[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Rules and Regulations]
[Pages 71284-71297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32908]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 130, 480, 620, 630, 635, 645, 710, 712, and 713
[FHWA Docket No. FHWA-98-4315]
RIN 2125-AE44
Right-of-Way Program Administration
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: This document amends the right-of-way regulations for
federally assisted transportation programs administered under title 23,
United States Code. The FHWA clarifies and reduces Federal regulatory
requirements and places primary responsibility for a number of approval
actions at the State level. Conforming revisions are made to several
regulatory parts to remove outdated, redundant, and unnecessary
content. Also, the regulations are arranged to follow the same sequence
as the development and implementation of a Federal-aid project to
assist the public and State transportation departments (STDs) in
locating regulations applicable to a specific point of interest.
DATES: This final rule is effective January 20, 2000.
FOR FURTHER INFORMATION CONTACT: Mr. James E. Ware, (202) 366-2019,
Office of Real Estate Services, HEPR-20, or Mr. Reid Alsop, Office of
the 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:
Electronic Access
Internet users may access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow the instructions online for more information and
help.
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.nara.gov/fedreg and the Government Printing
Office's webpage at: http://www.access.gpo.gov/nara.
Background
The FHWA began the process of revising its regulations with an
advance notice of proposed rulemaking (ANPRM) published on November 6,
1995 (60 FR 56004). As a first step in the comprehensive revision of
the regulations, the FHWA removed obsolete and redundant parts by
publishing an interim final rule on April 25, 1996, at 61 FR 18246.
This action removed from title 23, CFR, all of parts 720 and 740, and
portions of parts 710 and 712. Comments received in response to the
ANPRM also identified the need for a comprehensive rewrite of the
existing real estate program regulations.
[[Page 71285]]
An NPRM, published at 63 FR 71238, on December 24, 1998, proposed
to revise the regulations and arrange them to follow the same sequence
as the development and implementation of a Federal-aid project and
thereby assist the public and State transportation departments in
locating regulations applicable to a specific point of interest. The
NPRM also proposed to clarify the State-Federal partnership.
The FHWA provides funds to the States and other organizations to
reimburse them for the costs they have incurred in constructing
highways and other transportation related projects. Regulations dealing
with reimbursement and management of right-of-way (ROW) are contained
in 23 CFR parts 710 through 713.
Discussion of Comments
ANPRM of November 6, 1995
Twenty comments were received: 2 from individuals, 2 from private
groups or organizations, and 16 from STDs.
Based on the responses received, the FHWA concluded that the (ROW)
regulations needed a comprehensive revision. During an initial review,
the FHWA identified several parts of the regulations that were no
longer needed.
NPRM of December 24, 1998
Twenty-eight comments were received in response to the December 24,
1998, NPRM. Comments were received from 25 States, one non-profit
organization, a law firm representing five States, one individual, and
a subcommittee of a right-of-way organization. The FHWA gratefully
acknowledges the effort required to provide comprehensive comments,
endorsements, and recommendations relating to the regulation.
Most commenters strongly supported the need to reorganize the
regulations. A couple of comments noted that the regulations should not
be reorganized and that reorganization could mean additional work for
some States which had provided cross references by section number to
the FHWA regulations. It was concluded that the advantages of
completing a comprehensive rewrite of regulations which are nearly 25
years old outweighed the time and expense of changing cross references.
Since the new regulations provide significant revisions, the text of
State right-of-way manuals would require some revision in any event.
The NPRM proposed that Federal funds be allowed to participate in
all costs necessitated by State law. Most commenters stated that they
welcomed the reduction in Federal involvement in State matters and that
since State laws varied widely, it made sense to reimburse based on
actual State expenditures. Some commenters believed that allowing
Federal reimbursement of costs not previously permitted would encourage
State legislatures and courts to expand both property damage payments
and costs of acquisition, such as, payments of property owners legal
fees, court costs, and perhaps loss of business costs. In developing
the final rule, the FHWA concluded that neither the FHWA nor STDs may
have sufficient resources to monitor a wide variety of State laws and
court decisions and that an across-the-board reimbursement of State
expenditures required by State law is the most practical and equitable
solution.
As the comment of the Vermont STD correctly noted, business loss
can partially overlap ``damages'' and there is great difficulty trying
to isolate and separate items in which the FHWA could not previously
participate versus items where participation was permitted. Court
awards most often do not clearly separate the various elements of
damages making it difficult to isolate historically ``noncompensable''
damages.
Several comments were received suggesting that specific wording
should be revised to more closely mirror language used by individual
States. In completing the final rule, the FHWA selected language which
it believes is best understood and utilized by the majority of the
States. Nuances in language can be accommodated in the State procedural
manual.
Several comments were received that questioned the procedures for
receiving either credit or reimbursement for early acquisitions. These
comments typically reflected that the reader believed that the FHWA was
too restrictive, and that there should be no impediment to States
moving forward to acquire right-of-way and receive reimbursement or
credit at a subsequent date. There were also comments that FHWA should
advance Federal funds for use in corridor preservation.
At the present time the FHWA believes that TEA-21 offers a great
deal of flexibility in considering early acquisition in selected
situations. The FHWA was aware of the statutory requirements which must
be met in order to obtain either credit or reimbursement at a later
date, as well as, lawsuits which have challenged early acquisition
approaches and has adopted an approach which it considers prudent, and
cautious, while fully implementing the intent of TEA-21. As additional
experience is gained in the application of the TEA-21 principles, the
FHWA will update the web page for ``Questions and Answers'' which will
be developed continually to facilitate implementation of early
acquisition concepts.
A limited number of comments were received questioning the FHWA's
determination under the Unfunded Mandates Reform Act that the proposed
regulation would result in estimated annual costs of less than $100
million. The regulation as developed should result in a reduction of
costs to State, local, or tribal governments since they will not have
to maintain staff to conduct surveillance to identify claims for
elements of property damage that are not eligible for Federal
reimbursement under the old regulation. The reduction in Federal
approval actions should also result in cost savings by eliminating the
time requirements for such approval.
The final rule also permits reimbursement to States for property
acquisition costs and administrative costs which are not now
reimbursed, so it is a benefit to those States.
A comment was received questioning the need for a reversionary
clause when property is transferred at no cost by an STD to be used for
public purposes under title 23, U.S.C. The FHWA concluded that where
property to be used for public purposes is transferred at no cost, good
stewardship and recognition of the public trust dictates that the
property be placed in the use for which the disposal was approved. The
reversionary clause is the most effective method to assure that use.
One comment was received concerning the need to insure that FHWA
approval is required for the disposal of property at nominal or no
costs in exceptional circumstances. Several comments were received
suggesting that no FHWA approval for any disposal should be mandated.
The requirement for FHWA approval is based on the requirements of 23
U.S.C. 156(b) and remains in the final rule. The rule's intent is that
disposals for less than fair market value are to be the exception,
rather than the rule. Language has been added encouraging that the
criteria for disposals at less than fair market value be clearly stated
in the STD manuals.
It is our intent to maintain current program guidance and
information in an electronic format with ``Questions and Answers'' and
policy interpretations. Technical air space guidance will also be
maintained in this manner. The URL for up-to-date guidance is: http://
www.fhwa.dot.gov/realestate/index.htm. This final rule seeks to further
clarify and reduce Federal regulatory
[[Page 71286]]
requirements and to place primary responsibility for a number of
approval actions at the State level. The adoption of these regulatory
changes impacts other parts of 23 CFR, and in developing the final
rule, attention has been given to conforming revisions as necessary.
Such other parts include: 23 CFR part 130, Subpart D, Advance right-of-
way revolving funds; 23 CFR part 480, Use and disposition of property
previously acquired by States for withdrawn Interstate segments; 23 CFR
part 620, Subpart B, Relinquishment of highway facilities; 23 CFR part
630; 23 CFR part 635; and 23 CFR part 645.
This final rule substantially revises the order of regulatory
materials and completes the process of removing redundant, outdated,
and unnecessary content from the existing rule. A unified purpose and
applicability statement along with definitions is included in part 710,
subpart A of this final rule. This consolidates material now found in
several locations of the existing regulations.
The following table highlights the reordering of the content and
intended revisions and redesignations for each subpart of the existing
regulation:
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Old part, subpart or section New part, subpart or section
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Part 130, subpart D.................... Removed.
Part 480............................... Removed.
620.202................................ 620.202 [Revised].
620.203(j)............................. 620.203(j) [Revised].
630.106(c)(3).......................... 630.106(c)(3) [Revised].
635.307(b)(3).......................... 635.307(b)(3) [Revised].
645.103(c), 645.111(c) and (d), and 645.103(c), 645,111(c) and (d),
645.113(i). and 645.113(i) [Revised].
710, subpart A [Reserved].............. 710, subpart A [Added].
