Rule2024-08736
Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 3, 2024
Effective
June 3, 2024
Issuing agencies
Transportation Department
Abstract
This final rule amends the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Uniform Act) regulations. The revisions are prompted by enactment of the Moving Ahead for Progress in the 21st Century Act (MAP-21), which increased statutory relocation benefits and reduced length of occupancy requirements. This final rule updates existing regulations on the use of those provisions. The FHWA is also updating the Uniform Act regulations in response to comments received during this rulemaking's public comment period and to reflect the agency's experience with the Federal-aid highway program since the last comprehensive rulemaking for the part, which occurred in 2005. The updates include streamlining processes to better meet current Uniform Act implementation needs and eliminating duplicative and outdated regulatory language.
Full Text
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[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Rules and Regulations]
[Pages 36908-36980]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08736]
[[Page 36907]]
Vol. 89
Friday,
No. 87
May 3, 2024
Part III
Department of Transportation
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49 CFR Part 24
Uniform Relocation Assistance and Real Property Acquisition for Federal
and Federally Assisted Programs; Final Rule
Federal Register / Vol. 89, No. 87 / Friday, May 3, 2024 / Rules and
Regulations
[[Page 36908]]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 24
[Docket No. FHWA-2018-0039]
RIN 2125-AF79
Uniform Relocation Assistance and Real Property Acquisition for
Federal and Federally Assisted Programs
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule amends the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970 (Uniform Act)
regulations. The revisions are prompted by enactment of the Moving
Ahead for Progress in the 21st Century Act (MAP-21), which increased
statutory relocation benefits and reduced length of occupancy
requirements. This final rule updates existing regulations on the use
of those provisions. The FHWA is also updating the Uniform Act
regulations in response to comments received during this rulemaking's
public comment period and to reflect the agency's experience with the
Federal-aid highway program since the last comprehensive rulemaking for
the part, which occurred in 2005. The updates include streamlining
processes to better meet current Uniform Act implementation needs and
eliminating duplicative and outdated regulatory language.
DATES: This final rule is effective June 3, 2024.
FOR FURTHER INFORMATION CONTACT: Arnold Feldman, Office of Real Estate
Services, (202) 366-2028, email address: <a href="/cdn-cgi/l/email-protection#de9facb0b1b2baf098bbb2bab3bfb09ebab1aaf0b9b1a8"><span class="__cf_email__" data-cfemail="e6a79488898a82c8a0838a828b8788a6828992c8818990">[email protected]</span></a>; or
Dawn Horan, Office of the Chief Counsel, (202) 366-9615, email address:
<a href="/cdn-cgi/l/email-protection#e7a3869089c9aac9af88958689a7838893c9808891"><span class="__cf_email__" data-cfemail="357154425b1b781b7d5a47545b75515a411b525a43">[email protected]</span></a>; 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, the 2019 Notice of Proposed Rulemaking (NPRM), and
all comments received, may be viewed online at <a href="http://www.regulations.gov">www.regulations.gov</a>
using the docket number listed above. Electronic retrieval help and
guidelines are available on the website. It is available 24 hours each
day, 365 days each year. An electronic copy of this document may also
be downloaded from the Office of the Federal Register's website at:
<a href="http://www.federalregister.gov">www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
Executive Summary
The Uniform Act, as amended, 42 United States Code (U.S.C.) 4601 et
seq., provides important protections and assistance for people affected
by Federal and federally assisted projects. Congress enacted this law
to ensure that people whose real property is acquired, or who move as a
result of Federal projects or projects receiving Federal funds, are
treated fairly and equitably and receive just compensation for, and
assistance in moving from, the property they own or occupy. The
Government-wide regulation implementing the Uniform Act is 49 Code of
Federal Regulations (CFR) part 24.
The Surface Transportation and Uniform Relocation Assistance Act
(STURAA) (Pub. L. 100-17) of 1987 designated DOT as the Federal Lead
Agency (Lead Agency) for the Uniform Act. Duties of the Lead Agency
include developing, issuing, and maintaining the Government-wide
regulation, providing assistance to other Federal agencies, and
reporting to Congress on Uniform Act implementation issues. The DOT has
delegated these responsibilities to the FHWA at 49 CFR 1.85(d)(7).
Acting as Lead Agency, FHWA is publishing this final rule to amend
and update 49 CFR part 24, which affects the land acquisition and
displacement activities of all Federal agencies subject to the Uniform
Act, as well as the activities of the recipients of funding from those
Federal agencies. The proposed changes to this regulation are
necessitated in part by Section 1521 of MAP-21 (Pub. L. 112-141, July
6, 2012). Section 1521 included increases in benefit levels for
displaced persons, authority to develop a regulatory mechanism to
consider and implement future adjustments to those benefit levels, the
requirement for an annual report on Government-wide real property
acquisitions subject to the Uniform Act, and provisions for the funding
of Lead Agency services. In addition to these required changes, FHWA is
amending the regulations to clarify existing requirements for
implementing the Uniform Act, meet modern needs, and improve the
agencies' service to individuals and businesses affected by Federal or
federally assisted projects.
The final rule's changes will also reduce the paperwork and
administrative burdens of Federal Government regulations on agencies
subject to the Uniform Act. The 10-year costs of the final rule for all
Uniform Act agencies are estimated to be minor: $2.2 million when
discounted at 7 percent and $2.4 million when discounted at 3 percent.
The 10-year annualized costs are estimated to be: $311,000 per year
when discounted at 7 percent and $283,000 per year when discounted at 3
percent. Therefore, the costs associated with this rule are minimal.
The larger impact of this rule is in the form of fund transfers
from the displacing agencies to persons whose real property is acquired
or whose personal property must be moved for Federal or federally
assisted projects. The estimated amount of transfers resulting from
this rule over a 10-year period are $169.5 million when discounted at 7
percent and $214.6 million when discounted at 3 percent. This rule can
therefore be thought of as predominantly a transfer rule, as the
estimated social costs are significantly smaller than those transfers
between displacing agencies and those compensated. The FHWA was the
only agency that provided data upon which to base estimates of the
transfers. Therefore, the magnitude of the change in transfers for all
Federal agencies may be larger than is reported here. The Regulatory
Impact Analysis (RIA) for this rulemaking contains further breakdown of
costs associated with FHWA's program and can be found on the docket.
Other Federal agencies may have additional regulatory or administrative
updates specific to their programs as a result of this rulemaking.
The benefits of this final rule primarily relate to improved equity
and fairness to persons that are displaced from their properties or
that move as a result of Federal projects or projects receiving Federal
funds. For example, this final rule raises the maximum for payments to
displaced persons to assist with the reestablishment of the business,
farm, or nonprofit organization. There is strong evidence that
displaced persons experience reestablishment costs well above the
current maximum amount. Raising the maximum payment levels will
compensate those displaced persons more fairly and equitably for the
negative impacts they experience as a result of a Federal or federally
assisted project. However, the fairness and equity benefits of the rule
cannot be quantified or monetized. The higher level of payments may
also contribute to more small businesses, farms, and nonprofit
organizations being able to successfully reestablish after
displacement.
[[Page 36909]]
Background
FHWA last updated 49 CFR part 24 in 2005. Since publication of the
2005 rule (70 FR 611), FHWA undertook a comprehensive effort to
identify potential opportunities for improving implementation of the
Uniform Act. FHWA initiatives included research on the need for
regulatory and statutory change to the Uniform Act; co-sponsorship of
national symposiums on Uniform Act implementation issues;
implementation of pilot projects designed to determine the effect of
changes in certain Uniform Act requirements and procedures; and an
examination of the experiences of several State departments of
transportation (State DOTs) in providing payments required by State law
that supplemented Uniform Act benefits. These activities confirmed that
there are a number of enhancements that could be made to clarify
existing requirements, reduce administrative burdens, and improve the
Government's service to individuals and businesses affected by Federal
or federally assisted projects and programs.
