Pedestrian and Bicycle Accommodations and Projects; Removal of Obsolete Regulation
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]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21685]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 652
[Docket No. FHWA-2019-0018]
Pedestrian and Bicycle Accommodations and Projects; Removal of
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
ACTION: Final rule.
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been superseded by legislation.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
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.
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
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
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.
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.
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/.
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
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
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
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.
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
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
PART 652--[REMOVED AND RESERVED]
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]
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