Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Notices 74563 

must submit, and obtain FRA’s approval 

of, an RFA to its PTC system or PTCSP 

under 49 CFR 236.1021. 

Under 49 CFR 236.1021(e), FRA’s 

regulations provide that FRA will 

publish a notice in the Federal Register 

and invite public comment in 

accordance with 49 CFR part 211, if an 

RFA includes a request for approval of 

a material modification of a signal or 

train control system. Accordingly, this 

notice informs the public that, on 

October 20, 2023, SEPTA submitted an 

RFA to its PTCSP for its Interoperable 

Electronic Train Management System 

(I–ETMS), which seeks FRA’s approval 

for a two- to three-hour outage to 

support SEPTA’s PTC Back Office 

Subsystem upgrade. That RFA is 

available in Docket No. FRA–2010– 

0036. Interested parties are invited to 

comment on SEPTA’s RFA by 

submitting written comments or data. 

During FRA’s review of this railroad’s 

RFA, FRA will consider any comments 

or data submitted within the timeline 

specified in this notice and to the extent 

practicable, without delaying 

implementation of valuable or necessary 

modifications to a PTC system. See 49 

CFR 236.1021; see also 49 CFR 

236.1011(e). Under 49 CFR 236.1021, 

FRA maintains the authority to approve, 

approve with conditions, or deny a 

railroad’s RFA at FRA’s sole discretion. 

Privacy Act Notice 

In accordance with 49 CFR 211.3, 

FRA solicits comments from the public 

to better inform its decisions. DOT posts 

these comments, without edit, including 

any personal information the 

commenter provides, to https://

www.regulations.gov, as described in 

the system of records notice (DOT/ALL– 

14 FDMS), which can be reviewed at 

https://www.transportation.gov/privacy. 

See https://www.regulations.gov/ 

privacy-notice for the privacy notice of 

regulations.gov. To facilitate comment 

tracking, we encourage commenters to 

provide their name, or the name of their 

organization; however, submission of 

names is completely optional. If you 

wish to provide comments containing 

proprietary or confidential information, 

please contact FRA for alternate 

submission instructions. 

Issued in Washington, DC. 

Carolyn R. Hayward-Williams, 

Director, Office of Railroad Systems and 

Technology. 

[FR Doc. 2023–24013 Filed 10–30–23; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

[Docket No. FTA–2022–0029] 

Interim Asset Disposition Guidance 

AGENCY: Federal Transit Administration 

(FTA), Department of Transportation 

(DOT). 

ACTION: Interim Guidance and response 

to public comments. 

SUMMARY: The Federal Transit 

Administration (FTA) hereby 

establishes Interim Guidance to provide 

clarity on an asset disposition option 

under the National Defense 

Authorization Act (NDAA) for Fiscal 

Year 2022. Under the new provision, 

FTA may authorize the transfer of real 

property acquired or improved with 

Federal assistance, but no longer needed 

for the originally authorized purpose, to 

a local governmental authority, 

nonprofit organization, or other thirdparty entity if certain statutory criteria 

are met. 

DATES: The effective date of this Interim 

Guidance is October 31, 2023. 

ADDRESSES: One may access this interim 

guidance and public comments on the 

proposed guidance at docket number 

FTA–2022–0029. For access to the 

docket, please visit https://

www.regulations.gov or the Docket 

Operations office located in the West 

Building of the United States 

Department of Transportation, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590, between 9 a.m. 

and 5 p.m. Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

policy guidance questions, contact 

Maggie Schilling, Office of Budget and 

Policy, Federal Transit Administration, 

1200 New Jersey Ave. SE, Room E52– 

315, Washington, DC 20590, phone: 

202–366–1487, or email 

margaret.schilling@dot.gov. For legal 

questions, contact Kathryn Loster at 

(202) 360–2322 or email kathryn.loster@

dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

This guidance explains changes made 

to 49 U.S.C. 5334(h)(1) by the National 

Defense Authorization Act (NDAA) for 

Fiscal Year 2022 (Pub. L. 117–81). 

