DAR File No. 31961

Transportation, Administration

R907-64

Longitudinal and Wireless Access to Interstate Highway Rights-of-Way for Installation of Telecommunications Facilities

NOTICE OF PROPOSED RULE

DAR File No.: 31961
Filed: 09/18/2008, 04:23
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The rule change is to update the rule to include recent code renumbering and to eliminate redundant language.

Summary of the rule or change:

The rule change updates the code section and also changes the number of days before negotiation from 5 to 10 days.

State statutory or constitutional authorization for this rule:

Sections 72-1-2-1 and 72-6-116

Anticipated cost or savings to:

the state budget:

No costs or savings are anticipated with this rule change. No new requirements were created with this rule change that impact the state budget.

local governments:

No costs or savings are anticipated with this rule change that impact local government.

small businesses and persons other than businesses:

No costs or savings are anticipated with this rule change. No new requirements were created with this rule change that impacts small businesses or persons other than businesses.

Compliance costs for affected persons:

None--This rule was updated to reflect changes in the Utah Code.

Comments by the department head on the fiscal impact the rule may have on businesses:

No fiscal impact on businesses is anticipated with this rule. John Njord, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Administration
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY UT 84119-5998

Direct questions regarding this rule to:

Maureen Short at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at maureenshort@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/14/2008

This rule may become effective on:

11/21/2008

Authorized by:

John R. Njord, Executive Director

R907.  Transportation, Administration.

R907-64.  Longitudinal and Wireless Access to Interstate Highway Rights-of-Way for Installation of Telecommunications Facilities.

R907-64-5.  Limitations and Conditions.

(1)  Longitudinal and wireless access of Telecommunication Facilities shall be permitted only as approved by the Executive Director or designee in accordance with the criteria and procedures set forth in this rule.

(2)  Occupancy by longitudinal access or wireless access shall comply with, and produce no significant compromise of, the following factors:

(a)  highway safety requirements of federal and state law;

(b)  written policy and agreements adopted by the Department;

(c)  safe use of highways in the Interstate System by the traveling public;

(d)  prudent use and management of the Interstate System and its rights-of-way;

(e)  highway design;

(f)  highway construction;

(g)  highway operational and/or technical capacity;

(h)  highway maintenance or stability;

(i)  future expansion of the Interstate System;

(j)  physical environmental features; and

(k)  physical capacity of the right-of-way to accommodate longitudinal access.

(3)  In the interest of safety and preservation of the highway facility and pavement structure, the placement, installation, maintenance, repair, use, operation, replacement and removal of Telecommunications Facilities with longitudinal access or wireless access to the Right-of-way of the Interstate System shall be accommodated only when in compliance with the "MANUAL FOR ACCOMMODATION OF UTILITIES AND THE CONTROL AND PROTECTION OF STATE HIGHWAY RIGHTS OF WAY," as adopted by rule (Rule 930-6), and with 23 CFR 645 (1997), Subpart B, "Accommodation of Utilities."

(a)  The location of all Telecommunication Facilities, whether above ground or below ground installations, including towers, pedestals, poles and boxes, within the highway right-of-way of the Interstate System shall be as set forth in the permit and/or the negotiated agreement between the Telecommunications Facility Provider and the Department. Telecommunications Facilities shall avoid:  (a) use of through traffic roadways, lanes and ramps for construction, inspection, testing or maintenance activities; (b) placement of facilities within the median strip; (c) placement of facilities in a non-uniform alignment; (d) placement of facilities in places other than at or adjacent to the Right-of-way line and beyond the recovery or clear zone area; or (e) placement of facilities within the clear zone of through-traffic roadways, lanes or ramps.  The Executive Director or designee is authorized to grant variances from the Manual and guidelines on a case-by-case basis.  Variances will not be granted if, in the opinion of the Executive Director or designee, they create unacceptable risks [of]or significant compromise of any factor listed in Subsection R907-64-5(2) of this rule.

(4)  The Department may consider financial and technical qualifications of telecommunication facility providers, and specify insurance requirements for contractors authorized to enter Interstate System rights-of-way to construct, install, inspect, test, maintain or repair Telecommunication Facilities with longitudinal access or wireless access.  During each period that the Department authorizes longitudinal access or wireless access for construction and installation, the Department may require approved Telecommunication Facility Providers to install Telecommunication Facilities into the same general location on the Interstate System; coordinate their planning and work; install in a joint trench; and equitably share costs.

