities of the 
FHWA Regional Offices have been delegated to FHWA Division Offices.

Section 645.209  General Requirements

    Paragraph (d) would be amended to clarify the intent that STDs 
control utility use of highway right-of-way on Federal-aid highway 
projects within the State and its political subdivisions, but not 
necessarily on all Federal-aid highways. The FHWA's concern in this 
regard is limited to streets and highways that have been developed and 
constructed using Federal-aid highway funds. Even though STDs may only 
be required to regulate utility use on Federal-aid highway projects, as 
a practical matter it is difficult for them to adopt one policy for 
Federal-aid funded projects versus a different policy for adjoining 
State funded projects. As a result, STDs normally adopt a utility 
accommodation policy that covers highway routes under their 
jurisdiction as a group. Even so, the distinction in this regard 
between Federal-aid projects and Federal-aid highways may be helpful.
    Paragraph (j) would be amended to remove the date of the referenced 
publication and indicate the most current edition should be used, and 
to remove the reference to FHWA Regional Offices. The reasons for doing 
this are the same as discussed in Sec. 645.207 above.
    Paragraph (m) would be added to clarify existing policy that the 
most important consideration in determining whether a proposed 
installation is a ``utility'' or not is how the STD views it under its 
own State laws and/or regulations, and a lesser, but nonetheless 
important consideration in making this determination is the definition 
of a ``utility'' in the definitions section of subpart B. This 
determination is important because utilities are handled under this 
regulation; whereas, private lines and other non-utilities are handled 
under other regulations, except for wireless telecommunications towers 
and other similar facilities as discussed above in Sec. 645.203. As in 
many utility-related matters, the FHWA policy is broad enough in this 
instance to cover most situations, but nonetheless, in States where the 
State policy is more restrictive, and sometimes more liberal, than the 
FHWA policy, the FHWA will normally look upon a particular situation in 
the same manner the State does.
    Paragraph (n) would be added to encourage STDs, when they intend to 
permit utilities to use and occupy the right-of-way on a Federal-aid 
highway project, to consider such potential use in determining the 
extent and adequacy of the right-of-way needed for the project. 
Paragraph (n) would also encourage STDs, in consultation with the 
utilities, to consider acquiring the right-of-way needed to accommodate 
the utilities, with the understanding they may keep the acquired right-
of-way, or may sell, lease, or somehow convey it to the utilities. This 
will minimize inconvenience to property owners. Right-of-way acquired 
for utility purposes and retained by STDs may be eligible for Federal-
aid reimbursement.
    The FHWA's authority for allowing utility use and occupancy of the 
right-of-way of Federal-aid and direct Federal highway projects is 
contained in 23 CFR 1.23. Under the provisions of this section, the 
State must acquire right-of-way which is adequate not only for the 
construction of the highway facility, but also for its operation and 
maintenance. The right-of-way must be devoted exclusively to public 
highway purposes.
    Section 1.23(c) permits certain non-highway uses of the right-of-
way which are found to be in the public interest, provided such uses do 
not impair the highway or interfere with the free and safe flow of 
traffic thereon. Such a public interest finding has been made for 
utility facilities. A direct relationship exists between Sec. 1.23 
requirements concerning the adequacy of right-of-way to be acquired and 
the provisions for permitted non-highway uses. Proposed non-highway 
uses cannot be of a nature which would negate the general requirement 
regarding the adequacy of the right-of-way. Therefore, it is implicit 
in the public interest finding for utility use of the right-of-way of 
Federal-aid or direct Federal highway projects that there must be 
adequate space available to locate the utility facilities in a manner 
which does not interfere with the safe and efficient operations of the 
highway. Consequently, when a State intends to permit utilities to use 
and occupy