The Uniform Act and the common rule govern the relocation and real
property acquisition programs of all Federal agencies. For convenience,
those Federal agencies that provide a cross reference to this part and
the location of those cross-references, are listed below:
U.S. Department of Agriculture
7 CFR part 21
U.S. Department of Commerce
15 CFR part 11
U.S. Department of Defense
32 CFR part 259
U.S. Department of Education
34 CFR part 15
U.S. Department of Energy
10 CFR part 1039
U.S. Environmental Protection Agency
40 CFR part 4
U.S. General Services Administration
41 CFR part 105-51
U.S. Department of Health and Human Services
45 CFR part 15
U.S. Department of Housing and Urban Development (HUD)
24 CFR part 42
U.S. Department of Justice
41 CFR part 128-18
U.S. Department of Labor
29 CFR part 12
National Aeronautics and Space Administration
14 CFR part 1208
Tennessee Valley Authority
18 CFR part 1306
U.S. Department of Veterans Affairs
38 CFR part 25
U.S. Department of Homeland Security
44 CFR part 25
The Uniform Act applies to all acquisitions of real property or
displacements of persons resulting from Federal or federally assisted
programs or projects; the Uniform Act's applicability is not affected
by the absence of a cross reference to 49 CFR part 24 in an agency's
regulations. Further, Federal or federally assisted activities
involving land acquisition or displacement, undertaken by a newly
constituted Federal agency, would be covered by the Uniform Act.
FHWA began a process more than 15 years ago to identify additional
needs for regulatory updates and elicit input from Federal stakeholders
and conducted research projects, which resulted in many of the
regulatory changes proposed in the NPRM and incorporated in this final
rule. The primary focus of the various efforts was to identify
opportunities to streamline processes to better meet current Uniform
Act implementation needs and eliminate duplicative and outdated
regulatory language in that rule. Beginning in 2012, and culminating in
2018, FHWA held numerous working group meetings with representatives of
the Federal agencies subject to the Uniform Act. The meetings included
a section-by-section review of the regulation, consideration of
comments received during the 2005 rulemaking process to identify
potential areas of focus and change, review of listening session
comments, and consideration of research findings. Contributions from
working group members were based on their experiences implementing the
rule and feedback they had received from their partners and customers.
The review by the working group led to a compilation of potential
changes to the rule. FHWA considered the group's recommendations and
proposed changes for each of the regulation's subparts and developed an
initial draft NPRM. Over a series of several working group meetings,
the draft was refined and revised based on proposed edits and comments
of the working group. When the working group meetings concluded, FHWA
worked internally to finalize the draft NPRM and continued to share
drafts and receive additional comments from the Federal agencies.
On December 18, 2019, at 84 FR 69466, FHWA published an NPRM in the
Federal Register. FHWA received 103 submissions to the docket resulting
in more than 250 comments on various aspects of the proposed rule.
Summary of Significant Changes Made in the Final Rule
This final rule was revised in response to comments received on the
NPRM. The following paragraphs summarize the most significant of those
changes. Editorial or minor changes in language are not addressed in
this section. A detailed summary of the significant issues raised by
the commenters and an explanation of the changes made in response to
those comments can be found in the section-by-section analysis.
Subpart A--General
Section 24.2 was revised by removing the proposed definition of
``Federal down payment assistance'' and revising the definition of
``Federal Financial Assistance.'' The discussion of Federal down
payment assistance in the proposed appendix was also removed.
Section 24.11 was revised to allow adjustments of waiver valuation
limits, conflict of interest limits, and search cost reimbursements for
nonresidential relocations. This section's title was revised to
indicate these changes. This section was also revised by eliminating
the fixed 5-year period for review and consideration of the need to
update benefits.
Subpart B--Real Property Acquisition
Throughout subpart B the word ``develop(ed)'' was replaced with the
word ``perform(ed)'' when referring to waiver valuations, appraisals,
or appraisal reviews to avoid confusion with long standing
interpretations in the Uniform Standards of Professional Appraisal
Practice (USPAP). The USPAP recognizes performing valuation assignments
involves two separate functions: (1) development of a valuation,
appraisal, or appraisal review, and (2) reporting the results of a
valuation, appraisal, or appraisal review to clients, and intended
users of valuation services. The intent of this change is to ensure
that readers of this regulation understand that performance of a
valuation, appraisal, or appraisal review includes both development of
the assignment results and reporting those results to the client and
intended users of the product. This change will provide clarity and
consistency between this rule and certain USPAP requirements.
In Sec. 24.101, FHWA removed (b)(2) and (3) and reorganized (b)(1)
to clarify the requirements and qualifications for determining when a
voluntary acquisition may be advanced for all Federal and federally
assisted programs and projects desiring to use voluntary
[[Page 36910]]
acquisition. FHWA revised and streamlined Sec. 24.101(b)(1)(i), which
clarifies that if eminent domain will not be used and if the additional
requirements of this section are met, then an agency may use the
voluntary acquisition requirements of this section. The FHWA also
removed the Sec. 24.101(b)(2)(iii) discussion of the use of eminent
domain.
Section 24.102(c)(2)(ii)(C) was revised to increase the waiver
valuation thresholds for property acquisitions with an estimated fair
market value from $10,000 to $15,000 for the first tier, and $25,000 to
$35,000 for the second tier, to address comments requesting additional
waiver valuation flexibility.
Section 24.102(c)(2)(ii)(D) was revised to eliminate some of the
NPRM's proposed requirements for waiver valuations above $35,000 and up
to $50,000 (third tier).
Section 24.102(n)(3) was revised to increase the conflict of
interest limits to $15,000 and $35,000 to allow additional flexibility
and to align with the increase in waiver valuation limits changes in
Sec. 24.102(c)(2)(ii)(C).
Subpart D--Payments for Moving and Related Expenses
Section 24.301(g)(7) added a new provision for reimbursement of
costs for rental replacement dwelling application fees and credit
reports.
Section-by-Section Discussion
General Comments
One commenter indicated that they believed that ``market value''
and ``fair market value'' were not the same.
FHWA Response: FHWA believes that ``market value'' and ``fair
market value'' refer to the same concept, i.e., the value of the
property. FHWA acknowledges that some jurisdictions may ascribe
different legal definitions to these terms, however the terms ``fair
market value,'' which is used throughout this final rule, and ``market
value,'' which may be more commonly used in private transactions, are
synonymous for purposes of this rule.
As a result, no changes were made to the final rule.
Section 24.2(a) Definitions
Appraisal
One commenter suggested that FHWA adopt the definition of appraisal
in the USPAP rather than the definition of an ``appraisal'' in the
NPRM.
FHWA Response: The definition of an ``appraisal'' can be found at
42 U.S.C. 4601(13). This final rule continues to include that
definition. FHWA received questions and concerns about the definition
of an appraisal as it relates to most State licensure boards' view that
any opinion of value issued by one of their licensees is by their
definition of an appraisal (see discussion in this preamble, below, on
the definition of ``waiver valuation.'') FHWA continues to believe the
definition of appraisal in this regulation is consistent with the
statutory description of an appraisal for Federal and federally
assisted projects and programs.
FHWA believes that adoption of USPAP definition of an appraisal
would create administrative and fiscal burdens by effectively
broadening the definition of appraisal in this regulation to include
waiver valuations as appraisals. The programmatic consequence of
redefining a waiver valuation as an appraisal would require those
performing uncomplicated valuations for Federal and federally assisted
projects or programs to comply with additional requirements for
performing an appraisal, which would require additional time and
increase costs to develop and report an opinion of value. FHWA does not
believe that such increases in cost and time will afford any additional
protections or benefits to those whose property is acquired for a
Federal or federally assisted project or program. FHWA has more than 30
years of experience with the use of waiver valuations under this
regulation. FHWA previously conducted national waiver valuation
surveys, research, and several informal program reviews and has not
noted any significant instances of abuse or mishandling of program
responsibility by any agency authorized to implement this flexibility
in their program.
As a result of the above analysis, no changes were made to this
section of the final rule.
Comparable Replacement Housing--Unreasonable Adverse Environmental
Conditions
FHWA received one comment suggesting that it revise the definition
of comparable replacement dwelling by removing the term
``unreasonable.'' The commenter stated, in part, that ``unreasonable''
is undefined in the rule and therefore its use subjects this important
protection to ambiguity, and consequently, uncertain or unpredictable
implementation.
FHWA Response: FHWA believes that removing the word
``unreasonable'' from Sec. 24.2(a)(6)(iv) in the definition of a
``comparable replacement dwelling'' is not necessary. The FHWA notes
that this part of the definition of a ``comparable replacement
dwelling'' has been in previous regulations for almost 40 years. In
that time, FHWA has not noted any confusion about the definition or
questions about correct application.
