69998 Federal Register / Vol. 79, No. 226 / Monday, November 24, 2014 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

23 CFR Parts 635, 710, and 810 

[Docket No. FHWA–2014–0026] 

RIN 2125–AF62 

Right-of-Way and Real Estate 

AGENCY: Federal Highway 

Administration (FHWA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FHWA is proposing to 

amend its regulations governing the 

acquisition, management, and disposal 

of real property for transportation 

programs and projects receiving funds 

under title 23, United States Code. The 

revisions are prompted by enactment of 

the Moving Ahead for Progress in the 

21st Century Act (MAP–21). Section 

1302 of MAP–21 includes new early 

acquisition flexibilities that can be used 

by State departments of transportation 

(SDOT) and other grantees of title 23 

Federal-aid highway program funds. 

This proposal is intended to develop 

regulations on the use of those new 

early acquisition flexibilities. The 

FHWA is also proposing to update the 

real estate regulations to reflect the 

agency’s experience with the Federalaid highway program since the last 

comprehensive rulemaking, which 

occurred more than a decade ago. The 

updates include clarifying the FederalState partnership, streamlining 

processes to better meet current Federalaid highway program needs, and 

eliminating duplicative and outdated 

regulatory language. This notice of 

proposed rulemaking provides 

interested parties with the opportunity 

to comment on proposed changes to the 

regulations. 

DATES: Comments must be received by 

January 23, 2015. Late-filed comments 

will be considered to the extent 

practicable. 

ADDRESSES: To ensure that you do not 

duplicate your docket submissions, 

please submit them by only one of the 

following means: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for submitting 

comments. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Ave. SE., W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery: West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Ave. SE., between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. The telephone 

number is (202) 366–9329. 

• Instructions: You must include the 

agency name and docket number or the 

Regulatory Identification Number (RIN) 

for the rulemaking at the beginning of 

your comments. All comments received 

will be posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: 

Arnold Feldman, Office of Real Estate 

Services, (202) 366–2028, email address: 

Arnold.Feldman@dot.gov; or Robert 

Black, Office of the Chief Counsel 

(HCC), (202) 366–1359, email address: 

Robert.Black@dot.gov; Federal Highway 

Administration, 1200 New Jersey 

Avenue SE., Washington, DC 20590. 

Office hours are from 7:30 a.m.to 5:00 

p.m., e.t., Monday through Friday, 

except Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing 

This document and all comments 

received may be viewed online through 

the Federal eRulemaking portal at 

http://www.regulations.gov. The Web 

site is available 24 hours each day, 365 

days each year. An electronic copy of 

this document may also be downloaded 

by accessing the Office of the Federal 

Register’s home page at: https://

www.federalregister.gov. 

Table of Contents for Supplementary 

Information 

I. Executive Summary 

II. Background 

III. Section-by-Section Discussion of the 

Proposals 

I. Executive Summary 

A. Purpose of the Regulatory Action 

Many provisions in MAP–21 (Pub. L. 

112–141, 126 Stat. 405) are designed to 

improve efficiency, effectiveness, and 

accountability in the development and 

delivery of Federal-aid transportation 

projects. This NPRM would implement 

section 1302 of MAP–21 by adding the 

new authorities for early acquisition of 

property to part 710, and clarifying the 

Federal-aid eligibility of a broad range 

of real property interests that constitute 

less than full fee ownership. This NPRM 

also proposes to streamline program 

requirements, clarify the Federal-State 

partnership, and carry out a 

comprehensive update of part 710. 

Corresponding revisions are proposed 

for related regulations in 23 CFR parts 

635 and 810. 

The FHWA proposes updating 23 CFR 

parts 635, 710, and 810 to help ensure 

consistency in interpretation of title 23 

requirements, and to better align the 

language of the regulations with current 

program needs and best practices. This 

proposed rule would implement 

changes identified by the public in 

response to the DOT’s initiative on 

Implementation of Executive Order 

13563, Retrospective Review and 

Analysis of Existing Rules. 

The regulations proposed in this 

NPRM cover a broad range of subjects. 

That breadth required FHWA to 

carefully consider which entities are 

affected by each new and revised 

provision. In general, the proposed 

regulations would apply to all grantees, 

their subgrantees, and other parties that 

carry out title 23 grant-funded programs 

and projects. However, some provisions 

in this NPRM would apply only to a 

subset of title 23 grantees. This typically 

occurs where a regulatory provision 

implements a part of title 23, United 

States Code, that applies only to the 

SDOTs. 

As a result of all these factors, FHWA 

concluded there was not a single term 

that could be used through the proposed 

regulation to identify the parties subject 

to the various provisions. The agency 

decided to use specific terms of 

reference in the NPRM, defined in 

proposed section 710.105, to distinguish 

the regulatory provisions that are 

applicable to title 23 grantees generally 

(thus affecting all title 23 grantees and 

subgrantees, as well as any parties 

working on their behalf), from 

provisions applicable only to the State 

and or its SDOT. For example, when a 

provision in this NPRM uses only the 

term ‘‘SDOT,’’ that provision applies 

only to the SDOT as defined in section 

710.105 (‘‘the State highway 

department, transportation department, 

or other State transportation agency or 

commission to which title 23, United 

States Code, funds are apportioned’’). 

By contrast, when this NPRM uses the 

term ‘‘State’’ or ‘‘State agency,’’ the 

provision in question applies more 

broadly to agencies, political 

subdivisions, and instrumentalities of a 

State, but does not apply to every 

grantee or subgrantee of title 23 funds. 

This NPRM proposes definitions for the 

terms ‘‘grantee’’ and ‘‘subgrantee.’’ 

Those terms are used when the 

proposed provision applies to all parties 

receiving title 23 grant funding directly 

(grantees) or indirectly (subgrantees). 

For example, if an SDOT passes title 23 

funds through to a local public agency 

as part of a subgrant agreement under 

which the local public agency will 

perform part or all of the project work, 

this proposed rule would refer to the 

local public agency as a subgrantee. 

The FHWA requests comments on 

how it can simplify and clarify the 


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scope and applicability of the regulatory 

requirements in this NPRM, including 

those suggesting alternative terminology 

or regulatory organization. 

B. Summary of the Major Provisions of 

the Regulatory Action in Question 

1. Conditional Right-of-Way (ROW) 

Certification 

This NPRM proposes revising section 

635.309(c)(3) to provide broader 

authority to proceed with construction 

contract bidding in situations where the 

grantee has not yet acquired all real 

property interests needed for the 

project. The proposed regulation would 

allow the use of a conditional ROW 

certification procedure when the grantee 

has acquired all but a few of the 

necessary properties and would like to 

proceed with construction bidding. 

Unless FHWA finds it would not be in 

the public interest to do so, the new 

procedure would permit advertisement 

of a project as long as assurances are in 

place to protect property owners’ and 

tenants’ rights. Currently, the regulation 

provides that use of a conditional ROW 

certification for bidding and 

construction is permitted only under 

very limited circumstances. The FHWA 

believes the current regulation is more 

restrictive than necessary with respect 

to contract bidding, and that allowing 

earlier contract bidding as a standard 

flexibility would better meet project 

delivery needs while still protecting 

owners and tenants. However, FHWA 

still believes that in most cases, 

proceeding with construction work 

should occur only when all necessary 

ROW has been secured. For that reason, 

proceeding with construction under a 

conditional ROW certification should be 

permitted only under exceptional 

circumstances. The proposed regulation 

clarifies this strict limitation. 

The FHWA recognizes that expanding 

the use of conditional certifications 

could increase risks of compensation 

claims from contractors if completing 

acquisition or relocation activities for 

remaining parcels delays contract work. 

The proposed rule clarifies that Federal 

participation in the cost of such delay 

claims is subject to 23 CFR 635.124, and 

will be determined on a case-by-case 

basis, including consideration of 

whether the SDOT followed approved 

processes and procedures. 

2. Federal-State Partnership and 

Compliance Responsibilities 

This NPRM proposes a number of 

revisions to clarify the roles and 

responsibilities of SDOTs, their 

subgrantees, and those carrying out a 

Federal-aid project on behalf of the 

SDOT. The FHWA believes these 

clarifications will help avoid confusion 

among the parties involved in activities 

funded under title 23. The changes, 

such as those proposed in sections 

710.103 (Applicability) and 710.201(a) 

(Program oversight), also will better 

reflect the importance FHWA places on 

the role of its grantees in assuring 

subgrantee and contractor compliance 

with Federal requirements. Similar 

clarifications of grantee and subgrantee 

obligations are made throughout the 

regulation. 

This NPRM also proposes several 

revisions, including in sections 

710.201(i), 710.403(a), and 710.409(a), 

to clarify the use of Stewardship/

Oversight Agreements between FHWA 

and the SDOT. Those agreements 

describe the roles and responsibilities of 

FHWA and the State in carrying out the 

Federal-aid highway program. 

Stewardship and Oversight Agreements 

specify which FHWA approvals 

required under part 710 are assigned to 

the SDOT. 

3. The ROW Manual 

The use of FHWA-approved 

procedures, such as those in the SDOT 

ROW manual, is critical to the ability of 

title 23 grantees and subgrantees to meet 

their compliance and oversight 

responsibilities. As the number of 

projects carried out by entities other 

than the State increased in recent years, 

FHWA recognized a need to identify 

ways that entities other than the SDOTs 

could demonstrate their intention to use 

acceptable ROW procedures. In 

proposed section 710.201(d), this NPRM 

proposes three methods for establishing 

approved ROW procedures for entities 

other than SDOTs. As proposed, the 

methods would be to follow the 

approved SDOT ROW manual, submit a 

ROW manual for FHWA approval, or 

submit a Real Estate Acquisition 

Management Plan (RAMP) for FHWA 

approval. The FHWA believes that the 

proposed changes will achieve the 

desired stewardship and oversight 

outcomes while providing practical 

options the SDOT, its partners, and 

other grantees and subgrantees may 

utilize. 

The NPRM also proposes to clarify 

how the approved ROW manual is used, 

and the topics it must cover. Among the 

proposed provisions is an explicit 

requirement that the approved ROW 

manual contain the procedures for 

determining when proposed alternative 

uses of ROW will not impact the safe 

operation of the facility (see proposed 

section 710.403(c)), a provision 

clarifying the applicability of 23 CFR 

part 771 environmental review 

requirements to disposals and 

agreements for the non-highway use of 

real property (see proposed section 

710.403(d)), and a requirement that the 

ROW manual contain a section 

describing the criteria for evaluating 

requests for real property disposals at 

less than fair market value for social, 

environmental, or economic purposes 

(see proposed section 710.403(e)(1)). In 

each case, FHWA is responding to 

recurring experiences showing a need 

for more information in the regulations 

to help grantees understand the nature 

and scope of the requirements. 

4. ROW Acquisition for Design-Build 

Projects 

In 2002, FHWA added provisions in 

23 CFR 710.311 to address ROW 

procedures applicable to design-build 

projects. (67 FR 75935, December 10, 

2002). Since that time, States have used 

design-build contracting extensively 

and the experiences around the country 

have convinced FHWA that section 

710.311 should be updated to simplify 

its requirements. The revisions 

proposed in this NPRM (proposed 

section 710.309) would eliminate many 

of the detailed requirements that 

address individual ROW activities. 

Under the proposal, a design-build 

contractor handling acquisitions 

directly would be required to certify 

that it will comply with the SDOT ROW 

manual or an approved RAMP. Most 

often, the design-build contractor would 

certify it will comply with the SDOT 

ROW manual. The FHWA believes this 

approach will provide the same 

protections as the current regulation 

because the approved ROW procedures, 

whether in an SDOT ROW manual or an 

approved RAMP, include the full range 

of applicable procedures and 

requirements. 

This NPRM also proposes to simplify 

the regulatory provisions in existing 

section 710.311(d) on required measures 

when a design-build contractor starts 

construction before all acquisition and 

relocation activities have been 

completed. This NPRM would replace 

the itemized listing with a statement 

that contractor activities must be limited 

to those that do not have a material 

adverse impact on the quality of life of 

those in occupied properties that have 

been or will be acquired. The FHWA 

believes this change will help ensure 

that potential impacts not currently 

listed in regulation are addressed, and 

that the SDOT and contractor focus on 

outcomes rather than technical 

compliance issues. 


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5. Non-Highway Use and Disposal of 

Real Property Interests 

Management of real property acquired 

for highway purposes is an important 

aspect of the real estate function. Title 

23 requirements focus on protecting the 

Federal investment, both in terms of 

safe and efficient operation of the 

transportation facility, and from the 

perspective of the Federal financial 

investment. Part 710 presently reflects a 

regulatory structure developed decades 

ago, when FHWA and SDOTs held a 

strong view that the highway ROW 

should be protected against nonhighway uses to the greatest extent 

possible. That vision has evolved 

toward providing greater flexibility in 

determining when an alternate use of 

ROW can be compatible with the 

transportation use. Accordingly, this 

NPRM proposes to update the 

regulations by acknowledging this 

change in policy, simplifying the 

categories of transactions, and clarifying 

the applicable requirements when a 

grantee allows a non-highway use of 

ROW or wants to dispose of an excess 

real property interest altogether because 

it is no longer needed for highway 

purposes. This update includes 

elimination of the concepts of air space 

and air rights agreements from the 

current regulation’s definitions (section 

710.105) and section 710.405. This 

NPRM also would eliminate the 

separate section on leasing now in 

section 710.407. Instead, the proposed 

regulation would rely on the concept of 

ROW use agreements to handle leases 

and other time-limited non-highway 

uses. The process of deciding whether 

to grant or approve a ROW use 

agreement would continue to include 

consideration of whether the proposed 

use will interfere with the 

transportation facility in any way. The 

FHWA intends that this evaluation 

process will embody the same 

considerations the current regulation 

calls for in its air space, air rights 

agreements, and leasing provisions. 

This NPRM proposes corresponding 

changes to clarify that when a real 

property interest is not needed for the 

transportation facility now or in the 

foreseeable future, the grantee may 

determine its excess and dispose of it in 

whole or in part. The NPRM proposes 

to continue authorizing the use of the 

FHWA–SDOT Stewardship/Oversight 

Agreements to assign approval of some 

disposals to SDOTs, but this NPRM does 

not propose any change to the 

requirement that disposals of real 

property that are part of Interstate ROW 

be approved by FHWA. This NPRM 

proposes to add a definition of ‘‘excess 

real property.’’ The NPRM also proposes 

changes to the definition of ‘‘disposal’’ 

to clarify that a disposal involves the 

conveyance of permanent rights in 

excess real property, and must meet the 

requirements in proposed 23 CFR 

710.403 that protect the title 23-funded 

facility. This NPRM also proposes 

revisions to section 710.409, which 

details the requirements for carrying out 

a disposal. The changes in section 

710.409 primarily are proposed to align 

the section with the new approach 

described above and to provide 

additional clarity about existing 

requirements, such as compliance with 

23 CFR part 771. 

6. Early Acquisition 

The term ‘‘early acquisition’’ 

describes real property acquisition 

activities carried out prior to completion 

of the review process required under the 

National Environmental Policy Act of 

1969 (NEPA) for the project for which 

the property would be used. This NPRM 

would implement early acquisition 

provisions in section 1302 of MAP–21. 

Section 1302 broadens the ability of 

States to carry out early acquisition 

activities eligible for Federal-aid 

reimbursement or credit toward a State’s 

share of project costs. This flexibility 

improves the State’s ability to acquire or 

preserve real property for a 

transportation facility. This NPRM is 

proposing to revise and reorganize 

section 710.501, which presently covers 

early acquisitions, to address the 

changes arising from section 1302 and 

to generally clarify the early acquisition 

process pursuant to 23 U.S.C. 108 and 

323. 

The reorganized section will include 

an introductory paragraph describing 

the circumstances that support the use 

of early acquisition, and paragraphs 

covering each of the options for early 

acquisition: State-funded early 

acquisition without Federal credit or 

reimbursement, State-funded early 

acquisition eligible for future credit, 

State-funded early acquisition eligible 

for future reimbursement from title 23 

apportioned funds, and federally funded 

early acquisition using title 23 

apportioned funds. 

This NPRM also addresses the 

applicability of NEPA and other 

environmental laws in the early 

acquisition context. As further detailed 

in the Section-by-Section discussion, 

the NPRM proposes to retain the 

distinction in the current regulation 

between early acquisitions in section 

710.501, and hardship acquisition and 

protective buying in section 701.503, 

with respect to the treatment of 

properties subject to 23 U.S.C. 138 

(commonly known as ‘‘section 4(f)’’ 

properties). Those properties would not 

be subject to early acquisition under 

710.501, but could be acquired under 

the section 710.503 hardship acquisition 

and protective buying provisions if the 

necessary evaluations and 

determinations are completed. 

In this NPRM, FHWA interprets the 

term ‘‘State,’’ as used in 23 U.S.C. 108, 

as including agencies, political 

subdivision, and instrumentalities of the 

State. Accordingly, this NPRM uses the 

term ‘‘State agencies’’ in the early 

acquisition section to identify those 

parties authorized by the statute to 

exercise early acquisition authorities. 

7. Transportation Alternatives Program 

and Acquisitions by Conservation 

Organizations 

The MAP–21 eliminated the 

Transportation Enhancements Program 

(formerly authorized under 23 U.S.C. 

133(b)(8)) and enacted a new 

Transportation Alternatives Program 

(TAP), codified in 23 U.S.C. 213. This 

change necessitates a revision to 23 CFR 

710.511, which currently is a section 

specific to the Transportation 

Enhancements Program. This NPRM 

proposes rewriting section 710.511 to 

make it consistent with TAP. A major 

change resulting from the MAP–21 

elimination of the Transportation 

Enhancements Program is the 

termination of authority to exclude 

transactions by conservation 

organizations from compliance with the 

Uniform Relocation Assistance and Real 

Property Acquisition Policies Act of 

1970, as amended (Pub. L. 91–646, 84 

Stat. 1894; primarily codified in 42 

U.S.C. 4601 et seq.) (Uniform Act). This 

exclusion was contained in section 315 

of the National Highway System 

Designation Act of 1995 (Pub. L. 104– 

59, 109 Stat. 588), and part 710 

subsequently incorporated it at 

710.511(b)(4). With the termination of 

the exclusion, acquisitions by 

conservation organizations for TAP 

projects will be subject to the Uniform 

Act, including the provisions for 

voluntary acquisitions in the 49 CFR 

part 24 implementing regulations. This 

NPRM reflects that change. 

Another proposed change to section 

710.511 involves adding to the 

regulation a provision embodying 

FHWA’s long-standing policy on the 

treatment of real property interests 

acquired for Transportation 

Enhancements Program projects. Often 

those projects involve issues about the 

adequacy of the real property interest to 

be acquired because the projects 

envision lease agreements or other timelimited arrangements that do not ensure 


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1The FHWA used salary data from Indeed Salary 

Search (www.indeed.com) which represents an 

index of salary information from job postings over 

the past 12 months to estimate labor costs. 

2This estimate assumes that it will take an 

additional 225 hours to complete necessary updates 

to a ROW manual, that a loaded rate of $76 per hour 

(Hourly rate $47.60 for a ROW manager; estimated 

loaded rate of 160% of hourly rate) for labor will 

be incurred and by estimating the costs to update 

52 ROW manuals. 

3After updating the ROW manual to incorporate 

this rulemakings changes, the States will resume 

their normal process of updating their manuals. 

4The FHWA calculated this by estimating that 

there would be 240 Early Acquisition Projects per 

year which would require approximately 40 hours 

of time each to comply with requirements 

associated only with Early Acquisition Projects. The 

FHWA used a loaded rate $76 per hour (Hourly rate 

$47.60 and an estimated loaded rate of 160% of 

hourly rate) for labor will be incurred (based on the 

cost of a ROW manager’s loaded hourly rate). 

the facility can remain in operation 

permanently. This situation, which 

FHWA anticipates will continue with 

TAP projects, raises a question about 

how to protect the Federal financial 

investment in the project. This NPRM 

proposes adding section 710.511(c), 

requiring a TAP property agreement 

through which FHWA and acquiring 

agency establish an agreed-upon 

methodology for determining any 

required repayment of Federal funds in 

the event the TAP-funded facility is 

compromised or eliminated. 

8. Federal Land Transfers and Direct 

Federal Acquisitions 

The proposed revisions to section 

710.601 (Federal land transfers) are 

intended to clarify the process and to 

simplify the land transfer procedures 

that apply when land owned by a 

Federal agency is needed for a project. 

The changes proposed will incorporate 

a conforming amendment made in 

section 1104(c)(6) of MAP–21 (see 

proposed section 710.601(a)), which 

clarified that Federal land transfers are 

available for title 23-eligible highway 

projects that are not on a Federal 

highway system. 

The NPRM also proposes clarifying 

revisions to section 710.603 (Direct 

Federal acquisition), which addresses 

direct Federal acquisition of property 

for title 23 highway projects. The 

changes in paragraph (a) are intended to 

clarify that the provisions are applicable 

to property needed for Interstate 

highway or Defense Access Road 

projects, and related application 

requirements are relocated to (a). The 

proposed new section 710.603(b), would 

cover the use of Federal direct 

acquisition authority for projects 

administered by the FHWA Office of 

Federal Lands Highways that are not 

covered by 710.603(a). The proposed 

regulation would better align the 

regulation to the existing practices and 

the needs of the programs carried out by 

FHWA’s Federal Lands Highway 

Divisions under chapter 2 of title 23. 

The proposed language also clarifies 

that FHWA, when it carries out direct 

Federal acquisitions on behalf of a 

grantee or another Federal agency, does 

not acquire or retain any land 

management rights or responsibilities. 

C. Costs and Benefits 

The FHWA estimated the incremental 

costs associated with two new 

requirements proposed in this NPRM 

that represent a change to current 

practices for State DOTs and 

Metropolitan Planning Organizations 

(MPO). These costs will be primarily 

incurred by SDOTs. The FHWA derived 

the costs 1 of the two components by 

assessing the expected increase in level 

of effort from labor to update ROW 

manuals, and the increase in level of 

effort required to comply with new early 

acquisition requirements. 

To estimate costs, FHWA first 

considered the costs associated with 

updating the SDOT ROW manual. The 

FHWA multiplied the level of effort, 

expressed in labor hours, with a 

corresponding loaded wage rate for the 

professional staff necessary to complete 

updates to the ROW manual. Following 

this approach the undiscounted 

incremental costs to comply with this 

rule are $890,000.2 Approximately 80 

percent of these costs represent one time 

costs to implement this rule.3

Similarly, to estimate costs associated 

with complying with the new early 

acquisition requirements, FHWA 

multiplied the level of effort, expressed 

in labor hours, with a corresponding 

loaded wage rate for the professional 

staff necessary to comply with those 

requirements and additional effort that 

may be associated with the new early 

acquisition flexibilities. Following this 

approach, the annual undiscounted 

incremental costs to comply with this 

rule are $950,000.4 The FHWA does not 

believe that any of these costs represent 

one time costs to implement this rule. 

The FHWA could not directly 

quantify the expected benefits due to 

data limitations and the amorphous and 

qualitative nature of the benefits from 

the proposed rule. The FHWA believes 

that significant new flexibilities in early 

acquisition will allow SDOTs to acquire 

real property interests earlier, ensuring 

parcel availability, ROW cost control 

and cost certainty, and expected 

reductions in project delay claims due 

to ROW not being available. The FHWA 

believes that the expected qualitative 

and quantitative benefits from the use of 

the early acquisition flexibilities alone 

will exceed the cost of implementing 

the rule. In addition, FHWA believes 

that significant benefits may accrue 

because this proposal clarifies and 

streamlines additional requirements 

including property management 

requirements, stewardship and 

oversight requirements, and Federal 

Land transfer requirements. 

The FHWA invites comments on its 

cost estimates and discussion of 

benefits. 

II. Background 

The FHWA provides funds to States 

and other grantees under title 23 for 

reimbursement of costs incurred in 

acquiring the real property needed for 

highways and other transportationrelated projects. The primary 

regulations dealing with real property 

interests, reimbursement, and 

management of ROW are in 23 CFR part 

710. Additional regulations in 23 CFR 

parts 635 and 810 address ROW 

certification and use of ROW by a transit 

agency, respectively. On July 6, 2012, 

President Obama signed into law MAP– 

21. One of the primary purposes of this 

NPRM is to provide regulatory direction 

on the use of new flexibilities contained 

in section 1302 of MAP–21. This 

proposed rule would clarify and 

streamline program requirements. The 

proposed rule also would help 

accelerate project delivery and enhance 

the Federal-State partnership. Both of 

these objectives are consistent with 

MAP–21 goals, as articulated in section 

1302 and other provisions. 

This NRPM also proposes revisions to 

reduce duplication in the existing 

regulations and to clarify and update the 

real property regulations based on the 

FHWA’s experience with administration 

of the current regulations. The FHWA 

proposals for changes to 23 CFR parts 

635, 710, and 810 will better ensure 

consistency in interpretation and better 

align the language of the regulations 

with current program needs and best 

practices. In developing this NPRM, 

FHWA considered public input received 

during the Office of Management and 

Budget’s recently completed 

Retrospective Regulatory Review. In 

August 2011, the DOT published its 

Final Plan for Implementation of 

Executive Order 13563, Retrospective 

Review and Analysis of Existing Rules. 

This Final Plan outlines the DOT efforts 

to review existing regulations, expand 

public participation in the regulatory 

process, and enhance oversight of 

regulatory development and review. As 

part of the development of the DOT 

Final Plan, the DOT held a public 

meeting in March 2011 on its 

preliminary plan and solicited public 


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input on specific rules that should be 

reviewed. As a result of this outreach, 

FHWA received public comments on 13 

topic areas. 

In the August 2011 Final 

Implementation Plan, the DOT 

identified 23 CFR part 710 as an area for 

future study and possible regulatory 

action. The FHWA received comments 

covering use of Federal real property 

acquisition funds for early acquisition, 

addressing use of Federal financial 

support for corridor preservation 

acquisitions, and requesting new 

flexibilities in environmental review 

requirements and fiscal constraints as 

they pertain to federally funded early 

acquisition. As a result of the public 

comments on early acquisition of ROW, 

FHWA re-examined the regulations on 

early acquisition to identify beneficial 

changes. The FHWA believes that the 

new flexibilities provided in MAP–21 

for federally funded early acquisition 

provide most of the flexibilities that the 

commenters sought. 

The evolution of the Federal-aid 

highway program in recent years, 

including changes in the parties 

involved in carrying out the program 

and in funding eligibilities under title 

23, produced a number of challenges in 

drafting the real estate regulations. 

Historically, the Federal-aid highway 

program has been a federally assisted 

State program administered through 

SDOTs. The SDOTs remain the primary 

grantees of Federal-aid highway funds, 

and the FHWA–SDOT structure is the 

principal mechanism for administration 

of the Federal-aid highway program. 

However, there are instances when 

other entities receive funding under title 

23 and are grantees under Federal law. 

In addition, SDOTs frequently enter into 

subgrant agreements with cities, towns, 

and other governmental entities, 

collectively often referred to as ‘‘local 

public agencies’’ or ‘‘local 

transportation agencies,’’ under which 

those non-SDOT public agencies 

develop and construct facilities funded 

under title 23. This NPRM makes a 

number of changes to emphasize that 

the SDOT remains legally responsible to 

FHWA for compliance with title 23 

requirements even when the SDOT 

delegates project activities to other 

public agencies. While the terms ‘‘local 

public agencies’’ and ‘‘local 

transportation agencies’’ are frequently 

used in SDOT and FHWA publications, 

FHWA proposes to continue to use the 

term ‘‘State agency’’ in part 710 to 

include these local entities, as the 

definition of ‘‘State agency’’ in section 

710.105(b) has long included all public 

agencies. 

