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Removal of Obsolete and Redundant Right-of-Way Requirements

American Government Special Collections Reference Desk

American Government

Removal of Obsolete and Redundant Right-of-Way Requirements

Rodney E. Slater
Federal Highway Administration
May 16, 1994


[Federal Register Volume 59, Number 93 (Monday, May 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-11846]


[[Page Unknown]]

[Federal Register: May 16, 1994]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 710, 712, 713, and 720

[FHWA Docket No. 93-7]
RIN 2125-AD09

 

Removal of Obsolete and Redundant Right-of-Way Requirements

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Final rule.

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

SUMMARY: This final rule eliminates a number of FHWA prior approvals 
previously required in the acquisition of real property for Federal-aid 
highway projects. Consistent with the Intermodal Surface Transportation 
Efficiency Act of 1991 (ISTEA), this approach reduces the regulatory 
burden for States and encourages greater flexibility by reducing the 
degree to which the FHWA will be involved in the development of 
Federal-aid highway projects.

DATES: This regulation is effective June 15, 1994.

FOR FURTHER INFORMATION CONTACT: Gerald B. Saunders, Chief, Operations 
Division, Office of Right-of-Way, HRW-20, (202) 366-0142; or Reid 
Alsop, Office of Chief Counsel, HCC-31, (202) 366-1371. The address is 
Federal Highway Administration, 400 Seventh Street, SW., Washington, 
D.C. 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday 
through Friday, except legal Federal holidays.

SUPPLEMENTARY INFORMATION: This final rule modifies several provisions 
in the FHWA's right-of-way regulations that require the FHWA to grant 
prior approvals or authorizations for particular actions by a State. 
These case-by-case approvals will no longer be required and will be 
replaced by a one-time FHWA approval of State procedures. Oversight by 
the FHWA will continue through the use of process reviews. In the 
future, prior approvals may be reinstituted if they are found to be 
necessary to protect the Federal investment.
    As a result of a review of the FHWA's right-of-way regulations, the 
Office of Right-of-Way identified a number of requirements that imposed 
burdens on States without commensurate program benefit. The review 
disclosed a number of case-by-case approval actions that, based on 
experience, were no longer necessary to protect the investment of 
Federal-aid highway funds. These approval actions are divided into the 
two categories set forth below.
    The first category includes six FHWA approvals or authorizations. 
The State may now take the approval or authorization actions required 
by the following sections if they are in accordance with procedures 
that have been approved by the FHWA. 

------------------------------------------------------------------------
                  Approval action                      23 CFR section   
------------------------------------------------------------------------
Use of fee negotiators............................  710.203(e)(3)       
Interest on right of entry payments...............  710.304(j)(5)       
Use of fee attorneys..............................  712.408(a)          
Land service facilities...........................  712.805(c)(1)       
Temporary use of right-of-way.....................  713.103(h)(1)       
Appraisal fees....................................  720.202(d)(2)       
------------------------------------------------------------------------

    The second category includes four FHWA approvals that are 
eliminated on all FHWA-funded projects except those on the National 
Highway System (NHS). These concern the long-term use or disposal of 
rights-of-way and are no longer considered necessary or useful on a 
case-by-case basis for non-NHS projects. The FHWA will continue case-
by-case approvals or authorizations relating to the use or disposal of 
NHS rights-of-way, consistent with the provisions of 23 U.S.C. 
106(b)(2) which require that a higher level of FHWA oversight be 
maintained on the NHS.
    Accordingly, the authorization actions required by the following 
sections may be taken by the State if they are in accordance with 
procedures that have been approved by the FHWA, except with regard to 
facilities or projects that are on the National Highway System (NHS), 
described in 23 U.S.C. 103. The FHWA approvals or authorizations that 
are prescribed by the following sections continue to be required with 
regard to facilities or projects on the NHS because of FHWA's special 
interest in the integrity and safety of NHS facilities and right-of-
way. 

------------------------------------------------------------------------
                  Approval action                      23 CFR section   
------------------------------------------------------------------------
Non-highway use and occupancy of right-of-way.....  712.203(b)(1)       
Airspace agreements...............................  713.204             
Disposal of right-of-way no longer needed.........  713.305             
Disposal of access-control and relinquishment of    620.203(d) through  
 right-of-way.                                       (l)                
------------------------------------------------------------------------

    On July 21, 1993, the FHWA published in the Federal Register a 
notice of proposed rulemaking (NPRM) concerning the above provisions of 
FHWA's right-of-way regulations (58 FR 38987). The FHWA received three 
comments on the NPRM, all from State Departments of Transportation. All 
three commenters supported in varying degrees the proposed changes. Two 
commenters indicated that the proposed changes would increase their 
flexibility or simplify their right-of-way programs. The third 
anticipated a slight decrease in paperwork and a subsequent saving of 
time.
    We received no negative comments. Furthermore, none of the three 
commenters suggested any changes in the language of the NPRM. 
Accordingly, the language of the final rule is unchanged from that 
proposed in the NPRM.

