[Federal Register Volume 60, Number 214 (Monday, November 6, 1995)]
[Proposed Rules]
[Pages 56004-56007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27446]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 710 Through 740

[FHWA Docket No. 95-18]
RIN 2125-AC17


Right-of-Way Program Administration

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM); request for 
comments.

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SUMMARY: The FHWA requests comments concerning a comprehensive revision 
of the regulations affecting the administration of its highway right-
of-way programs. One purpose of the revision is to update general 
policies and make programmatic changes to more effectively implement 
the Intermodal Surface Transportation Efficiency Act of 1991 [ISTEA] 
and the Surface Transportation and Uniform Relocation Assistance Act of 
1987 [STURAA]. The effect of the legislation and the FHWA's own review 
of its regulations indicates that a complete revision of the 
regulations should be considered. The FHWA requests comments on the 
issues identified in this advance notice and any other issues the 
reader believes relevant to current administration of right-of-way 
programs. Following a review of comments received in response to this 
notice, a notice of proposed rulemaking will be prepared.

DATES: Comments in response to this notice must be submitted on or 
before January 5, 1996.

ADDRESSES: Submit written, signed comments to FHWA Docket No. 95-18, 
Federal Highway Administration, Room 4232, HCC-10, Office of the Chief 
Counsel, 400 Seventh Street SW., Washington, D.C. 20590. All comments 
received will be available for examination at the above address between 
8:30 a.m. and 3:30 p.m., e.t., Monday through Friday, except Federal 
holidays. Those desiring notification of receipt of comments must 
include a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Johnson, (202) 366-2020, 
or Mr. Marshall Schy, (202) 366-2035, ANPRM Analysis Group, Office of 
Real Estate Services, HRW-11, or Mr. Reid Alsop, Attorney, Office of 
Chief Counsel, HCC-31, (202) 366-1371. Office hours are from 7:45 a.m. 
to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: The FHWA provides funds to States to 
reimburse them for the costs of constructing highways and related 
activities. One of these activities involves the costs of acquiring 
necessary right-of-way. In carrying out the right-of-way program, the 
FHWA has issued regulations at 23 CFR concerning right-of-way 
activities for federally assisted highway projects. Recent 
transportation legislation (the STURAA in 1987, Pub. 

