[Title 23 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2001 Edition]
[From the U.S. Government Printing Office]



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          23
          Revised as of April 1, 2001
          Highways





          Containing a codification of documents 
          of general applicability and future effect

          As of April 1, 2001

          With Ancillaries

          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

          A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2001



 For sale by the Superintendent of Documents, U.S. Government Printing Office
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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 23:
          Chapter I--Federal Highway Administration, 
          Department of Transportation                               3
          Chapter II--National Highway Traffic Safety 
          Administration and Federal Highway Administration, 
          Department of Transportation                             413
          Chapter III--National Highway Traffic Safety 
          Administration, Department of Transportation             453
  Finding Aids:
      Subject Index...........................................     489
      Material Approved for Incorporation by Reference........     507
      Table of CFR Titles and Chapters........................     509
      Alphabetical List of Agencies Appearing in the CFR......     527
      List of CFR Sections Affected...........................     537



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  23 CFR 1.1 refers 
                       to title 23, part 1, 
                       section 1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 2001), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
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instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523-4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

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REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

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site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 2001.



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                               THIS TITLE

    Title 23--Highways is composed of one volume. The contents of this 
volume represent the current regulations of the National Highway Traffic 
Safety Administration and the Federal Highway Administration, Department 
of Transportation, issued under this title of the CFR as of April 1, 
2001.

    A subject index to the Federal Highway Administration regulations, 
in chapters I and II, appears in the back of this volume.

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                           TITLE 23--HIGHWAYS




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                                                                    Part

chapter i--Federal Highway Administration, Department of 
  Transportation............................................           1

chapter ii--National Highway Traffic Safety Administration 
  and Federal Highway Administration, Department of 
  Transportation............................................        1200

chapter iii--National Highway Traffic Safety Administration, 
  Department of Transportation..............................        1313

Cross References: Regulations concerning construction and maintenance of 
  roads on Indian lands, Bureau of Indian Affairs, Department of the 
  Interior: See Indians, 25 CFR part 170.

  Regulations of the Bureau of Land Management concerning rights-of-way 
for roads and highways: See Public Lands, Interior, 43 CFR part 2800.

  Employment and Training Administration, Department of Labor: See 
Employees' Benefits, 20 CFR chapter V.

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 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION




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           SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
Part                                                                Page
1               General.....................................           7
                    SUBCHAPTER B--PAYMENT PROCEDURES
140             Reimbursement...............................          12
172             Administration of engineering and design 
                    related service contracts...............          20
180             Credit assistance for Surface Transportation 
                    projects................................          26
190             Incentive payments for controlling outdoor 
                    advertising on the interstate system....          26
192             Drug offender's driver's license suspension.          27
                       SUBCHAPTER C--CIVIL RIGHTS
200             Title VI program and related statutes--
                    implementation and review procedures....          31
230             External programs...........................          34
                SUBCHAPTER D--NATIONAL HIGHWAY INSTITUTE
260             Education and training programs.............          76
                   SUBCHAPTER E--PLANNING AND RESEARCH
420             Planning and research program administration          82
450             Planning assistance and standards...........          92
460             Public road mileage for apportionment of 
                    highway safety funds....................         118
470             Highway systems.............................         119
476             Interstate highway system...................         125
         SUBCHAPTER F--TRANSPORTATION INFRASTRUCTURE MANAGEMENT
500             Management and monitoring systems...........         131

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511             [Reserved]
            SUBCHAPTER G--ENGINEERING AND TRAFFIC OPERATIONS
620             Engineering.................................         139
625             Design standards for highways...............         141
626             Pavement policy.............................         144
627             Value engineering...........................         144
630             Preconstruction procedures..................         145
633             Required contract provisions................         152
635             Construction and maintenance................         169
637             Construction inspection and approval........         194
640             Certification acceptance....................         196
645             Utilities...................................         199
646             Railroads...................................         216
650             Bridges, structures, and hydraulics.........         225
652             Pedestrian and bicycle accommodations and 
                    projects................................         238
655             Traffic operations..........................         241
656             Carpool and vanpool projects................         246
657             Certification of size and weight enforcement         248
658             Truck size and weight, route designations--
                    length, width and weight limitations....         253
660             Special programs (Direct Federal)...........         312
661             Indian Reservation Road Bridge Program......         318
667             [Reserved]
668             Emergency relief program....................         323
669             Enforcement of heavy vehicle use tax........         330
               SUBCHAPTER H--RIGHT-OF-WAY AND ENVIRONMENT
710             Right-of-way and real estate................         333
750             Highway beautification......................         346
751             Junkyard control and acquisition............         365
752             Landscape and roadside development..........         369
771             Environmental impact and related procedures.         373
772             Procedures for abatement of highway traffic 
                    noise and construction noise............         390

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777             Mitigation of environmental impacts to 
                    privately owned wetlands................         395
                   SUBCHAPTER I--PUBLIC TRANSPORTATION
810             Mass transit and special use highway 
                    projects................................         400
                      SUBCHAPTER J--HIGHWAY SAFETY
924             Highway safety improvement program..........         406
            SUBCHAPTER K--INTELLIGENT TRANSPORTATION SYSTEMS
940             Intelligent transportation system 
                    architecture and standards..............         409

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           SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION


PART 1--GENERAL--Table of Contents




Sec.
1.1  Purpose.
1.2  Definitions.
1.3  Federal-State cooperation; authority of State highway departments.
1.5  Information furnished by State highway departments.
1.7  Urban area boundaries.
1.8  [Reserved]
1.9  Limitation on Federal participation.
1.11  Engineering services.
1.23  Rights-of-way.
1.27  Maintenance.
1.28  Diversion of highway revenues.
1.32  Issuance of directives.
1.33  Conflicts of interest.
1.35  Bonus program.
1.36  Compliance with Federal laws and regulations.

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

    Source: 25 FR 4162, May 11, 1960, unless otherwise noted.



Sec. 1.1  Purpose.

    The purpose of the regulations in this part is to implement and 
carry out the provisions of Federal law relating to the administration 
of Federal aid for highways.



Sec. 1.2  Definitions.

    (a) Terms defined in 23 U.S.C. 101(a), shall have the same meaning 
where used in the regulations in this part, except as modified herein.
    (b) The following terms where used in the regulations in this part 
shall have the following meaning:
    Administrator. The Federal Highway Administrator.
    Advertising policy. The national policy relating to the regulation 
of outdoor advertising declared in title 23 U.S.C. 131.
    Advertising standards. The ``National Standards for Regulation by 
States of Outdoor Advertising Signs, Displays and Devices Adjacent to 
the National System of Interstate and Defense Highways'' promulgated by 
the Secretary (part 20 of this chapter).
    Federal laws. The provisions of title 23 U.S.C., and all other 
Federal laws, heretofore or hereafter enacted, relating to Federal aid 
for highways.
    Latest available Federal census. The latest available Federal 
decennial census, except for the establishment of urban area.
    Project. An undertaking by a State highway department for highway 
construction, including preliminary engineering, acquisition of rights-
of-way and actual construction, or for highway planning and research, or 
for any other work or activity to carry out the provisions of the 
Federal laws for the administration of Federal aid for highways.
    Secondary road plan. A plan for administration of Federal aid for 
highways on the Federal-aid secondary highway system pursuant to 23 
U.S.C. 117.
    Secretary. The Secretary of Transportation.
    State. Any State of the United States, the District of Columbia and 
Puerto Rico.
    Urban area. An area including and adjacent to a municipality or 
other urban place having a population of five thousand or more, as 
determined by the latest available published official Federal census, 
decennial or special, within boundaries to be fixed by a State highway 
department, subject to the approval of the Administrator.

[25 FR 4162, May 11, 1960, as amended at 35 FR 18719, Dec. 10, 1970]



Sec. 1.3  Federal-State cooperation; authority of State highway departments.

    The Administrator shall cooperate with the States, through their 
respective State highway departments, in the construction of Federal-aid 
highways. Each State highway department, maintained in conformity with 
23 U.S.C. 302, shall be authorized, by the laws of the State, to make 
final decisions for the State in all matters relating to, and to enter 
into, on behalf of the State, all contracts and agreements for projects 
and to take such other actions on behalf of the State as may be 
necessary

[[Page 8]]

to comply with the Federal laws and the regulations in this part.



Sec. 1.5  Information furnished by State highway departments.

    At the request of the Administrator the State highway department 
shall furnish to him such information as the Administrator shall deem 
desirable in administering the Federal-aid highway program.



Sec. 1.7  Urban area boundaries.

    Boundaries of an urban area shall be submitted by the State highway 
department and be approved by the Administrator prior to the inclusion 
in a program of any project wholly or partly in such area involving 
funds authorized for and limited to urban areas.



Sec. 1.8  [Reserved]



Sec. 1.9  Limitation on Federal participation.

    (a) Federal-aid funds shall not participate in any cost which is not 
incurred in conformity with applicable Federal and State law, the 
regulations in this title, and policies and procedures prescribed by the 
Administrator. Federal funds shall not be paid on account of any cost 
incurred prior to authorization by the Administrator to the State 
highway department to proceed with the project or part thereof involving 
such cost.
    (b) Notwithstanding the provisions of paragraph (a) of this section 
the Administrator may, upon the request of a State highway department, 
approve the participation of Federal-aid funds in a previously incurred 
cost if he finds:
    (1) That his approval will not adversely affect the public,
    (2) That the State highway department has acted in good faith, and 
that there has been no willful violation of Federal requirements,
    (3) That there has been substantial compliance with all other 
requirements prescribed by the Administrator, and full compliance with 
requirements mandated by Federal statute,
    (4) That the cost to the United States will not be in excess of the 
cost which it would have incurred had there been full compliance, and
    (5) That the quality of work undertaken has not been impaired.
    (c) Any request submitted under paragraph (b) of this section shall 
be accompanied by a detailed description of the relevant circumstances 
and facts, and shall explain the necessity for incurring the costs in 
question.

[38 FR 18368, July 10, 1973]



Sec. 1.11  Engineering services.

    (a) Federal participation. Costs of engineering services performed 
by the State highway department or any instrumentality or entity 
referred to in paragraph (b) of this section may be eligible for Federal 
participation only to the extent that such costs are directly 
attributable and properly allocable to specific projects. Expenditures 
for the establishment, maintenance, general administration, supervision, 
and other overhead of the State highway department, or other 
instrumentality or entity referred to in paragraph (b) of this section 
shall not be eligible for Federal participation.
    (b) Governmental engineering organizations. The State highway 
department may utilize, under its supervision, the services of well-
qualified and suitably equipped engineering organizations of other 
governmental instrumentalities for making surveys, preparing plans, 
specifications and estimates, and for supervising the construction of 
any project.
    (c) Railroad and utility engineering organizations. The State 
highway department may utilize, under its supervision, the services of 
well-qualified and suitably equipped engineering organizations of the 
affected railroad companies for railway-highway crossing projects and of 
the affected utility companies for projects involving utility 
installations.
    (d) [Reserved]

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    (e) Responsibility of the State highway department. The State 
highway department is not relieved of its responsibilities under Federal 
law and the regulations in this part in the event it utilizes the 
services of any engineering organization under paragraphs (b), (c) or 
(d) of this section.

[25 FR 4162, May 11, 1960, as amended at 53 FR 18276, May 23, 1988; 57 
FR 60728, Dec. 22,1992]



Sec. 1.23  Rights-of-way.

    (a) Interest to be acquired. The State shall acquire rights-of-way 
of such nature and extent as are adequate for the construction, 
operation and maintenance of a project.
    (b) Use for highway purposes. Except as provided under paragraph (c) 
of this section, all real property, including air space, within the 
right-of-way boundaries of a project shall be devoted exclusively to 
public highway purposes. No project shall be accepted as complete until 
this requirement has been satisfied. The State highway department shall 
be responsible for preserving such right-of-way free of all public and 
private installations, facilities or encroachments, except (1) those 
approved under paragraph (c) of this section; (2) those which the 
Administrator approves as constituting a part of a highway or as 
necessary for its operation, use or maintenance for public highway 
purposes and (3) informational sites established and maintained in 
accordance with Sec. 1.35 of the regulations in this part.
    (c) Other use or occupancy. Subject to 23 U.S.C. 111, the temporary 
or permanent occupancy or use of right-of-way, including air space, for 
nonhighway purposes and the reservation of subsurface mineral rights 
within the boundaries of the rights-of-way of Federal-aid highways, may 
be approved by the Administrator, if he determines that such occupancy, 
use or reservation is in the public interest and will not impair the 
highway or interfere with the free and safe flow of traffic thereon.



Sec. 1.27  Maintenance.

    The responsibility imposed upon the State highway department, 
pursuant to 23 U.S.C. 116, for the maintenance of projects shall be 
carried out in accordance with policies and procedures issued by the 
Administrator. The State highway department may provide for such 
maintenance by formal agreement with any adequately equipped county, 
municipality or other governmental instrumentality, but such an 
agreement shall not relieve the State highway department of its 
responsibility for such maintenance.



Sec. 1.28  Diversion of highway revenues.

    (a) Reduction in apportionment. If the Secretary shall find that any 
State has diverted funds contrary to 23 U.S.C. 126, he shall take such 
action as he may deem necessary to comply with said provision of law by 
reducing the first Federal-aid apportionment of primary, secondary and 
urban funds made to the State after the date of such finding. In any 
such reduction, each of these funds shall be reduced in the same 
proportion.
    (b) Furnishing of information. The Administrator may require any 
State to submit to him such information as he may deem necessary to 
assist the Secretary in carrying out the provisions of 23 U.S.C. 126 and 
paragraph (a) of this section.



Sec. 1.32  Issuance of directives.

    (a) The Administrator shall promulgate and require the observance of 
policies and procedures, and may take other action as he deems 
appropriate or necessary for carrying out the provisions and purposes of 
Federal laws, the policies of the Federal Highway Administration, and 
the regulations of this part.
    (b) The Administrator or his delegated representative, as 
appropriate, is authorized to issue the following type of directives:
    (1) Federal Highway Administration Regulations are issued by the 
Administrator or his delegate, as necessary, to implement and carry out 
the provisions of title 23 U.S.C., relating to the administration of 
Federal aid for highways, direct Federal programs and State and 
community safety programs; and title 49 U.S.C., relating to motor 
carrier safety; and other applicable laws and programs under his 
jurisdiction.

[[Page 10]]

    (2) Notices are temporary issuances transmitting one-time or short-
term instructions or information which is expected to remain in effect 
for less than 90 days or for a predetermined period of time normally not 
to exceed one year.
    (3) Orders are directives limited in volume and contain permanent or 
longlasting policy, instructions, and procedures. FHWA Orders are to be 
used primarily as internal FHWA directives.
    (4) Joint Interagency Orders and Notices are used by FHWA and the 
National Highway Traffic Safety Administration (NHTSA) to issue joint 
policies, procedures, and information pertaining to the joint 
administration of the State and Community Highway Safety Program. Where 
necessary, other joint directives may be issued with other modal 
administrations within the Department of Transportation.
    (5) Manuals are generally designed for use in issuing permanent or 
long-lasting detailed policy and procedure. Some of the major manuals 
recognized by the FHWA Directives System follow:
    (i) The Federal-Aid Highway Program Manual has been established to 
assemble and organize program material of the type previously contained 
in the Policy and Procedure and Instructional Memoranda which will 
continue in effect until specifically revoked or published in the new 
manual. Regulatory material is printed in italics in the manual and also 
appears in this code. Nonregulatory material is printed in delegate 
type.
    (ii) The Administrative Manual covers all internal FHWA 
administrative support functions.
    (iii) The Highway Planning Program Manual covers the methods and 
procedures necessary to conduct the highway planning functions.
    (iv) The Research and Development Manual series entitled, ``The 
Federally Coordinated Program of Research and Development in Highway 
Transportation'' describes the FHWA research and development program.
    (v) The External Audit Manual provides guidance to FHWA auditors in 
their review of State programs and processes.
    (vi) The Civil Rights and Equal Opportunity Manual provides guidance 
to FHWA and State Civil Rights and Equal Employment Opportunity 
Officers.
    (vii) The BMCS Operations Manual provides program guidance for all 
field employees assigned to the motor carrier safety program.
    (viii) The Highway Safety Program Manual, issued jointly by FHWA and 
NHTSA, contains volumes relating to the joint administration of the 
program.
    (6) Handbooks are internal operating instructions published in book 
form where, because of the program area covered, it is desirable to 
provide greater detail of administrative and technical instructions.
    (7) Transmittals identify and explain the original issuance or page 
change, provide background information, and provide filing instructions 
for insertion of new pages and removal of changed pages, or both.

(49 U.S.C. 1655)

[39 FR 1512, Jan. 10, 1974]



Sec. 1.33  Conflicts of interest.

    No official or employee of a State or any other governmental 
instrumentality who is authorized in his official capacity to negotiate, 
make, accept or approve, or to take part in negotiating, making, 
accepting or approving any contract or subcontract in connection with a 
project shall have, directly or indirectly, any financial or other 
personal interest in any such contract or subcontract. No engineer, 
attorney, appraiser, inspector or other person performing services for a 
State or a governmental instrumentality in connection with a project 
shall have, directly or indirectly, a financial or other personal 
interest, other than his employment or retention by a State or other 
governmental instrumentality, in any contract or subcontract in 
connection with such project. No officer or employee of such person 
retained by a State or other governmental instrumentality shall have, 
directly or indirectly, any financial or other personal interest in any 
real property acquired

[[Page 11]]

for a project unless such interest is openly disclosed upon the public 
records of the State highway department and of such other governmental 
instrumentality, and such officer, employee or person has not 
participated in such acquisition for and in behalf of the State. It 
shall be the responsibility of the State to enforce the requirements of 
this section.



Sec. 1.35  Bonus program.

    (a) Any agreement entered into by a State pursuant to the provisions 
of section 12 of the Federal-Aid Highway Act of 1958, Pub. L. 85-381, 72 
Stat. 95, as amended, shall provide for the control or regulation of 
outdoor advertising, consistent with the advertising policy and 
standards promulgated by the Administrator, in areas adjacent to the 
entire mileage of the Interstate System within that State, except such 
segments as may be excluded from the application of such policy and 
standards by section 12.
    (b) Any such agreement for the control of advertising may provide 
for establishing publicly owned informational sites, whether publicly or 
privately operated, within the limits of or adjacent to the right-of-way 
of the Interstate System on condition that no such site shall be 
established or maintained except at locations and in accordance with 
plans, in furtherance of the advertising policy and standards, submitted 
to and approved by the Administrator.
    (c) No advertising right in the acquisition of which Federal funds 
participated shall be disposed of without the prior approval of the 
Administrator.

[39 FR 28628, Aug. 9, 1974]



Sec. 1.36  Compliance with Federal laws and regulations.

    If the Administrator determines that a State has violated or failed 
to comply with the Federal laws or the regulations in this part with 
respect to a project, he may withhold payment to the State of Federal 
funds on account of such project, withhold approval of further projects 
in the State, and take such other action that he deems appropriate under 
the circumstances, until compliance or remedial action has been 
accomplished by the State to the satisfaction of the Administrator.

[[Page 12]]



                    SUBCHAPTER B--PAYMENT PROCEDURES


PART 140--REIMBURSEMENT--Table of Contents




Subpart A [Reserved]

                Subpart B--Construction Engineering Costs

Sec.
140.201  Purpose.
140.203  Policy.
140.205  Limitation.
140.207  Application of limitation.

Subparts C-D [Reserved]

       Subpart E--Administrative Settlement Costs--Contract Claims

140.501  Purpose.
140.503  Definition.
140.505  Reimbursable costs.

            Subpart F--Reimbursement for Bond Issue Projects

140.601  Purpose.
140.602  Requirements and conditions.
140.603  Programs.
140.604  Reimbursable schedule.
140.605  Approval actions.
140.606  Project agreements.
140.607  Construction.
140.608  Reimbursable bond interest costs of Interstate projects.
140.609  Progress and final vouchers.
140.610  Conversion from bond issue to funded project status.
140.611  Determination of bond retirement.
140.612  Cash management.

Appendix to Subpart F--Reimbursable Schedule for Converted ```E'' (Bond 
          Issue) Projects (Other Than Interstate Projects)

Subpart G [Reserved]

              Subpart H--State Highway Agency Audit Expense

140.801  Purpose.
140.803  Policy.
140.805  Definitions.
140.807  Reimbursable costs.

               Subpart I--Reimbursement for Railroad Work

140.900  Purpose.
140.902  Applicability.
140.904  Reimbursement basis.
140.906  Labor costs.
140.907  Overhead and indirect construction costs.
140.908  Materials and supplies.
140.910  Equipment.
140.912  Transportation.
140.914  Credits for improvements.
140.916  Protection.
140.918  Maintenance and extended construction.
140.920  Lump sum payments.
140.922  Billings.

    Authority: 23 U.S.C. 101(e), 106, 109(e), 114(a), 120(g), 121, 122, 
130, and 315; and 49 CFR 1.48(b).

Subpart A [Reserved]



                Subpart B--Construction Engineering Costs

    Source: 58 FR 39143, July 22, 1993, unless otherwise noted.



Sec. 140.201  Purpose.

    The purpose of this subpart is to prescribe policies for claiming 
reimbursement for eligible construction engineering (CE) costs.



Sec. 140.203  Policy.

    (a) State highway agencies (SHA) may be reimbursed for the Federal 
share of CE costs incurred as described in Sec. 140.703.
    (b) Reimbursement for CE costs for Federal-aid construction projects 
shall be subject to the limitation set forth in Sec. 140.205.



Sec. 140.205  Limitation.

    (a) The estimated CE costs for a SHA for a fiscal year shall not 
exceed, in the aggregate, 15 percent of the total estimated costs of all 
projects financed within the boundaries of the State with Federal-aid 
highway funds in such fiscal year, exclusive of the costs of rights-of-
way, preliminary engineering, and CE.
    (b) For control purposes, a SHA's estimated CE costs percentage will 
be determined by the ratio of the total amount obligated for CE to the 
total amount obligated for all projects financed with Federal-aid 
highway funds during the fiscal year, after excluding from such totals, 
the obligations for rights-of-way, preliminary engineering,

[[Page 13]]

and CE. This percentage shall not exceed 15 percent at the end of the 
fiscal year. The CE limitation may be applied on either a Federal or 
State fiscal year basis.
    (1) Amounts to be included in the determination for CE will be the 
aggregate total of all obligations of CE, including original project 
obligations at the authorization stage, all subsequent adjustments 
during the fiscal year, and all adjustments (debits or credits) to 
projects authorized in previous fiscal years.
    (2) The CE limitation determination for each fiscal year will be 
treated separately and may not be adjusted after the end of that fiscal 
year.
    (c) Projects which are closed (final voucher processed) as of 
December 18, 1991, may be reopened to accept adjustments and additional 
eligible project charges. All obligation/deobligation adjustments must 
be included in the current fiscal year calculation. However, the CE cost 
for each of these projects shall be limited to 15 percent of each 
project construction cost in accordance with the provisions in effect 
prior to December 18, 1991.
    (d) If the SHA claims CE costs as an average percentage of the 
actual construction costs in accordance with 23 U.S.C. 120(g), the 
average rate shall be determined based upon reimbursable CE costs and 
shall not exceed 15 percent, exclusive of the costs of rights-of-way, 
preliminary engineering, and CE.



Sec. 140.207  Application of limitation.

    The limitation applies to all projects financed with Federal-aid 
highway funds.

Subparts C-D [Reserved]



       Subpart E--Administrative Settlement Costs--Contract Claims

    Source: 44 FR 59233, Oct. 15, 1979, unless otherwise noted.



Sec. 140.501  Purpose.

    This regulation establishes the criteria for eligibility for 
reimbursement of administrative settlement costs in defense of contract 
claims on projects performed by a State under Federal-aid procedures.



Sec. 140.503  Definition.

    Administrative settlement costs are costs related to the defense and 
settlement of contract claims including, but not limited to, salaries of 
a contracting officer or his/her authorized representative, attorneys, 
and/or members of State boards of arbitration, appeals boards, or 
similar tribunals, which are allocable to the findings and 
determinations of contract claims, but not including administrative or 
overhead costs.



Sec. 140.505  Reimbursable costs.

    (a) Federal funds may participate in administrative settlement costs 
which are:
    (1) Incurred after notice of claim,
    (2) Properly supported,
    (3) Directly allocable to a specific Federal-aid or Federal project,
    (4) For employment of special counsel for review and defense of 
contract claims, when
    (i) Recommended by the State Attorney General or State Highway 
Agency (SHA) legal counsel and
    (ii) Approved in advance by the FHWA Division Administrator, with 
advice of FHWA Regional Counsel, and
    (5) For travel and transportation expenses, if in accord with 
established policy and practices.
    (b) No reimbursement shall be made if it is determined by FHWA that 
there was negligence or wrongdoing of any kind by SHA officials with 
respect to the claim.



            Subpart F--Reimbursement for Bond Issue Projects

    Source: 48 FR 54971, Dec. 8, 1983, unless otherwise noted.



Sec. 140.601  Purpose.

    To prescribe policies and procedures for the use of Federal funds by 
State highway agencies (SHAs) to aid in the retirement of the principal 
and interest of bonds, pursuant to 23 U.S.C. 122 and the payment of 
interest on bonds of eligible Interstate projects.

[[Page 14]]



Sec. 140.602  Requirements and conditions.

    (a) An SHA that uses the proceeds of bonds issued by the State, a 
county, city or other political subdivision of the State, for the 
construction of projects on the Federal-aid primary or Interstate 
system, or extensions of any of the Federal-aid highway systems in urban 
areas, or for substitute highway projects approved under 23 U.S.C. 
103(e)(4), may claim payment of any portion of such sums apportioned to 
it for expenditures on such system to aid in the retirement of the 
principal of bonds at their maturities, to the the extent that the 
proceeds of bonds have actually been expended in the construction of 
projects.
    (b) Any interest earned and payable on bonds, the proceeds of which 
were expended on Interstate projects after November 6, 1978, is an 
eligible cost of construction. The amount of interest eligible for 
participation will be based on (1) the date the proceeds were expended 
on the project, (2) amount expended, and (3) the date of conversion to a 
regularly funded project. As provided for in section 115(c), Pub. L. 95-
599, November 6, 1978, interest on bonds issued in any fiscal year by a 
State after November 6, 1978, may be paid under the authority of 23 
U.S.C. 122 only if such SHA was eligible to obligate Interstate 
Discretionary funds under the provisions of 23 U.S.C. 118(b) during such 
fiscal year, and the Administrator certifies that such eligible SHA has 
utilized, or will utilize to the fullest extent possible during such 
fiscal year, its authority to obligate funds under 23 U.S.C. 118(b).
    (c) The Federal share payable at the time of conversion, as provided 
for in Sec. 140.610 shall be the legal pro rata in effect at the time of 
execution of the project agreement for the bond issue project.
    (d) The authorization of a bond issue project does not constitute a 
commitment of Federal funds until the project is converted to a regular 
Federal-aid project as provided for in Sec. 140.610.
    (e) Reimbursements for the redemption of bonds may not precede, by 
more than 60 days, the scheduled date of the retirement of the bonds.
    (f) Federal funds are not eligible for payment into sinking funds 
created and maintained for the subsequent retirement of bonds.



Sec. 140.603  Programs.

    Programs covering projects to be financed from the proceeds of bonds 
shall be prepared and submitted to FHWA. Project designations shall be 
the same as for regular Federal-aid projects except that the prefix 
letter ``B'' for bond issue shall be used as the first letter of each 
project designation, e.g., ``BI'' for Bond Issue Projects--Interstate.



Sec. 140.604  Reimbursable schedule.

    Projects to be financed from other than Interstate funds shall be 
subject to a 36-month reimbursable schedule upon conversion to regular 
Federal-aid financing (See appendix). FHWA will consider requests for 
waiver of this provision at the time of conversion action. Waivers are 
subject to the availability of liquidating cash.



Sec. 140.605  Approval actions.

    (a) Authorization to proceed with preliminary engineering and 
acquisition of rights-of-way shall be issued in the same manner as for 
regularly financed Federal-aid projects.
    (b) Authorization of physical construction shall be given in the 
same manner as for regularly financed Federal-aid projects. The total 
cost and Federal funds required, including interest, shall be indicated 
in the plans, specifications, and estimates.
    (c) Projects subject to the reimbursable schedule shall be 
identified as an ``E'' project when the SHA is authorized to proceed 
with all or any phase of the work.
    (d) Concurrence in the award of contracts shall be given.



Sec. 140.606  Project agreements.

    Project Agreements, Form PR-2, shall be prepared and executed. 
Agreement provision 8 on the reverse side of Form PR-2 \1\ shall apply 
for bond issue projects.
---------------------------------------------------------------------------

    \1\ The text of FHWA Form PR-2 is found in 23 CFR part 630, subpart 
C, appendix A.

---------------------------------------------------------------------------

[[Page 15]]



Sec. 140.607  Construction.

    Construction shall be supervised by the SHA in the same manner as 
for regularly financed Federal-aid projects. The FHWA will make 
construction inspections and reports.



Sec. 140.608  Reimbursable bond interest costs of Interstate projects.

    (a) Bond interest earned on bonds actually retired may be reimbursed 
on the Federal pro rata basis applicable to such projects in accordance 
with Sec. 140.602(b) and (c).
    (b) No interest will be reimbursed for bonds issued after November 
6, 1978, used to retire or otherwise refinance bonds issued prior to 
that date.



Sec. 140.609  Progress and final vouchers.

    (a) Progress vouchers may be submitted for the Federal share of 
bonds retired or about to be retired, including eligible interest on 
Interstate Bond Issue Projects, the proceeds of which have actually been 
expended for the construction of the project.
    (b) Upon completion of a bond issue project, a final voucher shall 
be submitted by the SHA. After final review, the SHA will be advised as 
to the total cost and Federal fund participation for the project.



Sec. 140.610  Conversion from bond issue to funded project status.

    (a) At such time as the SHA elects to apply available apportioned 
Federal-aid funds to the retirement of bonds, including eligible 
interest earned and payable on Interstate Bond Projects, subject to 
available obligational authority, its claim shall be supported by 
appropriate certifications as follows:

    I hereby certify that the following bonds, (list), the proceeds of 
which have been actually expended in the construction of bond issue 
projects authorized by title 23 U.S.C., section 122, (1) have been 
retired on ------, or (2) mature and are scheduled for retirement on --
----, which is ---- days in advance of the maturity date of ------.

    Eligible interest claimed on Interstate Bond Projects shall be shown 
for each bond and the certification shall include the statement:

    I also certify that interest earned and paid or payable for each 
bond listed has been determined from the date on and after which the 
respective bond proceeds were actually expended on the project.

    (b) The SHA's request for full conversion of a completed projects), 
or partial conversion of an active or completed project(s), may be made 
by letter, inclusive of the appropriate certification as described in 
Sec. 140.610(a) making reference to any progress payments received or 
the final voucher(s) previously submitted and approved in accordance 
with Sec. 140.609.
    (c) Approval of the conversion action shall be by the Division 
Administrator.
    (d) The SHA's request for partial conversion of an active or 
completed bond issue project shall provide for: (1) Conversion to funded 
project status of the portion to be financed out of the balance of 
currently available apportioned funds, and (2) retention of the unfunded 
portion of the project in the bond program.
    (e) Where the SHA's request involves the partial conversion of a 
completed bond issue project, payment of the Federal funds made 
available under the conversion action shall be accomplished through use 
of Form PR-20, Voucher for Work Performed under Provisions of the 
Federal-aid and Federal Highway Acts, prepared in the division office 
and appropriately cross-referenced to the Bond Issue Project final 
voucher previously submitted and approved. The final voucher will be 
reduced by the amount of the approved reimbursement.



Sec. 140.611  Determination of bond retirement.

    Division Administrators shall be responsible for the prompt review 
of the SHA's records to determine that bonds issued to finance the 
projects and for which reimbursement has been made, including eligible 
bond interest expense, have been retired pursuant to the State's 
certification required by Sec. 140.610(a), and that such action is 
documented in the project file.



Sec. 140.612  Cash management.

    By July 1 of each year the SHA will provide FHWA with a schedule, 
including the anticipated claims for reimbursement, of bond projects to 
be converted during the next two fiscal years.

[[Page 16]]

The data will be used by FHWA in determining liquidating cash required 
to finance such conversions.

 Appendix to Subpart F--Reimbursable Schedule for Converted ``E'' (Bond 
            Issue) Projects (other than Interstate Projects)

------------------------------------------------------------------------
                                                             Cumulative
                                                               amount
                                                            reimbursable
   Time in months following conversion from ``E'' (bond      (percent of
             issue) project to regular project                 Federal
                                                                funds
                                                             obligated)
------------------------------------------------------------------------
1.........................................................             1
2.........................................................             2
3.........................................................             5
4.........................................................             9
5.........................................................            13
6.........................................................            18
7.........................................................            23
8.........................................................            29
9.........................................................            34
10........................................................            39
11........................................................            44
12........................................................            49
13........................................................            54
14........................................................            58
15........................................................            61
16........................................................            64
17........................................................            67
18........................................................            70
19........................................................            73
20........................................................            75
21........................................................            77
22........................................................            79
23........................................................            81
24........................................................            83
25........................................................            85
26........................................................            87
27........................................................            89
28........................................................            91
29........................................................            93
30........................................................            94
31........................................................            95
32........................................................            96
34........................................................            97
35........................................................            99
36........................................................           100
------------------------------------------------------------------------

Subpart G [Reserved]



              Subpart H--State Highway Agency Audit Expense

    Source: 49 FR 45578, Nov. 19, 1984, unless otherwise noted.



Sec. 140.801  Purpose.

    To establish the reimbursement criteria for Federal participation in 
project related audit expenses.



Sec. 140.803  Policy.

    Project related audits performed in accordance with generally 
accepted auditing standards (as modified by the Comptroller General of 
the United States) and applicable Federal laws and regulations are 
eligible for Federal participation. The State highway agency (SHA) may 
use other State, local public agency, and Federal audit organizations as 
well as licensed or certified public accounting firms to augment its 
audit force.



Sec. 140.805  Definitions.

    (a) Project related audits. Audits which directly benefit Federal-
aid highway projects. Audits performed in accordance with the 
requirements of 23 CFR part 12, audits of third party contract costs, 
and other audits providing assurance that a recipient has complied with 
FHWA regulations are all considered project related audits. Audits 
benefiting only nonfederal projects, those performed for SHA management 
use only, or those serving similar nonfederal purposes are not 
considered project related.
    (b) Third party contract costs. Project related costs incurred by 
railroads, utilities, consultants, governmental instrumentalities, 
universities, nonprofit organizations, construction contractors (force 
account work), and organizations engaged in right-of-way studies, 
planning, research, or related activities where the terms of a proposal 
or contract (including lump sum) necessitate an audit. Construction 
contracts (except force account work) are not included in this group.



Sec. 140.807  Reimbursable costs.

    (a) Federal funds may be used to reimburse an SHA for the following 
types of project related audit costs:
    (1) Salaries, wages, and related costs paid to public employees in 
accordance with subpart G of this part,
    (2) Payments by the SHA to any Federal, State, or local public 
agency audit organization, and
    (3) Payments by the SHA to licensed or certified public accounting 
firms.
    (b) Audit costs incurred by an SHA shall be equitably distributed to 
all benefiting parties. The portion of these costs allocated to the 
Federal-Aid Highway Program which are not directly related to a specific 
project or projects shall be equitably distributed,

[[Page 17]]

as a minimum, to the major FHWA funding categories in that State.



               Subpart I--Reimbursement for Railroad Work

    Source: 40 FR 16057, Apr. 9, 1975, unless otherwise noted.



Sec. 140.900  Purpose.

    The purpose of this subpart is to prescribe policies and procedures 
on reimbursement to the States for railroad work done on projects 
undertaken pursuant to the provisions of 23 CFR part 646, subpart B.



Sec. 140.902  Applicability.

    This subpart, and all references hereinafter made to ``projects,'' 
applies to Federal-aid projects involving railroad facilities, including 
projects for the elimination of hazards of railroad-highway crossings, 
and other projects which use railroad properties or which involve 
adjustments required by highway construction to either railroad 
facilities or facilities that are jointly owned or used by railroad and 
utility companies.



Sec. 140.904  Reimbursement basis.

    (a) General. On projects involving the elimination of hazards of 
railroad-highway crossings, and on other projects where a railroad 
company is not obligated to move or to change its facilities at its own 
expense, reimbursement will be made for the costs incurred by the State 
in making changes to railroad facilities as required in connection with 
a Federal-aid highway project, in accordance with the provisions of this 
subpart.
    (b) Eligibility. To be eligible, the costs must be:
    (1) For work which is included in an approved statewide 
transportation improvement program.
    (2) Incurred subsequent to the date of authorization by the Federal 
Highway Administration (FHWA),
    (3) Incurred in accordance with the provisions of 23 CFR, part 646, 
subpart B, and
    (4) Properly attributable to the project.

[40 FR 16057, Apr. 9, 1975, as amended at 53 FR 18276, May 23, 1988; 62 
FR 45328, Aug. 27, 1997]



Sec. 140.906  Labor costs.

    (a) General. (1) Salaries and wages, at actual or average rates, and 
related expenses paid by a company to individuals, for the time they are 
working on the project, are reimbursable when supported by adequate 
records. This shall include labor costs associated with preliminary 
engineering, construction engineering, right-of-way, and force account 
construction.
    (2) Salaries and expenses paid to individuals who are normally part 
of the overhead organization of the company may be reimbursed for the 
time they are working directly on the project, such as for accounting 
and bill preparation, when supported by adequate records and when the 
work performed by such individuals is essential to the project and could 
not have been accomplished as economically by employees outside the 
overhead organization.
    (3) Amounts paid to engineers, architects and others for services 
directly related to projects may be reimbursed.
    (b) Labor surcharges. (1) Labor surcharges include worker 
compensation insurance, public liability and property damage insurance, 
and such fringe benefits as the company has established for the benefit 
of its employees. The cost of labor surcharges will be reimbursed at 
actual cost to the company or a company may, at its option, use an 
additive rate or other similar technique in lieu of actual costs 
provided that (i) the rate is based on historical cost data of the 
company, (ii) such rate is representative of actual costs incurred, 
(iii) the rate is adjusted at least annually taking into consideration 
known anticipated changes and correcting for any over or under applied 
costs for the preceding period, and (iv) the rate is approved by the SHA 
and FHWA.
    (2) Where the company is a self-insurer there may be reimbursement:
    (i) At experience rates properly developed from actual costs, not to 
exceed the rates of a regular insurance

[[Page 18]]

company for the class of employment covered, or
    (ii) At the option of the company, a fixed rate of 8 percent of 
direct labor costs for worker compensation and public liability and 
property damage insurance together.

[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982; 56 
FR 56578, Nov. 6, 1991]



Sec. 140.907  Overhead and indirect construction costs.

    (a) A State may elect to reimburse the railroad company for its 
overhead and indirect construction costs.
    (b) The FHWA will participate in these costs provided that:
    (1) The costs are distributed to all applicable work orders and 
other functions on an equitable and uniform basis in accordance with 
generally accepted accounting principles;
    (2) The costs included in the distribution are limited to costs 
actually incurred by the railroad;
    (3) The costs are eligible in accordance with the Federal 
Acquisition Regulation (48 CFR), part 31, Contract Cost Principles and 
Procedures, relating to contracts with commercial organizations;
    (4) The costs are considered reasonable;
    (5) Records are readily available at a single location which 
adequately support the costs included in the distribution, the method 
used for distributing the costs, and the basis for determining additive 
rates;
    (6) The rates are adjusted at least annually taking into 
consideration any overrecovery or underrecovery of costs; and
    (7) The railroad maintains written procedures which assure proper 
control and distribution of the overhead and indirect construction 
costs.

[53 FR 18276, May 23, 1988]



Sec. 140.908  Materials and supplies.

    (a) Procurement. Materials and supplies, if available, are to be 
furnished from company stock, except they may be obtained from other 
sources near the project site when available at less cost. Where not 
available from company stock, they may be purchased either under 
competitive bids or existing continuing contracts, under which the 
lowest available prices are developed. Minor quantities and proprietary 
products are excluded from these requirements. The company shall not be 
required to change its existing standards for materials used in 
permanent changes to its facilities.
    (b) Costs. (1) Materials and supplies furnished from company stock 
shall be billed at current stock price of such new or used material at 
time of issue.
    (2) Materials and supplies not furnished from company stock shall be 
billed at actual costs to the company delivered to the point of entry on 
the railroad company's line nearest the source of procurement.
    (3) A reasonable cost of plant inspection and testing may be 
included in the costs of materials and supplies where such expense has 
been incurred. The computation of actual costs of materials and supplies 
shall include the deduction of all offered discounts, rebates and 
allowances.
    (c) Materials recovered. (1) Materials recovered from temporary use 
and accepted for reuse by the company shall be credited to the project 
at prices charged to the job, less a consideration for loss in service 
life at 10 percent for rails, angle bars, tie plates and metal turnout 
materials and 15 percent for all other materials. Materials recovered 
from the permanent facility of the company that are accepted by the 
company for return to stock shall be credited to the project at current 
stock prices of such used material.
    (2) Materials recovered and not accepted for reuse by the company, 
if determined to have a net sale value, shall be sold by the State or 
railroad following an opportunity for State inspection and appropriate 
solicitation for bids, to the highest bidder; or if the company 
practices a system of periodic disposal by sale, credit to the project 
shall be at the going prices supported by the records of the company. 
Where applicable, credit for materials recovered from the permanent 
facility in length or quantities in excess of that being placed should 
be reduced to reflect any increased cost of railroad operation resulting 
from the adjustment.

[[Page 19]]

    (d) Removal costs. Federal participation in the costs of removing, 
salvaging, transporting, and handling recovered materials will be 
limited to the value of materials recovered, except where FHWA approves 
additional measures for restoration of affected areas as required by the 
physical construction or by reason of safety or aesthetics.
    (e) Handling costs. The actual and direct costs of handling and 
loading out of materials and supplies at and from company stores or 
material yards and of unloading and handling of recovered materials 
accepted by the company at its stores or material yards, are 
reimbursable. At the option of the company, 5 percent of the amounts 
billed for the materials and supplies which are issued from company 
stores and material yards will be reimbursable in lieu of actual costs.
    (f) Credit losses. On projects where a company actually suffers loss 
by application of credits, the company shall have the opportunity of 
submitting a detailed statement of such loss as a basis for further 
adjustment.



Sec. 140.910  Equipment.

    (a) Company owned equipment. Cost of company-owned equipment may be 
reimbursed for the average or actual cost of operation, light and 
running repairs, and depreciation, or at industry rates representative 
of actual costs as agreed to by the railroad, SHA, and FHWA. 
Reimbursement for company-owned vehicles may be made at average or 
actual costs or at rates of recorded use per mile which are 
representative of actual costs and agreed to by the company, SHA, and 
FHWA.
    (b) Other equipment. Where company owned equipment is not available, 
reimbursement will be limited to the amount of rental paid (1) to the 
lowest qualified bidder, (2) under existing continuing contracts at 
reasonable cost, or (3) as an exception, by negotiation where (b) (1) 
and (2) are impractical due to project location or schedule.

[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982]



Sec. 140.912  Transportation.

    (a) Employees. The company's cost of necessary employee 
transportation and subsistence directly attributable to the project, 
which is consistent with overall policy of the company, is reimbursable.
    (b) Materials, supplies, and equipment. The most economical movement 
of materials, supplies and equipment to the project and necessary return 
to storage, including the associated costs of loading and unloading 
equipment, is reimbursable. Transportation by a railroad company over 
its own lines in a revenue train is reimbursable at average or actual 
costs, at rates which are representative of actual costs, or at rates 
which the company charges its customers for similar shipments provided 
the rate structure is documented and available to the public. These 
rates are to be agreed to by the company, SHA, and FHWA. No charge will 
be made for transportation by work train other than the operating 
expenses of the work train. When it is more practicable or more 
economical to move equipment on its own wheels, reimbursement may be 
made at average or actual costs or at rates which are representative of 
actual costs and are agreed to by the railroad, SHA, and FHWA.

[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982]



Sec. 140.914  Credits for improvements.

    (a) Credit shall be made to the project for additions or 
improvements which provide for higher quality or increased service 
capability of the operating facility and which are provided solely for 
the benefit of the company.
    (b) Where buildings and other depreciable structures of a company 
which are integral to operation of rail traffic must be replaced, credit 
shall be made to the project as set forth in 23 CFR 646.216(c)(2).
    (c) No credit is required for additions or improvements which are:
    (1) Necessitated by the requirements of the highway project.
    (2) Replacements which, although not identical, are of equivalent 
standard.
    (3) Replacements of devices or materials no longer regularly 
manufactured and the next highest grade or size is used.

[[Page 20]]

    (4) Required by governmental and appropriate regulatory commission 
requirements.



Sec. 140.916  Protection.

    The cost of essential protective services which, in the opinion of a 
railroad company, are required to ensure safety to railroad operations 
during certain periods of the construction of a project, is reimbursable 
provided an item for such services is incorporated in the State-railroad 
agreement or in a work order issued by the State and approved by FHWA.



Sec. 140.918  Maintenance and extended construction.

    The cost of maintenance and extended construction is reimbursable to 
the extent provided for in 23 CFR 646.216(f)(4), and where included in 
the State-Railroad Agreement or otherwise approved by the State and 
FHWA.



Sec. 140.920  Lump sum payments.

    Where approved by FHWA, pursuant to 23 CFR 646.216(d)(3), 
reimbursement may be made as a lump sum payment, in lieu of actual 
costs.



Sec. 140.922  Billings.

    (a) After the executed State-Railroad Agreement has been approved by 
FHWA, the company may be reimbursed on progress billings of incurred 
costs. Costs for materials stockpiled at the project site or 
specifically purchased and delivered to the company for use on the 
project may be reimbursed on progress billings following approval of the 
executed State-Railroad Agreement or the written agreement under 23 CFR 
646.218(c).
    (b) The company shall provide one final and complete billing of all 
incurred costs, or of the agreed-to lump sum, within one year following 
completion of the reimbursable railroad work. Otherwise, previous 
payments to the company may be considered final, except as agreed to 
between the SHA and the railroad.
    (c) All company cost records and accounts relating to the project 
are subject to audit by representatives of the State and/or the Federal 
Government for a period of three years from the date final payment has 
been received by the company.
    (d) A railroad company must advise the State promptly of any 
outstanding obligation of the State's contractor for services furnished 
by the company such as protective services.

[40 FR 16057, Apr. 9, 1975, as amended at 40 FR 29712, July 15, 1975; 62 
FR 45328, Aug. 27, 1997]



PART 172--ADMINISTRATION OF ENGINEERING AND DESIGN RELATED SERVICE CONTRACTS--Table of Contents




                    Subpart A--Procurement Procedures

Sec.
172.1  Purpose and applicability.
172.3  Definitions.
172.5  General principles.
172.7  Methods of procurement.
172.9  Compensation.
172.11  Contract modifications.
172.13  Monitoring the contract work.
172.15  Alternate procedures.

              Subpart B--Private Sector Involvement Program

172.21  Purpose and applicability.
172.23  Evaluation and selection.
172.25  Funding.

    Authority: 23 U.S.C. 112(b), 114(a), 302, 315, and 402; 49 CFR 
1.48(b) and 18; 48 CFR 12 and 31; 41 U.S.C. 253 and 259; and sec. 1060, 
Pub. L. 102-240, 105 Stat. 1914, 2003 (1991).

    Source: 56 FR 19802, Apr. 30, 1991, unless otherwise noted.



                    Subpart A--Procurement Procedures



Sec. 172.1  Purpose and applicability.

    (a) To prescribe policies and procedures for contracting to ensure 
that a qualified consultant is obtained through an equitable selection 
process, and that prescribed work is properly accomplished in a timely 
manner, at a reasonable cost.
    (b) This regulation applies to all engineering and design related 
service contracts financed with Federal-aid highway funds. Agencies with 
approved Certification Acceptance Plans (CA), Secondary Road Plans (SRP) 
and/or Combined Road Plans (CRP) shall submit for the Federal Highway 
Administration's (FHWA) approval, procedures

[[Page 21]]

consistent with this regulation if they intend to utilize Federal-aid 
highway funds for any of the above contract types. The use of procedures 
codified in State statutes to select consultant firms is also 
acceptable. Other types of negotiated contracts should be administered 
under the requirements of the common grant management rule, 49 CFR 18.



Sec. 172.3  Definitions.

    As used in this part:
    Competitive negotiation. Any form of negotiations that utilizes, (1) 
qualifications-based procedures complying with title IX of the Federal 
Property and Administrative Services Act of 1949 (Pub. L. 92-582, 86 
Stat. 1278 (1972)), (2) equivalent State qualifications-based procedures 
or (3) a formal procedure permitted by State statute.
    Consultant. The individual or firm providing engineering and design 
related services as a party to the contract.
    Contract modification. An agreement modifying the existing contract, 
such as an agreement to accomplish work beyond the scope of the original 
contract.
    Contracting agency. The State highway agency or local governmental 
agencies which have responsibility for the procurement.
    Engineering and design services. Program management, construction 
management, feasibility studies, preliminary engineering, design, 
engineering, surveying, mapping, or architectural related services.
    Extra work. Any services or actions required of the consultant above 
and beyond the obligations of the original or modified contract.
    Fixed fee. A dollar amount established to cover the consultant's 
profit and business expenses not allocable to overhead.
    Prenegotiation audit. An examination of a consultant's records made 
in accordance with generally accepted auditing standards.
    Private sector engineering and design firms. Any individual or 
private firm (including small business concerns and small businesses 
owned and controlled by socially and economically disadvantaged 
individuals as defined in 49 CFR part 23) contracting with a State to 
provide engineering and design services.
    Scope of work. All services and actions required of the consultant 
by the obligations of the contract.

[56 FR 19802, Apr. 30, 1991, as amended at 59 FR 64848, Dec. 16, 1994]



Sec. 172.5  General principles.

    (a) Need for consultant services in management roles. When Federal-
aid highway funds participate in the contract, the contracting agency 
shall receive approval from the FHWA before hiring a consultant to act 
in a ``management'' role for the contracting agency. This concept should 
be limited to situations where unique or unusual circumstances exist and 
where the contracting agency has provided adequate justification to 
explain its reason for using a consultant in this role and the reason it 
cannot perform the work.
    (b) Written procedures. The contracting agency shall prepare written 
procedures for each method of procurement it proposes to utilize. These 
procedures and all revisions shall be approved by the FHWA and describe, 
as appropriate to the particular method of procurement, each step used:
    (1) In preparing a scope of work, evaluation factors and cost 
estimate for selecting a consultant,
    (2) In soliciting proposals from prospective consultants,
    (3) In the evaluation of proposals and the ranking/selection of a 
consultant,
    (4) In negotiation of the reimbursement to be paid to the selected 
consultant,
    (5) In monitoring the consultant's work and in preparing a 
consultant's performance evaluation when completed, and
    (6) In determining the extent to which the consultant, who is 
responsible for the professional quality, technical accuracy, and 
coordination of services, may be reasonably liable for costs resulting 
from errors or deficiencies in design furnished under its contract.
    (c) Prenegotiation audits. The contracting agencies shall prepare 
prenegotiation audits to provide the necessary data to assure that the 
consultant has an acceptable accounting

[[Page 22]]

system, adequate and proper justification of the various rates charged 
to perform work and is aware of the FHWA's cost eligibility and 
documentation requirements.
    (1) Prenegotiation audits and the resultant audit opinions are 
required for all contracts expected to exceed $250,000 and for contracts 
of less than $250,000 where:
    (i) There is insufficient knowledge of the consultant's accounting 
system,
    (ii) There is previous unfavorable experience regarding the 
reliability of the consultant's accounting system, or
    (iii) The contract involves procurement of new equipment or supplies 
for which cost experience is lacking.
    (2) The use of an independent audit, an audit performed by another 
State/Federal agency or an audit performed by another local governmental 
agency is acceptable if the information is current and of sufficient 
detail.
    (3) Prenegotiation audits may be waived when sufficient audited 
consultant data is available to permit reasonable comparisons with the 
cost proposal.
    (d) State responsibility in local agency contracts. The State 
highway agency shall ensure that procurement actions by or through other 
State agencies or local agencies comply with this regulation. When 
Federal-aid highway funds participate in the contract, a local agency 
shall use the same procedures as used by the State to administer 
contracts not under CA, the SRP or the CRP. These contracts shall be 
subject to the prior approval of the State highway agency and the FHWA. 
Nothing herein shall be taken as relieving the State of its 
responsibility under Federal-aid highway laws and regulations for the 
work to be performed under any agreements entered into by a local 
agency.
    (e) Disadvantaged Business Enterprise (DBE) program. The contracting 
agency shall give consideration to DBE firms in the procurement of 
engineering and design related service contracts subject to 23 U.S.C. 
112(b)(2).
    (f) Contractual responsibilities. The contracting agency or State 
highway agency shall be responsible for the settlement of all 
contractual/administrative issues. All settlements shall be reviewed and 
approved by the FHWA before Federal-aid highway funds can participate in 
any additional costs.



Sec. 172.7  Methods of procurement.

    This regulation addresses three methods of procurement for the 
hiring of consultants to perform engineering and design related services 
specified in 23 U.S.C. 112(b)(2). These methods are: competitive 
negotiations which follows qualifications-based selection procedures or 
another selection procedure permitted by State statutes; small purchase 
procedures for small dollar value contracts; and non-competitive 
negotiations where specific conditions exist allowing negotiations to 
take place with a single firm.
    (a) Competitive negotiation. Competitive negotiation should be used 
for the selection of a consultant to provide engineering and design 
related services. The following procedures shall apply to the 
competitive negotiation process:
    (1) Scope, evaluation factors and cost estimate development. The 
contracting agency shall prepare:
    (i) A scope of work before issuing a Request for Proposal that 
reflects a clear, accurate, and detailed description of the technical 
requirements for the services to be rendered and a list identifying the 
evaluation factors and their relative importance.
    (ii) A detailed cost estimate, except for contracts awarded under 
small purchase procedures, with an appropriate breakdown of specific 
types of labor required, work hours, and an estimate of the consultant's 
fixed fee (considering the risk and complexity of the project) for use 
during negotiations.
    (2) Soliciting proposals--(i) Solicitation. The solicitation process 
shall be by advertisement (project, task or service), by mailing 
Requests for Proposals to certified/prequalified consultants, or any 
other method that ensures qualified in-State and out-of-State 
consultants are given the opportunity to be considered for award of a 
contract. It shall include a process where either:
    (A) General interest is solicited for performing the work; 
responding consultants are ranked based on an evaluation of their 
qualification statements (submitted with their letters of interest or on 
file with the contracting

[[Page 23]]

agency); and proposals are requested from three or more firms starting 
with the highest ranked firm, or
    (B) Proposals are solicited from all consultants that are interested 
in being considered for the work.
    (ii) Request for proposal. The request for proposal shall:
    (A) Provide a description of the scope of work and identification of 
the evaluation factors including their relative importance as included 
in paragraph (a)(1) of this section.
    (B) Specify the method(s) of payment (lump sum, cost plus a fixed 
fee, cost per unit of work, or specific rate(s) of compensation).
    (C) Request the submission of a proposal. Priced proposals may be 
used in the selection phase if allowed for under a State statute, but 
shall not be used in the selection phase when qualifications-based 
procedures are used.
    (D) Allow sufficient time for the consultant to prepare and submit 
the proposal.
    (3) Analysis and selection--(i) The consultants' proposals, 
containing the information required by paragraph (a)(2) of this section, 
shall be evaluated and ranked by the contracting agency. This process 
shall include an analysis of the proposals in comparison to the 
evaluation factors. In addition, the consultants' applicable work 
experience, present workload, past performance, staffing capabilities, 
etc., should be evaluated and included in the ranking process.
    (ii) The award of engineering and design related services shall:
    (A) Utilize qualifications-based procedures that either comply with 
the provisions of Title IX of the Federal Property and Administrative 
Services Act of 1949 (Pub. L. 92-582, 86 Stat. 1278 (1972), as amended) 
or utilize equivalent State qualifications-based procedures, or
    (B) Utilize a formal procurement procedure that is established by 
State statute or is subsequently established by State statute.
    (iii) The contracting agency shall retain acceptable documentation 
of the proposal, evaluation and selection of the consultant. Records 
shall be maintained in accordance with the provisions of 49 CFR 18.42.
    (4) Negotiation responsibilities. (i) The negotiator shall use all 
resources available to conduct effective negotiations, including but not 
limited to, the refined scope of work, the evaluation factors and their 
relative importance, the agency's cost estimate as required in paragraph 
(a)(1) of this section and the audit opinion issued as a result of the 
prenegotiation audit required in Sec. 172.5(c) of this part.
    (ii) The negotiator shall separately negotiate the dollar amounts 
for elements of cost and a fixed fee except for services normally 
negotiated on a per unit (includes costs and fees) cost.
    (iii) The contracting agency shall maintain records of negotiations 
to document negotiation activities and set forth the resources 
considered by the negotiator. Records shall be maintained in accordance 
with the provisions of 49 CFR 18.42.
    (5) Execution of contracts. The proposed contract including the 
agreed upon cost figures shall be submitted to the FHWA for approval 
prior to its execution.
    (b) Small purchases. Contracting agencies may use small purchase 
procedures for the procurement of engineering and design related 
services when the contract cost does not exceed $25,000.
    (c) Noncompetitive negotiation. Noncompetitive negotiation may be 
used to obtain engineering and design related services when the award of 
a contract is not feasible under small purchase or competitive 
negotiation procedures. The contracting agency shall submit 
justification and receive approval from the FHWA before using this form 
of contracting when Federal-aid highway funds are used in the contract.
    (1) Circumstances under which a contract may be awarded by 
noncompetitive negotiation are limited to the following:
    (i) The service is available only from a single source, or
    (ii) There is an emergency which will not permit the time necessary 
to conduct competitive negotiations, or
    (iii) After solicitation of a number of sources, competition is 
determined inadequate.

[[Page 24]]

    (2) The contracting agency shall comply with the following 
procedures for noncompetitive negotiations:
    (i) Establish a process to determine when noncompetitive negotiation 
will be used,
    (ii) Develop an adequate scope of work, evaluation factors and cost 
estimate as required in paragraph (a)(1) of this section,
    (iii) Conduct negotiations as required in paragraph (a)(4) of this 
section, and
    (iv) Submit the proposed contract and cost estimate to the FHWA for 
approval.



Sec. 172.9  Compensation.

    (a) Contracting agencies may establish cost principles for 
determining the reasonableness and allowability of costs. Federal 
reimbursement shall be limited to the Federal share of the costs 
allowable under the cost principles in 48 CFR part 31 (Federal 
Acquisition Regulations). Any references included in 48 CFR part 31 to 
other parts of 48 CFR do not apply to these contracts.
    (b) Applicable cost principles shall be referenced in each 
contractual document.
    (c) Methods of payment. (1) The method of payment to compensate the 
consultant for all work required shall be set forth in the original 
contract and in any contract modifications thereto. It may be a single 
method for all work or may involve different methods for different 
elements of work. The methods of payment which shall be used are: lump 
sum, cost plus fixed fee, cost per unit of work or specific rates of 
compensation.
    (2) Compensation based on cost plus a percentage of cost or 
percentage of construction cost shall not be used.
    (3) When the method of payment is other than a lump sum, the 
contract shall specify a maximum amount payable which shall not be 
exceeded unless adjusted by a contract modification.
    (4) The lump sum method shall not be used to compensate a consultant 
for construction engineering and inspection services except when the 
agency has established the extent, scope, complexity, character and 
duration of the work to be required to a degree that fair and reasonable 
compensation including a fixed fee can be determined.
    (d) Fixed fees. (1) The determination of the amount of the fixed fee 
shall take into account the size, complexity, duration, and degree of 
risk involved in the work. The establishment of the fixed fee shall be 
project specific.
    (2) Fixed fees normally range from 6 to 15 percent of the total 
direct and indirect cost. Subject to the approval of the FHWA, a fixed 
fee over 15 percent may be justified when exceptional circumstances 
exist.



Sec. 172.11  Contract modifications.

    (a) Contract modifications are required for any modification in the 
terms of the original contract that change the cost of the contract; 
significantly change the character, scope, complexity, or duration of 
the work; or significantly change the conditions under which the work is 
required to be performed.
    (b) A contract modification shall clearly outline the changes made 
and determine a method of compensation. FHWA approval of contract 
modifications shall be obtained prior to beginning the work except as 
discussed in paragraph (d) of this section.
    (c) Overruns in the costs of the work shall not warrant an increase 
in the fixed fee portion of a cost plus fixed fee contract. Significant 
changes to the Scope of Work may require adjustment of the fixed fee 
portion in a cost plus fixed fee contract or in a lump sum contract.
    (d) In unusual circumstances, the consultant may be authorized to 
proceed with work prior to agreement on the amount of compensation and 
execution of the contract modification, provided the FHWA has previously 
approved the work and has concurred that additional compensation is 
warranted.



Sec. 172.13  Monitoring the contract work.

    (a) A public employee qualified to ensure that the work being 
pursued is complete, accurate and consistent with the terms, conditions, 
and specifications of the contract shall be in responsible charge of 
each contract or project. The employee's responsibilities include:

[[Page 25]]

    (1) Scheduling and attending progress meetings with the consultant 
and being involved in decisions leading to change orders or supplemental 
agreements,
    (2) Being familiar with the qualifications and responsibilities of 
the consultant's staff,
    (3) Visiting the project and/or consultant's offices on a frequency 
that is commensurate with the magnitude, complexity and type of work. 
This includes being aware of the day-to-day operations for Construction 
Engineering Service contracts, and
    (4) Assuring that costs billed are consistent with the acceptability 
and progress of the consultant's work.
    (b) A final performance evaluation report, except for contracts 
awarded under small purchase procedures shall be prepared by the public 
employee in responsible charge of the contract and shall be submitted to 
the State highway agency's contracting office. The report should 
include, but not be limited to, an evaluation of such items as timely 
completion of work, conformance with contract cost and the quality of 
work. A copy of the report shall be sent to the firm for its review and/
or comments and any written comments submitted to the contracting agency 
by the firm shall be attached to the final report.
    (c) Contracting agencies should include a clause in engineering 
contracts requiring the consultant to perform such additional work as 
may be necessary to correct errors in the work required under the 
contract without undue delays and without additional cost to the owner. 
However, in general, a consultant should not be held responsible for 
additional costs in subsequent related construction resulting from 
errors or omissions which are not a result of gross negligence or 
carelessness.



Sec. 172.15  Alternate procedures.

    (a) This is a process whereby the contracting agency can be 
authorized to substitute its contract review and approval actions for 
those of the FHWA. Before a contracting agency can operate under the 
alternate procedures concept, it shall submit procedures to the FHWA 
that include the following:
    (1) A formal request to operate under the alternate procedure 
concept.
    (2) The written procedures, as required by Sec. 172.5(b) of this 
part, it will follow, and
    (3) A statement signed by the chief administrative officer of the 
contracting agency certifying that it will conform with its written 
procedures, the provisions of this regulation, and all applicable 
Federal and State laws and administrative requirements.
    (b) The alternate procedures and all revisions shall be approved by 
the FHWA.
    (c) The alternate procedures concept may apply to all Federal-aid 
highway funded contracts.
    (d) A copy of the original executed contract and all contract 
modifications shall be submitted to the FHWA.



              Subpart B--Private Sector Involvement Program

    Source: 59 FR 64848, Dec. 16, 1994, unless otherwise noted.



Sec. 172.21  Purpose and applicability.

    (a) The purpose of this subpart is to implement a program to 
encourage States to contract for engineering and design services with 
the private sector whenever such contracts would be cost effective.
    (b) This subpart applies to all engineering and design services 
contracts financed with Federal-aid highway funds.



Sec. 172.23  Evaluation and selection.

    (a) When funds are appropriated for this program, the FHWA will 
invite States to submit applications to participate in the program. The 
FHWA will use the applications to make the program allocations under the 
program.
    (b) The FHWA will make a comparison of the applicants based on the 
amount of Federal-aid highway funds each State has expended on contracts 
for engineering and design services. In assessing the amount of funds a 
State spent in procuring engineering and design services, the FHWA will 
also consider the amounts expended by States

[[Page 26]]

on 100 percent State-funded engineering and design services contracts 
involving projects to be constructed with Federal-aid highway funds to 
the extent the State provides such information with its application.
    (c) The FHWA will select not less than three States each fiscal year 
to receive funds under this program.
    (1) Selection of the States to receive funding under this program 
will be made by determining which States were the most effective in 
increasing the percentage of funds expended on engineering and design 
services contracts in the year preceding the fiscal year in which funds 
are to be allocated. In the selection process, the FHWA will evaluate 
each State's program of contracting for engineering and design services. 
The evaluation will primarily consider such information as the amount 
and percentage of Federal-aid highway funds and State funds expended on 
engineering and design services contracts, the number of contracts 
awarded for such services, the relative size of the State's Federal-aid 
highway program and the increases in use of private sector firms during 
the preceding year and the preceding five years.
    (2) Upon the FHWA's request for applications, each State interested 
in being considered should submit its application through its 
appropriate FHWA Division Office. The application may be in letter form 
and should include current information on the extent of the State's use 
of consultants for engineering and design on Federal-aid highway 
projects. In addition, the State may provide data on the amount of 100 
percent State-funded engineering and design services contracts involving 
projects to be built with Federal-aid highway funds and any other 
information demonstrating the State's effectiveness in increasing the 
percentage of funds expended on engineering and design services 
contracts in the past five years.



Sec. 172.25  Funding.

    (a) Funds received by a State under this program may only be used 
for awarding engineering and design services contracts with the private 
sector. These contracts shall carry out services and activities eligible 
for Federal-aid funding under title 23, United States Code.
    (b) The Federal share of any project obligated with funds allocated 
under this program shall be the same as the Federal share applicable to 
the type of work or project being developed or the system on which the 
project is located. Funds allocated under this program shall remain 
available until expended.
    (c) Funds will be allocated to the States each fiscal year from 1995 
through 1997 to the extent funds are appropriated.



PART 180--CREDIT ASSISTANCE FOR SURFACE TRANSPORTATION PROJECTS--Table of Contents




    Authority:  Secs. 1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241, 
as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.48.

    Source: 64 FR 29750, June 2, 1999, unless otherwise noted.



Sec. 180.1  Cross-reference to credit assistance.

    The regulations in 49 CFR part 80 shall be followed in complying 
with the requirements of this part. Title 49 CFR part 80 implements the 
Transportation Infrastructure Finance and Innovation Act of 1998, secs. 
1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241.



PART 190--INCENTIVE PAYMENTS FOR CONTROLLING OUTDOOR ADVERTISING ON THE INTERSTATE SYSTEM--Table of Contents




Sec.
190.1  Purpose.
190.3  Agreement to control advertising.
190.5  Bonus project claims.
190.7  Processing of claims.

    Authority: 23 U.S.C. 131(j) and 315; 49 CFR 1.48(b).

    Source: 43 FR 42742, Sept. 21, 1978, unless otherwise noted.



Sec. 190.1  Purpose.

    The purpose of this regulation is to prescribe project procedures 
for making the incentive payments authorized by 23 U.S.C. 131(j).

[[Page 27]]



Sec. 190.3  Agreement to control advertising.

    To qualify for the bonus payment, a State must have entered into an 
agreement with the Secretary to control outdoor advertising. It must 
fulfill, and must continue to fulfill its obligations under such 
agreement consistent with 23 CFR 750.101.



Sec. 190.5  Bonus project claims.

    (a) The State may claim payment by submitting a form PR-20 voucher, 
supported by strip maps which identify advertising control limits and 
areas excluded from the claim and form FHWA-1175, for the one-half 
percent bonus claim.
    (b) The bonus payment computation is based on projects or portions 
thereof for which (1) the section of highway on which the project is 
located has been opened to traffic, and (2) final payment has been made. 
A bonus project may cover an individual project, a part thereof, or a 
combination of projects, on a section of an Interstate route.
    (c) The eligible system mileage to be shown for a bonus project is 
that on which advertising controls are in effect. The eligible system 
mileage reported in subsequent projects on the same Interstate route 
section should cover only the additional system mileage not previously 
reported. Eligible project cost is the total participating cost (State 
and Federal share of approved preliminary engineering (PE), right-of-way 
(R-O-W), and construction) exclusive of any ineligible costs. The amount 
of the bonus payment is to be based on the eligible total costs of the 
supporting projects included in each claim.
    (d) Progress vouchers for route sections on which additional one-
half percent bonus payments are to be claimed are to be so identified, 
and the final claim for each route section is to be identified as the 
final voucher.



Sec. 190.7  Processing of claims.

    Audited and approved PR-20 vouchers with form FHWA-1175 shall be 
forwarded to the regional office for submission to the Finance Division, 
Washington Headquarters, for payment. The associated strip maps shall be 
retained with the division office copies of the PR-20 vouchers.



PART 192--DRUG OFFENDER'S DRIVER'S LICENSE SUSPENSION--Table of Contents




Sec.
192.1  Scope.
192.2  Purpose.
192.3  Definitions.
192.4  Adoption of drug offender's driver's license suspension.
192.5  Certification requirements.
192.6  Period of availability of withheld funds.
192.7  Apportionment of withheld funds after compliance.
192.8  Period of availability of subsequently apportioned funds.
192.9  Effect of noncompliance.
192.10  Procedures affecting States in noncompliance.

    Authority: 23 U.S.C. 159 and 315.

    Source: 57 FR 35999, Aug. 12, 1992, unless otherwise noted. 
Redesignated at 60 FR 50100, Sept. 28, 1995.



Sec. 192.1  Scope.

    This part prescribes the requirements necessary to implement 23 
U.S.C. Sec. 159, which encourages States to enact and enforce drug 
offender's driver's license suspensions.



Sec. 192.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take in order to avoid the withholding of Federal-aid highway funds for 
noncompliance with 23 U.S.C. 159.



Sec. 192.3  Definitions.

    As used in this part:
    (a) Convicted includes adjudicated under juvenile proceedings.
    (b) Driver's license means a license issued by a State to any 
individual that authorizes the individual to operate a motor vehicle on 
highways.
    (c) Drug offense means:
    (1) The possession, distribution, manufacture, cultivation, sale, 
transfer, or the attempt or conspiracy to possess, distribute, 
manufacture, cultivate, sell, or transfer any substance the possession 
of which is prohibited under the Controlled Substances Act, or
    (2) The operation of a motor vehicle under the influence of such a 
substance.

[[Page 28]]

    (d) Substance the possession of which is prohibited under the 
Controlled Substances Act or substance means a controlled or counterfeit 
chemical, as those terms are defined in subsections 102 (6) and (7) of 
the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 
U.S.C. 802 (6) and (7) and listed in 21 CFR 1308.11-.15.

[57 FR 35999, Aug. 12, 1992; 58 FR 62415, Nov. 26, 1993; 59 FR 39256, 
Aug. 2, 1994]



Sec. 192.4  Adoption of drug offender's driver's license suspension.

    (a) The Secretary shall withhold five percent of the amount required 
to be apportioned to any State under each of sections 104(b)(1), 
104(b)(3), and 104(b)(5) of title 23 of the United States Code on the 
first day of fiscal years 1994 and 1995 if the States does not meet the 
requirements of this section on that date.
    (b) The Secretary shall withhold ten percent of the amount required 
to be apportioned to any State under each of sections 104(b)(1), 
104(b)(3), and 104(b)(5) of title 23 of the United States Code on the 
first day of fiscal year 1996 and any subsequent fiscal year if the 
State does not meet the requirements of this section on that date.
    (c) A State meets the requirements of this section if:
    (1) The State has enacted and is enforcing a law that requires in 
all circumstances, or requires in the absence of compelling 
circumstances warranting an exception:
    (i) The revocation, or suspension for at least 6 months, of the 
driver's license of any individual who is convicted, after the enactment 
of such law, of
    (A) Any violation of the Controlled Substances Act, or
    (B) Any drug offense, and
    (ii) A delay in the issuance or reinstatement of a driver's license 
to such an individual for at least 6 months after the individual 
otherwise would have been eligible to have a driver's license issued or 
reinstated if the individual does not have a driver's license, or the 
driver's license of the individual is suspended, at the time the 
individual is so convicted, or
    (2) The Governor of the State:
    (i) Submits to the Secretary no earlier than the adjournment sine 
die of the first regularly scheduled session of the State's legislature 
which begins after November 5, 1990, a written certification stating 
that he or she is opposed to the enactment or enforcement in the State 
of a law described in paragraph (c)(1) of this section relating to the 
revocation, suspension, issuance, or reinstatement of driver's licenses 
to convicted drug offenders; and
    (ii) Submits to the Secretary a written certification that the 
legislature (including both Houses where applicable) has adopted a 
resolution expressing its opposition to a law described in paragraph 
(c)(1) of this section.
    (d) A State that makes exceptions for compelling circumstances must 
do so in accordance with a State law, regulation, binding policy 
directive or Statewide published guidelines establishing the conditions 
for making such exceptions and in exceptional circumstances specific to 
the offender.



Sec. 192.5  Certification requirements.

    (a) Each State shall certify to the Secretary of Transportation by 
April 1, 1993 and by January 1 of each subsequent year that it meets the 
requirements of 23 U.S.C. 159 and this regulation.
    (b) If the State believes it meets the requirements of 23 U.S.C. 159 
and this regulation on the basis that it has enacted and is enforcing a 
law that suspends or revokes the driver's license of drug offenders, the 
certification shall contain:
    (1) A statement by the Governor of the State that the State has 
enacted and is enforcing a Drug Offender's Driver's License Suspension 
law that conforms to 23 U.S.C. 159(a)(3)(A). The certifying statement 
may be worded as follows: I, (Name of Governor), Governor of the (State 
or Commonwealth) of ____________, do hereby certify that the (State or 
Commonwealth) of ____________, has enacted is enforcing a Drug 
Offender's Driver's License Suspension law that conforms to section 23 
U.S. C. 159(a)(3)(A).

[[Page 29]]

    (2) Until a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 159 and this regulation, the certification 
shall include also:
    (i) A copy of the State law, regulation, or binding policy directive 
implementing or interpreting such law or regulation relating to the 
suspension, revocation, issuance or reinstatement or driver's licenses 
of drug offenders, and
    (ii) A statement describing the steps the State is taking to enforce 
its law with regard to within State convictions, out-of-State 
convictions, Federal convictions and juvenile adjudications. The 
statement shall demonstrate that, upon receiving notification that a 
State driver has been convicted of a within State, out-of-State or 
Federal conviction or juvenile adjudication, the State is revoking, 
suspending or delaying the issuance of that drug offender's driver's 
license; and that, when the State convicts an individual of a drug 
offense, it is notifying the appropriate State office or, if the 
offender is a non-resident driver, the appropriate office in the 
driver's home State. If the State is not yet making these notifications, 
the State may satisfy this element by submitting a plan describing the 
steps it is taking to establish notification procedures.
    (c) If the State believes it meets the requirements of 23 U.S.C. 
159(a)(3)(B) on the basis that it opposes a law that requires the 
suspension, revocation or delay in issuance or reinstatement of the 
driver's license of drug offenders that conforms to 23 U.S.C. 
159(a)(3)(A), the certification shall contain:
    (1) A statement by the Governor of the State that he or she is 
opposed to the enactment or enforcement of a law that conforms to 23 
U.S.C. 159(a)(3)(A) and that the State legislature has adopted a 
resolution expressing its opposition to such a law. The certifying 
statement may be worded as follows: I, (Name of Governor), Governor of 
the (State or Commonwealth of ____________, do hereby certify that I am 
opposed to the enactment or enforcement of a law that conforms to 23 
U.S.C. 159(a)(3)(A) and that the legislature of the (State or 
Commonwealth) of ____________, has adopted a resolution expressing its 
opposition to such a law.
    (2) Until a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 159(a)(3)(B) and this regulation, the 
certification shall include a copy of the resolution.
    (d) The Governor each year shall submit the original and three 
copies of the certification to the local FHWA Division Administrator. 
The FHWA Division Administrator shall retain the original and forward 
one copy each to the FHWA Regional Administrator, FHWA Chief Counsel, 
and the Director of the Office of Highway Safety.
    (e) Any changes to the original certification or supplemental 
information necessitated by the review of the certifications as they are 
forwarded, State legislative changes or changes in State enforcement 
activity (including failure to make progress in a plan previously 
submitted) shall be submitted in the same manner as the original.

[57 FR 35999, Aug. 12, 1992. Redesignated and amended at 60 FR 50100, 
Sept. 28, 1995]



Sec. 192.6  Period of availability of withheld funds.

    (a) Funds withheld under Sec. 1212.4 from apportionment to any State 
on or before September 30, 1995, will remain available for apportionment 
as follows:
    (1) If the funds would have been apportioned under 23 U.S.C. 
104(b)(5)(A) but for this section, the funds will remain available until 
the end of the fiscal year for which the funds are authorized to be 
appropriated.
    (2) If the funds would have been apportioned under 23 U.S.C. 
104(b)(5)(B) but for this section, the funds will remain available until 
the end of the second fiscal year following the fiscal year for which 
the funds are authorized to be appropriated.
    (3) If the funds would have been apportioned under 23 U.S.C. 
104(b)(1) or 104(b)(3) but for this section, the funds will remain 
available until the end of the third fiscal year following the fiscal 
year for which the funds are authorized to be appropriated.
    (b) Funds withheld under Sec. 1212.4 from apportionment to any State 
after September 30, 1995 will not be available for apportionment to the 
State.

[[Page 30]]



Sec. 192.7  Apportionment of withheld funds after compliance.

    Funds withheld under Sec. 1212.4 from apportionment, which remain 
available for apportionment under Sec. 1212.6(a), will be made available 
to any State that conforms to the requirements of Sec. 1212.4 before the 
last day of the period of availability as defined in Sec. 1212.6(a).

[57 FR 35999, Aug. 12, 1992, as amended at 59 FR 39256, Aug. 2, 1994]



Sec. 192.8  Period of availability of subsequently apportioned funds.

    (a) Funds apportioned pursuant to Sec. 1212.7 will remain available 
for expenditure as follows:
    (1) Funds originally apportioned under 23 U.S.C. 104(b)(5)(A) will 
remain available until the end of the fiscal year succeeding the fiscal 
year in which the funds are apportioned.
    (2) Funds originally apportioned under 23 U.S.C. 104(b)(1), 
104(b)(2), 104(b)(5)(B), or 104(b)(6) will remain available until the 
end of the third fiscal year succeeding the fiscal year in which the 
funds are apportioned.
    (b) Sums apportioned to a State pursuant to Sec. 1212.7 and not 
obligated at the end of the periods defined in Sec. 1212.8(a), shall 
lapse or, in the case of funds apportioned under 23 U.S.C. 104(b)(5), 
shall lapse and be made available by the Secretary for projects in 
accordance with 23 U.S.C. 118(b).



Sec. 192.9  Effect of noncompliance.

    If a State has not met the requirements of 23 U.S.C. 159(a)(3) at 
the end of the period for which funds withheld under Sec. 1212.4 are 
available for apportionment to a State under Sec. 1212.6, then such 
funds shall lapse or, in the case of funds withheld from apportionment 
under 23 U.S.C. 104(b)(5), shall lapse and be made available by the 
Secretary for projects in accordance with 23 U.S.C. 118(b).



Sec. 192.10  Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 159, based on FHWA's preliminary review of its statutes, 
will be advised of the funds expected to be withheld under Sec. 1212.4 
from apportionment, as part of the advance notice of apportionments 
required under 23 U.S.C. 104(e), normally not later than ninety days 
prior to final apportionment.
    (b) If FHWA determines that the State is not in compliance with 23 
U.S.C. 159 based on the agencies' preliminary review, the State may, 
within 30 days of its receipt of the advance notice of apportionments, 
submit documentation showing why it is in compliance. Documentation 
shall be submitted to the Federal Highway Administration, 400 Seventh 
Street, SW., Washington, DC 20590.
    (c) Each fiscal year, each State determined not to be in compliance 
with 23 U.S.C. 159(a)(3), based on FHWA's final determination, will 
receive notice of the funds being withheld under Sec. 1212.4 from 
apportionment, as part of the certification of apportionments required 
under 23 U.S.C. 104(e), which normally occurs on October 1 of each 
fiscal year.

[57 FR 35999, Aug. 12, 1992. Redesignated and amended at 60 FR 50100, 
Sept. 28, 1995]

[[Page 31]]


                       SUBCHAPTER C--CIVIL RIGHTS


PART 200--TITLE VI PROGRAM AND RELATED STATUTES--IMPLEMENTATION AND REVIEW PROCEDURES--Table of Contents




Sec.
200.1  Purpose.
200.3  Application of this part.
200.5  Definitions.
200.7  FHWA Title VI policy.
200.9  State highway agency responsibilities.
200.11  Procedures for processing Title VI reviews.
200.13  Certification acceptance.

    Authority: Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d 
to 2000d-4; Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3601-
3619; 42 U.S.C. 4601 to 4655; 23 U.S.C. 109(h); 23 U.S.C. 324.

    Source: 41 FR 53982, Dec. 10, 1976, unless otherwise noted.



Sec. 200.1  Purpose.

    To provide guidelines for: (a) Implementing the Federal Highway 
Administration (FHWA) Title VI compliance program under Title VI of the 
Civil Rights Act of 1964 and related civil rights laws and regulations, 
and (b) Conducting Title VI program compliance reviews relative to the 
Federal-aid highway program.



Sec. 200.3  Application of this part.

    The provisions of this part are applicable to all elements of FHWA 
and provide requirements and guidelines for State highway agencies to 
implement the Title VI Program requirements. The related civil rights 
laws and regulations are listed under Sec. 200.5(p) of this part. Title 
VI requirements for 23 U.S.C. 402 will be covered under a joint FHWA/
NHTSA agreement.



Sec. 200.5  Definitions.

    The following definitions shall apply for the purpose of this part:
    (a) Affirmative action. A good faith effort to eliminate past and 
present discrimination in all federally assisted programs, and to ensure 
future nondiscriminatory practices.
    (b) Beneficiary. Any person or group of persons (other than States) 
entitled to receive benefits, directly or indirectly, from any federally 
assisted program, i.e., relocatees, impacted citizens, communities, etc.
    (c) Citizen participation. An open process in which the rights of 
the community to be informed, to provide comments to the Government and 
to receive a response from the Government are met through a full 
opportunity to be involved and to express needs and goals.
    (d) Compliance. That satisfactory condition existing when a 
recipient has effectively implemented all of the Title VI requirements 
or can demonstrate that every good faith effort toward achieving this 
end has been made.
    (e) Deficiency status. The interim period during which the recipient 
State has been notified of deficiencies, has not voluntarily complied 
with Title VI Program guidelines, but has not been declared in 
noncompliance by the Secretary of Transportation.
    (f) Discrimination. That act (or action) whether intentional or 
unintentional, through which a person in the United States, solely 
because of race, color, religion, sex, or national origin, has been 
otherwise subjected to unequal treatment under any program or activity 
receiving financial assistance from the Federal Highway Administration 
under title 23 U.S.C.
    (g) Facility. Includes all, or any part of, structures, equipment or 
other real or personal property, or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alternation or acquisition of facilities.
    (h) Federal assistance. Includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and

[[Page 32]]

    (5) Any Federal agreement, arrangement, or other contract which has, 
as one of its purposes, the provision of assistance.
    (i) Noncompliance. A recipient has failed to meet prescribed 
requirements and has shown an apparent lack of good faith effort in 
implementing all of the Title VI requirements.
    (j) Persons. Where designation of persons by race, color, or 
national origin is required, the following designations ordinarily may 
be used: ``White not of Hispanic origin'', ``Black not of Hispanic 
origin'', ``Hispanic'', ``Asian or Pacific Islander'', ``American Indian 
or Alaskan Native.'' Additional subcategories based on national origin 
or primary language spoken may be used, where appropriate, on either a 
national or a regional basis.
    (k) Program. Includes any highway, project, or activity for the 
provision of services, financial aid, or other benefits to individuals. 
This includes education or training, work opportunities, health, 
welfare, rehabilitation, housing, or other services, whether provided 
directly by the recipient of Federal financial assistance or provided by 
others through contracts or other arrangements with the recipient.
    (l) State highway agency. That department, commission, board, or 
official of any State charged by its laws with the responsibility for 
highway construction. The term State would be considered equivalent to 
State highway agency if the context so implies.
    (m) Program area officials. The officials in FHWA who are 
responsible for carrying out technical program responsibilities.
    (n) Recipient. Any State, territory, possession, the District of 
Columbia, Puerto Rico, or any political subdivision, or instrumentality 
thereof, or any public or private agency, institution, or organization, 
or other entity, or any individual, in any State, territory, possession, 
the District of Columbia, or Puerto Rico, to whom Federal assistance is 
extended, either directly or through another recipient, for any program. 
Recipient includes any successor, assignee, or transferee thereof. The 
term recipient does not include any ultimate beneficiary under any such 
program.
    (o) Secretary. The Secretary of Transportation as set forth in 49 
CFR 21.17(g)(3) or the Federal Highway Administrator to whom the 
Secretary has delegated his authority in specific cases.
    (p) Title VI Program. The system of requirements developed to 
implement Title VI of the Civil Rights Act of 1964. References in this 
part to Title VI requirements and regulations shall not be limited to 
only Title VI of the Civil Rights Act of 1964. Where appropriate, this 
term also refers to the civil rights provisions of other Federal 
statutes to the extent that they prohibit discrimination on the grounds 
of race, color, sex, or national origin in programs receiving Federal 
financial assistance of the type subject to Title VI itself. These 
Federal statutes are:
    (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-d4 (49 
CFR part 21; the standard DOT Title VI assurances signed by each State 
pursuant to DOT Order 1050.2; Executive Order 11764; 28 CFR 50.3);
    (2) Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970 (42 U.S.C. 4601-4655) (49 CFR part 25; Pub. L. 91-
646);
    (3) Title VIII of the Civil Rights Act of 1968, amended 1974 (42 
U.S.C. 3601- 3619);
    (4) 23 U.S.C. 109(h);
    (5) 23 U.S.C. 324;
    (6) Subsequent Federal-Aid Highway Acts and related statutes.



Sec. 200.7  FHWA Title VI policy.

    It is the policy of the FHWA to ensure compliance with Title VI of 
the Civil Rights Act of 1964; 49 CFR part 21; and related statutes and 
regulations.



Sec. 200.9  State highway agency responsibilities.

    (a) State assurances in accordance with Title VI of the Civil Rights 
Act of 1964.
    (1) Title 49, CFR part 21 (Department of Transportation Regulations 
for the implementation of Title VI of the Civil Rights Act of 1964) 
requires assurances from States that no person in the United States 
shall, on the grounds of race, color, or national origin, be excluded 
from participation in, be denied

[[Page 33]]

the benefits of, or be otherwise subjected to discrimination under any 
program or activity for which the recipient receives Federal assistance 
from the Department of Transportation, including the Federal Highway 
Administration.
    (2) Section 162a of the Federal-Aid Highway Act of 1973 (section 
324, title 23 U.S.C.) requires that there be no discrimination on the 
ground of sex. The FHWA considers all assurances heretofore received to 
have been amended to include a prohibition against discrimination on the 
ground of sex. These assurances were signed by the 50 States, the 
District of Columbia, Puerto Rico, the Virgin Islands, Guam, and 
American Samoa. The State highway agency shall submit a certification to 
the FHWA indicating that the requirements of section 162a of the 
Federal-Aid Highway Act of 1973 have been added to its assurances.
    (3) The State highway agency shall take affirmative action to 
correct any deficiencies found by the FHWA within a reasonable time 
period, not to exceed 90 days, in order to implement Title VI compliance 
in accordance with State-signed assurances and required guidelines. The 
head of the State highway agency shall be held responsible for 
implementing Title VI requirements.
    (4) The State program area officials and Title VI Specialist shall 
conduct annual reviews of all pertinent program areas to determine the 
effectiveness of program area activities at all levels.
    (b) State actions. (1) Establish a civil rights unit and designate a 
coordinator who has a responsible position in the organization and easy 
access to the head of the State highway agency. This unit shall contain 
a Title VI Equal Employment Opportunity Coordinator or a Title VI 
Specialist, who shall be responsible for initiating and monitoring Title 
VI activities and preparing required reports.
    (2) Adequately staff the civil rights unit to effectively implement 
the State civil rights requirements.
    (3) Develop procedures for prompt processing and disposition of 
Title VI and Title VIII complaints received directly by the State and 
not by FHWA. Complaints shall be investigated by State civil rights 
personnel trained in compliance investigations. Identify each 
complainant by race, color, sex, or national origin; the recipient; the 
nature of the complaint; the dates the complaint was filed and the 
investigation completed; the disposition; the date of the disposition; 
and other pertinent information. Each recipient (State) processing Title 
VI complaints shall be required to maintain a similar log. A copy of the 
complaint, together with a copy of the State's report of investigation, 
shall be forwarded to the FHWA division office within 60 days of the 
date the complaint was received by the State.
    (4) Develop procedures for the collection of statistical data (race, 
color, religion, sex, and national origin) of participants in, and 
beneficiaries of State highway programs, i.e., relocatees, impacted 
citizens and affected communities.
    (5) Develop a program to conduct Title VI reviews of program areas.
    (6) Conduct annual reviews of special emphasis program areas to 
determine the effectiveness or program area activities at all levels.
    (7) Conduct Title VI reviews of cities, counties, consultant 
contractors, suppliers, universities, colleges, planning agencies, and 
other recipients of Federal-aid highway funds.
    (8) Review State program directives in coordination with State 
program officials and, where applicable, include Title VI and related 
requirements.
    (9) The State highway agency Title VI designee shall be responsible 
for conducting training programs on Title VI and related statutes for 
State program and civil rights officials.
    (10) Prepare a yearly report of Title VI accomplishments for the 
past year and goals for the next year.
    (11) Beginning October 1, 1976, each State highway agency shall 
annually submit an updated Title VI implementing plan to the Regional 
Federal Highway Administrator for approval or disapproval.
    (12) Develop Title VI information for dissemination to the general 
public and, where appropriate, in languages other than English.

[[Page 34]]

    (13) Establishing procedures for pregrant and postgrant approval 
reviews of State programs and applicants for compliance with Title VI 
requirements; i.e., highway location, design and relocation, and persons 
seeking contracts with the State.
    (14) Establish procedures to identify and eliminate discrimination 
when found to exist.
    (15) Establishing procedures for promptly resolving deficiency 
status and reducing to writing the remedial action agreed to be 
necessary, all within a period not to exceed 90 days.



Sec. 200.11  Procedures for processing Title VI reviews.

    (a) If the regional Title VI review report contains deficiencies and 
recommended actions, the report shall be forwarded by the Regional 
Federal Highway Administrator to the Division Administrator, who will 
forward it with a cover letter to the State highway agency for 
corrective action.
    (b) The division office, in coordination with the Regional Civil 
Rights Officer, shall schedule a meeting with the recipient, to be held 
not later than 30 days from receipt of the deficiency report.
    (c) Recipients placed in a deficiency status shall be given a 
reasonable time, not to exceed 90 days after receipt of the deficiency 
letter, to voluntarily correct deficiencies.
    (d) The Division Administrator shall seek the cooperation of the 
recipient in correcting deficiencies found during the review. The FHWA 
officials shall also provide the technical assistance and guidance 
needed to aid the recipient to comply voluntarily.
    (e) When a recipient fails or refuses to voluntarily comply with 
requirements within the time frame allotted, the Division Administrator 
shall submit to the Regional Administrator two copies of the case file 
and a recommendation that the State be found in noncompliance.
    (f) The Office of Civil Rights shall review the case file for a 
determination of concurrence or noncurrence with a recommendation to the 
Federal Highway Administrator. Should the Federal Highway Administrator 
concur with the recommendation, the file is referred to the Department 
of Transportation, Office of the Secretary, for appropriate action in 
accordance with 49 CFR.



Sec. 200.13  Certification acceptance.

    Title VI and related statutes requirements apply to all State 
highway agencies. States and FHWA divisions operating under 
certification acceptance shall monitor the Title VI aspects of the 
program by conducting annual reviews and submitting required reports in 
accordance with guidelines set forth in this document.



PART 230--EXTERNAL PROGRAMS--Table of Contents




   Subpart A--Equal Employment Opportunity on Federal and Federal-Aid 
         Construction Contracts (Including Supportive Services)

Sec.
230.101  Purpose.
230.103  Definitions.
230.105  Applicability.
230.107  Policy.
230.109  Implementation of specific Equal Employment Opportunity 
          requirements.
230.111  Implementation of special requirements for the provision of on-
          the-job training.
230.113  Implementation of supportive services.
230.115  Special contract requirements for ``Hometown'' or ``Imposed'' 
          Plan areas.
230.117  Reimbursement procedures (Federal-aid highway construction 
          projects only).
230.119  Monitoring of supportive services.
230.121  Reports.

Appendix A to Subpart A--Special Provisions
Appendix B to Subpart A--Training Special Provisions
Appendix C to Subpart A--Federal-Aid Highway Contractors Annual EEO 
          Report (Form PR-1391)
Appendix D to Subpart A--Federal-Aid Highway Construction Summary of 
          Employment Data (Form PR-1392)
Appendixes E-F to Subpart A [Reserved]
Appendix G to Subpart A--Special Reporting Requirements for ``Hometown'' 
          or ``Imposed'' Plan Areas

 Subpart B--Supportive Services for Minority, Disadvantaged, and Women 
                          Business Enterprises

230.201  Purpose.
230.202  Definitions.
230.203  Policy.

[[Page 35]]

230.204  Implementation of supportive services.
230.205  Supportive services funds obligation.
230.206  Monitoring supportive services.
230.207  Sources of assistance.

  Subpart C--State Highway Agency Equal Employment Opportunity Programs

230.301  Purpose.
230.303  Applicability.
230.305  Definitions.
230.307  Policy.
230.309  Program format.
230.311  State responsibilities.
230.313  Approval procedure.

Appendix A to Subpart C--State Highway Agency Equal Employment 
          Opportunity Programs

Subpart D--Construction Contract Equal Opportunity Compliance Procedures

230.401  Purpose.
230.403  Applicability.
230.405  Administrative responsibilities.
230.407  Definitions.
230.409  Contract compliance review procedures.
230.411  Guidance for conducting reviews.
230.413  Review reports.
230.415  Consolidated compliance reviews.

Appendix A to Subpart D--Sample Show Cause Notice
Appendix B to Subpart D--Sample Corrective Action Plan
Appendix C to Subpart D--Sample Show Cause Rescission
Appendix D to Subpart D--Equal Opportunity Compliance Review Process 
          Flow Chart

    Authority: 23 U.S.C. 101, 140, and 315; 42 U.S.C. 2000d et seq.; 49 
CFR 1.48 and 60-1.

    Source: 40 FR 28053, July 3, 1975, unless otherwise noted.



   Subpart A--Equal Employment Opportunity on Federal and Federal-Aid 
         Construction Contracts (Including Supportive Services)



Sec. 230.101  Purpose.

    The purpose of the regulations in this subpart is to prescribe the 
policies, procedures, and guides relative to the implementation of an 
equal employment opportunity program on Federal and Federal-aid highway 
construction contracts, except for those contracts awarded under 23 
U.S.C. 117, and to the preparation and submission of reports pursuant 
thereto.



Sec. 230.103  Definitions.

    For purposes of this subpart--
    Administrator means the Federal Highway Administrator.
    Areawide Plan means an affirmative action plan to increase minority 
utilization of crafts in a specified geographical area pursuant to 
Executive Order 11246, and taking the form of either a ``Hometown'' or 
an ``Imposed'' plan.
    Bid conditions means contract requirements which have been issued by 
OFCC for purposes of implementing a Hometown Plan.
    Division Administrator means the chief Federal Highway 
Administration (FHWA) official assigned to conduct FHWA business in a 
particular State, the District of Columbia, or the Commonwealth of 
Puerto Rico.
    Division Equal Opportunity Officer means an individual with staff 
level responsibilities and necessary authority by which to operate as an 
Equal Opportunity Officer in a Division office. Normally the Equal 
Opportunity Officer will be a full-time civil rights specialist serving 
as staff assistant to the Division Administrator.
    Hometown Plan means a voluntary areawide plan which was developed by 
representatives of affected groups (usually labor unions, minority 
organizations, and contractors), and subsequently approved by the Office 
of Federal Contract Compliance (OFCC), for purposes of implementing the 
equal employment opportunity requirements pursuant to Executive Order 
11246, as amended.
    Imposed Plan means an affirmative action requirement for a specified 
geographical area made mandatory by OFCC and, in some areas, by the 
courts.
    Journeyman means a person who is capable of performing all the 
duties within a given job classification or craft.
    State highway agency means that department, commission, board, or 
official of any State charged by its laws with the responsibility for 
highway construction. The term State should be considered equivalent to 
State highway agency.

[[Page 36]]

    Suggested minimum annual training goals means goals which have been 
assigned to each State highway agency annually for the purpose of 
specifying training positions on selected Federal-aid highway 
construction projects.
    Supportive services means those services provided in connection with 
approved on-the-job training programs for highway construction workers 
and highway contractors which are designed to increase the overall 
effectiveness of training programs through the performance of functions 
determined to be necessary in connection with such programs, but which 
are not generally considered as comprising part of actual on-the-job 
craft training.
    Trainee means a person who received on-the-job training, whether 
through an apprenticeship program or other programs approved or accepted 
by the FHWA.

[40 FR 28053, July 3, 1975, as amended at 41 FR 3080, Jan. 21, 1976]



Sec. 230.105  Applicability.

    (a) Federal-aid highway construction projects. This subpart applies 
to all Federal-aid highway construction projects and to Appalachian 
highway construction projects and other State supervised cooperative 
highway construction projects except:
    (1) Federal-aided highway construction projects being constructed 
pursuant to 23 U.S.C. 117; and
    (2) Those projects located in areas where the Office of Federal 
Contract Compliance has implemented an ``Imposed'' or a ``Hometown'' 
Plan, except for those requirements pertaining to specific provisions 
involving on-the-job training and those provisions pertaining to 
supportive services and reporting requirements.
    (b) Direct Federal highway construction projects. This subpart 
applies to all direct Federal highway construction projects except:
    (1) For those provisions relating to the special requirements for 
the provision of supportive services; and
    (2) For those provisions relating to implementation of specific 
equal employment opportunity requirements in areas where the Office of 
Federal Contract Compliance has implemented an ``Imposed'' or 
``Hometown'' plan.



Sec. 230.107  Policy.

    (a) Direct Federal and Federal-aid highway construction projects. It 
is the policy of the FHWA to require that all direct Federal and 
Federal-aid highway construction contracts include the same specific 
equal employment opportunity requirements. It is also the policy to 
require that all direct Federal and Federal-aid highway construction 
subcontracts of $10,000 or more (not including contracts for supplying 
materials) include these same requirements.
    (b) Federal-aid highway construction projects. It is the policy of 
the FHWA to require full utilization of all available training and 
skill-improvement opportunities to assure the increased participation of 
minority groups and disadvantaged persons and women in all phases of the 
highway construction industry. Moreover, it is the policy of the Federal 
Highway Administration to encourage the provision of supportive services 
which will increase the effectiveness of approved on-the-job training 
programs conducted in connection with Federal-aid highway construction 
projects.



Sec. 230.109  Implementation of specific Equal Employment Opportunity requirements.

    (a) Federal-aid highway construction projects. The special 
provisions set forth in appendix A shall be included in the advertised 
bidding proposal and made part of the contract for each contract and 
each covered Federal-aid highway construction subcontract.
    (b) Direct Federal highway construction projects. Advertising, award 
and contract administration procedures for direct Federal highway 
construction contracts shall be as set forth in Federal Acquisition 
Regulations (48 CFR, chapter 1, section 22.803(c)). In order to obtain 
information required by 48 CFR, chapter 1, Sec. 22.804-2(c), the 
following requirement shall be included at the end of the bid schedule 
in the proposal and contract assembly:

    I expect to employ the following firms as subcontractors on this 
project: (Naming subcontractors at this time does not constitute a 
binding commitment on the bidder to retain such subcontractors, nor will 
failure to enter names affect the contract award):

Name____________________________________________________________________

[[Page 37]]

Address_________________________________________________________________
Name____________________________________________________________________
Address_________________________________________________________________

[40 FR 28053, July 3, 1975, as amended at 51 FR 22800, June 23, 1986]



Sec. 230.111  Implementation of special requirements for the provision of on-the-job training.

