[Federal Register: April 30, 2009 (Volume 74, Number 82)]
[Notices]
[Page 20017-20019]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap09-129]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket Number: FTA-2008-0054]
Notice of Availability of Final Guidance on the Application of 49
U.S.C. 5324(c), Railroad Corridor Preservation
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of availability of guidance.
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SUMMARY: By this notice the FTA announces the availability of final
guidance on the application of a provision of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU) concerning the acquisition of railroad right-of-way for
transit projects. The guidance explains FTA's interpretation of the
provision, which allows the acquisition of pre-existing railroad right-
of-way, under certain conditions, before the completion of the
environmental review for a transit project that would use the right-of-
way. On December 22, 2008, FTA announced in the Federal Register the
availability of the draft guidance and requested public comment.
Several comments were received, and responses thereto are presented in
this notice. The final guidance is available on the U.S. Government
electronic docket site and on the FTA Web site.
DATES: This final guidance is effective April 30, 2009.
ADDRESSES: The final guidance is available in the U.S. Government's
electronic docket site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov under docket
number FTA-2008-0054 and on the FTA Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fta.dot.gov
under ``Planning and Environment.''
FOR FURTHER INFORMATION CONTACT: Joseph Ossi, Office of Planning and
Environment (TPE-30), 202-366-1613, or Christopher Van Wyk, Office of
Chief Counsel (TCC-30), 202-366-1733, Federal Transit Administration,
U.S. Department of Transportation, 1200 New Jersey Avenue, SE.,
Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Background
Section 3024 of SAFETEA-LU added a new provision at 49 U.S.C.
5324(c) that allows a grant applicant, under conditions that may be
specified by the Secretary of Transportation (the ``Secretary''), to
acquire existing railroad right-of-way prior to the completion of the
environmental review of any transit project that will eventually use
that right-of-way. Pursuant to authority delegated by the Secretary,
FTA has developed guidance that would (1) specify the conditions under
which this provision may be used and (2) give guidance on applying that
provision to specific situations.
Comments
On December 22, 2008, FTA announced in the Federal Register (73 FR
78424) the availability of the draft guidance and requested public
comment. The notice of availability of the draft guidance contained a
deadline of January 21, 2009, for public comment, but due to delays in
posting the draft guidance to the docket at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov
and to FTA's Web site, FTA posted a notice to the docket on January 2,
2009, stating that all comments submitted by February 1, 2009, will be
treated as timely and that FTA would consider comments received after
that date to the extent possible. As of the date of issuance of this
notice of availability of the final guidance, all comments received in
the docket have been considered. Comments were received from five
transit agencies and one unaffiliated individual. The comments
received, FTA's responses, and the resulting changes made in the
guidance are discussed below.
Some commenters pointed out that the draft guidance was not posted
in a timely manner, and, as previously stated, FTA responded by
extending the comment period. Notice of the extension was included in
the docket.
A commenter suggested that FTA change its environmental impact and
related procedures in Title 23 of the Code of Federal Regulations at
part 771 (23 CFR part 771) to provide a categorical exclusion for the
acquisition of any real property ``in advance of any project for which
NEPA clearance will later be sought'' as long as the real property is
``not subject to changed use at the time of acquisition.'' This
suggestion is beyond the scope of this action which is to provide
guidance on the application of the provision at 49 U.S.C. 5324(c) on
railroad corridor preservation. FTA notes that a final rulemaking
published by FTA in the Federal Register on March 24, 2009 (74 FR
12518) did in fact create a categorical exclusion for the acquisition
of railroad ROW consistent with 49 U.S.C. 5324(c). This revised
environmental rule at 23 CFR part 771 is effective April 23, 2009.
One commenter expressed concern that the guidance applies only to
pre-existing railroad ROW and not to all ROW needed for a future
transit project. This commenter suggested that FTA's approach would
``tip'' the government's hand on current projects being explored, give
landowners an opportunity to change their property in some way, and
increase its value prior to its acquisition for the project. FTA
decided not to implement this comment because the statute explicitly
applies only to railroad ROW. Furthermore, if a property owner were to
attempt to initiate some form of development on the property in order
to ``change the property for economic gain'' in anticipation of an FTA-
assisted project, FTA has the authority to approve a protective
acquisition of that property in accordance with 23 CFR 771.117(d)(12).
