Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Notices 6753

Division, ANM–600, 1601 Lind Avenue

SW., Suite 540, Renton, WA 98055–

4056.

In addition, any person may, upon

request, inspect the application, notice

and other documents germane to the

application in person at the Mahlon

Sweet Field.

Issued in Renton, Washington on January

11, 2001.

David A. Field,

Manager, Planning, Programming and

Capacity Branch, Northwest Mountain

Region.

[FR Doc. 01–1674 Filed 1–19–01; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

TSO–C77b, Gas Turbine Auxiliary

Power Units

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Notice of availability of

technical standard order.

SUMMARY: This notice announces the

availability of Technical Standard Order

(TSO) C77b. This TSO prescribes the

minimum performance standards that

gas turbine auxiliary power units

(APUs), commonly used in commercial

aircraft, must meet in order to be

identified with the TSO marking.

EFFECTIVE DATE: January 22, 2001.

FOR FURTHER INFORMATION CONTACT: Mr.

Mark A. Rumizen, Engine and Propeller

Standards Staff, ANE–110, Engine and

Propeller Directorate, Federal Aviation

Administration, 12 New England

Executive Park, Burlington, MA 01803–

5299, telephone (781) 238–7113, fax

(781) 238–7199.

SUPPLEMENTARY INFORMATION:

Background

The standards of this TSO will apply

to all APUs used for any new

application submitted after the effective

date of this TSO. APUs currently

approved under TSO–C77 or TSO–C77a

authorization may continue to be

manufactured under the provisions of

their original approval. However, under

§ 21.611(b) of the Federal Aviation

Regulations, any major design change to

an APU previously approved under

TSO–C77 or TSO–C77a would require a

new authorization under this TSO. The

general layout of this document

complies with the updated TSO format.

How To Obtain Copies

A copy of the TSO–C77b may be

obtained via Internet (http:/

www.faa.gov/avr/air/air100/

100home.htm) or by request from the

office listed under FOR FURTHER

INFORMATION CONTACT.

Issued in Burlington, Massachusetts on

December 20, 2000.

David A. Downey,

Assistant Manager, Engine and Propeller

Directorate Aircraft Certification Service.

[FR Doc. 01–1858 Filed 1–19–01; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Guidance on Longitudinal

Telecommunications Installations on

Limited Access Highway Right-of-Way

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Notice.

SUMMARY: This document publishes

guidance on the installation of

telecommunications on limited access

highway right-of-way. This guidance

was distributed to the FHWA Resource

Centers and Division offices on

December 22, 2000. These materials are

the result of consultations with the

Federal Communications Commission

with regard to the potential impact of

the Telecommunications Act of 1996 on

such installations.

FOR FURTHER INFORMATION CONTACT: Mr.

William S. Jones, Intelligent

Transportation Systems (ITS) Joint

Program Office, (202) 366–4651 or Ms.

Beverly Russell, Office of the Chief

Counsel, (202) 366–1355; Federal

Highway Administration, 400 Seventh

Street, SW., Washington, DC. 20590–

0001. Office hours are from 7:30 a.m. to

5 p.m., e.t., Monday through Friday,

except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this document

may be downloaded using a modem and

suitable communications software from

the Government Printing Office

Electronic Bulletin Board Service at

(202) 512–1661. Internet users may

reach 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. In

addition this document is available on

the ITS web sit at: http://

www.its.dot.gov.

Background

Guidance published in this Federal

Register notice is provided for

information purposes. Specific

questions on any of the material

published in this notice should be

directed to the appropriate contact

person named in the caption, FOR

FURTHER INFORMATION CONTACT.

Authority: 23 U.S.C. 315; 49 CFR 1.48.

Issued on: January 11, 2001.

Kenneth R. Wykle,

Federal Highway Administrator.

The text of the FHWA guidance

memorandum dated December 22, 2000

follows:

Information: Guidance on

Longitudinal Telecommunications

Installations on Limited Access

Highway Right-of-Way

Anthony R. Kane, Executive Director,

HOIT–1.