    (a) The State highway agency shall determine which Federal-aid 
highway construction contracts shall include the ``Training Special 
Provisions'' (appendix B) and the minimum number of trainees to be 
specified therein after giving appropriate consideration to the 
guidelines set forth in Sec. 230.111(c). The ``Training Special 
Provisions'' shall supersede section 7(b) of the Special Provisions 
(appendix A) entitled ``Specific Equal Employment Opportunity 
Responsibilities.'' Minor wording revisions will be required to the 
``Training Special Provisions'' in areas having ``Hometown'' or 
``Imposed Plan'' requirements.
    (b) The Washington Headquarters shall establish and publish annually 
suggested minimum training goals. These goals will be based on the 
Federal-aid apportioned amounts and the minority population. A State 
will have achieved its goal if the total number of training slots on 
selected federally aided highway construction contracts which have been 
awarded during each 12-month period equals or exceeds the State's 
suggested minimum annual goal. In the event a State highway agency does 
not attain its goal during a calendar year, the State highway agency at 
the end of the calendar year shall inform the Administrator of the 
reasons for its inability to meet the suggested minimum number of 
training slots and the steps to be taken to achieve the goal during the 
next calendar year. The information is to be submitted not later than 30 
days from the end of the calendar year and should be factual, and should 
not only indicate the situations occurring during the year but show the 
project conditions at least through the coming year. The final 
determination will be made on what training goals are considered to be 
realistic based on the information submitted by a State.
    (c) The following guidelines shall be utilized by the State highway 
agency in selecting projects and determining the number of trainees to 
be provided training therein:
    (1) Availability of minorities, women, and disadvantaged for 
training.
    (2) The potential for effective training.
    (3) Duration of the contract.
    (4) Dollar value of the contract.
    (5) Total normal work force that the average bidder could be 
expected to use.
    (6) Geographic location.
    (7) Type of work.
    (8) The need for additional journeymen in the area.
    (9) Recognition of the suggested minimum goal for the State.
    (10) A satisfactory ratio of trainees to journeymen expected to be 
on the contractor's work force during normal operations (considered to 
fall between 1:10 and 1:4).
    (d) Training programs which are established shall be approved only 
if they meet the standards set forth in appendix B with regard to:
    (1) The primary objectives of training and upgrading minority group 
workers, women and disadvantaged persons.
    (2) The development of full journeymen.
    (3) The minimum length and type of training.
    (4) The minimum wages of trainees.
    (5) Trainees certifications.
    (6) Keeping records and furnishing reports.
    (e)(1) Training programs considered by a State highway agency to 
meet the standards under this directive shall be submitted to the FHWA 
division Administrator with a recommendation for approval.
    (2) Employment pursuant to training programs approved by the FHWA 
division Administrator will be exempt from the minimum wage rate 
provisions of section 113 of title 23 U.S.C. Approval, however, shall 
not be given to training programs which provide for employment of 
trainees at wages less than those required by the Special Training 
Provisions. (Appendix B.)
    (f)(1) Apprenticeship programs approved by the U.S. Department of 
Labor as of the date of proposed use by

[[Page 38]]

a Federal-aid highway contractor or subcontractor need not be formally 
approved by the State highway agency or the FHWA division Administrator. 
Such programs, including their minimum wage provisions, are acceptable 
for use, provided they are administered in a manner reasonably 
calculated to meet the equal employment opportunity obligations of the 
contractor.
    (2) Other training programs approved by the U.S. Department of Labor 
as of the date of proposed use by a Federal-aid highway contractor or 
subcontractor are also acceptable for use without the formal approval of 
the State highway agency or the division Administrator provided:
    (i) The U.S. Department of Labor has clearly approved the program 
aspects relating to equal employment opportunity and the payment of 
trainee wage rates in lieu of prevailing wage rates.
    (ii) They are reasonably calculated to qualify the average trainees 
for journeyman status in the classification concerned by the end of the 
training period.
    (iii) They are administered in a manner calculated to meet the equal 
employment obligations of the contractors.
    (g) The State highway agencies have the option of permitting 
Federal-aid highway construction contractors to bid on training to be 
given under this directive. The following procedures are to be utilized 
by those State highway agencies that elect to provide a bid item for 
training:
    (1) The number of training positions shall continue to be specified 
in the Special Training Provisions. Furthermore, this number should be 
converted into an estimated number of hours of training which is to be 
used in arriving at the total bid price for the training item. Increases 
and decreases from the estimated amounts would be handled as overruns or 
underruns;
    (2) A section concerning the method of payment should be included in 
the Special Training Provisions. Some offsite training is permissible as 
long as the training is an integral part of an approved training program 
and does not comprise a substantial part of the overall training. 
Furthermore, the trainee must be concurrently employed on a federally 
aided highway construction project subject to the Special Training 
Provisions attached to this directive. Reimbursement for offsite 
training may only be made to the contractor where he does one or more of 
the following: Contributes to the cost of the training, provides the 
instruction to the trainee, or pays the trainee's wages during the 
offsite training period;
    (3) A State highway agency may modify the special provisions to 
specify the numbers to be trained in specific job classifications;
    (4) A State highway agency can specify training standards provided 
any prospective bidder can use them, the training standards are made 
known in the advertised specifications, and such standards are found 
acceptable by FHWA.

[40 FR 28053, July 3, 1975; 40 FR 57358, Dec. 9, 1975, as amended at 41 
FR 3080, Jan. 21, 1976]



Sec. 230.113  Implementation of supportive services.

    (a) The State highway agency shall establish procedures, subject to 
the availability of funds under 23 U.S.C. 140(b), for the provision of 
supportive services in support of training programs approved under this 
directive. Funds made available to implement this paragraph shall not be 
used to finance the training of State highway agency employees or to 
provide services in support of such training. State highway agencies are 
not required to match funds allocated to them under this section.
    (b) In determining the types of supportive services to be provided 
which will increase the effectiveness of approved training programs. 
State highway agencies shall give preference to the following types of 
services in the order listed:
    (1) Services related to recruiting, counseling, transportation, 
physical examinations, remedial training, with special emphasis upon 
increasing training opportunities for members of minority groups and 
women;
    (2) Services in connection with the administration of on-the-job 
training programs being sponsored by individual

[[Page 39]]

or groups of contractors and/or minority groups and women's groups;
    (3) Services designed to develop the capabilities of prospective 
trainees for undertaking on-the-job training;
    (4) Services in connection with providing a continuation of training 
during periods of seasonal shutdown;
    (5) Followup services to ascertain outcome of training being 
provided.
    (c) State highway agencies which desire to provide or obtain 
supportive services other than those listed above shall submit their 
proposals to the Federal Highway Administration for approval. The 
proposal, together with recommendations of the division and regional 
offices shall be submitted to the Administrator for appropriate action.
    (d) When the State highway agency provides supportive services by 
contract, formal advertising is not required by the FHWA, however, the 
State highway agency shall solicit proposals from such qualified sources 
as will assure the competitive nature of the procurement. The evaluation 
of proposals by the State highway agency must include consideration of 
the proposer's ability to effect a productive relationship with 
contractors, unions (if appropriate), minority and women groups, 
minority and women trainees, and other persons or organizations whose 
cooperation and assistance will contribute to the successful performance 
of the contract work.
    (e) In the selection of contractors to provide supportive services, 
State highway agencies shall make conscientious efforts to search out 
and utilize the services of qualified minority or women organizations, 
or minority or women business enterprises.
    (f) As a minimum, State highway agency contracts to obtain 
supportive services shall include the following provisions:
    (1) A statement that a primary purpose of the supportive services is 
to increase the effectiveness of approved on-the-job training programs, 
particularly their effectiveness in providing meaningful training 
opportunities for minorities, women, and the disadvantaged on Federal-
aid highway projects;
    (2) A clear and complete statement of the services to be provided 
under the contract, such as services to construction contractors, 
subcontractors, and trainees, for recruiting, counseling, remedial 
educational training, assistance in the acquisition of tools, special 
equipment and transportation, followup procedures, etc.;
    (3) The nondiscrimination provisions required by Title VI of the 
Civil Rights Act of 1964 as set forth in FHWA Form PR-1273, and a 
statement of nondiscrimination in employment because of race, color, 
religion, national origin or sex;
    (4) The establishment of a definite perriod of contract performance 
together with, if appropriate, a schedule stating when specific 
supportive services are to be provided;
    (5) Reporting requirements pursuant to which the State highway 
agency will receive monthly or quarterly reports containing sufficient 
statistical data and narrative content to enable evaluation of both 
progress and problems;
    (6) A requirement that the contractor keep track of trainees 
receiving training on Federal-aid highway construction projects for up 
to 6 months during periods when their training is interrupted. Such 
contracts shall also require the contractor to conduct a 6 month 
followup review of the employment status of each graduate who completes 
an on-the-job training program on a Federal-aid highway construction 
project subsequent to the effective date of the contract for supportive 
services.
    (7) The basis of payment;
    (8) An estimated schedule for expenditures;
    (9) The right of access to contractor and subcontractor records and 
the right to audit shall be granted to authorize State highway agency 
and FHWA officials;
    (10) Noncollusion certification;
    (11) A requirement that the contractor provide all information 
necessary to support progress payments if such are provided for in the 
contract;
    (12) A termination clause.
    (g) The State highway agency is to furnish copies of the reports 
received under paragraph (b)(5) of this section, to the division office.

[40 FR 28053, July 3, 1975, as amended at 41 FR 3080, Jan. 21, 1976]

[[Page 40]]



Sec. 230.115  Special contract requirements for ``Hometown'' or ``Imposed'' Plan areas.

    Direct Federal and Federal-aid contracts to be performed in 
``Hometown'' or ``Imposed'' Plan areas will incorporate the special 
provision set forth in appendix G.



Sec. 230.117  Reimbursement procedures (Federal-aid highway construction projects only).

    (a) On-the-job special training provisions. State highway agencies 
will be reimbursed on the same pro-rata basis as the construction costs 
of the Federal-aid project.
    (b) Supportive services. (1) The State highway agency must keep a 
separate account of supportive services funds since they cannot be 
interchanged with regular Federal-aid funds. In addition, these funds 
may not be expended in a manner that would provide for duplicate payment 
of Federal or Federal-aid funds for the same service.
    (2) Where a State highway agency does not obligate all its funds 
within the time specified in the particular year's allocation directive, 
the funds shall revert to the FHWA Headquarters Office to be made 
available for use by other State highway agencies, taking into 
consideration each State's need for and ability to use such funds.



Sec. 230.119  Monitoring of supportive services.

    Supportive services procured by a State highway agency shall be 
monitored by both the State highway agency and the division office.



Sec. 230.121  Reports.

    (a) Employment reports on Federal-aid highway construction contracts 
not subject to ``Hometown'' or ``Imposed'' plan requirements.
    (1) Paragraph 10c of the special provisions (appendix A) sets forth 
specific reporting requirements. FHWA Form PR-1391, Federal-Aid Highway 
Construction Contractors Annual EEO Report, (appendix C) and FHWA Form 
PR 1392, Federal-Aid Highway Construction Summary of Employment Data 
(including minority breakdown) for all Federal-Aid Highway Projects for 
month ending July 31st, 19--, (appendix D) are to be used to fulfill 
these reporting requirements.
    (2) Form PR 1391 is to be completed by each contractor and each 
subcontractor subject to this part for every month of July during which 
work is performed, and submitted to the State highway agency. A separate 
report is to be completed for each covered contract or subcontract. The 
employment data entered should reflect the work force on board during 
all or any part of the last payroll period preceding the end of the 
month. The State highway agency is to forward a single copy of each 
report to the FHWA division office.
    (3) Form PR 1392 is to be completed by the State highway agencies, 
summarizing the reports on PR 1391 for the month of July received from 
all active contractors and subcontractors. Three (3) copies of completed 
Forms PR 1392 are to be forwarded to the division office.
    (b) Employment reports on direct Federal highway construction 
contracts not subject to ``Hometown'' or ``Imposed'' plan requirements. 
Forms PR 1391 (appendix C) and PR 1392 (appendix D) shall be used for 
reporting purposes as prescribed in Sec. 230.121(a).
    (c) Employment reports on direct Federal and Federal-aid highway 
construction contracts subject to ``Hometown'' or ``Imposed'' plan 
requirements.
    (1) Reporting requirements for direct Federal and Federal-aid 
highway construction projects located in areas where ``Hometown'' or 
``Imposed'' plans are in effect shall be in accordance with those issued 
by the U.S. Department of Labor, Office of Federal Contract Compliance.
    (2) In order that we may comply with the U.S. Senate Committee on 
Public Works' request that the Federal Highway Administration submit a 
report annually on the status of the equal employment opportunity 
program, Form PR 1391 is to be completed annually by each contractor and 
each subcontractor holding contracts or subcontracts exceeding $10,000 
except as otherwise provided for under 23 U.S.C. 117. The employment 
data entered should reflect the work force on board

[[Page 41]]

during all or any part of the last payroll period preceding the end of 
the month of July.
    (d) [Reserved]
    (e) Reports on supportive services contracts. The State highway 
agency is to furnish copies of the reports received from supportive 
services contractors to the FHWA division office which will furnish a 
copy to the regional office.

[40 FR 28053, July 3, 1975, as amended at 43 FR 19386, May 5, 1978; 61 
FR 14616, Apr. 3, 1996]

         Appendix A to Subpart A of Part 230--Special Provisions

         specific equal employment opportunity responsibilities

    1. General. a. Equal employment opportunity requirements not to 
discriminate and to take affirmative action to assure equal employment 
opportunity as required by Executive Order 11246 and Executive Order 
11375 are set forth in Required Contract, Provisions (Form PR-1273 or 
1316, as appropriate) and these Special Provisions which are imposed 
pursuant to section 140 of title 23 U.S.C., as established by section 22 
of the Federal-Aid Highway Act of 1968. The requirements set forth in 
these Special Provisions shall constitute the specific affirmative 
action requirements for project activities under this contract and 
supplement the equal employment opportunity requirements set forth in 
the Required Contract Provisions.
    b. The contractor will work with the State highway agencies and the 
Federal Government in carrying out equal employment opportunity 
obligations and in their review of his/her activities under the 
contract.
    c. The contractor and all his/her subcontractors holding 
subcontracts not including material suppliers, of $10,000 or more, will 
comply with the following minimum specific requirement activities of 
equal employment opportunity: (The equal employment opportunity 
requirements of Executive Order 11246, as set forth in volume 6, chapter 
4, section 1, subsection 1 of the Federal-Aid Highway Program Manual, 
are applicable to material suppliers as well as contractors and 
subcontractors.) The contractor will include these requirements in every 
subcontract of $10,000 or more with such modification of language as is 
necessary to make them binding on the subcontractor.
    2. Equal Employment Opportunity Policy. The contractor will accept 
as his operating policy the following statement which is designed to 
further the provision of equal employment opportunity to all persons 
without regard to their race, color, religion, sex, or national origin, 
and to promote the full realization of equal employment opportunity 
through a positive continuing program:
    It is the policy of this Company to assure that applicants are 
employed, and that employees are treated during employment, without 
regard to their race, religion, sex, color, or national origin. Such 
action shall include: employment, upgrading, demotion, or transfer; 
recruitment or recruitment advertising; layoff or termination; rates of 
pay or other forms of compensation; and selection for training, 
including apprenticeship, preapprenticeship, and/or on-the-job training.
    3. Equal Employment Opportunity Officer. The contractor will 
designate and make known to the State highway agency contracting 
officers and equal employment opportunity officer (hereinafter referred 
to as the EEO Officer) who will have the responsibility for and must be 
capable of effectively administering and promoting an active contractor 
program of equal employment opportunity and who must be assigned 
adequate authority and responsibility to do so.
    4. Dissemination of Policy. a. All members of the contractor's staff 
who are authorized to hire, supervise, promote, and discharge employees, 
or who recommend such action, or who are substantially involved in such 
action, will be made fully cognizant of, and will implement, the 
contractor's equal employment opportunity policy and contractual 
responsibilities to provide equal employment opportunity in each grade 
and classification of employment. To ensure that the above agreement 
will be met, the following actions will be taken as a minimum:
    (1) Periodic meetings of supervisory and personnel office employees 
will be conducted before the start of work and then not less often than 
once every six months, at which time the contractor's equal employment 
opportunity policy and its implementation will be reviewed and 
explained. The meetings will be conducted by the EEO Officer or other 
knowledgeable company official.
    (2) All new supervisory or personnel office employees will be given 
a thorough indoctrination by the EEO Officer or other knowledgeable 
company official, covering all major aspects of the contractor's equal 
employment opportunity obligations within thirty days following their 
reporting for duty with the contractor.
    (3) All personnel who are engaged in direct recruitment for the 
project will be instructed by the EEO Officer or appropriate company 
official in the contractor's procedures for locating and hiring minority 
group employees.
    b. In order to make the contractor's equal employment opportunity 
policy known to all

[[Page 42]]

employees, prospective employees and potential sources of employees, 
i.e., schools, employment agencies, labor unions (where appropriate), 
college placement officers, etc., the contractor will take the following 
actions:
    (1) Notices and posters setting forth the contractor's equal 
employment opportunity policy will be placed in areas readily accessible 
to employees, applicants for employment and potential employees.
    (2) The contractor's equal employment opportunity policy and the 
procedures to implement such policy will be brought to the attention of 
employees by means of meetings, employee handbooks, or other appropriate 
means.
    5. Recruitment. a. When advertising for employees, the contractor 
will include in all advertisements for employees the notation: ``An 
Equal Opportunity Employer.'' All such advertisements will be published 
in newspapers or other publications having a large circulation among 
minority groups in the area from which the project work force would 
normally be derived.
    b. The contractor will, unless precluded by a valid bargaining 
agreement, conduct systematic and direct recruitment through public and 
private employee referral sources likely to yield qualified minority 
group applicants, including, but not limited to, State employment 
agencies, schools, colleges and minority group organizations. To meet 
this requirement, the contractor will, through his EEO Officer, identify 
sources of potential minority group employees, and establish with such 
identified sources procedures whereby minority group applicants may be 
referred to the contractor for employment consideration.
    In the event the contractor has a valid bargaining agreement 
providing for exclusive hiring hall referrals, he is expected to observe 
the provisions of that agreement to the extent that the system permits 
the contractor's compliance with equal employment opportunity contract 
provisions. (The U.S. Department of Labor has held that where 
implementation of such agreements have the effect of discriminating 
against minorities or women, or obligates the contractor to do the same, 
such implementation violates Executive Order 11246, as amended.)
    c. The contractor will encourage his present employees to refer 
minority group applicants for employment by posting appropriate notices 
or bulletins in areas accessible to all such employees. In addition, 
information and procedures with regard to referring minority group 
applicants will be discussed with employees.
    6. Personnel Actions. Wages, working conditions, and employee 
benefits shall be established and administered, and personnel actions of 
every type, including hiring, upgrading, promotion, transfer, demotion, 
layoff, and termination, shall be taken without regard to race, color, 
religion, sex, or national origin. The following procedures shall be 
followed:
    a. The contractor will conduct periodic inspections of project sites 
to insure that working conditions and employee facilities do not 
indicate discriminatory treatment of project site personnel.
    b. The contractor will periodically evaluate the spread of wages 
paid within each classification to determine any evidence of 
discriminatory wage practices.
    c. The contractor will periodically review selected personnel 
actions in depth to determine whether there is evidence of 
discrimination. Where evidence is found, the contractor will promptly 
take corrective action. If the review indicates that the discrimination 
may extend beyond the actions reviewed, such corrective action shall 
include all affected persons.
    d. The contractor will promptly investigate all complaints of 
alleged discrimination made to the contractor in connection with his 
obligations under this contract, will attempt to resolve such 
complaints, and will take appropriate corrective action within a 
reasonable time. If the investigation indicates that the discrimination 
may affect persons other than the complainant, such corrective action 
shall include such other persons. Upon completion of each investigation, 
the contractor will inform every complainant of all of his avenues of 
appeal.
    7. Training and Promotion. a. The contractor will assist in 
locating, qualifying, and increasing the skills of minority group and 
women employees, and applicants for employment.
    b. Consistent with the contractor's work force requirements and as 
permissible under Federal and State regulations, the contractor shall 
make full use of training programs, i.e., apprenticeship, and on-the-job 
training programs for the geographical area of contract performance. 
Where feasible, 25 percent of apprentices or trainees in each occupation 
shall be in their first year of apprenticeship or training. In the event 
the Training Special Provision is provided under this contract, this 
subparagraph will be superseded as indicated in Attachment 2.
    c. The contractor will advise employees and applicants for 
employment of available training programs and entrance requirements for 
each.
    d. The contractor will periodically review the training and 
promotion potential of minority group and women employees and will 
encourage eligible employees to apply for such training and promotion.
    8. Unions. If the contractor relies in whole or in part upon unions 
as a source of employees, the contractor will use his/her best efforts 
to obtain the cooperation of such

[[Page 43]]

unions to increase opportunities for minority groups and women within 
the unions, and to effect referrals by such unions of minority and 
female employees. Actions by the contractor either directly or through a 
contractor's association acting as agent will include the procedures set 
forth below:
    a. The contractor will use best efforts to develop, in cooperation 
with the unions, joint training programs aimed toward qualifying more 
minority group members and women for membership in the unions and 
increasing the skills of minority group employees and women so that they 
may qualify for higher paying employment.
    b. The contractor will use best efforts to incorporate an equal 
employment opportunity clause into each union agreement to the end that 
such union will be contractually bound to refer applicants without 
regard to their race, color, religion, sex, or national origin.
    c. The contractor is to obtain information as to the referral 
practices and policies of the labor union except that to the extent such 
information is within the exclusive possession of the labor union and 
such labor union refuses to furnish such information to the contractor, 
the contractor shall so certify to the State highway department and 
shall set forth what efforts have been made to obtain such information.
    d. In the event the union is unable to provide the contractor with a 
reasonable flow of minority and women referrals within the time limit 
set forth in the collective bargaining agreement, the contractor will, 
through independent recruitment efforts, fill the employment vacancies 
without regard to race, color, religion, sex, or national origin; making 
full efforts to obtain qualified and/or qualifiable minority group 
persons and women. (The U.S. Department of Labor has held that it shall 
be no excuse that the union with which the contractor has a collective 
bargaining agreement providing for exclusive referral failed to refer 
minority employees.) In the event the union referral practice prevents 
the contractor from meeting the obligations pursuant to Executive Order 
11246, as amended, and these special provisions, such contractor shall 
immediately notify the State highway agency.
    9. Subcontracting. a. The contractor will use his best efforts to 
solicit bids from and to utilize minority group subcontractors or 
subcontractors with meaningful minority group and female representation 
among their employees. Contractors shall obtain lists of minority-owned 
construction firms from State highway agency personnel.
    b. The contractor will use his best efforts to ensure subcontractor 
compliance with their equal employment opportunity obligations.
    10. Records and Reports. a. The contractor will keep such records as 
are necessary to determine compliance with the contractor's equal 
employment opportunity obligations. The records kept by the contractor 
will be designed to indicate:
    (1) The number of minority and nonminority group members and women 
employed in each work classification on the project.
    (2) The progress and efforts being made in cooperation with unions 
to increase employment opportunities for minorities and women 
(applicable only to contractors who rely in whole or in part on unions 
as a source of their work force),
    (3) The progress and efforts being made in locating, hiring, 
training, qualifying, and upgrading minority and female employees, and
    (4) The progress and efforts being made in securing the services of 
minority group subcontractors or subcontractors with meaningful minority 
and female representation among their employees.
    b. All such records must be retained for a period of three years 
following completion of the contract work and shall be available at 
reasonable times and places for inspection by authorized representatives 
of the State highway agency and the Federal Highway Administration.
    c. The contractors will submit an annual report to the State highway 
agency each July for the duration of the project, indicating the number 
of minority, women, and non-minority group employees currently engaged 
in each work classification required by the contract work. This 
information is to be reported on Form PR 1391. If on-the-job training is 
being required by ``Training Special Provision'', the contractor will be 
required to furnish Form FHWA 1409.

[40 FR 28053, July 3, 1975, as amended at 43 FR 19386, May 5, 1978. 
Correctly redesignated at 46 FR 21156, Apr. 9, 1981]

    Appendix B to Subpart A of Part 230--Training Special Provisions

    This Training Special Provision supersedes subparagraph 7b of the 
Special Provision entitled ``Specific Equal Employment Opportunity 
Responsibilities,'' (Attachment 1), and is in implementation of 23 
U.S.C. 140(a).
    As part of the contractor's equal employment opportunity affirmative 
action program training shall be provided as follows:
    The contractor shall provide on-the-job training aimed at developing 
full journeymen in the type of trade or job classification involved.
    The number of trainees to be trained under the special provisions 
will be ________ (amount to be filled in by State highway department).
    In the event that a contractor subcontracts a portion of the 
contract work, he shall determine how many, if any, of the

[[Page 44]]

trainees are to be trained by the subcontractor, provided, however, that 
the contractor shall retain the primary responsibility for meeting the 
training requirements imposed by this special provision. The contractor 
shall also insure that this training special provision is made 
applicable to such subcontract. Where feasible, 25 percent of 
apprentices or trainees in each occupation shall be in their first year 
of apprenticeship or training.
    The number of trainees shall be distributed among the work 
classifications on the basis of the contractor's needs and the 
availability of journeymen in the various classifications within a 
reasonable area of recruitment. Prior to commencing construction, the 
contractor shall submit to the State highway agency for approval the 
number of trainees to be trained in each selected classification and 
training program to be used. Furthermore, the contractor shall specify 
the starting time for training in each of the classifications. The 
contractor will be credited for each trainee employed by him on the 
contract work who is currently enrolled or becomes enrolled in an 
approved program and will be reimbursed for such trainees as provided 
hereinafter.
    Training and upgrading of minorities and women toward journeymen 
status is a primary objective of this Training Special Provision. 
Accordingly, the contractor shall make every effort to enroll minority 
trainees and women (e.g., by conducting systematic and direct 
recruitment through public and private sources likely to yield minority 
and women trainees) to the extent that such persons are available within 
a reasonable area of recruitment. The contractor will be responsible for 
demonstrating the steps that he has taken in pursuance thereof, prior to 
a determination as to whether the contractor is in compliance with this 
Training Special Provision. This training commitment is not intended, 
and shall not be used, to discriminate against any applicant for 
training, whether a member of a minority group or not.
    No employee shall be employed as a trainee in any classification in 
which he has successfully completed a training course leading to 
journeyman status or in which he has been employed as a journeyman. The 
contractor should satisfy this requirement by including appropriate 
questions in the employee application or by other suitable means. 
Regardless of the method used the contractor's records should document 
the findings in each case.
    The minimum length and type of training for each classification will 
be as established in the training program selected by the contractor and 
approved by the State highway agency and the Federal Highway 
Administration. The State highway agency and the Federal Highway 
Administration shall approve a program if it is reasonably calculated to 
meet the equal employment opportunity obligations of the contractor and 
to qualify the average trainee for journeyman status in the 
classification concerned by the end of the training period. Furthermore, 
apprenticeship programs registered with the U.S. Department of Labor, 
Bureau of Apprenticeship and Training, or with a State apprenticeship 
agency recognized by the Bureau and training programs approved but not 
necessarily sponsored by the U.S. Department of Labor, Manpower 
Administration, Bureau of Apprenticeship and Training shall also be 
considered acceptable provided it is being administered in a manner 
consistent with the equal employment obligations of Federal-aid highway 
construction contracts. Approval or acceptance of a training program 
shall be obtained from the State prior to commencing work on the 
classification covered by the program. It is the intention of these 
provisions that training is to be provided in the construction crafts 
rather than clerk-typists or secretarial-type positions. Training is 
permissible in lower level management positions such as office 
engineers, estimators, timekeepers, etc., where the training is oriented 
toward construction applications. Training in the laborer classification 
may be permitted provided that significant and meaningful training is 
provided and approved by the division office. Some offsite training is 
permissible as long as the training is an integral part of an approved 
training program and does not comprise a significant part of the overall 
training.
    Except as otherwise noted below, the contractor will be reimbursed 
80 cents per hour of training given an employee on this contract in 
accordance with an approved training program. As approved by the 
engineer, reimbursement will be made for training persons in excess of 
the number specified herein. This reimbursement will be made even though 
the contractor receives additional training program funds from other 
sources, provided such other does not specifically prohibit the 
contractor from receiving other reimbursement. Reimbursement for offsite 
training indicated above may only be made to the contractor where he 
does one or more of the following and the trainees are concurrently 
employed on a Federal-aid project; contributes to the cost of the 
training, provides the instruction to the trainee or pays the trainee's 
wages during the offsite training period.
    No payment shall be made to the contractor if either the failure to 
provide the required training, or the failure to hire the trainee as a 
journeyman, is caused by the contractor and evidences a lack of good 
faith on the part of the contractor in meeting the requirements of this 
Training Special Provision. It is normally expected that a trainee will 
begin his training on the project as soon

[[Page 45]]

as feasible after start of work utilizing the skill involved and remain 
on the project as long as training opportunities exist in his work 
classification or until he has completed his training program. It is not 
required that all trainees be on board for the entire length of the 
contract. A contractor will have fulfilled his responsibilities under 
this Training Special Provision if he has provided acceptable training 
to the number of trainees specified. The number trained shall be 
determined on the basis of the total number enrolled on the contract for 
a significant period.
    Trainees will be paid at least 60 percent of the appropriate minimum 
journeyman's rate specified in the contract for the first half of the 
training period, 75 percent for the third quarter of the training 
period, and 90 percent for the last quarter of the training period, 
unless apprentices or trainees in an approved existing program are 
enrolled as trainees on this project. In that case, the appropriate 
rates approved by the Departments of Labor or Transportation in 
connection with the existing program shall apply to all trainees being 
trained for the same classification who are covered by this Training 
Special Provision.
    The contractor shall furnish the trainee a copy of the program he 
will follow in providing the training. The contractor shall provide each 
trainee with a certification showing the type and length of training 
satisfactorily completed.
    The contractor will provide for the maintenance of records and 
furnish periodic reports documenting his performance under this Training 
Special Provision.

[40 FR 28053, July 3, 1975. Correctly redesignated at 46 FR 21156, Apr. 
9, 1981]

[[Page 46]]


                   Appendix C to Subpart A of Part 230
      [GRAPHIC] [TIFF OMITTED] TC14OC91.000
      

[[Page 47]]


                   Appendix D to Subpart A of Part 230
      [GRAPHIC] [TIFF OMITTED] TC14OC91.001
      
                  General Information and Instructions

[[Page 48]]



Alabama.....................     01-04  Montana...............     30-08
Alaska......................     02-10  Nebraska..............     31-07
Arizona.....................     04-09  Nevada................     32-09
Arkansas....................     05-06  New Hampshire.........     33-01
California..................     06-09  New Jersey............     34-01
Colorado....................     08-08  New Mexico............     35-06
Delaware....................     10-03  North Carolina........     37-04
District of Columbia........     11-03  North Dakota..........     38-08
Florida.....................     12-04  Ohio..................     39-05
Georgia.....................     13-04  Oklahoma..............     40-06
Hawaii......................     15-09  Oregon................     41-10
Idaho.......................     16-10  Pennsylvania..........     42-03
Illinois....................     17-05  Puerto Rico...........     43-01
Iowa........................     19-07  South Carolina........     45-04
Kansas......................     20-07  South Dakota..........     46-08
Kentucky....................     21-04  Tennessee.............     47-04
Louisiana...................     22-06  Texas.................     48-06
Maine.......................     23-01  Utah..................     49-08
Maryland....................     24-03  Vermont...............     50-01
Massachusetts...............     25-01  Virginia..............     51-03
Michigan....................     26-05  Washington............     53-10
Minnesota...................     27-05  West Virginia.........     54-03
Mississippi.................     28-04  Wisconsin.............     55-05
Missouri....................     29-07  Wyoming...............     56-08
 

(23 U.S.C. sec. 140(a), 315, 49 CFR 1.48(b))

[44 FR 46832, Aug. 8, 1979. Correctly redesignated at 46 FR 21156, Apr. 
9, 1981, and amended at 56 FR 4721, Feb. 6, 1991]

           Appendixes E-F to Subpart A of Part 230 [Reserved]

Appendix G to Subpart A of Part 230--Special Reporting Requirements for 
                 ``Hometown'' or ``Imposed'' Plan Areas

    In addition to the reporting requirements set forth elsewhere in 
this contract the contractor and the subcontractors holding 
subcontracts, not including material suppliers, of $10,000 or more, 
shall submit for every month of July during which work is performed, 
employment data as contained under Form PR-1391 (appendix C to 23 CFR 
part 230) and in accordance with the instructions included thereon.

[40 FR 28053, July 3, 1975. Correctly redesignated at 46 FR 21156, Apr. 
9, 1981]



 Subpart B--Supportive Services for Minority, Disadvantaged, and Women 
                          Business Enterprises

    Source: 50 FR 51243, Dec. 16, 1985, unless otherwise noted.



Sec. 230.201  Purpose.

    To prescribe the policies, procedures, and guidance to develop, 
conduct, and administer supportive services assistance programs for 
minority, disadvantaged, and women business enterprises.



Sec. 230.202  Definitions.

    (a) Minority Business Enterprise, as used in this subpart, refers to 
all small businesses which participate in the

[[Page 49]]

Federal-aid highway program as a minority business enterprise (MBE), 
women business enterprise (WBE), or disadvantaged business enterprise 
(DBE), all defined under 49 CFR part 23. This expanded definition is 
used only in this subpart as a simplified way of defining the firms 
eligible to benefit from this supportive services program.
    (b) Supportive Services means those services and activities provided 
in connection with minority business enterprise programs which are 
designed to increase the total number of minority businesses active in 
the highway program and contribute to the growth and eventual self-
sufficiency of individual minority businesses so that such businesses 
may achieve proficiency to compete, on an equal basis, for contracts and 
subcontracts.
    (c) State highway agency means that department, commission, board, 
or official of any State charged by its laws with the responsibility for 
highway construction. The term State is considered equivalent to State 
highway agency if the context so implies.



Sec. 230.203  Policy.

    Based on the provisions of Pub. L. 97-424, dated January 6, 1983, it 
is the policy of the Federal Highway Administration (FHWA) to promote 
increased participation of minority business enterprises in Federal-aid 
highway contracts in part through the development and implementation of 
cost effective supportive services programs through the State highway 
agencies.



Sec. 230.204  Implementation of supportive services.

    (a) Subject to the availability of funds under 23 U.S.C. 140(c), the 
State highway agency shall establish procedures to develop, conduct, and 
administer minority business enterprise training and assistance programs 
specifically for the benefit of women and minority businesses. 
Supportive services funds allocated to the States shall not be used to 
finance the training of State highway agency employees or to provide 
services in support of such training. State highway agencies are not 
required to match funds allocated to them under this section. Individual 
States are encouraged to be actively involved in the provision of 
supportive services. Such involvement can take the form of staff, 
funding, and/or direct assistance to augment the supportive services 
efforts financed by Federal-aid funds.
    (b) State highway agencies shall give preference to the following 
types of services:
    (1) Services relating to identification, prequalification, and 
certification assistance, with emphasis on increasing the total number 
of legitimate minority business enterprises participating in the 
Federal-aid highway program;
    (2) Services in connection with estimating, bidding, and technical 
assistance designed to develop and improve the capabilities of minority 
businesses and assist them in achieving proficiency in the technical 
skills involved in highway construction;
    (3) Services designed to develop and improve the immediate and long-
term business management, recordkeeping, and financial accounting 
capabilities;
    (4) Services to assist minority business enterprises to become 
eligible for and to obtain bonding and financial assistance;
    (5) Services relating to verification procedures to ensure that only 
bona fide minority business enterprises are certified as eligible for 
participation in the Federal-aid highway program;
    (6) Follow-up services to ascertain the outcome of training and 
assistance being provided; and
    (7) Other services which contribute to long-term development, 
increased opportunities, and eventual self-sufficiency of minority 
business enterprises.
    (c) A detailed work statement of the supportive services which the 
State highway agency considers to meet the guidance under this 
regulation and a program plan for meeting the requirements of paragraph 
(b) of this section and accomplishing other objectives shall be 
submitted to the FHWA for approval.
    (d) State highway agencies which desire to provide or obtain 
services other than those listed in paragraph (b) of this section shall 
submit their proposals to the FHWA for approval.

[[Page 50]]

    (e) When the State highway agency provides supportive services by 
contract, formal advertising is not required by FHWA; however, the State 
highway agency shall solicit proposals from such qualified sources as 
will assure the competitive nature of the procurement. The evaluation of 
proposals by the State highway agency must include consideration of the 
proposer's ability to effect a productive relationship with majority and 
minority contractors, contractors' associations, minority groups, and 
other persons or organizations whose cooperation and assistance will 
increase the opportunities for minority business enterprises to compete 
for and perform contracts and subcontracts.
    (f) In the selection of contractors to perform supportive services, 
State highway agencies shall make conscientious efforts to search out, 
and utilize the services of qualified minority or women organizations, 
or minority or women enterprises.
    (g) As a minimum, State highway agency contracts to obtain 
supportive services shall include the following provisions:
    (1) A statement that a primary purpose of the supportive services is 
to increase the total number of minority firms participating in the 
Federal-aid highway program and to contribute to the growth and eventual 
self-sufficiency of minority firms;
    (2) A statement that supportive services shall be provided only to 
those minority business enterprises determined to be eligible for 
participation in the Federal-aid highway program in accordance with 49 
CFR part 23 and have a work specialty related to the highway 
construction industry;
    (3) A clear and complete statement of the services to be provided 
under the contract, such as technical assistance, managerial assistance, 
counseling, certification assistance, and follow-up procedures as set 
forth in Sec. 230.204(b) of this part;
    (4) The nondiscrimination provisions required by Title VI of the 
Civil Rights Act of 1964 as set forth in Form FHWA-1273, Required 
Contract Provisions, Federal-Aid Construction Contracts, \1\ and a 
statement of nondiscrimination in employment because of race, color, 
religion, sex, or national origin;
---------------------------------------------------------------------------

    \1\ Form FHWA-1273 is available for inspection and copying at the 
locations given in 49 CFR part 7, appendix D, under Document Inspection 
Facilities, and at all State highway agencies.
---------------------------------------------------------------------------

    (5) The establishment of a definite period of contract performance 
together with, if appropriate, a schedule stating when specific 
supportive services are to be provided;
    (6) Monthly or quarterly reports to the State highway agency 
containing sufficient data and narrative content to enable evaluation of 
both progress and problems;
    (7) The basis of payment;
    (8) An estimated schedule for expenditures;
    (9) The right of access to records and the right to audit shall be 
granted to authorize State highway agency and FHWA officials;
    (10) Noncollusion certification;
    (11) A requirement that the contractor provide all information 
necessary to support progress payments if such are provided for in the 
contract; and
    (12) A termination clause.
    (h) The State highway agency is to furnish copies of the reports 
received under paragraph(g)(6) of this section to the FHWA division 
office.

[50 FR 51243, Dec. 16, 1985, as amended at 52 FR 36922, Oct. 2, 1987]



Sec. 230.205  Supportive services funds obligation.

    Supportive services funds shall be obligated in accordance with the 
procedures set forth in Sec. 230.117(b) of this part. The point of 
obligation is defined as that time when the FHWA has approved a detailed 
work statement for the supportive services.



Sec. 230.206  Monitoring supportive services.

    Supportive services programs shall be continually monitored and 
evaluated by the State highway agency so that needed improvements can be 
identified and instituted. This requires the documentation of valid 
effectiveness

[[Page 51]]

measures by which the results of program efforts may be accurately 
assessed.



Sec. 230.207  Sources of assistance.

    It is the policy of the FHWA that all potential sources of 
assistance to minority business enterprises be utilized. The State 
highway agency shall take actions to ensure that supportive services 
contracts reflect the availability of all sources of assistance in order 
to maximize resource utilization and avoid unnecessary duplication.



  Subpart C--State Highway Agency Equal Employment Opportunity Programs

    Source: 41 FR 28270, July 9, 1976, unless otherwise noted.



Sec. 230.301  Purpose.

    The purpose of the regulations in this subpart is to set forth 
Federal Highway Administration (FHWA) Federal-aid policy and FHWA and 
State responsibilities relative to a State highway agency's internal 
equal employment opportunity program and for assuring compliance with 
the equal employment opportunity requirements of federally-assisted 
highway construction contracts.



Sec. 230.303  Applicability.

    The provisions of this subpart are applicable to all States that 
receive Federal financial assistance in connection with the Federal-aid 
highway program.



Sec. 230.305  Definitions.

    As used in this subpart, the following definitions apply:
    (a) Affirmative Action Plan means:
    (1) With regard to State highway agency work forces, a written 
document detailing the positive action steps the State highway agency 
will take to assure internal equal employment opportunity (internal 
plan).
    (2) With regard to Federal-aid construction contract work forces, 
the Federal equal employment opportunity bid conditions, to be enforced 
by a State highway agency in the plan areas established by the Secretary 
of Labor and FHWA special provisions in nonplan areas (external plan).
    (b) Equal employment opportunity program means the total State 
highway agency program, including the affirmative action plans, for 
ensuring compliance with Federal requirements both in State highway 
agency internal employment and in employment on Federal-aid construction 
projects.
    (c) Minority groups. An employee may be included in the minority 
group to which he or she appears to belong, or is regarded in the 
community as belonging. As defined by U.S. Federal agencies for 
employment purposes, minority group persons in the U.S. are identified 
as Blacks (not of Hispanic origin), Hispanics, Asian or Pacific 
Islanders, and American Indians or Alaskan Natives.
    (d) Racial/ethnic identification. For the purpose of this regulation 
and any accompanying report requirements, an employee may be included in 
the group to which he or she appears to belong, identifies with, or is 
regarded in the community as belonging. However, no person should be 
counted in more than one racial/ethnic category. The following group 
categories will be used:
    (1) The category White (not of Hispanic origin): All persons having 
origins in any of the original peoples of Europe, North Africa, the 
Middle East, or the Indian Subcontinent.
    (2) The category Black (not of Hispanic origin): All persons having 
origins in any of the Black racial groups.
    (3) The category Hispanic: All persons of Mexican, Puerto Rican, 
Cuban, Central or South American, or other Spanish culture or origin, 
regardless of race.
    (4) The category Asian or Pacific Islanders: All persons having 
origins in any of the original peoples of the Far East, Southeast Asia, 
or the Pacific Islands. This area includes, for example, China, Japan, 
Korea, the Philippine Islands, and Samoa.
    (5) The category American Indian or Alaskan Native: All persons 
having origins in any of the original peoples of North America.
    (e) State means any of the 50 States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, Guam, American 
Samoa, and the Virgin Islands.

[[Page 52]]

    (f) State highway agency means that department, commission, board, 
or official of any State charged by its laws with the responsibility for 
highway construction. The term State should be considered equivalent to 
State highway agency if the context so implies.

[41 FR 28270, July 9, 1976, as amended at 41 FR 46293, Oct. 20, 1976]



Sec. 230.307  Policy.

    Every employee and representative of State highway agencies shall 
perform all official equal employment opportunity actions in an 
affirmative manner, and in full accord with applicable statutes, 
executive orders, regulations, and policies enunciated thereunder, to 
assure the equality of employment opportunity, without regard to race, 
color, religion, sex, or national origin both in its own work force and 
in the work forces of contractors, subcontractors, and material 
suppliers engaged in the performance of Federal-aid highway construction 
contracts.



Sec. 230.309  Program format.

    It is essential that a standardized Federal approach be taken in 
assisting the States in development and implementation of EEO programs. 
The format set forth in appendix A provides that standardized approach. 
State equal employment opportunity programs that meet or exceed the 
prescribed standards will comply with basic FHWA requirements.



Sec. 230.311  State responsibilities.

    (a) Each State highway agency shall prepare and submit an updated 
equal employment opportunity program, one year from the date of approval 
of the preceding program by the Federal Highway Administrator, over the 
signature of the head of the State highway agency, to the Federal 
Highway Administrator through the FHWA Division Administrator. The 
program shall consist of the following elements:
    (1) The collection and analysis of internal employment data for its 
entire work force in the manner prescribed in part II, paragraph III of 
appendix A; and
    (2) The equal employment opportunity program, including the internal 
affirmative action plan, in the format and manner set forth in appendix 
A.
    (b) In preparation of the program required by Sec. 230.311(a), the 
State highway agency shall consider and respond to written comments from 
FHWA regarding the preceding program.



Sec. 230.313  Approval procedure.

    After reviewing the State highway agency equal employment 
opportunity program and the summary analysis and recommendations from 
the FHWA regional office, the Washington Headquarters Office of Civil 
Rights staff will recommend approval or disapproval of the program to 
the Federal Highway Administrator. The State highway agency will be 
advised of the Administrator's decision. Each program approval is 
effective for a period of one year from date of approval.

    Appendix A to Subpart C of Part 230--State Highway Agency Equal 
                     Employment Opportunity Programs

    Each State highway agency's (SHA) equal employment opportunity (EEO) 
program shall be in the format set forth herein and shall address 
Contractor Compliance (part I) and SHA Internal Employment (part II), 
including the organizational structure of the SHA total EEO Program 
(internal and external).

                      part i--contractor compliance

    I. Organization and structure. A. Statehighway agency EEO 
Coordinator (External) and staff support. 1. Describe the organizational 
location and responsibilities of the State highway agency EEO 
Coordinator. (Provided organization charts of the State highway agency 
and of the EEO staff.)
    2. Indicate whether full or part-time; if part-time, indicate 
percentage of time devoted to EEO.
    3. Indicate length of time in position, civil rights experience and 
training, and supervision.
    4. Indicate whether compliance program is centralized or 
decentralized.
    5. Identify EEO Coordinator's staff support (full- and part-time) by 
job title and indicate areas of their responsibilities.
    6. Identify any other individuals in the central office having a 
responsibility for the implementation of this program and describe their 
respective roles and training received in program area.
    B. District or division personnel. 1. Describe the responsibilities 
and duties of any district

[[Page 53]]

EEO personnel. Identify to whom they report.
    2. Explain whether district EEO personnel are full-time or have 
other responsibilities such as labor compliance or engineering.
    3. Describe training provided for personnel having EEO compliance 
responsibility.
    C. Project personnel. Describe the EEO role of project personnel.
    II. Compliance procedures. A. Applicable directives. 1. FHWA 
Contract Compliance Procedures.
    2. EEO Special Provisions (FHWA Federal-Aid Highway Program Manual, 
vol. 6, chap. 4, sec. 1, subsec. 2, Attachment 1) \ 1\
---------------------------------------------------------------------------

    \1\ The Federal-Aid Highway Program Manual is available for 
inspection and copying at the Federal Highway Administration (FHWA), 400 
7th St., SW., Washington, DC 20590, or at FHWA offices listed in 49 CFR 
part 7, appendix D.
---------------------------------------------------------------------------

    3. Training Special Provisions (FHWA Federal-Aid Highway Program 
Manual, vol. 6, chap. 4, sec. 1, subsec. 2, Attachment 2) \1\
    4. FHWA Federal-Aid Highway Program Manual, vol. 6, chap. 4, sec. 1, 
subsec. 6 (Contract Procedures), and subsec. 8 (Minority Business 
Enterprise). \1\
    B. Implementation. 1. Describe process (methods) of incorporating 
the above FHWA directives into the SHA compliance program.
    2. Describe the methods used by the State to familiarize State 
compliance personnel with all FHWA contract compliance directives. 
Indicate frequency of work shops, training sessions, etc.
    3. Describe the procedure for advising the contractor of the EEO 
contract requirements at any preconstruction conference held in 
connection with a Federal-aid contract.
    III. Accomplishments. Describe accomplishments in the construction 
EEO compliance program during the past fiscal year.
    A. Regular project compliance review program. This number should 
include at least all of the following items:
    1. Number of compliance reviews conducted.
    2. Number of contractors reviewed.
    3. Number of contractors found in compliance.
    4. Number of contractors found in noncompliance.
    5. Number of show cause notices issued.
    6. Number of show cause notices rescinded.
    7. Number of show cause actions still under conciliation and 
unresolved.
    8. Number of followup reviews conducted.
    (Note: In addition to information requested in items 4-8 above, 
include a brief summary of total show cause and followup activities--
findings and achievements.)
    B. Consolidated compliance reviews. 1. Identify the target areas 
that have been reviewed since the inception of the consolidated 
compliance program. Briefly summarize total findings.
    2. Identify any significant impact or effect of this program on 
contractor compliance.
    C. Home office reviews. If the State conducts home office reviews, 
describe briefly the procedures followed by State.
    D. Major problems encountered. Describe major problems encountered 
in connection with any review activities during the past fiscal year.
    E. Major breakthroughs. Comment briefly on any major breakthrough or 
other accomplishment significant to the compliance review program.
    IV. Areawide plans/Hometown and Imposed (if applicable). A. Provide 
overall analysis of the effectiveness of each areawide plan in the 
State.
    B. Indicate by job titles the number of State personnel involved in 
the collection, consolidation, preparation, copying, reviewing, 
analysis, and transmittal of area plan reports (Contracting Activity and 
Post Contract Implementation). Estimate the amount of time (number of 
hours) spent collectively on this activity each month. How does the 
State use the plan report data?
    C. Identify Office of Federal Contract Compliance Programs (OFCCP) 
area plan audits or compliance checks in which State personnel 
participated during the last fiscal year. On the average, how many hours 
have been spent on these audits and/or checks during the past fiscal 
year?
    D. Describe the working relationship of State EEO compliance 
personnel with representatives of plan administrative committee(s).
    E. Provide recommendations for improving the areawide plan program 
and the reporting system.
    V. Contract sanctions. A. Describe the procedures used by the State 
to impose contract sanctions or institute legal proceedings.
    B. Indicate the State or Federal laws which are applicable.
    C. Does the State withhold a contractor's progress payments for 
failure to comply with EEO requirements? If so, identify contractors 
involved in such actions during the past fiscal year. If not, identify 
other actions taken.
    VI. Complaints. A. Describe the State's procedures for handling 
discrimination complaints against contractors.
    B. If complaints are referred to a State fair employment agency or 
similar agency, describe the referral procedure.
    C. Identify the Federal-aid highway contractors that have had 
discrimination complaints filed against them during the past fiscal year 
and provide current status.
    VII. External training programs, including supportive services. A. 
Describe the State's process for reviewing the work classifications of 
trainees to determine that there is a

[[Page 54]]

proper and reasonable distribution among appropriate craft.
    B. Describe the State's procedures for identifying the number of 
minorities and women who have completed training programs.
    C. Describe the extent of participation by women in construction 
training programs.
    D. Describe the efforts made by the State to locate and use the 
services of qualified minority and female supportive service 
consultants. Indicate if the State's supportive service contractor is a 
minority or female owned enterprise.
    E. Describe the extent to which reports from the supportive service 
contractors provide sufficient data to evaluate the status of training 
programs, with particular reference to minorities and women.
    VIII. Minority business enterprise program. FHPM 6-4-1-8 sets forth 
the FHWA policy regarding the minority business enterprise program. The 
implementation of this program should be explained by responding to the 
following:
    A. Describe the method used for listing of minority contractors 
capable of, or interested in, highway construction contracting or 
subcontracting. Describe the process used to circulate names of 
appropriate minority firms and associations to contractors obtaining 
contract proposals.
    B. Describe the State's procedure for insuring that contractors take 
action to affirmatively solicit the interest, capability, and prices of 
potential minority subcontractors.
    C. Describe the State's procedure for insuring that contractors have 
designated liaison officers to administer the minority business 
enterprise program in an effective manner. Specify resource material, 
including contracts, which the State provides to liaison officers.
    D. Describe the action the State has taken to meet its goals for 
prequalification or licensing of minority business. Include dollar goals 
established for the year, and describe what criteria or formula the 
State has adopted for setting such goals. If it is different from the 
previous year, describe in detail.
    E. Outline the State's procedure for evaluating its 
prequalification/licensing requirements.
    F. Identify instances where the State has waived prequalification 
for subcontractors on Federal-aid construction work or for prime 
contractors on Federal-aid contracts with an estimated dollar value 
lower than $100,000.
    G. Describe the State's methods of monitoring the progress and 
results of its minority business enterprise efforts.
    IX. Liaison. Describe the liaison established by the State between 
public (State, county, and municpal) agencies and private organizations 
involved in EEO programs. How is the liaison maintained on a continuing 
basis?
    X. Innovative programs. Identify any innovative EEO programs or 
management procedures initiated by the State and not previously covered.

                part ii--state highway agency employment

    I. General. The State highway agency's (SHA) internal program is an 
integral part of the agency's total activities. It should include the 
involvement, commitment and support of executives, managers, supervisors 
and all other employees. For effective administration and implementation 
of the EEO Program, an affirmative action plan (AAP) is required. The 
scope of an EEO program and an AAP must be comprehensive, covering all 
elements of the agency's personnel management policies and practices. 
The major part of an AAP must be recognition and removal of any barriers 
to equal employment opportunity, identification of problem areas and of 
persons unfairly excluded or held back and action enabling them to 
compete for jobs on an equal basis. An effective AAP not only benefits 
those who have been denied equal employment opportunity but will also 
greatly benefit the organization which often has overlooked, screened 
out or underutilized the great reservoir of untapped human resources and 
skills, especially among women and minority groups.
    Set forth are general guidelines designed to assist the State 
highway agencies in implementing internal programs, including the 
development and implementation of AAP's to ensure fair and equal 
treatment for all persons, regardless of race, color, religion, sex or 
national origin in all employment practices.
    II. Administration and implementation. The head of each State 
highway agency is responsible for the overall administration of the 
internal EEO program, including the total integration of equal 
opportunity into all facets of personnel management. However, specific 
program responsibilities should be assigned for carrying out the program 
at all management levels.
    To ensure effectiveness in the implementation of the internal EEO 
program, a specific and realistic AAP should be developed. It should 
include both short and long-range objectives, with priorities and target 
dates for achieving goals and measuring progress, according to the 
agency's individual need to overcome existing problems.
    A. State Highway Agency Affirmative Action Officer (internal). 1. 
Appointment of Affirmative Action Officer. The head of the SHA should 
appoint a qualified Affirmative Action (AA) Officer (Internal EEO 
Officer) with responsibility and authority to implement the internal EEO 
program. In making the selection, the following factors should be 
considered:

[[Page 55]]

    a. The person appointed should have proven ability to accomplish 
major program goals.
    b. Managing the internal EEO program requires a major time 
commitment; it cannot be added on to an existing full-time job.
    c. Appointing qualified minority and/or female employees to head or 
staff the program may offer good role models for present and potential 
employees and add credibility to the programs involved. However, the 
most essential requirements for such position(s) are sensitivity to 
varied ways in which discrimination limits job opportunities, commitment 
to program goals and sufficient status and ability to work with others 
in the agency to achieve them.
    2. Responsibilities of the Affirmative Action Officer. The 
responsibilities of the AA Officer should include, but not necessarily 
be limited to:
    a. Developing the written AAP.
    b. Publicizing its content internally and externally.
    c. Assisting managers and supervisors in collecting and analyzing 
employment data, identifying problem areas, setting goals and timetables 
and developing programs to achieve goals. Programs should include 
specific remedies to eliminate any discriminatory practices discovered 
in the employment system.
    d. Handling and processing formal discrimination complaints.
    e. Designing, implementing and monitoring internal audit and 
reporting systems to measure program effectiveness and to determine 
where progress has been made and where further action is needed.
    f. Reporting, at least quarterly, to the head of the SHA on progress 
and deficiencies of each unit in relation to agency goals.
    g. In addition, consider the creation of:
    (1) An EEO Advisory Committee, whose membership would include top 
management officials,
    (2) An EEO Employee Committee, whose membership would include rank 
and file employees, with minority and female representatives from 
various job levels and departments to meet regularly with the AA 
officer, and
    (3) An EEO Counseling Program to attempt informal resolution of 
discrimination complaints.
    B. Contents of an affirmative action plan. The Affirmative Action 
Plan (AAP) is an integral part of the SHA's EEO program. Although the 
style and format of AAP's may vary from one SHA to another, the basic 
substance will generally be the same. The essence of the AAP should 
include, but not necessarily be limited to:
    1. Inclusion of a strong agency policy statement of commitment to 
EEO.
    2. Assignment of responsibility and authority for program to a 
qualified individual.
    3. A survey of the labor market area in terms of population makeup, 
skills, and availability for employment.
    4. Analyzing the present work force to identify jobs, departments 
and units where minorities and females are underutilized.
    5. Setting specific, measurable, attainable hiring and promotion 
goals, with target dates, in each area of underutilization.
    6. Making every manager and supervisor responsible and accountable 
for meeting these goals.
    7. Reevaluating job descriptions and hiring criteria to assure that 
they reflect actual job needs.
    8. Finding minorities and females who are qualified or qualifiable 
to fill jobs.
    9. Getting minorities and females into upward mobility and relevant 
training programs where they have not had previous access.
    10. Developing systems to monitor and measure progress regularly. If 
results are not satisfactory to meet goals, determine the reasons and 
make necessary changes.
    11. Developing a procedure whereby employees and applicants may 
process allegations of discrimination to an impartial body without fear 
of reprisal.
    C. Implementation of an affirmative action plan. The written AAP is 
the framework and management tool to be used at all organizational 
levels to actively implement, measure and evaluate program progress on 
the specific action items which represent EEO program problems or 
deficiencies. The presence of a written plan alone does not constitute 
an EEO program, nor is it, in itself, evidence of an ongoing program. As 
a minimum, the following specific actions should be taken.
    1. Issue written equal employment opportunity policy statement and 
affirmative action commitment. To be effective, EEO policy provisions 
must be enforced by top management, and all employees must be made aware 
that EEO is basic agency policy. The head of the SHA (1) should issue a 
firm statement of personal commitment, legal obligation and the 
importance of EEO as an agency goal, and (2) assign specific 
responsibility and accountability to each executive, manager and 
supervisor.
    The statement should include, but not necessarily be limited to, the 
following elements:
    a. EEO for all persons, regardless of race, color, religion, sex or 
national origin as a fundamental agency policy.
    b. Personal commitment to and support of EEO by the head of the SHA.
    c. The requirement that special affirmative action be taken 
throughout the agency to overcome the effects of past discrimination.
    d. The requirement that the EEO program be a goal setting program 
with measurement

[[Page 56]]

and evaluation factors similar to other major agency programs.
    e. Equal opportunity in all employment practices, including (but not 
limited to) recruiting, hiring, transfers, promotions, training, 
compensation, benefits, recognition (awards), layoffs, and other 
terminations.
    f. Responsibility for positive affirmative action in the discharge 
of EEO programs, including performance evaluations of managers and 
supervisors in such functions, will be expected of and shared by all 
management personnel.
    g. Accountability for action or inaction in the area of EEO by 
management personnel.
    2. Publicize the affirmative action plan. a. Internally: (1) 
Distribute written communications from the head of the SHA.
    (2) Include the AAP and the EEO policy statement in agency 
operations manual.
    (3) Hold individual meetings with managers and supervisors to 
discuss the program, their individual responsibilities and to review 
progress.
    (4) Place Federal and State EEO posters on bulletin boards, near 
time clocks and in personnel offices.
    (5) Publicize the AAP in the agency newsletters and other 
publications.
    (6) Present and discuss the AAP as a part of employee orientation 
and all training programs.
    (7) Invite employee organization representatives to cooperate and 
assist in developing and implementing the AAP.
    b. Externally: Distribute the AAP to minority groups and women's 
organizations, community action groups, appropriate State agencies, 
professional organizations, etc.
    3. Develop and implement specific programs to eliminate 
discriminatory barriers and achieve goals. a. Job structuring and upward 
mobility: The AAP should include specific provisions for:
    (1) Periodic classification plan reviews to correct inaccurate 
position descriptions and to ensure that positions are allocated to the 
appropriate classification.
    (2) Plans to ensure that all qualification requirements are closely 
job related.
    (3) Efforts to restructure jobs and establish entry level and 
trainee positions to facilitate progression within occupational areas.
    (4) Career counseling and guidance to employees.
    (5) Creating career development plans for lower grade employees who 
are underutilized or who demonstrate potential for advancement.
    (6) Widely publicizing upward mobility programs and opportunities 
within each work unit and within the total organizational structure.
    b. Recruitment and placement. The AAP should include specific 
provisions for, but not necessarily limited to:
    (1) Active recruitment efforts to support and supplement those of 
the central personnel agency or department, reaching all appropriate 
sources to obtain qualified employees on a nondiscriminatory basis.
    (2) Maintaining contracts with organizations representing minority 
groups, women, professional societies, and other sources of candidates 
for technical, professional and management level positions.
    (3) Ensuring that recruitment literature is relevant to all 
employees, including minority groups and women.
    (4) Reviewing and monitoring recruitment and placement procedures so 
as to assure that no discriminatory practices exist.
    (5) Cooperating with management and the central personnel agency on 
the review and validation of written tests and other selection devices.
    (6) Analyzing the flow of applicants through the selection and 
appointment process, including an analytical review of reasons for 
rejections.
    (7) Monitoring the placement of employees to ensure the assignment 
of work and workplace on a nondiscriminatory basis.
    c. Promotions. The AAP should include specific provisions for, but 
not necessarily limited to:
    1. Establishing an agency-wide merit promotion program, including a 
merit promotion plan, to provide equal opportunity for all persons based 
on merit and without regard to race, color, religion, sex or national 
origin.
    2. Monitoring the operation of the merit promotion program, 
including a review of promotion actions, to assure that requirements 
procedures and practices support EEO program objectives and do not have 
a discriminatory impact in actual operation.
    3. Establishing skills banks to match employee skills with available 
job advancement opportunities.
    4. Evaluating promotion criteria (supervisory evaluations, oral 
interviews, written tests, qualification standards, etc.) and their use 
by selecting officials to identify and eliminate factors which may lead 
to improper ``selection out'' of employees or applicants, particularly 
minorities and women, who traditionally have not had access to better 
jobs. It may be appropriate to require selecting officials to submit a 
written justification when well qualified persons are passed over for 
upgrading or promotion.
    5. Assuring that all job vacancies are posted conspicuously and that 
all employees are encouraged to bid on all jobs for which they feel they 
are qualified.
    6. Publicizing the agency merit promotion program by highlighting 
breakthrough promotions, i.e. advancement of minorities and women to key 
jobs, new career heights, etc.

[[Page 57]]

    d. Training. The AAP should include specific provisions for, but not 
necessarily limited to:
    (1) Requiring managers and supervisors to participate in EEO 
seminars covering the AAP, the overall EEO program and the 
administration of the policies and procedures incorporated therein, and 
on Federal, State and local laws relating to EEO.
    (2) Training in proper interviewing techniques of employees who 
conduct employment selection interviews.
    (3) Training and education programs designed to provide 
opportunities for employees to advance in relation to the present and 
projected manpower needs of the agency and the employees' career goals.
    (4) The review of profiles of training course participants to ensure 
that training opportunities are being offered to all eligible employees 
on an equal basis and to correct any inequities discovered.
    e. Layoffs, recalls, discharges, demotions, and disciplinary 
actions. The standards for deciding when a person shall be terminated, 
demoted, disciplined, laid off or recalled should be the same for all 
employees, including minorities and females. Seemingly neutral practices 
should be reexamined to see if they have a disparate effect on such 
groups. For example, if more minorities and females are being laid off 
because they were the last hired, then, adjustments should be made to 
assure that the minority and female ratios do not decrease because of 
these actions.
    (1) When employees, particularly minorities and females, are 
disciplined, laid off, discharged or downgraded, it is advisable that 
the actions be reviewed by the AA Officer before they become final.
    (2) Any punitive action (i.e. harassment, terminations, demotions), 
taken as a result of employees filing discrimination complaints, is 
illegal.
    (3) The following records should be kept to monitor this area of the 
internal EEO program:
    On all terminations, including layoffs and discharges: indicate 
total number, name, (home address and phone number), employment date, 
termination date, recall rights, sex, racial/ethnic identification (by 
job category), type of termination and reason for termination.
    On all demotions: indicate total number, name, (home address and 
phone number), demotion date, sex, racial/ethnic identification (by job 
category), and reason for demotion.
    On all recalls: indicate total number, name, (home address and phone 
number) recall date, sex, and racial/ethnic identification (by job 
category).
    Exit interviews should be conducted with employees who leave the 
employment of the SHA.
    f. Other personnel actions. The AAP should include specific 
provisions for, but not necessarily limited to:
    (1) Assuring that information on EEO counseling and grievance 
procedures is easily available to all employees.
    (2) A system for processing complaints alleging discrimination 
because of race, color, religion, sex or national origin to an impartial 
body.
    (3) A system for processing grievances and appeals (i.e. 
disciplinary actions, adverse actions, adverse action appeals, etc).
    (4) Including in the performance appraisal system a factor to rate 
manager's and supervisors' performance in discharging the EEO program 
responsibilities assigned to them.
    (5) Reviewing and monitoring the performance appraisal program 
periodically to determine its objectivity and effectiveness.
    (6) Ensuring the equal availability of employee benefits to all 
employees.
    4. Program evaluation. An internal reporting system to continually 
audit, monitor and evaluate programs is essential for a successful AAP. 
Therefore, a system providing for EEO goals, timetables, and periodic 
evaluations needs to be established and implemented. Consideration 
should be given to the following actions:
    a. Defining the major objectives of EEO program evaluation.
    b. The evaluation should be directed toward results accomplished, 
not only at efforts made.
    c. The evaluation should focus attention on assessing the adequacy 
of problem identification in the AAP and the extent to which the 
specific action steps in the plan provide solutions.
    d. The AAP should be reviewed and evaluated at least annually. The 
review and evaluation procedures should include, but not be limited to, 
the following:
    (1) Each bureau, division or other major component of the agency 
should make annual and such other periodic reports as are needed to 
provide an accurate review of the operations of the AAP in that 
component.
    (2) The AA Officer should make an annual report to the head of the 
SHA, containing the overall status of the program, results achieved 
toward established objectives, identity of any particular problems 
encountered and recommendations for corrective actions needed.
    e. Specific, numerical goals and objectives should be established 
for the ensuing year. Goals should be developed for the SHA as a whole, 
as well as for each unit and each job category.
    III. Employment statistical data. A. As a minimum, furnish the most 
recent data on the following:
    1. The total population in the State,

[[Page 58]]

    2. The total labor market in State, with a breakdown by racial/
ethnic identification and sex, and
    3. An analysis of (1) and (2) above, in connection with the 
availability of personnel and jobs within SHA's.
    B. State highway agencies shall use the EEO-4 Form in providing 
current work force data. This data shall reflect only State department 
of transportation/State highway department employment.

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[GRAPHIC] [TIFF OMITTED] TC14OC91.002


[[Page 60]]


[GRAPHIC] [TIFF OMITTED] TC14OC91.003

[41 FR 28270, July 9, 1976, as amended at 41 FR 46294, Oct. 20, 1976]

[[Page 61]]



Subpart D--Construction Contract Equal Opportunity Compliance Procedures

    Source: 41 FR 34239, Aug. 13, 1976, unless otherwise noted.



Sec. 230.401  Purpose.

    The purpose of the regulations in this subpart is to prescribe 
policies and procedures to standardize the implementation of the equal 
opportunity contract compliance program, including compliance reviews, 
consolidated compliance reviews, and the administration of areawide 
plans.



Sec. 230.403  Applicability.

    The procedures set forth hereinafter apply to all nonexempt direct 
Federal and Federal-aid highway construction contracts and subcontracts, 
unless otherwise specified.



Sec. 230.405  Administrative responsibilities.

    (a) Federal Highway Administration (FHWA) responsibilities. (1) The 
FHWA has the responsibility to ensure that contractors meet contractural 
equal opportunity requirements under E.O. 11246, as amended, and title 
23 U.S.C., and to provide guidance and direction to States in the 
development and implementation of a program to assure compliance with 
equal opportunity requirements.
    (2) The Federal Highway Administrator or a designee may inquire into 
the status of any matter affecting the FHWA equal opportunity program 
and, when considered necessary, assume jurisdiction over the matter, 
proceeding in coordination with the State concerned. This is without 
derogation of the authority of the Secretary of Transportation, 
Department of Transportation (DOT), the Director, DOT Departmental 
Office of Civil Rights (OCR) or the Director, Office of Federal Contract 
Compliance Programs (OFCCP), Department of Labor.
    (3) Failure of the State highway agency (SHA) to discharge the 
responsibilities stated in Sec. 230.405(b)(1) may result in DOT's taking 
any or all of the following actions (see appendix A to 23 CFR part 630, 
subpart C ``Federal-aid project agreement''):
    (i) Cancel, terminate, or suspend the Federal-aid project agreement 
in whole or in part;
    (ii) Refrain from extending any further assistance to the SHA under 
the program with respect to which the failure or refusal occurred until 
satisfactory assurance of future compliance has been received from the 
SHA; and
    (iii) Refer the case to an appropriate Federal agency for legal 
proceedings.
    (4) Action by the DOT, with respect to noncompliant contractors, 
shall not relieve a SHA of its responsibilities in connection with these 
same matters; nor is such action by DOT a substitute for corrective 
action utilized by a State under applicable State laws or regulations.
    (b) State responsibilities. (1) The SHA's, as contracting agencies, 
have a responsibility to assure compliance by contractors with the 
requirements of Federal-aid construction contracts, including the equal 
opportunity requirements, and to assist in and cooperate with FHWA 
programs to assure equal opportunity.
    (2) The corrective action procedures outlined herein do not preclude 
normal contract administration procedures by the States to ensure the 
contractor's completion of specific contract equal opportunity 
requirements, as long as such procedures support, and sustain the 
objectives of E.O. 11246, as amended. The State shall inform FHWA of any 
actions taken against a contractor under normal State contract 
administration procedures, if that action is precipitated in whole or in 
part by noncompliance with equal opportunity contract requirements.



Sec. 230.407  Definitions.

    For the purpose of this subpart, the following definitions shall 
apply, unless the context requires otherwise:
    (a) Actions, identified by letter and number, shall refer to those 
items identified in the process flow chart. (Appendix D);
    (b) Affirmative Action Plan means a written positive management tool 
of a total equal opportunity program indicating the action steps for all 
organizational levels of a contractor to initiate

[[Page 62]]

and measure equal opportunity program progress and effectiveness. (The 
Special Provisions [23 CFR part 230 A, appendix A] and areawide plans 
are Affirmative Action Plans.);
    (c) Affirmative Actions means the efforts exerted towards achieving 
equal opportunity through positive, aggressive, and continuous result-
oriented measures to correct past and present discriminatory practices 
and their effects on the conditions and privileges of employment. These 
measures include, but are not limited to, recruitment, hiring, 
promotion, upgrading, demotion, transfer, termination, compensation, and 
training;
    (d) Areawide Plan means an Affirmative Action Plan approved by the 
Department of Labor to increase minority and female utilization in 
crafts of the construction industry in a specified geographical area 
pursuant to E.O. 11246, as amended, and taking the form of either a 
``Hometown'' or an ``Imposed'' Plan.
    (1) Hometown Plan means a voluntary areawide agreement usually 
developed by representatives of labor unions, minority organizations, 
and contractors, and approved by the OFCCP for the purpose of 
implementing the equal employment opportunity requirements pursuant to 
E.O. 11246, as amended;
    (2) Imposed Plan means mandatory affirmative action requirements for 
a specified geographical area issued by OFCCP and, in some areas, by the 
courts;
    (e) Compliance Specialist means a Federal or State employee 
regularly employed and experienced in civil rights policies, practices, 
procedures, and equal opportunity compliance review and evaluation 
functions;
    (f) Consolidated Compliance Review means a review and evaluation of 
all significant construction employment in a specific geographical 
(target) area;
    (g) Construction shall have the meanings set forth in 41 CFR 60-
1.3(e) and 23 U.S.C. 101(a). References in both definitions to expenses 
or functions incidental to construction shall include preliminary 
engineering work in project development or engineering services 
performed by or for a SHA;
    (h) Corrective Action Plan means a contractor's unequivocal written 
and signed commitment outlining actions taken or proposed, with time 
limits and goals, where appropriate to correct, compensate for, and 
remedy each violation of the equal opportunity requirements as specified 
in a list of deficiencies. (Sometimes called a conciliation agreement or 
a letter of commitment.);
    (i) Contractor means, any person, corporation, partnership, or 
unincorporated association that holds a FHWA direct or federally 
assisted construction contract or subcontract regardless of tier;
    (j) Days shall mean calendar days;
    (k) Discrimination means a distinction in treatment based on race, 
color, religion, sex, or national origin;
    (l) Equal Employment Opportunity means the absence of partiality or 
distinction in employment treatment, so that the right of all persons to 
work and advance on the basis of merit, ability, and potential is 
maintained;
    (m) Equal Opportunity Compliance Review means an evaluation and 
determination of a nonexempt direct Federal or Federal-aid contractor's 
or subcontractor's compliance with equal opportunity requirements based 
on:
    (1) Project work force--employees at the physical location of the 
construction activity;
    (2) Area work force--employees at all Federal-aid, Federal, and non-
Federal projects in a specific geographical area as determined under 
Sec. 230.409 (b)(9); or
    (3) Home office work force--employees at the physical location of 
the corporate, company, or other ownership headquarters or regional 
managerial, offices, including ``white collar'' personnel (managers, 
professionals, technicians, and clericals) and any maintenance or 
service personnel connected thereto;
    (n) Equal Opportunity Requirements is a general term used throughout 
this document to mean all contract provisions relative to equal 
employment opportunity (EEO), subcontracting, and training;
    (o) Good Faith Effort means affirmative action measures designed to 
implement the established objectives of an Affirmative Action Plan;
    (p) Show Cause Notice means a written notification to a contractor 
based

[[Page 63]]

on the determination of the reviewer (or in appropriate cases by higher 
level authority) to be in noncompliance with the equal opportunity 
requirements. The notice informs the contractor of the specific basis 
for the determination and provides the opportunity, within 30 days from 
receipt, to present an explanation why sanctions should not be imposed;
    (q) State highway agency (SHA) means that department, commission, 
board, or official of any State charged by its laws with the 
responsibility for highway construction. The term State should be 
considered equivalent to State highway agency. With regard to direct 
Federal contracts, references herein to SHA's shall be considered to 
refer to FHWA regional offices, as appropriate.



Sec. 230.409  Contract compliance review procedures.

    (a) General. A compliance review consists of the following elements:
    (1) Review Scheduling (Actions R-1 and R-2).
    (2) Contractor Notification (Action R-3).
    (3) Preliminary Analysis (Phase I) (Action R-4).
    (4) Onsite Verification and Interviews (Phase II) (Action R-5).
    (5) Exit Conference (Action R-6).
    (6) Compliance Determination and Formal Notification (Actions R-8, 
R-9, R-10, R-11, R-12).

The compliance review procedure, as described herein and in appendix D 
provides for continual monitoring of the employment process. Monitoring 
officials at all levels shall analyze submissions from field offices to 
ensure proper completion of procedural requirements and to ascertain the 
effectiveness of program implementation.
    (b) Review scheduling. (Actions R-1 and R-2). Because construction 
work forces are not constant, particular attention should be paid to the 
proper scheduling of equal opportunity compliance reviews. Priority in 
scheduling equal opportunity compliance reviews shall be given to 
reviewing those contractor's work forces:
    (1) Which hold the greatest potential for employment and promotion 
of minorities and women (particularly in higher skilled crafts or 
occupations);
    (2) Working in areas which have significant minority and female 
labor forces within a reasonable recruitment area;
    (3) Working on projects that include special training provisions; 
and
    (4) Where compliance with equal opportunity requirements is 
questionable. (Based on previous PR-1391's (23 CFR part 230, subpart A, 
appendix C) Review Reports and Hometown Plan Reports).

In addition, the following considerations shall apply:
    (5) Reviews specifically requested by the Washington Headquarters 
shall receive priority scheduling;
    (6) Compliance Reviews in geographical areas covered by areawide 
plans would normally be reviewed under the Consolidated Compliance 
Review Procedures set forth in Sec. 230.415.
    (7) Reviews shall be conducted prior to or during peak employment 
periods.
    (8) No compliance review shall be conducted that is based on a home 
office work force of less than 15 employees unless requested or approved 
by Washington Headquarters; and
    (9) For compliance reviews based on an area work force (outside of 
areawide plan coverage), the Compliance Specialist shall define the 
applicable geographical area by considering:
    (i) Union geographical boundaries;
    (ii) The geographical area from which the contractor recruits 
employees, i.e. reasonable recruitment area;
    (iii) Standard Metropolitan Statistical Area (SMSA) or census 
tracts; and
    (iv) The county in which the Federal or Federal-aid project(s) is 
located and adjacent counties.
    (c) Contractor notification (Action R-3). (1) The Compliance 
Specialist should usually provide written notification to the contractor 
of the pending compliance review at least 2 weeks prior to the onsite 
verification and interviews. This notification shall include the 
scheduled date(s), an outline of the mechanics and basis of the review, 
requisite interviews, and documents required.
    (2) The contractor shall be requested to provide a meeting place on 
the day

[[Page 64]]

of the visit either at the local office of the contractor or at the 
jobsite.
    (3) The contractor shall be requested to supply all of the following 
information to the Compliance Specialist prior to the onsite 
verification and interviews.
    (i) Current Form PR-1391 developed from the most recent payroll;
    (ii) Copies of all current bargaining agreements;
    (iii) Copies of purchase orders and subcontracts containing the EEO 
clause;
    (iv) A list of recruitment sources available and utilized;
    (v) A statement of the status of any action pertaining to employment 
practices taken by the Equal Employment Opportunity Commission (EEOC) or 
other Federal, State, or local agency regarding the contractor or any 
source of employees;
    (vi) A list of promotions made during the past 6 months, to include 
race, national origin, and sex of employee, previous job held, job 
promoted into; and corresponding wage rates;
    (vii) An annotated payroll to show job classification, race, 
national origin and sex;
    (viii) A list of minority- or female-owned companies contacted as 
possible subcontractors, vendors, material suppliers, etc.; and
    (ix) Any other necessary documents or statements requested by the 
Compliance Specialist for review prior to the actual onsite visit.
    (4) For a project review, the prime contractor shall be held 
responsible for ensuring that all active subcontractors are present at 
the meeting and have supplied the documentation listed in 
Sec. 230.409(c)(3).
    (d) Preliminary analysis (Phase I) (Action R-4). Before the onsite 
verification and interviews, the Compliance Specialist shall analyze the 
employment patterns, policies, practices, and programs of the contractor 
to determine whether or not problems exist by reviewing information 
relative to:
    (1) The contractor's current work force;
    (2) The contractor's relationship with referral sources, e.g., 
unions, employment agencies, community action agencies, minority and 
female organizations, etc.;
    (3) The minority and female representation of sources;
    (4) The availability of minorities and females with requisite skills 
in a reasonable recruitment area;
    (5) Any pending EEOC or Department of Justice cases or local or 
State Fair Employment Agency cases which are relevant to the contractor 
and/or the referral sources; and
    (6) The related projects (and/or contractor) files of FHWA regional 
or division and State Coordinator's offices to obtain current 
information relating to the status of the contractor's project(s), 
value, scheduled duration, written corrective action plans, PR-1391 or 
Manpower Utilization Reports, training requirements, previous compliance 
reviews, and other pertinent correspondence and/or reports.
    (e) Onsite verification and interviews (Phase II) (Action R-5). (1) 
Phase II of the review consists of the construction or home office site 
visit(s). During the initial meeting with the contractor, the following 
topics shall be discussed:
    (i) Objectives of the visit;
    (ii) The material submitted by the contractor, including the actual 
implementation of the employee referral source system and any 
discrepancies found in the material; and
    (iii) Arrangements for the site tour(s) and employee interviews.
    (2) The Compliance Specialist shall make a physical tour of the 
employment site(s) to determine that:
    (i) EEO posters are displayed in conspicuous places in a legible 
fashion;
    (ii) Facilities are provided on a nonsegregated basis (e.g. work 
areas, washroom, timeclocks, locker rooms, storage areas, parking lots, 
and drinking fountains);
    (iii) Supervisory personnel have been oriented to the contractor's 
EEO commitments;
    (iv) The employee referral source system is being implemented;
    (v) Reported employment data is accurate;
    (vi) Meetings have been held with employees to discuss EEO policy, 
particularly new employees; and

[[Page 65]]

    (vii) Employees are aware of their right to file complaints of 
discrimination.
    (3) The Compliance Specialist should interview at least one 
minority, one nonminority, and one woman in each trade, classification, 
or occupation. The contractor's superintendent or home office manager 
should also be interviewed.
    (4) The Compliance Specialist shall, on a sample basis, determine 
the union membership status of union employees on the site (e.g. whether 
they have permits, membership cards, or books, and in what category they 
are classified [e.g., A, B, or C]).
    (5) The Compliance Specialist shall also determine the method 
utilized to place employees on the job and whether equal opportunity 
requirements have been followed.
    (6) The Compliance Specialist shall determine, and the report shall 
indicate the following:
    (i) Is there reasonable representation and utilization of minorities 
and women in each craft, classification or occupation? If not, what has 
the contractor done to increase recruitment, hiring, upgrading, and 
training of minorities and women?
    (ii) What action is the contractor taking to meet the contractual 
requirement to provide equal employment opportunity?
    (iii) Are the actions taken by the contractor acceptable? Could they 
reasonably be expected to result in increased utilization of minorities 
and women?
    (iv) Is there impartiality in treatment of minorities and women?
    (v) Are affirmative action measures of an isolated nature or are 
they continuing?
    (vi) Have the contractor's efforts produced results?
    (f) Exit conference (Action R-6). (1) During the exit conference 
with the contractor, the following topics shall be discussed:
    (i) Any preliminary findings that, if not corrected immediately or 
not corrected by the adoption of an acceptable voluntary corrective 
action plan, would necessitate a determination of noncompliance;
    (ii) The process and time in which the contractor shall be informed 
of the final determination (15 days following the onsite verification 
and interviews); and
    (iii) Any other matters that would best be resolved before 
concluding the onsite portion of the review.
    (2) Voluntary corrective action plans may be negotiated at the exit 
conference, so that within 15 days following the exit portion of the 
review, the Compliance Specialist shall prepare the review report and 
make a determination of either:
    (i) Compliance, and so notify the contractor; or
    (ii) Noncompliance, and issue a 30-day show cause notice.

The acceptance of a voluntary corrective action plan at the exit 
conference does not preclude a determination of noncompliance, 
particularly if deficiencies not addressed by the plan are uncovered 
during the final analysis and report writing. (Action R-7) A voluntary 
corrective action plan should be accepted with the understanding that it 
only address those problems uncovered prior to the exit conference.
    (g) Compliance determinations (Action R-8). (1) The evidence 
obtained at the compliance review shall constitute a sufficient basis 
for an objective determination by the Compliance Specialist conducting 
the review of the contractor's compliance or noncompliance with 
contractual provisions pursuant to E.O. 11246, as amended, and FHWA EEO 
Special Provisions implementing the Federal-Aid Highway Act of 1968, 
where applicable.
    (2) Compliance determinations on contractors working in a Hometown 
Plan Area shall reflect the status of those crafts covered by part II of 
the plan bid conditions. Findings regarding part I crafts shall be 
transmitted through channels to the Washington Headquarters, Office of 
Civil Rights.
    (3) The compliance status of the contractor will usually be 
reflected by positive efforts in the following areas:
    (i) The contractor's equal employment opportunity (EEO) policy;
    (ii) Dissemination of the policy and education of supervisory 
employees concerning their responsibilities in implementing the EEO 
policy;

[[Page 66]]

    (iii) The authority and responsibilities of the EEO officer;
    (iv) The contractor's recruitment activities, especially 
establishing minority and female recruitment and referral procedures;
    (v) The extent of participation and minority and female utilization 
in FHWA training programs;
    (vi) The contractor's review of personnel actions to ensure equal 
opportunities;
    (vii) The contractor's participation in apprenticeship or other 
training;
    (viii) The contractor's relationship (if any) with unions and 
minority and female union membership;
    (ix) Effective measures to assure nonsegregated facilities, as 
required by contract provisions;
    (x) The contractor's procedures for monitoring subcontractors and 
utilization of minority and female subcontractors and/or subcontractors 
with substantial minority and female employment; and
    (xi) The adequacy of the contractor's records and reports.
    (4) A contractor shall be considered to be in compliance (Action R-
9) when the equal opportunity requirements have been effectively 
implemented, or there is evidence that every good faith effort has been 
made toward achieving this end. Efforts to acheive this goal shall be 
result-oriented, initiated and maintained in good faith, and emphasized 
as any other vital management function.
    (5) A contractor shall be considered to be in noncompliance (Action 
R-10) when:
    (i) The contractor has discriminated against applicants or employees 
with respect to the conditions or privileges of employment; or
    (ii) The contractor fails to provide evidence of every good faith 
effort to provide equal opportunity.
    (h) Show cause procedures--(1) General. Once the onsite verification 
and exit conference (Action R-5) have been completed and a compliance 
determination made, (Action R-8), the contractor shall be notified in 
writing of the compliance determination. (Action R-11 or R-12) This 
written notification shall be sent to the contractor within 15 days 
following the completion of the onsite verification and exit conference. 
If a contractor is found in noncompliance (Action R-10), action efforts 
to bring the contractor into compliance shall be initiated through the 
issuance of a show cause notice (Action R-12). The notice shall advise 
the contractor to show cause within 30 days why sanctions should not be 
imposed.
    (2) When a show cause notice is required. A show cause notice shall 
be issued when a determination of noncompliance is made based upon:
    (i) The findings of a compliance review;
    (ii) The results of an investigation which verifies the existence of 
discrimination; or
    (iii) Areawide plan reports that show an underutilization of 
minorities (based on criteria of U.S. Department of Labor's Optional 
Form 66 ``Manpower Utilization Report'') throughout the contractor's 
work force covered by part II of the plan bid conditions.
    (3) Responsibility for issuance. (i) Show cause notices will 
normally be issued by SHA's to federally assisted contractors when the 
State has made a determination of noncompliance, or when FHWA has made 
such a determination and has requested the State to issue the notice.
    (ii) When circumstances warrant, the Regional Federal Highway 
Administrator or a designee may exercise primary compliance 
responsibility by issuing the notice directly to the contractor.
    (iii) The Regional Federal Highway Administrators in Regions 8, 10, 
and the Regional Engineer in Region 15, shall issue show cause notices 
to direct Federal contractors found in noncompliance.
    (4) Content of show cause notice. The show cause notice must: (See 
sample--appendix A of this subpart)
    (i) Notify the contractor of the determination of noncompliance;
    (ii) Provide the basis for the determination of noncompliance;
    (iii) Notify the contractor of the obligation to show cause within 
30 days why formal proceedings should not be instituted;

[[Page 67]]

    (iv) Schedule (date, time, and place) a compliance conference to be 
held approximately 15 days from the contractor's receipt of the notice;
    (v) Advise the contractor that the conference will be held to 
receive and discuss the acceptability of any proposed corrective action 
plan and/or correction of deficiencies; and
    (vi) Advise the contractor of the availability and willingness of 
the Compliance Specialist to conciliate within the time limits of the 
show cause notice.
    (5) Preparing and processing the show cause notice. (i) The State or 
FHWA official who conducted the investigation or review shall develop 
complete background data for the issuance of the show cause notice and 
submit the recommendation to the head of the SHA or the Regional Federal 
Highway Administrator, as appropriate.
    (ii) The recommendation, background data, and final draft notice 
shall be reviewed by appropriate State or FHWA legal counsel.
    (iii) Show cause notices issued by the SHA shall be issued by the 
head of that agency or a designee.
    (iv) The notice shall be personally served to the contractor or 
delivered by certified mail, return receipt requested, with a 
certificate of service or the return receipt filed with the case record.
    (v) The date of the contractor's receipt of the show cause notice 
shall begin the 30-day show cause period. (Action R-13).
    (vi) The 30-day show cause notice shall be issued directly to the 
noncompliant contractor or subcontractor with an informational copy sent 
to any concerned prime contractors.
    (6) Conciliation efforts during show cause period. (i) The 
Compliance Specialist is required to attempt conciliation with the 
contractor throughout the show cause time period. Conciliation and 
negotiation efforts shall be directed toward correcting contractor 
program deficiencies and initiating corrective action which will 
maintain and assure equal opportunity. Records shall be maintained in 
the State, FHWA division, or FHWA regional office's case files, as 
appropriate, indicating actions and reactions of the contractor, a brief 
synopsis of any meetings with the contractor, notes on verbal 
communication and written correspondence, requests for assistance or 
interpretations, and other relevant matters.
    (ii) In instances where a contractor is determined to be in 
compliance after a show cause notice has been issued, the show cause 
notice will be recinded and the contractor formally notified (Action R-
17). The FHWA Washington Headquarters, Office of Civil Rights, shall 
immediately be notified of any change in status.
    (7) Corrective action plans. (i) When a contractor is required to 
show cause and the deficiencies cannot be corrected within the 30-day 
show cause period, a written corrective action plan may be accepted. The 
written corrective action plan shall specify clear unequivocal action by 
the contractor with time limits for completion. Token actions to correct 
cited deficiencies will not be accepted. (See Sample Corrective Action 
Plan--appendix B of this subpart)
    (ii) When a contractor submits an acceptable written corrective 
action plan, the contractor shall be considered in compliance during the 
plan's effective implementation and submission of required progress 
reports. (Action R-15 and R-17).
    (iii) When an acceptable corrective action plan is not agreed upon 
and the contractor does not otherwise show cause as required, the formal 
hearing process shall be recommended through appropriate channels by the 
compliance specialist immediately upon expiration of the 30-day show 
cause period. (Action R-16, R-18, R-19)
    (iv) When a contractor, after having submitted an acceptable 
corrective action plan and being determined in compliance is 
subsequently determined to be in noncompliance based upon the 
contractor's failure to implement the corrective action plan, the formal 
hearing process must be recommended immediately. There are no provisions 
for reinstituting a show cause notice.
    (v) When, however, a contractor operating under an acceptable 
corrective action plan carries out the provisions of the corrective 
action plan but the actions do not result in the necessary

[[Page 68]]

changes, the corrective action plan shall be immediately amended through 
negotiations. If, at this point, the contractor refuses to appropriately 
amend the corrective action plan, the formal hearing process shall be 
recommended immediately.
    (vi) A contractor operating under an approved voluntary corrective 
action plan (i.e. plan entered into prior to the issuance of a show 
cause) must be issued a 30-day show cause notice in the situations 
referred to in paragraphs (h) (7) (iv) and (v) of this section, i.e., 
failure to implement an approved corrective action plan or failure of 
corrective actions to result in necessary changes.
    (i) Followup reviews. (1) A followup review is an extension of the 
initial review process to verify the contractors performance of 
corrective action and to validate progress report information. 
Therefore, followup reviews shall only be conducted of those contractors 
where the initial review resulted in a finding of noncompliance and a 
show cause notice was issued.
    (2) Followup reviews shall be reported as a narrative summary 
referencing the initial review report.
    (j) Hearing process. (1) When such procedures as show cause issuance 
and conciliation conferences have been unsuccessful in bringing 
contractors into compliance within the prescribed 30 days, the reviewer 
(or other appropriate level) shall immediately recommend, through 
channels, that the Department of Transportation obtain approval from the 
Office of Federal Contract Compliance Programs for a formal hearing 
(Action R-19). The Contractor should be notified of this action.
    (2) Recommendations to the Federal Highway Administrator for hearing 
approval shall be accompanied by full reports of findings and case files 
containing any related correspondence. The following items shall be 
included with the recommendation:
    (i) Copies of all Federal and Federal-aid contracts and/or 
subcontracts to which the contractor is party;
    (ii) Copies of any contractor or subcontractor certifications;
    (iii) Copy of show cause notice;
    (iv) Copies of any corrective action plans; and
    (v) Copies of all pertinent Manpower Utilization Reports, if 
applicable.
    (3) SHA's through FHWA regional and division offices, will be 
advised of decisions and directions affecting contractors by the FHWA 
Washington Headquarters, Office of Civil Rights, for the Department of 
Transportation.
    (k) Responsibility determinations. (1) In instances where requests 
for formal hearings are pending OFCCP approval, the contractor may be 
declared a nonresponsible contractor for inability to comply with the 
equal opportunity requirements.
    (2) SHA's shall refrain from entering into any contract or contract 
modification subject to E.O. 11246, as amended, with a contractor who 
has not demonstrated eligibility for Government contracts and federally 
assisted construction contracts pursuant to E.O. 11246, as amended.



Sec. 230.411  Guidance for conducting reviews.

    (a) Extensions of time. Reasonable extensions of time limits set 
forth in these instructions may be authorized by the SHA's or the FHWA 
regional office, as appropriate. However, all extensions are subject to 
Washington Headquarters approval and should only be granted with this 
understanding. The Federal Highway Administrator shall be notified of 
all time extensions granted and the justification therefor. In sensitive 
or special interest cases, simultaneous transmittal of reports and other 
pertinent documents is authorized.
    (b) Contract completion. Completion of a contract or seasonal 
shutdown shall not preclude completion of the administrative procedures 
outlined herein or the possible imposition of sanctions or debarment.
    (c) Home office reviews outside regions. When contractor's home 
offices are located outside the FHWA region in which the particular 
contract is being performed, and it is determined that the contractors' 
home offices should be reviewed, requests for such reviews with 
accompanying justification shall be forwarded through appropriate

[[Page 69]]

channels to the Washington Headquarters, Office of Civil Rights. After 
approval, the Washington Headquarters, Office of Civil Rights, (OCR) 
shall request the appropriate region to conduct the home office review.
    (d) Employment of women. Executive Order 11246, as amended, 
implementing rules and regulations regarding sex discrimination are 
outlined in 41 CFR part 60-20. It is the responsibility of the 
Compliance Specialist to ensure that contractors provide women full 
participation in their work forces.
    (e) Effect of exclusive referral agreements. (1) The OFCCP has 
established the following criteria for determining compliance when an 
exclusive referral agreement is involved;
    (i) It shall be no excuse that the union, with which the contractor 
has a collective bargaining agreement providing for exclusive referral, 
failed to refer minority or female employees.
    (ii) Discrimination in referral for employment, even if pursuant to 
provisions of a collective bargaining agreement, is prohibited by the 
National Labor Relations Act and Title VII of the Civil Rights Act of 
1964, as amended.
    (iii) Contractors and subcontractors have a responsibility to 
provide equal opportunity if they want to participate in federally 
involved contracts. To the extent they have delegated the responsibility 
for some of their employment practices to some other organization or 
agency which prevents them from meeting their obligations, these 
contractors must be found in noncompliance.
    (2) If the contractor indicates that union action or inaction is a 
proximate cause of the contractor's failure to provide equal 
opportunity, a finding of noncompliance will be made and a show cause 
notice issued, and:
    (i) The contractor will be formally directed to comply with the 
equal opportunity requirements.
    (ii) Reviews of other contractors with projects within the 
jurisdiction of the applicable union locals shall be scheduled.
    (iii) If the reviews indicate a pattern and/or practice of 
discrimination on the part of specific union locals, each contractor in 
the area shall be informed of the criteria outlined in 
Sec. 230.411(e)(1) of this section. Furthermore, the FHWA Washington 
Headquarters, OCR, shall be provided with full documentary evidence to 
support the discriminatory pattern indicated.
    (iv) In the event the union referral practices prevent the 
contractor from meeting the equal opportunity requirements pursuant to 
the E.O. 11246, as amended, such contractor shall immediately notify the 
SHA.



Sec. 230.413  Review reports.

    (a) General. (1) The Compliance Specialist shall maintain detailed 
notes from the beginning of the review from which a comprehensive 
compliance review report can be developed.
    (2) The completed compliance review report shall contain documentary 
evidence to support the determination of a contractor's or 
subcontractor's compliance status.
    (3) Findings, conclusions, and recommendations shall be explicitly 
stated and, when necessary, supported by documentary evidence.
    (4) The compliance review report shall contain at least the 
following information. \1\ (Action R-20)
---------------------------------------------------------------------------

    \1\ The Federal Highway Administration will accept completed Form 
FHWA-86 for the purpose. The form is available at the offices listed in 
49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (i) Complete name and address of contractor.
    (ii) Project(s) identification.
    (iii) Basis for the review, i.e. area work force, project work 
force, home office work force, and target area work force.
    (iv) Identification of Federal or Federal-aid contract(s).
    (v) Date of review.
    (vi) Employment data by job craft, classification, or occupation by 
race and sex in accordance with (iii) above. This shall be the data 
verified during the onsite.
    (vii) Identification of local unions involved with contractor, when 
applicable.
    (viii) Determination of compliance status: compliance or 
noncompliance.
    (ix) Copy of show cause notice or compliance notification sent to 
contractor.

[[Page 70]]

    (x) Name of the Compliance Specialist who conducted the review and 
whether that person is a State, division or regional Compliance 
Specialist.
    (xi) Concurrences at appropriate levels.
    (5) Each contractor (joint venture is one contractor) will be 
reported separately. When a project review is conducted, the reports 
should be attached, with the initial report being that of the prime 
contractor followed by the reports of each subcontractor.
    (6) Each review level is responsible for ensuring that required 
information is contained in the report.
    (7) When a project review is conducted, the project work force shall 
be reported. When an areawide review is conducted (all Federal-aid, 
Federal, and non-Federal projects in an area), then areawide work force 
shall be reported. When a home office review is conducted, only home 
office work force shall be reported. Other information required by 
regional offices shall be detached before forwarding the reports to the 
Washington Headquarters, OCR.
    (8) The Washington Headquarters, OCR, shall be provided all of the 
following:
    (i) The compliance review report required by Sec. 230.413(a)(4).
    (ii) Corrective action plans.
    (iii) Show cause notices or compliance notifications.
    (iv) Show cause recissions.

While other data and information should be kept by regional offices 
(including progress reports, correspondence, and similar review backup 
material), it should not be routinely forwarded to the Washington 
Headquarters, OCR.
    (b) Administrative requirements--(1) State conducted reviews. (i) 
Within 15 days from the completion of the onsite verification and exit 
conference, the State Compliance Specialist will:
    (A) Prepare the compliance review report, based on information 
obtained;
    (B) Determine the contractor's compliance status;
    (C) Notify the contractor of the compliance determination, i.e., 
send the contractor either notification of compliance or show cause 
notice; and
    (D) Forward three copies of the compliance review report, and the 
compliance notification or show cause notice to the FHWA division EEO 
Specialist.
    (ii) Within 10 days of receipt, the FHWA division EEO Specialist 
shall:
    (A) Analyze the State's report, ensure that it is complete and 
accurate;
    (B) Resolve nonconcurrence, if any;
    (C) Indicate concurrence, and, where appropriate, prepare comments; 
and
    (D) Forward two copies of the compliance review report, and the 
compliance notification or show cause notice to the Regional Civil 
Rights Director.
    (iii) Within 15 days of receipt, the FHWA Regional Civil Rights 
Director shall:
    (A) Analyze the report, ensure that it is complete and accurate;
    (B) Resolve nonconcurrence, if any;
    (C) Indicate concurrence, and, where appropriate, prepare comments; 
and
    (D) Forward one copy of the compliance review report, and the 
compliance notification or show cause notice to the Washington 
Headquarters, OCR.
    (2) FHWA division conducted reviews. (i) Within 15 days from the 
completion of the onsite verification and exit conference, the division 
EEO Specialist shall:
    (A) Prepare compliance review report, based on information obtained;
    (B) Determine the contractor's compliance status;
    (C) Notify the State to send the contractor the compliance 
determination, i.e. either notification of compliance or show cause 
notice; and
    (D) Forward two copies of the compliance review report and the 
compliance notification or show cause notice to the Regional Civil 
Rights Director.
    (ii) Within 15 days of receipt, the FHWA Regional Civil Rights 
Director will take the steps outlined in Sec. 230.413(b)(1)(iii).
    (3) FHWA region conducted reviews. (i) Within 15 days from the 
completion of the onsite verification and exit conference the regional 
EEO Specialist shall:
    (A) Prepare the compliance review report, based on information 
obtained;
    (B) Determine the contractor's compliance status;
    (C) Inform the appropriate division to notify the State to send the 
contractor

[[Page 71]]

the compliance determination i.e. either notification of compliance or 
show cause notice; and
    (D) Forward one copy of the compliance review report, and the 
compliance notification or show cause notice to the Washington 
Headquarters, OCR.
    (4) Upon receipt of compliance review reports, the Washington 
Headquarters, OCR, shall review, resolve any nonconcurrences, and record 
them for the purpose of:
    (i) Providing ongoing technical assistance to FHWA regional and 
division offices and SHA's;
    (ii) Gathering a sufficient data base for program evaluation;
    (iii) Ensuring uniform standards are being applied in the compliance 
review process;
    (iv) Initiating appropriate changes in FHWA policy and implementing 
regulations; and
    (v) Responding to requests from the General Accounting Office, 
Office of Management and Budget, Senate Subcommittee on Public Roads, 
and other agencies and organizations.



Sec. 230.415  Consolidated compliance reviews.

    (a) General. Consolidated compliance reviews shall be implemented to 
determine employment opportunities on an areawide rather than an 
individual project basis. The consolidated compliance review approach 
shall be adopted and directed by either Headquarters, region, division, 
or SHA, however, consolidated reviews shall at all times remain a 
cooperative effort.
    (b) OFCCP policy requires contracting agencies to ensure compliance, 
in hometown an imposed plan areas, on an areawide rather than a project 
basis. The consolidated compliance review approach facilitates 
implementation of this policy.
    (c) Methodology--(1) Selection of a target area. In identifying the 
target area of a consolidated compliance review (e.g. SMSA, hometown or 
imposed plan area, a multicounty area, or an entire State), 
consideration shall at least be given to the following facts:
    (i) Minority and female work force concentrations;
    (ii) Suspected or alleged discrimination in union membership or 
referral practices by local unions involved in highway construction;
    (iii) Present or potential problem areas;
    (iv) The number of highway projects in the target area; and
    (v) Hometown or imposed plan reports that indicate underutilization 
of minorities or females.
    (2) Determine the review period. After the target area has been 
selected, the dates for the actual onsite reviews shall be established.
    (3) Obtain background information. EEO-3's Local Union Reports, 
should be obtained from regional offices of the EEOC. Target area 
civilian labor force statistics providing percent minorities and percent 
females in the target area shall be obtained from State employment 
security agencies or similar State agencies.
    (4) Identify contractors. Every nonexempt federally assisted or 
direct Federal contractor and subcontractor in the target area shall be 
identified. In order to establish areawide employment patterns in the 
target area, employment data is needed for all contractors and 
subcontractors in the area. However, only those contractors with 
significant work forces (working prior to peak and not recently 
reviewed) may need to be actually reviwed onsite. Accordingly, once all 
contractors are identified, those contractors which will actually be 
reviewed onsite shall be determined. Compliance determinations shall 
only reflect the status of crafts covered by part II of plan bid 
conditions. Employment data of crafts covered by part I of plan bid 
conditions shall be gathered and identified as such in the composite 
report, however, OFCCP has reserved the responsibility for compliance 
determinations on crafts covered by part I of the plan bid conditions.
    (5) Contractor notification. Those contractors selected for onsite 
review shall be sent a notification letter as outlined in 
Sec. 230.409(c) along with a request for current workforce data \2\ for 
completion

[[Page 72]]

and submission at the onsite review. Those contractors in the target 
area not selected for onsite review shall also be requested to supply 
current workforce data as of the onsite review period, and shall return 
the data within 15 days following the onsite review period.
---------------------------------------------------------------------------

    \2\ The Consolidated Workforce Questionnaire is convenient for the 
purpose and appears as attachment 4 to volume 2, chapter 2, section 3 of 
the Federal-Aid Highway Program Manual, which is available at the 
offices listed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (6) Onsite reviews. Compliance reviews shall then be conducted in 
accordance with the requirements set forth in Sec. 230.409. Reviewers 
may use Form FHWA-86, Compliance Data Report, if appropriate. It is of 
particular importance during the onsite reviews that the review team 
provide for adequate coordination of activities at every stage of the 
review process.
    (7) Compliance determinations. Upon completion of the consolidated 
reviews, compliance determinations shall be made on each review by the 
reviewer. Individual show cause notices or compliance notifications 
shall be sent (as appropriate) to each reviewed contractor.

