Pedestrian and Bicycle Accommodations and Projects; Removal of Obsolete Regulation

Nicole R. Nason
Federal Highway Administration
8 October 2019

[Federal Register Volume 84, Number 195 (Tuesday, October 8, 2019)]
[Rules and Regulations]
[Pages 53599-53601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21685]



[[Page 53599]]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 652

[Docket No. FHWA-2019-0018]
RIN 2125-AF90


Pedestrian and Bicycle Accommodations and Projects; Removal of 
Obsolete Regulation

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

ACTION: Final rule.

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SUMMARY: Through this final rule FHWA will remove a regulation that has 
been superseded by legislation. We are removing sections related to 
pedestrian and bicycle accommodations and projects. The regulation is 
no longer necessary, given revisions to applicable provisions of title 
23, United States Code (U.S.C.).

DATES: This final rule is effective October 8, 2019.

FOR FURTHER INFORMATION CONTACT: Christopher Douwes, Office of Human 
Environment (HEPH-10), (202) 366-5013, or via email at 
Christopher.Douwes@dot.gov or David Sett, Office of the Chief Counsel 
(HCC-30), (404) 562-3676, or via email at David.Sett@dot.gov. Office 
hours are from 8 a.m. to 4:30 p.m., e.t., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    This document may be viewed online under the docket number noted 
above through the Federal eRulemaking portal at: http://www.regulations.gov. An electronic copy of this document may also be 
downloaded from the Office of the Federal Register's website at: http://www.archives.gov/federal-register and the Government Publishing 
Office's website at: http://www.gpo.gov/fdsys.

Background

    Over time, various legislative changes have made 23 CFR part 652 
obsolete. In addition, the design guidelines described in this 
regulation no longer constitute best practices, based on the most 
recent safety and multimodal network research. Therefore, this 
rulemaking will remove 23 CFR part 652 in its entirety.
    This regulation, enacted on March 22, 1984, has been inconsistent 
with title 23 U.S.C. since the Intermodal Surface Transportation 
Efficiency Act (ISTEA) (Pub. L. 102-240, 105 Stat. 1914) was enacted on 
December 18, 1991. Subsequent surface transportation legislation and 
implementing regulations have rendered this regulation obsolete, 
including the National Highway System Designation Act of 1995 (Pub. L. 
104-59, 109 Stat. 568); the Transportation Equity Act for the 21st 
Century of 1998 (Pub. L. 105-178, 112 Stat. 107); the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU) of 2005 (Pub. L. 109-59, 119 Stat. 1144); the 
Moving Ahead for Progress in the 21st Century Act (MAP-21) of 2012 
(Pub. L. 112-141, 126 Stat. 405); and the Fixing America's Surface 
Transportation (FAST) Act of 2015 (Pub. L. 114-94, 129 Stat. 1312), as 
well as the Americans with Disabilities Act of 1990 (ADA) (Pub. L. 101-
336, 104 Stat. 327). Safety and multimodal network research leading to 
new planning and design guidelines and practices have added to the 
inconsistency between this regulation and current practices. The 
section-by-section analysis describes how each section of part 652 has 
been superseded.

