[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43964-43966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21852]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 667

[FHWA Docket No. 95-28]
RIN 2125-AD69


Elimination of Regulations Concerning the Public Lands Highways 
Discretionary Funds Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA is eliminating its regulations outlining the 
procedures to be followed in administering the Public Lands Highways 
(PLH) discretionary funds program. These provisions have become 
outdated and unnecessary as a result of amendments made by the 
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) (Pub. 
L. 102-240, 105 Stat. 1914) to the statutory provisions in title 23 of 
the United States Code (U.S.C.) which authorize distribution of some of 
the funds appropriated for Public Lands Highways among the States on 
the basis of need. These amendments to title 23, U.S.C., significantly 
modify and clarify the eligibility criteria and selection process of 
the PLH discretionary program; as a result, the FHWA regulations 
concerning the PLH discretionary program have become obsolete. 
Consequently, in the interests of streamlining FHWA regulations and 
providing more flexibility in the administration of this program in 
accordance with the President's Regulatory Reinvention Initiative, the 
FHWA is eliminating these regulations.

EFFECTIVE DATE: September 26, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. Mohan P. Pillay, Office of 
Engineering, HNG-12, (202) 366-4655 or Mr. Wilbert Baccus, Office of 
the Chief Counsel, HCC-32, (202) 366-1397, 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 Federal holidays.

SUPPLEMENTARY INFORMATION: Through the PLH Discretionary Program, the 
FHWA administers the allocation of Federal funds in the manner 
authorized by Sec. 202(b) of title 23 of the U.S.C. ``among those 
States having unappropriated or unreserved public lands, nontaxable 
Indian lands or other Federal reservations.'' Approximately $50 million 
was made available to the States for the PLH Discretionary Program in 
FY 1996. The statute directs that 34 percent of the sums appropriated 
for public lands highways in a given fiscal year is to be allocated on 
the basis of need among qualifying States that apply for such funds 
through their State highway departments. 23 U.S.C. 202(b). The statute 
also provides that these PLH funds are available for any kind of 
transportation project eligible for assistance under title 23, U.S.C., 
that is within or adjacent to or provides access to public lands areas. 
23 U.S.C. 204(b).
    Although Congress did not direct that regulations be promulgated to 
implement the funding scheme established by this statute, the FHWA did 
promulgate regulations which outline the procedures for administering 
the PLH Discretionary Program. These regulations, for the most part, 
merely reiterate the application process and selection criteria 
outlined in the statute. For instance, the statute establishes that PLH 
discretionary funds are to be distributed on the basis of need among 
the States that apply through their State highway departments and that 
preference is to be given to those projects which are significantly 
impacted by Federal land and resource management activities. Part 667 
restates these provisions, but it also supplements the statutory 
provisions with overly detailed descriptions of factors to be 
considered in the selection process and of the steps taken in the 
application and selection procedure. In addition, part 667 restates 
some of the factors established in the statute as defining the 
eligibility of certain projects for these funds.
    The eligibility criteria and selection process of the PLH 
discretionary program were modified and greatly clarified by amendments 
to title 23, U.S.C., that were enacted as part of the ISTEA (Pub. L. 
102-240, 105 Stat. 1914). One change resulting from these amendments is 
that title 23, U.S.C., now provides a more detailed explanation of the 
kinds of projects which are eligible for PLH discretionary funds. The 
regulation delineating eligibility criteria in part 667 states that 
funds may be used for ``engineering and construction of the mainline 
roadway including adjacent vehicular parking areas and construction 
elements related to scenic easements.'' (Sec. 667.7.) After the ISTEA 
amendments, title 23, U.S.C., now includes a provision entitled 
``Eligible Projects'' which lists adjacent vehicular parking areas and 
acquisition of necessary scenic easements as two of seven types of 
projects qualifying for PLH funds.
    These PLH regulations have also now become inconsistent with title 
23, U.S.C., as a result of the ISTEA amendments. Section 667.7 of the 
regulations states that ``funds may not be used for right-of-way costs, 
maintenance or other ancillaries such as sanitary, water and fire 
control facilities''; however, the list of eligible projects added to 
title 23, U.S.C., by the ISTEA includes, ``construction and 
reconstruction of roadside rest areas including sanitary and water 
facilities.'' Thus, in general, the provisions regarding eligibility 
for PLH discretionary funds currently included in the FHWA regulations 
have become both outdated and unnecessary.
    Amendments to title 23, U.S.C., added by the ISTEA also modify the 
selection process and the factors that will be taken into account in 
allocating PLH discretionary funds among the States. As a result of the 
ISTEA amendments, title 23, U.S.C., now states that preference will 
still be given to projects which are significantly impacted by Federal 
land and resource management activities, but now such preference will 
be given only if these projects are proposed by a State which contains 
at least 3 percent of the total public lands in the Nation. In light of 
this statutory

[[Page 43965]]

change, the regulations in part 667 have become outdated because they 
provide that all projects which significantly benefit or improve 
Federal land and resource management will be given preference.
    Consequently, as this examination of part 667 reveals, these 
regulations concerning the PLH Discretionary Program are unnecessary 
and in many instances either straightforwardly redundant or outdated 
because they have become inconsistent with the authorizing statute. 
Therefore, the FHWA is eliminating part 667 as opposed to amending it 
to account for the changes brought about by the ISTEA amendments. 
Elimination of these regulations will provide more flexibility in 
administration of the PLH discretionary program. In addition, 
elimination of part 667 will have the effect of further streamlining 
FHWA regulations in accordance with the objectives of the President's 
Regulatory Reinvention Initiative.

