Final rule published -- January 4, 2005.
Rule effective -- February 3, 2005.
State laws, regulations, guidance updated.
The student should understand why a 30 day period was given until rule became effective. Refer to the material in the Final Rule (Pages 610 to 611) for reasons the rule became effective in 30 days. Plus the fact that the NPRM had been out for a year and the adopted changes were under consideration in a collaborative way for 3 plus years with other government agencies.
Understand that updating State Laws, regulations & guidance is expected to take a longer period and extend beyond the effective date just as the Federal agencies & FHWA have been taking steps to update their guidance and published materials to conform with the new rule. For FHWA guidance see the January 4, 2005 memo relative to transition and general waivers. This was also referenced in the January 18, 2005, Memo to FHWA Division Offices providing answers to Division Office questions. Moreover, State Dept. of Transportation (STD) Right of Way Operations manuals must be updated by January 1, 2006, unless FHWA grants a waiver.
The purpose of this memorandum is to notify you that on January 4, 2005, the FHWA published a final rule in the Federal Register, incorporating into the governmentwide Uniform Act regulations provisions that had been the subject of the December 17, 2003, notice of proposed rulemaking.
The effective date of the final rule is February 3, 2005. All provisions of the final rule, including modifications of entitlements and benefits to displacees, become effective on that date.
Transition Procedures for Projects
Property owners, tenants, and other displacees are entitled to the benefits and protections in effect as of the date of the initiation of negotiations (ION) for the parcel in question. The ION means the delivery of the initial written offer of just compensation by the agency to the owner or owner's representative to purchase the real property for the project. Reference: 49 CFR 24.2(a)(15).
For projects underway as of the effective date for the final rule, the applicable rules are as follows:
If the ION occurred for a parcel before the effective date for the final rule, property owners, tenants, and other displacees are entitled to benefits under the regulation in effect as of the date of the ION.
If the ION did not occurr for a parcel before the effective date of the final rule, property owners, tenants, and other displacees from that parcel are entitled to the benefits and protections contained in the final rule.
If a project is underway and the ION has occurred for some, but not all parcels, the State may provide consistent benefits and procedures across that project by following the final rule provisions for all parcels. That decision is left to the State's discretion.
Updating State Laws, Regulations, and Manuals
State procedures and guidelines, including Right-of-Way manuals, must be updated to reflect the provisions of the final rule and remove conflicting provisions. State DOTs are required to submit the changes to their Right-of-Way manuals to their FHWA Division Office for approval. To simplify administration of this requirement, the final date for revisions will be January 1, 2006. That is the same date previously established under 23 CFR 710.201 (c)(2) for the next State certification that its Right-of-Way Manual conforms to existing practices and contains necessary procedures to ensure compliance with Federal and State real estate law and regulation. This gives each state a year to evaluate its practices and manual and complete the required updates. Note that this does not affect the applicability of the provisions of the final rule. All States must operate in accordance with the final rule as of the effective date of the rule unless the State holds a waiver approved in writing by the FHWA Headquarters.
Some States may not be able to operate in accordance with the final rule as of its effective date because of conflicts between the final rule and the State's laws or regulations. Those States may request a waiver under 49 CFR 24.7 from the conflicting provisions of the final rule, as well as a waiver from the January 1, 2006, deadline for updates if that is necessary due to the lack of a complete legislative cycle in 2005. Requests must be in writing. The request must show good cause for the waiver by identifying the legal or regulatory provision that causes the conflict, describing the reasons the State believes there is a conflict that it cannot reconcile without legislative action, and outlining the State's plan and schedule for attaining compliance. The FHWA generally will not consider a lack of timely action by the State as justification for a waiver. Transition waivers will be time-limited waivers of the specific conflicting provision(s) of the Federal regulation. If the FHWA grants a transition waiver, it will permit application of the old rule provision(s) in question for one legislative cycle (i.e., to give the State the opportunity to change the law at its next legislative session).
The FHWA also anticipates that some States may desire waivers from specific provisions of the final rule for general operating or other reasons. The FHWA believes that it should exercise caution in granting waivers from the new rule until the provisions have been in effect long enough for agencies to evaluate fairly the effects of the final rule. Therefore, the FHWA's Office of Real Estate Services (HEPR) will take a particularly hard look at requests received during the first 18 months after the effective date of the final rule. HEPR anticipates approving such requests only if there is an extremely strong justification, and if the needs of the FHWA Federal-aid program support granting a State more flexibility than is found in the government-wide rule.
If a State feels that a waiver is warranted, the provisions outlined below must be met. These requirements are consistent with the January 25, 2002, guidelines issued by HEPR to govern waivers from appraisal waiver and conflict of interest caps under the Uniform Act implementing regulation.