(5)  The Department shall manage and administer access to rights-of-way of the Interstate System in compliance with 47 U.S.C. 253 [(1999)]2005.

 

R907-64-6.  Compensation.

(1)  The Department shall require compensation from a Telecommunication Facility Provider under the provisions of Section 72-7-108 for longitudinal access or other use within the Right-of-way of the Interstate System consistent with the rate schedule adopted by the Department through rulemaking.

(2)  Until the rate schedule has been formally adopted pursuant to Title [63]63G, Chapter [46a]3, Utah Administrative Rulemaking Act, all agreements are subject to modification to comply with the rate schedule.

 

R907-64-7.  Permits and Agreements.

(1)  In accordance with 23 CFR 645 [(1997)](2005) , subpart B, "Accommodations of Utilities," the Utah Code Section 72-6-116 "Regulation of Utilities-Relocation of Utilities," and Rule R930-6, which is described in the Department's "Manual for Accommodation of Utilities and the Control and Protection of State Highway Rights of Way," a Telecommunication Facility Provider shall be required to complete and sign an agreement with the Department prior to obtaining a permit for construction or installation of Telecommunication Facilities in the Right-of-way.  Based on the statements of interest, if any, received by the Department in response to its advertisements of intent to consider opening highway segments in the Interstate System for construction and installation of Telecommunication Facilities, as provided for in Subsections R907-64-8(3) and (4) of this rule, the Department shall determine within 30 days of the deadline for the receipt of such statements of interest, whether to open such segments for such use.  If the Department decides to open such segments of the Interstate System for construction and installation of Telecommunication Facilities, it shall notify each Telecommunication Facility Provider which filed a statement of interest of such decision in writing and direct them to file with the Office of the Deputy Director an application, as modified by the Department from time to time, for a permit for longitudinal access or wireless access on rights-of-way in the Interstate System.  The Department shall also specify the deadline for the filing of such permit applications.

(2)  The Department will review each permit application within 30 working days following receipt thereof, in accordance with the criteria set forth in this rule.  The review process will begin only when the Telecommunication Facility Provider(s) submits a complete permit application, including all documentation, as required in the "Manual for Accommodation of Utilities and the Control and Protection of State Highway Rights-of-Way," Rule R930-6.  No later than the end of the 30 working day review period, the Department will either:  (a) issue to the Telecommunications Facility Provider a written notice that the permit application is accepted for the negotiation of an agreement for the construction and installation of Telecommunication Facilities in the right-of-way segment, or (b) issue to the Telecommunication Facility Provider a written denial of the permit application, together with the specific reasons why the permit application was not approved, based on the criteria set forth in this rule.  If the Telecommunication Facility Provider's permit application has been accepted for negotiation of an agreement, the Department shall commence such negotiations not later than [five]ten working days after the date of such notice of acceptance and shall proceed in a diligent manner to favorably conclude such negotiations, to execute the Department's standard form agreement with negotiated modifications necessary to accommodate the unique needs of each project, and to issue a permit for the construction and installation of Telecommunication Facilities in the right-of-way segment.

(3)  Each agreement and permit shall comply with the contracting requirements listed or incorporated herein and authorize longitudinal access or wireless access only for the shorter of:  (a) the time period requested by the Telecommunications Facility Provider, or (b) 30 years.[  Telecommunication Facility Providers shall be given every reasonable opportunity to renew any and all agreements and permits following the expiration of the term, provided that new mutually acceptable agreements are entered into between the Department and the Telecommunication Facility Providers.]

(4)  No permit shall be issued prior to an agreement having been reached between the Department and Telecommunication Facility Providers.  Failure of the parties to reach agreement shall cause longitudinal access to be denied and no permit shall be issued.

 

R907-64-8.  Limited, Periodic Opportunities for Installation for Longitudinal Access.