In this proposed rule, FHWA 

continues the philosophy of relying on 

an approved ROW manual as one of the 

primary tools for implementing the 

Federal-State partnership and ensuring 

compliance by all grantees and 

subgrantees with applicable 

requirements. The SDOT ROW manual 

would continue to be the ROW manual 

most often used in the program, guiding 

the work of the SDOT and its 

subgrantees and contractors. However, 

this NPRM also would authorize nonSDOT entities to adopt or develop a 

ROW manual or a RAMP, and provides 

proposed procedures for those actions 

in proposed section 710.201(c). The 

approved ROW manual provides the 

detail needed to successfully carry out 

an acquisition program with 

consistency, and to ensure compliance 

with applicable statutes, regulations, 

and policies. The manual also serves to 

document a grantee’s ROW procedures 

and practices for use by its ROW 

personnel, other public agencies, and 

individuals working with the grantee, 

and the FHWA. 

III. Section-by-Section Discussion of the 

Proposals 

The proposed revisions to 23 CFR 

parts 635, 710, and 810 are described 

below. The FHWA filed a redline 

version of parts 635, 710, and 810 in the 

docket to show all proposed changes to 

the regulatory text and facilitate public 

review and comment. In addition to 

these changes, FHWA proposes to make 

minor changes throughout the 

regulations to eliminate outdated 

references, such as the change from 

‘‘STD’’ to ‘‘SDOT,’’ and clarify meaning 

without changing the intended scope or 

effect of the regulations. The FHWA 

proposes retaining the current order of 

the sections in part 710, which are 

ordered in the sequence agencies follow 

when developing and implementing a 

Federal-aid project. This will assist the 

public and grantees in locating 

regulations applicable to a specific point 

of interest. 

PART 635—CONSTRUCTION AND 

MAINTENANCE 

Subpart C—Physical Construction 

Authorization 

Section 635.309 Authorization 

Over the course of the last several 

years, FHWA has identified and 

deployed innovations and flexibilities 

that can accelerate project delivery. 

Most recently, FHWA has promoted a 

number of these opportunities through 

the ‘‘Every Day Counts’’ (EDC) initiative. 

Information on the flexibilities in ROW 

practices and procedures is available at 

http://www.fhwa.dot.gov/

everydaycounts/projects/toolkit/

row.cfm. One of the EDC flexibilities 

promoted was the use of a conditional 

ROW certification. This NPRM proposes 

more flexible procedures for the use of 

conditional ROW certifications as a 

basis for authorizing construction 

contract bidding to proceed, while 

retaining necessary protections for 

owners and occupants. 

The FHWA’s traditional approach to 

authorizing the advertising for 

construction bids and the beginning of 

construction has been to require that all 

necessary real property has been 

acquired for the entire project, with 

limited exceptions. This approach 

ensures that property owners’ rights are 

protected, but FHWA’s experience 

shows the current requirements in 

section 635.309(c)(3) are too stringent 

and can unnecessarily delay the 

advertisement for bids and 

consequently, the commencement of 

construction. The FHWA believes that 

when most properties for a project have 

been acquired, advertising for 

construction bids while the SDOT 

finalizes the acquisition of a small 

remaining number of needed real 

property interests is not detrimental to 

the goal of protecting property owners’ 

rights. The FHWA review of current 

practice and project delivery needs, 

including discussions with SDOTs 

during EDC presentations around the 

United States, concluded that it is 

possible to protect the rights of owners 

and occupants without delaying 

advertising when only a few 

acquisitions remain incomplete. These 

rights can be protected on a parcel-byparcel basis by including provisions in 

the conditional certification to ensure 

those who have not yet moved from 

properties needed for construction are 

protected against unnecessary 

inconvenience or any action that is 

coercive in nature. 

Accordingly, FHWA proposes to 

revise section 635.309(c)(3) to provide 

broader authority for funding grantees to 

use a conditional ROW certification 

procedure in order to permit 

advertisement of a project provided that 

assurances are in place for taking 

adequate care and precautions to protect 

the rights of property owners and 

tenants. This rule proposes removing 

existing language that limits State 

requests for authorization for 

advertisement on this basis to very 

unusual circumstances and removing 

the statement that this exception must 

never become the rule. The use of the 

conditional certification will still be an 

exception to the requirement in 


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635.309(c)(1) that legal and physical 

possession must have been acquired for 

all necessary rights-of-way for the 

project, but this change will allow 

bidding to proceed unless FHWA finds 

it would not be in the public interest. 

The use of a conditional certification to 

support authorization for construction 

would continue to be limited. The 

NPRM proposes language clarifying that 

FHWA will not approve construction 

based on a conditional certification 

unless there are exceptional 

circumstances that make such action in 

the public interest. This proposed rule 

would require that SDOTs provide 

FHWA with an update on the status of 

any properties not available and a 

realistic date when such properties will 

be available prior to FHWA approval of 

a notice to proceed with construction. 

While the proposed rule would 

provide broader flexibility, FHWA 

believes grantees will need to exercise 

caution in using this authority, given 

the risk it could create for delay claims 

from contractors during construction. 

The proposed rule identifies this risk 

and provides limitations on FHWA 

participation in such claims. The 

proposed rule clarifies that Federal 

participation in the cost of such delay 

claims is subject to 23 CFR 635.124, 

including consideration of whether the 

SDOT followed approved processes and 

procedures. The NPRM would also 

mitigate the risk of increased 

construction delay claims by requiring 

that advertisements for bids must 

specify whether all ROW has been 

obtained for the project. 

This NPRM proposes, in 635.309(h), 

to replace an outdated reference to 

FHWA directives with a reference to the 

requirements of 49 CFR part 24, the 

Uniform Act implementing regulations. 

References to the FHWA Division 

Administrator in various parts of section 

635.309 would be changed to simply 

‘‘FHWA.’’ This is consistent with the 

usage in part 710 and better supports 

FHWA’s efforts to adjust internal 

delegations of authorities when needed. 

PART 710—RIGHT-OF-WAY AND REAL 

ESTATE 

Subpart A—General 

Section 710.103 Applicability 

This rule proposes several changes to 

the current section 710.103, which 

provides information on when 23 CFR 

part 710 applies. The changes are 

proposed to clarify when these rules 

would apply. In recent years, FHWA has 

addressed a number of questions about 

the applicability of 23 CFR part 710 in 

instances where no Federal funds were 

used for acquisition of real property, 

where there was limited title 23 funding 

in planning or environmental portions 

of the project, and where the property 

was acquired in advance of a title 23- 

eligible project. The FHWA believes that 

the proposed clarifications will resolve 

these questions on the applicability of 

part 710. 

The first clarification is that this rule 

applies whenever title 23 grant funds 

are expended, including when the funds 

are used to pay for activities carried out 

by contractors or others on behalf of a 

grantee or subgrantee. This NPRM also 

includes a terminology change when 

referring to title 23 funding. Previously, 

the regulations used the term 

‘‘apportioned funds’’ to describe how 

funds were provided to SDOTs and 

local public agencies. The use of the 

term ‘‘grant funds’’ will allow for a more 

accurate description of how funds are 

provided without changing the 

underlying requirements or 

applicability. 

The second change involves adding 

proposed language to clarify that 

grantees of funds under this part who 

allow others to use the funds are 

responsible for oversight of the use of 

the funds. This oversight is intended to 

ensure that applicable requirements and 

rules have been followed. This NPRM 

also proposes adding language to this 

section to alert readers to the 

distinctions inherent in the terminology 

used to refer to various parties affected 

by part 710. 

Section 710.105 Definitions 

This NPRM proposes a number of 

revisions to the definitions in section 

710.105(b). The proposed rule includes 

several changes to update terms that are 

used throughout the proposed 

regulation, such as the reference to the 

SDOT (rather than the current ‘‘STD’’). 

In addition, FHWA proposes adding 

terms to clarify the regulation and to 

carry out changes enacted in MAP–21, 

which expanded the acquisition options 

for States. Several changes are being 

proposed to clarify the meaning and 

applicability of definitions in the 

current regulation. The FHWA believes 

that the proposed clarifications are 

necessary to respond to questions and 

comments from our partners in recent 

years. 

For terms not specifically defined in 

proposed section 710.105 (Definitions), 

this NPRM proposes to replace 23 CFR 

part 1 with 23 U.S.C. 101(a) as the 

alternate source for definitions. The 

FHWA concluded that the list of 

definitions in the statute was more 

current and more complete than those 

in 23 CFR part 1. 

This NPRM proposes a revision to the 

definition of ‘‘access rights’’ to 

substitute ‘‘public way’’ for ‘‘street or 

highway.’’ The purpose of this revision 

is to clarify that access rights to allow 

for ingress and egress include access to 

a public way and are not restricted to a 

street or highway. 

The FHWA proposes to eliminate the 

definitions of ‘‘air rights’’ and ‘‘air 

space,’’ as part of an overall effort to 

update the approach to property 

management by consolidating and 

simplifying the categories of 

transactions involving real property 

acquired for a title 23-funded facility. 

The FHWA has received some questions 

in the past about when and how these 

definitions and the requirements are 

applied. The proposed rule would no 

longer use the term ‘‘air space,’’ and 

would instead use the term ‘‘real 

property interests.’’ The proposed rule 

replaces the term ‘‘air rights’’ with a 

new definition for ‘‘ROW use 

agreement,’’ which refers to agreements 

for the use of real property interests for 

non-highway uses. As explained further 

in the preamble summary of the 

definition of ‘‘ROW use agreement,’’ 

these agreements cover all land transfers 

in the ROW except permanent 

conveyances of real property interests. 

This new approach is discussed in more 

detail in the summaries for proposed 

changes to sections 710.405–409. 

This rule proposes a clarification to 

the definition of ‘‘damages,’’ to clearly 

state that damages under this part apply 

to real property only. Because the 

current definition refers to remainder 

property, without explicitly limiting it 

to real property, the current definition 

may be misread to apply to either real 

or personal property. 

This NPRM proposes clarifying the 

definition of ‘‘disposal’’ by adding 

language confirming that disposals 

involve the transfer of permanent rights 

in real property and are subject to the 

requirements in 23 CFR 710.403. This 

rule also proposes a revision to the 

definition to clarify that disclaiming or 

informally abandoning ROW or real 

property interests that were either 

purchased with title 23 funds or 

incorporated into a title 23-funded 

project is a form of real property 

disposal. As such, that disclaimer or 

abandonment is subject to the real 

property disposal regulations contained 

in this regulation. The FHWA has 

received questions in the past about 

how this definition applied where an 

action was proposed that was not a sale 

of real property, but would result in a 

conveyance or other permanent change 

in ownership or use of real property. 

The FHWA believes that the proposed 


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5http://www.fhwa.dot.gov/real_estate/

practitioners/uniform_act/acquisition/real_

property.cfm. 

change eliminates any confusion that 

has arisen over when the regulations 

apply. 

This rule proposes to revise the 

definition of ‘‘donation’’ to ensure that 

it is clearly understood property owners 

must be informed in writing of their 

rights and potential benefits under the 

Uniform Act prior to making a donation. 

The FHWA believes written notice has 

always been an inherent aspect of 

effective compliance with the Uniform 

Act, but the agency has concluded a 

specific statement would be useful to 

avoid any possible confusion. The 

FHWA believes that this requirement 

can be met by using informational tools, 

such as pamphlets currently available 

on the FWHA Web site,5 that are 

currently used to provide property 

owners with information on the 

Uniform Act and the real estate 

acquisition procedures. 

This NPRM proposes to update the 

definition of ‘‘early acquisition’’ to 

eliminate the existing reference to 

project authorization and to instead 

focus the definition on the relationship 

between the early acquisition and the 

completion of the environmental review 

for the transportation project for which 

the acquired real property interests 

would be used. This change also will 

make the definition conform to 

revisions under MAP–21, and ensure 

the definition will cover the full range 

of early acquisition options now 

available. 

In addition, this NPRM proposes 

adding a new definition, ‘‘Early 

Acquisition Project.’’ As explained more 

fully in the description of changes to 23 

CFR 710.501, section 1302 of MAP–21 

provides new flexibilities for carrying 

out real property acquisitions in 

advance of a Federal environmental 

decision on a proposed transportation 

project. One of those flexibilities is to 

treat the early acquisition itself as a 

Federal-aid project, eligible for 

reimbursement from title 23 

apportioned funds if applicable 

requirements are satisfied. The MAP–21 

section 1302 amends 23 U.S.C. 108 to 

allow States to develop a project that 

consists solely of the early acquisition of 

real property (23 U.S.C. 108(d)). An 

Early Acquisition Project can consist of 

the acquisition of real property interests 

in a specific parcel, a portion of a 

transportation corridor, or an entire 

transportation corridor. This new 

authority for federally funded early 

acquisition, added to the authorities for 

early acquisition under pre-MAP–21 

law, enhanced the need for terms in the 

regulation that would clearly 

distinguish projects for the early 

acquisition of real property under 

section 710.501 (an ‘‘Early Acquisition 

Project’’) from the proposed projects for 

which the early-acquired property 

would be used (a ‘‘transportation 

project’’). 

This NPRM proposes to add a new 

definition, ‘‘excess real property.’’ The 

proposed definition defines excess real 

property interests as those not needed 

currently or in the foreseeable future for 

transportation purposes or other uses 

eligible under title 23. The FHWA 

believes that this new definition will 

help eliminate confusion that has 

existed about the appropriate use of 

disposal procedures, and about the 

differences between agreements for the 

alternate use of real property that may 

be needed in the future for 

transportation purposes (a ROW use 

agreement under this NPRM) and 

property that is no longer needed 

(excess real property under this NPRM). 

The proposed rule would add new 

definitions for the terms ‘‘Federal-aid 

project,’’ ‘‘federally assisted,’’ ‘‘grantee,’’ 

and ‘‘subgrantee.’’ The FHWA 

concluded there is a need for each of 

these defined terms in order to clarify 

the meaning and applicability of certain 

parts of the regulation. ‘‘Federal-aid’’ 

and ‘‘federally assisted’’ distinguish 

between projects receiving funds under 

chapter one of title 23 and projects 

receiving funds from any part of title 23. 

The term ‘‘grantee,’’ as proposed in this 

NPRM, would mean the party that is the 

direct recipient of title 23 funds and is 

accountable to FHWA for the use of the 

funds and for compliance with 

applicable Federal requirements. This 

NPRM proposes to define ‘‘subgrantee’’ 

as ‘‘a governmental agency or other legal 

entity that enters into an agreement with 

a grantee to carry out part or all of the 

activity funded by title 23 grant funds.’’ 

This NPRM proposes a definition for 

‘‘mitigation property.’’ This term is used 

in the proposed definition for real 

property, discussed below. The FHWA 

believes including a definition of 

‘‘mitigation property’’ will avoid 

confusion in the future about the 

intended scope of the term when it 

appears in later sections of the 

regulation. This proposal also is 

consistent with the FHWA’s proposal, 

as described later in this NPRM, to 

delete section 710.513 on environmental 

mitigation, and instead to insert 

references to environmental mitigation 

or mitigation property where relevant in 

the regulatory text. 

This NPRM proposes to delete the 

definition of National Highway System 

(NHS) from this regulation. The FHWA 

believes that the definition of NHS in 23 

U.S.C. 101(a) provides the needed 

definition. 

This NPRM proposes to add a new 

definition for ‘‘option.’’ Section 1302 of 

MAP–21 in part redefines and expands 

the types of real property acquisitions 

that are eligible for Federal 

reimbursement. The MAP–21 changes 

all references in 23 U.S.C. 108 from 

‘‘real property’’ to ‘‘real property 

interests’’ and defines real property 

interests to include a contractual right to 

acquire an interest in land. The new 

definition of ‘‘option’’ in the NPRM will 

clarify that the cost of acquiring an 

option and other types of real property 

interests is eligible for reimbursement 

under title 23. 

This NPRM is proposing to add a 

definition of ‘‘person’’ to this regulation. 

This definition is taken directly from 49 

CFR part 24. The addition of a 

definition of a ‘‘person’’ is proposed to 

clarify to whom this NPRM applies 

when persons are acting for an SDOT or 

other agency on a project or program 

receiving title 23 funds. The proposed 

definition also defines those entitled to 

protections under this part and the 

Uniform Act. The definition is 

consistent with the definition of the 

term in the implementing regulations 

for the Uniform Act at 49 CFR 

24.2(a)(21). 

This NPRM is proposing the addition 

of a definition for ‘‘Real Estate 

Acquisition Management Plan (RAMP).’’ 

A RAMP is a document describing the 

process a subgrantee (for example a 

local public agency receiving title 23 

funds from an SDOT), non-SDOT 

grantee, or design-build contractor may 

use to carry out a title 23 grant program 

or project. A RAMP describes how such 

party will comply with title 23 

requirements. A RAMP is used in lieu 

of developing a ROW manual or 

adopting the FHWA-approved SDOT 

ROW manual. The FHWA believes that 

use of a RAMP is appropriate for a 

subgrantee, non-SDOT grantee, or 

design-build contractor if that party 

infrequently carries out title 23 

programs or projects, the program or 

project is non-controversial, and the 

project is not complex. A RAMP may 

only be used with the approval of 

FHWA or the SDOT, as discussed in 

section 710.201(d). The FHWA believes 

that a properly developed and approved 

RAMP can provide sufficient 

information and direction to assure that 

applicable title 23 and Uniform Act 

requirements are met. 

This NPRM proposes to revise the 

definition of ‘‘real property.’’ Section 

1302 of MAP–21 clarifies the types of 


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real property interests that can be 

acquired prior to completion of the 

NEPA review for a Federal-aid project 

by revising 23 U.S.C. 108 to replace the 

terms ‘‘real property’’ and ‘‘right-ofway’’ with ‘‘real property interests.’’ 

Prior to MAP–21, the statute used the 

terms ‘‘right-of-way’’ and ‘‘real 

property’’ when describing eligibility (in 

23 U.S.C. 108(a)) and Federal-aid 

participation (in 23 U.S.C. 108(b) and 

(c)). Part 710 currently uses both terms 

in its various subparts. The FHWA 

proposes to modify the existing 

definition of ‘‘real property’’ to 

incorporate the term ‘‘real property 

interests,’’ as adopted in MAP–21, as an 

equivalent term. This NPRM uses the 

terms ‘‘real property’’ and ‘‘real property 

interests’’ interchangeably. 

Under the definition of ‘‘acquisition 

of a real property interest’’ in 23 U.S.C. 

108(d)(1), as enacted in MAP–21, real 

property interests include contractual 

rights to acquire an interest at a later 

date, and rights that restrict certain uses 

of the property for a specified period of 

time. Accordingly, this NPRM proposes 

adding such interests to the definition of 

‘‘real property.’’ This will clarify that 

grantees may acquire limited, less-thanfee interests in property, including 

options, temporary development rights, 

and rights-of-first-refusal, that permit a 

grantee to ensure it can later purchase 

the real property needed for a project 

eligible for title 23 funding. 

This NPRM is proposing to revise the 

definition of ‘‘right-of-way’’ to include 

the use of real property for mitigation 

for a transportation-related facility. The 

FHWA believes that this change will 

clarify that mitigation property is an 

eligible expense when it is a required 

part of an approved transportation 

project under title 23. 

This NPRM proposes to add a 

definition for the term ‘‘ROW manual.’’ 

The FHWA believes it would be helpful 

to have the definition to support the 

changes proposed for section 710.201(d) 

that discuss ROW manuals and alternate 

procedures for non-SDOT parties. 

This NPRM proposes a new 

definition, ‘‘ROW use agreement.’’ With 

this rulemaking, FHWA is proposing to 

use the term ‘‘ROW use agreement’’ to 

encompass any non-permanent transfer 

of real property interests in the highway 

ROW. This definition covers use 

agreements for the use or occupancy of 

real property interests in the ROW short 

of a permanent conveyance. For 

example, this definition would cover 

leases, licenses, or permits for the use of 

real property interests within a highway 

ROW. The proposed definition includes 

clarifying language stating that these 

agreements are for time-limited nonhighway purposes and that the 

proposed use of the real property 

interests covered by the agreement must 

not interfere with the highway facility. 

The discussion for section 710.405 

contains additional information on 

ROW use agreements and the changes 

relating to the use and disposal of real 

property proposed in this NPRM. 

This NPRM proposes two changes to 

the definition of ‘‘settlement.’’ The 

FHWA proposes that the definition of 

‘‘legal settlement’’ be modified to 

include agreements resulting from 

mediation and stipulated settlements 

approved by a court. The FHWA 

believes that this addition will clarify 

that agreements resulting from 

mediation and stipulated settlements 

are allowable under the current 

definition of legal settlement. The 

second revision is to change 

‘‘compensation’’ to ‘‘just compensation’’ 

in the definition of a court settlement or 

award. 

The NPRM proposes to change the 

abbreviation adopted for ‘‘State 

transportation department’’ from ‘‘STD’’ 

to ‘‘SDOT.’’ This will be consistent with 

the form of reference preferred by the 

State transportation departments. 

Corresponding changes are proposed 

throughout part 710, to revise ‘‘STD’’ to 

‘‘SDOT.’’ 

This NPRM is proposing to add a 

definition of ‘‘Stewardship/Oversight 

Agreement’’ that will replace the current 

definition of ‘‘oversight agreement.’’ 

This change will eliminate 

inconsistency in the use of language in 

the regulation, will better define the 

intended meaning of the term, and 

better reflects current FHWA policy on 

the use of such agreements. The FHWA 

believes that this will clarify that any 

assignment of FHWA’s Part 710 

approvals or other responsibilities to the 

SDOT will be authorized by FHWA 

through provisions in the Stewardship/ 

Oversight Agreement executed between 

FHWA and the SDOT. How such 

responsibilities will be carried out will 

be discussed in the SDOT ROW manual, 

but the authority for the SDOT to 

exercise the responsibilities derives 

from the Stewardship/Oversight 

Agreement. 

This NPRM includes a proposal to 

add a new definition, ‘‘temporary 

development restriction.’’ The purpose 

of this addition is to clarify that 

purchasing the right to restrict an 

activity on real property is a type of real 

property interest as defined in MAP–21 

section 1302. The FHWA believes that 

this type of acquisition will be a 

valuable early acquisition tool. 

This NPRM is proposing to add a new 

definition, ‘‘transportation project.’’ The 

proposed definition, which uses the 

terms ‘‘highway project,’’ ‘‘public 

transportation capital project,’’ and 

‘‘multimodal project,’’ will ensure that 

there is a clear distinction between the 

undertaking for the early acquisition of 

real property under section 710.501 (the 

‘‘Early Acquisition Project’’) and the 

project for which the real property 

would be used (the ‘‘transportation 

project’’). 

This NPRM proposes adding a 

statutory reference to the existing 

definition of ‘‘Uniform Act.’’ 

Subpart B—Program Administration 

Section 710.201 Grantee and 

Subgrantee Responsibilities 

This NPRM proposes revising the title 

of section 710.201, which is currently 

‘‘State responsibilities,’’ to ‘‘Grantee and 

subgrantee responsibilities,’’ and 

substantially reorganizing and rewriting 

the section to clarify the roles and 

responsibilities of grantees and their 

subgrantees in carrying out real 

property-related activities under title 23. 

These changes would recognize the 

increasing instances in which FHWA 

works with title 23 grantees other than 

SDOTs. However, the changes do not 

alter the basic nature of the Federal-aid 

highway program under chapter 1, title 

23. In that program, the SDOT is the 

primary grantee and retains its special 

role and accompanying obligations. 

This NPRM proposes moving the 

discussion of program oversight from 

paragraph (b) to (a). The text in the new 

(a) would be revised, while the text in 

the newly-designated (b), relating to 

organizational requirements, would be 

unchanged except for updated 

references. 

The proposed revisions in the new 

paragraph (a) on program oversight 

include an introductory sentence that 

describes how Federal-aid funds flow to 

the SDOT. A sentence is added to clarify 

that SDOTs are responsible for ensuring 

that activities by subgrantees and 

contractors on Federal-aid projects are 

carried out in compliance with State 

and Federal legal requirements. The 

proposed changes include the addition 

of a new sentence at the end of the 

paragraph clarifying that non-SDOT 

grantees of title 23 funds must comply 

with part 710 and are responsible for 

compliance by their subgrantees and 

contractors. 

Program oversight is a critical part of 

the title 23 program. Over the last 

several years, non-SDOT grantees, local 

public agencies, and other subgrantees 

have increasingly carried out and 

delivered title 23 programs and projects. 

The FHWA believes that it is important 


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6See 60 FR 56004 (November 6, 1995) (Advanced 

Notice of Proposed Rulemaking for Right-of-Way 

Program Administration); 61 FR 18246 (April 25, 

1996) (Interim Final Rule for Right-of-Way Program 

Administration); 63 FR 71238 (December 24, 1998) 

(Notice of Proposed Rulemaking for Right-of-Way 

Program Administration); and 64 FR 71284 (Final 

Rule for Right-of-Way Program Administration). 

that this NPRM clarify grantee 

obligations for program compliance and 

oversight responsibility when 

subgrantees are performing project 

work, and to clarify the requirements 

and oversight relationship that 

subgrantees will be subject to when 

using or receiving title 23 funds or 

carrying out title 23-funded work. These 

clarifications do not create new 

requirements, but are intended to ensure 

that each grantee and subgrantee of title 

23 funds understands the requirements 

and oversight roles attached to those 

funds. 

This NPRM proposes several revisions 

to section 710.201(c). The proposed 

language requires grantees to have an 

approved ROW manual that is up to 

date. The manual must include a section 

on oversight of subgrantees and 

contractors. In the case of SDOTs, this 

includes provisions on oversight of local 

public agencies. 

The proposed rule would require 

SDOTs to submit a revised ROW manual 

reflecting the provisions of the final rule 

to FHWA for review and approval not 

later than 2 years after publication of a 

final rule. The FHWA believes that the 

SDOT ROW manual is one of the 

primary tools of the Federal-State 

partnership. The approved SDOT ROW 

manual provides the detail needed to 

successfully carry out a ROW 

acquisition program and to ensure 

compliance with applicable statutes, 

regulations, and policies. The SDOT 

ROW manual also serves to document 

ROW processes and practices for use by 

State ROW personnel, local public 

agencies, affected individuals, and the 

FHWA. 

Appropriate ROW procedures are 

equally critical to the performance of 

other parties working to deliver projects 

funded under title 23. For non-SDOT 

parties, proposed section 701.201(d) 

contains three options for establishing 

approved ROW procedures. The first 

option is submission of a written 

certification that the party will use and 

adopt the FHWA-approved SDOT ROW 

manual. The second option is for the 

party to submit its own ROW manual for 

review and approval. Third, the party 

may submit a RAMP for review and 

approval. The FHWA believes that the 

number of non-SDOT grantees will 

continue to increase, as will the SDOTs’ 

use of local public agencies to develop 

projects. The FWHA believes that 

effective oversight and stewardship are 

crucial on all title 23 projects and 

programs. The FHWA believes that the 

proposed changes provide several 

methods to achieve the desired 

stewardship and oversight outcomes 

while providing practical, easily 

achievable options for grantees and their 

partners. 