The compliance determination shall be based on the contractor's target 
area work force (Federal, Federal-aid and non-Federal), except when the 
target area is coincidental with hometown plan area, compliance 
determinations must not be based on that part of a contractor's work 
force covered by part I of the plan bid conditions, as previously set 
forth in this regulation. For example: ABC Contracting, Inc. employs 
carpenters, operating engineers, and cement masons. Carpenters and 
operating engineers are covered by part II of the plan bid conditions, 
however, cement masons are covered by part I of the plan bid conditions. 
The compliance determination must be based only on the contractor's 
utilization of carpenters and operating engineers.
    (d) Reporting--(1) Composite report. A final composite report shall 
be submitted as a complete package to the Washington Headquarters, OCR, 
within 45 days after the review period and shall consist of the 
following:
    (i) Compliance review report, for each contractor and subcontractor 
with accompanying show cause notice or compliance notification.
    (ii) Work force data to show the aggregate employment of all 
contractors in the target area.
    (iii) A narrative summary of findings and recommendations to include 
the following:
    (A) A summary of highway construction employment in the target area 
by craft, race, and sex. This summary should explore possible patterns 
of discrimination or underutilization and possible causes, and should 
compare the utilization of minorities and females on contractor's work 
forces to the civilian labor force percent for minorities and females in 
the target area.
    (B) If the target area is a plan area, a narrative summary of the 
plan's effectiveness with an identification of part I and part II 
crafts. This summary shall discuss possible differences in minority and 
female utilization between part I and part II crafts, documenting any 
inferences drawn from such comparisons.
    (C) If applicable, discuss local labor unions' membership and/or 
referral practices that impact on the utilization of minorities and 
females in the target area. Complete and current copies of all 
collective bargaining agreements and copies of EEO-3, Local Union 
Reports, for all appropriate unions shall accompany the composite 
report.
    (D) Any other appropriate data, analyses, or information deemed 
necessary for a complete picture of the areawide employment.
    (E) Considering the information compiled from the summaries listed 
above, make concrete recommendations on possible avenues for correcting 
problems uncovered by the analyses.
    (2) Annual planning report. The proper execution of consolidated 
compliance reviews necessitates scheduling, along with other fiscal 
program planning. The Washington Headquarters, OCR, shall be notified of 
all planned consolidated reviews by August 10 of each year and of any 
changes in the target area or review periods, as they become known. The 
annual consolidated planning report shall indicate:
    (i) Selected target areas:

[[Page 73]]

    (ii) The basis for selection of each area; and
    (iii) The anticipated review period (dates) for each target area.

      Appendix A to Subpart D of Part 230--Sample Show Cause Notice

Certified Mail, Return Receipt Requested
Date
Contractor's Name
Address
City, State, and Zip Code.

    Dear Contractor: As a result of the review of your (Project Number) 
project located at (Project Location) conducted on (Date) by (Reviewing 
Agency), it is our determination that you are not in compliance with 
your equal opportunity requirements and that good faith efforts have not 
been made to meet your equal opportunity requirements in the following 
areas:
    List of Deficiencies
    1.
    2.
    3.

    Your failure to take the contractually required affirmative action 
has contributed to the unacceptable level of minority and female 
employment in your operations, particularly in the semiskilled and 
skilled categories of employees.
    The Department of Labor regulations (41 CFR 60) implementing 
Executive Order 11246, as amended, are applicable to your Federal-aid 
highway construction contract and are controlling in this matter (see 
Required Contract Provisions, Form PR-1273, Clause II). Section 60-
1.20(b) of these regulations provides that when equal opportunity 
deficiencies exist, it is necessary that you make a commitment in 
writing to correct such deficiencies before you may be found in 
compliance. The commitment must include the specific action which you 
propose to take to correct each deficiency and the date of completion of 
such action. The time period allotted shall be no longer than the 
minimum period necessary to effect the necessary correction. In 
accordance with instructions issued by the Office of Federal Contract 
Compliance Programs (OFCCP), U.S. Department of Labor, your written 
commitment must also provide for the submission of monthly progress 
reports which shall include a head count of minority and female 
representation at each level of each trade and a list of minority 
employees.
    You are specifically advised that making the commitment discussed 
above will not preclude a further determination of noncompliance upon a 
finding that the commitment is not sufficient to achieve compliance.
    We will hold a compliance conference at ----------------(Address) at 
---------------- (Time) on ----------------(Date) for you to submit and 
discuss your written commitment. If your written commitment is 
acceptable and if the commitment is sufficient to achieve compliance, 
you will be found in compliance during the effective implementation of 
that commitment. You are cautioned, however, that our determination is 
subject to review by the Federal Highway Administration, the Department 
of Transportation, and OFCCP and may be disapproved if your written 
commitment is not considered sufficient to achieve compliance.
    If you indicate either directly or by inaction that you do not wish 
to participate in the scheduled conference and do not otherwise show 
cause within 30 days from receipt of this notice why enforcement 
proceedings should not be instituted, this agency will commence 
enforcement proceedings under Executive Order 11246, as amended.
    If your written commitment is accepted and it is subsequently found 
that you have failed to comply with its provisions, you will be advised 
of this determination and formal sanction proceedings will be instituted 
immediately.
    In the event formal sanction proceedings are instituted and the 
final determination is that a violation of your equal opportunity 
contract requirements has taken place, any Federal-aid highway 
construction contracts or subcontracts which you hold may be canceled, 
terminated, or suspended, and you may be debarred from further such 
contracts or subcontracts. Such other sanctions as are authorized by 
Executive Order 11246, as amended, may also be imposed.
    We encourage you to to take whatever action is necessary to resolve 
this matter and are anxious to assist you in achieving compliance. Any 
questions concerning this notice should be addressed to (Name, Address, 
and Phone).
Sincerely yours,

[41 FR 34245, Aug. 13, 1976]

   Appendix B to Subpart D of Part 230--Sample Corrective Action Plan

    Deficiency 1: Sources likely to yield minority employees have not 
been contacted for recruitment purposes.
    Commitment: We have developed a system of written job applications 
at our home office which readily identifies minority applicants. In 
addition to this, as a minimum, we will contact the National Association 
for the Advancement of Colored People (NAACP), League of Latin American 
Citizens (LULAC), Urban League, and the Employment Security Office 
within 20 days to establish a referral system for minority group 
applicants and expand our recruitment base. We are in the process of 
identifying other community organizations and associations that may be 
able to provide minority applicants and will

[[Page 74]]

submit an updated listing of recruitment sources and evidence of contact 
by ----------------(Date).
    Deficiency 2: There have been inadequate efforts to locate, qualify, 
and increase skills of minority and female employees and applicants for 
employment.
    Commitment: We will set up an individual file for each apprentice or 
trainee by ------------(Date) in order to carefully screen the progress, 
ensure that they are receiving the necessary training, and being 
promoted promptly upon completion of training requirements. We have 
established a goal of at least 50 percent of our apprentices and 
trainees will be minorities and 15 percent will be female. In addition 
to the commitment made to deficiency number 1, we will conduct a similar 
identification of organizations able to supply female applicants. Based 
on our projected personnel needs, we expect to have reached our 50 
percent goal for apprentices and trainees by --------------(Date).
    Deficiency 3: Very little effort to assure subcontractors have 
meaningful minority group representation among their employees.
    Commitment: In cooperation with the Regional Office of Minority 
Business Enterprise, Department of Commerce, and the local NAACP, we 
have identified seven minority-owned contractors that may be able to 
work on future contracts we may receive. These contractors (identified 
in the attached list) will be contacted prior to our bidding on all 
future contracts. In addition, we have scheduled a meeting with all 
subcontractors currently working on our contracts. This meeting will be 
held to inform the subcontractors of our intention to monitor their 
reports and require meaningful minority representation. This meeting 
will be held on --------------------(Date) and we will summarize the 
discussions and current posture of each subcontractor for your review by 
--------------------(Date) Additionally, as requested, we will submit a 
PR-1391 on --------------------(Date), --------------------------------
--------(Date), --------------------(Date). Finally, we have committed 
ourselves to maintaining at least 20 percent minority and female 
representation in each trade during the time we are carrying out the 
above commitments. We plan to have completely implemented all the 
provisions of these commitments by --------------------(Date).

[41 FR 34245, Aug. 13, 1976]

    Appendix C to Subpart D of Part 230--Sample Show Cause Rescission

Certified Mail, Return Receipt Requested
Date
Contractor
Address
City, State, and Zip Code

    Dear Contractor: On --------------, (Date) you received a 30-day 
show cause notice from this office for failing to implement the required 
contract requirements pertaining to equal employment opportunity.
    Your corrective action plan, discussed and submitted at the 
compliance conference held on --------------------(Date), has been 
reviewed and determined to be acceptable. Your implementation of your 
corrective action plan shows that you are now taking the required 
affirmative action and can be considered in compliance with Executive 
Order 11246, as amended. If it should later be determined that your 
corrective action plan is not sufficient to achieve compliance, this 
Rescission shall not preclude a subsequent finding of noncompliance.
    In view of the above, this letter is to inform you that the 30-day 
show cause notice of --------------------(Date) is hereby rescinded. You 
are further advised that if it is found that you have failed to comply 
with the provisions of your corrective action plan, formal sanction 
proceedings will be instituted immediately.
Sincerely,

[[Page 75]]


         Appendix D to Subpart D of Part 230--Equal Opportunity 
                 Compliance Review Process Flow Chart
    [GRAPHIC] [TIFF OMITTED] TC14OC91.004
    
[41 FR 34245, Aug. 13, 1976]

[[Page 76]]



                SUBCHAPTER D--NATIONAL HIGHWAY INSTITUTE


PART 260--EDUCATION AND TRAINING PROGRAMS--Table of Contents




              Subpart A--Fellowship and Scholarship Grants

Sec.
260.101  Purpose.
260.103  Definitions.
260.105  Policy.
260.107  Eligibility.
260.109  Selection.
260.111  Responsibilities of educational institutions.
260.113  Responsibilities of employing agencies.
260.115  Equal opportunity.
260.117  Application procedures.

Subparts B-C [Reserved]

            Subpart D--State Education and Training Programs

260.401  Purpose.
260.403  Policy.
260.405  Application and approval procedures.
260.407  Implementation and reimbursement.

Appendix A to Part 260--Request for Use of Federal-Aid Highway Funds for 
          Education or Training (Form FHWA-1422)



              Subpart A--Fellowship and Scholarship Grants

    Authority: 23 U.S.C. 307(a), 315, 321 and 403; and 49 CFR 1.48(b).

    Source: 43 FR 3558, Jan. 26, 1978, unless otherwise noted.



Sec. 260.101  Purpose.

    To establish policy for the Federal Highway Administration (FHWA) 
Fellowship and Scholarship Programs as administered by the National 
Highway Institute (NHI).



Sec. 260.103  Definitions.

    As used in this regulation, the following definitions apply:
    (a) Candidate. One who meets the eligibility criteria set forth in 
Sec. 260.107, and who has completed and submitted the necessary forms 
and documents in order to be considered for selection for a fellowship 
or scholarship.
    (b) Direct educational expenses. Those expenses directly related to 
attending school including tuition, student fees, books, and expendable 
supplies but excluding travel expenses to and from the school.
    (c) Employing agency. The agency for which the candidate works. This 
may be either a State or local highway/transportation agency or the 
FHWA.
    (d) Fellowship. The grant presented to the recipient's school and 
administered by the school to assist the candidate financially during 
the period of graduate study.
    (e) Living stipend. The portion of the fellowship or scholarship 
grant remaining after the direct educational expenses have been 
deducted.
    (f) Local highway/transportation agency. The agency or metropolitan 
planning organization with the responsibility for initiating and 
carrying forward a highway program or public transportation program 
utilizing highways at the local level, usually the city or county level.
    (g) National Highway Institute (NHI). The organization located 
within the FHWA responsible for the administration of the FHWA 
fellowship and scholarship grant programs.
    (h) Recipient. The successful candidate receiving a fellowship or 
scholarship.
    (i) Scholarship. The grant presented to the recipient's school and 
administered by the school to assist the candidate financially during 
the period of post-secondary study.
    (j) State highway/transportation agency. The agency with the 
responsibility for initiating and carrying forward a highway program or 
public transportation program utilizing highways at the State level.



Sec. 260.105  Policy.

    It is the policy of the FHWA to administer, through the NHI, 
fellowship and scholarship grant programs to assist State and local 
agencies and the FHWA in developing the expertise needed for the 
implementation of their highway programs and to assist in the

[[Page 77]]

development of more effective transportation programs at all levels of 
government. These programs shall provide financial support for up to 24 
months of either full-time or part-time study in the field of highway 
transportation. The programs for each year shall be announced by FHWA 
notices. \1\ These notices shall contain an application form and shall 
announce the number of grants to be awarded and their value.
---------------------------------------------------------------------------

    \1\ The Federal Highway Administration notices are available for 
inspection and copying as prescribed in 49 CFR part 7, appendix D.

[43 FR 3558, Jan. 26, 1978, as amended at 45 FR 67091, Oct. 9, 1980]



Sec. 260.107  Eligibility.

    (a) Prior recipients of FHWA scholarships or fellowships are 
eligible if they will have completed all specific work commitments 
before beginining study under the programs for which applications are 
made.
    (b) Candidates for the fellowship program shall have earned 
bachelor's or comparable college-level degrees prior to beginining 
advanced studies under the program.
    (c) Candidates shall submit evidence of acceptance, or probable 
acceptance, for study in programs that will enhance their contributions 
to their employers. Evidence of probable acceptance may be a letter from 
the department chairman or other school official.
    (d) Candidates shall agree to pursue certain minimum study loads as 
determined by the FHWA and designated in the FHWA notices announcing the 
programs each year.
    (e) FHWA employees who receive awards will be required to execute 
continued service agreements, consistent with the Government Employees 
Training Act requirements, which obligate the employees to continue to 
work for the agency for three times the duration of the training 
received.
    (f) Candidates who are students or employees of State or local 
highway/transportation agencies shall agree in writing to work on a 
full-time basis in public service with State or local highway/
transportation agencies for a specified period of time after completing 
study under the program. The FHWA notices announcing the programs each 
year shall specify the time period of the work commitment.
    (g) Candidates shall agree to respond to brief questionnaires 
designed to assist the NHI in program evaluation both during and 
following the study period.
    (h) Recipients of awards for full-time shall agree to limit their 
part-time employment as stipulated in the FHWA notice announcing the 
programs.
    (i) Candidates shall not profit financially from FHWA grants. Where 
acceptance of the living stipend portion of the grant would result in a 
profit to the candidate, as determined by comparing the candidate's 
regular full-time salary with the candidate's part-time salary and 
employer salary support plus living stipend, the grant amount will be 
reduced accordingly. In cases where a candidate must relocate and 
maintain two households, exceptions to this condition will be 
considered.
    (j) Candidates shall be citizens, or shall declare their intent to 
become citizens of the United States.



Sec. 260.109  Selection.

    (a) Candidates shall be rated by a selection panel appointed by the 
Director of the NHI. Members of the panel shall represent the highway 
transportation interests of government, industry, and the academic 
community. The factors considered by the selection panel are weighed in 
accordance with specific program objectives.
    (b) The major factors to be considered by the panel are:
    (1) Candidate's potential to contribute to a public agency's highway 
transportation program,
    (2) Relevance of a candidate's study program to the objectives of 
the fellowship or scholarship program,
    (3) Relevant experience, and
    (4) Academic and professional achievements.
    (c) Using ratings given by the selection panel, the Director of the 
NHI shall select candidates for awards and designate alternates.
    (d) The FHWA may designate in the FHWA notices announcing the 
programs the maximum number of awards

[[Page 78]]

that will be made to employees of any one agency.



Sec. 260.111  Responsibilities of educational institutions.

    (a) The college or university chosen by the grant recipient shall 
enter into an appropriate agreement with the FHWA providing for the 
administration of the grant by the college or university.
    (b) The college or university chosen by the recipient shall 
designate a faculty advisor prior to the commitment of funds by the 
FHWA. The faculty advisor will be requested to submit reports of the 
recipient's study progress following completion of each study period. 
These reports are oriented toward total program evaluation. To assure 
the recipient's rights to privacy, the FHWA will obtain appropriate 
advance concurrences from the recipient.



Sec. 260.113  Responsibilities of employing agencies.

    (a) A candidate's employing agency is responsible for furnishing a 
statement of endorsement and information concerning the relevancy of the 
candidate's study to agency requirements. The agency is encouraged to 
identify educational and training priorities and to provide backup to 
support its priority candidates for these programs.
    (b) Employing agencies are encouraged to give favorable 
consideration to the requests of candidates for educational leave and 
salary support for the study period to facilitate the candidates' 
applications. Agency decisions involving salary support and educational 
leave that will affect the acceptance of awards by recipients should be 
made at the earliest possible date to provide adequate time for the FHWA 
to select alternates to replace candidates that decline their awards.
    (c) Agencies are responsible for negotiations with their candidates 
concerning conditions of reinstatement and the candidates' commitments 
to return to work.
    (d) Employing agencies are encouraged to publicize the availability 
of these grants throughout the agencies, to implement procedures for 
internal evaluation of applications, and to forward the applications to 
the FHWA division office in their State.
    (e) Employing agencies that choose to process their employees' 
applications are responsible for observing the cutoff date for the FHWA 
to receive applications. This date will be stipulated in the Notices 
announcing the program for each academic year.



Sec. 260.115  Equal opportunity.

    (a) Consistent with the provisions of the Civil Rights Act of 1964 
and Title VI, assurances executed by each State, 23 U.S.C. 324, and 29 
U.S.C. 794, no applicant, including otherwise qualified handicapped 
individuals, shall on the grounds of race, color, religion, sex, 
national origin, or handicap, be excluded from participation in, be 
denied benefits of, or be otherwise subjected to discrimination under 
this program.
    (b) In accordance with Executive Order 11141, no individual shall be 
denied benefits of this program because of age.
    (c) Agencies should make information on this program available to 
all eligible employees, including otherwise qualified handicapped 
individuals, so as to assure nondiscrimination on the grounds of race, 
color, religion, sex, national origin, age, or handicap.



Sec. 260.117  Application procedures.

    (a) The FHWA notices announcing each year's programs and containing 
the application form may be obtained from FHWA regional and division 
offices, State highway agencies, metropolitan planning organizations, 
Governors' highway safety representatives, Urban Mass Transportation 
Administration regional directors, major transit authorities and from 
colleges and universities. Forms may also be obtained from the NHI, HHI-
3, FHWA, Washington, DC 20590.
    (b) In order to become a candidate, the applicant shall complete and 
forward the application form according to the instructions in the FHWA 
notice announcing the programs. The cutoff date for submitting the 
application stipulated in the notices should be observed.

Subparts B-C [Reserved]

[[Page 79]]



            Subpart D--State Education and Training Programs

    Authority: 23 U.S.C. 315, 321 (b) and (c); 49 CFR 1.48(b).

    Source: 43 FR 35477, Aug. 10, 1978, unless otherwise noted.



Sec. 260.401  Purpose.

    To prescribe policy and implement procedures for the administration 
of Federal-aid funds for education and training of State and local 
highway department employees.



Sec. 260.403  Policy.

    It is the policy of the Federal Highway Administration (FHWA) to 
provide continuing education of State and local highway agency employees 
engaged or to be engaged in Federal-aid highway work. To carry out this 
policy, States are encouraged to fully utilize the authority contained 
in 23 U.S.C. 321(b) and 321(c).



Sec. 260.405  Application and approval procedures.

    The State may apply for education and training funds by submitting a 
signed agreement designating the desired Federal-aid funds, not to 
exceed the limits in 23 U.S.C. 321(b). The FHWA's approval of the 
agreement will constitute obligation of funds and authorization for work 
to proceed.



Sec. 260.407  Implementation and reimbursement.

    (a) After execution of the fiscal agreement, the State may make 
grants and contracts with public and private agencies, institutions, 
individuals, and the National Highway Institute to provide highway-
related training and education. The principal recipients of this 
training shall be employees who are engaged or likely to be engaged, in 
Federal-aid highway work.
    (b) Claims for Federal-aid reimbursement of costs incurred may be 
submitted following established procedures to cover 75 percent of the 
cost of tuition and direct educational expenses (including incidental 
training, equipment, and program materials) exclusive of travel, 
subsistence, or salary of trainees.
    (c) As provided in 23 U.S.C. 321(c), education and training for 
subject areas that are identified by the FHWA as Federal program 
responsibilities, shall be provided at no cost to State and local 
governments.

[43 FR 35477, Aug. 10, 1978, as amended at 45 FR 6378, Jan. 28, 1980; 53 
FR 3745, Feb. 9, 1988]

[[Page 80]]


                         Appendix A to Part 260
      [GRAPHIC] [TIFF OMITTED] TC14OC91.005
      

[[Page 81]]


[GRAPHIC] [TIFF OMITTED] TC14OC91.006


[[Page 82]]



                   SUBCHAPTER E--PLANNING AND RESEARCH


PART 420--PLANNING AND RESEARCH PROGRAM ADMINISTRATION--Table of Contents




      Subpart A--Administration of FHWA Planning and Research Funds

Sec.
420.101  Purpose and applicability.
420.103  Definitions.
420.105  Policy.
420.107  SPR minimum research, development, and technology transfer 
          expenditure.
420.109  Distribution of PL funds.
420.111  Work program.
420.113  Eligibility of costs.
420.115  Approval and authorization procedures.
420.117  Program monitoring and reporting.
420.119  Fiscal procedures.
420.121  Other requirements.

    Subpart B--Research, Development and Technology Transfer Program 
                               Management

420.201  Purpose and applicability.
420.203  Definitions.
420.205  Policy.
420.207  Conditions for grant approval.
420.209  State work program.
420.211  Eligibility of costs.
420.213  Certification requirements.
420.215  Procedure for withdrawal of approval.

    Authority: 23 U.S.C. 103(i), 104(f), 115, 120, 133(b), 134(n), 
157(c), 303(g), 307, and 315; and 49 CFR 1.48(b).

    Source: 59 FR 37557, July 22, 1994, unless otherwise noted.



      Subpart A--Administration of FHWA Planning and Research Funds



Sec. 420.101  Purpose and applicability.

    This part prescribes the Federal Highway Administration (FHWA) 
policies and procedures for the administration of activities undertaken 
by States and their subrecipients, including Metropolitan Planning 
Organizations (MPOs), with FHWA planning and research funds. It applies 
to activities and studies funded as part of a recipient's or 
subrecipient's work program or as separate Federal-aid projects that are 
not included in a work program. This subpart also is applicable to the 
approval and authorization of research, development, and technology 
transfer (RD&T) work programs; additional policies and procedures 
regarding administration of RD&T programs are contained in subpart B of 
this part. The requirements in this part supplement those in 49 CFR Part 
18 which are applicable to administration of these funds.



Sec. 420.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Grant agreement means a legal instrument between an awarding agency 
and recipient where the principal purpose is to provide funds to the 
recipient to carry out a public purpose of support or stimulation 
authorized by law.
    FHWA planning and research funds means:
    (1) State planning and research (SPR) funds (the 2 percent funds 
authorized under 23 U.S.C. 307(c)(1));
    (2) Metropolitan planning (PL) funds (the 1 percent funds authorized 
under 23 U.S.C. 104(f) to carry out the provisions of 23 U.S.C. 134(a));
    (3) National highway system (NHS) funds authorized under 23 U.S.C. 
104(b)(1) used for transportation planning in accordance with 23 U.S.C. 
134 and 135, highway research and planning in accordance with 23 U.S.C. 
307, highway-related technology transfer activities, or development and 
establishment of management systems under 23 U.S.C. 303;
    (4) Surface transportation program (STP) funds authorized under 23 
U.S.C. 104(b)(3) used for highway and transit research and development 
and technology transfer programs, surface transportation planning 
programs, or development and establishment of management systems under 
23 U.S.C. 303; and
    (5) Minimum allocation funds authorized under 23 U.S.C. 157(c) used 
for carrying out, respectively, the provisions

[[Page 83]]

of 23 U.S.C. 307(c)(1) (up to 1\1/2\ percent) and 23 U.S.C. 134(a) (up 
to \1/2\ percent).
    Metropolitan planning area means the geographic area in which the 
metropolitan transportation planning process required by 23 U.S.C. 134 
and section 8 of the Federal Transit Act (49 U.S.C. app. 1607) must be 
carried out.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decisionmaking for a metropolitan planning 
area.
    National pooled-fund study means a planning or RD&T study or 
activity expected to solve problems of national significance, usually 
administered by the FHWA headquarters office in cooperation with States 
and/or MPOs, that is funded by State and/or MPO contributions of FHWA 
planning and research funds, with or without matching funds.
    Procurement contract means a legal instrument between an awarding 
agency and recipient where the principal purpose is to acquire (by 
purchase, lease, or barter) property or services for the direct benefit 
or use of the awarding agency.
    Regional pooled-fund study means a planning or RD&T study expected 
to solve problems of regional significance, usually administered by an 
FHWA region office in cooperation with a lead State and/or MPO, that is 
funded by State and/or MPO contributions of FHWA planning and research 
funds, with or without matching funds.
    State transportation agency (STA) means the State highway 
department, transportation department, or other State transportation 
agency to which Federal-aid highway funds are apportioned.
    Work program means a periodic statement of proposed work and 
estimated costs that document the eligible activities to be undertaken 
with FHWA planning and research funds during the next 1 or 2-year period 
by STAs and/or their subrecipients.



Sec. 420.105  Policy.

    (a) Within the limitations of available funding and with the 
understanding that planning activities of national significance, 
identified in paragraph (b) of this section, and the requirements of 23 
U.S.C. 134, 135, 303, and 307(c) are being adequately addressed, the 
FHWA will allow STAs and their subrecipients:
    (1) Maximum possible flexibility in the use of FHWA planning and 
research funds to meet highway and multimodal transportation planning 
and RD&T needs at the national, State, and local levels while ensuring 
legal use of such funds and avoiding unnecessary duplication of efforts; 
and
    (2) To determine which eligible planning and RD&T activities they 
desire to support with FHWA planning and research funds and at what 
funding level.
    (b) The STAs shall provide data that support the FHWA's 
responsibilities to the Congress and to the public. These data include, 
but are not limited to, information required for: Preparing proposed 
legislation and reports to the Congress; evaluating the extent, 
performance, condition, and use of the Nation's transportation systems; 
analyzing existing and proposed Federal-aid funding methods and levels 
and the assignment of user cost responsibility; maintaining a critical 
information base on fuel availability, use, and revenues generated; and 
calculating apportionment factors.

(The information collection requirements in paragraph (b) of 
Sec. 420.105 have been approved by the Office of Management and Budget 
(OMB) under control numbers 2125-0028 and 2125-0032.)



Sec. 420.107  SPR minimum research, development, and technology transfer expenditure.

    (a) In accordance with the provisions of 23 U.S.C. 307(c), not less 
than 25 percent of the SPR funds apportioned to a State for a fiscal 
year shall be expended for RD&T activities relating to highway, public 
transportation, and intermodal transportation systems, unless the State 
certifies, and the FHWA accepts the State's certification, that total 
expenditures by the State during the fiscal year for transportation 
planning under 23 U.S.C. 134 and 135 will exceed 75 percent of the 
amount apportioned for the fiscal year.
    (b) Prior to submitting a request for an exception to the 25 percent 
requirement, the State shall ensure that:
    (1) The additional planning activities are essential and there are 
no other

[[Page 84]]

reasonable options available for funding these planning activities 
(including the use of National Highway System, Surface Transportation 
Program, or Federal Transit Administration Section 26(a)(2) funds or by 
deferment of lower priority planning activities);
    (2) The planning activities have a higher priority than RD&T 
activities in overall needs of the State for a given year; and
    (3) The total level of effort by the State in RD&T (using both 
Federal and State funds) is adequate.
    (c) If the State chooses to pursue an exception, the request, along 
with supporting justification, shall be sent to the FHWA Division 
Administrator for action by the FHWA Associate Administrator for 
Research and Development. The Associate Administrator's decision shall 
be based upon the following considerations:
    (1) Whether the State has a process for identifying RD&T needs and 
for implementing a viable RD&T program.
    (2) Whether the State is contributing to cooperative RD&T programs 
or activities, such as the National Cooperative Highway Research 
Program, the Transportation Research Board, the implementation of 
products of the Strategic Highway Research Program, and pooled-fund 
studies.
    (3) Whether the State is using SPR funds for technology transfer and 
for transit or intermodal research and development to help meet the 25 
percent minimum requirement.
    (4) The percentage or amount of the State's FHWA planning and 
research funds that were used for RD&T prior to enactment of the 25 
percent requirement and whether the percentage or amount will increase 
if the exception is approved.
    (5) If an exception is approved for the fiscal year, whether the 
State can demonstrate that it will meet the requirement or substantially 
increase its RD&T expenditures over a multi-year period.
    (6) Whether the amount of Federal funds needed for planning for the 
program period exceeds the total of the 75 percent limit for the fiscal 
year and any unexpended (including unused funds that can be released 
from completed projects) funds for planning from previous 
apportionments.
    (d) If the State's request for an exception is approved, the 
exception will be valid only for the fiscal year in which the exception 
is approved. A new request must be submitted in subsequent fiscal years.



Sec. 420.109  Distribution of PL funds.

    (a) States shall make all PL funds authorized by 23 U.S.C. 104(f) 
available to the MPOs in accordance with a formula developed by the 
State, in consultation with the MPOs, and approved by the FHWA. The 
State shall not use any PL funds for grant or subgrant administration.
    (b) In developing the formula for distributing PL funds, the State 
shall consider population, status of planning, attainment of air quality 
standards, metropolitan area transportation needs, and other factors 
necessary to provide for an appropriate distribution of funds to carry 
out the requirements of 23 U.S.C. 134 and other applicable requirements 
of Federal law.
    (c) As soon as practicable after PL funds have been apportioned by 
the FHWA to the States, the STAs shall inform the MPOs and the FHWA of 
the amounts allocated to each MPO.
    (d) If the STA, in a State receiving the minimum apportionment of PL 
funds under the provisions of 23 U.S.C. 104(f)(2), determines that the 
share of funds to be allocated to any MPO results in the MPO receiving 
more funds than necessary to carry out the provisions of 23 U.S.C. 
134(a), the STA may, after considering the views of the affected MPOs 
and with the approval of the FHWA, use these funds to finance 
transportation planning outside of metropolitan planning areas.
    (e) In accordance with the provisions of 23 U.S.C. 134(n), any PL 
funds not needed for carrying out the metropolitan planning provisions 
of 23 U.S.C. 134 may be made available by the MPOs to the State for 
funding statewide planning activities under 23 U.S.C. 135, subject to 
approval by the FHWA.
    (f) Any State PL fund distribution formula that does not meet the 
requirements of paragraphs (a) or (b) of this section shall be brought 
into conformance with such requirements as

[[Page 85]]

soon as possible, but no later than in time for distribution of PL funds 
apportioned to the State for the first Federal fiscal year beginning 
after August 22, 1994.



Sec. 420.111  Work program.

    (a) Proposed use of FHWA planning and research funds shall be 
documented by the STAs and subrecipients in a work program(s) acceptable 
to the FHWA. Statewide, metropolitan, other transportation planning 
activities, and transportation RD&T activities may be administered as 
separate programs, paired in various combinations, or brought together 
as a single work program. Similarly, these transportation planning and 
RD&T activities may be authorized for fiscal purposes as one combined 
Federal-aid project or as separate Federal-aid projects. The expenditure 
of PL funds for transportation planning outside of metropolitan planning 
areas under Sec. 420.109(d) may be included in the work program for 
statewide transportation planning activities or in a separate work 
program submitted by the STA.
    (b) Work program(s) that document transportation planning activities 
shall include a description of work to be accomplished and cost 
estimates for each activity. Additional information on metropolitan 
planning area work programs is contained in 23 CFR 450.314. Additional 
information on research, development, and technology transfer work 
program content and format is contained in subpart B of this part.
    (c) The STAs that use separate Federal-aid projects in accordance 
with Sec. 420.111(a) shall submit, in addition to the financial 
information specified below for each program, one overall summary 
showing the funding for the entire FHWA funded planning, research, 
development, and technology transfer effort. Each work program shall 
include a financial summary that shows:
    (1) Federal share by type of fund;
    (2) Matching rate by type of fund;
    (3) State and/or local matching share; and
    (4) Other State or local funds.
    (d) The STAs and MPOs also are encouraged to include cost estimates 
for transportation planning, research, development, and technology 
transfer related activities funded with other Federal or State and/or 
local funds; particularly for producing the FHWA-required data specified 
in paragraph (b) of Sec. 420.105, for planning for other transportation 
modes, and for air quality planning activities in areas designated as 
nonattainment for transportation-related pollutants in their work 
programs. The MPOs in Transportation Management Areas shall include such 
information in their work programs in accordance with the provisions of 
23 CFR part 450.

(The information collection requirements in Secs. 420.111(a), (b), and 
(c), and 420.117(b) and (c) for metropolitan planning areas have been 
approved by the OMB and assigned control number 2132-0529.)



Sec. 420.113  Eligibility of costs.

    (a) Costs will be eligible for FHWA participation provided that the 
costs:
    (1) Are for work performed for activities eligible under the section 
of title 23, U.S.C., applicable to the class of funds used for the 
activities;
    (2) Are verifiable from the STA's or the subrecipient's records;
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project objectives and meet the other criteria for 
allowable costs in the applicable cost principles cited in 49 CFR 18.22;
    (4) Are included in the approved budget, or amendment thereto; and
    (5) Were not incurred prior to FHWA authorization.
    (b)(1) Except as specified in paragraph (b)(2) of this section, 
indirect costs of an STA are not eligible for reimbursement with FHWA 
planning and research funds.
    (2) Salaries for services rendered by STA employees who are 
generally classified as administrative are eligible for reimbursement 
for a transportation planning unit, RD&T unit, or other unit performing 
eligible work with FHWA planning and research funds (including 
development, establishment, and implementation of the management and 
monitoring systems required by 23 U.S.C. 303 and 23 CFR part 500) in

[[Page 86]]

the ratio of time spent on the participating portion of work in the unit 
to the total unit's working hours.
    (c) Indirect costs of MPOs and local governments are allowable if 
supported by a cost allocation plan and indirect cost proposal approved 
in accordance with the provisions of OMB Circular A-87. An initial plan 
and proposal must be submitted to the Federal cognizant or oversight 
agency for negotiation and approval prior to recovering any indirect 
costs. The cost allocation plan and indirect cost proposal shall be 
updated annually and retained by the MPO or local government, unless 
requested to be resubmitted by the Federal cognizant or oversight 
agency, for review at the time of the audit required in accordance with 
49 CFR Part 90. If the MPO or local government's indirect cost rate 
varies significantly from the rate approved for the previous year, or if 
the MPO or local government changes its accounting system and affects 
the previously approved indirect cost allocation plan and proposal or 
rate and its basis of application, the indirect cost allocation plan and 
proposal shall be resubmitted for negotiation and approval. In either 
case, a rate shall be negotiated and approved for billing purposes until 
a new plan and proposal are approved.
    (d) Indirect costs of other STA subrecipients, including other State 
agencies, are allowable if supported by a cost allocation plan and 
indirect cost proposal prepared, submitted, and approved by the 
cognizant or oversight agency in accordance with the OMB requirements 
applicable to the subrecipient.



Sec. 420.115  Approval and authorization procedures.

    (a) The STA and its subrecipients shall obtain work program approval 
and authorization to proceed prior to beginning work on activities in 
the work program. Such approvals and authorizations should be based on 
final work program documents. The STA and its subrecipients also shall 
obtain prior approval for budget and programmatic changes as specified 
in 49 CFR 18.30 and for those items of allowable costs which require 
prior approval in accordance with the applicable cost principles 
specified in 49 CFR 18.22.
    (b) Except for advance construction, authorization to proceed with 
the work program(s) in whole or in part shall be deemed a contractual 
obligation of the Federal Government pursuant to 23 U.S.C. 106 and shall 
require that appropriate funds be available for the full Federal share 
of the cost of work authorized. Those STAs that do not have sufficient 
FHWA planning and research funds or obligation authority available to 
obligate the full Federal share of the entire work program(s) may 
utilize the advance construction provisions of 23 U.S.C. 115(a) in 
accordance with the requirements of 23 CFR Part 630, subpart G. The STAs 
that do not meet the advance construction provisions, or do not wish to 
utilize them, may request authorization to proceed with that portion of 
the work program(s) for which FHWA planning and research funds are 
available. In the latter case, authorization to proceed may be given for 
either selected work activities or for a portion of the program period, 
but such authorization shall not constitute a commitment by the FHWA to 
fund the remaining portion of the work program(s) should additional 
funds become available.
    (c) A project agreement shall be executed by the STA and FHWA 
Division Office for each statewide transportation planning, metropolitan 
planning area transportation planning, or RD&T work program, individual 
activity or study, or any combination administered as a single Federal-
aid project. The project agreement shall be executed after the 
authorization has been given by the FHWA to proceed with the work in 
whole or in part. In the event that the project agreement is executed 
for only part of the work program, the project agreement shall be 
amended when authorization is given to proceed with additional work.



Sec. 420.117  Program monitoring and reporting.

    (a) In accordance with 49 CFR 18.40, the STA shall monitor all 
activities, including those of its subrecipients, supported by FHWA 
planning and research funds to assure that the work is

[[Page 87]]

being managed and performed satisfactorily and that time schedules are 
being met.
    (b)(1) The STA shall submit performance and expenditure reports, 
including a report from each subrecipient, that contain as a minimum:
    (i) Comparison of actual performance with established goals;
    (ii) Progress in meeting schedules;
    (iii) Status of expenditures in a format compatible with the work 
program, including a comparison of budgeted (approved) amounts and 
actual costs incurred;
    (iv) Cost overruns or underruns;
    (v) Approved work program revisions; and
    (vi) Other pertinent supporting data.
    (2) Additional information on reporting requirements for individual 
RD&T studies is contained in subpart B of this part.
    (c) The frequency of reports required by paragraph (b) of this 
section shall be annual unless more frequent reporting is determined to 
be necessary by the FHWA; but in no case will reports be required more 
frequently than quarterly. These reports are due 90 days after the end 
of the reporting period for annual and final reports and no later than 
30 days after the end of the reporting period for other reports.
    (d) Events that have significant impact on the work program(s) shall 
be reported as soon as they become known. The type of events or 
conditions that require reporting include: problems, delays, or adverse 
conditions that will materially affect the ability to attain program 
objectives. This disclosure shall be accompanied by a statement of the 
action taken, or contemplated, and any Federal assistance needed to 
resolve the situation.
    (e) A provision of the Federal-Aid Project Agreement requires both 
the preparation of suitable reports to document the results of 
activities performed with FHWA planning and research funds and FHWA 
approval prior to publishing such reports. The STA may request a waiver 
of the requirement for prior approval. The FHWA's approval constitutes 
acceptance of such reports as evidence of work performed but does not 
imply endorsement of a report's findings or recommendations. Reports 
prepared for FHWA funded work shall include appropriate credit 
references and disclaimer statements.

(The information collection requirements in Secs. 420.117(b) and (c) for 
metropolitan planning areas have been approved by the OMB and assigned 
control number 2132-0529.)



Sec. 420.119  Fiscal procedures.

    (a) SPR funds shall be administered and accounted for as a single 
fund regardless of the category of Federal-aid highway funds from which 
they are derived.
    (b) PL funds shall be administered and accounted for as a single 
fund.
    (c) Optional funds authorized under 23 U.S.C. 104(b)(1), 104(b)(3), 
and 157(c) used for eligible planning and RD&T purposes shall be 
identified separately in the work program(s) and shall be administered 
and accounted for separately for fiscal purposes. The statewide and, if 
appropriate, metropolitan transportation improvement program provisions 
of 23 CFR Part 450 must be met for the use of NHS, STP, or minimum 
allocation funds for planning or RD&T purposes.
    (d) The maximum rate of Federal participation with funds identified 
in paragraphs (a) through (c) of this section shall be as prescribed in 
title 23, U.S.C., for the specific class of funds; unless, for funds 
identified under paragraph (a) or (b) of this section, the FHWA 
determines that the interests of the Federal-aid highway program would 
be best served without such match in accordance with 23 U.S.C. 307(c)(3) 
or 23 U.S.C. 104(f)(3). The FHWA also may waive the requirement for 
matching funds if national or regional high priority planning or RD&T 
problems can be more effectively addressed if several States and/or MPOs 
pool their funds. Requests for 100 percent Federal funding must be 
submitted to the FHWA Division Office for approval by the Associate 
Administrator for Program Development (for planning activities) or the 
Associate Administrator Research and Development (for RD&T activities).
    (e) The provisions of 49 CFR 18.24 are applicable to any necessary 
matching of FHWA planning and research funds.

[[Page 88]]

    (f) Payment shall be made in accordance with the provisions of 49 
CFR 18.21.



Sec. 420.121  Other requirements.

    (a) The financial management systems of the STAs and their 
subrecipients shall be in accordance with the provisions of 49 CFR 
18.20(a).
    (b) Program income, as defined in 49 CFR 18.25(b), shall be shown 
and deducted to determine the net costs on which the FHWA share will be 
based, unless an alternative method for using program income is 
specified in the Federal-Aid Project Agreement.
    (c) Audits shall be performed in accordance with 49 CFR 18.26 and 49 
CFR Part 90.
    (d) Acquisition, use, and disposition of equipment purchased by the 
STAs and their subrecipients with FHWA planning and research funds shall 
be in accordance with 49 CFR 18.32(b).
    (e) Acquisition and disposition of supplies acquired by the STAs and 
their subrecipients with FHWA planning and research funds shall be in 
accordance with 49 CFR 18.33.
    (f) In accordance with 49 CFR 18.34, STAs and their subrecipients 
may copyright any books, publications, or other copyrightable materials 
developed in the course of the FHWA planning and research funded 
project. The FHWA reserves a royalty-free, nonexclusive and irrevocable 
right to reproduce, publish, or otherwise use, and to authorize others 
to use, the work for Government purposes.
    (g) Procedures for the procurement of property and services with 
FHWA planning and research funds by the STAs and their subrecipients 
shall be in accordance with 49 CFR 18.36(a) and, if applicable, 
18.36(t). The STAs and their subrecipients shall not use FHWA funds for 
procurements from persons (as defined in 49 CFR 29.105) who have been 
debarred or suspended in accordance with the provisions of 49 CFR Part 
29, subparts A through E.
    (h) The STAs shall follow State laws and procedures when awarding 
and administering subgrants to MPOs and local governments and shall 
ensure that the requirements of 49 CFR 18.37(a) have been satisfied. 
STAs shall have primary responsibility for administering FHWA planning 
and research funds passed through to subrecipients, for ensuring that 
such funds are expended for eligible activities, and for ensuring that 
the funds are administered in accordance with this part, 49 CFR Part 18, 
and applicable cost principles.
    (i) Recordkeeping and retention requirements shall be in accordance 
with 49 CFR 18.42.
    (j) The STAs and their subrecipients are subject to the provisions 
of 37 CFR Part 401 governing patents and inventions and shall include, 
or incorporate by reference, the standard patent rights clause at 37 CFR 
401.14, except for Sec. 401.14(g), in all subgrants or contracts. In 
addition, STAs and their subrecipients shall include the following 
clause, suitably modified to identify the parties, in all subgrants or 
contracts, regardless of tier, for experimental, developmental or 
research work: ``The subgrantee or contractor will retain all rights 
provided for the State in this clause, and the State will not, as part 
of the consideration for awarding the subgrant or contract, obtain 
rights in the subgrantee's or contractor's subject inventions.''
    (k) In accordance with the provisions of 49 CFR Part 29, subpart F, 
STAs shall certify to the FHWA that they will provide a drug free 
workplace. This requirement can be satisfied through the annual 
certification for the Federal-aid highway program.
    (l) The provisions of 49 CFR Part 20 regarding restrictions on 
influencing certain Federal activities are applicable to all tiers of 
recipients of FHWA planning and research funds.
    (m) The nondiscrimination provisions of 23 CFR Parts 200 and 230 and 
49 CFR Part 21, with respect to Title VI of the Civil Rights Act of 1964 
and the Civil Rights Restoration Act of 1987, apply to all programs and 
activities of recipients, subrecipients, and contractors receiving FHWA 
planning and research funds whether or not those programs or activities 
are federally funded.
    (n) The STAs shall administer the transportation planning and RD&T 
program(s) consistent with their overall efforts to implement section 
1003(b)

[[Page 89]]

of the Intermodal Surface Transportation Efficiency Act of 1991 (Pub. L. 
102-240, 105 Stat. 1914) and 49 CFR Part 23 regarding disadvantaged 
business enterprises.
    (o) States and their subrecipients shall administer subgrants to 
universities, hospitals, and other non-profit organizations in 
accordance with the administrative requirements of OMB Circular A-110 as 
implemented by the U.S. DOT in 49 CFR Part 19, Uniform Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Non-Profit Organizations.
    (p) Reports and other documents prepared under FHWA planning and 
research funded grants or subgrants awarded after August 22, 1994, must 
be in metric units.



    Subpart B--Research, Development and Technology Transfer Program 
                               Management



Sec. 420.201  Purpose and applicability.

    The purpose of this subpart is to implement the provisions of 23 
U.S.C. 307 and to prescribe Federal assistance requirements for 
research, development, and technology transfer (RD&T) activities, 
programs, and studies undertaken by States with FHWA planning and 
research funds. The requirements of this subpart and subpart A of this 
part are applicable to work performed by the States and their 
subrecipients with FHWA planning and research funds.



Sec. 420.203  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) and Part 420, subpart A, are applicable to this subpart. 
As used in this subpart:
    Applied research means the study of phenomena relating to a specific 
known need in connection with the functional characteristics of a 
system; the primary purpose of this kind of research is to answer a 
question or solve a problem.
    Basic research means the study of phenomena whose specific 
application has not been identified; the primary purpose of this kind of 
research is to increase knowledge.
    Cooperatively funded study means an RD&T study or activity, 
administered by the FHWA, a lead State, or other agency, that is funded 
by some combination of a State's contribution of FHWA planning and 
research funds, FHWA administrative contract funds, 100 percent State 
funds, or funds from other Federal agencies.
    Development means the translation of basic or applied research 
results into prototype materials, devices, techniques, or procedures for 
the practical solution of a specific problem in transportation.
    Final report means a report documenting a completed RD&T study or 
activity.
    Intermodal RD&T means research, development, and technology transfer 
activities involving more than one mode of transportation including 
transfer facilities between modes.
    National Cooperative Highway Research Program (NCHRP) means the 
cooperative RD&T program directed toward solving problems of national or 
regional significance identified by States and the FHWA, and 
administered by the Transportation Research Board, National Academy of 
Sciences.
    Peer review means a review conducted by persons who are 
knowledgeable of the management and operation of RD&T programs. This may 
include but is not limited to representatives of another State, the 
FHWA, American Association of State Highway and Transportation 
Officials, Transportation Research Board (TRB), universities or the 
private sector.
    RD&T activity means a basic or applied research, development, or 
technology transfer project or study.
    Research means a systematic controlled inquiry involving analytical 
and experimental activities which primarily seek to increase the 
understanding of underlying phenomena. Research can be basic or applied.
    Technology transfer means those activities that lead to the adoption 
of a new technique or product by users and involves dissemination, 
demonstration, training, and other activities that lead to eventual 
innovation.
    Transportation Research Information Services (TRIS) means the TRB-
maintained computerized storage and retrieval system for abstracts of 
ongoing

[[Page 90]]

and completed RD&T activities, including abstracts of RD&T reports and 
articles.



Sec. 420.205  Policy.

    (a) It is the FHWA's policy to administer the RD&T program 
activities utilizing FHWA planning and research funds consistent with 
the policy specified in Sec. 420.105 and the following general 
principles in paragraphs (b) through (g) of this section.
    (b) State transportation agencies shall provide information 
necessary for peer reviews.
    (c) States are encouraged to develop, establish, and implement an 
RD&T program, funded with Federal and State resources, that anticipates 
and addresses transportation concerns before they become critical 
problems. To promote effective utilization of available resources, 
States are encouraged to cooperate with other States, the FHWA, and 
other appropriate agencies to achieve RD&T objectives established at the 
national level and to develop a technology transfer program to promote 
and use those results.
    (d) States will be allowed the authority and flexibility to manage 
and direct their RD&T activities as presented in their work programs, 
and to initiate RD&T activities supported by FHWA planning and research 
funds, subject to the limitation of Federal funds and to compliance with 
program conditions set forth in subpart A of this part and Sec. 420.207.
    (e) States will have primary responsibility for managing RD&T 
activities supported with FHWA planning and research funds carried out 
by other State agencies and organizations and for ensuring that such 
funds are expended for purposes consistent with this subpart.
    (f) Each State shall develop, establish, and implement a management 
process that ensures effective use of available FHWA planning and 
research funds for RD&T activities on a statewide basis. Each State is 
permitted to tailor its management process to meet State or local needs; 
however, the process must comply with the minimum requirements and 
conditions of this subpart.
    (g) States are encouraged to make effective use of the FHWA 
Division, Regional, and Headquarters office expertise in developing and 
carrying out their RD&T activities. Participation of the FHWA on 
advisory panels and in program review meetings is encouraged.



Sec. 420.207  Conditions for grant approval.

    (a) As a condition for approval of FHWA planning and research funds 
for RD&T activities, a State shall implement a program of RD&T 
activities for planning, design, construction, and maintenance of 
highways, public transportation, and intermodal transportation systems. 
Not less than 25 percent of the State's apportioned SPR funds shall be 
spent on such activities, unless waived by the FHWA, in accordance with 
the provisions of Sec. 420.107. In addition the State shall develop, 
establish, and implement a management process that identifies and 
implements RD&T activities expected to address highest priority 
transportation issues, and includes:
    (1) An interactive process for identification and prioritization of 
RD&T activities for inclusion in an RD&T work program;
    (2) Utilization, to the maximum extent possible, of all FHWA 
planning and research funds set aside for RD&T activities either 
internally or for participation in national, regional pooled, or 
cooperatively funded studies;
    (3) Procedures for tracking program activities, schedules, 
accomplishments, and fiscal commitments;
    (4) Support and use of the TRIS database for program development, 
reporting of active RD&T activities, and input of the final report 
information;
    (5) Procedures to determine the effectiveness of the State's 
management process in implementing the RD&T program, to determine the 
utilization of the State's RD&T outputs, and to facilitate peer reviews 
of its RD&T Program on a periodic basis and;
    (6) Procedures for documenting RD&T activities through the 
preparation of final reports. As a minimum, the documentation shall 
include the data collected, analyses performed, conclusions, and 
recommendations.

[[Page 91]]

The State shall actively implement appropriate research findings and 
should document benefits.
    (b) Each State shall conduct peer reviews of its RD&T program and 
should participate in the review of other States' programs on a periodic 
basis. To assist peer reviewers in completing a quality and performance 
effectiveness review, the State shall disclose to them information and 
documentation required to be collected and maintained under this 
subpart. Travel and other costs associated with peer reviews of the 
State's program may be identified as a line item in the State work 
program and will be eligible for 100 percent Federal funding. At least 
two members of the peer review team shall be selected from the FHWA list 
of qualified peer reviewers. The peer review team shall provide a 
written report of its findings to the State. The State shall forward a 
copy of the report to the FHWA Division Administrator with a written 
response to the peer review findings.
    (c) Documentation that describes the management process and the 
procedures for selecting and implementing RD&T activities shall be 
developed and maintained by the State. The documentation shall be 
submitted by the State to the FHWA Division office for FHWA approval. 
Significant changes in the management process also shall be submitted by 
the State for FHWA approval. The State shall make the documentation 
available, as necessary, to facilitate peer reviews.



Sec. 420.209  State work program.

    (a) The State's RD&T work program shall, as a minimum, consist of an 
annual or biennial description of activities and individual RD&T 
activities to be accomplished during the program period, estimated costs 
for each eligible activity, and a description of any cooperatively 
funded activities that are part of a national or regional pooled study 
including the NCHRP contribution. The State's work program should 
include a list of the major items with a cost estimate for each item.
    (b) The State's RD&T work program shall include financial summaries 
showing the funding levels and share (Federal, State, and other sources) 
for RD&T activities for the program year. States are encouraged to 
include any activity funded 100 percent with State or other funds.
    (c) Approval and authorization procedures in Sec. 420.115 are 
applicable to the State's RD&T work program.



Sec. 420.211  Eligibility of costs.

    (a) Unless otherwise specified in this section, the eligible costs 
for Federal participation in Sec. 420.113 are applicable to this part.
    (b) Costs for implementation of RD&T activities in conformity with 
the requirements and conditions set forth in this subpart are eligible 
for Federal participation.
    (c) Indirect costs of a State transportation agency RD&T unit are 
allowable to the extent specified in Sec. 420.113(b).
    (d) Indirect costs of other State agencies and organizations are 
allowable if supported by a cost allocation plan and indirect cost 
proposal in accordance with OMB requirements.



Sec. 420.213  Certification requirements.

    (a) Each State shall certify to the FHWA Division Administrator 
before June 30, 1995, that it is complying with the requirements of this 
subpart. For those States unable to meet full compliance by June 30, 
1995, the FHWA Division Administrator may grant conditional approval of 
the State's RD&T management process. A conditional approval shall cite 
those areas of the State's management process that are deficient. All 
deficiencies must be corrected by January 1, 1996. A copy of the 
certification shall be submitted with each work program. A new 
certification will be required if the State significantly revises its 
management process for the RD&T program.
    (b) The certification shall consist of a statement signed by the 
Administrator, or an official designated by the Administrator, of the 
State transportation agency certifying as follows: I (name of certifying 
official), (position title), of the State (Commonwealth) of ________, do 
hereby certify that the State (Commonwealth) is in compliance with all 
requirements of 23 U.S.C. 307 and its implementing regulations with 
respect to the research, development and technology transfer program,

[[Page 92]]

and contemplate no changes in statutes, regulations, or administrative 
procedures which would affect such compliance.
    (c) The FHWA Division Administrator shall determine if the State is 
in compliance with the requirements of this subpart.



Sec. 420.215  Procedure for withdrawal of approval.

    (a) If a State is not complying with the requirements of this 
subpart, or is not performing in accordance with its RD&T management 
process, the FHWA Division Administrator shall issue a written notice of 
proposed determination of noncompliance to the State. The notice shall 
set forth the reasons for the proposed determination and inform the 
State that it may reply in writing within 30 calendar days from the date 
of the notice. The State's reply should address the deficiencies cited 
in the notice and provide documentation as necessary.
    (b) If the State and Division Administrator cannot resolve the 
differences set forth in the determination of nonconformity, the State 
may appeal to the Federal Highway Administrator.
    (c) The Federal Highway Administrator's action shall constitute the 
final decision of the FHWA.
    (d) An adverse decision shall result in immediate withdrawal of 
approval of FHWA planning and research funds for the State's RD&T 
activities until the State is in full compliance.



PART 450--PLANNING ASSISTANCE AND STANDARDS--Table of Contents




                     Subpart A--Planning Definitions

Sec.
450.100  Purpose.
450.102  Applicability.
450.104  Definitions.

              Subpart B--Statewide Transportation Planning

450.200  Purpose.
450.202  Applicability.
450.204  Definitions.
450.206  Statewide transportation planning process: General 
          requirements.
450.208  Statewide transportation planning process: Factors.
450.210  Coordination.
450.212  Public involvement.
450.214  Statewide transportation plan.
450.216  Statewide transportation improvement program (STIP).
450.218  Funding.
450.220  Approvals.
450.222  Project selection for implementation.
450.224  Phase-in of new requirements.

     Subpart C--Metropolitan Transportation Planning and Programming

450.300  Purpose.
450.302  Applicability.
450.304  Definitions.
450.306  Metropolitan planning organization: Designations and 
          redesignation.
450.308  Metropolitan planning organization: Metropolitan planning area 
          boundaries.
450.310  Metropolitan planning organization: Agreements.
450.312  Metropolitan transportation planning: Responsibilities, 
          cooperation, and coordination.
450.314  Metropolitan transportation planning process: Unified planning 
          work programs.
450.316  Metropolitan transportation planning process: Elements.
450.318  Metropolitan transportation planning process: Major 
          metropolitan transportation investments.
450.320  Metropolitan transportation planning process: Relation to 
          management systems.
450.322  Metropolitan transportation planning process: Transportation 
          plan.
450.324  Transportation improvement program: General.
450.326  Transportation improvement program: Modification.
450.328  Transportation improvement program: Relationship to statewide 
          TIP.
450.330  Transportation improvement program: Action required by FHWA/
          FTA.
450.332  Project selection for implementation.
450.334  Metropolitan transportation planning process: Certification.
450.336  Phase-in of new requirements.

    Authority: 23 U.S.C. 134, 135, 217(g), and 315; 42 U.S.C. 7410 et 
seq.; 49 U.S.C. 5303-5306; 49 CFR 1.48(b) and 1.51.

    Source: 58 FR 58064, Oct. 28, 1993, unless otherwise noted.



                     Subpart A--Planning Definitions



Sec. 450.100  Purpose.

    The purpose of this subpart is to provide definitions for terms used 
in this part which go beyond those terms defined in 23 U.S.C. 101(a).

[[Page 93]]



Sec. 450.102  Applicability.

    The definitions in this subpart are applicable to this part, except 
as otherwise provided.



Sec. 450.104  Definitions.

    Except as defined in this subpart, terms defined in 23 U.S.C 101(a) 
are used in this part as so defined.
    Consultation means that one party confers with another identified 
party and, prior to taking action(s), considers that party's views.
    Cooperation means that the parties involved in carrying out the 
planning, programming and management systems processes work together to 
achieve a common goal or objective.
    Coordination means the comparison of the transportation plans, 
programs, and schedules of one agency with related plans, programs and 
schedules of other agencies or entities with legal standing, and 
adjustment of plans, programs and schedules to achieve general 
consistency .
    Governor means the Governor of any one of the fifty States, or 
Puerto Rico, and includes the Mayor of the District of Columbia.
    Maintenance area means any geographic region of the United States 
designated nonattainment pursuant to the CAA Amendments of 1990 (Section 
102(e)), 42 U.S.C. 7410 et seq., and subsequently redesignated to 
attainment subject to the requirement to develop a maintenance plan 
under section 175A of the Clean Air Act as amended (CAA), 42 U.S.C. 7410 
et seq.
    Major metropolitan transportation investment means a high-type 
highway or transit improvement of substantial cost that is expected to 
have a significant effect on capacity, traffic flow, level of service, 
or mode share at the transportation corridor or subarea scale. 
Consultation among the MPO, State department of transportation, transit 
operator, the FHWA and the FTA may lead to the designation of other 
proposed improvements as major investments beyond the examples listed 
below. Examples of such investments could generally include but are not 
limited to: Construction of a new partially controlled access (access 
allowed only for public roads) principal arterial, extension of an 
existing partially controlled access (access allowed only for public 
roads) principal arterial by one or more miles, capacity expansion of a 
partially controlled access (access provided only for public roads) 
principal arterial by at least one lane through widening or an 
equivalent increase in capacity produced by access control or 
technological improvement, construction or extension of a high-occupancy 
vehicle (HOV) facility or a fixed guideway transit facility by one or 
more miles, the addition of lanes or tracks to an existing fixed 
guideway transit facility for a distance of one or more miles, or a 
substantial increase in transit service on a fixed guideway facility. 
For this purpose, a fixed guideway refers to any public transportation 
facility which utilizes and occupies a designated right-of-way or rails 
including (but not limited to) rapid rail, light rail, commuter rail, 
busways, automated guideway transit, and people movers. Projects that 
generally are not considered to be major transportation investments 
include but are not limited to: Highway projects on principal arterials 
where access is not limited to public roads only, small scale 
improvements or extensions (normally less than one mile) on principal 
arterials with the primary goal of relieving localized safety or 
operational difficulties, resurfacing, replacement, or rehabilitation of 
existing principal arterials and equipment, highway projects not located 
on a principal arterial, and changes in transit routing and scheduling.
    Management system means a systematic process, designed to assist 
decisionmakers in selecting cost effective strategies/actions to improve 
the efficiency and safety of, and protect the investment in the nation's 
infrastructure. A management system includes: identification of 
performance measures; data collection and analysis; determination of 
needs; evaluation, and selection of appropriate strategies/actions to 
address the needs; and evaluation of the effectiveness of the 
implemented strategies/actions.

[[Page 94]]

    Metropolitan planning area means the geographic area in which the 
metropolitan transportation planning process required by 23 U.S.C. 134 
and section 8 of the Federal Transit Act must be carried out.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decisionmaking for the metropolitan planning 
area. MPOs designated prior to the promulgation of this regulation 
remain in effect until redesignated in accordance with Sec. 450.106 and 
nothing in this part is intended to require or encourage such 
redesignation.
    Metropolitan transportation plan means the official intermodal 
transportation plan that is developed and adopted through the 
metropolitan transportation planning process for the metropolitan 
planning area.
    Nonattainment area means any geographic region of the United States 
that the Environmental Protection Agency (EPA) has designated as a 
nonattainment area for a transportation related pollutant(s) for which a 
National Ambient Air Quality Standard (NAAQS) exists.
    Regionally significant project means a project (other than projects 
that may be grouped in the STIP/TIP pursuant to Sec. 450.216 and 
Sec. 450.324) that is on a facility which serves regional transportation 
needs (such as access to and from the area outside of the region, major 
activity centers in the region, major planned developments such as new 
retail malls, sports complexes, etc., or transportation terminals as 
well as most terminals themselves) and would normally be included in the 
modeling of a metropolitan area's transportation network, including, as 
a minimum, all principal arterial highways and all fixed guideway 
transit facilities that offer a significant alternative to regional 
highway travel.
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    State Implementation Plan (SIP) means the portion (or portions) of 
an applicable implementation plan approved or promulgated, or the most 
recent revision thereof, under sections 110, 301(d) and 175A of the 
Clean Air Act (42 U.S.C. 7409, 7601, and 7505a).
    Statewide transportation improvement program (STIP) means a staged, 
multiyear, statewide, intermodal program of transportation projects 
which is consistent with the Statewide transportation plan and planning 
processes and metropolitan plans, TIPs and processes.
    Statewide transportation plan means the official statewide, 
intermodal transportation plan that is developed through the statewide 
transportation planning process.
    Transportation improvement program (TIP) means a staged, multiyear, 
intermodal program of transportation projects which is consistent with 
the metropolitan transportation plan.
    Transportation Management Area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
or other area when TMA designation is requested by the Governor and the 
MPO (or affected local officials), and officially designated by the 
Administrators of the FHWA and the FTA. The TMA designation applies to 
the entire metropolitan planning area(s).



              Subpart B--Statewide Transportation Planning



Sec. 450.200  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 135, which 
requires each State to carry out a continuing, comprehensive, and 
intermodal statewide transportation planning process, including the 
development of a statewide transportation plan and transportation 
improvement program, that facilitates the efficient, economic movement 
of people and goods in all areas of the State, including those areas 
subject to the requirements of 23 U.S.C 134.



Sec. 450.202  Applicability.

    The requirements of this subpart are applicable to States and any 
other agencies/organizations which are responsible for satisfying these 
requirements.



Sec. 450.204  Definitions.

    Except as otherwise provided in subpart A of this part, terms 
defined in 23

[[Page 95]]

U.S.C. 101(a) are used in this part as so defined.



Sec. 450.206  Statewide transportation planning process: General requirements.

    (a) The statewide transportation planning process shall include, as 
a minimum:
    (1) Data collection and analysis;
    (2) Consideration of factors contained in Sec. 450.208;
    (3) Coordination of activities as noted in Sec. 450.210;
    (4) Development of a statewide transportation plan that considers a 
range of transportation options designed to meet the transportation 
needs (both passenger and freight) of the state including all modes and 
their connections; and
    (5) Development of a statewide transportation improvement program 
(STIP).
    (b) The statewide transportation planning process shall be carried 
out in coordination with the metropolitan planning process required by 
subpart C of this part.



Sec. 450.208  Statewide transportation planning process: Factors.

    (a) Each State shall, at a minimum, explicitly consider, analyze as 
appropriate and reflect in planning process products the following 
factors in conducting its continuing statewide transportation planning 
process:
    (1) The transportation needs (strategies and other results) 
identified through the management systems required by 23 U.S.C. 303;
    (2) Any Federal, State, or local energy use goals, objectives, 
programs, or requirements;
    (3) Strategies for incorporating bicycle transportation facilities 
and pedestrian walkways in appropriate projects throughout the State;
    (4) International border crossings and access to ports, airports, 
intermodal transportation facilities, major freight distribution routes, 
national parks, recreation and scenic areas, monuments and historic 
sites, and military installations;
    (5) The transportation needs of nonmetropolitan areas (areas outside 
of MPO planning boundaries) through a process that includes consultation 
with local elected officials with jurisdiction over transportation;
    (6) Any metropolitan area plan developed pursuant to 23 U.S.C. 134 
and section 8 of the Federal Transit Act, 49 U.S.C. app. 1607;
    (7) Connectivity between metropolitan planning areas within the 
State and with metropolitan planning areas in other States;
    (8) Recreational travel and tourism;
    (9) Any State plan developed pursuant to the Federal Water Pollution 
Control Act, 33 U.S.C. 1251 et seq. (and in addition to plans pursuant 
to the Coastal Zone Management Act);
    (10) Transportation system management and investment strategies 
designed to make the most efficient use of existing transportation 
facilities (including consideration of all transportation modes);
    (11) The overall social, economic, energy, and environmental effects 
of transportation decisions (including housing and community development 
effects and effects on the human, natural and manmade environments);
    (12) Methods to reduce traffic congestion and to prevent traffic 
congestion from developing in areas where it does not yet occur, 
including methods which reduce motor vehicle travel, particularly 
single-occupant motor vehicle travel;
    (13) Methods to expand and enhance appropriate transit services and 
to increase the use of such services (including commuter rail);
    (14) The effect of transportation decisions on land use and land 
development, including the need for consistency between transportation 
decisionmaking and the provisions of all applicable short-range and 
long-range land use and development plans (analyses should include 
projections of economic, demographic, environmental protection, growth 
management and land use activities consistent with development goals and 
transportation demand projections);
    (15) Strategies for identifying and implementing transportation 
enhancements where appropriate throughout the State;
    (16) The use of innovative mechanisms for financing projects, 
including

[[Page 96]]

value capture pricing, tolls, and congestion pricing;
    (17) Preservation of rights-of-way for construction of future 
transportation projects, including identification of unused rights-of-
way which may be needed for future transportation corridors, 
identification of those corridors for which action is most needed to 
prevent destruction or loss (including strategies for preventing loss of 
rights-of-way);
    (18) Long-range needs of the State transportation system for 
movement of persons and goods;
    (19) Methods to enhance the efficient movement of commercial motor 
vehicles;
    (20) The use of life-cycle costs in the design and engineering of 
bridges, tunnels, or pavements;
    (21) The coordination of transportation plans and programs developed 
for metropolitan planning areas of the State under 23 U.S.C. 134 and 
section 8 of the Federal Transit Act with the statewide transportation 
plans and programs developed under this subpart, and the reconciliation 
of such plans and programs as necessary to ensure connectivity within 
transportation systems;
    (22) Investment strategies to improve adjoining State and local 
roads that support rural economic growth and tourism development, 
Federal agency renewable resources management, and multipurpose land 
management practices, including recreation development; and
    (23) The concerns of Indian tribal governments having jurisdiction 
over lands within the boundaries of the State.
    (b) The degree of consideration and analysis of the factors should 
be based on the scale and complexity of many issues, including 
transportation problems, land use, employment, economic development, 
environmental and housing and community development objectives, the 
extent of overlap between factors and other circumstances statewide or 
in subareas within the State.



Sec. 450.210  Coordination.

    (a) In addition to the coordination required under 
Sec. 450.208(a)(21), in carrying out the requirements of this subpart, 
each State, in cooperation with participating organizations (such as 
MPOs, Indian tribal governments, environmental, resource and permit 
agencies, public transit operators) shall, to the extent appropriate, 
provide for a fully coordinated process including coordination of the 
following:
    (1) Data collection, data analysis and evaluation of alternatives 
for a transit, highway, bikeway, scenic byway, recreational trail, or 
pedestrian program with any such activities for the other programs;
    (2) Plans, such as the statewide transportation plan required under 
Sec. 450.214, with programs and priorities for transportation projects, 
such as the STIP;
    (3) Data analysis used in development of plans and programs, (for 
example, information resulting from traffic data analysis, data and 
plans regarding employment and housing availability, data and plans 
regarding land use control and community development) with land use 
projections, with data analysis on issues that are part of public 
involvement relating to project implementation, and with data analyses 
done as part of the establishment and maintenance of management systems 
developed in response to 23 U.S.C. 303;
    (4) Consideration of intermodal facilities with land use planning, 
including land use activities carried out by local, regional, and 
multistate agencies;
    (5) Transportation planning carried out by the State with 
transportation planning carried out by Indian tribal governments, 
Federal agencies and local governments, MPOs, large-scale public and 
private transportation providers, operators of major intermodal 
terminals and multistate businesses;
    (6) Transportation planning carried out by the State with 
significant transportation-related actions carried out by other agencies 
for recreation, tourism, and economic development and for the operation 
of airports, ports, rail terminals and other intermodal transportation 
facilities;
    (7) Public involvement carried out for the statewide planning 
process with public involvement carried out for the metropolitan 
planning process;

[[Page 97]]

    (8) Public involvement carried out for planning with public 
involvement carried out for project development;
    (9) Transportation planning carried out by the State with Federal, 
State, and local environmental resource planning that substantially 
affects transportation actions;
    (10) Transportation planning with financial planning;
    (11) Transportation planning with analysis of potential corridors 
for preservation;
    (12) Transportation planning with analysis of social, economic, 
employment, energy, environmental, and housing and community development 
effects of transportation actions; and
    (13) Transportation planning carried out by the State to meet the 
requirements of 23 U.S.C. 135 with transportation planning to meet other 
Federal requirements including the State rail plan.
    (b) The degree of coordination should be based on the scale and 
complexity of many issues including transportation problems, land use, 
employment, economic, environmental, and housing and community 
development objectives, and other circumstances statewide or in subareas 
within the State.



Sec. 450.212  Public involvement.

    (a) Public involvement processes shall be proactive and provide 
complete information, timely public notice, full public access to key 
decisions, and opportunities for early and continuing involvement. The 
processes shall provide for:
    (1) Early and continuing public involvement opportunities throughout 
the transportation planning and programming process;
    (2) Timely information about transportation issues and processes to 
citizens, affected public agencies, representatives of transportation 
agency employees, private providers of transportation, other interested 
parties and segments of the community affected by transportation plans, 
programs, and projects;
    (3) Reasonable public access to technical and policy information 
used in the development of the plan and STIP;
    (4) Adequate public notice of public involvement activities and time 
for public review and comment at key decision points, including but not 
limited to action on the plan and STIP;
    (5) A process for demonstrating explicit consideration and response 
to public input during the planning and program development process;
    (6) A process for seeking out and considering the needs of those 
traditionally underserved by existing transportation systems, such as 
low-income and minority households which may face challenges accessing 
employment and other amenities;
    (7) Periodic review of the effectiveness of the public involvement 
process to ensure that the process provides full and open access to all 
and revision of the process as necessary.
    (b) Public involvement activities carried out in a metropolitan area 
in response to metropolitan planning requirements in Sec. 450.322(c) or 
Sec. 450.324(c) may by agreement of the State and the MPO satisfy the 
requirements of this section.
    (c) During initial development and major revisions of the statewide 
transportation plan required under Sec. 450.214, the State shall provide 
citizens, affected public agencies and jurisdictions, employee 
representatives of transportation and other affected agencies, private 
and public providers of transportation, and other interested parties a 
reasonable opportunity to comment on the proposed plan. The proposed 
plan shall be published, with reasonable notification of its 
availability, or otherwise made readily available for public review and 
comment. Likewise, the official statewide transportation plan (see 
Sec. 450.214(d)) shall be published, with reasonable notification of its 
availability, or otherwise made readily available for public 
information.
    (d) During development and major revision of the statewide 
transportation improvement program required under Sec. 450.216, the 
Governor shall provide citizens, affected public agencies and 
jurisdictions, employee representatives of transportation or other 
affected agencies, private providers of transportation, and other 
interested parties, a reasonable opportunity for review and comment on 
the proposed program.

[[Page 98]]

The proposed program shall be published, with reasonable notification of 
its availability, or otherwise made readily available for public review 
and comment. The approved program (see Sec. 450.220(c)) if it differs 
significantly from the proposed program, shall be published, with 
reasonable notification of its availability, or otherwise made readily 
available for public information.
    (e) The time provided for public review and comment for minor 
revisions to the statewide transportation plan or statewide 
transportation improvement program will be determined by the State and 
local officials based on the complexity of the revisions.
    (f) The State shall, as appropriate, provide for public comment on 
existing and proposed procedures for public involvement throughout the 
statewide transportation planning and programming process. As a minimum, 
the State shall publish procedures and allow 45 days for public review 
and written comment before the procedures and any major revisions to 
existing procedures are adopted.
    (g) The public involvement processes will be considered by the FHWA 
and the FTA as they make the planning finding required in 
Sec. 450.220(b) to assure that full and open access is provided to the 
decision making process.



Sec. 450.214  Statewide transportation plan.

    (a) The State shall develop a statewide transportation plan for all 
areas of the State.
    (b) The plan shall:
    (1) Be intermodal (including consideration and provision, as 
applicable, of elements and connections of and between rail, commercial 
motor vehicle, waterway, and aviation facilities, particularly with 
respect to intercity travel) and statewide in scope in order to 
facilitate the efficient movement of people and goods;
    (2) Be reasonably consistent in time horizon among its elements, but 
cover a period of at least 20 years;
    (3) Contain, as an element, a plan for bicycle transportation, 
pedestrian walkways and trails which is appropriately interconnected 
with other modes;
    (4) Be coordinated with the metropolitan transportation plans 
required under 23 U.S.C. 134;
    (5) Reference, summarize or contain any applicable short range 
planning studies, strategic planning and/or policy studies, 
transportation need studies, management system reports and any 
statements of policies, goals and objectives regarding issues such as 
transportation, economic development, housing, social and environmental 
effects, energy, etc., that were significant to development of the plan; 
and
    (6) Reference, summarize or contain information on the availability 
of financial and other resources needed to carry out the plan.
    (c) In developing the plan, the State shall:
    (1) Cooperate with the MPOs on the portions of the plan affecting 
metropolitan planning areas;
    (2) Cooperate with the Indian tribal government and the Secretary of 
the Interior on the portions of the plan affecting areas of the State 
under the jurisdiction of an Indian tribal government;
    (3) Provide for public involvement as required under Sec. 450.212;
    (4) Provide for substantive consideration and analysis as 
appropriate of specified factors as required under Sec. 450.208; and
    (5) Provide for coordination as required under Sec. 450.210.
    (d) The State shall provide and carryout a mechanism to establish 
the document, or documents, comprising the plan as the official 
statewide transportation plan.
    (e) The plan shall be continually evaluated and periodically updated 
as appropriate using the procedures in this section for development and 
establishment of the plan.



Sec. 450.216  Statewide transportation improvement program (STIP).

    (a) Each State shall develop a statewide transportation improvement 
program for all areas of the State. In case of difficulties in 
developing the STIP portion for a particular area, e.g., metropolitan 
area, Indian tribal lands, etc., a partial STIP covering the rest of the 
State may be developed. The portion of the STIP in a metropolitan

[[Page 99]]

planning area (the metropolitan TIP developed pursuant to subpart C of 
this part) shall be developed in cooperation with the MPO. To assist 
this process, the State will need to provide MPOs with estimates of 
available Federal and State funds which the MPO can utilize in 
developing the metropolitan TIP. Metropolitan planning area TIPs shall 
be included without modification in the STIP, directly or by reference, 
once approved by the MPO and the Governor and after needed conformity 
findings are made. Metropolitan TIPs in nonattainment and maintenance 
areas are subject to the FHWA and the FTA conformity findings before 
their inclusion in the STIP. In nonattainment and maintenance areas 
outside metropolitan planning areas, Federal findings of conformity must 
be made prior to placing projects in the STIP. The State shall notify 
the appropriate MPO, local jurisdictions, Federal land agency, Indian 
tribal government, etc. when a TIP including projects under the 
jurisdiction of the agency has been included in the STIP. All title 23 
and Federal Transit Act fund recipients will share information as 
projects in the STIP are implemented. The Governor shall provide for 
public involvement in development of the STIP as required by 
Sec. 450.212. In addition, the STIP shall:
    (1) Include a list of priority transportation projects proposed to 
be carried out in the first 3 years of the STIP. Since each TIP is 
approved by the Governor, the TIP priorities will dictate STIP 
priorities for each individual metropolitan area. As a minimum, the 
lists shall group the projects that are to be undertaken in each of the 
years, e.g., year 1, year 2, year 3;
    (2) Cover a period of not less than 3 years, but may at State 
discretion cover a longer period. If the STIP covers more than 3 years, 
the projects in the additional years will be considered by the FHWA and 
the FTA only as informational;
    (3) Contain only projects consistent with the statewide plan 
developed under Sec. 450.214;
    (4) In nonattainment and maintenance areas, contain only 
transportation projects found to conform, or from programs that conform, 
to the requirements contained in 40 CFR part 51;
    (5) Be financially constrained by year and include sufficient 
financial information to demonstrate which projects are to be 
implemented using current revenues and which projects are to be 
implemented using proposed revenue sources while the system as a whole 
is being adequately operated and maintained. In nonattainment and 
maintenance areas, projects included in the first two years of the 
current STIP/TIP shall be limited to those for which funds are available 
or committed. In the case of proposed funding sources, strategies for 
ensuring their availability shall be identified;
    (6) Contain all capital and non-capital transportation projects 
(including transportation enhancements, Federal lands highways projects, 
trails projects, pedestrian walkways, and bicycle transportation 
facilities), or identified phases of transportation projects, proposed 
for funding under the Federal Transit Act (49 U.S.C. app. 1602, 1607a, 
1612 and 1614) and/or title 23, U.S.C. excluding:
    (i) Safety projects funded under section 402 of the Surface 
Transportation Assistance Act of 1982, as amended (49 U.S.C. app. 2302);
    (ii) IVHS planning grants funded under section 6055(b) of the 
Intermodal Surface Transportation Efficiency Act of 1991 (Pub. L. 102-
240, 105 Stat. 1914);
    (iii) Transit planning grants funded under section 8 or 26 of the 
Federal Transit Act (49 U.S.C. app. 1607 and 1622);
    (iv) Metropolitan planning projects funded under 23 U.S.C. 104(f);
    (v) State planning and research projects funded under 23 U.S.C. 
307(c)(1) (except those funded with NHS, STP and minimum allocation (MA) 
funds that the State and MPO for a metropolitan area agree should be in 
the TIP and consequently must be in the STIP); and
    (vi) Emergency relief projects (except those involving substantial 
functional, locational or capacity changes);
    (7) Contain all regionally significant transportation projects 
requiring an action by the FHWA or the FTA whether or not the projects 
are to be funded with title 23, U.S.C. or Federal Transit

[[Page 100]]

Act funds, e.g., addition of an interchange to the Interstate System 
with State, local and/or private funds, demonstration projects not 
funded under title 23, U.S.C., or the Federal Transit Act. (The STIP 
should, for information purposes, include all regionally significant 
transportation projects proposed to be funded with Federal funds other 
than those administered by the FHWA or the FTA. It should also include, 
for information purposes, if appropriate and cited in any TIPs, all 
regionally significant projects, to be funded with non-Federal funds);
    (8) Include for each project the following:
    (i) Sufficient descriptive material (i.e., type of work, termini, 
length, etc.) to identify the project or phase;
    (ii) Estimated total cost;
    (iii) The amount of Federal funds proposed to be obligated during 
each program year;
    (iv) For the first year, the proposed category of Federal funds and 
source(s) of non-Federal funds;
    (v) For the second and third years, the likely category or possible 
categories of Federal funds and sources of non-Federal funds;
    (vi) Identification of the agencies responsible for carrying out the 
project; and
    (9) For non-metropolitan areas, include in the first year only those 
projects which have been selected in accordance with the project 
selection requirements in Sec. 450.222(c).
    (b) Projects that are not considered to be of appropriate scale for 
individual identification in a given program year may be grouped by 
function, work type, and/or geographic area using the applicable 
classifications under 23 CFR 771.117 (c) and (d) and/or 40 CFR part 51.
    (c) Projects in any of the first three years of the STIP may be 
moved to any other of the first three years of the STIP subject to the 
project selection requirements of Sec. 450.222.
    (d) The STIP may be amended at any time under procedures agreed to 
by the cooperating parties consistent with the procedures established in 
this section (for STIP development), in Sec. 450.212 (for public 
involvement) and in Sec. 450.220 (for the FHWA and the FTA approval).



Sec. 450.218  Funding.

    Funds provided under sections 8, 9, 18, and 26(a)(2) of the Federal 
Transit Act and 23 U.S.C. 104(b)(1), 104(b)(3), 104(f)(3) and 307(c)(1) 
may be used to accomplish activities in this subpart.



Sec. 450.220  Approvals.

    (a) At least every two years, each State shall submit the entire 
proposed STIP, and amendments as necessary, concurrently to the FHWA and 
the FTA for joint approval. The State shall certify that the 
transportation planning process is being carried out in accordance with 
all applicable requirements of:
    (1) 23 U.S.C. 135, section 8(q) of the Federal Transit Act and this 
part;
    (2) Title VI of the Civil Rights Act of 1964 and the Title VI 
assurance executed by each State under 23 U.S.C. 324 and 29 U.S.C. 794;
    (3) Section 1003(b) of the Intermodal Surface Transportation 
Efficiency Act of 1991 (Pub. L. 102-240, 105 Stat. 1914) regarding the 
involvement of disadvantaged business enterprises in the FHWA and the 
FTA funded projects (sec. 105(f), Pub. L. 97-424, 96 Stat. 2100; 49 CFR 
part 23);
    (4) The provisions of the Americans with Disabilities Act of 1990 
(Pub. L. 101-336, 104 Stat. 327, as amended) and U.S. DOT regulations 
``Transportation for Individuals with Disabilities'' (49 CFR parts 27, 
37, and 38);
    (5) The provisions of 49 CFR part 20 regarding restrictions on 
influencing certain Federal activities; and
    (6) In States containing nonattainment and maintenance areas, 
sections 174 and 176 (c) and (d) of the Clean Air Act as amended (42 
U.S.C. 7504, 7506 (c) and (d)).
    (b) The FHWA and the FTA Administrators, in consultation with, where 
applicable, Federal lands agencies, will review the STIP or amendment 
and jointly make a finding as to the extent the projects in the STIP are 
based on a planning process that meets or substantially meets the 
requirements of title 23, U.S.C., the Federal Transit Act and subparts 
A, B and C of this part.
    (c) If, upon review, the FHWA and the FTA Administrators jointly 
determine that the STIP or amendment

[[Page 101]]

meet, to an acceptable degree, the requirements of 23 U.S.C. 135 and 
these regulations (including subpart C where a metropolitan TIP is 
involved), they will approve the STIP. Approval action will take one of 
the following forms, as appropriate:
    (1) Joint approval of the STIP;
    (2) Joint approval of the STIP subject to certain corrective actions 
being taken;
    (3) Joint approval of the STIP as the basis for approval of 
identified categories of projects; and/or
    (4) Under special circumstances, joint approval of a partial STIP 
covering only a portion of the State.
    (d) The joint approval period for a new STIP or amended STIP will 
not exceed two years. Where the State demonstrates that extenuating 
circumstances will delay the submittal of a new STIP or amended STIP for 
approval, FHWA and FTA will consider and take appropriate action on 
requests to extend the approval beyond two years for all or part of the 
STIP for a limited period of time. Where the request involves projects 
in a metropolitan planning area(s), the affected MPO(s) must concur in 
the request and if the delay was due to the development and approval of 
the TIP, the affected MPO(s) must provide supporting information for the 
request. If nonattainment and/or maintenance areas are involved, a 
request for an extension cannot be granted if the conformity 
determination on the TIP is no longer valid under EPA's conformity 
regulations (40 CFR part 51).
    (e) If, upon review, the FHWA and the FTA Administrators jointly 
determine that the STIP or amendment does not substantially meet the 
requirements of 23 U.S.C. 135 and this part for any identified 
categories of projects, they will not approve the STIP.
    (f) The FHWA and the FTA will notify the State of actions taken 
under this section.
    (g) Where necessary in order to maintain or establish operations, 
the Federal Transit Administrator and/or the Federal Highway 
Administrator may approve operating assistance for specific projects or 
programs even though the projects or programs may not be included in an 
approved STIP.



Sec. 450.222  Project selection for implementation.

    (a) Except as provided in Secs. 450.220(f) and 450.216(a)(7), only 
projects included in the Federally approved STIP shall be eligible for 
funds administered by the FHWA or the FTA.
    (b) In metropolitan planning areas, transportation projects 
requiring title 23 or Federal Transit Act funds administered by the FHWA 
or the FTA shall be selected in accordance with procedures established 
pursuant to the project selection portion of the metropolitan planning 
regulation in subpart C of this part.
    (c) Outside metropolitan planning areas, transportation projects 
undertaken on the National Highway System with title 23 funds and under 
the bridge and Interstate maintenance programs shall be selected by the 
State in consultation with the affected local officials. Federal lands 
highway projects shall be selected in accordance with 23 U.S.C. 204. 
Other transportation projects undertaken with funds administered by the 
FHWA shall be selected by the State in cooperation with the affected 
local officials, and projects undertaken with Federal Transit Act funds 
shall be selected by the State in cooperation with the appropriate 
affected local officials and transit operators.
    (d) The projects in the first year of an approved STIP shall 
constitute an ``agreed to'' list of projects for subsequent scheduling 
and implementation. No further project selection action is required for 
the implementing agency to proceed with these projects except that if 
appropriated Federal funds available are significantly less than the 
authorized amounts, Sec. 450.332(c) provides for a revised list of 
``agreed to'' projects to be developed upon the request of the State, 
MPO, or transit operators. If an implementing agency wishes to proceed 
with a project in the second and third year of the STIP, the specific 
project selection procedures stated in paragraphs (b) and (c) of this 
section must be used. Expedited selection procedures which provide for 
the advancement of projects from the second or third years of the STIP 
may be used if agreed to by all the parties involved in the selection.

[[Page 102]]



Sec. 450.224  Phase-in of new requirements.

    The State shall, by January 1, 1995, identify the official statewide 
transportation plan, described under Sec. 450.214, to be used as a basis 
for subsequently approved STIPs. Until such a plan is identified, but no 
later than January 1, 1995, the State may identify existing plans and 
policies which can serve as the official interim plan. STIP development 
shall be based upon a transportation plan which serves as the official 
plan (including an interim plan, if appropriate, prior to January 1, 
1995, provided that all factors identified in Sec. 450.208 are 
considered).



     Subpart C--Metropolitan Transportation Planning and Programming



Sec. 450.300  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 134 and 
section 8 of the Federal Transit Act, as amended, which require that a 
Metropolitan Planning Organization (MPO) be designated for each 
urbanized area and that the metropolitan area has a continuing, 
cooperative, and comprehensive transportation planning process that 
results in plans and programs that consider all transportation modes and 
supports metropolitan community development and social goals. These 
plans and programs shall lead to the development and operation of an 
integrated, intermodal transportation system that facilitates the 
efficient, economic movement of people and goods.



Sec. 450.302  Applicability.

    The provisions of this subpart are applicable to agencies involved 
in the transportation planning, program development, and project 
selection processes in metropolitan planning areas.



Sec. 450.304  Definitions.

    Except as otherwise provided in subpart A of this part, terms 
defined in 23 U.S.C 101(a) are used in this part as so defined.



Sec. 450.306  Metropolitan planning organization: Designations and redesignation.

    (a) Designations of metropolitan planning organizations (MPOs) made 
after December 18, 1991, shall be by agreement among the Governor(s) and 
units of general purpose local governments representing 75 percent of 
the affected metropolitan population (including the central city or 
cities as defined by the Bureau of the Census), or in accordance with 
procedures established by applicable State or local law. To the extent 
possible, only one MPO shall be designated for each UZA or group of 
contiguous UZAs. More than one MPO may be designated within an UZA only 
if the Governor(s) determines that the size and complexity of the UZA 
make designation of more than one MPO appropriate.
    (b) The designation shall clearly identify the policy body that is 
the forum for cooperative decisionmaking that will be taking the 
required approval actions as the MPO.
    (c) To the extent possible, the MPO designated should be established 
under specific State legislation, State enabling legislation, or by 
interstate compact, and shall have authority to carry out metropolitan 
transportation planning.
    (d) Redesignation (designation of a new MPO(s) to replace an 
existing MPO) shall occur by agreement of the Governor and affected 
local units of government representing 75 percent of the population in 
the entire metropolitan area. The central city(ies) must be among the 
units of local government agreeing to the redesignation.
    (e) Nothing in this subpart shall be deemed to prohibit the MPO from 
utilizing the staff resources of other agencies to carry out selected 
elements of the planning process.
    (f) Existing MPO designations remain valid until a new MPO is 
redesignated, unless revoked by the Governor and local units of 
government representing 75 percent of the population in the area served 
by the existing MPO (the central city(ies) must be among those desiring 
to revoke the MPO designation), or as otherwise provided under State or 
local procedures. If the Governor and

[[Page 103]]

local officials decide to redesignate an existing MPO, but do not 
formally revoke the existing MPO designation, the existing MPO remains 
in effect until a new MPO is formally designated.
    (g) Redesignation of an MPO in a multistate metropolitan area 
requires the approval of the Governor of each State and local officials 
representing 75 percent of the population in the entire metropolitan 
planning area. The local officials in the central city(ies) must be 
among those agreeing to the redesignation.
    (h) Redesignation of an MPO covering more than one UZA requires the 
approval of the Governor and local officials representing 75 percent of 
the population in the metropolitan planning area covered by the current 
MPO; the local officials in the central city(ies) in each urbanized area 
must be among those agreeing to the redesignation.
    (i) The voting membership of an MPO policy body designated/
redesignated subsequent to December 18, 1991, and serving a TMA, must 
include representation of local elected officials, officials of agencies 
that administer or operate major modes or systems of transportation, 
e.g., transit operators, sponsors of major local airports, maritime 
ports, rail operators, etc. (including all transportation agencies that 
were included in the MPO on June 1, 1991), and appropriate State 
officials. Where agencies that operate other major modes of 
transportation do not already have a voice on existing MPOs, the MPOs 
(in cooperation with the States) are encouraged to provide such agencies 
a voice in the decisionmaking process, including representation/
membership on the policy body and/or other appropriate committees. 
Further, where appropriate, existing MPOs should increase the 
representation of local elected officials on the policy board and other 
committees as a means for encouraging their greater involvement in MPO 
processes. Adding such representation to an MPO will not, in itself, 
constitute a redesignation action.
    (j) Where the metropolitan planning area boundaries for a previously 
designated MPO need to be expanded, the membership on the MPO policy 
body and other committees, should be reviewed to ensure that the added 
area has appropriate representation.
    (k) Adding membership (e.g., local elected officials and operators 
of major modes or systems of transportation, or representatives of newly 
urbanized areas) to the policy body or expansion of the metropolitan 
planning area does not automatically require redesignation of the MPO. 
To the extent possible, it is encouraged that this be done without a 
formal redesignation. The Governor and MPO shall review the previous MPO 
designation, State and local law, MPO bylaws, etc., to determine if this 
can be accomplished without a formal redesignation. If redesignation is 
considered necessary, the existing MPO will remain in effect until a new 
MPO is formally designated or the existing designation is formally 
revoked in accordance with the procedures of this section.



Sec. 450.308  Metropolitan planning organization: Metropolitan planning area boundaries.

    (a) The metropolitan planning area boundary shall, as a minimum, 
cover the UZA(s) and the contiguous geographic area(s) likely to become 
urbanized within the twenty year forecast period covered by the 
transportation plan described in Sec. 450.322 of this part. The boundary 
may encompass the entire metropolitan statistical area or consolidated 
metropolitan statistical area, as defined by the Bureau of the Census. 
For geographic areas designated as nonattainment or maintenance areas 
(as created by the Clean Air Act Amendments of 1990 (CAAA)) for 
transportation related pollutants under the CAA, the boundaries of the 
metropolitan planning area shall include at least the boundaries of the 
nonattainment or maintenance areas, except as otherwise provided by 
agreement between the MPO and the Governor under the procedures 
specified in Sec. 450.310(f) of this part. In the absence of a formal 
agreement between the Governor and the MPO to reduce the metropolitan 
planning area to an area less than the boundaries of the nonattainment 
or maintenance area, the entire nonattainment or maintenance

[[Page 104]]

area is subject to the applicable provisions of this part. Where a 
portion of the nonattainment or maintenance area is excluded from the 
metropolitan planning area boundary, the STP funds suballocated to 
urbanized areas greater than 200,000 in population shall not be utilized 
for projects outside the metropolitan planning area boundary.
    (b) The metropolitan planning area for a new UZA served by an 
existing or new MPO shall be established in accordance with these 
criteria. The current planning area boundaries for previously designated 
UZAs shall be reviewed and modified if necessary to comply with these 
criteria.
    (c) In addition to the criteria in paragraph (a) of this section, 
the planning areas currently in use for all transportation modes should 
be reviewed before establishing the metropolitan planning area boundary. 
Where appropriate, adjustments should be made to reflect the most 
comprehensive boundary to foster an effective planning process that 
ensures connectivity between modes, reduces access disadvantages 
experienced by modal systems, and promotes efficient overall 
transportation investment strategies.
    (d) Approval of metropolitan planning area boundaries by the FHWA or 
the FTA is not required. However, metropolitan planning area boundary 
maps must be submitted to the FHWA and the FTA after their approval by 
the MPO and the Governor.



Sec. 450.310  Metropolitan planning organization: Agreements.

    (a) The responsibilities for cooperatively carrying out 
transportation planning (including corridor and subarea studies) and 
programming shall be clearly identified in an agreement or memorandum of 
understanding between the State and the MPO.
    (b) There shall be an agreement between the MPO and operators of 
publicly owned transit services which specifies cooperative procedures 
for carrying out transportation planning (including corridor and subarea 
studies) and programming as required by this subpart.
    (c) In nonattainment or maintenances areas, if the MPO is not 
designated for air quality planning under section 174 of the Clean Air 
Act (42 U.S.C. 7504), there shall be an agreement between the MPO and 
the designated agency describing their respective roles and 
responsibilities for air quality related transportation planning.
    (d) To the extent possible, there shall be one cooperative agreement 
containing the understandings required by paragraphs (a) through (c) of 
this section among the State, MPO, publicly owned operators of mass 
transportation services, and air quality agencies.
    (e) Where the parties involved agree, the requirement for agreements 
specified in paragraphs (a), (b), and (c) of this section may be 
satisfied by including the responsibilities and procedures for carrying 
out a cooperative process in the unified planning work program or a 
prospectus as defined in Sec. 450.314(c).
    (f) If the metropolitan planning area does not include the entire 
nonattainment or maintenance area, there shall be an agreement among the 
State department of transportation, State air quality agency, affected 
local agencies, and the MPO describing the process for cooperative 
planning and analysis of all projects outside the metropolitan planning 
area but within the nonattainment or maintenance area. The agreement 
also must indicate how the total transportation related emissions for 
the nonattainment or maintenance area, including areas both within and 
outside the metropolitan planning area, will be treated for the purposes 
of determining conformity in accordance with the U.S. EPA conformity 
regulation (40 CFR part 51). The agreement shall address policy 
mechanisms for resolving conflicts concerning transportation related 
emissions that may arise between the metropolitan planning area and the 
portion of the nonattainment or maintenance area outside the 
metropolitan planning area. Proposals to exclude a portion of the 
nonattainment or maintenance area from the planning area boundary shall 
be coordinated with the FHWA, the FTA, the EPA, and the State air 
quality agency before a final decision is made.

[[Page 105]]

    (g) Where more than one MPO has authority within a metropolitan 
planning area or a nonattainment or maintenance area, there shall be an 
agreement between the State department(s) of transportation and the MPOs 
describing how the processes will be coordinated to assure the 
development of an overall transportation plan for the metropolitan 
planning area. In metropolitan planning areas that are nonattainment or 
maintenance areas, the agreement shall include State and local air 
quality agencies. The agreement shall address policy mechanisms for 
resolving potential conflicts that may arise between the MPOs, e.g., 
issues related to the exclusion of a portion of the nonattainment area 
from the planning area boundary.
    (h) For all requirements specified in paragraphs (a) through (g) of 
this section, existing agreements shall be reviewed for compliance and 
reaffirmed or modified as necessary to ensure participation by all 
appropriate modes.



Sec. 450.312  Metropolitan transportation planning: Responsibilities, cooperation, and coordination.

    (a) The MPO in cooperation with the State and with operators of 
publicly owned transit services shall be responsible for carrying out 
the metropolitan transportation planning process. The MPO, the State and 
transit operator(s) shall cooperatively determine their mutual 
responsibilities in the conduct of the planning process, including 
corridor refinement studies, described in Secs. 450.316 through 450.318. 
They shall cooperatively develop the unified planning work program, 
transportation plan, and transportation improvement program specified in 
Secs. 450.314 through 450.318. In addition, the development of the plan 
and TIP shall be coordinated with other providers of transportation, 
e.g., sponsors of regional airports, maritime port operators, rail 
freight operators, etc.
    (b) The MPO shall approve the metropolitan transportation plan and 
its periodic updates. The MPO and the Governor shall approve the 
metropolitan transportation improvement program and any amendments.
    (c) In nonattainment or maintenance areas, the MPO shall coordinate 
the development of the transportation plan with the SIP development 
process including the development of the transportation control 
measures. The MPO shall develop or assist in developing the 
transportation control measures.
    (d) In nonattainment or maintenance areas for transportation related 
pollutants, the MPO shall not approve any transportation plan or program 
which does not conform with the SIP, as determined in accordance with 
the U.S. EPA conformity regulation (40 CFR Part 51).
    (e) If more than one MPO has authority in a metropolitan planning 
area (including multi-State metropolitan planning areas) or in an area 
which is designated as nonattainment or maintenance for transportation 
related pollutants, the MPOs and the Governor(s) shall cooperatively 
establish the boundaries of the metropolitan planning area (including 
the twenty year planning horizon and relationship to the nonattainment 
or maintenance areas) and the respective jurisdictional responsibilities 
of each MPO. The MPOs shall consult with each other and the State(s) to 
assure the preparation of integrated plans and transportation 
improvement programs for the entire metropolitan planning area. An 
individual MPO plan and program may be developed separately. However, 
each plan and program must be consistent with the plans and programs of 
other MPOs in the metropolitan planning area. For the overall 
metropolitan planning area, the individual MPO planning process shall 
reflect coordinated data collection, analysis and development. In those 
areas where this provision is applicable, coordination efforts shall be 
initiated and the process and outcomes documented in subsequent 
transmittals of the UPWP and various planning products (the plan, TIP, 
etc.) to the State, the FHWA, and the FTA.
    (f) The Secretary must designate as transportation management areas 
all UZAs over 200,000 population as determined by the most recent 
decennial census. The Secretary designated TMAs by publishing a notice 
in the Federal Register. Copies of this notice may be obtained from the 
FHWA

[[Page 106]]

Metropolitan Planning Division or Office of Planning FTA. The TMAs so 
designated and those designated subsequently by the FHWA and the FTA 
(including those designated upon request of the MPO and the Governor) 
must comply with the special requirements applicable to such areas 
regarding congestion management systems, project selection, and 
certification. The TMA designation applies to the entire metropolitan 
planning area boundary. If a metropolitan planning area encompasses a 
TMA and other UZA(s), the designation applies to the entire metropolitan 
planning area regardless of the population of constituent UZAs.
    (g) As required by 23 CFR part 500, the required management systems 
shall be developed cooperatively by the State, the MPOs and transit 
operators for each metropolitan planning area. In TMAs, the congestion 
management system will be developed as part of the metropolitan 
transportation planning process.
    (h) The State shall cooperatively participate in the development of 
metropolitan transportation plans. The relationship of the statewide 
transportation plan and the metropolitan plan is specified in subpart B 
of this part.
    (i) Where a metropolitan planning area includes Federal public lands 
and/or Indian tribal lands, the affected Federal agencies and Indian 
tribal governments shall be involved appropriately in the development of 
transportation plans and programs.



Sec. 450.314  Metropolitan transportation planning process: Unified planning work programs.

    (a) In TMAs, the MPO(s) in cooperation with the State and operators 
of publicly owned transit shall develop unified planning work programs 
(UPWPs) that meet the requirements of 23 CFR part 420, subpart A, and:
    (1) Discuss the planning priorities facing the metropolitan planning 
area and describe all metropolitan transportation and transportation-
related air quality planning activities (including the corridor and 
subarea studies discussed in Sec. 450.318) anticipated within the area 
during the next one or two year period, regardless of funding sources or 
agencies conducting activities, in sufficient detail to indicate who 
will perform the work, the schedule for completing it and the products 
that will be produced;
    (2) Document planning activities to be performed with funds provided 
under title 23, U.S.C., and the Federal Transit Act.
    (b) Arrangements may be made with the FHWA and the FTA to combine 
the UPWP requirements with the work program for other Federal sources of 
planning funds.
    (c) The metropolitan transportation planning process may include the 
development of a prospectus that establishes a multiyear framework 
within which the UPWP is accomplished. The prospectus may be used to 
satisfy the requirements of Sec. 450.310 and paragraph (a)(1) of this 
section.
    (d) In areas not designated as TMAs, the MPO in cooperation with the 
State and transit operators, with the approval of the FHWA and the FTA, 
may prepare a simplified statement of work, in lieu of a UPWP, that 
describes who will perform the work and the work that will be 
accomplished using Federal funds. If a simplified statement of work is 
used, it may be submitted as part of the Statewide planning work 
program, in accordance with 23 CFR part 420.



Sec. 450.316  Metropolitan transportation planning process: Elements.

