01-20120. Telecommunications System Construction Contract and Specifications

AGENCY:

Rural Utilities Service, USDA.

ACTION:

Final rule.

SUMMARY:

The Rural Utilities Service (RUS) amends its regulations on Telecommunications Standards and Specifications for Materials, Equipment and Construction, by revising RUS Contract Form 515, Telephone System Construction Contract, and revising and renumbering RUS Bulletin 345-150, Specifications and Drawings for Construction of Direct Buried Plant (Form 515a); RUS Bulletin 345-151, Specifications and Drawings for Conduit and Manhole Construction (Form 515c); RUS Bulletin 345-152, Specifications and Drawings for Underground Cable Installation (Form 515d); RUS Bulletin 345-153, Specifications and Drawings for Construction of Pole Lines, Aerial Cables and Wires (Form 515f); and RUS Bulletin 345-154, Specifications and Drawings for Service Entrance and Station Protector Installation (Form 515g). The revised contract and specifications will incorporate the latest technology, remove redundant or outdated requirements, and simplify the specification format.

DATES:

Effective Date: September 17, 2001.

Incorporation by Reference: The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of September 17, 2001.

FOR FURTHER INFORMATION CONTACT:

Charlie I. Harper, Jr., Chief, Outside Plant Branch, Telecommunications Standards Division, Rural Utilities Service, U.S. Department of Agriculture, 1400 Independence Ave., SW., Stop 1598, Washington, DC 20250-1598, telephone [phone].

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This final rule has been determined to be not significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this final rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted, no retroactive effort will be given to this rule, and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.

Regulatory Flexibility Act Certification

RUS has determined that this final rule will not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The RUS telecommunications program provides loans to borrowers at interest rates and on terms that are more favorable than those generally available from the private sector. RUS borrowers, as result of obtaining federal financing, receive economic benefits that exceed any direct economic costs associated with complying with RUS regulations and requirements. Small entities are not subject to any requirements which are not applied equally to large entities.

Information Collection and Recordkeeping Requirements

The reporting and recordkeeping requirements contained in this rule are pending approval by the Office of Management and Budget (OMB) under OMB control number 0572-0059, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

Send questions or comments regarding this burden or any other aspect of these collections of information, including suggestions for reducing the burden, to F. Lamont Heppe, Jr., Director, Program Development and Regulatory Analysis, Rural Utilities Service, USDA, 1400 Independence Ave., SW, Stop 1522, Washington, DC 20250-1522.

National Environmental Policy Act Certification

The Administrator of RUS has determined that this final rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) Therefore, this action does not require an environmental impact statement or assessment.

Catalog of Federal Domestic Assistance

The program described by this final rule is listed in the Catalog of Federal Domestic Assistance program under No. 10.851, Rural Telephone Loans and Loan Guarantees, and No. 10.852, Rural Telephone Bank Loans. This catalog is available on a subscription basis from the Superintendent of Documents, the U.S. Government Printing Office, Washington, DC 20402-9325. Telephone [phone].

Executive Order 12372

This final rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. A final rule related notice entitled “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034) exempts RUS and RTB loans and loan guarantees, and RTB bank loans, from coverage under this Order.

Unfunded Mandates

This final rule contains no Federal mandates (under the regulatory provision of Title II of the Unfunded Mandates Reform Act) for State, local, and tribal governments or the private sector. Thus this final rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act.

Background

RUS issues contracts, standards and specifications for construction of telecommunications facilities financed with RUS loan funds. RUS is revising the RUS Contract Form 515, Telephone System Construction Contract, and revising and renumbering the associated supplemental specifications from RUS Bulletin 345-150 (RUS Form 515a) to RUS Bulletin 1753F-150 (RUS Form 515a), Specifications and Drawings for Construction of Direct Buried Plant; RUS Bulletins 345-151 (RUS Form 515c) and 345-152 (RUS Form 515d) combined into RUS Bulletin 1753F-151 (RUS Form 515b), Specifications and Drawings for Construction of Underground Plant; RUS Bulletin 345-153 (RUS Form 515f) to RUS Bulletin 1753F-152 (RUS Form 515c), Specifications and Drawings for Construction of Aerial Plant; and, RUS Bulletin 345-154 (RUS Form 515g) to RUS Bulletin 1753F-153 (RUS Form 515d), Specifications and Drawings for Service Installations at Customer Access Locations. The renumbering effort is to conform to the existing numbering system maintained by the agency.