Specifically, section 6609 of the NDAA 

added a new disposition option for real 

property acquired or improved with 

Federal assistance that are no longer 

needed for the originally authorized 

purpose. Under the new provision, FTA 

may authorize the transfer of property to 

a local government authority, nonprofit 

organization, or other third-party entity 

if, among other criteria enumerated in 

the law, it will be used for transitoriented development and include 

affordable housing. 

FTA published a notice of availability 

of the proposed asset disposition 

guidance and request for comments on 

March 15, 2023 (88 FR 16076), and the 

comment period ended April 14, 2023. 

This notice provides a summary of the 

comments received, responses and 

guidance clarifications from FTA, and 

the publication of the interim guidance 

in the form of FAQs, which is available 

on the agency’s public website at 

https://www.transit.dot.gov/funding/ 

funding-finance-resources/interimasset-disposition-guidance. 

II. Response to Public Comments 

FTA received comments from five 

respondents on its Proposed Asset 

Disposition Guidance. The commenters 

represent transit agencies and industry 

stakeholders, including the American 

Public Transportation Association, 

Sound Transit, and the Local Initiatives 

Support Corporation. In this section, 

FTA responds to public comments in 

the following topical order: (A) General 

Comments; (B) Eligibility; (C) Review 

and Approval Process; (D) Affordable 

Housing Requirements; (E) Monitoring 

Requirements; (F) Other Requirements; 

and (G) Categorization of Special 

Purpose Entities. One commenter raised 

issues that are outside the scope of the 

Proposed Guidance and Legislative 

Authority, and FTA does not address 

those concerns in this Interim Guidance. 

A. General Comments 

i. Two commenters expressed support 

for the legislative change, which 

provides this additional asset 

disposition option, and the benefit this 

will have on Transit Oriented 

Development and affordable housing. 

One comment notes this guidance is 

helpful and constructive. 

FTA Response: FTA appreciates these 

comments and the transit agency and 

industry stakeholder support for 

affordable housing. 

B. Eligibility 

i. One commenter requested clarity on 

whether provisions apply to real 

property that was either acquired or 

improved with FTA assistance. For 

example, those improved as part of an 

FTA-assisted project, even if it was 

originally acquired with non-federal 

funds. 

ii. One commenter requested clarity 

on whether provisions in question apply 

to projects whose Federal funding 


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74564 Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Notices 

source was an FTA-administered RAISE 

grant or flexed funds from other 

Operating Administrations, such as 

Federal Highway Administration 

(FHWA). 

FTA Response: 

i. In accordance with the definition of 

‘‘real property’’ in 49 CFR 262.3, eligible 

assets include land improvements. FTA 

will provide additional clarity in the 

Interim Guidance. 

ii. This provision applies to assets 

acquired, or improved, with FTAadministered funds, including those 

flexed over from other operating 

administrations such as FHWA. FHWA 

funds flexed to FTA allow utilization of 

49 U.S.C. 5334(h)(1) disposition 

provisions and these funds take on 

Chapter 53 elements. RAISE grants are 

not authorized under Chapter 53. As 

such, any property funded by a RAISE 

grant would be outside the scope of this 

provision. 

C. Review and Approval Process 

i. A commenter requested 

confirmation that a disposition under 

this new provision is approved by an 

FTA Regional Administrator and does 

not require publication in the Federal 

Register. 

FTA Response: 

i. This disposition option does not 

require publication in the Federal 

Register. Further, requests for asset 

disposition under this provision follow 

existing asset disposition approval 

processes, beginning with the FTA 

Regional Office and may involve 

additional review by FTA Headquarters 

offices. 