    (a) Section 134(f) of title 23, U.S.C., and Federal Transit Act 
section 8(f) (49 U.S.C. app. 1607(f)) list 15 factors that must be 
considered as part of the planning process for all metropolitan areas. 
The following factors shall be explicitly considered, analyzed as 
appropriate, and reflected in the planning process products:
    (1) Preservation of existing transportation facilities and, where 
practical, ways to meet transportation needs by using existing 
transportation facilities more efficiently;
    (2) Consistency of transportation planning with applicable Federal, 
State, and local energy conservation programs, goals, and objectives;
    (3) The need to relieve congestion and prevent congestion from 
occurring where it does not yet occur including:

[[Page 107]]

    (i) The consideration of congestion management strategies or actions 
which improve the mobility of people and goods in all phases of the 
planning process; and
    (ii) In TMAs, a congestion management system that provides for 
effective management of new and existing transportation facilities 
through the use of travel demand reduction and operation management 
strategies (e.g., various elements of IVHS) shall be developed in 
accordance with Sec. 450.320;
    (4) The likely effect of transportation policy decisions on land use 
and development and the consistency of transportation plans and programs 
with the provisions of all applicable short- and long-term land use and 
development plans (the analysis should include projections of 
metropolitan planning area economic, demographic, environmental 
protection, growth management, and land use activities consistent with 
metropolitan and local/central city development goals (community, 
economic, housing, etc.), and projections of potential transportation 
demands based on the interrelated level of activity in these areas);
    (5) Programming of expenditures for transportation enhancement 
activities as required under 23 U.S.C. 133;
    (6) The effects of all transportation projects to be undertaken 
within the metropolitan planning area, without regard to the source of 
funding (the analysis shall consider the effectiveness, cost 
effectiveness, and financing of alternative investments in meeting 
transportation demand and supporting the overall efficiency and 
effectiveness of transportation system performance and related impacts 
on community/central city goals regarding social and economic 
development, housing, and employment);
    (7) International border crossings and access to ports, airports, 
intermodal transportation facilities, major freight distribution routes, 
national parks, recreation areas, monuments and historic sites, and 
military installations (supporting technical efforts should provide an 
analysis of goods and services movement problem areas, as determined in 
cooperation with appropriate private sector involvement, including, but 
not limited to, addressing interconnected transportation access and 
service needs of intermodal facilities);
    (8) Connectivity of roads within metropolitan planning areas with 
roads outside of those areas;
    (9) Transportation needs identified through the use of the 
management systems required under 23 U.S.C. 303 (strategies identified 
under each management system will be analyzed during the development of 
the transportation plan, including its financial component, for possible 
inclusion in the metropolitan plan and TIP);
    (10) Preservation of rights-of-way for construction of future 
transportation projects, including future transportation corridors;
    (11) Enhancement of the efficient movement of freight;
    (12) The use of life-cycle costs in the design and engineering of 
bridges, tunnels, or pavement (operating and maintenance costs must be 
considered in analyzing transportation alternatives);
    (13) The overall social, economic, energy, and environmental effects 
of transportation decisions (including consideration of the effects and 
impacts of the plan on the human, natural and man-made environment such 
as housing, employment and community development, consultation with 
appropriate resource and permit agencies to ensure early and continued 
coordination with environmental resource protection and management 
plans, and appropriate emphasis on transportation-related air quality 
problems in support of the requirements of 23 U.S.C. 109(h), and section 
14 of the Federal Transit Act (49 U.S.C. 1610), section 4(f) of the DOT 
Act (49 U.S.C. 303) and section 174(b) of the Clean Air Act (42 U.S.C. 
7504(b)));
    (14) Expansion, enhancement, and increased use of transit services;
    (15) Capital investments that would result in increased security in 
transit systems; and
    (16) Recreational travel and tourism.
    (b) In addition, the metropolitan transportation planning process 
shall:
    (1) Include a proactive public involvement process that provides 
complete information, timely public notice, full public access to key 
decisions, and supports early and continuing involvement of the public 
in developing plans

[[Page 108]]

and TIPs and meets the requirements and criteria specified as follows:
    (i) Require a minimum public comment period of 45 days before the 
public involvement process is initially adopted or revised;
    (ii) Provide timely information about transportation issues and 
processes to citizens, affected public agencies, representatives of 
transportation agency employees, private providers of transportation, 
other interested parties and segments of the community affected by 
transportation plans, programs and projects (including but not limited 
to central city and other local jurisdiction concerns);
    (iii) Provide reasonable public access to technical and policy 
information used in the development of plans and TIPs and open public 
meetings where matters related to the Federal-aid highway and transit 
programs are being considered;
    (iv) Require adequate public notice of public involvement activities 
and time for public review and comment at key decision points, 
including, but not limited to, approval of plans and TIPs (in 
nonattainment areas, classified as serious and above, the comment period 
shall be at least 30 days for the plan, TIP and major amendment(s));
    (v) Demonstrate explicit consideration and response to public input 
received during the planning and program development processes;
    (vi) Seek out and consider the needs of those traditionally 
underserved by existing transportation systems, including but not 
limited to low-income and minority households;
    (vii) When significant written and oral comments are received on the 
draft transportation plan or TIP (including the financial plan) as a 
result of the public involvement process or the interagency consultation 
process required under the U.S. EPA's conformity regulations, a summary, 
analysis, and report on the disposition of comments shall be made part 
of the final plan and TIP;
    (viii) If the final transportation plan or TIP differs significantly 
from the one which was made available for public comment by the MPO and 
raises new material issues which interested parties could not reasonably 
have foreseen from the public involvement efforts, an additional 
opportunity for public comment on the revised plan or TIP shall be made 
available;
    (ix) Public involvement processes shall be periodically reviewed by 
the MPO in terms of their effectiveness in assuring that the process 
provides full and open access to all;
    (x) These procedures will be reviewed by the FHWA and the FTA during 
certification reviews for TMAs, and as otherwise necessary for all MPOs, 
to assure that full and open access is provided to MPO decisionmaking 
processes;
    (xi) Metropolitan public involvement processes shall be coordinated 
with statewide public involvement processes wherever possible to enhance 
public consideration of the issues, plans, and programs and reduce 
redundancies and costs;
    (2) Be consistent with Title VI of the Civil Rights Act of 1964 and 
the Title VI assurance executed by each State under 23 U.S.C. 324 and 29 
U.S.C. 794, which ensure that no person shall, on the grounds of race, 
color, sex, national origin, or physical handicap, be excluded from 
participation in, be denied benefits of, or be otherwise subjected to 
discrimination under any program receiving Federal assistance from the 
United States Department of Transportation;
    (3) Identify actions necessary to comply with the Americans With 
Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, as amended) 
and U.S. DOT regulations ``Transportation for Individuals With 
Disabilities'' (49 CFR parts 27, 37, and 38);
    (4) Provide for the involvement of traffic, ridesharing, parking, 
transportation safety and enforcement agencies; commuter rail operators; 
airport and port authorities; toll authorities; appropriate private 
transportation providers, and where appropriate city officials; and
    (5) Provide for the involvement of local, State, and Federal 
environment resource and permit agencies as appropriate.
    (c) In attainment areas not designated as TMAs simplified procedures 
for the development of plans and programs, if considered appropriate, 
shall

[[Page 109]]

be proposed by the MPO in cooperation with the State and transit 
operator, and submitted by the State for approval by the FHWA and the 
FTA. In developing proposed simplified planning procedures, 
consideration shall be given to the transportation problems in the area 
and their complexity, the growth rate of the area (e.g., fast, moderate 
or slow), the appropriateness of the factors specified for consideration 
in this subpart including air quality, and the desirability of 
continuing any planning process that has already been established. Areas 
experiencing fast growth should give consideration to a planning process 
that addresses all of the general requirements specified in this 
subpart. As a minimum, all areas employing a simplified planning process 
will need to develop a transportation plan to be approved by the MPO and 
a TIP to be approved by the MPO and the Governor.
    (d) The metropolitan transportation planning process shall include 
preparation of technical and other reports to assure documentation of 
the development, refinement, and update of the transportation plan. The 
reports shall be reasonably available to interested parties, consistent 
with Sec. 450.316(b)(1).

[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996]



Sec. 450.318  Metropolitan transportation planning process: Major metropolitan transportation investments.

    (a) Where the need for a major metropolitan transportation 
investment is identified, and Federal funds are potentially involved, 
major investment (corridor or subarea) studies shall be undertaken to 
develop or refine the plan and lead to decisions by the MPO, in 
cooperation with participating agencies, on the design concept and scope 
of the investment. Where the studies have not been completed prior to 
plan approval, the provisions of Sec. 450.322(b)(8) apply.
    (b) When any of the implementing agencies or the MPO wish to 
initiate a major investment study, a meeting will be convened to 
determine the extent of the analyses and agency roles in a cooperative 
process which involves the MPO, the State department of transportation, 
public transit operators, environmental, resource and permit agencies, 
local officials, the FHWA and the FTA and where appropriate community 
development agencies, major governmental housing bodies, and such other 
related agencies as may be impacted by the proposed scope of analysis. A 
reasonable opportunity, consistent with Sec. 450.316(b)(1), shall be 
provided for citizens and interested parties including affected public 
agencies, representatives of transportation agency employees, and 
private providers of transportation to participate in the cooperative 
process. This cooperative process shall establish the range of 
alternatives to be studied, such as alternative modes and technologies 
(including intelligent vehicle and highway systems), general alignment, 
number of lanes, the degree of demand management, and operating 
characteristics.
    (c) To the extent appropriate as determined under paragraph (b) of 
this section, major investment studies shall evaluate the effectiveness 
and cost-effectiveness of alternative investments or strategies in 
attaining local, State and national goals and objectives. The analysis 
shall consider the direct and indirect costs of reasonable alternatives 
and such factors as mobility improvements; social, economic, and 
environmental effects; safety; operating efficiencies; land use and 
economic development; financing; and energy consumption.
    (d) These major investment studies will serve as the ``alternatives 
analyses'' required by section 3(i)(1)(A) of the Federal Transit Act (49 
U.S.C. app. 1602(i)) for certain projects for which discretionary 
section 3 ``New Start'' funding is being sought. The studies will also 
be used as the primary source of information for the other section 
3(i)(1)(A) Secretarial findings on cost-effectiveness, local financial 
commitment and capacity, mobility improvements, environmental benefits, 
economic development, operating efficiency, etc.
    (e) These major investment studies also will, when appropriate, 
serve as the analysis of demand reduction and operational management 
strategies pursuant to 23 CFR 500.109(b).
    (f) A major investment study will include environmental studies 
which will

[[Page 110]]

be used for environmental documents as described in paragraphs (f)(1) 
and (2) of this section:
    (1) As a minimum the participating agencies will use the major 
investment study as input to an environmental impact statement or 
environmental assessment prepared subsequent to the completion of the 
study. In such a case, the major investment study reports shall document 
the consideration given to alternatives and their impacts; or
    (2) The participating agencies may elect to develop a draft 
environmental impact statement or environmental assessment as part of 
the major investment study. At any time after the completion of the 
study and the inclusion of the major transportation investment in the 
plan and the TIP the participating agencies may request the development 
of final environmental decision documents required under NEPA for such 
major transportation investments, culminating in the execution of a 
Record of Decision or Finding of No Significant Impact by the FHWA and/
or the FTA.
    (g) Major investment studies may lead to decisions that modify the 
project design concept and scope assumed in the plan development 
process. In this case, the study shall lead to the specification of a 
project's design concept and scope in sufficient detail to meet the 
requirements of the U.S. EPA conformity regulations (40 CFR part 51).
    (h) Major investment studies are eligible for funds authorized under 
sections 8, 9 and 26 of the Federal Transit Act (49 U.S.C. app. 1607, 
16072, and 1622) and planning and capital funds apportioned under title 
23, U.S.C., and shall be included in the UPWP. If CMAQ, STP, NHS, or 
other capital funds administered by the FHWA are utilized for this 
purpose, the study must also be included in the TIP.
    (i) Where the environmental process has been completed and a Record 
of Decision or Finding of No Significant Impact has been signed, 
Sec. 450.318 does not apply. Where the environmental process has been 
initiated but not completed, the FHWA and the FTA shall be consulted on 
appropriate modifications to meet the requirements of this section.

[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996]



Sec. 450.320  Metropolitan transportation planning process: Relation to management systems.

    (a) Within all metropolitan areas, congestion, public 
transportation, and intermodal management systems, to the extent 
appropriate, shall be part of the metropolitan transportation planning 
process required under the provisions of 23 U.S.C. 134 and 49 U.S.C. 
5303-5305.
    (b) In TMAs designated as nonattainment for ozone or carbon 
monoxide, Federal funds may not be programmed for any project that will 
result in a significant increase in carrying capacity for single 
occupant vehicles (a new general purpose highway on a new location or 
adding general purpose lanes, with the exception of safety improvements 
or the elimination of bottlenecks) unless the project results from a 
congestion management system (CMS) meeting the requirements of 23 CFR 
part 500. Such projects shall incorporate all reasonably available 
strategies to manage the SOV facility effectively (or to facilitate its 
management in the future). Other travel demand reduction and operational 
management strategies, as appropriate for the corridor, but not 
appropriate for incorporation into the SOV facility itself, shall be 
committed to by the State and the MPO for implementation in a timely 
manner, but no later than the completion date for the SOV project. 
Projects that had advanced beyond the NEPA stage prior to April 6, 1992, 
and which are actively advancing to implementation, e.g., right-of-way 
acquisition has been approved, shall be deemed programmed and not 
subject to this provision.
    (c) In TMAs, the planning process must include the development of a 
CMS that provides for effective management of new and existing 
transportation facilities through the use of travel demand reduction and 
operational management strategies and meets the requirements of 23 CFR 
part 500.

[[Page 111]]

    (d) The effectiveness of the management systems in enhancing 
transportation investment decisions and improving the overall efficiency 
of the metropolitan area's transportation systems and facilities shall 
be evaluated periodically, preferably as part of the metropolitan 
planning process.

[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996]



Sec. 450.322  Metropolitan transportation planning process: Transportation plan.

    (a) The metropolitan transportation planning process shall include 
the development of a transportation plan addressing at least a twenty 
year planning horizon. The plan shall include both long-range and short-
range strategies/actions that lead to the development of an integrated 
intermodal transportation system that facilitates the efficient movement 
of people and goods. The transportation plan shall be reviewed and 
updated at least triennially in nonattainment and maintenance areas and 
at least every five years in attainment areas to confirm its validity 
and its consistency with current and forecasted transportation and land 
use conditions and trends and to extend the forecast period. The 
transportation plan must be approved by the MPO.
    (b) In addition, the plan shall:
    (1) Identify the projected transportation demand of persons and 
goods in the metropolitan planning area over the period of the plan;
    (2) Identify adopted congestion management strategies including, as 
appropriate, traffic operations, ridesharing, pedestrian and bicycle 
facilities, alternative work schedules, freight movement options, high 
occupancy vehicle treatments, telecommuting, and public transportation 
improvements (including regulatory, pricing, management, and operational 
options), that demonstrate a systematic approach in addressing current 
and future transportation demand;
    (3) Identify pedestrian walkway and bicycle transportation 
facilities in accordance with 23 U.S.C. 217(g);
    (4) Reflect the consideration given to the results of the management 
systems, including in TMAs that are nonattainment areas for carbon 
monoxide and ozone, identification of SOV projects that result from a 
congestion management system that meets the requirements of 23 CFR part 
500;
    (5) Assess capital investment and other measures necessary to 
preserve the existing transportation system (including requirements for 
operational improvements, resurfacing, restoration, and rehabilitation 
of existing and future major roadways, as well as operations, 
maintenance, modernization, and rehabilitation of existing and future 
transit facilities) and make the most efficient use of existing 
transportation facilities to relieve vehicular congestion and enhance 
the mobility of people and goods;
    (6) Include design concept and scope descriptions of all existing 
and proposed transportation facilities in sufficient detail, regardless 
of the source of funding, in nonattainment and maintenance areas to 
permit conformity determinations under the U.S. EPA conformity 
regulations at 40 CFR part 51. In all areas, all proposed improvements 
shall be described in sufficient detail to develop cost estimates;
    (7) Reflect a multimodal evaluation of the transportation, 
socioeconomic, environmental, and financial impact of the overall plan, 
including all major transportation investments in accordance with 
Sec. 450.318;
    (8) For major transportation investments for which analyses are not 
complete, indicate that the design concept and scope (mode and 
alignment) have not been fully determined and will require further 
analysis. The plan shall identify such study corridors and subareas and 
may stipulate either a set of assumptions (assumed alternatives) 
concerning the proposed improvements or a no-build condition pending the 
completion of a corridor or subarea level analysis under Sec. 450.318. 
In nonattainment and maintenance areas, the set of assumed alternatives 
shall be in sufficient detail to permit plan conformity determinations 
under the U.S. EPA conformity regulations (40 CFR part 51);
    (9) Reflect, to the extent that they exist, consideration of: the 
area's comprehensive long-range land use plan

[[Page 112]]

and metropolitan development objectives; national, State, and local 
housing goals and strategies, community development and employment plans 
and strategies, and environmental resource plans; local, State, and 
national goals and objectives such as linking low income households with 
employment opportunities; and the area's overall social, economic, 
environmental, and energy conservation goals and objectives;
    (10) Indicate, as appropriate, proposed transportation enhancement 
activities as defined in 23 U.S.C. 101(a); and
    (11) Include a financial plan that demonstrates the consistency of 
proposed transportation investments with already available and projected 
sources of revenue. The financial plan shall compare the estimated 
revenue from existing and proposed funding sources that can reasonably 
be expected to be available for transportation uses, and the estimated 
costs of constructing, maintaining and operating the total (existing 
plus planned) transportation system over the period of the plan. The 
estimated revenue by existing revenue source (local, State, and Federal 
and private) available for transportation projects shall be determined 
and any shortfalls identified. Proposed new revenues and/or revenue 
sources to cover shortfalls shall be identified, including strategies 
for ensuring their availability for proposed investments. Existing and 
proposed revenues shall cover all forecasted capital, operating, and 
maintenance costs. All cost and revenue projections shall be based on 
the data reflecting the existing situation and historical trends. For 
nonattainment and maintenance areas, the financial plan shall address 
the specific financial strategies required to ensure the implementation 
of projects and programs to reach air quality compliance.
    (c) There must be adequate opportunity for public official 
(including elected officials) and citizen involvement in the development 
of the transportation plan before it is approved by the MPO, in 
accordance with the requirements of Sec. 450.316(b)(1). Such procedures 
shall include opportunities for interested parties (including citizens, 
affected public agencies, representatives of transportation agency 
employees, and private providers of transportation) to be involved in 
the early stages of the plan development/update process. The procedures 
shall include publication of the proposed plan or other methods to make 
it readily available for public review and comment and, in nonattainment 
TMAs, an opportunity for at least one formal public meeting annually to 
review planning assumptions and the plan development process with 
interested parties and the general public. The procedures also shall 
include publication of the approved plan or other methods to make it 
readily available for information purposes.
    (d) In nonattainment and maintenance areas for transportation 
related pollutants, the FHWA and the FTA, as well as the MPO, must make 
a conformity determination on any new/revised plan in accordance with 
the Clean Air Act and the EPA conformity regulations (40 CFR part 51).
    (e) Although transportation plans do not need to be approved by the 
FHWA or the FTA, copies of any new/revised plans must be provided to 
each agency.

[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996]



Sec. 450.324  Transportation improvement program: General.

    (a) The metropolitan transportation planning process shall include 
development of a transportation improvement program (TIP) for the 
metropolitan planning area by the MPO in cooperation with the State and 
public transit operators.
    (b) The TIP must be updated at least every two years and approved by 
the MPO and the Governor. The frequency and cycle for updating the TIP 
must be compatible with the STIP development and approval process. Since 
the TIP becomes part of the STIP, the TIP lapses when the FHWA and FTA 
approval for the STIP lapses. In the case of extenuating circumstances, 
FHWA and FTA will consider and take appropriate action on requests to 
extend the STIP approval period for all or part of the STIP in 
accordance with Sec. 450.220(d). Although metropolitan TIPs, unlike

[[Page 113]]

statewide TIPs, do not need to be approved by the FHWA or the FTA, 
copies of any new or amended TIPs must be provided to each agency. 
Additionally, in nonattainment and maintenance areas for transportation 
related pollutants, the FHWA and the FTA, as well as the MPO, must make 
a conformity determination on any new or amended TIPs (unless the 
amendment consists entirely of exempt projects) in accordance with the 
Clean Air Act requirements and the EPA conformity regulations (40 CFR 
part 51).
    (c) There must be reasonable opportunity for public comment in 
accordance with the requirements of Sec. 450.316(b)(1) and, in 
nonattainment TMAs, an opportunity for at least one formal public 
meeting during the TIP development process. This public meeting may be 
combined with the public meeting required under Sec. 450.322(c). The 
proposed TIP shall be published or otherwise made readily available for 
review and comment. Similarly, the approved TIP shall be published or 
otherwise made readily available for information purposes.
    (d) The TIP shall cover a period of not less than 3 years, but may 
cover a longer period if it identifies priorities and financial 
information for the additional years. The TIP must include a priority 
list of projects to be carried out in the first three years. As a 
minimum, the priority list shall group the projects that are to be 
undertaken in each of the years, i.e., year 1, year 2, year 3. In 
nonattainment and maintenance areas, the TIP shall give priority to 
eligible TCMs identified in the approved SIP in accordance with the U.S. 
EPA conformity regulation (40 CFR part 51) and shall provide for their 
timely implementation.
    (e) The TIP shall be financially constrained by year and include a 
financial plan that demonstrates which projects can be implemented using 
current revenue sources and which projects are to be implemented using 
proposed revenue sources (while the existing transportation system is 
being adequately operated and maintained). The financial plan shall be 
developed by the MPO in cooperation with the State and the transit 
operator. The State and the transit operator must provide MPOs with 
estimates of available Federal and State funds which the MPOs shall 
utilize in developing financial plans. It is expected that the State 
would develop this information as part of the STIP development process 
and that the estimates would be refined through this process. Only 
projects for which construction and operating funds can reasonably be 
expected to be available may be included. In the case of new funding 
sources, strategies for ensuring their availability shall be identified. 
In developing the financial analysis, the MPO shall take into account 
all projects and strategies funded under title 23, U.S.C., and the 
Federal Transit Act, other Federal funds, local sources, State 
assistance, and private participation. In nonattainment and maintenance 
areas, projects included for the first two years of the current TIP 
shall be limited to those for which funds are available or committed.
    (f) The TIP shall include:
    (1) All transportation projects, or identified phases of a project, 
(including pedestrian walkways, bicycle transportation facilities and 
transportation enhancement projects) within the metropolitan planning 
area proposed for funding under title 23, U.S.C., (including Federal 
Lands Highway projects) and the Federal Transit Act, excluding safety 
projects funded under 23 U.S.C. 402, emergency relief projects (except 
those involving substantial functional, locational and capacity 
changes), and planning and research activities (except those funded with 
NHS, STP, and/or MA funds). Planning and research activities funded with 
NHS, STP and/or MA funds, other than those used for major investment 
studies, may be excluded from the TIP by agreement of the State and the 
MPO;
    (2) Only projects that are consistent with the transportation plan;
    (3) All regionally significant transportation projects for which an 
FHWA or the FTA approval is required whether or not the projects are to 
be funded with title 23, U.S.C., or Federal Transit Act funds, e.g., 
addition of an interchange to the Interstate System with State, local, 
and/or private funds, demonstration projects not funded under title 23, 
U.S.C., or the Federal Transit Act, etc.;

[[Page 114]]

    (4) For informational purposes and air quality analysis in 
nonattainment and maintenance areas, all regionally significant 
transportation projects proposed to be funded with Federal funds, 
including intermodal facilities, not covered in paragraphs (f)(1) or 
(f)(3) of this section; and
    (5) For informational purposes and air quality analysis in 
nonattainment and maintenance areas, all regionally significant projects 
to be funded with non-Federal funds.
    (g) With respect to each project under paragraph (f) of this section 
the TIP shall include:
    (1) Sufficient descriptive material (i.e., type of work, termini, 
length, etc.) to identify the project or phase;
    (2) Estimated total cost;
    (3) The amount of Federal funds proposed to be obligated during each 
program year;
    (4) Proposed source of Federal and non-Federal funds;
    (5) Identification of the recipient/subrecipient and State and local 
agencies responsible for carrying out the project;
    (6) In nonattainment and maintenance areas, identification of those 
projects which are identified as TCMs in the applicable SIP; and
    (7) In areas with Americans with Disabilities Act required 
Paratransit and key station plans, identification of those projects 
which will implement the plans.
    (h) In nonattainment and maintenance areas, projects included shall 
be specified in sufficient detail (design concept and scope) to permit 
air quality analysis in accordance with the U.S. EPA conformity 
requirements (40 CFR part 51).
    (i) Projects proposed for FHWA and/or FTA funding that are not 
considered by the State and MPO to be of appropriate scale for 
individual identification in a given program year may be grouped by 
function, geographic area, and work type using applicable 
classifications under 23 CFR 771.117 (c) and (d). In nonattainment and 
maintenance areas, classifications must be consistent with the exempt 
project classifications contained in the U.S. EPA conformity 
requirements (40 CFR part 51).
    (j) Projects utilizing Federal funds that have been allocated to the 
area pursuant to 23 U.S.C. 133(d)(3)(E) shall be identified.
    (k) The total Federal share of projects included in the TIP proposed 
for funding under section 9 of the Federal Transit Act (49 U.S.C. app. 
1607a) may not exceed section 9 authorized funding levels available to 
the area for the program year.
    (l) Procedures or agreements that distribute suballocated Surface 
Transportation Program or section 9 funds to individual jurisdictions or 
modes within the metropolitan area by predetermined percentages or 
formulas are inconsistent with the legislative provisions that require 
MPOs in cooperation with the State and transit operators to develop a 
prioritized and financially constrained TIP and shall not be used unless 
they can be clearly shown to be based on considerations required to be 
addressed as part of the planning process.
    (m) For the purpose of including Federal Transit Act section 3 
funded projects in a TIP the following approach shall be followed:
    (1) The total Federal share of projects included in the first year 
of the TIP shall not exceed levels of funding committed to the area; and
    (2) The total Federal share of projects included in the second, 
third and/or subsequent years of the TIP may not exceed levels of 
funding committed, or reasonably expected to be available, to the area.
    (n) As a management tool for monitoring progress in implementing the 
transportation plan, the TIP shall:
    (1) Identify the criteria and process for prioritizing 
implementation of transportation plan elements (including intermodal 
trade-offs) for inclusion in the TIP and any changes in priorities from 
previous TIPs;
    (2) List major projects from the previous TIP that were implemented 
and identify any significant delays in the planned implementation of 
major projects;
    (3) In nonattainment and maintenance areas, describe the progress in 
implementing any required TCMs, including the reasons for any 
significant delays in the planned implementation

[[Page 115]]

and strategies for ensuring their advancement at the earliest possible 
time; and
    (4) In nonattainment and maintenance areas, include a list of all 
projects found to conform in a previous TIP and are now part of the base 
case for the purpose of air quality conformity analyses. Projects shall 
be included in this list until construction or acquisition has been 
fully authorized, except when a three-year period has elapsed subsequent 
to the NEPA approval without any major action taking place to advance 
the project.
    (o) In order to maintain or establish operations, in the absence of 
an approved metropolitan TIP, the FTA and/or the FHWA Administrators, as 
appropriate, may approve operating assistance.



Sec. 450.326  Transportation improvement program: Modification.

    The TIP may be modified at any time consistent with the procedures 
established in this part for its development and approval. In 
nonattainment or maintenance areas for transportation related pollutants 
if the TIP is amended by adding or deleting projects which contribute to 
and/or reduce transportation related emissions or replaced with a new 
TIP, new conformity determinations by the MPO and the FHWA and the FTA 
will be necessary. Public involvement procedures consistent with 
Sec. 450.316(b)(1) shall be utilized in amending the TIP, except that 
these procedures are not required for TIP amendments that only involve 
projects of the type covered in Sec. 450.324(i).



Sec. 450.328  Transportation improvement program: Relationship to statewide TIP.

    (a) After approval by the MPO and the Governor, the TIP shall be 
included without modification, directly or by reference, in the STIP 
program required under 23 U.S.C. 135 and consistent with Sec. 450.220, 
except that in nonattainment and maintenance areas, a conformity finding 
by the FHWA and the FTA must be made before it is included in the STIP. 
After approval by the MPO and the Governor, a copy shall be provided to 
the FHWA and the FTA.
    (b) The State shall notify the appropriate MPO and Federal Lands 
Highways Program agencies, e.g., Bureau of Indian Affairs and/or 
National Park Service, when a TIP including projects under the 
jurisdiction of these agencies has been included in the STIP.



Sec. 450.330  Transportation improvement program: Action required by FHWA/FTA.

    (a) The FHWA and the FTA must jointly find that each metropolitan 
TIP is based on a continuing, comprehensive transportation process 
carried on cooperatively by the States, MPOs and transit operators in 
accordance with the provisions of 23 U.S.C. 134 and section 8 of the 
Federal Transit Act (49 U.S.C. app. 1607). This finding shall be based 
on the self-certification statement submitted by the State and MPO under 
Sec. 450.334 and upon other reviews as deemed necessary by the FHWA and 
the FTA.
    (b) In nonattainment and maintenance areas, the FHWA and the FTA 
must also jointly find that the metropolitan TIP conforms with the 
adopted SIP and that priority has been given to the timely 
implementation of transportation control measures contained in the SIP 
in accordance with 40 CFR part 51. As part of their review in 
nonattainment areas requiring TCMs, the FHWA and the FTA will 
specifically consider any comments relating to the financial plans for 
the plan and TIP contained in the summary of significant comments 
required under Sec. 450.316(b). If the TIP is found to be in 
nonconformance with the SIP, the TIP shall be returned to the Governor 
and the MPO with the joint finding. If the TIP is found to conform with 
the SIP, the Governor/MPO shall be notified of the joint finding. After 
the FHWA and the FTA find the TIP to be in conformance, the TIP shall be 
incorporated, without modification, into the STIP, directly or by 
reference.



Sec. 450.332  Project selection for implementation.

    (a) In areas not designated as TMAs and when Sec. 450.332(c) does 
not apply, projects to be implemented using title 23 funds other than 
Federal lands projects or Federal Transit Act funds

[[Page 116]]

shall be selected by the State and/or the transit operator, in 
cooperation with the MPO from the approved metropolitan TIP. Federal 
Lands Highways program projects shall be selected in accordance with 23 
U.S.C. 204.
    (b) In areas designated as TMAs where Sec. 450.332(c) does not 
apply, all title 23 and Federal Transit Act funded projects, except 
projects on the NHS and projects funded under the bridge, interstate 
maintenance, and Federal Lands Highways programs, shall be selected by 
the MPO in consultation with the State and transit operator from the 
approved metropolitan TIP and in accordance with the priorities in the 
approved metropolitan TIP. Projects on the NHS, and projects funded 
under the bridge and Interstate maintenance programs shall be selected 
by the State in cooperation with the MPO, from the approved metropolitan 
TIP. Federal Lands Highway Program projects shall be selected in 
accordance with 23 U.S.C. 204.
    (c) Once a TIP that meets the requirements of Sec. 450.324 has been 
developed and approved, the first year of the TIP shall constitute an 
``agreed to'' list of projects for project selection purposes and no 
further project selection action is required for the implementing agency 
to proceed with projects, except where the appropriated Federal funds 
available to the metropolitan planning area are significantly less than 
the authorized amounts. In this case, a revised ``agreed to'' list of 
projects shall be jointly developed by the MPO, State, and the transit 
operator if requested by the MPO, State, or the transit operator. If the 
State or transit operator wishes to proceed with a project in the second 
or third year of the TIP, the specific project selection procedures 
stated in paragraphs (a) and (b) of this section must be used unless the 
MPO, State, and transit operator jointly develop expedited project 
selection procedures to provide for the advancement of projects from the 
second or third year of the TIP.
    (d) Projects not included in the Federally approved STIP will not be 
eligible for funding with title 23, U.S.C., or Federal Transit Act 
funds.
    (e) In nonattainment and maintenance areas, priority will be given 
to the timely implementation of TCMs contained in the applicable SIP in 
accordance with the U.S. EPA conformity regulations at 40 CFR part 51.



Sec. 450.334  Metropolitan transportation planning process: Certification.

    (a) The State and the MPO shall annually certify to the FHWA and the 
FTA that the planning process is addressing the major issues facing the 
area and is being conducted in accordance with all applicable 
requirements of:
    (1) Section 134 of title 23, U.S.C., section 8 of the Federal 
Transit Act (49 U.S.C. app. 1607) and this part;
    (2) Sections 174 and 176 (c) and (d) of the Clean Air Act (42 U.S.C. 
7504, 7506 (c) and (d));
    (3) Title VI of the Civil Rights Act of 1964 and the Title VI 
assurance executed by each State under 23 U.S.C. 324 and 29 U.S.C. 794;
    (4) Section 1003(b) of the Intermodal Surface Transportation 
Efficiency Act of 1991 (Pub. L. 102-240) regarding the involvement of 
disadvantaged business enterprises in the FHWA and the FTA funded 
planning projects (sec. 105(f), Pub. L. 97-424, 96 Stat. 2100; 49 CFR 
part 23); and
    (5) The provisions of the Americans with Disabilities Act of 1990 
(Pub. L. 101-336, 104 Stat. 327, as amended) and U.S. DOT regulations 
``Transportation for Individuals with Disabilities'' (49 CFR parts 27, 
37, and 38).
    (b) The FHWA and the FTA jointly will review and evaluate the 
transportation planning process for each TMA (as appropriate but no less 
than once every three years) to determine if the process meets the 
requirements of this subpart.
    (c) In TMAs that are nonattainment or maintenance areas for 
transportation related pollutants, the FHWA and the FTA will also review 
and evaluate the transportation planning process to assure that the MPO 
has an adequate process to ensure conformity of plans and programs in 
accordance with procedures contained in 40 CFR part 51.
    (d) Upon the review and evaluation conducted under paragraphs (b) 
and (c) of this section, if the FHWA and the

[[Page 117]]

FTA jointly determine that the transportation planning process in a TMA 
meets or substantially meets the requirements of this part, they will 
take one of the following actions, as appropriate:
    (1) Jointly certify the transportation planning process;
    (2) Jointly certify the transportation planning process subject to 
certain specified corrective actions being taken; or
    (3) Jointly certify the planning process as the basis for approval 
of only those categories of programs or projects that the Administrators 
may jointly determine and subject to certain specified corrective 
actions being taken.
    (e) A certification action under this section will remain in effect 
for three years unless a new certification determination is made sooner.
    (f) If, upon the review and evaluation conducted under paragraph (b) 
or (c) of this section, the FHWA and the FTA jointly determine that the 
transportation planning process in a TMA does not substantially meet the 
requirements, they may take the following action as appropriate, if 
after September 30, 1993, the transportation planning process is not 
certified:
    (1) Withhold in whole or in part the apportionment attributed to the 
relevant metropolitan planning area under 23 U.S.C. 133(d)(3), capital 
funds apportioned under section 9 of the Federal Transit Act, and 
section 3 funds under the Federal Transit Act (49 U.S.C. 1607(a)); or
    (2) Withhold approval of all or certain categories of projects.
    (g) If a transportation planning process remains uncertified for 
more than two consecutive years after September 30, 1994, 20 percent of 
the apportionment attributed to the metropolitan planning area under 23 
U.S.C. 133(d)(3) and capital funds apportioned under the formula program 
of section 9 of the Federal Transit Act (49 U.S.C. app. 1607a) will be 
withheld.
    (h) The State and the MPO shall be notified of the actions taken 
under paragraphs (f) and (g) of this section. Upon full, joint 
certification by the FHWA and the FTA, all funds withheld will be 
restored to the metropolitan area, unless they have lapsed.



Sec. 450.336  Phase-in of new requirements.

    (a) Except for reflecting the consideration given the results of the 
management systems, the planning process and plans in nonattainment 
areas requiring TCMs shall comply, to the extent possible, with the 
requirements of this subpart by October 1, 1994. All other metropolitan 
areas shall comply to the extent possible with the requirements of this 
subpart by December 18, 1994. Where time does not permit a quantitative 
analysis of certain factors, a qualitative analysis of those factors 
will be acceptable. If a forecast period of less than twenty years is 
acceptable for SIP development and air quality conformity purposes, that 
same time period will be acceptable for transportation planning. The 
initial plan update shall be financially feasible, taking into account 
capital costs and the funds reasonably available for capital 
improvements, as well as addressing to the extent possible the costs of 
and revenues available for operating and maintenance of the 
transportation system. Where TCMs are required, the plan update process 
shall be coordinated with the process for developing TCMs. The planning 
process for subsequent updates of the plan and the updated plans shall 
comply with the requirements of this subpart. Plan updates performed in 
all areas must consider the results of the management systems (specified 
in 23 CFR part 500) as they become available. The plan shall reflect 
this consideration.
    (b)(1) During the period prior to the full implementation of the CMS 
in a TMA, the MPO in cooperation with the State, the public transit 
operators, and other operators of major modes of transportation shall 
identify the location of the most serious congestion problems in the 
metropolitan area and proceed with the development of actions to address 
these problems.
    (2) Prior to the full implementation of a CMS, an adequate interim 
CMS in a TMA designated as nonattainment for carbon monoxide and/or 
ozone shall, as a minimum, include a process that results in an 
appropriate analysis of all

[[Page 118]]

reasonably available (including multimodal) travel demand reduction and 
operational management strategies for the corridor in which a project 
that will result in a significant increase in SOV capacity is proposed. 
This analysis must demonstrate how far such strategies can go in 
eliminating the need for additional SOV capacity in the corridor. If the 
analysis demonstrates that additional SOV capacity is warranted, then 
all reasonable strategies to manage the facility effectively (or to 
facilitate its management in the future) shall be incorporated into the 
proposed facility. Other travel demand reduction and operational 
management strategies appropriate for the corridor, but not appropriate 
for incorporation into the SOV facility itself must be committed to by 
the State and the MPO for implementation in a timely manner but no later 
than completion of construction of the SOV facility. If the area does 
not already have a traffic management and carpool/vanpool program, the 
establishment of such programs must be a part of the commitment.
    (3) In TMAs that are nonattainment for carbon monoxide and/or ozone, 
the MPO, a State and/or transit operator may not advance a project 
utilizing Federal funds that provides a significant capacity increase 
for SOVs (adding general purpose lanes, with the exception of safety 
improvements or the elimination of bottlenecks, or a new highway on a 
new location) beyond the NEPA process unless an interim CMS is in place 
that meets the criteria in paragraphs (b)(1) and (b)(2) of this section 
and the project results from this interim CMS.
    (4) Projects that are part of or consistent with a State mandated 
congestion management system/plan are not subject to the requirements in 
paragraphs (b)(1) and (b)(2) of this section.
    (5) Projects advanced beyond the NEPA process as of April 6, 1992 
and which are being implemented, e.g., right-of-way acquisition has been 
approved, will be deemed to be programmed and not subject to this 
requirement.

[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996]



PART 460--PUBLIC ROAD MILEAGE FOR APPORTIONMENT OF HIGHWAY SAFETY FUNDS--Table of Contents




Sec.
460.1  Purpose.
460.2  Definitions.
460.3  Procedures.

    Authority: 23 U.S.C. 315, 402(c); 49 CFR 1.48.

    Source: 40 FR 44322, Sept. 26, 1975, unless otherwise noted.



Sec. 460.1  Purpose.

    The purpose of this part is to prescribe the policies and procedures 
followed in identifying and reporting public road mileage for 
utilization in the statutory formula for the apportionment of highway 
safety funds under 23 U.S.C. 402(c).



Sec. 460.2  Definitions.

    As used in this part:
    (a) Public road means any road under the jurisdiction of and 
maintained by a public authority and open to public travel.
    (b) Public authority means a Federal, State, county, town, or 
township, Indian tribe, municipal or other local government or 
instrumentality thereof, with authority to finance, build, operate or 
maintain toll or toll-free highway facilities.
    (c) Open to public travel means that the road section is available, 
except during scheduled periods, extreme weather or emergency 
conditions, passable by four-wheel standard passenger cars, and open to 
the general public for use without restrictive gates, prohibitive signs, 
or regulation other than restrictions based on size, weight, or class of 
registration. Toll plazas of public toll roads are not considered 
restrictive gates.
    (d) Maintenance means the preservation of the entire highway, 
including surfaces, shoulders, roadsides, structures, and such traffic 
control devices as are necessary for its safe and efficient utilization.
    (e) State means any one of the 50 States, the District of Columbia, 
Puerto Rico, the Virgin Islands, Guam, and American Samoa. For the 
purpose of the application of 23 U.S.C. 402 on Indian reservations, 
State and Governor of

[[Page 119]]

a State include the Secretary of the Interior.



Sec. 460.3  Procedures.

    (a) General requirements. 23 U.S.C. 402(c) provides that funds 
authorized to carry out section 402 shall be apportioned according to a 
formula based on population and public road mileage of each State. 
Public road mileage shall be determined as of the end of the calendar 
year preceding the year in which the funds are apportioned and shall be 
certified to by the Governor of the State or his designee and subject to 
the approval of the Federal Highway Administrator.
    (b) State public road mileage. Each State must annually submit a 
certification of public road mileage within the State to the Federal 
Highway Administration Division Administrator by the date specified by 
the Division Administrator. Public road mileage on Indian reservations 
within the State shall be identified and included in the State mileage 
and in computing the State's apportionment.
    (c) Indian reservation public road mileage. The Secretary of the 
Interior or his designee will submit a certification of public road 
mileage within Indian reservations to the Federal Highway Administrator 
by June 1 of each year.
    (d) Action by the Federal Highway Administrator. (1) The 
certification of Indian reservation public road mileage, and the State 
certifications of public road mileage together with comments thereon, 
will be reviewed by the Federal Highway Administrator. He will make a 
final determination of the public road mileage to be used as the basis 
for apportionment of funds under 23 U.S.C. 402(c). In any instance in 
which the Administrator's final determination differs from the public 
road mileage certified by a State or the Secretary of the Interior, the 
Administrator will advise the State or the Secretary of the Interior of 
his final determination and the reasons therefor.
    (2) If a State fails to submit a certification of public road 
mileage as required by this part, the Federal Highway Administrator may 
make a determination of the State's public road mileage for the purpose 
of apportioning funds under 23 U.S.C. 402(c). The State's public road 
mileage determined by the Administrator under this subparagraph may not 
exceed 90 percent of the State's public road mileage utilized in 
determining the most recent apportionment of funds under 23 U.S.C. 
402(c).



PART 470--HIGHWAY SYSTEMS--Table of Contents




                 Subpart A--Federal-aid Highway Systems

Sec.
470.101  Purpose.
470.103  Definitions.
470.105  Urban area boundaries and highway functional classification.
470.107  Federal-aid highway systems.
470.109  System procedures--General.
470.111  Interstate System procedures.
470.113  National Highway System procedures.
470.115  Approval authority.

Appendix A to Subpart A--Guidance Criteria for Evaluating Requests for 
          Interstate System Designations under 23 U.S.C. 139 (a) and 
          (b).
Appendix B to Subpart A--Designation of Segments of Section 332(a)(2) 
          Corridors as Parts of the Interstate System.
Appendix C to Subpart A of Part 470--Policy for the Signing and 
          Numbering of Future Interstate Corridors Designated by Section 
          332 of the NHS Designation Act of 1995 or Designated Under 23 
          U.S.C. 139(b).
Appendix D to Subpart A--Guidance Criteria for Evaluating Requests for 
          Modifications to the National Highway System.

Subparts B-C [Reserved]

    Authority: 23 U.S.C. 103(b)(2), 103 (e)(1), (e)(2), and (e)(3), 
103(f), 134, 135, and 315; and 49 CFR 1.48(b)(2).

    Source: 40 FR 42344, Sept. 12, 1975, unless otherwise noted. 
Redesignated at 41 FR 51396, Nov. 22, 1976.



                 Subpart A--Federal-aid Highway Systems

    Source: 62 FR 33355, June 19, 1997, unless otherwise noted.



Sec. 470.101  Purpose.

    This part sets forth policies and procedures relating to the 
identification of Federal-aid highways, the functional classification of 
roads and streets, the designation of urban area boundaries,

[[Page 120]]

and the designation of routes on the Federal-aid highway systems.



Sec. 470.103  Definitions.

    Except as otherwise provided in this part, terms defined in 23 
U.S.C. 101(a) are used in this part as so defined.
    Consultation means that one party confers with another identified 
party and, prior to taking action(s), considers that party's views.
    Cooperation means that the parties involved in carrying out the 
planning, programming and management systems processes work together to 
achieve a common goal or objective.
    Coordination means the comparison of the transportation plans, 
programs, and schedules of one agency with related plans, programs, and 
schedules of other agencies or entities with legal standing, and 
adjustment of plans, programs, and schedules to achieve general 
consistency.
    Federal-aid highway systems means the National Highway System and 
the Dwight D. Eisenhower National System of Interstate and Defense 
Highways (the ``Interstate System'').
    Federal-aid highways means highways on the Federal-aid highway 
systems and all other public roads not classified as local roads or 
rural minor collectors.
    Governor means the chief executive of the State and includes the 
Mayor of the District of Columbia.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decisionmaking for the metropolitan planning 
area in which the metropolitan transportation planning process required 
by 23 U.S.C. 134 and 49 U.S.C. 5303-5305 must be carried out.
    Responsible local officials means--
    (1) In urbanized areas, principal elected officials of general 
purpose local governments acting through the Metropolitan Planning 
Organization designated by the Governor, or
    (2) In rural areas and urban areas not within any urbanized area, 
principal elected officials of general purpose local governments.
    State means any one of the fifty States, the District of Columbia, 
Puerto Rico, or, for purposes of functional classification of highways, 
the Virgin Islands, American Samoa, Guam, or the Commonwealth of the 
Northern Marianas.



Sec. 470.105  Urban area boundaries and highway functional classification.

    (a) Urban area boundaries. Routes on the Federal-aid highway systems 
may be designated in both rural and urban areas. Guidance for 
determining the boundaries of urbanized and nonurbanized urban areas is 
provided in the ``Federal-Aid Policy Guide,'' Chapter 4 [G 4063.0], 
dated December 9, 1991. \1\
---------------------------------------------------------------------------

    \1\ The ``Federal-aid Policy Guide'' is available for inspection and 
copying as prescribed in 49 CFR part 7, Appendix D.
---------------------------------------------------------------------------

    (b) Highway Functional Classification. (1) The State transportation 
agency shall have the primary responsibility for developing and updating 
a statewide highway functional classification in rural and urban areas 
to determine functional usage of the existing roads and streets. 
Guidance criteria and procedures are provided in the FHWA publication 
``Highway Functional Classification--Concepts, Criteria and 
Procedures.'' \2\ The State shall cooperate with responsible local 
officials, or appropriate Federal agency in the case of areas under 
Federal jurisdiction, in developing and updating the functional 
classification.
---------------------------------------------------------------------------

    \2\ This publication, revised in March 1989, is available on request 
to the FHWA, Office of Environment and Planning, HEP-10, 400 Seventh 
Street, SW., Washington, DC 20590.
---------------------------------------------------------------------------

    (2) The results of the functional classification shall be mapped and 
submitted to the Federal Highway Administration (FHWA) for approval and 
when approved shall serve as the official record for Federal-aid 
highways and the basis for designation of the National Highway System.



Sec. 470.107  Federal-aid highway systems.

    (a) Interstate System. (1) The Dwight D. Eisenhower National System 
of Interstate and Defense Highways (Interstate System) shall consist of 
routes of highest importance to the Nation, built to the uniform 
geometric and construction standards of 23 U.S.C. 109(h), which connect, 
as directly as practicable, the principal metropolitan areas, cities, 
and industrial centers, including important routes into,

[[Page 121]]

through, and around urban areas, serve the national defense and, to the 
greatest extent possible, connect at suitable border points with routes 
of continental importance in Canada and Mexico.
    (2) The portion of the Interstate System designated under 23 U.S.C. 
103 (e)(1), (e)(2), and (e)(3) shall not exceed 69,230 kilometers 
(43,000 miles). Additional Interstate System segments are permitted 
under the provisions of 23 U.S.C. 139 (a) and (c) and section 
1105(e)(5)(A) of the Intermodal Surface Transportation Efficiency Act of 
1991 (ISTEA), Pub. L. 102-240, 105 Stat. 1914, as amended.
    (b) National Highway System. (1) The National Highway System shall 
consist of interconnected urban and rural principal arterials and 
highways (including toll facilities) which serve major population 
centers, international border crossings, ports, airports, public 
transportation facilities, other intermodal transportation facilities 
and other major travel destinations; meet national defense requirements; 
and serve interstate and interregional travel. All routes on the 
Interstate System are a part of the National Highway System.
    (2) The National Highway System shall not exceed 286,983 kilometers 
(178,250 miles).
    (3) The National Highway System shall include the Strategic Highway 
Corridor Network (STRAHNET) and its highway connectors to major military 
installations, as designated by the Administrator in consultation with 
appropriate Federal agencies and the States. The STRAHNET includes 
highways which are important to the United States strategic defense 
policy and which provide defense access, continuity, and emergency 
capabilities for the movement of personnel, materials, and equipment in 
both peace time and war time.
    (4) The National Highway System shall include all high priority 
corridors identified in section 1105(c) of the ISTEA.



Sec. 470.109  System procedures--General.

    (a) The State transportation agency, in consultation with 
responsible local officials, shall have the responsibility for proposing 
to the Federal Highway Administration all official actions regarding the 
designation, or revision, of the Federal-aid highway systems.
    (b) The routes of the Federal-aid highway systems shall be proposed 
by coordinated action of the State transportation agencies where the 
routes involve State-line connections.
    (c) The designation of routes on the Federal-aid highway systems 
shall be in accordance with the planning process required, pursuant to 
the provisions at 23 U.S.C. 135, and, in urbanized areas, the provisions 
at 23 U.S.C. 134(a). The State shall cooperate with local and regional 
officials. In urbanized areas, the local officials shall act through the 
metropolitan planning organizations designated for such areas under 23 
U.S.C. 134.
    (d) In areas under Federal jurisdiction, the designation of routes 
on the Federal-aid highway systems shall be coordinated with the 
appropriate Federal agency.



Sec. 470.111  Interstate System procedures.

    (a) Proposals for system actions on the Interstate System shall 
include a route description and a statement of justification. Proposals 
shall also include statements regarding coordination with adjoining 
States on State-line connections, with responsible local officials, and 
with officials of areas under Federal jurisdiction.
    (b) Proposals for Interstate or future Interstate designation under 
23 U.S.C. 139(a) or (b), as logical additions or connections, shall 
consider the criteria contained in appendix A of this subpart. For 
designation as a part of the Interstate system, 23 U.S.C. 139(a) 
requires that a highway meet all the standards of a highway on the 
Interstate System, be a logical addition or connection to the Interstate 
System, and have the affirmative recommendation of the State or States 
involved. For designation as a future part of the Interstate System, 23 
U.S.C. 139(b) requires that a highway be a logical addition or 
connection to the Interstate System, have the affirmative recommendation 
of the State or States involved, and have the written agreement of the 
State or States involved that such highway will be constructed

[[Page 122]]

to meet all the standards of a highway on the Interstate System within 
twelve years of the date of the agreement between the FHWA Administrator 
and the State or States involved. Such highways must also be on the 
National Highway System.
    (c) Proposals for Interstate designation under 23 U.S.C. 139(c) 
shall pertain only to Alaska or Puerto Rico. For designation as parts of 
the Interstate System, 23 U.S.C. 139(c) requires that highway segments 
be in States which have no Interstate System; be logical components to a 
system serving the State's principal cities, national defense needs and 
military installations, and traffic generated by rail, water, and air 
transportation modes; and have been constructed to the geometric and 
construction standards adequate for current and probable future traffic 
demands and the needs of the locality of the segment. Such highways must 
also be on the National Highway System.
    (d) Routes proposed for Interstate designation under section 
332(a)(2) of the NHS Designation Act of 1995 (NHS Act) shall be 
constructed to Interstate standards and connect to the Interstate 
System. Proposals shall consider the criteria contained in appendix B of 
this subpart.
    (e) Proposals for Interstate route numbering shall be submitted by 
the State transportation agency to the Route Numbering Committee of the 
American Association of State Highway and Transportation Officials.
    (f) Signing of corridors federally designated as future Interstate 
routes can follow the criteria contained in appendix C of this subpart. 
No law, rule, regulation, map, document, or other record of the United 
States, or of any State or political subdivision thereof, shall refer to 
any highway under 23 U.S.C. 139, nor shall any such highway be signed or 
marked, as a highway on the Interstate System until such time as such 
highway is constructed to the geometric and construction standards for 
the Interstate System and has been designated as a part of the 
Interstate System.



Sec. 470.113  National Highway System procedures.

    (a) Proposals for system actions on the National Highway System 
shall include a route description, a statement of justification, and 
statements of coordination with adjoining States on State-line 
connections, with responsible local officials, and with officials of 
areas under Federal jurisdiction.
    (b) Proposed modifications to the National Highway System shall 
enhance the national transportation characteristics of the National 
Highway System and shall follow the criteria listed in Sec. 470.107. 
Proposals shall also consider the criteria contained in appendix D of 
this subpart.



Sec. 470.115  Approval authority.

    (a) The Federal Highway Administrator will approve Federal-aid 
highway system actions involving the designation, or revision, of routes 
on the Interstate System, including route numbers, future Interstate 
routes, and routes on the National Highway System.
    (b) The Federal Highway Administrator will approve functional 
classification actions.

 Appendix A to Subpart A of Part 470--Guidance Criteria for Evaluating 
Requests for Interstate System Designations Under 23 U.S.C. 139 (a) and 
                                   (b)

    Section 139 (a) and (b), of title 23, U.S.C., permits States to 
request the designation of National Highway System routes as parts or 
future parts of the Interstate System. The FHWA Administrator may 
approve such a request if the route is a logical addition or connection 
to the Interstate System and has been, or will be, constructed to meet 
Interstate standards. The following are the general criteria to be used 
to evaluate 23 U.S.C. 139 requests for Interstate System designations.
    1. The proposed route should be of sufficient length to serve long-
distance Interstate travel, such as connecting routes between principal 
metropolitan cities or industrial centers important to national defense 
and economic development.
    2. The proposed route should not duplicate other Interstate routes. 
It should serve Interstate traffic movement not provided by another 
Interstate route.

[[Page 123]]

    3. The proposed route should directly serve major highway traffic 
generators. The term ``major highway traffic generator'' means either an 
urbanized area with a population over 100,000 or a similar major 
concentrated land use activity that produces and attracts long-distance 
Interstate and statewide travel of persons and goods. Typical examples 
of similar major concentrated land use activities would include a 
principal industrial complex, government center, military installation, 
or transportation terminal.
    4. The proposed route should connect to the Interstate System at 
each end, with the exception of Interstate routes that connect with 
continental routes at an international border, or terminate in a ``major 
highway traffic generator'' that is not served by another Interstate 
route. In the latter case, the terminus of the Interstate route should 
connect to routes of the National Highway System that will adequately 
handle the traffic. The proposed route also must be functionally 
classified as a principal arterial and be a part of the National Highway 
System system.
    5. The proposed route must meet all the current geometric and safety 
standards criteria as set forth in 23 CFR part 625 for highways on the 
Interstate System, or a formal agreement to construct the route to such 
standards within 12 years must be executed between the State(s) and the 
Federal Highway Administration. Any proposed exceptions to the standards 
shall be approved at the time of designation.
    6. A route being proposed for designation under 23 U.S.C. 139(b) 
must have an approved final environmental document (including, if 
required, a 49 U.S.C. 303(c) [Section 4(f)] approval) covering the route 
and project action must be ready to proceed with design at the time of 
designation. Routes constructed to Interstate standards are not 
necessarily logical additions to the Interstate System unless they 
clearly meet all of the above criteria.

Appendix B to Subpart A of Part 470--Designation of Segments of Section 
          332(a)(2) Corridors as Parts of the Interstate System

    The following guidance is comparable to current procedures for 
Interstate System designation requests under 23 U.S.C. 139(a). All 
Interstate System additions must be approved by the Federal Highway 
Administrator. The provisions of section 332(a)(2) of the NHS Act have 
also been incorporated into the ISTEA as section 1105(e)(5)(A).
    1. The request must be submitted through the appropriate FHWA 
Division and Regional Offices to the Associate Administrator for Program 
Development (HEP-10). Comments and recommendations by the division and 
regional offices are requested.
    2. The State DOT secretary (or equivalent) must request that the 
route segment be added to the Interstate System. The exact location and 
termini must be specified. If the route segment involves more than one 
State, each affected State must submit a separate request.
    3. The request must provide information to support findings that the 
segment (a) is built to Interstate design standards and (b) connects to 
the existing Interstate System. The segment should be of sufficient 
length to provide substantial service to the travelling public.
    4. The request must also identify and justify any design exceptions 
for which approval is requested.
    5. Proposed Interstate route numbering for the segment must be 
submitted to FHWA and the American Association of State Highway and 
Transportation Officials Route Numbering

    Appendix C to Subpart A of Part 470--Policy for the Signing and 
 Numbering of Future Interstate Corridors Designated by Section 332 of 
  the NHS Designation Act of 1995 or Designated Under 23 U.S.C. 139(b)

                                 Policy

    State transportation agencies are permitted to erect informational 
Interstate signs along a federally designated future Interstate corridor 
only after the specific route location has been established for the 
route to be constructed to Interstate design standards.

                               Conditions

    1. The corridor must have been designated a future part of the 
Interstate System under section 332(a)(2) of the NHS Designation Act of 
1995 or 23 U.S.C. 139(b).
    2. The specific route location to appropriate termini must have 
received Federal Highway (FHWA) environmental clearance. Where FHWA 
environmental clearance is not required or Interstate standards have 
been met, the route location must have been publicly announced by the 
State.
    3. Numbering of future Interstate route segments must be coordinated 
with affected States and be approved by the American Association of 
State Highway and Transportation Officials and the FHWA at Headquarters. 
Short portions of a multistate corridor may require use of an interim 3-
digit number.
    4. The State shall coordinate the location and content of signing 
near the State line with the adjacent State.

[[Page 124]]

    5. Signing and other identification of a future Interstate route 
segment must not indicate, nor imply, that the route is on the 
Interstate System.
    6. The FHWA Regional Office must confirm in advance that the above 
conditions have been met and approve the general locations of signs.

                              Sign Details

    1. Signs may not be used to give directions and should be away from 
directional signs, particularly at interchanges.
    2. An Interstate shield may be located on a green informational sign 
of a few words. For example: Future Interstate Corridor or Future I-00 
Corridor.
    3. The Interstate shield may not include the word ``Interstate.''
    4. The FHWA Division Office must approve the signs as to design, 
wording, and detailed location.

 Appendix D to Subpart A of Part 470--Guidance Criteria for Evaluating 
        Requests for Modifications to the National Highway System

    Section 103(b), of title 23, U.S.C., allows the States to propose 
modifications to the National Highway System (NHS) and authorizes the 
Secretary to approve such modifications provided that they meet the 
criteria established for the NHS and enhance the characteristics of the 
NHS. In proposing modifications under 23 U.S.C. 103(b), the States must 
cooperate with local and regional officials. In urbanized areas, the 
local officials must act through the metropolitan planning organization 
(MPO) designated for such areas under 23 U.S.C. 134. The following 
guidance criteria should be used by the States to develop proposed 
modifications to the NHS.
    1. Proposed additions to the NHS should be included in either an 
adopted State or metropolitan transportation plan or program.
    2. Proposed additions should connect at each end with other routes 
on the NHS or serve a major traffic generator.
    3. Proposals should be developed in consultation with local and 
regional officials.
    4. Proposals to add routes to the NHS should include information on 
the type of traffic served (i.e., percent of trucks, average trip 
length, local, commuter, interregional, interstate) by the route, the 
population centers or major traffic generators served by the route, and 
how this service compares with existing NHS routes.
    5. Proposals should include information on existing and anticipated 
needs and any planned improvements to the route.
    6. Proposals should include information concerning the possible 
effects of adding or deleting a route to or from the NHS might have on 
other existing NHS routes that are in close proximity.
    7. Proposals to add routes to the NHS should include an assessment 
of whether modifications (adjustments or deletions) to existing NHS 
routes, which provide similar service, may be appropriate.
    8. Proposed modifications that might affect adjoining States should 
be developed in cooperation with those States.
    9. Proposed modifications consisting of connections to major 
intermodal facilities should be developed using the criteria set forth 
below. These criteria were used for identifying initial NHS connections 
to major intermodal terminals. The primary criteria are based on annual 
passenger volumes, annual freight volumes, or daily vehicular traffic on 
one or more principal routes that serve the intermodal facility. The 
secondary criteria include factors which underscore the importance of an 
intermodal facility within a specific State.

                            Primary Criteria

                      Commercial Aviation Airports

    1. Passengers--scheduled commercial service with more than 250,000 
annual enplanements.
    2. Cargo--100 trucks per day in each direction on the principal 
connecting route, or 100,000 tons per year arriving or departing by 
highway mode.

                                  Ports

    1. Terminals that handle more than 50,000 TEUs (a volumetric measure 
of containerized cargo which stands for twenty-foot equivalent units) 
per year, or other units measured that would convert to more than 100 
trucks per day in each direction. (Trucks are defined as large single-
unit trucks or combination vehicles handling freight.)
    2. Bulk commodity terminals that handle more than 500,000 tons per 
year by highway or 100 trucks per day in each direction on the principal 
connecting route. (If no individual terminal handles this amount of 
freight, but a cluster of terminals in close proximity to each other 
does, then the cluster of terminals could be considered in meeting the 
criteria. In such cases, the connecting route might terminate at a point 
where the traffic to several terminals begins to separate.)
    3. Passengers--terminals that handle more than 250,000 passengers 
per year or 1,000 passengers per day for at least 90 days during the 
year.

                               Truck/Rail

    1. 50,000 TEUs per year, or 100 trucks per day, in each direction on 
the principal connecting route, or other units measured that would 
convert to more than 100 trucks per day in each direction. (Trucks are 
defined as

[[Page 125]]

large single-unit trucks or combination vehicles carrying freight.)

                                Pipelines

    1. 100 trucks per day in each direction on the principal connecting 
route.

                                 Amtrak

    1. 100,000 passengers per year (entrainments and detrainments). 
Joint Amtrak, intercity bus and public transit terminals should be 
considered based on the combined passenger volumes. Likewise, two or 
more separate facilities in close proximity should be considered based 
on combined passenger volumes.

                              Intercity Bus

    1. 100,000 passengers per year (boardings and deboardings).

                             Public Transit

    1. Stations with park and ride lots with more than 500 vehicle 
parking spaces, or 5,000 daily bus or rail passengers, with significant 
highway access (i.e., a high percentage of the passengers arrive by cars 
and buses using a route that connects to another NHS route), or a major 
hub terminal that provides for the transfer of passengers among several 
bus routes. (These hubs should have a significant number of buses using 
a principal route connecting with the NHS.)

                                 Ferries

    1. Interstate/international--1,000 passengers per day for at least 
90 days during the year. (A ferry which connects two terminals within 
the same metropolitan area should be considered as local, not 
interstate.)
    2. Local--see public transit criteria above.

                           Secondary Criteria

    Any of the following criteria could be used to justify an NHS 
connection to an intermodal terminal where there is a significant 
highway interface:
    1. Intermodal terminals that handle more than 20 percent of 
passenger or freight volumes by mode within a State;
    2. Intermodal terminals identified either in the Intermodal 
Management System or the State and metropolitan transportation plans as 
a major facility;
    3. Significant investment in, or expansion of, an intermodal 
terminal; or
    4. Connecting routes targeted by the State, MPO, or others for 
investment to address an existing, or anticipated, deficiency as a 
result of increased traffic.

                          Proximate Connections

    Intermodal terminals, identified under the secondary criteria noted 
above, may not have sufficient highway traffic volumes to justify an NHS 
connection to the terminal. States and MPOs should fully consider 
whether a direct connection should be identified for such terminals, or 
whether being in the proximity (2 to 3 miles) of an NHS route is 
sufficient.

Subparts B-C [Reserved]



PART 476--INTERSTATE HIGHWAY SYSTEM--Table of Contents




                           Subpart A--General

Sec.
476.2  Definitions.

Subparts B-C [Reserved]

Subpart D--Withdrawal of Interstate Segments and Substitution of Public 
                Mass Transit or Highway Projects or Both

476.300  Purpose.
476.302  Applicability.
476.304  Withdrawal request.
476.306  Withdrawal approval.
476.308  Concept approval for substitute projects.
476.310  Proposals for substitute public mass transit and highway 
          projects.
476.312  Combined proposal.
476.314  Administrator's review and approval of substitute projects.

    Authority: 23 U.S.C. 103(e)(2), 103(e)(4), 103(g), 103(h) and 315; 
49 CFR 1.48(b) and 1.50(f).



                           Subpart A--General



Sec. 476.2  Definitions.

    (a) Except as otherwise provided, terms defined in 23 U.S.C. 101(a) 
are used in this part as so defined.
    (b) The following terms, where used in the regulations in this part, 
have the following meaning:
    (1) Base cost year for the latest Interstate System cost estimate 
approved by Congress shall be the calendar year specified in the 
Interstate Cost Estimate Manual \1\ for that estimate. For

[[Page 126]]

example, the base cost year for the 1972 estimate is 1970.
---------------------------------------------------------------------------

    \1\ The ``Instructional Manual for the Preparation and Submission of 
the (Year) Estimate of the Cost of Completing the Interstate System in 
Accordance with section 104(b)(5) of title 23 U.S.C., Highways,'' 
published by the Federal Highway Administration, U.S. Department of 
Transportation, is available for inspection and copying as prescribed in 
49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (2) Concurrence means written agreement which is currently binding 
on the concurring party and which addresses the specific proposal being 
submitted for approval.
    (3) Governor means the Governor of any one of the fifty States and 
the Mayor of the District of Columbia. It also refers to any State or 
local entity specifically designated by the Governor for the purpose of 
executing any of his/her responsibilities under this part.
    (4) Interstate segment means any designated, toll-free route, or 
portion thereof, of the Interstate System.
    (5) Local governments concerned means local units of general purpose 
government under State law within whose jurisdiction the Interstate 
segment lies, or is to be withdrawn.
    (6) Open to traffic means a segment which has been constructed or 
has had major improvements with Federal-aid Interstate funds and open to 
normal Interstate traffic; or a segment which was an existing freeway, 
meeting acceptable Interstate geometric standards and recognized as the 
final location of the route, when incorporated into the System. Open to 
traffic does not mean a segment of existing highway that is ultimately 
planned to be replaced by an entirely new facility.
    (7) Responsible local officials means:
    (i) In urbanized areas, principal elected officials of general 
purpose local governments acting through the Metropolitan Planning 
Organization in accordance with part 450, subpart A of this title, and;
    (ii) In rural areas and urban areas not within any urbanized area, 
principal elected officials of general purpose local governments.
    (8) Substitute highway project means any undertaking for highway 
construction, which may encompass phases of work including preliminary 
engineering, right-of-way, and actual construction, individually or any 
combination thereof, on any of the Federal-aid systems described in 23 
U.S.C. 103 and which is eligible for Federal financial assistance under 
title 23, U.S.C. A substitute highway project may include the 
construction of exclusive or preferential bus lanes, high occupancy 
vehicle lanes, highway traffic control devices, bus passenger loading 
areas and facilities (including shelters), and fringe and corridor 
parking facilities to serve bus and other public mass transportation 
passengers. A substitute highway project may also be a carpool and 
vanpool project including but not limited to, providing carpooling 
opportunities to the elderly and handicapped, systems for locating 
potential riders and informing them of convenient carpool opportunities, 
acquiring vehicles appropriate for carpool use, designating existing 
highway lanes as preferential carpool highway lanes, providing related 
traffic control devices, and designating existing facilities for use as 
preferential parking for carpools.
    (9) Substitute nonhighway public mass transit project means any 
undertaking to develop or improve public mass transit facilities or 
equipment. A project in an urbanized area must be included in and 
related to the transportation improvement program (TIP) required under 
23 CFR part 450, subpart B. The TIP in urbanized areas and all projects 
in nonurbanized areas must include either the construction of fixed rail 
facilities, or the purchase of passenger equipment, or both. Passenger 
equipment includes buses, fixed rail rolling stock, and other 
transportation equipment for passenger use.
    (10) Under construction or under contract for construction means 
funds for physical construction have been obligated (for highway 
projects) or have been included in an approved grant (for transit 
projects) which would commit the final development of the ultimate 
project in both length and scope. When projects do not involve physical 
construction, under construction or under contract for construction 
means the obligation of funds (for highway projects) or grant approval 
(for transit projects) has occurred.

[45 FR 69396, Oct. 20, 1980, as amended at 51 FR 39748, Oct. 31, 1986]

Subparts B-C [Reserved]

[[Page 127]]



Subpart D--Withdrawal of Interstate Segments and Substitution of Public 
                Mass Transit or Highway Projects or Both

    Source: 45 FR 69397, Oct. 20, 1980, unless otherwise noted.



Sec. 476.300  Purpose.

    The purpose of the regulations in this subpart is to prescribe 
policies and procedures for implementation of 23 U.S.C. 103(e)(4), which 
permits the withdrawal of Interstate System segments and the 
substitution of public mass transit or highway projects or both.



Sec. 476.302  Applicability.

    (a) Except as provided in paragraph (b) of this section, this 
subpart applies to an Interstate segment at any stage of development if:
    (1) The segment is within an urbanized area; or
    (2) The segment passes through and connects urbanized areas within a 
State.
    (b) The regulations in this subpart shall not apply to:
    (1) A segment removed from the Interstate System prior to August 13, 
1973;
    (2) A segment added to the Interstate System after May 5, 1976, 
under the provisions of 23 U.S.C. 103(e)(2);
    (3) Interstate segments designated under 23 U.S.C. 139;
    (4) A toll bridge, tunnel, or approach thereto for which funds were 
advanced in accordance with 23 U.S.C. 124(b); or
    (5) After September 30, 1979, an Interstate segment open to traffic 
before the date of the proposed withdrawal. If only a portion of an 
Interstate segment (between logical termini) is open to traffic the 
regulations of this subpart are applicable to the portion not open to 
traffic. The open to traffic portion will be removed from the Interstate 
System under 23 U.S.C. 103(f).
    (6) Any segment added to the Interstate System by specific 
legislation unless a comparable statute permitting its withdrawal is 
enacted.
    (7) A segment added to the Interstate System after August 13, 1973, 
under the provisions of 23 U.S.C. 103(e)(1).
    (c) Withdrawal requests may not be approved under this subpart after 
September 30, 1983, unless the route segment was under a court 
injunction prohibiting its construction as of November 6, 1978. For 
segments under such injunction, withdrawal requests may not be approved 
under this subpart after September 30, 1986. However, as indicated in 
Sec. 476.310(g), the September 30, 1986, substitute project construction 
time limitation remains applicable to these segments.

[45 FR 69397, Oct. 20, 1980, as amended at 46 FR 45603, Sept. 14, 1981]



Sec. 476.304  Withdrawal request.

    (a) A request to withdraw an Interstate segment within a State under 
this subpart shall be submitted jointly by the Governor and local 
governments concerned. For those segments within urbanized areas, the 
concurrence of responsible local officials is also required. The 
withdrawal request shall be submitted to the Federal Highway 
Admininstrator and the Urban Mass Transportation Administrator, through 
the Federal Highway Administrator.
    (b) Joint submittal may be accomplished by a single request prepared 
by the Governor and concurred in by the local governments concerned. 
This may also be accomplished by a request by the Governor with separate 
concurrence documentation by the local governments concerned. In either 
case, for those segments within urbanized areas, the concurrence of 
responsible local officials is also required. While unanimous local 
action is not required, the withdrawal request is expected to have 
substantial support.
    (c) The request for withdrawal shall include the following:
    (1) A statement that the request is filed pursuant to 23 U.S.C. 
103(e)(4).
    (2) Reasons why the segment is not essential to the completion of a 
unified and connected Interstate System.
    (3) A detailed statement of mileage and cost of the segment to be 
withdrawn as included in the latest Interstate cost estimate approved by 
Congress.
    (4) An assurance that a toll road will not be constructed in the 
traffic corridor which would be served by the segment.

[[Page 128]]



Sec. 476.306  Withdrawal approval.

    (a) The Federal Highway Administrator and the Urban Mass 
Transportation Administrator may approve the withdrawal of an Interstate 
segment under the provisions of this subpart after considering the 
impact of the withdrawal on national defense needs if:
    (1) The requirements of Sec. 476.304 are met; and
    (2) The Federal Highway Administrator determines that the segment is 
not essential to completion of a unified and connected Interstate 
System.
    (b) When the withdrawal of an Interstate segment is approved under 
paragraph (a) of this section, an amount equal to the Federal share of 
the cost to complete the withdrawn segment as shown in the latest 
Interstate System cost estimate approved by Congress is authorized for 
substitute projects. The amount authorized will be increased or 
decreased, as determined by the Federal Highway Administrator, based on 
changes in construction costs of the withdrawn route occurring between 
the base cost year of the latest cost estimate approved by Congress 
which included the costs of the withdrawn route and the date of approval 
of each substitute project. The changes in construction costs will be 
computed on the basis of the Composite Index shown in the quarterly 
publication ``Price Trends for Federal- Aid Highway Construction.'' \1\ 
For purposes of cost adjustments, the Composite Index for the calendar 
quarter within which the approval of the substitute project occurs will 
be used in computing the change in construction costs.
---------------------------------------------------------------------------

    \1\ Published by FHWA, Interstate Reports Branch, and available for 
inspection and copying as prescribed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (c) Authorizations of funds made available by the withdrawal of an 
Interstate route under 23 U.S.C. 103(e)(4) shall remain available until 
expended within the limitations described in Sec. 476.310 (f) and (g).
    (d) Effective as of date of approval of the withdrawal of an 
Interstate segment, the unobligated apportionments for the Interstate 
System of the State receiving the approval will be reduced in the 
proportion that the Federal share of the cost of the withdrawn segment 
bears to the Federal share of the total cost of all Interstate routes in 
the State as reported in the latest Interstate System cost estimate 
approved by Congress.
    (e) Mileage withdrawn under the provisions of this subpart may not 
be redesignated in any State under any provision of title 23 U.S.C.
    (f) The payback of Federal-aid Interstate funds expended on a 
segment withdrawn under this subpart shall be governed by 23 CFR part 
480, Use and Disposition of Property Acquired by States for Modified or 
Terminated Highway Projects.
    (g) Segments withdrawn under the provisions of this subpart may not 
be redesignated under the provisions of 23 U.S.C. 139.



Sec. 476.308  Concept approval for substitute projects.

    (a) A concept program which identifies the proposed substitute 
projects to be approved in concept and which, as a minimum, accounts for 
all unobligated funding made available by this subpart must be submitted 
as soon as practicable after the effective date of this subpart or after 
a withdrawal is formally approved.
    (1) The substitute project concepts included in the program must be 
selected in a manner consistent with the procedures provided in 
Sec. 476.310(b) and (c).
    (2) The concept program submission must contain:
    (i) A proposed split, if any, of Interstate withdrawal 
authorizations between transit and highway projects;
    (ii) A concept description (e.g., type of work, termini, length, 
estimated cost, number and type of vehicles, size and type of facility, 
identification of major transportation investment, etc.) of the proposed 
transit and/or highway projects for which concept approval is requested; 
and
    (iii) A summary of the anticipated level of overall funding needs by 
individual fiscal year, as estimated on a general transit and/or highway 
basis.
    (3) The concept program shall be endorsed by the Governor and the 
responsible local officials.

[[Page 129]]

    (4) The concept program should be submitted by the Governor to the 
Federal Highway Administrator and the Urban Mass Transportation 
Administrator, through the Federal Highway Administrator.
    (b) Approval of substitute project concepts must be given jointly by 
the Federal Highway Administrator and the Urban Mass Transportation 
Administrator by September 30, 1983. This time limitation does not apply 
to segments which were under court injunction prohibiting construction 
as of November 6, 1978.
    (1) Adjustments and refinements to the previously approved project 
concepts may be permitted after September 30, 1983.
    (2) Approval of the project concepts does not commit funding under 
this subpart nor does such approval constitute an obligation on the 
State or local governments to fully implement the project concepts. 
Approval of a project concept is processed as a categorical exclusion 
under 23 CFR part 771.



Sec. 476.310  Proposals for substitute public mass transit and highway projects.

    (a) The proposed substitute projects must serve the urbanized area 
or connecting nonurbanized area corridor, or both, from which the 
Interstate segment was withdrawn.
    (b) Substitute projects in or serving urbanized areas shall be based 
on an urban transportation planning process in accordance with 23 CFR 
part 450, subpart A (and policies and regulations pertaining thereto), 
and shall be selected by the responsible local officials of the 
urbanized area in accordance with 23 CFR part 450, subpart B. Substitute 
projects located outside but serving the urbanized area shall also have 
the concurrence of the responsible local officials of the jurisdiction 
in which the project is located.
    (c) Substitute projects in or serving the nonurbanized area corridor 
shall be selected by the responsible local officials of the nonurbanized 
area corridor. Substitute projects located outside but serving the 
nonurbanized area corridor shall also have the concurrence of the 
responsible local officials of the jurisdiction in which the project is 
located.
    (d) Applications for substitute nonhighway public mass transit 
projects shall be developed either by the principal elected officials of 
general purpose local units of government in consultation with local 
transit officials or by local transit officials. Substitute highway 
projects shall be developed in accordance with the policies and 
procedures established for the Federal-aid highway system of which they 
will be a part. Substitute highway projects need not appear in the 
statewide Federal-aid program described in 23 CFR part 630, subpart A.
    (e) Applications for substitute nonhighway public mass transit 
projects are submitted to the Urban Mass Transportation Administrator by 
the Governor. Requests for authorization to proceed with substitute 
highway projects are submitted to the Federal Highway Administrator by 
the Governor.
    (f) After September 30, 1983, only applications for those substitute 
projects which have previously received concept approval under 
Sec. 476.308 should be submitted.
    (g) Substitute projects (for which sufficient funds are available) 
must be under construction or under contract for construction by 
September 30, 1986. This time limitation is applicable to all substitute 
projects, including those related to Interstate segments which were 
under court injunction prohibiting construction on November 6, 1978. 
Approval for substitute projects not meeting this requirement will be 
withdrawn or not issued, and no funds will be appropriated or authorized 
for these projects.

[45 FR 69397, Oct. 20, 1980, as amended at 51 FR 39748, Oct. 31, 1986]



Sec. 476.312  Combined proposal.

    A proposal for one or more substitute projects may be combined with 
projects utilizing other Federal funds available including, but not 
limited to, financial assistance available under either the Urban Mass 
Transportation Act of 1964, as amended, or 23 U.S.C. 104. Only the funds 
available from a

[[Page 130]]

withdrawal under this subpart are constrained by the limiting amount 
described in Sec. 476.306(b).



Sec. 476.314  Administrator's review and approval of substitute projects.

    (a) The Urban Mass Transportation Administrator shall review 
substitute nonhighway public mass transit projects and the Federal 
Highway Administrator shall review substitute highway projects to 
determine that the projects meet the following requirements.
    (1) The proposed projects serve the urbanized area or connecting 
nonurbanized area corridor or both from which the Interstate segment was 
withdrawn.
    (2) The Federal share of the costs of the proposed projects which is 
to be provided under this subpart by virtue of the withdrawal of an 
Interstate segment does not exceed the Federal share of the cost of the 
withdrawn segment, as determined in Sec. 476.306(b).
    (b) Approval of substitute projects can be given only to the extent 
that authority to obligate the funds is available.
    (c) For substitute nonhighway public mass transit projects, the 
approval of the plans, specifications, and estimates of a project, or 
any phase thereof, shall be deemed to occur on the date the Urban Mass 
Transportation Administrator approved the substitute project or phase 
thereof in accordance with the policies and procedures established for 
the UMTA section 3 capital grant program.
    (d) Substitute highway projects will be approved by the Federal 
Highway Administrator in accordance with policies and procedures 
established for the Federal-aid highway program.
    (e) Approval of a substitute project or phase thereof obligates the 
United States to pay its proportional share of the cost of the project 
or phase thereof out of the general funds in the Treasury.
    (f) The Federal share for substitute projects approved after 
November 6, 1978, shall not exceed 85 percentum, notwithstanding the 
Federal share for nonhighway public mass transit projects established 
under the Urban Mass Transportation Act of 1964, as amended, and highway 
projects under title 23 U.S.C.
    (g) The labor protective provisions of section 3(e)(4) of the UMT 
Act of 1964, as amended, (49 U.S.C. section 1602(e)(4)) are applicable 
to nonhighway public mass transit projects funded under the provisions 
of this subpart.

[[Page 131]]



         SUBCHAPTER F--TRANSPORTATION INFRASTRUCTURE MANAGEMENT


PART 500--MANAGEMENT AND MONITORING SYSTEMS--Table of Contents




                      Subpart A--Management systems

Sec.
500.101  Purpose.
500.102  Policy.
500.103  Definitions.
500.104  State option.
500.105  Requirements.
500.106  PMS.
500.107  BMS.
500.108  SMS.
500.109  CMS.
500.110  PTMS.
500.111  IMS.

                  Subpart B--Traffic Monitoring System

Sec.
500.201  Purpose.
500.202  TMS definitions.
500.203  TMS general requirements.
500.204  TMS components for highway traffic data.

    Authority: 23 U.S.C. 134, 135, 303 and 315; 49 U.S.C. 5303-5305; 23 
CFR 1.32; and 49 CFR 1.48 and 1.51.

    Source: 61 FR 67170, Dec. 19, 1996, unless otherwise noted.



                      Subpart A--Management Systems



Sec. 500.101  Purpose.

    The purpose of this part is to implement the requirements of 23 
U.S.C. 303(a) which directs the Secretary of Transportation (the 
Secretary) to issue regulations for State development, establishment, 
and implementation of systems for managing highway pavement of Federal-
aid highways (PMS), bridges on and off Federal-aid highways (BMS), 
highway safety (SMS), traffic congestion (CMS), public transportation 
facilities and equipment (PTMS), and intermodal transportation 
facilities and systems (IMS). This regulation also implements 23 U.S.C. 
303(b) which directs the Secretary to issue guidelines and requirements 
for State development, establishment, and implementation of a traffic 
monitoring system for highways and public transportation facilities and 
equipment (TMS).



Sec. 500.102  Policy.

    (a) Federal, State, and local governments are under increasing 
pressure to balance their budgets and, at the same time, respond to 
public demands for quality services. Along with the need to invest in 
America's future, this leaves transportation agencies with the task of 
trying to manage current transportation systems as cost-effectively as 
possible to meet evolving, as well as backlog needs. The use of existing 
or new transportation management systems provides a framework for cost-
effective decision making that emphasizes enhanced service at reduced 
public and private life-cycle cost. The primary outcome of 
transportation management systems is improved system performance and 
safety. The Federal Highway Administration (FHWA) and the Federal 
Transit Administration (FTA) strongly encourage implementation of 
transportation management systems consistent with State, metropolitan 
planning organization, transit operator, or local government needs.
    (b) Whether the systems are developed under the provisions of this 
part or under a State's own procedures, the following categories of FHWA 
administered funds may be used for development, establishment, and 
implementation of any of the management systems and the traffic 
monitoring system: National highway system; surface transportation 
program; State planning and research and metropolitan planning funds 
(including the optional use of minimum allocation funds authorized under 
23 U.S.C. 157(c) and restoration funds authorized under Sec. 202(f) of 
the National Highway System Designation Act of 1995 (Pub.L. 104-59) for 
carrying out the provisions of 23 U.S.C. 307(c)(1) and 23 U.S.C. 
134(a)); congestion mitigation and air quality improvement program funds 
for those management systems that can be shown to contribute to the 
attainment of a national ambient air quality standard; and apportioned 
bridge funds for development

[[Page 132]]

and establishment of the bridge management system. The following 
categories of FTA administered funds may be used for development, 
establishment, and implementation of the CMS, PTMS, IMS, and TMS: 
Metropolitan planning; State planning and research, and formula transit 
funds.



Sec. 500.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Federal-aid highways means those highways eligible for assistance 
under title 23, U.S.C., except those functionally classified as local or 
rural minor collectors.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decision making for a metropolitan planning 
area.
    National Highway System (NHS) means the system of highways 
designated and approved in accordance with the provisions of 23 U.S.C. 
103(b).
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    Transportation management area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
or other area when TMA designation is requested by the Governor and the 
MPO (or affected local officials), and officially designated by the 
Administrators of the FHWA and the FTA. The TMA designation applies to 
the entire metropolitan planning area(s).



Sec. 500.104  State option.

    Except as specified in Sec. 500.105 (a) and (b), a State may elect 
at any time not to implement any one or more of the management systems 
required under 23 U.S.C. 303, in whole or in part.



Sec. 500.105  Requirements.

    (a) The metropolitan transportation planning process (23 U.S.C. 134 
and 49 U.S.C. 5303-5005) in TMAs shall include a CMS that meets the 
requirements of Sec. 500.109 of this regulation.
    (b) States shall develop, establish, and implement a TMS that meets 
the requirements of subpart B of this regulation.
    (c) Any of the management systems that the State chooses to 
implement under 23 U.S.C. 303 and this regulation shall be developed in 
cooperation with MPOs in metropolitan areas, affected agencies receiving 
assistance under the Federal Transit Act (49 U.S.C., Chapter 53), and 
other agencies (including private owners and operators) that have 
responsibility for operation of the affected transportation systems or 
facilities.
    (d) The results (e.g., policies, programs, projects, etc.) of any of 
the management systems that a State chooses to develop under 23 U.S.C. 
303 and this regulation shall be considered in the development of 
metropolitan and statewide transportation plans and improvement programs 
and in making project selection decisions under title 23, U.S.C., and 
under the Federal Transit Act. Plans and programs adopted after 
September 30, 1997, shall demonstrate compliance with this requirement.



Sec. 500.106  PMS.

    An effective PMS for Federal-aid highways is a systematic process 
that provides information for use in implementing cost-effective 
pavement reconstruction, rehabilitation, and preventative maintenance 
programs and that results in pavements designed to accommodate current 
and forecasted traffic in a safe, durable, and cost-effective manner. 
The PMS should be based on the ``AASHTO Guidelines for Pavement 
Management Systems.'' \1\
---------------------------------------------------------------------------

    \1\ AASHTO Guidelines for Pavement Management Systems, July 1990, 
can be purchased from the American Association of State Highway and 
Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, D.C. 20001. Available for inspection as prescribed in 49 CFR 
part 7, appendix D.
---------------------------------------------------------------------------



Sec. 500.107  BMS.

    An effective BMS for bridges on and off Federal-aid highways that 
should be based on the ``AASHTO Guidelines for Bridge Management 
Systems'' \2\ and

[[Page 133]]

that supplies analyses and summaries of data, uses mathematical models 
to make forecasts and recommendations, and provides the means by which 
alternative policies and programs may be efficiently considered. An 
effective BMS should include, as a minimum, formal procedures for:
---------------------------------------------------------------------------

    \2\ AASHTO Guidelines for Bridge Management Systems, 1992, can be 
purchased from the American Association of State Highway and 
Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, D.C. 20001. Available for inspection as prescribed in 49 CFR 
part 7, appendix D.
---------------------------------------------------------------------------

    (a) Collecting, processing, and updating data;
    (b) Predicting deterioration;
    (c) Identifying alternative actions;
    (d) Predicting costs;
    (e) Determining optimal policies;
    (f) Performing short- and long-term budget forecasting; and
    (g) Recommending programs and schedules for implementation within 
policy and budget constraints.



Sec. 500.108  SMS.

    An SMS is a systematic process with the goal of reducing the number 
and severity of traffic crashes by ensuring that all opportunities to 
improve highway safety are identified, considered, implemented as 
appropriate, and evaluated in all phases of highway planning, design, 
construction, maintenance, and operation and by providing information 
for selecting and implementing effective highway safety strategies and 
projects. The development of the SMS may be based on the guidance in 
``Safety Management Systems: Good Practices for Development and 
Implementation.'' \3\ An effective SMS should include, at a minimum:
---------------------------------------------------------------------------

    \3\ Safety Management Systems: Good Practices for Development and 
Implementation, FHWA and NHTSA, May 1996. Available for inspection and 
copying as prescribed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (a) Communication, coordination, and cooperation among the 
organizations responsible for the roadway, human, and vehicle safety 
elements;
    (b) A focal point for coordination of the development, 
establishment, and implementation of the SMS among the agencies 
responsible for these major safety elements;
    (c) Establishment of short- and long-term highway safety goals to 
address identified safety problems;
    (d) Collection, analysis, and linkage of highway safety data;
    (e) Identification of the safety responsibilities of units and 
positions;
    (f) Public information and education activities; and
    (g) Identification of skills, resources, and training needs to 
implement highway safety programs.



Sec. 500.109  CMS.

    (a) For purposes of this regulation, congestion means the level at 
which transportation system performance is no longer acceptable due to 
traffic interference. The level of system performance deemed acceptable 
by State and local officials may vary by type of transportation 
facility, geographic location (metropolitan area or subarea, rural 
area), and/or time of day. An effective CMS is a systematic process for 
managing congestion that provides information on transportation system 
performance and on alternative strategies for alleviating congestion and 
enhancing the mobility of persons and goods to levels that meet State 
and local needs. The CMS results in serious consideration of 
implementation of strategies that provide the most efficient and 
effective use of existing and future transportation facilities. In both 
metropolitan and non-metropolitan areas, consideration needs to be given 
to strategies that reduce SOV travel and improve existing transportation 
system efficiency. Where the addition of general purpose lanes is 
determined to be an appropriate strategy, explicit consideration is to 
be given to the incorporation of appropriate features into the SOV 
project to facilitate future demand management and operational 
improvement strategies that will maintain the functional integrity of 
those lanes.
    (b) In addition to the criteria in paragraph (a) of this section, in 
all TMAs, the CMS shall be developed, established and implemented as 
part of the metropolitan planning process in accordance with 23 CFR 
450.320(c) and shall include:
    (1) Methods to monitor and evaluate the performance of the 
multimodal transportation system, identify the causes of congestion, 
identify and evaluate alternative actions, provide

[[Page 134]]

information supporting the implementation of actions, and evaluate the 
efficiency and effectiveness of implemented actions;
    (2) Definition of parameters for measuring the extent of congestion 
and for supporting the evaluation of the effectiveness of congestion 
reduction and mobility enhancement strategies for the movement of people 
and goods. Since levels of acceptable system performance may vary among 
local communities, performance measures and service thresholds should be 
tailored to the specific needs of the area and established cooperatively 
by the State, affected MPO(s), and local officials in consultation with 
the operators of major modes of transportation in the coverage area;
    (3) Establishment of a program for data collection and system 
performance monitoring to define the extent and duration of congestion, 
to help determine the causes of congestion, and to evaluate the 
efficiency and effectiveness of implemented actions. To the extent 
possible, existing data sources should be used, as well as appropriate 
application of the real-time system performance monitoring capabilities 
available through Intelligent Transportation Systems (ITS) technologies;
    (4) Identification and evaluation of the anticipated performance and 
expected benefits of appropriate traditional and nontraditional 
congestion management strategies that will contribute to the more 
efficient use of existing and future transportation systems based on the 
established performance measures. The following categories of 
strategies, or combinations of strategies, should be appropriately 
considered for each area: Transportation demand management measures, 
including growth management and congestion pricing; traffic operational 
improvements; public transportation improvements; ITS technologies; and, 
where necessary, additional system capacity.
    (5) Identification of an implementation schedule, implementation 
responsibilities, and possible funding sources for each strategy (or 
combination of strategies) proposed for implementation; and
    (6) Implementation of a process for periodic assessment of the 
efficiency and effectiveness of implemented strategies, in terms of the 
area's established performance measures. The results of this evaluation 
shall be provided to decision makers to provide guidance on selection of 
effective strategies for future implementation.
    (c) In a TMA designated as nonattainment for carbon monoxide and/or 
ozone, the CMS shall provide an appropriate analysis of all reasonable 
(including multimodal) travel demand reduction and operational 
management strategies for the corridor in which a project that will 
result in a significant increase in capacity for SOVs (adding general 
purpose lanes to an existing highway or constructing a new highway) is 
proposed. If the analysis demonstrates that travel demand reduction and 
operational management strategies cannot fully satisfy the need for 
additional capacity in the corridor and additional SOV capacity is 
warranted, then the CMS shall identify all reasonable strategies to 
manage the SOV facility effectively (or to facilitate its management in 
the future). Other travel demand reduction and operational management 
strategies appropriate for the corridor, but not appropriate for 
incorporation into the SOV facility itself shall also be identified 
through the CMS. All identified reasonable travel demand reduction and 
operational management strategies shall be incorporated into the SOV 
project or committed to by the State and MPO for implementation.
    (d)(1) Compliance with the requirement that the planning process in 
all TMAs include a CMS will be addressed during metropolitan planning 
process certification reviews for all TMAs specified in 23 CFR 450.334. 
If the metropolitan planning process in a TMA does not include a CMS 
that meets the requirements of this section, deficiencies will be noted 
and corrections will need to be made in accordance with the schedule 
established in the certification review.
    (2) Until October 1, 1997, the interim CMS procedures in 23 CFR 
450.336(b) may be used to meet the requirement in 23 U.S.C. 134(l) that 
Federal funds may not be programmed in a carbon

[[Page 135]]

monoxide and/or ozone nonattainment TMA for any highway project that 
will result in a significant increase in single-occupant-vehicle 
capacity unless the project is based on an approved CMS. After September 
30, 1997, such projects must be based on a CMS that meets the 
requirements of this part.



Sec. 500.110  PTMS.

    An effective PTMS for public transportation facilities (e.g., 
maintenance facilities, stations, terminals, transit related 
structures), equipment, and rolling stock is a systematic process that 
collects and analyzes information on the condition and cost of transit 
assets on a continual basis, identifies needs, and enables decision 
makers to select cost-effective strategies for providing and maintaining 
transit assets in serviceable condition. The PTMS should cover public 
transportation systems operated by the State, local jurisdictions, 
public transportation agencies and authorities, and private (for profit 
and non-profit) transit operators receiving funds under the Federal 
Transit Act and include, at a minimum:
    (a) Development of transit asset condition measures and standards;
    (b) An inventory of the transit assets including age, condition, 
remaining useful life, and replacement cost; and
    (c) Identification, evaluation, and implementation of appropriate 
strategies and projects.



Sec. 500.111  IMS.

    An effective IMS for intermodal facilities and systems provides 
efficient, safe, and convenient movement of people and goods through 
integration of transportation facilities and systems and improvement in 
the coordination in planning, and implementation of air, water, and the 
various land-based transportation facilities and systems. An IMS should 
include, at a minimum:
    (a) Establishment of performance measures;
    (b) Identification of key linkages between one or more modes of 
transportation, where the performance or use of one mode will affect 
another;
    (c) Definition of strategies for improving the effectiveness of 
these modal interactions; and
    (d) Evaluation and implementation of these strategies to enhance the 
overall performance of the transportation system.



                  Subpart B--Traffic Monitoring System



Sec. 500.201  Purpose.

    The purpose of this subpart is to set forth requirements for 
development, establishment, implementation, and continued operation of a 
traffic monitoring system for highways and public transportation 
facilities and equipment (TMS) in each State in accordance with the 
provisions of 23 U.S.C. 303 and subpart A of this part.



Sec. 500.202  TMS definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) and Sec. 500.103 are applicable to this subpart. As used 
in this part:
    Highway traffic data means data used to develop estimates of the 
amount of person or vehicular travel, vehicle usage, or vehicle 
characteristics associated with a system of highways or with a 
particular location on a highway. These types of data support the 
estimation of the number of vehicles traversing a section of highway or 
system of highways during a prescribed time period (traffic volume), the 
portion of such vehicles that may be of a particular type (vehicle 
classification), the weights of such vehicles including the weight of 
each axle and associated distances between axles on a vehicle (vehicle 
weight), or the average number of persons being transported in a vehicle 
(vehicle occupancy).
    Traffic monitoring system means a systematic process for the 
collection, analysis, summary, and retention of highway and transit 
related person and vehicular traffic data.
    Transit traffic data means person and vehicular data for public 
transportation on public highways and streets and the number of vehicles 
and ridership for dedicated transit rights-of-way (e.g., rail and 
busways), at the maximum load points for the peak period in the peak 
direction and for the daily time period.

[[Page 136]]



Sec. 500.203  TMS general requirements.

    (a) Each State shall develop, establish, and implement, on a 
continuing basis, a TMS to be used for obtaining highway traffic data 
when:
    (1) The data are supplied to the U.S. Department of Transportation 
(U.S. DOT);
    (2) The data are used in support of transportation management 
systems;
    (3) The data are used in support of studies or systems which are the 
responsibility of the U.S. DOT;
    (4) The collection of the data is supported by the use of Federal 
funds provided from programs of the U.S. DOT;
    (5) The data are used in the apportionment or allocation of Federal 
funds by the U.S. DOT;
    (6) The data are used in the design or construction of an FHWA 
funded project; or
    (7) The data are required as part of a federally mandated program of 
the U.S. DOT.
    (b) The TMS for highway traffic data should be based on the concepts 
described in the American Association of State Highway and 
Transportation Officials (AASHTO) ``AASHTO Guidelines for Traffic Data 
Programs'' \4\ and the FHWA ``Traffic Monitoring Guide (TMG),'' \5\ and 
shall be consistent with the FHWA ``Highway Performance Monitoring 
System Field Manual.'' \6\
---------------------------------------------------------------------------

    \4\ AASHTO Guidelines for Traffic Data Programs, 1992, ISBN 1-56051-
054-4, can be purchased from the American Association of State Highway 
and Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, D.C. 20001. Available for inspection as prescribed in 49 CFR 
part 7, appendix D.
    \5\ Traffic Monitoring Guide, DOT/FHWA, publication No. FHWA-PL-95-
031, February 1995. Available for inspection and copying as prescribed 
in 49 CFR part 7, appendix D.
    \6\ Highway Performance Monitoring System (HPMS) Field Manual for 
the Continuing Analytical and Statistical Data Base, DOT/FHWA, August 
30, 1993 (FHWA Order M5600.1B). Available for inspection and copying as 
prescribed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (c) The TMS shall cover all public roads except those functionally 
classified as local or rural minor collector or those that are federally 
owned. Coverage of federally owned public roads shall be determined 
cooperatively by the State, the FHWA, and the agencies that own the 
roads.
    (d) The State's TMS shall apply to the activities of local 
governments and other public or private non-State government entities 
collecting highway traffic data within the State if the collected data 
are to be used for any of the purposes enumerated in Sec. 500.203(a) of 
this subpart.
    (e) Procedures other than those referenced in this subpart may be 
used if the alternative procedures are documented by the State to 
furnish the precision levels as defined for the various purposes 
enumerated in Sec. 500.203(a) of this subpart and are found acceptable 
by the FHWA.
    (f) Nothing in this subpart shall prohibit the collection of 
additional highway traffic data if such data are needed in the 
administration or management of a highway activity or are needed in the 
design of a highway project.
    (g) Transit traffic data shall be collected in cooperation with MPOs 
and transit operators.
    (h) The TMS for highways and public transportation facilities and 
equipment shall be fully operational and in use by October 1, 1997.



Sec. 500.204  TMS components for highway traffic data.

    (a) General. Each State's TMS, including those using alternative 
procedures, shall address the components in paragraphs (b) through (h) 
of this section.
    (b) Precision of reported data. Traffic data supplied for the 
purposes identified in Sec. 500.203(a) of this subpart shall be to the 
statistical precision applicable at the time of the data's collection as 
specified by the data users at various levels of government. A State's 
TMS shall meet the statistical precisions established by FHWA for the 
HPMS.
    (c) Continuous counter operations. Within each State, there shall be 
sufficient continuous counters of traffic volumes, vehicle 
classification, and vehicle weight to provide estimates of changes in 
highway travel patterns and to provide for the development of day-of-
week, seasonal, axle correction, growth factors, or other comparable 
factors approved by the FHWA that

[[Page 137]]

support the development of traffic estimates to meet the statistical 
precision requirements of the data uses identified in Sec. 500.203(a) of 
this subpart. As appropriate, sufficient continuous counts of vehicle 
classification and vehicle weight should be available to address traffic 
data program needs.
    (d) Short term traffic monitoring. (1) Count data for traffic 
volumes collected in the field shall be adjusted to reflect annual 
average conditions. The estimation of annual average daily traffic will 
be through the appropriate application of only the following: Seasonal 
factors, day-of-week factors, and, when necessary, axle correction and 
growth factors or other comparable factors approved by the FHWA. Count 
data that have not been adjusted to represent annual average conditions 
will be noted as being unadjusted when they are reported. The duration 
and frequency of such monitoring shall comply to the data needs 
identified in Sec. 500.203(a) of this subpart.
    (2) Vehicle classification activities on the National Highway System 
(NHS), shall be sufficient to assure that, on a cycle of no greater than 
three years, every major system segment (i.e., segments between 
interchanges or intersections of principal arterials of the NHS with 
other principal arterials of the NHS) will be monitored to provide 
information on the numbers of single-trailer combination trucks, 
multiple-trailer combination trucks, two-axle four-tire vehicles, buses 
and the total number of vehicles operating on an average day. If it is 
determined that two or more continuous major system segments have both 
similar traffic volumes and distributions of the vehicle types 
identified above, a single monitoring session will be sufficient to 
monitor these segments.
    (e) Vehicle occupancy monitoring. As deemed appropriate to support 
the data uses identified in Sec. 500.203(a) of this subpart, data will 
be collected on the average number of persons per automobile, light two-
axle truck, and bus. The duration, geographic extent, and level of 
detail shall be consistent with the intended use of the data, as 
cooperatively agreed to by the organizations that will use the data and 
the organizations that will collect the data. Such vehicle occupancy 
data shall be reviewed at least every three years and updated as 
necessary. Acceptable data collection methods include roadside 
monitoring, traveler surveys, the use of administrative records (e.g., 
accident reports or reports developed in support of public 
transportation programs), or any other method mutually acceptable to the 
responsible organizations and the FHWA.
    (f) Field operations. (1) Each State's TMS for highway traffic data 
shall include the testing of equipment used in the collection of the 
data. This testing shall be based on documented procedures developed by 
the State. This documentation will describe the test procedure as well 
as the frequency of testing. Standards of the American Society for 
Testing and Materials or guidance from the AASHTO may be used. Only 
equipment passing the test procedures will be used for the collection of 
data for the purposes identified in Sec. 500.203(a) of this subpart.
    (2) Documentation of field operations shall include the number of 
counts, the period of monitoring, the cycle of monitoring, and the 
spatial and temporal distribution of count sites. Copies of the State's 
documentation shall be provided to the FHWA Division Administrator when 
it is initially developed and after each revision.
    (g) Source data retention. For estimates of traffic or travel, the 
value or values collected during a monitoring session, as well as 
information on the date(s) and hour(s) of monitoring, will remain 
available until the traffic or travel estimates based on the count 
session are updated. Data shall be available in formats that conform to 
those in the version of the TMG current at the time of data collection 
or as then amended by the FHWA.
    (h) Office factoring procedures. (1) Factors to adjust data from 
short term monitoring sessions to estimates of average daily conditions 
shall be used to adjust for month, day of week, axle correction, and 
growth or other comparable factors approved by the FHWA. These factors 
will be reviewed annually and updated at least every three years.
    (2) The procedures used by a State to edit and adjust highway 
traffic data collected from short term counts at field locations to 
estimates of average

[[Page 138]]

traffic volume shall be documented. The documentation shall include the 
factors discussed in paragraph (d)(1) of this section. The documentation 
shall remain available as long as the traffic or travel estimates 
discussed in paragraph (g) of this section remain current. Copies of the 
State's documentation shall be provided to the FHWA Division 
Administrator when it is initially developed and after each revision.

                           PART 511 [RESERVED]

[[Page 139]]



            SUBCHAPTER G--ENGINEERING AND TRAFFIC OPERATIONS


PART 620--ENGINEERING--Table of Contents




       Subpart A--Highway Improvements in the Vicinity of Airports

Sec.
620.101  Purpose.
620.102  Applicability.
620.103  Policy.
620.104  Standards.

