(b) When a State highway department has a project it wishes to finance from the revolving fund or additional funds are needed for an existing revolving fund project, a letter asking for allocation of funds shall be submitted to FHWA.

(c) If funds are available, FHWA will allocate them to a specific project and authorize obligation of such funds.

(d) After the State has been advised of fund allocation, the project shall be programed, and right-of-way work shall be authorized by FHWA under regular Federal-aid procedures. Each regular project prefix number shall be preceded by the letter Q. The FHWA letter of authorization to proceed shall constitute an obligation of the rightof-way revolving fund. Revolving fund projects are subject to environmental, location, and design requirements in the same manner as regular Federalaid projects.

(e) All right-of-way work on revolving fund projects shall be accomplished in accordance with procedures and requirements applicable to regular Federal-aid projects.

(f) If situations should develop which prevent work from progressing on individual right-of-way revolving fund projects in a timely manner, the State shall notify FHWA so that the obligational authority may be withdrawn.

(a) General. (1) The construction of highways occasionally changes access conditions in a manner which may seriously inconvenience the general public as well as the private property owner. Land service facilities such as private roads, frontage roads, sidewalks and pedestrian separations, and combination drainage and vehicular or stock passes may be incorporated into the highway design in order to reduce the disruptive effect the highway may have on a particular community, on recreational activities and wildlife, or on the operation of a farm, ranch, or other business which the highway location severs.

(2) Whenever practicable, land service facilities should be designed and located to service more than one property or purpose. Whenever land service facilities are provided to serve more than one property owner, the rights of each owner to use the facility must be granted in a recordable legal instrument.

(3) Efforts should be made to utilize or extend existing land service facility structures to the extent appropriate. Where there are existing facilities over or under a Federal-aid highway, Federal funds may participate in the construction of similar land service facilities to cross added parallel lanes provided land use and land use patterns have not changed in a manner which diminishes the need for such a facility.

(b) Public use and benefit. (1) The construction of land service facilities which are designed for public use, or to provide access for multiple landowners shall be justified as a part of the normal design development proc

ess.

(2) Justification for incorporating land service facilities designed for public use into the highway design includes, but is not limited to considerations such as: highway safety, access to recreation areas, police and fire protection, preservation or enhancement of area economy, equitable treatment of property owners, servicing utility facilities, restoration of local vehicular or animal circulation, conservation and development of natural resources

(including wildlife) and other environmental considerations.

(c) Private use and benefit. (1) Land service facilities designed for restoration of access to and within a privately owned property shall be justified primarily on the basis of economics. In exceptional cases where the land service facility is not justified economically, but it is believed that access is nevertheless in the public interest, the recommendation and justification for perpetuation to access are to be submitted to the FHWA for prior consideration.

(2) The actual cost of providing a land service facility to cross under or over a highway may vary widely, depending on the type and width of the highways to be built. A common cost basis may be used for comparative purposes in determining mitigation of damages to a property in these cases. The basis may apply regardless of the actual cost of the proposed structure. The basic economic formula consists of the following computations:

(i) Based on substantiated beforeand-after estimates, determine the difference between the current fair market value of the property without the proposed facility and the current fair market value with the proposed facility.

(ii) The difference determined in paragraph (c)(2)(i) of this section would then be compared with the current estimated construction costs of a land service facility required to cross over or under a hypothetical two-lane highway calculated in accordance with the following criteria:

(A) The structural elements of the cross section of the structure are to be the State's design standard or typical section for the specific service to be provided, and

(B) For comparison purposes only, the dimensions of the cross section elements used to establish the maximum length of overcrossing or undercrossing structure will be those provided for in the State's minimum design standards for the particular highway class, with the following limitations: pavement width shall not exceed 24 feet (±7.32 metres), shoulder width 10 feet (±3.05 metres), depth of cover 8 feet (±2.44 metres),

and fill slopes not to be flatter than 2:1.

(iii) Generally, if the hypothetical construction costs calculated according to paragraph (c)(2)(ii) (A) and (B) of this section exceed the difference determined in paragraph (c)(2)(i) of this section, the proposed land service facility cannot be considered to be economically justified.

(3) When proposed highway structures which have been determined to be necessary under applicable design standards are modified for combination highway and private use as a land service facility, the structure costs to be utilized in the economic comparison should not include those costs required to meet the highway design needs.

