[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FTA-2013-0019 the availability of draft guidance and requested public 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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