[Federal Register Volume 73, Number 107 (Tuesday, June 3, 2008)]
[Rules and Regulations]
[Pages 31609-31610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12360]



Federal Highway Administration

Federal Transit Administration

23 CFR Part 774

RIN 2125-AF14
RIN 2132-AA83

Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and 
Historic Sites; Correction

AGENCIES: Federal Highway Administration (FHWA), Federal Transit 
Administration (FTA), Department of Transportation (DOT).

ACTION: Correcting amendment.


SUMMARY: This rule makes a technical correction to the final 
regulations, which were published in the Federal Register on Wednesday, 
March 12, 2008, that govern Section 4(f) approvals for the FHWA and the 
FTA. The amendment contained herein makes no substantive change to the 
FHWA or the FTA regulations, policies, or procedures. This rule 
clarifies an ambiguity in the language of the regulatory text caused by 
a global word change implemented in the Final Rule as a result of 
comments received in response to the Notice of Proposed Rulemaking.

DATES: This rule is effective July 3, 2008.

Chief Counsel, (202) 366-1366; or Lamar Smith, Office of Project 
Development and Environmental Review, (202) 366-8994. For FTA, Joseph 
Ossi, Office of Planning and Environment, (202) 366-1613; or 
Christopher VanWyk, Office of the Chief Counsel, (202) 366-1733. Both 
agencies are located at 1200 New Jersey Avenue, SE., Washington, DC 
20590. Office hours for the FHWA are from 7:45 a.m. to 4:15 p.m., e.t., 
and for the FTA are from 8:30 a.m. to 5 p.m., e.t., Monday through 
Friday, except Federal holidays.


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 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.gpoaccess.gov/nara.


    This rule makes a technical correction to the regulations that 
govern Section 4(f) approval procedures for the FHWA and the FTA found 
at 23 CFR part 774. In its final rule published in the Federal Register 
on March 12, 2008, at 73 FR 13368, the FHWA and FTA replaced the phrase 
``feasible and prudent project alternative'' with the phrase ``feasible 
and prudent avoidance alternative'' to clarify that the statute 
requires a determination whether a feasible and prudent alternative 
exists that avoids using a Section 4(f) property. This phrase was 
globally replaced throughout the final rule. However, where this phrase 
was replaced in section 774.3(c), the new phraseology could be 
misinterpreted to require consideration of the already rejected, 
infeasible, or imprudent avoidance alternatives a second time. The 
preamble and regulatory text of the NPRM, and the preamble of the final 
rule, make clear that the intent of section 774.3(c) is to provide 
direction for how to analyze and select an alternative when it has been 
determined that no feasible and prudent avoidance alternatives exist 
and all viable alternatives use some Section 4(f) property. In order to 
correct the error caused by the global phrase change, and to clarify 
the intent of section 774.3(c) as noted in the preamble to the final 
rule, the FHWA and FTA have added the phrase ``from among the remaining 
alternatives that use Section 4(f) property'' to the regulatory text of 
section 774.3(c).

Rulemaking Analyses and Notice

    Under the Administrative Procedure Act (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 FHWA and the FTA find that notice and comment 
for this rule is unnecessary and contrary to the public interest 
because it will have no substantive impact, is technical in nature, and 
relates only to management, organization, procedure, and practice. The 
FHWA and the FTA do not anticipate receiving meaningful comments on it. 
States, local governments, transit agencies, and their consultants rely 
upon the environmental regulations corrected by this action. These 
corrections will reduce confusion for these entities and should not be 
unnecessarily delayed. Accordingly, for the reasons listed above, the 
agencies find good cause under 5 U.S.C. 553(b)(3)(B) to waive notice 
and opportunity for comment.

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 U.S. Department of 
Transportation regulatory policies and procedures. It is anticipated 
that the economic impact of this rulemaking will be minimal. This rule 
only entails minor corrections that will not in any way alter the 
regulatory effect of 23 CFR part 774. Thus, 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 FHWA and the FTA 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 final rule will not make any substantive changes to our 
regulations or in the way that our regulations affect small entities; 
it merely corrects technical errors. For this reason, 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.

[[Page 31610]]

104-4, March 22, 1995, 109 Stat. 48). This rule does not impose any 
requirements on State, local, or tribal governments, or the private 
sector and, thus, will not require those entities to expend any funds.

Executive Order 13132 (Federalism)

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

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities apply 
to these programs.

Paperwork Reduction Act

    This action does not create any new information collection 
requirements for which a Paperwork Reduction Act submission to the 
Office of Management and Budget would be needed under the Paperwork 
Reduction Act of 1995, 44 U.S.C. 3501-3520.

National Environmental Policy Act

    The FHWA and the FTA 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 FTA have analyzed this action under Executive Order 
13175, dated November 6, 2000, and concluded that this rule will not 
have substantial direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal government; 
and will not preempt tribal law. There are no requirements set forth in 
this rule that directly affect one or more Indian tribes. Therefore, a 
tribal summary impact statement is not required.

Executive Order 12988 (Civil Justice Reform)

    This rule 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)

    Under Executive Order 13045, Protection of Children from 
Environmental Health and Safety Risks, this final rule is not 
economically significant and does not involve an environmental risk to 
health and safety that may disproportionally affect children.

Executive Order 12630 (Taking of Private Property)

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

Executive Order 13211 (Energy Effects)

    This final rule has been analyzed under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The FHWA and FTA 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 this 
final rule is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

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 RINs 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 774

    Environmental protection, Grant programs--transportation, Highways 
and roads, Historic preservation, Public lands, Recreation areas, 
Reporting and recordkeeping requirements.

    Issued on: May 27, 2008.
James D. Ray,
Acting Federal Highway Administrator.
James S. Simpson,
FTA Administrator.

In consideration of the foregoing, 23 CFR part 774 is amended as set 
forth below.

Federal Highway Administration

Title 23--Highways


1. The authority citation for part 774 continues to read as follows:

    Authority: 23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and 
204(h)(2); 49 U.S.C. 303; Section 6009 of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.48 and 

2. Amend Sec.  774.3 by revising paragraph (c) introductory text to 
read as follows:

Sec.  774.3  Section 4(f) approvals.

* * * * *
    (c) If the analysis in paragraph (a)(1) of this section concludes 
that there is no feasible and prudent avoidance alternative, then the 
Administration may approve, from among the remaining alternatives that 
use Section 4(f) property, only the alternative that:
* * * * *
 [FR Doc. E8-12360 Filed 6-2-08; 8:45 am]