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Rodney E. Slater
Federal Highway Administration
May 17, 1994
[Federal Register Volume 59, Number 94 (Tuesday, May 17, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: 94-11845] [[Page Unknown]] [Federal Register: May 17, 1994] VOL. 59, NO. 94 Tuesday, May 17, 1994 DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 645 [FHWA Docket No. 94-8] RIN 2125-AD31 Utilities AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- 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