710, subpart B (Secs. 710.201-710.205) 710.201.
710, subpart C (710.301-710.306)....... 710.203.
712, subpart A [Reserved].............. Removed.
712, subpart B (712.201-712.204)....... 710, subpart C.
712, subpart C [Reserved].............. Removed.
712, subpart D (712.401-712.408)....... 710.105, 710.203.
712, subpart F (712.601-712.606)....... 710.509.
712, subpart G (712.701-712.703)....... Removed.
713, subpart A (713.101-713.103)....... 710.101-710.103.
713, subpart B (713.201-713.205)....... 710.405.
713, subpart C (713.301-713.308)....... 710.407-710.409.
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Part and Section Analysis
Part 130, Subpart D--Advance Right-of-Way Revolving Funds
Part 130, subpart D is removed from title 23, CFR, because section
1211 (e) of the TEA-21 eliminated the right-of-way revolving fund.
Part 480--Use and Disposition of Property Previously Acquired by States
for Withdrawn Interstate Segments
Part 480 is removed from title 23, CFR, since section 1303 of the
TEA-21 now allows States to retain the proceeds for the lease or sale
of real estate on Federal projects as long as the proceeds are used for
title 23, U.S.C., type projects. Other provisions of part 480 are
obsolete.
Part 620, Subpart B--Relinquishment of Highway Facilities
Part 620 is amended to clarify that it is applicable only to
transfers of highway facilities for continued highway use. Approvals
for other disposals and modifications of access are governed by 23 CFR
part 710.
Section 630.106(c)(3)
In Sec. 630.106(c)(3), the reference to ``23 CFR part 712'' is
revised to read ``23 CFR part 710'' to provide a current reference.
Section 635.307(b)(3)
In Sec. 635.307(b)(3), the reference to ``23 CFR 713, subpart A''
is revised to read ``23 CFR 710.403'' to provide a current citation.
Part 645--Utilities
Sections 645.103(c) and 645.111 (c) and (d) are amended to revise
the reference ``23 CFR chapter I, subchapter H, Right-of-Way and
Environment'' to read ``23 CFR 710.203.'' Section 645.113(i) is amended
to revise the reference ``23 CFR part 712, the Acquisition Functions''
to read ``23 CFR 710.503.''
Parts 710--Right-of-Way--General; 712--The Acquisition Function; and
713--Right-of-Way--The Property Management Function
Parts 710, 712, and 713 are removed in their entirety, and replaced
by six new subparts under a new part 710. The reorganization includes:
subpart A--General; subpart B--Program Administration; subpart C--
Project Development; subpart D--Real Property Management; subpart E--
Property Acquisition Alternatives; and subpart F--Federal Assistance
Programs. These new sections clarify the purpose of the regulation and
include a new definition section. Detailed requirements and rules have
been replaced by a provision that will allow States to include their
acquisition process in a State manual to be approved by the FHWA.
This final rule seeks to further clarify and reduce Federal
regulatory requirements and to place primary responsibility for a
number of approval actions at the State level. It substantially revises
the order of regulatory materials and completes the process of removing
redundant, outdated, and unnecessary content from the existing rule.
Part 710, Subpart A--General
A unified purpose and applicability statement along with
definitions is included in subpart A of this final rule. This
consolidates material now found in several locations of the existing
regulations.
Part 710, Subpart B--Program Administration
Section 710.201 clarifies that the STD has the overall
responsibility to assure compliance with State and Federal laws and
regulations. The methods and practices of the STDs are to be specified
in ROW operations manuals submitted for approval by the FHWA no later
than January 1, 2001, and certified as current every five years
thereafter.
State ROW manuals are considered to be a sound basis for
implementing appropriate procedures at the State and local level. It is
a State responsibility to
[[Page 71287]]
maintain the manual and complete the various right-of-way phases in
accordance with Federal law and regulations. The manual provides a
documented reference for use by State ROW personnel, local public
agencies, affected individuals, and the FHWA. Alternative methods to
achieve program objectives have been explored in developing this final
rule, specifically, efforts were made to reduce the level of Federal
oversight, required recordkeeping, and mandated reporting. The FHWA
believes that the need for project level surveillance has diminished
since the era of the Interstate program when Federal funding was
allocated on the basis of the cost to complete the system. Now States
receive a fixed allocation of Federal funds based largely on formula.
Hence, it is clearly in the States' best interest to use their Federal-
aid funds prudently in all areas, including the acquisition,
management, and disposition of real property.
Section 710.203(b)(1) expands Federal reimbursement for right-of-
way acquisition costs beyond the current limit of ``generally
compensable'' costs. Under former regulations, the States and the
Federal government were required to ascertain which types of
acquisition costs were generally compensable across the nation and
limit Federal reimbursement to those activities. This limits State
flexibility, imposes a ``one size fits all'' philosophy, and creates
administrative burdens for both the States and the FHWA. State and
Federal staff time devoted to isolating and extracting these costs does
not add value to the overall transportation program accomplishments.
Moreover, States should have greater discretion in determining the best
use of formula-allocated Federal funds for acquisition purposes, as
they now have in virtually every other aspect of projects funded with
Federal-aid.
Since 1991, the kinds of activities that are eligible for Federal-
aid funds have greatly increased, and States have received greatly
expanded discretion in the use of Federal-aid funds. This final rule
echoes statutory and policy changes that have occurred throughout the
rest of the Federal-aid program for the surface transportation program.
Part 710, Subpart C--Project Development
The sections in this subpart were taken from part 712, subpart B
and revised to provide a brief chronology of the sequence and actions
which are necessary to qualify for Federal-aid funding. Section 710.305
provides new agency requirements mandating that in areas in which Clean
Air Act conformity determination has lapsed, special coordination is
necessary prior to initiating new projects or continuing activity on
existing projects. Section 710.311 includes a new TEA-21 provision
which provides that an oversight agreement between the STD and the FHWA
must specify responsibility for the review of projects at the plan,
specification, and estimate (PS&E) stage.
Part 710, Subpart D--Real Property Management
The sections in this subpart were taken from part 712, subpart B
and revised to provide that the STD will charge fair market value for
the use or disposal of real estate acquired with title 23, U.S.C.,
funding. Exceptions to the requirement to collect fair market value or
rent may be approved by the FHWA. The air rights guidelines are to be
maintained on the Internet. The STD may retain the Federal share of
rental and disposal proceeds if used for projects eligible under title
23, U.S.C.
Section 710.401 provides that property disposals or any other use
of right-of-way along the Interstate requires the STD to obtain FHWA
concurrence, but this would no longer be required for non-Interstate
highways. Instead, the STD ROW manual would specify procedures for the
leasing, maintenance and disposal of property rights, including access
control.
Section 710.403(e) of the final rule includes a TEA-21 provision
that the Federal share of proceeds from the sale or lease of real
estate originally acquired as part of a Federal-aid project (not
limited to airspace) could be retained by the STD, if used for projects
that would be eligible for funding under title 23, U.S.C. Section
710.403(d) of the final rule requires that, with certain exceptions,
the STD charge fair market value for the sale or lease of real property
if the property was acquired with Federal assistance made available
from the highway trust fund. This reflects the provision of 23 U.S.C.
156, as amended by section 1303 of TEA-21. This revision reduces
administrative burdens on States and the FHWA and gives States and
local governments greater flexibility in use of funds, while also
protecting Federal interests by ensuring funds are used on purposes
permitted under title 23, U.S.C. This procedure applies to all
disposals, including surplus property from withdrawn Interstate
projects, processed subsequent to June 9, 1998, the effective date of
TEA-21. Under the rule, income from all property uses and dispositions
is treated in a uniform manner.
The final rule in Sec. 710.405 continues to specify procedures the
States will be required to follow in use of airspace on the Interstate
facilities which have received funding under title 23, U.S.C., in any
way. However, these airspace requirements will no longer be mandated
for non-Interstate highways.
The final rule in Sec. 710.405 relocates a significant amount of
detail relating to the management of airspace. The detailed provisions
for airspace, particularly the detailed geometric requirements for the
use of property over or under a highway, will be developed and updated
through an airspace technical guidance document. An advantage of an
airspace technical guidance document is that it is easier to update.
Part 710, Subpart E--Property Acquisition Alternatives
The sections in this subpart were taken from part 712, subparts E
and F. Subpart G relating to the right-of-way revolving fund is removed
since TEA-21 eliminated the revolving fund.
The final rule in Sec. 710.501 also includes a TEA-21 provision
(section 1301) that the value of property acquired by State or local
governments before project agreement could be credited toward the State
share of project cost, as long as certain conditions, including those
relating to the environmental process, have been met. Prior to TEA-21,
private property donated to a Federal project could be credited to the
non-Federal share, but no such credit was permitted for publicly-owned
property. The regulation fulfills TEA-21 statutory provisions by
allowing a State credit toward the non-Federal share of the cost of a
project, and mandating the credit in the case of locally-owned
property. The conditions which must be met to allow the credit would
include careful observance of the environmental process.