As a result of this analysis no change was made to the definition.
Comparable Replacement Housing--Government Housing Assistance
FHWA received one comment suggesting revising the definition of
comparable housing for a displaced person receiving Government housing
assistance before displacement. The commenter felt that changes to this
section are needed to better reflect the reality of assisted units,
unit availability, and the interests of assisted households who are
displaced. The commenter felt the primary provisions of item (ix) in
this definition (Sec. 24.2(a), Comparable Replacement Dwelling) were
useful clarifications regarding application of housing assistance
program rules to both previously assisted and previously unassisted
households. However, the commenter felt that the proposed additions of
paragraphs (ix)(A) through (C) (Sec. 24.2(a), Comparable Replacement
Dwelling), are unnecessary and potentially harmful to displaced
persons. The commenter believes that the proposed requirements of
(ix)(A) through (C) may lead some displaced persons to view the
potential absence of desired public housing units from these formal
documented offers as confusing and may imply that utilizing public
housing units as comparable dwellings are not an option. The commenter
also was concerned that paragraphs (ix)(A) through (C) limits the units
an agency may offer as a comparable unit, increasing costs and burdens
of complying with the regulation. The commenter offered several
suggestions for replacing paragraphs (ix)(A) through (C) to ensure that
residents of subsidized dwellings are offered comparable replacement
dwellings that are not limited to public housing. One proposal was to
require that when a person is displaced from a privately owned dwelling
which has unit-based assistance, at least one of the comparable
replacement units offered may not be a public housing unit. The
commentor also proposed that a displaced person who had tenant-based
assistance must be provided at least one comparable privately owned
unit where the displaced household's tenant-based assistance can be
utilized.
FHWA Response: FHWA reviewed the proposed changes in this section
and the commenter's proposed deletions and additions. FHWA does not
agree that the NPRM's proposed addition of paragraphs (ix)(A) through
(C) in this
[[Page 36911]]
section limits or restricts choices or eligibility determinations that
a displacing agency may make when a person is receiving Government
housing assistance before displacement. FHWA believes that it is
important to endeavor to provide the displaced person with options,
which may include government assisted housing units, which are at
minimum similar to their displacement dwelling. The inclusion of the
renumbered paragraphs (9)(i) through (iii) in this final rule ensures
that certain comparability standards are understood and met. FHWA does
not agree with the commenter's proposed changes to this section to set
a required number of government housing units, or market sale
comparable dwellings, as such a standard will not ensure that a
displaced person understands their replacement housing options.
Effective advisory services are a required part of a relocation and
include a discussion and identification of a displaced person's needs
and preferences (Sec. 24.205(c)(2)(ii)). These requirements will both
guide an agency in identifying appropriate comparable dwellings and
ensure that the displaced person understands their options and
eligibility.
FHWA also does not view the language as drawing distinctions about
the quality or desirability of certain types of Government housing
assistance. FHWA believes the Federal funding agencies may want to
develop additional policies or guidance to ensure that those displaced
persons who are receiving Government housing assistance before
displacement are provided comparable dwellings, which allows the agency
to ensure that appropriate comparable housing has been made available.
FHWA revised this section to clarify that Government housing and
assistance programs' requirements and considerations include fair
housing and civil rights compliance. The revisions require that a
displacing agency determine that owners of the comparable properties
will accept a government housing subsidy when determining and selecting
a comparable dwelling. FHWA also included portions of the NPRM's
appendix A discussion in this section to further clarify these
requirements.
Decent, Safe, and Sanitary (DSS)
Four commenters provided comments on the NPRM's proposed changes to
the definition of ``DSS.'' One commenter expressed support for the
changes to the definition and believed the changes will provide needed
flexibility. Two commenters requested that all references to lead-based
paint be moved to appendix A, with one stating that policies and
practices to address lead-based paint should be considered to be a best
practice. One commenter provided comments on the inclusion of a
requirement to comply with local standards requiring the abatement of
deteriorating paint, including lead-based paint and lead-based paint
dust, where they exist. This commenter was supportive of the
requirement but believes that the final rule should be revised to
require additional specific testing because few State and local
jurisdictions have housing or public health codes requiring pre-
occupancy lead hazard inspections. This commenter also proposed an
alternative requirement be added to the final rule which would require
a proactive inspection for lead-paint hazards in any replacement
housing units to be made available to displaced persons, with
remediation and cleaning as necessary. This commenter also proposed an
addition to this definition to clarify that comparable and replacement
dwellings should be free of other health hazards, including mold,
infestations, and radon, and that comparable dwellings have operable
fire and carbon dioxide alarms.
FHWA Response: FHWA appreciates the support for the proposed
changes to this definition. FHWA also appreciates the comments and
rationale that every measure should be taken to ensure that a displaced
person is able to move to a dwelling where all known health risks have
been identified and addressed. However, as was discussed in the NPRM's
preamble, this rule and its definition of ``DSS'' are minimum
requirements. Further, the NPRM also proposed to add that in cases
where either local code or agency policy or regulation were more
stringent, then the most stringent of those requirements must be
applied. FHWA believes that the requirement to follow the most
stringent policy or regulation ensures that agencies will take the
required steps to ensure that a dwelling is DSS. FHWA does agree that
if lead-based paint is specifically listed in this part of the
regulation, other likely requirements, for example those related to
asbestos or radon, should also be listed. Therefore, FHWA does not
believe that adding additional specific requirements to this definition
is practical. FHWA may develop one or more frequently asked questions
(FAQ) listing examples where local code or agency requirements may be
more restrictive. Where required, Federal funding agencies can develop
the additional policies and requirements necessary to identify and
address potential deficiencies in comparable and replacement dwellings
that may impact a displaced person's health.
As a result of the above analysis, the term ``the most stringent of
the local housing code, Federal agency regulations, or the agency's
regulations or written policy'' was used throughout this section for
clarity and consistency. No other changes were made to this section of
the final rule.
DSS--Appendix A at Section 24.2(a)--Standards for Inclusion of a
Kitchen
The FHWA received one comment expressing some concerns about the
proposed addition in appendix A at Sec. 24.2(a), DSS, addressing
kitchens in comparable and replacement properties. The commenter
believes that the proposed appendix A discussion that recommends and
encourages agencies to select comparable replacement dwellings with a
kitchen, when the displacement dwelling does not have one, and local
codes do not require it, seems excessive. The commenter believes the
recommendation and encouragement will needlessly increase the cost of a
replacement dwelling and add unnecessary complexity and inconsistency
in the program.
FHWA Response: FHWA considered the comment and reviewed the NRPM's
description of the proposed addition in the appendix A language. FHWA
notes that the NPRM's proposed addition in appendix A addresses
instances where local code standards for occupancy do not require
kitchens. Appendix A notes that even though it is not required by local
code, providing a kitchen is recommended. FHWA believes the appendix A
discussion is consistent with and supports the Uniform Act's expression
of Congressional intent found at 42 U.S.C. 4621(c)(3), Declaration of
findings and policy, which states that the improvement of housing
conditions of economically disadvantaged persons under this subchapter
shall be undertaken, to the maximum extent feasible, in coordination
with existing Federal, State, and local governmental programs for
accomplishing such goals. The NPRM's proposed addition, which will be
included in this final rule, contains no mandatory language, but does
express a goal that where practical and possible, displacing agencies
should endeavor to meet. FHWA will consider whether an FAQ may be
necessary to further clarify the intent and purpose of this appendix A
item.
As a result of the above analysis, no changes were made to this
section of the final rule.
[[Page 36912]]
Displaced Person (Persons Not Displaced)--Occupants of a Temporary,
Daily or Emergency Shelter and Appendix A of This Part
Three commenters provided comments on the NPRM's proposal to
address occupants of shelters. One commenter was concerned that the
addition of an item in the definition of persons not displaced
addressing shelter occupants might cause shelter operators to change
their method of operation to a ``lottery based'' system to more clearly
align with this rule's definition of persons not displaced. This
commenter was further concerned that this potential change in agreement
or operation methods would ensure that shelter occupants would not be
defined as displaced persons and would thereby cause impacts to shelter
occupants, both inside a project or program area and outside. The
commenter believes that shelters currently have many regulatory and
statutory methods of providing accommodation to shelter occupants which
provides those occupants with necessary temporary housing resources.