D. Affordable Housing Requirements 

i. A commenter noted that the 

language includes owner income 

requirements, which they state is not 

necessary for affordable rental housing 

projects since they are required to serve 

low-income households, and they 

recommend removing this language for 

affordable rental housing projects. 

ii. Clarification is requested on 

whether affordability requirements are 

kept intact if the asset is subsequently 

sold or changes partnership after the 

initial transfer. 

iii. Additionally, a commenter 

requested clarification regarding FAQ 

2(c) of the Proposed Guidance, on 

whether the 20 percent of units that 

must meet the 30 percent area median 

income (AMI) are included within the 

total 40 percent of units that must meet 

the 60 percent AMI level. 

iv. Request for clarification on 

whether the non-housing space within 

an affordable housing project is exempt 

from the ongoing housing requirement. 

FTA Response: 

i. This is a statutory requirement, per 

49 U.S.C. 5334(h)(1)(B)(i)–(iii), and as 

such cannot be removed from this 

guidance. However, FTA clarifies that 

only individuals purchasing or renting 

units that are sold or rented as 

affordable owner-occupied units need to 

meet these income thresholds. The 

income requirement does not apply to 

the developer or property owner 

offering rentals. 

ii. FTA confirms that the affordability 

requirements remain intact for the 30- 

year period, even if the asset is sold or 

changes partnership. The FTA recipient 

disposing of the property under this 

provision is responsible for ensuring 

compliance with this requirement. 

iii. The guidance states that at least 40 

percent of housing units must be legally 

binding affordability restricted to 

tenants and owners at or below 60 

percent AMI, which shall include at 

least 20 percent of such housing units 

restricted to tenants and owners at or 

below 30 percent AMI. This is read to 

mean that the 20 percent of units that 

must meet 30 percent AMI are included 

within the total 40 percent of units that 

must meet the 60 percent AMI, meaning 

that at least 8 percent of the total 

amount of housing units must meet 30 

percent AMI. Please note that this 

requirement is separate from the 

requirement that at least 20 percent of 

the total floor area ratio of the 

development be dedicated to affordable 

housing. The Interim Guidance will be 

amended to include this clarification. 

iv. The requirement that 20 percent of 

the total floor area ratio (FAR) applies 

to the totality of the project, including 

non-housing space. The FTA 

recommendation is that, further, at least 

50 percent of the TOD’s FAR is 

dedicated to housing or other 

community benefits; this also applies to 

the totality of the project. The 

requirements for 40 percent of housing 

units to be legally binding affordability 

restricted to tenants and owners at or 

below the 60 percent AMI level, which 

includes 20 percent of units restricted at 

or below the 30 percent AMI level, 

apply only to the project’s housing 

space. 

E. Monitoring Requirements 

i. A requirement of this asset 

disposition option includes monitoring 

of affordable housing requirements over 

a 30-year term. Two commenters 

expressed that a monitoring requirement 

may place an undue burden on an 

agency. 

Further, commenters recommended 

that FTA allow the long-term 

monitoring to be performed by other 

entities that conduct compliance 

monitoring activities, including the new 

ownership entity, other public agencies, 

state housing finance agencies, and 

other housing agencies with subsidies in 

the project that require long-term 

affordability. Other suggestions include 

a standard reporting mechanism to ease 

the burden. 

FTA Response: 

i. The Proposed Guidance did not 

prescribe how the recipient must ensure 

compliance with affordable housing 

requirements over the 30-year term. The 

requirement for a property to remain in 

use and compliant with affordable 

housing requirements for 30 years after 

the date of transfer is a statutory 

requirement. FTA recognizes that there 

are many ways in which a recipient 

could ensure oversight and compliance 

with this requirement, including longterm monitoring by a third party or 

other public agency. 

F. Other Requirements 

i. Under this provision, an asset can 

be transferred to a Third-Party Entity if 

a Local Government Authority or 

Nonprofit Organization is ‘‘unable to 

receive’’ the property. A commenter 

requested clarification on whether 

‘‘choosing not to receive’’ is assumed to 

be the same as ‘‘unable to receive.’’ 

FTA Response: 

i. Under this provision, a local 

government or nonprofit entity 

‘‘choosing not to receive’’ the property 

can be considered the same as ‘‘unable 

to receive.’’ Documentation 

demonstrating that the property has 

been offered and refused would be 

sufficient to meet this requirement. 