             Subpart B--Relinquishment of Highway Facilities

620.201  Purpose.
620.202  Applicability.
620.203  Procedures.

    Authority: 23 U.S.C. 315 and 318; 49 CFR 1.48, 23 CFR 1.32.

    Source: 39 FR 33311, Sept. 17, 1974, unless otherwise noted.



       Subpart A--Highway Improvements in the Vicinity of Airports

    Source: 39 FR 35145, Sept. 30, 1974, unless otherwise noted.



Sec. 620.101  Purpose.

    The purpose of this section is to implement title 23 U.S.C., section 
318 which requires coordination of airport and highway developments to 
insure (a) that airway-highway clearances are adequate for the safe 
movement of air and highway traffic, and (b) that the expenditure of 
public funds for airport and highway improvements is in the public 
interest.



Sec. 620.102  Applicability.

    The requirements of this section apply to all projects on which 
Federal-aid highway funds are to be expended and to both civil and 
military airports.



Sec. 620.103  Policy.

    (a) Federal-aid highway funds shall not participate in the costs of 
reconstruction or relocation of any highway to which this section 
applies unless the Federal Highway Administration (FHWA) and State 
officials, in cooperation with the Federal Aviation Administration (FAA) 
or appropriate military authority, or in the case of privately owned 
airports, the owner of that airport, determine that the location or 
extension of the airport in question and the consequent relocation or 
reconstruction of the highway is in the public interest.
    (b) In addition to complying with 23 U.S.C. 318 and insuring the 
prudent use of public funds, it is the policy of FHWA to provide a high 
degree of safety in the location, design, construction and operation of 
highways and airports.
    (c) Federal-aid funds shall not participate in projects where 
substandard clearances are created or will continue to exist.



Sec. 620.104  Standards.

    A finding of public interest by FHWA will be based on compliance 
with airway-highway clearances which conform to FAA standards for 
aeronautical safety.



             Subpart B--Relinquishment of Highway Facilities

    Source: 39 FR 33311, Sept. 17, 1974, unless otherwise noted.



Sec. 620.201  Purpose.

    To prescribe Federal Highway Administration (FHWA) procedures 
relating to relinquishment of highway facilities.



Sec. 620.202  Applicability.

    The provisions of this subpart apply to highway facilities where 
Federal-aid funds have participated in either right-of-way or physical 
construction costs of a project. The provisions of this subpart apply 
only to relinquishment of facilities for continued highway purposes. 
Other real property disposals and modifications or disposal of access 
rights are governed by the requirements of 23 CFR part 710.

[64 FR 71289, Dec. 21, 1999]



Sec. 620.203  Procedures.

    (a) After final acceptance of a project on the Federal-aid primary, 
urban, or

[[Page 140]]

secondary system or after the date that the plans, specifications and 
estimates (PS&E) for the physical construction on the right-of-way for a 
Federal-aid Interstate project have been approved by the FHWA, 
relinquishment of the right-of-way or any change made in control of 
access shall be in accordance with the provisions of this section. For 
the purposes of this section, final acceptance for a project involving 
physical construction is the date of the acceptance of the physical 
construction by the FHWA and for right-of-way projects, the date the 
division engineer determines to be the date of the completion of the 
acquisition of the right-of-way shown on the final plans.
    (b) For the purposes of this section, relinquishment is defined as 
the conveyance of a portion of a highway right-of-way or facility by a 
State highway agency (SHA) to another Government agency for highway use.
    (c) The following facilities may be relinquished in accordance with 
paragraph 203(f):
    (1) Sections of a State highway which have been superseded by 
construction on new location and removed from the Federal-aid system and 
the replaced section thereof is approved by the FHWA as the new location 
of the Federal-aid route. Federal-aid funds may not participate in 
rehabilitation work performed for the purpose of placing the superseded 
section of the highway in a condition acceptable to the local authority. 
The relinquishment of any Interstate mileage shall be submitted to the 
Federal Highway Administrator as a special case for prior approval.
    (2) Sections of reconstructed local facilities that are located 
outside the control of access lines, such as turn-arounds of severed 
local roads or streets adjacent to the Federal-aid project's right-of-
way, and local roads and streets crossing over or under said project 
that have been adjusted in grade and/or alignment, including new right-
of-way required for adjustments. Eligibility for Federal-aid 
participation in the costs of the foregoing adjustments is as determined 
at the time of PS&E approval under policies of the FHWA.
    (3) Frontage roads or portions thereof that are constructed 
generally parallel to and outside the control of access lines of a 
Federal-aid project for the purpose of permitting access to private 
properties rather than to serve as extensions of ramps to connect said 
Federal-aid project with the nearest crossroad or street.
    (d) The following facilities may be relinquished only with the 
approval of the Federal Highway Administrator in accordance with 
paragraph 203(g).
    (1) Frontage roads or portions thereof located outside the access 
control lines of a Federal-aid project that are constructed to service 
(in lieu of or in addition to the purposes outlined under paragraph 
(c)(3) of this section) as connections between ramps to or from the 
Federal-aid project and existing public roads or streets.
    (2) Ramps constructed to serve as connections for interchange of 
traffic between the Federal-aid project and local roads or streets.
    (e) Where a frontage road is not on an approved Federal-aid system 
title to the right-of-way may be acquired initially in the name of the 
political subdivision which is to assume control thus eliminating the 
necessity of a formal transfer later. Such procedure would be subject to 
prior FHWA approval and would be limited to those facilities which meet 
the criteria set forth in paragraphs (c) (2) and (3) of this section.
    (f) Upon presentation by a State that it intends to relinquish 
facilities such as described in paragraph (c) (1), (2) or (3) of this 
section to local authorities, the division engineer of the FHWA shall 
have appropriate field and office examination made thereof to assure 
that such relinquishments are in accordance with the provisions of the 
cited paragraphs. Relinquishments of the types described in paragraph 
(c) (1), (2) or (3) of this section may be made on an individual basis 
or on a project or route basis subject to the following conditions and 
understandings:
    (1) Immediately following action by the State in approving a 
relinquishment, it shall furnish to the Division Administrator for 
record purposes a copy of a suitable map or maps identified by the 
Federal-aid project number, with the facilities to be relinquished

[[Page 141]]

and the date of such relinquishment action clearly delineated thereon.
    (2) If it is found at any time after relinquishment that a 
relinquished facility is in fact required for the safe and proper 
operation of the Federal-aid highway, the State shall take immediate 
action to restore such facility to its jurisdiction without cost to 
Federal-aid highway funds.
    (3) If it is found at any time that a relinquished frontage road or 
portion thereof or any part of the right-of-way therefor has been 
abandoned by local governmental authority and a showing cannot be made 
that such abandoned facility is no longer required as a public road, it 
is to be understood that the Federal Highway Administrator may cause to 
be withheld from Federal-aid highway funds due to the State an amount 
equal to the Federal-aid participation in the abandoned facility.
    (4) In no case shall any relinquishment include any portion of the 
right-of-way within the access control lines as shown on the plans for a 
Federal-aid project approved by the FHWA, without the prior approval of 
the Federal Highway Administrator.
    (5) There cannot be additional Federal-aid participation in future 
construction or reconstruction on any relinquished ``off the Federal-aid 
system'' facility unless the underlying reason for such future work is 
caused by future improvement of the associated Federal-aid highway.
    (g) In the event that a State desires to apply for approval by the 
Federal Highway Administrator for the relinquishment of a facility such 
as described in paragraph (d) (1) and (2) of this section, the facts 
pertinent to such proposal are to be presented to the division engineer 
of the FHWA. The division engineer shall have appropriate review made of 
such presentation and forward the material presented by the State 
together with his findings thereon through the Regional Federal Highway 
Administrator for consideration by the Federal Highway Administrator and 
determination of action to be taken.
    (h) No change may be made in control of access, without the joint 
determination and approval of the SHA and FHWA. This would not prevent 
the relinquishment of title, without prior approval of the FHWA, of a 
segment of the right-of-way provided there is an abandonment of a 
section of highway inclusive of such segment.
    (i) Relinquishments must be justified by the State's finding 
concurred in by the FHWA, that:
    (1) The subject land will not be needed for Federal-aid highway 
purposes in the foreseeable future;
    (2) That the right-of-way being retained is adequate under present 
day standards for the facility involved;
    (3) That the release will not adversely affect the Federal-aid 
highway facility or the traffic thereon;
    (4) That the lands to be relinquished are not suitable for retention 
in order to restore, preserve, or improve the scenic beauty adjacent to 
the highway consonant with the intent of 23 U.S.C. 319 and Pub. L. 89-
285, Title III, sections 302-305 (Highway Beautification Act of 1965).
    (j) If a relinquishment is to a Federal, State, or local government 
agency for highway purposes, there need not be a charge to the said 
agency, nor in such event any credit to Federal funds. If for any reason 
there is a charge, the STD may retain the Federal share of the proceeds 
if used for projects eligible under title 23 of the United States Code.

[39 FR 33311, Sept. 17, 1974, as amended at 64 FR 71289, Dec. 21, 1999]



PART 625--DESIGN STANDARDS FOR HIGHWAYS--Table of Contents




Sec.
625.1  Purpose.
625.2  Policy.
625.3  Application.
625.4  Standards, policies, and standard specifications.

    Authority: 23 U.S.C. 109, 315, and 402; Sec. 1073 of Pub. L. 102-
240, 105 Stat. 1914, 2012; 49 CFR 1.48(b) and (n).

    Source: 62 FR 15397, Apr. 1, 1997, unless otherwise noted.



Sec. 625.1  Purpose.

    To designate those standards, policies, and standard specifications 
that are acceptable to the Federal Highway Administration (FHWA) for 
application

[[Page 142]]

in the geometric and structural design of highways.



Sec. 625.2  Policy.

    (a) Plans and specifications for proposed National Highway System 
(NHS) projects shall provide for a facility that will--
    (1) Adequately serve the existing and planned future traffic of the 
highway in a manner that is conducive to safety, durability, and economy 
of maintenance; and
    (2) Be designed and constructed in accordance with criteria best 
suited to accomplish the objectives described in paragraph (a)(1) of 
this section and to conform to the particular needs of each locality.
    (b) Resurfacing, restoration, and rehabilitation (RRR) projects, 
other than those on the Interstate system and other freeways, shall be 
constructed in accordance with standards which preserve and extend the 
service life of highways and enhance highway safety. Resurfacing, 
restoration, and rehabilitation work includes placement of additional 
surface material and/or other work necessary to return an existing 
roadway, including shoulders, bridges, the roadside, and appurtenances 
to a condition of structural or functional adequacy.
    (c) An important goal of the FHWA is to provide the highest 
practical and feasible level of safety for people and property 
associated with the Nation's highway transportation systems and to 
reduce highway hazards and the resulting number and severity of 
accidents on all the Nation's highways.



Sec. 625.3  Application.

    (a) Applicable Standards. (1) Design and construction standards for 
new construction, reconstruction, resurfacing (except for maintenance 
resurfacing), restoration, or rehabilitation of a highway on the NHS 
(other than a highway also on the Interstate System or other freeway) 
shall be those approved by the Secretary in cooperation with the State 
highway departments. These standards may take into account, in addition 
to the criteria described in Sec. 625.2(a), the following:
    (i) The constructed and natural environment of the area;
    (ii) The environmental, scenic, aesthetic, historic, community, and 
preservation impacts of the activity; and
    (iii) Access for other modes of transportation.
    (2) Federal-aid projects not on the NHS are to be designed, 
constructed, operated, and maintained in accordance with State laws, 
regulations, directives, safety standards, design standards, and 
construction standards.
    (b) The standards, policies, and standard specifications cited in 
Sec. 625.4 of this part contain specific criteria and controls for the 
design of NHS projects. Deviations from specific minimum values therein 
are to be handled in accordance with procedures in paragraph (f) of this 
section. If there is a conflict between criteria in the documents 
enumerated in Sec. 625.4 of this part, the latest listed standard, 
policy, or standard specification will govern.
    (c) Application of FHWA regulations, although cited in Sec. 625.4 of 
this part as standards, policies, and standard specifications, shall be 
as set forth therein.
    (d) This regulation establishes Federal standards for work on the 
NHS regardless of funding source.
    (e) The Division Administrator shall determine the applicability of 
the roadway geometric design standards to traffic engineering, safety, 
and preventive maintenance projects which include very minor or no 
roadway work. Formal findings of applicability are expected only as 
needed to resolve controversies.
    (f) Exceptions. (1) Approval within the delegated authority provided 
by FHWA Order M1100.1A may be given on a project basis to designs which 
do not conform to the minimum criteria as set forth in the standards, 
policies, and standard specifications for:
    (i) Experimental features on projects; and
    (ii) Projects where conditions warrant that exceptions be made.
    (2) The determination to approve a project design that does not 
conform to the minimum criteria is to be made only after due 
consideration is given to all project conditions such as maximum service 
and safety benefits for the dollar invested, compatibility with adjacent 
sections of roadway and the probable time before reconstruction of

[[Page 143]]

the section due to increased traffic demands or changed conditions.



Sec. 625.4  Standards, policies, and standard specifications.

    The documents listed in this section are incorporated by reference 
with the approval of the Director of the Federal Register in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51 and are on file at the Office of 
the Federal Register in Washington, DC. They are available as noted in 
paragraph (d) of this section. The other CFR references listed in this 
section are included for cross-reference purposes only.
    (a) Roadway and appurtenances. (1) A Policy on Geometric Design of 
Highways and Streets, AASHTO 1994. [See Sec. 625.4(d)(1)]
    (2) A Policy on Design Standards--Interstate System, AASHTO 1991. 
[See Sec. 625.4(d)(1)]
    (3) The geometric design standards for resurfacing, restoration, and 
rehabilitation (RRR) projects on NHS highways other than freeways shall 
be the procedures and the design or design criteria established for 
individual projects, groups of projects, or all nonfreeway RRR projects 
in a State, and as approved by the FHWA. The other geometric design 
standards in this section do not apply to RRR projects on NHS highways 
other than freeways, except as adopted on an individual State basis. The 
RRR design standards shall reflect the consideration of the traffic, 
safety, economic, physical, community, and environmental needs of the 
projects.
    (4) Erosion and Sediment Control on Highway Construction Projects, 
refer to 23 CFR part 650, subpart B.
    (5) Location and Hydraulic Design of Encroachments on Flood Plains, 
refer to 23 CFR part 650, subpart A.
    (6) Procedures for Abatement of Highway Traffic Noise and 
Construction Noise, refer to 23 CFR part 772.
    (7) Accommodation of Utilities, refer to 23 CFR part 645, subpart B.
    (8) Pavement Design, refer to 23 CFR part 626.
    (b) Bridges and structures. (1) Standard Specifications for Highway 
Bridges, Fifteenth Edition, AASHTO 1992. [See Sec. 625.4(d)(1)]
    (2) Interim Specifications--Bridges, AASHTO 1993. [See 
Sec. 625.4(d)(1)]
    (3) Interim Specifications--Bridges, AASHTO 1994. [See 
Sec. 625.4(d)(1)]
    (4) Interim Specifications--Bridges, AASHTO 1995. [See 
Sec. 625.4(d)(1)]
    (5) AASHTO LRFD Bridge Design Specifications, First Edition, AASHTO 
1994 (U.S. Units). [See Sec. 625.4(d)(1)]
    (6) AASHTO LRFD Bridge Design Specifications, First Edition, AASHTO 
1994 (SI Units). [See Sec. 625.4(d)(1)]
    (7) Standard Specifications for Movable Highway Bridges, AASHTO 
1988. [See Sec. 625.4(d)(1)]
    (8) Bridge Welding Code, ANSI/AASHTO/AWS D1.5-95, AASHTO. [See 
Sec. 625.4(d) (1) and (2)]
    (9) Structural Welding Code--Reinforcing Steel, ANSI/AWS D1.4-92, 
1992. [See Sec. 625.4(d)(2)]
    (10) Standard Specifications for Structural Supports for Highway 
Signs, Luminaires and Traffic Signals, AASHTO 1994. [See 
Sec. 625.4(d)(1)]
    (11) Navigational Clearances for Bridges, refer to 23 CFR part 650, 
subpart H.
    (c) Materials. (1) General Materials Requirements, refer to 23 CFR 
part 635, subpart D.
    (2) Standard Specifications for Transportation Materials and Methods 
of Sampling and Testing, parts I and II, AASHTO 1995. [See 
Sec. 625.4(d)(1)]
    (3) Sampling and Testing of Materials and Construction, refer to 23 
CFR part 637, subpart B.
    (d) Availability of documents incorporated by reference. The 
documents listed in Sec. 625.4 are incorporated by reference and are on 
file and available for inspection at the Office of the Federal Register, 
800 North Capitol Street, NW., Suite 700, Washington, DC. These 
documents may also be reviewed at the Department of Transportation 
Library, 400 Seventh Street, SW., Washington, DC, in Room 2200. These 
documents are also available for inspection and copying as provided in 
49 CFR part 7, appendix D. Copies of these documents may be obtained 
from the following organizations:
    (1) American Association of State Highway and Transportation 
Officials (AASHTO), Suite 249, 444 North Capitol Street, NW., 
Washington, DC 20001.

[[Page 144]]

    (2) American Welding Society (AWS), 2501 Northwest Seventh Street, 
Miami, FL 33125.



PART 626--PAVEMENT POLICY--Table of Contents




Sec.
626.1  Purpose.
626.2  Definitions.
626.3  Policy.

    Authority: 23 U.S.C. 101(e), 109, and 315; 49 CFR 1.48(b)

    Source: 61 FR 67174, Dec. 19, 1996, unless otherwise noted.



Sec. 626.1  Purpose.

    To set forth pavement design policy for Federal-aid highway 
projects.



Sec. 626.2  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Pavement design means a project level activity where detailed 
engineering and economic considerations are given to alternative 
combinations of subbase, base, and surface materials which will provide 
adequate load carrying capacity. Factors which are considered include: 
Materials, traffic, climate, maintenance, drainage, and life-cycle 
costs.



Sec. 626.3  Policy.

    Pavement shall be designed to accommodate current and predicted 
traffic needs in a safe, durable, and cost effective manner.



PART 627--VALUE ENGINEERING--Table of Contents




Sec.
627.1  Purpose and applicability.
627.3  Definitions.
627.5  General principles and procedures.

    Authority: 23 U.S.C. 106(d), 106(f), 302, 307, and 315; 49 CFR 18.

    Source: 62 FR 6868, Feb. 14, 1997, unless otherwise noted.



Sec. 627.1  Purpose and applicability.

    (a) This regulation will establish a program to improve project 
quality, reduce project costs, foster innovation, eliminate unnecessary 
and costly design elements, and ensure efficient investments by 
requiring the application of value engineering (VE) to all Federal-aid 
highway projects on the National Highway System (NHS) with an estimated 
cost of $25 million or more.
    (b) In accordance with the Federal-State relationship established 
under the Federal-aid highway program, State highway agencies (SHA) 
shall assure that a VE analysis has been performed on all applicable 
projects and that all resulting, approved recommendations are 
incorporated into the plans, specifications and estimate.



Sec. 627.3  Definitions.

    Project. A portion of a highway that a State proposes to construct, 
reconstruct, or improve as described in the preliminary design report or 
applicable environmental document. A project may consist of several 
contracts or phases over several years.
    Value engineering. The systematic application of recognized 
techniques by a multi-disciplined team to identify the function of a 
product or service, establish a worth for that function, generate 
alternatives through the use of creative thinking, and provide the 
needed functions to accomplish the original purpose of the project, 
reliably, and at the lowest life-cycle cost without sacrificing safety, 
necessary quality, and environmental attributes of the project.



Sec. 627.5  General principles and procedures.

    (a) State VE programs. State highway agencies must establish 
programs to assure that VE studies are performed on all Federal-aid 
highway projects on the NHS with an estimated cost of $25 million or 
more. Program procedures should provide for the identification of 
candidate projects for VE studies early in the development of the 
State's multi-year Statewide Transportation Improvement Program.
    (1) Project selection. The program may, at the State's discretion, 
establish specific criteria and guidelines for selecting other highway 
projects for VE studies.

[[Page 145]]

    (2) Studies. Value engineering studies shall follow the widely 
recognized systematic problem-solving analysis process that is used 
throughout private industry and governmental agencies. Studies must be 
performed using multi-disciplined teams of individuals not personally 
involved in the design of the project. Study teams should consist of a 
team leader and individuals from different speciality areas, such as 
design, construction, environment, planning, maintenance, right-of-way, 
and other areas depending upon the type of project being reviewed. 
Individuals from the public and other agencies may also be included on 
the team when their inclusion is found to be in the public interest.
    (i) Each team leader should be trained and knowledgeable in VE 
techniques and be able to serve as the coordinator and facilitator of 
the team.
    (ii) Studies should be employed as early as possible in the project 
development or design process so that accepted VE recommendations can be 
implemented without delaying the progress of the project.
    (iii) Studies should conclude with a formal report outlining the 
study team's recommendations for improving the project and reducing its 
overall cost.
    (3) Recommendations. The program should include procedures to 
approve or reject recommendations and ensure the prompt review of VE 
recommendations by staff offices whose speciality areas are implicated 
in proposed changes and by offices responsible for implementing accepted 
recommendations. Reviews by these offices should be performed promptly 
to minimize delays to the project.
    (4) Incentives. The program may include a VE or cost reduction 
incentive clause in an SHA's standard specifications or project special 
provisions that allows construction contractors to submit change 
proposals and share the resulting cost savings with the SHA.
    (5) Monitoring. The program should include procedures for monitoring 
the implementation of VE study team recommendations and VE change 
proposal recommendations submitted by construction contractors.
    (b) State VE coordinators. Individuals knowledgeable in VE shall be 
assigned responsibilities to coordinate and monitor the SHA's program 
and be actively involved in all phases of the program.
    (c) Use of consultants. Consultants or firms with experience in VE 
may be retained by SHAs to conduct the studies of Federal-aid highway 
projects or elements of Federal-aid highway projects required under 
Sec. 627.1(a) of this part. Consultants or firms should not be retained 
to conduct studies of their own designs unless they maintain separate 
and distinct organizational separation of their VE and design sections.
    (d) Funding eligibility. The cost of performing VE studies is 
project related and is, therefore, eligible for reimbursement with 
Federal-aid highway funds at the appropriate pro-rata share for the 
project studied.



PART 630--PRECONSTRUCTION PROCEDURES--Table of Contents




              Subpart A--Federal-Aid Project Authorization

Sec.
630.102  Purpose.
630.104  Applicability.
630.106  Authorization to proceed.

             Subpart B--Plans, Specifications, and Estimates

630.201  Purpose.
630.203  Applicability.
630.205  Preparation, submission, and approval.

                      Subpart C--Project Agreements

630.301  Purpose.
630.303  Preparation of agreement.
630.305  Modification of original agreement.
630.307  Agreement provisions.

                       Subpart D--Geodetic Markers

630.401  Purpose.
630.402  Policy.
630.403  Initiation of projects.
630.404  Standards.

Subparts E-F [Reserved]

         Subpart G--Advance Construction of Federal-Aid Projects

630.701  Purpose.
630.703  Eligibility.
630.705  Procedures.

[[Page 146]]

630.707  Limitation.
630.709  Conversion to a regular Federal-aid project.
630.711  Payment of bond interest.

                   Subpart H--Bridges on Federal Dams

630.801  Purpose.
630.802  Applicability.
630.803  Procedures.

Subpart I [Reserved]

       Subpart J--Traffic Safety in Highway and Street Work Zones

630.1002  Purpose.
630.1004  Background.
630.1006  Policy.
630.1008  Implementation.
630.1010  Contents of the agency procedures.

    Authority: 23 U.S.C. 105, 106, 109, 115, 315, 320, and 402(a); 23 
CFR 1.32; 49 CFR 1.48(b).



              Subpart A--Federal-Aid Project Authorization

    Source: 61 FR 35632, July 8, 1996, unless otherwise noted.



Sec. 630.102  Purpose.

    The purpose of this subpart is to prescribe policies for authorizing 
Federal-aid projects.



Sec. 630.104  Applicability.

    (a) This regulation is applicable to all Federal-aid projects unless 
specifically exempted.
    (b) Projects financed with FHWA planning and research funds, as 
defined in 23 CFR 420.103 are not covered by this subpart. These 
projects are to be handled in accordance with 23 CFR parts 420 and 450.
    (c) Other projects which involve special procedures shall be 
authorized as set out in the implementing instructions for those 
projects.



Sec. 630.106  Authorization to proceed.

    (a) The FHWA issuance of an authorization to proceed with a Federal-
aid project shall be in response to a written request from the State 
highway agency (SHA). Authorization can be given only after applicable 
prerequisite requirements of Federal laws and implementing regulations 
and directives have been satisfied.
    (b) Federal funds shall not participate in costs incurred prior to 
the date of authorization to proceed except as provided by 23 CFR 
1.9(b).
    (c) Authorization of a Federal-aid project shall be deemed a 
contractual obligation of the Federal government under 23 U.S.C. 106 and 
shall require that appropriate funds be available at the time of 
authorization for the total agreed Federal share, either pro rata or 
lump sum, of the cost of eligible work to be incurred by the State, 
except as follows:
    (1) Advance construction projects authorized under 23 U.S.C. 115.
    (2) Projects for preliminary studies for the portion of the 
preliminary engineering and right-of-way (ROW) phase(s) through the 
selection of a location.
    (3) Projects for ROW acquisition in hardship and protective buying 
situations through the selection of a particular location. This includes 
ROW acquisitions within a potential highway corridor under consideration 
where necessary to preserve the corridor for future highway purposes. 
Authorization of work under this paragraph shall be in accordance with 
the provisions of 23 CFR part 710.
    (4) In special cases where the Federal Highway Administrator 
determines it to be in the best interest of the Federal-aid highway 
program.
    (d) The authorization to proceed with a project under 23 CFR 
630.106(c)(1) through (c)(4) shall contain the following statement: 
``Authorization to proceed shall not constitute any commitment of 
Federal funds, nor shall it be construed as creating in any manner any 
obligation on the part of the Federal government to provide Federal 
funds for that portion of the undertaking not fully funded herein.''
    (e) When a project has received an authorization under 23 CFR 
630.106(c)(2) and (c)(3), subsequent authorizations beyond the location 
stage shall not be given until appropriate available funds have been 
obligated to cover eligible costs of the work covered by the previous 
authorization.
    (f)(1) The Federal-aid share of eligible project costs shall be 
established at the time of project authorization in one of the following 
manners:

[[Page 147]]

    (i) Pro rata, with the authorization stating the Federal share as a 
specified percentage, or
    (ii) Lump sum, with the authorization stating that Federal funds are 
limited to a specified dollar amount not to exceed the legal pro rata.
    (2) The pro-rata or lump sum share may be adjusted before or shortly 
after contract award to reflect any substantive change in the bids 
received as compared to the SHA's estimated cost of the project at the 
time of FHWA authorization, provided that Federal funds are available.
    (3) Federal participation is limited to the agreed Federal share of 
eligible costs incurred by the State, not to exceed the maximum 
permitted by enabling legislation.
    (g) The State may contribute more than the normal non-Federal share 
of title 23, U.S.C., projects. In general, financing proposals that 
result in only minimal amounts of Federal funds in projects should be 
avoided unless they are based on sound project management decisions.

[61 FR 35632, July 8, 1996, as amended at 64 FR 71289, Dec. 21, 1999]



             Subpart B--Plans, Specifications, and Estimates

    Source: 43 FR 58564, Dec. 15, 1978, unless otherwise noted.



Sec. 630.201  Purpose.

    The purpose of this subpart is to prescribe Federal Highway 
Administration (FHWA) procedures relating to the preparation, 
submission, and approval of plans, specifications and estimates (PS&E), 
and supporting documents for Federal-aid projects.



Sec. 630.203  Applicability.

    The provisions of this regulation apply to all highway construction 
projects financed in whole or in part with Federal-aid highway funds and 
to be undertaken by a State or political subdivision, except for 
projects carried out pursuant to 23 U.S.C. 117 relative to certification 
acceptance or a secondary road plan.



Sec. 630.205  Preparation, submission, and approval.

    (a) The contents and number of copies of the PS&E assembly shall be 
determined by the FHWA.
    (b) Plans and specifications shall describe the location and design 
features and the construction requirements in sufficient detail to 
facilitate the construction, the contract control and the estimation of 
construction costs of the project. The estimate shall reflect the 
anticipated cost of the project in sufficient detail to provide an 
initial prediction of the financial obligations to be incurred by the 
State and FHWA and to permit an effectice review and comparison of the 
bids received.
    (c) PS&E assemblies for Federal-aid highway projects shall be 
submitted to the FHWA for approval.
    (d) The State highway agency (SHA) shall be advised of approval of 
the PS&E by the FHWA.
    (e) No project or part thereof for actual construction shall be 
advertised for contract nor work commenced by force account until the 
PS&E has been approved by the FHWA and the SHA has been so notified.



                      Subpart C--Project Agreements

    Source: 62 FR 6872, Feb. 14, 1997, unless otherwise noted.



Sec. 630.301  Purpose.

    The purpose of this subpart is to prescribe the procedures for the 
execution of the project agreement required by 23 U.S.C. 110(a) for 
Federal-aid projects, except for forest highway projects pursuant to 23 
U.S.C. 204, and for non-highway public mass transit projects 
administered by the Federal Transit Administration.



Sec. 630.303  Preparation of agreement.

    (a) The State highway agency (SHA) shall prepare a project agreement 
for each Federal-aid highway and FHWA planning and research project 
eligible for Federal-aid funding.
    (b) The SHA may develop the project agreement in a format acceptable 
to both the SHA and the FHWA provided the following are included:

[[Page 148]]

    (1) A description of the project location including State and 
project termini;
    (2) The Federal-aid project number;
    (3) The phases of work covered by the agreement along with the 
effective date of authorization for each phase;
    (4) The total project cost and amount of Federal funds under 
agreement;
    (5) A statement that the State accepts and will comply with the 
agreement provisions set forth in 23 CFR 630.307;
    (6) A statement that the State stipulates that its signature on the 
project agreement constitutes the making of the certifications set forth 
in 23 CFR 630.307; and
    (7) Signatures of officials from both the State and the FHWA and 
date executed.
    (c) The project agreement may be combined with the project 
authorization required under 23 CFR part 630, subpart A.
    (d) The SHA may use an electronic version of the agreement as 
provided by the FHWA.

(Approved by the Office of Management and Budget under control number 
2125-0529)



Sec. 630.305  Modification of original agreement.

    (a) When changes are needed to the original project agreement, a 
modification of agreement shall be prepared.
    (b) The SHA may develop the modification of project agreement in a 
format acceptable to both the SHA and the FHWA provided the following 
are included:
    (1) The Federal-aid project number and State;
    (2) A sequential number identifying the modification;
    (3) A reference to the date of the original project agreement to be 
modified;
    (4) The original total project cost and the original amount of 
Federal funds under agreement;
    (5) The revised total project cost and the revised amount of Federal 
funds under agreement;
    (6) The reason for the modifications; and,
    (7) Signatures of officials from both the State and the FHWA and 
date executed.
    (c) The SHA may use an electronic version of the modification of 
project agreement as provided by the FHWA.



Sec. 630.307  Agreement provisions.

    (a) The State, through its highway agency, accepts and agrees to 
comply with the applicable terms and conditions set forth in title 23, 
United States Code, Highways, the regulations issued pursuant thereto, 
the policies and procedures promulgated by the FHWA relative to the 
designated project in which the FHWA authorized certain work to proceed, 
and all other applicable Federal laws and regulations.
    (b) Federal funds obligated for the project must not exceed the 
amount agreed to on the project agreement, the balance of the estimated 
total cost being an obligation of the State. Such obligation of Federal 
funds extends only to project costs incurred by the State after the FHWA 
authorization to proceed with the project involving such costs.
    (c) The State must stipulate that as a condition to payment of the 
Federal funds obligated, it accepts and will comply with the following 
applicable provisions:
    (1) Project for acquisition of rights-of-way. In the event that 
actual construction of a road on this right-of-way is not undertaken by 
the close of the twentieth fiscal year following the fiscal year in 
which the project is authorized, the SHA will repay to the FHWA the sum 
or sums of Federal funds paid to the highway agency under the terms of 
the agreement.
    (2) Preliminary engineering project. In the event that right-of-way 
acquisition for, or actual construction of, the road for which this 
preliminary engineering is undertaken is not started by the close of the 
tenth fiscal year following the fiscal year in which the project is 
authorized, the SHA will repay to the FHWA the sum or sums of Federal 
funds paid to the highway agency under the terms of the agreement.
    (3) Drug-free workplace certification. By signing the project 
agreement, the SHA agrees to provide a drug-free workplace as required 
by 49 CFR part 29, subpart F. In signing the project agreement, the 
State is providing the certification required in appendix C to

[[Page 149]]

49 CFR part 29, unless the State provides an annual certification.
    (4) Suspension and debarment certification. By signing the project 
agreement, the SHA agrees to fulfill the responsibility imposed by 49 
CFR 29.510 regarding debarment, suspension, and other responsibility 
matters. In signing the project agreement, the State is providing the 
certification for its principals required in appendix A to 49 CFR part 
29.
    (5) Lobbying certification. By signing the project agreement, the 
SHA agrees to abide by the lobbying restrictions set forth in 49 CFR 
part 20. In signing the project agreement, the State is providing the 
certification required in appendix A to 49 CFR part 20.



                       Subpart D--Geodetic Markers

    Source: 39 FR 26414, July 19, 1974, unless otherwise noted.



Sec. 630.401  Purpose.

    The purpose of this subpart is to prescribe procedures for 
conducting geodetic control surveys when participation with Federal-aid 
highway funds in the cost thereof is proposed and to encourage inter-
agency cooperation in setting station markers, surveying to measure 
their position, and preserving the control so established.



Sec. 630.402  Policy.

    (a) Geodetic surveys along Federal-aid highway routes may be 
programmed as Federal-aid highway projects.
    (b) All geodetic survey work performed as a Federal-aid highway 
project will conform to National Ocean Survey (NOS) specifications. NOS 
will, as the representative of FHWA, be responsible for the inspection 
and verification of the work to ascertain that the specifications for 
the work have been met. Final project acceptance by FHWA will be 
predicated on a finding of acceptability by NOS.



Sec. 630.403  Initiation of projects.

    All projects shall be coordinated by the FHWA Division 
Administrator, the State highway department and the National Ocean 
Survey.



Sec. 630.404  Standards.

    (a) Highway purposes may best be served by the establishment of 
station markings for horizontal control along Federal-aid highway routes 
at spacings of three to eight kilometers (about 2 to 5 miles) and 
station markers for vertical control of spacings no closer than one 
kilometer. These requirements may be waived only with the approval of 
the Administrator.
    (b) Projects should be of sufficient scope to permit efficient use 
of field parties. Projects should extend at least 30 kilometers. 
Projects may be coordinated with adjoining States to attain greater 
efficiency.
    (c) Where geodetic station markers cannot be established inititally 
at points readily accessible from the Federal-aid route, or where 
unavoidable circumstances result in their being established within 
construction limits, supplemental projects may later be approved to set 
and survey markers at satisfactory permanent points, preferably within 
the right-of-way but at points where their use does not introduce 
traffic hazards.

Subparts E-F [Reserved]



         Subpart G--Advance Construction of Federal-Aid Projects

    Source: 60 FR 36993, July 19, 1995, unless otherwise noted.



Sec. 630.701  Purpose.

    The purpose of this subpart is to prescribe procedures for advancing 
the construction of Federal-aid highway projects without obligating 
Federal funds apportioned or allocated to the State.



Sec. 630.703  Eligibility.

    (a) The State Highway Agency (SHA) may proceed with a highway 
substitute, congestion mitigation and air quality improvement program, 
surface transportation program, bridge replacement and rehabilitation, 
or planning and research project in accordance with this subpart, 
provided the SHA:
    (1) Has obligated all funds apportioned or allocated to it under 23 
U.S.C.

[[Page 150]]

103(e)(4)(H), 104(b)(2), 104(b)(3), 104(f), 144, or 307, as the case may 
be for the proposed project, or
    (2) Has used all obligation authority distributed to it, or
    (3) Demonstrates that it will use all obligation authority 
distributed to it.
    (b) The SHA may proceed with a National Highway System (NHS) or 
Interstate project in accordance with this subpart without regard to 
apportionment or obligation authority balances. Interstate projects 
include Interstate construction and Interstate maintenance.



Sec. 630.705  Procedures.

    (a) An advance construction project shall meet the same requirements 
and be processed in the same manner as a regular Federal-aid project, 
except,
    (1) The FHWA authorization does not constitute any commitment of 
Federal funds on the project, and
    (2) The FHWA shall not reimburse the State until the project is 
converted under Sec. 630.709.
    (b) Project numbers shall be identified by the letters ``AC'' 
preceding the regular project number prefix.
    (c) If the SHA plans to claim bond interest costs under 
Sec. 630.711, it shall include in its request for authorization the 
estimated federally participating bond interest cost.
    (d) The SHA shall submit a final voucher to the FHWA upon completion 
of the project even though the project has not been converted. If the 
SHA is claiming bond interest costs under Sec. 630.711, it shall certify 
on the final voucher that the bond proceeds were expended in the 
construction of the project and shall include a computation of the 
eligible interest costs.



Sec. 630.707  Limitation.

    A request to approve an advance construction project is limited to a 
State's expected apportionment of authorized funds which are eligible to 
finance the project.



Sec. 630.709  Conversion to a regular Federal-aid project.

    (a) The SHA may submit a written request to the FHWA that a project 
be converted to a regular Federal-aid project at any time provided that 
sufficient Federal-aid funds and obligation authority are available.
    (b) Subsequent to FHWA approval the SHA may claim reimbursement for 
the Federal share of project costs incurred, provided the project 
agreement has been executed. If the SHA has previously submitted a final 
voucher, the FHWA will process the voucher for payment.



Sec. 630.711  Payment of bond interest.

    (a) For Interstate projects authorized by the FHWA after January 6, 
1983, and for Interstate 4R, Interstate maintenance, primary and NHS 
projects authorized by the FHWA after April 2, 1987, interest earned and 
payable on bonds issued by a State is an eligible cost of construction 
as follows:
    (1) Participating interest cost is based on the actual expenditure 
of bond proceeds on the Federal-aid project. The interest on the bonds 
is applied to the amount of bond proceeds expended on the project from 
the date of expenditure.
    (2) The amount of interest determined in paragraph (a)(1) of this 
section shall not exceed the estimated increase in the physical 
construction cost of the project which would have occurred had the 
project been authorized on the date of conversion. The estimated 
increase in the physical construction cost is determined by applying the 
increase, if any, in the national construction cost index in effect on 
the date of conversion over the index in effect on the date of the FHWA 
authorization, to the actual cost of physical construction.
    (b) For Interstate projects under physical construction on January 
1, 1983, and converted to a regular Federal-aid project after January 1, 
1983, bond interest is eligible in accordance with paragraph (a)(1) of 
this section. The restriction in paragraph (a)(2) of this section does 
not apply.



                   Subpart H--Bridges on Federal Dams

    Source: 39 FR 36474, Oct. 10, 1974, unless otherwise noted.

[[Page 151]]



Sec. 630.801  Purpose.

    The purpose of this subpart is to prescribe procedures for the 
construction and financing, by an agency of the Federal Government, of 
public highway bridges over dams constructed and owned by or for the 
United States.



Sec. 630.802  Applicability.

    A proposed bridge over a dam, together with the approach roads to 
connect the bridge with existing public highways, must be eligible for 
inclusion in the Federal-aid highway system, if not already a part 
thereof.



Sec. 630.803  Procedures.

    A State's application to qualify a project under this subpart will 
include:
    (a) A certification that the bridge is economically desirable and 
needed as a link in the Federal-aid highway system.
    (b) A statement showing the source and availability of funds to be 
used in construction of the roadway approaches.
    (c) A statement of any obligation on the part of the agency 
constructing the dam to provide such bridge or approach roads to satisfy 
a legal liability incurred independently of this subpart.

Subpart I [Reserved]



       Subpart J--Traffic Safety in Highway and Street Work Zones

    Source: 43 FR 47140, Oct. 12, 1978, unless otherwise noted.



Sec. 630.1002  Purpose.

    The purpose of this subpart is to provide guidance and establish 
procedures to assure that adequate consideration is given to motorists, 
pedestrians, and construction workers on all Federal-aid construction 
projects.



Sec. 630.1004  Background.

    Part VI of the manual on uniform traffic control devices (MUTCD) \1\ 
sets forth basic priniciples and prescribes standards for the design, 
application, installation, and maintenance of the various types of 
traffic control devices for highway and street construction, maintenance 
operation, and utility work. The manual cannot address in depth the 
variety of situations that occur in providing traffic control in work 
zones. Although agencies responsible for traffic control and work area 
protection have attempted to develop some guidelines, a coordinated and 
comprehensive effort to develop greater uniformity is desirable. 
National reviews have shown that more attention is needed to insure that 
the MUTCD is properly implemented on all highway projects.
---------------------------------------------------------------------------

    \1\ The MUTCD is available from the Superintendent of Documents, 
U.S. Government Printing Office, Washington, D.C. 20402. It is 
incorporated by reference at 23 CFR 655, subpart F.

[43 FR 47140, Oct. 12, 1978, as amended at 51 FR 16834, May 7, 1986]



Sec. 630.1006  Policy.

    It is the policy of the Federal Highway Administration that each 
highway agency shall develop and implement procedures consonant with the 
requirements of this regulation that will assure the safety of 
motorists, pedestrians, and construction workers on Federal-aid highway 
construction projects. The procedures shall be consistent with the 
provisions of the MUTCD. Highway agencies should be encouraged to 
implement these procedures for non-Federal-aid projects and maintenance 
operations as well.



Sec. 630.1008  Implementation.

    The FHWA Division Administrator shall review and approve the highway 
agency's implementation of its procedures at appropriate intervals. The 
FHWA shall take appropriate action to assure that the highway agency's 
procedures are being followed and achieve the results intended. Major 
revisions in established procedures shall be submitted to the FHWA 
Division Administrator for information.



Sec. 630.1010  Contents of the agency procedures.

    The agency's procedures shall include, but not necessarily be 
limited to the following:
    (a) Traffic control plan (TCP). (1) A traffic control plan is a plan 
for handling traffic through a specific highway

[[Page 152]]

or street work zone or project. These plans may range in scope from a 
very detailed TCP designed solely for a specific project, to a reference 
to standard plans, a section of the MUTCD, or a standard highway agency 
manual. The degree of detail in the TCP will depend on the project 
complexity and traffic interference with construction activity.
    (2) Traffic control plans shall be developed for all projects and be 
included in plans, specifications, and estimates (P.S. & E.'s) and shall 
be consistent with part VI of the MUTCD.
    (3) The scope of the TCP should be determined during planning and 
design phases of a project.
    (4) Provisions may be made to permit contractors to develop their 
own TCP's and use them if the highway agency and FHWA find that these 
plans are as good as or better than those provided in the P.S. & E.
    (5)(i) Two-lane, two-way operation on one roadway of a normally 
divided highway (TLTWO) shall be used only after careful consideration 
of other available methods of traffic control. Where the TLTWO is used, 
the TCP shall include provisions for the separation of opposing traffic 
except:
    (A) Where the TLTWO is located on an urban type street or arterial 
where operating speeds are low;
    (B) Where drivers entering the TLTWO can see the transition back to 
normal one-way operation on each roadway; or
    (C) Where FHWA approves nonuse of separation devices based on 
unusual circumstances.
    (ii) Center line striping, raised pavement markers, and 
complementary signing, either alone or in combination, are not 
considered acceptable for separation purposes.
    (b) Responsible person. The highway agency shall designate a 
qualified person at the project level who will have the primary 
responsibility and sufficient authority for assuring that the TCP and 
other safety aspects of the contract are effectively administered. While 
the project or resident engineer may have this responsibility, on large 
complex projects another person should be assigned at the project level 
to handle traffic control on a full-time basis.
    (c) Pay items. The P.S. & E. should include unit pay items for 
providing, installing, moving, replacing, maintaining, and cleaning 
traffic control devices required by the TCP. Suitable force account 
procedures may be utilized for traffic control items. Lump-sum method of 
payment should be used only to cover very small projects, projects of 
short duration, contingency, and general items. Payment for traffic 
control items as incidental to other items of work should be 
discouraged.
    (d) Training. All persons responsible for the development, design, 
implementation, and inspection of traffic control shall be adequately 
trained.
    (e) Process review and evaluation. (1) A review team consisting of 
appropriate highway agency personnel shall annually review randomly 
selected projects throughout its jurisdiction for the purpose of 
assessing the effectiveness of its procedures. The agency may elect to 
include an FHWA representative as a member of the team. The results of 
this review are to be forwarded to the FHWA Division Administrator for 
his review and approval of the highway agency's annual traffic safety 
effort.
    (2) Construction zone accidents and accident data shall be analyzed 
and used to continually correct deficiencies which are found to exist on 
individual projects, and to improve the content of future traffic 
control plans.

[43 FR 47140, Oct. 12, 1978, as amended at 47 FR 21780, May 20, 1982]



PART 633--REQUIRED CONTRACT PROVISIONS--Table of Contents




 Subpart A--Federal-Aid Construction Contracts (Other Than Appalachian 
                               Contracts)

Sec.
633.101  Purpose.
633.102  Applicability.
633.103  Regulatory authority.
633.104  Availability.

        Subpart B--Federal-Aid Contracts (Appalachian Contracts)

633.201  Purpose.
633.202  Definitions.
633.203  Applicability of existing laws, regulations, and directives.
633.204  Fiscal allocation and obligations.

[[Page 153]]

633.205  Prefinancing.
633.206  Project agreements.
633.207  Construction labor and materials.
633.208  Maintenance.
633.209  Notices to prospective Federal-aid construction contractors.
633.210  Termination of contract.
633.211  Implementation of the Clean Air Act and the Federal Water 
          Pollution Control Act.

Appendix A to Subpart B--Types of Contracts to Which the Civil Rights 
          Act of 1964 Is Applicable
Appendix B to Subpart B--Required Contract Provisions, Appalachian 
          Development Highway System and Local Access Roads Construction 
          Contracts
Appendix C to Subpart B--Additional Required Contract Provisions, 
          Appalachian Development Highway System and Local Access Roads 
          Contracts Other Than Construction Contracts
Appendix D to Subpart B--Federal-Aid Proposal Notices

            Subpart C--Direct Federal Construction Contracts

633.301  Purpose.
633.302  Applicability.

Appendix A to Subpart C--Continuation of Standard Form 19-A Labor 
          Standards Provisions (DOT-FHWA 3-74)



 Subpart A--Federal-Aid Construction Contracts (Other Than Appalachian 
                               Contracts)

    Authority: 23 U.S.C. 114 and 315; 49 CFR 1.48.

    Source: 52 FR 36920, Oct. 2, 1987, unless otherwise noted.



Sec. 633.101  Purpose.

    To prescribe for Federal-aid highway proposals and construction 
contracts the method for inclusion of required contract provisions of 
existing regulations which cover employment, nonsegregated facilities, 
record of materials and supplies, subletting or assigning the contract, 
safety, false statements concerning highway projects, termination of a 
contract, and implementation of the Clean Air Act and the Federal Water 
Pollution Control Act, and other provisions as shall from time-to-time 
be required by law and regulation as conditions of Federal assistance.



Sec. 633.102  Applicability.

    (a) The required contract provisions and the required proposal 
notices apply to all Federal-aid construction contracts other than 
Appalachian construction contracts.
    (b) Form FHWA-1273, ``Required Contract Provisions, Federal-aid 
Construction Contracts,'' contains required contract provisions and 
required proposal notices that are required by regulations promulgated 
by the FHWA or other Federal agencies. The required contract provisions 
of Form FHWA-1273 shall be physically incorporated in each Federal-aid 
highway construction contract other than Appalachian construction 
contracts (see Sec. 633.104 for availability of form).
    (c) For contracts authorized under certification acceptance 
procedures, an alternate format for inclusion of required contract 
provisions may be used pursuant to 23 CFR part 640.
    (d) The required contract provisions contained in Form FHWA-1273 
shall apply to all work performed on the contract by the contractor's 
own organization and to all work performed on the contract by piecework, 
station work, or by subcontract.
    (e) The contractor shall insert in each subcontract, except as 
excluded by law or regulation, the required contract provisions 
contained in Form FHWA-1273 and further require their inclusion in any 
lower tier subcontract that may in turn be made. The required contract 
provisions of Form FHWA-1273 shall not be incorporated by reference in 
any case. The prime contractor shall be responsible for compliance by 
any subcontractor or lower tier subcontractor with the requirements 
contained in the provisions of Form FHWA-1273.
    (f) The State highway agency (SHA) shall include the notices 
concerning certification of nonsegregated facilities and implementation 
of the Clean Air Act and Federal Water Pollution Control Act, pursuant 
to 40 CFR part 15, in all bidding proposals for Federal-aid highway 
construction projects. As the notices are reproduced in Form FHWA-1273, 
the SHA may include Form FHWA-1273 in its entirety to meet this 
requirement.

[[Page 154]]



Sec. 633.103  Regulatory authority.

    All required contract provisions contained in Form FHWA-1273 are 
requirements of regulations promulgated by the FHWA or other Federal 
agencies.The authority for each provision will be cited in the text of 
Form FHWA-1273.



Sec. 633.104  Availability.

    (a) Form FHWA-1273 will be maintained by the FHWA and as regulatory 
revisions occur, the form will be updated.
    (b) Current copies of Form FHWA-1273, Required Contract Provisions, 
will be made available to the SHAs by the FHWA.



        Subpart B--Federal-Aid Contracts (Appalachian Contracts)

    Authority: 40 U.S.C. App. 201, 402; 23 U.S.C. 315; 49 CFR 
1.48(b)(35).

    Source: 39 FR 35146, Sept. 30, 1974, unless otherwise noted.



Sec. 633.201  Purpose.

    The purpose of the regulations in this subpart is to establish 
policies and outline procedures for administering projects and funds for 
the Appalachian Development Highway System and Appalachian local access 
roads.



Sec. 633.202  Definitions.

    (a) The word Commission means the Appalachian Regional Commission 
(ARC) established by the Appalachian Regional Development Act of 1965, 
as amended (Act).
    (b) The term division administrator'' means the chief Federal 
Highway Administration (FHWA) official assigned to conduct FHWA business 
in a particular State.

[39 FR 35156, Sept. 30, 1974, as amended at 40 FR 49084, Oct. 21, 1975; 
41 FR 8769, Mar. 1, 1976]



Sec. 633.203  Applicability of existing laws, regulations, and directives.

    The provisions of title 23 U.S.C., that are applicable to the 
construction and maintenance of Federal-aid primary and secondary 
highways, and which the Secretary of Transportation determines are not 
inconsistent with the Act, shall apply, respectively, to the development 
highway system and the local access roads. In addition, the Regulations 
for the Administration of Federal-aid for Highways (title 23, Code of 
Federal Regulations) and directives implementing applicable provisions 
of title 23 U.S.C., where not inconsistent with the Act, shall be 
applicable to such projects.



Sec. 633.204  Fiscal allocation and obligations.

    (a) Federal assistance to any project under the Act shall be as 
determined by the Commission, but in no event shall such Federal 
assistance exceed 70 per centum of the cost of such a project.
    (b) The division administrator's authorization to proceed with the 
proposed work shall establish obligation of Federal funds with regard to 
a particular project.

[39 FR 35156, Sept. 30, 1974, as amended at 40 FR 49084, Oct. 21, 1975; 
41 FR 8769, Mar. 1, 1976]



Sec. 633.205  Prefinancing.

    (a) Under the provisions of subsection 201(h) of the Act, projects 
located on the Appalachian Development Highway System including 
preliminary engineering, right-of-way, and/or construction may be 
programed and advanced with interim State financing.
    (b) Program approvals, plans, specifications, and estimates (PS&E) 
approval, authorizations to proceed, concurrence in award of contracts, 
and all other notifications to the State of advancement of a project 
shall include the statement, ``There is no commitment or obligation on 
the part of the United States to provide funds for this highway 
improvement. However, this project is eligible for Federal reimbursement 
when sufficient funds are available from the amounts allocated by the 
Appalachian Regional Commission.''



Sec. 633.206  Project agreements.

    (a) Project agreements executed for projects under the Appalachian 
program shall contain the following paragraphs:
    (1) ``For projects constructed under section 201 of the Appalachian 
Regional

[[Page 155]]

Development Act of 1965, as amended, the State highway department agrees 
to comply with all applicable provisions of said Act, regulations issued 
thereunder, and policies and procedures promulgated by the Appalachian 
Regional Commission, and the Federal Highway Administration. Inasmuch as 
a primary objective of the Appalachian Regional Development Act of 1965 
is to provide employment, the State highway department further agrees 
that in addition to the other applicable provisions of title 49, Code of 
Federal Regulations, part 21, Sec. 21.5(c)(1), and paragraphs (2)(iii) 
and (2)(v) of appendix C thereof, shall be applicable to all employment 
practices in connection with this project, and to the State's employment 
practices with respect to those employees connected with the Appalachian 
Highway Program.''
    (2) ``For projects constructed on a section of an Appalachian 
development route not already on the Federal-aid Primary System, the 
State highway department agrees to add the section to the Federal-aid 
Primary System prior to, or upon completion of, construction 
accomplished with Appalachian funds.''
    (b) For prefinanced projects, the following additional provision 
shall be incorporated into the project agreement: ``Project for 
Construction on the Appalachian Development Highway System in Advance of 
the Appropriation of Funds. This project, to be constructed pursuant to 
subsection 201(h) of the Appalachian Regional Development Act Amendments 
of 1967, will be constructed in accordance with all procedures and 
requirements and standards applicable to projects on the Appalachian 
Development Highway System financed with the aid of Appalachian funds. 
No obligation of Appalachian funds is created by this agreement, its 
purpose and intent being to provide that, upon application by the State 
highway department, and approval thereof by the Federal Highway 
Administration, any Appalachian development highway funds made available 
to the State by the Appalachian Regional Commission subsequent to the 
date of this agreement may be used to reimburse the State for the 
Federal share of the cost of work done on the project.''



Sec. 633.207  Construction labor and materials.

    (a) Construction and materials shall be in accordance with the State 
highway department standard construction specifications approved for use 
on Federal-aid primary projects and special provisions and supplemental 
specifications amendatory thereto approved for use on the specific 
projects.
    (b) The provisions of 23 U.S.C. 324 and of title VI of the Civil 
Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d-2000d-4) and the 
implementing regulations in 49 CFR part 21, including the provisions of 
Sec. 21.5(c)(1), and paragraphs (2)(iii) and (2)(v) of appendix C 
thereof relative to employment practices, shall be applicable to all 
types of contracts listed in appendix A.
    (c) The ``Required Contract Provisions, Appalachian Development 
Highway System and Local Access Roads Construction Contracts,'' Form PR-
1316 (appendix B), shall be included in all construction contracts 
awarded under the Act.
    (d) The required contract provisions set forth in Form PR-1317 
(appendix C) shall be included in all types of contracts described in 
appendix A, other than construction contracts.
    (e) In the design and construction of highways and roads under the 
Act, the State may give special preference to the use of mineral 
resource materials native to the Appalachian region. The provisions of 
Sec. 635.409 of this chapter shall not apply to projects under the Act 
to the extent such provisions are inconsistent with sections 201(d) and 
(e) of the Act.

[39 FR 35146, Sept. 30, 1974, as amended at 40 FR 49084, Oct. 21, 1975; 
41 FR 36204, Aug. 27, 1976]



Sec. 633.208  Maintenance.

    Maintenance of all highway projects constructed under the Act, 
whether on the development system or local access roads, shall be the 
responsibility of the State. The State may arrange for maintenance of 
such roads or portions thereof, by agreement with a local governmental 
unit.

[[Page 156]]



Sec. 633.209  Notices to prospective Federal-aid construction contractors.

    The State highway department shall include the notices set forth in 
appendix D in all future bidding proposals for Appalachian Development 
System and Appalachian local access roads construction contracts.



Sec. 633.210  Termination of contract.

    All contracts exceeding $2,500 shall contain suitable provisions for 
termination by the State, including the manner in which the termination 
will be effected and the basis for settlement. In addition, such 
contracts shall describe conditions under which the contract may be 
terminated for default as well as conditions where the contract may be 
terminated because of circumstances beyond the control of the 
contractor.



Sec. 633.211  Implementation of the Clean Air Act and the Federal Water Pollution Control Act.

    Pursuant to regulations of the Environmental Protection Agency (40 
CFR part 15) implementing requirements with respect to the Clean Air Act 
and the Federal Water Pollution Control Act are included in appendix B 
to this part.

[40 FR 49084, Oct. 21, 1975]

  Appendix A to Subpart B of Part 633--Types of Contracts to Which the 
                 Civil Rights Act of 1964 Is Applicable

    Section 324 of title 23 U.S.C., the Civil Rights Act of 1964, and 
the implementing regulations of the Department of Transportation (49 CFR 
part 21), including the provisions of paragraphs (2)(iii) and (2)(v) of 
appendix C thereof relative to employment practices, are applicable to 
the following types of contracts awarded by State highway departments, 
contractors, and first tier subcontractors, including those who supply 
materials and lease equipment:
    1. Construction.
    2. Planning.
    3. Research.
    4. Highway Safety.
    5. Engineering.
    6. Property Management.
    7. Fee contracts and other commitments with persons for services 
incidental to the acquisition of right-of-way including, but not limited 
to:
    a. Advertising contracts.
    b. Agreements for economic studies.
    c. Contracts for surveys and plats.
    d. Contracts for abstracts of title certificates and title 
insurance.
    e. Contracts for appraisal services and expert witness fees.
    f. Contracts to negotiate for the acquisition of right-of-way.
    g. Contracts for disposal of improvements and property management 
services.
    h. Contracts for employment of fee attorneys for right-of-way 
procurement, or preparation and trial of condemnation cases.
    i. Contracts for escrow and closing services.

[40 FR 49084, Oct. 21, 1975]

   Appendix B to Subpart B of Part 633--Required Contract Provisions, 
     Appalachian Development Highway System and Local Access Roads 
                         Construction Contracts

     I.  Application.
    II.  Employment Preference.
   III.  Equal Opportunity: Employment Practices.
    IV.  Equal Opportunity: Selection of Subcontractors, Procurement of
          Materials, and Leasing of Equipment.
     V.  Nonsegregated Facilities.
    VI.  Payment of Predetermined Minimum Wages.
   VII.  Statements and Payrolls.
  VIII.  Record of Materials, Supplies and Labor.
    IX.  Subletting or Assigning the Contract.
     X.  Safety: Accident Prevention.
    XI.  False Statements Concerning Highway Projects.
   XII.  Implementation of Clean Air Act and Federal Water Pollution
          Control Act.
 

I. Application.
    1. These contract provisions shall apply to all work performed on 
the contract by the contractor with his own organization and with the 
assistance of workmen under his immediate superintendence and to all 
work performed on the contract by piecework, station work, or by 
subcontract.
    2. Except as otherwise provided in sections II, III, and IV hereof, 
the contractor shall insert in each of his subcontracts all of the 
stipulations contained in these Required Contract Provisions and also a 
clause requiring his subcontractors to include these Required Contract 
Provisions in any lower tier subcontracts which they may enter into, 
together with a clause requiring the inclusion of these provisions in 
any further subcontracts that may in turn be made. The Required Contract 
Provisions shall in no instance be incorporated by reference.
    3. A breach of any of the stipulations contained in these Required 
Contract Provisions may be grounds for termination of the contract.
    4. A breach of the following clauses may also be grounds for 
debarment as provided in 29 CFR 5.6(b):
    Section 1, paragraph 2.
    Section VI, paragraphs 1, 2, 3, 5 and 8a.

[[Page 157]]

    Section VII, paragraphs 1, 5a, 5b and 5d.

II. Employment preference.
    1. During the performance of this contract, the contractor 
undertaking to do work which is, or reasonably may be, done as on-site 
work, shall give preference to qualified persons who regularly reside in 
the labor area as designated by the United States Department of Labor 
wherein the contract work is situated, or the subregion, or the 
Appalachian counties of the State wherein the contract work is situated, 
except:
    a. To the extent that qualified persons regularly residing in the 
area are not available.
    b. For the reasonable needs of the contractor to employ supervisory 
or specially experienced personnel necessary to assure an efficient 
execution of the contract work.
    c. For the obligation of the contractor to offer employment to 
present or former employees as the result of a lawful collective 
bargaining contract, provided that the number of nonresident persons 
employed under this subparagraph 1c shall not exceed 20 percent of the 
total number of employees employed by the contractor on the contract 
work, except as provided in subparagraph 4 below.
    2. The contractor shall place a job order with the State Employment 
Service indicating (a) the classifications of laborers, mechanics and 
other employees he anticipates will be required to perform the contract 
work, (b) the number of employees required in each classification, (c) 
the date on which he estimates such employees will be required, and (d) 
any other pertinent information required by the State Employment Service 
to complete the job order form. The job order may be placed with the 
State Employment Service in writing or by telephone. If during the 
course of the contract work, the information submitted by the contractor 
in the original job order is substantially modified, he shall promptly 
notify the State Employment Service.
    3. The contractor shall give full consideration to all qualified job 
applicants referred to him by the State Employment Service. The 
contractor is not required to grant employment to any job applicants 
who, in his opinion, are not qualified to perform the classification of 
work required.
    4. If, within one week following the placing of a job order by the 
contractor with the State Employment Service, the State Employment 
Service is unable to refer any qualified job applicants to the 
contractor, or less than the number requested, the State Employment 
Service will forward a certificate to the contractor indicating the 
unavailability of applicants. Such certificate shall be made a part of 
the contractor's permanent project records. Upon receipt of this 
certificate, the contractor may employ persons who do not normally 
reside in the labor area to fill the positions covered by the 
certificate, notwithstanding the provisions of subparagraph 1c above.
    5. The contractor shall include the provisions of section II-1 
through II-4 in every subcontract for work which is, or reasonably may 
be, done as on-site work.

III. Equal opportunity: employment practices.

    During the performance of this contract, the contractor agrees as 
follows:
    a. The contractor will not discriminate against any employee or 
applicant for employment because of race, color, religion, sex, or 
national origin. The contractor will take affirmative action to ensure 
that applicants are employed, and that employees are treated during 
employment without regard to their race, color, religion, sex, or 
national origin. Such action shall include, but not be limited to the 
following: Employment, upgrading, demotion or transfer; recruitment or 
recruitment advertising; layoffs or termination; rates of pay or other 
forms of compensation; and selection of training, including 
apprenticeship. The contractor agrees to post in conspicuous places, 
available to employees and applicants for employment, notices to be 
provided by the State highway department setting forth the provisions of 
this nondiscrimination clause.
    b. The contractor will, in all solicitations or advertisements for 
employees placed by or on behalf of the contractor, state that all 
qualified applicants will receive consideration for employment without 
regard to race, color, religion, sex, or national origin.
    c. The contractor will send to each labor union or representative of 
workers with which he has a collective bargaining agreement or other 
contract or understanding, a notice to be provided by the State highway 
department advising the said labor union or workers' representative of 
the contractor's commitments under this section III and shall post 
copies of the notice in conspicuous places available to employees and 
applicants for employment.
    d. The contractor will comply with all provisions of Executive Order 
11246 of September 24, 1965, and of the rules, regulations and relevant 
orders of the Secretary of Labor.
    e. The contractor will furnish all information and reports required 
by Executive Order 11246 of September 24, 1965, and by rules, 
regulations and orders of the Secretary of Labor or pursuant thereto, 
and will permit access to his books, records and accounts by the Federal 
Highway Administration and the Secretary of Labor for purposes of 
investigation to ascertain compliance with such rules, regulations and 
orders.
    f. In the event of the contractor's noncompliance with the 
nondiscrimination clauses of this contract or with any of the

[[Page 158]]

said rules, regulations or orders, this contract may be canceled, 
terminated or suspended in whole or in part and the contractor may be 
declared ineligible for further Government contracts or federally-
assisted construction contracts in accordance with procedures authorized 
in Executive Order 11246 of September 24, 1965, and such other sanctions 
may be imposed and remedies invoked as provided in Executive Order 11246 
of September 24, 1965, or by rule, regulation or order of the Secretary 
of Labor, or as otherwise provided by law.
    g. The contractor will include the provisions of this section III in 
every subcontract or purchase order unless exempted by rules, 
regulations or orders of the Secretary of Labor issued pursuant to 
section 204 of Executive Order 11246 of September 24, 1965, so that such 
provisions will be binding upon each subcontractor or vendor. The 
contractor will take such action with respect to any subcontract or 
purchase order as the State Highway Department or the Federal Highway 
Administration may direct as a means of enforcing such provisions 
including sanctions for noncompliance: Provided, however, That in the 
event a contractor becomes involved in, or is threatened with litigation 
with a subcontractor or vendor as a result of such direction by the 
Federal Highway Administration, the contractor may request the United 
States to enter into such litigation to protect the interests of the 
United States.

IV. Equal opportunity selection of subcontractors, procurement of 
          materials, and leasing of equipment.

    During the performance of this contract, the contractor, for itself, 
its assignees and successors in interest (hereinafter referred to as the 
contractor), agrees as follows:
    1. Compliance with regulations. The contractor shall comply with the 
provisions of 23 U.S.C. 324 and with the regulations relative to 
nondiscrimination in Federally-assisted programs of the Department of 
Transportation (hereinafter, ``DOT'') title 49, Code of Federal 
Regulations, part 21, as they may be amended from time to time 
(hereinafter referred to as the Regulations), which are herein 
incorporated by reference and made a part of this contract.
    2. Nondiscrimination. The contractor, with regard to the work 
performed by it during the contract, shall not discriminate on the 
grounds of race, color, sex, or national origin in the selection and 
retention of subcontractors, including procurements of materials and 
leases of equipments. The contractor shall not participate either 
directly or indirectly in the discrimination prohibited by section 21.5 
of the Regulations, including employment practices.
    3. Solicitations for subcontracts including procurement of materials 
and equipment. In all solicitations either by competitive bidding or 
negotiation made by the contractor for work to be performed under a 
subcontract, including procurements of materials or leases of equipment, 
each potential subcontractor or supplier, shall be notified by the 
contractor of the contractor's obligations under this contract and the 
Regulations relative to nondiscrimination on the grounds of race, color, 
sex, or national origin.
    4. Information and reports. The contractor shall provide all 
information and reports required by the Regulations, or directives 
issued pursuant thereto, and shall permit access to its books, records, 
accounts, other sources of information, and its facilities as may be 
determined by the State highway department or the Federal Highway 
Administration to be pertinent to ascertain compliance with such 
Regulations, orders and instructions. Where any information required of 
a contractor is in the exclusive possession of another who fails or 
refuses to furnish this information, the contractor shall so certify to 
the State highway department, or the Federal Highway Administration, as 
appropriate, and shall set forth what efforts it has made to obtain the 
information.
    5. Sanctions for noncompliance. In the event of the contractor's 
noncompliance with the nondiscrimination provisions of this contract, 
the State highway department shall impose such contract sanctions as it 
or the Federal Highway Administration may determine to be appropriate, 
including, but not limited to:
    a. Withholding of payments to the contractor under the contract 
until the contractor complies, and/or
    b. Cancellation, termination or suspension of the contract, in whole 
or in part.
    6. Incorporation of provisions. The contractor will include the 
provisions of paragraphs (1) through (6) in every subcontract, including 
procurements of materials and leases of equipment, unless exempt by the 
Regulations, or directives issued pursuant thereto. The contractor shall 
take such action with respect to any subcontract or procurement, as the 
State highway department or the Federal Highway Administration may 
direct as a means of enforcing such provisions including sanctions for 
noncompliance: Provided, however, That, in the event a contractor 
becomes involved in, or is threatened with, litigation with a 
subcontractor or supplier, as a result of such direction, the contractor 
may request the State to enter into such litigation to protect the 
interests of the State, and, in addition, the contractor may request the 
United States to enter into such litigation to protect the interests of 
the United States.

V. Nonsegregated facilities.

    (Applicable to Federal-aid construction contracts and related 
subcontracts exceeding

[[Page 159]]

$10,000 which are not exempt from the Equal Opportunity clause.)
    By submission of this bid, the execution of this contract or 
subcontract, or the consummation of this material supply agreement, as 
appropriate, the bidder, Federal-aid construction contractor, 
subcontractor, or material supplier, as appropriate, certifies that he 
does not maintain or provide for his employees any segregated facilities 
at any of his establishments, and that he does not permit his employees 
to perform their services at any location, under his control, where 
segregated facilities are maintained. He certifies further that he will 
not maintain or provide for his employees any segregated facilities at 
any of his establishments, and that he will not permit his employees to 
perform their services at any location, under his control, where 
segregated facilities are maintained. He agrees that a breach of this 
certification is a violation of the Equal Opportunity clause in this 
contract. As used in this certification, the term segregated facilities 
means any waiting rooms, work areas, restrooms and washrooms, 
restaurants and other eating areas, timeclocks, locker rooms and other 
storage or dressing areas, parking lots, drinking fountains, recreation 
or entertainment areas, transportation, and housing facilities provided 
for employees which are segregated by explicit directive or are in fact 
segregated on the basis of race, creed, color, or national origin, 
because of habit, local custom, or otherwise. He agrees that (except 
where he has obtained identical certifications from proposed 
subcontractors and material suppliers for specific time periods), he 
will obtain identical certifications from proposed subcontractors or 
material suppliers prior to the award of subcontracts or the 
consummation of material supply agreements, exceeding $10,000 which are 
not exempt from the provisions of the Equal Opportunity clause, and that 
he will retain such certification in his files.

VI. Payment of predetermined minimum wages.

    1. General. All mechanics and laborers employed or working upon the 
site of the work will be paid unconditionally and not less than once a 
week, and without subsequent deduction or rebate on any account, except 
such payroll deductions as are permitted by regulations issued by the 
Secretary of Labor under the Copeland Act (29 CFR part 3), the full 
amounts due at time of payment computed at wage rates not less than 
those contained in the wage determination decision of the Secretary of 
Labor which is attached hereto and made a part thereof, regardless of 
any contractual relationship which may be alleged to exist between the 
contractor and such laborers and mechanics; and the wage determination 
decision shall be posted by the contractor at the site of the work in a 
prominent place where it can be easily seen by the workers. For the 
purpose of this clause, contributions made or costs reasonably 
anticipated under section 1(b)(2) of the Davis-Bacon Act on behalf of 
laborers or mechanics are considered wages paid to such laborers or 
mechanics, subject to the provisions of section VI, paragraph 3b, 
hereof. Also for the purpose of this clause, regular contributions made 
or costs incurred for more than a weekly period under plans, funds, or 
programs, but covering the particular weekly period, are deemed to be 
constructively made or incurred during such weekly period.
    2. Classifications--a. The State highway department contracting 
officer shall require that any class of laborers or mechanics which is 
not listed in the wage determination and which is to be employed under 
the contract, shall be classified or reclassified conformably to the 
wage determination, and a report of the action taken shall be sent by 
the State highway department contracting officer to the Secretary of 
Labor.
    b. In the event the interested parties cannot agree on the proper 
classification or reclassification of a particular class of laborers and 
mechanics to be used, the question accompanied by the recommendation of 
the State highway department contracting officer shall be referred to 
the Secretary for final determination.
    3. Payment of fringe benefits--a. The State highway department 
contracting officer shall require, whenever the minimum wage rate 
prescribed in the contract for a class of laborers or mechanics includes 
a fringe benefit which is not expressed as an hourly wage rate and the 
contractor is obligated to pay a cash equivalent of such a fringe 
benefit, an hourly cash equivalent thereof to be established. In the 
event the interested parties cannot agree upon a cash equivalent of the 
fringe benefits, the question, accompanied by the recommendation of the 
contracting officer, shall be referred to the Secretary of Labor for 
determination.
    b. If the contractor does not make payments to a trustee or other 
third person, he may consider as part of the wage of any laborer or 
mechanic the amount of any costs reasonably anticipated in providing 
benefits under a plan or program of a type expressly listed in the wage 
determination decision of the Secretary of Labor which is part of this 
contract: Provided, however, The Secretary of Labor has found, upon the 
written request of the contractor, that the applicable standards of the 
Davis-Bacon Act have been met. The Secretary of Labor may require the 
contractor to set aside in a separate account assets for the meeting of 
obligations under the plan or program.
    4. Payment of excess wages. While the wage rates shown are the 
minimum rates required by the contract to be paid during its life, this 
is not a representation that labor can be

[[Page 160]]

obtained at these rates. No increase in the contract price shall be 
allowed or authorized on account of the payment of wage rates in excess 
of those listed herein.
    5. Apprentices and trainees (Programs of Department of Labor). a. 
Apprentices will be permitted to work at less than the predetermined 
rate for the work they performed when they are employed and individually 
registered in a bona fide apprenticeship program registered with the 
U.S. Department of Labor, Manpower Administration, Bureau of 
Apprenticeship and Training, or with a State Apprenticeship Agency 
recognized by the Bureau, or if a person is employed in his first 90 
days of probationary employment as an apprentice in such an 
apprenticeship program, who is not individually registered in the 
program, but who has been certified by the Bureau of Apprenticeship and 
Training or a State Apprenticeship Agency (where appropriate) to be 
eligible for probationary employment as an apprentice. The allowable 
ratio of apprentices to journeymen in any craft classification shall not 
be greater than the ratio permitted to the contractor as to his entire 
work force under the registered program. Any employee listed on a 
payroll at an apprentice wage rate, who is not a trainee as defined in 
29 CFR 5.2(c)(2) or is not registered or otherwise employed as stated 
above, shall be paid the wage rate determined by the Secretary of Labor 
for the classification of work he actually performed. The contractor or 
subcontractor will be required to furnish to the State highway 
department or to a representative of the Wage-Hour Division of the U.S. 
Department of Labor written evidence of the registration of his program 
and apprentices as well as the appropriate ratios and wage rates 
(expressed in percentages of the journeyman hourly rates), for the area 
of construction prior to using any apprentices on the contract work. The 
wage rate paid apprentices shall be not less than the appropriate 
percentage of the journeyman's rate contained in the applicable wage 
determination.
    b. Trainees, except as provided in 29 CFR 5.15, will not be 
permitted to work at less than the predetermined rate for the work 
performed unless they are employed pursuant to and individually 
registered in a program which has received prior approval, evidenced by 
formal certification, by the U.S. Department of Labor, Manpower 
Administration, Bureau of Apprenticeship and Training. The ratio of 
trainees to journeymen shall not be greater than permitted under the 
plan approved by the Bureau of Apprenticeship and Training. Every 
trainee must be paid at not less than the rate specified in the approved 
program for his level of progress. Any employee listed on the payroll at 
a trainee rate who is not registered and participating in a training 
plan approved by the Bureau of Apprenticeship and Training shall be paid 
not less than the wage rate determined by the Secretary of Labor for the 
classification of work he actually performed. The contractor or 
subcontractor will be required to furnish the State highway department 
or a representative of the Wage-Hour Division of the U.S. Department of 
Labor written evidence of the certification of his program, the 
registration of the trainees, and the ratios and wage rates prescribed 
in that program. In the event the Bureau of Apprenticeship and Training 
withdraws approval of a training program, the contractor will no longer 
be permitted to utilize trainees at less than the applicable 
predetermined rate for the work performed until an acceptable program is 
approved.
    c. The utilization of apprentices, trainees and journeymen shall be 
in conformity with the equal employment opportunity requirements of 
Executive Order 11246, as amended, and 29 CFR part 30.
    6. Apprentices and trainees (Programs of Department of 
Transportation). Apprentices and trainees working under apprenticeship 
and skill training programs which have been certified by the Secretary 
of Transportation as promoting equal opportunity in connection with 
Federal-aid highway construction programs are not subject to the 
requirements of section VI, paragraph 5 above. The straight time hourly 
wage rates for apprentices and trainees under such programs will be 
established by the particular programs.
    7. Withholding for unpaid wages. The State highway department 
contracting officer may withhold or cause to be withheld from the 
contractor so much of the accrued payments or advances as may be 
considered necessary to pay laborers, mechanics, (including apprentices 
and trainees) watchmen, or guards employed by the contractor or any 
subcontractor on the work the full amount of wages required by the 
contract. In the event of failure to pay any laborer, mechanic, 
(including apprentices and trainees) watchman or guard employed or 
working on the site of the work, all or part of the wages required by 
the contract, the State highway department contracting officer may, 
after written notice to the contractor, take such action as may be 
necessary to cause the suspension of any further payment, advance, or 
guarantee of funds until such violations have ceased.
    8. Overtime requirements. a. No contractor or subcontractor 
contracting for any part of the contract work which may require or 
involve the employment of laborers, mechanics, watchmen or guards 
(including apprentices and trainees described in paragraphs 5 and 6 
above) shall require or permit any laborer, mechanic, watchman or guard 
in any workweek in which he is employed on such work, to work in excess 
of eight hours in any calendar day or in excess of forty hours in

[[Page 161]]

such workweek unless such laborer, mechanic, watchman or guard receives 
compensation at a rate not less than one and one-half times his basic 
rate of pay for all hours worked in excess of eight hours in any 
calendar day or in excess of forty hours in such workweek, as the case 
may be.
    b. In the event of any violation of paragraph 8a, the contractor and 
any subcontractor responsible therefor shall be liable to any affected 
employee for his unpaid wages. In addition, such contractor and 
subcontractor shall be liable to the United States for liquidated 
damages. Such liquidated damages shall be computed with respect to each 
individual laborer, mechanic, watchman or guard employed in violation of 
paragraph 8a, in the sum of $10 for each calendar day on which such 
employee was required or permitted to work in excess of eight hours or 
in excess of the standard workweek of forty hours without payment of the 
overtime wages required by paragraph 8a.
    c. The State highway department contracting officer may withhold or 
cause to be withheld, from any moneys payable on account of work 
performed by the contractor or subcontractor, such sums as may 
administratively be determined to be necessary to satisfy any 
liabilities of such contractor or subcontractor for liquidated damages 
as provided in paragraph 8b.

VII. Statements and payrolls.

    1. Compliance with Copeland Regulations (29 CFR part 3). The 
contractor shall comply with the Copeland Regulations (29 CFR part 3) of 
the Secretary of Labor which are herein incorporated by reference.
    2. Weekly statement. Each contractor or subcontractor shall furnish 
each week a statement to the State highway department resident engineer 
with respect to the wages paid each of its employees, including 
apprentices and trainees described in section VI, paragraphs 5 and 6, 
and watchmen and guards on work covered by the Copeland Regulations 
during the preceding weekly payroll period. The statement shall be 
executed by the contractor or subcontractor or by an authorized officer 
or employee of the contractor or subcontractor who supervises the 
payment of wages. Contractors and subcontractors must use the 
certification set forth on U.S. Department of Labor Form WH-348, or the 
same certification appearing on the reverse of Optional U.S. Department 
of Labor Form WH-347, or on any form with identical wording.
    3. Final labor summary. The contractor and each subcontractor shall 
furnish, upon the completion of the contract, a summary of all 
employment, indicating for the completed project the total hours worked 
and the total amount earned. This data shall be submitted to the State 
highway department resident engineer on Form PR-47 together with the 
data required in section VIII, hereof, relative to materials and 
supplies.
    4. Final certificate. Upon completion of the contract, the 
contractor shall submit to the State highway department contracting 
officer, for transmission to the Federal Highway Administration with the 
voucher for final payment for any work performed under the contract, a 
certificate concerning wages and classifications for laborers, 
mechanics, watchmen and guards employed on the project, in the following 
form:

                                * * * * *

    The undersigned, contractor on

                              (Project No.)

hereby certifies that all laborers, mechanics, apprentices, trainees, 
watchmen and guards employed by him or by any subcontractor performing 
work under the contract on the project have been paid wages at rates not 
less than those required by the contract provisions, and that the work 
performed by each such laborer, mechanic, apprentice or trainee 
conformed to the classifications set forth in the contract or training 
program provisions applicable to the wage rate paid.

Signature and title_____________________________________________________

                                * * * * *

    5. Payrolls and payroll records--a. Payrolls and basic records 
relating thereto will be maintained during the course of the work and 
preserved for a period of three years thereafter for all laborers, 
mechanics, apprentices, trainees, watchmen and guards working at the 
site of the work.
    b. The payroll records shall contain the name, social security 
number and address of each such employee, his correct classification, 
rates of pay (including rates of contributions or costs anticipated of 
the types described in section 1(b)(2) of the Davis-Bacon Act), daily 
and weekly number of hours worked, deductions made and actual wages 
paid. Whenever the Secretary of Labor, pursuant to section VI, paragraph 
3.b., has found that the wages of any laborer or mechanic include the 
amount of any costs reasonably anticipated in providing benefits under a 
plan or program described in section I(b)(2)(B) of the Davis-Bacon Act, 
the contractor shall maintain records which show that the commitment to 
provide such benefits is enforceable, that the plan or program is 
financially responsible, and that the plan or program has been 
communicated in writing to the laborers or mechanics affected, and 
records which show the costs anticipated or the actual cost incurred in 
providing such benefits.
    c. The payrolls shall contain the following information:

[[Page 162]]

    1. The employee's full name, address and social security number and 
a notation indicating whether the employee does, or does not, normally 
reside in the labor area as defined in section II, paragraph 1.a. (The 
employee's full name and social security number need only appear on the 
first payroll on which his name appears. The employee's address need 
only be shown on the first submitted payroll on which the employee's 
name appears, unless a change of address necessitates a submittal to 
reflect the new address.)
    2. The employee's classification.
    3. Entries indicating the employee's basic hourly wage rate and, 
where applicable, the overtime hourly wage rate. The payroll should 
indicate separately the amounts of employee and employer contributions 
to fringe benefits funds and/or programs. Any fringe benefits paid to 
the employee in cash must be indicated. There is no prescribed or 
mandatory form for showing the above information on payrolls.
    4. The employee's daily and weekly hours worked in each 
classification, including actual overtime hours worked (not adjusted).
    5. The itemized deductions made and
    6. The net wages paid.
    d. The contractor will submit weekly a copy of all payrolls to the 
State highway department resident engineer. The copy shall be 
accompanied by a statement signed by the employer or his agent 
indicating that the payrolls are correct and complete, that the wage 
rates contained therein are not less than those determined by the 
Secretary of Labor and the classifications set forth for each laborer or 
mechanic conform with the work he performed. Submission of a weekly 
statement which is required under this contract by section VII, 
paragraph 2, and the Copeland Regulations of the Secretary of Labor (29 
CFR part 3) and the filing with the initial payroll or any subsequent 
payroll of a copy of any findings by the Secretary of Labor pursuant to 
section VI, paragraph 3b, shall satisfy this requirement. The prime 
contractor shall be responsible for the submission of copies of payrolls 
of all subcontractors. The contractor will make the records required 
under the labor standards clauses of the contract available for 
inspection by authorized representatives of the State highway 
department, the Federal Highway Administration and the Department of 
Labor, and will permit such representatives to interview employees 
during working hours on the job.
    e. The wages of labor shall be paid in legal tender of the United 
States, except that this condition will be considered satisfied if 
payment is made by negotiable check, on a solvent bank, which may be 
cashed readily by the employee in the local community for the full 
amount, without discount or collection charges of any kind. Where checks 
are used for payment, the contractor shall make all necessary 
arrangements for them to be cashed and shall given information regarding 
such arrangements.
    f. No fee of any kind shall be asked or accepted by the contractor 
or any of his agents from any person as a condition of employment on the 
project.
    g. No laborers shall be charged for any tools used in performing 
their respective duties except for reasonably avoidable loss or damage 
thereto.
    h. Every employee on the work covered by this contract shall be 
permitted to lodge, board and trade where and with whom he elects and 
neither the contractor nor his agents, nor his employees shall, directly 
or indirectly, require as a condition of employment that an employee 
shall lodge, board or trade at a particular place or with a particular 
person.
    i. No charge shall be made for any transportation furnished by the 
contractor, or his agents, to any person employed on the work.
    j. No individual shall be employed as a laborer or mechanic on this 
contract except on a wage basis, but this shall not be construed to 
prohibit the rental of teams, trucks, or other equipment from 
individuals.

VIII. Record of materials, supplies and labor.

    1. The contractor shall maintain a record of the total cost of all 
materials and supplies purchased for and incorporated in the work, and 
also of the quantities of those specific materials and supplies listed 
on Form PR-47 and in the units shown. Upon completion of the contract, 
this record, together with the final labor summary required in section 
VII, paragraph 3, hereof, shall be transmitted to the State highway 
department resident engineer for the project on Form PR-47 in accordance 
with instructions attached thereto, which will be furnished for this 
purpose upon request. The quantities for the listed items shall be 
reported separately for roadway and for structures over 20 feet long as 
measured along the centerline of the roadway.
    2. The contractor shall become familiar with the list of specific 
materials and supplies contained in Form PR-47 prior to the commencement 
of work under this contract. Any additional materials information 
required will be solicited through revisions of Form PR-47 with 
attendant explanations.
    3. Where subcontracts are involved the contractor shall submit 
either a single report covering work both by himself and all his 
subcontractors, or he may submit separate reports for himself and for 
each of his subcontractors.

IX. Subletting or assigning the contract.

    1. The contractor shall perform with his own organization contract 
work amounting to not less than 50 percent of the original total 
contract price, except that any items

[[Page 163]]

designated by the State as Specialty Items may be performed by 
subcontract and the amount of any such Specialty Items so performed may 
be deducted from the original total contract price before computing the 
amount of work required to be performed by the contractor with his own 
organization.
    a. His own organization shall be construed to include only workmen 
employed and paid directly by the prime contractor and equipment owned 
or rented by him, with or without operators.
    b. Specialty items shall be construed to be limited to work that 
requires highly specialized knowledge, craftsmanship or equipment not 
ordinarily available in contracting organizations qualified to bid on 
the contract as a whole and in general are to be limited to minor 
components of the overall contract.
    2. In addition to the 50 percent requirements set forth in paragraph 
1 above, the contractor shall furnish (a) a competent superintendent or 
foreman who is employed by him, who has full authority to direct 
performance of the work in accordance with the contract requirements, 
and who is in charge of all construction operations (regardless of who 
performs the work), and (b) such other of his own organizational 
capability and responsibility (supervision, management, and engineering 
services) as the State highway department contracting officer determines 
is necessary to assure the performance of the contract.
    3. The contract amount upon which the 50 percent requirement set 
forth in paragraph 1 is computed includes the cost of materials and 
manufactured products which are to be purchased or produced by the 
contractor under the contract provisions.
    4. Any items that have been selected as Specialty Items for the 
contract are listed as such in the Special Provisions, bid schedule, or 
elsewhere in the contract documents.
    5. No portion of the contract shall be sublet, assigned or otherwise 
disposed of except with the written consent of the State highway 
department contracting officer, or his authorized representative, and 
such consent when given shall not be construed to relieve the contractor 
of any responsibility for the fulfillment of the contract. Request for 
permission to sublet, assign or otherwise dispose of any portion of the 
contract shall be in writing and accompanied by (a) a showing that the 
organization which will perform the work is particularly experienced and 
equipped for such work, and (b) an assurance by the contractor that the 
labor standards provisions set forth in thiscontract shall apply to 
labor performed on all work encompassed by the request.

X. Safety: Accident prevention.

    In the performance of this contract, the contractor shall comply 
with all applicable Federal, State and local laws governing safety, 
health and sanitation. The contractor shall provide all safeguards, 
safety devices and protective equipment and take any other needed 
actions, on his own responsibility, or as the State highway department 
contracting officer may determine, reasonably necessary to protect the 
life and health of employees on the job and the safety of the public and 
to protect property in connection with the performance of the work 
covered by the contract.
    It is a condition of this contract, and shall be made a condition of 
each subcontract entered into pursuant to this contract, that the 
contractor and any subcontractor shall not require any laborer or 
mechanic employed in performance of the contract to work in surroundings 
or under working conditions which are unsanitary, hazardous, or 
dangerous to his health or safety, as determined under construction 
safety and health standards (title 29, Code of Federal Regulations, part 
1926, formerly part 1518, as revised from time to time), promulgated by 
the United States Secretary of Labor, in accordance with section 107 of 
the Contract Work Hours and Safety Standards Act (83 Stat. 96).

XI. False statements concerning highway projects.

    In order to assure high quality and durable construction in 
conformity with approved plans and specifications and a high degree of 
reliability on statements and representations made by engineers, 
contractors, suppliers, and workers on Federal-aid highway projects, it 
is essential that all persons concerned with the project perform their 
functions as carefully, thoroughly and honestly as possible. Willfull 
falsification, distortion, or misrepresentation with respect to any 
facts related to the project is a violation of Federal law. To prevent 
any misunderstanding regarding the seriousness of these and similar 
acts, the following notice shall be posted on each Federal-aid highway 
project in one or more places where it is readily available to all 
personnel concerned with the project:

                                * * * * *

     Notice to All Personnel Engaged on Federal-Aid Highway Projects

    Title 18 U.S.C., section 1020, reads as follows:
    ``Whoever, being an officer, agent, or employee of the United 
States, or of any State or Territory, or whoever, whether a person, 
association, firm, or corporation, knowingly makes any false statement, 
false representation, or false report as to the character, quality, 
quantity, or cost of the material used or to be used, or the quantity or 
quality of the work performed or to be performed or

[[Page 164]]

the costs thereof in connection with the submission of plans, maps, 
specifications, contracts, or costs of construction of any highway or 
related project submitted for approval to the Secretary of 
Transportation; or
    ``Whoever knowingly makes any false statement, false representation, 
false report, or false claim with respect to the character, quality, 
quantity, or cost of any work performed or to be performed, or materials 
furnished or to be furnished, in connection with the construction of any 
highway or related project approved by the Secretary of Transportation; 
or
    ``Whoever knowingly makes any false statement or false 
representation as to a material fact in any statement, certificate, or 
report submitted pursuant to provisions of the Federal-Aid Road Act 
approved July 1, 1916 (39 Stat. 355), as amended and supplemented;
    ``Shall be fined not more than $10,000 or imprisoned not more than 
five years, or both.''

XII. Implementation of Clean Air Act and Federal Water Pollution Control 
          Act (applicable to contracts and subcontracts which exceed 
          $100,000).

    1. The contractor stipulates that any facility to be utilized in the 
performance of this contract, unless such contract is exempt under the 
Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub. L. 
91-604), and under the Federal Water Pollution Control Act, as amended 
(33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500), Executive Order 
11738, and regulations in implementation thereof (40 CFR part 15), is 
listed not on the date of contract award, on the U.S. Environmental 
Protection Agency (EPA) List of Violating Facilities Pursuant to 40 CFR 
part 15.20.
    2. The contractor agrees to comply with all the requirements of 
section 114 of the Clean Air Act and section 308 of the Federal Water 
Pollution Control Act and all regulations and guidelines listed 
thereunder.
    3. The contractor shall promptly notify the State highway department 
of the receipt of any communication from the Director, Office of Federal 
Activities, EPA, indicating that a facility to be utilized for the 
contract is under consideration to be listed on the EPA List of 
Violating Facilities.
    4. The contractor agrees to include or cause to be included the 
requirements of subparagraphs 1 through 4 of this paragraph XII in every 
subcontract which exceeds $100,000, and further agrees to take such 
action as Government may direct as a means of enforcing such 
requirements.

[40 FR 49084, Oct. 21, 1975]

   Appendix C to Subpart B of Part 633--Additional Required Contract 
  Provisions, Appalachian Development Highway System and Local Access 
            Roads Contracts Other Than Construction Contracts

Equal Opportunity: Employment Practices and Selection of Subcontractors, 
            Suppliers of Materials, and Lessors of Equipment

    During the performance of this contract, the contractor agrees as 
follows:

1. Compliance with regulations.
    The contractor will comply with the provisions of 23 U.S.C. 324 and 
with the Regulations of the Department of Transportation relative to 
nondiscrimination in Federally-assisted programs of the Department of 
Transportation (Title 49, Code of Federal Regulations, part 21, 
hereinafter referred to as the regulations), which are herein 
incorporated by reference and made a part of this contract.

2. Employment practices
    a. The contractor will not discriminate against any employee or 
applicant for employment because of race, color, sex, or national 
origin. The contractor will take affirmative action to ensure that 
applicants are employed, and that employees are treated during 
employment without regard to their race, color, sex, or national origin. 
Such action shall include, but not be limited to the following: 
recruitment or recruitment advertising, hiring, firing, upgrading, 
promotion, demotion, transfer, layoff, termination, rates of pay or 
other forms of compensation or benefits, selection for training or 
apprenticeship, use of facilities and treatment of employees. The 
contractor agrees to post in conspicuous places, available to employees 
and applicants for employment, notices setting forth the provisions of 
this employment practices clause.
    b. The contractor will, in all solicitations or advertisements for 
employees placed by or on behalf of the contractor, state that all 
qualified applicants will receive consideration for employment without 
regard to race, color, sex, or national origin.
    c. The contractor will send to each labor union or representative of 
workers with which he has a collective bargaining agreement or other 
contract or understanding, a notice advising the said labor union or 
workers representative of the contractor's commitments under the 
employment practices provision, and shall post copies of the notice in 
conspicuous places available to employees and applicants for employment.

3. Selection of subcontractors, procurement of materials and leasing of 
          equipment.

[[Page 165]]

    a. The contractor, with regard to the work performed by him after 
award and prior to completion of the contract work, will not 
discriminate on the ground of race, color, sex, or national origin in 
the selection and retention of subcontractors, including procurements of 
materials and leases of equipment. The contractor will not participate 
either directly or indirectly in the discrimination prohibited by 
Section 21.5 of the Regulations.
    b. In all solicitations either by competitive bidding or negotiation 
made by the contractor for work to be performed under a subcontract, 
including procurements of materials or leases of equipment, each 
potential subcontractor, supplier, or lessor shall be notified by the 
contractor of the contractor's obligations under this contract and the 
Regulations relative to nondiscrimination on the ground of race, color, 
sex, or national origin.

4. Information and reports.
    The contractor will provide all information and reports required by 
the Regulations, or orders and instructions issued pursuant thereto, and 
will permit access to its books, records, accounts, other sources of 
information, and its facilities as may be determined by the State 
highway department or the Federal Highway Administration to be pertinent 
to ascertain compliance with such Regulations, orders and instructions. 
Where any information required of a contractor is in the exclusive 
possession of another who fails or refuses to furnish this information, 
the contractor shall so certify to the State highway department, or the 
Federal Highway Administration as appropriate, and shall set forth what 
efforts it has made to obtain the information.

5. Incorporation of provisions.
    The contractor will include these additional required contract 
provisions in every subcontract, including procurements of materials and 
leases of equipment, unless exempt by the Regulations or orders, or 
instructions issued pursuant thereto. The contractor will take such 
action with respect to any subcontract, procurement, or lease as the 
State highway department or the Federal Highway Administration may 
direct as a means of enforcing such provisions including sanctions for 
non-compliance: Provided, however, That, in the event a contractor 
becomes involved in, or is threatened with, litigation with a 
subcontractor, supplier, or lessor as a result of such directed action, 
the contractor may request the State to enter into such litigation to 
protect the interest of the State, and, in addition, the contractor may 
request the United States to enter into such litigation to protect the 
interest of the United States.

6. Sanctions for noncompliance.
    In the event of the contractor's noncompliance with sections 1 
through 5 above, the State highway department shall impose such contract 
sanctions as it or the Federal Highway Administration may determine to 
be appropriate, including but not limited to.
    a. Withholding of payments to the contractor under the contract 
until the contractor complies, and/or
    b. Cancellation, termination or suspension of the contract in whole 
or in part.

[40 FR 49088, Oct. 21, 1975]

    Appendix D to Subpart B of Part 633--Federal-Aid Proposal Notices

       Notices to Prospective Federal-Aid Construction Contractors

I. Certification of nonsegregated facilities.
    (a) A Certification of Nonsegregated Facilities, as required by the 
May 9, 1967, Order of the Secretary of Labor (32 FR 7439, May 19, 1967) 
on Elimination of Segregated Facilities (is included in the proposal and 
must be submitted prior to the award of a Federal-aid highway 
construction contract exceeding $10,000 which is not exempt from the 
provisions of the Equal Opportunity clause).
    (b) Bidders are cautioned as follows: By signing this bid, the 
bidder will be deemed to have signed and agreed to the provisions of the 
``Certification of Nonsegregated Facilities'' in this proposal. This 
certification provides that the bidder does not maintain or provide for 
his employees facilities which are segregated on a basis of race, creed, 
color, or national origin, whether such facilities are segregated by 
directive or on a de facto basis. The certification also provides that 
the bidder will not maintain such segregated facilities.
    (c) Bidders receiving Federal-aid highway construction contract 
awards exceeding $10,000 which are not exempt from the provisions of the 
Equal Opportunity clause, will be required to provide for the forwarding 
of the following notice to prospective subcontractors for construction 
contracts and material suppliers where the subcontracts or material 
supply agreements exceed $10,000 and are not exempt from the provisions 
of the Equal Opportunity clause.

     Notice to Prospective Subcontractors and Material Suppliers of 
        Requirement for Certification of Nonsegregated Facilities

    (a) A Certification of Nonsegregated Facilities is required by the 
May 9, 1967, Order of the Secretary of Labor (32 FR 7431, May 19, 1967) 
on Elimination of Segregated Facilities, which is included in the 
proposal, or attached hereto, must be submitted by each subcontractor 
and material supplier prior to

[[Page 166]]

the award of the subcontract or consummation of a material supply 
agreement if such subcontract or agreement exceeds $10,000 and is not 
exempt from the provisions of the Equal Opportunity clause.
    (b) Subcontractors and material suppliers are cautioned as follows: 
By signing the subcontract or entering into a material supply agreement, 
the subcontractor or material supplier will be deemed to have signed and 
agreed to the provisions of the ``Certification of Nonsegregated 
Facilities'' in the subcontract or material supply agreement. This 
certification provides that the subcontractor or material supplier does 
not maintain or provide for his employees facilities which are 
segregated on the basis of race, creed, color, or national origin, 
whether such facilities are segregated by directive or on a de facto 
basis. The certification also provides that the subcontractor or 
material supplier will not maintain such segregated facilities.
    (c) Subcontractors or material suppliers receiving subcontract 
awards or material supply agreements exceeding $10,000 which are not 
exempt from the provisions of the Equal Opportunity clause will be 
required to provide for the forwarding of this notice to prospective 
subcontractors for construction contracts and material suppliers where 
the subcontracts or material supply agreements exceed $10,000 and are 
not exempt from the provisions of the Equal Opportunity clause.

II. Implementation of Clean Air Act.
    (a) By signing this bid, the bidder will be deemed to have 
stipulated as follows:
    (1) That any facility to be utilized in the performance of this 
contract, unless such contract is exempt under the Clean Air Act, as 
amended (42 U.S.C. 1857 et seq., as by Pub. L. 91-604), Executive order 
11738, and regulations in implementation thereof (40 CFR part 15, is not 
listed on the U.S. Environmental Protection Agency (EPA) List of 
Violating Facilities pursuant to 40 CFR 15.20.
    (2) That the State highway department shall be promptly notified 
prior to contract award of the receipt by the bidder of any 
communication from the Director, Office of Federal Activities, EPA, 
indicating that a facility to be utilized for the contract is under 
consideration to be listed on the EPA List of Violating Facilities.



            Subpart C--Direct Federal Construction Contracts

    Authority: 23 U.S.C. 315; 49 CFR 1.48(b)(35).

    Source: 39 FR 22418, June 24, 1974, unless otherwise noted.



Sec. 633.301  Purpose.

    To prescribe for direct Federal highway construction contracts, 
provisions covering employment, safety, specific equal employment 
opportunity responsibilities and false statements concerning highway 
projects.



Sec. 633.302  Applicability.

    (a) The form ``Continuation of Standard Form 19-A, Labor Standards 
Provisions'' (appendix A) shall be made a part of all highway 
construction contracts under the direct supervision of the Federal 
Highway Administration. The form shall be incorporated in each highway 
construction contract as a continuation of Standard Form 19-A, Labor 
Standards Provisions and the clauses set forth in paragraph 7 of 
appendix A shall be included in all subcontracts.
    (b) Such additional labor standards provisions as hometown or 
imposed equal employment opportunity plans shall be added at the end of 
the form.

Appendix A to Subpart C of Part 633--Continuation of Standard Form 19-A 
               Labor Standards Provisions (dot-fhwa 3-74)

1. Weekly Statement.
    The contractor and each subcontractor shall furnish each week a 
statement with respect to the wages paid each of his employees engaged 
on work covered by the Copeland Act Regulations, 29 CFR part 3, and by 
29 CFR part 5, during the preceding weekly payroll period. The statement 
shall be executed by the contractor or subcontractor or by an authorized 
officer or employee of the contractor or subcontractor who supervises 
the payment of wages. The statement shall be on U.S. Department of Labor 
Form WH 348, ``Statement of Compliance,'' or on an identical form on the 
back of U.S. Department of Labor Form WH 347, ``Payroll (For 
Contractor's Optional Use),'' or on any form with identical wording. 
Copies of these forms may be purchased from the Government Printing 
Office.

2. Employment Practices.
    a. The wages of labor shall be paid in legal tender of the United 
States, except that this condition will be considered satisfied if 
payment is made by a negotiable check, on a solvent bank, which may be 
cashed readily by the employee in the local community for the full 
amount, without discount or collection charges of any kind. Where checks 
are used for payment, the contractor and each subcontractor shall make 
all necessary arrangements for them to be cashed and shall give 
information to their employees regarding such arrangements.

[[Page 167]]

    b. No fee of any kind shall be asked or accepted by the contractor, 
or any of his agents or subcontractors, from any person as a condition 
of employment on the project.
    c. No laborers or mechanics shall be charged for any tools used in 
performing their duties unless prior permission to make payroll 
deductions for such charges has been granted by the Secretary of Labor 
in accordance with Section 3.6 of the Copeland Act Regulations.
    d. Every employee on the work covered by this contract shall be 
permitted to lodge, board, and trade where and with whom he elects and 
neither the contractor, his subcontractors, nor his employees shall 
directly or indirectly require as a condition of employment that an 
employee shall lodge, board or trade at a particular place or with a 
particular person.
    e. No charge shall be made for any transportation furnished by the 
contractor, or his subcontractors to any person employed on the work.
    f. No individual shall be employed as a laborer or mechanic on this 
contract except on a wage basis, but this shall not be construed to 
prohibit the rental of teams, trucks, or other equipment from 
individuals.
    g. Each employee's social security number must be shown on the first 
payroll on which his name appears.

3. Payment of Excess Wages.
    While the wage rates shown in the wage determination decision are 
the minimum hourly rates required by the contract to be paid during its 
life, it is the responsibility of bidders to inform themselves as to the 
local labor conditions, such as the length of workday and workweek, 
overtime compensation, health and welfare contributions, labor supply, 
and prospective changes or adjustment of wage rates. No increase in the 
contract price shall be allowed or authorized on account of the payment 
of wage rates in excess of those listed herein.

