Utilities

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.

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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