Notice of Availability of Final Guidance on the Application of United States Code on Corridor Preservation, 67238-67239 [2014-26705]

Download as PDF 67238 Federal Register / Vol. 79, No. 218 / Wednesday, November 12, 2014 / Notices DEPARTMENT OF TRANSPORTATION Federal Transit Administration [Docket Number: FTA–2013–0019] Notice of Availability of Final Guidance on the Application of United States Code on Corridor Preservation Federal Transit Administration (FTA), DOT. ACTION: Notice of availability of final guidance. AGENCY: The FTA announces the availability of final guidance on the application of a provision of the Moving Ahead for Progress in the 21st Century Act (MAP–21) regarding corridor preservation for future transit projects. MAP–21 modified Federal transit law by amending a previously existing provision such that FTA can now, under certain conditions, assist in the acquisition of both non-railroad and railroad right-of-way (ROW) for corridor preservation before the environmental review process under the National Environmental Policy Act (NEPA) is complete for any transit project that could eventually use that ROW or could later receive FTA financial assistance. The final guidance defines the type of ROW to which this MAP–21 provision applies and explains the conditions and requirements pertaining to its application. On December 11, 2013, FTA announced in the Federal Register under docket number FTA–2013–0019 the availability of draft guidance and requested public comment. FTA received six comment letters and presents its responses to those comments in this notice. DATES: This final guidance is effective on November 12, 2014. ADDRESSES: The final guidance is available in the U.S. Government’s electronic docket site at http:// www.regulations.gov under docket number FTA–2013–0019 and on the FTA Web site at http://www.fta.dot.gov. FOR FURTHER INFORMATION CONTACT: Nancy-Ellen Zusman, Office of Chief Counsel, (312) 353–2577 or Terence Plaskon, Office of Human and Natural Environment, (202) 366–0442. FTA is located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:30 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: TKELLEY on DSK3SPTVN1PROD with NOTICES SUMMARY: Background Section 20016 of the Moving Ahead for Progress in the 21st Century Act (MAP–21) amended Federal transit law by revising a pre-existing provision and VerDate Sep<11>2014 17:55 Nov 10, 2014 Jkt 235001 moving it to 49 U.S.C. 5323(q) such that FTA can now, under certain conditions, assist in the acquisition of non-railroad right-of-way (ROW) before the completion of the National Environmental Policy Act (NEPA) environmental review process for any project that could eventually use that ROW or later receive FTA financial assistance. The ‘‘environmental review process’’ is defined in 23 U.S.C. 139(a)(3). The new provision of MAP– 21, which became effective on October 1, 2012, states: (q) CORRIDOR PRESERVATION.— (1) IN GENERAL.—The Secretary may assist a recipient in acquiring right-of-way before the completion of the environmental reviews for any project that may use the right-of-way if the acquisition is otherwise permitted under Federal law. The Secretary may establish restrictions on such an acquisition as the Secretary determines to be necessary and appropriate. (2) ENVIRONMENTAL REVIEWS.—Rightof-way acquired under this subsection may not be developed in anticipation of the project until all required environmental reviews for the project have been completed. Prior to October 1, 2012, FTA allowed this type of corridor preservation only for pre-existing railroad ROW to be used in a future transit project, pursuant to the former provision of Federal transit law that was modified and moved by MAP–21. MAP–21 removed the word ‘‘railroad’’ from the provision formerly in 49 U.S.C. 5324(c) and moved it to 49 U.S.C. 5323(q). Pursuant to authority delegated by the Secretary, FTA developed guidance that would (1) specify the conditions under which this provision may be used and (2) discuss the application of that provision to specific situations. Comments On December 11, 2013, FTA announced in the Federal Register (78 FR 75446) the availability of the draft guidance and requested comment on it. The notice of availability of the draft guidance contained a deadline of January 10, 2014, for comment. As of the date of issuance of this notice of availability of the final guidance, FTA considered all comments received in the docket. FTA received comments from two trade associations, two transit agencies, and two members of the public. Commenters provided 21 individual comments on the draft guidance. FTA organized these comments by topic. This notice discusses the comments FTA received, provides FTA’s responses to those comments, and identifies resulting changes FTA made to the guidance. Three commenters provided general comments that were supportive of the PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 draft guidance and requested no changes. FTA notes these comments for the record. Two commenters supported FTA’s definition of ROW in the context of corridor preservation and thought its broad scope had advantages. FTA notes these comments for the record. Three commenters questioned FTA’s position in the draft guidance that once the environmental review of a proposed project is initiated corridor preservation would not be appropriate and FTA would not assist in any such acquisition. Commenters stated that FTA’s guidance should allow ROW acquisition at any time before the completion of NEPA review. FTA considered these comments, agrees with this recommendation, and revised the guidance to reflect this. As a safeguard and to remedy any concern about prejudicing the NEPA process, FTA notes in the final guidance that a project sponsor must certify that the ROW acquisition will not limit the choice of reasonable alternatives for the project or otherwise influence the decision on any approval required for the project and would not prevent the lead agencies from making an impartial decision as to whether to accept an alternative that is being considered in the environmental review process. One commenter questioned whether corridor preservation must be the subject of an environmental review. The commenter argued that the mere acquisition of title for corridor preservation purposes should not be subject to NEPA review at all. FTA disagrees with this argument. If an applicant acquires ROW with FTA funds, it is a Federal action. FTA and the applicant must then complete an environmental review of the acquisition itself in accordance with NEPA and all other applicable Federal environmental laws and regulations. The ROW acquisition is treated as a stand-alone project with a separate NEPA document. If the ROW acquisition does not use Federal funds and has no Federal approvals, then NEPA would not apply to that acquisition; however, NEPA would apply to the project using that ROW itself if the project receives FTA funds. Two commenters remarked on the appropriate level of NEPA review for corridor preservation. One stated that a categorical exclusion (CE) should be FTA’s ‘‘default approach’’ and that approaching corridor preservation in the context of a CE would be appropriate in the vast majority of circumstances. The other commenter felt the guidance needed clarification regarding this issue. FTA does not take a ‘‘default approach’’ E:\FR\FM\12NON1.SGM 12NON1 TKELLEY on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 218 / Wednesday, November 12, 2014 / Notices in its environmental review, for corridor preservation or otherwise. The environmental review of ROW acquisition must be completed in accordance with NEPA and all other applicable Federal laws and regulations. FTA acknowledges that the CE found at 23 CFR § 771.118(d)(4), is potentially available for the appropriate level of NEPA review for corridor preservation; FTA notes, however, that if the CE is to be used then the conditions found in Sections 771.118(a) and (b) must be met. To add clarity, FTA revised the guidance to reflect this discussion. One commenter questioned the guidance’s requirement that all FTA planning requirements be satisfied for corridor preservation, including having the project in the Transportation Improvement Program (TIP) and State Transportation Improvement Program (STIP). If ROW is acquired with FTA funds, it is a Federal action and subject to FTA’s metropolitan and statewide planning requirements, meaning that the corridor preservation project must be included in Metropolitan Transportation Plan (MTP), the TIP and STIP. Moreover, even if the property is acquired with local funds, the project should be in the MTP if it is foreseeable that FTA funds are expected to be used for the project that would use that ROW. Two commenters submitted comments on the grants management/ administration portion of the guidance. One commenter questioned FTA’s expectation that a grantee implement a transit project using the ROW within a reasonable timeframe. The commenter requested FTA articulate criteria for this requirement. FTA declines to articulate specific criteria, but notes that the expectation of FTA is that when it provides Federal funds for corridor preservation that a project be built on that property within a reasonable timeframe. This is to ensure a proper and appropriate use of Federal funds. The final guidance is unchanged and states that, in determining the appropriate timeframe, FTA will consult with the project sponsor and will consider the planning status of any proposed project that would use the ROW. A second commenter questioned the guidance’s requirement regarding the disposition of the ROW in accordance with 49 U.S.C. 5334(h)(1)– (3), 49 U.S.C. 5334(h)(4), or 49 CFR 18.31(c). The commenter recommended