This NPRM proposes to relocate and 

revise the requirements of section 

710.201(e) of the existing rule, which 

addresses adequacy of real property 

interests acquired for a project. The 

provision would become part of the 

acquisition provisions in proposed 

section 710.305. The FHWA believes 

this general provision more logically 

relates to acquisition than to the 

administrative provisions of section 

710.201. This change is discussed in 

more detail in the analysis of section 

710.305(b). 

This NPRM proposes to redesignate 

existing section 710.201(f) (record 

keeping) as (e), and to clarify that the 

requirements apply to all acquiring 

agencies, as defined in 710.105. The 

NPRM also proposes revising the 

property management record keeping 

requirements to make them applicable 

to properties acquired with title 23 

funds or incorporated into a title 23- 

funded program or project, regardless of 

whether such properties are managed by 

the SDOT. As previously noted, FHWA 

believes the role of non-SDOT parties in 

title 23 projects and programs will 

continue to evolve and grow. These 

proposed regulatory changes are 

designed to ensure that real property 

acquired with title 23 funding is 

effectively and accurately recorded, and 

that title 23 grantees carry out property 

management programs consistent with 

the requirements of this part. 

This NPRM proposes to redesignate 

existing section 710.201(g) 

(procurement) as (f), and to clarify that 

the provision is applicable to non-SDOT 

grantees. The FHWA believes that it is 

necessary to ensure that other grantees 

of title 23 funds meet the same 

requirements that SDOTs currently 

meet. This revision will further 

safeguard that title 23 funds are used 

appropriately. 

This NPRM proposes to redesignate 

existing section 710.201(h) (use of 

public land acquisition organizations or 

private consultants) as (g). The proposed 

rule also would change the reference 

from ‘‘SDT’’ to ‘‘acquiring agency’’ and 

add ‘‘persons,’’ as defined in this rule, 

as another party that an acquiring 

agency could use to carry out its 

acquisition authority. The FHWA 

believes that these revisions will 

provide additional flexibility to 

acquiring agencies and better reflect the 

range of resources agencies may use. 

This NPRM also proposes adding 

conservation organizations to the list of 

parties, to recognize what is likely to be 

a permanent role of such parties in 

projects such as those funded under 

TAP. 

This NPRM proposes to redesignate 

existing section 710.201(i) (approval 

actions) as (h). The NPRM proposes to 

retitle the provision as ‘‘Assignment of 

FHWA approval actions to an SDOT.’’ 

The proposed rule also would delete the 

existing references to the Interstate and 

to refocus the discussion on FHWA’s 

responsibilities and the responsibilities 

that FHWA may assign to an SDOT 

under a Stewardship/Oversight 

Agreement. The FHWA believes that 

these changes are needed to ensure that 

there is a clear understanding of the 

means by which SDOTs may assume 

performance of certain FHWA approval 

and other responsibilities under part 

710, and to clarify the process that will 

be used to carry out the assumptions of 

responsibility under this part. These 

changes, together with the proposed 

clarifications to approval provisions 

such as those in subpart D (Real 

Property Management), will help 

resolve questions that have arisen since 

FHWA eliminated detailed real estate 

regulations through rulemakings 

spanning 1995 through 1999.6 Those 

rulemakings resulted in FHWA adopting 

a system that permits SDOTs to assume 

responsibility for many of the required 

FHWA approvals required under earlier 

versions of the regulations governing 

real estate and ROW. The 1999 final 

rule, which in substance is the existing 

part 710, was designed to place primary 

responsibility for most Federal-aid 

project ROW approvals at the SDOT 

level. In practice, the regulation has 

proven insufficiently clear as to the 

needed approvals and related 

requirements. The changes proposed in 

this NPRM are intended to continue the 

practice of assigning the approvals to 

the SDOT, but to clarify the approvals 

that are needed. 

This NPRM proposes to relocate and 

revise existing sections 710.201(j) 

(approval of just compensation) and 

710.201(k) (description of the 

acquisition process). The sections 

would be moved to section 710.305, 

becoming sections 710.305(c) and 

710.305(d), respectively. The FHWA 

proposed the relocation because it 

believes these sections more logically 

relate to execution of the acquisition 

process than to the program 

administration topics covered in section 


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710.201. These sections are discussed in 

more detail in the analysis of section 

710.305. 

Section 710.203 Funding and 

Reimbursement 

This NPRM proposes several changes 

to the current section 710.203 

provisions on funding and 

reimbursement. These changes are 

needed to conform to provisions in 

MAP–21 section 1302, to clarify some 

aspects of the existing regulation, and to 

simplify the regulatory text where the 

existing text no longer serves a 

necessary function. This NPRM 

proposes to revise section 710.203(a) 

(General conditions), by inserting a 

reference to title 23 funds and adding a 

specific reference to mitigation property 

to the regulation’s description of 

property acquisition costs that may be 

eligible for funding participation. This 

is consistent with FHWA’s proposal, as 

described later in this NPRM, to delete 

section 710.513 on environmental 

mitigation, and instead to insert 

references to environmental mitigation 

or mitigation property where relevant in 

the regulatory text. The FHWA believes 

that streamlining this regulation by 

deleting the longer discussion of 

mitigation properties in section 710.513, 

and incorporating simple references at 

appropriate points in the regulation, 

will improve the clarity of the 

regulation. 

The proposed rule also would revise 

section 710.203(a)(2) by inserting a 

reference acknowledging that 

documents other than the traditional 

FHWA form for a ‘‘project agreement’’ 

may be used to embody the terms and 

conditions for title 23 funding. The 

FHWA concluded this revision would 

provide needed flexibility, especially in 

the case of a non-SDOT grantee. 

This NPRM proposes revising section 

710.203(a)(3), which describes 

acquisition activities that can occur 

prior to completion of a NEPA decision 

for a project subject to title 23. In part, 

these changes are proposed for 

consistency with the early acquisition 

provisions in 23 U.S.C. 108, as amended 

by section 1302 of MAP–21. Section 108 

expressly permits certain acquisition 

activities prior to the completion of 

NEPA review for the overall project, and 

includes a provision on NEPA reviews 

for Early Acquisition Projects. 

The revisions to section 710.203(a)(3) 

also are intended to clarify the extent to 

which property valuation activities can 

occur prior to the NEPA decision. The 

proposed changes will add preparation 

of appraisals and appraisal waiver 

valuations to the list of activities that 

can be performed prior to the NEPA 

decision on the project. The NPRM 

proposes to delete ‘‘necessary for the 

completion of the environmental 

process’’ from that first part of 

paragraph (a)(3) as an outdated 

provision in light of MAP–21 and other 

changes and clarifications in the 

requirements governing the timing of 

activities on title 23 projects. The NPRM 

proposes adding a reference to 23 CFR 

646.204 after the term ‘‘preliminary 

engineering,’’ because section 646.204 

now provides a definition of 

preliminary engineering. The FHWA 

believes the proposed changes in 

section 710.203(a)(3) language relating 

to valuation work is an important 

clarification that will encourage 

grantees to begin preparation of 

appraisal and appraisal waiver 

documents early in the project 

development process. In many cases, 

beginning appraisal work early can 

result in time and cost savings later in 

the project development process, and 

those savings can outweigh the risk that 

some appraisals may not be needed or 

may need some revision as a result of 

final NEPA review and project 

alignment selection. 

This NPRM also proposes changes to 

section 710.203(a)(3), clarifying that 

negotiations must be deferred until after 

the NEPA decision, except in two cases: 

early acquisitions under section 

710.501, and hardship or protective 

acquisitions under section 710.503. The 

FHWA has responded to a number of 

requests for clarification on the timing 

of personal contact and appraisal 

preparation. In some cases, SDOTs have 

interpreted the existing regulation to 

prohibit early appraisal preparation 

because it prohibits contacting property 

owners. Contact with potentially 

affected property owners is required in 

order to prepare an appraisal. The 

FWHA believes that the revision is 

necessary to clarify that contact with 

potentially affected property owners is 

permissible for the purposes of 

developing an appraisal of real property. 

This NPRM is proposing some 

revision and clarification of sections 

710.203(b) (Direct eligible costs) and 

710.203(d) (Indirect costs). The FHWA 

believes that it is important to clarify 

what constitutes eligible direct costs in 

the context of real property acquisition 

activities. The NPRM proposal clarifies 

that eligible direct costs associated with 

acquiring real property include costs 

typically incurred in acquiring real 

property interests, such as costs to 

prepare valuations and documents 

necessary to acquire the property, cost 

of negotiations, cost associated with 

closing, and costs of finalizing the 

acquisition. These ROW acquisition 

costs must be adequately documented as 

required by 2 CFR part 225 Appendix A, 

Section (1). The FHWA also proposes to 

clarify that allowable indirect costs 

under an approved indirect cost 

allocation plan may be claimed 

consistent with 2 CFR part 225. The 

current regulation has been interpreted 

as allowing participation only in the 

cost of the real property. The FHWA has 

issued guidance in the form of questions 

and answers in the past that has 

restricted the eligibility of real property 

acquisition costs. The FHWA will revise 

that guidance to be consistent with the 

discussion in this NPRM and the final 

rule. 

The NPRM proposes to make the costs 

for real property interests such as 

options and temporary development 

rights eligible direct costs in section 

710.203(b)(1)(iii). However, FHWA also 

believes that grantees and subgrantees 

likely will need additional guidance on 

the valuation of less-than-fee real 

property interests, such as options and 

other contractual rights to acquire an 

interest in land, rights to control use or 

development, leases, licenses, and any 

other similar action to acquire or 

preserve ROWs for a transportation 

facility. The FHWA believes the factspecific and detailed nature of such 

questions is best handled through best 

practices-style guidance. If a final rule is 

adopted, the FHWA intends to develop 

guidance addressing approaches to 

valuation of the types of property 

interests listed above after the 

publication of the final rule. 

This NPRM proposes to revise section 

710.203(b)(1)(iv) by adding language to 

include an acquiring agency’s attorney’s 

fees and to exclude other attorney’s fees 

unless required by State law (including 

orders issued by courts of competent 

jurisdiction) or approved by FWHA. The 

FHWA believes that costs for outside 

counsel to represent the acquiring 

agency are a reasonable expense which 

can be incurred in the course of 

acquiring necessary real property. 

This NPRM proposes to revise section 

710.203(b)(1)(v) by using the term 

‘‘waiver valuation’’ instead of ‘‘appraisal 

waiver,’’ by adding ‘‘ROW’’ to describe 

the manual referenced in the existing 

regulation and by inserting a reference 

to the RAMP alternative to a ROW 

manual. The FHWA believes that use of 

the term ‘‘appraisal waiver’’ is no longer 

accurate because the Uniform Act 

regulation at 49 CFR 24.2(a)(33) defines 

the term ‘‘waiver valuation’’ and notes 

that a waiver valuation is not an 

appraisal. 

This NPRM proposes to revise section 

710.203(b)(5) (Payroll-related expenses) 

to update the reference to the Federal 


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Office of Management and Budget 

(OMB) regulations. The OMB 

regulations have been codified at 2 CFR 

part 225 (formerly OMB Circular A–87). 

The proposed rule would add language 

recognizing the eligibility of a grantee’s 

salary-related expenses when the 

grantee’s employees work with an 

acquiring agency or a contractor on a 

particular project. Grantees must 

document such costs in accordance with 

2 CFR part 225. This NPRM proposes to 

delete the last sentence in existing 

section 710.203(b)(5) because technical 

guidance, including oversight of 

subgrantee and contractor compliance 

or performance, is generally an 

overhead expense. Those types of 

expenses are reimbursable under the 

indirect costs section of the regulations. 

This NPRM proposes to revise section 

710.203(b)(6) (Property not incorporated 

into a project funded under title 23) by 

deleting the reference in paragraph (i) to 

the Transportation Enhancement 

Program and replacing it with a 

reference to the new TAP. Congress did 

not reauthorize the Transportation 

Enhancements Program in MAP–21, but 

instead included elements of that 

program in the newly enacted TAP, as 

described in MAP–21 Sections 1103 and 

1122. Proposed changes related to TAP 

are discussed in more detail below in 

the summary of proposed changes to 

section 710.511. 

This NPRM proposes to revise section 

710.203(b)(6)(ii) by adding a reference to 

alternate access points. The FHWA 

believes that this addition will further 

clarify that construction or maintenance 

of a title 23 eligible project may create 

the need to provide access outside the 

ROW to maintain access to that 

property. This would be treated as an 

eligible project activity. 

This NPRM proposes to revise section 

710.203(d) (Indirect costs) to update the 

reference to OMB regulations which 

have been codified at 2 CFR part 225 

(formerly OMB Circular A–87). The 

proposed rule also would revise the 

paragraph to clarify that an SDOT may 

approve an indirect cost plan for its 

subgrantee unless the subgrantee has a 

rate approved by a cognizant Federal 

agency. 

Subpart C—Project Development 

This NPRM proposes to modify 

subpart C on project development to 

streamline and clarify this subpart by 

eliminating redundant sections covering 

topics that are more appropriately 

addressed elsewhere in this regulation 

or are the subjects of other parts of title 

23 CFR. The FHWA notes that these 

proposed revisions are not intended to 

substantively change the applicability or 

scope of the regulatory requirements 

pertaining to the project development 

process. 

The FHWA proposes to delete 

existing sections 710.303 (planning) and 

710.305 (environmental analysis). The 

FHWA believes that the general 

discussion currently included in these 

sections neither adds to nor improves 

upon the information on the planning 

and environmental analysis found in 23 

CFR part 450 and 23 CFR part 771. 

The FHWA proposes to renumber the 

sections in subpart C that follow section 

710.305 in the existing regulation and 

revise all sections remaining in subpart 

C, as discussed below. 

Section 710.301 General 

This NPRM proposes to revise 

710.301 by listing each of the key steps 

in the project development process in 

the last sentence of the paragraph. The 

FHWA believes that this description of 

the key steps in the project development 

process will give sufficient information 

to provide a general understanding of 

the overall process. 

Section 710.303 Project Authorization 

and Agreements 

The FHWA proposes to retitle this 

section, which appears as section 

710.307 in the existing regulation, by 

changing the existing header ‘‘Project 

Agreements’’ to ‘‘Project Authorization 

and Agreements.’’ The change 

recognizes that project agreements no 

longer are the sole form of document 

used by FHWA to set forth the terms 

and conditions of funding and authorize 

project work. 

The proposed rule also would revise 

the section by adding new references to 

proposed early acquisition provisions in 

710.501(d) and 710.501(e). The result 

would be that section 710.303 would 

reflect the new early acquisition 

provisions in section 1302 of MAP–21. 

The NPRM proposes striking the last 

sentence of the existing provision, 

which contains transition language 

dating from a prior rulemaking. There 

should no longer be a need for the 

outdated transition provision. 

The NPRM proposes substituting the 

phrase ‘‘Federal funding under title 23’’ 

for ‘‘Federal-aid’’ in the first sentence of 

the existing section. This change would 

make it clear that the provision applies 

to all title 23-funded grants. 

Section 710.305 Acquisition 

This section, which appears as section 

710.309 in the existing regulation, 

would be revised to add a more 

complete description of the acquisition 

process. This NRPM proposes adding 

language to clarify that grantees are 

responsible for ensuring compliance 

with the oversight and other 

requirements in this section. The FHWA 

believes that program oversight is a 

critical part of the title 23 program and 

that it is more likely in the future that 

non-SDOT grantees and subgrantees 

will be active in delivering title 23- 

funded projects. 

This NPRM proposes a new section 

710.305(b), inserting the provisions 

relating to the required acquisition of 

adequate real property interests for a 

project. The long-standing agency 

interpretation of the provision, formerly 

in 710.201(e), is that the project owner 

must own or control adequate real 

property interests to support the project. 

This view has not changed, but MAP– 

21’s revisions to 23 U.S.C. 108 have 

made it necessary to address how 

paragraph (b) applies in the context of 

Early Acquisition Projects under 23 

U.S.C. 108(d) and 23 CFR 710.501. For 

example, States can now carry out 

reimbursement eligible early 

acquisitions by acquiring an option to 

purchase the real property at a later 

date, or by acquiring an interest that 

restricts certain activities on real 

property for a specific period of time. 

To address this additional flexibility, 

the proposed revisions would clarify 

that the real property interests acquired 

must be adequate for the purpose of the 

project. Less-than-fee types of interests 

may be adequate when carrying out an 

Early Acquisition Project, as defined in 

proposed section 710.105. Before 

beginning the transportation project, as 

defined in this NPRM, the grantee 

would still need to acquire adequate 

real property interests necessary for the 

construction, operation, and 

maintenance of the resulting facility and 

for the protection of both the facility 

and the traveling public. 

Proposed section 710.305(c), relocated 

from existing section 710.201(j), 

addresses the approval of just 

compensation for acquired real property 

interests. The proposed rule would 

revise the heading to ‘‘Establishment 

and offer of just compensation.’’ The 

revised language would include the 

phrase ‘‘believed to be just 

compensation’’ rather than ‘‘determined 

to be just compensation.’’ This new 

language would more appropriately and 

correctly describe what it is that an 

acquiring agency approves. An 

acquiring agency’s process, as set forth 

in its approved ROW manual, should 

lead it to a good faith offer that it 

believes represents just compensation. 

In some cases, when there is a 

disagreement about just compensation, a 

court ultimately establishes just 


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compensation after hearing all of the 

facts. The revised language in proposed 

section 710.305(c) would expressly 

require the process to be done in 

accordance with the Uniform Act 

regulation at 49 CFR 24.102(d), which 

requires establishment and offer of an 

amount believed to be just 

compensation. The FHWA believes that 

these changes will provide a correct, 

clear, and concise discussion of 

requirements which will ensure that 

agencies appropriately establish offers 

of just compensation. 

Proposed section 710.305(d), 

relocated from existing section 

710.201(k), addresses the description of 

the acquisition process that acquiring 

agencies must provide to persons 

affected by title 23-funded acquisitions. 

This NPRM proposes to revise the 

existing language to clarify that the 

requirements of 49 CFR 24.5 (manner of 

notices), 24.102(b) (notice to owner) and 

24.203 (relocation notices) are 

applicable to transactions advanced 

under title 23. The FHWA believes that 

the proposed changes provide clear, 

understandable references to the 

Uniform Act provisions that define the 

processes used to acquire real property, 

and delineate the owner’s rights, 

privileges, and obligations. These 

Uniform Act provisions are critical to 

the real property acquisition process. In 

particular, FHWA has noted that 

providing written descriptions of 

Uniform Act rights and benefits in 

languages other than English is 

necessary due to the variety of 

languages spoken by the owners and 

tenants that an acquiring agency may 

encounter during the acquisition of real 

property. 

Section 710.307 Construction 

Advertising 

This NPRM proposes to revise the 

newly redesignated section 710.307, 

which appears as section 710.311 in the 

current regulation, by updating 

references throughout to more 

accurately describe the parties affected 

by the section. The proposed rule also 

would update the description of the 

types of responsibilities that may be 

covered in the Stewardship/Oversight 

Agreement between FHWA and the 

SDOT. The changes will make the 

section consistent with MAP–21 

revisions to 23 U.S.C. 106. 

Section 710.309 Design-Build Projects 

This newly redesignated section 

710.309, which appears as section 

710.313 in the current regulation, would 

be updated in several ways. Paragraph 

(a) would be modified to update terms. 

The proposed terms would more 

accurately identify the parties affected 

by the section and would be consistent 

with other revisions throughout part 

710. Similarly, technical corrections 

would be made to references and 

language in paragraph (b). 

This NPRM proposes to revise 

redesignated section 710.309(c) by 

deleting the first sentence, which 

presently discusses incorporation of 

ROW and clearance services into the 

design-build contract. The remainder of 

paragraph (c) would be revised to focus 

on options for ROW actions and 

approvals in the design-build setting. In 

all situations, the grantee is responsible 

for ensuring that construction activities 

do not have a material adverse impact 

on property owners whose property has 

not been acquired, whose relocation has 

not been completed, or who lawfully 

remain in the project area. 

This NPRM proposes to revise the 

redesignated section 710.309(d), to 

streamline it and focus on the role of the 

grantee (normally, the SDOT) in 

ensuring design-build contractors 

comply with applicable requirements. 

The NPRM proposes removing the 

detailed descriptions of ROW 

procedures in the existing (d)(1)(i)–(ii). 

In place of those paragraphs, the NPRM 

proposes to insert a new 710.309(d)(1) 

that would require the contractor to 

certify it will comply with an FHWAapproved ROW manual or RAMP in 

accordance with the provisions on ROW 

manuals and alternatives in sections 

710.201(c) and (d). The FWHA believes 

that the current regulation in large part 

duplicates detailed material contained 

in SDOT ROW manuals, and the agency 

thinks it is appropriate to redirect the 

focus of the regulation to the use of an 

FHWA-approved ROW manual or 

RAMP. Under the proposed rule, an 

approved ROW manual or RAMP will 

provide direction as to what is required 

of a design-build contractor for the 

project. The FHWA believes these 

changes provide additional clarity to 

this section and will put proper 

emphasis on the use of an approved 

ROW manual or RAMP. 

This NPRM proposes to delete 

paragraph (d)(2) from the existing 

regulation, removing the discussion on 

acquisition and relocation plans and 

project tracking systems. This language 

is no longer necessary in light of the 

proposed revision of paragraph (d)(1) to 

require the design-builder to submit 

written certification that it will comply 

with the procedures in an approved 

ROW manual or RAMP. 

This NPRM proposes to redesignate 

the succeeding paragraph in the new 

section 710.309 to reflect the deletion of 

existing paragraph (d)(2). The NPRM 

proposes to revise the new section 

710.309(d)(2), concerning the 

establishment of hold off zones, by 

making the creation of hold off zones 

mandatory rather than permissive when 

the relocation of displaced persons has 

not been completed. The FHWA 

believes that it is critical that a designbuild project use a process to address 

and enforce protections that ensure that 

displaced persons are not subject to 

unwanted or harmful impacts or effects 

of construction. 

This proposed rule would eliminate 

the existing paragraphs (d)(4), (5), and 

(6), which address how to handle 

specific issues when relocations have 

not been completed. In place of those 

provisions, FHWA proposes to adopt a 

more general standard that focuses on 

the expected outcome when ongoing 

construction occurs in proximity to 

owners and tenants still in occupancy. 

The new language, which would appear 

in the redesignated 710.309(d)(3), would 

limit contractor’s activities to those that 

the grantee determines do not have a 

material adverse impact on the quality 

of life of those occupying properties that 

have been or will be acquired for the 

project, but who have not yet relocated. 

The FHWA believes that the new 

language includes by implication the 

kinds of protections previously detailed 

in the existing regulation. The new 

language would also encompass other 

types of adverse impacts on such 

owners and tenants. These protections 

are the types of requirements that 

typically would be addressed in the 

approved ROW manual or RAMP, 

which design-build contractors now 

will have to follow. The FHWA believes 

project-specific aspects of these 

requirements are best addressed either 

in the project’s contract documents, or 

as part of a project work plan. 

This NPRM would redesignate the 

remaining paragraph (d)(7) in the 

existing regulation as section 

710.309(d)(4), and would update the 

terms used in the paragraph. 

This NPRM proposes to update the 

references in the redesignated section 

710.309(e) to reflect the new section 

number for the regulatory language 

relating to construction advertising, 

section 710.307. 

Subpart D—Real Property Management 

This NPRM proposes to restructure 

Subpart D by eliminating and revising 

the sections of this part of the regulation 

that currently cover air space, air rights, 

leasing and disposal. The FWHA 

believes that this part can be updated, 

clarified, and streamlined by 

consolidating and reorganizing the 


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requirements applicable to the 

management of real property interests, 

including alternate uses and permanent 

disposition of ownership rights. This 

NPRM proposes to update the real 

property management regulations by 

simplifying the categories of 

transactions and clarifying the 

applicable requirements when a grantee 

wishes to allow an alternate use of ROW 

or dispose of a real property interest 

altogether because it is not needed for 

highway purposes. Because the project 

owner typically is the grantee or 

subgrantee, the term ‘‘grantee’’ is used 

throughout this subpart where 

provisions are applicable to owners of 

real property interests purchased with 

title 23 funds or incorporated into a 

facility funded under title 23. 

Section 710.401 General 

This NPRM proposes to revise 

710.401 by eliminating the language 

about the change of access control and 

use of real property interests along the 

Interstate because that topic is 

addressed in sections 710.403 and 

710.405. The proposed rule would add 

language to this section that clarifies 

that grantees have oversight 

responsibilities for compliance of 

subgrantees with real property 

management requirements. This 

includes situations where the ROW is 

owned by the subgrantee. 

Section 710.403 Management 

This NPRM proposes to revise 

710.403 by inserting a new paragraph (a) 

before the existing paragraph (a) and 

redesignating the existing parts of this 

section accordingly. The new paragraph 

(a) would discuss the option for 

assignment to the SDOT of FHWA 

approval authorities through the use of 

the Stewardship/Oversight Agreement 

between FHWA and the SDOT. The 

FHWA believes that, in particular, 

disposal authority for actions off of the 

Interstate may be assigned to the SDOTs 

through the Stewardship/Oversight 

Agreement, provided that the 

assignments are written and that they 

specifically enumerate the approval 

authorities that are being assigned. 

Disposal and use of Interstate real 

property interests, and disposals at less 

than fair market value, will continue to 

require direct FHWA approval. 

This NPRM proposes to revise the 

redesignated section 710.403(b) 

(currently section 710.403(a)) by 

replacing ‘‘boundaries’’ with the phrase 

‘‘approved ROW limits or other project 

limits.’’ This change acknowledges the 

evolution of title 23-funded projects to 

include some projects that are not 

linear, land-based highways. The NPRM 

would add a more detailed description 

of the standards that must be satisfied 

in order to permit non-highway uses of 

real property. The proposed language is 

consistent with the requirements in 23 

CFR 1.23. The FHWA believes the 

changes would clarify the 

considerations that a grantee must take 

into account when evaluating potential 

alternate uses. 

This proposed rule would revise the 

redesignated section 710.403(c) (section 

710.403(b) of the existing regulation) by 

adding language clarifying the reference 

to ‘‘manual’’ is to the approved ROW 

manual. The proposed rule also revises 

the regulatory text to clarify that the 

ROW manual or approved RAMP must 

have procedures for determining 

whether a real property interest is 

excess real property, which this NPRM 

proposes to define as a real property 

interest not needed currently or in the 

foreseeable future for transportation 

purposes or other uses eligible under 

title 23. Excess real property may be 

sold or otherwise permanently disposed 

of by the grantee. The new provision 

also would require the ROW manual to 

contain procedures for determining 

when a real property interest may be 

made available under a ROW use 

agreement for an alternate use that is 

consistent with the requirements 

described in proposed section 

710.403(b). The NPRM would eliminate 

the explicit list of organizational units 

with which the grantee must coordinate 

when considering whether property is 

excess or can be made available for an 

alternate use. The FHWA believes 

grantees are best qualified to determine 

what type of internal coordination is 

appropriate. 

This NPRM proposes to revise 

redesignated section 710.403(d) 

(currently section 710.403(c)) to update 

the language on environmental review 

of ROW use agreements and disposals 

and clarify the scope of the provision. 