4. Safety.
    It is a condition of this contract, and shall be made a condition of 
each subcontract entered into pursuant to this contract, that the 
contractor and any subcontractor shall not require any individual 
employed in performance of the contract to work in surroundings or under 
working conditions which are unsanitary, hazardous, or dangerous to his 
health or safety, as determined under construction safety and health 
standards (Title 29, Code of Federal Regulations, part 1926, as revised 
from time to time) promulgated by the United States Secretary of Labor, 
in accordance with Section 107 of the Contract Work Hours and Safety 
Standards Act.

5. False Statements Concerning Highway Projects.
    In order to assure high quality and durable construction in 
conformity with approved plans and specifications and a high degree of 
reliability on statements and representations made by engineers, 
contractors, suppliers, and workers on Federal highway projects, it is 
essential that all persons concerned with the project perform their 
functions as carefully, thoroughly, and honestly as possible. Willful 
falsification, distortion, or misrepresentation with respect to any 
facts related to the project is a violation of Federal law. To prevent 
any misunderstanding regarding the seriousness of these and similar 
acts, the contractor shall post the Notice, Form PR-1022 on each Federal 
highway project in one or more places where it is readily available to 
all personnel concerned with the project.

6. Specific Equal Employment Opportunity Responsibilities.
    a. General. (1) Equal employment opportunity requirements not to 
discriminate and to take affirmative action to assure equal employment 
opportunity as required by Executive Order 11246 and Executive Order 
11375 are set forth in SF 23-A, General Provisions and in these 
Provisions. The requirements set forth in these Provisions shall 
constitute the specific affirmative action requirements for project 
activities under this contract and supplement the equal employment 
opportunity requirements set forth in the General Provisions.
    (2) The contractor will work with the Federal Government in carrying 
out equal employment opportunity obligations and in their review of his 
activities under the contract.
    (3) The prime contractor, and all subcontractors (not including 
material suppliers), holding subcontracts of $10,000 or more, will 
comply with the minimum equal employment opportunity requirements set 
forth in the balance of this clause 6.
    b. Equal Employment Opportunity Policy. The contractor will accept 
as his operating policy the following statement which is designed to 
further the provision of equal employment opportunity to all persons 
without regard to their race, color, religion, sex, or national origin, 
and to promote the full realization of equal employment opportunity 
through a positive continuing program:
    It is the policy of this Company to assure that applicants are 
employed, and that employees are treated during employment, without 
regard to their race, religion, sex, color, or national origin. Such 
action shall include: employment, upgrading, demotion, or transfer; 
recruitment or recruitment advertising; layoff or termination; rates of 
pay or other forms of compensation; and selection for training, 
including apprenticeship,

[[Page 168]]

preapprenticeship, and/or on-the-job training.
c. Equal Employment Opportunity Officer.
    The contractor will designate and make known to the contracting 
officer an equal employment opportunity officer (hereinafter referred to 
as the EEO Officer) who must be capable of effectively administering and 
promoting an active contractor program of equal employment opportunity 
and who must be assigned adequate authority and responsibility to do so.
d. Dissemination of Policy.
    (1) All members of the contractor's staff who are authorized to 
hire, supervise, promote, and discharge employees, or who recommend such 
action, or who are substantially involved in such action, will be made 
fully cognizant of, and will implement, the contractor's equal 
employment opportunity policy and contractual responsibilities. To 
insure that the above agreement will be met, the following actions will 
be taken as a minimum:
    (a) Periodic meetings of supervisory and personnel office employees 
will be conducted before the start of work and then not less often than 
once every six months, at which time the contractor's equal employment 
opportunity policy and its implementation will be reviewed and 
explained. The meetings will be conducted by the EEO Officer or other 
knowledgeable company official.
    (b) All new supervisory or personnel office employees will be given 
a thorough indoctrination by the EEO Officer or other knowledgeable 
company official covering all major aspects of the contractor's equal 
employment opportunity obligations within thirty days following their 
reporting for duty with the contractor.
    (c) The EEO Officer or appropriate company official will instruct 
all employees engaged in the direct recruitment of employees for the 
project relative to the methods followed by the contractor in locating 
and hiring minority group employees.
    (2) In order to make the contractor's equal employment opportunity 
policy known to all employees, prospective employees and potential 
sources of employees, i.e., schools, employment agencies, labor unions 
(where appropriate), college placement officer, etc., the contractor 
will take the following actions:
    (a) Notices and posters setting forth the contractor's equal 
employment opportunity policy will be placed in areas readily accessible 
to employees, applicants for employment and potential employees.
    (b) The contractor's equal employment opportunity policy and the 
procedures to implement such policy will be brought to the attention of 
employees by means of meetings, employee handbooks, or other appropriate 
means.

e. Recruitment.
    (1) When advertising for employees, the contractor will include in 
all advertisements for employees the notation: ``An Equal Opportunity 
Employer.'' He will insert all such advertisements in newspapers, or 
other publications, having a large circulation among minority groups in 
the area from which the project work force would normally be derived.
    (2) The contractor will, unless precluded by a valid bargaining 
agreement, conduct systematic and direct recruitment through public and 
private employee referral sources likely to yield qualified minority 
group applicants, including, but not limited to, State employment 
agencies, schools, colleges and minority group organizations. To meet 
this requirement, the contractor will, through his EEO Officer, identify 
sources of potential minority group employees, and establish with such 
identified sources procedures whereby minority group applicants may be 
referred to the contractor for employment consideration.
    (3) The contractor will encourage his present employees to refer 
minority group applicants for employment by posting appropriate notices 
or bulletins in areas accessible to all such employees. In addition, 
information and procedures with regard to referring minority group 
applicants will be discussed with employees.

f. Personnel Actions.
    (1) Wages, working conditions, and employee benefits shall be 
established and administered, and personnel actions of every type, 
including hiring, upgrading, promotion, transfer, demotion, layoff, and 
termination, shall be taken without regard to race, color, religion, 
sex, or national origin. The following procedures shall be followed:
    (a) The contractor will conduct periodic inspections of project 
sites to insure that working conditions and employee facilities do not 
indicate discriminatory treatment of project site personnel.
    (b) The contractor will periodically evaluate the spread of wages 
paid within each classification to determine any evidence of 
discriminatory wage practices.
    (c) The contractor will periodically review selected personnel 
actions in depth to determine whether there is evidence of 
discrimination. Where evidence is found, the contractor will promptly 
take corrective action. If the review indicates that the discrimination 
may extend beyond the actions reviewed, such corrective action shall 
include all affected persons.
    (d) The contractor will investigate all complaints of alleged 
discrimination made to the contractor in connection with his obligations 
under this contract, will attempt to resolve such complaints, and will 
take appropriate corrective action. If the investigation

[[Page 169]]

indicates that the discrimination may affect persons other than the 
complainant, such corrective action shall include such other persons. 
Upon completion of each investigation the contractor will inform every 
complainant of all of his avenues of appeal.

g. Training and Promotion.
    (1) The contractor will assist in locating, qualifying and 
increasing the skills of minority group employees and applicants, for 
employment.
    (2) Consistent with his manpower requirements and as permissible 
under Federal and State regulations, the contractor will make full use 
of training programs, i.e., preapprenticeship apprenticeship, and/or on-
the-job training programs for the geographical area of contract 
performance.
    (3) The contractor will advise employees and applicants for 
employment of available training programs and entrance requirements for 
each.
    (4) The contractor will periodically review the training and 
promotion potential of minority group employees and will encourage 
eligible employees to apply for such training and promotion.

h. Unions.
    If the contractor relies in whole or in part upon unions as a source 
of his work force, he will use his best efforts to obtain the 
cooperation of such unions to increase minority group opportunities 
within the unions, and to effect referrals by such unions of minority 
group employees. Actions by the contractor, either directly or through a 
contractor's association acting as his agent, will include the 
procedures set forth below:
    (1) Use his best efforts to develop, in cooperation with the unions, 
joint training programs aimed toward qualifying more minority group 
members for membership in the unions and increasing the skills of 
minority group employees so that they may qualify for higher paying 
employment.
    (2) Use his best efforts to incorporate an equal employment 
opportunity clause into all union agreements to the end that such unions 
will be contractually bound to refer applicants without regard to their 
race, color, religion, sex, or national origin.
    (3) In the event a union is unable to refer applicants as requested 
by the contractor within the time limit set forth in the union 
agreement, the contractor will, through his recruitment procedures, fill 
the employment vacancies without regard to race, color, religion, sex, 
or national origin, making full efforts to obtain qualified minority 
group persons.

i. Subcontracting.
    (1) The contractor will use his best efforts to utilize minority 
group subcontractors or subcontractors with meaningful minority group 
representation among their employees.
    (2) The contractor will use his best efforts to assure subcontractor 
compliance with their equal employment opportunity obligations.

j. Records and Reports.
    (1) The contractor will keep such records as are necessary to 
determine compliance with the contractor's equal employment opportunity 
obligations. The records kept by the contractor will be designed to 
indicate:
    (a) The number of minority and nonminority group members employed in 
each work classification on the project.
    (b) The progress and efforts being made in cooperation with unions 
to increase minority group employment opportunities (applicable only to 
contractors who rely in whole or in part on unions, as a source of their 
work force).
    (c) The progress and efforts being made in locating, hiring, 
training, qualifying, and upgrading minority group employees.
    (d) The progress and efforts being made in securing the services of 
minority group subcontractors or subcontractors with meaningful minority 
group representation among their employees.
    (2) All such records must be retained for a period of three years 
following completion of the contract work and shall be available at 
reasonable times and places for inspection by the contracting officer or 
his authorized representative.
    (3) The contractor will submit to the Federal Highway Administration 
a monthly report for the first three months after construction begins, 
and thereafter upon request, for the duration of the project, indicating 
the number of minority and nonminority group employees currently engaged 
in each work classification required by the contract work. This 
information is to be reported on Form PR-1391.

7. Subcontracts.
    The contractor shall include, verbatim, clauses 1, 2, 4, 5 and 6 of 
this continuation sheet in each of his subcontracts, except that Clause 
6 will not be required for subcontracts less than $10,000. In addition, 
the contractor shall include a clause requiring each subcontractor to 
include these clauses in any lower tier subcontracts.



PART 635--CONSTRUCTION AND MAINTENANCE--Table of Contents




                     Subpart A--Contract Procedures

Sec.
635.101  Purpose.
635.102  Definitions.
635.103  Applicability.
635.104  Method of construction.

[[Page 170]]

635.105  Supervising agency.
635.106  Use of publicly owned equipment.
635.107  Small and disadvantaged business participation.
635.108  Health and safety.
635.109  Standardized changed condition clauses.
635.110  Licensing and qualification of contractors.
635.111  Tied bids.
635.112  Advertising for bids.
635.113  Bid opening and bid tabulations.
635.114  Award of contract and concurrence in award.
635.115  Agreement estimate.
635.116  Subcontracting and contractor responsibilities.
635.117  Labor and employment.
635.118  Payroll and weekly statements.
635.119  False statements.
635.120  Changes and extra work.
635.121  Contract time and contract time extensions.
635.122  Participation in progress payments.
635.123  Determination and documentation of pay quantities.
635.124  Participation in contract claim awards and settlements.
635.125  Termination of contract.
635.126  Record of materials, supplies, and labor.
635.127  Agreement provisions regarding overruns in contract time.

                  Subpart B--Force Account Construction

635.201  Purpose.
635.202  Application.
635.203  Definitions.
635.204  Determination of more cost effective method or an emergency.
635.205  Finding of cost effectiveness.

             Subpart C--Physical Construction Authorization

635.301  Purpose.
635.303  Applicability.
635.305  Physical construction.
635.307  Coordination.
635.309  Authorization.

                Subpart D--General Material Requirements

635.401  Purpose.
635.403  Definitions.
635.405  Applicability.
635.407  Use of materials made available by a public agency.
635.409  Restrictions upon materials.
635.410  Buy America requirements.
635.411  Material or product selection.
635.413  Warranty clauses.
635.417  Convict produced materials.

Appendix A to Subpart D--Summary of Acceptable Criteria for Specifying 
          Types of Culvert Pipes

              Subpart E--Interstate Maintenance Guidelines

635.501  Purpose.
635.503  Policy.
635.505  Maintenance guidelines.
635.507  Implementation.
635.509  Deficient or unsatisfactory maintenance.

    Authority: 23 U.S.C. 101(note), 109, 112, 113, 114, 116, 119, 128, 
and 315; 31 U.S.C. 6505; 42 U.S.C. 3334, 4601 et seq.; sec. 1041(a), 
Pub. L. 102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR 1.48(b).



                     Subpart A--Contract Procedures

    Source: 56 FR 37004, Aug. 2, 1991, unless otherwise noted.



Sec. 635.101  Purpose.

    To prescribe policies, requirements, and procedures relating to 
Federal-aid highway projects, from the time of authorization to proceed 
to the construction stage, to the time of final acceptance by the 
Federal Highway Administration (FHWA).



Sec. 635.102  Definitions.

    As used in this subpart:
    Administrator means the Federal Highway Administrator.
    Calendar day means each day shown on the calendar but, if another 
definition is set forth in the State contract specifications, that 
definition will apply.
    Certification acceptance means the alternative procedure which may 
be used for administering certain highway projects involving Federal 
funds pursuant to 23 U.S.C. 117.
    Contract time means the number of workdays or calendar days 
specified in a contract for completion of the contract work. The term 
includes authorized time extensions.
    Division Administrator means the chief FHWA official assigned to 
conduct business in a particular State. A State is as defined in 23 
U.S.C. 101.
    Force account means a basis of payment for the direct performance of 
highway construction work with payment based on the actual cost of 
labor, equipment, and materials furnished and consideration for overhead 
and profit.

[[Page 171]]

    Formal approval means approval in writing or the electronic 
transmission of such approval.
    Incentive/disincentive for early completion as used in this subpart, 
describes a contract provision which compensates the contractor a 
certain amount of money for each day identified critical work is 
completed ahead of schedule and assesses a deduction for each day the 
contractor overruns the incentive/disincentive time. Its use is 
primarily intended for those critical projects where traffic 
inconvenience and delays are to be held to a minimum. The amounts are 
based upon estimates of such items as traffic safety, traffic 
maintenance, and road user delay costs.
    Liquidated damages means the daily amount set forth in the contract 
to be deducted from the contract price to cover additional costs 
incurred by a State highway agency because of the contractor's failure 
to complete the contract work within the number of calendar days or 
workdays specified. The term may also mean the total of all daily 
amounts deducted under the terms of a particular contract.
    Local public agency means any city, county, township, municipality, 
or other political subdivision that may be empowered to cooperate with 
the State highway agency in highway matters.
    Major change or major extra work means a change which will 
significantly affect the cost of the project to the Federal Government 
or alter the termini, character or scope of the work.
    Materially unbalanced bid means a bid which generates a reasonable 
doubt that award to the bidder submitting a mathematically unbalanced 
bid will result in the lowest ultimate cost to the Federal Government.
    Mathematically unbalanced bid means a bid containing lump sum or 
unit bid items which do not reflect reasonable actual costs plus a 
reasonable proportionate share of the bidder's anticipated profit, 
overhead costs, and other indirect costs.
    Public agency means any organization with administrative or 
functional responsibilities which are directly or indirectly affiliated 
with a governmental body of any nation, State, or local jurisdiction.
    Publicly owned equipment means equipment previously purchased or 
otherwise acquired by the public agency involved primarily for use in 
its own operations.
    Specialty items means work items identified in the contract which 
are not normally associated with highway construction and require highly 
specialized knowledge, abilities or equipment not ordinarily available 
in the type of contracting organizations qualified and expected to bid 
on the contract; in general, these items are to be limited to minor 
components of the overall contract.
    State highway agency (SHA) means that department, commission, board, 
or official of any State charged by its laws with the responsibility for 
highway construction. The term ``State'' should be considered equivalent 
to ``State highway agency'' if the context so implies.
    Workday means a calendar day during which construction operations 
could proceed for a major part of a shift, normally excluding Saturdays, 
Sundays, and State-recognized legal holidays.

[62 FR 6873, Feb. 14, 1997]



Sec. 635.103  Applicability.

    The policies, requirements, and procedures prescribed in this 
subpart shall apply to all Federal-aid highway projects except for those 
title 23 requirements specifically discharged in an approved 
certification acceptance plan, in accordance with 23 U.S.C. 117.

[56 FR 37004, Aug. 2, 1991, as amended at 62 FR 6873, Feb. 14, 1997]



Sec. 635.104  Method of construction.

    (a) Actual construction work shall be performed by contract awarded 
by competitive bidding; unless, as provided in Sec. 635.104(b), the SHA 
demonstrates to the satisfaction of the Division Administrator that some 
other method is more cost effective or that an emergency exists. The SHA 
shall assure opportunity for free, open, and competitive bidding, 
including adequate publicity of the advertisements or calls for bids. 
The advertising or

[[Page 172]]

calling for bids and the award of contracts shall comply with the 
procedures and requirements set forth in Secs. 635.112 and 635.114.
    (b) Approval by the Division Administrator for construction by a 
method other than competitive bidding shall be requested by the State in 
accordance with subpart B of part 635 of this chapter. Before such 
finding is made, the SHA shall determine that the organization to 
undertake the work is so staffed and equipped as to perform such work 
satisfactorily and cost effectively.



Sec. 635.105  Supervising agency.

    (a) The SHA has responsibility for the construction of all Federal-
aid projects, and is not relieved of such responsibility by authorizing 
performance of the work by a local public agency or other Federal 
agency. The SHA shall be responsible for insuring that such projects 
receive adequate supervision and inspection to insure that projects are 
completed in conformance with approved plans and specifications.
    (b) Although the SHA may employ a consultant to provide construction 
engineering services, such as inspection or survey work on a project, 
the SHA shall provide a full-time employed State engineer to be in 
responsible charge of the project.
    (c) When a project is located on a street or highway over which the 
SHA does not have legal jurisdiction, or when special conditions 
warrant, the SHA, while not relieved of overall project responsibility, 
may arrange for the local public agency having jurisdiction over such 
street or highway to perform the work with its own forces or by 
contract; provided the following conditions are met and the Division 
Administrator approves the arrangements in advance.
    (1) In the case of force account work, there is full compliance with 
subpart B of this part.
    (2) When the work is to be performed under a contract awarded by a 
local public agency, all Federal requirements including those prescribed 
in this subpart shall be met.
    (3) The local public agency is adequately staffed and suitably 
equipped to undertake and satisfactorily complete the work; and
    (4) In those instances where a local public agency elects to use 
consultants for construction engineering services, the local public 
agency shall provide a full-time employee of the agency to be in 
responsible charge of the project.



Sec. 635.106  Use of publicly owned equipment.

    (a) Publicly owned equipment should not normally compete with 
privately owned equipment on a project to be let to contract. There may 
be exceptional cases, however, in which the use of equipment of the 
State or local public agency for highway construction purposes may be 
warranted or justified. A proposal by any SHA for the use of publicly 
owned equipment on such a project must be supported by a showing that it 
would clearly be cost effective to do so under the conditions peculiar 
to the individual project or locality.
    (b) Where publicly owned equipment is to be made available in 
connection with construction work to be let to contract, Federal funds 
may participate in the cost of such work provided the following 
conditions are met:
    (1) The proposed use of such equipment is clearly set forth in the 
Plans, Specifications and Estimate (PS&E) submitted to the Division 
Administrator for approval.
    (2) The advertised specifications specify the items of publicly 
owned equipment available for use by the successful bidder, the rates to 
be charged, and the points of availability or delivery of the equipment; 
and
    (3) The advertised specifications include a notification that the 
successful bidder has the option either of renting part or all of such 
equipment from the State or local public agency or otherwise providing 
the equipment necessary for the performance of the contract work.
    (c) In the rental of publicly owned equipment to contractors, the 
State or local public agency shall not profit at the expense of Federal 
funds.
    (d) Unforeseeable conditions may make it necessary to provide 
publicly owned equipment to the contractor at rental rates agreed to 
between the contractor and the State or local public

[[Page 173]]

agency after the work has started. Any such arrangement shall not form 
the basis for any increase in the cost of the project on which Federal 
funds are to participate.
    (e) When publicly owned equipment is used on projects constructed on 
a force account basis, costs may be determined by agreed unit prices or 
on an actual cost basis. When agreed unit prices are applied the 
equipment need not be itemized nor rental rates shown in the estimate. 
However, if such work is to be performed on an actual cost basis, the 
SHA shall submit to the Division Administrator for approval the scheduie 
of rates proposed to be charged, exclusive of profit, for the publicly 
owned equipment made available for use.



Sec. 635.107  Small and disadvantaged business participation.

    The SHA shall schedule contract lettings in a balanced program 
providing contracts of such size and character as to assure an 
opportunity for all sizes of contracting organizations to compete. In 
accordance with title VI of the Civil Rights Act of 1964, subsequent 
Federal-aid Highway Acts, and 49 CFR part 23, the SHA shall 
affirmatively encourage disadvantaged business enterprise participation 
in the highway construction program.



Sec. 635.108  Health and safety.

    Contracts for projects shall include provisions designed:
    (a) To insure full compliance with all applicable Federal, State, 
and local laws governing safety, health and sanitation; and
    (b) To require that the contractor shall provide all safeguards, 
safety devices, and protective equipment and shall take any other 
actions reasonably necessary to protect the life and health of persons 
working at the site of the project and the safety of the public and to 
protect property in connection with the performance of the work covered 
by the contract.



Sec. 635.109  Standardized changed condition clauses.

    (a) Except as provided in paragraph (b) of this section, the 
following changed conditions contract clauses shall be made part of, and 
incorporated in, each highway construction project approved under 23 
U.S.C. 106:
    (1) Differing site conditions. (i) During the progress of the work, 
if subsurface or latent physical conditions are encountered at the site 
differing materially from those indicated in the contract or if unknown 
physical conditions of an unusual nature, differing materially from 
those ordinarily encountered and generally recognized as inherent in the 
work provided for in the contract, are encountered at the site, the 
party discovering such conditions shall promptly notify the other party 
in writing of the specific differing conditions before the site is 
disturbed and before the affected work is performed.
    (ii) Upon written notification, the engineer will investigate the 
conditions, and if it is determined that the conditions materially 
differ and cause an increase or decrease in the cost or time required 
for the performance of any work under the contract, an adjustment, 
excluding anticipated profits, will be made and the contract modified in 
writing accordingly. The engineer will notify the contractor of the 
determination whether or not an adjustment of the contract is warranted.
    (iii) No contract adjustment which results in a benefit to the 
contractor will be allowed unless the contractor has provided the 
required written notice.
    (iv) No contract adjustment will be allowed under this clause for 
any effects caused on unchanged work. (This provision may be omitted by 
the SHA's at their option.)
    (2) Suspensions of work ordered by the engineer. (i) If the 
performance of all or any portion of the work is suspended or delayed by 
the engineer in writing for an unreasonable period of time (not 
originally anticipated, customary, or inherent to the construction 
industry) and the contractor believes that additional compensation and/
or contract time is due as a result of such suspension or delay, the 
contractor shall submit to the engineer in writing a request for 
adjustment within 7 calendar days of receipt of the notice to resume 
work. The request shall set forth the

[[Page 174]]

reasons and support for such adjustment.
    (ii) Upon receipt, the engineer will evaluate the contractor's 
request. If the engineer agrees that the cost and/or time required for 
the performance of the contract has increased as a result of such 
suspension and the suspension was caused by conditions beyond the 
control of and not the fault of the contractor, its suppliers, or 
subcontractors at any approved tier, and not caused by weather, the 
engineer will make an adjustment (excluding profit) and modify the 
contract in writing accordingly. The contractor will be notified of the 
engineer's determination whether or not an adjustment of the contract is 
warranted.
    (iii) No contract adjustment will be allowed unless the contractor 
has submitted the request for adjustment within the time prescribed.
    (iv) No contract adjustment will be allowed under this clause to the 
extent that performance would have been suspended or delayed by any 
other cause, or for which an adjustment is provided or excluded under 
any other term or condition of this contract.
    (3) Significant changes in the character of work. (i) The engineer 
reserves the right to make, in writing, at any time during the work, 
such changes in quantities and such alterations in the work as are 
necessary to satisfactorily complete the project. Such changes in 
quantities and alterations shall not invalidate the contract nor release 
the surety, and the contractor agrees to perform the work as altered.
    (ii) If the alterations or changes in quantities significantly 
change the character of the work under the contract, whether such 
alterations or changes are in themselves significant changes to the 
character of the work or by affecting other work cause such other work 
to become significantly different in character, an adjustment, excluding 
anticipated profit, will be made to the contract. The basis for the 
adjustment shall be agreed upon prior to the performance of the work. If 
a basis cannot be agreed upon, then an adjustment will be made either 
for or against the contractor in such amount as the engineer may 
determine to be fair and equitable.
    (iii) If the alterations or changes in quantities do not 
significantly change the character of the work to be performed under the 
contract, the altered work will be paid for as provided elsewhere in the 
contract.
    (iv) The term ``significant change'' shall be construed to apply 
only to the following circumstances:
    (A) When the character of the work as altered differs materially in 
kind or nature from that involved or included in the original proposed 
construction; or
    (B) When a major item of work, as defined elsewhere in the contract, 
is increased in excess of 125 percent or decreased below 75 percent of 
the original contract quantity. Any allowance for an increase in 
quantity shall apply only to that portion in excess of 125 percent of 
original contract item quantity, or in case of a decrease below 75 
percent, to the actual amount of work performed.
    (b) The provisions of this section shall be governed by the 
following:
    (1) Where State statute does not permit one or more of the contract 
clauses included in paragraph (a) of this section, the State statute 
shall prevail and such clause or clauses need not be made applicable to 
Federal-aid highway contracts.
    (2) Where the State highway agency has developed and implemented one 
or more of the contract clauses included in paragraph (a) of this 
section, such clause or clauses, as developed by the State highway 
agency may be included in Federal-aid highway contracts in lieu of the 
corresponding clause or clauses in paragraph (a) of this section. The 
State's action must be pursuant to a specific State statute requiring 
differing contract conditions clauses. Such State developed clause or 
clauses, however, must be in conformance with 23 U.S.C., 23 CFR and 
other applicable Federal statutes and regulations as appropriate and 
shall be subject to the Division Administrator's approval as part of the 
PS&E.

[56 FR 37004, Aug. 2, 1991, 57 FR 10062, Mar. 23, 1992]

[[Page 175]]



Sec. 635.110  Licensing and qualification of contractors.

    (a) The procedures and requirements a SHA proposes to use for 
qualifying and licensing contractors, who may bid for, be awarded, or 
perform Federal-aid highway contracts, shall be submitted to the 
Division Administrator for advance approval. Only those procedures and 
requirements so approved shall be effective with respect to Federal-aid 
highway projects. Any changes in approved procedures and requirements 
shall likewise be subject to approval by the Division Administrator.
    (b) No procedure or requirement for bonding, insurance, 
prequalification, qualification, or licensing of contractors shall be 
approved which, in the judgment of the Division Administrator, may 
operate to restrict competition, to prevent submission of a bid by, or 
to prohibit the consideration of a bid submitted by, any responsible 
contractor, whether resident or nonresident of the State wherein the 
work is to be performed.
    (c) No contractor shall be required by law, regulation, or practice 
to obtain a license before submission of a bid or before the bid may be 
considered for award of a contract. This, however, is not intended to 
preclude requirements for the licensing of a contractor upon or 
subsequent to the award of the contract if such requirements are 
consistent with competitive bidding. Prequalification of contractors may 
be required as a condition for submission of a bid or award of contract 
only if the period between the date of issuing a call for bids and the 
date of opening of bids affords sufficient time to enable a bidder to 
obtain the required prequalification rating.
    (d) Requirements for the prequalification, qualification or 
licensing of contractors, that operate to govern the amount of work that 
may be bid upon by, or may be awarded to, a contractor, shall be 
approved only if based upon a full and appropriate evaluation of the 
contractor's capability to perform the work.
    (e) Contractors who are currently suspended, debarred or voluntarily 
excluded under 49 CFR part 29 or otherwise determined to be ineligible, 
shall be prohibited from participating in the Federal-aid highway 
program.



Sec. 635.111  Tied bids.

    (a) The SHA may tie or permit the tying of Federal-aid highway 
projects or Federal-aid and State-financed highway projects for bidding 
purposes where it appears that by so doing more favorable bids may be 
received. To avoid discrimination against contractors desiring to bid 
upon a lesser amount of work than that included in the tied 
combinations, provisions should be made to permit bidding separately on 
the individual projects whenever they are of such character as to be 
suitable for bidding independently.
    (b) When Federal-aid and State-financed highway projects are tied or 
permitted to be tied together for bidding purposes, the bid schedule 
shall set forth the quantities separately for the Federal-aid work and 
the State-financed work. All proposals submitted for the tied projects 
must contain separate bid prices for each project individually. Federal 
participation in the cost of the work shall be on the basis of the 
lowest overall responsive bid proposal unless the analysis of bids 
reveals that mathematical unbalancing has caused an unsupported shift of 
cost liability to the Federal-aid work. If such a finding is made, 
Federal participation shall be based on the unit prices represented in 
the proposal by the individual contractor who would be the lowest 
responsive and responsible bidder if only the Federal-aid project were 
considered.
    (c) Federal-aid highway projects and State-financed highway projects 
may be combined in one contract if the conditions of the projects are so 
similar that the unit costs on the Federal-aid projects should not be 
increased by such combinations of projects. In such cases, like 
quantities should be combined in the proposal to avoid the possibility 
of unbalancing of bids in favor of either of the projects in the 
combination.



Sec. 635.112  Advertising for bids.

    (a) No work shall be undertaken on any Federal-aid project, nor 
shall any project be advertised for bids, prior to

[[Page 176]]

authorization by the Division Administrator.
    (b) The advertisement and approved plans and specifications shall be 
available to bidders a minimum of 3 weeks prior to opening of bids 
except that shorter periods may be approved by the Division 
Administrator in special cases when justified.
    (c) The SHA shall obtain the approval of the Division Administrator 
prior to issuing any addenda which contain a major change to the 
approved plans or specifications during the advertising period. Minor 
addenda need not receive prior approval but should be identified by the 
SHA at the time of or prior to requesting FHWA concurrence in award. The 
SHA shall provide assurance that all bidders have received all issued 
addenda.
    (d) Nondiscriminatory bidding procedures shall be afforded to all 
qualified bidders regardless of National, State or local boundaries and 
without regard to race, color, religion, sex, national origin, age, or 
handicap. If any provisions of State laws, specifications, regulations, 
or policies may operate in any manner contrary to Federal requirements, 
including title VI of the Civil Rights Act of 1964, to prevent 
submission of a bid, or prohibit consideration of a bid submitted by any 
responsible bidder appropriately qualified in accordance with 
Sec. 635.110, such provisions shall not be applicable to Federal-aid 
projects. Where such nonapplicable provisions exist, notices of 
advertising, specifications, special provisions or other governing 
documents shall include a positive statement to advise prospective 
bidders of those provisions that are not applicable.
    (e) No public agency shall be permitted to bid in competition or to 
enter into subcontracts with private contractors.
    (f) The SHA shall include a noncollusion provision substantially as 
follows in the bidding documents:

    Each bidder shall file a statement executed by, or on behalf of the 
person, firm, association, or corporation submitting the bid certifying 
that such person, firm, association, or corporation has not, either 
directly or indirectly, entered into any agreement, participated in any 
collusion, or otherwise taken any action, in restraint of free 
competitive bidding in connection with the submitted bid. Failure to 
submit the executed statement as part of the bidding documents will make 
the bid nonresponsive and not eligible for award consideration.

    (1) The required form for the statement will be provided by the 
State to each prospective bidder.
    (2) The statement shall either be in the form of an affidavit 
executed and sworn to by the bidder before a person who is authorized by 
the laws of the State to administer oaths or in the form of an unsworn 
declaration executed under penalty of perjury of the laws of the United 
States.
    (g) The SHA shall include the lobbying certification requirement 
pursuant to 49 CFR part 20 and the requirements of 49 CFR part 29 
regarding suspension and debarment certification in the bidding 
documents.
    (h) The SHA shall clearly identify in the bidding documents those 
requirements which the bidder must assure are complied with to make the 
bid responsive. Failure to comply with these identified bidding 
requirements shall make the bid nonresponsive and not eligible for award 
consideration.



Sec. 635.113  Bid opening and bid tabulations.

    (a) All bids received in accordance with the terms of the 
advertisement shall be publicly opened and announced either item by item 
or by total amount. If any bid received is not read aloud, the name of 
the bidder and the reason for not reading the bid aloud shall be 
publicly announced at the letting. Negotiation with contractors, during 
the period following the opening of bids and before the award of the 
contract shall not be permitted.
    (b) The SHA shall prepare and forward tabulations of bids to the 
Division Administrator. These tabulations shall be certified by a 
responsible SHA official and shall show:
    (1) Bid item details for at least the low three acceptable bids and
    (2) The total amounts of all other acceptable bids.



Sec. 635.114  Award of contract and concurrence in award.

    (a) Federal-aid contracts shall be awarded only on the basis of the 
lowest responsive bid submitted by a bidder

[[Page 177]]

meeting the criteria of responsibility as may have been established by 
the SHA in accordance with Sec. 635.110. Award shall be within the time 
established by the SHA and subject to the prior concurrence of the 
Division Administrator.
    (b) The SHA shall formally request concurrence by the Division 
Administrator in the award of all Federal-aid contracts. Concurrence in 
award by the Division Administrator is a prerequisite to Federal 
participation in construction costs and is considered as authority to 
proceed with construction, unless specifically stated otherwise. 
Concurrence in award shall be formally approved and shall only be given 
after receipt and review of the tabulation of bids.
    (c) Following the opening of bids, the SHA shall examine the unit 
bid prices of the apparent low bid for reasonable conformance with the 
engineer's estimated prices. A bid with extreme variations from the 
engineer's estimate, or where obvious unbalancing of unit prices has 
occurred, shall be thoroughly evaluated.
    (d) Where obvious unbalanced bid items exist, the SHA's decision to 
award or reject a bid shall be supported by written justification. A bid 
found to be mathematically unbalanced, but not found to be materially 
unbalanced, may be awarded.
    (e) When a low bid is determined to be both mathematically and 
materially unbalanced, the Division Administrator will take appropriate 
steps to protect the Federal interest. This action may be concurrence in 
a SHA decision not to award the contract. If, however, the SHA decides 
to proceed with the award and requests FHWA concurrence, the Division 
Administrator's action may range from nonconcurrence to concurrence with 
contingency conditions limiting Federal participation.
    (f) If the SHA determines that the lowest bid is not responsive or 
the bidder is not responsible, it shall so notify and obtain the 
Division Administrator's concurrence before making an award to the next 
lowest bidder.
    (g) If the SHA rejects or declines to read or consider a low bid on 
the grounds that it is not responsive because of noncompliance with a 
requirement which was not clearly identified in the bidding documents, 
it shall submit justification for its action. If such justification is 
not considered by the Division Administrator to be sufficient, 
concurrence will not be given to award to another bidder on the contract 
at the same letting.
    (h) Any proposal by the SHA to reject all bids received for a 
Federal-aid contract shall be submitted to the Division Administrator 
for concurrence, accompanied by adequate justification.
    (i) In the event the low bidder selected by the SHA for contract 
award forfeits the bid guarantee, the SHA may dispose of the amounts of 
such forfeited guarantees in accordance with its normal practices.
    (j) A copy of the executed contract between the SHA and the 
construction contractor should be furnished to the Division 
Administrator as soon as practicable after execution.



Sec. 635.115  Agreement estimate.

    (a) Following the award of contract, an agreement estimate based on 
the contract unit prices and estimated quantities shall be prepared by 
the SHA and submitted to the Division Administrator as soon as 
practicable for use in the preparation of the project agreement. The 
agreement estimate shall also include the actual or best estimated costs 
of any other items to be included in the project agreement.
    (b) An agreement estimate shall be submitted by the SHA for each 
force account project (see 23 CFR part 635, subpart B) when the plans 
and specifications are submitted to the Division Administrator for 
approval. It shall normally be based on the estimated quantities and the 
unit prices agreed upon in advance between the SHA and the Division 
Administrator, whether the work is to be done by the SHA or by a local 
public agency. Such agreed unit prices shall constitute a commitment as 
the basis for Federal participation in the cost of the project. The unit 
prices shall be based upon the estimated actual cost of performing the 
work but shall in no case exceed unit prices currently being obtained by 
competitive bidding on comparable highway construction work in the same 
general locality. In special cases

[[Page 178]]

involving unusual circumstances, the estimate may be based upon the 
estimated costs for labor, materials, equipment rentals, and supervision 
to complete the work rather than upon agreed unit prices. This paragraph 
shall not be applicable to agreement estimates for railroad and utility 
force account work.



Sec. 635.116  Subcontracting and contractor responsibilities.

    (a) Contracts for projects shall specify the minimum percentage of 
work that a contractor must perform with its own organization. This 
percentage shall be not less than 30 percent of the total original 
contract price excluding any identified specialty items. Specialty items 
may be performed by subcontract and the amount of any such specialty 
items so performed may be deducted from the total original contract 
before computing the amount of work required to be performed by the 
contractor's own organization. The contract amount upon which the above 
requirement is computed includes the cost of materials and manufactured 
products which are to be purchased or produced by the contractor under 
the contract provisions.
    (b) The SHA shall not permit any of the contract work to be 
performed under a subcontract, unless such arrangement has been 
authorized by the SHA in writing. Prior to authorizing a subcontract, 
the SHA shall assure that each subcontract is evidenced in writing and 
that it contains all pertinent provisions and requirements of the prime 
contract. The Division Administrator may permit the SHA to satisfy the 
subcontract assurance requirements by concurrence in a SHA process which 
requires the contractor to certify that each subcontract arrangement 
will be in the form of a written agreement containing all the 
requirements and pertinent provisions of the prime contract. Prior to 
the Division Administrator's concurrence, the SHA must demonstrate that 
it has an acceptable plan for monitoring such certifications.
    (c) To assure that all work (including subcontract work) is 
performed in accordance with the contract requirements, the contractor 
shall be required to furnish:
    (1) A competent superintendent or supervisor who is employed by the 
firm, has full authority to direct performance of the work in accordance 
with the contract requirements, and is in charge of all construction 
operations (regardless of who performs the work), and;
    (2) Such other of its own organizational resources (supervision, 
management, and engineering services) as the SHA contracting officer 
determines are necessary to assure the performance of the contract.



Sec. 635.117  Labor and employment.

    (a) No construction work shall be performed by convict labor at the 
work site or within the limits of any Federal-aid highway construction 
project from the time of award of the contract or the start of work on 
force account until final acceptance of the work by the SHA unless it is 
labor performed by convicts who are on parole, supervised release, or 
probation.
    (b) No procedures or requirement shall be imposed by any State which 
will operate to discriminate against the employment of labor from any 
other State, possession or territory of the United States, in the 
construction of a Federal-aid project.
    (c) The selection of labor to be employed by the contractor on any 
Federal-aid project shall be by the contractor without regard to race, 
color, religion, sex, national origin, age, or handicap and in 
accordance with 23 CFR part 230, 41 CFR part 60 and Exec. Order No. 
11246 (Sept. 24, 1965), 3 CFR 339 (1964-1965), as amended.
    (d) Pursuant to 23 U.S.C. 140(d), it is permissible for SHA's to 
implement procedures or requirements which will extend preferential 
employment to Indians living on or near a reservation on eligible 
projects as defined in paragraph (e) of this section. Indian preference 
shall be applied without regard to tribal affiliation or place of 
enrollment. In no instance should a contractor be compelled to layoff or 
terminate a permanent core-crew employee to meet a preference goal.
    (e) Projects eligible for Indian employment preference consideration 
are

[[Page 179]]

projects located on roads within or providing access to an Indian 
reservation or other Indian lands as defined under the term ``Indian 
Reservation Roads'' in 23 U.S.C. 101 and regulations issued thereunder. 
The terminus of a road ``providing access to'' is that point at which it 
intersects with a road functionally classified as a collector or higher 
classification (outside the reservation boundary) in both urban and 
rural areas. In the case of an Interstate highway, the terminus is the 
first interchange outside the reservation.
    (f) The advertisement or call for bids on any contract for the 
construction of a project located on the Federal-aid system either shall 
include the minimum wage rates determined by the Secretary of Labor to 
be prevailing on the same type of work on similar construction in the 
immediate locality or shall provide that such rates are set out in the 
bidding documents and shall further specify that such rates are a part 
of the contract covering the project.



Sec. 635.118  Payroll and weekly statements.

    For all projects, copies of payrolls and statements of wages paid, 
filed with the State as set forth in the required contract provisions 
for the project, are to be retained by the SHA for the time period 
pursuant to 49 CFR part 18 for review as needed by the Federal Highway 
Administration, the Department of Labor, the General Accounting Office, 
or other agencies.



Sec. 635.119  False statements.

    The following notice shall be posted on each Federal-aid highway 
project in one or more places where it is readily available to and 
viewable by all personnel concerned with the project:

     Notice to All Personnel Engaged on Federal-Aid Highway Projects

    United States Code, title 18, section 1020, reads as follows:
    Whoever, being an officer, agent, or employee of the United States, 
or of any State or Territory, or whoever, whether a person, association, 
firm, or corporation, knowingly makes any false statement, false 
representation, or false report as to the character, quality, quantity, 
or cost of the material used or to be used, or the quantity or quality 
of the work performed or to be performed, or the costs thereof in 
connection with the submission of plans, maps, specifications, 
contracts, or costs of construction of any highway or related project 
submitted for approval to the Secretary of Transportation; or
    Whoever, knowingly makes any false statement, false representation, 
false report, or false claim with respect to the character, quality, 
quantity, or cost of any work performed or to be performed, or materials 
furnished or to be furnished, in connection with the construction of any 
highway or related project approved by the Secretary of Transportation; 
or
    Whoever, knowingly makes any false statement or false representation 
as to a material fact in any statement, certificate, or report submitted 
pursuant to the provisions of the Federal-aid Road Act approved July 11, 
1916 (39 Stat. 355), as amended and supplemented,
    Shall be fined not more than $10,000 or imprisoned not more than 
five years, or both.



Sec. 635.120  Changes and extra work.

    (a) Following authorization to proceed with a project, all major 
changes in the plans and contract provisions and all major extra work 
shall have formal approval by the Division Administrator in advance of 
their effective dates. However, when emergency or unusual conditions 
justify, the Division Administrator may give tentative advance approval 
orally to such changes or extra work and ratify such approval with 
formal approval as soon thereafter as practicable.
    (b) For non-major changes and non-major extra work, formal approval 
is necessary but such approval may be given retroactively at the 
discretion of the Division Administrator. The SHA should establish and 
document with the Division Administrator's concurrence specific 
parameters as to what constitutes a non-major change and non-major extra 
work.
    (c) Changes in contract time, as related to contract changes or 
extra work, should be submitted at the same time as the respective work 
change for approval by the Division Administrator.
    (d) In establishing the method of payment for contract changes or 
extra work orders, force account procedures shall only be used when 
strictly necessary, such as when agreement cannot be reached with the 
contractor on the price of a new work item, or when the extent of work 
is unknown or is of such

[[Page 180]]

character that a price cannot be determined to a reasonable degree of 
accuracy. The reason or reasons for using force account procedures shall 
be documented.
    (e) The SHA shall perform and adequately document a cost analysis of 
each negotiated contract change or negotiated extra work order. The 
method and degree of the cost analysis shall be subject to the approval 
of the Division Administrator.
    (f) Proposed changes and extra work involved in nonparticipating 
operations that may affect the design or participating construction 
features of a project, shall be subject to review and concurrence by the 
Division Administrator.



Sec. 635.121  Contract time and contract time extensions.

    (a) The SHA should have adequate written procedures for the 
determination of contract time. These procedures should be submitted for 
approval to the Division Administrator within 6 months of the effective 
date of this Final Rule.
    (b) Contract time extensions granted by a SHA shall be subject to 
the concurrence of the Division Administrator and will be considered in 
determining the amount of Federal participation. Contract time 
extensions submitted for approval to the Division Administrator, shall 
be fully justified and adequately documented.



Sec. 635.122  Participation in progress payments.

    (a) Federal funds will participate in the costs to the SHA of 
construction accomplished as the work progresses, based on a request for 
reimbursement submitted by State highway agencies. When the contract 
provisions provide for payment for stockpiled materials, the amount of 
the reimbursement request upon which participation is based may include 
the appropriate value of approved specification materials delivered by 
the contractor at the project site or at another designated location in 
the vicinity of such construction, provided that:
    (1) The material conforms with the requirements of the plans and 
specifications.
    (2) The material is supported by a paid invoice or a receipt for 
delivery of materials. If supported by a receipt of delivery of 
materials, the contractor must furnish the paid invoice within a 
reasonable time after receiving payment from the SHA; and
    (3) The quantity of a stockpiled material eligible for Federal 
participation in any case shall not exceed the total estimated quantity 
required to complete the project. The value of the stockpiled material 
shall not exceed the appropriate portion of the value of the contract 
item or items in which such materials are to be incorporated.
    (b) The materials may be stockpiled by the contractor at a location 
not in the vicinity of the project, if the SHA determines that because 
of required fabrication at an off-site location, it is not feasible or 
practicable to stockpile the materials in the vicinity of the project.



Sec. 635.123  Determination and documentation of pay quantities.

    (a) The SHA shall have procedures in effect which will provide 
adequate assurance that the quantities of completed work are determined 
accurately and on a uniform basis throughout the State. All such 
determinations and all related source documents upon which payment is 
based shall be made a matter of record.
    (b) Initial source documents pertaining to the determination of pay 
quantities are among those records and documents which must be retained 
pursuant to 49 CFR part 18.



Sec. 635.124  Participation in contract claim awards and settlements.

    (a) The eligibility for and extent of Federal-aid participation up 
to the Federal statutory share in a contract claim award made by a State 
to a Federal-aid contractor on the basis of an arbitration or mediation 
proceeding, administrative board determination, court judgment, 
negotiated settlement, or other contract claim settlement shall be 
determined on a case-by-case basis. Federal funds will participate to 
the extent that any contract adjustments made are supported, and have a 
basis in terms of the contract and applicable State law, as fairly 
construed.

[[Page 181]]

Further, the basis for the adjustment and contractor compensation shall 
be in accord with prevailing principles of public contract law.
    (b) The FHWA shall be made aware by the SHA of the details of the 
claim at an early stage so that coordination of efforts can be 
satisfactorily accomplished. It is expected that SHA's will diligently 
pursue the satisfactory resolution of claims within a reasonable period 
of time. Claims arising on projects handled on Certification Acceptance 
projects or on exempt non-NHS projects should be processed in accordance 
with the State's approved Certification Acceptance Plan or Stewardship 
Plan, as appropriate.
    (c) When requesting Federal participation, the SHA shall set forth 
in writing the legal and contractual basis for the claim, together with 
the cost data and other facts supporting the award or settlement. 
Federal-aid participation in such instances shall be supported by a SHA 
audit of the actual costs incurred by the contractor unless waived by 
the FHWA as unwarranted. Where difficult, complex, or novel legal issues 
appear in the claim, such that evaluation of legal controversies is 
critical to consideration of the award or settlement, the SHA shall 
include in its submission a legal opinion from its counsel setting forth 
the basis for determining the extent of the liability under local law, 
with a level of detail commensurate with the magnitude and complexity of 
the issues involved.
    (d) In those cases where the SHA receives an adverse decision in an 
amount more than the SHA was able to support prior to the decision or 
settles a claim in an amount more than the SHA can support, the FHWA 
will participate up to the appropriate Federal matching share, to the 
extent that it involves a Federal-aid participating portion of the 
contract, provided that:
    (1) The FHWA was consulted and concurred in the proposed course of 
action;
    (2) All appropriate courses of action had been considered; and
    (3) The SHA pursued the case diligently and in a professional 
manner.
    (e) Federal funds will not participate:
    (1) If it has been determined that SHA employees, officers, or 
agents acted with gross negligence, or participated in intentional acts 
or omissions, fraud, or other acts not consistent with usual State 
practices in project design, plan preparation, contract administration, 
or other activities which gave rise to the claim;
    (2) In such cost items as consequential or punitive damages, 
anticipated profit, or any award or payment of attorney's fees paid by a 
State to an opposing party in litigation; and
    (3) In tort, inverse condemnation, or other claims erroneously 
styled as claims ``under a contract.''
    (f) Payment of interest associated with a claim will be eligible for 
participation provided that the payment to the contractor for interest 
is allowable by State statute or specification and the costs are not a 
result of delays caused by dilatory action of the State or the 
contractor. The interest rates must not exceed the rate provided for by 
the State statute or specification.
    (g) In cases where SHA's affirmatively recover compensatory damages 
through contract claims, cross-claims, or counter claims from 
contractors, subcontractors, or their agents on projects on which there 
was Federal-aid participation, the Federal share of such recovery shall 
be equivalent to the Federal share of the project or projects involved. 
Such recovery shall be credited to the project or projects from which 
the claim or claims arose.

[56 FR 37004, Aug. 2, 1991, as amended at 62 FR 6873, Feb. 14, 1997]



Sec. 635.125  Termination of contract.

    (a) All contracts exceeding $10,000 shall contain suitable 
provisions for termination by the State, including the manner by which 
the termination will be effected and the basis for settlement. In 
addition, such contracts shall describe conditions under which the 
contract may be terminated for default as well as conditions where the 
contract may be terminated because of circumstances beyond the control 
of the contractor.
    (b) The SHA prior to termination of a Federal-aid contract shall 
consult with and receive the concurrence of the Division Administrator. 
The extent of Federal-aid participation in contract termination costs, 
including final settlement, will depend upon the merits of

[[Page 182]]

the individual case. However, under no circumstances shall Federal funds 
participate in anticipated profit on work not performed.
    (c) Except as provided for in paragraph (e) of this section, normal 
Federal-aid plans, specifications, and estimates, advertising, and award 
procedures are to be followed when a SHA awards the contract for 
completion of a terminated Federal-aid contract.
    (d) When a SHA awards the contract for completion of a Federal-aid 
contract previously terminated for default, the construction amount 
eligible for Federal participation on the project should not exceed 
whichever amount is the lesser, either:
    (1) The amount representing the payments made under the original 
contract plus payments made under the new contract; or
    (2) The amount representing what the cost would have been if the 
construction had been completed as contemplated by the plans and 
specifications under the original contract.
    (e) If the surety awards a contract for completion of a defaulted 
Federal-aid contract or completes it by some other acceptable means, the 
FHWA will consider the terms of the original contract to be in effect 
and that the work will be completed in accordance with the approved 
plans and specifications included therein. No further FHWA approval or 
concurrence action will therefore be needed in connection with any 
defaulted Federal-aid contract awarded by a surety. Under this 
procedure, the construction amount eligible for Federal participation on 
the project should not exceed the amount representing what the cost 
would have been if the construction had been completed as contemplated 
by the plans and specifications under the original contract.



Sec. 635.126  Record of materials, supplies, and labor.

    (a) The provisions in this section are required to facilitate FHWA's 
efforts to compile data on Federal-aid contracts for the establishment 
of highway construction usage factors.
    (b) On all Federal-aid construction contracts of $1 million or more 
for projects on the National Highway System, the SHA shall require the 
contractor:
    (1) To become familiar with the list of specific materials and 
supplies including labor-hour and gross earning items contained in Form 
FHWA-47, ``Statement of Materials and Labor Used by Contractors on 
Highway Construction Involving Federal Funds,'' prior to the 
commencement of work under this contract;
    (2) To maintain a record of the total cost of all materials and 
supplies purchased for and incorporated in the work, and also of the 
quantities of those specific materials and supplies listed on Form FHWA-
47, and in the units shown; and
    (3) To furnish, upon the completion of the contract, to the SHA on 
Form FHWA-47 both the data required in paragraph (b)(2) of this section 
relative to materials and supplies and a final labor summary for all 
contract work indicating the total hours worked and the gross earnings.
    (c) Upon receipt from the contractor, the SHA shall review the Form 
FHWA-47 for reasonableness and promptly transmit the form to the 
Division Administrator in accordance with the instructions printed in 
the form.

[56 FR 37004, Aug. 2, 1991, as amended at 62 FR 6873, Feb. 14, 1997]



Sec. 635.127  Agreement provisions regarding overruns in contract time.

    (a) Each State highway agency (SHA) shall establish specific 
liquidated damages rates applicable to projects in that State. The rates 
may be project-specific or may be in the form of a table or schedule 
developed for a range of project costs and/or project types. These rates 
shall, as a minimum, be established to cover the estimated average daily 
construction engineering (CE) costs associated with the type of work 
encountered on the project. The amounts shall be assessed by means of 
deductions, for each calendar day or workday overrun in contract time, 
from payments otherwise due to the contractor for performance in 
accordance with the contract terms.
    (b) The rates established shall be subject to FHWA approval either 
on a project-by-project basis, in the case of project-specific rates, or 
on a periodic

[[Page 183]]

basis after initial approval where a rate table or schedule is used. In 
the latter case, the SHA shall periodically review its cost data to 
ascertain if the rate table/schedule closely approximates, at a minimum, 
the actual average daily CE costs associated with the type and size of 
the projects in the State. Where rate schedules or other means are 
already included in the SHA specifications or standard special 
provisions, verification by the SHA that the amounts are adequate shall 
be submitted to the FHWA for review and approval. After initial approval 
by the FHWA of the rates, the SHA shall review the rates at least every 
2 years and provide updated rates, when necessary, for FHWA approval. If 
updated rates are not warranted, justification of this fact is to be 
sent to the FHWA for review and acceptance.
    (c) The SHA may, with FHWA concurrence, include additional amounts 
as liquidated damages in each contract to cover other anticipated costs 
of project related delays or inconveniences to the SHA or the public. 
Costs resulting from winter shutdowns, retaining detours for an extended 
time, additional demurrage, or similar costs as well as road user delay 
costs may be included.
    (d) In addition to the liquidated damages provisions, the SHA may 
also include incentive/disincentive for early completion provisions in 
the contract. The incentive/disincentive amounts shall be shown 
separately from the liquidated damages amounts.
    (e) Where there has been an overrun in contract time, the following 
principles shall apply in determining the cost of a project that is 
eligible for Federal-aid reimbursement:
    (1) A proportional share, as used in this section, is the ratio of 
the final contract construction costs eligible for Federal participation 
to the final total contract construction costs of the project.
    (2) Where CE costs are claimed as a participating item based upon 
actual expenses incurred or where CE costs are not claimed as a 
participating item, and where the liquidated damages rates cover only CE 
expenses, the total CE costs for the project shall be reduced by the 
assessed liquidated damages amounts prior to figuring any Federal pro 
rata share payable. If the amount of liquidated damages assessed is more 
than the actual CE totals for the project, a proportional share of the 
excess shall be deducted from the federally participating contract 
construction cost before determining the final Federal share.
    (3) Where the SHA is being reimbursed for CE costs on the basis of 
an approved percentage of the participating construction cost, the total 
contract construction amount that would be eligible for Federal 
participation shall be reduced by a proportional share of the total 
liquidated damages amounts assessed on the project.
    (4) Where liquidated damages include extra anticipated non-CE costs 
due to contractor caused delays, the amount assessed shall be used to 
pay for the actual non-CE expenses incurred by the SHA, and, if a 
Federal participating item(s) is involved, to reduce the Federal share 
payable for that item(s). If the amount assessed is more than the actual 
expenses incurred by the SHA, a proportional share of the excess shall 
be deducted from the federally participating contract construction cost 
of the project before the Federal share is figured.
    (f) When provisions for incentive/disincentive for early completion 
are used in the contract, a proportion of the increased project costs 
due to any incentive payments to the contractor shall be added to the 
federally participating contract construction cost before calculating 
the Federal share. When the disincentive provision is applicable, a 
proportion of the amount assessed the contractor shall be deducted from 
the federally participating contract construction cost before the 
Federal share calculation. Proportions are to be calculated in the same 
manner as set forth in paragraph (e)(1) of this section.

[52 FR 31390, Aug. 20, 1987. Redesignated at 62 FR 6872, Feb. 14, 1997]



                  Subpart B--Force Account Construction



Sec. 635.201  Purpose.

    The purpose of this subpart is to prescribe procedures in accordance 
with 23

[[Page 184]]

U.S.C. 112(b) for a State highway agency to request approval that 
highway construction work be performed by some method other than 
contract awarded by competitive bidding.

[48 FR 22912, May 23, 1983]



Sec. 635.202  Application.

    This subpart applies to all Federal-aid and other highway 
construction projects financed in whole or in part with Federal funds 
and to be constructed by a State highway agency or a subdivision thereof 
in pursuant of agreements between any other State highway agency and the 
Federal Highway Administration (FHWA). This subpart does not apply to 
projects constructed under a Certification Acceptance Plan in those 
States where the Secretary has discharged his/her responsibility 
pursuant to 23 U.S.C. 117, except where employees of a political 
subdivision of a State are working on a project outside such political 
subdivision.

[48 FR 22912, May 23, 1983]



Sec. 635.203  Definitions.

    The following definitions shall apply for the purpose of this 
subpart:
    (a) A State highway agency is that department, commission, board, or 
official of any State charged by its laws with the responsibility for 
highway construction. The term State should be considered equivalent to 
State highway agency if the context so implies.
    (b) Except as provided for as emergency repair work in 
Sec. 668.105(i) and in Sec. 635.204(b), the term some other method of 
construction as used in 23 U.S.C. 112(b) shall mean the force account 
method of construction as defined herein. In the unlikely event that 
circumstances are considered to justify a negotiated contract or another 
unusual method of construction, the policies and procedures prescribed 
herein for force account work will apply.
    (c) The term force account shall mean the direct performance of 
highway construction work by a State highway agency, a county, a 
railroad, or a public utility company by use of labor, equipment, 
materials, and supplies furnished by them and used under their direct 
control.
    (d) The term county shall mean any county, township, municipality or 
other political subdivision that may be empowered to cooperate with the 
State highway agency in highway matters.
    (e) The term cost effective shall mean the efficient use of labor, 
equipment, materials and supplies to assure the lowest overall cost.
    (f) For the purpose of this part, an emergency shall be deemed to 
exist when emergency repair work as provided for in Sec. 668.105(i) is 
necessary or when a major element or segment of the highway system has 
failed and the situation is such that competitive bidding is not 
possible or is impractical because immediate action is necessary to:
    (1) Minimize the extent of the damage,
    (2) Protect remaining facilities, or
    (3) Restore essential travel.

This definition of emergency has no applicability to the Emergency 
Relief Program of 23 CFR part 668.

[39 FR 35158, Sept. 30, 1974, as amended at 48 FR 22912, May 23, 1983; 
52 FR 45172, Nov. 25, 1987]



Sec. 635.204  Determination of more cost effective method or an emergency.

    (a) Congress has expressly provided that the contract method based 
on competitive bidding shall be used by a State highway agency or county 
for performance of highway work financed with the aid of Federal funds 
unless the State highway agency demonstrates, to the satisfaction of the 
Secretary, that some other method is more cost effective or that an 
emergency exists.
    (b) When a State highway agency determines it necessary due to an 
emergency to undertake a federally financed highway construction project 
by force account or negotiated contract method, it shall submit a 
request to the Division Administrator identifying and describing the 
project, the kinds of work to be performed, the method to be used, the 
estimated costs, the estimated Federal Funds to be provided, and the 
reason or reasons that an emergency exists.
    (c) Except as provided in paragraph (b) of this section, when a 
State highway agency desires that highway construction work financed 
with the aid of

[[Page 185]]

Federal funds, other than the kinds of work designated under 
Sec. 635.205(b), be undertaken by force account, it shall submit a 
request to the Division Administrator identifying and describing the 
project and the kind of work to be performed, the estimated costs, the 
estimated Federal funds to be provided, and the reason or reasons that 
force account for such project is considered cost effective.
    (d) The Division Administrator shall notify the State highway agency 
in writing of his/her determination.

[52 FR 45172, Nov. 25, 1987]



Sec. 635.205  Finding of cost effectiveness.

    (a) It may be found cost effective for a State highway agency or 
county to undertake a federally financed highway construction project by 
force account when a situation exists in which the rights or 
resposibilities of the community at large are so affected as to require 
some special course of action, including situations where there is a 
lack of bids or the bids received are unreasonable.
    (b) Pursuant to authority in 23 U.S.C. 112(b), it is hereby 
determined that by reason of the inherent nature of the operations 
involved, it is cost effective to perform by force account the 
adjustment of railroad or utility facilities and similar types of 
facilities owned or operated by a public agency, a railroad, or a 
utility company provided that the organization is qualified to perform 
the work in a satisfactory manner. The installation of new facilities 
shall be undertaken by competitive bidding except as provided in 
Sec. 635.204(c). Adjustment of railroad facilities shall include minor 
work on the railroad's operating facilities routinely performed by the 
railroad with its own forces such as the installation of grade crossing 
warning devices, crossing surfaces, and minor track and signal work. 
Adjustment of utility facilities shall include minor work on the 
utility's existing facilities routinely performed by the utility with 
its own forces and includes minor installations of new facilities to 
provide power, minor lighting, telephone, water and similar utility 
service to a rest area, weigh-station, movable bridge, or other highway 
appurtenance, provided such installation cannot feasibly be done as 
incidental to a major installation project such as an extensive highway 
lighting system.

[52 FR 45173, Nov. 25, 1987]



             Subpart C--Physical Construction Authorization

    Source: 40 FR 17251, Apr. 18, 1975, unless otherwise noted.



Sec. 635.301  Purpose.

    To prescribe the policies and procedures under which a State highway 
agency may be authorized to advance a Federal-aid highway project to the 
physical construction stage.



Sec. 635.303  Applicability.

    The provisions of this subpart are applicable to all Federal-aid 
highway construction projects except projects constructed under an 
approved Certification Acceptance Plan.



Sec. 635.305  Physical construction.

    For purposes of this subpart the physical construction of a project 
is considered to consist of the actual construction of the highway 
itself with its appurtenant facilities. It includes any removal, 
adjustment or demolition of buildings or major obstructions, and utility 
or railroad work that is a part of the contract for the physical 
construction.



Sec. 635.307  Coordination.

    (a) The right-of-way clearance, utility, and railroad work are to be 
so coordinated with the physical construction that no unnecessary delay 
or cost for the physical construction will occur.
    (b) All right-of-way clearance, utility, and railroad work performed 
separately from the contract for the physical construction of the 
project are to be accomplished in accordance with provisions of the 
following:
    (1) 23 CFR part 140, subpart I;
    (2) 23 CFR part 646, subpart B;
    (3) 23 CFR 710.403; and
    (4) 23 CFR part 645, subpart A.

[40 FR 17251, Apr. 18, 1975, as amended at 40 FR 25585, June 17, 1975; 
64 FR 71289, Dec. 21, 1999]

[[Page 186]]



Sec. 635.309  Authorization.

    Authorization to advertise the physical construction for bids or to 
proceed with force account construction thereof shall normally be issued 
as soon as, but not until, all of the following conditions have been 
met:
    (a) The plans, specifications, and estimates (PS&E) therefor have 
been approved.
    (b) A statement is received from the State, either separately or 
combined with the information required by Sec. 635.309(c), that either 
all right-of-way clearance, utility, and railroad work has been 
completed or that all necessary arrangements have been made for it to be 
undertaken and completed as required for proper coordination with the 
physical construction schedules. Where it is determined that the 
completion of such work in advance of the highway construction is not 
feasible or practical due to economy, special operational problems and 
the like, there shall be appropriate notification provided in the bid 
proposals identifying the right-of-way clearance, utility, and railroad 
work which is to be underway concurrently with the highway construction.
    (c) A statement is received from the State certifying that all 
individuals and families have been relocated to decent, safe and 
sanitary housing or the State has made available to relocatees adequate 
replacement housing in accordance with the provisions of the current 
Federal Highway Administration (FHWA) directive(s) covering the 
administration of the Highway Relocation Assistance Program and that one 
of the following has application:
    (1) All necessary rights-of-way, including control of access rights 
when pertinent, have been acquired including legal and physical 
possession. Trial or appeal of cases may be pending in court but legal 
possession has been obtained. There may be some improvements remaining 
on the right-of-way but all occupants have vacated the lands and 
improvements and the State has physical possession and the right to 
remove, salvage, or demolish these improvements and enter on all land.
    (2) Although all necessary rights-of-way have not been fully 
acquired, the right to occupy and to use all rights-of-way required for 
the proper execution of the project has been acquired. Trial or appeal 
of some parcels may be pending in court and on other parcels full legal 
possession has not been obtained but right of entry has been obtained, 
the occupants of all lands and improvements have vacated and the State 
has physical possession and right to remove, salvage, or demolish these 
improvements.
    (3) The acquisition or right of occupancy and use of a few remaining 
parcels is not complete, but all occupants of the residences on such 
parcels have had replacement housing made available to them in 
accordance with 49 CFR 24.204. The State may request authorization on 
this basis only in very unusual circumstances. This exception must never 
become the rule. Under these circumstances, advertisement for bids or 
force-account work may be authorized if FHWA finds that it will be in 
the public interest. The physical construction may then also proceed, 
but the State shall ensure that occupants of residences, businesses, 
farms, or non-profit organizations who have not yet moved from the 
right-of-way are protected against unnecessary inconvenience and 
disproportionate injury or any action coercive in nature. When the State 
requests authorization to advertise for bids and to proceed with 
physical construction where acquisition or right of occupancy and use of 
a few parcels has not been obtained, full explanation and reasons 
therefor including identification of each such parcel will be set forth 
in the State's request along with a realistic date when physical 
occupancy and use is anticipated as well as substantiation that such 
date is realistic. Appropriate notification shall be provided in the bid 
proposals identifying all locations where right of occupancy and use has 
not been obtained.
    (d) The State highway agency in accord with 23 CFR 771.111(h), has 
submitted public hearing transcripts, certifications and reports 
pursuant to 23 U.S.C. 128.
    (e) An affirmative finding of cost effectiveness or that an 
emergency exists has been made as required by 23 U.S.C. 112, when 
construction by some method

[[Page 187]]

other than contract based on competitive bidding is contemplated.
    (f) Minimum wage rates determined by the Department of Labor in 
accordance with the provisions of 23 U.S.C. 113, are in effect and will 
not expire before the end of the period within which it can reasonably 
be expected that the contract will be awarded.
    (g) A statement has been received that right-of-way has been 
acquired or will be acquired in accordance with the current FHWA 
directive(s) covering the acquisition of real property or that 
acquisition of right-of-way is not required.
    (h) A statement has been received that the steps relative to 
relocation advisory assistance and payments as required by the current 
FHWA directive(s) covering the administration of the Highway Relocation 
Assistance Program have been taken, or that they are not required.
    (i) The FHWA Division Administrator has determined that appropriate 
measures have been included in the PS&E in keeping with approved 
guidelines, for minimizing possible soil erosion and water pollution as 
a result of highway construction operations.
    (j) The FHWA Division Administrator has determined that requirements 
of 23 CFR part 771 have been fulfilled and appropriate measures have 
been included in the PS&E to ensure that conditions and commitments made 
in the development of the project to mitigate environmental harm will be 
met.
    (k) Where utility facilities are to use and occupy the right-of-way, 
the State has demonstrated to the satisfaction of the FHWA Division 
Administrator that the provisions of 23 CFR 645.119(b) have been 
fulfilled.
    (l) The FHWA Division Administrator has verified the fact that 
adequate replacement housing is in place and has been made available to 
all affected persons.
    (m) Where applicable, areawide agency review has been accomplished 
as required by 42 U.S.C. 3334 and 4231 through 4233.
    (n) The FHWA Division Administrator has determined that the PS&E 
provide for the erection of only those information signs and traffic 
control devices that conform to the standards developed by the Secretary 
of Transportation or mandates of Federal law and do not include 
promotional or other informational signs regarding such matters as 
identification of public officials, contractors, organizational 
affiliations, and related logos and symbols.
    (o) The FHWA Division Administrator has determined that, where 
applicable, provisions are included in the PS&E that require the 
erection of funding source signs, for the life of the construction 
project, in accordance with section 154 of the Surface Transportation 
and Uniform Relocation Assistance Act of 1987.

[40 FR 17251, Apr. 18, 1975; 40 FR 36319, Aug. 20, 1975, as amended at 
47 FR 47239, Oct. 25, 1982; 49 FR 28550, July 13, 1984; 50 FR 34093, 
Aug. 23, 1985; 52 FR 32669, Aug. 28, 1987; 52 FR 45173, Nov. 25, 1987; 
53 FR 1921, Jan. 25, 1988; 54 FR 47075, Nov. 9, 1989]



                Subpart D--General Material Requirements

    Source: 41 FR 36204, Aug. 27, 1976, unless otherwise noted.



Sec. 635.401  Purpose.

    The purpose of this subpart is to prescribe requirements and 
procedures relating to product and material selection and use on 
Federal-aid highway projects.



Sec. 635.403  Definitions.

    As used in this subpart, the following terms have the meanings 
indicated:
    (a) FHWA Division Administrator means the chief Federal Highway 
Administration (FHWA) official assigned to conduct business in a 
particular State;
    (b) Material means any tangible substance incorporated into a 
Federal-aid highway project;
    (c) PS&E means plans, specifications, and estimates;
    (d) Special provisions means additions and revisions to the standard 
and supplemental specifications applicable to an individual project;
    (e) Standard specifications means a compilation in book form of 
specifications approved for general application and repetitive use;

[[Page 188]]

    (f) State has the meaning set forth in 23 U.S.C. 101;
    (g) State highway agency means that department, commission, board, 
or official of any State charged by its laws with the responsibility for 
highway construction;
    (h) Supplemental specifications means approved additions and 
revisions to the standard specifications.



Sec. 635.405  Applicability.

    The requirements and procedures prescribed in this subpart apply to 
all contracts relating to Federal-aid highway projects, except those 
constructed under a Certification Acceptance Plan.



Sec. 635.407  Use of materials made available by a public agency.

    (a) Contracts for highway projects shall require the contractor to 
furnish all materials to be incorporated in the work and shall permit 
the contractor to select the sources from which the materials are to be 
obtained. Exception to this requirement may be made when there is a 
definite finding by the State highway agency and concurred in by the 
FHWA Division Administrator, that it is in the public interest to 
require the contractor to use material furnished by the State highway 
agency or from sources designated by the State highway agency. In cases 
such as this, the FHWA does not expect mutual sharing of costs unless 
the State highway agency receives a related credit from another agency 
or political subdivision of the State. Where such a credit does accrue 
to the State highway agency, it shall be applied to the Federal-aid 
project involved. The designation of a mandatory material source may be 
permitted based on environmental considerations, provided the 
environment would be substantially enhanced without excessive cost. 
Otherwise, if a State highway agency proposal to designate a material 
source for mandatory use would result in higher project costs, Federal-
aid funds shall not participate in the increase even if the designation 
would conserve other public funds.
    (b) The provisions of paragraph (a) of this section will not 
preclude the designation in the plans and specifications of sources of 
local natural materials, such as borrow aggregates, that have been 
investigated by the State highway agency and found to contain materials 
meeting specification requirements. The use of materials from such 
designated sources shall not be mandatory unless there is a finding of 
public interest as stated in paragraph (a) of this section.
    (c) Federal funds may participate in the cost of specifications 
materials made available by a public agency when they have been actually 
incorporated in accepted items of work, or in the cost of such materials 
meeting the criteria and stockpiled at the locations specified in 
Sec. 635.114 of this chapter.
    (d) To be eligible for Federal participation in its cost, any 
material, other than local natural materials, to be purchased by the 
State highway agency and furnished to the contractor for mandatory use 
in the project, must have been acquired on the basis of competitive 
bidding, except when there is a finding of public interest justifying 
the use of another method of acquisition. The location and unit price at 
which such material will be available to the contractor must be stated 
in the special provisions for the benefit of all prospective bidders. 
The unit cost eligible for Federation participation will be limited to 
the unit cost of such material to the State highway agency.
    (e) When the State highway agency or another public agency owns or 
has control over the source of a local natural material the unit price 
at which such material will be made available to the contractor must be 
stated in the plans or special provisions. Federal participation will be 
limited to (1) the cost of the material to the State highway agency or 
other public agency; or (2) the fair and reasonable value of the 
material, whichever is less. Special cases may arise that will justify 
Federal participation on a basis other than that set forth above. Such 
cases should be fully documented and receive advance approval by the 
FHWA Division Administrator.
    (f) Costs incurred by the State highway agency or other public 
agency for acquiring a designated source or the right to take materials 
from it will not be eligible for Federal participation if

[[Page 189]]

the source is not used by the contractor.
    (g) The contract provisions for one or a combination of Federal-aid 
projects shall not specify a mandatory site for the disposal of surplus 
excavated materials unless there is a finding by the State highway 
agency with the concurrence of the FHWA Division Administrator that such 
placement is the most economical except that the designation of a 
mandatory site may be permitted based on environmental considerations, 
provided the environment would be substantially enhanced without 
excessive cost.



Sec. 635.409  Restrictions upon materials.

    No requirement shall be imposed and no procedure shall be enforced 
by any State highway agency in connection with a project which may 
operate:
    (a) To require the use of or provide a price differential in favor 
of articles or materials produced within the State, or otherwise to 
prohibit, restrict or discriminate against the use of articles or 
materials shipped from or prepared, made or produced in any State, 
territory or possession of the United States; or
    (b) To prohibit, restrict or otherwise discriminate against the use 
of articles or materials of foreign origin to any greater extent than is 
permissible under policies of the Department of Transportation as 
evidenced by requirements and procedures prescribed by the FHWA 
Administrator to carry out such policies.



Sec. 635.410  Buy America requirements.

    (a) The provisions of this section shall prevail and be given 
precedence over any requirements of this subpart which are contrary to 
this section. However, nothing in this section shall be construed to be 
contrary to the requirements of Sec. 635.409(a) of this subpart.
    (b) No Federal-aid highway construction project is to be authorized 
for advertisement or otherwise authorized to proceed unless at least one 
of the following requirements is met:
    (1) The project either: (i) Includes no permanently incorporated 
steel or iron materials, or (ii) if steel or iron materials are to be 
used, all manufacturing processes, including application of a coating, 
for these materials must occur in the United States. Coating includes 
all processes which protect or enhance the value of the material to 
which the coating is applied.
    (2) The State has standard contract provisions that require the use 
of domestic materials and products, including steel and iron materials, 
to the same or greater extent as the provisions set forth in this 
section.
    (3) The State elects to include alternate bid provisions for foreign 
and domestic steel and iron materials which comply with the following 
requirements. Any procedure for obtaining alternate bids based on 
furnishing foreign steel and iron materials which is acceptable to the 
Division Administrator may be used. The contract provisions must (i) 
require all bidders to submit a bid based on furnishing domestic steel 
and iron materials, and (ii) clearly state that the contract will be 
awarded to the bidder who submits the lowest total bid based on 
furnishing domestic steel and iron materials unless such total bid 
exceeds the lowest total bid based on furnishing foreign steel and iron 
materials by more than 25 percent.
    (4) When steel and iron materials are used in a project, the 
requirements of this section do not prevent a minimal use of foreign 
steel and iron materials, if the cost of such materials used does not 
exceed one-tenth of one percent (0.1 percent) of the total contract cost 
or $2,500, whichever is greater. For purposes of this paragraph, the 
cost is that shown to be the value of the steel and iron products as 
they are delivered to the project.
    (c)(1) A State may request a waiver of the provisions of this 
section if;
    (i) The application of those provisions would be inconsistent with 
the public interest; or
    (ii) Steel and iron materials/products are not produced in the 
United States in sufficient and reasonably available quantities which 
are of a satisfactory quality.
    (2) A request for waiver, accompanied by supporting information, 
must be submitted in writing to the Regional Federal Highway 
Administrator (RFHWA) through the FHWA Division

[[Page 190]]

Administrator. A request must be submitted sufficiently in advance of 
the need for the waiver in order to allow time for proper review and 
action on the request. The RFHWA will have approval authority on the 
request.
    (3) Requests for waivers may be made for specific projects, or for 
certain materials or products in specific geographic areas, or for 
combinations of both, depending on the circumstances.
    (4) The denial of the request by the RFHWA may be appealed by the 
State to the Federal Highway Administrator (Administrator), whose action 
on the request shall be considered administratively final.
    (5) A request for a waiver which involves nationwide public interest 
or availability issues or more than one FHWA region may be submitted by 
the RFHWA to the Administrator for action.
    (6) A request for waiver and an appeal from a denial of a request 
must include facts and justification to support the granting of the 
waiver. The FHWA response to a request or appeal will be in writing and 
made available to the public upon request. Any request for a nationwide 
waiver and FHWA's action on such a request may be published in the 
Federal Register for public comment.
    (7) In determining whether the waivers described in paragraph (c)(1) 
of this section will be granted, the FHWA will consider all appropriate 
factors including, but not limited to, cost, administrative burden, and 
delay that would be imposed if the provision were not waived.
    (d) Standard State and Federal-aid contract procedures may be used 
to assure compliance with the requirements of this section.

[48 FR 53104, Nov. 25, 1983, as amended at 49 FR 18821, May 3, 1984; 58 
FR 38975, July 21, 1993]

    Editorial Note: For a waiver document affecting Sec. 635.410, see 60 
FR 15478, Mar. 24, 1995.



Sec. 635.411  Material or product selection.

    (a) Federal funds shall not participate, directly or indirectly, in 
payment for any premium or royalty on any patented or proprietary 
material, specification, or process specifically set forth in the plans 
and specifications for a project, unless:
    (1) Such patented or proprietary item is purchased or obtained 
through competitive bidding with equally suitable unpatented items; or
    (2) The State highway agency certifies either that such patented or 
proprietary item is essential for synchronization with existing highway 
facilities, or that no equally suitable alternate exists; or
    (3) Such patented or proprietary item is used for research or for a 
distinctive type of construction on relatively short sections of road 
for experimental purposes.
    (b) When there is available for purchase more than one nonpatented, 
nonproprietary material, semifinished or finished article or product 
that will fulfill the requirements for an item of work of a project and 
these available materials or products are judged to be of satisfactory 
quality and equally acceptable on the basis of engineering analysis and 
the anticipated prices for the related item(s) of work are estimated to 
be approximately the same, the PS&E for the project shall either contain 
or include by reference the specifications for each such material or 
product that is considered acceptable for incorporation in the work. If 
the State highway agency wishes to substitute some other acceptable 
material or product for the material or product designated by the 
successful bidder or bid as the lowest alternate, and such substitution 
results in an increase in costs, there will not be Federal-aid 
participation in any increase in costs.
    (c) A State highway agency may require a specific material or 
product when there are other acceptable materials and products, when 
such specific choice is approved by the Division Administrator as being 
in the public interest. When the Division Administrator's approval is 
not obtained, the item will be nonparticipating unless bidding 
procedures are used that establish the unit price of each acceptable 
alternative. In this case Federal-aid participation will be based on the 
lowest price so established.
    (d) Appendix A sets forth the FHWA requirements regarding (1) the 
specification of alternative types of culvert

[[Page 191]]

pipes, and (2) the number and types of such alternatives which must be 
set forth in the specifications for various types of drainage 
installations.
    (e) Reference in specifications and on plans to single trade name 
materials will not be approved on Federal-aid contracts.



Sec. 635.413  Warranty clauses.

    The SHA may include warranty provisions in National Highway System 
(NHS) construction contracts in accordance with the following:
    (a) Warranty provisions shall be for a specific construction product 
or feature. Items of maintenance not eligible for Federal participation 
shall not be covered.
    (b) All warranty requirements and subsequent revisions shall be 
submitted to the Division Administrator for advance approval.
    (c) No warranty requirement shall be approved which, in the judgment 
of the Division Administrator, may place an undue obligation on the 
contractor for items over which the contractor has no control.
    (d) A SHA may follow its own procedures regarding the inclusion of 
warranty provisions in non-NHS Federal-aid contracts.

[60 FR 44274, Aug. 25, 1995]



Sec. 635.417  Convict produced materials.

    (a) Materials produced after July 1, 1991, by convict labor may only 
be incorporated in a Federal-aid highway construction project if such 
materials have been:
    (1) Produced by convicts who are on parole, supervised release, or 
probation from a prison or
    (2) Produced in a qualified prison facility and the cumulative 
annual production amount of such materials for use in Federal-aid 
highway construction does not exceed the amount of such materials 
produced in such facility for use in Federal-aid highway construction 
during the 12-month period ending July 1, 1987.
    (b) Qualified prison facility means any prison facility in which 
convicts, during the 12-month period ending July 1, 1987, produced 
materials for use in Federal-aid highway construction projects.

[53 FR 1923, Jan. 25, 1988, as amended at 58 FR 38975, July 21, 1993]

Appendix A to Subpart D of Part 635--Summary of Acceptable Criteria for 
                    Specifying Types of Culvert Pipes

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Alternatives required                 AASHTO designations
   Type of drainage installation   ----------------------------------------------------  to be included with       Application             Remarks
                                         Yes             No              Number             alternatives
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cross drains under high-type        .............  X............  ....................  ....................  Statewide...........  Any AASHTO-approved
 pavement.\1\                                                                                                                        material.\2\
Other cross-drain installations...  X............  .............  3 minimum...........  M-170 and M-190.....  ......do............      Do.\2\
Side-drain installations..........  X............  .............  ......do............  M-36................  ......do............      Do.\2\
Special installation conditions...  .............  X............  ....................  ....................  Individual            Specified to meet
                                                                                                               installation.         special condi-
                                                                                                                                     tions.
Special drainage systems (storm     .............  X............  ....................  ....................  ......do............  Specified to meet
 sewers, inverted siphons, etc.).                                                                                                    site require-ments.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ High-type pavement is generally described as FHWA construction type codes I, J, K, L, and plant mix and penetration macadam segments, respectively
  shown in the right-hand columns of type codes G and H having a combined thickness of surface and base of 7 in or more (or equivalent) or that are
  constructed on rigid bases.
\2\ Types not included in currently approved AASHTO specifications may be specified if recommended by the State with adequate justification and approved
  by FHWA.



              Subpart E--Interstate Maintenance Guidelines

    Source: 45 FR 20793, Mar. 31, 1980, unless otherwise noted.



Sec. 635.501  Purpose.

    To prescribe Interstate maintenance guidelines and establish the 
policy and procedures to insure that the condition of Interstate routes 
is maintained at

[[Page 192]]

the level required by the purposes for which they were designed.



Sec. 635.503  Policy.

    The policy of the FHWA is to insure that each State highway agency 
develops and implements an Interstate maintenance program conforming to 
the guidelines in this subpart. The maintenance program shall be 
consistent with practices deemed necessary to adequately provide for 
motorist safety, preservation of the highways, rideability, and 
aesthetics.



Sec. 635.505  Maintenance guidelines.

    (a) The following critical elements should serve to direct the 
development and implementation of an Interstate maintenance program in 
each State.
    (1) Roadway surfaces. Preservation of the structural integrity of 
the roadway and the safety and comfort of the user. This includes a 
safe, smooth, skid-resistant surface, as close as practical to the 
original, or subsequently improved, grade and cross section.
    (2) Shoulders. Preservation of a safe, smooth surface which is free 
of obstruction, contiguous with the adjacent roadway surface, and as 
close as practical to the original, or subsequently improved, grade and 
cross section.
    (3) Roadside. Preservation of the roadside in a safe, pleasant, and 
forgiving manner through vegetation management, erosion control, and 
litter pick-up.
    (4) Drainage. Preservation of hydraulic capacity for which 
originally designed.
    (5) Bridges and tunnels. Preservation of the structural and 
operational characteristics for which originally designed. These include 
safe, smooth, skid-resistant surfaces; proper surface drainage; and 
adequate functioning bearing devices and substructural elements. 
Replacement or repair of structural railing and approach guardrail 
should be done without unreasonable delay. Tunnels should be cleaned, 
properly lighted, and adequately ventilated.
    (6) Snow and ice control. Preservation of the roadway safety, 
efficiency, and environment during winter driving conditions.
    (7) Traffic control devices. Preservation of clean, legible, 
visible, and properly functioning traffic control devices. This includes 
pavement markings, signing, delineators, signals, etc.
    (8) Safety appurtenances. Replacement of damaged, defective, and/or 
inoperable devices without unreasonable delay. This includes guardrails, 
impact attenuators, breakaway supports, barriers, etc.
    (9) Safety rest areas. Preservation and operation of facilities 
reasonably necessary for the convenience, relaxation, and informational 
needs of the user.
    (10) Access control. Preservation of the originally designed access 
control, elimination of unauthorized traffic movement, and prevention of 
improper or unauthorized use of the highway rights-of-way.
    (11) Traffic safety in maintenance and utility work zones. 
Procedures that will aid the safety of motorists and maintenance 
workers. The procedures shall be consistent with the provisions of 23 
CFR part 630, subpart J, and part VI of the Manual on Uniform Traffic 
Control Devices. \1\
---------------------------------------------------------------------------

    \1\ Available for purchase from the Superintendent of Documents, 
U.S. Government Printing Office, Washington, DC 20402 (GPO Stock Number 
050-001-81001-8), and for inspection and copying as prescribed in 49 CFR 
7, app. D.
---------------------------------------------------------------------------

    (b) All replacements and repairs should conform to the currently 
approved design standards (23 CFR part 625) for all critical elements 
listed in paragraph (a) of this section. Exceptions for minor repairs 
must be clearly defined in a State's maintenance program.
    (c) These guidelines shall be interpreted to expect that repairs and 
maintenance will be performed without unreasonable delay, that 
variations from the State's approved program will be allowed in 
situations involving emergency or unforeseeability, and that the State 
will seek to attain a high level of maintenance.



Sec. 635.507  Implementation.

    (a) Each State highway agency shall prepare an initial program 
submission which shall include a description of the State's Interstate 
maintenance program; a discussion of the method by

[[Page 193]]

which the State manages its program, including copies of operating 
documents; and a general description of the level of resources and 
activity the State intends to devote to attain the objectives stated 
under each of the critical elements in Sec. 635.505(a). This initial 
submission shall be made to the FHWA no later than 120 days after the 
effective date of this subpart. The FHWA shall review each State's 
initial program submission for conformance with the provisions of this 
subpart and approve or disapprove the submission on the basis of that 
review.
    (b) Within one year after the effective date of this subpart, and by 
January 1 of each subsequent year, each State highway agency shall 
certify to the FHWA that it has an Interstate maintenance program as 
required by this subpart and that its Interstate routes are being 
maintained in accordance with that program.
    (c) Beginning in 1981 and each year thereafter, each State highway 
agency shall update its initial program submission by providing the FHWA 
with a discussion of:
    (1) The condition of the State's Interstate routes and deficiencies,
    (2) State maintenance priorities,
    (3) The State maintenance budget, and
    (4) Exceptions and/or revisions to the initial submission.
    (d) The FHWA shall review each State's annual submission for 
conformance with the provisions of this subpart and monitor the 
implementation of each State's program in accordance with the review 
procedures described in the FHWA Maintenance Review Manual \2\ and the 
Federal-Aid Highway Program Manual, volume 6, chapter 4, section 3, 
subsection 1. \3\ If differences between the State and the FHWA cannot 
be resolved concerning the adequacy of the Interstate maintenance 
program's level of resources and activity, the FHWA shall initiate 
action under Sec. 635.509.
---------------------------------------------------------------------------

    \2, 3\ Available for inspection and copying as prescribed in 49 CFR 
part 7, appendix D.
---------------------------------------------------------------------------



Sec. 635.509  Deficient or unsatisfactory maintenance.

    (a) Fund reduction. If a State fails to certify as required by this 
subpart, or if the Secretary determines that a State is not adequately 
maintaining its Interstate routes in accordance with a maintenance 
program as required by this subpart, the Federal-aid highway funds 
apportioned to the State for the next fiscal year (after the date on 
which the State must certify) shall be reduced by an amount equal to 10 
percent of the amount which would otherwise be apportioned to the State 
under 23 U.S.C. 104. In addition, future project approvals may be 
withheld by the Secretary under 23 U.S.C. 116.
    (b) Procedure for reduction of funds. (1) If it appears to the 
Federal Highway Administrator that a State has not submitted a 
certification conforming to the requirements of this subpart, or that a 
State is not adequately maintaining its Interstate routes in accordance 
with a maintenance program as required by this subpart, the 
Administrator shall make in writing a proposed determination of 
nonconformity, and shall notify the Governor of the State of the 
proposed determination by certified mail. The notice shall state the 
reasons for the proposed determination and inform the State that it may 
within 30 days from the date of the letter request a hearing to show 
cause why it should not be found in nonconformity. If the State informs 
the Administrator before the end of the 30-day period that it wishes to 
attempt to resolve the matter informally, the Administrator may extend 
the time for requesting a hearing by an additional 30 days. In the event 
of a request for informal resolution, the State and the Administrator 
(or designees) shall promptly schedule a meeting to resolve the matter.
    (2) If a State does not request a hearing in a timely fashion as 
provided in paragraph (b)(1) of this section, the Administrator shall 
forward the proposed determination to the Secretary. Upon approval by 
the Secretary, the provisions of paragraph (a) of this section shall 
take effect immediately.
    (3) If a State requests a hearing, the Secretary shall expeditiously 
convene a hearing on the record, which shall be conducted according to 
the provisions

[[Page 194]]

of the Administrative Procedure Act, 5 U.S.C. 551 et seq. Based on the 
record of the proceeding, the Secretary shall determine whether the 
State is in nonconformity with this subpart. If the Secretary determines 
that the State is in nonconformity, the provisions of paragraph (a) of 
this section shall take effect immediately.
    (4) The Secretary may reduce 10 percent of a State's apportionment 
of funds under 23 U.S.C. 104 prior to the administrative determination 
under this section in order to prevent the apportionment to the State of 
funds which would be affected by a determination of nonconformity.
    (5) Funds withheld pursuant to a final administrative determination 
under this section shall be reapportioned to all other eligible States 
one year from the date of this determination, unless before this time 
the Secretary determines, on the basis of information submitted by the 
State and the FHWA, that the State has come into conformity with this 
section. If the Secretary determines that the State has come into 
conformity, the withheld funds shall be released to the State.
    (6) The reapportionment of funds under paragraph (b)(5) of this 
section shall be stayed during the pendency of any proceeding for 
judicial review of a final administrative determination of nonconformity 
made by the Secretary.



PART 637--CONSTRUCTION INSPECTION AND APPROVAL--Table of Contents




Subpart A [Reserved]

        Subpart B--Quality Assurance Procedures for Construction

Sec.
637.201  Purpose.
637.203  Definitions.
637.205  Policy.
637.207  Quality assurance program.
637.209  Laboratory and sampling and testing personnel qualifications.

Appendix A to Subpart B--Guide Letter of Certification by State Engineer

    Authority: 23 U.S.C. 109, 114, and 315; 49 CFR 1.48(b).

    Source: 60 FR 33717, June 29, 1995, unless otherwise noted.

Subpart A [Reserved]



        Subpart B--Quality Assurance Procedures for Construction



Sec. 637.201  Purpose.

    To prescribe policies, procedures, and guidelines to assure the 
quality of materials and construction in all Federal-aid highway 
projects on the National Highway System.



Sec. 637.203  Definitions.

    Acceptance program. All factors that comprise the State highway 
agency's (SHA) determination of the quality of the product as specified 
in the contract requirements. These factors include verification 
sampling, testing, and inspection and may include results of quality 
control sampling and testing.
    Independent assurance program. Activities that are an unbiased and 
independent evaluation of all the sampling and testing procedures used 
in the acceptance program. Test procedures used in the acceptance 
program which are performed in the SHA's central laboratory would not be 
covered by an independent assurance program.
    Proficiency samples. Homogeneous samples that are distributed and 
tested by two or more laboratories. The test results are compared to 
assure that the laboratories are obtaining the same results.
    Qualified laboratories. Laboratories that are capable as defined by 
appropriate programs established by each SHA. As a minimum, the 
qualification program shall include provisions for checking test 
equipment and the laboratory shall keep records of calibration checks.
    Qualified sampling and testing personnel. Personnel who are capable 
as defined by appropriate programs established by each SHA.
    Quality assurance. All those planned and systematic actions 
necessary to provide confidence that a product or service will satisfy 
given requirements for quality.
    Quality control. All contractor/vendor operational techniques and 
activities that are performed or conducted to fulfill the contract 
requirements.

[[Page 195]]

    Random sample. A sample drawn from a lot in which each increment in 
the lot has an equal probability of being chosen.
    Vendor. A supplier of project-produced material that is not the 
contractor.
    Verification sampling and testing. Sampling and testing performed to 
validate the quality of the product.



Sec. 637.205  Policy.

    (a) Quality assurance program. Each SHA shall develop a quality 
assurance program which will assure that the materials and workmanship 
incorporated into each Federal-aid highway construction project on the 
NHS are in conformity with the requirements of the approved plans and 
specifications, including approved changes. The program must meet the 
criteria in Sec. 637.207 and be approved by the FHWA.
    (b) SHA capabilities. The SHA shall maintain an adequate, qualified 
staff to administer its quality assurance program. The State shall also 
maintain a central laboratory. The State's central laboratory shall meet 
the requirements in Sec. 637.209(a)(2).
    (c) Independent assurance program. Independent assurance samples and 
tests or other procedures shall be performed by qualified sampling and 
testing personnel employed by the SHA or its designated agent.
    (d) Verification sampling and testing. The verification sampling and 
testing are to be performed by qualified testing personnel employed by 
the SHA or its designated agent, excluding the contractor and vendor.
    (e) Random samples. All samples used for quality control and 
verification sampling and testing shall be random samples.



Sec. 637.207  Quality assurance program.

    (a) Each SHA's quality assurance program shall provide for an 
acceptance program and an independent assurance (IA) program consisting 
of the following:
    (1) Acceptance program.
    (i) Each SHA's acceptance program shall consist of the following:
    (A) Frequency guide schedules for verification sampling and testing 
which will give general guidance to personnel responsible for the 
program and allow adaptation to specific project conditions and needs.
    (B) Identification of the specific location in the construction or 
production operation at which verification sampling and testing is to be 
accomplished.
    (C) Identification of the specific attributes to be inspected which 
reflect the quality of the finished product.
    (ii) Quality control sampling and testing results may be used as 
part of the acceptance decision provided that:
    (A) The sampling and testing has been performed by qualified 
laboratories and qualified sampling and testing personnel.
    (B) The quality of the material has been validated by the 
verification sampling and testing. The verification testing shall be 
performed on samples that are taken independently of the quality control 
samples.
    (C) The quality control sampling and testing is evaluated by an IA 
program.
    (iii) If the results from the quality control sampling and testing 
are used in the acceptance program, the SHA shall establish a dispute 
resolution system. The dispute resolution system shall address the 
resolution of discrepancies occurring between the verification sampling 
and testing and the quality control sampling and testing. The dispute 
resolution system may be administered entirely within the SHA.
    (2) The IA program shall evaluate the qualified sampling and testing 
personnel and the testing equipment. The program shall cover sampling 
procedures, testing procedures, and testing equipment. Each IA program 
shall include a schedule of frequency for IA evaluation. The schedule 
may be established based on either a project basis or a system basis. 
The frequency can be based on either a unit of production or on a unit 
of time.
    (i) The testing equipment shall be evaluated by using one or more of 
the following: Calibration checks, split samples, or proficiency 
samples.
    (ii) Testing personnel shall be evaluated by observations and split 
samples or proficiency samples.
    (iii) A prompt comparison and documentation shall be made of test 
results obtained by the tester being evaluated

[[Page 196]]

and the IA tester. The SHA shall develop guidelines including tolerance 
limits for the comparison of test results.
    (iv) If the SHA uses the system approach to the IA program, the SHA 
shall provide an annual report to the FHWA summarizing the results of 
the IA program.
    (3) The preparation of a materials certification, conforming in 
substance to Appendix A of this subpart, shall be submitted to the FHWA 
Division Administrator for each construction project which is subject to 
FHWA construction oversight activities.
    (b) [Reserved]



Sec. 637.209  Laboratory and sampling and testing personnel qualifications.

    (a) Laboratories.
    (1) After June 29, 2000, all contractor, vendor, and SHA testing 
used in the acceptance decision shall be performed by qualified 
laboratories.
    (2) After June 30, 1997, each SHA shall have its central laboratory 
accredited by the AASHTO Accreditation Program or a comparable 
laboratory accreditation program approved by the FHWA.
    (3) After June 29, 2000, any non-SHA designated laboratory which 
performs IA sampling and testing shall be accredited in the testing to 
be performed by the AASHTO Accreditation Program or a comparable 
laboratory accreditation program approved by the FHWA.
    (4) After June 29, 2000, any non-SHA laboratory that is used in 
dispute resolution sampling and testing shall be accredited in the 
testing to be performed by the AASHTO Accreditation Program or a 
comparable laboratory accreditation program approved by the FHWA.
    (b) Sampling and testing personnel. After June 29, 2000, all 
sampling and testing data to be used in the acceptance decision or the 
IA program shall be executed by qualified sampling and testing 
personnel.
    (c) Conflict of interest. In order to avoid an appearance of a 
conflict of interest, any qualified non-SHA laboratory shall perform 
only one of the following types of testing on the same project: 
Verification testing, quality control testing, IA testing, or dispute 
resolution testing.

Appendix A to Subpart B--Guide Letter of Certification by State Engineer

Date____________________________________________________________________
Project No._____________________________________________________________
    This is to certify that:
    The results of the tests used in the acceptance program indicate 
that the materials incorporated in the construction work, and the 
construction operations controlled by sampling and testing, were in 
conformity with the approved plans and specifications. (The following 
sentence should be added if the IA testing frequencies are based on 
project quantities. All independent assurance samples and tests are 
within tolerance limits of the samples and tests that are used in the 
acceptance program.)
    Exceptions to the plans and specifications are explained on the back 
hereof (or on attached sheet).
_______________________________________________________________________
Director of SHA Laboratory or other appropriate SHA Official.



PART 640--CERTIFICATION ACCEPTANCE--Table of Contents




Sec.
640.101  Purpose.
640.103  Definitions.
640.105  Effect of certification acceptance.
640.107  Coverage.
640.109  Requirements for certification acceptance.
640.111  Content of State certification.
640.113  Procedures.
640.115  Evaluations.
640.117  Rescission of State certification.

    Authority: 23 U.S.C. 101(e), 117, and 315; 49 CFR 1.48(b).

    Source: 60 FR 47483, Sept. 13, 1995, unless otherwise noted.



Sec. 640.101  Purpose.

    The purpose of this part is to provide instructions for preparation 
and acceptance of State certification proposals to accomplish the 
policies and objectives of title 23, U.S.C., using State laws, 
regulations, directives, and standards. Also covered are procedures for 
administering projects under certification acceptance and evaluating 
State performance.

[[Page 197]]



Sec. 640.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Certification acceptance (CA) means the alternative procedure 
authorized by 23 U.S.C. 117(a) for administering Federal-aid highway 
projects not on the Interstate System.
    State certification means a written statement prepared by a State 
highway/transportation agency setting forth the laws, regulations, 
directives, and standards it will use, or cause to be used, in the 
administration of certain highway projects.
    State highway/transportation agency has the same meaning as that 
given for State highway department in 23 U.S.C. 101.



Sec. 640.105  Effect of certification acceptance.

    (a) Acceptance of a State certification permits a State to discharge 
certain responsibilities otherwise assigned to the Secretary under title 
23, U.S.C., for Federal-aid highway projects. A State may permit 
performance and project certification by capable local governments.
    (b) Acceptance of a State certification does not constitute a 
commitment or obligation of Federal funds.
    (c) Acceptance of a State certification does not preclude FHWA 
access to and review of a Federal-aid project at any time.
    (d) Certification acceptance as an alternative procedure does not 
replace the fundamental provisions of law in title 23, U.S.C., with 
respect to the basic structure of the Federal-aid highway program. 
Acceptance of a CA proposal does not preclude application of any 
provision of title 23, U.S.C., that may be advantageous to the State.
    (e) Nothing in this part shall affect or discharge any 
responsibility or obligation of the FHWA under any Federal law other 
than title 23, U.S.C.



Sec. 640.107  Coverage.

    (a) Certification acceptance may apply to Federal-aid highway 
projects except projects on the Interstate System. If other FHWA 
regulations and title 23, U.S.C., allow, projects not on a Federal-aid 
highway may be administered under the provisions of an accepted State 
certification.
    (b) The CA procedure shall not apply to transportation planning and 
research (23 U.S.C. 134, 135, and 307), highway safety (chapter 4, title 
23, U.S.C.), or those public transportation projects not administered by 
FHWA under title 23, U.S.C.
    (c) A State certification may provide for either full or partial 
coverage of the Federal-aid highway projects, programs, phases of work, 
and classes of projects.



Sec. 640.109  Requirements for certification acceptance.

    (a) Acceptance of either a full or partial coverage State 
certification as described in Sec. 640.107(c) will be based upon:
    (1) A State request and identification of the State laws, 
regulations, directives, and standards that either separately or 
collectively will accomplish the policies and objectives contained in or 
issued pursuant to title 23, U.S.C., and
    (2) An FHWA finding that the State highway/transportation agency has 
the capability to carry out project responsibilities in accordance with 
such State requirements. The FHWA finding will be based on previous 
process reviews and evaluations conducted as part of FHWA's oversight of 
Federal-aid programs and an FHWA evaluation of the State's performance 
and resources. If information from process reviews and that available 
from previous evaluations are considered to be insufficient to form a 
reasonable judgment, they may be supplemented by additional reviews and 
inquiries of the State agency.
    (b) A State certification may be accepted in whole or in part, 
depending on FHWA findings. Where minor deficiencies are found, 
acceptance may be conditioned or may exclude the affected State 
operations until the deficiencies are corrected. Where deficiencies are 
found which are of such magnitude as to create doubt that the policies 
and objectives of title 23, U.S.C., would be accomplished, the State 
certification will not be accepted until the deficiencies are corrected.

[[Page 198]]



Sec. 640.111  Content of State certification.

    (a) The State certification will include the following:
    (1) The name of the State highway/transportation agency and the 
legal authority which permits such agency to accomplish the policies and 
objectives contained in or issued pursuant to title 23, U.S.C.;
    (2) A statement of the programs, phases of work, and classes of 
projects or combinations thereof that the State is including in the 
certification being submitted for acceptance;
    (3) For submissions providing full or partial coverage of projects 
as provided in Sec. 640.107(c), a listing of the title 23, U.S.C., 
policies and objectives and citation of State laws, regulations, 
directives, and standards that will be applied. Any policies and 
objectives that are not applicable due to partial coverage may be 
omitted; and
    (4) A description of the State's methods for assuring local 
government knowledge of and compliance with State and Federal 
requirements where they will perform services on projects administered 
under CA.
    (b) Existing assurances and formal agreements between the State and 
the FHWA with respect to equal employment opportunity, current billing, 
and control of outdoor advertising will continue in full force and 
effect and may be incorporated by reference. Likewise, the State's 
procedures accepted under 23 U.S.C. 109(h) may be incorporated by 
reference.
    (c) State certifications are to be signed by the chief official of 
the State highway/transportation agency and submitted to the FHWA 
Division Administrator.



