[Federal Register Volume 59, Number 94 (Tuesday, May 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11845]
[[Page Unknown]]
[Federal Register: May 17, 1994]
VOL. 59, NO. 94
Tuesday, May 17, 1994
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 645
[FHWA Docket No. 94-8]
RIN 2125-AD31
Utilities
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The FHWA proposes to amend its regulation on utilities. The
proposed amendments would raise the upper limit for FHWA forgoing
preaward review and/or approval of consultant contracts for preliminary
engineering from $10,000 to $25,000 and would increase the ceiling for
lump sum agreements from $25,000 to $100,000. They would clarify the
methodology to be used to compute indirect or overhead rates and would
require utilities to submit final billings within 180 calendar days
following completion of the work. They would bring the definition of
``clear zone'' into conformance with the American Association of State
Highway and Transportation Officials (AASHTO) ``Roadside Design
Guide.'' They would incorporate an amendment conforming the utilities
regulations to the Intermodal Surface Transportation Efficiency Act of
1991 (ISTEA). The FHWA proposes these changes to conform the utilities
regulations to more recent laws, regulations, or guidance and to
provide the State highway agencies clarification and more flexibility
in implementing them.
DATES: Written comments are due on or before July 18, 1994.
ADDRESSES: All written, signed comments should refer to the docket
number that appears at the top of this document and should be submitted
to Federal Highway Administration, Office of Chief Counsel, Room 4232,
HCC-10, 400 Seventh Street, SW., Washington, D.C. 20590. All comments
and suggestions received will be available for examination at the above
address between 8:30 a.m. and 3:30 p.m., e.t., Monday through Friday,
except Federal legal holidays. Those desiring notification of receipt
of comments must include a self-addressed, stamped postcard.
FOR FURTHER INFORMATION CONTACT: Jerry L. Poston, Office of
Engineering, 202-366-0450, or Wilbert Baccus, Office of the Chief
Counsel, 202-366-0780, FHWA, 400 Seventh Street, SW., Washington, DC
20590.
SUPPLEMENTARY INFORMATION:
Background
Present FHWA regulations regarding utility relocation and
accommodation matters have evolved from basic principles established
decades ago, with many of the policies remaining unchanged. The present
regulations are found in title 23, Code of Federal Regulations, part
645 (23 CFR part 645). Subpart A of this part pertains to utility
relocations, adjustments, and reimbursement. Subpart B pertains to the
accommodation of utilities. Part 645 was revised on May 15, 1985, when
a final rule was published in the Federal Register at 50 FR 20344. Two
significant changes have occurred since then, on February 2 and July 1,
1988, when amendments to the regulation were published in the Federal
Register at 53 FR 2829 and 53 FR 24932. The February 2 amendment
provided that each State must decide, as part of its utility relocation
plan, whether to allow longitudinal utility installations within the
access control limits of freeways and if allowed under what
circumstances. The July 1 amendment clarified that costs incurred by
highway agencies in implementing projects solely for safety corrective
measures to reduce the hazards of utilities to highway users are
eligible for Federal-aid participation. The FHWA proposes to amend
these regulations in the following manner and for the reasons indicated
below.
In Sec. 645.109, paragraph (b) would be amended to increase the
ceiling from $10,000 to $25,000 for FHWA approval of consultant
contracts for preliminary engineering and related work. This would
allow the FHWA to forgo pre-award review and/or approval of proposed
consultant contracts which are not expected to exceed $25,000. The
proposed amendment would increase the number of consultant contracts
that could be advanced without prior FHWA approval and would conform
Sec. 645.109 to 23 CFR part 172, Administration of Engineering and
Design Related Service Contracts, as revised on April 30, 1991.
In Sec. 645.113, paragraph (f) would be amended to increase the
ceiling from $25,000 to $100,000 for using the lump sum payment
arrangement for reimbursement for utility adjustments on Federal-aid
and direct Federal highway projects. The proposed amendment would
provide the States greater flexibility in utilizing the lump sum
payment arrangement. The purpose of allowing lump sum agreements in
lieu of agreements based on an accounting of actual costs is to reduce
the administrative burden associated with utility relocation projects.
