[Federal Register Volume 74, Number 82 (Thursday, April 30, 2009)]
[Notices]
[Pages 20017-20019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9977]



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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket Number: FTA-2008-0054]


Notice of Availability of Final Guidance on the Application of 49 
U.S.C. 5324(c), Railroad Corridor Preservation

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of availability of guidance.

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SUMMARY: By this notice the FTA announces the availability of final 
guidance on the application of a provision of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU) concerning the acquisition of railroad right-of-way for 
transit projects. The guidance explains FTA's interpretation of the 
provision, which allows the acquisition of pre-existing railroad right-
of-way, under certain conditions, before the completion of the 
environmental review for a transit project that would use the right-of-
way. On December 22, 2008, FTA announced in the Federal Register the 
availability of the draft guidance and requested public comment. 
Several comments were received, and responses thereto are presented in 
this notice. The final guidance is available on the U.S. Government 
electronic docket site and on the FTA Web site.

DATES: This final guidance is effective April 30, 2009.

ADDRESSES: The final guidance is available in the U.S. Government's 
electronic docket site at http://www.regulations.gov under docket 
number FTA-2008-0054 and on the FTA Web site at http://www.fta.dot.gov 
under ``Planning and Environment.''

FOR FURTHER INFORMATION CONTACT: Joseph Ossi, Office of Planning and 
Environment (TPE-30), 202-366-1613, or Christopher Van Wyk, Office of 
Chief Counsel (TCC-30), 202-366-1733, Federal Transit Administration, 
U.S. Department of Transportation, 1200 New Jersey Avenue, SE., 
Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Background

    Section 3024 of SAFETEA-LU added a new provision at 49 U.S.C. 
5324(c) that allows a grant applicant, under conditions that may be 
specified by the Secretary of Transportation (the ``Secretary''), to 
acquire existing railroad right-of-way prior to the completion of the 
environmental review of any transit project that will eventually use 
that right-of-way. Pursuant to authority delegated by the Secretary, 
FTA has developed guidance that would (1) specify the conditions under 
which this provision may be used and (2) give guidance on applying that 
provision to specific situations.

Comments

    On December 22, 2008, FTA announced in the Federal Register (73 FR 
78424) the availability of the draft guidance and requested public 
comment. The notice of availability of the draft guidance contained a 
deadline of January 21, 2009, for public comment, but due to delays in 
posting the draft guidance to the docket at http://www.regulations.gov 
and to FTA's Web site, FTA posted a notice to the docket on January 2, 
2009, stating that all comments submitted by February 1, 2009, will be 
treated as timely and that FTA would consider comments received after 
that date to the extent possible. As of the date of issuance of this 
notice of availability of the final guidance, all comments received in 
the docket have been considered. Comments were received from five 
transit agencies and one unaffiliated individual. The comments 
received, FTA's responses, and the resulting changes made in the 
guidance are discussed below.
    Some commenters pointed out that the draft guidance was not posted 
in a timely manner, and, as previously stated, FTA responded by 
extending the comment period. Notice of the extension was included in 
the docket.
    A commenter suggested that FTA change its environmental impact and 
related procedures in Title 23 of the Code of Federal Regulations at 
part 771 (23 CFR part 771) to provide a categorical exclusion for the 
acquisition of any real property ``in advance of any project for which 
NEPA clearance will later be sought'' as long as the real property is 
``not subject to changed use at the time of acquisition.'' This 
suggestion is beyond the scope of this action which is to provide 
guidance on the application of the provision at 49 U.S.C. 5324(c) on 
railroad corridor preservation. FTA notes that a final rulemaking 
published by FTA in the Federal Register on March 24, 2009 (74 FR 
12518) did in fact create a categorical exclusion for the acquisition 
of railroad ROW consistent with 49 U.S.C. 5324(c). This revised 
environmental rule at 23 CFR part 771 is effective April 23, 2009.
    One commenter expressed concern that the guidance applies only to 
pre-existing railroad ROW and not to all ROW needed for a future 
transit project. This commenter suggested that FTA's approach would 
``tip'' the government's hand on current projects being explored, give 
landowners an opportunity to change their property in some way, and 
increase its value prior to its acquisition for the project. FTA 
decided not to implement this comment because the statute explicitly 
applies only to railroad ROW. Furthermore, if a property owner were to 
attempt to initiate some form of development on the property in order 
to ``change the property for economic gain'' in anticipation of an FTA-
assisted project, FTA has the authority to approve a protective 
acquisition of that property in accordance with 23 CFR 771.117(d)(12). 
The provision on railroad ROW preservation at 49 U.S.C. 5324(c) does 
not change the existing authority to use protective acquisition when 
there is an imminent threat of development.
    One commenter objected to the ``extra restrictions'' contained in 
the guidance for ROW acquisitions. FTA believes that the restrictions 
in this guidance are the minimum necessary to comply with Federal laws 
and to ensure that Federal funds entrusted to FTA are spent for the 
purpose that Congress intended.
    A commenter recommended that the guidance be changed to include 
railroad ROW that has lost its visual identity over the years as a 
railroad ROW and has been generally incorporated into background land 
uses. FTA has not incorporated this change into the final guidance. The 
premise in preserving a railroad corridor for a future transit project 
without first considering the environmental impacts of the future 
transit project is that, in FTA's experience, existing rail corridors 
have been the least environmentally damaging location for transit 
projects. Where a former railroad corridor has been incorporated into 
the background land uses, that premise is not valid.
    One commenter suggested that the guidance be revised to apply to 
the acquisition of any property owned by a railroad company, without 
regard to the configuration of the property or its contiguity to a 
linear railroad ROW. FTA has decided not to follow this suggestion. The 
statutory provision is titled ``Railroad Corridor Preservation'' and 
random parcels of land that are not primarily linear in configuration 
would not qualify as ``railroad corridors.''
    A commenting agency stated: ``We are adamantly opposed to an FTA 
unilateral determination of a time horizon'' for building the transit 
project on the railroad ROW acquired with FTA assistance. Another late-
commenting agency expressed the same sentiment. FTA is responsible for 
ensuring that Federal transit funds result in transit