As a basis for protective buying, significant increased cost may be
used as a justification under Sec. 710.503(b).
The final rule in Secs. 710.505 and 710.507 contains separate
sections for property donations by private parties and contributions by
State or local governments to clearly distinguish between these
distinct actions, both of which can generate credits for the State or
local matching share of a project.
The final rule in Sec. 710.513(b) clarifies that where property is
to be used for environmental mitigation or environmental banking, the
provisions of the Uniform Relocation Assistance and Real Property
Acquisition Policies Act (Public Law 91-645, 84 Stat. 1894,
[[Page 71288]]
as amended) apply in the acquisition of the property.
In general, FHWA approval actions in Sec. 710.409 and 710.405 for
disposal of property and use of air space were revised in the final
rule to more closely parallel the assumptions of responsibilities
principles, as outlined in section 1305 of TEA-21 to stress FHWA
approval actions on the Interstate system.
Part 710, Subpart F--Federal Assistance Programs
Sections 710.601 and 710.603 were taken from part 712, subpart F
and revised to provide updated references to new legislation and to
conform the regulatory references to this final rule.
Part 712--The Acquisition Function
Part 712 is removed from title 23, CFR. The provisions of current
part 712, subpart B, concerning general provisions and project
procedures are relocated and revised as new part 710, subpart C,
project development.
We are removing current part 712, subparts A and C (empty reserved
slots) and G, right-of-way revolving fund. Subpart G was eliminated by
section 1211(e) of the TEA-21. The revolving fund was a pool of money
that could be used by States to acquire right-of-way in advance of the
time that State funding was available.
The information in current part 712, subpart D regarding
administrative and legal settlements and court awards is relocated to
new Secs. 710.105 (Definitions) and 710.203 (Funding and
reimbursement).
Federal land transfers and direct Federal acquisition policies and
procedures found in current part 712, subpart E are relocated to new
part 710, subpart F (Federal assistance programs), Secs. 710.601 and
710.603.
Current part 712, subpart F, concerning functional replacement of
real property in public ownership is relocated to new part 710, subpart
E, specifically Sec. 710.509.
A major objective of the final rule is to reorder the regulation so
that it follows the same sequence as the development and implementation
of a Federal-aid project. This rearrangement in chronological order
should aid the public and State transportation departments (STD) in
effectively using the regulation.
The final rule also clarifies the State-Federal partnership, which
is not considered a major or significant change.
Part 713--Right-of-Way--The Property Management Function
Part 713 is removed from title 23, CFR. Current subpart A
concerning purpose, applicability, policies and procedures of property
management are relocated to new part 710, subpart A (Secs. 710.101 and
710.103) and included in the general statement for real property.
Current part 713, subpart B regarding management of airspace on
Federal-aid highway systems for non-highway purposes is relocated to
new part 710 at Sec. 710.405 (air rights on the Interstate). The FHWA
approval for the use of airspace is limited to Interstate projects.
Disposal of rights-of-way provisions found in current part 713, subpart
C are relocated to new part 710, subpart D (real property management)
at Secs. 710.407 (leasing) and 710.409 (disposals). This section
clarifies that income received by the STDs may be retained when used
for projects eligible under title 23, U.S.C.
Provisions relating to the real estate issues contained in sections
1301 and 1303 of the TEA-21 have been incorporated into these
regulations, notably: (1) Allowing credit to the non-Federal share when
a State or local government contributes land to a project; (2) allowing
States to retain income from sale or lease of real property, as long as
the income is used for projects eligible under title 23, U.S.C.; and
(3) eliminating the right-of-way revolving fund and clarifying credit
for private property donations.
Rulemaking Analyses and Notices
All comments received before the close of business on March 24,
1999, were considered in developing the final rule and late comments
were considered to the extent practicable. The comments are available
for examination using docket number FHWA 98-4315 in the docket room at
the above address or via the electronic addresses provided above.
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, nor is
it a significant regulatory action within the Department of
Transportation's regulatory policies and procedures. The economic
impact of this rulemaking will be minimal; therefore, a full regulatory
evaluation is not required. The FHWA does not consider this action to
be significant because these regulations simplify, clarify, reorganize,
and/or eliminate existing requirements. The procedures would simply
implement current law and eliminate constraints on FHWA reimbursement
for certain right-of-way expenditures when those expenditures are made
under provisions of State law. Neither the individual nor cumulative
impact of this action is significant because this rule does not alter
the funding levels available to the States for Federal or federally-
assisted programs covered by the TEA-21.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the agency has evaluated the effects of this rule on small
entities, such as local agencies and businesses. This action would
merely update and clarify existing procedures. Also, this rule reduces
Federal regulatory requirements and allows State procedures to be
utilized. Local entities could also adopt State procedures for
advancing Federal-aid projects under the State transportation plan.
Accordingly, the FHWA certifies that this action would not have a
significant economic impact on a substantial number of small entities.
Environmental Impact
The FHWA has also analyzed this action for the purpose of the
National Environmental Policy Act (42 U.S.C. 4321 et seq.), and
concludes that this action will not have any effect on the quality of
the human and natural environment.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999, and
it has been determined this action does not have a substantial direct
effect or sufficient federalism implications on States that would limit
the policymaking discretion of the States. Nothing in this document
directly preempts any State law or regulation.
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.
Unfunded Mandates Reform Act of 1995
This rule does not impose a Federal mandate resulting in the
expenditure by
[[Page 71289]]
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. (2 U.S.C. 1531
et seq.).
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), 49 U.S.C. 3501-
3520, Federal agencies must determine whether requirements contained in
rulemaking are subject to the information collection provisions of the
PRA.
The FHWA has determined that this final rule places a requirement
on the STDs, for Right-of-Way Manuals, that requires Office of
Management and Budget (OMB) approval.
The FHWA is allowing STDs to develop and submit the manuals by
January 1, 2001. The FHWA estimates the annual burden of this
requirement is approximately 4,000 hours on a national basis.
A request for OMB approval of the manual requirement will be
submitted in the near future.
Executive Order 12988 (Civil Justice Reform)
This action 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)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and does not
concern an environmental risk to health or safety that may
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This 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.
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
23 CFR Part 130
Grant programs--transportation, Highways and roads, Real property
acquisition, Rights-of-way, Reporting and recordkeeping requirements.
23 CFR Part 480
Grant programs--transportation, Highways and roads,
Intergovernmental relations, Mass transportation, Rights-of-way,
Reporting and recordkeeping requirements.
23 CFR Part 620
Grant programs--transportation, Highways and roads, Rights-of-way.
23 CFR Part 630
Government contracts, Grant programs--transportation, Highways and
roads, Project authorization, Reporting and recordkeeping requirements.
23 CFR Part 635
Grant programs--transportation, Highways and roads, Real property
acquisition, Reporting and recordkeeping requirements.
23 CFR Part 645
Grant programs--transportation, Highways and roads, Rights-of-way,
Utilities.
23 CFR Parts 710, 712, and 713
Grant programs--transportation, Highways and roads, Real property
acquisition, Rights-of-way, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, and under the authority of
23 U.S.C. 107, 108, 111, and 315, the FHWA amends 23 CFR chapter I as
set forth below:
PART 130--[REMOVED]
1. Remove part 130.
PART 480--[REMOVED]
2. Remove part 480.
PART 620--[AMENDED]
3. The authority citation for part 620 continues to read as
follows:
Authority: 23 U.S.C. 315 and 318; 49 CFR 1.48; and 23 CFR 1.32.
4. Revise Sec. 620.202 to read as follows:
Sec. 620.202 Applicability.
The provisions of this subpart apply to highway facilities where
Federal-aid funds have participated in either right-of-way or physical
construction costs of a project. The provisions of this subpart apply
only to relinquishment of facilities for continued highway purposes.
Other real property disposals and modifications or disposal of access
rights are governed by the requirements of 23 CFR part 710.
5. Revise Sec. 620.203(j) to read as follows:
Sec. 620.203 Procedures.
* * * * *
(j) If a relinquishment is to a Federal, State, or local government
agency for highway purposes, there need not be a charge to the said
agency, nor in such event any credit to Federal funds. If for any
reason there is a charge, the STD may retain the Federal share of the
proceeds if used for projects eligible under title 23 of the United
States Code.
PART 630--[AMENDED]
6. Revise the authority citation for part 630 to read as follows:
Authority: 23 U.S.C. 105, 106, 109, 115, 315, 320, and 402(a);
23 CFR 1.32; 49 CFR 1.48(b).
Sec. 630.106 [Amended]
7. Amend Sec. 630.106(c)(3) by revising the citation ``23 CFR part
712'' to read ``23 CFR part 710''.