Directors of Field Services

Resource Center Managers

Division Administrators

A number of States have altered their

utility accommodations policies to

allow longitudinal access to their

limited access highway Right-of-Way

(ROW) for telecommunications

installations; usually fiber optic cable.

Several of these installations to date

have been public-private partnerships

with the telecommunications industry

generally referred to as ‘‘Shared

Resource’’ agreements. In December

1999, the Federal Communications

Commission (FCC) issued an opinion in

the Minnesota Department of

Transportation (DOT) case involving

such a partnership that defined the

FCC’s interpretation of the

Telecommunications Act of 1996 (TCA)

and its application to the Minnesota

agreement, which has potentially broad

implications for transportation agencies.

As a result of the FCC’s opinion, the

Federal Highway Administration

(FHWA) engaged in a discussion with

the FCC to clarify how these

partnerships and other similar

telecommunications installations

should be conducted to avoid conflict

with the TCA and be consistent with

FHWA’s requirements for highway

safety and ROW management. These

discussions have culminated in an

approach that considers both the

requirements of the transportation

industry and its concern for highway

safety, and the FCC’s concern with the

implementation of the TCA. This

approach is documented in two letters.

A letter from the FHWA Administrator

to the FCC defines the elements of the

guidance pertaining to access to freeway

ROW, and a letter to the FHWA

Administrator from the Chief of the

Common Carrier Bureau of the FCC

defines the competitive elements of the

6754 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Notices

1United States Department of Transportation,

Shared Resources: ‘‘Sharing Right-of-Way or

Telecommunications,’’ Final Report, Publication

No. FHWA–PO–96–0015 (April 15, 1996), This

document is available online at the web site: http:/

/www.itsdocs.fhwa.dot.gov as item no. 1863, 90

pages.

2Memorandum from Gerald L. Eller, Director,

FHWA’s Office of Engineering to Regional Federal

Highway Administrators on the Effects of the

Telecommunications Act on Utility

Accommodation, October 25, 1996.

guidance based upon the access

restrictions defined by the FHWA.

This is only guidance to assist States

in the execution of Shared Resource

agreements. Agreements can deviate

from these guidelines and still be in

conformance with the TCA. However,

this guidance is intended to clarify some

of the important requirements of the

TCA with regard to competition in the

telecommunications industry.

Background

Over the past decade, a number of

States have implemented Shared

Resource agreements with private

telecommunications companies.

‘‘Shared Resource’’ is a term identifying

public-private arrangements involving

the sharing of the public resource of

roadway ROW and the private resource

of telecommunications expertise and

capacity.1 Most commonly, private

telecommunications providers are

granted access to limited access

highway ROW for their own

telecommunications infrastructure

(principally fiber optics conduits and

cable) in exchange for providing

telecommunications infrastructure to

public agencies.

Shared Resource agreements can be a

beneficial, cost-effective means for State

DOT’s to obtain the telecommunications

infrastructure necessary for Intelligent

Transportation Systems (ITS). For

example, telecommunications capacity

is essential for the integration of both

equipment and data components

required for State and metropolitan

traffic operations systems. Such systems

may include traffic control devices (e.g.

traffic signals), closed circuit television,

radar detectors, pavement sensors, etc.

The United States Department of

Transportation (U.S. DOT) and the

FHWA are responsible for highway

safety (23 U.S.C. 401), the management

of ROW on the interstate system (23

U.S.C. 109(1) and 111(a)), and

implementation of the national ITS

program. The FHWA’s implementing

regulations for utility accommodation

are applicable to shared resource

agreements and other

telecommunications installations. 23

CFR part 645, subpart B. The

regulations, in part, require that States

accommodate utilities in a manner

which does not impair the highway or

adversely affect highway traffic safety.

23 CFR 645.211(a). The regulations

explicitly require that States examine

the effect of utility installation on

‘‘safety, aesthetic quality, and the cost or

difficulty of highway and utility

construction and maintenance.’’ 23 CFR

645.211(b). Though, pursuant to

regulations, ROW management

responsibilities have largely been

devolved to the States, implementation

of these responsibilities must remain

consistent with FHWA regulations, not

only those at 23 CFR part 645, but also

those at 23 CFR part 710 governing the

interstate ROW.