(4) Participation in private use land service facilities is based on the inclusion of a right-of-way item in an approved Federal-aid program as defined in Part 630, Subpart A, of this Chapter. Land service facilities designed for private use and benefit may be included in a construction project as a rightof-way item of cost.

(5) Federal funds may participate in payments made to the property owner based upon the appraised value without the land service facility. Federal funds shall not participate in the payment to the property owner of the estimated construction costs of a land service facility justified under this regulation in lieu of the actual construction of such a facility.

§ 713.102 Applicability.

The policies in § 713.103 are applicable to all State and political subdivisions thereof that manage real property acquired for any highway or highway related project in which Federal funds will participate in any part of the right-of-way costs of the project. States are encouraged to adopt these procedures for all projects in which Federal funds will participate in any part of the project. Section 713.103(b) is applicable to the greatest extent practicable under State law, to all projects in which Federal funds will participate in any part of the cost of the project.

§ 713.103 Policies and procedures.

(a) The State highway department (SHD) shall establish property management policies and procedures that will assure control and administration of lands and improvements acquired for right-of-way purposes. These procedures shall establish:

(1) Property records showing: (i) An inventory of all improvements acquired as a part of the right-of-way;

(ii) An accounting of the property management expenses and the rental payments received; and

(iii) An accounting of the disposition of improvements and the recovery payments received.

(2) Methods for accomplishing the clearing of right-of-way when such clearance is performed separately from the contract for the physical construction of the project.

(3) The methods for managing the rodent control program.

(4) The methods for employing private firms or public agencies for the management of real property.

(5) The methods for accomplishing the disposition of improvements through resale, salvage, owner retention, or other means.

(b) If the acquiring agency permits an owner or tenant to occupy the real property acquired on a rental basis for a short term or for a period subject to termination by the agency on short notice, the amount of rental required shall not exceed the fair rental value of the property to a short term occupi

er.

(c) Property management activities shall be handled in a manner consistent with the public interest and designed to reflect the maximum longrange public benefit.

(d) The acquiring agency is responsible for the preservation of the improvements and for reasonable safety measures when it has acquired ownership and possession of the property.

(e) Clearing acquired improvements under a clearing contract is considered:

(1) A right-of-way item when the clearing is performed separately from the contract for physical construction. The applicability of the provisions of Volume 6, Chapter 4, of the FederalAid Highway Program Manual' shall be determined in accordance with the criteria set forth for the requirement of wage determinations in the FHWA Labor Compliance Manual. 2

'The Federal-Aid Highway Program Manual may be examined at the Federal Highway Administration; 400 7th Street SW., Washington, D.C. 20590.

2The FHWA Labor Compliance Manual may be examined at the Federal Highway Continued

(2) A construction item within the provisions of Volume 6, Chapter 4, of the Federal-Aid Highway Program Manual2 when the clearing is performed as a part of the physical construction contract.

(f) Rodent control procedures shall assure that the acquiring agency:

(1) Determines and documents the need for extermination services through periodic field inspections.

(2) Coordinates with other interested agencies, such as State, county, and city health departments, and

(3) Completes required extermination measures prior to demolition or removal of improvements.

(g) Acquired rights-of-way shall be maintained in a manner which will prevent or correct problems such as illegal dumping or disposal of rubble, debris, and garbage on cleared Federal-aid highway right-of-way until needed for construction.

may

(h) Where the acquired right-of-way includes areas for future construction, in addition to that required for immediate construction, the SHD permit or lease the temporary use of this area until it is needed for highway purposes. The SHD may allow this temporary use when:

(1) The FHWA has approved temporary right-of-way limits within the overall right-of-way;

(2) The integrity and safety of the highway facility constructed elsewhere on the right-of-way are assured; and

(3) There is no decrease in the extent of access control to the highway facility constructed elsewhere on the right-of-way.

Subpart B-Management of Airspace

AUTHORITY: 23 U.S.C. 142(g); 23 U.S.C. 315; 23 CFR 1.23; 23 CFR 1.32; 49 CFR 1.48; Part 21.

§ 713.201 Purpose.

To prescribe Federal Highway Administration (FHWA) policies relating to the management of airspace on Federal-aid highway systems for nonhighway purposes.

Administration; 400 7th Street SW., Washington, D.C. 20590.

§ 713.202 Applicability.

(a) The provisions of this Subpart apply to the use of airspace on the Federal-aid highway systems, except as provided in paragraph (b) of this section.