The NPRM proposes eliminating the 

reference to FHWA approval. This 

change is made to better reflect FHWA’s 

use of the Stewardship/Oversight 

Agreement to permit an SDOT to 

assume responsibility for certain ROW 

use agreement and disposal 

determinations. The new paragraph 

retains the requirement for 

environmental review of such 

transactions pursuant to 23 CFR part 

771. The changes to this paragraph 

would not affect any assignment of 

environmental review responsibilities 

entered into by FHWA and the SDOTs. 

This NPRM proposes to revise 

redesignated section 710.403(e) 

(currently section 710.403(d)) by adding 

language to clarify that the requirement 

to charge fair market value, except as 

provided in paragraph (e), applies to the 

use and disposal of all real property 

interests obtained with the assistance of 

title 23 funds. This revision is needed 

to eliminate confusion that has 

occasionally occurred in administration 

of the existing regulation. The NPRM 

proposes to delete language describing 

the principles guiding disposals. The 

principles and the requirements for fair 

market value and use of net proceeds 

are covered in detail in other parts of 

this and other sections in part 710, 

making this language redundant. The 

NPRM also proposes clarifying the 

language in the paragraph relating to 

FHWA approval of a disposal at less 

than fair market value, as further 

described below. 

This NPRM proposes to revise newly 

numbered 710.403(e)(1) (currently 

710.403(d)(1)) by rewording the 

language to clarify its intent and the 

long-standing FHWA interpretation of 

this exception to the fair market value 

requirement. The revised provision 

would state, in part, that the exception 

applies when it is in the overall public 

interest based on social, environmental, 

or economic benefits. The revision 

would use the word ‘‘benefits’’ in place 

of the current term ‘‘purposes.’’ The 

FHWA believes that the change in 

language from ‘‘purposes’’ to ‘‘benefits’’ 

more accurately describes how the 

public interest is determined and the 

type of effect that FHWA and the 

grantee reasonably must expect will 

result from this type of disposal in order 

to approve the less-than-fair-marketvalue transaction. The current 

regulation allows the SDOT or other 

grantee to use its ROW manual to 

describe the criteria for evaluating 

requests for less-than-fair-market-value 

disposals on social, environmental, or 

economic grounds. The NPRM proposes 

to change from the current permissive 

language to a requirement that the 

approved ROW manual contain such 

criteria. The FHWA believes that the 

criteria for determining whether 

adequate social, environmental, or 

economic benefits are present must be 

clearly and unambiguously detailed in 

the approved ROW manual in order to 

clearly document the specific positive 

benefits that the grantee and public will 

be receiving as a result of the proposed 

disposal. 

The proposed rule would eliminate 

the current regulation’s reference to 23 

U.S.C. 142(f) in the existing section 

710.403(d)(1). This change would be 

part of the creation of a paragraph in 

new section 710.403(e)(5) that 

consolidates the regulatory provisions 

in part 710 that address the issue of fair 


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market value when ROW will be used 

for publicly owned mass transit 

purposes. This proposed rule would use 

the regulatory text at 710.405(c) of the 

existing regulation for the new section 

710.403(e)(5). The new regulation 

would change the numbering of the 

current sections 710.403(d)(2) through 

(4) to sections 710.403(e)(2) through (4), 

respectively. 

The NPRM would redesignate existing 

section 710.403(d)(5) as 710.403(e)(6), 

and insert the word ‘‘other’’ into the text 

to clarify that the intent of the provision 

is to cover types of projects not 

otherwise listed in 710.403(e)(2) 

through (5). The proposed rule would 

modify the language in section 

710.403(e)(6) to clarify that concession 

agreements affecting title 23-funded 

facilities are not exempt from fair 

market value requirements. The FWHA 

believes that this clean-up and 

reorganization will make it easier for 

grantees and other to understand and 

apply this part of the regulations. 

This NPRM proposes to revise section 

710.403(f) (currently section 710.403(e)) 

by clarifying that the Federal share of 

the net income from any alternate use or 

disposal of a real property interest 

obtained with title 23 funds must be 

used for title 23 eligible activities. This 

language implements 23 U.S.C. 156. The 

NPRM also proposes modifying the 

language at the end of paragraph (f) to 

more clearly state that the use of net 

income described in this part does not 

cause title 23 requirements to apply to 

such use. The FHWA believes that these 

clarifications are necessary to ensure 

grantees clearly understand the 

requirements of 23 U.S.C. 156 that are 

reflected in section 710.403(f). 

This NPRM proposes to relocate the 

provision in the current regulation (now 

710.403(f)) concerning the disposal of 

excess real property outside the ROW 

when no Federal funds were used to 

acquire it. The FHWA proposes to move 

the provision to a revised section 

710.409 that consolidates the provisions 

of the regulation relating to disposal of 

excess property. This change is 

proposed for purposes of clarity and 

streamlining. 

Section 710.405 ROW Use Agreements 

This NPRM proposes to change the 

title of section 710.405 from ‘‘Air rights 

on the Interstate’’ to ‘‘ROW use 

agreements.’’ This change supports 

other proposed changes to the section, 

discussed below. 

This NPRM would change the 

approach to property management by 

eliminating the current regulation’s 

discussion of air space and air rights 

agreements in section 710.405. This 

NPRM also would eliminate the 

separate section on leasing in section 

710.407. Instead, the proposed 

regulation would rely on the concept of 

‘‘ROW use agreements’’ to handle leases 

and other time-limited non-highway 

uses both inside and outside of the 

approved ROW limits of all Federal-aid 

highways and transportation facilities, 

including Interstates. The process of 

deciding whether to grant a ROW use 

agreement would continue to include 

consideration of whether the proposed 

use will interfere with the 

transportation facility. The FHWA 

expects this evaluation process to 

embody the same considerations for 

protecting the transportation facility 

that the current regulation calls for in its 

air space, air rights agreements, and 

leasing provisions. 

The new section 710.405 proposed in 

this NPRM would eliminate use of the 

term ‘‘airspace,’’ and instead use ‘‘real 

property interests,’’ which is a term this 

NPRM proposes to make synonymous 

with the term ‘‘real property.’’ As 

defined in section 710.105 of the current 

regulation, ‘‘air space’’ is the space 

located above and/or below a highway 

or other transportation facility’s 

established grade line, lying within the 

horizontal limits of the approved ROW 

or project boundaries. Thus, ‘‘air space’’ 

is a subset of the entirety of the real 

property interests that make up full fee 

ownership of real property. 

This NPRM also proposes to eliminate 

use of the term ‘‘air rights.’’ An ‘‘air 

rights’’ agreement under the existing 

section 710.405 is the method used to 

convey time-limited and/or permanent 

rights for an alternate use of air space. 

Under this NPRM, the regulation would 

use the term ‘‘ROW use agreement’’ 

when referring to a time-limited 

agreement to permit an alternate use of 

real property that is part of a title 23- 

funded facility or was acquired with 

title 23 funds. A conveyance of 

permanent rights would be handled as 

a disposal. 

As discussed earlier in this NPRM, 

FHWA is proposing these changes 

because it believes the continued use of 

the terms ‘‘air space’’ and ‘‘air rights’’ is 

unnecessarily confusing. In current title 

23 real estate practice, the terms ‘‘air 

space’’ and ‘‘air rights’’ rarely describe 

the true nature and scope of the 

alternate use rights being granted. In 

addition, FHWA believes it is no longer 

necessary to call out air space separately 

from the remaining parts of the facility, 

as the agreement for the use should 

specify in detail the parts of the facility 

affected by the alternate use. In the 

agency’s experience, the existing 

regulatory scheme involving ‘‘air space’’ 

and ‘‘air rights’’ is often challenging to 

administer, and FHWA believes it will 

be more effective for the regulations to 

focus on distinguishing between a grant 

of time-limited rights (ROW use 

agreements) and a conveyance of 

permanent rights (disposal). 

Accordingly, this NPRM proposes to 

rewrite section 710.405 to reflect 

proposed provisions on ROW use 

agreements. Language in the existing 

section that FHWA believes should 

apply to such agreements would be 

retained or updated. Proposed section 

710.405(a) would contain a description 

of ROW use agreements and a number 

of general requirements applicable to 

those agreements. The proposed rule 

also would change section 710.405(a) by 

adopting a reference to highways, as 

defined in 23 U.S.C. 101(a), that 

received title 23 funds. 

Existing section 710.405 governs 

FHWA approval of air rights on the 

Interstate system and contains a list of 

transactions excluded from the section. 

This NPRM proposes retaining those 

listed exclusions that would remain in 

effect under the proposed ROW use 

agreement provisions in 710.405. The 

exclusion for non-Interstate highways 

now in section 710.405(a)(2)(i) would be 

deleted, as it is no longer needed given 

the restructuring of this subpart. The 

deletion would not eliminate the 

authority to assign non-Interstate ROW 

use agreement approvals to SDOTs 

through the FHWA–SDOT Stewardship 

and Oversight Agreement. These 

changes in 710.405(a) are consistent 

with the NPRM’s proposed simplified 

approach to management of alternate 

uses for all real property interests that 

are part of a Federal-aid facility or were 

acquired with Federal-aid funds. 

The deletion of the exception for nonInterstate highways would result in 

redesignating the remaining exceptions 

in 710.405(a)(2). This NPRM proposes to 

revise the redesignated section 

710.405(a)(2)(ii) (section 

710.405(a)(2)(iii) in the current 

regulation) by adding references to 

additional parts of the title 23 regulation 

that apply to the relocation of railroads 

or utilities. The FHWA believes that 

adding the additional references to this 

section provides clarity and additional 

detail, and makes it easier to determine 

when this section of the regulation 

applies. 

Section 710.405(b) is rewritten to 

reflect the applicability of the ROW use 

agreements to only time-limited rights, 

and to articulate a number of provisions 

such agreements must include. The 

requirements cover such topics as the 

term of the ROW use agreement, the 

design and location of the alternate use, 


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insurance to protect FHWA and the 

State, and compliance with 

nondiscrimination requirements. The 

FHWA considers this information as the 

minimum necessary to protect the 

Federal interest in facilities that would 

become subject to a ROW use 

agreement. The agency recognizes this 

type of detail was eliminated from 

FHWA real estate and ROW regulations 

in earlier rulemakings, previously 

referenced, based on the assumption the 

requirements would be embodied in 

other types of agency directives. 

However, FHWA has found the absence 

of this information from the regulations 

has made it more difficult for grantees 

and others to understand what is 

required. 

Proposed sections 710.405(c) and (d) 

set forth language taken from the leasing 

provision in section 710.407 of the 

current regulation. Those provisions, 

from existing sections 710.407(b) and 

(c), respectively, prohibit the use of 

Federal funds if an alternate use 

requires a change in the transportation 

facility, and require alternate uses to 

conform to design standards and safety 

criteria. The FHWA believes it is logical 

to place these provisions with the other 

requirements affecting ROW use 

agreements, since such agreements 

include lease transactions. 

This NPRM proposes addition of a 

new provision in section 710.405(e) that 

incorporates into the regulation the 

application requirements that FHWA 

and the SDOTs have been using for 

some time when a third party wishes to 

obtain use rights in a Federal-aid 

facility. The requirements include 

submission of the identity of the party 

responsible for developing and 

operating the alternate use, a 

description of the proposed use and 

why it would be in the public interest, 

and information demonstrating the 

design and location of the proposed use 

will meet the requirements in section 

710.405. The FHWA considers this 

information as the minimum necessary 

to allow adequate review of proposed 

alternate uses. As previously discussed, 

the agency recognizes this type of detail 

was eliminated from FHWA real estate 

and ROW regulations in earlier 

rulemakings. However, FHWA has 

found the absence of this information 

from the regulations has made it more 

difficult for grantees and others to 

understand what is required. 

Section 710.407 Reserved 

As stated above, this NPRM proposes 

to delete existing section 710.407, on 

leasing, and reserve the section for 

future use. The rationale for the 

proposal is discussed in detail in the 

discussion of section 710.405. 

Section 710.409 Disposal of Excess 

Real Property 

This NPRM proposes changing the 

title of section 710.409 from ‘‘Disposals’’ 

to ‘‘Disposal of excess real property.’’ 

This change is part of the proposed 

update in approach to real property 

management. This NPRM proposes to 

clarify that when a real property interest 

is not needed for the transportation 

facility now or in the foreseeable future, 

the grantee may determine it is excess 

real property and dispose of it in whole 

or in part. As previously mentioned, 

this NPRM also proposes changes to the 

definition of ‘‘disposal’’ in section 

710.105, to clarify a disposal involves 

the conveyance of permanent rights in 

excess real property, and that a disposal 

must meet the requirements in proposed 

23 CFR 710.403(b). The proposed 

revisions to section 710.409 detail the 

requirements for carrying out a disposal. 

Much of the language in sections 

710.409(a) through (d) is retained, 

although some changes are proposed to 

align the language with the new 

approach described above and to update 

the terminology and regulatory 

references. 

This NPRM proposes to delete the last 

sentence of existing section 710.409(b), 

concerning SDOT use of a disposal 

listing to notify other Federal, State, and 

local agencies of a proposed disposal of 

excess real property. The FHWA 

believes the language is no longer 

necessary. The FWHA understands that 

SDOTs may decide to continue to use 

the disposal notification listing as a 

method of notifying State agencies of 

real property interests which the SDOT 

is considering disposing of and which 

may be of use to another State agency. 

The FHWA believes that SDOTs and 

other grantees may effectively use a 

number of other methods to meet the 

notification requirements of this 

paragraph. 

This NPRM proposes to delete the last 

sentence in section 710.409(d) as 

duplicative of other parts of this 

regulation. The FHWA believes the 

requirements for disposals at less than 

fair market value are covered in the 

proposed section 710.403(e) and do not 

need to be restated in this paragraph. 

As discussed earlier in this NPRM, 

this proposed rule would move the 

provisions in existing section 710.403(f), 

concerning disposal of excess real 

property outside the approved ROW 

limit or project boundary, to a new 

section 710.409(e). The FHWA believes 

it is more logical to place the provision 

in this specific section on disposals, 

than to have it in section 710.403, 

which covers a broad range of 

management topics. This NPRM does 

not propose to substantively change 

existing section 710.403(f). For similar 

reasons, this NPRM proposes to relocate 

the provision on relinquishments from 

section 710.403(g) in the existing 

regulation, to a new section 710.409(f). 

This NPRM proposes adding a new 

section 710.409(g) to incorporate into 

the regulation the information required 

in order to approve a request for a 

disposal. This information largely 

mirrors the types of information that 

would be required to support a request 

for a ROW use agreement under 

proposed section 710.405(e). To avoid 

duplication, proposed section 

710.409(g) would incorporate certain 

submission requirements by reference to 

provisions in 710.405(e)(1)–(9). The 

FHWA has found the absence of this 

information from the regulations has 

made it more difficult for grantees and 

others to understand what is required. 

Subpart E—Property Acquisition 

Alternatives 

Section 710.501 Early Acquisition 

The MAP–21 provides new and 

revised methods for early acquisition of 

real property, with potential for either 

reimbursement or credits of real 

property acquisition costs. The FHWA 

is proposing to revise and reorganize 

this section of the regulation to add the 

new authorities and the accompanying 

requirements for early acquisition 

authorized in section 1302 of MAP–21 

(codified in 23 U.S.C. 108), and to better 

describe the early acquisition process. 

The new organization includes an 

introductory paragraph describing the 

options for early acquisition, a 

paragraph for State-funded early 

acquisition without Federal credit or 

reimbursement, a paragraph for Statefunded early acquisition eligible for 

future credit, a paragraph for Statefunded early acquisition eligible for 

future reimbursement, and a paragraph 

for federally funded early acquisition. 

The authorities for early acquisition 

in 23 U.S.C. 108 are granted to ‘‘States.’’ 

The FHWA acknowledges this limiting 

language. However, FHWA also 

considered how the States have 

administered the Federal-aid highway 

program over the years. The States have 

used their SDOTs as the primary title 23 

grantee, but the SDOTs have worked 

through subgrantees such as local public 

agencies to deliver title 23-funded 

projects. Based on this history, FHWA 

concluded the use of the term ‘‘State’’ in 

section 108 was intended to be read 

broadly, to include political 


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subdivisions and instrumentalities of 

the State. Proposed section 710.501 uses 

the term ‘‘State agency’’ to make it clear 

the early acquisition authorities apply 

not only to SDOTs, but also to other 

State and local governmental agencies. 

The NPRM proposes to retain the 

distinction in the current regulation 

between early acquisitions in section 

710.501, and hardship acquisition and 

protective buying provisions in section 

701.503, with respect to the treatment of 

properties subject to 23 U.S.C. 138 

(commonly known as ‘‘section 4(f)’’ 

properties). A section 4(f) property is 

publicly owned land of a public park, 

recreation area, or wildlife and 

waterfowl refuge of national, State, or 

local significance, or land of an historic 

site of national, State, or local 

significance. Early acquisition 

provisions have not allowed early 

acquisition of section 4(f) properties. By 

contrast, such properties may be 

acquired under hardship acquisition or 

protective buying provisions in 710.503 

if the necessary reviews and 

determinations have been completed 

under 23 U.S.C. 138 and 16 U.S.C. 

470(f) (commonly known as ‘‘section 

106’’ and relating to historic properties). 

The FHWA believes this distinction is 

still appropriate because early 

acquisitions often occur before 

sufficient information about the 

transportation project is available to 

support the necessary evaluations and 

decisions. Hardship and protective 

purchases typically occur when the 

proposed transportation project for 

which the property would be needed is 

well into NEPA and other required 

environmental reviews, and 

substantially more information is 

available about the location, design, 

alternatives, and other factors that could 

affect the evaluations and decisions. 

This proposed rule would revise 

existing section 710.501(a) by changing 

the title to ‘‘General,’’ describing the 

various early acquisition alternatives 

available, and adding language to affirm 

that all early acquisition carried out 

under this section must conform to the 

requirements for real property 

acquisition for a title 23-funded project 

or program. The FHWA believes that it 

is necessary to add the language 

concerning the requirement that 

property acquired under this section 

conform to title 23 acquisition rules in 

order to avoid any confusion about 

whether the authorities in section 108 

create exceptions to those requirements. 

If a grantee is acquiring property for a 

title 23-eligible project, then that 

property must be acquired in 

conformance with title 23 requirements 

in order to preserve eligibility for title 

23 funding. In most cases, the 

requirements to preserve eligibility for 

funding are already being met by SDOTs 

and others when they acquire properties 

under the current provisions. 

This NPRM proposes to add a new 

section 710.501(b), State-funded early 

acquisition without Federal credit or 

reimbursement. Paragraph (b) clarifies 

long-standing acquisition requirements 

that a State agency must meet in order 

to maintain future project eligibility 

under title 23 if the State agency carries 

out early acquisitions without seeking 

credit or reimbursement for the costs 

from title 23 funds. The SDOTs 

increasingly choose to use their limited 

title 23 funds on other phases or parts 

of a project or program, and often do not 

seek credit or reimbursement for their 

early acquisition costs. In fact, those 

acquisitions can affect the eligibility of 

the entire project, making it important 

to ensure the SDOTs and other State 

agencies are aware of applicable 

requirements. If a State agency wants a 

project to be eligible for title 23 funds 

in any phase, title 23 acquisition 

requirements, including compliance 

with the Uniform Act, must be met. The 

FHWA believes that States already 

understand this point, but that it is 

important to remove any potential for 

confusion by expressly including the 

requirements and conditions in section 

710.501(b) so that States can effectively 

ensure that a project remains eligible for 

Federal aid when carrying out Statefunded early acquisitions. 

As a result of the new section 

710.501(b), this NPRM proposes to 

redesignate existing sections 710.501(b) 

and 710.501(c) as sections 710.501(c), 

and 710.501(d), respectively. 

This NPRM proposes to revise the 

redesignated section 710.501(c) to better 

describe the credit option for Statefunded early acquisition. This section 

describes the requirements that must be 

met in order to maintain eligibility to 

use real property costs as a credit 

toward the State’s share on a project or 

program receiving funds from the 

Highway Trust Fund. The NPRM 

proposes changing the wording in the 

first sentence from ‘‘prior to executing a 

project agreement with the FHWA’’ to 

‘‘prior to completion of the 

environmental review process for the 

transportation project.’’ The FHWA 

believes this will be clearer and will 

better conform to the intent of 23 U.S.C. 

108, as amended by MAP–21. The 

NPRM does not propose any substantive 

changes to the list of conditions that 

must be met, although some minor 

updates in language are proposed. For 

clarity, this NPRM proposes adding 

cross-references in 710.501(c) to related 

provisions in 710.505(b) (Credit for 

donations) and 710.507 (State and local 

contributions). 

This NPRM also proposes to revise 

the redesignated section 710.501(d) to 

better describe the option for Statefunded early acquisition eligible for 

future reimbursement from apportioned 

title 23 funds. This section incorporates 

requirements that State agencies must 

meet when carrying out early 

acquisition of real property interests and 

the State agency wishes to request 

reimbursement from title 23 

apportioned funds for the acquisition 

costs after the NEPA review for the 

entire project is complete. The NPRM 

substantially revises the existing 

regulation (now 710.501(c)) to conform 

to 23 U.S.C. 108(c), as amended by 

MAP–21. Under the NPRM, the detailed 

requirements of 23 U.S.C. 108(c)(3), as 

well as the requirements of section 

710.203(b) (relating to direct eligible 

costs), would be included by reference 

rather than described in a detailed list. 

The FHWA believes this is the best 

method to ensure that State agencies 

understand the requirements that must 

be met in order to successfully request 

reimbursement for acquisition costs 

under this authority. 

This NPRM proposes to add a new 

710.501(e) to provide the requirements 

for using the new authority in 23 U.S.C. 

108(d) for federally funded early 

acquisition of real property (an ‘‘Early 

Acquisition Project’’). Section 108(d), 

added by MAP–21 section 1302, gives 

States the ability to develop federally 

assisted projects or programs comprised 

solely of the early acquisition of real 

property interests that will be used for 

a proposed transportation project that 

has not yet completed the 

environmental review process. Section 

108(d) requires the State agency to 

certify to the existence of eight 

conditions prior to FHWA authorization 

of title 23 apportioned funds to carry 

out early real property acquisition. This 

NPRM proposes a section 710.501(e)(2) 

that follows the language in 23 U.S.C. 

108(d)(3). This section would require 

the State agency to submit a certification 

stating each of the required conditions 

has been or will be satisfied. 

The FHWA would decide whether to 

concur with a certification based on the 

content of the certification and FHWA’s 

knowledge of the project. The FHWA 

would request additional information to 

complete its evaluation of the 

certification, if needed. The FHWA does 

not believe it is practical to try to 

capture in regulation every scenario for 

complying with the requirements in 23 

U.S.C. 108(d)(3)(B) and proposed 

710.501(e)(2). If implementation of these 


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provisions raises new questions, future 

guidance may be needed to answer 

specific questions that arise about the 

certification requirements and the 

FHWA concurrence determination 

processes. With the exception of the two 

areas discussed below, NEPA and 

condemnation, FHWA expects to wait 

until it has more experience 

administering the certification process 

before it considers issuing 

implementing guidance. 

The FHWA understands there are 

existing questions about how FHWA 

will evaluate the certifications relating 

to NEPA. The State agency must certify 

the proposed federally funded Early 

Acquisition Project will not cause any 

significant adverse environmental 

effects (23 U.S.C. 108(d)(3)(B)(ii)), will 

not limit the choice of reasonable 

alternatives or influence the decision on 

the overall project (section 

108(d)(3)(B)(iii)), and does not prevent 

an impartial decision as to whether to 

accept an alternative being considered 

for the overall project (section 

108(d)(3)(B)(iv)). This NPRM provides 

information on some of the 

considerations FHWA believes may be 

relevant to a decision whether to concur 

in the certification, but this discussion 

is not intended to be exhaustive or to 

limit future FHWA actions. 

As part of its determination whether 

to concur with the environmental 

aspects of a State agency certification 

under proposed 710.501(e), FHWA may 

consider a number of factors such as: 

(1) Whether the Early Acquisition Project 

may cause negative or reduced public/agency 

confidence in the environmental review 

process for the proposed transportation 

project; 

(2) Potential impacts of financial and time 

commitments for the Early Acquisition 

Project(s) on the proposed transportation 

project’s costs and schedule if an alternative 

ultimately is selected that will not require or 

use the properties acquired early; and 

(3) Possible effects of the Early Acquisition 

Project on the alternatives evaluation and 

selection process for the proposed 

transportation project, such as: 

(a) How the investment in Early 

Acquisition Project(s) affects the presentation 

of the alternatives in the proposed 

transportation project’s environmental 

documents; 

(b) How the Early Acquisition Project(s) 

might affect early coordination with the 

public and participating agencies, and 

collaboration with participating agencies on 

the range of alternatives for the proposed 

transportation project and impact 

methodologies for alternatives analysis; 

(c) Whether the Early Acquisition Project(s) 

can reasonably be expected to cause lead 

agency decisionmakers to disproportionately 

support one alternative, while giving 

insufficient weight to information supporting 

other alternatives. 

Another certification requirement that 

may raise interpretive questions is the 

provision that federally funded early 

acquisition must be accomplished 

without the use, or threat of use, of 

eminent domain (23 U.S.C. 

108(d)(3)(B)(vii) and proposed section 

710.501(e)(2)(viii)). It is important to 

note that several States follow a process 

under which they use eminent domain 

to clear or quiet title to a property. The 

FHWA believes that after the property 

owner and the agency have reached a 

binding agreement on the purchase/sale 

of the real property for a project or 

program using the new federally funded 

early acquisition authority, States may 

use condemnation to clear or quiet title 

on the affected parcel without violating 

the statutory provision on 

condemnation. 

Consistent with 23 U.S.C. 108(d)(4) 

and NEPA, this NPRM proposes adding 

section 710.501(e)(4), concerning the 

environmental review process for an 

Early Acquisition Project funded under 

title 23. The NEPA evaluation should 

include consideration of both the 

impacts of the particular acquisition 

under review, and the impacts of other 

Early Acquisition Projects that will be 

carried out in connection with the same 

proposed transportation project. The 

FHWA’s expectation is that, where 

multiple Early Acquisition Projects are 

carried out, the environmental reviews 

for all Early Acquisition Projects will 

meet NEPA requirements for evaluating 

cumulative impacts of both past, 

present, and reasonably foreseeable 

future Early Acquisition Projects. 

Information on the direct, indirect, and 

cumulative impacts of the early 

acquisition will be relevant to 

determining the NEPA class of action 

for the Early Acquisition Project, the 

acceptability of the impacts, and 

whether an Early Acquisition Project 

will cause significant adverse 

environmental effects under 

710.501(e)(2)(iii). Consistent with 23 

U.S.C. 108(d), under the proposed rule 

the NEPA review of an Early 

Acquisition Project would not include 

consideration of the direct, indirect, or 

cumulative impacts of the proposed 

transportation project for which the 

property is being purchased. The 

purpose of the new authority in 23 

U.S.C. 108(d) is to allow an Early 

Acquisition Project to proceed even 

though NEPA is not complete for the 

proposed transportation project. 

Requiring NEPA evaluation of the 

impacts of the proposed transportation 

project before proceeding with the Early 

Acquisition Project would render the 

new authority in section 108(d) 

meaningless. 