The FHWA also recognized that the

Telecommunications Act of 1996, Pub.

L. No. 104–104, 110 Stat. 56 (1996)

(codified as amended in scattered

sections of title 47 of the United States

Code (U.S.C.)), had the potential to

impact the installation of

telecommunications on freeways.

Specifically, the Act prohibits State and

local governments from implementing

any statute, regulation, or legal

requirements which have the effect of

prohibiting any entity from providing

telecommunications service. 47 U.S.C.

253 (a). However, the section containing

this prohibition has two exemptions.

First, the prohibition does not affect the

ability of the States to impose, on a

competitively neutral basis,

requirements necessary to preserve and

advance universal telecommunications

service, protect public safety and

welfare, ensure quality of

telecommunications service, and

safeguard the rights of consumers. 47

U.S.C. 253 (b). Second, the prohibition

also does not affect ‘‘the authority of a

State or local government to manage the

public ROW or to require fair and

reasonable compensation from

telecommunication providers, on a

competitively neutral and

nondiscriminatory basis, for use of

public right-of-way on a

nondiscriminatory basis, if the

compensation required is publicly

disclosed by such government.’’ 47

U.S.C. 253 (c).

In October 1996, the FHWA issued

guidelines on the anticipated effects of

the TCA on utility accommodations.2 In

these guidelines, the FHWA

recommended that the State highway

departments desiring to allow one or

more telecommunications companies on

interstate ROW make their intentions

publicly known and give all

telecommunications companies the

opportunity to compete.

Guidance on Access to Freeway Rightof-Way

State transportation departments are

obviously very knowledgeable about

FHWA regulations on safety, utility

accommodations, and ROW

management. However, the FCC’s

decision on the Minnesota Shared

Resource agreement created concerns

and uncertainties, notably with regard

to dealing with the competitive effects

of such agreements on the

telecommunications industry and their

relationship to the management of ROW

and public safety. To alleviate this

concern, the U.S. DOT has worked

closely with the FCC to develop

guidance for States that wish to engage

in shared resource and other

telecommunications projects.

When States allow

telecommunications companies onto the

freeway ROW, they are potentially

invoking the TCA. The objective of the

TCA is to foster competition in the

industry. Thus, the TCA contains

significant measures to allow new

potential competitors an opportunity to

compete with the large incumbent

‘‘Baby Bells’’ that have dominated the

industry for nearly 100 years. These

new competitive measures of the TCA

should be considered by States when

they choose to allow

telecommunications companies onto

their freeway rights-of-way.

This guidance identifies points for

negotiating, reaching/implementing

Shared Resource agreements and other

telecommunications installations that

involve entering limited access

highways (freeways) for the safe

installation of fiber optic facilities. In

addition, this guidance provides

potential criteria for implementing these

agreements in a manner that the FCC

Common Carrier Bureau has already

indicated would be acceptable and

likely to maintain a competitively

neutral environment in the

telecommunications industry in

accordance with the TCA.

It should be noted that the

telecommunications competitive

environment varies across the country.

Thus, the circumstances concerning

what is fair and equitable can vary from

region to region. Therefore, it is

reasonably foreseeable that States will

develop agreements for

telecommunications longitudinal access

to freeway ROW that differ from the

suggested guidelines, and that those

agreements would still be in compliance

with the TCA requirements for

competitive neutrality in the contractual

actions of States.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Notices 6755

3Pursuant to 23 C.F.R. 645.211, states are

required to submit utility accommodations plans for

approval. 4There is no intention for this guidance to cause

States to determine the exact location of the clear

zone in any particular area. In most instances,

whether a contractor can locate the construction

outside the clear zone should be discernable for

most portions of the freeway by inspection of a

State’s existing data on its ROW. The theoretical

width of the clear zone, as defined in the roadside

Design Guide, can vary substantially depending on

the topography of the land involved. Therefore,

occasional instances of construction within the

clear zone for short distances because of

topographical features of the terrain or other factors,

can be treated as if the construction were taking

place outside the clear zone at the discretion of the

State. In such cases the competitive safeguards

defined in 3 below should not be necessary.