[[Page 6347]]

public highway right-of-way, such potential use should be a 
consideration in determining the extent and adequacy of the right-of-
way needed for the project. Failure to recognize the impact of such 
use, as well as other uses on private property located adjacent to the 
public highway right-of-way, may affect the safe and efficient 
operations of the highway and may result in the acquisition of right-
of-way which is inadequate to meet the needs of the highway and the 
traveling public.
    For example, little would be gained by acquiring restricted right-
of-way and denying its use to certain utilities if these utilities 
could locate their facilities on private property adjacent to the 
restricted right-of-way with substantially the same impact on the 
highway and its user. The issue of adequate accommodation of utilities 
is a legitimate consideration in the development of highway projects. 
This is particularly true of land service facilities where the highway 
user and utility consumer tend to be one and the same.
    A corresponding issue then becomes who pays for right-of-way 
acquired to accommodate utilities, the STD or the utilities. This is a 
matter to be determined by the affected parties. No matter who ends up 
paying for the right-of-way, it is normally desirable for the STD to 
approach a property owner for the purpose of acquiring all the right-
of-way needed for both the highway and the utilities. The STD may later 
sell, lease, or somehow convey a portion of the right-of-way to the 
utilities for their use. At any rate, the property owner is only 
inconvenienced once. Should the STD decide to acquire right-of-way for 
utilities and retain possession, Federal-aid highway funds may be 
eligible to participate in the acquisition costs of the needed right-
of-way. Utility use of highway right-of-way is not considered to be a 
use for a highway purpose. Therefore, Federal-aid highway funds are, 
theoretically, not eligible to participate in right-of-way acquired 
solely for the purpose of accommodating utility facilities in excess of 
that normally acquired in accordance with standard criteria and 
procedures. Even so, when a State or locality routinely dedicates or 
permits a portion of the road and street right-of-way for use by 
utilities in accordance with established standard criteria pursuant to 
State law, ordinance, or administrative practice, such right-of-way may 
be considered eligible for Federal-aid reimbursement as an integral 
part of the project right-of-way.

Section 645.211  State Highway Agency Accommodation Policies

    The section heading would be changed to reflect the statutory name 
change from ``State highway agency'' to ``State transportation 
department.'' The introductory paragraph would be amended to remove the 
dates of the referenced publications and indicate that the most current 
editions should be used, and to remove the reference to FHWA Regional 
Offices. This is for the same reasons as discussed in Sec. 645.207 
above.

Section 645.215  Approvals

    Paragraph (d) would be amended to remove all references to the 
approval of longitudinal installations of private lines. In 
Sec. 645.203, it is indicated that private lines installed 
longitudinally on highway right-of-way are to be approved under the 
provisions of Sec. 1.23(c) which cover the use of highway right-of-way, 
including air space, for non-highway purposes. This provision in 
Sec. 645.203 was intended to exclude longitudinal private line 
installations from coverage under the utility regulations. It was not 
originally intended, however, for longitudinal private lines to be 
handled under the FHWA's air space provisions, but since that time, air 
space has come to be defined to include everything over, under, and on 
the right-of-way, and it has become common practice to include 
longitudinal private lines in this category. Not knowing that this 
would happen when Sec. 645.203 was written, another reference was made 
to longitudinal private lines in Sec. 645.215(d)(2) relative to 
approvals. This reference is no longer applicable and conflicts with 
existing requirements for handling air space items; therefore, it would 
be removed from the utility regulations.

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 using the docket number appearing at the top of this 
document in the docket room at the above address or via the electronic 
addresses provided above. The FHWA will file comments received in the 
docket and will consider late comments to the extent practicable. The 
FHWA may, however, 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 in the docket relevant information becoming 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 proposed action is not a 
significant regulatory action within the meaning of Executive Order 
12866, nor would it be a significant regulatory action within the 
Department of Transportation's 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 simplify or clarify procedures presently being 
used by STDs 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 STDs and utilities in accordance 
with existing laws, regulations, or guidance.

National Environmental Policy Act

    The FHWA has also analyzed this proposed action for the purpose of 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and 
anticipates this action would not have any effect on the quality of the 
human and natural environment.

Executive Order 13132 (Federalism Assessment)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, dated 
August 4, 1999, and it has been determined this action does 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. 
This proposed rule would merely reduce the level of Federal approval 
actions by placing greater responsibility at the State or local level. 
Throughout the proposed regulation

[[Page 6348]]

there is an effort to keep administrative burdens to a minimum.

