Elimination of Regulations Concerning the Public Lands Highways Discretionary Funds Program

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: Notice of proposed rulemaking (NPRM) to remove a regulation.

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SUMMARY: The FHWA is proposing to eliminate 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become outdated and unnecessary as a result of amendments made by the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, the

FHWA is proposing to eliminate these regulations.

DATES: Comments must be received on or before February 5, 1996.

ADDRESSES: Submit written, signed comments to FHWA Docket No. 95-28,

Federal Highway Administration, Room 4232, HCC-10, Office of the Chief

Counsel, 400 Seventh Street, SW., Washington, DC 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 notice of receipt of comments must include a

self-addressed, stamped postcard.

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 $56 million

was made available to the States for the PLH Discretionary Program in

FY 1995. 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 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

[[Page 62360]]

authorizing statute. Therefore, the FHWA is proposing to eliminate part

667 as opposed to amending it to account for the changes brought about

by the ISTEA amendments. Elimination of these regulations would provide

more flexibility in administration of the PLH discretionary program. In

addition, elimination of part 667 would have the effect of further

streamlining FHWA regulations in accordance with the objectives of the

President's Regulatory Reinvention Initiative.

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, but the FHWA may issue a final

rule at any time after the close of the comment period. 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 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 would result in the elimination of 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.

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 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.

Paperwork Reduction Act

This action does not create a collection of information requirement

for the purposes of the Paperwork Reduction Act of 1980, 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: November 27, 1995.

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 proposes to remove and reserve 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. 95-29647 Filed 12-5-95; 8:45 am]

BILLING CODE 4910-22-P