[Federal Register Volume 68, Number 228 (Wednesday, November 26, 2003)]
[Rules and Regulations]
[Pages 66338-66340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29596]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Federal Transit Administration

23 CFR Part 476

RIN 2125-AF00


Interstate Highway System

AGENCIES: Federal Highway Administration (FHWA) and Federal Transit 
Administration (FTA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule removes regulations that prescribed policies 
and procedures for implementation of section 103(e)(4) of title 23, 
United States Code, which permitted the withdrawal of Interstate System 
segments and the substitution of public mass transit or highway 
projects or both. The Congress recognized the expiration of this 
program by eliminating the underlying statutory authority for this 
regulation. Therefore, the Federal Highway Administration and the 
Federal Transit Administration remove the regulations.

EFFECTIVE DATE: November 26, 2003.

FOR FURTHER INFORMATION CONTACT: For FHWA: Donald J. West, Office of 
Program Administration, HIPA-10, (202) 366-4652, or Steve Rochlis, 
Office of the Chief Counsel, (202) 366-1395, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. 
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through 
Friday, except Federal holidays. For FTA: Rhoda Shorter, Office of 
Program Management, TPM-10, (202) 366-0206, and Scott Biehl, Office of 
the Chief Counsel, (202) 366-4063, 400 Seventh Street, SW., Washington, 
DC 20590-0001. Office hours for the FTA are 8:30 a.m. to 5 p.m., e.t., 
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this document may be downloaded by using a 
computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.archives.gov and the Government 
Printing Office's Web page at: http://www.access.gpo.gov/nara.

Background

    In 1973, the Interstate System was about 83 percent complete; 
however, due to changed social, economic, and environmental conditions, 
many States realized it would be impracticable or unnecessary to 
construct some uncompleted segments of the Interstate, particularly in 
urbanized areas. But these States were reluctant to give up these 
segments for fear of losing substantial amounts of Federal-aid funds. 
Therefore, the Federal-Aid Highway Act of 1973 (Pub. L. 93-87, 87 Stat. 
250, August 13, 1973), amended title 23, United States Code, by adding 
section 103(e)(4) to allow uncompleted or planned highways on the 
Interstate System in urbanized areas to be withdrawn and their funding 
entitlements be transferred to mass transit projects. This became known 
as the ``Interstate withdrawal and substitution program'' (also known 
as the ``Interstate Transfer program'') and it provided States with the 
opportunity to request withdrawal of a non-essential segment of the 
Interstate System, and the substitution of transit projects to serve 
the area that would have been served by the withdrawn segment. As a 
result of this Act, the Federal Highway Administration together with 
the Federal Transit Administration (known as the Urban Mass Transit 
Administration at that time) promulgated 23 CFR Part 476, Interstate 
Highway System.\1\ Subpart D of this

[[Page 66339]]

regulation outlined the procedures for the withdrawal of Interstate 
System segments and the substitution of public mass transit or highway 
projects.
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    \1\ See final rule published on June 12, 1974, at 39 FR 20658.
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    In 1976, the Congress expanded the Interstate withdrawal and 
substitution program to allow substitution projects to include highway 
projects as well as transit projects (see Federal-Aid Highway Act of 
1976 (Pub. L. 94-280, 90 Stat. 425, May 5, 1976)). The Federal-Aid 
Highway Act of 1978 (Pub. L. 95-599, 92 Stat. 2689, November 6, 1978) 
further amended 23 U.S.C. 103(e)(4) by establishing time limits for 
withdrawals and substitute project approvals. Nonessential Interstate 
System segments passing through and connecting urbanized areas within a 
State could also be withdrawn. Withdrawals were to receive approval by 
September 30, 1983, unless the route was under judicial injunction 
prohibiting construction at the time of enactment of the 1978 Highway 
Act. All substitute projects were to be approved no later than 
September 30, 1983. Furthermore, all substitute projects were to be 
under construction or under contract for construction no later than 
September 30, 1986, provided sufficient funds were available. Therefore 
in 1980, the FHWA and the FTA amended 23 CFR part 476 to comply with 
these changes.\2\
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    \2\ See final rule published on October 20, 1980, at 45 FR 
69396.
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    In 1987, Congress again modified the Interstate withdrawal and 
substitution program in a number of ways (see Surface Transportation 
and Uniform Relocation Assistance Act of 1987 ((Pub. L. 100-17, 101 
Stat. 132, April 2, 1987)). A cost adjustment provision was enacted to 
assure that the ``buying power'' of the value of the withdrawals was 
maintained over time. A portion of the annual funding authorized for 
highway and transit substitute projects each year was set aside to be 
allocated on a discretionary basis. Open to traffic Interstate segments 
could no longer be withdrawn. The regulations were not revised to 
reflect these provisions. Instead, the FHWA and FTA administered the 
program under the 1980 regulations and the modifications made in the 
1987 legislation.
    In 1998, the Congress enacted the Transportation Equity Act for the 
21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) 
and recognized the expiration of the Interstate withdrawal and 
substitution program by removing 23 U.S.C. 103(e)(4).\3\ Therefore, 
since the time limits for the Interstate withdrawal and substitution 
program have long expired, the underlying statutory authority for 23 
CFR part 476 has been eliminated, and the Interstate withdrawal and 
substitution program no longer exists, it is appropriate to remove 23 
CFR part 476 from the Code of Federal Regulations.
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    \3\ See section 1106(b) of TEA-21.
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    The removal of 23 CFR part 476 does not affect prior obligations 
under the Interstate withdrawal and substitution program, nor does it 
affect Interstate withdrawal and substitution funds that are still 
available. Rather, section 1045(b)(2) of the Intermodal Surface 
Transportation Efficiency Act of 1991 (ISTEA) specifies that Interstate 
withdrawal and substitution funds remain available until expended. 
Moreover, States that still have Interstate withdrawal and substitution 
funds available to them can elect to deobligate those funds from a 
particular project and reobligate them to another eligible project. Any 
State interested in deobligating and reobligating Interstate withdrawal 
and substitution funds can contact its FHWA Division Office or FTA 
Regional Office to explore that possibility.