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.

Unfunded Mandates Reform Act of 1995

    This proposed rule 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 one 
year (2 U.S.C. 1531 et seq.).

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must determine whether requirements contained 
in proposed rulemakings are subject to the information collection 
provisions of the PRA. The FHWA has determined that this proposed 
action would not constitute an information collection within the scope 
or meaning of the PRA. Implementation of this proposal would impose no 
burden on the States and private entities because it merely provides 
clarification and more flexibility to STDs in implementing the FHWA's 
utilities regulations contained in 23 CFR 645. As a result, no 
additional information collection burdens will be imposed on the 
States, the local governments, or the private sector.
    At present, the FHWA sponsors four information collections that are 
related to public utilities requirements. Each of these collections is 
currently cleared by the Office of Management and Budget (OMB). These 
FHWA collections are entitled as follows: (1) Develop and Submit 
Utility Accommodation Policies, OMB Control No. 2125-0514; (2) 
Eligibility Statement for Utility Adjustments, OMB Control No. 2125-
0515; (3) Developing and Recording Costs for Utility Adjustments, OMB 
Control No. 2125-0519; and (4) Utility Use and Occupancy Agreements, 
OMB Control No. 2125-0522. The currently approved burden hours for 
these collections would not be affected by this proposal.

Executive Order 12988 (Civil Justice Reform)

    This 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 rule is not an economically significant rule and 
does not concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This proposed rule 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.

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.

    In consideration of the foregoing, the FHWA proposes to amend title 
23, Code of Federal Regulations, by revising part 645, subparts A and B 
to read as set forth below.

    Issued on: January 28, 2000.
Kenneth R. Wykle,
Administrator.

PART 645--[REVISED]

    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).

    2. In part 645, revise all references in the left column wherever 
they appear to read as shown in the right column:

------------------------------------------------------------------------
               Old reference                        New reference
------------------------------------------------------------------------
Highway agency............................  Transportation department
Highway agencies..........................  Transportation departments
State highway agency......................  State transportation
                                             department
State highway agencies....................  State transportation
                                             departments
HA........................................  TD
SHA.......................................  STD
------------------------------------------------------------------------

    3. Revise Sec. 645.101 to read as follows:


Sec. 645.101  Purpose.

    The purpose of this subpart is to prescribe policies, procedures, 
and reimbursement provisions for the adjustment and relocation of 
utilities on Federal-aid and direct Federal highway projects.
    4. Amend Sec. 645.105 by removing the paragraph designations from 
all definitions; by placing all definitions in alphabetical order; by 
adding the definition ``adjustment'; and by revising the definition 
``relocation'' to read as follows:


Sec. 645.105  Definitions.

* * * * *
    Adjustment--the adjustment of utility facilities required by the 
highway project. It includes moving, rearranging, or changing the type 
of existing facilities at the existing location, and taking any 
necessary safety and protective measures. It also means constructing a 
replacement facility in place that is both functionally equivalent to 
the existing facility and necessary for continuous operation of the 
utility service, the project economy, or sequence of highway 
construction.
* * * * *
    Relocation--the relocation of utility facilities required by the 
highway project. It includes removing and reinstalling the facility at 
a new location, including necessary temporary facilities, acquiring 
necessary right-of-way on the new location, moving, rearranging or 
changing the type of existing facilities, and taking any necessary 
safety and protective measures. It also means constructing a 
replacement facility that is both functionally equivalent to the 
existing facility and necessary for continuous operation of the utility 
service, the project economy, or sequence of highway construction.
* * * * *
    5. Revise Sec. 645.113(f) to read as follows:


Sec. 645.113  Agreements and authorizations.

