Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations 70307

Authority: 21 U.S.C. 351, 360, 360c, 360e,

360j, 371.

2. Section 866.5785 is added to

subpart F to read as follows:

§ 866.5785 Anti-Saccharomyces cerevisiae

(S. cerevisiae) antibody (ASCA) test

systems.

(a) Identification. The AntiSaccharomyces cerevisiae (S. cerevisiae)

antibody (ASCA) test system is an in

vitro diagnostic device that consists of

the reagents used to measure, by

immunochemical techniques, antibodies

to S. cerevisiae (baker’s or brewer’s

yeast) in human serum or plasma.

Detection of S. cerevisiae antibodies

may aid in the diagnosis of Crohn’s

disease.

(b) Classification. Class II (special

controls). The special control is FDA’s

‘‘Guidance for Industry and FDA

Reviewers: Class II Special Control

Guidance Document for AntiSaccharomyces cerevisiae (S. cerevisiae)

Antibody (ASCA) Premarket

Notifications.’’

Dated: November 9, 2000.

Linda S. Kahan,

Deputy Director for Regulations Policy, Center

for Devices and Radiological Health.

[FR Doc. 00–29841 Filed 11–21–00; 8:45 am]

BILLING CODE 4160–01–F

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: Final rule.

SUMMARY: The FHWA is issuing a final

rule amending its regulation prescribing

policies, procedures, and

reimbursement provisions for the

relocation and adjustment 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: This final rule is effective

January 22, 2001.

FOR FURTHER INFORMATION CONTACT: Mr.

Paul Scott, Office of Program

Administration, HIPA–20, (202) 366–

4104; or Mr. Reid Alsop, Office of the

Chief Counsel, HCC–31, (202) 366–0791,

Federal Highway Administration, 400

Seventh Street, SW., Washington, D.C.

20590–0001. 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

The amendments in this final rule are

based primarily on the notice of

proposed rulemaking (NPRM) published

at 65 FR 6344 on February 9, 2000

(FHWA Docket No. FHWA–99–6232).

All comments received in response to

this NPRM have been considered in

adopting these amendments.

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 at 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 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 accommodation 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

eliminated the requirement for FHWA

pre-award review and/or approval of

consultant contracts for preliminary

engineering; increased the ceiling for

lump sum agreements from $25,000 to

$100,000; clarified the meaning of the

term ‘‘approved program’’ and the

methodology to be used to compute

indirect or overhead rates; required

utilities to submit final billings within

one year following completion of the

utility relocation work; eliminated the

certification of completed utility work

and the requirement for evidence of

payment prior to reimbursement;

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.

This final rule amends the regulation

as follows:

• Incorporates an amendment

conforming the utilities regulations to

the Transportation Equity Act for the

21st Century (TEA–21), Public Law

105–178, 112 Stat. 107.

• Eliminates the $100,000 upper limit

for lump-sum agreements.

• Allows reimbursement for utility

relocations to be based upon unit costs.

• Clarifies the intent of the regulation

requiring utilities to submit final

billings within one year following

completion of work.

• Deletes the provision encouraging

STDs to adopt the alternate procedure

for utilities.

• States that the most important

consideration in determining whether a

proposed facility is a utility or not, is

how the STD views it under its own

State laws and/or regulations.

• Eliminates a confusing provision to

clarify the intent that the utility

regulations are not applicable to

longitudinal installations of private

lines.

Discussion of Comments

Interested persons were invited to

participate in the development of this

final rule by submitting written

comments in response to the NPRM in

Docket No. FHWA–99–6232 on or

before April 10, 2000. Comments were

received from 6 STDs and 1 utility

company. A summary of the comments

70308 Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations

received relative to each proposed

amendment follows.

Section 645.101 Purpose

In § 645.101, it was proposed to

change the term ‘‘utility facilities’’ to

‘‘utilities’’ in an effort to more clearly

set forth the intent to include utility

lines and systems, as well as facilities.

There was no opposition to this

proposed amendment. A favorable

comment was received from one STD.

Even so, the FHWA has considered this

comment, and other informal input, and

has decided not to pursue this proposed

amendment. The terms ‘‘utilities’’ and

‘‘utility facilities’’ have come to mean

essentially the same thing. The Congress

even uses the terms interchangeably in

authorizing legislation contained in 23

U.S.C. 123.