Rulemaking Analyses and Notices

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 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. It is anticipated that the economic 
impact of this rulemaking will be minimal. The rulemaking would not 
affect the level of funding available in Federal or federally-assisted 
programs covered by the Uniform Relocation and Real Property 
Acquisition Policies Act of 1970, as amended (42 U.S.C. 4610 et seq.), 
or otherwise have a significant economic impact; therefore, a full 
regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the FHWA has evaluated the effects of this rule on 
small entities. Based on the evaluation, the FHWA hereby certifies that 
this action will not have a significant economic impact on a 
substantial number of small entities since it will make relatively 
small changes in existing regulatory provisions by eliminating certain 
FHWA prior approvals.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this action does not have sufficient federalism implications to 
warrant the preparation of a federalism assessment. This action, in 
effect, both clarifies and simplifies current regulatory requirements.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance 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.

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1980, 44 
U.S.C. 3501 et seq.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that this action would not have any effect on the quality of 
the environment.

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

23 CFR Part 710

    Civil rights, Grant programs-transportation, Highway and roads, 
Real property acquisition, Rights-of-way.

23 CFR Part 712

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

23 CFR Part 713

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

23 CFR Part 720

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

    Issued on May 9, 1994.
Rodney E. Slater,
Federal Highway Administrator.

    In accordance with the foregoing, parts 710, 712, 713, and 720 of 
title 23, Code of Federal Regulations, are amended as set forth below.

PART 710--[AMENDED]

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

    Authority: 23 U.S.C. 101(a) and 315; 42 U.S.C. 2000d et seq., 
4633, 4651-4655; 49 CFR 1.48 (b) and (cc) and parts 21 and 24; 23 
CFR 1.32.


Sec. 710.203  [Amended]

    2. In Sec. 710.203, paragraph (e)(3) is revised to read as follows:


Sec. 710.203  General responsibilities.

* * * * *
    (e) * * *
    (3) Firms and individuals meeting the SHD's qualification standards 
may be employed by contract for negotiating purposes in accordance with 
SHD procedures that have been approved by the FHWA.
* * * * *
    3. Section 710.204 is added to read as follows:


Sec. 710.204  State approvals.

    Notwithstanding any other provision of this title, the FHWA 
authorizations or approvals prescribed by Secs. 712.203(b)(1), 713.204, 
713.305, and 620.203 (d) through (i) of this chapter may, except in the 
case of facilities or projects on the National Highway System 
(described in 23 U.S.C. 103), be made by the SHD in accordance with 
procedures that have been approved by the FHWA.
    4. In Sec. 710.304, the first sentence of paragraph (j)(5) is 
revised to read as follows:


Sec. 710.304  Reimbursement policy.

* * * * *
    (j) * * *
    (5) Federal participation shall not be allowed in interest cost on 
payments to an owner where the SHD accepts a voluntary right of entry 
instead of making such payment available to the owner directly or by 
deposit with the court, except in cases of unusual circumstances in 
accordance with SHD procedures that have been approved by the FHWA. * * 
*

PART 712--[AMENDED]

    5. The authority citation for part 712 is revised to read as 
follows:

    Authority: 23 U.S.C. 101(a), 107, 108, 111, 114, 204, 210, 308, 
315, 317, and 323; 42 U.S.C. 2000d-1, 4633, 4651-4655; 49 CFR 1.48-
(b) and (cc) and part 24; 23 CFR 1.32.

    6. In Sec. 712.408, paragraph (a) is revised to read as follows:


Sec. 712.408  Special counsel.

    (a) If part-time assistants or legal counsel are employed for 
Federal-aid right-of-way procurements, reimbursement may be claimed for 
the eligible cost of the services of such attorney, provided that such 
assistants or counsel are employed in accordance with SHD procedures 
that have been approved by the FHWA.
* * * * *
    7. In Sec. 712.805, paragraph (c)(1) is revised to read as follows:


Sec. 712.805  Policies.

* * * * *
    (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, 
such access may be approved by the SHD, in accordance with SHD 
procedures that have been approved by the FHWA.
* * * * *

PART 713--[AMENDED]

    8. The authority citation for part 713 is revised to read as 
follows:

    Authority: 23 U.S.C. 101(a), 142(f), 156, and 315; 42 U.S.C. 
4633 and 4651-4566; 23 CFR 1.32; 49 CFR 1.48(b) and (cc), 18.31 and 
parts 21 and 24.

    9. In Sec. 713.103, paragraph (h)(1) is revised to read as follows:


Sec. 713.103  Policies and procedures.

* * * * *
    (h) * * *
    (1) The SHD has approved temporary right-of-way limits within the 
overall right-of-way in accordance with SHD procedures approved by the 
FHWA;
* * * * *

PART 720--[AMENDED]

    10. The authority citation for part 720 is revised to read as 
follows:

    Authority: 23 U.S.C. 101(a) and 315; 42 U.S.C. 4633 and 4651-
4655; 23 CFR 1.32; 49 CFR 1.48(b) and (cc) and part 24.

    11. In Sec. 720.22, paragraph (d)(2) is revised to read as follows:


Sec. 720.202  Appraisal fees, contracts, and agreements.

* * * * *
    (d) * * *
    (2) In instances in which special use or other unusual properties 
are involved, the SHD may approve the use of a per diem rate 
contracting method with a stated overall limit which should not be 
exceeded except by supplemental agreement, provided that such SHD 
approval is made in accordance with SHD procedures that have been 
approved by the FHWA.
* * * * *
[FR Doc. 94-11846 Filed 5-13-94; 8:45 am]
BILLING CODE 4910-22-P

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