The commenter suggests adding additional language to the proposed
addition of persons not displaced to include the many types of
agreements shelter operators use to provide temporary shelter. One
commenter believed that temporary shelter is not defined in the NPRM.
One commenter indicated that anyone who has a place to stay and store
their belongings for more than a single night should be provided some
relocation benefits and at a minimum, be provided another shelter to
use. One commenter stated that if someone is in occupancy for only one
night, at a minimum, connecting them with similar services elsewhere
should be required.
FHWA Response: FHWA reviewed the NPRM's proposed additions to
address occupants of a shelter that is acquired for a Federal or
federally assisted project or program. FHWA does not agree that the
NPRM's proposed additions addressing occupants of a shelter will cause
shelters to revise their operating methods or agreements because if it
is determined that a shelter's occupants meet the definition of
``displaced persons,'' any additional administrative burden or
relocation costs will be borne by the acquiring agency rather than the
shelter's operators. Additionally, the final rule provides another
potential resource, the replacement housing payment, that may be used
to provide shelter or housing to those in need.
The FHWA notes that the NPRM's proposed language describes
circumstances in which shelter occupants may be required to move or
more commonly, no longer have access to or use of the shelter because
of its acquisition for a Federal or federally assisted project or
program. The NPRM language also stressed that the proposed language and
discussion was simply a clarification. It did not create or require
that new eligibilities be granted or conferred. Instead, it provided
additional factors to be considered when determining if an occupant of
a temporary, daily, or emergency shelter impacted by a Federal or
federally assisted project or program, who in most instances would not
meet the definition of a displaced person, may be displaced due to a
fact-based determination.
FHWA believes those acquiring a shelter and making a determination
of whether a person is displaced should consider factors including, but
not limited to, whether the shelter has specific rules and requirements
as to who can occupy or use the shelter and whether prolonged and
continuous occupancy is allowed. Shelters should not be advised or
directed to change their operating agreements in order to conform to
this rule's definition of persons not displaced.
FHWA also considered the commenter's concerns about requiring
agencies acquiring a shelter to either ensure a replacement shelter is
available to those required to move or to provide information on
available shelters. FHWA notes that the final rule will include the
NPRM's proposed requirement in the definition of ``Persons Not
Displaced; L) Occupants of an Emergency Shelter'' to provide, at a
minimum, all occupants of an acquired shelter with advisory assistance
beginning at the initiation of negotiations.
FHWA notes that certain HUD programs use the term ``emergency
shelter'' based on the McKinney-Vento Homeless Assistance Act (42
U.S.C. 11301 et seq.). HUD defines ``emergency shelter'' in 24 CFR 91.5
as ``[a]ny facility, the primary purpose of which is to provide a
temporary shelter for the homeless in general or for specific
populations of the homeless, and which does not require occupants to
sign leases or occupancy agreements.''
Relatedly, the NPRM proposed defining ``Temporary, daily, or
emergency shelter.'' The proposed definition stated in part that a
shelter typically requires the occupants to remove their personal
property and themselves from the premises on a daily basis, offers no
guarantee of reentry in the evening, and does not meet the definition
of dwelling as used in this part. The final rule includes a revised
definition that includes replacing the term ``typically'' with ``in
most cases.'' FHWA believes that the proposed change more accurately
reflects the unusual situations in which a person living in a shelter
would be a displaced person as defined in this regulation.
FHWA may consider developing one or more FAQ to further provide
guidance on how to determine when certain occupants of a temporary,
daily, or emergency shelter are displaced persons and instances when
they would not be displaced persons.
Dwellings
Eleven commenters expressed support for a modification to the
definition of ``dwelling.'' The NPRM proposed a minor modification to
this definition by removing the term ``non-housekeeping unit'' and also
included language in the preamble which discussed and clarified that a
DSS dwelling may be unconventional or non-standard. There were no
comments on the proposed removal of the term ``non-housekeeping unit.''
The discussion of determining whether persons occupying a non-standard
dwelling may qualify as a displaced person was the focus of most of the
comments received on this proposed change. The primary focus of the
comments was in refining the definition of dwelling. One commenter
suggested including the word ``unconventional'' instead of inclusion of
``other residential units'' such as motels. Six commenters supported
the addition of ``primary'' and ``customary place of abode'' in the
definition of dwelling. Four commenters questioned the inclusion and
meaning of ``local custom or law.''
One commenter asked for some guidance for dealing with individuals
who are not occupying a legal dwelling, but who are living on their
property in a temporary structure that does not meet the definition of
a legal dwelling per local code. They stated that while it seems clear
that the intent of the Uniform Act was not to treat these individuals
as an owner-occupant eligible for a replacement housing payment, the
Uniform Act and the regulations also do not provide any viable
alternative.
The primary concern was that the definition would lead to lawful
occupants of a non-DSS or non-standard displacement dwelling being
determined to be a person not displaced under this regulation,
resulting in a denial of Uniform Act relocation eligibility. One
commenter requested temporary, transitional, or court-ordered housing
be included in the definition.
[[Page 36913]]
FHWA Response: FHWA reviewed the regulatory history of these
regulations and notes that the definition in this final rule, with the
minor modifications proposed in the NPRM, is largely the same
definition that has been in the regulations for almost 40 years. The
primary purpose of the NPRM's proposed changes was to ensure that there
is a clear understanding that great care must be taken in determining
whether and when an occupant is a displaced person as defined under the
regulation. A number of questions were raised about the meaning of the
phrase ``. . . place of permanent or customary and usual residence
according to local custom or law.'' FHWA believes that throughout the
history of these regulations, agencies have understood the plain
language of this phrase to be focused on the facts considered when
determining if the dwelling was the occupant's permanent or customary
and usual residence (also referred to as ``dwelling''). Local custom or
law would therefore be determinative in making a fact-based
determination as to whether the occupant was occupying a seasonal home,
or a residence other than their place of permanent or customary and
usual residence. The use of local law or custom can also be used to
determine that a person is in a residential landlord-tenant
relationship and therefore occupying a dwelling for purposes of
determining eligibility under the Uniform Act. FHWA may develop one or
more FAQs with fact-based information that can be used in making a
determination as to whether a dwelling is an occupant's permanent or
customary and usual residence.
Several commenters raised concerns that the proposed revisions to
this definition could be interpreted in a manner which might deny
eligibility for persons living in a non-standard and or non-DSS
dwelling. FHWA notes that a non-standard or non-DSS unit can still meet
the definition of ``dwelling'' when determining eligibility. For
example, if an occupant resides in a non-standard dwelling, key
information will include whether State or local law or code allows the
person to lawfully occupy the otherwise DSS non-standard dwelling. For
a dwelling for which State or local law or code allows occupancy but is
non-DSS, an occupant might be determined to be in lawful occupancy and
would then be a displaced person. If the occupancy of the dwelling were
not permitted by State or local law or code in the same example or the
occupants were not in lawful occupancy, they would not be displaced
persons. For occupants found not to be in lawful occupancy, the final
rule continues to allow that such persons may be provided advisory
services which may assist them by identifying available replacement
dwellings, local and State services, and other assistance which may be
available to them. While these persons may not be displaced persons,
agencies should provide such advisory services to the extent practical.
As a result of the above analysis, no changes were made to this
section of the final rule.
Federal Down Payment Assistance
FHWA received four comments supportive of the NPRM's proposed
addition of a definition of ``Federal down payment assistance.'' One
commenter asked that the NPRM's proposed appendix A addition be revised
in the final rule to include a further discussion and examples of what
constitutes ``funds'' other than the funds subject to the Uniform Act
requirement. Two commenters asked that the appendix A discussion of
Federal down payment assistance be revised by separating the discussion
of ``Federal down payment assistance'' and ``Federal financial
assistance.'' The commenters reasoned that the combination of the two
topics might lead to confusion in determining Uniform Act
applicability. One commenter asked that FHWA clarify that the use of
Uniform Act benefits does not create a displacing activity and
eligibility for Uniform Act benefits.
