[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regulatory parts to remove outdated, redundant, and unnecessary 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:

------------------------------------------------------------------------
      Old part, subpart or section         New part, subpart or section
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

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

[[Page 71295]]

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