G. Categorization of Special Purpose 

Entities 

i. Three commenters requested that 

FTA clarify that Special Purpose 

Entities created by a nonprofit 

organization for the purpose of utilizing 

Low-Income Housing Tax Credits 

(LIHTC) will be treated as nonprofit 

organizations, rather than third-party 

entities, for the purposes of transferring 

eligible assets under this provision. 

Nonprofit developers typically form 

Special Purpose Entities (e.g., Limited 

Liability Companies or Limited 

Partnerships) to utilize the LIHTC 

available under Internal Revenue Code 

(IRC) 26 U.S.C. Chapter 42. As 

commenters note, LIHTC encourages 

private parties to invest in affordable 

housing projects, constituting an 

important and commonly used method 

for financing affordable housing. While 

the Special Purpose Entity is a private 

entity, it may be controlled and 

managed by the nonprofit housing 


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Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Notices 74565 

developer. This is important to clarify 

because, in some cases, the Special 

Purpose Entity may not be able to satisfy 

the statutory requirements for transfer to 

a third-party entity, such as 

demonstrating a ‘‘satisfactory history of 

constructing or operating an affordable 

housing development;’’ this is because a 

new Special Purpose Entity is created 

for each project and would not have a 

history of past projects. 

FTA Response: 

i. FTA recognizes that this is a 

common concern among transit agencies 

and stakeholders interested in utilizing 

this provision. FTA further notes that 

Special Purpose Entities receiving 

LIHTC’s may take many different forms. 

In interpreting Special Purpose Entities 

formed for the purpose of utilizing 

LIHTCs under this provision, FTA will 

look to which party (i.e., public or 

nonprofit vs. for-profit entity) has 

control over the project. Ownership may 

be transferred to a for-profit entity to 

facilitate the use of tax credits for the 

project only if the public or nonprofit 

entity demonstrates in its application 

that it retains control over the property 

(i.e., still considered ‘‘owned’’ for 

purposes of this provision). Sufficient 

control may be satisfied by any of the 

following: (1) a fee simple interest in the 

Project property, (2) owns 51 percent or 

more of the general partner interests in 

a limited partnership or 51 percent or 

more of the managing member interests 

in a limited liability company with all 

powers of the general partner or 

managing member, (3) owns a lesser 

percentage of the general partner or 

managing member interests and holds 

control rights, or (4) owns 51 percent or 

more of all ownership interests in a 

limited partnership or limited liability 

company and holds certain control 

rights. 

‘‘Control rights,’’ as referenced above, 

include control over leasing of the 

project (e.g., exclusively maintaining 

and administering the waiting list, 

performing eligibility determinations) 

and consent rights over certain areas, 

such as changing the number of 

affordable housing units, setting utility 

allowances, selecting the management 

agent, or setting the operating budget. 

FTA will treat a Special Purpose Entity 

as a nonprofit entity under this asset 

disposition provision if they meet the 

above requirements. 

III. Interim Guidance 

FTA has reviewed and deliberated 

over the public comments received for 

the Proposed Asset Disposition 

Guidance. All feedback was appreciated 

and informative for further shaping this 

guidance. FTA makes made the 

following amendments in the Interim 

Asset Disposition Guidance: 

The Interim Asset Disposition 

Guidance is amended to provide a 

response to comments requesting that 

Special Purpose Entities using Low 

Income Housing Tax Credits (LIHTC) 

are treated as a nonprofit entity under 

this provision. FTA will allow Special 

Purpose Entities using LIHTCs to be 

treated as nonprofits if the nonprofit 

entity retains control over the project, as 

detailed above. 

Additionally, FTA amends the 

guidance to provide additional clarity 

on the area median income (AMI) 

percentage requirements. Some 

commenters voiced confusion over the 

statutory requirements that 40 percent 

of the housing units offered must be 

legally binding affordability restricted to 

tenants and owners at or below 60 

percent AMI, which shall include at 

least 20 percent offered to tenants and 

owners at or below 30 percent AMI. 

