[Federal Register Volume 79, Number 218 (Wednesday, November 12, 2014)]
[Notices]
[Pages 67238-67239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26705]
[[Page 67238]]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket Number: FTA-2013-0019]
Notice of Availability of Final Guidance on the Application of
United States Code on Corridor Preservation
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of availability of final guidance.
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SUMMARY: The FTA announces the availability of final guidance on the
application of a provision of the Moving Ahead for Progress in the 21st
Century Act (MAP-21) regarding corridor preservation for future transit
projects. MAP-21 modified Federal transit law by amending a previously
existing provision such that FTA can now, under certain conditions,
assist in the acquisition of both non-railroad and railroad right-of-
way (ROW) for corridor preservation before the environmental review
process under the National Environmental Policy Act (NEPA) is complete
for any transit project that could eventually use that ROW or could
later receive FTA financial assistance. The final guidance defines the
type of ROW to which this MAP-21 provision applies and explains the
conditions and requirements pertaining to its application. On December
11, 2013, FTA announced in the Federal Register under docket number
FTA-2013-0019 the availability of draft guidance and requested public
comment. FTA received six comment letters and presents its responses to
those comments in this notice.
DATES: This final guidance is effective on November 12, 2014.
ADDRESSES: The final guidance is available in the U.S. Government's
electronic docket site at http://www.regulations.gov under docket
number FTA-2013-0019 and on the FTA Web site at http://www.fta.dot.gov.
FOR FURTHER INFORMATION CONTACT: Nancy-Ellen Zusman, Office of Chief
Counsel, (312) 353-2577 or Terence Plaskon, Office of Human and Natural
Environment, (202) 366-0442. FTA is located at 1200 New Jersey Avenue
SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:30
p.m., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
Section 20016 of the Moving Ahead for Progress in the 21st Century
Act (MAP-21) amended Federal transit law by revising a pre-existing
provision and moving it to 49 U.S.C. 5323(q) such that FTA can now,
under certain conditions, assist in the acquisition of non-railroad
right-of-way (ROW) before the completion of the National Environmental
Policy Act (NEPA) environmental review process for any project that
could eventually use that ROW or later receive FTA financial
assistance. The ``environmental review process'' is defined in 23
U.S.C. 139(a)(3). The new provision of MAP-21, which became effective
on October 1, 2012, states:
(q) CORRIDOR PRESERVATION.--
(1) IN GENERAL.--The Secretary may assist a recipient in
acquiring right-of-way before the completion of the environmental
reviews for any project that may use the right-of-way if the
acquisition is otherwise permitted under Federal law. The Secretary
may establish restrictions on such an acquisition as the Secretary
determines to be necessary and appropriate.
(2) ENVIRONMENTAL REVIEWS.--Right-of-way acquired under this
subsection may not be developed in anticipation of the project until
all required environmental reviews for the project have been
completed.
Prior to October 1, 2012, FTA allowed this type of corridor
preservation only for pre-existing railroad ROW to be used in a future
transit project, pursuant to the former provision of Federal transit
law that was modified and moved by MAP-21. MAP-21 removed the word
``railroad'' from the provision formerly in 49 U.S.C. 5324(c) and moved
it to 49 U.S.C. 5323(q). Pursuant to authority delegated by the
Secretary, FTA developed guidance that would (1) specify the conditions
under which this provision may be used and (2) discuss the application
of that provision to specific situations.
Comments
On December 11, 2013, FTA announced in the Federal Register (78 FR
75446) the availability of the draft guidance and requested comment on
it. The notice of availability of the draft guidance contained a
deadline of January 10, 2014, for comment. As of the date of issuance
of this notice of availability of the final guidance, FTA considered
all comments received in the docket. FTA received comments from two
trade associations, two transit agencies, and two members of the
public. Commenters provided 21 individual comments on the draft
guidance. FTA organized these comments by topic. This notice discusses
the comments FTA received, provides FTA's responses to those comments,
and identifies resulting changes FTA made to the guidance.
Three commenters provided general comments that were supportive of
the draft guidance and requested no changes. FTA notes these comments
for the record.
Two commenters supported FTA's definition of ROW in the context of
corridor preservation and thought its broad scope had advantages. FTA
notes these comments for the record.
Three commenters questioned FTA's position in the draft guidance
that once the environmental review of a proposed project is initiated
corridor preservation would not be appropriate and FTA would not assist
in any such acquisition. Commenters stated that FTA's guidance should
allow ROW acquisition at any time before the completion of NEPA review.