FHWA Response: FHWA considered the comments and requests for
clarification about the NPRM's proposed addition of a definition of
Federal down payment assistance. FHWA believes that the comments, while
generally supportive, also indicate uncertainty about the proposed
concept. The uncertainty includes whether there is an established
funding threshold to be used in determining if a purchase of property
funded in some portion by Federal down payment assistance, would create
a displacing activity. After further considering whether additional
clarifications or changes in this final rule could address those
questions, FHWA determined that the implementation of this proposed
change may continue to raise questions and uncertainty, which will lead
to an uneven understanding and application that may result in benefits
and protections being provided to some but not all whose dwellings are
acquired by those using Federal down payment assistance.
As a result of the above analysis, FHWA declines to adopt the
proposed changes relating to ``Federal down payment assistance'' in the
final rule.
Federal Financial Assistance (FFA)
One commenter requested that the definition of ``FFA'' be modified
to include the concept of rental subsidies.
FHWA Response: The definition of FFA in part assists in determining
whether the requirements of the Uniform Act apply. FHWA does not
believe that revising the definition by adding a term, phrase, or
benefit that is specific to one or more Federal agency's program is
practical. The FHWA believes that Federal agencies should implement
policies and procedures for program grants, loans, and contributions
that are necessary to implement their program.
As a result of this analysis, the final rule will not include a
definition of ``Federal down payment assistance'' as explained in the
preceding preamble discussion on Section 24.2(a), Definitions and
Acronyms, Federal Down Payment Assistance.
Federal Financial Assistance--Low Income Housing Tax Credits (LIHTC)
Two commenters provided comments on the NPRM's proposal to clarify
that LIHTC are not FFA for purposes of determining eligibility for
Uniform Act benefits and assistance. One commenter supported the
proposed clarification that LIHTC are not FFA as defined in the Uniform
Act and therefore, projects receiving LIHTC alone would not be subject
to the Uniform Act. This commenter further stated that it is their
understanding that LIHTC projects that do receive a federally assisted
grant, loan, or other Federal contribution would still be subject to
the Uniform Act. The other commenter did not support the proposed
clarification. This commenter stated in part that the LIHTC program
provides approximately $10 billion in direct, concrete financial
assistance to housing developers for the acquisition, rehabilitation,
and development of LIHTC projects around the Nation. This commenter
also stated the LIHTC program serves a key public purpose--generating
affordable housing development by federally subsidizing, or assisting,
such development. This commenter additionally stated that the LIHTC
program also plays an enormous role in financing the acquisition and
rehabilitation of existing affordable housing units, noting that nearly
1 out of every 3 housing units funded by the LIHTC program in the
United States involved the acquisition or rehabilitation of existing
dwellings, some 950,000 units in all.
[[Page 36914]]
FHWA Response: FHWA noted in the NPRM that the LIHTC is described
by the Office of the Comptroller of the Currency as a program
``established as part of the Tax Reform Act of 1986 and is commonly
referred to as section 42, the applicable section of the Internal
Revenue Code. The LIHTC program provides tax incentives to encourage
individual and corporate investors to invest in the development,
acquisition, and rehabilitation of affordable rental housing. The LIHTC
is an indirect Federal subsidy that finances low-income housing. This
allows investors to claim tax credits on their Federal income tax
returns. The tax credit is calculated as a percentage of costs incurred
in developing the affordable housing property and is claimed annually
over a 10-year period. Some investors may garner additional tax
benefits by making LIHTC investments.''
FHWA does not believe that LIHTC is FFA as it is defined in Sec.
24.2(a) because of the nature of these tax credits and the fact that
they are not a grant, loan, or contribution provided by the United
States, and therefore not subject to Uniform Act requirements. Given
that they are described as an ``indirect Federal subsidy'' and as a
``tax incentive'' by the Office of the Comptroller of the Currency, it
follows that investors and developers would make self-directed
determinations on where and how they should pursue development
opportunities that maximize financial benefits for themselves. In
considering the commenter's concern about the nature of the LIHTC
program, FHWA does not believe that use of LIHTC alone would require
the developer to comply with the requirements in this regulation.
However, if other Federal funds are used on the same projects to
incentivize the developer's participation, then the use of that Federal
financial assistance may need to be subjected to a fact based
determination of Uniform Act applicability. While the Uniform Act does
not require relocation assistance when only LIHTC is used in a project,
Federal funding agencies nonetheless may develop policy or requirements
which authorizes relocation assistance to those displaced by a project
or program which uses or receives LIHTC's, to the extent they are
legally empowered to do so. FHWA does not believe that Federal funding
agencies making such a determination to provide additional benefits or
assistance would result in a reduction of required benefits and
assistance available to others. FHWA may develop one or more FAQs to
provide further assistance in determining when and if Uniform Act
requirements would be applicable for individuals who claimed or will
claim LIHTC credits for development, acquisition, and rehabilitation of
affordable rental housing.
As a result of the above analysis, no changes were made to this
section of the final rule.
Initiation of Negotiations--Voluntary Acquisition
The FHWA received seven comments on the proposed revision to the
definition of ``Initiation of Negotiations'' related to voluntary
acquisitions. One commenter supported waiting until there is a binding
legal agreement before tenant relocation eligibility begins on
voluntary acquisitions. The commenter reasoned that because purchase
options/agreements can fail to result in a sale of the property for
various reasons, it would not make sense for persons to be fully
eligible for relocation assistance until closing. The commenter then
posed the following question: ``Where is the relocation funding
expected to come from for an agency that executes a purchase agreement
(which triggers `full eligibility' for a tenant who moves for the
project) but has the project fall through before Federal funds are ever
used?'' One commenter did not support the change to the tenant
relocation eligibility because changing this eligibility would slow the
relocation process and is too big of a deviation from the current rule.
Two commenters requested clarification of the term ``Initiation of
Negotiations,'' and one commenter believes the term is a misnomer since
the Initiation of Negotiations does not start until the contract is
executed (rather than the purchase option). Another commenter agreed
that a purchase option or conditional contract has contingencies that
must be satisfied before the buyer executes their right to purchase
real property, but also commented that a written purchase agreement, as
used in their acquisition activities, typically is a written contract
that does bind the buyer and seller to the terms of the agreement. The
commenter therefore requested that the reference to a purchase
agreement be removed from this sentence or further clarification be
provided as to what FHWA considers to be a binding agreement to
purchase real property in lieu of a written purchase agreement. Two
commenters raised questions, specific to the HUD program, about
determining or establishing eligibility for a tenant who moves prior to
a negotiation resulting in a binding agreement between the agency and
the property owner.
FHWA Response: An agency pursuing a voluntary acquisition may use a
conditional sale agreement or option to purchase agreement. Those
agreements do not impose an obligation on the agency to purchase the
property until either the agreement's conditions are met, or the agency
elects to exercise its right to purchase. The previous rule's
requirements were sometimes misunderstood as requiring an agency to
provide relocation assistance for tenants occupying real property even
when the agency ultimately could not acquire through a voluntary
agreement. This final rule will clarify the date of relocation
assistance eligibility for tenants who occupy real property that is
acquired by voluntary acquisition. Such eligibility is established when
there is a binding written agreement between the agency and the
property owner that obligates the agency, without further election, to
purchase the real property. These revisions in the final rule will
allow an agency to more efficiently carry out voluntary acquisitions
and ensure they will not incur costs for relocation assistance unless
and until there is a binding legal agreement for the sale between the
agency and the property owner.
FHWA notes that for acquisitions carried out under the authority of
eminent domain, the meaning of the term ``Initiation of Negotiations''
and the date when negotiations begin was not proposed to be and has not
been changed in this final rule.
FHWA included a clarification in the final rule that the term
``binding written agreement'' in the context of paragraph (iv) of the
definition of initiation of negotiations requires several conditions to
be true. To be a binding written agreement within the meaning of
paragraph (iv), the agreement must be a legally enforceable commitment
no longer subject to elections or conditions, in which the property
owner agrees to sell certain property rights necessary for a project
and the agency agrees to make that purchase for a specified
consideration. In other words, any elections and conditions have been
satisfied, so that the agency is obligated to purchase the real
property. Both parties have formally accepted the terms contained in
the agreement, documented their agreement in writing, and acknowledged
their acceptance with their signatures. FHWA will include the language
proposed in the NPRM which stated in part that ``An option to purchase,
conditional sale, or purchase agreement is not considered a binding
agreement to purchase real
[[Page 36915]]
property''. However, FHWA believes that each Federal funding agency
will need to develop policies or requirements identifying the types of
agreements used in its programs or projects which it considers to be
binding and which would therefore trigger eligibility for tenants as
displaced persons.
