Right-of-Way Program Administration

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.

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.

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

ition, 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

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

mple, 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

e

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.

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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

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

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

o 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

al 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

sed 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

consideration will be given to the impact of any action planned.

Regulatory Flexibility Act

t 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

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

f 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]

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