The current RUS Contract Form 515, Telephone System Construction Contract and the associated supplemental specifications are used by borrowers to secure the services of a contractor for the construction of telecommunications facilities. Because of advancements made in construction installation methods and materials, the present form of the contract and the associated specifications have become outdated. To allow borrowers and contractors to take advantage of these improved construction installation methods and materials, the current contract form and associated specifications have been revised.

Comments

On August 25, 2000, RUS published a proposed rule (65 FR 51773) to revise RUS Contract Form 515, Telephone System Construction Contract, and to revise and to renumber RUS Bulletin 345-150, Specifications and Drawings for Construction of Direct Buried Plant (Form 515a); RUS Bulletin 345-151, Specifications and Drawings for Conduit and Manhole Construction (Form 515c); RUS Bulletin 345-152, Specifications and Drawings for Underground Cable Installation (Form 515d); RUS Bulletin 345-153, Specifications and Drawings for Construction of Pole Lines, Aerial Cables and Wires (Form 515f); and RUS Bulletin 345-154, Specifications and Drawings for Service Entrance and Station Protector Installation (form 515g). Comments on this proposed rule were due December 26, 2000. Comments and recommendations were received from several interested parties by this due date. The comments, recommendations, and responses are summarized as follows:

Comment: One respondent commented that the proposed BM2A assembly unit in the proposed RUS Form 515a revision was not in compliance with the National Electrical Code® (NEC®).

Response: RUS concurs with the respondent's comment and has made appropriate corrections to the unit description and its associated drawing as follows:

a. Modify the BM2A assembly unit description to read as follows:

“BM2A Housing Auxiliary Ground Assembly Unit: Consists of the necessary labor and material for the installation of a ground rod clamp (if required) and the required length of a bare #6 AWG copper ground wire connected to a pole ground wire using a ground wire connector (see unit drawing BM2A)”.

b. Modify the BM2A assembly unit drawing to show the proper placement of the connection according to the unit description. Additionally, add “Note 4” to the drawing to read as follows: “Clamp shall be accepted by Listing Agency (UL, etc.) for two conductors, otherwise two clamps shall be used.”

Comment: One respondent commented that the BM80, 81, and 82 assembly unit drawing in the May 1989 issue of the RUS Form 515a indicates a 1-foot distance for placement of brackets from the top and bottom of the guard where the proposed BM80, 81, and 82 assembly unit drawing in the proposed RUS Form 515a revision shows a 1-inch distance. The respondent recommended that the proposed BM80, 81, and 82 assembly unit drawing be changed to indicate the 1-foot distance for placement of brackets from the top and bottom of the guard.

Response: RUS concurs with the recommendation and will modify the dimensions on the final BM80, 81, and 82 assembly unit drawing to indicate a 12-inch distance for placement of the brackets from the top and bottom of the guard instead of the 1-inch distance.

Comment: One commenter questioned the placement of the electric system ground connection at the house as shown in the proposed NID2 and NID3 assembly unit drawings in the proposed RUS Form 515d revision. The commenter recommended that the proposed NID2 and NID3 assembly unit drawings be changed to indicate the electric system ground connection be made from the power company's meter box instead of from the neutral power wire.

Response: RUS agrees with the commenter's recommendation and will modify the proposed NID2 and NID3 assembly unit drawings to show the electric system ground connection originating at the electric meter box.

Comment: One commenter recommended that a document titled “Consent of Surety Company to Final Payment” be included in the proposed RUS Form 515 contract revision.