This new acquisition authority is 

premised on a ‘‘buy and hold’’ concept, 

in which the acquisition activity results 

only in a change in ownership of the 

real property interest, but otherwise 

typically maintains the pre-acquisition 

uses and conditions. The State agency, 

as part of the environmental review of 

the federally assisted Early Acquisition 

Project, must include an appropriate 

analysis of the impacts of the 

acquisition, including relocation, and 

any interim activity planned for the real 

property interests until the property is 

used for the proposed transportation 

project (such as property maintenance 

to maintain the existing condition of the 

property, or demolition for public safety 

reasons). This analysis will be used to 

determine whether the Early 

Acquisition Project’s impacts are 

acceptable. The FHWA believes this 

approach is consistent with the 

limitation in 23 U.S.C. 108(d)(6), 

enacted under MAP–21. That provision 

does not allow federally assisted early 

acquired properties to be developed in 

anticipation of the proposed 

transportation project until the NEPA 

review process for the proposed 

transportation project is concluded. To 

facilitate understanding of the scope of 

this statutory language, this NPRM 

proposes a new section 710.501(f) that 

describes the types of development 

activities FHWA considers prohibited 

by the statute. This new section 

provides direction on what ‘‘developed 

in anticipation of a project’’ means. The 

proposed regulatory description of 

prohibited activities includes 

demolition, site preparation, clearing 

and grubbing, and construction that may 

have an adverse environmental impact 

or cause a change in the use or character 

of the real property. The FHWA believes 

that there may be very limited instances 

in which development activities may be 

appropriate. Accordingly, this NPRM 

proposes specific instances when it may 

be appropriate for FHWA to approve 

limited development activity based on 

public health or safety considerations. 

The NPRM also proposes adding 

language in 710.501(e)(4) stating that an 

Early Acquisition Project must comply 

with all applicable environmental laws. 

The MAP–21 changes to 23 U.S.C. 108 

affect the NEPA review process, but do 

not alter or amend other environmental 

laws. 

This NPRM proposes adding a new 

710.501(g), reflecting the reimbursement 

provisions in 23 U.S.C. 108(d)(7), as 

added by MAP–21 section 1302. This 

new paragraph requires that when 

Federal-aid reimbursement has been 


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made for early acquired real property, 

the real property must be incorporated 

into a project eligible for surface 

transportation funds within the 20-year 

time period allowed by 23 U.S.C. 

108(a)(2). If the State agency does not 

meet this requirement, FHWA will 

offset the amount reimbursed against 

funds apportioned to the State. 

Early acquisition provisions in both 

section 108(c) and (d) of title 23, as 

amended by MAP–21 section 1302, 

contain provisions designed to ensure 

early acquisitions fully satisfy Uniform 

Act requirements. Section 

108(d)(3)(B)(viii) expressly states that 

the early acquisition may not reduce 

Uniform Act benefits or assistance to a 

displaced person. Consistent with that 

mandate, FHWA interprets the early 

acquisition provisions as subject to 

Uniform Act requirements in 49 CFR 

part 24, and concludes that early 

acquisitions are not voluntary 

transactions within the meaning of 49 

CFR 24.101. This NPRM proposes to 

add a new section, 710.501(h), 

addressing the timing of relocation 

assistance eligibility in the context of 

early acquisitions under section 

710.501. The proposed section 

710.501(h) provides that persons are 

eligible for relocation assistance when 

there is a binding written agreement 

between the acquiring agency and the 

property owner for the early acquisition 

of the real property interests. This 

would include tenants on properties 

acquired as an early acquisition, who 

would be eligible for relocation 

assistance when there is a binding 

written agreement between the 

acquiring agency and the property 

owner for the acquisition of any 

interests in the real property. The 

proposed section excludes situations, 

such as the use of an option agreement, 

that do not create an immediate 

commitment by the State agency to 

acquire and do not require an owner or 

tenant to relocate. In those cases, 

relocation eligibility does not occur 

until the State agency legally commits 

itself to acquiring the real property 

interest(s). 

Section 710.503 Protective Buying and 

Hardship Acquisition 

This NPRM proposes updating 

references in section 710.503 and 

changing the term ‘‘SDOT’’ to ‘‘grantee’’ 

in several places. The NPRM also 

proposes revising section 710.503(d), 

relating to environmental decisions for 

proposed acquisitions under the 

protective buying and hardship 

acquisition provisions in 710.503, by 

adding new language clarifying that 

acquisitions under this section are 

subject to environmental review under 

part 771. This is a clarification of 

existing regulations. Often, such 

acquisitions meet the requirements for a 

categorical exclusion under 23 CFR 

771.117(d)(12). 

Section 710.505 Real Property 

Donations 

This NPRM proposes to revise 

710.505(a), relating to the donation of 

real property for a title 23 project, by 

adding a requirement that the 

mandatory notification to the real 

property owner must be in writing. The 

FHWA believes that this type of 

documentation will help ensure that the 

property owners are fully and fairly 

informed, and will ensure the acquiring 

agency has the documentation necessary 

to support title 23 eligibility. The 

description of the required contents of 

the notice has been updated by revising 

the language describing valuation 

methods that can be used by an 

acquiring agency to develop an estimate 

of just compensation. This NPRM also 

changes the description of the notice 

requirements to include notice of 

financial and non-financial assistance 

available under applicable State law, as 

well as assistance available under the 

Uniform Act, to make this paragraph 

consistent with the cost eligibility 

provisions in section 710.203(b)(2)(ii). 

This NPRM proposes adding references 

in section 710.505(b) to the underlying 

statutory provision on donations. 

Section 710.507 State and Local 

Contributions 

This NPRM proposes to revise section 

710.507 to clarify that the requirements 

of 23 U.S.C. 323 must be met in cases 

involving State and local contributions. 

The proposed rule would reflect the 

2005 repeal of 23 U.S.C. 323(e), which 

was a special provision for 

contributions by local governments. The 

provisions governing credit for real 

property interests contributed to a 

project are now the same for State and 

local governments. This NPRM would 

implement this change by consolidating 

the provisions on local governments 

into 710.507(a) and (b). 

The NPRM proposes to modify 

existing section 710.507 by deleting 

paragraph (b), which contained an 

effective date related to a prior 

rulemaking, and redesignating 

paragraphs (c) through (e), accordingly. 

The FHWA believes that because nearly 

15 years have passed since publication 

of this rule, the existing paragraph (b) is 

no longer relevant. However, if SDOTs 

are still carrying out projects or 

programs under agreements executed 

before June 9, 1998, the rules governing 

credits at the time of the project 

agreement for those projects would 

continue to apply. The NPRM also 

proposes to update references to other 

regulations in this part to conform to 

other proposed revisions to this 

regulation. 

Section 710.509 Functional 

Replacement of Real Property in Public 

Ownership 

In addition to updating terms 

throughout the section, this NPRM 

proposes to modify section 

710.509(b)(4), which governs the notices 

that must be provided when the 

acquiring agency considers the 

functional replacement of a publicly 

owned real property in lieu of paying 

fair market value for the property. The 

revision would add a requirement that 

notification to the owner agency of its 

right to receive just compensation must 

be in writing. This type of 

documentation will help ensure that the 

property owners are fully and fairly 

informed, and that the acquiring agency 

has the documentation necessary to 

support title 23 eligibility. 

Section 710.511 Transportation 

Alternatives Program 

Congress did not reauthorize the 

Transportation Enhancements Program 

in MAP–21, but instead included 

elements of that program in the newly 

enacted TAP as described in MAP–21 

Sections 1103 and 1122 (codified at 23 

U.S.C. 133(b)(11) and 213). This NPRM 

proposes to replace all references to 

transportation enhancements in the 

existing regulation with references to 

TAP and to rewrite this section to 

conform to TAP provisions. Any 

projects authorized under the former 

Transportation Enhancement Program 

will continue to be subject to the 

existing requirements. 

This NPRM proposes to revise and 

reorganize section 710.511(b). The 

requirements for Uniform Act 

compliance and applicability that are in 

sections 710.511(b)(1) and (2) of the 

existing regulation are consolidated and 

incorporated into proposed section 

710.511(b)(1). This NPRM proposes to 

delete the exemption for acquisitions by 

conservation organizations that is 

contained in existing section 

710.511(b)(2). This exclusion was 

contained in section 315 of the National 

Highway System Designation Act of 

1995 (Pub. L. 104–59, 109 Stat. 588), 

and subsequently incorporated into part 

710 at 710.511(b)(4). The reason for the 

proposed deletion is that this exemption 

from the Uniform Act requirements was 

eliminated when MAP–21 was enacted. 

Under MAP–21 amendments to 23 


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U.S.C. 213(e), TAP projects are subject 

to Federal-aid highway requirements 

under title 23, with a limited exception 

for recreational trails projects. The 

Uniform Act provisions for voluntary 

acquisitions in the 49 CFR part 24 

implementing regulations will continue 

to apply to such transactions. 

This NPRM proposes to modify 

section 710.511(c) by updating the 

description of the applicability of the 

Subpart D Real Property Management 

rules to TAP properties, by requiring the 

use of a TAP property agreement 

between the grantee and FWHA that 

specifies the expected useful life of the 

project and establishes a pro rata 

repayment if the acquired property in 

whole or part is used for another 

purpose. This requirement is needed to 

ensure TAP projects comply with the 

long-standing FHWA interpretation that 

this type of project, which often 

involves the use of leases and other 

time-limited property rights, must 

guarantee a project life of sufficient 

length to support the use of title 23 

funds; and that if the project terminates 

early, title 23 funds that were approved 

for use for the stated project purpose are 

recovered. 

Subpart F—Federal Assistance 

Programs 

Section 710.601 Federal Land 

Transfers 

This NPRM proposes to revise section 

710.601(a) to incorporate a conforming 

amendment in section 1104(c)(6) of 

MAP–21, which clarified that Federal 

land transfers are available for eligible 

highway projects that are not on a 

Federal highway system. This NPRM 

propose to revise section 710.601(b) to 

refer to the acquisition of ‘‘real 

property’’ rather than ‘‘lands or interests 

in lands’’ for consistency with the rest 

of part 710. This terminology change 

does not change the type of interests 

that can be acquired. The FHWA also 

proposes language in paragraph (b) on 

the eligibility for the use of authorities 

under 23 U.S.C. 107(d) and 317, which 

permit FHWA to transfer real property 

from the United States to non-Federal 

owners. The change is to recognize that 

the two statutes have slightly different 

eligible entities, although both statutes 

make SDOTs eligible. 

In section 710.601(e), the qualifier 

‘‘For projects not on the Interstate 

System’’ is proposed to be added to the 

second sentence, before the limitation 

that the land-management agency shall 

have a period of 4 months in which to 

designate conditions necessary for the 

adequate protection and utilization of 

the reserve or to certify that the 

proposed appropriation is contrary to 

the public interest or inconsistent with 

the purposes for which such land or 

materials have been reserved. Under 

section 107(d) of title 23, transfers of 

Federal property for the Interstate 

System are not subject to the 

designation of conditions or 

certification by the land-management 

agency. Finally, a new section 

710.601(f) is proposed to clarify that 

FHWA can participate in costs incurred 

by the grantee and associated with 

Federal land transfers when the 

transferring Federal land-management 

agency is required to assess such costs 

as a condition of transfer. Current 

paragraphs (f) through (h) would be 

redesignated (g) through (i), and 

language would be added to clarify the 

process for carrying out a transfer of 

Federal lands. The NPRM proposes the 

addition of language in redesignated 

section 710.601(i), relating to property 

no longer needed for the title 23 project, 

to recognize the authority for alternate 

agreements when other Federal law 

does not permit a reversion of the 

property back to the United States or the 

original land-management agency. 

Section 710.603 Direct Federal 

Acquisition 

This rule proposes to revise and 

reorganize paragraphs (a)–(c) to clarify 

when FHWA may make a direct Federal 

acquisition from non-Federal owners, 

and to clarify the slight differences in 

the processes to be followed for projects 

for the Interstate System and Defense 

Access Road projects, and other types of 

projects carried out by the FHWA Office 

of Federal Lands Highways. Proposed 

710.603(a) would cover direct Federal 

acquisitions for Interstate System and 

for Defense Access Road projects. 

Proposed 710.603(b) would address 

other types of Federal acquisition of real 

property from non-Federal owners. 

The MAP–21 made several changes to 

the names of programs funded under 

chapter 2 of title 23 and this NPRM 

proposes to eliminate the list of program 

names in existing section 710.603(a). 

Language is proposed in new 

paragraphs (b) and (h) clarifying that 

FHWA may not accept jurisdiction for 

any property acquired, even 

temporarily. This addition is made to 

address questions that have arisen in in 

connection with such transfers. The 

FHWA carries out these transactions 

solely as a means of placing the 

property needed for a project into the 

ownership of the State or the applicant 

agency. There is no intention for FHWA 

to accept or retain land management 

authority, and the agency does not have 

the administrative means to manage or 

oversee such properties. 

In reorganizing section 710.603, 

FHWA considered eliminating the 

Federal acquisition provisions 

contained in proposed 710.603(b), 

which apply to projects other than 

Interstate Highways and Defense Access 

Roads. The FHWA asks for comments 

on whether the provision is needed, 

given that it is seldom used and the 

underlying statutory authority for 

Federal condemnation actions would 

remain available in appropriate 

situations. 

Subpart G—Concession Agreements 

This NPRM proposes to change the 

‘‘State transportation department’’ 

reference in 710.703(f) to ‘‘SDOT,’’ for 

consistency with the proposed reference 

changes throughout part 710. 

PART 810—MASS TRANSIT AND 

SPECIAL USE HIGHWAY PROJECTS 

Subpart A—General 

Section 810.212 Use Without Charge 

This NPRM proposes to revise section 

810.212 by striking the word ‘‘shall’’ in 

the regulation and replacing it with 

‘‘may’’ to eliminate an inconsistency 

between existing section 810.212 and 

other parts of applicable law. This will 

address a recurring question in recent 

years, which has been whether an SDOT 

is required to provide land needed for 

transit projects or programs without 

charge to a publicly owned mass transit 

authority for public transit purposes 

whenever the public interest will be 

served, and where this can be 

accomplished without impairing 

automotive safety or future highway 

improvements as is currently stated in 

section 810.212. Section 142(f) of title 

23 U.S.C., states that a State shall be 

authorized to provide the land needed 

with or without charge. The existing 

regulation at 23 CFR 710.405(c) contains 

language that is consistent with the 

statute. This NPRM proposes to revise 

the language in section 810.212 to make 

it consistent with the statute and the 

part 710 regulation. Each State will 

continue to determine when State law, 

regulation, or policy allows or prohibits 

a conveyance without charge to a 

publicly owned mass transit authority 

for public transit purposes. This change 

will not in any way prohibit a State 

from providing land needed for transit 

projects or programs with no charge. 

Rulemaking Analyses and Notices 

All comments received before the 

close of business on the comment 

closing date indicated above will be 


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7The FHWA used salary data from Indeed Salary 

Search (www.indeed.com) which represents an 

index of salary information from job postings over 

the past 12 months to estimate labor costs. 

8This estimate assumes that it will take 

approximately 225 hours to complete necessary 

updates to a ROW manual, that a loaded rate of $76 

per hour (Hourly rate $47.60 for a ROW manager; 

estimated loaded rate of 160% of hourly rate) for 

labor will be incurred and by estimating the costs 

to update 52 ROW manuals. 

9After updating the ROW manual to incorporate 

this rulemakings changes, the states will resume 

their normal process of updating their manuals. 

10The FHWA calculated this by estimating that 

there would be 260 Early Acquisition Projects per 

year which would require approximately 40 hours 

of time each to comply with requirements 

associated only with Early Acquisition Projects. The 

FHWA used a loaded rate $76 per hour (Hourly rate 

$47.60 and an estimated loaded rate of 160% of 

hourly rate) for labor will be incurred (based on the 

cost of a ROW manager’s loaded hourly rate). 

considered and will be available for 

examination in the docket at the above 

address. Comments received after the 

comment closing date will be filed in 

the docket and will be considered to the 

extent practicable. In addition to late 

comments, the FHWA will also 

continue to file relevant information in 

the docket as it becomes available after 

the comment period closing date, and 

interested persons should continue to 

examine the docket for new material. A 

final rule may be published at any time 

after close of the comment period and 

after DOT has had the opportunity to 

review the comments submitted. 

The FHWA filed a redline version of 

parts 635, 710, and 810 in the docket to 

show all changes to the regulation text 

and facilitate public review and 

comment. 

Executive Orders 12866 and 13563 

(Regulatory Planning and Review) and 

DOT Regulatory Policies and 

Procedures 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). The FHWA has determined 

preliminarily that this action would not 

be a significant regulatory action under 

section 3(f) of Executive Order 12866 

and would not be significant within the 

meaning of DOT’s regulatory policies 

and procedures (44 FR 11032). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. It is anticipated that the 

economic impact of this rulemaking 

would be minimal. The changes that 

this rule proposes are requirements 

mandated by MAP–21 which add new 

authorities for early acquisition of 

property to part 710, and clarify the 

Federal-aid eligibility of a broad range 

of real property interests that constitute 

less than full fee ownership. This NPRM 

also proposes to streamline program 

requirements, clarify the Federal-State 

partnership, and carry out a 

comprehensive update of part 710. 

Corresponding revisions are proposed 

for related regulations in 23 CFR parts 

635 and 810 to help ensure consistency 

in interpretation of title 23 

requirements, and to better align the 

language of the regulations with current 

program needs and best practices. This 

proposed rule would implement 

changes identified by the public in 

response to the DOT’s initiative on 

Implementation of Executive Order 

13563, Retrospective Review and 

Analysis of Existing Rules. The FHWA 

believes that the proposed streamlining 

and updating in this NPRM will result 

in a reduction of Federal requirements 

and will afford the States new 

flexibilities to more efficiently acquire 

real property. 

The FHWA has had an ongoing dialog 

with stakeholders and has developed 

the proposed rule in a manner that 

balances stake holders concerns and 

practical implementation issues to allow 

SDOTs to utilize the new flexibilities 

while minimizing their effects on 

existing requirements and procedures. 

The FHWA believes that this rule will 

be non-controversial due to the scope 

and nature of the proposed additions 

and changes to the regulation. 

The FHWA estimated the incremental 

costs associated with two new 

requirements proposed in this NPRM 

that represent a change to current 

practices for SDOTs and MPOs. These 

costs will be primarily incurred by 

SDOTs. The FHWA derived the costs 7

of the two components by assessing the 

expected increase in level of effort from 

labor to update ROW manuals, and the 

increase in level of effort required to 

comply with new early acquisition 

requirements. 

To estimate costs, FHWA first 

considered the costs associated with 

updating the SDOT ROW manual. The 

FHWA multiplied the level of effort, 

expressed in labor hours, with a 

corresponding loaded wage rate for the 

professional staff necessary to complete 

updates to the ROW manual. Following 

this approach the undiscounted 

incremental costs to comply with this 

rule are $890,000.8 These costs 

represent one time costs to implement 

this rule.9

Similarly, to estimate costs associated 

with complying with the new early 

acquisition requirements, FHWA 

multiplied the level of effort, expressed 

in labor hours, with a corresponding 

loaded wage rate for the professional 

staff necessary to comply with those 

requirements and use the new early 

acquisition flexibilities. Following this 

approach, the annual undiscounted 

incremental costs to comply with this 

rule are $950,000.10

The FHWA could not directly 

quantify the expected benefits due to 

data limitations and the amorphous and 

qualitative nature of the benefits from 

the proposed rule. The FHWA believes 

that significant new flexibilities in early 

acquisition will allow SDOTs to acquire 

real property interests earlier, ensuring 

parcel availability, ROW cost control 

and cost certainty, and fewer project 

delay claims due to ROW not being 

available. The FHWA believes that the 

expected qualitative and quantitative 

benefits from the use of the early 

acquisition flexibilities alone will 

exceed the cost of implementing the 

rule. In addition, the FHWA believes 

that significant benefits may accrue 

because this proposal clarifies and 

streamlines additional requirements 

including property management 

requirements, stewardship and 

oversight requirements, and Federal 

land transfer requirements. The FHWA 

invites comments on its cost estimates 

and discussion of benefits. 

These proposed changes are not 

anticipated to adversely affect, in a 

material way, any sector of the 

economy. In addition, these changes 

would not interfere with any action 

taken or planned by another agency and 

would not materially alter the budgetary 

impact of any entitlements, grants, user 

fees, or loan programs. Consequently, a 

full regulatory evaluation is not 

required. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (Pub. L. 96–354, 5 U.S.C. 

601–612), FHWA has evaluated the 

effects of this proposed rule on small 

entities and anticipates that this action 

would not have a significant economic 

impact on a substantial number of small 

entities which includes SDOTs, Local 

Public Agencies, and other State 

governmental agencies. 

Unfunded Mandates Reform Act of 

1995 

This proposed rule would not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 109 Stat. 48). This 

proposed rule will not result in the 


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expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $148.1 million or more 

in any one year (2 U.S.C. 1532). Further, 

in compliance with the Unfunded 

Mandates Reform Act of 1995, FHWA 

would evaluate any regulatory action 

that might be proposed in subsequent 

stages of the proceeding to assess the 

effects on State, local, and tribal 

governments and the private sector. 

Additionally, the definition of ‘‘Federal 

Mandate’’ in the Unfunded Mandates 

Reform Act excludes financial 

assistance of the type in which State, 

local, or tribal governments have 

authority to adjust their participation in 

the program in accordance with changes 

made in the program by the Federal 

Government. 

Executive Order 13132 (Federalism 

Assessment) 

Executive Order 13132 requires 

agencies to assure meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that may have a substantial, 

direct effect on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. This proposed 

action has been analyzed in accordance 

with the principles and criteria 

contained in Executive Order 13132, 

and FHWA has preliminarily 

determined that this proposed action 

would not warrant the preparation of a 

federalism assessment. The FHWA has 

also determined that this proposed 

action would not preempt any State law 

or State regulation or affect any State’s 

ability to discharge traditional State 

governmental functions. 

Executive Order 13175 (Tribal 

Consultation) 

The FHWA has analyzed this action 

under Executive Order 13175 and 

believes that the proposed action would 

not have substantial direct effects on 

one or more Indian tribes; would not 

impose substantial direct compliance 

costs on tribal governments; and would 

not preempt tribal law. Therefore, a 

tribal summary impact statement is not 

required. 

Executive Order 13211 (Energy Effects) 

The FHWA has analyzed this action 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. The FHWA has 

determined that the proposed action is 

not a significant energy action under 

that order because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

Therefore, a Statement of Energy Effects 

under Executive Order 13211 is not 

required. 

Executive Order 12372 

(Intergovernmental Review) 

The regulations implementing 

Executive Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities apply to 

this program. Local entities should refer 

to the Catalog of Federal Domestic 

Assistance Program Number 20.205, 

Highway Planning and Construction, for 

further information. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from the OMB for collections of 

information they conduct, sponsor, or 

require through regulations. The PRA 

applies to Federal agencies’ collections 

of information imposed on 10 or more 

persons. ‘‘Persons’’ include a State, 

territorial, tribal, or local government, or 

branch thereof, or their political 

subdivisions. 

This action contains amendments to 

the existing information collection 

requirements previously approved 

under OMB Control Number 2125–0586. 

As required by the PRA, the FHWA has 

submitted these proposed information 

collection amendments to OMB for its 

review. This proposal rule requires 

additional information in the SDOT 

ROW manual. The FHWA estimates that 

the additional requirements will 

increase the total burden hours by 

11,700, or an average of 225 hours per 

grantee. 

The FHWA invites interested parties 

to send comments regarding any aspect 

of this information collection, 

including: (1) Whether the collection of 

information is necessary; (2) the 

accuracy of the estimated burden; (3) 

ways to enhance the quality, utility, and 

clarity of the collection of information; 

and (4) ways to minimize the collection 

burden without reducing the quality of 

the information collected. 

Executive Order 12988 (Civil Justice 

Reform) 

This action meets applicable 

standards in sections 3(a) and 3(b)(2) of 

Executive Order 12988, Civil Justice 

Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

Executive Order 12898 (Environmental 

Justice) 

Executive Order 12898, Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, and DOT 

Order 5610.2(a) (the DOT Order), 91 FR 

27534 (May 10, 2012) (available online 

at www.fhwa.dot.gov/enviornment/

environmental_justice/ej_at_dot/order_

56102a/index.cfm), require DOT 

agencies to achieve environmental 

justice (EJ) as part of their mission by 

identifying and addressing, as 

appropriate, disproportionately high 

and adverse human health or 

environmental effects, including 

interrelated social and economic effects, 

of their programs, policies, and 

activities on minority populations and 

low-income populations in the United 

States. The DOT Order requires DOT 

agencies to address compliance with 

Executive Order 12898 and the DOT 

Order in all rulemaking activities. In 

addition, FHWA has issued additional 

documents relating to administration of 

Executive Order 12898 and the DOT 

Order. On June 14, 2012, FHWA issued 

an update to its EJ order, FHWA Order 

6640.23A, FHWA Actions to Address 

Environmental Justice in Minority 

Populations and Low Income 

Populations (the FHWA Order) 

(available online at www.fhwa.dot.gov/

legsregs/directives/orders/

664023a.htm). 

The FHWA has evaluated this 

proposed rule under the Executive 

Order, the DOT Order, and the FHWA 

Order. The FHWA has determined that 

the proposed regulations, if finalized, 

would not cause disproportionately 

high and adverse human health and 

environmental effects on minority or 

low income populations. The proposed 

regulations, if finalized, would establish 

procedures and requirements for 

grantees and others when acquiring, 

managing, and disposing of real 

property interests. The EJ principles, in 

the context of acquisition, management, 

and disposition of real property, should 

be considered during the planning and 

environmental review processes for the 

particular proposal. The FHWA will 

consider EJ when it makes a future 

funding or other approval decision on a 

project-level basis. 

Executive Order 13045 (Protection of 

Children) 

The FHWA has analyzed this action 

under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. The FHWA certifies that this 

proposed action would not concern an 


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environmental risk to health or safety 

that might disproportionately affect 

children. 

Executive Order 12630 (Taking of 

Private Property) 

The FHWA does not anticipate that 

this proposed action would effect a 

taking of private property or otherwise 

have taking implications under 

Executive Order 12630, Governmental 

Actions and Interference with 

Constitutionally Protected Property 

Rights. 

National Environmental Policy Act 

Agencies are required to adopt 

implementing procedures for NEPA that 

establish specific criteria for, and 

identification of, three classes of 

actions: those that normally require 

preparation of an environmental impact 

statement; those that normally require 

preparation of an environmental 

assessment; and those that are 

categorically excluded from further 

NEPA review (40 CFR 1507.3(b)). The 

proposed action is the adoption of 

regulations that provide the policies, 

procedures, and requirements for 

acquisition, management, and disposal 

of real property interests for Federal and 

federally assisted projects carried out 

under title 23, U.S.C. The proposed 

action has no potential for 

environmental impacts until the 

regulations, if adopted, are applied at 

the project level. The FHWA would 

have an obligation to evaluate the 

potential environmental impacts of such 

a future project-level action if the action 

constitutes a major Federal action under 

NEPA. 