To seek a general waiver, a State should submit a written request to the FHWA Division Office. The written request must demonstrate that the waiver would meet the requirements of 49 CFR 24.7, and that the waiver would be consistent with both Federal statutes and the FHWA policy. The written request should:
Define the problem the waiver is intended to address, including any available data to support need for the waiver.
Describe the options the State considered to address the problem and why the non-waiver options do not meet the State's needs.
Define the operating parameters of the proposed waiver. For example, geographic limits may range from broad to restricted (statewide, one area, one project, etc.), or the time period may be constrained or indefinite.
Describe the proposed procedures for implementing the waiver.
Demonstrate that the impacts of the waiver will not reduce any assistance or protection provided to an owner or displaced person.
Outline the quality assurance process that the State will use to monitor the impacts of the waiver, to make certain that there are no adverse effects on the assistance and protections provided to an owner or displaced person under 49 CFR Part 24.
Confirm the State's intention to formalize the new procedure through a revision of its Right-of-Way manual.
FHWA Review of Transition and General Waivers
The FHWA Division will review the State's request for completeness. If a request is complete, the Division will forward it to its HEPR Point-of-Contact, along with the Division's evaluation and recommendation on the merits of the request. The Point-of-Contact will be responsible for coordinating the review process between HEPR and the Division.
For HEPR to approve a general waiver request, the Division must commit to performing an annual review and reporting to HEPR on the impacts of the waiver, specifically evaluating whether or not the waiver is having negative effects on property owner and displaced person assistance and protections under 49 CFR Part 24. In the annual review, the Division also must evaluate and comment on the impact of the waiver program on the State's overall Right-of-Way program.
In 2005, HEPR will review waivers granted before the effective date of the final rule to determine whether to continue, modify, or withdraw those waivers. HEPR Points-of-Contact will be in touch with the Divisions in the coming months to initiate those reviews.
The final rule may be found on pages 589-638 of the January 4, 2005, Federal Register. Please note that the new rule is effective on February 3, 2005, and can be found at www.fhwa.dot.gov/real_estate/.
49 CFR, Part 24 - Final Rule
Replies to Questions From the FHWA Divisions
As of January 19, 2005
1. Can we change our "assigned" FHWA training session location? Why or why not?
Changes can be made if space is available. Open registration without State-by-State assignments was not deemed feasible given the space limitations. The States designated for each location will have priority over States wishing to change their location. States wishing to change locations can ask to have space reserved for their designated location and to go on a waiting list for the location they desire.
2. If we or our states are unable to attend any of the training sessions due to lack of funding, is there some way we can get the training online? Or via videoconference?
The training notice indicated a HUD-sponsored webcast set for February 24, 2005. People can tap into this session through the Internet. Details will be sent to Divisions when available. The webcast will be archived as well, and we plan to have it available for people to view. However, the details of this proposal are still under negotiation.
3. How many people from my state can attend the training?
It depends on the demand for the site. Subtract from 50 the number of Division people in the designated States, then divide the resulting number by the number of States designated. That produces the minimum allotment for each State. However, some States may be able to exceed their allotment if other States do not ask for their full allotment.
4. What are the times for the training sessions? I need to book flights and need to know when it starts and ends.
The training sessions will run from 8:30 a.m. to 4:30 p.m. You can anticipate one full day.
5. What is the charge for the training?
The FHWA training is free. The only cost to the Divisions and State DOTs is travel.
6. Will the training sessions be taped so we can watch them later and/or show our staff?
This is not anticipated because the webcast will be available afterwards online.
7. Will HQ be putting out a side-by-side comparison as you did back in January of 2004?
Staff completed the side-by-side comparison today, which will be placed on Staffnet. We also will post the documents on the FHWA public website, at http://www.fhwa.dot.gov/real_estate/practitioners/uniform_act/policy_and_guidance/side-by-side/index.cfm. A notice of that posting will be sent via Realty.
8. Will there be a CD produced from the training sessions? Can I order some for my state?
This was not anticipated because the webcast makes it unnecessary. See the next question for additional information.
9. Will your agency be available to provide additional training sessions if requested to do so by State agencies?
The purpose of the training sessions around the country is to train our Division Right-of-Way Officers and key State personnel who will be responsible for training their people. The FHWA will provide the training package, which includes the instructor's material and slides. This material will be available for the States and/or the FHWA right-of-way officers to present the training sessions. This will give the States an opportunity to present their specific procedures, as well as, the Federal requirements, to their own trainees.