* * * * *
    (f) When proposed utility adjustment or relocation work on a 
project for a specific utility company can be clearly defined and the 
cost can be accurately

[[Page 6349]]

estimated, the FHWA may approve an agreement between the TD and the 
utility company for a lump-sum payment without later confirmation by 
audit of actual costs.
* * * * *
    6. Revise Sec. 645.117(c)(1), (e)(4), and (i)(2) to read as 
follows:


Sec. 645.117  Cost development and reimbursement.

* * * * *
    (c) Labor surcharges. (1) Labor surcharges include worker 
compensation insurance, public liability and property damage insurance, 
and such fringe benefits as the utility has established for the benefit 
of its employees. The cost of labor surcharges will be reimbursed at 
actual cost to the utility, or, at the option of the utility, average 
rates or unit costs which are representative of actual costs may be 
used in lieu of actual costs if approved by the STD and the FHWA. Prior 
FHWA approval of the methodology to be used in developing average rates 
or unit costs and periodic STD reviews may provide all the oversight 
that is necessary to satisfy the intent of the regulations in this 
subpart. These average rates or unit costs should be adjusted at least 
once annually, or as otherwise deemed appropriate by the STD and the 
FHWA, to take into account known anticipated changes and correction for 
any over or under applied costs for the preceding period.
* * * * *
    (e) Material and supply costs. * * *
    (4) The actual and direct costs of handling and loading materials 
and supplies at company stores or material yards, and of unloading and 
handling recovered materials accepted by the utility at its stores or 
material yards are reimbursable. In lieu of actual costs, average rates 
or unit costs which are representative of actual costs may be used if 
approved by the STD and the FHWA. Prior FHWA approval of the 
methodology to be used in developing average rates or unit costs and 
periodic STD reviews may provide all the oversight that is necessary to 
satisfy the intent of the regulations in this subpart. These average 
rates or unit costs should be adjusted at least once annually, or as 
otherwise deemed appropriate, to take into account known anticipated 
changes and correction for any over or under applied costs for the 
preceding period. At the option of the utility, five percent of the 
amounts billed for the materials and supplies issued from company 
stores and material yards or the value of recovered materials will be 
reimbursed in lieu of actual, average, or unit costs for handling.
* * * * *
    (i) Billings. * * *
    (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 
STD and the utility. Billings received from utilities more than one 
year following completion of the utility relocation work may be paid if 
the STD so desires, and Federal-aid highway funds may participate in 
these payments.
* * * * *
    7. Revise the introductory paragraph in Sec. 645.119(c) to read as 
follows:


Sec. 645.119  Alternate procedure.

* * * * *
    (c) To adopt the alternate procedure, the STD must file a formal 
application for approval by the FHWA. The application must include the 
following:
* * * * *
    8. Revise Sec. 645.201 to read as follows:


Sec. 645.201  Purpose.

    The purpose of this subpart is to prescribe policies and procedures 
for accommodating utilities and private lines on the right-of-way of 
Federal-aid and direct Federal highway projects.
    9. Amend Sec. 645.203 in paragraph (c) by removing the last word 
``and''; in paragraph (d) by replacing the last period with ``, and''; 
and by adding paragraph (e) to read as follows:


Sec. 645.203  Applicability.

* * * * *
    (e) Facilities similar to utilities (i.e., facilities, such as 
wireless telecommunications towers, that are included in the definition 
of ``utility'' in this subpart and are considered to be utilities by 
many, but not all, of the States).
    10. Amend Sec. 645.205 by adding paragraph (e) to read as follows:


Sec. 645.205  Policy.

* * * * *
    (e) States may charge a fee for utility use of highway rights-of-
way on Federal-aid highway projects. When this is done, the Federal 
share of net income from the revenues obtained should be used by the 
State for projects eligible under title 23, United States Code. 
Disposition of income received shall be the STD's responsibility and 
credit to Federal funds is not required.
    11. Amend Sec. 645.207 by revising the definitions ``clear zone'' 
and ``private lines'' by revising the definition heading ``utility 
facility'' to read ``utility'' and by placing all definitions in 
alphabetical order to read as follows:


Sec. 645.207  Definitions.