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improvements, but FTA did not mean to imply that the time horizon for 
building the transit project would be arbitrarily dictated. The draft 
guidance indicted that long-range metropolitan transportation plan 
would be considered before setting the time horizon. To be clearer on 
this point, FTA has added that the decision on the time horizon would 
be made ``in consultation with the applicant.'' FTA expects to be 
flexible in extending the time horizon as long as there is a reasonable 
assurance that a transit project will ultimately be built on the 
railroad ROW.
    A commenter pointed out that an acquisition of a railroad ROW may 
take the form of a fee-simple acquisition, the acquisition of a long-
term easement within the railroad ROW alongside the existing tracks, or 
the long-term acquisition of trackage rights, i.e., the right to 
operate on existing tracks. Although the commenter assumed that the 
guidance applies to all forms of acquisition, FTA decided to state 
explicitly in the guidance that it applies to all forms of acquisition 
and included a ``long-term lease'' to the forms mentioned by the 
commenter. In coming to this conclusion, FTA was guided by Federal 
transit law, which at 49 U.S.C. 5302(a)(1)(A) broadly includes the 
acquisition of trackage rights within the definition of ``Capital 
Project.'' Noting again that the statutory provision is titled 
``Railroad Corridor Preservation,'' FTA decided that the term of 
anything less than a fee-simple acquisition must be of sufficient 
duration to cover the time needed to build a transit project on the ROW 
plus the useful life of that transit facility. The guidance notes that 
FTA Circular 5010.1D, Grants Management Requirements, provides that a 
railroad structure has a minimum useful life of 50 years, and most 
other transit buildings and facilities (concrete, steel, and frame 
construction) have a minimum useful life of 40 years.
    One commenter made the following statement concerning the proposed 
guidance: ``Section 10 of the [draft] guidance is somewhat confusing 
because if work is to be performed on the corridor, such as 
remediation, it would likely be part of the project that would require 
later approval. It should be eliminated leaving only the clear 
requirements of section 11. Maintenance of existing conditions would 
not generally be a part of the Federal undertaking.'' FTA disagrees. 
Prior to or during the acquisition of real property, an applicant's due 
diligence may discover contamination along the ROW that poses a health 
or environmental hazard. Immediate remediation of the problem in 
accordance with applicable State law would be appropriate in that 
instance. Waiting for the future transit project on the ROW to deal 
with a contamination problem may greatly increase the risk of harm to 
the environment or the general public, as well as the applicant's 
potential liability. FTA agrees that in most cases contamination would 
not pose an immediate, severe threat and could be addressed during the 
later construction of a transit facility on the ROW. A minor rewording 
of section 10 of the draft guidance to this effect has been made. The 
subject section is section 9 in the final guidance as a result of other 
edits.
    If there are railroad buildings or structures along the ROW that 
are eligible for the National Register of Historic Places and whose 
ownership would change with the acquisition of the ROW by the 
applicant, steps will need to be taken to ensure compliance with 
Section 106 of the National Historic Preservation Act and its 
implementing regulation at 36 CFR Part 800. One example of an adverse 
effect under that regulation is the neglect of a historic property, so 
compliance may entail the maintenance of the historic structures and 
buildings until such time as further action is taken when the future 