The provision on railroad ROW preservation at 49 U.S.C. 5324(c) does
not change the existing authority to use protective acquisition when
there is an imminent threat of development.
One commenter objected to the ``extra restrictions'' contained in
the guidance for ROW acquisitions. FTA believes that the restrictions
in this guidance are the minimum necessary to comply with Federal laws
and to ensure that Federal funds entrusted to FTA are spent for the
purpose that Congress intended.
A commenter recommended that the guidance be changed to include
railroad ROW that has lost its visual identity over the years as a
railroad ROW and has been generally incorporated into background land
uses. FTA has not incorporated this change into the final guidance. The
premise in preserving a railroad corridor for a future transit project
without first considering the environmental impacts of the future
transit project is that, in FTA's experience, existing rail corridors
have been the least environmentally damaging location for transit
projects. Where a former railroad corridor has been incorporated into
the background land uses, that premise is not valid.
One commenter suggested that the guidance be revised to apply to
the acquisition of any property owned by a railroad company, without
regard to the configuration of the property or its contiguity to a
linear railroad ROW. FTA has decided not to follow this suggestion. The
statutory provision is titled ``Railroad Corridor Preservation'' and
random parcels of land that are not primarily linear in configuration
would not qualify as ``railroad corridors.''
A commenting agency stated: ``We are adamantly opposed to an FTA
unilateral determination of a time horizon'' for building the transit
project on the railroad ROW acquired with FTA assistance. Another late-
commenting agency expressed the same sentiment. FTA is responsible for
ensuring that Federal transit funds result in transit
[[Page 20018]]
improvements, but FTA did not mean to imply that the time horizon for
building the transit project would be arbitrarily dictated. The draft
guidance indicted that long-range metropolitan transportation plan
would be considered before setting the time horizon. To be clearer on
this point, FTA has added that the decision on the time horizon would
be made ``in consultation with the applicant.'' FTA expects to be
flexible in extending the time horizon as long as there is a reasonable
assurance that a transit project will ultimately be built on the
railroad ROW.
A commenter pointed out that an acquisition of a railroad ROW may
take the form of a fee-simple acquisition, the acquisition of a long-
term easement within the railroad ROW alongside the existing tracks, or
the long-term acquisition of trackage rights, i.e., the right to
operate on existing tracks. Although the commenter assumed that the
guidance applies to all forms of acquisition, FTA decided to state
explicitly in the guidance that it applies to all forms of acquisition
and included a ``long-term lease'' to the forms mentioned by the
commenter. In coming to this conclusion, FTA was guided by Federal
transit law, which at 49 U.S.C. 5302(a)(1)(A) broadly includes the
acquisition of trackage rights within the definition of ``Capital
Project.'' Noting again that the statutory provision is titled
``Railroad Corridor Preservation,'' FTA decided that the term of
anything less than a fee-simple acquisition must be of sufficient
duration to cover the time needed to build a transit project on the ROW
plus the useful life of that transit facility. The guidance notes that
FTA Circular 5010.1D, Grants Management Requirements, provides that a
railroad structure has a minimum useful life of 50 years, and most
other transit buildings and facilities (concrete, steel, and frame
construction) have a minimum useful life of 40 years.
One commenter made the following statement concerning the proposed
guidance: ``Section 10 of the [draft] guidance is somewhat confusing
because if work is to be performed on the corridor, such as
remediation, it would likely be part of the project that would require
later approval. It should be eliminated leaving only the clear
requirements of section 11. Maintenance of existing conditions would
not generally be a part of the Federal undertaking.'' FTA disagrees.