Under the lump sum process, cost accounting is easier, project billings
are simplified, and a final audit of detailed cost records is not
required. Final project costs are typically quite close to the costs
estimated for small, routine projects. The FHWA believes that the small
degree of accuracy that might be realized if more detailed cost
accounting methods were followed does not justify the extra cost
involved in carrying out detailed audits. This revision would increase
the number of utility relocations potentially eligible for lump sum
payment, would anticipate future needs, and would respond, in part, to
the fact that since the $25,000 limit was established in 1983,
inflation has reduced the number and limited the scope of projects
eligible for lump sum payments.
In Sec. 645.117, paragraph (d)(1) would be amended to clarify the
methodology to be used for computing indirect overhead rates. The
definition of indirect costs, and what may or may not be included, is
set forth in 48 CFR part 31, Contract Cost Principles and Procedures.
Part 31 is referenced in 49 CFR part 18, the common rule for State and
local government program application to ``for-profit'' organizations.
However, to avoid any misunderstandings and to assure consistency with
the common rule, a reference to 48 CFR 31 will be placed in title 23.
Section 645.117 would be further amended by revising paragraph (i)(2)
to require utilities to submit final billings within 180 calendar days
following completion of the work, otherwise previous payments to
utilities may be considered final and projects may be closed out. This
change would assist highway agencies in their efforts to timely obtain
final billings from the utilities. Some utility bills are received
years after the work is completed, thus delaying audit activity and
project closure. Billings received from utilities after 180 calendar
days following completion of work could be paid at the discretion of
the highway agency.
Section 645.207 would be amended to change the term ``clear
recovery area'' to ``clear zone'' and to revise the definition of clear
zone. In Sec. 645.209, paragraph (b) would be amended to change the
term ``clear recovery area'' to ``clear zone.'' These changes would
provide consistency with AASHTO's ``Roadside Design Guide,''\1\ a 1989
document which should be used as a guide for establishing clear zones
for various types of highways and operating conditions. The term
``clear recovery area'' originated in 1985 and, though worded somewhat
differently, meant essentially the same as the term ``clear zone.''
These terms were often used interchangeably. The ``Roadside Design
Guide,'' however, uses the term ``clear zone'' exclusively. Hence, to
avoid confusion and to comply with the predominant guidance document,
the term ``clear zone'' is proposed to be incorporated into the utility
regulations.
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\1\The ``Roadside Design Guide'' is incorporated by reference at
23 CFR 625.5(a)(3). It is available for purchase from the American
Association of State Highway and Transportation Officials, suite
225, 444 North Capitol Street, NW., Washington, DC 20001. Also, it
is available for inspection as provided in 49 CFR part 7, appendix
D.
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In Sec. 645.215, paragraph (a) would be amended to change the term
``Federal-aid system'' to ``Federal-aid highway.'' This revision is in
accordance with a conforming amendment in section 1016(f)(1)(B) of the
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) which
changed the term ``Federal-aid system'' in 23 U.S.C. 109(l) to
``Federal-aid highway.''
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable, but the FHWA may issue a final
rule at any time after the close of the comment period. In addition to
late comments, the FHWA will also continue to file relevant information
in the docket as it becomes available after the comment closing date,
and interested persons should continue to examine the docket for new
material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of Department of Transportation
regulatory policies and procedures. The proposed amendments would
simply make minor changes to update the utilities regulations to
conform to recent laws, regulations, or guidance and to clarify
existing policies. It is anticipated that the economic impact of this
rulemaking will be minimal because the proposed amendments would only
clarify or simplify procedures presently being used by State highway
agencies and utilities. Therefore, a full regulatory evaluation is not
required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Based on the evaluation, the FHWA certifies that this action
will not have a significant economic impact on a substantial number of
small entities. This is because the proposed amendments would only
clarify or simplify procedures used by State highway agencies and
utilities in accordance with existing laws, regulations, or guidance.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
Federal programs and activities do not apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. 3501-3520.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et. seq.) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 23 CFR Part 645
Grant Programs--transportation, Highways and roads, Utilities--
relocations, adjustment, reimbursement.