This proposed action qualifies for 

categorical exclusions under 23 CFR 

771.117(c)(20) (promulgation of rules, 

regulations, and directives) and 

771.117(c)(1) (activities that do not lead 

directly to construction). The FHWA 

has evaluated whether the proposed 

action would involve unusual 

circumstances or extraordinary 

circumstances and has determined that 

this proposed action would not involve 

such circumstances. As a result, FHWA 

finds that this proposed rulemaking 

would not result in significant impacts 

on the human environment. 

Regulation Identification Number 

A RIN is assigned to each regulatory 

action listed in the Unified Agenda of 

Federal Regulations. The Regulatory 

Information Service Center publishes 

the Unified Agenda in April and 

October of each year. The RIN contained 

in the heading of this document can be 

used to cross reference this action with 

the Unified Agenda. 

List of Subjects 

23 CFR Part 635 

Construction and maintenance, Grant 

programs-transportation, Highways and 

roads, Reporting and recordkeeping 

requirements. 

23 CFR Part 710 

Grant programs-transportation, 

Highways and roads, Real property 

acquisition, Reporting and 

recordkeeping requirements, Rights-ofway. 

23 CFR Part 810 

Grant programs-transportation, 

Highways and roads, Mass 

transportation, Rights-of-way. 

Issued on: November 6, 2014. 

Gregory G. Nadeau, 

Acting Administrator, Federal Highway 

Administration. 

In consideration of the foregoing, 

FHWA proposes to amend title 23, Code 

of Federal Regulations, parts 635, 710, 

and 810 as follows: 

Title 23—Highways 

PART 635—CONSTRUCTION AND 

MAINTENANCE 

■ 1. The authority citation for part 635 

continues to read as follows: 

Authority: Sec. 1525 of Pub. L. 112–141, 

Sec. 1503 of Pub. L. 109–59, 119 Stat. 1144; 

23 U.S.C. 101 (note), 109, 112, 113, 114, 116, 

119, 128, and 315; 31 U.S.C. 6505; 42 U.S.C. 

3334, 4601 et seq.; Sec. 1041(a), Pub. L. 102– 

240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR 

1.85(a)(1). 

■ 2. § 635.309 is revised to read as 

follows: 

§ 635.309 Authorization. 

Authorization to advertise the 

physical construction for bids or to 

proceed with force account construction 

thereof shall normally be issued as soon 

as, but not until, all of the following 

conditions have been met: 

(a) The plans, specifications, and 

estimates (PS&E) have been approved. 

(b) A statement is received from the 

State, either separately or combined 

with the information required by 

§ 635.309(c), that either all right-of-way 

(ROW) clearance, utility, and railroad 

work has been completed or that all 

necessary arrangements have been made 

for it to be undertaken and completed as 

required for proper coordination with 

the physical construction schedules. 

Where it is determined that the 

completion of such work in advance of 

the highway construction is not feasible 

or practical due to economy, special 

operational problems or the like, there 

shall be appropriate notification 

provided in the bid proposals 

identifying the ROW clearance, utility, 

and railroad work which is to be 

underway concurrently with the 

highway construction. 

(c) Except as otherwise provided for 

design-build projects in § 710.309 of this 

chapter and paragraph (p) of this 

section, a statement is received from the 

State certifying that all individuals and 

families have been relocated to decent, 

safe, and sanitary housing or that the 

State has made available to relocatees 

adequate replacement housing in 

accordance with the provisions of the 49 

CFR part 24 and that one of the 

following has application: 

(1) All necessary ROWs, including 

control of access rights when pertinent, 

have been acquired including legal and 

physical possession. Trial or appeal of 

cases may be pending in court but legal 

possession has been obtained. There 

may be some improvements remaining 

on the ROW but all occupants have 

vacated the lands and improvements 

and the State has physical possession 

and the right to remove, salvage, or 

demolish these improvements and enter 

on all land. 

(2) Although all necessary ROWs have 

not been fully acquired, the right to 

occupy and to use all ROWs required for 

the proper execution of the project has 

been acquired. Trial or appeal of some 

parcels may be pending in court and on 

other parcels full legal possession has 

not been obtained but right of entry has 

been obtained, the occupants of all 

lands and improvements have vacated 

and the State has physical possession 

and right to remove, salvage, or 

demolish these improvements. 

(3) The acquisition or right of 

occupancy and use of a few remaining 

parcels is not complete, but all 

occupants of the residences on such 

parcels have had replacement housing 

made available to them in accordance 

with 49 CFR 24.204. Under these 

circumstances, the State may request the 

FHWA to authorize actions based on a 

conditional certification as provided in 

this paragraph (c)(3). 

(i) The State may request approval for 

the advertisement for bids based on a 

conditional certification. The Federal 

Highway Administration (FHWA) will 

approve the request unless it finds that 

it will not be in the public interest to 

proceed with the bidding before 

acquisition activities are complete. 

(ii) The State may request approval for 

physical construction under a contract 

or through force account work based on 

a conditional certification. The FHWA 

will approve the request only if FHWA 

finds there are exceptional 


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circumstances that make it in the public 

interest to proceed with construction 

before acquisition activities are 

complete. 

(iii) Whenever a conditional 

certification is used, the State shall 

ensure that occupants of residences, 

businesses, farms, or non-profit 

organizations who have not yet moved 

from the ROW are protected against 

unnecessary inconvenience and 

disproportionate injury or any action 

coercive in nature. 

(iv) When the State requests 

authorization under a conditional 

certification to advertise for bids or to 

proceed with physical construction 

where acquisition or right of occupancy 

and use of a few parcels has not been 

obtained, full explanation and reasons 

therefor, including identification of each 

such parcel, will be set forth in the 

State’s request along with a realistic 

date when physical occupancy and use 

is anticipated as well as substantiation 

that such date is realistic. Appropriate 

notification must be provided in the 

request for bids, identifying all locations 

where right of occupancy and use has 

not been obtained. Prior to the State 

issuing a notice to proceed with 

construction to the contractor, the State 

shall provide an updated notification to 

FHWA identifying all locations where 

right of occupancy and use has not been 

obtained along with a realistic date 

when physical occupancy and use is 

anticipated. 

(v) Participation of title 23 of the 

United States Code funds in 

construction delay claims resulting from 

unavailable parcels shall be determined 

in accordance with § 635.124. The 

FHWA will determine the extent of title 

23 participation in costs related to 

construction delay claims resulting from 

unavailable parcels where FHWA 

determines the State did not follow 

approved processes and procedures. 

(d) The State transportation 

department (SDOT), in accordance with 

23 CFR 771.111(h), has submitted 

public hearing transcripts, certifications 

and reports pursuant to 23 U.S.C. 128. 

(e) An affirmative finding of cost 

effectiveness or that an emergency exists 

has been made as required by 23 U.S.C. 

112, when construction by some method 

other than contract based on 

competitive bidding is contemplated. 

(f) Minimum wage rates determined 

by the Department of Labor in 

accordance with the provisions of 23 

U.S.C. 113, are in effect and will not 

expire before the end of the period 

within which it can reasonably be 

expected that the contract will be 

awarded. 

(g) A statement has been received that 

ROW has been acquired or will be 

acquired in accordance with 49 CFR 

part 24 and part 710 of this chapter, or 

that acquisition of ROW is not required. 

(h) A statement has been received that 

the steps relative to relocation advisory 

assistance and payments as required by 

49 CFR part 24 have been taken, or that 

they are not required. 

(i) The FHWA has determined that 

appropriate measures have been 

included in the PS&E in keeping with 

approved guidelines, for minimizing 

possible soil erosion and water 

pollution as a result of highway 

construction operations. 

(j) The FHWA has determined that 

requirements of 23 CFR part 771 have 

been fulfilled and appropriate measures 

have been included in the PS&E to 

ensure that conditions and 

commitments made in the development 

of the project to mitigate environmental 

harm will be met. 

(k) Where utility facilities are to use 

and occupy the right-of-way, the State 

has demonstrated to the satisfaction of 

the FHWA that the provisions of 23 CFR 

645.119(b) have been fulfilled. 

(l) The FHWA has verified the fact 

that adequate replacement housing is in 

place and has been made available to all 

affected persons. 

(m) Where applicable, area wide 

agency review has been accomplished 

as required by 42 U.S.C. 3334 and 4231 

through 4233. 

(n) The FHWA has determined that 

the PS&E provide for the erection of 

only those information signs and traffic 

control devices that conform to the 

standards developed by the Secretary of 

Transportation or mandates of Federal 

law and do not include promotional or 

other informational signs regarding such 

matters as identification of public 

officials, contractors, organizational 

affiliations, and related logos and 

symbols. 

(o) The FHWA has determined that, 

where applicable, provisions are 

included in the PS&E that require the 

erection of funding source signs, for the 

life of the construction project, in 

accordance with section 154 of the 

Surface Transportation and Uniform 

Relocation Assistance Act of 1987. 

(p) In the case of a design-build 

project, the following certification 

requirements apply: 

(1) The FHWA’s project authorization 

for final design and physical 

construction will not be issued until the 

following conditions have been met: 

(i) All projects must conform with the 

statewide and metropolitan 

transportation planning requirements 

(23 CFR part 450). 

(ii) All projects in air quality 

nonattainment and maintenance areas 

must meet all transportation conformity 

requirements (40 CFR parts 51 and 93). 

(iii) The NEPA review process has 

been concluded. (See 23 CFR 636.109). 

(iv) The Request for Proposals 

document has been approved. 

(v) A statement is received from the 

SDOT that either all ROW, utility, and 

railroad work has been completed or 

that all necessary arrangements will be 

made for the completion of ROW, 

utility, and railroad work. 

(vi) If the SDOT elects to include 

ROW, utility, and/or railroad services as 

part of the design-builder’s scope of 

work, then the Request for Proposals 

document must include: 

(A) A statement concerning scope and 

current status of the required services 

or, in the case of right-of-way work, a 

certification in accordance with 

§ 710.309(d)(1) of this chapter; and 

(B) A statement which requires 

compliance with the Uniform 

Relocation and Real Property 

Acquisition Policies Act of 1970, as 

amended, 23 CFR part 710, and the 

acquisition processes and procedures 

are in the FHWA-approved ROW 

manual. 

(2) During a conformity lapse, an 

Early Acquisition Project carried out in 

accordance with § 710.501 of this 

chapter or a design-build project 

(including ROW acquisition activities) 

may continue if, prior to the conformity 

lapse, the National Environmental 

Policy Act (NEPA) process was 

completed and the project has not 

changed significantly in design scope, 

FHWA authorized the early acquisition 

or design-build project, and the project 

met transportation conformity 

requirements (40 CFR parts 51 and 93). 

(3) Changes to the design-build 

project concept and scope may require 

a modification of the transportation plan 

and transportation improvement 

program. The project sponsor must 

comply with the metropolitan and 

statewide transportation planning 

requirements in 23 CFR part 450 and the 

transportation conformity requirements 

(40 CFR parts 51 and 93) in air quality 

nonattainment and maintenance areas, 

and provide appropriate approval 

notification to the design-builder for 

such changes. 

PART 710—RIGHT-OF-WAY AND REAL 

ESTATE 

■ 3. The authority citation for part 710 

is revised to read as follows: 

Authority: Secs.1302 and 1321, Pub. L. 

112–141, 126 Stat. 405. Sec. 1307, Pub. L. 

105–178, 112 Stat. 107; 23 U.S.C. 101(a), 107, 


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108, 111, 114, 133, 142(f), 156, 204, 210, 308, 

315, 317, and 323; 42 U.S.C. 2000d et seq., 

4633, 4651–4655; 49 CFR 1.48(b) and (cc), 

18.31, and parts 21 and 24; 23 CFR 1.32. 

■ 4. Revise subparts A through F to read 

as follows: 

Subpart A—General 

Sec. 

710.101 Purpose. 

710.103 Applicability. 

710.105 Definitions. 

Subpart B—Program Administration 

710.201 Grantee and subgrantee 

responsibilities. 

710.203 Title 23 funding and 

reimbursement. 

Subpart C—Project Development 

710.301 General. 

710.303 Project authorization and 

agreements. 

710.305 Acquisition. 

710.307 Construction advertising. 

710.309 Design-build projects. 

Subpart D—Real Property Management 

710.401 General. 

710.403 Management. 

710.405 ROW use agreements. 

710.407 [Reserved] 

710.409 Disposal of excess real property. 

Subpart E—Property Acquisition 

Alternatives 

710.501 Early acquisition. 

710.503 Protective buying and hardship 

acquisition. 

710.505 Real property donations. 

710.507 State and local contributions. 

710.509 Functional replacement of real 

property in public ownership. 

710.511 Transportation Alternatives 

Program. 

Subpart F—Federal Assistance Program 

710.601 Federal land transfers. 

710.603 Direct Federal acquisition. 

Subpart A—General 

§ 710.101 Purpose. 

The primary purpose of the 

requirements in this part is to ensure the 

prudent use of Federal funds under title 

23, United States Code, in the 

acquisition, management, and disposal 

of real property. In addition to the 

requirements of this part, other real 

property related provisions apply and 

are found at 49 CFR part 24. 

§ 710.103 Applicability. 

(a) This part applies whenever title 

23, United States Code, grant funding is 

used, including when grant funds are 

expended or participate in project costs 

incurred by the State or other title 23 

grantee. This part applies to programs 

and projects administered by the 

Federal Highway Administration 

(FHWA) and, unless otherwise stated in 

this part, to all property purchased with 

title 23 grant funds or incorporated into 

a project carried out with grant funding 

provided under title 23, except property 

for which the title is vested in the 

United States upon project completion. 

Grantees are accountable to FHWA for 

complying with, and are responsible for 

ensuring their subgrantees, contractors, 

and other project partners comply with 

applicable Federal laws, including this 

part. 

(b) The parties responsible for ROW 

and real estate activities, and for 

compliance with applicable Federal 

requirements, can vary by the nature of 

the responsibility or the underlying 

activity. Throughout this part, the 

FHWA identifies the parties subject to a 

particular provision through the use of 

terms of reference defined as set forth in 

§ 710.105. It is important to refer to 

those definitions, such as ‘‘State 

Department of Transportation (SDOT),’’ 

‘‘grantee,’’ ‘‘subgrantee,’’ ‘‘State agency’’ 

and ‘‘acquiring agency,’’ when applying 

the provisions in this part. 

(c) Where title 23 of the United States 

Code funds are transferred to other 

Federal agencies to administer, those 

agencies’ ROW and real estate 

procedures may be utilized. Additional 

guidance is available electronically at 

the FHWA Real Estate Services Web 

site: http://www.fhwa.dot.gov/

realestate/index.htm. 

§ 710.105 Definitions. 

(a) Terms defined in 23 U.S.C. 101(a) 

and 49 CFR part 24 have the same 

meaning where used in this part, except 

as modified in this section. 

(b) The following terms where used in 

this part have the following meaning: 

Access rights means the right of 

ingress to and egress from a property to 

a public way. 

Acquiring agency means a State 

agency, other entity, or person acquiring 

real property for title 23, United States 

Code, purposes. When an acquiring 

agency acquires real property interests 

that will be incorporated into a project 

eligible for title 23 grant funds, the 

acquiring agency must comply with 

Federal real estate and ROW 

requirements applicable to the grant. 

Acquisition means activities to obtain 

an interest in, and possession of, real 

property. 

Damages means the loss in the value 

attributable to remainder property due 

to the severance or consequential 

damages, as limited by State law, that 

arise when only part of an owner’s real 

property is acquired. 

Disposal means the transfer by sale or 

other conveyance of permanent rights in 

excess real property, when the real 

property interest is not currently or in 

the foreseeable future needed for 

highway ROW or other uses eligible for 

funding under title 23 of the United 

States Code. A disposal must meet the 

requirements contained in § 710.403(b). 

The term ‘‘disposal’’ includes actions by 

a grantee, or its subgrantees, in the 

nature of relinquishment, abandonment, 

vacation, discontinuance, and 

disclaimer of real property or any rights 

therein. 

Donation means the voluntary 

transfer of privately owned real 

property, by a property owner who has 

been informed in writing by the 

acquiring agency of rights and benefits 

available to owners under the Uniform 

Act and this section, for the benefit of 

a public transportation project without 

compensation or with compensation at 

less than fair market value. 

Early acquisition means acquisition of 

real property interests by an acquiring 

agency prior to completion of the 

environmental review process for a 

proposed transportation project, as 

provided under § 710.501 and 23 U.S.C. 

108. 

Early Acquisition Project means a 

project for the acquisition of real 

property interests prior to the 

completion of the environmental review 

process for the transportation project 

into which the acquired property will be 

incorporated, as authorized under 23 

U.S.C. 108 and implemented under 

§ 710.501. It may consist of the 

acquisition of real property interests in 

a specific parcel, a portion of a 

transportation corridor, or an entire 

transportation corridor. 

Easement means an interest in real 

property that conveys a right to use or 

control a portion of an owner’s property 

or a portion of an owner’s rights in the 

property either temporarily or 

permanently. 

Excess real property means a real 

property interest not needed currently 

or in the foreseeable future for 

transportation purposes or other uses 

eligible for funding under title 23, 

United States Code. 

Federal-aid project means a project 

funded in whole or in part under, or 

requiring an FHWA approval pursuant 

to provisions in, chapter 1 of title 23, 

United States Code. 

Federally assisted means a project or 

program that receives grant funds under 

title 23, United States Code. 

Grantee means the party that is the 

direct recipient of title 23 of the United 

States Code funds and is accountable to 

FHWA for the use of the funds and for 

compliance with applicable Federal 

requirements. 

Mitigation property means real 

property interests acquired to mitigate 


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for impacts of a project eligible for 

funding under title 23 of the United 

States Code. 

Option means the purchase of a right 

to acquire real property within an 

agreed-to period of time for an agreedto amount of compensation or through 

an agreed-to method by which 

compensation will be calculated. 

Person means any individual, family, 

partnership, corporation, or association. 

Real Estate Acquisition Management 

Plan (RAMP) means a written document 

that details how a non-State department 

of transportation grantee, subgrantee, or 

design-build contractor will administer 

the title 23 United States Code ROW 

and real estate requirements for its 

project or program of projects. The 

document must be approved by the 

SDOT, or by the funding agency in the 

case of a non-SDOT grantee, before any 

acquisition work may begin. It must lay 

out in detail how the acquisition and 

relocation assistance programs will be 

accomplished and any anticipated 

issues that may arise during the process. 

If relocations are reasonably expected as 

part of the title 23 project or program, 

the Real Estate Acquisition Management 

Plan (RAMP) must address relocation 

assistance and related procedures. 

Real property or real property interest 

means any interest in land and any 

improvements thereto, including fee 

and less-than-fee interests such as: 

temporary and permanent easements, 

air or access rights, access control, 

options, and other contractual rights to 

acquire an interest in land, rights to 

control use or development, leases, and 

licenses, and any other similar action to 

acquire or preserve ROW for a 

transportation facility. As used in this 

part, the terms ‘‘real property’’ and ‘‘real 

property interest’’ are synonymous 

unless otherwise specified. 

Relinquishment means the 

conveyance of a portion of a highway 

ROW or facility by a grantee under title 

23, United States Code, or its 

subgrantee, to another government 

agency for continued transportation use. 

(See 23 CFR part 620, subpart B.) 

Right-of-way (ROW) means real 

property and rights therein obtained for 

the construction, operation, 

maintenance, or mitigation of a 

transportation or related facility funded 

under title 23, United States Code. 

ROW manual means an operations 

manual that establishes a grantee’s 

acquisition, valuation, relocation, and 

property management and disposal 

requirements and procedures, and has 

been approved in accordance with 

§ 710.201(c). 

ROW use agreement means real 

property interests, defined by an 

agreement, as evidenced by instruments 

such as a lease, license, or permit, for 

use of real property interests for nonhighway purposes where the use is in 

the public interest, consistent with the 

continued operation, maintenance, and 

safety of the facility, and such use will 

not impair the highway or interfere with 

the free and safe flow of traffic (see also 

23 CFR 1.23). These rights may be 

granted only for a specified period of 

time because the real property interest 

may be needed in the future for highway 

purposes or other purposes eligible for 

funding under title 23 of the United 

States Code. 

Settlement means the result of 

negotiations based on fair market value 

in which the amount of just 

compensation is agreed upon for the 

purchase of real property or an interest 

therein. This term includes the 

following: 

(i) An administrative settlement is a 

settlement reached prior to filing a 

condemnation proceeding based on 

value related evidence, administrative 

consideration, or other factors approved 

by an authorized agency official. 

(ii) A legal settlement is a settlement 

reached by an authorized legal 

representative after filing a 

condemnation proceeding, including 

agreements resulting from mediation 

and stipulated settlements approved by 

the court in which the condemnation 

action had been filed. 

(iii) A court settlement or court award 

is any decision by a court that follows 

a contested trial or hearing before a jury, 

commission, judge, or other legal entity 

having the authority to establish the 

amount of just compensation for a 

taking under the laws of eminent 

domain. 

State agency means: a department, 

agency, or instrumentality of a State or 

of a political subdivision of a State; any 

department, agency, or instrumentality 

of two or more States or of two or more 

political subdivisions of a State or 

States; or any person who has the 

authority to acquire property by 

eminent domain, for public purposes, 

under State law. 

State department of transportation 

(SDOT) means the State highway 

department, transportation department, 

or other State transportation agency or 

commission to which title 23, United 

States Code, funds are apportioned. 

Stewardship/Oversight Agreement 

means the written agreement between 

the SDOT and FHWA that defines the 

respective roles and responsibilities of 

FHWA and the State for carrying out 

certain project review, approval, and 

oversight responsibilities under title 23, 

including those activities specified by 

23 U.S.C. 106(c)(3). 

Subgrantee means a government 

agency or legal entity that enters into an 

agreement with a grantee to carry out 

part or all of the activity funded by title 

23 of the United States Code grant 

funds. A subgrantee is accountable to 

the grantee for the use of the funds and 

for compliance with applicable Federal 

requirements. 

Temporary development restriction 

means the purchase of a right to 

temporarily control or restrict 

development or redevelopment of real 

property. This right is for an agreed to 

time period, defines specifically what is 

restricted or controlled, and is for an 

agreed to amount of compensation. 

Transportation project means any 

highway project, public transportation 

capital project, multimodal project, or 

other project that requires the approval 

of the Secretary. As used in this part, 

the term ‘‘transportation project’’ does 

not include an Early Acquisition Project 

as defined in this section. 

Uneconomic remnant means a 

remainder property which the acquiring 

agency has determined has little or no 

utility or value to the owner. 

Uniform Act means the Uniform 

Relocation Assistance and Real Property 

Acquisition Policies Act of 1970, as 

amended (Pub. L. 91–646, 84 Stat. 1894; 

primarily codified in 42 U.S.C. 4601 et 

seq.), and the implementing regulations 

at 49 CFR part 24. 

Subpart B—Program Administration 

§ 710.201 Grantee and subgrantee 

responsibilities. 

(a) Program oversight. States 

administer the Federal-aid highway 

program, funded under chapter 1 of title 

23, United States Code, through their 

SDOTs. The SDOT shall have overall 

responsibility for the acquisition, 

management, and disposal of real 

property interests on its Federal-aid 

projects, including when those projects 

are carried out by the SDOT’s 

subgrantees or contractors. This 

responsibility shall include ensuring 

compliance with the requirements of 

this part and other Federal laws, 

including regulations. Non-SDOT 

grantees of funds under title 23 must 

comply with the requirements under 

this part, except as otherwise expressly 

provided in this part, and are 

responsible for assuring compliance by 

their subgrantees and contractors with 

the requirements of this part and other 

Federal laws, including regulations. 

(b) Organization. Each grantee and 

subgrantee, including any other 

acquiring agency acting on behalf of a 


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grantee or subgrantee, shall be 

adequately staffed, equipped, and 

organized to discharge its real property 

related responsibilities. 

(c) ROW manual. (1) Every grantee 

must ensure that its title 23-funded 

projects are carried out using an FHWAapproved and up-to-date ROW manual 

or RAMP that is consistent with 

applicable Federal requirements, 

including the Uniform Act and this part. 

Each SDOT that receives funding under 

title 23, United States Code, shall 

maintain an approved and up-to-date 

ROW manual describing its ROW 

organization, policies, and procedures. 

Non-SDOT grantees may use one of the 

procedures in paragraph (d) of this 

section to meet the requirements in this 

paragraph. The ROW manual shall 

describe functions and procedures for 

all phases of the ROW program, 

including appraisal and appraisal 

review, waiver valuation, negotiation 

and eminent domain, property 

management, relocation assistance, 

administrative settlements and oversight 

of its subgrantees and contractors. The 

ROW manual shall also specify 

procedures to prevent conflict of 

interest and avoid fraud, waste, and 

abuse. The ROW manual shall be in 

sufficient detail and depth to guide the 

grantee, its employees, and others 

involved in acquiring, managing, and 

disposing of real property interests. 

Grantees, subgrantees, and their 

contractors must comply with current 

FHWA requirements whether or not the 

requirements are included in the 

FHWA-approved ROW manual. 

(2) The SDOT’s ROW manual must be 

developed and updated, as a minimum, 

to meet the following schedule: 

(i) The SDOTs shall prepare and 

submit for approval by FHWA an up-todate ROW Manual by no later than 2 

years after the publication of this rule. 

(ii) Every 5 years thereafter, the chief 

administrative officer of the SDOT shall 

certify to the FHWA that the current 

SDOT ROW manual conforms to 

existing practices and contains 

necessary procedures to ensure 

compliance with Federal and State real 

estate law and regulation, including this 

part. 

(iii) The SDOT shall update its ROW 

manual periodically to reflect changes 

in operations and submit the updated 

materials for approval by the FHWA. 

(d) ROW manual alternatives. NonSDOT grantees, and all subgrantees, 

design-build contractors, and other 

acquiring agencies carrying out a project 

funded by a grant under title 23, United 

States Code, must demonstrate that they 

will use FHWA-approved ROW 

procedures for acquisition and other 

real estate activities, and that they have 

the ability to comply with current 

FHWA requirements, including this 

part. This can be done through any of 

the three procedures outlined in 

paragraphs (d)(1) through (3) of this 

section. Subgrantees, design-build 

contractors, and other acquiring 

agencies carrying out a project for an 

SDOT submit the required certification 

and information to the SDOT, and the 

SDOT will review and make a 

determination on behalf of FHWA. NonSDOT grantees submit the required 

certification and information directly to 

FHWA. Non-SDOT grantees are 

responsible for submitting to FHWA the 

required certification and information 

for any subgrantee, contractor, and other 

acquiring agency carrying out a project 

for the non-SDOT grantee. 

(1) Certification in writing that the 

acquiring agency will adopt and use the 

FHWA-approved SDOT ROW manual; 

(2) Submission of the acquiring 

agency’s own ROW manual for review 

and determination whether it complies 

with Federal and State requirements, 

together with a certification that once 

the reviewing agency approves the 

manual, the acquiring agency will use 

the approved ROW manual; or 

(3) Submission of a RAMP setting 

forth the procedures the acquiring 

agency or design-build contractor 

intends to follow for a specified project 

or group of projects, along with a 

certification that if the reviewing agency 

approves the RAMP, the acquiring 

agency or design-build contractor will 

follow the approved RAMP for the 

specified program or project(s). 

(e) Recordkeeping. The acquiring 

agency shall maintain adequate records 

of its acquisition and property 

management activities. 