FHWA does not believe that clarifying the eligibility-triggering
criteria for voluntary acquisition reduces benefits or assistance to
tenants because it is not substantively different than the standard in
the regulation adopted in 2005, 49 CFR 24.2(15)(iv). In addition,
application of this provision's protection for displaced persons is
supported by the requirements for a clearly written notification to the
tenant of the process being followed, an explanation of the trigger
date of their eligibility, and when negotiations fail, a required
written notification that negotiations failed and assurance that the
tenant will not be required to move from the property. (See Sec.
24.2(a) Initiation of Negotiations and Appendix A, Sec. 24.2(a)
Initiation of Negotiations, Tenants (iv)). FHWA may develop one or more
FAQs to ensure clarity about tenant eligibility for relocation
assistance when a property is purchased voluntarily.
Initiation of Negotiations--Voluntary Acquisition, Other Federal Agency
Programs
One commenter requested a clearer definition of the term
``Initiation of Negotiations'' for Section 8 contracts. The commenter
was unclear about the relationship between the date that is the
Initiation of Negotiations and the NPRM's new concept of a notice of
intent to acquire/rehab/demolish.
One commenter had a question that appears to be related to a HUD
program. The commenter asked about the overlap in the terms for
Initiation of Negotiations when the acquisition is privately
undertaken, which the commenter believes places Initiation of
Negotiations under both subparagraphs, Sec. 24.2(a) Definitions and
Acronyms. Initiation of Negotiations, (i) and (iv). The commenter
requests that FHWA clarify if a displaced tenant is eligible upon
execution of a binding written agreement to purchase the property,
Sec. 24.2(a) Definitions and Acronyms. Initiation of Negotiations,
(iv), or whenever the tenant receives a notice they will be displaced
(or the date they actually move, if there is no notice), Sec. 24.2(a)
Definitions and Acronyms. Initiation of Negotiations, (ii).
FHWA Response: FHWA believes a discussion of HUD-specific policy
for Section 8 tenants' eligibility for voluntary acquisition is beyond
the scope of this rulemaking; however, FHWA notes that tenant
eligibility requirements discussed in this rulemaking are applicable to
Federal and federally assisted projects and programs. (see Sec.
24.203(d)).
FHWA understands the questions about Federal participation in
voluntary acquisition costs; however, because of the wide variation in
the scenarios that may occur, FHWA cannot reasonably or comprehensively
describe the applicability of initiation of negotiations or, more
generally, policies for determining eligibility for Federal
participation in voluntary acquisition costs for each Federal agency.
FHWA has information on its website \1\ which describes FHWA's Federal
participation eligibilities for voluntary acquisitions and may develop
one or more FAQs to generally respond to Federal eligibility questions
and point to some FHWA informational resources. However, it is
important to note that displacing agencies should check with the
Federal funding agency to receive additional guidance on voluntary
acquisition eligibility determinations.
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\1\ <a href="https://www.fhwa.dot.gov/real_estate/index.cfm">https://www.fhwa.dot.gov/real_estate/index.cfm</a>.
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As a result of the above analysis, no changes were made in response
to these comments.
Mortgage
One commenter advised that use of the term ``mortgage'' for
mortgages instead of ``lien'' is preferred as there are many types of
liens, and not all create a possessory interest in the subject
property.
FHWA Response: There was no proposed change in the NPRM to the
definition of the term ``mortgage'' found in Sec. 24.2(a). The
definition found in the statute at 42 U.S.C. 4601(9), describes a
mortgage as classes of liens commonly given to secure advances on, or
the unpaid purchase price of, real property, under the laws of the
State in which the real property is located, together with the credit
instruments, if any, secured thereby. The definition in the statute and
regulation continues to provide the various Uniform Act partner
agencies with a comprehensive definition, which meets their needs and
ensures Uniform Act requirements are met.
As a result of the above analysis, no changes were made to this
section of the final rule.
Reverse Mortgages (Also Known as Home Equity Conversion Mortgages
(HECM)), and Section 24.401(e)
The NPRM included a preamble discussion of HECMs, a new definition
(which acknowledged HECMs also are known as ``reverse mortgages''), and
changes to other parts of the regulation and appendix A. One commenter
was supportive of the proposed additions of a definition and a
regulatory section describing requirements to calculate and document
eligibility and reimbursement for costs associated with replacing a
HECM.
The FHWA Response: The FHWA appreciates the comments. After
publication of this final rule, FHWA will continue to monitor the
development and growth of this market.
After further analysis, FHWA will revise the final rule by
replacing the term ``HECM'' with ``Reverse Mortgage.'' The FHWA
believes that making this change will help to provide a clearer
reference in the final rule. ``Reverse Mortgage'' is a more generic
term, while HECM is a specific term used in the Federal Housing
Administration (FHA) Program for reverse mortgages. The more common
term should be easier to understand and more clearly encompasses
reverse mortgages that may not qualify as an FHA HECM. FHWA also thinks
it is important to note that this rule does not guarantee that a
displaced person will be eligible for an FHA reverse mortgage.
Displaced persons seeking a replacement reverse mortgage will continue
to have to meet the financial institution's lending and underwriting
requirements. For example, those displaced persons who want to obtain
an FHA-insured reverse mortgage will have to meet FHA's eligibility
requirements at 12 U.S.C. 1715z-20 and HECM regulations at 24 CFR part
206.12. Appendix A for the final rule has also been revised to include
additional discussion of FHA reverse mortgage counseling requirements
that are applicable to a displaced person who wishes to purchase an FHA
insured mortgage and other counseling resources that a displaced person
with a reverse mortgage may utilize.
The NPRM also discussed development of a calculator for reverse
mortgage interest differential payments. FHWA determined that
development of such a tool is not immediately practical. FHWA may
consider revisiting this determination once agencies have had more
experience with reverse mortgages and more data on payments is
available. FHWA will look for information and opportunities to develop
best practices,
[[Page 36916]]
case studies, and other similar tools to document and share practical
methods of calculation of eligibility and reimbursements due to
displaced persons.
Owner's Designated Representative and Manner of Notices
FHWA received six comments on the proposal to allow owners to
designate a representative. Three of the six comments supported
allowing an owner to designate a representative and the requirement
that the designation must be in writing. One commenter inquired about
the authority of the representative to elect to receive electronic
notices without express written authorization from the property owner
and asked whether occupants can similarly designate a representative.
Two commenters recommended keeping the current regulation's language
requiring that offers be made to the property owner instead of the
NPRM's proposal to allow either the owner or the owner's designated
representative to receive the offer. They reasoned that this is the
only time there will be a face-to-face meeting with the owner to
explain the project and present the offer. (See Sec. 24.102(f)).
FHWA Response: FHWA believes that allowing an owner or tenant to
provide a written notice designating a representative to receive
offers, required notices, correspondence, and information in no way
diminishes a property owner's or tenant's rights. FHWA agrees that the
preferred method of making an offer to acquire is to make the offer
directly to the property owner, and at that time, the property owner
may designate in writing, a representative to receive all subsequent
required notifications and documents from the agency. This ensures the
owner receives the offer and the owner designates the representative.
However, FHWA recognizes that occasionally there may be instances where
an owner may wish to designate a representative prior to the initial
offer. For example, designation could be used when the owner may not be
able to meet because of illness or may be out of the country. FHWA
agrees that the ability to designate a representative should include
displaced occupants.
This final rule will include a revision to the definitions at
Sec. Sec. 24.2(a) and 24.5(d) to clarify that tenants may also
designate a representative. It is noted, however, that relocations
require an interview during which the displaced person provides
information on their needs and preferences. FHWA believes it is always
preferable that the displaced person be present with their
representative when a home inspection and interview are conducted
because the purpose of the interview is to determine the displaced
person's needs, which sometimes requires answers to questions
concerning their preferences and the displaced person is likely the
only person who can fully respond to such questions. FHWA believes that
when the owner or tenant designates a representative, they should
stipulate in writing specifically what the representative is authorized
to do. As a best practice, FHWA also believes that the written
designation should specifically state what the representative is not
authorized to do. For example, if an owner does not want the
representative to use electronic means to communicate, then it should
be stipulated within the written designation.