Discussion of Comments

    A notice of proposed rulemaking (NPRM) proposing the elimination of 
part 667 was published in the December 6, 1995, Federal Register at 60 
FR 62359. Interested persons were invited to participate in this 
rulemaking by submitting written comments on the NPRM to Docket No. 95-
28 on or before February 5, 1996. Comments were received from two State 
highway agencies and one Indian tribe. All comments received in 
response to the NPRM were considered during the drafting of this final 
rule eliminating the PLH Discretionary Program regulations.
    One State had no comments concerning elimination of the existing 
regulation; however, two changes in the law were recommended. One such 
recommendation proposed a change to the provision in 23 U.S.C. 202(b) 
dealing with the preference in PLH discretionary allocations to 
projects in a State which contains at least 3 percent of the total 
public lands in the Nation. The commenting State recommended that the 
percentage of public lands required for giving preference in PLH 
discretionary allocation be reduced from 3 percent to 1.5 percent or 
deleted entirely. The State also recommended that the ``Hold Harmless'' 
clause in section 1015(a)(1) of the ISTEA not include apportionment 
adjustments tied to allocations made to States under the PLH 
Discretionary Program. Both of these recommendations require statutory 
amendments and are beyond the scope of a rulemaking action.
    Two commenters suggested that the FHWA retain the project selection 
criteria presented in 23 CFR 667.3 (c) and (d) as these criteria are 
valuable in determining appropriate projects to be selected for 
funding. For example, these criteria cover matters such as route 
continuity, capacity, and safety and benefits of projects to Federal 
lands and resource management. Although these criteria are not 
expressed in definitive terms of measurement and their application is 
subjective, the FHWA agrees that use of these criteria can produce 
information which is valuable for purposes of the selection process. It 
is noted that FHWA's annual solicitation for candidate projects which 
is publicized via a memorandum to the FHWA regional offices, requests 
information on most of these criteria as part of each State's proposal. 
The FHWA call for fiscal year (FY) 1997 PLH candidates contains these 
selection criteria. The elimination of part 667 will not impact FHWA's 
use of these selection criteria, and the FHWA fully intends to include 
them in future solicitations for candidate projects if this 
discretionary program is reauthorized after FY 1997.
    One commenter recommended that the selection criteria, as 
previously discussed, also be applied to the non-discretionary portion 
of the PLH funding allocated to the States. The non-discretionary PLH 
funding (66 percent of PLH funds) is set aside by statute for Forest 
Highways and is distributed in accordance with a hybrid formula. Funds 
set aside for Forest Highways are not discretionary, and the selection 
criteria for PLH discretionary funds cannot be used to allocate the 
remaining 66 percent of the PLH funding.

Rulemaking Analyses and Notices

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

    The FHWA has considered the impact of this document and has 
determined that it is neither a significant rulemaking action within 
the meaning of Executive Order 12866 nor a significant rulemaking under 
the regulatory policies and procedures of the Department of 
Transportation. This rulemaking eliminates FHWA regulations regarding 
administration of the PLH Discretionary Program. These regulations have 
become outdated and are unnecessary in light of the fact that the 
statutory provisions authorizing allocation of these funds adequately 
delineate the procedures to be used and the factors to be considered in 
selecting the States that will receive funding. This rulemaking 
eliminating these obsolete regulations would not cause any significant 
changes to the amount of funding available under the PLH Discretionary 
Program or to the process by which applicants are selected to receive 
funding. Thus, it is anticipated that the economic impact of this 
rulemaking will be minimal. In addition, it will not create a serious 
inconsistency with any other agency's action or materially alter the 
budgetary impact of any entitlements, grants, user fees, or loan 
programs; nor will elimination of these regulations raise any novel 
legal or policy issues. Therefore, a full regulatory evaluation is not 
required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities 
and has determined that elimination of the FHWA regulations regarding 
administration of PLH discretionary funds will not have a significant 
economic impact on a substantial number of small entities. Elimination 
of these regulations will not affect the amount of funding available to 
the States through the PLH Discretionary Program or the procedures used 
to select the States eligible to receive these funds. Furthermore, 
States are not included in the definition of ``small entity'' set forth 
in 5 U.S.C. 601. Therefore, the FHWA hereby certifies that this action 
will not have a significant economic impact on a substantial number of 
small entities.

Exective 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 raise sufficient federalism implications to 
warrant the preparation of a federalism assessment. Elimination of 
these obsolete FHWA regulations concerning the PLH Discretionary 
Program would not preempt any State law or State regulation. No 
additional costs or burdens would be imposed on the States as a result 
of this action, and the States' ability to discharge traditional State 
governmental functions would not be affected by this rulemaking.

Executive Order 12372

    Catalog of 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.

[[Page 43966]]

Paperwork Reduction Act

    This action does not create a collection of information requirement 
for the purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 
3501-3520.

National Environmental Policy Act

    The FHWA has analyzed this rulemaking for the purposes of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that this action would not have any effect on the quality of 
the environment. Therefore an environmental impact statement is not 
required.

Regulatory 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 667

    Highways and roads, Public lands highway funds.

    Issued on: August 20, 1996.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing and under the authority of 23 
U.S.C. 202, 204, and 315, the FHWA removes and reserves part 667 of 
title 23, Code of Federal Regulations, as set forth below.

PART 667--PUBLIC LANDS HIGHWAYS FUNDS [REMOVED AND RESERVED]

    1. Part 667 is removed and reserved.

[FR Doc. 96-21852 Filed 8-26-96; 8:45 am]
BILLING CODE 4910-22-P