PART 635--[AMENDED]
8. Revise the authority citation for part 635 to read as follows:
Authority: 23 U.S.C. 101(note), 109, 112, 113, 114, 116, 119,
128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334, 4601 et seq.; sec.
1041(a), Pub. L. 102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR
1.48(b).
Sec. 635.307 [Amended]
9. Amend Sec. 635.307(b)(3) by revising the citation ``23 CFR part
713, subpart A'' to read ``23 CFR 710.403''.
PART 645--[AMENDED]
10. The authority citation for part 645 continues to read as
follows:
Authority: 23 U.S.C. 101, 109, 111, 116, 123, and 315; 23 CFR
1.23 and 1.27; 49 CFR 1.48(b); and E.O. 11990, 42 FR 26961 (May 24,
1977).
11. Amend Secs. 645.103(c) and 645.111(c) and (d) by revising the
words ``23 CFR chapter I, subchapter H, Right-of-Way and Environment''
to read ``23 CFR 710.203''.
11-A. Amend Sec. 645.113 (i) by revising the words ``23 CFR part
712, the Acquisition Functions'' to read ``23 CFR 710.503''.
PART 712--[REMOVED]
12. Remove part 712.
[[Page 71290]]
PART 713--[REMOVED]
13. Remove part 713.
14. Revise part 710 to read as follows:
PART 710--RIGHT-OF-WAY AND REAL ESTATE
Subpart A--General
Sec.
710.101 Purpose.
710.103 Applicability.
710.105 Definitions.
Subpart B--Program Administration
710.201 State responsibilities.
710.203 Funding and reimbursement.
Subpart C--Project Development
710.301 General.
710.303 Planning.
710.305 Environmental analysis.
710.307 Project agreement.
710.309 Acquisition.
710.311 Construction advertising.
Subpart D--Real Property Management
710.401 General.
710.403 Management.
710.405 Air rights on the Interstate
710.407 Leasing.
710.409 Disposals.
Subpart E--Property Acquisition Alternatives
710.501 Early acquisition.
710.503 Protective buying and hardship acquisition.
710.505 Real property donations.
710.507 State and local contributions.
710.509 Functional replacement of real property in public
ownership.
710.511 Transportation enhancements.
710.513 Environmental mitigation.
Subpart F--Federal Assistance Programs
710.601 Federal land transfer.
710.603 Direct Federal acquisition.
Authority: 23 U.S.C. 101(a), 107, 108, 111, 114, 133, 142(f),
145, 156, 204, 210, 308, 315, 317, and 323; 42 U.S.C. 2000d et seq.,
4633, 4651-4655; 49 CFR 1.48(b) and (cc), 18.31, and parts 21 and
24; 23 CFR 1.32.
Subpart A--General
Sec. 710.101 Purpose.
The primary purpose of the requirements in this part is to ensure
the prudent use of Federal funds under title 23 of the United States
Code in the acquisition, management, and disposal of real property. In
addition to the requirements of this part, other real property related
provisions apply and are found at 49 CFR part 24.
Sec. 710.103 Applicability.
This part applies whenever Federal assistance under title 23 of the
United States Code is used. The part applies to programs administered
by the Federal Highway Administration. Where Federal funds are
transferred to other Federal agencies to administer, those agencies'
procedures may be utilized. Additional guidance is available
electronically at the FHWA Real Estate services website: http://
www.fhwa.dot.gov/realestate/index.htm
Sec. 710.105 Definitions.
(a) Terms defined in 49 CFR part 24, and 23 CFR part 1 have the
same meaning where used in this part, except as modified in this
section.
(b) The following terms where used in this part have the following
meaning:
Access rights means the right of ingress to and egress from a
property that abuts a street or highway.
Acquiring agency means a State agency, other entity, or person
acquiring real property for title 23 of the United States Code
purposes.
Acquisition means activities to obtain an interest in, and
possession of, real property.
Air rights means real property interests defined by agreement, and
conveyed by deed, lease, or permit for the use of airspace.
Airspace means that space located above and/or below a highway or
other transportation facility's established grade line, lying within
the horizontal limits of the approved right-of-way or project
boundaries.
Damages means the loss in value attributable to remainder property
due to severance or consequential damages, as limited by State law,
that arise when only part of an owner's property is acquired.
Disposal means the sale of real property or rights therein,
including access or air rights, when no longer needed for highway
right-of-way or other uses eligible for funding under title 23 of the
United States Code.
Donation means the voluntary transfer of privately owned real
property for the benefit of a public transportation project without
compensation or with compensation at less than fair market value.
Early acquisition means acquisition of real property by State or
local governments in advance of Federal authorization or agreement.
Easement means an interest in real property that conveys a right to
use a portion of an owner's property or a portion of an owner's rights
in the property.
NHS means the National Highway System as defined in 23 U.S.C.
103(b).
Oversight agreement means the project approval and agreement
concluded between the State and the FHWA to outline which projects will
be monitored at the plans, specifications, and estimate stage by FHWA
as required by 23 U.S.C. 106(c)(3).
Real property means land and any improvements thereto, including
but not limited to, fee interests, easements, air or access rights, and
the rights to control use, leasehold, and leased fee interests.
Relinquishment means the conveyance of a portion of a highway
right-of-way or facility by a State highway department to another
government agency for continued transportation use. (See 23 CFR part
620, subpart B.)
Right-of-way means real property and rights therein used for the
construction, operation, or maintenance of a transportation or related
facility funded under title 23 of the United States Code.
Settlement means the result of negotiations based on fair market
value in which the amount of just compensation is agreed upon for the
purchase of real property or an interest therein. This term includes
the following:
(1) An administrative settlement is a settlement reached prior to
filing a condemnation proceeding based on value related evidence,
administrative consideration, or other factors approved by an
authorized agency official.
(2) A legal settlement is a settlement reached by a responsible
State legal representative after filing a condemnation proceeding,
including stipulated settlements approved by the court in which the
condemnation action had been filed.
(3) A court settlement or court award is any decision by a court
that follows a contested trial or hearing before a jury, commission,
judge, or other legal entity having the authority to establish the
amount of compensation for a taking under the laws of eminent domain.
State agency means a department, agency, or instrumentality of a
State or of a political subdivision of a State; any department, agency,
or instrumentality of two or more States or of two or more political
subdivisions of a State or States; or any person who has the authority
to acquire property by eminent domain, for public purposes, under State
law.
State transportation department (STD) means the State highway
department, transportation department, or other State transportation
agency or commission to which title 23 of the United States Code funds
are apportioned.
Uneconomic remnant means a remainder property which the acquiring
agency has determined has little or no utility or value to the owner.
Uniform Act means the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, as amended (Public Law 91-
646, 84 Stat.
[[Page 71291]]
1894), and the implementing regulations at 49 CFR part 24.
Subpart B--Program Administration
Sec. 710.201 State responsibilities.
(a) Organization. Each STD shall be adequately staffed, equipped,
and organized to discharge its real property-related responsibilities.
(b) Program oversight. The STD shall have overall responsibility
for the acquisition, management, and disposal of real property on
Federal-aid projects. This responsibility shall include assuring that
acquisitions and disposals by a State agency are made in compliance
with legal requirements of State and Federal laws and regulations.
(c) Right-of-way (ROW) operations manual. Each STD which receives
funding from the highway trust fund shall maintain a manual describing
its right-of-way organization, policies, and procedures. The manual
shall describe functions and procedures for all phases of the real
estate program, including appraisal and appraisal review, negotiation
and eminent domain, property management, and relocation assistance. The
manual shall also specify procedures to prevent conflict of interest
and avoid fraud, waste, and abuse. The manual shall be in sufficient
detail and depth to guide State employees and others involved in
acquiring and managing real property. The State manuals should be
developed and updated, as a minimum, to meet the following schedule:
(1) The STD shall prepare and submit for approval by FHWA an up-to-
date Right-of-Way Operations Manual by no later than January 1, 2001.
(2) Every five years thereafter, the chief administrative officer
of the STD shall certify to the FHWA that the current ROW operations
manual conforms to existing practices and contains necessary procedures
to ensure compliance with Federal and State real estate law and
regulation.
(3) The STD shall update the manual periodically to reflect changes
in operations and submit the updated materials for approval by the
FHWA.
(d) Compliance responsibility. The STD is responsible for complying
with current FHWA requirements whether or not its manual reflects those
requirements.
(e) Adequacy of real property interest. The real property interest
acquired for all Federal-aid projects funded pursuant to title 23 of
the United States Code shall be adequate for the construction,
operation, and maintenance of the resulting facility and for the
protection of both the facility and the traveling public.
(f) Recordkeeping. The acquiring agency shall maintain adequate
records of its acquisition and property management activities.