Sec. 640.113  Procedures.

    (a) Authorization by the FHWA to proceed with work on a CA project 
will be in response to a written request from the State highway/
transportation agency.
    (b) If the State finds that exceptions to CA procedures or standards 
are appropriate on a project, the State will justify and document such 
decisions.
    (c) A project agreement, or modification to a project agreement, 
will be executed as required by 23 CFR Part 630, subpart C, Project 
Agreements.
    (d) The FHWA may accept projects based on inspections of a type and 
frequency necessary to ensure the projects are completed in accordance 
with appropriate standards. The State is to notify the FHWA when a 
project is complete and/or ready for such inspection and will certify 
that the plans, design, and construction for the project were in accord 
with the laws, regulations, directives, and standards contained in the 
State certification or such project exceptions as were approved by the 
State.
    (e) Revisions or amendments to State certifications will be made 
when necessary and processed as provided in Sec. 640.111(c). The 
existing State certification is to be reviewed periodically to determine 
its adequacy in light of this part, the statutes in effect at the time 
of the review, and the operational reviews made by FHWA.

[60 FR 47483, Sept. 13, 1995, as amended at 61 FR 57331, Nov. 6, 1996]



Sec. 640.115  Evaluations.

    (a) The FHWA may conduct periodic evaluations, as deemed 
appropriate, of the State's operations under CA. These evaluations may 
include coverage of any or all areas of the State's administration of CA 
projects.
    (b) If a failure to comply with Federal or State laws occurs and the 
State is unable or unwilling to effect corrective action of the 
deficiency, an evaluation report, including recommendations, will be 
prepared by the FHWA as a basis for considering whether acceptance of 
the State certification should be rescinded under Sec. 640.117.



Sec. 640.117  Rescission of State certification.

    The acceptance of a State certification may be rescinded at any time 
upon request of the State or if considered necessary by the FHWA to 
protect the Federal interest. The rescission may be applied to all or 
part of the programs or projects covered in the State certification.

[[Page 199]]



PART 645--UTILITIES--Table of Contents




     Subpart A--Utility Relocations, Adjustments, and Reimbursement

Sec.
645.101  Purpose.
645.103  Applicability.
645.105  Definitions.
645.107  Eligibility.
645.109  Preliminary engineering.
645.111  Right-of-way.
645.113  Agreements and authorizations.
645.115  Construction.
645.117  Cost development and reimbursement.
645.119  Alternate procedure.

                  Subpart B--Accommodation of Utilities

645.201  Purpose.
645.203  Applicability.
645.205  Policy.
645.207  Definitions.
645.209  General requirements.
645.211  State transportation department accommodation policies.
645.213  Use and occupancy agreements (permits).
645.215  Approvals.

    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 26961 (May 24, 1977).

    Editorial Note: Nomenclature changes to part 645 appear at 65 FR 
70311, Nov. 22, 2000.



     Subpart A--Utility Relocations, Adjustments, and Reimbursement

    Source: 50 FR 20345, May 15, 1985, unless otherwise noted.



Sec. 645.101  Purpose.

    To prescribe the policies, procedures, and reimbursement provisions 
for the adjustment and relocation of utility facilities on Federal-aid 
and direct Federal projects.



Sec. 645.103  Applicability.

    (a) The provisions of this regulation apply to reimbursement claimed 
by a State transportation department (STD) for costs incurred under an 
approved and properly executed transportation department (TD)/utility 
agreement and for payment of costs incurred under all Federal Highway 
Administration (FHWA)/utility agreements.
    (b) Procedures on the accommodation of utilities are set forth in 23 
CFR part 645, subpart B, Accommodation of Utilities.
    (c) When the lines or facilities to be relocated or adjusted due to 
highway construction are privately owned, located on the owner's land, 
devoted exclusively to private use and not directly or indirectly 
serving the public, the provisions of the FHWA's right-of-way procedures 
in 23 CFR 710.203, apply. When applicable, under the foregoing 
conditions, the provisions of this regulation may be used as a guide to 
establish a cost-to-cure.
    (d) The FHWA's reimbursement to the STD will be governed by State 
law (or State regulation) or the provisions of this regulation, 
whichever is more restrictive. When State law or regulation differs from 
this regulation, a determination shall be made by the STD subject to the 
concurrence of the FHWA as to which standards will govern, and the 
record documented accordingly, for each relocation encountered.
    (e) For direct Federal projects, all references herein to the STD or 
TD are inapplicable, and it is intended that the FHWA be considered in 
the relative position of the STD or TD.

[50 FR 20345, May 15, 1985, as amended at 64 FR 71289, Dec. 21, 1999]



Sec. 645.105  Definitions.

    For the purposes of this regulation, the following definitions shall 
apply:
    Authorization--for Federal-aid projects authorization to the STD by 
the FHWA, or for direct Federal projects authorization to the utility by 
the FHWA, to proceed with any phase of a project. The date of 
authorization establishes the date of eligibility for Federal funds to 
participate in the costs incurred on that phase of work.
    Betterment--any upgrading of the facility being relocated that is 
not attributable to the highway construction and is made solely for the 
benefit of and at the election of the utility.
    Cost of relocation--the entire amount paid by or on behalf of the 
utility properly attributable to the relocation after deducting from 
that amount any increase in value of the new facility, and any salvage 
derived from the old facility.

[[Page 200]]

    Cost of Removal--the amount expended to remove utility property 
including the cost of demolishing, dismantling, removing, transporting, 
or otherwise disposing of utility property and of cleaning up to leave 
the site in a neat and presentable condition.
    Cost of salvage--the amount expended to restore salvaged utility 
property to usable condition after its removal.
    Direct Federal projects--highway projects such as projects under the 
Federal Lands Highways Program which are under the direct administration 
of the FHWA.
    Indirect or overhead costs--those costs which are not readily 
identifiable with one specific task, job, or work order. Such costs may 
include indirect labor, social security taxes, insurance, stores 
expense, and general office expenses. Costs of this nature generally are 
distributed or allocated to the applicable job or work orders, other 
accounts and other functions to which they relate. Distribution and 
allocation is made on a uniform basis which is reasonable, equitable, 
and in accordance with generally accepted cost accounting practices.
    Relocation--the adjustment of utility facilities required by the 
highway project. It includes removing and reinstalling the facility, 
including necessary temporary facilities, acquiring necessary right-of-
way on the new location, moving, rearranging or changing the type of 
existing facilities and taking any necessary safety and protective 
measures. It shall also mean constructing a replacement facility that is 
both functionally equivalent to the existing facility and necessary for 
continuous operation of the utility service, the project economy, or 
sequence of highway construction.
    Salvage value--the amount received from the sale of utility property 
that has been removed or the amount at which the recovered material is 
charged to the utility's accounts, if retained for reuse.
    State transportation department--the transportation department of 
one of the 50 States, the District of Columbia, or Puerto Rico.
    Transportation department(TD)--that department, commission, board, 
or official of any State or political subdivison thereof, charged by its 
law with the responsibility for highway administration.
    Use and occupancy agreement--the document (written agreement or 
permit) by which the TD approves the use and occupancy of highway right-
of-way by utility facilities or private lines.
    Utility--a privately, publicly, or cooperatively owned line, 
facility or system for producing, transmitting, or distributing 
communications, cable television, power, electricity, light, heat, gas, 
oil, crude products, water, steam, waste, storm water not connected with 
highway drainage, or any other similar commodity, including any fire or 
police signal system or street lighting system, which directly or 
indirectly serves the public. The term utility shall also mean the 
utility company inclusive of any wholly owned or controlled subsidiary.
    Work order system--a procedure for accumulating and recording into 
separate accounts of a utility all costs to the utility in connection 
with any change in its system or plant.

[50 FR 20345, May 15, 1985, as amended at 65 FR 70311, Nov. 22, 2000]



Sec. 645.107  Eligibility.

    (a) When requested by the STD, Federal funds may participate, 
subject to the provisions of Sec. 645.103(d) of this part and at the pro 
rata share applicable, in an amount actually paid by an TD for the costs 
of utility relocations. Federal funds may participate in safety 
corrective measures made under the provisions of Sec. 645.107(k) of this 
part. Federal funds may also participate for relocations necessitated by 
the actual construction of highway project made under one or more of the 
following conditions when:
    (1) The STD certifies that the utility has the right of occupancy in 
its existing location because it holds the fee, an easement, or other 
real property interest, the damaging or taking of which is compensable 
in eminent domain,
    (2) The utility occupies privately or publicly owned land, including 
public road or street right-of-way, and the STD certifies that the 
payment by the TD is made pursuant to a law authorizing such payment in 
conformance

[[Page 201]]

with the provisions of 23 U.S.C. 123, and/or
    (3) The utility occupies publicy owned land, including public road 
and street right-of-way, and is owned by a public agency or political 
subdivision of the State, and is not required by law or agreement to 
move at its own expense, and the STD certifies that the TD has the legal 
authority or obligation to make such payments.
    (b) On projects which the STD has the authority to participate in 
project costs, Federal funds may not participate in payments made by a 
political subdivision for relocation of utility facilities, other than 
those proposed under the provisions of Sec. 645.107(k) of this part, 
when State law prohibits the STD from making payment for relocation of 
utility facilities.
    (c) On projects which the STD does not have the authority to 
participate in project costs, Federal funds may participate in payments 
made by a political subdivision for relocation of utility facilities 
necessitated by the actual construction of a highway project when the 
STD certifies that such payment is based upon the provisions of 
Sec. 645.107(a) of this part and does not violate the terms of a use and 
occupancy agreement, or legal contract, between the utility and the TD 
or for utility safety corrective measures under the provisions of 
Sec. 645.107(k) of this part.
    (d) Federal funds are not eligible to participate in any costs for 
which the utility contributes or repays the TD, except for utilities 
owned by the political subdivision on projects which qualify under the 
provisions of Sec. 645.107(c) of this part in which case the costs of 
the utility are considered to be costs of the TD.
    (e) The FHWA may deny Federal fund participation in any payments 
made by a TD for the relocation of utility facilities when such payments 
do not constitute a suitable basis for Federal fund participation under 
the provisions of title 23 U.S.C.
    (f) The rights of any public agency or political subdivision of a 
State under contract, franchise, or other instrument or agreement with 
the utility, pertaining to the utility's use and occupancy of publicly 
owned land, including public road and street right-of-way, shall be 
considered the rights of the STD in the absence of State law to the 
contrary.
    (g) In lieu of the individual certifications required by 
Sec. 645.107(a) and (c), the STD may file a statement with the FHWA 
setting forth the conditions under which the STD will make payments for 
the relocation of utility facilities. The FHWA may approve Federal fund 
participation in utility relocations proposed by the STD under the 
conditions of the statement when the FHWA has made an affirmative 
finding that such statement and conditions form a suitable basis for 
Federal fund participation under the provisions of 23 U.S.C. 123.
    (h) Federal funds may not participate in the cost of relocations of 
utility facilities made solely for the benefit or convenience of a 
utility, its contractor, or a highway contractor.
    (i) When the advance installation of new utility facilities crossing 
or otherwise occupying the proposed right-of-way of a planned highway 
project is underway, or scheduled to be underway, prior to the time such 
right-of-way is purchased by or under control of the TD, arrangements 
should be made for such facilities to be installed in a manner that will 
meet the requirements of the planned highway project. Federal funds are 
eligible to participate in the additional cost incurred by the utility 
that are attributable to, and in accommodation of, the highway project 
provided such costs are incurred subsequent to authorization of the work 
by the FHWA. Subject to the other provisions of this regulation, Federal 
participation may be approved under the foregoing circumstances when it 
is demonstrated that the action taken is necessary to protect the public 
interest and the adjustment of the facility is necessary by reason of 
the actual construction of the highway project.
    (j) Federal funds are eligible to participate in the costs of 
preliminary engineering and allied services for utilities, the 
acquisition of replacement right-of-way for utilities, and the physical 
construction work associated with utility relocations. Such costs must 
be incurred by or on behalf of a utility

[[Page 202]]

after the date the work is included in an approved program and after the 
FHWA has authorized the STD to proceed in accordance with 23 CFR part 
630, subpart A, Federal-Aid Programs Approval and Project Authorization.
    (k) Federal funds may participate in projects solely for the purpose 
of implementing safety corrective measures to reduce the roadside 
hazards of utility facilities to the highway user. Safety corrective 
measures should be developed in accordance with the provisions of 23 CFR 
645.209(k).

(Information collection requirements in paragraph (g) were approved by 
the Office of Management and Budget under control number 2125-0515)

[50 FR 20345, May 15, 1985, as amended at 53 FR 24932, July 1, 1988]



Sec. 645.109  Preliminary engineering.

    (a) As mutually agreed to by the TD and utility, and subject to the 
provisions of paragraph (b) of this section, preliminary engineering 
activities associated with utility relocation work may be done by:
    (1) The TD's or utility's engineering forces;
    (2) An engineering consultant selected by the TD, after consultation 
with the utility, the contract to be administered by the TD; or,
    (3) An engineering consultant selected by the utility, with the 
approval of the TD, the contract to be administered by the utility.
    (b) When a utility is not adequately staffed to pursue the necessary 
preliminary engineering and related work for the utility relocation, 
Federal funds may participate in the amount paid to engineers, 
architects, and others for required engineering and allied services 
provided such amounts are not based on a percentage of the cost of 
relocation. When Federal participation is requested by the STD in the 
cost of such services, the utility and its consultant shall agree in 
writing as to the services to be provided and the fees and arrangements 
for the services. Federal funds may participate in the cost of such 
services performed under existing written continuing contracts when it 
is demonstrated that such work is performed regularly for the utility in 
its own work and that the costs are reasonable.
    (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.

[50 FR 20345, May 15, 1985, as amended at 60 FR 34850, July 5, 1995; 65 
FR 70311, Nov. 22, 2000]



Sec. 645.111  Right-of-way.

    (a) Federal participation may be approved for the cost of 
replacement right-of-way provided:
    (1) The utility has the right of occupancy in its existing location 
beause it holds the fee, an easement, or another real property interest, 
the damaging or taking of which is compensable in eminent domain, or the 
acquisition is made in the interest of project economy or is necessary 
to meet the requirements of the highway project, and
    (2) There will be no charge to the project for that portion of the 
utility's existing right-of-way being transferred to the TD for highway 
purposes.
    (b) The utility shall determine and make a written valuation of the 
replacement right-of-way that it acquires in order to justify amounts 
paid for such right-of-way. This written valuation shall be accomplished 
prior to negotiation for acquisition.
    (c) Acquisition of replacement right-of-way by the TD on behalf of a 
utility or acquisition of nonoperating real property from a utility 
shall be in accordance with the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.) and 
applicable right-of-way procedures in 23 CFR 710.203.
    (d) When the utility has the right-of-occupancy in its existing 
location because it holds the fee, an easement, or another real property 
interest, and it is not necessary by reason of the highway construction 
to adjust or replace the facilities located thereon, the taking of and 
damage to the utility's real property, including the disposal or removal 
of such facilities, may be considered a right-of-way transaction in 
accordance with provisions of the applicable right-of-way procedures in 
23 CFR 710.203.

[50 FR 20345, May 15, 1985, as amended at 64 FR 71289, Dec. 21, 1999]

[[Page 203]]



Sec. 645.113  Agreements and authorizations.

    (a) On Federal-aid and direct Federal projects involving utility 
relocations, the utility and the TD shall agree in writing on their 
separate responsibilities for financing and accomplishing the relocation 
work. When Federal participation is requested, the agreement shall 
incorporate this regulation by reference and designate the method to be 
used for performing the work (by contract or force account) and for 
developing relocation costs. The method proposed by the utility for 
developing relocation costs must be acceptable to both the TD and the 
FHWA. The preferred method for the development of relocation costs by a 
utility is on the basis of actual direct and related indirect costs 
accumulated in accordance with a work order accounting procedure 
prescribed by the applicable Federal or State regulatory body.
    (b) When applicable, the written agreement shall specify the terms 
and amounts of any contribution or repayments made or to be made by the 
utility to the TD in connection with payments by the TD to the utility 
under the provisions of Sec. 645.107 of this regulation.
    (c) The agreement shall be supported by plans, specifications when 
required, and itemized cost estimates of the work agreed upon, including 
appropriate credits to the project, and shall be sufficiently 
informative and complete to provide the TD and the FHWA with a clear 
description of the work required.
    (d) When the relocation involves both work to be done at the TD's 
expense and work to be done at the expense of the utility, the written 
agreement shall state the share to be borne by each party.
    (e) In the event there are changes in the scope of work, extra work 
or major changes in the planned work covered by the approved agreement, 
plans, and estimates, Federal participation shall be limited to costs 
covered by a modification of the agreement, a written change, or extra 
work order approved by the TD and the FHWA.
    (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.
    (g) Except as otherwise provided by Sec. 645.113(h), authorization 
by the FHWA to the STD to proceed with the physical relocation of a 
utility's facilities may be given after:
    (1) The utility relocation work, or the right-of-way, or physical 
construction phase of the highway construction work is included in an 
approved Statewide transportation improvement program,
    (2) The appropriate environmental evaluation and public hearing 
procedures required by 23 CFR part 771, Environmental Impact and Related 
Procedures, have been satisfied.
    (3) The FHWA has reviewed and approved the plans, estimates, and 
proposed or executed agreements for the utility work and is furnished a 
schedule for accomplishing the work.
    (h) The FHWA may authorize the physical relocation of utility 
facilities before the requirements of Sec. 645.113(g)(2) are satisfied 
when the relocation or adjustment of utility facilities meets the 
requirements of Sec. 645.107(i) of this regulation.
    (i) Whenever the FHWA has authorized right-of-way acquisition under 
the hardship and protective buying provisions of 23 CFR 710.503, the 
FHWA may authorize the physical relocation of utility facilities located 
in whole or in part on such right-of-way.
    (j) When all efforts by the TD and utility fail to bring about 
written agreement of their separate responsibilities under the 
provisions of this regulation, the STD shall submit its proposal and a 
full report of the circumstances to the FHWA. Conditional authorizations 
for the relocation work to proceed may be given by the FHWA to the STD 
with the understanding that Federal funds will not be paid for work done 
by the utility until the STD proposal has been approved by the FHWA.
    (k) The FHWA will consider for approval any special procedure under 
State law, or appropriate administrative or judicial order, or under 
blanket

[[Page 204]]

master agreements with the utilities, that will fully accomplish all of 
the foregoing objectives and accelerate the advancement of the 
construction and completion of projects.

[50 FR 20345, May 15, 1985, as amended at 60 FR 34850, July 5, 1995; 64 
FR 71289, Dec. 21, 1999; 65 FR 70311, Nov. 22, 2000]



Sec. 645.115  Construction.

    (a) Part 635, subpart B, of this title, Force Account Construction 
(justification required for force account work), states that it is cost-
effective for certain utility adjustments to be performed by a utility 
with its own forces and equipment, provided the utility is qualified to 
perform the work in a satisfactory manner. This cost-effectiveness 
finding covers minor work on the utility's existing facilities routinely 
performed by the utility with its own forces. When the utility is not 
adequately staffed and equipped to perform such work with its own forces 
and equipment at a time convenient to and in coordination with the 
associated highway construction, such work may be done by:
    (1) A contract awarded by the TD or utility to the lowest qualified 
bidder based on appropriate solicitation,
    (2) Inclusion as part of the TD's highway construction contract let 
by the TD as agreed to by the utility,
    (3) An existing continuing contract, provided the costs are 
reasonable, or
    (4) A contract for low-cost incidental work, such as tree trimming 
and the like, awarded by the TD or utility without competitive bidding, 
provided the costs are reasonable.
    (b) When it has been determined under part 635, subpart B, that the 
force account method is not the most cost-effective means for 
accomplishing the utility adjustment, such work is to be done under 
competitive bid contracts as described in Sec. 645.115(a) (1) and (2) or 
under an existing continuing contract provided it can be demonstrated 
this is the most cost-effective method.
    (c) Costs for labor, materials, equipment, and other services 
furnished by the utility shall be billed by the utility directly to the 
TD. The special provisions of contracts let by the utility or the TD 
shall be explicit in this respect. The costs of force account work 
performed for the utility by the TD and of contract work performed for 
the utility under a contract let by the TD shall be reported separately 
from the costs of other force account and contract items on the highway 
project.



Sec. 645.117  Cost development and reimbursement.

    (a) Developing and recording costs. (1) All utility relocation costs 
shall be recorded by means of work orders in accordance with an approved 
work order system except when another method of developing and recording 
costs, such as lump-sum agreement, has been approved by the TD and the 
FHWA. Except for work done under contracts, the individual and total 
costs properly reported and recorded in the utility's accounts in 
accordance with the approved method for developing such costs, or the 
lump-sum agreement, shall constitute the maximum amount on which Federal 
participation may be based.
    (2) Each utility shall keep its work order system or other approved 
accounting procedure in such a manner as to show the nature of each 
addition to or retirement from a facility, the total costs thereof, and 
the source or sources of cost. Separate work orders may be issued for 
additions and retirements. Retirements, however, may be included with 
the construction work order provided that all items relating to 
retirements shall be kept separately from those relating to 
construction.
    (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

[[Page 205]]

the FHWA is required for any costing method used other than actual cost.
    (b) Direct labor costs. (1) Salaries and wages, at actual or average 
rates, and related expenses paid by the utility to individuals for the 
time worked on the project are reimbursable when supported by adequate 
records. This includes labor associated with preliminary engineering, 
construction engineering, right-of-way, and force account construction.
    (2) Salaries and expenses paid to individuals who are normally part 
of the overhead organization of the utility may be reimbursed for the 
time worked directly on the project when supported by adequate records 
and when the work performed by such individuals is essential to the 
project and could not have been accomplished as economically by 
employees outside the overhead organization.
    (3) Amounts paid to engineers, architects and others for services 
directly related to projects may be reimbursed.
    (c) Labor surcharges. (1) Labor surcharges include worker 
compensation insurance, public liability and property damage insurance, 
and such fringe benefits as the utility has established for the benefit 
of its employees. The cost of labor surcharges will be reimbursed at 
actual cost to the utility, or, at the option of the utility, average 
rates which are representative of actual costs may be used in lieu of 
actual costs if approved by the STD and the FHWA. These average rates 
should be adjusted at least once annually to take into account known 
anticipated changes and correction for any over or under applied costs 
for the preceding period.
    (2) When the utility is a self-insurer, there may be reimbursement 
at experience rates properly developed from actual costs. The rates 
cannot exceed the rates of a regular insurance company for the class of 
employment covered.
    (d) Overhead and indirect construction costs. (1) Overhead and 
indirect construction costs not charged directly to work order or 
construction accounts may be allocated to the relocation provided the 
allocation is made on an equitable basis. All costs included in the 
allocation shall be eligible for Federal reimbursement, reasonable, 
actually incurred by the utility, and consistent with the provisions of 
48 CFR part 31.
    (2) Costs not eligible for Federal reimbursement include, but are 
not limited to, the costs associated with advertising, sales promotion, 
interest on borrowings, the issuance of stock, bad debts, uncollectible 
accounts receivable, contributions, donations, entertainment, fines, 
penalties, lobbying, and research programs.
    (3) The records supporting the entries for overhead and indirect 
construction costs shall show the total amount, rate, and allocation 
basis for each additive, and are subject to audit by representatives of 
the State and Federal Government.
    (e) Material and supply costs. (1) Materials and supplies, if 
available, are to be furnished from company stock except that they may 
be obtained from other sources near the project site when available at a 
lower cost. When not available from company stock, they may be purchased 
either under competitive bids or existing continuing contracts under 
which the lowest available prices are developed. Minor quantities of 
materials and supplies and proprietary products routinely used in the 
utility's operation and essential for the maintenance of system 
compatibility may be excluded from these requirements. The utility shall 
not be required to change its existing standards for materials used in 
permanent changes to its facilities. Costs shall be determined as 
follows:
    (i) Materials and supplies furnished from company stock shall be 
billed at the current stock prices for such new or used materials at 
time of issue.
    (ii) Materials and supplies not furnished from company stock shall 
be billed at actual costs to the utility delivered to the project site.
    (iii) A reasonable cost for plant inspection and testing may be 
included in the costs of materials and supplies when such expense has 
been incurred. The computation of actual costs of materials and supplies 
shall include the deduction of all offered discounts, rebates, and 
allowances.
    (iv) The cost of rehabilitating rather than replacing existing 
utility facilities to meet the requirements of a

[[Page 206]]

project is reimbursable, provided this cost does not exceed replacement 
costs.
    (2) Materials recovered from temporary use and accepted for reuse by 
the utility shall be credited to the project at prices charged to the 
job, less a considertion for loss in service life at 10 percent. 
Materials recovered from the permanent facility of the utility that are 
accepted by the utility for return to stock shall be credited to the 
project at the current stock prices of such used materials. Materials 
recovered and not accepted for reuse by the utility, if determined to 
have a net sale value, shall be sold to the highest bidder by the TD or 
utility following an opportunity for TD inspection and appropriate 
solicitation for bids. If the utility practices a system of periodic 
disposal by sale, credit to the project shall be at the going prices 
supported by records of the utility.
    (3) Federal participation may be approved for the total cost of 
removal when either such removal is required by the highway construction 
or the existing facilities cannot be abandoned in place for aesthetic or 
safety reasons. When the utility facilities can be abandoned in place 
but the utility or highway constructor elects to remove and recover the 
materials, Federal funds shall not participate in removal costs which 
exceed the value of the materials recovered.
    (4) The actual and direct costs of handling and loading materials 
and supplies at company stores or material yards, and of unloading and 
handling recovered materials accepted by the utility at its stores or 
material yards are reimbursable. In lieu of actual costs, average rates 
which are representative of actual costs may be used if approved by the 
STD and the FHWA. These average rates should be adjusted at least once 
annually to take into account known anticipated changes and correction 
for any over or under applied costs for the preceding period. At the 
option of the utility, 5 percent of the amounts billed for the materials 
and supplies issued from company stores and material yards or the value 
of recovered materials will be reimbursed in lieu of actual or average 
costs for handling.
    (f) Equipment costs. The average or actual costs of operation, minor 
maintenance, and depreciation of utility-owned equipment may be 
reimbursed. Reimbursement for utility-owned vehicles may be made at 
average or actual costs. When utility-owned equipment is not available, 
reimbursement will be limited to the amount of rental paid (1) to the 
lowest qualified bidder, (2) under existing continuing contracts at 
reasonable costs, or (3) as an exception by negotiation when paragraph 
(f) (1) and (2) of this section are impractical due to project location 
or schedule.
    (g) Transportation costs. (1) The utility's cost, consistent with 
its overall policy, of necessary employee transportation and subsistence 
directly attributable to the project is reimbursable.
    (2) Reasonable cost for the movement of materials, supplies, and 
equipment to the project and necessary return to storage including the 
associated cost of loading and unloading equipment is reimbursable.
    (h) Credits. (1) Credit to the highway project will be required for 
the cost of any betterments to the facility being replaced or adjusted, 
and for the salvage value of the materials removed.
    (2) Credit to the highway project will be required for the accrued 
depreciation of a utility facility being replaced, such as a building, 
pumping station, filtration plant, power plant, substation, or any other 
similar operational unit. Such accrued depreciation is that amount based 
on the ratio between the period of actual length of service and total 
life expectancy applied to the original cost. Credit for accrued 
depreciation shall not be required for a segment of the utility's 
service, distribution, or transmission lines.
    (3) No betterment credit is required for additions or improvements 
which are:
    (i) Required by the highway project,
    (ii) Replacement devices or materials that are of equivalent 
standards although not identical,
    (iii) Replacement of devices or materials no longer regularly 
manufactured with next highest grade or size,
    (iv) Required by law under governmental and appropriate regulatory 
commission code, or

[[Page 207]]

    (v) Required by current design practices regularly followed by the 
company in its own work, and there is a direct benefit to the highway 
project.
    (4) When the facilities, including equipment and operating 
facilities, described in Sec. 645.117(h)(2) are not being replaced, but 
are being rehabilitated and/or moved, as necessitated by the highway 
project, no credit for accrued depreciation is needed.
    (5) In no event will the total of all credits required under the 
provisions of this regulation exceed the total costs of adjustment 
exclusive of the cost of additions or improvements necessitated by the 
highway construction.
    (i) Billings. (1) After the executed TD/utility agreement has been 
approved by the FHWA, the utility may be reimbursed through the STD by 
progress billings for costs incurred. Cost for materials stockpiled at 
the project site or specifically purchased and delivered to the utility 
for use on the project may also be reimbursed on progress billings 
following approval of the executed TD/utility agreement.
    (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.
    (3) All utility cost records and accounts relating to the project 
are subject to audit by representatives of the State and Federal 
Government for a period of 3 years from the date final payment has been 
received by the utility.

(Information collection requirements in paragraph (i) were approved by 
the Office of Management and Budget under control number 2125-0159)

[50 FR 20345, May 15, 1985, as amended at 60 FR 34850, July 5, 1995; 65 
FR 70311, Nov. 22, 2000]



Sec. 645.119  Alternate procedure.

    (a) This alternate procedure is provided to simplify the processing 
of utility relocations or adjustments under the provisions of this 
regulation. Under this procedure, except as otherwise provided in 
paragraph (b) of this section, the STD is to act in the relative 
position of the FHWA for reviewing and approving the arrangements, fees, 
estimates, plans, agreements, and other related matters required by this 
regulation as prerequisites for authorizing the utility to proceed with 
and complete the work.
    (b) The scope of the STD's approval authority under the alternate 
procedure includes all actions necessary to advance and complete all 
types of utility work under the provisions of this regulation except in 
the following instances:
    (1) Utility relocations and adjustments involving major transfer, 
production, and storage facilities such as generating plants, power feed 
stations, pumping stations and reservoirs.
    (2) Utility relocations falling within the scope of Sec. 645.113 
(h), (i), and (j), and Sec. 645.107(i) of this regulation.
    (c) To adopt the alternate procedure, the STD must file a formal 
application for approval by the FHWA. The application must include the 
following:
    (1) The STD's written policies and procedures for administering and 
processing Federal-aid utility adjustments. Those policies and 
procedures must make adequate provisions with respect to the following:
    (i) Compliance with the requirements of this regulation, except as 
otherwise provided by Sec. 645.119(b), and the provisions of 23 CFR part 
645, subpart B, Accommodation of Utilities.
    (ii) Advance utility liaison, planning, and coordination measures 
for providing adequate lead time and early scheduling of utility 
relocation to minimize interference with the planned highway 
construction.
    (iii) Appropriate administrative, legal, and engineering review and 
coordination procedures as needed to establish the legal basis of the 
TD's payment; the extent of eligibility of the work under State and 
Federal laws and regulations; the more restrictive payment standards 
under Sec. 645.103(d) of this

[[Page 208]]

regulation; the necessity of the proposed utility work and its 
compatibility with proposed highway improvements; and the uniform 
treatment of all utility matters and actions, consistent with sound 
management practices.
    (iv) Documentation of actions taken in compliance with STD policies 
and the provisions of this regulation, shall be retained by the STD.
    (2) A statement signed by the chief administrative officer of the 
STD certifying that:
    (i) Federal-aid utility relocations will be processed in accordance 
with the applicable provisions of this regulation, and the STD's utility 
policies and procedures submitted under Sec. 645.119(c)(1).
    (ii) Reimbursement will be requested only for those costs properly 
attributable to the proposed highway construction and eligible for 
participation under the provisions of this regulation.
    (d) The STD's application and any changes to it will be submitted to 
the FHWA for review and approval.
    (e) After the alternate procedure has been approved, the FHWA may 
authorize the STD to proceed with utility relocation on a project in 
accordance with the certification, subject to the following conditions:
    (1) The utility work must be included in an approved program.
    (2) The STD must submit a request in writing for such authorization. 
The request shall include a list of the utility relocations to be 
processed under the alternate procedure, along with the best available 
estimate of the total costs involved.
    (f) The FHWA may suspend approval of the alternate procedure when 
any FHWA review discloses noncompliance with the certification. Federal 
funds will not participate in relocation costs incurred that do not 
comply with the requirements under Sec. 645.119(c)(1).

(Information collection requirements in paragraph (c) were approved by 
the Office of Management and Budget under control number 2125-0533)

[50 FR 20345, May 15, 1985, as amended at 65 FR 70311, Nov. 22, 2000]



                  Subpart B--Accommodation of Utilities

    Source: 50 FR 20354, May 15, 1985, unless otherwise noted.



Sec. 645.201  Purpose.

    To prescribe policies and procedures for accommodating utility 
facilities and private lines on the right-of-way of Federal-aid or 
direct Federal highway projects.



Sec. 645.203  Applicability.

    This subpart applies to:
    (a) New utility installations within the right-of-way of Federal-aid 
or direct Federal highway projects,
    (b) Existing utility facilities which are to be retained, relocated, 
or adjusted within the right-of-way of active projects under development 
or construction when Federal-aid or direct Federal highway funds are 
either being or have been used on the involved highway facility. When 
existing utility installations are to remain in place without 
adjustments on such projects the transportation department and utility 
are to enter into an appropriate agreement as discussed in Sec. 645.213 
of this part,
    (c) Existing utility facilities which are to be adjusted or 
relocated under the provisions of Sec. 645.209(k), and
    (d) Private lines which may be permitted to cross the right-of-way 
of a Federal-aid or direct Federal highway project pursuant to State law 
and regulations and the provisions of this subpart. Longitudinal use of 
such right-of-way by private lines is to be handled under the provisions 
of 23 CFR 1.23(c).



Sec. 645.205  Policy.

    (a) Pursuant to the provisions of 23 CFR 1.23, it is in the public 
interest for utility facilities to be accommodated on the right-of-way 
of a Federal-aid or direct Federal highway project when such use and 
occupancy of the highway right-of-way do not adversely affect highway or 
traffic safety, or otherwise impair the highway or its aesthetic 
quality, and do not conflict with the provisions of Federal, State or 
local laws or regulations.

[[Page 209]]

    (b) Since by tradition and practice highway and utility facilities 
frequently coexist within common right-of-way or along the same 
transportation corridors, it is essential in such situations that these 
public service facilities be compatibly designed and operated. In the 
design of new highway facilities consideration should be given to 
utility service needs of the area traversed if such service is to be 
provided from utility facilities on or near the highway. Similarly the 
potential impact on the highway and its users should be considered in 
the design and location of utility facilities on or along highway right-
of-way. Efficient, effective and safe joint highway and utility 
development of transportation corridors is important along high speed 
and high volume roads, such as major arterials and freeways, 
particularly those approaching metropolitan areas where space is 
increasingly limited. Joint highway and utility planning and development 
efforts are encouraged on Federal-aid highway projects.
    (c) The manner is which utilities cross or otherwise occupy the 
right-of-way of a direct Federal or Federal-aid highway project can 
materially affect the highway, its safe operation, aesthetic quality, 
and maintenance. Therefore, it is necessary that such use and occupancy, 
where authorized, be regulated by transportation departments in a manner 
which preserves the operational safety and the functional and aesthetic 
quality of the highway facility. This subpart shall not be construed to 
alter the basic legal authority of utilities to install their facilities 
on public highways pursuant to law or franchise and reasonable 
regulation by transportation departments with respect to location and 
manner of installation.
    (d) When utilities cross or otherwise occupy the right-of-way of a 
direct Federal or Federal-aid highway project on Federal lands, and when 
the right-of-way grant is for highway purposes only, the utility must 
also obtain and comply with the terms of a right-of-way or other 
occupancy permit for the Federal agency having jurisdiction over the 
underlying land.

[50 FR 20354, May 15, 1985, as amended at 53 FR 2833, Feb. 2, 1988]



Sec. 645.207  Definitions.

    For the purpose of this regulation, the following definitions shall 
apply:
    Aesthetic quality--those desirable characteristics in the appearance 
of the highway and its environment, such as harmony between or blending 
of natural and manufactured objects in the environment, continuity of 
visual form without distracting interruptions, and simplicity of designs 
which are desirably functional in shape but without clutter.
    Border area--the area between the traveled way and the right-of-way 
line.
    Clear roadside policy--that policy employed by a transportation 
department to provide a clear zone in order to increase safety, improve 
traffic operations, and enhance the aesthetic quality of highways by 
designing, constructing and maintaining highway roadsides as wide, flat, 
and rounded as practical and as free as practical from natural or 
manufactured hazards such as trees, drainage structures, nonyielding 
sign supports, highway lighting supports, and utility poles and other 
ground-mounted structures. The policy should address the removal of 
roadside obstacles which are likely to be associated with accident or 
injury to the highway user, or when such obstacles are essential, the 
policy should provide for appropriate countermeasures to reduce hazards. 
Countermeasures include placing utility facilities at locations which 
protect out-of-control vehicles, using breakaway features, using impact 
attenuation devices, or shielding. In all cases full consideration shall 
be given to sound engineering principles and economic factors.
    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

[[Page 210]]

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.
    Direct Federal highway projects--those active or completed highway 
projects such as projects under the Federal Lands Highways Program which 
are under the direct administration of the Federal Highway 
Administration (FHWA)
    Federal-aid highway projects--those active or completed highway 
projects administered by or through a State transportation department 
which involve or have involved the use of Federal-aid highway funds for 
the development, acquisition of right-of-way, construction or 
improvement of the highway or related facilities, including highway 
beautification projects under 23 U.S.C. 319, Landscaping and Scenic 
Enhancement.
    Freeway--a divided arterial highway with full control of access.
    Highway--any public way for vehicular travel, including the entire 
area within the right-of-way and related facilities constructed or 
improved in whole or in part with Federal-aid or direct Federal highway 
funds.
    Transportation department--that department, agency, commission, 
board, or official of any State or political subdivision thereof, 
charged by its law with the responsibility for highway administration.
    Private lines--privately owned facilities which convey or transmit 
the commodities outlined in the definition of utility facility of this 
section, but devoted exclusively to private use.
    Right-of-way--real property, or interests therein, acquired, 
dedicated or reserved for the construction, operation, and maintenance 
of a highway in which Federal-aid or direct Federal highway funds are or 
have been involved in any stage of development. Lands acquired under 23 
U.S.C. 319 shall be considered to be highway right-of-way.
    State transportation department--the transportation department of 
one of the 50 States, the District of Columbia, or Puerto Rico.
    Use and occupancy agreement--the document (written agreement or 
permit) by which the transportation department approves the use and 
occupancy of highway right-of-way by utility facilities or private 
lines.
    Utility facility--privately, publicly or cooperatively owned line, 
facility, or system for producing, transmitting, or distributing 
communications, cable television, power, electricity, light, heat, gas, 
oil, crude products, water, steam, waste, storm water not connected with 
highway drainage, or any other similar commodity, including any fire or 
police signal system or street lighting system, which directly or 
indirectly serves the public. The term utility shall also mean the 
utility company inclusive of any substantially owned or controlled 
subsidiary. For the purposes of this part, the term includes those 
utility-type facilities which are owned or leased by a government agency 
for its own use, or otherwise dedicated solely to governmental use. The 
term utility includes those facilities used solely by the utility which 
are a part of its operating plant.

[50 FR 20345, May 15, 1985, as amended at 51 FR 16834, May 7, 1986; 53 
FR 2833, Feb. 2, 1988; 55 FR 25828, June 25, 1990; 60 FR 34850, July 5, 
1995; 61 FR 12022, Mar. 25, 1996; 65 FR 70311, Nov. 22, 2000]



Sec. 645.209  General requirements.

    (a) Safety. Highway safety and traffic safety are of paramount, but 
not of sole, importance when accommodating utility facilities within 
highway right-of-way. Utilities provide an essential public service to 
the general public. Traditionally, as a matter of sound economic public 
policy and law, utilities have used public road right-of-way for 
transmitting and distributing their services. The lack of sufficient 
right-of-way width to accommodate utilities outside the desirable clear 
zone, in and of itself, is not a valid reason to preclude utilities from 
occupying the highway right-of-way. However, due to

[[Page 211]]

the nature and volume of highway traffic, the effect of such joint use 
on the traveling public must be carefully considered by transportation 
departments before approval of utility use of the right-of-way of 
Federal-aid or direct Federal highway projects is given. Adjustments in 
the operating characteristics of the utility or the highway or other 
special efforts may be necessary to increase the compatibility of 
utility-highway joint use. The possibility of this joint use should be a 
consideration in establishing right-of-way requirements for highway 
projects. In any event, the design, location, and manner in which 
utilities use and occupy the right-of-way of Federal-aid or direct 
Federal highway projects must conform to the clear roadside policies for 
the highway involved and otherwise provide for a safe traveling 
environment as required by 23 U.S.C. 109(l)(1).
    (b) New above ground installations. On Federal-aid or direct Federal 
highway projects, new above ground utility installations, where 
permitted, shall be located as far from the traveled way as possible, 
preferably along the right-of-way line. No new above ground utility 
installations are to be allowed within the established clear zone of the 
highway unless a determination has been made by the transportation 
department that placement underground is not technically feasible or is 
unreasonably costly and there are no feasible alternate locations. In 
exceptional situations when it is essential to locate such above ground 
utility facilities within the established clear zone of the highway, 
appropriate countermeasures to reduce hazards shall be used. 
Countermeasures include placing utility facilities at locations which 
protect or minimize exposure to out-of-control vehicles, using breakaway 
features, using impact attenuation devices, using delineation, or 
shielding.
    (c) Installations within freeways. (1) Each State transportation 
department shall submit an accommodation plan in accordance with 
Secs. 645.211 and 645.215 which addresses how the State transportation 
department will consider applications for longitudinal utility 
installations within the access control lines of a freeway. This 
includes utility installations within interchange areas which must be 
constructed or serviced by direct access from the main lanes or ramps. 
If a State transportation department elects to permit such use, the plan 
must address how the State transportation department will oversee such 
use consistent with this subpart, Title 23 U.S.C., and the safe and 
efficient use of the highways.
    (2) Any accommodation plan shall assure that installations satisfy 
the following criteria:
    (i) The effects utility installations will have on highway and 
traffic safety will be ascertained, since in no case shall any use be 
permitted which would adversely affect safety.
    (ii) The direct and indirect environmental and economic effects of 
any loss of productive agricultural land or any productivity of any 
agricultural land which would result from the disapproval of the use of 
such right-of-way for accommodation of such utility facility will be 
evaluated.
    (iii) These environmental and economic effects together with any 
interference with or impairment of the use of the highway in such right-
of-way which would result from the use of such right-of-way for the 
accommodation of such utility facility will be considered.
    (iv) [Reserved]
    (v) A utility strip will be established along the outer edge of the 
right-of-way by locating a utility access control line between the 
proposed utility installation and the through roadway and ramps. 
Existing fences should be retained and, except along sections of 
freeways having frontage roads, planned fences should be located at the 
freeway right-of-way line. The State or political subdivision is to 
retain control of the utility strip right-of-way including its use by 
utility facilities. Service connections to adjacent properties shall not 
be permitted from within the utility strip.
    (3) Nothing in this part shall be construed as prohibiting a 
transportation department from adopting a more restrictive policy than 
that contained herein with regard to longitudinal utility installations 
along freeway right-of-way and access for constructing and/or for 
servicing such installations.

[[Page 212]]

    (d) Uniform policies and procedures. For a transportation department 
to fulfill its responsibilities to control utility use of Federal-aid 
highway right-of-way within the State and its political subdivisions, it 
must exercise or cause to be exercised, adequate regulation over such 
use and occupancy through the establishment and enforcement of 
reasonably uniform policies and procedures for utility accommodation.
    (e) Private lines. Because there are circumstances when private 
lines may be allowed to cross or otherwise occupy the right-of-way of 
Federal-aid projects, transportation departments shall establish uniform 
policies for properly controlling such permitted use. When permitted, 
private lines must conform to the provisions of this part and the 
provisions of 23 CFR 1.23(c) for longitudinal installations.
    (f) Direct Federal highway projects. On direct Federal highway 
projects, the FHWA will apply, or cause to be applied, utility and 
private line accommodation policies similar to those required on 
Federal-aid highway projects. When appropriate, agreements will be 
entered into between the FHWA and the transportation department or other 
government agencies to ensure adequate control and regulation of use by 
utilities and private lines of the right-of-way on direct Federal 
highway projects.
    (g) Projects where state lacks authority. On Federal-aid highway 
projects where the State transportation department does not have legal 
authority to regulate highway use by utilities and private lines, the 
State transportation department must enter into formal agreements with 
those local officials who have such authority. The agreements must 
provide for a degree of protection to the highway at least equal to the 
protection provided by the State transportation department's utility 
accommodation policy approved under the provisions of Sec. 645.215(b) of 
this part. The project agreement between the State transportation 
department and the FHWA on all such Federal-aid highway projects shall 
contain a special provision incorporating the formal agreements with the 
responsible local officials.
    (h) Scenic areas. New utility installations, including those needed 
for highway purposes, such as for highway lighting or to serve a weigh 
station, rest area or recreation area, are not permitted on highway 
right-of-way or other lands which are acquired or improved with Federal-
aid or direct Federal highway funds and are located within or adjacent 
to areas of scenic enhancement and natural beauty. Such areas include 
public park and recreational lands, wildlife and waterfowl refuges, 
historic sites as described in 23 U.S.C. 138, scenic strips, overlooks, 
rest areas and landscaped areas. The State transportation department may 
permit exceptions provided the following conditions are met:
    (1) New underground or aerial installations may be permitted only 
when they do not require extensive removal or alteration of trees or 
terrain features visible to the highway user or impair the aesthetic 
quality of the lands being traversed.
    (2) Aerial installations may be permitted only when:
    (i) Other locations are not available or are unusually difficult and 
costly, or are less desirable from the standpoint of aesthetic quality,
    (ii) Placement underground is not technically feasible or is 
unreasonably costly, and
    (iii) The proposed installation will be made at a location, and will 
employ suitable designs and materials, which give the greatest weight to 
the aesthetic qualities of the area being traversed. Suitable designs 
include, but are not limited to, self-supporting armless, single-pole 
construction with vertical configuration of conductors and cable.
    (3) For new utility installations within freeways, the provisions of 
paragraph (c) of this section must also be satisfied.
    (i) Joint use agreements. When the utility has a compensable 
interest in the land occupied by its facilities and such land is to be 
jointly occupied and used for highway and utility purposes, the 
transportation department and utility shall agree in writing as to the 
obligations and responsibilities of each party. Such joint-use 
agreements shall

[[Page 213]]

incorporate the conditions of occupancy for each party, including the 
rights vested in the transportation department and the rights and 
privileges retained by the utility. In any event, the interest to be 
acquired by or vested in the transportation department in any portion of 
the right-of-way of a Federal-aid or direct Federal highway project to 
be vacated, used or occupied by utilities or private lines, shall be 
adequate for the construction, safe operation, and maintenance of the 
highway project.
    (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.
    (k) Corrective measures. When the transportation department 
determines that existing utility facilities are likely to be associated 
with injury or accident to the highway user, as indicated by accident 
history or safety studies, the transportation department shall initiate 
or cause to be initiated in consultation with the affected utilities, 
corrective measures to provide for a safer traffic environment. The 
corrective measures may include changes to utility or highway facilities 
and should be prioritized to maximum safety benefits in the most cost-
effective manner. The scheduling of utility safety improvements should 
take into consideration planned utility replacement or upgrading 
schedules, accident potential, and the availability of resources. It is 
expected that the requirements of this paragraph will result in an 
orderly and positive process to address the identified utility hazard 
problems in a timely and reasonable manner with due regard to the effect 
of the corrective measures on both the utility consumer and the road 
user. The type of corrective measures are not prescribed. Any requests 
received involving Federal participation in the cost of adjusting or 
relocating utility facilities pursuant to this paragrpah shall be 
subject to the provisions of 23 CFR part 645, subpart A, Utility 
Relocations, Adjustments and Reimbursement, and 23 CFR part 924, Highway 
Safety Improvement Program.
    (l) Wetlands. The installation of privately owned lines or conduits 
on the right-of-way of Federal-aid or direct Federal highway projects 
for the purpose of draining adjacent wetlands onto the highway right-of-
way is considered to be inconsistent with Executive Order 11990, 
Protection of Wetlands, dated May 24, 1977, and shall be prohibited.
    (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.

[50 FR 20354, May 15, 1985, as amended at 53 FR 2833, Feb. 2, 1988; 60 
FR 34851, July 5, 1995; 65 FR 70311, Nov. 22, 2000]



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:
    (a) Utilities must be accommodated and maintained in a manner which 
will

[[Page 214]]

not impair the highway or adversely affect highway or traffic safety. 
Uniform procedures controlling the manner, nature and extent of such 
utility use shall be established.
    (b) Consideration shall be given to the effect of utility 
installations in regard to safety, aesthetic quality, and the costs or 
difficulty of highway and utility construction and maintenance.
    (c) The State transportation department's standards for regulating 
the use and occupancy of highway right-of-way by utilities must include, 
but are not limited to, the following:
    (1) The horizontal and vertical location requirements and clearances 
for the various types of utilities must be clearly stated. These must be 
adequate to ensure compliance with the clear roadside policies for the 
particular highway involved.
    (2) The applicable provisions of government or industry codes 
required by law or regulation must be set forth or appropriately 
referenced, including highway design standards or other measures which 
the State transportation department deems necessary to provide adequate 
protection to the highway, its safe operation, aesthetic quality, and 
maintenance.
    (3) Specifications for and methods of installation; requirements for 
preservation and restoration of highway facilities, appurtenances, and 
natural features and vegetation on the right-of-way; and limitations on 
the utility's activities within the right-of-way including installation 
within areas set forth by Sec. 645.209(h) of this part should be 
prescribed as necessary to protect highway interests.
    (4) Measures necessary to protect traffic and its safe operation 
during and after installation of facilities, including control-of-access 
restrictions, provisions for rerouting or detouring traffic, traffic 
control measures to be employed, procedures for utility traffic control 
plans, limitations on vehicle parking and materials storage, protection 
of open excavations, and the like must be provided.
    (5) A State transportation department may deny a utility's request 
to occupy highway right-of-way based on State law, regulation, or 
ordinances or the State transportation department's policy. However, in 
any case where the provisions of this part are to be cited as the basis 
for disapproving a utility's request to use and occupy highway right-of-
way, measures must be provided to evaluate the direct and indirect 
environmental and economic effects of any loss of productive 
agricultural land or any impairment of the productivity of any 
agricultural land that would result from the disapproval. The 
environmental and economic effects on productive agricultural land 
together with the possible interference with or impairment of the use of 
the highway and the effect on highway safety must be considered in the 
decision to disapprove any proposal by a utility to use such highway 
right-of-way.
    (d) Compliance with applicable State laws and approved State 
transportation department utility accommodation policies must be 
assured. The responsible State transportation department's file must 
contain evidence of the written arrangements which set forth the terms 
under which utility facilities are to cross or otherwise occupy highway 
right-of-way. All utility installations made on highway right-of-way 
shall be subject to written approval by the State transportation 
department. However, such approval will not be required where so 
provided in the use and occupancy agreement for such matters as utility 
facility maintenance, installation of service connections on highways 
other than freeways, or emergency operations.
    (e) The State transportation department shall set forth in its 
utility accommodation plan detailed procedures, criteria, and standards 
it will use to evaluate and approve individual applications of utilities 
on freeways under the provisions of Sec. 645.209(c) of this part. The 
State transportation department also may develop such procedures, 
criteria and standards by class of utility. In defining utility classes, 
consideration may be given to distinguishing utility services by type, 
nature or function and their potential impact on the highway and its 
user.
    (f) The means and authority for enforcing the control of access 
restrictions applicable to utility use of controlled access highway 
facilities should

[[Page 215]]

be clearly set forth in the State transportation department plan.

(Information collection requirements in paragraphs (a), (b) and (c) were 
approved under control number 2125-0522, and paragraph (d) under control 
number 2125-0514)

[50 FR 20354, May 15, 1985, as amended at 53 FR 2834, Feb. 2, 1988; 55 
FR 25828, June 25, 1990; 65 FR 70312, Nov. 22, 2000]



Sec. 645.213  Use and occupancy agreements (permits).

    The written arrangements, generally in the form of use and occupancy 
agreements setting forth the terms under which the utility is to cross 
or otherwise occupy the highway right-of-way, must include or 
incorporate by reference:
    (a) The transportation department standards for accommodating 
utilities. Since all of the standards will not be applicable to each 
individual utility installation, the use and occupancy agreement must, 
as a minimum, describe the requirements for location, construction, 
protection of traffic, maintenance, access restriction, and any special 
conditions applicable to each installation.
    (b) A general description of the size, type, nature, and extent of 
the utility facilities being located within the highway right-of-way.
    (c) Adequate drawings or sketches showing the existing and/or 
proposed location of the utility facilities within the highway right-of-
way with respect to the existing and/or planned highway improvements, 
the traveled way, the right-of-way lines and, where applicable, the 
control of access lines and approved access points.
    (d) The extent of liability and responsibilities associated with 
future adjustment of the utilities to accommodate highway improvements.
    (e) The action to be taken in case of noncompliance with the 
transportation department's requirements.
    (f) Other provisions as deemed necessary to comply with laws and 
regulations.

(Approved by the Office of Management and Budget under control number 
2125-0522)



Sec. 645.215  Approvals.

    (a) Each State transportation department shall submit a statement to 
the FHWA on the authority of utilities to use and occupy the right-of-
way of State highways, the State transportation department's power to 
regulate such use, and the policies the State transportation department 
employs or proposes to employ for accommodating utilities within the 
right-of-way Federal-aid highways under its jurisdiction. Statements 
previously submitted and approved by the FHWA need not be resubmitted 
provided the statement adequately addresses the requirements of this 
part. When revisions are deemed necessary the changes to the previously 
approved statement may be submitted separately to the FHWA for approval. 
The State transportation department shall include similar information on 
the use and occupancy of such highways by private lines where permitted. 
The State shall identify those areas, if any, of Federal-aid highways 
within its borders where the State transportation department is without 
legal authority to regulate use by utilities. The statement shall 
address the nature of the formal agreements with local officials 
required by Sec. 645.209(g) of this part. It is expected that the 
statements required by this part or necessary revisions to previously 
submitted and approved statements will be submitted to FHWA within 1 
year of the effective date of this regulation.
    (b) Upon determination by the FHWA that a State transportation 
department's policies satisfy the provisions of 23 U.S.C. 109, 111, and 
116, and 23 CFR 1.23 and 1.27, and meet the requirements of this 
regulation, the FHWA will approve their use on Federal-aid highway 
projects in that State
    (c) Any changes, additions or deletions the State transportation 
department proposes to the approved policies are subject to FHWA 
approval.
    (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

[[Page 216]]

the FHWA for use on Federal-aid highway projects.
    (e) The State transportation department's practices under the 
policies or agreements approved under Sec. 645.215(b) of this part shall 
be periodically reviewed by the FHWA.

(Information collection requirements in paragraph (a) were approved by 
the Office of Management and Budget under control number 2125-0514)

[50 FR 20354, May 15, 1985, as amended at 53 FR 2834, Feb. 2, 1988; 60 
FR 34851, July 5, 1995; 65 FR 70312, Nov. 22, 2000]



PART 646--RAILROADS--Table of Contents




            Subpart A--Railroad-Highway Insurance Protection

Sec.
646.101  Purpose.
646.103  Application.
646.105  Contractor's public liability and property damage insurance.
646.107  Railroad protective insurance.
646.109  Types of coverage.
646.111  Amount of coverage.

                  Subpart B--Railroad-Highway Projects

646.200  Purpose and applicability.
646.202  [Reserved]
646.204  Definitions.
646.206  Types of projects.
646.208  Funding.
646.210  Classification of projects and railroad share of the cost.
646.212  Federal share.
646.214  Design.
646.216  General procedures.
646.218  Simplified procedure for accelerating grade crossing 
          improvements.
646.220  Alternate Federal-State procedure.

Appendix to Subpart B--Horizontal and Vertical Clearance Provisions for 
          Overpass and Underpass Structures

    Authority: 23 U.S.C. 109(e), 120(c), 130, 133(d)(1), and 315; 49 CFR 
1.48(b).



            Subpart A--Railroad-Highway Insurance Protection

    Source: 39 FR 36474, Oct. 10, 1974, unless otherwise noted.



Sec. 646.101  Purpose.

    The purpose of this part is to prescribe provisions under which 
Federal funds may be applied to the costs of public liability and 
property damage insurance obtained by contractors (a) for their own 
operations, and (b) on behalf of railroads on or about whose right-of-
way the contractors are required to work in the construction of highway 
projects financed in whole or in part with Federal funds.



Sec. 646.103  Application.

    (a) This part applies:
    (1) To a contractors' legal liability for bodily injury to, or death 
of, persons and for injury to, or destruction of, property.
    (2) To the liability which may attach to railroads for bodily injury 
to, or death of, persons and for injury to, or destruction of, property.
    (3) To damage to property owned by or in the care, custody or 
control of the railroads, both as such liability or damage may arise out 
of the contractor's operations, or may result from work performed by 
railroads at or about railroad rights-of-way in connection with projects 
financed in whole or in part with Federal funds.
    (b) Where the highway construction is under the direct supervision 
of the Federal Highway Administration (FHWA), all references herein to 
the State shall be considered as references to the FHWA.



Sec. 646.105  Contractor's public liability and property damage insurance.

    (a) Contractors may be subject to liability with respect to bodily 
injury to or death of persons, and injury to, or destruction of 
property, which may be suffered by persons other than their own 
employees as a result of their operations in connection with 
construction of highway projects located in whole or in part within 
railroad right-of-way and financed in whole or in part with Federal 
funds. Protection to cover such liability of contractors shall be 
furnished under regular contractors' public liability and property 
damage insurance policies issued in the names of the contractors. Such 
policies shall be so written as to furnish protection to contractors 
respecting their operations in performing work covered by their 
contract.
    (b) Where a contractor sublets a part of the work on any project to 
a subcontractor, the contractor shall be required to secure insurance 
protection

[[Page 217]]

in his own behalf under contractor's public liability and property 
damage insurance policies to cover any liability imposed on him by law 
for damages because of bodily injury to, or death of, persons and injury 
to, or destruction of, property as a result of work undertaken by such 
subcontractors. In addition, the contractor shall provide for and on 
behalf of any such subcontractors protection to cover like liability 
imposed upon the latter as a result of their operations by means of 
separate and individual contractor's public liability and property 
damage policies; or, in the alternative, each subcontractor shall 
provide satisfactory insurance on his own behalf to cover his individual 
operations.
    (c) The contractor shall furnish to the State highway department 
evidence satisfactory to such department and to the FHWA that the 
insurance coverages required herein have been provided. The contractor 
shall also furnish a copy of such evidence to the railroad or railroads 
involved. The insurance specified shall be kept in force until all work 
required to be performed shall have been satisfactorily completed and 
accepted in accordance with the contract under which the construction 
work is undertaken.



Sec. 646.107  Railroad protective insurance.

    In connection with highway projects for the elimination of hazards 
of railroad-highway crossings and other highway construction projects 
located in whole or in part within railroad right-of-way, railroad 
protective liability insurance shall be purchased on behalf of the 
railroad by the contractor. The standards for railroad protective 
insurance established by Secs. 646.109 through 646.111 shall be adhered 
to insofar as the insurance laws of the State will permit.

[39 FR 36474, Oct. 10, 1974, as amended at 47 FR 33955, Aug. 5, 1982]



Sec. 646.109  Types of coverage.

    (a) Coverage shall be limited to damage suffered by the railroad on 
account of occurrences arising out of the work of the contractor on or 
about the railroad right-of-way, independent of the railroad's general 
supervision or control, except as noted in Sec. 646.109(b) (4).
    (b) Coverage shall include:
    (1) Death of or bodily injury to passengers of the railroad and 
employees of the railroad not covered by State workmen's compensation 
laws;
    (2) Personal property owned by or in the care, custody or control of 
the railroads;
    (3) The contractor, or any of his agents or employees who suffer 
bodily injury or death as the result of acts of the railroad or its 
agents, regardless of the negligence of the railroad;
    (4) Negligence of only the following classes of railroad employees:
    (i) Any supervisory employee of the railroad at the job site;
    (ii) Any employee of the railroad while operating, attached to, or 
engaged on, work trains or other railroad equipment at the job site 
which are assigned exclusively to the contractor; or
    (iii) Any employee of the railroad not within (b)(4) (i) or (ii) who 
is specifically loaned or assigned to the work of the contractor for 
prevention of accidents or protection of property, the cost of whose 
services is borne specifically by the contractor or governmental 
authority.



Sec. 646.111  Amount of coverage.

    (a) The maximum dollar amounts of coverage to be reimbursed from 
Federal funds with respect to bodily injury, death and property damage 
is limited to a combined amount of $2 million per occurrence with an 
aggregate of $6 million applying separately to each annual period except 
as provided in paragraph (b) of this section.
    (b) In cases involving real and demonstrable danger of appreciably 
higher risks, higher dollar amounts of coverage for which premiums will 
be reimbursable from Federal funds shall be allowed. These larger 
amounts will depend on circumstances and shall be written for the 
individual project in accordance with standard underwriting practices 
upon approval of the FHWA.

[39 FR 36474, Oct. 10, 1974, as amended at 47 FR 33955, Aug. 5, 1982]

[[Page 218]]



                  Subpart B--Railroad-Highway Projects

    Source: 40 FR 16059, Apr. 9, 1975, unless otherwise noted.



Sec. 646.200  Purpose and applicability.

    (a) The purpose of this subpart is to prescribe policies and 
procedures for advancing Federal-aid projects involving railroad 
facilities.
    (b) This subpart, and all references hereinafter made to projects, 
applies to Federal-aid projects involving railroad facilities, including 
projects for the elimination of hazards of railroad-highway crossings, 
and other projects which use railroad properties or which involve 
adjustments required by highway construction to either railroad 
facilities or facilities that are jointly owned or used by railroad and 
utility companies.
    (c) Additional instructions for projects involving the elimination 
of hazards of railroad/highway grade crossings pursuant to 23 U.S.C. 130 
are set forth in 23 CFR part 924.
    (d) Procedures on reimbursement for projects undertaken pursuant to 
this subpart are set forth in 23 CFR part 140, subpart I.
    (e) Procedures on insurance required of contractors working on or 
about railroad right-of-way are set forth in 23 CFR part 646, subpart A.

[40 FR 16059, Apr. 9, 1975, as amended at 45 FR 20795, Mar. 31, 1980; 62 
FR 45328, Aug. 27, 1997]



Sec. 646.202  [Reserved]



Sec. 646.204  Definitions.

    For the purposes of this subpart, the following definitions apply:
    Active warning devices means those traffic control devices activated 
by the approach or presence of a train, such as flashing light signals, 
automatic gates and similar devices, as well as manually operated 
devices and crossing watchmen, all of which display to motorists 
positive warning of the approach or presence of a train.
    Company shall mean any railroad or utility company including any 
wholly owned or controlled subsidiary thereof.
    Construction shall mean the actual physical construction to improve 
or eliminate a railroad-highway grade crossing or accomplish other 
railroad involved work.
    A diagnostic team means a group of knowledgeable representatives of 
the parties of interest in a railroad-highway crossing or a group of 
crossings.
    Main line railroad track means a track of a principal line of a 
railroad, including extensions through yards, upon which trains are 
operated by timetable or train order or both, or the use of which is 
governed by block signals or by centralized traffic control.
    Passive warning devices means those types of traffic control 
devices, including signs, markings and other devices, located at or in 
advance of grade crossings to indicate the presence of a crossing but 
which do not change aspect upon the approach or presence of a train.
    Preliminary engineering shall mean the work necessary to produce 
construction plans, specifications, and estimates to the degree of 
completeness required for undertaking construction thereunder, including 
locating, surveying, designing, and related work.
    Railroad shall mean all rail carriers, publicly-owned, private, and 
common carriers, including line haul freight and passenger railroads, 
switching and terminal railroads and passenger carrying railroads such 
as rapid transit, commuter and street railroads.
    Utility shall mean the lines and facilities for producing, 
transmitting or distributing communications, power, electricity, light, 
heat, gas, oil, water, steam, sewer and similar commodities.

[40 FR 16059, Apr. 9, 1975, as amended at 62 FR 45328, Aug. 27, 1997]



Sec. 646.206  Types of projects.

    (a) Projects for the elimination of hazards, to both vehicles and 
pedestrians, of railroad-highway crossings may include but are not 
limited to:
    (1) Grade crossing elimination;
    (2) Reconstruction of existing grade separations; and
    (3) Grade crossing improvements.
    (b) Other railroad-highway projects are those which use railroad 
properties or involve adjustments to railroad facilities required by 
highway construction but do not involve the elimination

[[Page 219]]

of hazards of railroad-highway crossings. Also included are adjustments 
to facilities that are jointly owned or used by railroad and utility 
companies.



Sec. 646.208  Funding.

    (a) Railroad/highway crossing projects may be funded through the 
Federal-aid funding source appropriate for the involved project.
    (b) Projects for the elimination of hazards at railroad/highway 
crossings may, at the option of the State, be funded with the funds 
provided by 23 U.S.C. 133(d)(1).

[62 FR 45328, Aug. 27, 1997]



Sec. 646.210  Classification of projects and railroad share of the cost.

    (a) State laws requiring railroads to share in the cost of work for 
the elimination of hazards at railroad-highway crossings shall not apply 
to Federal-aid projects.
    (b) Pursuant to 23 U.S.C. 130(b), and 49 CFR 1.48:
    (1) Projects for grade crossing improvements are deemed to be of no 
ascertainable net benefit to the railroads and there shall be no 
required railroad share of the costs.
    (2) Projects for the reconstruction of existing grade separations 
are deemed to generally be of no ascertainable net benefit to the 
railroad and there shall be no required railroad share of the costs, 
unless the railroad has a specific contractual obligation with the State 
or its political subdivision to share in the costs.
    (3) On projects for the elimination of existing grade crossings at 
which active warning devices are in place or ordered to be installed by 
a State regulatory agency, the railroad share of the project costs shall 
be 5 percent.
    (4) On projects for the elimination of existing grade crossings at 
which active warning devices are not in place and have not been ordered 
installed by a State regulatory agency, or on projects which do not 
eliminate an existing crossing, there shall be no required railroad 
share of the project cost.
    (c) The required railroad share of the cost under Sec. 646.210(b) 
(3) shall be based on the costs for preliminary engineering, right-of-
way and construction within the limits described below:
    (1) Where a grade crossing is eliminated by grade separation, the 
structure and approaches required to transition to a theoretical highway 
profile which would have been constructed if there were no railroad 
present, for the number of lanes on the existing highway and in 
accordance with the current design standards of the State highway 
agency.
    (2) Where another facility, such as a highway or waterway, requiring 
a bridge structure is located within the limits of a grade separation 
project, the estimated cost of a theoretical structure and approaches as 
described in Sec. 646.210(c) (1) to eliminate the railroad-highway grade 
crossing without considering the presence of the waterway or other 
highway.
    (3) Where a grade crossing is eliminated by railroad or highway 
relocation, the actual cost of the relocation project, the estimated 
cost of the relocation project, or the estimated cost of a structure and 
approaches as described in Sec. 646.210(c)(1), whichever is less.
    (d) Railroads may voluntarily contribute a greater share of project 
costs than is required. Also, other parties may voluntarily assume the 
railroad's share.



Sec. 646.212  Federal share.

    (a) General. (1) Federal funds are not eligible to participate in 
costs incurred solely for the benefit of the railroad.
    (2) At grade separations Federal funds are eligible to participate 
in costs to provide space for more tracks than are in place when the 
railroad establishes to the satisfaction of the State highway agency and 
FHWA that it has a definite demand and plans for installation of the 
additional tracks within a reasonable time.
    (3) The Federal share of the cost of a grade separation project 
shall be based on the cost to provide horizontal and/or vertical 
clearances used by the railroad in its normal practice subject to 
limitations as shown in the appendix or as required by a State 
regulatory agency.
    (b) The Federal share of railroad/highway crossing projects may be:

[[Page 220]]

    (1) Regular pro rata sharing as provided by 23 U.S.C. 120(a) and 
120(b).
    (2) One hundred percent Federal share, as provided by 23 U.S.C. 
120(c).
    (3) Ninety percent Federal share for funds made available through 23 
U.S.C. 133(d)(1).

[40 FR 16059, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982; 53 
FR 32218, Aug. 24, 1988; 62 FR 45328, Aug. 27, 1997]



Sec. 646.214  Design.

    (a) General. (1) Facilities that are the responsibility of the 
railroad for maintenance and operation shall conform to the 
specifications and design standards used by the railroad in its normal 
practice, subject to approval by the State highway agency and FHWA.
    (2) Facilities that are the responsibility of the highway agency for 
maintenance and operation shall conform to the specifications and design 
standards and guides used by the highway agency in its normal practice 
for Federal-aid projects.
    (b) Grade crossing improvements. (1) All traffic control devices 
proposed shall comply with the latest edition of the Manual on Uniform 
Traffic Control Devices for Streets and Highways supplemented to the 
extent applicable by State standards.
    (2) Pursuant to 23 U.S.C. 109(e), where a railroad-highway grade 
crossing is located within the limits of or near the terminus of a 
Federal-aid highway project for construction of a new highway or 
improvement of the existing roadway, the crossing shall not be opened 
for unrestricted use by traffic or the project accepted by FHWA until 
adequate warning devices for the crossing are installed and functioning 
properly.
    (3)(i) Adequate warning devices, under Sec. 646.214(b) (2) or on any 
project where Federal-aid funds participate in the installation of the 
devices are to include automatic gates with flashing light signals when 
one or more of the following conditions exist:
    (A) Multiple main line railroad tracks.
    (B) Multiple tracks at or in the vicinity of the crossing which may 
be occupied by a train or locomotive so as to obscure the movement of 
another train approaching the crossing.
    (C) High Speed train operation combined with limited sight distance 
at either single or multiple track crossings.
    (D) A combination of high speeds and moderately high volumes of 
highway and railroad traffic.
    (E) Either a high volume of vehicular traffic, high number of train 
movements, substantial numbers of schoolbuses or trucks carrying 
hazardous materials, unusually restricted sight distance, continuing 
accident occurrences, or any combination of these conditions.
    (F) A diagnostic team recommends them.
    (ii) In individual cases where a diagnostic team justifies that 
gates are not appropriate, FHWA may find that the above requirements are 
not applicable.
    (4) For crossings where the requirements of Sec. 646.214(b) (3) are 
not applicable, the type of warning device to be installed, whether the 
determination is made by a State regulatory agency, State highway 
agency, and/or the railroad, is subject to the approval of FHWA.
    (c) Grade crossing elimination. All crossings of railroads and 
highways at grade shall be eliminated where there is full control of 
access on the highway (a freeway) regardless of the volume of railroad 
or highway traffic.

[40 FR 16059, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982; 62 
FR 45328, Aug. 27, 1997]



Sec. 646.216  General procedures.

    (a) General. Unless specifically modified herein, applicable 
Federal-aid procedures govern projects undertaken pursuant to this 
subpart.
    (b) Preliminary engineering and engineering services. (1) As 
mutually agreed to by the State highway agency and railroad, and subject 
to the provisions of Sec. 646.216(b) (2), preliminary engineering work 
on railroad-highway projects may be accomplished by one of the following 
methods:
    (i) The State or railroad's engineering forces;
    (ii) An engineering consultant selected by the State after 
consultation with the railroad, and with the State administering the 
contract; or

[[Page 221]]

    (iii) An engineering consultant selected by the railroad, with the 
approval of the State and with the railroad administering the contract.
    (2) Where a railroad is not adequately staffed, Federal-aid funds 
may participate in the amounts paid to engineering consultants and 
others for required services, provided such amounts are not based on a 
percentage of the cost of construction, either under contracts for 
individual projects or under existing written continuing contracts where 
such work is regularly performed for the railroad in its own work under 
such contracts at reasonable costs.
    (c) Rights-of-way. (1) Acquisition of right-of-way by a State 
highway agency on behalf of a railroad or acquisition of nonoperating 
real property from a railroad shall be in accordance with the Uniform 
Relocation Assistance and Real Property Acquisition Policies Act of 1970 
(42 U.S.C. 4601 et seq.) and applicable FHWA right-of-way procedures in 
23 CFR, chapter I, subchapter H. On projects for the elimination of 
hazards of railroad-highway crossings by the relocation of railroads, 
acquisition or replacement right-of-way by a railroad shall be in 
accordance with 42 U.S.C. 4601 et seq.
    (2) Where buildings and other depreciable structures of the railroad 
(such as signal towers, passenger stations, depots, and other buildings, 
and equipment housings) which are integral to operation of railroad 
traffic are wholly or partly affected by a highway project, the costs of 
work necessary to functionally restore such facilities are eligible for 
participation. However, when replacement of such facilities is 
necessary, credits shall be made to the cost of the project for:
    (i) Accrued depreciation, which is that amount based on the ratio 
between the period of actual length of service and total life expectancy 
applied to the original cost.
    (ii) Additions or improvements which provide higher quality or 
increased service capability of the facility and which are provided 
solely for the benefit of the railroad.
    (iii) Actual salvage value of the material recovered from the 
facility being replaced. Total credits to a project shall not be 
required in excess of the replacement cost of the facility.
    (3) Where Federal funds participate in the cost of replacement 
right-of-way, there will be no charge to the project for the railroad's 
existing right-of-way being transferred to the State highway agency 
except when the value of the right-of-way being taken exceeds the value 
of the replacement right-of-way.
    (d) State-railroad agreements. (1) Where construction of a Federal-
aid project requires use of railroad properties or adjustments to 
railroad facilities, there shall be an agreement in writing between the 
State highway agency and the railroad company.
    (2) The written agreement between the State and the railroad shall, 
as a minimum include the following, where applicable:
    (i) The provisions of this subpart and of 23 CFR part 140, subpart 
I, incorporated by reference.
    (ii) A detailed statement of the work to be performed by each party.
    (iii) Method of payment (either actual cost or lump sum),
    (iv) For projects which are not for the elimination of hazards of 
railroad-highway crossings, the extent to which the railroad is 
obligated to move or adjust its facilities at its own expense,
    (v) The railroad's share of the project cost,
    (vi) An itemized estimate of the cost of the work to be performed by 
the railroad,
    (vii) Method to be used for performing the work, either by railroad 
forces or by contract,
    (viii) Maintenance responsibility,
    (ix) Form, duration, and amounts of any needed insurance,
    (x) Appropriate reference to or identification of plans and 
specifications,
    (xi) Statements defining the conditions under which the railroad 
will provide or require protective services during performance of the 
work, the type of protective services and the method of reimbursement to 
the railroad, and
    (xii) Provisions regarding inspection of any recovered materials.
    (3) On work to be performed by the railroad with its own forces and 
where the State highway agency and railroad agree, subject to approval 
by FHWA,

[[Page 222]]

an agreement providing for a lump sum payment in lieu of later 
determination of actual costs may be used for any of the following:
    (i) Installation or improvement of grade crossing warning devices 
and/or grade crossing surfaces, regardless of cost, or
    (ii) Any other eligible work where the estimated cost to the State 
of the proposed railroad work does not exceed $100,000 or
    (iii) Where FHWA finds that the circumstances are such that this 
method of developing costs would be in the best interest of the public.
    (4) Where the lump sum method of payment is used, periodic reviews 
and analyses of the railroad's methods and cost data used to develop 
lump sum estimates will be made.
    (5) Master agreements between a State and a railroad on an areawide 
or statewide basis may be used. These agreements would contain the 
specifications, regulations, and provisions required in conjunction with 
work performed on all projects. Supporting data for each project or 
group of projects must, when combined with the master agreement by 
reference, satisfy the provisions of Sec. 646.216(d)(2).
    (6) Official orders issued by regulatory agencies will be accepted 
in lieu of State-railroad agreements only where, together with 
supplementary written understandings between the State and the railroad, 
they include the items required by Sec. 646.216(d) (2).
    (7) In extraordinary cases where FHWA finds that the circumstances 
are such that requiring such agreement or order would not be in the best 
interest of the public, projects may be approved for construction with 
the aid of Federal funds, provided satisfactory commitments have been 
made with respect to construction, maintenance and the railroad share of 
project costs.
    (e) Authorizations. (1) The costs of preliminary engineering, right-
of-way acquisition, and construction incurred after the date each phase 
of the work is included in an approved statewide transportation 
improvement program and authorized by the FHWA are eligible for Federal-
aid participation. Preliminary engineering and right-of-way acquisition 
costs which are otherwise eligible, but incurred by a railroad prior to 
authorization by the FHWA, although not reimbursable, may be included as 
part of the railroad share of project cost where such a share is 
required.
    (2) Prior to issuance of authorization by FHWA either to advertise 
the physical construction for bids or to proceed with force account 
construction for railroad work or for other construction affected by 
railroad work, the following must be accomplished:
    (i) The plans, specifications and estimates must be approved by 
FHWA.
    (ii) A proposed agreement between the State and railroad must be 
found satisfactory by FHWA. Before Federal funds may be used to 
reimburse the State for railroad costs the executed agreement must be 
approved by FHWA. However, cost for materials stockpiled at the project 
site or specifically purchased and delivered to the company for use on 
the project may be reimbursed on progress billings prior to the approval 
of the executed State-Railroad Agreement in accordance with 23 CFR 
140.922(a) and Sec. 646.218 of this part.
    (iii) Adequate provisions must be made for any needed easements, 
right-of-way, temporary crossings for construction purposes or other 
property interests.
    (iv) The pertinent portions of the State-railroad agreement 
applicable to any protective services required during performance of the 
work must be included in the project specifications and special 
provisions for any construction contract.
    (3) In unusual cases, pending compliance with Sec. 646.216(e) (2) 
(ii), (iii) and (iv), authorization may be given by FHWA to advertise 
for bids for highway construction under conditions where a railroad 
grants a right-of-entry to its property as necessary to prosecute the 
physical construction.
    (f) Construction. (1) Construction may be accomplished by:
    (i) Railroad force account,
    (ii) Contracting with the lowest qualified bidder based on 
appropriate solicitation,
    (iii) Existing continuing contracts at reasonable costs, or

[[Page 223]]

    (iv) Contract without competitive bidding, for minor work, at 
reasonable costs.
    (2) Reimbursement will not be made for any increased costs due to 
changes in plans:
    (i) For the convenience of the contractor, or
    (ii) Not approved by the State and FHWA.
    (3) The State and FHWA shall be afforded a reasonable opportunity to 
inspect materials recovered by the railroad prior to disposal by sale or 
scrap. This requirement will be satisfied by the railroad giving written 
notice, or oral notice with prompt written confirmation, to the State of 
the time and place where the materials will be available for inspection. 
The giving of notice is the responsibility of the railroad, and it may 
be held accountable for full value of materials disposed of without 
notice.
    (4) In addition to normal construction costs, the following 
construction costs are eligible for participation with Federal-aid funds 
when approved by the State and FHWA:
    (i) The cost of maintaining temporary facilities of a railroad 
company required by and during the highway construction to the extent 
that such costs exceed the documented normal cost of maintaining the 
permanent facilities.
    (ii) The cost of stage or extended construction involving grade 
corrections and/or slope stabilization for permanent tracks of a 
railroad which are required to be relocated on new grade by the highway 
construction. Stage or extended construction will be approved by FHWA 
only when documentation submitted by the State establishes the proposed 
method of construction to be the only practical method and that the cost 
of the extended construction within the period specified is estimated to 
be less than the cost of any practicable alternate procedure.
    (iii) The cost of restoring the company's service by adustments of 
existing facilities away from the project site, in lieu of and not to 
exceed the cost of replacing, adjusting or relocating facilities at the 
project site.
    (iv) The cost of an addition or improvement to an existing railroad 
facility which is required by the highway construction.

[40 FR 16059, Apr. 9, 1975, as amended at 40 FR 29712, July 15, 1975; 47 
FR 33956, Aug. 5, 1982; 62 FR 45328, Aug. 27, 1997]



Sec. 646.218  Simplified procedure for accelerating grade crossing improvements.

    (a) The procedure set forth in this section is encouraged for use in 
simplifying and accelerating the processing of single or multiple grade 
crossing improvements.
    (b) Eligible preliminary engineering costs may include those 
incurred in selecting crossings to be improved, determining the type of 
improvement for each crossing, estimating the cost and preparing the 
required agreement.
    (c) The written agreement between a State and a railroad shall 
contain as a minimum:
    (1) Identification of each crossing location.
    (2) Description of improvement and estimate of cost for each 
crossing location.
    (3) Estimated schedule for completion of work at each location.
    (d) Following programming, authorization and approval of the 
agreement under Sec. 646.218(c), FHWA may authorize construction, 
including acquisition of warning device materials, with the condition 
that work at any particular location will not be undertaken until the 
proposed or executed State-railroad agreement under Sec. 646.216(d) (2) 
is found satisfactory by FHWA and the final plans, specifications, and 
estimates are approved and with the condition that only material 
actually incorporated into the project will be eligible for Federal 
participation.
    (e) Work programmed and authorized under this simplified procedure 
should include only that which can reasonably be expected to reach the 
construction stage within one year and be completed within two years 
after the initial authorization date.



Sec. 646.220  Alternate Federal-State procedure.

    (a) On other than Interstate projects, an alternate procedure may be 
used, at the election of the State, for processing certain types of 
railroad-highway

[[Page 224]]

work. Under this procedure, the State highway agency will act in the 
relative position of FHWA for reviewing and approving projects.
    (b) The scope of the State's approval authority under the alternate 
procedure includes all actions necessary to advance and complete the 
following types of railroad-highway work:
    (1) All types of grade crossing improvements under Sec. 646.206(a) 
(3).
    (2) Minor adjustments to railroad facilities under Sec. 646.206(b).
    (c) The following types of work are to be reviewed and approved in 
the normal manner, as prescribed elsewhere in this subpart.
    (1) All projects under Sec. 646.206(a) (1) and (2).
    (2) Major adjustments to railroad facilities under Sec. 646.206(b).
    (d) Any State wishing to adopt the alternate procedure may file a 
formal application for approval by FHWA. The application must include 
the following:
    (1) The State's written policies and procedures for administering 
and processing Federal-aid railroad-highway work, which make adequate 
provisions with respect to all of the following:
    (i) Compliance with the provisions of title 23 U.S.C., title 23 CFR, 
and other applicable Federal laws and Executive Orders.
    (ii) Compliance with this subpart and 23 CFR part 140, subpart I and 
23 CFR part 172.
    (iii) For grade crossing safety improvements, compliance with the 
requirements of 23 CFR part 924.
    (2) A statement signed by the Chief Administrative Officer of the 
State highway agency certifying that:
    (i) The work will be done in accordance with the applicable 
provisions of the State's policies and procedures submitted under 
Sec. 646.220(d)(1), and
    (ii) Reimbursement will be requested in only those costs properly 
attributable to the highway construction and eligible for Federal fund 
participation.
    (e) When FHWA has approved the alternate procedure, it may authorize 
the State to proceed in accordance with the State's certification, 
subject to the following conditions:
    (1) The work has been programmed.
    (2) The State submits in writing a request for such authorization 
which shall include a list of the improvements or adjustments to be 
processed under the alternate procedure, along with the best available 
estimate of cost.
    (f) The FHWA Regional Administrator may suspend approval of the 
certified procedure, where FHWA reviews disclose noncompliance with the 
certification. Federal-aid funds will not be eligible to participate in 
costs that do not qualify under Sec. 646.220(d)(1).

[40 FR 16059, Apr. 9, 1975; 40 FR 29712, July 15, 1975; 40 FR 31211, 
July 25, 1975; 42 FR 30835, June 17, 1977, as amended at 45 FR 20795, 
Mar. 31, 1980]

  Appendix to Subpart B of Part 646--Horizontal and Vertical Clearance 
            Provisions for Overpass and Underpass Structures

    The following implements provisions of 23 CFR 646.212(a)(3).
a. Lateral Geometrics
    A cross section with a horizontal distance of 6.1 meters, measured 
at right angles from the centerline of track at the top of rails, to the 
face of the embankment slope, may be approved. The 6.1-meters distance 
may be increased at individual structure locations as appropriate to 
provide for drainage if justified by a hydraulic analysis or to allow 
adequate room to accommodate special conditions, such as where heavy and 
drifting snow is a problem. The railroad must demonstrate that this is 
its normal practice to address these special conditions in the manner 
proposed. Additionally, this distance may also be increased up to 2.5 
meters as may be necessary for off-track maintenance equipment, provided 
adequate horizontal clearance is not available in adjacent spans and 
where justified by the presence of an existing maintenance road or by 
evidence of future need for such equipment. All piers should be placed 
at least 2.8 meters horizontally from the centerline of the track and 
preferably beyond the drainage ditch. For multiple track facilities, all 
dimensions apply to the centerline of the outside track.
    Any increase above the 6.1-meters horizontal clearance distance must 
be required by specific site conditions and be justified by the railroad 
to the satisfaction of the State highway agency (SHA) and the FHWA.
b. Vertical Clearance
    A vertical clearance of 7.1 meters above the top of rails, which 
includes an allowance for future ballasting of the railroad tracks, may 
be approved. Vertical clearance greater than 7.1 meters may be approved 
when the State regulatory agency having jurisdiction over such matters 
requires a vertical clearance in excess of 7.1 meters or on a site by

[[Page 225]]

site basis where justified by the railroad to the satisfaction of the 
SHA and the FHWA. A railroad's justification for increased vertical 
clearance should be based on an analysis of engineering, operational 
and/or economic conditions at a specific structure location.
    Federal-aid highway funds are also eligible to participate in the 
cost of providing vertical clearance greater than 7.1 meters where a 
railroad establishes to the satisfaction of a SHA and the FHWA that it 
has a definite formal plan for electrification of its rail system where 
the proposed grade separation project is located. The plan must cover a 
logical independent segment of the rail system and be approved by the 
railroad's corporate headquarters. For 25 kv line, a vertical clearance 
of 7.4 meters may be approved. For 50 kv line, a vertical clearance of 
8.0 meters may be approved.
    A railroad's justification to support its plan for electrification 
shall include maps and plans or drawings showing those lines to be 
electrified; actions taken by its corporate headquarters committing it 
to electrification including a proposed schedule; and actions initiated 
or completed to date implementing its electrification plan such as a 
showing of the amounts of funds and identification of structures, if 
any, where the railroad has expended its own funds to provide added 
clearance for the proposed electrification. If available, the railroad's 
justification should include information on its contemplated treatment 
of existing grade separations along the section of its rail system 
proposed for electrification.
    The cost of reconstructing or modifying any existing railroad-
highway grade separation structures solely to accommodate 
electrification will not be eligible for Federal-aid highway fund 
participation.
c. Railroad Structure Width
    Two and eight tenths meters of structure width outside of the 
centerline of the outside tracks may be approved for a structure 
carrying railroad tracks. Greater structure width may be approved when 
in accordance with standards established and used by the affected 
railroad in its normal practice.
    In order to maintain continuity of off-track equipment roadways at 
structures carrying tracks over limited access highways, consideration 
should be given at the preliminary design stage to the feasibility of 
using public road crossings for this purpose. Where not feasible, an 
additional structure width of 2.5 meters may be approved if designed for 
off-track equipment only.

[53 FR 32218, Aug. 24, 1988, as amended at 62 FR 45328, Aug. 27, 1997]



PART 650--BRIDGES, STRUCTURES, AND HYDRAULICS--Table of Contents




   Subpart A--Location and Hydraulic Design of Encroachments on Flood 
                                 Plains

Sec.
650.101  Purpose.
650.103  Policy.
650.105  Definitions.
650.107  Applicability.
650.109  Public involvement.
650.111  Location hydraulic studies.
650.113  Only practicable alternative finding.
650.115  Design standards.
650.117  Content of design studies.

Subpart B--Erosion and Sediment Control on Highway Construction Projects

650.201  Purpose.
650.203  Policy.
650.205  Definitions.
650.207  Plans, specifications, and estimates.
650.209  Construction.
650.211  Guidelines.

             Subpart C--National Bridge Inspection Standards

650.301  Application of standards.
650.303  Inspection procedures.
650.305  Frequency of inspections.
650.307  Qualifications of personnel.
650.309  Inspection report.
650.311  Inventory.

    Subpart D--Highway Bridge Replacement and Rehabilitation Program

650.401  Purpose.
650.403  Definition of terms.
650.405  Eligible projects.
650.407  Application for bridge replacement or rehabilitation.
650.409  Evaluation of bridge inventory.
650.411  Procedures for bridge replacement and rehabilitation projects.
650.413  Funding.
650.415  Reports.

Subparts E-F [Reserved]

         Subpart G--Discretionary Bridge Candidate Rating Factor

650.701  Purpose.
650.703  Eligible projects.
650.705  Application for discretionary bridge funds.
650.707  Rating factor.
650.709  Special considerations.

[[Page 226]]

             Subpart H--Navigational Clearances for Bridges

650.801  Purpose.
650.803  Policy.
650.805  Bridges not requiring a USCG permit.
650.807  Bridges requiring a USCG permit.
650.809  Movable span bridges.

    Authority: 23 U.S.C. 109 (a) and (h), 144, 151, 315, and 319; 23 CFR 
1.32; 49 CFR 1.48(b), E.O. 11988 (3 CFR, 1977 Comp., p. 117); Department 
of Transportation Order 5650.2 dated April 23, 1979 (44 FR 24678); 
Sec. 161 of Public Law 97-424, 96 Stat. 2097, 3135; Sec. 4(b) of Public 
Law 97-134, 95 Stat. 1699; 33 U.S.C. 401, 491 et seq., 511 et seq.; and 
Sec. 1057 of Public Law 102-240, 105 Stat. 2002.



   Subpart A--Location and Hydraulic Design of Encroachments on Flood 
                                 Plains

    Source: 44 FR 67580, Nov. 26, 1979, unless otherwise noted.



Sec. 650.101  Purpose.

    To prescribe Federal Highway Administration (FHWA) policies and 
procedures for the location and hydraulic design of highway 
encroachments on flood plains, including direct Federal highway projects 
administered by the FHWA.



Sec. 650.103  Policy.

    It is the policy of the FHWA:
    (a) To encourage a broad and unified effort to prevent uneconomic, 
hazardous or incompatible use and development of the Nation's flood 
plains,
    (b) To avoid longitudinal encroachments, where practicable,
    (c) To avoid significant encroachments, where practicable,
    (d) To minimize impacts of highway agency actions which adversely 
affect base flood plains,
    (e) To restore and preserve the natural and beneficial flood-plain 
values that are adversely impacted by highway agency actions,
    (f) To avoid support of incompatible flood-plain development,
    (g) To be consistent with the intent of the Standards and Criteria 
of the National Flood Insurance Program, where appropriate, and
    (h) To incorporate ``A Unified National Program for Floodplain 
Management'' of the Water Resources Council into FHWA procedures.



Sec. 650.105  Definitions.

    (a) Action shall mean any highway construction, reconstruction, 
rehabilitation, repair, or improvement undertaken with Federal or 
Federal-aid highway funds or FHWA approval.
    (b) Base flood shall mean the flood or tide having a 1-percent 
chance of being exceeded in any given year.
    (c) Base flood plain shall mean the area subject to flooding by the 
base flood.
    (d) Design Flood shall mean the peak discharge, volume if 
appropriate, stage or wave crest elevation of the flood associated with 
the probability of exceedance selected for the design of a highway 
encroachment. By definition, the highway will not be inundated from the 
stage of the design flood.
    (e) Encroachment shall mean an action within the limits of the base 
flood plain.
    (f) Floodproof shall mean to design and construct individual 
buildings, facilities, and their sites to protect against structural 
failure, to keep water out or to reduce the effects of water entry.
    (g) Freeboard shall mean the vertical clearance of the lowest 
structural member of the bridge superstructure above the water surface 
elevation of the overtopping flood.
    (h) Minimize shall mean to reduce to the smallest practicable amount 
or degree.
    (i) Natural and beneficial flood-plain values shall include but are 
not limited to fish, wildlife, plants, open space, natural beauty, 
scientific study, outdoor recreation, agriculture, aquaculture, 
forestry, natural moderation of floods, water quality maintenance, and 
groundwater recharge.
    (j) Overtopping flood shall mean the flood described by the 
probability of exceedance and water surface elevation at which flow 
occurs over the highway, over the watershed divide, or through 
structure(s) provided for emergency relief.
    (k) Practicable shall mean capable of being done within reasonable 
natural, social, or economic constraints.

[[Page 227]]

    (l) Preserve shall mean to avoid modification to the functions of 
the natural flood-plain environment or to maintain it as closely as 
practicable in its natural state.
    (m) Regulatory floodway shall mean the flood-plain area that is 
reserved in an open manner by Federal, State or local requirements, 
i.e., unconfined or unobstructed either horizontally or vertically, to 
provide for the discharge of the base flood so that the cumulative 
increase in water surface elevation is no more than a designated amount 
(not to exceed 1 foot as established by the Federal Emergency Management 
Agency (FEMA) for administering the National Flood Insurance Program).
    (n) Restore shall mean to reestablish a setting or environment in 
which the functions of the natural and beneficial flood-plain values 
adversely impacted by the highway agency action can again operate.
    (o) Risk shall mean the consequences associated with the probability 
of flooding attributable to an encroachment. It shall include the 
potential for property loss and hazard to life during the service life 
of the highway.
    (p) Risk analysis shall mean an economic comparison of design 
alternatives using expected total costs (construction costs plus risk 
costs) to determine the alternative with the least total expected cost 
to the public. It shall include probable flood-related costs during the 
service life of the facility for highway operation, maintenance, and 
repair, for highway-aggravated flood damage to other property, and for 
additional or interrupted highway travel.
    (q) Significant encroachment shall mean a highway encroachment and 
any direct support of likely base flood-plain development that would 
involve one or more of the following construction-or flood-related 
impacts:
    (1) A significant potential for interruption or termination of a 
transportation facility which is needed for emergency vehicles or 
provides a community's only evacuation route.
    (2) A significant risk, or
    (3) A significant adverse impact on natural and beneficial flood-
plain values.
    (r) Support base flood-plain development shall mean to encourage, 
allow, serve, or otherwise facilitate additional base flood-plain 
development. Direct support results from an encroachment, while indirect 
support results from an action out of the base flood plain.



Sec. 650.107  Applicability.

    (a) The provisions of this regulation shall apply to all 
encroachments and to all actions which affect base flood plains, except 
for repairs made with emergency funds (23 CFR part 668) during or 
immediately following a disaster.
    (b) The provisions of this regulation shall not apply to or alter 
approvals or authorizations which were given by FHWA pursuant to 
regulations or directives in effect before the effective date of this 
regulation.



Sec. 650.109  Public involvement.

    Procedures which have been established to meet the public 
involvement requirements of 23 CFR part 771 shall be used to provide 
opportunity for early public review and comment on alternatives which 
contain encroachments.

[53 FR 11065, Apr. 5, 1988]



Sec. 650.111  Location hydraulic studies.

    (a) National Flood Insurance Program (NFIP) maps or information 
developed by the highway agency, if NFIP maps are not available, shall 
be used to determine whether a highway location alternative will include 
an encroachment.
    (b) Location studies shall include evaluation and discussion of the 
practicability of alternatives to any longitudinal encroachments.
    (c) Location studies shall include discussion of the following 
items, commensurate with the significance of the risk or environmental 
impact, for all alternatives containing encroachments and for those 
actions which would support base flood-plain development:
    (1) The risks associated with implementation of the action,
    (2) The impacts on natural and beneficial flood-plain values,

[[Page 228]]

    (3) The support of probable incompatible flood-plain development,
    (4) The measures to minimize flood-plain impacts associated with the 
action, and
    (5) The measures to restore and preserve the natural and beneficial 
flood-plain values impacted by the action.
    (d) Location studies shall include evaluation and discussion of the 
practicability of alternatives to any significant encroachments or any 
support of incompatible flood-plain development.
    (e) The studies required by Sec. 650.111 (c) and (d) shall be 
summarized in environmental review documents prepared pursuant to 23 CFR 
part 771.
    (f) Local, State, and Federal water resources and flood-plain 
management agencies should be consulted to determine if the proposed 
highway action is consistent with existing watershed and flood-plain 
management programs and to obtain current information on development and 
proposed actions in the affected watersheds.



Sec. 650.113  Only practicable alternative finding.

    (a) A proposed action which includes a significant encroachment 
shall not be approved unless the FHWA finds that the proposed 
significant encroachment is the only practicable alternative. This 
finding shall be included in the final environmental document (final 
environmental impact statement or finding of no significant impact) and 
shall be supported by the following information:
    (1) The reasons why the proposed action must be located in the flood 
plain,
    (2) The alternatives considered and why they were not practicable, 
and
    (3) A statement indicating whether the action conforms to applicable 
State or local flood-plain protection standards.
    (b) [Reserved]

[44 FR 67580, Nov. 26, 1979, as amended at 48 FR 29274, June 24, 1983]



Sec. 650.115  Design standards.

    (a) The design selected for an encroachment shall be supported by 
analyses of design alternatives with consideration given to capital 
costs and risks, and to other economic, engineering, social and 
environmental concerns.
    (1) Consideration of capital costs and risks shall include, as 
appropriate, a risk analysis or assessment which includes:
    (i) The overtopping flood or the base flood, whichever is greater, 
or
    (ii) The greatest flood which must flow through the highway drainage 
structure(s), where overtopping is not practicable. The greatest flood 
used in the analysis is subject to state-of-the-art capability to 
estimate the exceedance probability.
    (2) The design flood for encroachments by through lanes of 
Interstate highways shall not be less than the flood with a 2-percent 
chance of being exceeded in any given year. No minimum design flood is 
specified for Interstate highway ramps and frontage roads or for other 
highways.
    (3) Freeboard shall be provided, where practicable, to protect 
bridge structures from debris- and scour-related failure.
    (4) The effect of existing flood control channels, levees, and 
reservoirs shall be considered in estimating the peak discharge and 
stage for all floods considered in the design.
    (5) The design of encroachments shall be consistent with standards 
established by the FEMA, State, and local governmental agencies for the 
administration of the National Flood Insurance Program for:
    (i) All direct Federal highway actions, unless the standards are 
demonstrably inappropriate, and
    (ii) Federal-aid highway actions where a regulatory floodway has 
been designated or where studies are underway to establish a regulatory 
floodway.
    (b) Rest area buildings and related water supply and waste treatment 
facilities shall be located outside the base flood plain, where 
practicable. Rest area buildings which are located on the base flood 
plain shall be floodproofed against damage from the base flood.
    (c) Where highway fills are to be used as dams to permanently 
impound water more than 50 acre-feet (6.17 x 10\4\ cubic metres) in 
volume or 25 feet (7.6 metres) deep, the hydrologic, hydraulic, and 
structural design of the fill and

[[Page 229]]

appurtenant spillways shall have the approval of the State or Federal 
agency responsible for the safety of dams or like structures within the 
State, prior to authorization by the Division Administrator to advertise 
for bids for construction.



Sec. 650.117  Content of design studies.

    (a) The detail of studies shall be commensurate with the risk 
associated with the encroachment and with other economic, engineering, 
social or environmental concerns.
    (b) Studies by highway agencies shall contain:
    (1) The hydrologic and hydraulic data and design computations,
    (2) The analysis required by Sec. 650.115(a), and
    (3) For proposed direct Federal highway actions, the reasons, when 
applicable, why FEMA criteria (44 CFR 60.3, formerly 24 CFR 1910.3) are 
demonstrably inappropriate.
    (c) For encroachment locations, project plans shall show:
    (1) The magnitude, approximate probability of exceedance and, at 
appropriate locations, the water surface elevations associated with the 
overtopping flood or the flood of Sec. 650.115(a)(1)(ii), and
    (2) The magnitude and water surface elevation of the base flood, if 
larger than the overtopping flood.



Subpart B--Erosion and Sediment Control on Highway Construction Projects

    Source: 59 FR 37939, July 26, 1994, unless otherwise noted.



Sec. 650.201  Purpose.

    The purpose of this subpart is to prescribe policies and procedures 
for the control of erosion, abatement of water pollution, and prevention 
of damage by sediment deposition from all construction projects funded 
under title 23, United States Code.



Sec. 650.203  Policy.

    It is the policy of the Federal Highway Administration (FHWA) that 
all highways funded in whole or in part under title 23, United States 
Code, shall be located, designed, constructed and operated according to 
standards that will minimize erosion and sediment damage to the highway 
and adjacent properties and abate pollution of surface and ground water 
resources. Guidance for the development of standards used to minimize 
erosion and sediment damage is referenced in Sec. 650.211 of this part.



Sec. 650.205  Definitions.

    Erosion control measures and practices are actions that are taken to 
inhibit the dislodging and transporting of soil particles by water or 
wind, including actions that limit the area of exposed soil and minimize 
the time the soil is exposed.
    Permanent erosion and sediment control measures and practices are 
installations and design features of a construction project which remain 
in place and in service after completion of the project.
    Pollutants are substances, including sediment, which cause 
deterioration of water quality when added to surface or ground waters in 
sufficient quantity.
    Sediment control measures and practices are actions taken to control 
the deposition of sediments resulting from surface runoff.
    Temporary erosion and sediment control measures and practices are 
actions taken on an interim basis during construction to minimize the 
disturbance, transportation, and unwanted deposition of sediment.



Sec. 650.207  Plans, specifications and estimates.

    (a) Emphasis shall be placed on erosion control in the preparation 
of plans, specifications and estimates.
    (b) All reasonable steps shall be taken to insure that highway 
project designs for the control of erosion and sedimentation and the 
protection of water quality comply with applicable standards and 
regulations of other agencies.

[39 FR 36332, Oct. 9, 1974]



Sec. 650.209  Construction.

    (a) Permanent erosion and sediment control measures and practices 
shall be established and implemented at the earliest practicable time 
consistent

[[Page 230]]

with good construction and management practices.
    (b) Implementation of temporary erosion and sediment control 
measures and practices shall be coordinated with permanent measures to 
assure economical, effective, and continuous control throughout 
construction.
    (c) Erosion and sediment control measures and practices shall be 
monitored and maintained or revised to insure that they are fulfilling 
their intended function during the construction of the project.
    (d) Federal-aid funds shall not be used in erosion and sediment 
control actions made necessary because of contractor oversight, 
carelessness, or failure to implement sufficient control measures.
    (e) Pollutants used during highway construction or operation and 
material from sediment traps shall not be stockpiled or disposed of in a 
manner which makes them susceptible to being washed into any watercourse 
by runoff or high water. No pollutants shall be deposited or disposed of 
in watercourses.