FTA allow for the repayment of Federal funds when for some reason a project does not proceed as an option to avoid disposition of the ROW. One alternative disposition method involves the retention of title by the project sponsor after compensating the Federal VerDate Sep<11>2014 17:55 Nov 10, 2014 Jkt 235001 awarding agency. This is described in FTA’s Grant Management Requirements Circular (5010.1D), which sets forth all of the real property disposition requirements. See http:// www.fta.dot.gov/legislation_law/12349_ 8640.html. One commenter urged FTA to encourage Congress to recognize the importance of predictable funding over improved streamlining. FTA decided that this comment is outside the scope of this guidance. The final guidance is available in the U.S. Government’s electronic docket site at http://www.regulations.gov under docket number FTA–2013–0019 and on the FTA Web site at http:// www.fta.dot.gov. Therese W. McMillan, Acting Administrator, Federal Transit Administration. [FR Doc. 2014–26705 Filed 11–10–14; 8:45 am] BILLING CODE P DEPARTMENT OF TRANSPORTATION Federal Transit Administration Limitation on Claims Against Proposed Public Transportation Projects Federal Transit Administration (FTA), DOT. ACTION: Notice. AGENCY: This notice announces final environmental actions taken by the Federal Transit Administration (FTA) for projects in San Diego, CA; Tarrant County, TX; and Washington, DC. The purpose of this notice is to announce publicly the environmental decisions by FTA on the subject projects and to activate the limitation on any claims that may challenge these final environmental actions. DATES: By this notice, FTA is advising the public of final agency actions subject to Section 139(l) of Title 23, United States Code (U.S.C.). A claim seeking judicial review of FTA actions announced herein for the listed public transportation projects will be barred unless the claim is filed on or before April 13, 2015. FOR FURTHER INFORMATION CONTACT: Nancy-Ellen Zusman, Assistant Chief Counsel, Office of Chief Counsel, (312) 353–2577 or Terence Plaskon, Environmental Protection Specialist, Office of Human and Natural Environment, (202) 366–0442. FTA is located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:30 p.m., Monday through Friday, except Federal holidays. SUMMARY: PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 67239 Notice is hereby given that FTA has taken final agency actions by issuing certain approvals for the public transportation projects listed below. The actions on the projects, as well as the laws under which such actions were taken, are described in the documentation issued in connection with the projects to comply with the National Environmental Policy Act (NEPA) and in other documents in the FTA administrative record for the projects. Interested parties may contact either the project sponsor or the relevant FTA Regional Office for more information on each project. Contact information for FTA’s Regional Offices may be found at http://www.fta.dot.gov. This notice applies to all FTA decisions on the listed projects as of the issuance date of this notice and all laws under which such actions were taken, including, but not limited to, NEPA [42 U.S.C. 4321–4375], Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303], Section 106 of the National Historic Preservation Act [16 U.S.C. 470f], and the Clean Air Act [42 U.S.C. 7401–7671q]. This notice does not, however, alter or extend the limitation period for challenges of project decisions subject to previous notices published in the Federal Register. The projects and actions that are the subject of this notice are: 1. Project name and location: MidCoast Corridor Transit Project, San Diego, CA. Project sponsor: San Diego Association of Governments (SANDAG). Project description: SANDAG proposes to extend operation of the San Diego Trolley Blue Line from the Santa Fe Depot in Downtown San Diego north to the Old Town Transit Center (OTTC) approximately 3.5 miles via the existing Trolley tracks, and then north along new tracks for 10.9 miles to the University Town Centre Transit Center in University City, with nine new stations (four at-grade and five aerial) and parking facilities at five stations. The project includes upgrades to existing facilities between Santa Fe Depot and the OTTC, park-and-ride facilities, and the acquisition of new Trolley vehicles. Final agency actions: Section 4(f) de minimis impact determination; Section 106 finding of no adverse effect; project-level air quality conformity; and Record of Decision (ROD), dated October 15, 2014. Supporting documentation: Final Supplemental Environmental Impact Statement/Subsequent Environmental Impact Report, dated October 15, 2014. 2. Project name and location: TEX Rail Corridor Project, Tarrant County, TX. Project sponsor: Fort Worth SUPPLEMENTARY INFORMATION: E:\FR\FM\12NON1.SGM 12NON1