(1)  In order to minimize adverse impacts to rights-of-way and related highway facilities and pavement structures within the Interstate System and to avoid significant compromise of the safe, efficient and convenient use of the Interstate System for the traveling pubic, advertising for longitudinal access for constructing and installing Telecommunication Facilities in any particular segment of such Rights-of-Way shall be limited in frequency to once every 18 months, except that the Executive Director or designee may permit construction and installation of Telecommunications Facilities with longitudinal access more frequently than once every 18 months, based on factors in Section 64-5(2) of this rule.

(2)  the 18 month period shall begin on the date of the Department's formal notice of intent to open access to any highway segment in the Interstate System which has been noticed.

(3)  When exercising the discretion to permit construction and installation of Telecommunications Facilities with longitudinal access to the Interstate System, the Executive Director or his or her designee shall consider all factors relevant to the Department's policy with respect to utility accommodations as expressed in this rule, including the safe, effective, efficient use of highways in the Interstate System by the traveling public, impacts on the Interstate System's operational capacity, and prudent economic management of the Interstate System.  The Department may perform capacity surveys of the Interstate System rights-of-way to assure that longitudinal access is feasible prior to opening any segment of the Interstate System to longitudinal access for new or additional Telecommunication Facilities.

(4)  The Department will advertise intent to consider opening highway segments in the Interstate System to provide opportunities for constructing and installing Telecommunications Facilities for longitudinal access and wireless access, by one or more of the following means; provided, however, that Telecommunication Facility Providers who have been granted a certificate of convenience and necessity by the Public Service Commission of Utah shall be given actual notice by mail:

(a)  Publication of the intent notice for not less than five consecutive days in a newspaper of national circulation;

(b)  Publication of the intent notice for not less than five consecutive days in a newspaper of statewide circulation;

(c)  Publication of notices of the intent in the calendar or other regular publications of the Department and/or those of other state agencies or Departments; or

(d)  Press or news releases from the Department to newspapers, magazines, periodicals, or telecommunications industry publications.

(5)  Advertisements and notices of intent to consider opening highway segments for constructing and installing Telecommunications Facilities in Interstate System highway rights-of-way whether for longitudinal access or wireless access, shall contain all of the following:

(a)  A description of the segment or segments of the Interstate System for which longitudinal access for the installation and construction of Telecommunications Facilities are proposed;

(b)  A deadline that is not less than 30 days from the first date of publication or release of an advertisement or notice of intent to consider opening, as described above in Subsection (3), for the filing of statements of interest with the office of the Deputy Director by Telecommunications Facility Providers regarding their interest in installing and constructing Telecommunications Facilities in one or more specified highway segments of the Interstate System; and

(c)  The required contents of the statements of interest, to be filed in response to the advertisements or notices, shall include the identity of the interested party, the financial and technical qualifications of the interested party, and any other information specified by the Department in the advertisement or notice.

(6)  Statements of interest received by the Department shall be processed in accordance with the requirements set forth herein.  Based on its review of the statements of interest received, the Department will notify those Telecommunication Providers who submitted statements of interest of its intent to open one or more of the highway segments advertised within 30 days.  This notice will include instructions to initiate the permitting process as specified in "Manual for Accommodation of Utilities and the Control and Protection of State Highway Rights-of-Way," (Rule R930-6).

(7)  The Department may enter into negotiations with one or more of the interested parties filing Statements of Interest toward the execution of an agreement or agreements and permits required under Section R907-64-7 above.  After executing an agreement and permit, each telecommunications facility provider shall file them with the office of [the Deputy Director]Right of Way.

 

R907-64-9.  Removal and Relocation.

Pursuant to Subsection 72-7-108[(c)(v),](7)(c) the Department shall require the removal and/or relocation of Telecommunication Facilities located on the Interstate System when highway changes are required to provide for the free and safe flow of traffic at the Telecommunication Facility Provider's expense.  If prudent management of the interstate highway rights-of-way demand, The Department may require removal and/or relocation of such Telecommunication Facilities upon expiration or earlier termination of the permit or other agreements at the Telecommunication Facility Provider's expense, in accordance with applicable law.

 

KEY:  right-of-way, interstate highway system

Date of Enactment or Last Substantive Amendment:  [August 17, 1999]2008

Notice of Continuation:  January 5, 2004

Authorizing, and Implemented or Interpreted Law:  72-1-201; 72-6-116