Sec. 650.211  Guidelines.

    (a) The FHWA adopts the AASHTO Highway Drainage Guidelines, Volume 
III, ``Erosion and Sediment Control in Highway Construction,'' 1992,\1\ 
as guidelines to be followed on all construction projects funded under 
title 23, United States Code. These guidelines are not intended to 
preempt any requirements made by or under State law if such requirements 
are more stringent.
---------------------------------------------------------------------------

    \1\ This document is available for inspection from the FHWA 
headquarters and field offices as prescribed by 49 CFR part 7, appendix 
D. It may be purchased from the American Association of State Highway 
and Transportation Officials offices at Suite 225, 444 North Capitol 
Street, NW., Washington, DC 20001.
---------------------------------------------------------------------------

    (b) Each State highway agency should apply the guidelines referenced 
in paragraph (a) of this section or apply its own guidelines, if these 
guidelines are more stringent, to develop standards and practices for 
the control of erosion and sediment on Federal-aid construction 
projects. These specific standards and practices may reference available 
resources, such as the procedures presented in the AASHTO ``Model 
Drainage Manual,'' 1991.\2\
---------------------------------------------------------------------------

    \2\ This document is available for inspection from the FHWA 
headquarters and field offices as prescribed by 49 CFR part 7, appendix 
D. It may be purchased from the American Association of State Highway 
and Transportation Officials offices at Suite 225, 444 North Capitol 
Street, NW., Washington, DC 20001.
---------------------------------------------------------------------------

    (c) Consistent with the requirements of section 6217(g) of the 
Coastal Zone Act Reauthorization Amendments of 1990 (Pub. L. 101-508, 
104 Stat. 1388-299), highway construction projects funded under title 
23, United States Code, and located in the coastal zone management areas 
of States with coastal zone management programs approved by the United 
States Department of Commerce, National Oceanic and Atmospheric 
Administration, should utilize ``Guidance Specifying Management Measures 
for Sources of Nonpoint Source Pollution in Coastal Waters,'' 84-B-92-
002, U.S. EPA, January 1993.\3\ State highway agencies should refer to 
this Environmental Protection Agency guidance document for the design of 
projects within coastal zone management areas.
---------------------------------------------------------------------------

    \3\ This document is available for inspection and copying as 
prescribed by 49 CFR part 7, appendix D.
---------------------------------------------------------------------------



             Subpart C--National Bridge Inspection Standards



Sec. 650.301  Application of standards.

    The National Bridge Inspection Standards in this part apply to all 
structures defined as bridges located on all public roads. In acordance 
with the AASHTO (American Association of State Highway and 
Transportation Officials) Transportation Glossary, a bridge is defined 
as a structure including supports erected over a depression or an 
obstruction, such as water, highway, or railway, and having a track or 
passageway for carrying traffic or other moving loads, and having an 
opening measured along the center of the roadway of more than 20 feet 
between undercopings of abutments or spring lines of arches, or extreme 
ends of openings for multiple boxes; it may also include multiple pipes, 
where the clear distance between openings is less

[[Page 231]]

than half of the smaller contiguous opening.

[44 FR 25435, May 1, 1979, as amended at 51 FR 16834, May 7, 1986]



Sec. 650.303  Inspection procedures.

    (a) Each highway department shall include a bridge inspection 
organization capable of performing inspections, preparing reports, and 
determining ratings in acordance with the provisions of the AASHTO 
Manual \1\ and the Standards contained herein.
---------------------------------------------------------------------------

    \1\ The AASHTO Manual referred to in this part is the Manual for 
Maintenance Inspection of Bridges 1983 together with subsequent interim 
changes or the most recent version of the AASHTO Manual published by the 
American Association of State Highway and Transportation Officials. A 
copy of the Manual may be examined during normal business hours at the 
office of each Division Administrator of the Federal Highway 
Administration, at the office of each Regional Federal Highway 
Administrator, and at the Washington Headquarters of the Federal Highway 
Administration. The addresses of those document insepction facilities 
are set forth in appendix D to part 7 of the regulations of the Office 
of the Secretary (49 CFR part 7). In addition, a copy of the Manual may 
be secured upon payment in advance by writing to the American 
Association of State Highway and Transportation Officials, 444 N. 
Capitol Street, NW., Suite 225, Washington, DC 20001.
---------------------------------------------------------------------------

    (b) Bridge inspectors shall meet the minimum qualifications stated 
in Sec. 650.307.
    (c) Each structure required to be inspected under the Standards 
shall be rated as to its safe load carrying capacity in accordance with 
section 4 of the AASHTO Manual. If it is determined under this rating 
procedure that the maximum legal load under State law exceeds the load 
permitted under the Operating Rating, the bridge must be posted in 
conformity with the AASHTO Manual or in accordance with State law.
    (d) Inspection records and bridge inventories shall be prepared and 
maintained in accordance with the Standards.
    (e) The individual in charge of the organizational unit that has 
been delegated the responsibilities for bridge inspection, reporting and 
inventory shall determine and designate on the individual inspection and 
inventory records and maintain a master list of the following:
    (1) Those bridges which contain fracture critical members, the 
location and description of such members on the bridge and the 
inspection frequency and procedures for inspection of such members. 
(Fracture critical members are tension members of a bridge whose failure 
will probably cause a portion of or the entire bridge to collapse.)
    (2) Those bridges with underwater members which cannot be visually 
evaluated during periods of low flow or examined by feel for condition, 
integrity and safe load capacity due to excessive water depth or 
turbidity. These members shall be described, the inspection frequency 
stated, not to exceed five years, and the inspection procedure 
specified.
    (3) Those bridges which contain unique or special features requiring 
additional attention during inspection to ensure the safety of such 
bridges and the inspection frequency and procedure for inspection of 
each such feature.
    (4) The date of last inspection of the features designated in 
paragraphs (e)(1) through (3) of this section and a description of the 
findings and follow-up actions, if necessary, resulting from the most 
recent inspection of fracture critical details, underwater members or 
special features of each so designated bridge.

[36 FR 7851, Apr. 27, 1971. Redesignated at 39 FR 10430, Mar. 20, 1974, 
as amended at 44 FR 25435, May 1, 1979; 53 FR 32616, Aug. 26, 1988]



Sec. 650.305  Frequency of inspections.

    (a) Each bridge is to be inspected at regular intervals not to 
exceed 2 years in accordance with section 2.3 of the AASHTO Manual.
    (b) Certain types or groups of bridges will require inspection at 
less than 2-year intervals. The depth and frequency to which bridges are 
to be inspected will depend on such factors as age, traffic 
characteristics, state of maintenance, and known deficiencies. The 
evaluation of these factors will be the responsibility of the individual 
in charge of the inspection program.
    (c) The maximum inspection interval may be increased for certain 
types or groups of bridges where past inspection reports and favorable 
experience and

[[Page 232]]

analysis justify the increased interval of inspection. If a State 
proposes to inspect some bridges at greater than the specified two-year 
interval, the State shall submit a detailed proposal and supporting data 
to the Federal Highway Administrator for approval. The maximum time 
period between inspections shall not exceed four years.

[36 FR 7851, Apr. 27, 1971. Redesignated at 39 FR 10430, Mar. 20, 1974, 
as amended at 39 FR 29590, Aug. 16, 1974; 53 FR 32616, Aug. 26, 1988; 57 
FR 53281, Nov. 9, 1992]



Sec. 650.307  Qualifications of personnel.

    (a) The individual in charge of the organizational unit that has 
been delegated the responsibilities for bridge inspection, reporting, 
and inventory shall possess the following minimum qualifications:
    (1) Be a registered professional engineer; or
    (2) Be qualified for registration as a professional engineer under 
the laws of the State; or
    (3) Have a minimum of 10 years experience in bridge inspection 
assignments in a responsible capacity and have completed a comprehensive 
training course based on the ``Bridge Inspector's Training Manual,'' \2\ 
which has been developed by a joint Federal-State task force, and 
subsequent additions to the manual.\3\
---------------------------------------------------------------------------

    \2\ The ``Bridge Inspector's Training Manual'' may be purchased from 
the Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402.
    \3\ The following publications are supplements to the ``Bridge 
Inspector's Training Manual'': ``Bridge Inspector's Manual for Movable 
Bridges.'' 1977, GPO Stock No. 050-002-00103-5; ``Culvert Inspector's 
Training Manual,'' July 1986, GPO Stock No. 050-001-0030-7; and 
``Inspection of Fracture Critical Bridge Members,'' 1986, GPO Stock No. 
050-001-00302-3.
---------------------------------------------------------------------------

    (b) An individual in charge of a bridge inspection team shall 
possess the following minimum qualifications:
    (1) Have the qualifications specified in paragraph (a) of this 
section; or
    (2) Have a minimum of 5 years experience in bridge inspection 
assignments in a responsible capacity and have completed a comprehensive 
training course based on the ``Bridge Inspector's Training Manual,'' 
which has been developed by a joint Federal-State task force.
    (3) Current certification as a Level III or IV Bridge Safety 
Inspector under the National Society of Professional Engineer's program 
for National Certification in Engineering Technologies (NICET) \4\ is an 
alternate acceptable means for establishing that a bridge inspection 
team leader is qualified.
---------------------------------------------------------------------------

    \4\ For information on NICET program certification contact: National 
Institute for Certification in Engineering Technologies, 1420 King 
Street, Alexandria, Virginia 22314, Attention: John D. Antrim, P.E., 
Phone (703) 684-2835.

[36 FR 7851, Apr. 27, 1971. Redesignated at 39 FR 10430, Mar. 20, 1974, 
as amended at 44 FR 25435, May 1, 1979; 53 FR 32616, Aug. 26, 1988]



Sec. 650.309  Inspection report.

    The findings and results of bridge inspections shall be recorded on 
standard forms. The data required to complete the forms and the 
functions which must be performed to compile the data are contained in 
section 3 of the AASHTO Manual.

[39 FR 29590, Aug. 16, 1974]



Sec. 650.311  Inventory.

    (a) Each State shall prepare and maintain an inventory of all bridge 
structures subject to the Standards. Under these Standards, certain 
structure inventory and appraisal data must be collected and retained 
within the various departments of the State organization for collection 
by the Federal Highway Administration as needed. A tabulation of this 
data is contained in the structure inventory and appraisal sheet 
distributed by the Federal Highway Administration as part of the 
Recording and Coding Guide for the Structure Inventory and Appraisal of 
the Nation's Bridges (Coding Guide) in January of 1979. Reporting 
procedures have been developed by the Federal Highway Administration.
    (b) Newly completed structures, modification of existing structures 
which would alter previously recorded data on the inventory forms or 
placement of load restriction signs on the approaches to or at the 
structure itself

[[Page 233]]

shall be entered in the State's inspection reports and the computer 
inventory file as promptly as practical, but no later than 90 days after 
the change in the status of the structure for bridges directly under the 
State's jurisdiction and no later than 180 days after the change in 
status of the structure for all other bridges on public roads within the 
State.

[44 FR 25435, May 1, 1979, as amended at 53 FR 32617, Aug. 26, 1988]



    Subpart D--Highway Bridge Replacement and Rehabilitation Program

    Source: 44 FR 15665, Mar. 15, 1979, unless otherwise noted.



Sec. 650.401  Purpose.

    The purpose of this regulation is to prescribe policies and outline 
procedures for administering the Highway Bridge Replacement and 
Rehabilitation Program in accordance with 23 U.S.C. 144.



Sec. 650.403  Definition of terms.

    As used in this regulation:
    (a) Bridge. A structure, including supports, erected over a 
depression or an obstruction, such as water, a highway, or a railway, 
having a track or passageway for carrying traffic or other moving loads, 
and having an opening measured along the center of the roadway of more 
than 20 feet between undercopings of abutments or spring lines of 
arches, or extreme ends of the openings for multiple boxes; it may 
include multiple pipes where the clear distance between openings is less 
than half of the smaller contiguous opening.
    (b) Sufficiency rating. The numerical rating of a bridge based on 
its structural adequacy and safety, essentiality for public use, and its 
serviceability and functional obsolescence.
    (c) Rehabilitation. The major work required to restore the 
structural integrity of a bridge as well as work necessary to correct 
major safety defects.



Sec. 650.405  Eligible projects.

    (a) General. Deficient highway bridges on all public roads may be 
eligible for replacement or rehabilitation.
    (b) Types of projects which are eligible. The following types of 
work are eligible for participation in the Highway Bridge Replacement 
and Rehabilitation Program (HBRRP), hereinafter known as the bridge 
program.
    (1) Replacement. Total replacement of a structurally deficient or 
functionally obsolete bridge with a new facility constructed in the same 
general traffic corridor. A nominal amount of approach work, sufficient 
to connect the new facility to the existing roadway or to return the 
gradeline to an attainable touchdown point in accordance with good 
design practice is also eligible. The replacement structure must meet 
the current geometric, construction and structural standards required 
for the types and volume of projected traffic on the facility over its 
design life.
    (2) Rehabilitation. The project requirements necessary to perform 
the major work required to restore the structural integrity of a bridge 
as well as work necessary to correct major safety defects are eligible 
except as noted under ineligible work. Bridges to be rehabilitated both 
on or off the F-A System shall, as a minimum, conform with the 
provisions of 23 CFR part 625, Design Standards for Federal-aid 
Highways, for the class of highway on which the bridge is a part.
    (c) Ineligible work. Except as otherwise prescribed by the 
Administrator, the costs of long approach fills, causeways, connecting 
roadways, interchanges, ramps, and other extensive earth structures, 
when constructed beyond the attainable touchdown point, are not eligible 
under the bridge program.



Sec. 650.407  Application for bridge replacement or rehabilitation.

    (a) Agencies participate in the bridge program by conducting bridge 
inspections and submitting Structure Inventory and Appraisal (SI&A) 
sheet inspection data. Federal and local governments supply SI&A sheet 
data to the State agency for review and processing. The State is 
responsible for submitting the six computer card format or tapes 
containing all public road SI&A sheet bridge information through

[[Page 234]]

the Division Administrator of the Federal Highway Administration (FHWA) 
for processing. These requirements are prescribed in 23 CFR 650.309 and 
650.311, the National Bridge Inspection Standards.
    (b) Inventory data may be submitted as available and shall be 
submitted at such additional times as the FHWA may request.
    (c) Inventory data on bridges that have been strengthened or 
repaired to eliminate deficiencies, or those that have been replaced or 
rehabilitated using bridge replacement and/or other funds, must be 
revised in the inventory through data submission.
    (d) The Secretary may, at the request of a State, inventory bridges, 
on and off the Federal-aid system, for historic significance.

[44 FR 15665, Mar. 15, 1979, as amended at 44 FR 72112, Dec. 13, 1979]



Sec. 650.409  Evaluation of bridge inventory.

    (a) Sufficiency rating of bridges. Upon receipt and evaluation of 
the bridge inventory, a sufficiency rating will be assigned to each 
bridge by the Secretary in accordance with the approved AASHTO \1\ 
sufficiency rating formula. The sufficiency rating will be used as a 
basis for establishing eligibility and priority for replacement or 
rehabilitation of bridges; in general the lower the rating, the higher 
the priority.
---------------------------------------------------------------------------

    \1\ American Association of State Highway and Transporation 
Officials, Suite 225, 444 North Capitol Street, NW, Washington, DC 
20001.
---------------------------------------------------------------------------

    (b) Selection of bridges for inclusion in State program. After 
evaluation of the inventory and assignment of sufficiency ratings, the 
Secretary will provide the State with a selection list of bridges within 
the State that are eligible for the bridge program. From that list or 
from previously furnished selection lists, the State may select bridge 
projects.



Sec. 650.411  Procedures for bridge replacement and rehabilitation projects.

    (a) Consideration shall be given to projects which will remove from 
service highway bridges most in danger of failure.
    (b) Submission and approval of projects. (1) Bridge replacement or 
rehabilitation projects shall be submitted by the State to the Secretary 
in accordance with 23 CFR part 630, subpart A Federal-Aid Programs, 
Approval and Authorization.
    (2) Funds apportioned to a State shall be made available throughout 
each State on a fair and equitable basis.
    (c)(1) Each approved project will be designed, constructed, and 
inspected for acceptance in the same manner as other projects on the 
system on which the project is located. It shall be the responsibility 
of the State agency to properly maintain, or cause to be properly 
maintained, any project constructed under this bridge program. The State 
highway agency shall enter into a formal agreement for maintenance with 
appropriate local government officials in cases where an eligible 
project is located within and is under the legal authority of such a 
local government.
    (2) Whenever a deficient bridge is replaced or its deficiency 
alleviated by a new bridge under the bridge program, the deficient 
bridge shall either be dismantled or demolished or its use limited to 
the type and volume of traffic the structure can safely service over its 
remaining life. For example, if the only deficiency of the existing 
structure is inadequate roadway width and the combination of the new and 
existing structure can be made to meet current standards for the volume 
of traffic the facility will carry over its design life, the existing 
bridge may remain in place and be incorporated into the system.

[44 FR 15665, Mar. 15, 1979, as amended at 44 FR 72112, Dec. 13, 1979]



Sec. 650.413  Funding.

    (a) Funds authorized for carrying out the Highway Bridge Replacement 
and Rehabilitation Program are available for obligation at the beginning 
of the fiscal year for which authorized and remain available for 
expenditure for the same period as funds apportioned for projects on the 
Federal-aid primary system.

[[Page 235]]

    (b) The Federal share payable on account of any project carried out 
under 23 U.S.C. 144 shall be 80 percent of the eligible cost.
    (c) Not less than 15 percent nor more than 35 percent of the 
apportioned funds shall be expended for projects located on public 
roads, other than those on a Federal-aid system. The Secretary after 
consultation with State and local officials may, with respect to a 
State, reduce the requirement for expenditure for bridges not on a 
Federal-aid system when he determines that such State has inadequate 
needs to justify such expenditure.



Sec. 650.415  Reports.

    The Secretary must report annually to the Congress on projects 
approved and current inventories together with recommendations for 
further improvements.

Subparts E-F [Reserved]



         Subpart G--Discretionary Bridge Candidate Rating Factor

    Source: 48 FR 52296, Nov. 17, 1983, unless otherwise noted.



Sec. 650.701  Purpose.

    The purpose of this regulation is to describe a rating factor used 
as part of a selection process of allocation of discretionary bridge 
funds made available to the Secretary of Transportation under 23 U.S.C. 
144.



Sec. 650.703  Eligible projects.

    (a) Deficient highway bridges on Federal-aid highway system roads 
may be eligible for allocation of discretionary bridge funds to the same 
extent as they are for bridge funds apportioned under 23 U.S.C. 144, 
provided that the total project cost for a discretionary bridge 
candidate is at least $10 million or twice the amont of 23 U.S.C. 144 
funds apportioned to the State during the fiscal year for which funding 
for the candidate bridge is requested.
    (b) After the effective date of this regulation for the 
discretionary bridge candidate rating factor, only candidate bridges not 
previously selected with a computed rating factor of 100 or less will be 
eligible for consideration.



Sec. 650.705  Application for discretionary bridge funds.

    Each year through its field offices, the FHWA will issue an annual 
call for discretionary bridge candidate submittals including updates of 
previously submitted but not selected projects. Each State is 
responsible for submitting such data as required for candidate bridges. 
Data requested will include structure number, funds needed by fiscal 
year, total project cost, current average daily truck traffic and a 
narrative describing the existing bridge, the proposed new or 
rehabilitated bridge and other relevant factors which the State believes 
may warrant special consideration.



Sec. 650.707  Rating factor.

    (a) The following formula is to be used in the selection process for 
ranking discretionary bridge candidates:
[GRAPHIC] [TIFF OMITTED] TC14OC91.010


The lower the rating factor, the higher the priority for selection and 
funding.
    (b) The terms in the rating factor are defined as follows:

SR is Sufficiency Rating computed as illustrated in appendix A of the 
Recording and Coding Guide for the Structure inventory and Appraisal of 
the Nation's Bridges, USDOT/FHWA (latest edition); (If SR is less than 
1.0, use SR=1.0);
ADT is Average Daily Traffic in thousands taking the most current value 
from the national bridge inventory data;

[[Page 236]]

ADTT is Average Daily Truck Traffic in thousands (Pick up trucks and 
light delivery trucks not included);
For load posted bridges, the ADTT furnished should be that which would 
use the bridge if traffic were not restricted.
The ADTT should be the annual average volume, not peak or seasonal.

D is Defense Highway System Status
D=1 if not on defense highway
D=1.5 if bridge carries a designated defense highway

    The last term of the rating factor expression includes the State's 
unobligated balance of funds received under 23 U.S.C. 144 as of June 30 
preceding the date of calculation, and the total funds received under 23 
U.S.C. 144 for the last four fiscal years ending with the most recent 
fiscal year of the FHWA's annual call for discretionary bridge candidate 
submittals; (if unobligated HBRRP balance is less than $10 million, use 
zero balance);

TPC is Total Project Cost in millions of dollars;
HBRRP is Highway Bridge Replacement and Rehabilitation Program;
ADT' is ADT plus ADTT.

    (c) In order to balance the relative importance of candidate bridges 
with very low (less than one) sufficiency ratings and very low ADT's 
against candidate bridges with high ADT's, the minimum sufficiency 
rating used will be 1.0. If the computed sufficiency rating for a 
candidate bridge is less than 1.0, use 1.0 in the rating factor formula.
    (d) If the unobligated balance of HBRRP funds for the State is less 
than $10 million, the HBRRP modifier is 1.0. This will limit the effect 
of the modifier on those States with small apportionments or those who 
may be accumulating funds to finance a major bridge.

[48 FR 52296, Nov. 17, 1983; 48 FR 53407, Nov. 28, 1983]



Sec. 650.709  Special considerations.

    (a) The selection process for new discretionary bridge projects will 
be based upon the rating factor priority ranking. However, although not 
specifically included in the rating factor formula, special 
consideration will be given to bridges that are closed to all traffic or 
that have a load restriction of less than 10 tons. Consideration will 
also be given to bridges with other unique situations, and to bridge 
candidates in States which have not previously been allocated 
discretionary bridge funds.
    (b) The need to administer the program from a balanced national 
perspective requires that the special cases set forth in paragraph (a) 
of this section and other unique situations be considered in the 
discretionary bridge candidate evaluation process.
    (c) Priority consideration will be given to the continuation and 
completion of bridge projects previously begun with discretionary bridge 
funds.



             Subpart H--Navigational Clearances for Bridges

    Source: 52 FR 28139, July 28, 1987, unless otherwise noted.



Sec. 650.801  Purpose.

    The purpose of this regulation is to establish policy and to set 
forth coordination procedures for Federal-aid highway bridges which 
require navigational clearances.



Sec. 650.803  Policy.

    It is the policy of FHWA:
    (a) To provide clearances which meet the reasonable needs of 
navigation and provide for cost-effective highway operations,
    (b) To provide fixed bridges wherever practicable, and
    (c) To consider appropriate pier protection and vehicular protective 
and warning systems on bridges subject to ship collisions.



Sec. 650.805  Bridges not requiring a USCG permit.

    (a) The FHWA has the responsibility under 23 U.S.C. 144(h) to 
determine that a USCG permit is not required for bridge construction. 
This determination shall be made at an early stage of project 
development so that any necessary coordination can be accomplished 
during environmental processing.
    (b) A USCG permit shall not be required if the FHWA determines that 
the proposed construction, reconstruction, rehabilitation, or 
replacement of the federally aided or assisted bridge is over waters (1) 
which are not used or

[[Page 237]]

are not susceptible to use in their natural condition or by reasonable 
improvement as a means to transport interstate or foreign commerce and 
(2) which are (i) not tidal, or (ii) if tidal, used only by recreational 
boating, fishing, and other small vessels less than 21 feet in length.
    (c) The highway agency (HA) shall assess the need for a USCG permit 
or navigation lights or signals for proposed bridges. The HA shall 
consult the appropriate District Offices of the U.S. Army Corps of 
Engineers if the susceptibility to improvement for navigation of the 
water of concern is unknown and shall consult the USCG if the types of 
vessels using the waterway are unknown.
    (d) For bridge crossings of waterways with navigational traffic 
where the HA believes that a USCG permit may not be required, the HA 
shall provide supporting information early in the environmental analysis 
stage of project development to enable the FHWA to make a determination 
that a USCG permit is not required and that proposed navigational 
clearances are reasonable.
    (e) Since construction in waters exempt from a USCG permit may be 
subject to other USCG authorizations, such as approval of navigation 
lights and signals and timely notice to local mariners of waterway 
changes, the USCG should be notified whenever the proposed action may 
substantially affect local navigation.



Sec. 650.807  Bridges requiring a USCG permit.

    (a) The USCG has the responsibility (1) to determine whether a USCG 
permit is required for the improvement or construction of a bridge over 
navigable waters except for the exemption exercised by FHWA in 
Sec. 650.805 and (2) to approve the bridge location, alignment and 
appropriate navigational clearances in all bridge permit applications.
    (b) A USCG permit shall be required when a bridge crosses waters 
which are: (1) tidal and used by recreational boating, fishing, and 
other small vessels 21 feet or greater in length or (2) used or 
susceptible to use in their natural condition or by reasonable 
improvement as a means to transport interstate or foreign commerce. If 
it is determined that a USCG permit is required, the project shall be 
processed in accordance with the following procedures.
    (c) The HA shall initiate coordination with the USCG at an early 
stage of project development and provide opportunity for the USCG to be 
involved throughout the environmental review process in accordance with 
23 CFR part 771. The FHWA and Coast Guard have developed internal 
guidelines which set forth coordination procedures that both agencies 
have found useful in streamlining and expediting the permit approval 
process. These guidelines include (1) USCG/FHWA Procedures for Handling 
Projects which Require a USCG Permit \1\ and (2) the USCG/FHWA 
Memorandum of Understanding on Coordinating The Preparation and 
Processing of Environmental Projects. \2\
---------------------------------------------------------------------------

    \1\ This document is an internal directive in the USCG Bridge 
Administration Manual, Enclosure 1a, COMDT INST M16590.5, change 2 dated 
Dec. 1, 1983. It is available for inspection and copying from the U.S. 
Coast Guard or the Federal Highway Administration as prescribed in 49 
CFR part 7, appendices B and D.
    \2\ FHWA Notice 6640.22 dated July 17, 1981, is available for 
inspection and copying as prescribed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (d) The HA shall accomplish sufficient preliminary design and 
consultation during the environmental phase of project development to 
investigate bridge concepts, including the feasibility of any proposed 
movable bridges, the horizontal and vertical clearances that may be 
required, and other location considerations which may affect navigation. 
At least one fixed bridge alternative shall be included with any 
proposal for a movable bridge to provide a comparative analysis of 
engineering, social, economic and environmental benefit and impacts.
    (e) The HA shall consider hydraulic, safety, environmental and 
navigational needs along with highway costs when designing a proposed 
navigable waterway crossing.
    (f) For bridges where the risk of ship collision is significant, 
HA's shall consider, in addition to USCG requirements, the need for pier 
protection and warning systems as outlined in FHWA

[[Page 238]]

Technical Advisory 5140.19, Pier Protection and Warning Systems for 
Bridges Subject to Ship Collisions, dated February 11, 1983.
    (g) Special navigational clearances shall normally not be provided 
for accommodation of floating construction equipment of any type that is 
not required for navigation channel maintenance. If the navigational 
clearances are influenced by the needs of such equipment, the USCG 
should be consulted to determine the appropriate clearances to be 
provided.
    (h) For projects which require FHWA approval of plans, 
specifications and estimates, preliminary bridge plans shall be approved 
at the appropriate level by FHWA for structural concepts, hydraulics, 
and navigational clearances prior to submission of the permit 
application.
    (i) If the HA bid plans contain alternative designs for the same 
configuration (fixed or movable), the permit application shall be 
prepared in sufficient detail so that all alternatives can be evaluated 
by the USCG. If appropriate, the USCG will issue a permit for all 
alternatives. Within 30 days after award of the construction contract, 
the USCG shall be notified by the HA of the alternate which was 
selected. The USCG procedure for evaluating permit applications which 
contain alternates is presented in its Bridge Administration Manual 
(COMDT INST M16590.5). \3\ The FHWA policy on alternates, Alternate 
Design for Bridges; Policy Statement, was published at 48 FR 21409 on 
May 12, 1983.
---------------------------------------------------------------------------

    \3\ United States Coast Guard internal directives are available for 
inspection and copying as prescribed in 49 CFR part 7, appendix B.
---------------------------------------------------------------------------



Sec. 650.809  Movable span bridges.

    A fixed bridge shall be selected wherever practicable. If there are 
social, economic, environmental or engineering reasons which favor the 
selection of a movable bridge, a cost benefit analysis to support the 
need for the movable bridge shall he prepared as a part of the 
preliminary plans.



PART 652--PEDESTRIAN AND BICYCLE ACCOMMODATIONS AND PROJECTS--Table of Contents




Sec.
652.1  Purpose.
652.3  Definitions.
652.5  Policy.
652.7  Eligibility.
652.9  Federal participation.
652.11  Planning.
652.13  Design and construction criteria.

    Authority: 23 U.S.C. 109, 217, 315, 402(b)(1)(F); 49 CFR 1.48(b).

    Source: 49 FR 10662, Mar. 22, 1984, unless otherwise noted.



Sec. 652.1  Purpose.

    To provide policies and procedures relating to the provision of 
pedestrian and bicycle accommodations on Federal-aid projects, and 
Federal participation in the cost of these accommodations and projects.



Sec. 652.3  Definitions.

    (a) Bicycle. A vehicle having two tandem wheels, propelled solely by 
human power, upon which any person or persons may ride.
    (b) Bikeway. Any road, path, or way which in some manner is 
specifically designated as being open to bicycle travel, regardless of 
whether such facilities are designated for the exclusive use of bicycles 
or are to be shared with other transportation modes.
    (c) Bicycle Path (Bike Path). A bikeway physically separated from 
motorized vehicular traffic by an open space or barrier and either 
within the highway right-of-way or within an independent right-of-way.
    (d) Bicycle Lane (Bike Lane). A portion of a roadway which has been 
designated by striping, signing and pavement markings for the 
preferential or exclusive use of bicyclists.
    (e) Bicycle Route (Bike Route). A segment of a system of bikeways 
designated by the jurisdiction having authority with appropriate 
directional and informational markers, with or without a specific 
bicycle route number.
    (f) Shared Roadway. Any roadway upon which a bicycle lane is not 
designated and which may be legally used by bicycles regardless of 
whether such

[[Page 239]]

facility is specifically designated as a bikeway.
    (g) Pedestrian Walkway or Walkway. A continuous way designated for 
pedestrians and separated from the through lanes for motor vehicles by 
space or barrier.
    (h) Highway Construction Project. A project financed in whole or in 
part with Federal-aid or Federal funds for the construction, 
reconstruction or improvement of a highway or portions thereof, 
including bridges and tunnels.
    (i) Independent Bicycle Construction Project (Independent Bicycle 
Project). A project designation used to distinguish a bicycle facility 
constructed independently and primarily for use by bicyclists from an 
improvement included as an incidental part of a highway construction 
project.
    (j) Independent Pedestrian Walkway Construction Project (Independent 
Walkway Project). A project designation used to distinguish a walkway 
constructed independently and solely as a pedestrian walkway project 
from a pedestrian improvement included as an incidental part of a 
highway construction project.
    (k) Incidental Bicycle or Pedestrian Walkway Construction Project 
(Incidental Feature). One constructed as an incidental part of a highway 
construction project.
    (l) Nonconstruction Bicycle Project. A bicycle project not involving 
physical construction which enhances the safe use of bicycles for 
transportation purposes.
    (m) Snowmobile. A motorized vehicle solely designed to operate on 
snow or ice.



Sec. 652.5  Policy.

    The safe accommodation of pedestrians and bicyclists should be given 
full consideration during the development of Federal-aid highway 
projects, and during the construction of such projects. The special 
needs for the elderly and the handicapped shall be considered in all 
Federal-aid projects that include pedestrian facilities. Where current 
or anticipated pedestrian and/or bicycle traffic presents a potential 
conflict with motor vehicle traffic, every effort shall be made to 
minimize the detrimental effects on all highway users who share the 
facility. On highways without full control of access where a bridge deck 
is being replaced or rehabilitated, and where bicycles are permitted to 
operate at each end, the bridge shall be reconstructed so that bicycles 
can be safely accommodated when it can be done at a reasonable cost. 
Consultation with local groups of organized bicyclists is to be 
encouraged in the development of bicycle projects.



Sec. 652.7  Eligibility.

    (a) Independent bicycle projects, incidental bicycle projects, and 
nonconstruction bicycle projects must be principally for transportation 
rather than recreational use and must meet the project conditions for 
authorization where applicable.
    (b) The implementation of pedestrian and bicycle accommodations may 
be authorized for Federal-aid participation as either incidental 
features of highways or as independent projects where all of the 
following conditions are satisfied.
    (1) The safety of the motorist, bicyclist, and/or pedestrian will be 
enhanced by the project.
    (2) The project is initiated or supported by the appropriate State 
highway agency(ies) and/or the Federal land management agency. Projects 
are to be located and designed pursuant to an overall plan, which 
provides due consideration for safety and contiguous routes.
    (3) A public agency has formally agreed to:
    (i) Accept the responsibility for the operation and maintenance of 
the facility,
    (ii) Ban all motorized vehicles other than maintenance vehicles, or 
snowmobiles where permitted by State or local regulations, from 
pedestrian walkways and bicycle paths, and
    (iii) Ban parking, except in the case of emergency, from bicycle 
lanes that are contiguous to traffic lanes.
    (4) The estimated cost of the project is consistent with the 
anticipated benefits to the community.
    (5) The project will be designed in substantial conformity with the 
latest official design criteria. (See Sec. 652.13.)

[49 FR 10662, Mar. 22, 1984; 49 FR 14729, Apr. 13, 1984]

[[Page 240]]



Sec. 652.9  Federal participation.

    (a) Independent walkway projects, independent bicycle projects and 
nonconstruction bicycle projects shall be financed with 100 percent 
Federal-aid primary, secondary or urban highway funds, provided the 
total amount obligated for all such projects in any one State in any 
fiscal year does not exceed $4.5 million of Federal-aid funds or a 
lesser amount apportioned by the Federal Highway Administrator to avoid 
exceeding the annual $45 million cost limitation on these projects for 
all States in a fiscal year. The Federal Highway Administrator may, upon 
application, waive this limitation for a State for any fiscal year. This 
limitation also applies to projects funded under Sec. 652.9(d). This 
limitation does not apply to projects of the type described in 
Sec. 652.9(c). The FHWA Offices of Direct Federal Programs and 
Engineering will coordinate projects of the type described in 
Sec. 652.9(d) to ensure that the annual cost limitations will not be 
exceeded.
    (b) Specific eligibility requirements for Federal-aid participation 
in independent and nonconstruction projects are:
    (1) An independent walkway project must be constructed on highway 
right-of-way or easement, or right-of-way acquired for this purpose. 
Independent walkway projects may be constructed separately or in 
conjunction with a Federal-aid highway construction project. Where an 
independent walkway project is located away from the Federal-aid highway 
right-of-way, it must serve pedestrians who would normally desire to use 
the Federal-aid route.
    (2) An independent bicycle project may include the acquisition of 
land needed for the facility, or such projects may be constructed on 
existing highway right-of-way or easement acquired for this purpose. 
Independent bicycle projects may include construction of bicycle lanes, 
paths, shelters, bicycle parking facilities and other roadway and bridge 
work necessary to accommodate bicyclists.
    (3) Nonconstruction bicycle projects must be related to the safe use 
of bicycles for transportation, and may include safety educational 
material and route maps for safe bicycle transportation purposes. 
Nonconstruction bicycle projects shall not include salaries for 
administration, law enforcement, maintenance and similar items required 
to operate transportation networks and programs, but may include cost of 
staff or consultants for development of specific nonconstruction 
projects.
    (c) Bicycle and pedestrian accommodations may also be constructed as 
incidental features of highway construction projects. These incidental 
features may be financed with the same type of Federal-aid funds, 
including funds of the type described in Sec. 652.9(d) (except 
Interstate construction funds) and at the same Federal share payable as 
a basic highway project. These accommodations are not subject to the 
funding limitations for independent walkway, independent bicycle and 
nonconstruction bicycle projects. In the case of the Interstate 
construction projects, Federal-aid Interstate construction funds may 
only be used to replace existing facilities that would be interrupted by 
construction of the project, or to mitigate specific environmental 
impacts. Interstate 4R funds provided by 23 U.S.C. 104(b)(5)(B) may be 
used only for incidental features. As incidental features, these 
accommodations must be part of a highway improvement and must be located 
within the right-of-way of the highway, including land acquired under 23 
U.S.C. 319 (Scenic Enhancement Program).
    (d) Funds authorized for Federal lands highways (forest highways, 
public lands highways, park roads, parkways, and Indian reservation 
roads which are public roads), forest development roads and trails 
(i.e., roads or trails under the jurisdiction of the Forest Service), 
and public lands development roads and trails (i.e., roads or trails 
which the Secretary of the Interior determines are of primary importance 
for the development, protection, administration, and utilization of 
public lands and resources under his/her control), may be used for 
independent bicycle routes and independent walkway projects. These funds 
may not be used for nonconstruction bicycle projects.

[[Page 241]]



Sec. 652.11  Planning.

    Federally aided bicycle and pedestrian projects implemented within 
urbanized areas must be included in the transportation improvement 
program/annual (or biennial) element unless excluded by agreement 
between the State and the metropolitan planning organization.



Sec. 652.13  Design and construction criteria.

    (a) The American Association of State Highway and Transportation 
Officials' ``Guide for Development of New Bicycle Facilities, 1981'' 
(AASHTO Guide) or equivalent guides developed in cooperation with State 
or local officials and acceptable to the division office of the FHWA, 
shall be used as standards for the construction and design of bicycle 
routes. Copies of the AASHTO Guide may be obtained from the American 
Association of State Highway and Transportation Officials, 444 North 
Capitol Street, NW., Suite 225, Washington, DC 20001.
    (b) Curb cuts and other provisions as may be appropriate for the 
handicapped are required on all Federal and Federal-aid projects 
involving the provision of curbs or sidewalks at all pedestrian 
crosswalks.



PART 655--TRAFFIC OPERATIONS--Table of Contents




Subparts A-C [Reserved]

               Subpart D--Traffic Surveillance and Control

Sec.
655.401  Purpose.
655.403  Traffic surveillance and control systems.
655.405  Policy.
655.407  Eligibility.
655.409  Traffic engineering analysis.
655.411  Project administration.

Subpart E [Reserved]

Subpart F--Traffic Control Devices on Federal-Aid and Other Streets and 
                                Highways

655.601  Purpose.
655.602  Definitions.
655.603  Standards.
655.604  Achieving basic uniformity.
655.605  Project procedures.
655.606  Higher cost materials.
655.607  Funding.

Appendix to Subpart F--Alternate Method of Determining the Color of 
          Retroreflective Sign Materials

Subpart G [Reserved]

    Authority: 23 U.S.C. 101(a), 104, 109(d), 114(a), 217, 315, and 
402(a); 23 CFR 1.32 and; 49 CFR 1.48(b).

Subparts A-C [Reserved]



               Subpart D--Traffic Surveillance and Control

    Source: 49 FR 8436, Mar. 7, 1984, unless otherwise noted.

    Effective Date Note: At 66 FR 1453, Jan. 8, 2001, subpart D of part 
655, consisting of Secs. 655.401, 655.403, 655.405, 655.407, 655.409, 
and 655.411, was removed and reserved, effective Feb. 7, 2001. At 66 FR 
9198, Feb. 7, 2001, the effective date was delayed until Apr. 8, 2001.



Sec. 655.401  Purpose.

    The purpose of this regulation is to provide policies and procedures 
relating to Federal-aid requirements of traffic surveillance and control 
system projects.



Sec. 655.403  Traffic surveillance and control systems.

    (a) A traffic surveillance and control system is an array of human, 
institutional, hardware and software components designed to monitor and 
control traffic, and to manage transportation on streets and highways 
and thereby improve transportation performance, safety, and fuel 
efficiency.
    (b) Systems may have various degrees of sophistication. Examples 
include, but are not limited to, the following systems: traffic signal 
control, freeway surveillance and control, and highway advisory radio, 
reversible lane control, tunnel and bridge control, adverse weather 
advisory, remote control of movable bridges, and priority lane control.
    (c) Systems start-up is the process necessary to assure the 
surveillance and control project operates effectively. The start-up 
process is accomplished in a limited time period immediately after the 
system is functioning

[[Page 242]]

and consists of activities to achieve optimal performance. These 
activities include evaluation of the hardware, software and system 
performance on traffic; completion and updating of basic data needed to 
operate the system; and any modifications or corrections needed to 
improve system performance.



Sec. 655.405  Policy.

    Implementation and efficient utilization of traffic surveillance and 
control systems are essential to optimize transporation systems 
efficiency, fuel conservation, safety, and environmental quality.



Sec. 655.407  Eligibility.

    Traffic surveillance and control system projects are an integral 
part of Federal-aid highway construction and all phases of these 
projects are eligible for funding with appropriate Federal-aid highway 
funds. The degree of sophistication of any system must be in scale with 
needs and with the availability of personnel and budget resources to 
operate and maintain the system.



Sec. 655.409  Traffic engineering analysis.

    Traffic surveillance and control system projects shall be based on a 
traffic engineering analysis. The analysis should be on a scale 
commensurate with the project scope. The basic elements of the analysis 
are:
    (a) Preliminary analysis. The Preliminary Traffic Engineering 
Analysis should determine: The area to be controlled; transportation 
characteristics; objectives of the system; existing systems resources 
(including communications); existing personnel and budget resources for 
the maintenance and operation of the system.
    (b) Alternative systems analysis. Alternative systems should be 
analyzed as applicable. For the alternatives considered, the analysis 
should encompass incremental initial costs; required maintenance and 
operating budget and personnel resources; and expected benefits. 
Improved use of existing resources, as applicable, should be considered 
also.
    (c) Procurement and system start-up analysis. Procurement and system 
start-up methods should be considered in the analysis. Federal-aid laws, 
regulations, policies, and procedures provide considerable flexibility 
to accommodate the special needs of systems procurement.
    (d) Special features analysis. Unique or special features including 
special components and functions (such as emergency vehicle priority 
control, redundant hardware, closed circuit television, etc.) should be 
specifically evaulated in relation to the objectives of the system and 
incremental initial costs, operating costs, and resource requirements.
    (e) Analysis of laws and ordinances. Existing traffic laws, 
ordinances, and regulations relevant to the effective operation of the 
proposed system shall be reviewed to ensure compatibility.
    (f) Implementation plan. The final element in the traffic 
engineering analysis shall be an implementation plan. It shall include 
needed legislation, systems design, procurement methods, construction 
management procedures including acceptance testing, system start-up 
plan, operation and maintenance plan. It shall include necessary 
institutional arrangements and the dedication of needed personnel and 
budget resources required for the proposed system.

(Approved by the Office of Management and Budget under control number 
2125-0512)

[49 FR 8436, Mar. 7, 1984, as amended at 59 FR 33910, July 1, 1994]



Sec. 655.411  Project administration.

    (a) Prior to authorization of Federal-aid highway funds for 
construction, there should be a commitment to the operations plan (see 
Sec. 655.409 (f)).
    (b) The plans, specifications and estimates submittal shall include 
a total system acceptance plan.
    (c) Project approval actions are delegated to the Division 
Administrator. Approval actions for traffic surveillance and control 
system projects costing over $1,000,000 are subject to review by the 
Regional Administrator prior to approval of plans, specifications, and 
estimates.
    (d) System start-up is an integral part of a surveillance and 
control project.
    (1) Costs for system start-up, over and above those attributable to 
routine

[[Page 243]]

maintenance and operation, are eligible for Federal-aid funding.
    (2) Final project acceptance should not occur until after completion 
of the start-up phase.

Subpart E [Reserved]



Subpart F--Traffic Control Devices on Federal-Aid and Other Streets and 
                                Highways

    Source: 48 FR 46776, Oct. 14, 1983, unless otherwise noted.



Sec. 655.601  Purpose.

    To prescribe the policies and procedures of the Federal Highway 
Administration (FHWA) to obtain basic uniformity of traffic control 
devices on all streets and highways in accordance with the following 
references that are approved by the FHWA for application on Federal-aid 
projects:
    (a) Manual on Uniform Traffic Control Devices (MUTCD), 2000 
Millennium Edition, FHWA dated December, 2000. This publication is 
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51 and is on file at the Office of the Federal Register, 800 North 
Capitol Street, NW., Suite 700, Washington, DC. It is available for 
inspection and copying at FHWA, 400 Seventh Street, SW., Room 3408, 
Washington, DC 20590, as provided in 49 CFR part 7. The text is also 
available from the FHWA Office of Transportation Operations' web site 
at: http://mutcd.fhwa.dot.gov.
    (b) Standard Alphabets for Highway Signs, FHWA, 1966 Edition, 
Reprinted May 1972. (This publication is incorporated by reference and 
is on file at the Office of the Federal Register in Washington, DC. This 
document is available for inspection and copying as provided in 49 CFR 
part 7, appendix D).
    (c) Guide to Metric Conversion, AASHTO, 1993. This publication is 
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51 and is on file at the Office of the Federal Register, 800 North 
Capitol Street, NW., Suite 700, Washington, DC. This document is 
available for inspection as provided in 49 CFR part 7. It may be 
purchased from the American Association of State Highway and 
Transportation Officials, Suite 249, 444 North Capitol Street, NW., 
Washington, DC 20001.
    (d) Traffic Engineering Metric Conversion Factors, 1993--Addendum to 
the Guide to Metric Conversion, AASHTO, October 1993. This publication 
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 
CFR part 51 and is on file at the Office of the Federal Register, 800 
North Capitol Street, NW., Suite 700, Washington, DC. This document is 
available for inspection as provided in 49 CFR part 7. It may be 
purchased from the American Association of State Highway and 
Transportation Officials, Suite 249, 444 North Capitol Street, NW., 
Washington, DC 20001.

[51 FR 16834, May 7, 1986, as amended at 60 FR 18521, Apr. 11, 1995; 61 
FR 29626, June 11, 1996; 62 FR 1373, Jan. 9, 1997; 63 FR 8351, Feb. 19, 
1998; 63 FR 33549, June 19, 1998; 64 FR 33753, June 24, 1999; 65 FR 13, 
Jan. 3, 2000; 65 FR 78958, Dec. 18, 2000]



Sec. 655.602  Definitions.

    The terms used herein are defined in accordance with definitions and 
usages contained in the MUTCD and 23 U.S.C. 101(a).



Sec. 655.603  Standards.

    (a) National MUTCD. The MUTCD approved by the Federal Highway 
Administrator is the national standard for all traffic control devices 
installed on any street, highway, or bicycle trail open to public travel 
in accordance with 23 U.S.C 109(d) and 402(a). The national MUTCD is 
specifically approved by the FHWA for application on any highway project 
in which Federal highway funds participate and on projects in federally 
administered areas where a Federal department or agency controls the 
highway or supervises the traffic operations.
    (b) State or other Federal MUTCD. (1) Where State or other Federal 
agency MUTCDs or supplements are required, they shall be in substantial 
conformance with the national MUTCD. Changes to the national MUTCD 
issued by the FHWA shall be adopted by the States or other Federal 
agencies within

[[Page 244]]

2 years of issuance. The FHWA Regional Administrator has been delegated 
the authority to approve State MUTCDs and supplements.
    (2) The Direct Federal Program Administrator has been delegated the 
authority to approve other Federal agency MUTCDs with the concurrence of 
the Office of Traffic Operations. States and other Federal agencies are 
encouraged to adopt the national MUTCD as their official Manual on 
Uniform Traffic Control Devices.
    (c) Color specifications. Color determinations and specifications of 
sign and pavement marking materials shall conform to requirements of the 
FHWA Color Tolerance Charts. \2\ An alternate method of determining the 
color of retroreflective sign material is provided in the appendix.
---------------------------------------------------------------------------

    \2\ Available for inspection from the Office of Traffic Operations, 
Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 
20590.
---------------------------------------------------------------------------

    (d) Compliance--(1) Existing highways. Each State, in cooperation 
with its political subdivisions, and Federal agencies shall have a 
program as required by Highway Safety Program Standard Number 13, 
Traffic Engineering Services (23 CFR 1204.4) which shall include 
provisions for the systematic upgrading of substandard traffic control 
devices and for the installation of needed devices to achieve conformity 
with the MUTCD.
    (2) New or reconstructed highways. Federal-aid projects for the 
construction, reconstruction, resurfacing, restoration, or 
rehabilitation of streets and highways shall not be opened to the public 
for unrestricted use until all appropriate traffic control devices, 
either temporary or permanent, are installed and functioning properly. 
Both temporary and permanent devices shall conform to the MUTCD.
    (3) Construction area activities. All traffic control devices 
installed in construction areas using Federal-aid funds shall conform to 
the MUTCD. Traffic control plans for handling traffic and pedestrians in 
construction zones and for protection of workers shall conform to the 
requirements of 23 CFR part 630, subpart J, Traffic Safety in Highway 
and Street Work Zones.
    (4) MUTCD changes. The FHWA may establish target dates for achieving 
compliance with changes to specific devices in the MUTCD.
    (e) Specific information signs. Standards for specific information 
signs are contained in the MUTCD.

[48 FR 46776, Oct. 14, 1983, as amended at 51 FR 16834, May 7, 1986]



Sec. 655.604  Achieving basic uniformity.

    (a) Programs. Programs for the orderly and systematic upgrading of 
existing traffic control devices or the installation of needed traffic 
control devices on or off the Federal-aid system should be based on 
inventories made in accordance with 23 CFR 1204.4, Highway Safety 
Program Standards. These inventories provide the information necessary 
for programming traffic control device upgrading projects.
    (b) Inventory. An inventory of all traffic control devices is 
required by Highway Safety Program Standard Number 13, Traffic 
Engineering Services (23 CFR 1204.4). Highway planning and research 
funds and highway related safety grant program funds may be used in 
statewide or systemwide studies or inventories. Also, metropolitan 
planning (PL) funds may be used in urbanized areas provided the activity 
is included in an approved unified work program.



Sec. 655.605  Project procedures.

    (a) Federal-aid highways. Federal-aid projects involving the 
installation of traffic control devices shall follow procedures as 
established in 23 CFR part 630, subpart A, Federal-Aid Programs Approval 
and Project Authorization. Simplified and timesaving procedures are to 
be used to the extent permitted by existing policy.
    (b) Off-system highways. Certain federally funded programs are 
available for installation of traffic control devices on streets and 
highways that are not on the Federal-aid system. The procedures used in 
these programs may vary from project to project but, essentially, the 
guidelines set forth herein should be used.

[[Page 245]]



Sec. 655.606  Higher cost materials.

    The use of signing, pavement marking, and signal materials (or 
equipment) having distinctive performance characteristics, but costing 
more than other materials (or equipment) commonly used may be approved 
by the FHWA Division Administrator when the specific use proposed is 
considered to be in the public interest.



Sec. 655.607  Funding.

    (a) Federal-aid highways. (1) Funds apportioned or allocated under 
23 U.S.C. 104(b) are eligible to participate in projects to install 
traffic control devices in accordance with the MUTCD on newly 
constructed, reconstructed, resurfaced, restored, or rehabilitated 
highways, or on existing highways when this work is classified as 
construction in accordance with 23 U.S.C. 101(a). Federal-aid highway 
funds for eligible pavement markings and traffic control signalization 
may amount to 100 percent of the construction cost. Federal-aid highway 
funds apportioned or allocated under other sections of 23 U.S.C. are 
eligible for participation in improvements conforming to the MUTCD in 
accordance with the provisions of applicable program regulations and 
directives.
    (2) Traffic control devices are eligible, in keeping with paragraph 
(a)(1) of this section, provided that the work is classified as 
construction in accordance with 23 U.S.C. 101(a) and the State or local 
agency has a policy acceptable to the FHWA Division Administrator for 
selecting traffic control devices material or equipment based on items 
such as cost, traffic volumes, safety, and expected service life. The 
State's policy should provide for cost-effective selection of materials 
which will provide for substantial service life taking into account 
expected and necessary routine maintenance. For these purposes, 
effectiveness would normally be measured in terms of durability, service 
life and/or performance of the material. Specific projects including 
material or equipment selection shall be developed in accordance with 
this policy. Proposed work may be approved on a project-by-project basis 
when the work is (i) clearly warranted, (ii) on a Federal-aid system, 
(iii) clearly identified by site, (iv) substantial in nature, and (v) of 
sufficient magnitude at any given location to warrant Federal-aid 
participation as a construction item.
    (3) The method of accomplishing the work will be in accordance with 
23 CFR part 635, subpart A, Contract Procedures.
    (b) Off-system highways. Certain Federal-aid highway funds are 
eligible to participate in traffic control device improvement projects 
on off-system highways. In addition, Federal-aid highway funds 
apportioned or allocated in 23 U.S.C. are eligible for the installation 
of traffic control devices on any public road not on the Federal-aid 
system when the installation is directly related to a traffic 
improvement project on a Federal-aid system route.

 Appendix to Subpart F of Part 655--Alternate Method of Determining the 
                 Color of Retroreflective Sign Materials

    1. The FHWA Color Tolerance Charts provide that conventional color 
measuring instruments such as spectrophotometers and tristimulus 
photoelectric colorimeters should not be used for measurement of 
retroreflective material colors and that such materials should be 
evaluated visually using the Color Tolerance Charts and paying strict 
attention to prescribed illumination and viewing conditions.
    2. As an alternate to visual testing, the diffuse day color of 
retroreflective sign material may be determined in accordance with ASTM 
E 97, ``Standard Method of Test for 45-Degree, 0-Degree Directional 
Reflectance of Opaque Specimens by Filter Photometry.'' Geometric 
characteristics must be confined to illumination incident within 10 
degrees of, and centered about, a direction of 45 degrees from the 
perpendicular to the test surface; viewing is within 15 degrees of, and 
centered about, the perpendicular to the test surface. Conditions of 
illumination and observation must not be interchanged.
    3. Standards to be used for reference are the Munsell Papers 
designated in Table 1 or Table II, attached. The papers must be recently 
calibrated on a spectrophotometer. Acceptable test instruments are:
    a. Gardner Multipurpose Reflectometer or Model XL 20 Color 
Difference Meter,
    b. Gardner Model Ac-2a or XL 30 Color Difference Meter,
    c. Meeco Model V Colormaster,
    d. Hunter lab D25 Color Difference Meter, or
    e. Approved equal.

[[Page 246]]

    4. Average performance sheeting is identified as Types I and II 
sheeting and high performance sheeting is identified as Types III and IV 
sheeting in Standard Specifications for Construction of Roads and 
Bridges on Federal Highway Projects \3\ (FP-79, Section 633).
---------------------------------------------------------------------------

    \3\ This document is available for inspection and copying as 
prescribed in 49 CFR part 7, appendix D.

                                  Table I--Color Specification Limits and Reference Standards, Types I and II Sheeting
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Chromaticity coordinates \1\ (corner points)             Reflectance
                                          ---------------------------------------------------------------- limits (percent
                  Color                           1               2               3               4              Y) Y          Reference \3\ standard
                                          ---------------------------------------------------------------------------------       (munsell papers)
                                              x       y       x       y       x       y       x       y    Minium  Maximum
--------------------------------------------------------------------------------------------------------------------------------------------------------
White \2\................................    .305    .290    .350    .342    .321    .361    .276    .308      35       --  6.3Gy 6.77/0.8.
Red......................................    .602    .317    .664    .336    .644    .356    .575    .356       8       12  8.2R 3.78/14.0.
Orange...................................    .535    .375    .607    .393    .582    .417    .535    .399      18       30  2.5YR 5.5/14.0
Brown....................................    .445    .353    .604    .396    .556    .443    .445    .386       4        9  5.OYR 3/6.
Yellow...................................    .482    .450    .532    .465    .505    .494    .475    .485      29       45  1.25Y 6/12.
Green....................................    .130    .369    .180    .391    .155    .460    .107    .439     3.5        9  0.65BG 2.84/8.45.
Blue.....................................    .147    .075    .176    .091    .176    .151    .106    .113     1.0        4  5 8PB 1.32/6.8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The four pairs of chromaticity coordinates determine the acceptable color in terms of the CIE 1931 standard colorimetric system measured with
  standard illumination source C.
\2\ Silver white is an acceptable color designation.
\3\ Available from Munsell Color Company. 2441 Calvert Street, Baltimore. Maryland 21218.


                                 Table II--Color Specification Limits and Reference Standards, Types III and IV Sheeting
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Chromaticity Coordinates \1\ (corner points)             Reflectance
                                           ----------------------------------------------------------------     limits
                   Color                           1               2               3               4         (percent Y) Y     Reference \3\ standard
                                           --------------------------------------------------------------------------------       (munsell papers)
                                               x       y       x       y       x       y       x       y     Min.    Max.
--------------------------------------------------------------------------------------------------------------------------------------------------------
White \2\.................................    .303     287    .368    .353    .340    .380    .274    .316      27  ......  5.0PB 7/1.
Red.......................................    .613    .297    .708    .292    .636    .364    .558    .352     2.5      11  7.5R 3/12.
Orange....................................    .550    .360    .630    .370    .581    .418    .516    .394      14      30  2.5YR 5.5/14.
Yellow....................................    .498    .412    .557    .442    .479    .520    .438    .472      15      40  1.25Y 6/12.
Green.....................................    .030    .380    .166    .346    .286    .428    .201    .776       3       8  10G 3/8
Blue......................................    .144    .030    .244    .202    .190    .247    .066    .208       1      10  5.8PB 1.32/6.8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The four pairs of chromaticity coordinates determine the acceptable color in terms of the CIE 1931 standard colorimetric system measured with
  standard illumination source C.
\2\ Silver white is an acceptable color designation.
\3\ Available from Munsell Color Company, 2441 Calvert Street, Baltimore, Maryland 21218.

Subpart G [Reserved]



PART 656--CARPOOL AND VANPOOL PROJECTS--Table of Contents




Sec.
656.1  Purpose.
656.3  Policy.
656.5  Eligibility.
656.7  Determination of an exception.

    Authority: 23 U.S.C. 146 and 315; sec. 126 of the Surface 
Transportation Assistance Act of 1978, Pub. L. 95-599, 92 Stat. 2689; 49 
CFR 1.48(b).

    Source: 47 FR 43024, Sept. 30, 1982, unless otherwise noted.



Sec. 656.1  Purpose.

    The purpose of this regulation is to prescribe policies and general 
procedures for administering a program of ridesharing projects using 
Federal-aid primary, secondary, and urban system funds.



Sec. 656.3  Policy.

    Section 126(d) of the Surface Transportation Assistance Act of 1978 
declares that special effort should be made to promote commuter modes of 
transportation which conserve energy, reduce pollution, and reduce 
traffic congestion.

[[Page 247]]



Sec. 656.5  Eligibility.

    (a) Projects which promote ridesharing programs need not be located 
on but must serve a Federal-aid system to be eligible for Federal-aid 
primary, secondary, or urban system funds depending on the system 
served. The Federal share payable will be in accordance with the 
provisions of 23 U.S.C. 120. Except for paragraph (c)(3) of this 
section, for all purposes of this regulation the term carpool includes 
vanpool.
    (b) Projects shall not be approved under this regulation if they 
will have an adverse effect on any mass transportation system.
    (c) The following types of projects and work are considered eligible 
under this program:
    (1) Systems, whether manual or computerized, for locating potential 
participants in carpools and informing them of the oppportunities for 
participation. Eligible costs for such systems may include costs of use 
or rental of computer hardware, costs of software, and installation 
costs (including both labor and other related items).
    (2) Specialized procedures to provide carpooling opportunities to 
elderly or handicapped persons.
    (3) The costs of acquiring vanpool vehicles and actual financial 
losses that occur when the operation of any vanpool is aborted before 
the scheduled termination date for the reason, concurred in by the 
State, that its continuation is no longer productive. The cost of 
acquiring a vanpool vehicle is eligible under the following conditions:
    (i) The vanpool vehicle is a four-wheeled vehicle manufactured for 
use on public highways for transportation of 7-15 passengers (no 
passenger cars which do not meet the 7--15 criteria and no buses); and
    (ii) Provision is made for repayment of the acquisition cost to the 
project within the passenger-service life of the vehicle. Repayment may 
be accomplished through the charging of a reasonable user fee based on 
an estimated number of riders per vehicle and the cost of reasonable 
vehicle depreciation, operation, and maintenance. Repayment is not 
required under the following conditions:
    (A) When vehicles are purchased as demonstrator vans for use as a 
marketing device. Vehicles procured for this purpose should be used to 
promote the vanpool concept among employees, employers, and other groups 
by allowing potential riders and sponsors to examine commuter vans; or
    (B) When vehicles are purchased for use on a trial commuting basis 
to enable people to experience vanpooling first hand. The trial period 
must be limited to a maximum of 2 months. That part of the user fee 
normally collected to cover the capital or ownership cost of the van 
would be eligible for reimbursement as a promotional cost during the 
limited trial period. As with established vanpool service, all vehicle 
operating costs must be borne by the user(s) during the trial period.
    (4) Work necessary to designate existing highway lanes as 
preferential carpool lanes or bus and carpool lanes. Eligible work may 
include preliminary engineering to determine traffic flow and design 
criteria, signing, pavement markings, traffic control devices, and minor 
physical modifications to permit the use of designated lanes as 
preferential carpool lanes or bus and carpool lanes. Such improvements 
on any public road may be approved if such projects facilitate more 
efficient use of any Federal-aid highway. Eligible costs may also 
include costs of initial inspection or monitoring of use, including 
special equipment, to ensure that the high occupancy vehicle (HOV) lanes 
designation is effective and that the project is fully developed and 
operating properly. While no fixed time limit is being arbitrarily 
prescribed for the inspection and monitoring period, it is intended that 
this activity be conducted as soon as possible to evaluate the 
effectiveness of the project and does not extend indefinitely nor become 
a part of routine facility operations.
    (5) Signing of and modifications to existing facilities to provide 
preferential parking for carpools inside or outside the central business 
district. Eligible costs may include trail blazers, on-site signs 
designating highway interchange areas or other existing publicly or 
privately owned facilities as preferential parking for carpool 
participants, and initial or renewal costs for leasing parking space or 
acquisition

[[Page 248]]

or easements or restrictions, as, for example, at shopping centers and 
public or private parking facilities. The lease or acquisition cost may 
be computed on the demonstrated reduction in the overall number of 
vehicles using the designated portion of a commercial facility, but not 
on a reduction of the per-vehicle user charge for parking.
    (6) Construction of carpool parking facilities outside the central 
business district. Eligible costs may include acquisition of land and 
normal construction activities, including installation of lighting and 
fencing, trail blazers, on-site signing, and passenger shelters. Such 
facilities need not be located in conjunction with any existing or 
planned mass transportation service, but should be designed so that the 
facility could accommodate mass transportation in the event such service 
may be developed. Except for the requirement of the availability of 
mass/public transportation facilities, fringe parking construction under 
this section shall be subject to the provisions of 23 CFR part 810.106.
    (7) Reasonable public information and promotion expenses, including 
personnel costs, incurred in connection with any of the other eligible 
items mentioned herein.



Sec. 656.7  Determination of an exception.

    (a) The FHWA has determined under provisions of 23 U.S.C. 146(b) 
that an exceptional situation exists in regard to the funding of 
carpools so as to allow the State to contribute as its share of the non-
Federal match essential project-related work and services performed by 
local agencies and private organizations when approved and authorized in 
accordance with regular Federal-aid procedures. The cost of such work 
must be properly valued, supportable and verifiable in order for 
inclusion as an eligible project cost. Examples of such contributed work 
and services include: public service announcements, computer services, 
and project-related staff time for administration by employees of public 
and private organizations.
    (b) This determination is based on: (1) The nature of carpool 
projects to provide a variety of services to the public; (2) the fact 
that carpool projects are labor intensive and require professional and 
specialized technical skills; (3) the extensive use of joint public and 
private endeavors; and (4) the fact that project costs involve the 
acquisition of capital equipment as opposed to construction of fixed 
items.
    (c) This exception is limited to carpool projects and therefore is 
not applicable to other Federal-aid projects. The exception does not 
affect or replace the standard Federal-aid funding procedures or real 
property acquisition procedures and requirements, part 712, The 
Acquisition Function.



PART 657--CERTIFICATION OF SIZE AND WEIGHT ENFORCEMENT--Table of Contents




Sec.
657.1  Purpose.
657.3  Definition.
657.5  Policy.
657.7  Objective.
657.9  Formulation of a plan for enforcement.
657.11  Evaluation of operations.
657.13  Certification requirement.
657.15  Certification content.
657.17  Certification submittal.
657.19  Effect of failure to certify or to enforce State laws 
          adequately.
657.21  Procedure for reduction of funds.

Appendix to Part 657--Guidelines To Be Used in Developing Enforcement 
          Plans and Certification Evaluation

    Authority: Sec. 123, Pub. L. 95-599, 92 Stat. 2689; 23 U.S.C. 127, 
141, and 315; 49 U.S.C. 31111, 31113, and 31114; sec. 1023, Pub. L. 102-
240, 105 Stat. 1914; and 49 CFR 1.48(b)(19), (b)(23), (c)(1), and 
(c)(19).

    Source: 45 FR 52368, Aug. 7, 1980, as amended at 62 FR 62261, Nov. 
21, 1997, unless otherwise noted.
    Note: The recordkeeping requirements contained in this part have 
been approved by the Office of Management and Budget under control 
number 2125-0034.



Sec. 657.1  Purpose.

    To prescribe requirements for administering a program of vehicle 
size and weight enforcement on Federal-aid (FA) highways, including the 
required annual certification by the State.



Sec. 657.3  Definition.

    Enforcing or enforcement means all actions by the State to obtain 
compliance with size and weight requirements by all vehicles operating 
on the FA

[[Page 249]]

Interstate, primary, urban, and secondary systems.



Sec. 657.5  Policy.

    Federal Highway Administration (FHWA) policy is that each State 
enforce vehicle size and weight laws to assure that violations are 
discouraged and that vehicles traversing the highway system do not 
exceed the limits specified by law. These size and weight limits are 
based upon design specifications and safety considerations, and 
enforcement shall be developed and maintained both to prevent premature 
deterioration of the highway pavement and structures and to provide a 
safe driving environment.



Sec. 657.7  Objective.

    The objective of this regulation is the development and operation by 
each State of an enforcement process which identifies vehicles of 
excessive size and weight and provides a systematic approach to 
eliminate violations and thus improve conditions.



Sec. 657.9  Formulation of a plan for enforcement.

    (a) Each State shall develop a plan for the maintenance of an 
effective enforcement process. The plan shall describe the procedures, 
resources, and facilities which the State intends to devote to the 
enforcement of its vehicle size and weight laws. Each State plan must be 
accepted by the FHWA and will then serve as a basis by which the annual 
certification of enforcement will be judged for adequacy.
    (b) The plan shall discuss the following subjects:
    (1) Facilities and resources. (i) No program shall be approved which 
does not utilize a combination of at least two of the following listed 
devices to deter evasion of size and weight measurement in sufficient 
quantity to cover the FA system: fixed platform scales; portable wheel 
weigher scales; semiportable or ramp scales; WIM equipment.
    (ii) Staff assigned to the program, identified by specific agency. 
Where more than one State agency has weight enforcement responsibility, 
the lead agency should be indicated.
    (2) Practices and procedures. (i) Proposed plan of operation, 
including geographical coverage and hours of operation in general terms.
    (ii) Policy and practices with respect to overweight violators, 
including off-loading requirements for divisible loads. In those States 
in which off-loading is mandatory by law, an administrative variance 
from the legal requirement shall be fully explained. In those States in 
which off-loading is permissive administrative guidelines shall be 
included.
    (iii) Policy and practices with respect to penalties, including 
those for repeated violations. Administrative directives, booklets or 
other written criteria shall be made part of the plan submission.
    (iv) Policy and practices with respect to special permits for 
overweight. Administrative directives, booklets or other written 
criteria shall be made part of the plan submission.
    (3) Updating. Modification and/or additions to the plan based on 
experience and new developments in the enforcement program. It is 
recognized that the plan is not static and that changes may be required 
to meet changing needs.



Sec. 657.11  Evaluation of operations.

    (a) The State shall submit its enforcement plan or annual update to 
the Office of Motor Carriers in the FHWA division office by July 1 of 
each year. However, if a State's legislative or budgetary cycle is not 
consonant with that date, the FHWA and the State may jointly select an 
alternate date. In any event, a State must have an approved plan in 
effect by October 1 of each year. Failure of a State to submit or update 
a plan will result in the State being unable to certify in accordance 
with Sec. 657.13 for the period to be covered by the plan.
    (b) The Office of Motor Carriers in the FHWA division office shall 
review the State's operation under the accepted plan on a continuing 
basis and shall prepare an evaluation report annually. The State will be 
advised of the results of the evaluation and of any needed changes 
either in the plan itself or in

[[Page 250]]

its implementation. Copies of the evaluation report and subsequent 
modifications resulting from the evaluation shall be forwarded through 
the Regional Director of Motor Carriers to the Washington, D.C., 
Headquarters office.

[59 FR 30418, June 13, 1994]



Sec. 657.13  Certification requirement.

    Each State shall certify to the Federal Highway Administrator, 
before January 1 of each year, that it is enforcing all State laws 
respecting maximum vehicle size and weight permitted on what, prior to 
October 1, 1991, were the Federal-aid Primary, Secondary, and Urban 
Systems, including the Interstate System, in accordance with 23 U.S.C. 
127. The States must also certify that they are enforcing and complying 
with the ISTEA freeze on the use of LCV's and other multi-unit vehicles. 
The certification shall be supported by information on activities and 
results achieved during the preceding 12-month period ending on 
September 30 of each year.

[59 FR 30418, June 13, 1994]



Sec. 657.15  Certification content.

    The certification shall consist of the following elements and each 
element shall be addressed even though the response is negative:
    (a) A statement by the Governor of the State, or an official 
designated by the Governor, that the State's vehicle weight laws and 
regulations governing use of the Interstate System conform to 23 U.S.C. 
127.
    (b) A statement by the Governor of the State, or an official 
designated by the Governor, that all State size and weight limits are 
being enforced on the Interstate System and those routes which prior to 
October 1, 1991, were designated as part of the Federal-aid Primary, 
Urban, and Secondary Systems, and that the State is enforcing and 
complying with the provisions of 23 U.S.C. 127(d) and 49 U.S.C. 31112 
Urbanized areas not subject to State jurisdiction shall be identified. 
The statement shall include an analysis of enforcement efforts in such 
areas.
    (c) Except for Alaska and Puerto Rico, the certifying statements 
required by paragraphs (a) and (b) of this section shall be worded as 
follows (the statements for Alaska and Puerto Rico do not have to 
reference 23 U.S.C. 127(d) in (c)(2), or include paragraph (c)(3) of 
this section):

    I, (name of certifying official), (position title), of the State of 
______________ do hereby certify:

    (1) That all State laws and regulations governing vehicle size and 
weight are being enforced on those highways which, prior to October 1, 
1991, were designated as part of the Federal-aid Primary, Federal-aid 
Secondary, or Federal-aid Urban Systems;
    (2) That the State is enforcing the freeze provisions of the 
Intermodal Surface Transportation Efficiency Act of 1991 (23 U.S.C. 
127(d) and 49 U.S.C. 31112); and
    (3) That all State laws governing vehicle weight on the Interstate 
System are consistent with 23 U.S.C. 127 (a) and (b).
    (d) If this statement is made by an official other than the 
Governor, a copy of the document designating the official, signed by the 
Governor, shall also be included in the certification made under this 
part.
    (e) A copy of any State law or regulation pertaining to vehicle 
sizes and weights adopted since the State's last certification and an 
analysis of the changes made. Those laws and regulations pertaining to 
special permits and penalties shall be specifically identified and 
analyzed in accordance with section 123 of the Surface Transportation 
Assistance Act of 1978 (Pub. L. 95-599).
    (f) A report of State size and weight enforcement efforts during the 
period covered by the certification which addresses the following:
    (1) Actual operations as compared with those forecast by the plan 
submitted earlier, with particular attention to changes in or deviations 
from the operations proposed.
    (2) Impacts of the process as actually applied, in terms of changes 
in the number of oversize and/or overweight vehicles.
    (3) Measures of activity--(i) Vehicles weighed. Separate totals 
shall be reported for the annual number of vehicles weighed on fixed 
scales, on

[[Page 251]]

semiportable scales, on portable scales, and on WIM when used for 
enforcement.
    (ii) Penalties. Penalties reported shall include the number of 
citations or civil assessments issued for violations of each of the 
following: Axle, gross and bridge formula weight limits. The number of 
vehicles whose loads are either shifted or offloaded must also be 
reported.
    (iii) Permits. The number of permits issued for overweight loads 
shall be reported. The reported numbers shall specify permits for 
divisible and nondivisible loads and whether issued on a trip or annual 
basis. Permits issued for excess height, length, or width need not be 
reported except where issued for the overwidth movement of a divisible 
load.

[59 FR 30418, June 13, 1994, as amended at 62 FR 10181, Mar. 5, 1997]



Sec. 657.17  Certification submittal.

    (a) The Governor, or an official designated by the Governor, shall 
submit the certification to the Office of Motor Carriers in the FHWA 
division office prior to January 1 of each year.
    (b) The Office of Motor Carriers in the FHWA division office shall 
forward the original certification to the Associate Administrator for 
Motor Carriers and one copy to the Office of Chief Counsel. Copies of 
appropriate evaluations and/or comments shall accompany any transmittal.

[59 FR 30418, June 13, 1994]



Sec. 657.19  Effect of failure to certify or to enforce State laws adequately.

    Beginning January 1, 1981, if a State fails to certify as required 
by this regulation or if the Secretary determines that a State is not 
adequately enforcing all State laws respecting maximum vehicle sizes and 
weights on FA highways notwithstanding the State's certification, the FA 
highway funds apportioned to the State for the next fiscal year shall be 
reduced by an amount equal to 10 percent of the amount which would 
otherwise be apportioned to the State under 23 U.S.C. 104, and/or by the 
amount required pursuant to 23 U.S.C. 127.



Sec. 657.21  Procedure for reduction of funds.

    (a) If it appears to the Federal Highway Administrator that a State 
has not submitted a certification conforming to the requirements of this 
regulation, or that the State is not adequately enforcing State laws 
respecting maximum vehicle size and weight, including laws applicable to 
vehicles using the Interstate System with weights or widths in excess of 
those provided under 23 U.S.C. 127, the Federal Highway Administrator 
shall make in writing a proposed determination of nonconformity, and 
shall notify the Governor of the State of the proposed determination by 
certified mail. The notice shall state the reasons for the proposed 
determination and inform the State that it may, within 30 days from the 
date of the notice, request a hearing to show cause why it should not be 
found in nonconformity. If the State informs the Administrator before 
the end of this 30-day period that it wishes to attempt to resolve the 
matter informally, the Administrator may extend the time for requesting 
a hearing. In the event of a request for informal resolution, the State 
and the Administrator (or designee) shall promptly schedule a meeting to 
resolve the matter.
    (b) In all instances where the State proceeds on the basis of 
informal resolution, a transcript of the conference will be made and 
furnished to the State by the FHWA.
    (1) The State may offer any information which it considers helpful 
to a resolution of the matter, and the scope of review at the conference 
will include, but not be limited to, legislative actions, including 
those proposed to remedy deficiencies, budgetary considerations, 
judicial actions, and proposals for specific actions which will be 
implemented to bring the State into compliance.
    (2) The information produced at the conference may constitute an 
explanation and offer of settlement and the Administrator will make a 
determination on the basis of the certification, record of the 
conference, and other information submitted by the State. The 
Administrator's final decision together with a copy of the transcript of 
the

[[Page 252]]

conference will be furnished to the State.
    (3) If the Administrator does not accept an offer of settlement made 
pursuant to paragraph (b)(2) of this section, the State retains the 
right to request a hearing on the record pursuant to paragraph (d) of 
this section, except in the case of a violation of section 127.
    (c) If the State does not request a hearing in a timely fashion as 
provided in paragraph (a) of this section, the Federal Highway 
Administrator shall forward the proposed determination of nonconformity 
to the Secretary. Upon approval of the proposed determination by the 
Secretary, the fund reduction specified by Sec. 657.19 shall be 
effected.
    (d) If the State requests a hearing, the Secretary shall 
expeditiously convene a hearing on the record, which shall be conducted 
according to the provisions of the Administrative Procedure Act, 5 
U.S.C. 555 et seq. Based on the record of the proceeding, the Secretary 
shall determine whether the State is in nonconformity with this 
regulation. If the Secretary determines that the State is in 
nonconformity, the fund reduction specified by section 567.19 shall be 
effected.
    (e) The Secretary may reserve 10 percent of a State's apportionment 
of funds under 23 U.S.C. 104 pending a final administrative 
determination under this regulation to prevent the apportionment to the 
State of funds which would be affected by a determination of 
nonconformity.
    (f) Funds withheld pursuant to a final administrative determination 
under this regulation shall be reapportioned to all other eligible 
States one year from the date of this determination, unless before this 
time the Secretary determines, on the basis of information submitted by 
the State and the FHWA, that the State has come into conformity with 
this regulation. If the Secretary determines that the State has come 
into conformity, the withheld funds shall be released to the State.
    (g) The reapportionment of funds under paragraph (e) of this section 
shall be stayed during the pendency of any judicial review of the 
Secretary's final administrative determination of nonconformity.

 Appendix to Part 657--Guidelines To Be Used in Developing Enforcement 
                   Plans and Certification Evaluation

                       A. Facilities and Equipment

    1. Permanent Scales
    a. Number
    b. Location (a map appropriately coded is suggested)
    c. Public-private (if any)
    2. Weigh-in-motion (WIM)
    a. Number
    b. Location (notation on above map is suggested)
    3. Semi-portable scales
    a. Type and number
    b. If used in sets, the number comprising a set
    4. Portable Scales
    a. Type and number
    b. If used in sets, the number comprising a set

                              B. Resources

    1. Agencies involved (i.e., highway agency, State police, motor 
vehicle department, etc.)
    2. Personnel--numbers from respective agencies assigned to weight 
enforcement
    3. Funding
    a. Facilities
    b. Personnel

                              C. Practices

    1. Proposed schedule of operation of fixed scale locations in 
general terms
    2. Proposed schedule of deployment of portable scale equipment in 
general terms
    3. Proposed schedule of deployment of semi-portable equipment in 
general terms
    4. Strategy for prevention of bypassing of fixed weighing facility 
location
    5. Proposed action for implementation of off-loading, if applicable

                                D. Goals

    1. Short term--the year beginning
October 1 following submission of a vehicle size and weight enforcement 
plan
    2. Medium term--2-4 years after submission of the enforcement plan
    3. Long term--5 years beyond the submission of the enforcement plan
    4. Provision for annual review and update of vehicle size and weight 
enforcement plan

                              E. Evaluation

    The evaluation of an existing plan, in comparison to goals for 
strengthening the enforcement program, is a difficult task, especially 
since there is very limited experience nationwide.
    The FHWA plans to approach this objective through a continued 
cooperative effort with State and other enforcement agencies

[[Page 253]]

by gathering useful information and experience on elements of 
enforcement practices that produce positive results.
    It is not considered practicable at this time to establish objective 
minimums, such as the number of vehicles to be weighed by each State, as 
a requirement for satisfactory compliance. However, the States will want 
to know as many specifics as possible about what measuring tools will be 
used to evaluate their annual certifications for adequacy.
    The above discussion goes to the heart of the question concerning 
numerical criteria. The assumption that a certain number of weighings 
will provide a maximum or even satisfactory deterrent is not 
supportable. The enforcement of vehicle size and weight laws requires 
that vehicles be weighed but it does not logically follow that the more 
vehicles weighed, the more effective the enforcement program, especially 
if the vehicles are weighed at a limited number of fixed locations. A 
``numbers game'' does not necessarily provide a deterrent to deliberate 
overloading. Consistent, vigorous enforcement activities, the certainty 
of apprehension and of penalty, the adequacy of the penalty, even the 
publicity given these factors, may be greater deterrents than the number 
of weighings alone.
    In recognizing that all States are unique in character, there are 
some similarities between certain States and useful perspectives may be 
obtained by relating their program elements. Some comparative factors 
are:
    1. Truck registration (excluding pickups and panels)
    2. Population
    3. Average Daily Traffic (ADT) for trucks on FA highways
    4. To total mileage of Federal-aid highways
    5. Geographic location of the State
    6. Annual truck miles traveled in State
    7. Number of truck terminals (over 6 doors)
    8. Vehicle miles of intrastate truck traffic
    Quantities relating to the above items can become factors that in 
the aggregate are descriptive of a State's characteristics and can 
identify States that are similar from a trucking operation viewpoint. 
This is especially applicable for States within the same area.
    After States with similar truck traffic operations have been 
identified in a regional area, another important variable must be 
considered: the type of weighing equipment that has been or is proposed 
for predominant use in the States. When data become available on the 
number of trucks weighed by each type of scale (fixed, portable, semi-
portable, etc.) some indicators will be developed to relate one State's 
effort to those of other States. The measures of activity that are a 
part of each certification submitted will provide a basis for the 
development of more precise numerical criteria by which an enforcement 
plan and its activities can be judged for adequacy.
    Previous certifications have provided information from which the 
following gross scale capabilities have been derived.

                      Potential Weighing Capacities

    1. Permanent scales 60 veh/hr.
    2. Weigh-in-motion scales 100 veh/hr.
    3. Semi-portable scales 25 veh/hr.
    4. Portable scales 3 veh/hr.
    To meet the mandates of Federal and other laws regarding truck size 
and weight enforcement, the FHWA desires to become a resource for all 
States in achieving a successful exchange of useful information. Some 
States are more advanced in their enforcement activities. Some have 
special experience with portable, semi-portable, fixed, or weighing-in-
motion devices. Others have operated permanent scales in combination 
with concentrated safety inspection programs. The FHWA is interested in 
information on individual State experiences in these specialized areas 
as part of initial plan submissions. If such information has recently 
been furnished to the Washington Headquarters, an appropriate cross 
reference should be included on the submission.
    It is the policy of the FHWA to avoid red tape, and information 
volunteered by the States will be of assistance in meeting many needs. 
The ultimate goal in developing information through the evaluation 
process is to assemble criteria for a model enforcement program.



PART 658--TRUCK SIZE AND WEIGHT, ROUTE DESIGNATIONS--LENGTH, WIDTH AND WEIGHT LIMITATIONS--Table of Contents




Sec.
658.1  Purpose.
658.3  Policy statement.
658.5  Definitions.
658.7  Applicability.
658.9  National Network criteria.
658.11  Additions, deletions, exceptions, and restrictions.
658.13  Length.
658.15  Width.
658.17  Weight.
658.19  Reasonable access.
658.21  Identification of National Network.
658.23  LCV freeze; cargo-carrying unit freeze.

Appendix A to Part 658--National Network--Federally-Designated Routes
Appendix B to Part 658--Grandfathered Semitrailer Lengths
Appendix C to Part 658--Trucks Over 80,000 Pounds on the Interstate 
          System and Trucks Over STAA Lengths on the National Network


[[Page 254]]


    Authority: 23 U.S.C. 127 and 315; 49 U.S.C. 31111--31114 ; 49 CFR 
1.48.

    Source: 49 FR 23315, June 5, 1984, unless otherwise noted.



Sec. 658.1  Purpose.

    The purpose of this part is to identify a National Network of 
highways available to vehicles authorized by provisions of the Surface 
Transportation Assistance Act of 1982 (STAA) as amended, and to 
prescribe national policies that govern truck and bus size and weight.

[59 FR 30419, June 13, 1994]



Sec. 658.3  Policy statement.

    The Federal Highway Administration's (FHWA) policy is to provide a 
safe and efficient National Network of highways that can safely and 
efficiently accommodate the large vehicles authorized by the STAA. This 
network includes the Interstate System plus other qualifying Federal-aid 
Primary System Highways.



Sec. 658.5  Definitions.

    Automobile transporters. Any vehicle combination designed and used 
specifically for the transport of assembled highway vehicles, including 
truck camper units.
    Beverage semitrailer. A van-type, drop-frame semitrailer designed 
and used specifically for the transport and delivery of bottled or 
canned beverages (i.e., liquids for drinking, including water) which has 
side-only access for loading and unloading this commodity. Semitrailer 
has the same meaning as in 49 CFR 390.5.
    Boat transporters. Any vehicle combination designed and used 
specifically to transport assembled boats and boat hulls. Boats may be 
partially disassembled to facilitate transporting.
    Bridge Gross Weight Formula. The standard specifying the 
relationship between axle (or groups of axles) spacing and the gross 
weight that (those) axle(s) may carry expressed by the formula:
[GRAPHIC] [TIFF OMITTED] TC14OC91.011


where W=overall gross weight on any group of two or more consecutive 
axles to the nearest 500 pounds, L=distance in feet between the extreme 
of any group of two or more consecutive axles, and N=number of axles in 
the group under consideration.
    Cargo-carrying unit. As used in this part, cargo-carrying unit means 
any portion of a commercial motor vehicle (CMV) combination (other than 
a truck tractor) used for the carrying of cargo, including a trailer, 
semitrailer, or the cargo-carrying section of a single-unit truck. The 
length of the cargo carrying units of a CMV with two or more such units 
is measured from the front of the first unit to the rear of the last 
[including the hitch(es) between the units].
    Commercial Motor Vehicle. For purposes of this regulation a motor 
vehicle designed or regularly used for carrying freight, merchandise, or 
more than ten passengers, whether loaded or empty, including buses, but 
not including vehicles used for vanpools.
    Federal-aid Primary System. The Federal-aid Highway System of rural 
arterials and their extensions into or through urban areas in existence 
on June 1, 1991, as described in 23 U.S.C. 103(b) in effect at that 
time.
    Fullmount. A fullmount is a smaller vehicle mounted completely on 
the frame of either the first or last vehicle in a saddlemount 
combination.
    Interstate System. The National System of Interstate and Defense 
Highways described in sections 103(e) and 139(a) of Title 23, U.S.C. For 
the purpose of this regulation this system includes toll roads 
designated as Interstate.
    Length Exclusive Devices. For purposes of this regulation all 
appurtenances at the front or rear of a commercial motor vehicle 
semitrailer, or trailer, whose function is related to the safe and 
efficient operation of the semitrailer or trailer. No device excluded 
from length determination shall be designed or used for carrying cargo.
    Longer combination vehicle (LCV). As used in this part, longer 
combination vehicle means any combination of a truck tractor and two or 
more trailers or semitrailers which operates on the

[[Page 255]]

Interstate System at a gross vehicle weight greater than 80,000 pounds.
    Maxi-cube vehicle. A maxi-cube vehicle is a combination vehicle 
consisting of a power unit and a trailing unit, both of which are 
designed to carry cargo. The power unit is a nonarticulated truck with 
one or more drive axles that carries either a detachable or a 
permanently attached cargo box. The trailing unit is a trailer or 
semitrailer with a cargo box so designed that the power unit may be 
loaded and unloaded through the trailing unit. Neither cargo box shall 
exceed 34 feet in length, excluding drawbar or hitching device; the 
distance from the front of the first to the rear of the second cargo box 
shall not exceed 60 feet, including the space between the cargo boxes; 
and the overall length of the combination vehicle shall not exceed 65 
feet, including the space between the cargo boxes.
    Motor carrier of passengers. As used in this part, a motor carrier 
of passengers is a common, contract, or private carrier using a bus to 
provide commercial transportation of passengers. Bus has the same 
meaning as in 49 CFR 390.5.
    National Network (NN). The composite of the individual network of 
highways from each State on which vehicles authorized by the provisions 
of the STAA are allowed to operate. The network in each State includes 
the Interstate System, exclusive of those portions excepted under 
Sec. 658.11(f) or deleted under Sec. 658.11(d), and those portions of 
the Federal-aid Primary System in existence on June 1, 1991, set out by 
the FHWA in appendix A to this part.
    Nondivisible load or vehicle.
    (1) As used in this part, nondivisible means any load or vehicle 
exceeding applicable length or weight limits which, if separated into 
smaller loads or vehicles, would:
    (i) Compromise the intended use of the vehicle, i.e., make it unable 
to perform the function for which it was intended;
    (ii) Destroy the value of the load or vehicle, i.e., make it 
unusable for its intended purpose; or
    (iii) Require more than 8 workhours to dismantle using appropriate 
equipment. The applicant for a nondivisible load permit has the burden 
of proof as to the number of workhours required to dismantle the load.
    (2) A State may treat emergency response vehicles, casks designed 
for the transport of spent nuclear materials, and military vehicles 
transporting marked military equipment or materiel as nondivisible 
vehicles or loads.
    Saddlemount combination. A saddlemount combination is a combination 
of vehicles in which a truck or truck tractor tows one or more trucks or 
truck tractors, each connected by a saddle to the frame or fifth wheel 
of the vehicle in front of it. The saddle is a mechanism that connects 
the front axle of the towed vehicle to the frame or fifth wheel of the 
vehicle in front and functions like a fifth wheel kingpin connection. 
When two vehicles are towed in this manner the combination is called a 
double saddlemount combination. When three vehicles are towed in this 
manner, the combination is called a triple saddlemount combination.
    Safety Devices--Width Exclusion. Federally approved safety devices 
accorded width exclusion status include rear-view mirrors, turn signal 
lamps, hand-holds for cab entry/egress and splash and spray suppressant 
devices. Although not normally considered a safety device, load-induced 
tire bulge is also excluded from consideration in determining vehicle 
width.
    Single Axle Weight. The total weight transmitted to the road by all 
wheels whose centers may be included between two parallel transverse 
vertical planes 40 inches apart, extending across the full width of the 
vehicle. The Federal single axle weight limit on the Interstate System 
is 20,000 pounds.
    Special Mobile Equipment. Every self-propelled vehicle not designed 
or used primarily for the transportation of persons or property and 
incidentally operated or moved over the highways, including military 
equipment, farm equipment, implements of husbandry, road construction or 
maintenance machinery, and emergency apparatus which includes fire and 
police emergency equipment. This list is partial and not exclusive of 
such other vehicles as may fall within the general terms of this 
definition.

[[Page 256]]

    Stinger-steered combination. A truck tractor semitrailer wherein the 
fifth wheel is located on a drop frame located behind and below the 
rear-most axle of the power unit.
    Tandem Axle Weight. The total weight transmitted to the road by two 
or more consecutive axles whose centers may be included between parallel 
transverse vertical planes spaced more than 40 inches and not more than 
96 inches apart, extending across the full width of the vehicle. The 
Federal tandem axle weight limit on the Interstate System is 34,000 
pounds.
    Terminal. The term terminal as used in this regulation means, at a 
minimum, any location where:
    Freight either originates, terminates, or is handled in the 
transportation process; or
    Commercial motor carriers maintain operating facilities.
    Tractor or Truck Tractor. The noncargo carrying power unit that 
operates in combination with a semitrailer or trailer, except that a 
truck tractor and semitrailer engaged in the transportation of 
automobiles may transport motor vehicles on part of the power unit.
    Truck-tractor Semitrailer-Semitrailer. In a truck-tractor 
semitrailer-semitrailer combination vehicle, the two trailing units are 
connected with a ``B-train'' assembly. The B-train assembly is a rigid 
frame extension attached to the rear frame of a first semitrailer which 
allows for a fifth wheel connection point for the second semitrailer. 
This combination has one less articulation point than the conventional 
``A dolly'' connected truck-tractor semitrailer-trailer combination.
    Truck-trailer boat transporter. A boat transporter combination 
consisting of a straight truck towing a trailer using typically a ball 
and socket connection. The trailer axle(s) is located substantially at 
the trailer center of gravity (rather than the rear of the trailer) but 
so as to maintain a downward force on the trailer tongue.

[49 FR 23315, June 5, 1984, as amended at 53 FR 2597, Jan. 29, 1988; 53 
FR 12148, Apr. 13, 1988; 53 FR 25485, July 7, 1988; 53 FR 48636, Dec. 2, 
1988; 55 FR 22762, June 1, 1990; 55 FR 32399, Aug. 9, 1990; 59 FR 30419, 
June 13, 1994; 63 FR 70652, Dec. 22, 1998; 64 FR 48959, Sept. 9, 1999]

    Editorial Note: For a notice document interpreting Length Exclusive 
Devices and Safety Devices in Sec. 658.5, see 52 FR 7834, Mar. 13, 1987.



Sec. 658.7  Applicability.

    Except as limited in Sec. 658.17(a) the provisions of this part are 
applicable to the National Network and reasonable access thereto. 
However, nothing in this regulation shall be construed to prevent any 
State from applying any weight and size limits to other highways, except 
when such limits would deny reasonable access to the National Network.



Sec. 658.9  National Network criteria.

    (a) The National Network listed in the appendix to this part is 
available for use by commerical motor vehicles of the dimensions and 
configurations described in Secs. 658.13 and 658.15.
    (b) For those States with detailed lists of individual routes in the 
appendix, the routes have been designated on the basis of their general 
adherence to the following criteria.
    (1) The route is a geometrically typical component of the Federal-
Aid Primary System, serving to link principal cities and densely 
developed portions of the States.
    (2) The route is a high volume route utilized extensively by large 
vehicles for interstate commerce.
    (3) The route does not have any restrictions precluding use by 
conventional combination vehicles.
    (4) The route has adequate geometrics to support safe operations, 
considering sight distance, severity and length of grades, pavement 
width, horizontal curvature, shoulder width,

[[Page 257]]

bridge clearances and load limits, traffic volumes and vehicle mix, and 
intersection geometry.
    (5) The route consists of lanes designed to be a width of 12 feet or 
more or is otherwise consistent with highway safety.
    (6) The route does not have any unusual characteristics causing 
current or anticipated safety problems.
    (c) For those States where State law provides that STAA authorized 
vehicles may use all or most of the Federal-Aid Primary system, the 
National Network is no more restrictive than such law. The appendix 
contains a narrative summary of the National Network in those States.

[49 FR 23315, June 5, 1984, as amended at 53 FR 12148, Apr. 13, 1988]



Sec. 658.11  Additions, deletions, exceptions, and restrictions.

    To ensure that the National Network remains substantially intact, 
FHWA retains the authority to rule upon all requested additions to and 
deletions from the National Network as well as requests for the 
imposition of certain restrictions. FHWA approval or disapproval will 
constitute the final decision of the U.S. Department of Transportation.
    (a) Additions. (1) Requests for additions to the National Network, 
including justification, shall have the endorsement of the Governor or 
the Governor's authorized representative, and be submitted in writing to 
the appropriate FHWA Division Office. Proposals for addition of routes 
to the National Network shall be accompanied by an analysis of 
suitability based on the criteria in Sec. 658.9.
    (2) Proposals for additions that meet the criteria of Sec. 658.9 and 
have the endorsement of the Governor or the Governor's authorized 
representative will be published in the Federal Register for public 
comment as a notice of proposed rulemaking (NPRM), and if found 
acceptable, as a final rule.
    (b) Deletions--Federal-aid primary--other than interstate. Changed 
conditions or additional information may require the deletion of a 
designated route or a portion thereof. The deletion of any route or 
route segment shall require FHWA approval. Requests for deletion of 
routes from the National Network, including the reason(s) for the 
deletion, shall be submitted in writing to the appropriate FHWA Division 
Office. These requests shall be assessed on the basis of the criteria of 
Sec. 658.9. FHWA proposed deletions will be published in the Federal 
Register as a Notice of Proposed Rulemaking (NPRM).
    (c) Requests for deletion--Federal-aid primary--other than 
interstate. Requests for deletion should include the following 
information, where appropriate:
    (1) Did the route segment prior to designation carry combination 
vehicles or 102-inch buses?
    (2) Were truck restrictions in effect on the segment on January 6, 
1983? If so, what types of restrictions?
    (3) What is the safety record of the segment, including current or 
anticipated safety problems? Specifically, is the route experiencing 
above normal accident rates and/or accident severities? Does analysis of 
the accident problem indicate that the addition of larger trucks have 
aggravated existing accident problems?
    (4) What are the geometric, structural or traffic operations 
features that might preclude safe, efficient operation? Specifically 
describe lane widths, sight distance, severity and length of grades, 
horizontal curvature, shoulder width, narrow bridges, bridge clearances 
and load limits, traffic volumes and vehicle mix, intersection 
geometrics and vulnerability of roadside hardware.
    (5) Is there a reasonable alternate route available?
    (6) Are there operational restrictions that might be implemented in 
lieu of deletion?
    (d) Deletions and use restrictions--Federal-aid interstate. (1) The 
deletion of, or imposition of use restrictions on, any specific segment 
of the Interstate Highway System on the National Network, except as 
otherwise provided in this part, must be approved by the FHWA. Such 
action will be initiated on the FHWA's own initiative or on the request 
of the Governor or the Governor's authorized representative of the State 
in which the Interstate segment is located. Requests from the Governor 
or the Governor's authorized

[[Page 258]]

representative shall be submitted along with justification for the 
deletion or restriction, in writing, to the appropriate FHWA Division 
Office for transmittal to Washington Headquarters.
    (2) The justification accompanying a request shall be based on the 
following:
    (i) Analysis of evidence of safety problems supporting the deletion 
or restriction as identified in Sec. 658.11(c).
    (ii) Analysis of the impact on interstate commerce.
    (iii) Analysis and recommendation of any alternative routes that can 
safely accommodate commercial motor vehicles of the dimensions and 
configurations described in Secs. 658.13 and 658.15 and serve the area 
in which such segment is located.
    (iv) Evidence of consultation with the local governments in which 
the segment is located as well as the Governor or the Governor's 
authorized representative of any adjacent State that might be directly 
affected by such a deletion or restriction.
    (3) Actions to ban all commercial vehicles on portions of the 
Interstate System not excepted under Sec. 658.11(f) are considered 
deletions subject to the requirements of subsection (d) of this section.
    (4) Reasonable restrictions on the use of Interstate routes on the 
National Network by STAA-authorized vehicles related to specific travel 
lanes of multi-lane facilities, construction zones, adverse weather 
conditions or structural or clearance deficiencies are not subject to 
the requirements of paragraph (d) of this section.
    (5) Proposed deletions or restrictions will be published in the 
Federal Register as an NPRM, except in the case of an emergency deletion 
as prescribed in Sec. 658.11(e). The FHWA will consider the factors set 
out in paragraph (d)(2) of this section and the comments of interested 
parties. Any approval of deletion or restriction will be published as a 
final rule. A deletion of or restriction on a segment for reasons 
ascribable to dimensions of commercial motor vehicles described in 
either Sec. 658.13 or Sec. 658.15 shall result in a deletion or 
restriction for the purposes of both Secs. 658.13 and 658.15.
    (e) Emergency deletions. FHWA has the authority to delete any route 
from the National Network, on an emergency basis, for safety 
considerations. Emergency deletions are not considered final, and will 
be published in the Federal Register for notice and comment.
    (f) Exceptions. Those portions of the Interstate System which were 
open to traffic and on which all commercial motor vehicles were banned 
on January 6, 1983, are not included in the National Network.
    (g) Restrictions--Federal-aid primary--other than interstate. (1) 
Reasonable restrictions on the use of non-Interstate Federal-aid Primary 
routes on the National Network by STAA-authorized vehicles may be 
imposed during certain peak hours of travel or on specific travel lanes 
of multi-lane facilities. Restrictions related to construction zones, 
seasonal operation, adverse weather conditions or structural or 
clearance deficiencies may be imposed.
    (2) All restrictions on the use of the National Network based on 
hours of use by vehicles authorized by the STAA require prior FHWA 
approval. Requests for such restrictions on the National Network shall 
be submitted in writing to the appropriate FHWA Division Office. 
Approval of requests for restrictions will be contingent on the ability 
to justify significant negative impact on safety, the environment and/or 
operational efficiency.

[49 FR 23315, June 5, 1984, as amended at 53 FR 12148, Apr. 13, 1988]



Sec. 658.13  Length.

    (a) The length provisions of the STAA apply only to the following 
types of vehicle combinations:
    (1) Truck tractor-semitrailer
    (2) Truck tractor-semitrailer-trailer.

The length provisions apply only when these combinations are in use on 
the National Network or in transit between these highways and terminals 
or service locations pursuant to Sec. 658.19.
    (b) The length provisions referred to in paragraph (a) of this 
section include the following:
    (1) No State shall impose a length limitation of less than 48 feet 
on a semitrailer operating in a truck tractor-semitrailer combination.

[[Page 259]]

    (2) No State shall impose a length limitation of less than 28 feet 
on any semitrailer or trailer operating in a truck tractor-semitrailer-
trailer combination.
    (3) No State shall impose an overall length limitation on commercial 
vehicles operating in truck tractor-semitrailer or truck tractor-
semitrailer-trailer combinations.
    (4) No State shall prohibit commercial motor vehicles operating in 
truck tractor-semitrailer-trailer combinations.
    (5) No State shall prohibit the operation of semitrailers or 
trailers which are 28\1/2\ feet long when operating in a truck tractor-
semitrailer-trailer combination if such a trailer or semitrailer was in 
actual and lawful operation on December 1, 1982, and such combination 
had an overall length not exceeding 65 feet.
    (c) State maximum length limits for semitrailers operating in a 
truck tractor-semitrailer combination and semitrailers and trailers 
operating in a truck tractor-semitrailer-trailer combination are subject 
to the following:
    (1) No State shall prohibit the use of trailers or semitrailers of 
such dimensions as those that were in actual and lawful use in such 
State on December 1, 1982, as set out in appendix B of this part.
    (2) If on December 1, 1982, State length limitations on a 
semitrailer were described in terms of the distance from the kingpin to 
rearmost axle, or end of semitrailer, the operation of any semitrailer 
that complies with that limitation must be allowed.
    (d) No State shall impose a limit of less than 45 feet on the length 
of any bus on the NN.
    (e) Specialized equipment--(1) Automobile transporters. (i) 
Automobile transporters are considered to be specialized equipment. As 
provided in Sec. 658.5, automobile transporters may carry vehicles on 
the power unit behind the cab and on an over-cab rack. No State shall 
impose an overall length limitation of less than 65 feet on traditional 
automobile transporters (5th wheel located on tractor frame over rear 
axle(s)), including ``low boys,'' or less than 75 feet on stinger-
steered automobile transporters. Paragraph (c) requires the States to 
allow operation of vehicles with the dimensions that were legal in the 
State on December 1, 1982.
    (ii) All length provisions regarding automobile transporters are 
exclusive of front and rear overhang. Further, no State shall impose a 
front overhang limitation of less than three (3) feet nor a rearmost 
overhang limitation of less than four (4) feet.
    (iii) Drive-away saddlemount vehicle transporter combinations and 
driveaway saddlemount with fullmount vehicle transporter combinat