FTA considered these comments, agrees with this recommendation, and
revised the guidance to reflect this. As a safeguard and to remedy any
concern about prejudicing the NEPA process, FTA notes in the final
guidance that a project sponsor must certify that the ROW acquisition
will not limit the choice of reasonable alternatives for the project or
otherwise influence the decision on any approval required for the
project and would not prevent the lead agencies from making an
impartial decision as to whether to accept an alternative that is being
considered in the environmental review process.
One commenter questioned whether corridor preservation must be the
subject of an environmental review. The commenter argued that the mere
acquisition of title for corridor preservation purposes should not be
subject to NEPA review at all. FTA disagrees with this argument. If an
applicant acquires ROW with FTA funds, it is a Federal action. FTA and
the applicant must then complete an environmental review of the
acquisition itself in accordance with NEPA and all other applicable
Federal environmental laws and regulations. The ROW acquisition is
treated as a stand-alone project with a separate NEPA document. If the
ROW acquisition does not use Federal funds and has no Federal
approvals, then NEPA would not apply to that acquisition; however, NEPA
would apply to the project using that ROW itself if the project
receives FTA funds.
Two commenters remarked on the appropriate level of NEPA review for
corridor preservation. One stated that a categorical exclusion (CE)
should be FTA's ``default approach'' and that approaching corridor
preservation in the context of a CE would be appropriate in the vast
majority of circumstances. The other commenter felt the guidance needed
clarification regarding this issue. FTA does not take a ``default
approach''
[[Page 67239]]
in its environmental review, for corridor preservation or otherwise.
The environmental review of ROW acquisition must be completed in
accordance with NEPA and all other applicable Federal laws and
regulations. FTA acknowledges that the CE found at 23 CFR Sec.
771.118(d)(4), is potentially available for the appropriate level of
NEPA review for corridor preservation; FTA notes, however, that if the
CE is to be used then the conditions found in Sections 771.118(a) and
(b) must be met. To add clarity, FTA revised the guidance to reflect
this discussion.
One commenter questioned the guidance's requirement that all FTA
planning requirements be satisfied for corridor preservation, including
having the project in the Transportation Improvement Program (TIP) and
State Transportation Improvement Program (STIP). If ROW is acquired
with FTA funds, it is a Federal action and subject to FTA's
metropolitan and statewide planning requirements, meaning that the
corridor preservation project must be included in Metropolitan
Transportation Plan (MTP), the TIP and STIP. Moreover, even if the
property is acquired with local funds, the project should be in the MTP
if it is foreseeable that FTA funds are expected to be used for the
project that would use that ROW.
Two commenters submitted comments on the grants management/
administration portion of the guidance. One commenter questioned FTA's
expectation that a grantee implement a transit project using the ROW
within a reasonable timeframe. The commenter requested FTA articulate
criteria for this requirement. FTA declines to articulate specific
criteria, but notes that the expectation of FTA is that when it
provides Federal funds for corridor preservation that a project be
built on that property within a reasonable timeframe. This is to ensure
a proper and appropriate use of Federal funds. The final guidance is
unchanged and states that, in determining the appropriate timeframe,
FTA will consult with the project sponsor and will consider the
planning status of any proposed project that would use the ROW. A
second commenter questioned the guidance's requirement regarding the
disposition of the ROW in accordance with 49 U.S.C. 5334(h)(1)-(3), 49
U.S.C. 5334(h)(4), or 49 CFR 18.31(c). The commenter recommended FTA
allow for the repayment of Federal funds when for some reason a project
does not proceed as an option to avoid disposition of the ROW. One
alternative disposition method involves the retention of title by the
project sponsor after compensating the Federal awarding agency. This is
described in FTA's Grant Management Requirements Circular (5010.1D),
which sets forth all of the real property disposition requirements. See
http://www.fta.dot.gov/legislation_law/12349_8640.html.
One commenter urged FTA to encourage Congress to recognize the
importance of predictable funding over improved streamlining. FTA
decided that this comment is outside the scope of this guidance.
The final guidance is available in the U.S. Government's electronic
docket site at http://www.regulations.gov under docket number FTA-2013-
0019 and on the FTA Web site at http://www.fta.dot.gov.
Therese W. McMillan,
Acting Administrator, Federal Transit Administration.
[FR Doc. 2014-26705 Filed 11-10-14; 8:45 am]
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