(b) This Subpart does not apply to railroads and public utilities which cross or otherwise occupy Federal-aid highway rights-of-way, nor to relocations of railroads or utilities for which reimbursement is claimed under Subparts H and E of Part 140 of this Chapter; joint development and multiple use of highway rights-of-way as covered in Volume 7, Chapter 7, section 8 of the Federal-Aid Highway Program Manual;3 and bikeways and pedestrian walkways as covered in part 652 of this chapter.

(a) Where a State highway department (SHD) has acquired sufficient legal right, title, and interest in the right-of-way of a highway on a Federal-aid system to permit the use of certain airspace for nonhighway purposes, and where such airspace is not required presently or in the foreseeable future for the safe and proper operation and maintenance of the highway facility, the right to temporary or permanent occupancy or use of such airspace may be granted by the SHD subject to prior FHWA approval.

(b) The airspace required to accommodate foreseeable future expansion of the highway facility may not be used for nonhighway purposes except under the provisions of Subpart A of this part, relating to property management.

(c) In any case where sufficient land exists within the publicly acquired rights-of-way of any Federal-aid high

3 The Federal-Aid Highway Program Manual may be examined at the Federal Highway Administration; 400 7th Street SW., Washington, D.C. 20590.

way system to accommodate needed rail or nonhighway public mass transit facilities and where this can be accomplished without impairing automotive safety or future highway improvements, the FHWA may authorize a SHD to make such lands and rights-ofway available without charge to a publicly owned mass transit authority for such purposes whenever it may deem that the public interest will be served thereby.

(d) If found to be consistent with highway designs, any portion of rightof-way may be used for green strips, small parks, play areas, parking or other highway related public use, or for any other public or quasi-public use which would assist in integrating the highway into the local environment and enhancing other publicly supported programs. Normally, the SHD should retain supervision and jurisdiction over such lands but could enter into agreements with local political subdivisions relative thereto.

(e) An individual, company, organization, or public agency desiring to use airspace as defined herein shall submit an application therefor to the SHD in a manner and form deemed appropriate by the SHD. Applications, including a proposed airspace agreement, shall be forwarded to the FHWA together with SHD recommendations for approval and any necessary supplemental information. The submission shall affirmatively provide for adherence to all policy requirements contained in this Subpart where such are appropriate to the intended use.

(f) All nonhighway use of airspace shall be covered by a properly executed airspace agreement. The agreement shall contain the following:

(1) The party responsible for developing and operating the airspace.

(2) A general statement of the proposed use.

(3) The general design for the use of the space, including any facilities to be constructed, and such maps, plans, or sketches as are necessary to set out pertinent features in relation to the highway facility.

(4) A detailed three-dimensional description of the space to be used, except when the surface area beneath an elevated highway structure or adja

cent to a highway roadway is to be used for recreation, public park, beautification, parking of motor vehicles, public mass transit facilities, and other similar uses. In such cases, a metes and bounds description of the surface area, together with appropriate plans or cross sections clearly defining the vertical use limits may be furnished in lieu of a three-dimensional description.

(5) Provision that any significant revision in the design or construction of a facility described in subsection 5f(3) above shall receive prior approval by the SHD subject to concurrence by the FHWA.

(6) Provision that any change in the authorized use of airspace shall receive prior approval by the SHD subject to concurrence by the FHWA.

(7) Provision that such airspace shall not be transferred, assigned, or conveyed to another party without prior SHD approval subject to concurrence by the FHWA.

(8) Provision that the agreement will be revocable in the event that the airspace facility ceases to be used or is abandoned.

(9) Provision for the agreement to be revoked if the agreement is violated and such violation is not corrected within a reasonable length of time after written notice of noncompliance has been given. Further, that in the event the agreement is revoked and the SHD deems it necessary to request the removal of the facility occupying the airspace, the removal shall be accomplished by the responsible party in a manner prescribed by the SHD at no cost to the FHWA. An exception to this provision is permitted when the improvements revert to the State upon termination of the agreement.

(10) When deemed necessary by the SHD or the FHWA, provision for adequate insurance by the responsible party for the payment of any damages which may occur during or after construction of the airspace facilities to hold the State harmless. Exception to this requirement may be made where the proposal is for the use by a public or quasi-public agency, when such agency is assigned the specific responsibility for payment of any related damages occurring to the highway fa