Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Notices 20017 

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. 

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 rightof-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 preexisting 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 

20018 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Notices 

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.’’ 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Notices 20019 

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 

DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

FTA Supplemental Fiscal Year 2009 

Apportionments and Allocations 

Editorial Note: FR document E9–9475 was 

originally published at page 19115 in the 

issue of Monday, April 27, 2009. In that 

publication graphic material was omitted. 

The corrected document is republished 

below in its entirety. 

AGENCY: Federal Transit Administration 

(FTA), DOT. 

ACTION: Notice. 

SUMMARY: Division I of the ‘‘Omnibus 

Appropriations Act, 2009’’ (Pub. L. 111– 

8), signed into law by President Barack 

Obama on March 11, 2009, made funds 

available for all of the surface 

transportation programs of the 

Department of Transportation (DOT) for 

the Fiscal Year (FY) ending September 

30, 2009. This notice supplements the 

December 18, 2008 Federal Register 

notice. The notice apportions formula 

funds made available under the 

Omnibus Appropriations Act and 

allocates FY 2009 funds to 

congressionally designated projects that 

were contained in the accompanying 

committee report and the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU). The notice does 

not include any extensions of 

previously lapsed earmarks. The Federal 

Transit Administration (FTA) will 

address allocations of lapsed and/or 

unallocated resources subsequent to this 

notice. 

FOR FURTHER INFORMATION CONTACT: For 

general information about this notice 

contact Henrika Buchanan-Smith, Office 

of Program Management, at (202) 366– 

2053. Please contact the appropriate 

FTA regional or metropolitan office for 

any specific requests for information or 

technical assistance. Appendix A at the 

end of this notice includes contact 

information for FTA regional and 

metropolitan offices. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Overview 

II. FTA Programs Funding 

III. FY 2009 FTA Program Initiatives and 

Changes 

IV. FTA Programs 

A. Metropolitan Planning Program (49 

U.S.C. 5305(d)) 

B. State Planning and Research Program 

(49 U.S.C. 5305(e)) 

C. Urbanized Area Formula Program (49 

U.S.C. 5307) 

D. Clean Fuels Formula Program (49 U.S.C. 

5308) 

E. Capital Investment Program (49 U.S.C. 

5309)—Fixed Guideway Modernization 

F. Capital Investment Program (49 U.S.C. 

5309)—Bus and Bus-Related Facilities 

G. Capital Investment Program (49 U.S.C. 

5309)—New and Small Starts 

H. Special Needs of Elderly Individuals 

and Individuals With Disabilities 

Program (49 U.S.C. 5310) 

I. Nonurbanized Area Formula Program (49 

U.S.C. 5311) 

J. Rural Transportation Assistance Program 

(49 U.S.C. 5311(b)(3)) 

K. Public Transportation on Indian 

Reservation Program (49 U.S.C. 

5311(c)(1)) 

L. National Research Program (49 U.S.C. 

5314) 

M. Job Access and Reverse Commute 

Program (49 U.S.C. 5316) 

N. New Freedom Program (49 U.S.C. 5317) 

O. Paul S. Sarbanes Transit in Parks 

Program (49 U.S.C. 5320) 

P. Alternatives Analysis Program (49 

U.S.C. 5339) 

Q. Growing States and High Density States 

Formula (49 U.S.C. 5340) 

R. Over-the-Road Bus Accessibility 

Program (49 U.S.C. 5310 Note) 

Tables 

1. FTA Revised FY 2009 Appropriations 

and Apportionments for Grant Programs 

2. FTA Revised FY 2009 Metropolitan 

Planning Program and Statewide 

Planning and Research Program 

Apportionments 

3. FTA Revised FY 2009 Section 5307 and 

Section 5340 Urbanized Area 

Apportionments 

4. FTA FY 2009 Section 5307 

Apportionment Formula 

5. FTA Revised FY 2009 Formula Programs 

Apportionments Data Unit Values 

5–A. FTA Urbanized Areas 200,000 or 

More in Population Eligible To Use 

Section 5307 Funds for Operating 

Assistance 

6. FTA Revised FY 2009 Small Transit 

Intensive Cities Performance Data and 

Apportionments 

7–A. FTA FY 2009 Section 5308 Clean 

Fuels Allocations 

8. FTA Revised FY 2009 Section 5309 

Fixed Guideway Modernization 

Apportionments 

9. FTA FY 2009 Fixed Guideway 

Modernization Program Apportionment 

Formula 

10–A. FTA FY 2009 Section 5309 Bus And 

Bus-Related Facilities Allocations 

10–B. FTA Reprogrammed Section 5309 

Bus And Bus-Related Facilities 

Allocations 

11. FTA Revised FY 2009 Section 5309 

New Starts Allocations 

12–A. FTA Reprogrammed Section 5309 

New Starts Allocations 

13. FTA Revised FY 2009 Special Needs 

for Elderly Individuals and Individuals 

With Disabilities Apportionments 

14. FTA Revised FY 2009 Section 5311 and 

Section 5340 Nonurbanized Area 

Formula Apportionments, and Rural 

Transportation Assistance Program 

(RTAP) Allocations 

16. FTA Revised FY 2009 Section 5316 Job 

Access and Reverse Commute (JARC) 

Apportionments 

18. FTA Revised FY 2009 Section 5317 

New Freedom Apportionments 

19–A. FTA FY 2009 Section 5339 

Alternative Analysis Allocations 

20. FTA FY 2009 National Research 

Programs Allocations 

Appendix A 

I. Overview 

This document apportions and 

allocates FY 2009 formula funds 

appropriated in Division I of the 

Omnibus Appropriations Act, 2009 

(Pub. L. 111–8, March 11, 2009), and FY 

2009 funds designated for specific 

projects under SAFETEA–LU and the 

committee report accompanying the 

Omnibus Appropriations Act, 2009, for 

the Bus and Bus Facilities program, 

New Starts program, Clean Fuels 

program, and the Alternatives Analysis 

program. It also includes projects that 

were extended or reprogrammed as a 

matter of law in the Omnibus 

Appropriations Act, 2009. This notice 

does not include allocations of 

recovered previous years’ discretionary 

funds or unallocated FY 2009 

discretionary resources. FTA will 

provide information regarding the 

availability of unallocated discretionary 

resources at a later date. 

FTA reminds grantees apportioned 

formula funds from the American 

Recovery and Reinvestment Act (Pub. L. 

111–05; ‘‘ARRA’’) that at least fifty 

percent of the funds attributable to each 

urbanized areas over 200,000 in 

population and each State for all other 

areas must be obligated in a FTA grant 

by September 1, 2009. The March 5, 

2009 Federal Register notice that 

apportioned ARRA funds provides more 

details about this requirement and 

includes the statement that ‘‘FTA will 

consider a submittal timely if a 

complete ARRA formula grant is 

received on or before July 1, 2009.’’ FTA 

reminds grantees that the July 1, 2009 

deadline accounts for the Department of 

Labor process associated with labor 

certifications which can take up to 60 

days to complete the certification 

referral process. Grantees are strongly 

encouraged to submit applications well 

in advance of that deadline whenever 

possible. Planning submission of a grant 

application on or near July 1, 2009 

might not account for local decision