Section-by-Section Analysis

    Sec.  652.1 Purpose. This section is obsolete. Subsequent law 
provided broad flexibility to fund pedestrian and bicycle projects 
without the restrictions in part 652. See discussion of Sec.  652.7 for 
additional information.
    Sec.  652.3 Definitions. The definitions in this section are not 
needed because the regulation will be removed.
    Sec.  652.5 Policy. This section is either obsolete or superseded 
by subsequent laws, regulations, and guidance. Current law in 23 U.S.C. 
217 incorporates provisions in this section relating to pedestrian and 
bicyclist accommodation. The ADA and DOT's implementing regulation in 
49 CFR part 27 incorporate accessibility requirements. Planning 
requirements in 23 U.S.C. 134 and 135 and 23 CFR parts 420 and 450 
address issues related to pedestrian and bicycle accommodation, such as 
assessing current and anticipated traffic and traffic conflicts.
    Sec.  652.7 Eligibility. This section is obsolete because ISTEA and 
subsequent surface transportation legislation authorized broad 
eligibility for pedestrian and bicycle projects through Federal highway 
funding programs including, but not limited to the following:
     Bicycle transportation and pedestrian walkways (23 U.S.C. 
217);
     National Highway Performance Program (23 U.S.C. 119);
     Surface Transportation Block Grant Program (23 U.S.C. 
133), including the Surface Transportation Program Set-Aside (23 U.S.C. 
133(h));
     Highway Safety Improvement Program (23 U.S.C. 148);
     Congestion Mitigation and Air Quality Improvement Program 
(23 U.S.C. 149);
     Federal Tribal Transportation Program (23 U.S.C. 202);
     Federal Lands Transportation Program (23 U.S.C. 203);
     Federal Lands Access Program (23 U.S.C. 204); and
     Recreational Trails Program (23 U.S.C. 206).
    Sec.  652.9 Federal participation. This section is obsolete because 
ISTEA and subsequent surface transportation legislation authorized 
broad eligibility for pedestrian and bicycle projects through Federal 
highway funding programs as described above. Pedestrian and bicycle 
projects are now subject to the requirements of the program under which 
they are funded (such as the minimum Federal share).
    Sec.  652.11 Planning. This section is obsolete because ISTEA and 
subsequent surface transportation legislation incorporated planning 
provisions for pedestrian and bicycle projects in 23 U.S.C. 134 and 
135, and implementing regulations in 23 CFR parts 420 and 450.
    Sec.  652.13 Design and Construction Criteria.
    Sec.  652.13(a). The American Association of State Highway and 
Transportation Officials' ``Guide for the Development of New Bicycle 
Facilities, 1981'' has been superseded by several revisions. Title 23, 
U.S.C. does not require design standards for pedestrian and bicycle 
facilities. Section 109 stipulates design requirements for the National 
Highway System, which are implemented by 23 CFR part 625. Further, new 
research on pedestrian and bicycle planning, design, construction, and 
maintenance has led to newer practices for the safe and effective 
accommodation of pedestrians and bicyclists within the multimodal 
transportation network. The FHWA considers these documents and other 
resources when developing guidelines and best practices for pedestrian 
and bicycle facilities. These documents are available at https://www.fhwa.dot.gov/environment/bicycle_pedestrian/ and at https://safety.fhwa.dot.gov/ped_bike/.
    Sec.  652.13(b). The ADA and DOT's implementing regulations 
superseded the requirements of Sec.  652.13(b). Curb cut provisions are 
incorporated into 49 CFR 27.75. The FHWA has published additional 
guidance, available at https://www.fhwa.dot.gov/environment/bicycle_pedestrian/ and https://www.fhwa.dot.gov/accessibility/.

[[Page 53600]]

    All substantive requirements and provisions of 23 CFR part 652 have 
been superseded by or incorporated into subsequent law, regulation, or 
guidance. Therefore, part 652 is obsolete and may be removed without 
adversely impacting the ability of FHWA or the State or local 
transportation departments to carry out the Federal-aid highway 
program.

Rulemaking Analyses and Notices

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an 
agency may waive the prior notice and opportunity for public comment 
requirements if it finds, for good cause, that the requirements are 
impracticable, unnecessary, or contrary to the public interest. The 
issuance of this rule without prior notice and opportunity for public 
comment is based on the good cause exception in 5 U.S.C. 553(b)(3)(B). 
Seeking public comment is unnecessary. This action is merely a 
ministerial action to remove a regulation from the CFR that has been 
rendered obsolete by the passage of subsequent legislation, and the 
removal of this regulation will have no substantive impact. The FHWA 
believes that because the underlying statutory authority for this 
regulation has substantially changed since adopted, this final rule 
eliminates any confusion that may be caused by its existence in the 
CFR. For these reasons, FHWA does not anticipate receiving meaningful 
comments on a proposal to remove the regulation from the CFR and finds 
good cause to forgo notice and an opportunity for public comment.
    The APA also allows agencies, upon finding of good cause, to make a 
rule effective immediately upon publication (5 U.S.C. 533(d)(3)). For 
the same reasons discussed above, the Agency believes good cause exists 
for making this action effective immediately upon publication.