(1) Acquisition records, including records related to owner or
tenant displacements, and property inventories of improvements acquired
shall be in sufficient detail to demonstrate compliance with this part
and 49 CFR part 24. These records shall be retained at least 3 years
from either:
(i) The date the State receives Federal reimbursement of the final
payment made to each owner of a property and to each person displaced
from a property, or
(ii) The date a credit toward the Federal share of a project is
approved based on early acquisition activities of the State.
(2) Property management records shall include inventories of real
property considered excess to project needs, all authorized uses of
airspace, and other leases or agreements for use of real property
managed by the STD.
(g) Procurement. Contracting for all activities required in support
of State right-of-way programs through use of private consultants and
other services shall conform to 49 CFR 18.36.
(h) Use of other public land acquisition organizations or private
consultants. The STD may enter into written agreements with other
State, county, municipal, or local public land acquisition
organizations or with private consultants to carry out its authorities
under paragraph (b) of this section. Such organizations, firms, or
individuals must comply with the policies and practices of the STD. The
STD shall monitor any such real property acquisition activities to
assure compliance with State and Federal law and requirements and is
responsible for informing such organizations of all such requirements
and for imposing sanctions in cases of material non-compliance.
(i) Approval actions. Except for the Interstate system, the STD and
the FHWA will agree on the scope of property related oversight and
approval actions that the FHWA will be responsible for under this part.
The content of the most recent oversight agreement shall be reflected
in the State right-of-way operations manual. The oversight agreement,
and thus the manual, will indicate for which non-Interstate Federal-aid
project submission of materials for review and approval are required.
(j) Approval of just compensation. The amount determined to be just
compensation shall be approved by a responsible official of the
acquiring agency.
(k) Description of acquisition process. The STD shall provide
persons affected by projects or acquisitions advanced under title 23 of
the United States Code with a written description of its real property
acquisition process under State law and of the owner's rights,
privileges, and obligations. The description shall be written in clear,
non-technical language and, where appropriate, be available in a
language other than English.
Sec. 710.203 Funding and reimbursement.
(a) General conditions. The following conditions are a prerequisite
to Federal participation in the costs of acquiring real property except
as provided in Sec. 710.501 for early acquisition:
(1) The project for which the real property is acquired is included
in an approved Statewide Transportation Improvement Program (STIP);
(2) The State has executed a project agreement;
(3) Preliminary acquisition activities, including a title search
and preliminary property map preparation necessary for the completion
of the environmental process, can be advanced under preliminary
engineering prior to National Environmental Policy Act (NEPA) (42
U.S.C. 4321 et seq.) clearance, while other work involving contact with
affected property owners must normally be deferred until after NEPA
approval, except as provided in 23 CFR 710.503 for protective buying
and hardship acquisition; and in 23 CFR 710.501, early acquisition.
Appraisal completion may be authorized as preliminary right-of-way
activity prior to completion of the environmental document; and
(4) Costs have been incurred in conformance with State and Federal
law requirements.
(b) Direct eligible costs. Federal participation in real property
costs is limited to the costs of property incorporated into the final
project and the associated direct costs of acquisition, unless provided
otherwise. Participation is provided for:
(1) Real property acquisition. Usual costs and disbursements
associated with real property acquisition required under the laws of
the State, including the following:
(i) The cost of contracting for private acquisition services or the
cost associated with the use of local public agencies.
(ii) The cost of acquisition activities, such as, appraisal,
appraisal review, cost estimates, relocation planning,
[[Page 71292]]
right-of-way plan preparation, title work, and similar necessary right-
of-way related work.
(iii) The cost to acquire real property, including incidental
expenses.
(iv) The cost of administrative settlements in accordance with 49
CFR 24.102(i), legal settlements, court awards, and costs incidental to
the condemnation process.
(v) The cost of minimum payments and appraisal waiver amounts
included in the State approved manual.
(2) Relocation assistance and payments. Payments made incidental to
and associated with the displacement from acquired property under 49
CFR part 24.
(3) Damages. The cost of severance and/or consequential damages to
remaining real property resulting from a partial acquisition, actual or
constructive, of real property for a project based on elements
compensable under applicable State law.
(4) Property management. The net cost of managing real property
prior to and during construction to provide for maintenance,
protection, and the clearance and disposal of improvements until final
project acceptance.
(5) Payroll-related expenses and technical guidance. Salary and
related expenses of employees of an acquiring agency are eligible costs
in accordance with OMB Circular A-87 (available at http://
www.whitehouse.gov/omb/circulars). This includes State costs incurred
for managing or providing technical guidance, consultation or oversight
on projects where right-of-way services are performed by a political
subdivision or others.
(6) Property not incorporated into a project funded under title 23
of the United States Code. The cost of property not incorporated into a
project may be eligible for reimbursement in the following
circumstances:
(i) General. Costs for construction material sites, property
acquisitions to a logical boundary, or for eligible transportation
enhancement, sites for disposal of hazardous materials, environmental
mitigation, environmental banking activities, or last resort housing.
(ii) Easements not incorporated into the right-of-way. The cost of
acquiring easements outside the right-of-way for permanent or temporary
use.
(7) Uneconomic remnants. The cost of uneconomic remnants purchased
in connection with the acquisition of a partial taking for the project
as required by the Uniform Act.
(8) Access rights. Payment for full or partial control of access on
an existing highway (i.e., one not on a new location), based on
elements compensable under applicable State law. Participation does not
depend on another real property interest being acquired or on further
construction of the highway facility.
(9) Utility and railroad property. (i) The cost to replace
operating real property owned by a displaced utility or railroad and
conveyed to an STD for a highway project, as provided in 23 CFR part
140, subpart I, Reimbursement for Railroad Work, and 23 CFR part 645,
Subpart A, Utility Relocations, Adjustments and Reimbursement, and 23
CFR part 646, Subpart B, Railroad-Highway Projects.
(ii) Participation in the cost of acquiring non-operating utility
or railroad real property shall be in the same manner as that used in
the acquisition of other privately owned property.
(c) Withholding payment. The FHWA may withhold payment under the
conditions in 23 CFR 1.36 where the State fails to comply with Federal
law or regulation, State law, or under circumstances of waste, fraud,
and abuse.
(d) Indirect costs. Indirect costs may be claimed under the
provisions of OMB Circular A-87. Indirect costs may be included on
Federal-aid billings after the indirect cost rate has been approved by
FHWA.
Subpart C--Project Development
Sec. 710.301 General.
The project development process typically follows a sequence of
actions and approvals in order to qualify for funding. The key steps in
this process are provided in this subpart.
Sec. 710.303 Planning.
State and local governments conduct metropolitan and statewide
planning to develop coordinated, financially constrained system plans
to meet transportation needs for local and statewide systems, under
FHWA's planning regulations contained in 23 CFR part 450. In addition,
air quality non-attainment areas must meet the requirements of the U.S.
EPA Transportation conformity regulations (40 CFR parts 51 and 93).
Projects must be included in an approved State Transportation
Improvement Program (STIP) in order to be eligible for Federal-aid
funding.
Sec. 710.305 Environmental analysis.
The National Environmental Policy Act (NEPA) process, as described
in FHWA's NEPA regulations in 23 CFR part 771, normally must be
conducted and concluded with a record of decision (ROD) or equivalent
before Federal funds can be placed under agreement for acquisition of
right-of-way. Where applicable, a State also must complete Clean Air
Act (42 U.S.C. 7401 et seq.) project level conformity analysis. In
areas in which the Clean Air Act conformity determination has lapsed,
acquiring agencies must coordinate with Federal Highway Administration
for special instructions prior to initiating new projects or continuing
activity on existing projects. At the time of processing an
environmental document, a State may request reimbursement of costs
incurred for early acquisition, provided conditions prescribed in 23
U.S.C. 108(c) and 23 CFR 710.501, are satisfied.
Sec. 710.307 Project agreement.
As a condition of Federal-aid, the STD shall obtain FHWA
authorization in writing or electronically before proceeding with any
real property acquisitions, including hardship acquisition and
protective buying (see 23 CFR 710.503). The STD must prepare a project
agreement in accordance with 23 CFR part 630, subpart C. The agreement
shall be based on an acceptable estimate for the cost of acquisition.
On projects where the initial project agreement was executed after June
9, 1998, a State may request credit toward the non-Federal share, for
early acquisitions, donations, or other contributions applied to the
project provided conditions in 23 U.S.C. 323 and 23 CFR 710.501, are
satisfied.
Sec. 710.309 Acquisition.
The process of acquiring real property includes appraisal,
appraisal review, establishing just compensation, negotiations,
administrative and legal settlements, and condemnation. The State shall
conduct acquisition and related relocation activities in accordance
with 49 CFR part 24.
Sec. 710.311 Construction advertising.