Issued on: May 9, 1994.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
23, Code of Federal Regulations, part 645 as set forth below:
PART 645--UTILITIES
1. The authority citation for part 645 continues to read as
follows:
Authority: 23 U.S.C. 101, 109, 111, 116, 123, and 315; 23 CFR
1.23 and 1.27; 49 CFR 1.48(b); and E.O. 11990, 42 FR 26961 (May 24,
1977).
Sec. 645.109 [Amended]
2. In Sec. 645.109, paragraph (b) is amended by removing the figure
``$10,000'' wherever it appears and adding in its place the figure
``$25,000''.
Sec. 645.113 [Amended]
3. In Sec. 645.113, paragraph (f) is amended by removing the figure
``$25,000'' wherever it appears and adding in its place the figure
``$100,000''.
4. In Sec. 645.117, paragraphs (d)(1) and (i)(2) are revised to
read as follows:
Sec. 645.117 Cost development and reimbursement.
* * * * *
(d) Overhead and indirect construction costs. (1) Overhead and
indirect construction costs not charged directly to work order or
construction accounts may be allocated to the relocation provided the
allocation is made on an equitable basis. All costs included in the
allocation shall be eligible for Federal reimbursement, reasonable,
actually incurred by the utility, and consistent with the provisions of
48 CFR part 31.
* * * * *
(i) Billings. * * * (2) The utility shall provide one final and
complete billing of all costs incurred, or of the agreed-to lump-sum,
within 180 calendar days following completion of the work, otherwise
previous payments to the utility may be considered final. The final
billing to the FHWA shall include a certification by the SHA that the
work is complete, acceptable, and in accordance with the terms of the
agreement.
* * * * *
Sec. 645.207 [Amended]
5. Section 645.207 is amended by removing the paragraph
designations from all definitions, by placing the definitions in
alphabetical order, by removing the definition of ``clear recovery
area,'' by revising the first sentence in the definition for ``clear
roadside policy'' and by adding the definition ``clear zone'' to read
as follows:
Sec. 645.207 Definitions.
* * * * *
Clear roadside policy--that policy employed by a highway agency to
provide a clear zone in order to increase safety, improve traffic
operations, and enhance the aesthetic quality of highways by designing,
constructing and maintaining highway roadsides as wide, flat, and
rounded as practical and as free as practical from natural or
manufactured hazards such as trees, drainage structures, nonyielding
sign supports, highway lighting supports, and utility poles and other
ground-mounted structures. * * *
Clear zone--the total roadside border area starting at the edge of
the traveled way, available for safe use by errant vehicles. This area
may consist of a shoulder, a recoverable slope, a non-recoverable
slope, and/or the area at the toe of a non-recoverable slope available
for safe use by an errant vehicle. The desired width is dependent upon
the traffic volumes and speeds, and on the roadside geometry. The
American Association of State Highway and Transportation Officials
(AASHTO) ``Roadside Design Guide,'' 1989, should be used as a guide for
establishing clear zones for various types of highways and operating
conditions. It is available for inspection from the FHWA Washington
Headquarters and all FHWA Division and Regional Offices as prescribed
in 49 CFR part 7, appendix D. Copies of current AASHTO publications are
available for purchase from the American Association of State Highway
and Transportation Officials, suite 225, 444 North Capitol Street, NW.,
Washington, DC 20001.
* * * * *
Sec. 645.209 [Amended]
6. In Sec. 645.209, paragraph (b) is amended by removing the words
``clear recovery'' in the second sentence and removing the words
``clear recovery area'' in the third sentence and adding in their place
the words ``clear zone''.
Sec. 645.215 [Amended]
7. In Sec. 645.215, paragraph (a), the fifth sentence is amended by
removing the words ``of the Federal-aid highway system'' and adding in
their place the words ``of Federal-aid highways''.
[FR Doc. 94-11845 Filed 5-16-94; 8:45 am]
BILLING CODE 4910-22-P