5The commission has defined an IRU interest in

a communication facility as ‘‘a form of acquired

capital in which the holder possesses an exclusive

and irrevocable right to use the facility and to

include its capital contribution in its rate base, but

not the right to control the facility or, depending

on the particular IRU contract, any right to salvage’’.

Reevaluation of the Depreciated-Original-Cost

Standard in Setting Prices For Conveyances of

Capital Interests in Overseas Communication

Facilities Between or Among U.S. Carriers, CC

Docket No. 87–45, Report and Order, 7 FCC Rcd

4561 at 4564, n.1 (1992).

While these guidelines will not

prevent a State’s actions from being

challenged, the U.S. DOT and the FCC

Common Carrier Bureau agree that these

guidelines will help States satisfy their

obligation under the applicable laws

and provide a reasonable level of

assurance that a State’s actions will not

be preempted.

The attachment, ‘‘Background

Discussion on Guidance:

Telecommunications Installations,

Limited Access Highway Right-of-Way,’’

(available at: www.its.dot.gov) presents a

detailed discussion of the FCC’s ruling

on the Minnesota case, and the rationale

for these guidelines which have been

developed in cooperation with the FCC.

If a State chooses to allow

longitudinal access for fiber optic

facilities installation on its freeway

ROW pursuant to its Utility

Accommodations Policy, it is

recommended that the following

guidelines apply to that installation.3

Other provisions factoring in regional

characteristics should be considered in

agreements with the contractor that

specifies details as to how particular

issues necessary to protect the public

safety are being handled on a project by

project basis (e.g. topographical and

other obstructions encountered, special

working conditions and limitations,

etc.).

1. In these guidelines, it is understood

that the State retains the right and

responsibility to manage its freeway

ROW. Reasonable, nondiscriminatory

time, place, and manner restrictions,

including but not limited to traditional

permitting conditions, may be placed on

the design, installation, operation, and

maintenance of fiber optic facilities.

2. All construction should be done in

that portion of the ROW that is located

furthest from the traveled roadway to

the degree feasible, and should be

accomplished in accordance with the

Manual on Uniform Traffic Control

Devices, per 23 CFR part 655.603.

3. If all construction vehicles,

equipment, and personnel can be

located outside the clear zone on the

freeway, as defined in the AASHTO

Roadside Design Guide and adopted by

FHWA in Federal Aid Policy Guide, Par.

16(a)(3) NS 23 CFR part 625, except for

ingress and egress, the State may use the

freeway ROW for fiber optic facilities

installation as frequently as reasonably

necessary to satisfy the requirements of

the State, and the needs of the

telecommunications providers.4 A State

may limit construction so that there is

no more than one installation project

underway at any given time on any

major segment of the freeway.

4. If construction vehicles, equipment,

and personnel cannot be located out of

the freeway clear zone, then the State

may restrict fiber optic facilities

installation to only one time on that area

of the freeway where construction

would occur within the clear zone. No

further installation needs to be allowed

on that segment until such time as

required by the end of the useful life of

the fiber optic facilities, or if the

existing capacity is exhausted or

existing conduit is full. Existing fiber

and conduit capacity will be deemed

exhausted whenever the State and the

contractor mutually determine that a

bona-fide request for dark fiber, conduit

space, or a bona-fide request for any

other transmission facilities or service

cannot be granted. Additional

installation at this time will be subject

to reasonable nondiscriminatory State

requirements, e.g., per #1 above.

5. A State may restrict the location of

all the above ground equipment to the

edge, or off of the ROW to allow access

to that equipment for maintenance from

service roads or other non-freeway

access if feasible, as determined by the

State. Such restrictions should be

nondiscriminatory.