The State must manage real property acquired for a project until it
is required for construction. Clearance of improvements can be
scheduled during the acquisition phase of the project using sale/
removal agreements, separate demolition contracts, or be included as a
work item in the construction contract. On Interstate projects, prior
to advertising for construction, the State shall develop ROW
availability statements and certifications related to project
acquisitions as required by 23 CFR 635.309. For non-Interstate
projects, the oversight agreement must specify responsibility for the
review and
[[Page 71293]]
approval of the ROW availability statements and certifications.
Generally, for non-NHS projects, the State has full responsibility for
determining that right-of-way is available for construction.
Subpart D--Real Property Management
Sec. 710.401 General.
This subpart describes the acquiring agency's responsibilities to
control the use of real property required for a project in which
Federal funds participated in any phase of the project. Prior to
allowing any change in access control or other use or occupancy of
acquired property along the Interstate, the STD shall secure an
approval from the FHWA for such change or use. The STD shall specify in
the State's ROW operations manual, procedures for the rental, leasing,
maintenance, and disposal of real property acquired with title 23 of
the United States Code funds. The State shall assure that local
agencies follow the State's approved procedures, or the local agencies
own procedures if approved for use by the STD.
Sec. 710.403 Management.
(a) The STD must assure that all real property within the
boundaries of a federally-aided facility is devoted exclusively to the
purposes of that facility and is preserved free of all other public or
private alternative uses, unless such alternative uses are permitted by
Federal regulation or the FHWA. An alternative use must be consistent
with the continued operation, maintenance, and safety of the facility,
and such use shall not result in the exposure of the facility's users
or others to hazards.
(b) The STD shall specify procedures in the State manual for
determining when a real property interest is no longer needed. These
procedures must provide for coordination among relevant STD
organizational units, including maintenance, safety, design, planning,
right-of-way, environment, access management, and traffic operations.
(c) The STD shall evaluate the environmental effects of disposal
and leasing actions requiring FHWA approval as provided in 23 CFR part
771.
(d) Acquiring agencies shall charge current fair market value or
rent for the use or disposal of real property interests, including
access control, if those real property interests were obtained with
title 23 of the United States Code funding, except as provided in
paragraphs (d) (1) through (5) of this section. Since property no
longer needed for a project was acquired with public funding, the
principle guiding disposal would normally be to sell the property at
fair market value and use the funds for transportation purposes. The
term fair market value as used for acquisition and disposal purposes is
as defined by State statute and/or State court decisions. Exceptions to
the general requirement for charging fair market value may be approved
in the following situations:
(1) With FHWA approval, when the STD clearly shows that an
exception is in the overall public interest for social, environmental,
or economic purposes; nonproprietary governmental use; or uses under 23
U.S.C. 142(f), Public Transportation. The STD manual may include
criteria for evaluating disposals at less than fair market value.
Disposal for public purposes may also be at fair market value. The STD
shall submit requests for such exceptions to the FHWA in writing.
(2) Use by public utilities in accordance with 23 CFR part 645.
(3) Use by Railroads in accordance with 23 CFR part 646.
(4) Use for Bikeways and pedestrian walkways in accordance with 23
CFR part 652.
(5) Use for transportation projects eligible for assistance under
title 23 of the United States Code.
(e) The Federal share of net income from the sale or lease of
excess real property shall be used by the STD for activities eligible
for funding under title 23 of the United States Code. Where project
income derived from the sale or lease of excess property is used for
subsequent title 23 projects, use of the income does not create a
Federal-aid project.
(f) No FHWA approval is required for disposal of property which is
located outside of the limits of the right-of-way if Federal funds did
not participate in the acquisition cost of the property.
(g) Highway facilities in which Federal funds participated in
either the right-of-way or construction may be relinquished to another
governmental agency for continued highway use under the provisions of
23 CFR 620, subpart B.
Sec. 710.405 Air rights on the Interstate.
(a) The FHWA policies relating to management of airspace on the
Interstate for non-highway purposes are included in this section.
Although this section deals specifically with approval actions on the
Interstate, any use of airspace contemplated by a STD must assure that
such occupancy, use, or reservation is in the public interest and does
not impair the highway or interfere with the free and safe flow of
traffic as provided in 23 CFR 1.23.
(1) This subpart applies to Interstate facilities which received
title 23 of the United States Code assistance in any way.
(2) This subpart does not apply to the following:
(i) Non-Interstate highways.
(ii) Railroads and public utilities which cross or otherwise occupy
Federal-aid highway right-of-way.
(iii) Relocations of railroads or utilities for which reimbursement
is claimed under 23 CFR part 140, subparts E and H.
(iv) Bikeways and pedestrian walkways as covered in 23 CFR part
652.
(b) A STD may grant rights for temporary or permanent occupancy or
use of Interstate system airspace if the STD has acquired sufficient
legal right, title, and interest in the right-of-way of a federally
assisted highway to permit the use of certain airspace for non-highway
purposes; and where such airspace is not required presently or in the
foreseeable future for the safe and proper operation and maintenance of
the highway facility. The STD must obtain prior FHWA approval, except
for paragraph (c) of this section.
(c) An STD may make lands and rights-of-way available without
charge to a publicly owned mass transit authority for public transit
purposes whenever the public interest will be served, and where this
can be accomplished without impairing automotive safety or future
highway improvements
(d) An individual, company, organization, or public agency desiring
to use airspace shall submit a written request to the STD. If the STD
recommends approval, it shall forward an application together with its
recommendation and any necessary supplemental information including the
proposed airspace agreement to the FHWA. The submission shall
affirmatively provide for adherence to all policy requirements
contained in this subpart and conform to the provisions in the FHWA's
Airspace Guidelines at: http://www.fhwa.dot.gov/realestate/index.htm.
Sec. 710.407 Leasing.
(a) Leasing of real property acquired with title 23 of the United
States Code, funds shall be covered by an agreement between the STD and
lessee which contains provisions to insure the safety and integrity of
the federally funded facility. It shall also include provisions
governing lease revocation, removal of improvements at no cost to the
FHWA, adequate insurance to hold the State and the FHWA harmless,
[[Page 71294]]
nondiscrimination, access by the STD and the FHWA for inspection,
maintenance, and reconstruction of the facility.
(b) Where a proposed use requires changes in the existing
transportation facility, such changes shall be provided without cost to
Federal funds unless otherwise specifically agreed to by the STD and
the FHWA.
(c) Proposed uses of real property shall conform to the current
design standards and safety criteria of the Federal Highway
Administration for the functional classification of the highway
facility in which the property is located.
Sec. 710.409 Disposals.
(a) Real property interests determined to be excess to
transportation needs may be sold or conveyed to a public entity or to a
private party in accordance with Sec. 710.403(c).
(b) Federal, State, and local agencies shall be afforded the
opportunity to acquire real property interests considered for disposal
when such real property interests have potential use for parks,
conservation, recreation, or related purposes, and when such a transfer
is allowed by State law. When this potential exists, the STD shall
notify the appropriate resource agencies of its intentions to dispose
of the real property interests. The notifications can be accomplished
by placing the appropriate agencies on the States' disposal
notification listing.
(c) Real property interests may be retained by the STD to restore,
preserve, or improve the scenic beauty and environmental quality
adjacent to the transportation facility.
(d) Where the transfer of properties to other agencies at less than
fair market value for continued public use is clearly justified as in
the public interest and approved by the FHWA, the deed shall provide
for reversion of the property for failure to continue public ownership
and use. Where property is sold at fair market value no reversion
clause is required. Disposal actions described in 23 CFR 710.403(d)(1)
for less than fair market value require a public interest determination
and FHWA approval, consistent with that section.
Subpart E--Property Acquisition Alternatives
Sec. 710.501 Early acquisition.
(a) Real property acquisition. The State may initiate acquisition
of real property at any time it has the legal authority to do so based
on program or project considerations. The State may undertake early
acquisition for corridor preservation, access management, or other
purposes.
(b) Eligible costs. Acquisition costs incurred by a State agency
prior to executing a project agreement with the FHWA are not eligible
for Federal-aid reimbursement. However, such costs may become eligible
for use as a credit towards the State's share of a Federal-aid project
if the following conditions are met:
(1) The property was lawfully obtained by the State;
(2) The property was not land described in 23 U.S.C. 138;
(3) The property was acquired in accordance with the provisions of
49 CFR part 24;
(4) The State complied with the requirements of title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4);
(5) The State determined and the FHWA concurs that the action taken
did not influence the environmental assessment for the project,
including:
(i) The decision on need to construct the project;
(ii) The consideration of alternatives; and
(iii) The selection of the design or location; and
(6) The property will be incorporated into a Federal-aid project.
(7) The original project agreement covering the project was
executed on or after June 9, 1998.