10. When will brochures, newsletters, and articles be published?
Brochures may be published in the future, but they are not a part of the current marketing strategy. A newsletter is being produced and should be completed by January 21, 2005. It will be posted on the FHWA website and emailed to the Realty group (it can be easily duplicated). An article will appear in the May/June issue of the IRWA Magazine. For other magazines and press releases, the write-up must go thru FHWA Public Relations Department before publication. We do anticipate placing articles in other magazines.
11. Will updated videos be produced and distributed?
Not this year, due to time and budget constraints and the statutory review that is underway. The plan is to update the videos once the statutory review and update is completed.
12. What about the updates for the Appraisal, Acquisition, and Relocation pamphlets? When can we expect these?
It will take at least 6 months to get revisions completed and have the published documents ready for distribution. Hopefully, there will be funds available for publishing hard copies. At the least, we will make them available online in electronic format.
13. What if our DOT cannot legally implement the revised rule by February 3? Will they be able to get a waiver? Will there be a "short-cut" format created for these waiver requests?
If a DOT cannot legally implement the revised rule by February 3, 2005, the DOT should apply for a transition waiver of the provision(s) the State cannot implement. We have no "short-cut" form, but we do have a set of specific guidelines that we itemized in our January 4, 2005 transition guidance. We believe individual attention and narrative (as opposed to multiple-choice or T/F) responses are necessary. FHWA will not automatically grant transition waivers. The Divisions and Headquarters will evaluate requests on their merits. Note that transition waivers are not intended as a method to avoid the sometimes more difficult internal process of updating State rules to conform to changes in the Federal rules.
14. What will be the turnaround time in HEPR for waiver requests?
Within 2 weeks of a complete application (as described in the January 4, 2005 guidance).
15. What happens to the appraisal waiver threshold waivers some States currently have in place?
We are aware that some States have waivers permitting the use of an appraisal waiver threshold between $2,500 and $25,000 ($25,000 being the maximum approved limit even under a waiver). We developed the following procedures for those States:
Note that a DOT that does not have a waiver from existing rules and that wants an increased threshold between $10,000 and $25,000 under 24.102(c)(2)(ii)(C) will have to make a formal request to its Division office for approval under that provision. This action does not involve a waiver.
In all cases, the Division will evaluate and make a decision on 24.102(c)(2)(ii)(C) requests. The Division will send its decision, in writing, to its DOT. The Division also will send copies of the DOT's request and the Division's approval to FHWA Headquarters. Divisions should send the documents to their Headquarters Point of Contact. The Points of Contact will forward a copy to Reginald Bessmer for inclusion in the official files.
16. Will examples of waiver requests be provided so I can help guide my state?
HEPR does not anticipate issuing a "template." The points that applications should address are described in the January 4, 2005 guidance on the new rule. We suggest Divisions evaluate whether their State has provided sufficient and convincing information that supports making a business judgment on the request. In making that judgment, important considerations include whether the information supplied is relevant to the required points, has enough detail, and supports the premise for which the information is offered.
17. Can a State further limit the waiver threshold level for their LPA's? That is, if a DOT is operating at, say, $10,000, can it restrict its LPA's to, say, $5,000?
The revised rule does not prevent a DOT from limiting LPA's to a threshold below their (DOT's) operating level. We recommend that State DOTs consider applicable state statutes, regulations, policies and procedures, together with their judgment about the LPA's capacity, to determine the appropriate waiver threshold for their LPAs.
18. In the transition procedures memo, number 3 on the first page isn't clear. First you say that if ION has occurred on some parcels but not on others, we should follow the Final Rule provisions. Then you say the decision is up to the state. Which one is it?
First, we would like to reiterate that the initiation of negotiations (ION) is the critical date for determining which provisions apply to a particular owner or displacee. This derives from the provision of 49 CFR 24.203, concerning eligibility. If the ION occurs before February 3, 2005, then the individual's eligibility is tied to the "old" rule. If the ION occurs on or after February 3, 2005, then eligibility is based on the new rule.
However, we recognize the need to promote equitable treatment of owners, tenants, and other displacees who are affected by the same project. This may be a challenge where a project's acquisition and relocation activities "bridge" the new and old rules. For that reason, we are providing the States with the discretion in such "bridge" cases to apply the requirements of the new rule to persons for whom eligibility determinations already have been made under the old rule. As described in item 3 of the January 4, 2005 guidance, this means that if a project is underway and ION has occurred for some but not all project parcels, then
Stated another way, the State has discretion to decide whether to apply the improved benefits or procedures under the new rule to all parcels on the project, or to only those parcels where the offer is made after the effective date of the rule. Note that this flexibility applies only to improve the results to the recipients, not to reduce any procedures or benefits.
19. What happens if you have a pilot project?
Pilot projects will continue, per the parameters of the pilot: the authorizations for the pilots are not affected by this revised rule.