Section 645.105 Definitions

In § 645.105, paragraph designations

are removed from all definitions and all

definitions are placed in alphabetical

order to conform subpart A to the

existing format in subpart B. Also, the

definitions ‘‘State highway agency’’ and

‘‘Highway agency (HA)’’ are changed to

‘‘State transportation department’’ and

‘‘Transportation department,’’

respectively, to conform the utilities

regulation to section 1212(a) of the

TEA–21.

Section 645.109 Preliminary

Engineering

In § 645.109, paragraph (c) is

amended to reflect the correct title for

23 CFR part 172. It is presently shown

as ‘‘Administration of Negotiated

Contracts.’’ It should be

‘‘Administration of Engineering and

Design Related Service Contracts.’’ This

was not addressed in the NPRM.

Section 645.113 Agreements and

Authorizations

In § 645.113, paragraph (f) is 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. There

was no opposition to this amendment.

Favorable comments were received from

four STDs and one utility. The

amendment will provide the States

greater flexibility in utilizing the lump

sum payment arrangement should they

so desire. 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 will increase the number

of utility relocations potentially eligible

for lump sum payment.

Section 645.117 Cost Development

and Reimbursement

In § 645.117, paragraph (a)(3) is added

in order to allow reimbursement for

utility relocations to be based upon unit

costs for labor, materials and supplies,

equipment, and other related costs, in

lieu of actual costs. There was no

opposition to this amendment.

Favorable comments were received from

three STDs and one utility. This

amendment will provide the States

greater flexibility in utilizing the lump

sum payment arrangement, and will

also decrease unnecessary paperwork

and encourage innovation.

In § 645.117, paragraph (i)(2) is

amended to clarify the intent of the

regulation requiring utilities to submit

final billings within one year following

completion of work. There was no

opposition to this amendment.

Favorable comments were received from

three STDs and one utility. The intent

is 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 are not

submitted within that time frame, to

consider previous payments made to the

utility to be final. This regulation is

intended to be a tool to help STDs close

out projects in a timely manner, but it

does allow exceptions to be made. 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

In § 645.119, the first sentence in

paragraph (c) is amended to delete the

provision encouraging STDs to adopt

the alternate procedure for utilities, but

continues 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. There was no

opposition to this amendment. A

favorable comment was received from

one STD. 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

In § 645.201, it was proposed to

change the term ‘‘utility facilities’’ to

‘‘utilities’’ in an effort to more clearly

set forth the intent to include utility

lines and systems, as well as facilities.

There was no opposition to this

proposed amendment. Even so, the

FHWA has decided not to pursue this

proposed amendment. The terms

‘‘utilities’’ and ‘‘utility facilities’’ have

come to mean essentially the same

thing. Furthermore, authorizing

legislation in 23 U.S.C. 109(l)(1) uses

the term ‘‘utility facilities’’ throughout

in regard to accommodating utilities on

highway rights-of-way.

Section 645.203 Applicability

In § 645.203, it was proposed to add

a new paragraph, paragraph (e), in order

to apply the utility accommodation

regulations to facilities similar to

utilities (i.e., facilities, such as fiber

optics and wireless

telecommunications, that are considered

by the FHWA to be included in the

definition of ‘‘utility facility’’ in this

subpart, and are considered to be

utilities by many, but not all, of the

States). Comments were received from

two STDs, one in favor of the proposed

amendment and one opposed. The

Minnesota DOT was opposed because it

believed the amendment would serve to

define wireless telecommunications as a

utility and would unduly influence

State policies.

The FHWA has considered these

comments, and other informal input,

and has decided not to pursue this

proposed amendment. While it would

have provided uniformity and

simplicity (by avoiding fiber optics,

wireless telecommunications, and

similar facilities, from being

accommodated under one FHWA

procedure in one State and a different

FHWA procedure in another State), it

would have conflicted with the FHWA’s

longstanding 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. There was also the

appearance that accommodating nonutilities under regulations in this

subpart might interfere with other

requirements currently in effect for

accommodating non-utilities,

particularly in regard to fair market

Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations 70309

value, use of revenues for title 23

purposes, and the environment.

Section 645.205 Policy

In § 645.205, it was proposed to add

a new paragraph (e), in order to indicate

States may charge a fee for utility use of

highway rights-of-way on Federal-aid

highway projects, and to suggest that if

they do the proceeds should be used for

title 23, U.S.C., purposes. Comments

were received from four STDs and one

utility company. Two STDs were in

favor of this proposed amendment, but

two other STDs and one utility company

expressed some concern and/or

requested clarification. The Arkansas

Department of Transportation (DOT)

indicated its State law might not allow

fees to be charged for utility use of its

rights-of-way. The Wisconsin DOT

suggested revised wording. The Mid

American Energy Company requested

further clarification.