(c) Reimbursement. In addition to meeting all provisions in
paragraph (b) of this section, the FHWA approval for reimbursement for
early acquisition costs, including costs associated with displacement
of owners or tenants, requires the STD to demonstrate that:
(1) Prior to acquisition, the STD made the certifications and
determinations required by 23 U.S.C. 108(c)(2)(C) and (D); and
(2) The STD obtained concurrence from the Environmental Protection
Agency in the findings made under paragraph (b)(5) of this section
regarding the NEPA process.
Sec. 710.503 Protective buying and hardship acquisition.
(a) General conditions. Prior to the STD obtaining final
environmental approval, the STD may request FHWA agreement to provide
reimbursement for advance acquisition of a particular parcel or a
limited number of parcels, to prevent imminent development and
increased costs on the preferred location (Protective Buying), or to
alleviate hardship to a property owner or owners on the preferred
location (Hardship Acquisition), provided the following conditions are
met:
(1) The project is included in the currently approved STIP;
(2) The STD has complied with applicable public involvement
requirements in 23 CFR parts 450 and 771;
(3) A determination has been completed for any property subject to
the provisions of 23 U.S.C. 138; and
(4) Procedures of the Advisory Council on Historic Preservation are
completed for properties subject to 16 U.S.C. 470(f) (historic
properties).
(b) Protective buying. The STD must clearly demonstrate that
development of the property is imminent and such development would
limit future transportation choices. A significant increase in cost may
be considered as an element justifying a protective purchase.
(c) Hardship acquisitions. The STD must accept and concur in a
request for a hardship acquisition based on a property owner's written
submission that:
(1) Supports the hardship acquisition by providing justification,
on the basis of health, safety or financial reasons, that remaining in
the property poses an undue hardship compared to others; and
(2) Documents an inability to sell the property because of the
impending project, at fair market value, within a time period that is
typical for properties not impacted by the impending project.
(d) Environmental decisions. Acquisition of property under this
section shall not influence the environmental assessment of a project,
including the decision relative to the need to construct the project or
the selection of a specific location.
Sec. 710.505 Real property donations.
(a) Donations of property being acquired. A non-governmental owner
whose real property is required for a Federal-aid project may donate
the property to the STD. Prior to accepting the property, the owner
must be informed by the agency of his/her right to receive just
compensation for the property. The owner shall also be informed of his/
her right to an appraisal of the property by a qualified appraiser,
unless the STD determines that an appraisal is unnecessary because the
valuation problem is uncomplicated and the fair market value is
estimated at no more than $2500, or the State appraisal waiver limit
approved by the FHWA, whichever is greater. All donations of property
received prior to the approval of the NEPA document must meet
environmental requirements as specified in 23 U.S.C. 323(d).
(b) Credit for donations. Donations of real property may be
credited to the
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State's matching share of the project. Credit to the State's matching
share for donated property shall be based on fair market value
established on the earlier of the following: either the date on which
the donation becomes effective, or the date on which equitable title to
the property vests in the State. The fair market value shall not
include increases or decreases in value caused by the project.
Donations may be made at anytime during the development of a project.
The STD shall develop sufficient documentation to indicate compliance
with paragraph (a) of this section and to support the amount of credit
applied. The total credit cannot exceed the State's pro-rata share
under the project agreement to which it is applied.
(c) Donations and conveyances in exchange for construction features
or services. A property owner may donate property in exchange for
construction features or services. The value of the donation is limited
to the fair market value of property donated less the cost of the
construction features or services. If the value of the donated property
exceeds the cost of the construction features or services, the
difference may be eligible for a credit to the State's share of project
costs.
Sec. 710.507 State and local contributions.
(a) General. Real property owned by State and local governments
incorporated within a federally funded project can be used as a credit
toward the State matching share of total project cost. A credit cannot
exceed the State's matching share required by the project agreement.
(b) Effective date. Credits can be applied to projects where the
initial project agreement is executed after June 9, 1998.
(c) Exemptions. Credits are not available for lands acquired with
any form of Federal financial assistance, or for lands already
incorporated and used for transportation purposes.
(d) State contributions. Real property acquired with State funds
and required for federally-assisted projects may support a credit
toward the non-Federal share of project costs. The STD must prepare
documentation supporting all credits including:
(1) A certification that the acquisition satisfied the conditions
in 23 CFR 710.501(b); and
(2) Justification of the value of credit applied. Acquisition costs
incurred by the State to acquire title can be used as justification for
the value of the real property.
(e) Credit for local government contributions. A contribution by a
unit of local government of real property which is offered for credit,
in connection with a project eligible for assistance under this title,
shall be credited against the State share of the project at fair market
value of the real property. Property may also be presented for project
use with the understanding that no credit for its use is sought. The
STD shall assure that the acquisition satisfied the conditions in 23
CFR 710.501(b), and that documentation justifies the amount of the
credit.
Sec. 710.509 Functional replacement of real property in public
ownership.
(a) General. When publicly owned real property, including land and/
or facilities, is to be acquired for a Federal-aid highway project, in
lieu of paying the fair market value for the real property, the State
may provide compensation by functionally replacing the publicly owned
real property with another facility which will provide equivalent
utility.
(b) Federal participation. Federal-aid funds may participate in
functional replacement costs only if:
(1) Functional replacement is permitted under State law and the STD
elects to provide it.
(2) The property in question is in public ownership and use.
(3) The replacement facility will be in public ownership and will
continue the public use function of the acquired facility.
(4) The State has informed the agency owning the property of its
right to an estimate of just compensation based on an appraisal of fair
market value and of the option to choose either just compensation or
functional replacement.
(5) The FHWA concurs in the STD determination that functional
replacement is in the public interest.
(6) The real property is not owned by a utility or railroad.
(c) Federal land transfers. Use of this section for functional
replacement of real property in Federal ownership shall be in
accordance with Federal land transfer provisions in subpart F of this
part.
(d) Limits upon participation. Federal-aid participation in the
costs of functional replacement are limited to costs which are actually
incurred in the replacement of the acquired land and/or facility and
are:
(1) Costs for facilities which do not represent increases in
capacity or betterments, except for those necessary to replace
utilities, to meet legal, regulatory, or similar requirements, or to
meet reasonable prevailing standards; and
(2) Costs for land to provide a site for the replacement facility.
(e) Procedures. When a State determines that payments providing for
functional replacement of public facilities are allowable under State
law, the State will incorporate within the State's ROW operating manual
full procedures covering review and oversight that will be applied to
such cases.
Sec. 710.511 Transportation enhancements.
(a) General. Section 133(b) (8) of title 23 of the United States
Code authorizes the expenditure of surface transportation funds for
transportation enhancement activities (TEA). Transportation enhancement
activities which involve the acquisition, management, and disposition
of real property, and the relocation of families, individuals, and
businesses, are governed by the general requirements of the Federal-aid
program found in titles 23 and 49 of the Code of Federal Regulations
(CFR), except as specified in paragraph (b)(3) of this section.
(b) Requirements. (1) Displacements for TEA are subject to the
Uniform Act.
(2) Acquisitions for TEA are subject to the Uniform Act except as
provided in paragraphs (b)(3), (b)(4), and (b)(5) of this section.
(3) Entities acquiring real property for TEA who lack the power of
eminent domain may comply with the Uniform Act by meeting the limited
requirements under 49 CFR 24.101(a)(2).
(4) The requirements of the Uniform Act do not apply when real
property acquired for a TEA was purchased from a third party by a
qualified conservation organization, and--
(i) The conservation organization is not acting on behalf of the
agency receiving TEA or other Federal-aid funds, and
(ii) There was no Federal approval of property acquisition prior to
the involvement of the conservation organization. [``Federal approval
of property acquisition'' means the date of the approval of the
environmental document or project authorization/agreement, whichever is
earlier. ``Involvement of the conservation organization'' means the
date the organization makes a legally binding offer to acquire a real
property interest, including an option to purchase, in the property.]
(5) When a qualified conservation organization acquires real
property for a project receiving Federal-aid highway funds on behalf of
an agency with eminent domain authority, the
[[Page 71296]]
requirements of the Uniform Act apply as if the agency had acquired the
property itself.
(6) When, subsequent to Federal approval of property acquisition, a
qualified conservation organization acquires real property for a
project receiving Federal-aid highway funds, and there will be no use
or recourse to the power of eminent domain, the limited requirements of
49 CFR 24.101(a)(2) apply.
(c) Property management. Real property acquired with TEA funds
shall be managed in accordance with the property management
requirements provided in subpart D of this part. Any use of the
property for purposes other than that for which the TEA funds were
provided must be consistent with the continuation of the original use.
When the original use of the real property is converted by sale or
lease to another use inconsistent with the original use, the STD shall
assure that the fair market value or rent is charged and the proceeds
reapplied to projects eligible under title 23 of the United States
Code.
Sec. 710.513 Environmental mitigation.