[[Page 56005]]
L. 100-17, 101 Stat. 132, and the ISTEA in 1991, Pub. L. 102-240, 105 
Stat. 1914) amended and added programs affecting right-of-way 
procedures. Program funding that supported the Interstate, Primary, 
Urban, and Secondary highway systems was replaced by new funding 
categories that support a Surface Transportation Program (STP) and, 
after congressional approval, a National Highway System (NHS). In 
addition, the FHWA is seeking ways to improve and simplify regulatory 
content. Outdated items are to be removed, or updated with a focus on 
results, not process.
    As part of its efforts at regulatory reform and to address 
statutory changes, the FHWA believes that a comprehensive review is 
needed of all 23 CFR sections that affect right-of-way program 
administration and property management issues. In addition, the 
relationship of those sections to government-wide rules, such as 49 CFR 
Part 18 (containing administrative requirements for contracting and for 
real property disposal) and 49 CFR Part 24 (containing rules to 
implement the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, Pub. L. 91- 646, Stat. 1894, as 
amended) must also be considered. The intent of the review would be to 
consolidate the FHWA right- of-way program requirements and eliminate 
unneeded elements. The possible addition of new provisions to address 
current program needs will also be part of the review process.
    Many of the existing regulations were issued to provide project-
level oversight during the construction of the Federal Interstate 
System through a series of approvals and authorizations. Under a final 
rule published at 59 FR 25326 on May 16, 1994, the FHWA eliminated 
several of these Federal approval actions that were no longer 
necessary. This proposed review would take a more extensive look at the 
controls required and seek appropriate methods to manage right-of-way 
related activities and programs for NHS and STP related projects.
    An update of the right-of-way regulations could be approached 
several ways. Initially, a decision on the basic structure of the 
regulations would be required. One option would be to completely 
restructure Parts 710 through 740 of title 23, CFR. An alternate course 
would retain the existing structure and make appropriate rescissions 
and additions. Comments concerning how best to structure updated right-
of-way regulations for maximum usefulness are requested. Any major 
restructuring would have to specifically address the administrative, 
funding, acquisition, and property management provisions needed for 
current programs.
    In addition to the structure of the regulations, the consolidation 
and cross-referencing of regulatory materials will be considered. 
Currently, right-of-way related regulations are interspersed throughout 
23 CFR. Within 23 CFR, right-of-way administrative requirements on land 
management for withdrawn Interstate segments (Part 480), right-of-way 
certification requirements prior to construction authorization 
(Sec. 635.309), land relinquishments for abandoned facilities (Part 
620, subpart B) probably could be consolidated. Under a comprehensive 
review, each right-of-way requirement could be evaluated for relevance 
to current operations, and that those found still to be valid could be 
placed within the regulatory structure at a location consistent with 
their individual purpose.
    Alternative methods to achieve program objectives will be explored 
during development of new regulations. For example, the certification 
requirements in Sec. 635.309 are intended to assure that coordination 
between right-of-way acquisition and construction contracting occurs 
before the bidding process begins. While these provisions lessen the 
chance for controversy over the availability of right-of-way for 
construction, they are primarily intended to protect the rights of 
property owners and relocatees. Rather than retain the certification 
requirement and FHWA's direct involvement on NHS projects, the State 
manual requirements under Sec. 710.205 could be modified to require an 
element that would describe how the coordination process and needed 
protections would be accomplished within the State.
    Other examples of regulations that may no longer be required in 
their present form to meet current program objectives are mentioned 
below. Comments are requested concerning all program requirements that 
should be considered for recision or modification. The examples listed 
are to stimulate comments and are not a complete list of areas where 
change might be appropriate. Comments are also requested in response to 
the specific questions set forth below.
    1. Current reimbursement policies are outlined in Sec. 710.304. 
This section contains many limitations regarding Federal participation 
in costs incurred by States or local governments. Changes in State 
litigation procedures, the advent of alternative forms of dispute 
resolution, and other programmatic developments indicate that many of 
these limitations may no longer be necessary. Comments on which 
reimbursement limitations remain appropriate for use in current 
programs are requested. Alternative ways to address reimbursement 
policy will also be considered.
    2. One reimbursement limitation that deserves special attention 
involves the requirement in Sec. 710.304(h) limiting participation in 
damages to those considered ``generally compensable in eminent 
domain.'' With the changes that have occurred in program funding and 
the various funding options available through the NHS and STP, is this 
limitation still valid or should some change be considered, e.g., 
basing Federal reimbursement solely on what each State is legally 
obligated to pay under its own laws?
    3. Provisions in Sec. 710.305 on support for right-of-way claims 
need to be conformed with current practice. Changes in technology have 
altered the billing process relating to progress and final claims. 
Accountability and documentation requirements that support 
reimbursement claims for right-of-way expenditures should also be 
modified. Comments on acceptable alternatives are invited.
    4. The provisions in Sec. 712.204 concerning project procedures 
need to be updated. Some of these provisions, such as the general 
provision requiring State Highway Departments to make requests in 
writing, are being made obsolete by technological changes. Also, for 
the STP, project level activity in many States is no longer subject to 
detailed FHWA oversight. The section should be revised to reflect 
current fiscal practices, and project level requirements simplified.
    5. In the same section, the restriction applied to hardship 
acquisitions, preventing acquisition of Sec. 4(f) (49 U.S.C. 303) or 
historic properties, should be re-evaluated. While entirely appropriate 
as a restriction on protective purchases, the practice may in a 
hardship situation adversely impact the property owner.
    6. Subpart D of Part 712 dealing with documentation requirements 
necessary to support administrative, legal, and court awards may no 
longer be necessary. Administrative settlement issues are addressed in 
49 CFR 24.102(j). Other provisions are dependent on State eminent 
domain practices and are potentially unneeded based on current programs 
and funding practices. Issues relating to noncompensable items may 
impose more administrative burdens on the 