Response: After much consideration, RUS has concluded that the inclusion of this document into the proposed RUS Form 515 contract revision would result in more burdensome bonding requirements than the United States Department of Agriculture's (USDA) standard bonding requirements. This additional requirement would also increase the paperwork burden and does not accomplish any added protection under the contract. Therefore, RUS will not modify the existing language of the proposed RUS Form 515 contract to require inclusion of this document into the contract.

Comment: One respondent recommended that the completion time in “days” in the “Notice to Bidders” of the proposed RUS Form 515 contract revision be changed to read “calendar days (excluding Saturdays, Sundays, and legal holidays)” in order to be consistent with the language elsewhere in the proposed contract revision.

Response: RUS agrees with the recommendation and will change the existing language in the “Notice to Bidders” to the language recommended by the commenter.

Comment: The same respondent recommended that the maximum 3-inch bore diameter specified in the proposed BM61 assembly unit of the proposed RUS Forms 515a and 515d revisions be eliminated and that a suffix be utilized to indicate the size of the bore diameter.

Response: RUS agrees with the recommendation and will modify the proposed BM61 assembly unit to include the size of the bore diameter in inches specified in parentheses. The final BM61 assembly unit will now read as follows: “BM61( ) Underground Non-Pipe Crossing Assembly Unit—Consists of the labor in providing a hole in soil one (1) foot (0.305 m) in length and of a diameter in inches (meters) specified in parentheses. The depth of the hole below the surface of the ground shall be specified by the Engineer. This unit includes any excavation, backfilling and tamping necessary for the installation. This unit may be used where the permanent installation of a steel or plastic pipe under the BM60 unit is not required. The contractor will be compensated for labor and material for the buried cable or wire under separate units. Where directional boring is required, the unit will be suffixed by the letter “D”.

Comment: The third comment from the same respondent concerned clarifying the manner in which the proposed BM71 assembly unit listed in the proposed RUS Forms 515a and 515d revisions is determined in construction. In particular, the capabilities of the equipment and number of passes with that equipment were pointed out as significant components of determination of when to decide to commence the rock unit.

Response: In review of revisions to the construction contract, RUS considered that there continues to be a need for local discretionary actions in the determination of several units. In case of the proposed BM71 assembly unit, there have been only minor changes in the description of the unit. Specific application of the proposed BM71 assembly unit in the field remains a determination by the engineer, as conditions vary in actual construction circumstances. Therefore, the existing language of the proposed BM71 assembly unit will not be modified as recommended by the commenter.

Comment: Comment four from the same respondent recommended that the proposed HBFO assembly unit description listed in the proposed RUS Form 515a revision be changed to a description similar to the proposed HBF assembly unit also listed in the proposed RUS Form 515a revision.

Response: RUS considers that there are advantages to several ways to describe the proposed HBFO unit. However, it is necessary in some circumstances to specify beyond the basic unit description. In practice, the situation is generally resolved by the engineering and design of the system at the specification stage. Respecting that there are advantages to other methods, there is not an overwhelming reason to modify the unit description. Therefore, RUS will not modify the proposed HBFO assembly unit description as recommended by the respondent.

Comment: The fifth comment from the same commenter questioned the reason for having a proposed BM22 assembly unit and a proposed PM22 assembly unit, both with similar uses. The proposed BM22 assembly unit is listed in the proposed RUS Form 515a revision and the proposed PM22 assembly unit is listed in the proposed RUS Form 515c revision.

Response: The proposed PM22 assembly unit is a carry-over from earlier construction practices and would be used in the case of all aerial construction, avoiding having a buried unit. RUS finds a possible application for the PM22 assembly unit that would avoid unnecessary duplication of the buried specification. There are also other assembly units that remain in similar circumstances (PM21 and BM21; UH and BH). Therefore, RUS will not eliminate the proposed PM22 assembly unit listed in the proposed RUS Form 515c revision.

Comment: Comment number six from the same commenter concerned removal of specifications and drawings for poured-in-place manholes from the proposed RUS Form 515b revision.