Agencies

[Federal Register Volume 79, Number 218 (Wednesday, November 12, 2014)]
[Notices]
[Pages 67238-67239]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-26705]



[[Page 67238]]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket Number: FTA-2013-0019]


Notice of Availability of Final Guidance on the Application of 
United States Code on Corridor Preservation

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of availability of final guidance.

-----------------------------------------------------------------------

SUMMARY: The FTA announces the availability of final guidance on the 
application of a provision of the Moving Ahead for Progress in the 21st 
Century Act (MAP-21) regarding corridor preservation for future transit 
projects. MAP-21 modified Federal transit law by amending a previously 
existing provision such that FTA can now, under certain conditions, 
assist in the acquisition of both non-railroad and railroad right-of-
way (ROW) for corridor preservation before the environmental review 
process under the National Environmental Policy Act (NEPA) is complete 
for any transit project that could eventually use that ROW or could 
later receive FTA financial assistance. The final guidance defines the 
type of ROW to which this MAP-21 provision applies and explains the 
conditions and requirements pertaining to its application. On December 
11, 2013, FTA announced in the Federal Register under docket number 
FTA-2013-0019 the availability of draft guidance and requested public 
comment. FTA received six comment letters and presents its responses to 
those comments in this notice.

DATES: This final guidance is effective on November 12, 2014.

ADDRESSES: The final guidance is available in the U.S. Government's 
electronic docket site at http://www.regulations.gov under docket 
number FTA-2013-0019 and on the FTA Web site at http://www.fta.dot.gov.

FOR FURTHER INFORMATION CONTACT: Nancy-Ellen Zusman, Office of Chief 
Counsel, (312) 353-2577 or Terence Plaskon, Office of Human and Natural 
Environment, (202) 366-0442. FTA is located at 1200 New Jersey Avenue 
SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:30 
p.m., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Section 20016 of the Moving Ahead for Progress in the 21st Century 
Act (MAP-21) amended Federal transit law by revising a pre-existing 
provision and moving it to 49 U.S.C. 5323(q) such that FTA can now, 
under certain conditions, assist in the acquisition of non-railroad 
right-of-way (ROW) before the completion of the National Environmental 
Policy Act (NEPA) environmental review process for any project that 
could eventually use that ROW or later receive FTA financial 
assistance. The ``environmental review process'' is defined in 23 
U.S.C. 139(a)(3). The new provision of MAP-21, which became effective 
on October 1, 2012, states:

    (q) CORRIDOR PRESERVATION.--
    (1) IN GENERAL.--The Secretary may assist a recipient in 
acquiring right-of-way before the completion of the environmental 
reviews for any project that may use the right-of-way if the 
acquisition is otherwise permitted under Federal law. The Secretary 
may establish restrictions on such an acquisition as the Secretary 
determines to be necessary and appropriate.
    (2) ENVIRONMENTAL REVIEWS.--Right-of-way acquired under this 
subsection may not be developed in anticipation of the project until 
all required environmental reviews for the project have been 
completed.

    Prior to October 1, 2012, FTA allowed this type of corridor 
preservation only for pre-existing railroad ROW to be used in a future 
transit project, pursuant to the former provision of Federal transit 
law that was modified and moved by MAP-21. MAP-21 removed the word 
``railroad'' from the provision formerly in 49 U.S.C. 5324(c) and moved 
it to 49 U.S.C. 5323(q). Pursuant to authority delegated by the 
Secretary, FTA developed guidance that would (1) specify the conditions 
under which this provision may be used and (2) discuss the application 
of that provision to specific situations.

Comments

    On December 11, 2013, FTA announced in the Federal Register (78 FR 
75446) the availability of the draft guidance and requested comment on 
it. The notice of availability of the draft guidance contained a 
deadline of January 10, 2014, for comment. As of the date of issuance 
of this notice of availability of the final guidance, FTA considered 
all comments received in the docket. FTA received comments from two 
trade associations, two transit agencies, and two members of the 
public. Commenters provided 21 individual comments on the draft 
guidance. FTA organized these comments by topic. This notice discusses 
the comments FTA received, provides FTA's responses to those comments, 
and identifies resulting changes FTA made to the guidance.
    Three commenters provided general comments that were supportive of 
the draft guidance and requested no changes. FTA notes these comments 
for the record.
    Two commenters supported FTA's definition of ROW in the context of 
corridor preservation and thought its broad scope had advantages. FTA 
notes these comments for the record.
    Three commenters questioned FTA's position in the draft guidance 
that once the environmental review of a proposed project is initiated 
corridor preservation would not be appropriate and FTA would not assist 
in any such acquisition. Commenters stated that FTA's guidance should 
allow ROW acquisition at any time before the completion of NEPA review. 
FTA considered these comments, agrees with this recommendation, and 
revised the guidance to reflect this. As a safeguard and to remedy any 
concern about prejudicing the NEPA process, FTA notes in the final 
guidance that a project sponsor must certify that the ROW acquisition 
will not limit the choice of reasonable alternatives for the project or 
otherwise influence the decision on any approval required for the 
project and would not prevent the lead agencies from making an 
impartial decision as to whether to accept an alternative that is being 
considered in the environmental review process.
    One commenter questioned whether corridor preservation must be the 
subject of an environmental review. The commenter argued that the mere 
acquisition of title for corridor preservation purposes should not be 
subject to NEPA review at all. FTA disagrees with this argument. If an 
applicant acquires ROW with FTA funds, it is a Federal action. FTA and 
the applicant must then complete an environmental review of the 
acquisition itself in accordance with NEPA and all other applicable 
Federal environmental laws and regulations. The ROW acquisition is 
treated as a stand-alone project with a separate NEPA document. If the 
ROW acquisition does not use Federal funds and has no Federal 
approvals, then NEPA would not apply to that acquisition; however, NEPA 
would apply to the project using that ROW itself if the project 
receives FTA funds.
    Two commenters remarked on the appropriate level of NEPA review for 
corridor preservation. One stated that a categorical exclusion (CE) 
should be FTA's ``default approach'' and that approaching corridor 
preservation in the context of a CE would be appropriate in the vast 
majority of circumstances. The other commenter felt the guidance needed 
clarification regarding this issue. FTA does not take a ``default 
approach''

