6344 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Proposed Rules

reserve tonnage raisins held beyond the

crop year of acquisition shall be made

in accordance with this paragraph. Each

handler, producer, dehydrator, and

other person who furnishes boxes or

bins in which such raisins are held for

the account of the Committee on August

1 shall be compensated for the use of

such boxes and bins. The rate of

compensation shall be: For boxes, two

and one-half cents per day, not to

exceed a total payment of $1 per box per

year, per average net weight of raisins in

a sweatbox, with equivalent rates for

raisins in boxes other than sweatboxes;

and for bins 20 cents per day per bin,

not to exceed a total of $10 per bin per

year. For purposes of this paragraph,

box means any container with a

capacity of less than 1,000 pounds and

bin means any container with a capacity

of 1,000 pounds, or more. The average

net weight of raisins in each type of box

shall be the industry average as

computed by the Committee for the box

in which the raisins are so held. No

further compensation shall be paid

unless the raisins are so held in the

boxes on the succeeding August 1.

* * * * *

Dated: February 3, 2000.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 00–2980 Filed 2–8–00; 8:45 am]

BILLING CODE 3410–02–P

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.

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 rightsof-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

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Proposed Rules 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 rightof-way on a Federal-aid highway

project, such potential use should be

a consideration in determining the

extent and adequacy of the right-ofway 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 rightof-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

6346 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Proposed Rules

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 utilityrelated 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 § 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

§ 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-ofway, 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 rightof-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-ofway 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 nonhighway 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 § 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-ofway. 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

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Proposed Rules 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 rightof-way, it is normally desirable for the

STD to approach a property owner for

the purpose of acquiring all the right-ofway 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, Federalaid 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-ofway for use by utilities in accordance

with established standard criteria

pursuant to State law, ordinance, or

administrative practice, such right-ofway 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 § 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 § 645.203, it is indicated that

private lines installed longitudinally on

highway right-of-way are to be approved

under the provisions of § 1.23(c) which

cover the use of highway right-of-way,

including air space, for non-highway

purposes. This provision in § 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 § 645.203 was written,

another reference was made to

longitudinal private lines in

§ 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

6348 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Proposed Rules

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

Old reference New reference

State highway agency State transportation

department

State highway agencies.State transportation

departments

HA ............................. TD

SHA ........................... STD

3. Revise § 645.101 to read as follows:

§ 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 § 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:

§ 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-ofway 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 § 645.113(f) to read as

follows:

§ 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

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Proposed Rules 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 § 645.117(c)(1), (e)(4), and

(i)(2) to read as follows:

§ 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 § 645.119(c) to read as follows:

§ 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 § 645.201 to read as follows:

§ 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 § 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:

§ 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 § 645.205 by adding

paragraph (e) to read as follows:

§ 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 § 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:

§ 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 nonrecoverable 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 § 645.209, revise paragraphs (d)

and (j); and add paragraphs (m) and (n)

to read as follows:

§ 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

6350 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Proposed Rules

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 rightof-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 § 645.211 by revising the

introductory paragraph to read as

follows:

§ 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 § 645.215(d) to read as

follows:

§ 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

DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Part 15

[USCG 1999–6097]

Federal Pilotage for Foreign-Trade

Vessels in Maryland

AGENCY: Coast Guard, DOT.

ACTION: Notice of public meeting and

extension of comment period.

SUMMARY: The Coast Guard is holding a

public meeting to solicit comments on

a proposed change to the licensing

requirements for pilots of vessels

engaged in foreign trade, under way on

the navigable waterways within the

State of Maryland. We have proposed to

require that such vessels be under the

direction and control of Federallylicensed pilots when not under the

direction and control of State-licensed

pilots. Because of substantial interest,

we have scheduled a public meeting on

March 1, 2000, regarding the proposed

rule, and we have extended the public

comment period until April 1, 2000. We

encourage you to provide oral and

written comments about the proposed

change.

DATES: The public meeting is scheduled

for Wednesday, March 1, 2000, from 7

p.m. to 10 p.m. The meeting will

convene at 7 p.m.; however, it may

conclude before 10 p.m. if we finish

early. Comments and related material

must reach the Docket Management

Facility on or before April 1, 2000.

ADDRESSES: The public meeting will be

held at the Bachelors Officers’ Quarters

(B.O.Q.) conference room at the Coast

Guard Yard, Building 28A, 2401

Hawkins Point Road, Baltimore, MD

21226–1791.

Because of heightened security

considerations on Federal installations,

we will require photo identification (a

driver’s license, merchant mariner’s

document, or State identification) for

admittance to the Coast Guard Yard.

Please register in advance of the meeting

with Mr. Timothy Farley, Office of

Investigations and Analysis (G–MOA),

Coast Guard, phone 202–267–1414, email Tfarley@comdt.uscg.mil. For

security and organizational purposes,

we want to know your name and

whether you intend to speak at the

meeting. The resulting list will assist

security guards at the gate and provide

the order of speakers at the meeting.

Individuals who do not call in advance

may be required to sign in at the gate.

Vehicles and possessions are subject to

search pursuant to Title 41 of the Code

of Federal Regulations, part 101–20.

To make sure your comments and

related material are not entered more

than once in the docket, please submit

them by only one of the following

means:

(1) By mail to the Docket Management

Facility (USCG 1999–6097), U.S.

Department of Transportation, room PL–

401, 400 Seventh Street SW.,

Washington, DC 20590–0001.

(2) By delivery to room PL–401 on the

Plaza level of the Nassif Building, 400

Seventh Street SW., Washington, DC,

between 9 a.m. and 5 p.m., Monday

through Friday, except Federal holidays.

The telephone number is 202–366–

9329.

(3) By fax to the Docket Management

Facility at 202–493–2251.

(4) Electronically through the Web

Site for the Docket Management System

at http://dms.dot.gov.

The Docket Management Facility

maintains the public docket for this

notice. Comments and material received

from the public will become part of this

docket and will be available for

inspection or copying at room PL–401

on the Plaza level of the Nassif Building,

400 Seventh Street SW., Washington,

DC, between 9 a.m. and 5 p.m., Monday

through Friday, except Federal holidays.

You may also find this docket on the

Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For

questions on this proposed rule, contact

Mr. Timothy Farley, Office of

Investigations and Analysis (G-MOA),

Coast Guard, telephone 202–267–1414,

e-mail Tfarley@comdt.uscg.mil; or you