(1) Acquisition records, including 

records related to owner or tenant 

displacements, and property inventories 

of improvements acquired shall be in 

sufficient detail to demonstrate 

compliance with this part and 49 CFR 

part 24. These records shall be retained 

at least 3 years from the later of either: 

(i) The date the SDOT or other grantee 

receives Federal reimbursement of the 

final payment made to each owner of a 

property and to each person displaced 

from a property; or 

(ii) The date of reimbursement for 

early acquisitions or credit toward the 

State share of a project is approved 

based on early acquisition activities 

under § 710.501. 

(2) Property management records 

shall include inventories of real 

property interests considered excess to 

project or program needs, as well as all 

authorized ROW use agreements for real 

property acquired with title 23 of the 

United States Code funds or 

incorporated into a program or project 

that received title 23 funding. 

(f) Procurement. Contracting for all 

activities required in support of an 

SDOT’s or other grantee’s ROW projects 

or programs through the use of private 

consultants and other services shall 

conform to 49 CFR 18.36, except to the 

extent that the procurement is required 

to adhere to requirements under 23 

U.S.C. 112(b)(2) and 23 CFR part 172 for 

engineering and design related 

consultant services. 

(g) Use of other public land 

acquisition organizations, conservation 

organizations, or private consultants. 

The grantee may enter into written 

agreements with other State, county, 

municipal, or local public land 

acquisition organizations, conservation 

organizations, private consultants, or 

other persons to carry out its authorities 

under this part. Such organizations, 

firms, or persons must comply with the 

grantee’s ROW manual or RAMP as 

approved in accordance with 

paragraphs (c) or (d) of this section. The 

grantee shall monitor any such real 

property interest acquisition activities to 

ensure compliance with State and 

Federal law, and is responsible for 

informing such persons of all such 

requirements and for imposing 

sanctions in cases of material noncompliance. 

(h) Assignment of FHWA approval 

actions to an SDOT. The SDOT and 

FHWA will agree in their Stewardship/ 

Oversight Agreement on the scope of 

property-related oversight and 

approvals under this part that will be 

performed directly by FHWA and those 

that FHWA will assign to the SDOT. 

This assignment provision does not 

apply to other grantees of title 23 of the 

United States Code funds. The content 

of the most recent Stewardship/

Oversight Agreement shall be reflected 

in the FHWA-approved SDOT ROW 

manual. The agreement, and thus the 

SDOT ROW manual, will indicate 

which Federal-aid projects require 

submission of materials for FHWA 

review and approval. The FHWA retains 

responsibility for any action not 

expressly assigned to the SDOT in the 

Stewardship/Oversight Agreement. 

§ 710.203 Title 23 of the United States 

Code funding and reimbursement. 

(a) General conditions. Except as 

otherwise provided in § 710.501 for 

early acquisition, a State agency only 

may acquire real property, including 

mitigation property, with title 23 of the 

United States Code grant funds if the 

following conditions are satisfied: 


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(1) The project for which the real 

property is acquired is included in an 

approved Statewide Transportation 

Improvement Program (STIP); 

(2) The grantee has executed a project 

agreement or other agreement 

recognized under title 23 of the United 

States Code reflecting the Federal 

funding terms and conditions for the 

project; 

(3) Preliminary acquisition activities, 

including a title search, appraisal, 

appraisal review and waiver valuation 

preparation and preliminary property 

map preparation can be advanced under 

preliminary engineering, as defined in 

23 CFR 646.204, prior to completion of 

NEPA (42 U.S.C. 4321 et seq.) review, 

while other work involving contact with 

affected property owners for purposes of 

negotiation must normally be deferred 

until after NEPA approval, except as 

provided in § 710.501, early acquisition; 

and in § 710.503 for protective buying 

and hardship acquisition; and 

(4) Costs have been incurred in 

conformance with State and Federal 

requirements. 

(b) Direct eligible costs. Federal funds 

may only participate in direct costs that 

are identified specifically as an 

authorized acquisition activity such as 

the costs of acquiring the real property 

incorporated into the final project and 

the associated direct costs of 

acquisition, except in the case of a State 

that has an approved indirect cost 

allocation plan as stated in § 710.203(d) 

or specifically provided by statute. 

Participation is provided for: 

(1) Real property acquisition. Usual 

costs and disbursements associated with 

real property acquisition as required 

under the laws of the State, including 

the following: 

(i) The cost of contracting for private 

acquisition services or the cost 

associated with the use of local public 

agencies; 

(ii) Ordinary and reasonable costs of 

acquisition activities, such as, appraisal, 

waiver valuation development, 

appraisal review, cost estimates, 

relocation planning, ROW plan 

preparation, title work, and similar 

necessary ROW related work; 

(iii) The compensation paid for the 

real property interest and costs normally 

associated with completing the 

purchase, such as document fees and 

document stamps. The costs of 

acquiring options and other contractual 

rights to acquire an interest in land, 

rights to control use or development, 

leases, ROWs, and any other similar 

action to acquire or preserve rights-of 

way for a transportation facility are 

eligible costs when FHWA determines 

such costs are actual, reasonable and 

necessary costs. Costs under this 

paragraph do not include salary and 

related expenses for an acquiring 

agency’s employees (see payroll-related 

expenses in paragraph (b)(5) of this 

section); 

(iv) The cost of administrative 

settlements in accordance with 49 CFR 

24.102(i), legal settlements, court 

awards, and costs incidental to the 

condemnation process. This includes 

reasonable acquiring agency attorney’s 

fees, but excludes attorney’s fees for 

other parties except where required by 

State law (including an order of a court 

of competent jurisdiction) or approved 

by FHWA; and 

(v) The cost of minimum payments 

and waiver valuation amounts included 

in the approved ROW manual or 

approved RAMP. 

(2) Relocation assistance and 

payments. Usual costs and 

disbursements associated with the 

following: 

(i) Relocation assistance and 

payments required under 49 CFR part 

24; and 

(ii) Relocation assistance and 

payments provided under the laws of 

the State that may exceed the 

requirements of 49 CFR part 24, except 

for relocation assistance and payments 

provided to aliens not lawfully present 

in the United States. 

(3) Damages. The cost of severance 

and/or consequential damages to 

remaining real property resulting from a 

partial acquisition, actual or 

constructive, of real property for a 

project based on elements compensable 

under State law. 

(4) Property management. The net 

cost of managing real property prior to 

and during construction to provide for 

maintenance, protection, and the 

clearance and disposal of improvements 

until final project acceptance. 

(5) Payroll-related expenses. Salary 

and related expenses (compensation for 

personal services) of employees of an 

acquiring agency for work on a project 

funded by a title 23 of the United States 

Code grant are eligible costs in 

accordance with 2 CFR part 225 

(formerly OMB Circular A–87), as are 

salary and related expenses of a 

grantee’s employees for work with an 

acquiring agency or a contractor to 

ensure compliance with Federal 

requirements on a title 23 project if the 

work is dedicated to a specific project 

and documented in accordance with 2 

CFR part 225. 

(6) Property not incorporated into a 

project funded under title 23, United 

States Code. The cost of property not 

incorporated into a project may be 

eligible for reimbursement in the 

following circumstances: 

(i) General. Costs for construction 

material sites, property acquisitions to a 

logical boundary, eligible 

Transportation Alternatives Program 

(TAP) projects, sites for disposal of 

hazardous materials, environmental 

mitigation, environmental banking 

activities, or last resort housing; and 

(ii) Easements and alternate access 

not incorporated into the ROW. The cost 

of acquiring easements and alternate 

access points necessary for highway 

construction and maintenance outside 

the approved ROW limits for permanent 

or temporary use. 

(7) Uneconomic remnants. The cost of 

uneconomic remnants purchased in 

connection with the acquisition of a 

partial taking for the project as required 

by the Uniform Act. 

(8) Access rights. Payment for full or 

partial control of access on an existing 

road or highway (i.e., one not on a new 

location), based on elements 

compensable under applicable State 

law. Participation does not depend on 

another real property interest being 

acquired or on further construction of 

the highway facility. 

(9) Utility and railroad property. (i) 

The cost to replace operating real 

property owned by a displaced utility or 

railroad and conveyed to an acquiring 

agency for a project, as provided in 23 

CFR part 140, subpart I, Reimbursement 

for Railroad Work, 23 CFR part 645, 

subpart A, Utility Relocations, 

Adjustments and Reimbursement, and 

23 CFR part 646, subpart B, RailroadHighway Projects; and 

(ii) Participation in the cost of 

acquiring non-operating utility or 

railroad real property shall be in the 

same manner as that used in the 

acquisition of other privately owned 

property. 

(c) Withholding payment. The FHWA 

may withhold payment under the 

conditions described in 23 CFR 1.36 for 

failure to comply with Federal law or 

regulation, State law, or under 

circumstances of waste, fraud, and 

abuse. 

(d) Indirect costs. Indirect costs may 

be claimed under the provisions of 2 

CFR part 225 (formerly OMB Circular 

A–87). Indirect costs may be included 

on billings after the indirect cost 

allocation plan has been prepared in 

accordance with 2 CFR part 225 and 

approved by FHWA, other cognizant 

Federal agency, or, in the case of an 

SDOT subgrantee without a rate 

approved by a cognizant Federal agency, 

by the SDOT. Indirect costs for an SDOT 

may include costs of providing programlevel guidance, consultation, and 


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oversight to other acquiring agencies 

and contractors where ROW activities 

on title 23-funded projects are 

performed by non-SDOT personnel. 

Subpart C—Project Development 

§ 710.301 General. 

The project development process 

typically follows a sequence of actions 

and approvals in order to qualify for 

funding. The key steps in this process 

typically are planning, environmental 

review, project agreement/authorization, 

acquisition, construction advertising, 

and construction. 

§ 710.303 Project authorization and 

agreements. 

As a condition of Federal funding 

under title 23 of the United States Code, 

the grantee shall obtain FHWA 

authorization in writing or 

electronically before proceeding with 

any real property acquisition using title 

23 funds, including early acquisitions 

under § 710.501(e) and hardship 

acquisition and protective buying under 

§ 710.503. For projects funded under 

chapter 1, title 23, United States Code, 

the grantee must prepare a project 

agreement in accordance with 23 CFR 

part 630, subpart A. Authorizations and 

agreements shall be based on an 

acceptable estimate for the cost of 

acquisition. 

§ 710.305 Acquisition. 

(a) General. The process of acquiring 

real property includes appraisal, 

appraisal review, waiver valuations, 

establishing estimates of just 

compensation, negotiations, relocation 

assistance, administrative and legal 

settlements, and court settlements and 

condemnations. Grantees must ensure 

all acquisition and related relocation 

assistance activities are performed in 

accordance with 49 CFR part 24 and this 

part. If a grantee does not directly own 

the real property interests used for a 

title 23 of the United States Code 

project, the grantee must have an 

enforceable subgrant agreement or other 

agreement with the owner of the ROW 

that permits the grantee to enforce 

applicable Federal requirements 

affecting the real property interests, 

including real property management 

requirements under subpart D of this 

part. 

(b) Adequacy of real property interest. 

The real property interests acquired for 

any project funded under title 23 of the 

United States Code must be adequate to 

fulfill the purpose of the project. Except 

in the case of an Early Acquisition 

Project, this means adequate for the 

construction, operation, and 

maintenance of the resulting facility, 

and for the protection of both the 

facility and the traveling public. 

(c) Establishment and offer of just 

compensation. The amount believed to 

be just compensation shall be approved 

by a responsible official of the acquiring 

agency. This shall be done in 

accordance with 49 CFR 24.102(d). 

(d) Description of acquisition process. 

The acquiring agency shall provide 

persons affected by projects or 

acquisitions advanced under title 23 of 

the United States Code with a written 

description of its real property 

acquisition process under State law and 

this part, and of the owner’s rights, 

privileges, and obligations. The 

description shall be written in clear, 

non-technical language and, where 

appropriate, be available in a language 

other than English in accordance with 

49 CFR 24.5, 24.102(b), and 24.203. 

§ 710.307 Construction advertising. 

(a) The grantee must manage real 

property acquired for a project until it 

is required for construction. Except for 

properties acquired under the early 

acquisition provisions of § 710.501(e), 

clearance of improvements can be 

scheduled during the acquisition phase 

of the project using sale/removal 

agreements, separate demolition 

contracts, or be included as a work item 

in the construction contract. The grantee 

shall develop ROW availability 

statements and certifications related to 

project acquisitions as described in 23 

CFR 635.309. 

(b) The FHWA–SDOT Stewardship/

Oversight Agreement will specify SDOT 

responsibility for the review and 

approval of the ROW availability 

statements and certifications in 

accordance with applicable law. 

Generally, for non-National Highway 

System projects, the SDOT has full 

responsibility for determining that rightof-way is available for construction. For 

non-SDOT grantees, FHWA will be 

responsible for the review and approval. 

710.309 Design-build projects. 

(a) In the case of a design-build 

project, ROW must be acquired and 

cleared in accordance with the Uniform 

Act and the FHWA-approved ROW 

manual or RAMP, as provided in 

§§ 710.201(c) and (d). The grantee shall 

submit a ROW certification in 

accordance with 23 CFR 635.309(p) 

when requesting FHWA’s authorization. 

The grantee shall ensure that ROW is 

available prior to the start of physical 

construction on individual properties. 

(b) The decision to advance a ROW 

segment to the construction stage shall 

not impair the safety or in any way be 

coercive in the context of 49 CFR 

24.102(h) with respect to unacquired or 

occupied properties on the same or 

adjacent segments of project ROW. 

(c) The grantee may choose not to 

allow construction to commence until 

all property is acquired and relocations 

have been completed; or, the grantee 

may permit the construction to be 

phased or segmented to allow ROW 

activities to be completed on individual 

properties or a group of properties, with 

ROW certifications done in a manner 

satisfactory to the grantee for each phase 

or segment. 

(d) If the grantee elects to include 

ROW services within the designbuilder’s scope of work for the designbuild contract, the following provisions 

must be addressed in the request for 

proposals document: 

(1) The design-builder must submit 

written certification in its proposal that 

it will comply with the process and 

procedures in the FHWA-approved 

ROW manual or RAMP as provided in 

§§ 710.201(c) and (d). 

(2) When relocation of displaced 

persons from their dwellings has not 

been completed, the grantee or designbuilder shall establish a hold off zone 

around all occupied properties to ensure 

compliance with ROW procedures prior 

to starting construction activities in 

affected areas. The limits of this zone 

should be established by the grantee 

prior to the design-builder entering onto 

the property. There should be no 

construction-related activity within the 

hold off zone until the property is 

vacated. The design-builder must have 

written notification of vacancy from the 

grantee prior to entering the hold off 

zone. 

(3) Contractors activities must be 

limited to those that the grantee 

determines do not have a material 

adverse impact on the quality of life of 

those in occupied properties that have 

been or will be acquired. 

(4) The grantee will provide a ROW 

project manager who will serve as the 

first point of contact for all ROW issues. 

(e) If the grantee elects to perform all 

ROW services relating to the designbuild contract, the provisions in 

§ 710.307 will apply. The grantee will 

notify potential offerors of the status of 

all ROW issues in the request for 

proposal document. 

Subpart D—Real Property Management 

§ 710.401 General. 

This subpart describes the grantee’s 

responsibilities to control the use of real 

property acquired for a project in which 

Federal funds participated in any phase 

of the project. The grantee shall specify 

in its approved ROW manual or RAMP, 


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the procedures for the maintenance, 

ROW use agreements, and disposal of 

real property interests acquired with 

title 23 of the United States Code funds. 

The grantee shall assure that 

subgrantees, including local agencies, 

follow Federal requirements and 

approved ROW procedures as provided 

in § 710.201(c) and (d). 

§ 710.403 Management. 

(a) As provided in § 710.201(h), 

FHWA and SDOT may use their 

Stewardship/Oversight Agreement to 

enter into a written agreement 

establishing which approvals the SDOT 

may make on behalf of FHWA, provided 

FHWA may not assign to the SDOT the 

decision whether to allow any ROW use 

agreements or any disposal on or within 

the approved ROW limits of the 

Interstate, including any change in 

access control. The assignment 

agreement provisions in § 710.201(h) 

and this paragraph (a) do not apply to 

non-SDOT grantees. 

(b) The grantee must ensure that all 

real property interests within the 

approved ROW limits or other project 

limits of a facility that has been funded 

under title 23 of the United States Code 

are devoted exclusively to the purposes 

of that facility and the facility is 

preserved free of all other public or 

private alternative uses, unless such 

non-highway alternative uses are 

permitted by Federal law (including 

regulations) or the FHWA. An 

alternative use, whether temporary 

under § 710.405 or permanent as 

provided in § 710.409, must be in the 

public interest, consistent with the 

continued operation, maintenance, and 

safety of the facility, and such use must 

not impair the highway or interfere with 

the free and safe flow of traffic (see also 

23 CFR 1.23). 

(c) Grantees shall specify procedures 

in their approved ROW manual or 

RAMP for determining when a real 

property interest is excess real property 

and may be disposed of in accordance 

with this part, or is a real property 

interest that may be made available for 

an alternate use under a ROW use 

agreement. These procedures must 

provide for coordination among relevant 

State organizational units that may be 

interested in the proposed use or 

disposal of the real property. Grantees 

also shall specify procedures in their 

ROW manual or RAMP for determining 

when a real property interest is excess 

and when a real property interest may 

be made available under a ROW use 

agreement for an alternative use that 

satisfies the requirements described in 

paragraph (b) of this section. 

(d) Disposal actions and ROW use 

agreements, including leasing actions, 

are subject to 23 CFR part 771. 

(e) Current fair market value must be 

charged for the use or disposal of all real 

property interests if those real property 

interests were obtained with title 23, 

United States Code, funding except as 

provided in paragraphs (e)(1) through 

(6) of this section. The term fair market 

value as used for acquisition and 

disposal purposes is as defined by State 

statute and/or State court decisions. 

Exceptions to the requirement for 

charging fair market value must be 

submitted to FHWA in writing and may 

be approved by FHWA in the following 

situations: 

(1) When the grantee shows that an 

exception is in the overall public 

interest based on social, environmental, 

or economic benefits, or is for a 

nonproprietary governmental use. The 

grantee’s ROW manual or RAMP must 

include criteria for evaluating disposals 

at less than fair market value, and a 

method for ensuring the public will 

receive the benefit used to justify the 

less than fair market value disposal. 

(2) Use by public utilities in 

accordance with 23 CFR part 645. 

(3) Use by railroads in accordance 

with 23 CFR part 646. 

(4) Use for bikeways and pedestrian 

walkways in accordance with 23 CFR 

part 652. 

(5) Uses under 23 U.S.C. 142(f), Public 

Transportation. Lands and ROWs of a 

highway constructed using Federal-aid 

highway funds may be made available 

without charge to a publicly owned 

mass transit authority for public transit 

purposes whenever the public interest 

will be served, and where this can be 

accomplished without impairing 

automotive safety or future highway 

improvements. 

(6) Use for other transportation 

projects eligible for assistance under 

title 23 of the United States Code, 

provided that a concession agreement, 

as defined in § 710.703, shall not 

constitute a transportation project 

exempt from fair market value 

requirements. 

(f) The Federal share of net income 

from the use or disposal of real property 

interests obtained with title 23 of the 

United States Code funds shall be used 

by the grantee for activities eligible for 

funding under title 23. Where project 

income derived from the use or disposal 

of real property interests is used for 

subsequent title 23-eligible projects, the 

funds are not considered Federal 

financial assistance and use of the 

income does not cause title 23 

requirements to apply. 

§ 710.405 ROW use agreements. 

(a) A ROW use agreement for the nonhighway use of real property interests 

may be executed with a public entity or 

private party in accordance with 

§ 710.403 and this section. Any nonhighway alternative use of real property 

interests requires approval by FHWA, 

including a determination by FHWA 

that such occupancy, use, or reservation 

is in the public interest; is consistent 

with the continued use, operations, 

maintenance, and safety of the facility; 

and such use does not impair the 

highway or interfere with the free and 

safe flow of traffic as described in 

§ 710.403(b). Where the SDOT controls 

the real property interest, the FHWA 

may assign its determination and 

approval responsibilities to the SDOT in 

their Stewardship/Oversight Agreement. 

(1) This section applies to highways 

as defined in 23 U.S.C. 101(a) that 

received title 23, United States Code, 

financial assistance in any way. 

(2) This section does not apply to the 

following: 

(i) Uses by railroads and public 

utilities which cross or otherwise 

occupy Federal-aid highway ROW and 

that are governed by other sections of 

this title; 

(ii) Relocations of railroads or utilities 

for which reimbursement is claimed 

under 23 CFR part 140, subparts E and 

H, 23 CFR part 645, or 23 CFR part 646, 

subpart B; and 

(iii) Bikeways and pedestrian 

walkways as covered in 23 CFR part 

652. 

(b) Subject to the requirements in this 

subpart, ROW use agreements for a 

time-limited occupancy or use of real 

property interests may be approved if 

the grantee has acquired sufficient legal 

right, title, and interest in the ROW of 

a federally assisted highway to permit 

the non-highway use. A ROW use 

agreement must contain provisions that 

address the following items: 

(1) Ensure the safety and integrity of 

the federally assisted facility; 

(2) Define the term of the agreement; 

(3) Identify the design and location of 

the non-highway use; 

(4) Establish terms for revocation of 

the ROW use agreement and removal of 

improvements at no cost to the FHWA; 

(5) Provide for adequate insurance to 

hold the grantee and the FHWA 

harmless; 

(6) Require compliance with 

nondiscrimination requirements; 

(7) Require grantee and FHWA 

approval, and SDOT approval if the 

agreement affects a Federal-aid highway 

and the SDOT is not the grantee, for any 

significant revision in the design, 


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construction, or operation of the nonhighway use; and 

(8) Grant access to the non-highway 

use by the grantee and FHWA, and the 

SDOT if the agreement affects a Federalaid highway and the SDOT is not the 

grantee, for inspection, maintenance, 

and for activities needed for 

reconstruction of the highway facility. 

Note to paragraph (b). Additional terms 

and conditions appropriate for inclusion 

in ROW use agreements are described in 

FHWA guidance at http://

www.fhwa.dot.gov/real_estate/

practitioners/right-of-way/corridor_

management/airspace_guidelines.cfm. 

(c) Where a proposed use requires 

changes in the existing highway, such 

changes shall be provided without cost 

to Federal funds unless otherwise 

specifically agreed to by the grantee and 

FHWA. 

(d) Proposed uses of real property 

interests shall conform to the current 

design standards and safety criteria of 

FHWA for the functional classification 

of the highway facility in which the 

property is located. 

(e) An individual, company, 

organization, or public agency desiring 

to use real property interests shall 

submit a written request to the grantee, 

together with an application supporting 

the proposal. If FHWA is the approving 

authority, the grantee shall forward the 

request, application, the SDOT’s 

recommendation if the proposal affects 

a Federal-aid highway, and the 

proposed ROW use agreement, together 

with its recommendation and any 

necessary supplemental information, to 

FHWA. The submission shall 

affirmatively provide for adherence to 

all requirements contained in this 

subpart and must include the following 

information: 

(1) Identification of the party 

responsible for developing and 

operating the proposed use; 

(2) A general statement of the 

proposed use; 

(3) A description of why the proposed 

use would be in the public interest; 

(4) Information demonstrating the 

proposed use would not impair the 

highway or interfere with the free and 

safe flow of traffic; 

(5) The proposed design for the use of 

the space, including any facilities to be 

constructed; 

(6) Maps, plans, or sketches to 

adequately demonstrate the relationship 

of the proposed project to the highway 

facility; 

(7) Provision for vertical and 

horizontal access for maintenance 

purposes; 

(8) A description of other general 

provisions such as the term of use, 

insurance requirements, design 

limitations, safety mandates, 

accessibility, and maintenance as 

outlined further in this section; and 

(9) An adequately detailed threedimensional presentation of the space to 

be used and the facility to be 

constructed. Maps and plans may not be 

required if the available real property 

interest is to be used for leisure 

activities (such as walking or biking), 

beautification, parking of motor 

vehicles, public mass transit facilities, 

and similar uses. In such cases, an 

acceptable metes and bounds 

description of the surface area, and 

appropriate plans or cross sections 

clearly defining the vertical use limits, 

may be furnished in lieu of a threedimensional description, at the grantee’s 

discretion. 

§ 710.407 [Reserved] 

§ 710.409 Disposal of excess real property. 

(a) Excess real property outside or 

within the approved right of way limits 

or other project limits may be sold or 

conveyed to a public entity or to a 

private party in accordance with 

§ 710.403 and this section. Approval by 

FHWA is required for disposal of excess 

real property unless otherwise provided 

in this section or in the FHWA–SDOT 

Stewardship/Oversight Agreement. 

(b) Federal, State, and local agencies 

shall be afforded the opportunity to 

acquire excess real property considered 

for disposal when such real property 

interests have potential use for parks, 

conservation, recreation, or related 

purposes, and when such a transfer is 

allowed by State law. When this 

potential exists, the grantee shall notify 

the appropriate agencies of its 

intentions to dispose of the real 

property interests determined to be 

excess. 

(c) The grantee may decide to retain 

excess real property to restore, preserve, 

or improve the scenic beauty and 

environmental quality adjacent to the 

transportation facility. 

(d) Where the transfer of excess real 

property to other agencies at less than 

fair market value for continued public 

use is clearly justified as in the public 

interest and approved by FHWA under 

§ 710.403(e), the deed shall provide for 

reversion of the property for failure to 

continue public ownership and use. 

Where property is sold at fair market 

value, no reversion clause is required. 

(e) No FHWA approval is required for 

disposal of excess real property located 

outside of the approved ROW limits or 

other project limits if Federal funds did 

not participate in the acquisition cost of 

the real property. 

(f) Highway facilities in which 

Federal funds participated in either the 

ROW or construction may be 

relinquished to another governmental 

agency for continued highway use 

under the provisions of 23 CFR part 620, 

subpart B. 

(g) A request for approval of a 

disposal must demonstrate compliance 

with the requirements of § 710.403 and 

this section, and must address the items 

in §§ 710.405(b)(1), (3), (5), (6), (7), and 

(8), and 710.405(c) and (d). An 

individual, company, organization, or 

public agency requesting a grantee to 

approve of a disposal of excess real 

property within the approved ROW 

limits or other project limits, or to 

approve of a disposal of excess real 

property outside the ROW limits that 

was acquired with title 23 of the United 

States Code funding, shall submit a 

written request to the grantee, together 

with an application supporting the 

proposal. If the FHWA is the approving 

authority, the grantee shall forward the 

request, the SDOT recommendation if 

the proposal affects a Federal-aid 

highway, the application, and proposed 

terms and conditions, together with its 

recommendation and any necessary 

supplemental information, to FHWA. 

The submission shall affirmatively 

provide for adherence to all 

requirements contained in this section 

and must include the information 

specified in § 710.405(e)(1) through (9). 

Subpart E—Property Acquisition 

Alternatives 

§ 710.501 Early acquisition. 

(a) General. A State agency may 

initiate acquisition of real property 

interests for a proposed transportation 

project at any time it has the legal 

authority to do so. The State agency may 

undertake Early Acquisition Projects 

before the completion of the 

environmental review process for the 

proposed transportation project for 

corridor preservation, access 

management, or other purposes. Subject 

to the requirements in this section, State 

agencies may fund Early Acquisition 

Project costs entirely with State funds 

with no title 23 of the United States 

Code participation; use State funds 

initially but seek title 23 credit or 

reimbursement when the acquired 

property is incorporated into a 

transportation project eligible for 

Federal surface transportation program 

funds; or use the normal Federal-aid 

project agreement and reimbursement 

process to fund an Early Acquisition 

Project pursuant to paragraph (e) of this 

section. The early acquisition of a real 

property interest under this section 


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shall be carried out in compliance with 

all requirements applicable to the 

acquisition of real property interests for 

federally assisted transportation 

projects. 