Response: The January 1990 issue of the RUS Form 515 contract specified poured-in-place manholes, with precast manholes as an option. The proposed RUS Form 515 contract revision indicates that precast manholes are the default with poured-in-place manholes as the option. It is RUS's intention to develop guidelines for poured-in-place manholes as a separate publication. RUS also recognizes that precast manhole products are made to certain industry standards and RUS chooses not to duplicate those efforts. Therefore, RUS will not include the specifications and drawings for poured-in-place manholes in the RUS Form 515b revision as requested by the commenter.

Comment: The seventh comment from the same commenter recommended that an assembly unit for placing innerducts (sub-ducting) in larger conduits be added to the proposed RUS Form 515b revision.

Response: RUS agrees with the commenter that changes in technology have added to the scope of work that takes place where it would be advantageous to allow for such sub-ducting. Therefore, an additional description for innerduct in conduit (sub-ducting) will be added as a suffix to the UD assembly unit in the RUS Form 515b. In addition, an example of the new unit description will also be added to the UD assembly unit. The new suffix will be the letter “V” and its description and example will read and appear as follows:

“V—One or more vacant innerduct to be placed in a conduit. The parentheses for the UD unit shall indicate the number of innerducts followed by the inside diameter of the innerduct to be placed in new or existing conduit, including rodding and cleaning of the conduit if necessary”.

“Example: UD(3-1.25)V—Indicates 3 innerducts of 1.25 inch inner diameter to be placed in new or existing conduit”.

Comment: The last comment from the same respondent recommended that check off boxes for measuring fiber optic splice loss at 1310 and 1550 nanometers be added to the Table identified as Schedule of Acceptance Tests listed in the proposed RUS Form 515 contract revision.

Response: RUS agrees that all standard acceptance tests should be included in the table and will modify the table to include check off boxes for measuring fiber optic splice loss at 1310 and 1550 nanometers in the RUS Form 515 contract revision.

Comment: One respondent recommended that “ripping” be removed from the proposed BFC and BFO assembly units listed in the proposed RUS Form 515a revision. The respondent also recommended that “ripping” be included in the proposed RUS Form 515a revision as a separate assembly unit designated BM76. The reason for commenters' recommendations are due to several arguments, including options to control the number of ripping passes and the occasion when ripping will be used.

Response: Extensive discussions were conducted during the revision process and these discussions included many of comments cited by the respondent. By including “ripping” in the proposed BFC and BFO cable placement assembly units, a cost impact is not anticipated. While there are merits to not changing the units, RUS views the change as a way to bid projects on an equitable basis. Therefore, RUS will not modify the proposed RUS Form 515a revision to include a separate assembly unit for “ripping”.

Comment: The second comment from the same respondent concerned the definition of “cable placement operations” in the proposed RUS Form 515 contract revision, specifically whether an inspector is necessary during cable blowing operations.

Response: The reason that the “cable placement operation” definition in the proposed RUS Form 515 contract was initially changed was to better match the construction activities to the quantity of inspectors that were present on the project. This is the basis for the comment, for which additional definition would serve no purpose. Therefore, RUS will not modify the existing definition for “cable placement operations” in the RUS Form 515 contract revision.

Comment: The third comment from the same commenter questioned why shield to ground testing listed in the “Schedule of Acceptance Tests” table in the proposed RUS Form 515 contract revision should be performed on cable placed in plowcon.

Response: The purpose of shield to ground testing is to ensure that the contractor did not damage the cable in the placement operation. The point is valid, although the use of the specific application is not common enough for specific reference in the contract, although the owner could choose to relieve the contractor from this testing on a case-by-case basis.

Comment: Comment number four from the same commenter concerned the co-insurance option for liability insurance in the proposed RUS Form 515 contract revision, indicating that the telecommunications company and engineer could still be named in litigation.

Response: RUS agrees with the commenter that we can never avoid the possibility of litigation. At the request of borrowers, contractors, and engineers, the option to provide for added insurance was included in the proposed RUS Form 515 contract revision. By including this option, the borrower may select co-insurance as an added protection. Therefore, RUS will not remove the co-insurance liability option from the 515 contract revision.