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), Executive Order 
13771 (Reducing Regulation and Controlling Regulatory Costs), and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action does not constitute a 
significant regulatory action within the meaning of Executive Order 
(E.O.) 12866 or within the meaning of DOT regulatory policies and 
procedures. This is a ministerial action to remove an obsolete 
regulation from the CFR. The removal of this regulation will have no 
substantive impact or economic impact; therefore, a full regulatory 
evaluation is not necessary.
    This final rule is considered an E.O. 13771 deregulatory action. 
This final rule repeals a whole part from the Code of Federal 
Regulations that has been identified as outdated or unnecessary, thus 
reducing the Department's regulatory footprint. Cost savings associated 
with this deregulatory action are not quantifiable.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 
5 U.S.C. 60l-612), FHWA has evaluated the effects of this final rule on 
small entities, such as local governments and businesses. This is a 
ministerial action to remove an obsolete regulation from the CFR. 
Administration of Federal-aid highway construction projects by small 
entities will not be affected by the deletion. Therefore, FHWA 
certifies that the action will not have a significant economic impact 
on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    The FHWA has determined that this rule does not impose unfunded 
mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. 
L. 104-4, March 22, 1995, 109 Stat. 48). The actions in this final rule 
will not result in the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $155 
million or more in any 1 year (when adjusted for inflation) in 2014 
dollars for either State, local, and Tribal governments in the 
aggregate, or by the private sector. In addition, the definition of 
``Federal Mandate'' in the Unfunded Mandates Reform Act excludes 
financial assistance of the type in which State, local, or Tribal 
governments have authority to adjust their participation in the program 
in accordance with changes made in the program by the Federal 
Government. The Federal-aid highway program permits this type of 
flexibility.

Executive Order 13132 (Federalism Assessment)

    The FHWA has analyzed this final rule in accordance with the 
principles and criteria contained in E.O. 13132. Since is a ministerial 
action to remove an obsolete regulation from the CFR, FHWA has 
determined that this rule does not have federalism implications. The 
FHWA has also determined that this action does not preempt any State 
law or State regulation or affect the States' ability to discharge 
traditional State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
program. State and local governments are not directly affected by this 
action because it is a ministerial action to remove an obsolete 
regulation from the CFR.

Paperwork Reduction Act

    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 for each collection of information they conduct, 
sponsor, or require through regulations. The FHWA has determined that 
this final rule does not contain collection of information requirements 
for the purposes of the PRA.

National Environmental Policy Act

    The FHWA has analyzed this final rule for the purposes of the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321, et seq.) and 
has determined that this action does not have any effect on the quality 
of the human and natural environment because it is a ministerial action 
to remove an obsolete regulation from the CFR.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this final rule under E.O. 13175 and believes 
that it will not have substantial direct effects on one or more Indian 
Tribes, does not impose substantial direct compliance costs on Indian 
Tribal governments, and does not preempt Tribal law. This rule does not 
impose any direct compliance requirements on Indian Tribal governments 
nor does it have any economic or other impacts on the viability of 
Indian Tribes. Therefore, a Tribal summary impact statement is not 
required.

Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this final rule under E.O. 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use. The FHWA has determined that this action is not a 
significant energy action under the E.O. and is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, a Statement of Energy Effects is not required.

[[Page 53601]]

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this rule under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights. This action does not effect a taking of private property or 
otherwise have taking implications under E.O. 12630.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of E.O. 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 E.O. 13045, Protection of 
Children from Environmental Health Risks and Safety Risks. The FHWA 
certifies that this action will not cause an environmental risk to 
health or safety that may disproportionately affect children.

Regulation Identifier Number

    A Regulation Identifier 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 number 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 652

    Grant programs--transportation, Highways and roads.

Nicole R. Nason,
Administrator, Federal Highway Administration.
    In consideration of the foregoing, FHWA amends 23 CFR chapter I as 
follows:

PART 652--[REMOVED AND RESERVED]

0
Under the authority of 23 U.S.C. 315, part 652, consisting of 
Sec. Sec.  652.1 through 652.13, is removed and reserved.

[FR Doc. 2019-21685 Filed 10-7-19; 8:45 am]
 BILLING CODE 4910-RY-P