(a) The acquisition and maintenance of land for wetlands
mitigation, wetlands banking, natural habitat, or other appropriate
environmental mitigation is an eligible cost under the Federal-aid
program. FHWA participation in wetland mitigation sites and other
mitigation banks is governed by 23 CFR part 777.
(b) Environmental acquisitions or displacements by both public
agencies and private parties are covered by the Uniform Act when they
are the result of a program or project undertaken by a Federal agency
or one that receives Federal financial assistance. This includes real
property acquired for a wetland bank, or other environmentally related
purpose, if it is to be used to mitigate impacts created by a Federal-
aid highway project.
Subpart F--Federal Assistance Programs
Sec. 710.601 Federal land transfer.
(a) The provisions of this subpart apply to any project undertaken
with funds for the National Highway System. When the FHWA determines
that a strong Federal transportation interest exists, these provisions
may also be applied to highway projects that are eligible for Federal-
aid under Chapters 1 and 2 of title 23, of the United States Code, and
to highway-related transfers that are requested by a State in
conjunction with a military base closure under the Defense Base Closure
and Realignment Act of 1990 (Public Law 101-510, 104 Stat. 1808, as
amended).
(b) Sections 107(d) and 317 of title 23, of the United States Code
provide for the transfer of lands or interests in lands owned by the
United States to an STD or its nominee for highway purposes.
(c) The STD may file an application with the FHWA, or can make
application directly to the land-owning agency if the land-owning
agency has its own authority for granting interests in land.
(d) Applications under this section shall include the following
information:
(1) The purpose for which the lands are to be used;
(2) The estate or interest in the land required for the project;
(3) The Federal-aid project number or other appropriate references;
(4) The name of the Federal agency exercising jurisdiction over the
land and identity of the installation or activity in possession of the
land;
(5) A map showing the survey of the lands to be acquired;
(6) A legal description of the lands desired; and
(7) A statement of compliance with the National Environmental
Policy Act of 1969 (42 U.S.C. 4332, et seq.) and any other applicable
Federal environmental laws, including the National Historic
Preservation Act (16 U.S.C. 470(f)), and 23 U.S.C. 138.
(e) If the FHWA concurs in the need for the transfer, the land-
owning agency will be notified and a right-of-entry requested. The
land-owning agency shall have a period of four months in which to
designate conditions necessary for the adequate protection and
utilization of the reserve or to certify that the proposed
appropriation is contrary to the public interest or inconsistent with
the purposes for which such land or materials have been reserved. The
FHWA may extend the four-month reply period at the timely request of
the land-owning agency for good cause.
(f) Deeds for conveyance of lands or interests in lands owned by
the United States shall be prepared by the STD and certified by an
attorney licensed within the State as being legally sufficient. Such
deeds shall contain the clauses required by the FHWA and 49 CFR
21.7(a)(2). After the STD prepares the deed, it will submit the
proposed deed with the certification to the FHWA for review and
execution.
(g) Following execution, the STD shall record the deed in the
appropriate land record office and so advise the FHWA and the concerned
agency.
(h) When the need for the interest acquired under this subpart no
longer exists, the STD must restore the land to the condition which
existed prior to the transfer and must give notice to the FHWA and to
the concerned Federal agency that such interest will immediately revert
to the control of the Federal agency from which it was appropriated or
to its assigns. Alternative arrangements may be made for the sale or
reversion or restoration of the lands no longer required as part of a
memorandum of understanding or separate agreement.
Sec. 710.603 Direct Federal acquisition.
(a) The provisions of this section apply to any land and or
improvements needed in connection with any project on the Interstate
System, defense access roads, public lands highways, park roads,
parkways, Indian reservation roads, and projects performed by the FHWA
in cooperation with Federal and State agencies. For projects on the
Interstate System and defense access roads, the provisions of this part
are applicable only where the State is unable to acquire the required
right-of-way or is unable to obtain possession with sufficient
promptness.
(b) To enable the FHWA to make the necessary finding to proceed
with the acquisition of the rights-of-way, the STDs written application
for Federal acquisition shall include:
(1) Justification for the Federal acquisition of the lands or
interests in lands;
(2) The date the FHWA authorized the STD to commence right-of-way
acquisition, the date of the project agreement and a statement that the
agreement contains the provisions required by 25 U.S.C. 111;
(3) The necessity for acquisition of the particular lands under
request;
(4) A statement of the specific interests in lands to be acquired,
including the proposed treatment of control of access;
(5) The STDs intentions with respect to the acquisition,
subordination, or exclusion of outstanding interests, such as minerals
and utility easements, in connection with the proposed acquisition;
(6) A statement on compliance with the provisions of part 771 of
this chapter;
(7) Adequate legal descriptions, plats, appraisals, and title data;
(8) An outline of the negotiations which have been conducted by the
STD with landowners;
(9) An agreement that the STD will pay its pro rata share of costs
incurred in the acquisition of, or the attempt to acquire rights-of-
way; and
[[Page 71297]]
(10) A statement that assures compliance with the applicable
provisions of the Uniform Act. (42 U.S.C. 4601, et seq.)
(c) If the landowner tenders a right-of-entry or other right of
possession document required by State law any time before the FHWA
makes a determination that the STD is unable to acquire the rights-of-
way with sufficient promptness, the STD is legally obligated to accept
such tender and the FHWA may not proceed with Federal acquisition.
(d) If the STD obtains title to a parcel prior to the filing of the
Declaration of Taking, it shall notify the FHWA and immediately furnish
the appropriate U.S. Attorney with a disclaimer together with a request
that the action against the landowner be dismissed (ex parte) from the
proceeding and the estimated just compensation deposited into the
registry of the court for the affected parcel be withdrawn after the
appropriate motions are approved by the court.
(e) When the United States obtains a court order granting
possession of the real property, the FHWA shall authorize the STD to
take over supervision of the property. The authorization shall include,
but need not be limited to, the following:
(1) The right to take possession of unoccupied properties;
(2) The right to give 90 days notice to owners to vacate occupied
properties and the right to take possession of such properties when
vacated;
(3) The right to permit continued occupancy of a property until it
is required for construction and, in those instances where such
occupancy is to be for a substantial period of time, the right to enter
into rental agreements, as appropriate, to protect the public interest;
(4) The right to request assistance from the U.S. Attorney in
obtaining physical possession where an owner declines to comply with
the court order of possession;
(5) The right to clear improvements and other obstructions;
(6) Instructions that the U.S. Attorney be notified prior to actual
clearing, so as to afford him an opportunity to view the lands and
improvements, to obtain appropriate photographs, and to secure
appraisals in connection with the preparation of the case for trial;
(7) The requirement for appropriate credits to the United States
for any net salvage or net rentals obtained by the State, as in the
case of right-of-way acquired by the State for Federal-aid projects;
and
(8) Instructions that the authority granted to the STD is not
intended to preclude the U.S. Attorney from taking action, before the
STD has made arrangements for removal, to reach a settlement with the
former owner which would include provision for removal.
(f) If the Federal Government initiates condemnation proceedings
against the owner of real property in a Federal court and the final
judgment is that the Federal agency cannot acquire the real property by
condemnation, or the proceeding is abandoned, the court is required by
law to award such a sum to the owner of the real property that in the
opinion of the court provides reimbursement for the owner's reasonable
costs, disbursements, and expenses, including reasonable attorney,
appraisal, and engineering fees, actually incurred because of the
condemnation proceedings.
(g) As soon as practicable after the date of payment of the
purchase price or the date of deposit in court of funds to satisfy the
award of the compensation in a Federal condemnation, the FHWA shall
reimburse the owner to the extent deemed fair and reasonable, the
following costs:
(1) Recording fees, transfer taxes, and similar expenses incidental
to conveying such real property to the United States;
(2) Penalty costs for prepayment of any preexisting recorded
mortgage entered into in good faith encumbering such real property; and
(3) The pro rata portion of real property taxes paid which are
allocable to a period subsequent to the date of vesting title in the
United States or the effective date of possession, whichever is the
earlier.
(h) The lands or interests in lands, acquired under this section,
will be conveyed to the State or the appropriate political subdivision
thereof, upon agreement by the STD, or said subdivision to:
(1) Maintain control of access where applicable;
(2) Accept title thereto;
(3) Maintain the project constructed thereon;
(4) Abide by any conditions which may set forth in the deed; and
(5) Notify the FHWA at the appropriate time that all the conditions
have been performed by the State.
(i) The deed from the United States to the State, or to the
appropriate political subdivision thereof, shall include the conditions
required by 49 CFR part 21. The deed shall be recorded by the grantee
in the appropriate land record office, and the FHWA shall be advised of
the recording date.
Issued on: December 13, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 99-32908 Filed 12-20-99; 8:45 am]
BILLING CODE 4910-22-P