Comment: Comment number five from the same respondent concerned the proposed BH assembly unit description listed in the proposed RUS Form 515a revision. The respondent recommended that the wording “to be used only in areas of pedestrian traffic” be removed from the assembly unit description because handholes are often placed in areas where the only pedestrian traffic is a coyote chasing a prairie dog.

Response: RUS agrees with the commenter's recommendation. Therefore, RUS will change the wording “should be used only for areas of pedestrian traffic” in the BH assembly unit description of the proposed RUS Form 515a revision to “shall be used only in areas of non-vehicular traffic”. This will protect coyotes and prairie dogs.

Because the UH assembly unit description listed in the proposed RUS Form 515b revision is similar to the proposed BH assembly unit, the proposed UH assembly unit description listed in the RUS Form 515b revision will also be changed to indicate that these handholes should be used only in areas of non-vehicular traffic to make both assembly unit descriptions consistent.

Comment: The last comment from the same commenter concerned the minimum depth of a buried service wire in rock. The commenter pointed out that the “Table of Depths” specified in paragraph 3.2 of the proposed RUS Form 515d revision did not apply when the minimum depth in rock is 3 inches.

Response: RUS agrees with the commenter and will remove the “Table of Depths” specified in paragraph 3.2 from the proposed RUS Form 515d revision.

No other comments were received. RUS’ review of the proposed Form 515 contract, Form 515a, Form 515b, Form 515c, and Form 515d revisions revealed that these revisions needed additional clarification and consistency between existing RUS published contracts and between the individual proposed documents. Therefore to provide the needed clarification and to make individual documents consistent, RUS has made the following changes to the proposed document:

a. To insure that contractors and borrowers are using the latest issue of RUS forms related to the contract, a parenthetical statement indicating that the current issue of related RUS forms is to be utilized has been added to page i, Roman numeral III of the final RUS Form 515 contract.

b. To make the proposed RUS 515 contract's approval period consistent with other RUS published contract forms, the “60-day period” was changed to the “90-day period” in the “Instructions to Bidders, paragraph 10” and “Article VII, section 8” of the final RUS Form 515 contract.

c. To emphasize that the liquidated damage amount is an owner's decision, the “Liquidated Damage Amount” along with page number references has been added to the index as the first item under the “Owner—Prior to Release for Bids Completes” heading of the final RUS Form 515 contract.

d. Editorial changes were made to the “Notice to Bidders” and “Instruction to Bidders” sections of final RUS Form 515 Contract by adding the “(s)'' or “(ies)” to the words “state,” “county,” and “exchange” to indicated that the construction project could be performed in more than one location.

e. Changed the language “shown on the maps and construction sheets” in paragraph 18(d), “Instruction to Bidders”, to “shown on the construction sheets” of the final RUS Form 515 contract. The reason for the change in language is because the definition of “construction sheets” on page 97 of the final RUS Form 515 contract includes “maps”.

f. Removed the parenthetical statement indicating the type of pole preservatives allowed in “Section A—POLE UNITS” and “Section BA—BURIED PLANT HOUSING STUB POLE UNITS” listed in the final RUS Form 515 contract. The reason for removal is that the consulting engineer specifies the type of pole preservative to be used on poles and stub poles.

g. Moved the language “Rural Utilities Service (hereinafter called the “Administrator”)” from paragraph 3 to paragraph 2 of the “Contractor's Proposal” in the final RUS Form 515 contract to place the reference in the appropriate paragraph.

h. Placed a parenthetical statement referencing the “RUS Form 168b or 168c” in paragraph 13 of the “Contractor's Proposal” in the proposed RUS Form 515 contract to delineate the appropriate form to be used in the contractor's proposal.

i. Changed the “BD12R” example shown in the proposed BD assembly unit of the proposed RUS Form 515a to a “BD14R” example. The reason for the change is because a BD12 size buried plant housing does not exist in the proposed assembly unit.

j. Changed the language “ripping (where necessary)” to “ripping (where necessary as determined by the Engineer)” in the proposed BFC and BFO assembly units in the final RUS Form 515a to clarify the ripping application.