Prior to or during the acquisition of real property, an applicant's due
diligence may discover contamination along the ROW that poses a health
or environmental hazard. Immediate remediation of the problem in
accordance with applicable State law would be appropriate in that
instance. Waiting for the future transit project on the ROW to deal
with a contamination problem may greatly increase the risk of harm to
the environment or the general public, as well as the applicant's
potential liability. FTA agrees that in most cases contamination would
not pose an immediate, severe threat and could be addressed during the
later construction of a transit facility on the ROW. A minor rewording
of section 10 of the draft guidance to this effect has been made. The
subject section is section 9 in the final guidance as a result of other
edits.
If there are railroad buildings or structures along the ROW that
are eligible for the National Register of Historic Places and whose
ownership would change with the acquisition of the ROW by the
applicant, steps will need to be taken to ensure compliance with
Section 106 of the National Historic Preservation Act and its
implementing regulation at 36 CFR Part 800. One example of an adverse
effect under that regulation is the neglect of a historic property, so
compliance may entail the maintenance of the historic structures and
buildings until such time as further action is taken when the future
transit project on the ROW is developed. ``Maintenance of existing
conditions'' during the interim would be required as ``part of the
Federal undertaking.''
One commenter asked for clarification of what project or project(s)
must be in the State Transportation Improvement Program (STIP) at the
time of FTA's approval of the acquisition of the ROW. The guidance
states that the acquisition of the ROW and the later transit project on
that ROW are separate actions for planning and NEPA purposes and that
only the acquisition must be in the STIP at the time of FTA's approval
of the acquisition. The transit project on the ROW must be in the STIP
at the time of FTA's approval of that project (if it is FTA-funded).
FTA slightly revised the wording in the guidance in an attempt to make
this point more clearly.
One commenter asked that the guidance discuss at length the
application of the Uniform Relocation and Real Property Acquisition
Policies Act (Uniform Act), including its relocation requirements, for
each of three acquisition types previously discussed (i.e., fee simple,
easement, and trackage rights). FTA has decided that this is outside
the scope of this guidance. The requirements of the Uniform Act are
adequately covered in its implementing regulation (49 CFR Part 24).
Section 6 of the guidance was intended as a reminder that the Uniform
Act generally applies when the action involves Federal funding, but it
was not intended to delve into the details of its applicability and
requirements. FTA changed the wording of Section 6 to avoid the
apparent implication that all requirements of the Uniform Act would
apply to all types of acquisition.
One commenter suggested that appropriate ROW acquisition
regulations would avoid the intense scrutiny that is generated by
projects that must use eminent domain to acquire needed land. FTA has
decided that the comment is outside the scope of this guidance on 49
U.S.C. 5324(c). The Uniform Act and its implementing regulation (49 CFR
Part 24) are not the subject of this guidance.
One commenter asked that the guidance clarify that the value of the
railroad ROW acquired in accordance with this guidance with Federal
funds other than New/Small Starts funds may be counted as ``other
Federal'' funds when computing the various funding shares of the future
New/Small Starts project that uses the ROW. FTA considered this
suggestion and decided that these New Starts and Small Starts issues
are beyond the scope of this guidance on railroad ROW acquisition. FTA
intends to resolve issues related to New and Small Starts in accordance
with the pertinent policies and statutory requirements in effect at the
time the issue arises. FTA's thinking was influenced by the fact that
the current authorization of the Federal transit program ends on
September 30, 2009. Therefore, FTA deleted from the final guidance two
provisions of the proposed guidance related to New and Small Starts,
which are: (1) The provision that is the subject of the instigating
comment and that said that railroad ROW acquired with FTA financial
assistance would not be counted as in-kind local match for a New/Small
Starts project built on that ROW; and (2) the provision which said that
FTA financial participation in the acquisition of a railroad ROW would
have no bearing whatsoever on the New/Small Starts evaluation of a
project proposed to be built on that ROW.
The final guidance is available in the U.S. Government's electronic
docket site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov under docket number FTA-2008-
0054 and on the FTA Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fta.dot.gov under ``Planning
and Environment.''
[[Page 20019]]
Issued on: April 24, 2009.
Matthew J. Welbes,
Acting Deputy Administrator.
[FR Doc. E9-9977 Filed 4-29-09; 8:45 am]
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