[Federal Register Volume 67, Number 54 (Wednesday, March 20, 2002)]
[Rules and Regulations]
[Pages 12861-12863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6760]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 710

[FHWA Docket No. FHWA-2001-8624]
RIN 2125-AE82


Right-of-Way and Real Estate; Program Administration

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: This document amends the right-of-way regulations for 
federally assisted transportation projects to clarify that financial 
assistance provided by the FHWA may participate in relocation 
assistance benefits, provided by State and local agencies pursuant to 
State law, that are in addition to the relocation benefits prescribed 
by the Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970 (Uniform Act), as amended.

DATES: This final rule is effective April 19, 2002.

FOR FURTHER INFORMATION CONTACT: Mr. James E. Ware, Office of Real 
Estate Services, HEPR, (202) 366-2019, or Mr. Reid Alsop, Office of 
Chief Counsel, HCC-30, (202) 366-1371, FHWA 400 Seventh Street, SW., 
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL): 
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
help.
    An electronic copy of this document may be downloaded by using a 
modem and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may reach the Federal Register's home page at http://www.nara.gov/fedreg and the Government Printing Office's database at: 
http://www.access.gpo.gov/nara.

Background

    The FHWA provides funds to the States and other organizations to 
reimburse them for the costs they have incurred in constructing 
highways and other transportation related projects pursuant to title 
23, United States Code. These projects frequently involve the 
acquisition of real property or the displacement of persons, businesses 
and farms. The Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 (Uniform Act), as amended (42 U.S.C. 
4601 et seq.) ensures the fair and equitable treatment of persons whose 
real property is acquired or who are displaced as a result of a Federal 
or federally-assisted project. The FHWA regulations dealing with 
reimbursement, and the acquisition and management of real property, are 
contained in 23 CFR part 710.
    On May 9, 2001, we published a notice of proposed rulemaking (NPRM) 
at 66 FR 23636, to propose amending our right-of-way regulations for 
federally assisted transportation projects to provide clarification. 
The NPRM described the development of the current regulation, which 
revised FHWA's policy on participation in costs incurred by States in 
the acquisition of real property. Basically, the FHWA now participates 
in any acquisition costs that are required by State law. In the NPRM, 
we proposed to revise the regulations to clarify that Federal financial 
assistance, provided by the FHWA pursuant to title 23, U.S.C., may be 
applied to relocation assistance benefits provided by State and local 
agencies, pursuant to State law, that are in addition to the relocation 
benefits prescribed by the Uniform Act.
    The FHWA believes that its participation in such relocation 
payments is permissible based on the FHWA's general authority to 
participate in the costs of ``construction,'' which is defined in 23 
U.S.C. 101(a)(3) to include both costs of right-of-way acquisition and 
relocation assistance. We believe that the broad language in 23 CFR 
710.203(b)(1) allows for this type of assistance; however, we received 
several inquiries regarding the FHWA's participation in relocation 
payments made by some States, pursuant to State law, that are in 
addition to those required by the Uniform Act. Therefore, in the NPRM 
we proposed amending section 710.203(b)(2) to clarify this matter.

Discussion of Comments

    We received two written comments and one oral comment to the 
docket. The three commenters were from the Oregon, Washington, and 
Wisconsin State departments of transportation. The Washington DOT 
supported the proposed revision noting that the current Uniform Act 
benefits are inadequate for businesses. The Wisconsin DOT provided 
several technical comments. It noted that the

[[Page 12862]]