[[Page 56006]]
program than is warranted, and would become unnecessary if the 
limitation mentioned under Item 2 above is removed. Is there still a 
need to limit the interest paid on deficiency for the amount of awards 
in excess of court deposits? Can alternative means be used to promote 
prompt deposit, and disposition of filed eminent domain cases? Comments 
on which elements in this section should be retained are requested.
    7. Subpart F of Part 712 covers FHWA participation in the 
functional replacement of publicly-owned property. What requirements or 
provisions could be changed to reduce the administrative overhead 
included within this program? Can reimbursement be based on anticipated 
costs needed to replace a public facility using current codes and 
building practices rather than actual costs? Would it serve the public 
interest to provide a cash payment and not require replacement of the 
public facility affected?
    8. Part 713 contains provisions relating to property management of 
lands acquired for Federal projects. Section 18.31 of 49 CFR contains 
the DOT version of government-wide uniform grant regulations that 
relate to management and disposal of right-of-way. The STURAA added 23 
U.S.C. 156, relating to airspace utilization, which contains provisions 
concerning airspace income that differ from the regulatory provisions 
contained in 49 CFR Part 18. Under 49 CFR, net sale income from a 
disposal of excess land is, with certain exceptions, to be credited to 
Federal funds. Under 23 U.S.C., income based on the sale or lease of 
airspace requires only that the funds received be applied to projects 
that are or would be eligible for assistance under title 23, U.S.C. 
These differing accounting procedures may create unnecessary 
administrative overhead and not yield appropriate benefits for 
protecting the Federal interest. Both section 156 and Part 18 supersede 
some portions of 23 CFR Part 713. Comments are requested on ways to 
handle property management income generated after completion of a 
transportation improvement and whether the existing dual standard 
presents any practical problems that could be resolved through revised 
regulations.
    9. Part 720, Appraisal, and Part 740, Relocation Assistance, 
contain basic contracting procedures. Since 49 CFR 18.36 also contains 
provisions relating to contracting, much of the content in these two 
parts may no longer be necessary. Comments are requested as to which 
provisions within these two parts should be retained, and the basis for 
such retention.
    In addition to changes and modifications in existing regulations, 
additions to address changes made by the ISTEA also should be 
considered. Several of these changes are discussed below.
    A. The ISTEA emphasized preservation of right-of-way corridors. 
Preservation is one of the factors to be considered during the 
metropolitan and Statewide planning processes, and the preservation of 
abandoned railway corridors is one of the ``transportation enhancement 
activities'' included in the STP. Section 1017(c) of the ISTEA also 
required completion of a study assessing appropriate ways to preserve 
vital transportation corridors. These provisions, along with actions 
taken by several States to better coordinate land development and 
transportation needs, have extended the scope of preservation beyond 
the actions covered by existing ``protective purchase'' regulations. 
Land use controls have the potential to provide enhanced opportunities 
for maintaining and developing transportation resources without 
affecting community growth or encroaching on environmentally sensitive 
areas. Even with better use of land use controls, early and selective 
acquisitions of key parcels of land may still be required. What 
specific changes in right-of-way regulations at the Federal level are 
needed to support State and local preservation activities?
    B. Under the STP there are 10 categories of transportation 
enhancement activities (defined in 23 U.S.C. 101(a)), several of which 
could involve acquisition of real property interests. Many of these 
activities are locally based initiatives. Land requirements are site-
specific and are often acquired in the name of a local government or 
even a non-profit organization. Is regulatory flexibility and separate 
guidance necessary on such projects, or should conventional right-of-
way acquisition policies be applied? Are the acquisition and management 
practices used to support the right-of-way program appropriate for 
transportation enhancement activities? What latitude is appropriate if 
differing standards are to be applied? Why?
    C. The ISTEA added a provision to 23 U.S.C. 108(d) that under 
certain conditions would allow retroactive reimbursement of acquisition 
expenditures incurred by a State before a property has been 
incorporated within a federally-financed project. Comments are sought 
on ways to better implement the provisions of this section.
    D. The ISTEA contains provisions for wetlands banking. The use of 
land banking is also referred to in regard to corridor preservation. 
What administrative and property management issues need to be addressed 
to accommodate these special forms of land acquisition?
    E. Consideration will be given to developing performance standards 
for State administration of the right- of-way function. These 
standards, similar to the measurement tools used by established 
management systems, could be used to assess State performance in lieu 
of other forms of Federal oversight. Comments on measurement tools that 
could be used as part of such an approach are requested.
    All of the above issues will receive careful review. Comments are 
requested on the various policy concerns and issues which are briefly 
outlined above, as well as any other relevant concerns or issues that 
should be addressed. Our intent is to develop regulations that 
complement the new transportation development process, allow 
flexibility for users of Federal financial assistance, yet provide for 
an appropriate level of stewardship of right-of-way expenditures, and 
address issues of compliance with other related Federal law and 
regulation.

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 in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, the 
FHWA will also continue to file in the docket relevant information that 
becomes 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 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; therefore, a full regulatory 
evaluation is not required. When a proposed rule is developed following 
evaluation of comments received from this advance notice, further 

[[Page 56007]]
consideration will be given to the impact of any action planned.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the FHWA will provide an evaluation of the effects 
on small entities of any proposed rule developed following receipt of 
comments from this action.

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.

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 in 23 CFR Parts 710 Through 740

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

(23 U.S.C. 101(a), 103, 107, 108, 111, 114, 142(g), 156, 204, 210, 
308, 317, 323; 49 U.S.C. 303, 2000, 4633, 4651-4655; 49 CFR 1.48(b), 
18, 21 and 24; 23 CFR 1.32)

    Issued on: October 27, 1995.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 95-27446 Filed 11-3-95; 8:45 am]
BILLING CODE 4910-22-P