Guidance on Competitive Issues

To assist States in meeting the intent

of the TCA with regard to maintaining

a competitively neutral position in the

process of developing and

implementing a Shared Resource or

other telecommunications installations

project, the FCC Common Carrier

Bureau suggests the following principles

in the development of these projects.

These principles should be considered

whenever a State decides to limit

further installations of fiber optic

facilities on its ROW, whether in or out

of the clear zone.

1. The contractor should be selected

through an open, fair,

nondiscriminatory, competitive process.

2. Having selected a contractor, other

interested third-party

telecommunications companies should

be allowed the opportunity to have their

fiber optic facilities installed in

conjunction with any installation of

fiber optic facilities by the contractor.

The State may make the contractor the

sole party responsible for all installation

work done at such times, and require

that other third party

telecommunications companies contract

with that contractor for installation of

their fiber optic facilities when their

facilities are installed in conjunction

with those of the contractor. In such

cases, the contractor’s charges, terms

and conditions for installation should

be fair, reasonable, and

nondiscriminatory and may include a

reasonable profit. The State should give

potentially interested third parties

reasonable notice of the anticipated or

planned opening of the right-of-way.

The notice period should reflect the

time reasonably required by third

parties to develop business plans and

obtain financing. Notice can be

accomplished through publication and

dissemination of a construction

schedule for the project. Such

publication and dissemination should

be reasonably calculated to provide

potentially interested third parties with

actual notice of the schedule.

3. The contractor should install spare

fiber and empty conduit, adequate to

accommodate reasonably anticipated

future demand, whenever fiber optic

facilities cannot be installed outside the

clear zone. Each section of fiber/conduit

within the clear zone should have

connection points (manhole or cabinets)

at each end outside the clear zone where

third parties can access the conduit or

interconnect with facilities in the

conduit at their option. All rates, terms

and conditions for interconnection and/

or use of space in the conduit should be

fair, reasonable, and nondiscriminatory

and may include a reasonable profit.

4. The contractor should be required

to sell fiber on an ‘‘Irrevocable Right of

Use’’ (IRU) 5 basis at rates and subject to

terms and conditions that are just,

reasonable, and nondiscriminatory. The

contractor’s charges for such facilities

may include a reasonable profit.

6756 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Notices

5. The contractor should be required

to offer facilities and services for resale

at rates and subject to terms and

conditions that are just, reasonable, and

nondiscriminatory and may include a

reasonable profit.

6. The agreement with the contractor

should require that the contractor

comply with the terms defined above,

and give third parties the right to

challenge the contractor’s compliance

with the appropriate elements of these

terms dealing with third party access

before an independent entity which

does not benefit directly from the

arrangement with the contractor. The

independent entity should have the

authority to order the contractor to

comply with these terms. A State public

utilities commission, or independent

arbitrator, might serve in this capacity.

In this regard, prompt resolution of such

issues can be critically important to the

development of competition.

7. It is substantially preferable that the

contractor be a wholesaler of

telecommunication in order to minimize

competitive concerns, as opposed to

being a retail telecommunications

service and facilities provider either

directly or through an affiliated entity.

This reduces the potential for anticompetitive pricing that could violate

section 253 of the TCA. However, if the

contractor does provide retail

telecommunications service directly or

through an affiliated entity, all rates,

terms and conditions for its retail

service should be fair, reasonable, and

nondiscriminatory.

(The provision of retail service by a

contractor creates the potential for a

‘‘price squeeze’’ with the contractor

overcharging competitors, and its retail

arm, for wholesale services and

facilities, while competing vigorously

on price for retail services. Thus, if the

contractor provides retail services, the

contractor’s charges for services and

facilities used by potential retail

competitors may require careful

scrutiny to avoid potential violations of

the TCA.)

Conclusion

These guidelines shall not be used as

evidence of any alleged or asserted legal

rights with regard to access to freeway

ROW, but are being provided to assist

States in developing their agreements

for telecommunications installations on

freeway ROW, particularly dealing with

the nondiscriminatory, pro-competitive

requirements of the TCA.