k. Changed the language “vacant tubes” to “vacant ducts” in the proposed “V( )( )” suffix under the BFC and BFO assembly units in the final RUS Form 515a for consistency.

l. Added the suffix “T” to the BH assembly unit listed in the final RUS Form 515a to indicate that these type handholes can be used in areas of vehicular traffic if rated for such usage. The reason for the change is to make the BH assembly unit consistent with the UH assembly unit listed in the final RUS Form 515b.

m. Changed the language “suffixed by ‘E()’, where the required depth shall be shown inside the parentheses” to “suffixed by ‘E( )’, where the required depth in rock shall be shown inside the parentheses” in the BM71 assembly unit listed in the final RUS Forms 515a and 515d. The reason for the change is to clarify that “E( )” suffix associated with the proposed BM71 assembly unit specifically refers to the depth in rock rather than from the surface of the earth.

n. All assembly unit and construction guide drawings were reviewed for editorial content. The review resulted in RUS revising the drawings for editorial content to ensure consistent formatting, text font, leader dimensions, etc. This resulted in changing the issue date from “August 1999” to “March 2001” for all assembly unit and construction guide drawings listed in RUS Forms 515a, 515b, 515c, and 515d.

List of Subjects in 7 CFR Part 1755

• Incorporation by reference
• Loan programs—communications
• Reporting and recordkeeping requirements
• Rural areas
• Telephone

For reasons set out in the preamble, RUS amends chapter XVII of title 7 of the Code of Federal Regulations as follows:

PART 1755—TELECOMMUNICATIONS STANDARDS AND SPECIFICATIONS FOR MATERIALS, EQUIPMENT AND CONSTRUCTION

1. The authority citation for part 1755 continues to read as follow:

Authority: 7 U.S.C. 901 et seq., 1921 et seq., 6941 et seq.

2. Section 1755.30(c)(34) is revised to read as follows:

§ 1755.30

List of telecommunications standard contract forms.

* * * * *

(c) List of telecommunications standard contract forms.

* * * * *

(34) RUS Form 515, issued September 17, 2001, Telecommunications Systems Construction Contract (Labor and Materials).

* * * * *

3. Section 1755.97 is amended by revising the section heading and the introductory text, removing the entries RUS Bulletins 345-150, 345-151, 345-152, 345-153, and 345-154 from the table and adding in numerical order new entries 1753F-150, 1753F-151, 1753F-152, and 1753F-153 to read as follows:

§ 1755.97

Incorporation by reference of telecommunications standards and specifications.

The following telecommunications bulletins have been approved for incorporation by reference by the Director of the Office of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These bulletins contain construction standards and specifications for materials and equipment and may be obtained from the Rural Utilities Service, Program Development and Regulatory Analysis, 1400 Independence Ave., SW, Stop 1522, Room 4028 South Building, Washington, DC 20250-1522. The bulletins are available for inspection at RUS, at the address above, and the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC. These materials are incorporated as they exist on the date of the approval and notice of any change in these materials will be published in the Federal Register. The terms “RUS form”, “RUS standard form”, “RUS specification”, and “RUS bulletin” have the same meaning as the terms “REA form”, “REA standards form”, “REA specification”, and “REA bulletin”, respectively, unless otherwise indicated. The table of bulletins follows:

RUS Bulletin No.	Specification No.	Date last issued	Title of standard or specification
*         *         *         *         *         *         *
1753F-150	Form 515a	9/17/01	Specifications and Drawings for Construction of Direct Buried Plant.
1753F-151	Form 515b	9/12/01	Specifications and Drawings for Construction of Underground Plant.
1753F-152	Form 515c	9/17/01	Specifications and Drawings for Construction of Aerial Plant.
1753F-153	Form 515d	9/17/01	Specifications and Drawings for Service Installation at Customer Access Locations.
*         *         *         *         *         *         *

Dated: August 1, 2001.

Blaine D. Stockton,

Acting Administrator, Rural Utilities Service.