Program or Project
FHWA received one comment requesting the addition of a definition
for the word ``undertaking'' within the definition of ``program or
project.''
FHWA Response: FHWA reviewed the use of the word ``undertaking'' in
this NPRM and notes that the use of the term is not a proposed change.
The term can be found in use in the definition of program or project
and in an Appendix A discussion of Sec. 24.103(b), Influence of the
project on just compensation. The FHWA believes that in both instances
where this term occurs in the regulation it does not carry any meaning
beyond the commonly understood use of the term and its use does not
change or impact either the definition or the appendix A item.
As a result of the above analysis, no changes were made to this
section of the final rule.
Small Business
One comment agreed that signs on property to be acquired should be
relocated as personal property, and without the reestablishment
benefits such as utility hook-ups at a replacement location.
FHWA Response: The NPRM preamble discussion of the definition of
small business acknowledges that FHWA has often been asked for guidance
on the question of whether sites occupied solely by outdoor advertising
signs, displays, or devices qualify for benefits as a small business
under Sec. Sec. 24.303 and 24.304. FHWA clarified that sites occupied
solely by outdoor advertising signs, displays, or devices do not
qualify for these benefits by adding a reference to Sec. 24.303 in the
last sentence of the definition of small business, as proposed in the
NPRM. FHWA believes that outdoor advertising signs are to be treated as
personal property. The final rule allows that owners of outdoor
advertising signs may receive either an amount for a direct loss of an
outdoor advertising sign, Sec. 24.301(f), or when applicable the
estimated cost of moving the sign to include those costs discussed in
Sec. 24.301(g), but with no allowance for storage.
As a result of the above analysis, no changes were made to this
section of the final rule.
Temporary, Daily, or Emergency Shelter
FHWA received two comments regarding the definition of ``temporary,
daily, or emergency shelter.'' One commenter expressed support of the
definition and reasoned that it affirms the commenter's belief that
persons with informal non-shelter living arrangements may be considered
displaced. One commenter believed that ``temporary shelter'' is not
defined in the NPRM.
FHWA Response: FHWA believes this definition only applies to
occupants of emergency, temporary, or daily shelters. These shelters
are typically intended as an overnight, short term, short duration
accommodation, and therefore the persons utilizing these accommodations
are in most cases not ``displaced persons'' because their
accommodations do not meet the definition of a ``dwelling.'' This final
rule will define a ``dwelling'' as ``the place of permanent or
customary and usual residence of a person according to local custom or
law.''
FHWA notes that the NPRM and this final rule include a discussion
of those who temporarily occupy a shelter in the definition of
displaced persons and persons not displaced. FHWA believes that the
definition and the discussion of persons not displaced in this final
rule provide details that will ensure displacing agencies can make the
appropriate determination of whether a person is a displaced person or
a person not displaced for those occupants who are required to move
from a shelter.
Certain HUD-assisted emergency shelters do not allow for continued
or prolonged occupancy and may not be considered dwellings under HUD
programs or projects. The McKinney-Vento Homeless Assistance Act
defines a ``homeless person'' to include ``an individual or family
living in a supervised publicly or privately operated shelter
designated to provide temporary living arrangements (including hotels
and motels paid for by Federal, State, or local government programs for
low-income individuals or by charitable organizations, congregate
[[Page 36917]]
shelters, and transitional housing).'' 42 U.S.C. 11302(a)(3).
As a result of the above analysis, no changes were made to this
section of the final rule.
Waiver Valuation
Two commenters stated that the definition of ``waiver valuation''
needed to be augmented with language that clearly states that a waiver
valuation is not an appraisal. One of those two commenters proposed
moving language found previously in the appendix A explanation for the
definition directly into the regulatory text. A third commenter
suggested that the regulation be revised to acknowledge a waiver
valuation is an appraisal. One commenter suggested that the waiver
valuation language in Sec. Sec. 24.102(c) and 24.102(d) was
unnecessary if it was indeed an appraisal.
FHWA Response: The Uniform Act permits the Lead Agency to prescribe
a procedure to waive the appraisal in cases involving the acquisition
by sale or donation of property with a low fair market value. In such
circumstances, the current regulatory text allows the use of a waiver
valuation procedure in lieu of an appraisal. State licensure boards
have generally viewed any opinion of value issued by one of their
licensees to be an appraisal. Those who are licensed find themselves
looking for clarity as to when and how the Uniform Act regulation
requirements intertwine with the standards of their State licensure
boards. As a result, FHWA revised the definition by including
declarative statements within the body of this final rule including
those at Sec. 24.2(a), definition of ``waiver valuation'' and Sec.
24.102(c) ``Appraisal, waiver thereof, and invitation to owner'' that
waiver valuations are not appraisals as defined in the Uniform Act and
this rule. FHWA may also develop an FAQ to provide additional guidance
and clarity on the requirements and use of a waiver valuation in this
regulation.
Section 24.5 Manner of Notices and Electronic Signatures
Four commenters strongly supported the additional flexibility of
using e-delivery and e-signatures as a positive change that should
expedite service and reduce waste. They noted that allowing the use of
electronic notifications are long overdue and supports allowing more
flexibility in notice delivery, particularly the ability to notify
tenants via electronic means. One commenter agreed that personal
contact is the best practice but acknowledged that property owners
sometimes do not want to meet or in some instances may prefer very
limited meetings. One commenter noted that Appendix A provided examples
of instances when electronic deliveries of notices are appropriate and
suggested since the examples are not actual notices required by
agencies, the examples should be stricken. One commenter requested
clarification on whether agencies who have existing policies for
providing electronic notices, with residents' or owners' permission,
which meet the requirements outlined in the NPRM, are sufficient to
permit the agency to serve notices by electronic means. One commenter
was concerned that the NPRM, at times, seems to blend the e-delivery
and e-signature requirements when they are two distinct processes, e-
signature requiring more robust technology, more procedural
adaptations, and greater financial investment than e-delivery. The
commenter requested clarification on whether both are allowed and asked
whether an agency could elect to use one and not the other. Also, the
commenter suggested removal of the additional language in the appendix,
e.g., ``agencies must determine and document instances when electronic
deliveries of notices are appropriate.''
FHWA Response: FHWA believes that delivery of notices by digital or
electronic means can provide agencies and property owners and displaced
persons with an optional communication method that can streamline the
offer, negotiation, and notice processes while not reducing any
benefits or protection to property owners and displaced persons. FHWA
agrees that the examples listed in appendix A, Sec. 24.5, are not
examples of required notices. However, electronic delivery is not
limited to agency required notices. In addition to notices, offers,
correspondence, and information may be sent by electronic means. (See
Sec. 24.5(d)). FHWA revised the language in appendix A to provide some
examples of the various acquisition and relocation assistance
requirements and activities such as notices, offers, and documents that
may be delivered by electronic means. Appendix A was also revised by
adding in references and additional information on the process for
approval and use of electronic signature.
FHWA agrees that an agency with an existing program for providing
electronic notices to residents and owners that meets the final rule's
requirements and is documented in the approved agency's policies and
procedures, could meet the requirements in the final rule for serving
notices electronically.
FHWA agrees with one commenter that the e-delivery and e-signatures
are two distinct processes. FHWA believes the NPRM identifies those
differences and discusses their use. Those changes have been
incorporated into the final rule by revising the title of Sec. 24.5 to
include reference to electronic signatures, by revising the language in
Sec. 24.5(b) to refer to a required ``process'' instead of a
``method'' to clarify that a Federal funding agency must approve a
process that would include methods used to comply with requirements,
and by revising Sec. 24.5(d) to clarify that this section applies to
property owners and tenants, and that property owners and tenants may
also elect to provide signatures needed by the agency electronically.
The final rule includes a new Sec. 24.5(e) which was included to
specifically address electronic signature requirements.
An agency requesting use of electronic delivery of notices must
include a process to document and record when information is legally
delivered in digital format. A date and timestamp must establish the
date of delivery and receipt with an electronic record capable of
retention. In addition, an agency requesting to use electronic
signature must include a method to link the electronic signature with
an electronic document in a way that can be used to verify the
signature and determine whether the electronic document was changed
subsequent to when an electronic signature was applied to the document.