The FHWA has considered these

comments, and other informal input,

and has decided not to pursue this

proposed amendment. It has been the

FHWA’s policy for many years to allow

States to charge fees for utility use of

highway right-of-way if they desire, and

to allow them to use the proceeds as

they see fit. In the past, fees charged for

utility use were generally just enough to

cover the cost of processing permits.

Now, with the advent of fiber optics and

wireless telecommunications,

opportunities exist for the States to

make substantial profits. In such cases,

the FHWA has informally encouraged

the States to use such proceeds for

transportation purposes. This proposed

amendment would have formally

established the FHWA’s desire for

proceeds from fees charged for utility

use of highway right-of-way to be used

for transportation purposes. Although

this is a valid desire, the utility

regulations are probably not the best

place to express it. This is because

Federal law is silent on charging fees for

utilities, thus leaving it to the States to

decide for themselves. The FHWA

considers utility use of highway rightof-way to be in the public interest. It

therefore has no desire to require the

charging of fees, and since Federal law

does not require such, there is no real

reason to try to regulate a practice that

is working well. Relative to the use of

fees obtained for the use of highway

right-of-way, the FHWA only desires to

encourage the States to use such

proceeds for transportation purposes.

Again, since there is no desire at this

time to regulate this activity, a statement

to this effect in FHWA’s guidance

literature is considered to be sufficient.

Section 645.207 Definitions

In § 645.207, the definitions ‘‘State

highway agency’’ and ‘‘Highway

agency’’ are changed to ‘‘State

transportation department’’ and

‘‘transportation department,’’

respectively, to conform the utilities

regulation to section 1212(a) of the

TEA–21. 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’’ is to ensure the most

recent information is used. Reference to

FHWA Regional Offices is deleted

because in a recent reorganization all

FHWA Regional Offices were abolished.

All utility-related responsibilities of the

FHWA Regional Offices have been

delegated to FHWA Division Offices.

There was no opposition to these

amendments. No comments were

received.

Section 645.209 General Requirements

In § 645.209, it was proposed to

amend paragraph (d) 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.

Comments were received from two

STDs, one was in favor of the proposed

amendment, and the other questioned

the definition of the term ‘‘project.’’

The FHWA has considered these

comments and decided not to pursue

this amendment. Upon further

consideration of the existing regulations

it was found that the term ‘‘highway’’

used in this subpart, and as defined in

§ 645.207, means any public way for

vehicular travel constructed or

improved in whole or part with Federalaid highway funds. It was the intent of

the amendment to clarify the distinction

between highways actually constructed

or improved using Federal-aid highway

funds, and highways eligible for

construction or improvement with

Federal-aid highway funds. It may be a

moot point. Even though STDs may only

be required to regulate utility use on

highways where Federal-aid highway

funds have been used, as a practical

matter it is difficult for them to adopt

one policy for federally funded

highways versus a different policy for

adjoining State funded highways. 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 highways

constructed or improved using Federalaid highway funds, and highways

eligible for construction of improvement

using Federal-aid highway funds, is

considered to be sufficiently covered in

the existing utility regulations.

In § 645.209, paragraph (j) is 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. There was no opposition to these

amendments. Comments were received

from one STD, and it was in favor of the

changes.

In § 645.209, paragraph (m) is 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. There was no opposition to

this amendment. A favorable comment

was received from one STD. This

determination is important because

utilities are handled under this

regulation; whereas, private lines and

other non-utilities are handled under

other regulations. As in many utilityrelated 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.

In § 645.209, we proposed to add a

new paragraph (n), in order to: (1)

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; and (2) 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-of-way, or may sell,

lease, or somehow convey it to the

utilities. Comments were received from

six STDs concerning this proposal. Two

STDs were in favor of this proposed

amendment, but four STDs expressed

some concerns. The Oregon DOT found

the proposed amendment to be very

disturbing because it would conflict

with State law prohibiting the use of

State highway funds for utility

purposes. The Wisconsin DOT was

concerned about conveying property to

utilities and made several suggestions

for clarification and improvement of the

70310 Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations

proposed amendment. The

Pennsylvania DOT recommended

changing the language to indicate STDs

‘‘may,’’ rather than ‘‘should’’ take

certain actions. The Minnesota DOT was

unclear as to the use of some of the

words in the proposed amendment.

The FHWA has considered these

comments, and other informal input,

and has decided not to pursue the

proposed amendment in § 645.209. The

intent was to encourage STDs to

consider utility right-of-way needs

during the development of projects, and

to subsequently consider acquiring

right-of-way for utilities. Many STDs are

already doing these things. The FHWA

would like to encourage other STDs to

do the same, but has no desire at this

time to require them to do so. However,

within the context of a regulation, the

difference between encouragement and

requirements may become blurred. In

addition, there are many underlying

issues within the broad scope of the

proposed amendments that cannot be

addressed adequately in a regulation to

satisfy the needs and constraints of

individual States. The FHWA, therefore,

deems it more appropriate to make its

desires known in its guidance literature.

Section 645.211 State Highway Agency

Accommodation Policies

In § 645.211, the section heading is

changed to reflect the statutory name

change from ‘‘State highway agency’’ to

‘‘State transportation department.’’ The

introductory paragraph is 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

discussed in § 645.207 above. There was

no opposition to these amendments. No

comments were received.

Section 645.215 Approvals

In § 645.215, paragraph (d) is

amended to remove all references to the

approval of longitudinal installations of

private lines. There was no opposition

to this amendment. No comments were

received. 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 covers the use of

highway right-of-way, including air

space, for non-highway purposes. This

provision excludes longitudinal private

line installations from coverage under

the utility regulations. It was not

originally intended for longitudinal

private lines to be handled under the

FHWA’s right-of-way provisions, but it

has become common practice to include

them in this category. Not knowing 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 right-of-way items.

Rulemaking Analyses and Notices

All comments received before the

close of business on April 10, 2000,

were considered in developing the final

rule. The comments are available for

examination using FHWA docket

number 99–6232 in the docket room at

the above address or via the electronic

addresses provided above.

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined this

action is not a significant regulatory

action within the meaning of Executive

Order 12866, nor a significant regulatory

action within the Department of

Transportation’s regulatory policies and

procedures. The amendments 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

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 amendments 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 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

human and natural environment.

Executive Order 13132 (Federalism

Assessment)

This 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 rule 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 rule merely reduces the

level of Federal approval actions by

placing greater responsibility at the

State or local level. Throughout the

regulation 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 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

rulemakings are subject to the

information collection provisions of the

PRA. The FHWA has determined that

this action would not constitute an

information collection within the scope

or meaning of the PRA. Implementation

of this rule 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

at 23 CFR 645. As a result, no additional

information collection burdens are

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 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

Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations 70311

these collections would not be affected

by implementation of this rule.

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 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 rule does 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.

In consideration of the foregoing, the

FHWA amends title 23, Code of Federal

Regulations, part 645 as follows:

Issued on: November 9, 2000.

Kenneth R. Wykle,

Federal Highway Administrator.

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).

2. In part 645, wherever they appear,

remove the words indicated in the first

column in the table below and add in

their place the words indicated in the

second column:

Remove Add

Highway agency ........ Transportation department.

Highway agencies ..... Transportation departments.

State highway agency State transportation

department.

State highway agencies.State transportation

departments.

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

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

§ 645.105 [Amended]

3. Amend § 645.105 by removing the

paragraph designations from all

definitions and by placing all

definitions in alphabetical order.

4. Revise § 645.109(c) to read as

follows:

§ 645.109 Preliminary engineering.

* * * * *

(c) The procedures in 23 CFR part

172, Administration of Engineering and

Design Related Service Contracts, may

be used as a guide for reviewing

proposed consultant contracts.

5. Revise § 645.113(f) to read as

follows:

§ 645.113 Agreements and authorizations.

* * * * *

(f) When proposed utility relocation

and adjustment work on a project for a

specific utility company can be clearly

defined and the cost can be accurately

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. Amend § 645.117 to add paragraph

(a)(3) and to revise paragraph (i)(2) to

read as follows:

§ 645.117 Cost development and

reimbursement.

(a) * * *

(3) The STD may develop, or work in

concert with utility companies to

develop, other acceptable costing

methods, such as unit costs, to estimate

and reimburse utility relocation

expenditures. Such other methods shall

be founded in generally accepted

industry practices and be reasonably

supported by recent actual

expenditures. Unit costs should be

developed periodically and supported

annually by a maintained data base of

relocation expenses. Development of

any alternate costing method should

consider the factors listed in paragraphs

(b) through (g) of this section.

Streamlining of the cost development

and reimbursement procedures is

encouraged so long as adequate

accountability for Federal expenditures

is maintained. Concurrence by the

FHWA is required for any costing

method used other than actual cost.

* * * * *

(i) * * *

(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 text of

§ 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. Amend § 645.207 by revising the

definition for ‘‘clear zone’’ 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. This publication 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,

D.C. 20001, or electronically at http://

www.aashto.org.

* * * * *

9. In § 645.209, revise paragraph (j)

and add paragraph (m) to read as

follows:

70312 Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations

§ 645.209 General requirements.

* * * * *

(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

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 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 it under its own State laws and/

or regulations.

10. Amend § 645.211 by revising the

introductory text of the section 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. These

publications 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, or electronically

at http://www.aashto.org. At a

minimum, such policies shall make

adequate provisions with respect to the

following:

* * * * *

11. 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 regulation or with the STD’s utility

accommodation policy approved by the

FHWA for use on Federal-aid highway

projects.

* * * * *

[FR Doc. 00–29572 Filed 11–21–00; 8:45 am]

BILLING CODE 4910–22–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 300

[FRL–6859–3]

National Oil and Hazardous

Substances Pollution Contingency

Plan; National Priorities List

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final deletion of the John

Deere Ottumwa Works Site (Site) from

the National Priorities List (NPL).

SUMMARY: EPA Region VII announces

the deletion of the John Deere Ottumwa

Works Site (Site) from the NPL and

requests public comment on this action.

The NPL constitutes Appendix B of 40

CFR part 300 which is the National Oil

and Hazardous Substances Pollution

Contingency Plan (NCP), which EPA

promulgated pursuant to Section 105 of

the Comprehensive Environmental

Response, Compensation and Liability

Act (CERCLA) of 1980, as amended

(CERCLA). EPA and the Iowa

Department of Natural Resources (IDNR)

have determined that all appropriate

response actions have been

implemented and remedial actions

conducted at the site to date remain

protective of human health and the

environment.

DATES: This ‘‘direct final’’ action will be

effective January 22, 2001 unless EPA

receives significant adverse or critical

comments by December 22, 2000. If

written dissenting comments are

received, EPA will publish a timely

withdrawal of the direct final rule in the

Federal Register informing the public

that the rule will not take effect.

ADDRESSES: Comments may be mailed to

Debra L. Kring, Environmental

Protection Specialist, U.S.

Environmental Protection Agency, 901

North 5th Street, Kansas City, KS 66101.

Comprehensive information on this Site

is available through the public docket

which is available for viewing at the

U.S. EPA Region VII Superfund Division

Records Center, 901 North 5th Street,

Kansas City, KS 66101.

FOR FURTHER INFORMATION CONTACT:

Debra L. Kring, U.S. Environmental

Protection Agency, Superfund Division,

901 North 5th Street, Kansas City, KS

66101, (913) 551–7725, fax (913) 551–

7063.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

II. NPL Deletion Criteria

III. Deletion Procedures

IV. Basis of Intended Site Deletion

V. Action

I. Introduction

The Environmental Protection Agency

(EPA), Region VII announces the

deletion of the John Deere Ottumwa

Works site, Ottumwa, Iowa from the

NPL, Appendix B of the National Oil

and Hazardous Substances Pollution

Contingency Plan (NCP), 40 CFR part

300. The EPA identifies sites that appear

to present a significant risk to public

health, welfare, or the environment and

maintains the NPL as the list of these

sites. EPA and the Iowa Department of

Natural Resources (IDNR) have

determined that the remedial action at

the Site has been successfully executed.

EPA will accept comments on this

notice thirty days after publication of

this document in the Federal Register.

Section II of this action explains the

criteria for deleting sites from the NPL.

Section III discusses the procedures that

EPA is using for this action. Section IV

discusses the history of the John Deere

Ottumwa Site and explains how the Site

meets the deletion criteria. Section V

states EPA’s action to delete the releases

of the Site from the NPL unless

dissenting comments are received

during the comment period.

II. NPL Deletion Criteria

Section 300.425(e) of the NCP

provides that sites may be deleted from,

or recategorized on the NPL where no

further response is appropriate. In

making a determination to delete a

release from the NPL, EPA shall

consider, in consultation with the state,

whether any of the following criteria

have been met:

(i) Responsible parties or other

persons have implemented all

appropriate response actions required;

(ii) All appropriate Fund-financed

response under CERCLA has been

implemented, and no further response

action by responsible parties is

appropriate; or

(iii) The remedial investigation has

shown that the release poses no

significant threat to public health or the