* * * * *
    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 
current edition of the AASHTO ``Roadside Design Guide'' should be used 
as a guide for establishing clear zones for various types of highways 
and operating conditions. It is available for inspection and copying 
from the FHWA Washington Headquarters and all FHWA Division Offices as 
prescribed in 49 CFR part 7. 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.).
* * * * *
    Private lines--privately-owned facilities which convey or transmit 
the commodities outlined in the definition of ``utility'' of this 
section, but are devoted exclusively to private use.
* * * * *
    12. In Sec. 645.209, revise paragraphs (d) and (j); and add 
paragraphs (m) and (n) to read as follows:


Sec. 645.209  General requirements.

* * * * *
    (d) Uniform policies and procedures. For a highway agency to 
fulfill its responsibilities to control utility use of highway right-
of-way on Federal-aid highway projects within the State and its 
political subdivisions, it must exercise or cause to be exercised, 
adequate regulation over such use and occupancy through the 
establishment and enforcement of reasonably uniform policies and 
procedures for utility accommodation.
* * * * *
    (j) Traffic control plan. Whenever a utility installation, 
adjustment or maintenance activity will affect the movement of traffic 
or traffic safety, the utility shall implement a traffic control plan 
and utilize traffic control devices as necessary to ensure the safe and 
expeditious movement of traffic around the work site and the safety of 
the utility

[[Page 6350]]

work force in accordance with procedures established by the 
transportation department. The traffic control plan and the application 
of traffic control devices shall conform to the standards set forth in 
the current edition of the ``Manual on Uniform Traffic Control 
Devices'' (MUTCD) and 23 CFR part 630, subpart J. (This publication is 
incorporated by reference and is on file at the Office of the Federal 
Register in Washington, DC. It is available for inspection and copying 
from the FHWA Washington Headquarters and all FHWA Division Offices as 
prescribed in 49 CFR part 7.).
* * * * *
    (m) Utility determination. In determining whether a proposed 
installation is a ``utility'' or not, the most important consideration 
is how the STD views a particular facility under its own State law and/
or regulations.
    (n) Right-of-way considerations. When an STD intends to permit 
utilities to use and occupy the right-of-way on a Federal-aid highway 
project, such potential use should be a consideration in determining 
the extent and adequacy of the right-of-way needed for the project. 
When acquiring highway right-of-way, the STD in consultation with the 
utilities should consider acquiring sufficient right-of-way to 
accommodate utility needs. This will minimize inconvenience to property 
owners. The STD may retain possession of the acquired right-of-way, or 
may sell, lease, or convey it to the utilities. When an STD acquires 
and retains right-of-way on a Federal-aid highway project for use by 
utilities in accordance with established standard criteria pursuant to 
State law, ordinance, or administrative practice, such right-of-way may 
be considered eligible for Federal-aid reimbursement as an integral 
part of the project right-of-way.
    13. Amend Sec. 645.211 by revising the introductory paragraph to 
read as follows:


Sec. 645.211  State transportation department accommodation policies.

    The FHWA should use the current editions of the AASHTO 
publications, ``A Guide for Accommodating Utilities Within Highway 
Right-of-Way'' and ``Roadside Design Guide'' to assist in the 
evaluation of adequacy of STD utility accommodation policies. They are 
available for inspection from the FHWA Washington Headquarters and all 
FHWA Division Offices as prescribed in 49 CFR part 7. 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.). At a minimum, 
such policies shall make adequate provisions with respect to the 
following:
* * * * *
    14. Revise Sec. 645.215(d) to read as follows:


Sec. 645.215  Approvals.

* * * * *
    (d) When a utility files a notice or makes an individual 
application or request to a STD to use or occupy the right-of-way of a 
Federal-aid highway project, the STD is not required to submit the 
matter to the FHWA for prior concurrence, except when the proposed 
installation is not in accordance with this subpart or with the STD's 
utility accommodation policy approved by the FHWA for use on Federal-
aid highway projects.
* * * * *
[FR Doc. 00-2674 Filed 2-8-00; 8:45 am]
BILLING CODE 4910-22-P