Rulemaking Analyses and Notices

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an 
agency may waive the normal notice and comment requirements if it 
finds, for good cause, that they 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 exceptions in 5 U.S.C. 553 (b)(3)(B). Seeking public comment is 
unnecessary and contrary to the public interest. This action is merely 
a ministerial action to remove an obsolete part from the CFR and the 
removal of this part will have no substantive impact. Therefore, the 
agencies would not anticipate receiving meaningful comments on a 
proposal to eliminate 23 CFR part 476. Prior notice is therefore 
unnecessary, and it would be contrary to the public interest to delay 
unnecessarily this effort to eliminate an outdated rule. Furthermore, 
the FHWA and the FTA believe that because the underlying statutory 
authority for 23 CFR part 476 no longer exists, we are eliminating any 
confusion that may be caused from the existence of 23 CFR part 476.
    The APA also allows agencies, upon a 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 agencies also believe good cause 
exists for making this action effective immediately upon publication.

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

    The FHWA and the FTA have 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. The obsolete provision in 
law to withdraw Interstate System segments under part 476 was 
eliminated on June 9, 1998, by TEA-21. Substitute projects are 
essentially all complete and related funding fully utilized.
    This final rule will not adversely affect, in a material way, any 
sector of the economy. In addition, these changes will not interfere 
with any action taken or planned by another agency and will not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612) the agencies have evaluated the effects of this 
action on small entities and have determined that the action will not 
have a significant economic impact on a substantial number of small 
entities.
    This rule eliminates an obsolete part of title 23 of the Code of 
Federal Regulation. This will simply eliminate any confusion that could 
be generated by retaining these obsolete regulatory provisions. For 
these reasons, the FHWA and the FTA certify that this action will not 
have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    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). This rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year. This rule simply 
deletes an obsolete regulatory provision.

Executive Order 13132 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and the agencies have 
determined that this action does not have sufficient federalism 
implications to warrant the preparation of a

[[Page 66340]]

federalism assessment. The FHWA and the FTA have 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)

    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.

Paperwork Reduction Act

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

National Environmental Policy Act

    The agencies have analyzed this action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and 
have determined that this action will not have any effect on the 
quality of the environment.

Executive Order 13175 (Tribal Consultation)

    The FHWA and the FTA have analyzed this final action under 
Executive Order 13175, dated November 6, 2000, and believe that this 
action will not have substantial direct effects on one or more Indian 
tribes; will not impose substantial direct compliance costs on Indian 
tribal governments; and will not preempt tribal law. Therefore, a 
tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    We have analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a significant 
energy action under that order because it is not a significant 
regulatory action under Executive Order 12866 and is not likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy. Therefore, a Statement of Energy Effects under Executive Order 
13211 is not required.

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 476

    Grant programs--transportation, Highways and roads, Mass 
transportation.

0
In consideration of the foregoing and under the authority of 23 U.S.C. 
315, sec. 1106(b) of Public Law 105-178, 112 Stat. 107, 136 (1998), and 
49 CFR 1.48, the FHWA and FTA are amending title 23, Code of Federal 
Regulations, by removing part 476, as follows:

PART 476--[REMOVED]

    Issued on: November 20, 2003.
Mary E. Peters,
Federal Highway Administrator.
Jennifer L. Dorn,
Federal Transit Administrator.
[FR Doc. 03-29596 Filed 11-25-03; 8:45 am]
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