FTA will clarify that this is 20 percent 

out of the 40 percent, not 20 percent out 

of the totality of the project. 

On the eligibility requirements to use 

this provision, FTA amends the 

guidance to clarify that this provision 

applies to assets that have been acquired 

or improved with FTA assistance, 

including FTA-administered Federal 

funds that have been flexed over from 

other Operating Administrations, such 

as Federal Highway Administration 

(FHWA). However, this provision does 

not apply to assets acquired or 

improved with FTA-administered 

RAISE grants, as discussed above. 

FTA amends the guidance to provide 

additional clarifying language on the 

options available for compliance 

monitoring during the 30-year term, to 

include third party oversight. 

Nuria I. Fernandez, 

Administrator. 

[FR Doc. 2023–23946 Filed 10–30–23; 8:45 am] 

BILLING CODE 4910–57–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

[OMB Control No. 2900–0661] 

Agency Information Collection Activity 

Under OMB Review: State Veterans 

Homes Construction & Acquisition 

Grant Program (SVHCGP) 

AGENCY: Veterans Health 

Administration, Department of Veterans 

Affairs. 

ACTION: Notice. 

SUMMARY: In compliance with the 

Paperwork Reduction Act (PRA) of 

1995, this notice announces that the 

Veterans Health Administration, 

Department of Veterans Affairs, will 

submit the collection of information 

abstracted below to the Office of 

Management and Budget (OMB) for 

review and comment. The PRA 

submission describes the nature of the 

information collection and its expected 

cost and burden and it includes the 

actual data collection instrument. 

DATES: Written comments and 

recommendations for the proposed 

information collection should be sent 

within 30 days of publication of this 

notice to www.reginfo.gov/public/do/ 

PRAMain. Find this particular 

information collection by selecting 

‘‘Currently under 30-day Review—Open 

for Public Comments’’ or by using the 

search function. Refer to ‘‘OMB Control 

No. 2900–0661.’’ 

FOR FURTHER INFORMATION CONTACT: 

Maribel Aponte, Office of Enterprise 

and Integration, Data Governance 

Analytics (008), 810 Vermont Avenue 

NW, Washington, DC 20420, (202) 266– 

4688 or email maribel.aponte@va.gov. 

Please refer to ‘‘OMB Control No. 2900– 

0661’’ in any correspondence. 

SUPPLEMENTARY INFORMATION: 

Authority: 44 U.S.C. 3501–3521. 

Title: State Veterans Homes 

Construction & Acquisition Grant 

Program (SVHCGP), VA Forms 10– 

0388–1, 10–0388–2, 10–0388–3, 10– 

0388–4, 10–0388–5, 10–0388–6, 10– 

0388–7, 10–0388–8, 10–0388–9, 10– 

0388–10, 10–0388–12, 10–0388–13. 

OMB Control Number: 2900–0661. 

Type of Review: Reinstatement of a 

previously approved collection. 

Abstract: 38 U.S.C. 8133(a) and 

8135(a) authorize and appropriate 

expenditure of funds for State Home 

Domiciliary, Nursing Home, and 

Hospital Care. These portions of the 

U.S.C. require, among other things, that 

the State applicant provide the 

Department of Veterans Affairs (VA) 

with an application. Only State 

governments and recognized federal 

tribes (their governments) will submit 

the information to complete an 

application for the State Veterans 

Homes Construction Grant Program 

(SVHCGP); private groups or citizens are 

not eligible. Applicants will complete 

VA Forms 10–0388–1, 10–0388–2, 10– 

0388–3, 10–0388–4, 10–0388–5, 10– 

0388–6, 10–0388–7, 10–0388–8, 10– 

0388–9, 10–0388–10, 10–0388–12, and 

10–0388–13 to apply for the SVHCGP 

and to certify compliance with VA 

requirements. VA uses this information, 

along with other documents submitted 

to evaluate the feasibility of the projects 


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