[Federal Register: November 26, 2003 (Volume 68, Number 228)]
[Rules and Regulations]
[Page 66338-66340]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no03-3]
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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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