[[Page 67239]]

in its environmental review, for corridor preservation or otherwise. 
The environmental review of ROW acquisition must be completed in 
accordance with NEPA and all other applicable Federal laws and 
regulations. FTA acknowledges that the CE found at 23 CFR Sec.  
771.118(d)(4), is potentially available for the appropriate level of 
NEPA review for corridor preservation; FTA notes, however, that if the 
CE is to be used then the conditions found in Sections 771.118(a) and 
(b) must be met. To add clarity, FTA revised the guidance to reflect 
this discussion.
    One commenter questioned the guidance's requirement that all FTA 
planning requirements be satisfied for corridor preservation, including 
having the project in the Transportation Improvement Program (TIP) and 
State Transportation Improvement Program (STIP). If ROW is acquired 
with FTA funds, it is a Federal action and subject to FTA's 
metropolitan and statewide planning requirements, meaning that the 
corridor preservation project must be included in Metropolitan 
Transportation Plan (MTP), the TIP and STIP. Moreover, even if the 
property is acquired with local funds, the project should be in the MTP 
if it is foreseeable that FTA funds are expected to be used for the 
project that would use that ROW.
    Two commenters submitted comments on the grants management/
administration portion of the guidance. One commenter questioned FTA's 
expectation that a grantee implement a transit project using the ROW 
within a reasonable timeframe. The commenter requested FTA articulate 
criteria for this requirement. FTA declines to articulate specific 
criteria, but notes that the expectation of FTA is that when it 
provides Federal funds for corridor preservation that a project be 
built on that property within a reasonable timeframe. This is to ensure 
a proper and appropriate use of Federal funds. The final guidance is 
unchanged and states that, in determining the appropriate timeframe, 
FTA will consult with the project sponsor and will consider the 
planning status of any proposed project that would use the ROW. A 
second commenter questioned the guidance's requirement regarding the 
disposition of the ROW in accordance with 49 U.S.C. 5334(h)(1)-(3), 49 
U.S.C. 5334(h)(4), or 49 CFR 18.31(c). The commenter recommended FTA 
allow for the repayment of Federal funds when for some reason a project 
does not proceed as an option to avoid disposition of the ROW. One 
alternative disposition method involves the retention of title by the 
project sponsor after compensating the Federal awarding agency. This is 
described in FTA's Grant Management Requirements Circular (5010.1D), 
which sets forth all of the real property disposition requirements. See 
http://www.fta.dot.gov/legislation_law/12349_8640.html.
    One commenter urged FTA to encourage Congress to recognize the 
importance of predictable funding over improved streamlining. FTA 
decided that this comment is outside the scope of this guidance.
    The final guidance is available in the U.S. Government's electronic 
docket site at http://www.regulations.gov under docket number FTA-2013-
0019 and on the FTA Web site at http://www.fta.dot.gov.

Therese W. McMillan,
Acting Administrator, Federal Transit Administration.
[FR Doc. 2014-26705 Filed 11-10-14; 8:45 am]
BILLING CODE P