change would allow Federal participation in some increased payments 
provided by State law, but was also concerned that more local 
governments might avail themselves of Federal funds thereby increasing 
its oversight responsibilities.
    The Oregon DOT provided a verbal comment that questioned whether 
the proposed clarification would allow the FHWA to participate in 
relocation payments to aliens not lawfully present in the United States 
(illegal aliens). While the intent of this clarification is to 
emphasize that States have the flexibility in using the FHWA funds to 
participate in relocation payments required by State law, in addition 
to those payments mandated by the Uniform Act, we do not believe that 
the FHWA should permit the participation of Federal funds in such 
relocation payments to persons who Congress has specifically excluded 
from Uniform Act coverage. The Congress stated specifically in section 
4605(a) of the Uniform Act that, with limited exceptions, a person not 
lawfully present in the United States is not eligible to receive 
relocation assistance under the Uniform Act (42 U.S.C. 4605(a)).
    The Congress clearly stated that displaced persons shall not be 
eligible to receive relocation payments or any other assistance under 
the Uniform Act if they are not lawfully present in the United States. 
Consistent with that prohibition we have provided in this final rule 
that the FHWA will not participate in relocation assistance and 
payments provided by States to aliens not lawfully present in the 
United States.
    We have adopted the change proposed with a slight modification, as 
discussed above, to deny Federal participation in relocation assistance 
and payments provided to illegal aliens. The primary reason for this 
change remains the same as stated in the NPRM, to make it clear that 
FHWA participation policies concerning both State acquisition costs and 
State relocation costs are the same. That is, the FHWA will participate 
in those acquisition and relocation costs that are required by State 
law (except for relocation costs to illegal aliens).
    This basic participation policy promotes program streamlining. It 
gives States flexibility in the use of Federal aid funds available to 
the States. Further, it eliminates administrative burdens that would 
result if it were necessary to analyze all acquisition and relocation 
costs and categorize them as either participating or nonparticipating 
for purposes of Federal assistance. Finally, if the NRPM were not 
adopted uncertainty would remain as to whether acquisition costs 
required by State law and relocation costs required by State law should 
be treated differently for purposes of Federal participation.
    While we are aware of the Wisconsin DOT's concern regarding 
possible increased oversight, we note that one of the primary purposes 
of this change is to increase the ability of States to effectively 
manage their acquisition and relocation programs. In the absence of any 
further comments, we believe that the promulgation of this final rule 
is necessary to advance the important program streamlining objectives 
noted above.

Rulemaking Analyses and Notice

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, nor is 
it a significant regulatory policy and procedure. It is anticipated 
that the economic impact of this rulemaking will be minimal; therefore, 
a full regulatory evaluation is not required. The FHWA does not 
consider this action to be a significant regulatory action because this 
rule clarifies existing requirements relating to FHWA reimbursement for 
certain expenditures that are required by State law. Neither the 
individual or cumulative impact of this action is significant because 
this action would not alter the funding levels available to the states 
for Federal or federally assisted programs covered by title 23, U.S. 
Code.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the agency has evaluated the effects of this rule on 
small entities and hereby certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
This action would merely clarify existing procedures.

Environmental Impact

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

Executive Order 13132 (Federalism)

    The FHWA has analyzed this action in accordance with the principles 
and criteria contained in Executive Order 13132, and determined that 
this action does not have sufficient federalism implications to warrant 
the preparation of a federalism assessment. This rule clarifies that 
greater flexibility is placed at the State or local level in the use of 
Federal funds in recognition of State laws. Nothing in this document 
directly preempts any State law or regulation.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal 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.

Unfunded Mandates Reform Act

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. 
L. 104-4, 109 Stat. 48), the FHWA must prepare a budgetary impact 
statement on any proposal or final rule that includes a Federal mandate 
that may result in estimated annual costs to State, local or tribal 
government of $100 million or more. The FHWA has determined that this 
rule will not result in estimated costs of $100 million or more to 
State, local, or tribal governments. This action simply clarifies 
existing requirements. Accordingly no additional costs to State, local 
or tribal governments are anticipated as a result of this action.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 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 Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not affect a taking of private or otherwise have 
taking implications under Executive Order 12630, Governmental Actions 
and Interference with Constitutionally Protected Property Rights.

[[Page 12863]]

Paperwork Reduction Act

    This proposal contains no new collection of information 
requirements for purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501-3520.

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 Part 710

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

    Issued on: March 13, 2002.
Mary E. Peters,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA amends title 23, Code 
of Federal Regulations, Chapter 1, by revising Part 710 as set forth 
below:

PART 710--[AMENDED]

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

    Authority: 23 U.S.C. 101(a), 107, 108, 111, 114, 133, 142(f), 
145, 156, 204, 210, 308, 315, 317, and 323; 42 U.S.C. 2000d et seq., 
4633, 4651-4655; 49 CFR 1.48(b) and (cc), 18.31, and parts 21 and 
24; 23 CFR 1.32.

    2. Revise Sec. 710.203(b)(2) to read as follows:


Sec. 710.203  Funding and reimbursement.

* * * * *
    (b) * * *
    (2) Relocation assistance and payments. Usual costs and 
disbursements associated with the following:
    (i) Relocation assistance and payments required under 49 CFR part 
24, and
    (ii) Relocation assistance and payments provided under the laws of 
the State that may exceed the requirements of 49 CFR part 24, except 
for relocation assistance and payments provided to aliens not lawfully 
present in the United States.
* * * * *


Sec. 710.409  [Amended]

    3. Amend Sec. 710.409(a) by revising the reference 
``Sec. 710.403(c)'' to read ``Sec. 710.403(d)''.
[FR Doc. 02-6760 Filed 3-19-02; 8:45 am]
BILLING CODE 4910-22-P