transit project on the ROW is developed. ``Maintenance of existing 
conditions'' during the interim would be required as ``part of the 
Federal undertaking.''
    One commenter asked for clarification of what project or project(s) 
must be in the State Transportation Improvement Program (STIP) at the 
time of FTA's approval of the acquisition of the ROW. The guidance 
states that the acquisition of the ROW and the later transit project on 
that ROW are separate actions for planning and NEPA purposes and that 
only the acquisition must be in the STIP at the time of FTA's approval 
of the acquisition. The transit project on the ROW must be in the STIP 
at the time of FTA's approval of that project (if it is FTA-funded). 
FTA slightly revised the wording in the guidance in an attempt to make 
this point more clearly.
    One commenter asked that the guidance discuss at length the 
application of the Uniform Relocation and Real Property Acquisition 
Policies Act (Uniform Act), including its relocation requirements, for 
each of three acquisition types previously discussed (i.e., fee simple, 
easement, and trackage rights). FTA has decided that this is outside 
the scope of this guidance. The requirements of the Uniform Act are 
adequately covered in its implementing regulation (49 CFR Part 24). 
Section 6 of the guidance was intended as a reminder that the Uniform 
Act generally applies when the action involves Federal funding, but it 
was not intended to delve into the details of its applicability and 
requirements. FTA changed the wording of Section 6 to avoid the 
apparent implication that all requirements of the Uniform Act would 
apply to all types of acquisition.
    One commenter suggested that appropriate ROW acquisition 
regulations would avoid the intense scrutiny that is generated by 
projects that must use eminent domain to acquire needed land. FTA has 
decided that the comment is outside the scope of this guidance on 49 
U.S.C. 5324(c). The Uniform Act and its implementing regulation (49 CFR 
Part 24) are not the subject of this guidance.
    One commenter asked that the guidance clarify that the value of the 
railroad ROW acquired in accordance with this guidance with Federal 
funds other than New/Small Starts funds may be counted as ``other 
Federal'' funds when computing the various funding shares of the future 
New/Small Starts project that uses the ROW. FTA considered this 
suggestion and decided that these New Starts and Small Starts issues 
are beyond the scope of this guidance on railroad ROW acquisition. FTA 
intends to resolve issues related to New and Small Starts in accordance 
with the pertinent policies and statutory requirements in effect at the 
time the issue arises. FTA's thinking was influenced by the fact that 
the current authorization of the Federal transit program ends on 
September 30, 2009. Therefore, FTA deleted from the final guidance two 
provisions of the proposed guidance related to New and Small Starts, 
which are: (1) The provision that is the subject of the instigating 
comment and that said that railroad ROW acquired with FTA financial 
assistance would not be counted as in-kind local match for a New/Small 
Starts project built on that ROW; and (2) the provision which said that 
FTA financial participation in the acquisition of a railroad ROW would 
have no bearing whatsoever on the New/Small Starts evaluation of a 
project proposed to be built on that ROW.
    The final guidance is available in the U.S. Government's electronic 
docket site at http://www.regulations.gov under docket number FTA-2008-
0054 and on the FTA Web site at http://www.fta.dot.gov under ``Planning 
and Environment.''


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    Issued on: April 24, 2009.
Matthew J. Welbes,
Acting Deputy Administrator.
[FR Doc. E9-9977 Filed 4-29-09; 8:45 am]
BILLING CODE 4910-57-P