The information provided in this

discussion of longitudinal access to

freeway ROW and the impact of the

TCA is provided for guidance purposes

only. Local conditions in the

telecommunications competitive

environment may well dictate other

approaches to satisfying the competitive

neutrality provisions of the TCA. There

is no ‘‘right answer’’ that will serve

every situation. However, the points

discussed above provide some insight

into the thinking of the FCC Common

Carrier Bureau on these issues, and can

be used to assist States in formulating

their approach to the subject of

longitudinal access to freeway ROW for

telecommunications.

The FHWA anticipates revising these

guidelines periodically as information is

obtained on the practicality and

reasonableness of these

recommendations.

Any questions on the guidelines

should be addressed to William S.

Jones, Intelligent Transportation System

Joint Program Office, telephone number

(202) 366–2128, Washington, DC 20590,

e-mail: WilliamS.Jones@fhwa.dot.gov.

[FR Doc. 01–1644 Filed 1–19–01; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

[Docket No. NHTSA–2001–8611]

Reports, Forms, and Recordkeeping

Requirements

AGENCY: National Highway Traffic

Safety Administration (NHTSA), DOT.

ACTION: Request for public comment on

proposed collections of information.

SUMMARY: Before a Federal agency can

collect certain information from the

public, it must receive approval from

the Office of Management and Budget

(OMB). Under new procedures

established by the Paperwork Reduction

Act of 1995, before seeking OMB

approval, Federal agencies must solicit

public comment on proposed

collections of information, including

extensions and reinstatements of

previously approved collections.

This document describes one

collection of information for which

NHTSA intends to seek OMB approval.

DATES: Comments must be received on

or before March 23, 2001.

ADDRESSES: Comments must refer to the

docket and notice numbers cited at the

beginning of this notice and be

submitted to Docket Management, Room

PL–401, 400 Seventh St. SW.,

Washington, DC 20590. Please identify

the proposed collection of information

for which a comment is provided, by

referencing its OMB Clearance Number.

It is requested, but not required, that 1

original plus 2 copies of the comments

be provided. The Docket Section is open

on weekdays from 10:00 a.m. to 5:00

p.m.

FOR FURTHER INFORMATION CONTACT:

Complete copies of the request for

collection of information may be

obtained at no charge from Dr. William

J.J. Liu, NHTSA, 400 Seventh Street,

SW., Room 5313, Washington, DC

20590.

Dr. Liu’s telephone number is (202)

366–4923. Please identify the relevant

collection of information by referring to

its OMB Clearance Number.

SUPPLEMENTARY INFORMATION: Under the

Paperwork Reduction Act of 1995,

before an agency submits a proposed

collection of information to OMB for

approval, it must publish a document in

the Federal Register providing a 60-day

comment period and otherwise consult

with members of the public and affected

agencies concerning each proposed

collection of information. The OMB has

promulgated regulations describing

what must be included in such a

document. Under OMB’s regulations (at

5 CFR 1320.8(d)), an agency must ask

for public comment on the following:

(i) Whether the proposed collection of

information is necessary for the proper

performance of the functions of the

agency, including whether the

information will have practical utility;

(ii) The accuracy of the agency’s

estimate of the burden of the proposed

collection of information, including the

validity of the methodology and

assumptions used;

(iii) How to enhance the quality,

utility, and clarity of the information to

be collected; and

(iv) How to minimize the burden of

the collection of information on those

who are to respond, including the use

of appropriate automated, electronic,

mechanical, or other technological

collection techniques or other forms of

information technology, e.g., permitting

electronic submission of responses.

In compliance with these

requirements, NHTSA asks public

comment on the following proposed

collection of information:

49 CFR 571.218, Motorcycle Helmets

Type of Request—Reinstatement of

clearance.

OMB Clearance Number—2127–0518.

Form Number—This collection of

information uses no standard forms.

Requested Expiration Date of

Approval—Three years from date of

approval.

Summary of the Collection of

Information—NHTSA has issued