[Federal Register Volume 66, Number 90 (Wednesday, May 9, 2001)]
[Proposed Rules]
[Pages 23636-23638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11710]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 710

[FHWA Docket No. FHWA 2001-8624]
RIN 2125-AE82


Right-of-Way and Real Estate; Program Administration

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA is proposing to amend its right-of-way regulations 
for federally assisted transportation projects to provide a 
clarification. The proposed amendment would make it clear that

[[Page 23637]]

Federal financial assistance, provided by the FHWA pursuant to title 
23, U.S. Code, may be applied to relocation assistance benefits, 
provided by State and local agencies pursuant to State law, that are in 
addition to the relocation benefits prescribed by the Uniform 
Relocation Assistance and Real Property Acquisition Policies Act of 
1970, as amended (Uniform Act).

DATES: Comments in response to this notice must be received on or 
before July 9, 2001.

ADDRESSES: Mail or hand deliver comments to the docket number that 
appears in the heading of this document to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-4301, 400 Seventh 
Street, SW., Washington, D.C. 20590, or submit electronically at http/
ddmeses.dot.gov/submit. All comments received will be available for 
examination and copying at the above address 9 a.m. to 5 p.m., e.t., 
Monday through Friday, except Federal Holidays. Those desiring 
notification of receipt of comments must include a pre-addressed, 
stamped envelope or post card or you may print the acknowledgement page 
that appears after submitting comments electronically.

FOR FURTHER INFORMATION CONTACT: Ms. Barbara Satorius, Office of Real 
Estate Services, HEPR-10, (303) 969-5772, extension 333; FHWA, 555 Zang 
Street, Lakewood, CO 80228, office hours are from 8 a.m. to 5 p.m., 
m.t., Monday through Friday, except Federal holidays; or Mr. Reid 
Alsop, Office of Chief Counsel, HCC-30, (202) 366-1371; FHWA, 400 
Seventh Street, SW., Washington, DC 20590, office hours are from 7:45 
a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dms.dot.gov/submit. Acceptable 
formats include: MS Word (versions 95 to 97), MS Word for Mac (versions 
6 to 8), Rich Text File (RTF), American Standard Code Information 
Interchange (ASCII)(TXT), Portable Document Format (PDF), and 
WordPerfect (versions 7 to 8). The DMS is available 24 hours each day, 
365 days each year. Electronic submission and retrieval help and 
guidelines are available under the help section of the web site.
    An electronic copy of this document may also be downloaded by using 
a computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users my also reach the Federal Register's home page 
at http://www.nara.gov/fedreg and the Government Printing Office's web 
page at: http://www.access.gpo.gov/nara.

Background

    The FHWA published a final rule on Right-of-Way Program 
Administration on December 21, 1999 (64 FR 71284). The final rule in 23 
CFR 710.203 revised the FHWA's policy on participation in costs 
incurred by States in the acquisition of real property for federally 
assisted projects, funded pursuant to title 23 U.S. Code. The reasons 
for this change are described in the preamble to both the final rule 
and the NPRM that preceded it (63 FR 71238). The final rule provides 
that the FHWA can participate in those acquisition costs that are 
required by State law, as well as in relocation assistance and payments 
provided pursuant to the Uniform Act to assist persons required to move 
by such projects.
    Basically the change was based on a desire to increase State 
flexibility and to reduce administrative burdens. Additionally, because 
Federal-aid highway funds are allocated to States on the basis of a 
statutory formula, the FHWA participation in costs required by State 
law will not result in any changes in the amount of funds available to 
a State.
    Since publication of the final rule, questions have arisen 
concerning the FHWA participation in relocation payments made by some 
States, pursuant to State law, that are beyond and in addition to those 
required by the Uniform Act.
    The Uniform Act prescribes benefits that the State must provide as 
a condition of the receipt of Federal financial assistance. It provides 
a floor not a ceiling, and does not prevent a State, if it so chooses, 
from providing relocation benefits in addition to those provided by the 
Uniform Act. It also does not prevent a Federal agency from 
participating in such additional benefits if it has the programmatic 
authority to do so.
    The FHWA believes that its participation in such relocation 
payments is permissible based on the broad language in 
Sec. 710.203(b)(1), as well as the FHWA's general authority to 
participate in costs of ``construction,'' which term is defined in 23 
U.S.C. 101(a)(3) to include both costs of right-of-way acquisition and 
relocation assistance.
    Further, since acquisition and relocation are closely linked, it 
would be more equitable and consistent for the FHWA to participate in 
both the real property acquisition costs and the relocation assistance 
costs required by State law. It is also less administratively 
burdensome.
    However, we recognize that the final rule may lack clarity as to 
this matter, and accordingly are proposing to amend Sec. 710.203 (b)(2) 
to clearly state that financial assistance provided by the FHWA may 
participate in relocation assistance payments that are made by a State 
or local agency pursuant to State law. Such payments may include 
relocation payments that are in addition to those prescribed by the 
Uniform Act.
    This proposal would also correct an inaccurate citation in 
Sec. 710.409(a).