(b) State-funded early acquisition 

without Federal credit or 

reimbursement. A State agency may 

carry out early acquisition entirely at its 

expense and later incorporate the 

acquired real property into a 

transportation project or program for 

which the State agency receives Federal 

financial assistance or other Federal 

approval under title 23 of the United 

States Code for other transportation 

project activities. In order to maintain 

eligibility for future Federal assistance 

on the project, early acquisition 

activities funded entirely without 

Federal participation must comply with 

the requirements of §§ 710.501(c)(1) 

through (5). 

(c) State-funded early acquisition 

eligible for future credit. Subject to 

§§ 710.203(b) (direct eligible costs), 

710.505(b), and 710.507 (State and local 

contributions), Early Acquisition Project 

costs incurred by a State agency at its 

own expense prior to completion of the 

environmental review process for a 

proposed transportation project are 

eligible for use as a credit toward the 

non-Federal share of the total project 

costs if the project receives surface 

transportation program funds, and if the 

following conditions are met: 

(1) The property was lawfully 

obtained by the State agency; 

(2) The property was not land 

described in 23 U.S.C. 138; 

(3) The property was acquired, and 

any relocations were carried out, in 

accordance with the provisions of the 

Uniform Act and regulations in 49 CFR 

part 24; 

(4) The State agency complied with 

the requirements of title VI of the Civil 

Rights Act of 1964 (42 U.S.C. 2000d– 

2000d–4); 

(5) The State agency determined, and 

FHWA concurred, the early acquisition 

did not influence the environmental 

review process for the proposed 

transportation project, including: 

(i) The decision on need to construct 

the proposed transportation project; 

(ii) The consideration of any 

alternatives for the proposed 

transportation project required by 

applicable law; and 

(iii) The selection of the design or 

location for the proposed transportation 

project; and 

(6) The property will be incorporated 

into the project for which surface 

transportation program funds are 

received and to which the credit will be 

applied. 

(d) State-funded early acquisition 

eligible for future reimbursement. Early 

Acquisition Project costs incurred by a 

State agency prior to completion of the 

environmental review process for the 

transportation project are eligible for 

reimbursement from title 23 of the 

United States Code funds apportioned 

to the State once the real property 

interests are incorporated into a project 

eligible for surface transportation 

program funds if the State agency 

demonstrates, and FHWA concurs, that 

the terms and conditions specified in 23 

U.S.C. 108(c)(3), the requirements of 

§ 710.501(c)(1)–(5), and the 

requirements of § 710.203(b) (direct 

eligible costs) have been met. 

(e) Federally funded early acquisition. 

The FHWA may authorize the use of 

funds apportioned to a State under title 

23 of the United States Code for an Early 

Acquisition Project if the State agency 

certifies, and FHWA concurs, that all of 

the following conditions have been met: 

(1) The State has authority to acquire 

the real property interest under State 

law; and 

(2) The acquisition of the real 

property interest— 

(i) Is for a transportation project or 

program eligible for funding under title 

23 of the United States Code; 

(ii) Does not involve land described in 

23 U.S.C. 138; 

(iii) Will not cause any significant 

adverse environmental impacts either as 

a result of the Early Acquisition Project 

or from cumulative effects of multiple 

Early Acquisition Projects carried out 

under this section in connection with a 

proposed transportation project; 

(iv) Will not limit the choice of 

reasonable alternatives for a proposed 

transportation project or otherwise 

influence the decision of FHWA on any 

approval required for a proposed 

transportation project; 

(v) Will not prevent the lead agency 

from making an impartial decision as to 

whether to accept an alternative that is 

being considered in the environmental 

review process for a proposed 

transportation project; 

(vi) Is consistent with the State 

transportation planning process under 

23 U.S.C. 135; 

(vii) Complies with other applicable 

Federal laws (including regulations); 

(viii) Will be acquired through 

negotiation, without the threat of, or use 

of, condemnation; and 

(ix) Will not result in a reduction or 

elimination of benefits or assistance to 

a displaced person required by the 

Uniform Act and title VI of the Civil 

Rights Act of 1964 (42 U.S.C. 2000d et 

seq.). 

(3) The Early Acquisition Project is 

included as a project in an applicable 

transportation improvement program 

under 23 U.S.C. 134 and 135 and 49 

U.S.C. 5303 and 5304. 

(4) The environmental review process 

for the Early Acquisition Project is 

complete and FHWA has approved the 

Early Acquisition Project. Pursuant to 

23 U.S.C. 108(d)(4)(B), the Early 

Acquisition Project is deemed to have 

independent utility for purposes of the 

environmental review process under 

NEPA. When the Early Acquisition 

Project may result in a change to the use 

or character of the real property interest 

prior to the completion of the 

environmental review process for the 

proposed transportation project, the 

NEPA evaluation for the Early 

Acquisition Project must consider 

whether the change has the potential to 

cause a significant environmental 

impact as defined in 40 CFR 1508.27, 

including a significant adverse impact 

within the meaning of paragraph 

(e)(2)(iii) of this section. The Early 

Acquisition Project must comply with 

all applicable environmental laws. 

(f) Prohibited Activities. Except as 

provided in this paragraph, real 

property interests acquired under 

paragraph (e) of this section and 

pursuant to 23 U.S.C. 108(d) cannot be 

developed in anticipation of a 

transportation project until all required 

environmental reviews for the 

transportation project have been 

completed. For the purpose of this 

paragraph (f), ‘‘development in 

anticipation of a transportation project’’ 

means any activity related to 

demolition, site preparation, or 

construction that is not necessary to 

protect public health or safety. With 

prior FHWA approval, a State agency 

may carry out limited activities 

necessary for securing real property 

interests acquired as part of an Early 

Acquisition Project, such as limited 

clearing and demolition activity, if the 

activities are necessary to protect the 

public health or safety and are 

considered during the environmental 

review of the Early Acquisition Project. 

(g) Reimbursement. If Federal-aid 

reimbursement is made for real property 

interests acquired early under this 

section and the real property interests 

are not subsequently incorporated into a 

project eligible for surface 

transportation funds within the time 

allowed by 23 U.S.C. 108 (a)(2), FHWA 

must offset the amount reimbursed 

against funds apportioned to the State. 

(h) Relocation Assistance Eligibility. 

In the case of an Early Acquisition 

Project, a person is considered to be 

displaced when required to move from 


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the real property as a direct result of a 

binding written agreement for the 

purchase of the real property interest(s) 

between the acquiring agency and the 

property owner. Options to purchase 

and similar agreements used for Early 

Acquisition Projects that give the 

acquiring agency a right to prevent new 

development or to decide in the future 

whether to acquire the real property 

interest(s), but do not create an 

immediate commitment by the 

acquiring agency to acquire and do not 

require an owner or tenant to relocate, 

do not create relocation eligibility until 

the acquiring agency legally commits 

itself to acquiring the real property 

interest(s). 

§ 710.503 Protective buying and hardship 

acquisition. 

(a) General conditions. Prior to final 

environmental approval of a project, the 

grantee may request FHWA agreement 

to provide reimbursement for advance 

acquisition of a particular parcel or a 

limited number of parcels, to prevent 

imminent development and increased 

costs on the preferred location 

(Protective Buying), or to alleviate 

hardship to a property owner or owners 

on the preferred location (Hardship 

Acquisition), provided the following 

conditions are met: 

(1) The project is included in the 

currently approved STIP; 

(2) The grantee has complied with 

applicable public involvement 

requirements in 23 CFR parts 450 and 

771; 

(3) A determination has been 

completed for any property interest 

subject to the provisions of 23 U.S.C. 

138; and 

(4) Procedures of the Advisory 

Council on Historic Preservation are 

completed for properties subject to 16 

U.S.C. 470(f) (historic properties). 

(b) Protective buying. The grantee 

must clearly demonstrate that 

development of the property is 

imminent and such development would 

limit future transportation choices. A 

significant increase in cost may be 

considered as an element justifying a 

protective purchase. 

(c) Hardship acquisitions. The grantee 

must accept and concur in an owner’s 

request for a hardship acquisition based 

on a property owner’s written 

submission that— 

(1) Supports the hardship acquisition 

by providing justification, on the basis 

of health, safety or financial reasons, 

that remaining in the property poses an 

undue hardship compared to other 

property owners; and 

(2) Documents an inability to sell the 

property because of the impending 

project, at fair market value, within a 

time period that is typical for properties 

not impacted by the impending project. 

(d) Environmental decisions. 

Acquisition of property under this 

section is subject to environmental 

review under part 771 of this chapter. 

Acquisitions under this section shall not 

influence the environmental review of a 

transportation project which would use 

the property, including decisions about 

the need to construct the transportation 

project or the selection of an alternative. 

§ 710.505 Real property donations. 

(a) Donations of property being 

acquired. A non-governmental owner 

whose real property is required for a 

title 23 of the United States Code project 

may donate the property. Donations 

may be made at any time during the 

development of a project. Prior to 

accepting the property, the owner must 

be informed in writing by the acquiring 

agency of his/her right to receive just 

compensation for the property, the right 

to an appraisal or waiver valuation of 

the real property, and of all other 

applicable financial and non-financial 

assistance provided under 49 CFR part 

24 and applicable State law. All 

donations of property received prior to 

the approval of the NEPA document for 

the project must meet the requirements 

specified in 23 U.S.C. 323(d). 

(b) Credit for donations. Donations of 

real property may be credited to the 

State’s matching share of the project in 

accordance with 23 U.S.C. 323. As 

required by 23 U.S.C. 323(b)(2), credit to 

the State’s matching share for donated 

property shall be based on fair market 

value established on the earlier of the 

following: either the date on which the 

donation becomes effective, or the date 

on which equitable title to the property 

vests in the State. The fair market value 

shall not include increases or decreases 

in value caused by the project. The 

grantee shall ensure sufficient 

documentation is developed to indicate 

compliance with paragraph (a) of this 

section and with the provisions of 23 

U.S.C. 323, and to support the amount 

of credit applied. The total credit cannot 

exceed the State’s pro-rata share under 

the project agreement to which it is 

applied. 

(c) Donations and conveyances in 

exchange for construction features or 

services. A property owner may donate 

property in exchange for construction 

features or services. The value of the 

donation is limited to the fair market 

value of property donated less the cost 

of the construction features or services. 

If the value of the donated property 

exceeds the cost of the construction 

features or services, the difference may 

be eligible for a credit to the State’s 

share of project costs. 

§ 710.507 State and local contributions. 

(a) Credit for State and local 

government contributions. If the 

requirements of 23 U.S.C. 323 are met, 

real property owned by State and local 

governments that is incorporated within 

a project receiving financial assistance 

from the Highway Trust Fund can be 

used as a credit toward the State’s 

matching share of total project cost. A 

credit cannot exceed the State’s 

matching share required by the project 

agreement. The grantee must ensure 

there is documentation supporting all 

credits, including the following: 

(1) A certification that the State or 

local government acquisition satisfied 

the conditions in § 710.501(c)(1) 

through (6); and 

(2) Justification of the value of credit 

applied. Acquisition costs incurred by 

the State or local government to acquire 

title can be used as justification for the 

value of the real property. 

(b) Exemptions. Credits are not 

available for real property acquired with 

any form of Federal financial assistance 

except as provided in 23 U.S.C. 120(j), 

or for real property already incorporated 

into existing ROW and used for 

transportation purposes. 

(c) Contributions without credit. 

Property may be presented for project 

use with the understanding that no 

credit for its use is sought. In such case, 

the grantee shall assure that the 

acquisition satisfied the conditions in 

§ 710.501(c)(1) through (6). 

§ 710.509 Functional replacement of real 

property in public ownership. 

(a) General. When publicly owned 

real property, including land and/or 

facilities, is to be acquired for a project 

receiving grant funds under title 23 of 

the United States Code, in lieu of paying 

the fair market value for the real 

property, the acquiring agency may 

provide compensation by functionally 

replacing the publicly owned real 

property with another facility that will 

provide equivalent utility. 

(b) Federal participation. Federal-aid 

funds may participate in functional 

replacement costs only if the following 

conditions are met: 

(1) Functional replacement is 

permitted under State law and the 

acquiring agency elects to provide it; 

(2) The property in question is in 

public ownership and use; 

(3) The replacement facility will be in 

public ownership and will continue the 

public use function of the acquired 

facility; 

(4) The acquiring agency has 

informed, in writing, the public entity 


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owning the property of its right to an 

estimate of just compensation based on 

an appraisal of fair market value and of 

the option to choose either just 

compensation or functional 

replacement; 

(5) The FHWA concurs in the 

acquiring agency determination that 

functional replacement is in the public 

interest; and 

(6) The real property is not owned by 

a utility or railroad. 

(c) Federal land transfers. Use of this 

section for functional replacement of 

real property in Federal ownership shall 

be in accordance with Federal land 

transfer provisions in subpart F of this 

part. 

(d) Limits upon participation. Federalaid participation in the costs of 

functional replacement is limited to 

costs that are actually incurred in the 

replacement of the acquired land and/or 

facility and are— 

(1) Costs for facilities that do not 

represent increases in capacity or 

betterments, except for those necessary 

to replace utilities, to meet legal, 

regulatory, or similar requirements, or to 

meet reasonable prevailing standards; 

and 

(2) Costs for land to provide a site for 

the replacement facility. 

(e) Procedures. When a grantee 

determines that payments providing for 

functional replacement of public 

facilities are allowable under State law, 

the grantee will incorporate within its 

approved ROW manual, or approved 

RAMP, full procedures covering review 

and oversight that will be applied to 

such cases. 

§ 710.511 Transportation Alternatives 

Program. 

(a) General. 23 U.S.C. 133(b) (11) and 

213 authorize the expenditure of surface 

transportation funds for TAP projects. 

The TAP projects that involve the 

acquisition, management, and 

disposition of real property, and the 

relocation of families, individuals, and 

businesses, are governed by the general 

requirements of the Federal-aid program 

found in titles 23 and 49 of the CFR, 

except as specified in paragraph (b)(2) of 

this section. 

(b) Requirements. (1) Acquisition and 

relocation activities for TAP projects are 

subject to the Uniform Act. 

(2) When a person or agency acquires 

real property for a project receiving title 

23 of the United States Code grant funds 

on behalf of an acquiring agency with 

eminent domain authority, the 

requirements of the Uniform Act apply 

as if the acquiring agency had acquired 

the property itself. 

(3) When, subsequent to Federal 

approval of property acquisition, a 

person or agency acquires real property 

for a project receiving title 23 of the 

United States Code grant funds, and 

there will be no use or recourse to the 

power of eminent domain, the limited 

requirements of 49 CFR 24.101(b)(2) 

apply. 

(c) Property management and 

disposal of property acquired for TAP 

projects. Subpart D of this part applies 

to the management and disposal of real 

property interests acquired with TAP 

funds, including alternate uses 

authorized under ROW use agreements. 

A TAP project involving acquisition of 

any real property interest must have a 

TAP property agreement between 

FHWA and the grantee that identifies 

the expected useful life of the TAP 

project and establishes a pro rata 

formula for repayment of TAP funding 

by the grantee if— 

(1) The acquired real property interest 

is used in whole or in part for purposes 

other than the TAP project purposes for 

which it was acquired; or 

(2) The actual TAP project life is less 

than the expected useful life specified 

in the TAP property agreement. 

Subpart F—Federal Assistance 

Program 

§ 710.601 Federal land transfers. 

(a) The provisions of this subpart 

apply to any project constructed on a 

Federal-aid highway or under Chapter 2 

of title 23, of the United States Code. 

When the FHWA determines that a 

strong Federal transportation interest 

exists, these provisions may also be 

applied to highway projects that are 

eligible for Federal funding under 

Chapters 1 and 2 of title 23, of the 

United States Code, and to highwayrelated transfers that are requested by a 

State in conjunction with a military base 

closure under the Defense Base Closure 

and Realignment Act of 1990 (Pub. L. 

101–510, 104 Stat. 1808, as amended). 

(b) Under certain conditions, real 

property interests owned by the United 

States may be transferred to a nonFederal owner for use for highway 

purposes. Sections 107(d) and 317 of 

title 23, United States Code, establish 

the circumstances under which such 

transfers may occur, and the parties 

eligible to receive such transfers. 

(c) An eligible party may file an 

application with FHWA, or can make 

application directly to the Federal land 

management agency if the Federal land 

management agency has its own 

authority for granting interests in land. 

(d) Applications under this section 

shall include the following information: 

(1) The purpose for which the lands 

are to be used; 

(2) The estate or interest in the land 

required for the project; 

(3) The Federal project number or 

other appropriate references; 

(4) The name of the Federal agency 

exercising jurisdiction over the land and 

identity of the installation or activity in 

possession of the land; 

(5) A map showing the survey of the 

lands to be acquired; 

(6) A legal description of the lands 

desired; and 

(7) A statement of compliance with 

the National Environmental Policy Act 

of 1969 (42 U.S.C. 4332, et seq.) and any 

other applicable Federal environmental 

laws, including the National Historic 

Preservation Act (16 U.S.C. 470(f)), and 

23 U.S.C. 138. 

(e) If the FHWA concurs in the need 

for the transfer, the Federal land 

management agency will be notified and 

a right-of-entry requested. For projects 

not on the Interstate System, the Federal 

land management agency shall have a 

period of 4 months in which to 

designate conditions necessary for the 

adequate protection and utilization of 

the reserve or to certify that the 

proposed appropriation is contrary to 

the public interest or inconsistent with 

the purposes for which such land or 

materials have been reserved. The 

FHWA may extend the reply period at 

the timely request of the Federal land 

management agency for good cause. 

(f) The FHWA may participate in the 

payment of fair market value or the 

functional replacement of impacted 

facilities under § 710.509 and the 

reimbursement of the ordinary and 

reasonable direct costs of the Federal 

land management agency for the transfer 

when reimbursement is required by the 

Federal land management agency’s 

governing laws as a condition of the 

transfer. 

(g) Deeds for conveyance of real 

property interests owned by the United 

States shall be prepared by the eligible 

party and must be certified as being 

legally sufficient by an attorney licensed 

within the State where the real property 

is located. Such deeds shall contain the 

clauses required by FHWA and 49 CFR 

21.7(a)(2). After the eligible party 

prepares the deed, it will submit the 

proposed deed with the certification to 

FHWA for review and execution. 

(h) Following execution by FHWA, 

the eligible party shall record the deed 

in the appropriate land record office and 

so advise FHWA and the affected 

Federal land management agency. 

(i) When the need for the interest 

acquired under this subpart no longer 

exists, the party that received the real 


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property must restore the land to the 

condition which existed prior to the 

transfer, or to a condition that is 

acceptable to the Federal land 

management agency to which such 

property would revert, and must give 

notice to FHWA and to the affected 

Federal land management agency that 

such interest will immediately revert to 

the control of the Federal land 

management agency from which it was 

appropriated or to its assigns. Where 

authorized by Federal law, the Federal 

land management agency and such 

party may enter into a separate 

agreement to release the reversion 

clause and make alternative 

arrangements for the sale, restoration, or 

other disposition of the lands no longer 

needed. 

§ 710.603 Direct Federal acquisition. 

(a) The provisions of this paragraph 

(a) may be applied to any real property 

that is not owned by the United States 

and is needed in connection with a 

project for the construction, 

reconstruction, or improvement of any 

section of the Interstate System or for a 

Defense Access Road project under 23 

U.S.C. 210, if the SDOT is unable to 

acquire the required ROW or is unable 

to obtain possession with sufficient 

promptness. If the landowner tenders a 

right-of-entry or other right of 

possession document required by State 

law any time before FHWA makes a 

determination that the SDOT is unable 

to acquire the ROW with sufficient 

promptness, the SDOT is legally 

obligated to accept such tender and 

FHWA may not proceed with Federal 

acquisition. To enable FHWA to make 

the necessary findings and to proceed 

with the acquisition of the ROW, the 

SDOT’s written application for Federal 

acquisition must include the following: 

(1) Justification for the Federal 

acquisition of the lands or interests in 

lands; 

(2) The date FHWA authorized the 

SDOT to commence ROW acquisition, 

the date of the project agreement, and a 

statement that the agreement contains 

the provisions required by 23 U.S.C. 

111; 

(3) The necessity for acquisition of the 

particular lands under request; 

(4) A statement of the specific 

interests in lands to be acquired, 

including the proposed treatment of 

control of access; 

(5) The SDOT’s intentions with 

respect to the acquisition, 

subordination, or exclusion of 

outstanding interests, such as minerals 

and utility easements, in connection 

with the proposed acquisition; 

(6) A statement on compliance with 

the provisions of parts 771 and 774 of 

this chapter, as applicable; 

(7) Adequate legal descriptions, plats, 

appraisals, and title data; 

(8) An outline of the negotiations that 

have been conducted with landowners; 

(9) An agreement that the SDOT will 

pay its pro rata share of costs incurred 

in the acquisition of, or the attempt to 

acquire, ROW; and 

(10) A statement that assures 

compliance with the applicable 

provisions of the Uniform Act. (42 

U.S.C. 4601, et seq.) 

(b) Except as provided in paragraph 

(a) of this section, direct Federal 

acquisitions from non-Federal owners 

for projects administered by the FHWA 

Office of Federal Lands Highway may be 

carried out in accordance with 

applicable Federal condemnation laws. 

The FHWA will proceed with such a 

direct Federal acquisition only when the 

public agency responsible for the road is 

unable to obtain the ROW necessary for 

the project. The public agency must 

make a written request to FHWA for the 

acquisition and, if the public agency is 

a Federal agency, the request shall 

include a commitment that any real 

property obtained will be under that 

agency’s sole jurisdiction and control 

and FHWA will have no jurisdiction or 

control over the real property as a result 

of the acquisition. The FHWA may 

require the applicant to provide any 

information FHWA needs to make the 

required determinations or to carry out 

the acquisition. 

(c) If the applicant for direct Federal 

acquisition obtains title to a parcel prior 

to the filing of the Declaration of Taking, 

it shall notify FHWA and immediately 

furnish the appropriate U.S. Attorney 

with a disclaimer together with a 

request that the action against the 

landowner be dismissed (ex parte) from 

the proceeding and the estimated just 

compensation deposited into the 

registry of the court for the affected 

parcel be withdrawn after the 

appropriate motions are approved by 

the court. 

(d) When the United States obtains a 

court order granting possession of the 

real property, FHWA shall authorize the 

applicant for direct Federal acquisition 

to immediately take over supervision of 

the property. The authorization shall 

include, but need not be limited to, the 

following: 

(1) The right to take possession of 

unoccupied properties; 

(2) The right to give 90 days notice to 

owners to vacate occupied properties 

and the right to take possession of such 

properties when vacated; 

(3) The right to permit continued 

occupancy of a property until it is 

required for construction and, in those 

instances where such occupancy is to be 

for a substantial period of time, the right 

to enter into rental agreements, as 

appropriate, to protect the public 

interest; 

(4) The right to request assistance 

from the U.S. Attorney in obtaining 

physical possession where an owner 

declines to comply with the court order 

of possession; 

(5) The right to clear improvements 

and other obstructions; 

(6) Instructions that the U.S. Attorney 

be notified prior to actual clearing, so as 

to afford him an opportunity to view the 

lands and improvements, to obtain 

appropriate photographs, and to secure 

appraisals in connection with the 

preparation of the case for trial; 

(7) The requirement for appropriate 

credits to the United States for any net 

salvage or net rentals obtained by the 

applicant for direct Federal acquisition, 

as in the case of ROW acquired by an 

SDOT for Federal-aid projects; and 

(8) Instructions that the authority 

granted to the applicant for direct 

Federal acquisition is not intended to 

preclude the U.S. Attorney from taking 

action, before the applicant has made 

arrangements for removal, to reach a 

settlement with the former owner which 

would include provision for removal. 

(e) If the Federal Government initiates 

condemnation proceedings against the 

owner of real property in a Federal court 

and the final judgment is that FHWA 

cannot acquire the real property by 

condemnation, or the proceeding is 

abandoned, the court is required by law 

to award such a sum to the owner of the 

real property that in the opinion of the 

court provides reimbursement for the 

owner’s reasonable costs, 

disbursements, and expenses, including 

reasonable attorney, appraisal, and 

engineering fees, actually incurred 

because of the condemnation 

proceedings. 

(f) As soon as practicable after the 

date of payment of the purchase price or 

the date of deposit in court of funds to 

satisfy the award of the compensation in 

a Federal condemnation, FHWA shall 

reimburse the owner to the extent 

deemed fair and reasonable, the 

following costs: 

(1) Recording fees, transfer taxes, and 

similar expenses incidental to 

conveying such real property to the 

United States; 

(2) Penalty costs for prepayment of 

any preexisting recorded mortgage 

entered into in good faith encumbering 

such real property; and 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
70032 Federal Register / Vol. 79, No. 226 / Monday, November 24, 2014 / Proposed Rules 

(3) The pro rata portion of real 

property taxes paid which are allocable 

to a period subsequent to the date of 

vesting title in the United States or the 

effective date of possession, whichever 

is the earlier. 

(g) The lands or interests in lands, 

acquired under this section, will be 

conveyed to the State or the appropriate 

political subdivision thereof, upon 

agreement by the SDOT, or said 

subdivision to: 

(1) Maintain control of access where 

applicable; 

(2) Accept title thereto; 

(3) Maintain the project constructed 

thereon; 

(4) Abide by any conditions which 

may set forth in the deed; and 

(5) Notify the FHWA at the 

appropriate time that all the conditions 

have been performed. 

(h) The deed from the United States 

to the State, or to the appropriate 

political subdivision thereof, or in the 

case of a Federal applicant for a direct 

Federal acquisition any document 

designating jurisdiction, shall include 

the conditions required by 49 CFR part 

21 and shall not include any grant of 

jurisdiction to FHWA. The deed shall be 

recorded by the grantee in the 

appropriate land record office, and the 

FHWA shall be advised of the recording 

date. 

■ 3. Revise § 710.703(f) to read as 

follows: 

§ 710.703 Definitions. 

* * * * * 

(f) Highway agency in this subpart 

means any SDOT or other public 

authority with jurisdiction over a 

federally funded highway. 

PART 810—MASS TRANSIT AND 

SPECIAL USE HIGHWAY PROJECTS 

■ 4. The authority citation for part 810 

continues to read as follows: 

Authority: 23 U.S.C. 137, 142, 149 and 

315; sec. 4 of Pub. L. 97–134, 95 Stat. 1699; 

secs. 118, 120, and 163 of Pub. L. 97–424, 96 

Stat. 2097; 49 CFR 1.48(b) and 1.51(f). 

■ 5. Revise § 810.212 to read as follows: 

§ 810.212 Use without charge. 

The use and occupancy of the lands 

made available by the State to the 

publicly owned transit authority may be 

without charge. Costs incidental to 

making the lands available for mass 

transit shall be borne by the publicly 

owned mass transit authority. 

[FR Doc. 2014–27275 Filed 11–21–14; 8:45 am] 

BILLING CODE 4910–22–P 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS