`[Federal Register Volume 65, Number 226 (Wednesday, November 22, 2000)]
[Rules and Regulations]
[Pages 70307-70312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29572]


=======================================================================
-----------------------------------------------------------------------

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

[[Page 70308]]

received relative to each proposed amendment follows.

Section 645.101  Purpose

    In Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 non-utilities under regulations 
in this subpart might interfere with other requirements currently in 
effect for accommodating non-utilities, particularly in regard to fair 
market

[[Page 70309]]

value, use of revenues for title 23 purposes, and the environment.

Section 645.205  Policy

    In Sec. 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 right-of-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 Sec. 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 Sec. 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 Sec. 645.207, means any public way for vehicular travel 
constructed or improved in whole or part with Federal-aid 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 Federal-aid 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 Sec. 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 Sec. 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 Sec. 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 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.
    In Sec. 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

[[Page 70310]]

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 Sec. 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 Sec. 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 
Sec. 645.207 above. There was no opposition to these amendments. No 
comments were received.

Section 645.215  Approvals

    In Sec. 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 
Sec. 645.203, it is indicated that private lines installed 
longitudinally on highway right-of-way are to be approved under the 
provisions of Sec. 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 Sec. 645.203 was written, 
another reference was made to longitudinal private lines in 
Sec. 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

[[Page 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.
------------------------------------------------------------------------

Sec. 645.105  [Amended]

    3. Amend Sec. 645.105 by removing the paragraph designations from 
all definitions and by placing all definitions in alphabetical order.

    4. Revise Sec. 645.109(c) to read as follows:


Sec. 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 Sec. 645.113(f) to read as follows:


Sec. 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 Sec. 645.117 to add paragraph (a)(3) and to revise 
paragraph (i)(2) to read as follows:


Sec. 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 Sec. 645.119(c) to read as 
follows:


Sec. 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 Sec. 645.207 by revising the definition for ``clear zone'' 
to read as follows:


Sec. 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 non-recoverable 
slope, and/or the area at the toe of a non-recoverable slope available 
for safe use by an errant vehicle. The desired width is dependent upon 
the traffic volumes and speeds, and on the roadside geometry. The 
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 Sec. 645.209, revise paragraph (j) and add paragraph (m) to 
read as follows:

[[Page 70312]]

Sec. 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 Sec. 645.211 by revising the introductory text of the 
section to read as follows:


Sec. 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 Sec. 645.215(d) to read as follows:


Sec. 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`