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination using the docket room at the above address. The FHWA 
will file comments received after the comment closing date in the 
docket and will consider late comments to the extent practicable. The 
FHWA may, however, issue a final rule at any time after the close of 
the comment period. In addition to late comments, the FHWA will also 
continue to file, in the docket, relevant information becoming 
available after the comment closing date, and interested persons should 
continue to examine the docket for new material.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866, nor is 
it a significant regulatory policy and procedure. It is anticipated 
that the economic impact of this rulemaking will be minimal; therefore, 
a full regulatory evaluation is not required. The FHWA does not 
consider this action to be a significant regulatory action because this 
proposal would clarify existing requirements relating to FHWA 
reimbursement for certain expenditures that are required by State law. 
Rather, this action would make certain State expenditures eligible for 
reimbursement by the Federal government under title 23.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the agency has evaluated the effects of this rule on small 
entities and determined that this action will not have a significant 
economic impact on a

[[Page 23638]]

substantial number of small entities. This action proposes to increase 
the flexibility provided to States on how they choose to spend their 
Federal-aid highway funds. For this reason, the FHWA certifies that 
this action would not have a significant economic impact on a 
substantial number of small entities.

Environmental Impact

    The FHWA has also analyzed this action for the purpose of the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.), and has 
determined that this action would not have any effect on the quality of 
the human environment.

Executive Order 13132 (Federalism)

    The FHWA has analyzed this action in accordance with the principles 
and criteria contained in Executive Order 13132 dated August 4, 1999, 
and determined that this action does not have sufficient federalism 
implications on States that would limit the policymaking discretion of 
the States. Nothing in this document directly preempts any State law or 
regulation.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Unfunded Mandates Reform Act of 1995

    This rule does not impose a Federal mandate resulting in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, or $100 million or more in any one year. (2 
U.S.C. 1531 et seq.).

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. The FHWA has reviewed 
this proposal and determined that it does not contain additional 
collection of information requirements for the purposes of the PRA. The 
requirements to collect information relating to the current provisions 
of the right-of-way regulation are covered by a currently approved 
information collection entitled ``State Right-of-Way Operations 
Manuals.'' OMB Approval No. 2125-0586, Expires August 31, 2003. This 
information collection covers the burden for the States to prepare and 
update their right-of-way operations manuals.
    Changes in this proposal would clarify the right-of-way regulations 
for federally assisted transportation projects and would, therefore, 
not affect the current information collection burden estimates.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not affect a taking of private or otherwise have 
taking implications under Executive Order 12630. Governmental Actions 
and Interference with Constitutionally Protected Property Rights.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 710

    Grant programs-transportation, Highways and roads, Real property 
acquisition, Rights-of-way.

    In consideration of the foregoing, the FHWA proposes to amend title 
23, Code of Federal Regulations, Chapter 1, by amending Part 710 as set 
forth below.

    Issued on: May 2, 2001.
Vincent F. Schimmoller,
Deputy Executive Director, Federal Highway Administration.

PART 710--[AMENDED]

    1. The authority citation for part 710 continues to read as 
follows:

    Authority: 23 U.S.C. 101(a), 107, 108, 111, 114, 133, 142(f), 
145, 156, 204, 210, 308, 315, 317, and 323; 42 U.S.C. 2000d et seq., 
4633, 4651-4655; 49 CFR 1.48(b) and (cc), 18.31, and parts 21 and 
24; 23 CFR 1.32.

    2. Revise Sec. 710.203(b)(2) to read as follows:


Sec. 710.203  Funding and reimbursement.

* * * * *
    (b) * * *
    (2) Relocation assistance and payments. Usual cost and 
disbursements associated with relocation assistance and payments 
required under 49 CFR part 24 and under the laws of the State, 
including payments under State law that may exceed the requirements of 
49 CFR part 24.
* * * * *


Sec. 710.409  [Amended]

    3. Amend Sec. 710.409(a) by revising the reference 
``Sec. 710.403(c)'' to read ``Sec. 710.403(d).''

[FR Doc. 01-11710 Filed 5-8-01; 8:45 am]
BILLING CODE 4910-22-P