As requested by one commenter, FHWA clarified in the final rule's
appendix A that an agency may use electronic delivery or electronic
signatures and must document the circumstances under which they are
allowed.
Section 24.9(c) Recordkeeping and Reports
FHWA received one comment regarding the annual reporting of Uniform
Act program activities required of Federal agencies. The commenter
believes that the additional reporting requirement needs more
clarification or a form to be used.
FHWA Response: As discussed in the NPRM preamble, the change in the
reporting requirement in Sec. 24.9(c) is being implemented in
accordance with Section 1521(d) of MAP-21 and impacts Federal agencies
only. The current regulatory text for this section states that the form
for completing this activity is in appendix B. This final rule will
include reporting options available to Federal agencies in appendix A.
The two options are to use the reporting
[[Page 36918]]
form in subpart B or develop a narrative report on the Federal agency's
efforts during the year to enhance delivery of Uniform Act benefits and
services. Each Federal agency is required to provide an annual summary
report of its acquisition and displacement activity to the Lead Agency
by November 15. FHWA revised this section of appendix B by including a
further discussion of some of the information that Funding agencies may
want to include in their annual report.
Section 24.11 Adjustments of Limits and Payments
FHWA received eight comments on the adjustment of relocation
benefits proposal in the NPRM.
One commenter requested that the 2012 MAP-21 statutory benefit
updates be included in this final rule. This same commenter recommends
that FHWA immediately adjust the statutory maximum rental assistance
payment, irrespective of the proposed rulemaking, based upon the cost
of living, and other factors, where the Lead Agency ``determines that
cost of living, inflation or other factors indicate that the payments
should be adjusted to meet the policy objectives of this chapter.'' (42
U.S.C. 4633(d)). One commenter stated that the maximum statutory
benefit limit amount of $25,000 for eligible nonresidential
reestablishment expenses should be raised to $50,000 because many
businesses incur costs that exceed the current maximum benefit amount
when required to relocate. Another commenter also recommended
increasing the nonresidential re-establishment benefit limit of $10,000
to $65,000, based on a market average of $55,000, and the
nonresidential fixed payment for moving expenses from $20,000 to
$70,000, based on a market average of $60,000 and incidental inflation
rates ranging from 2.1 percent to just over 6 percent over the past 5
years. This same commenter recommends increasing the Replacement
Housing Payment (RHP) for 180-day homeowner-occupants from $22,500 to
$75,000, based on a market average RHP of $55,000 for rural and
suburban areas, and over $100,000 for the commenter's local urban
markets, and average increases in property values in the commenter's
State of around 4.9 percent per year; housing demand compared to
supply; and listings selling for an average of 2-5 percent over the
listing price.
One commenter asked if the final rule could include a method to
develop an index to be used annually to automatically update certain
payments and benefits in the final rule. One commenter asked for
details on how and when updates to the regulatory amounts would be made
and had concerns about how projects in process when the regulatory
limits were updated would be handled, and specifically asked how the
requirement for fair, uniform, and equitable treatment of all affected
persons would be met when an update to certain benefits occurred. This
same commenter also asked whether FHWA would adjust certain benefits
downward or would only adjust upwards to account for inflation. Another
commenter recommended that FHWA post proposed revised UA benefit levels
for a public comment period prior to adopting them so that recipients
can assess the impact and adequacy of the new benefit levels.
One commenter proposed that FHWA consider using other indexes for
this section because the use of specific inflation measures is best
suited to specific types of benefits, such as the Federal Housing
Finance Administration House Price Index for replacement housing and
rental assistance payments. The commenter believes that using more
specific measures as the basis for payment adjustments would best
reflect the cost of living and reduce hardship for displaced persons.
FHWA Response: FHWA noted some confusion from recipients about the
effective dates for amendments to the Uniform Act in section 1521 of
MAP-21. By law, these changes became effective on October 1, 2014. MAP-
21 amended the maximum statutory benefit for replacement housing
payments for displaced homeowners to $31,000, and replacement housing
payments for displaced tenants to $7,200. The length of occupancy
requirement for homeowners was reduced from 180 days to 90 days in
occupancy before the initiation of negotiations. MAP-21 also amended
the maximum statutory benefit for business reestablishment benefits to
$25,000, and the fixed payment for nonresidential moves to $40,000. The
confusion may stem from the fact that the current regulatory text was
not amended after the passage of MAP-21 to reflect the new statutory
amounts, until this rulemaking. These benefit amounts are established
in the statute. However, it is important to note that this final rule
does include authority to adjust certain benefit levels to account for
inflation.
FHWA has included adjustments to certain benefit levels established
by statute in this final rule. These have remained unadjusted since
October 1, 2014, and consequently their ability to meet the policy
objectives of the Uniform Act has been diminished by the effects of
inflation. The adjustments to those benefit levels were made by
calculations using the June 2023 Consumer Price Index for All Urban
Consumers (CPI-U) adjustments.
In developing this regulation, FHWA considered the practical
effects of updating certain benefit amounts periodically. FHWA notes
that in past final rules for this part and implementation of certain
MAP-21 updates to the Uniform Act, there has usually been an
implementation period of one or more years. Recipients may need time to
allow for local legislative changes necessary for implementation;
others may require time to develop an update to their program manuals
and to then have them approved by the Federal funding agency. However,
FHWA agrees that limiting consideration of the need to update benefit
limits to every 5 years may not allow FHWA to make necessary timely
updates.
In response to the commenter who asked about making downward
adjustments, this final rule does not contain a prohibition against
making a downward benefit adjustment should a calculation indicate that
a downward adjustment might be warranted.
FHWA reviewed the commenter's request to use other indexes as the
basis for determining the necessity of an update to certain regulatory
benefit amounts. As FHWA noted in the NPRM preamble, the CPI-U
represents 87 percent of the total U.S. population, is available on a
monthly basis free of charge, and is used by several other Federal
agencies. FHWA understands that many indexes are available, and each
may have some specific advantage or measure. In considering the
measures that may currently best determine whether a benefit update is
needed, at this time FHWA continues to believe that CPI-U best
represents the costs incurred by our relocatees and therefore is a good
indicator for determining the effects of inflation that are experienced
by those displaced. However, FHWA also agrees with several comments
suggesting that FHWA further consider whether there may be indexes that
provide more specific measures as the basis for payment adjustments
that would best reflect the cost of living and reduce hardship to
displaced persons.
FHWA also received comments discussed in Sec. 24.102(c)(2)(ii)
Basic Acquisition Policies--Negotiation procedures; appraisal, waiver
thereof, and invitation to owner which in part suggested that some
waiver valuation limits should also be adjusted as described in this
section.
As a result of the above analysis, FHWA has revised this section by
[[Page 36919]]
eliminating the language restricting consideration of benefit updates
to no more frequently than every 5 years. The final rule will allow the
head of the Lead Agency to carry out an evaluation when there is
concern that certain benefit levels no longer support the policy
objectives of the Uniform Act. Such determinations will in part
consider implementation challenges and concerns including allowing
appropriate time for Federal agencies and recipients to take the
necessary administrative steps to implement benefit updates and
changes. The FHWA believes that should an update to the benefit amounts
be necessary, each Federal funding agency will need to develop policies
and procedures for ensuring that the implementation of updates to
benefit amounts is fair, uniform, and equitable. One method to ensure
that the updating of benefits is fair, uniform, and equitable might be
to decide that for projects underway before an update is effective,
displaced persons will continue to be eligible for the amount in the
regulations at the initiation of negotiations.
After publication of the final rule, FHWA intends to publish a
Request for Information (RFI) to ask stakeholders whether there may be
an index which better reflects costs associated with specific
relocation benefits and which provide more precise indication of the
effects of inflation. Based on the RFI, FHWA may consider further
regulatory changes to address issues including whether additional or
other indexes should be used to determine the need to update benefit
levels, whether additional relocation benefits should be adjusted based
on use of new indexes or other comments provided in the RFI, what basis
should be used for the adjustments, and at what intervals adjustments
should be made.
FHWA also revised this section by changing the section title and
including additional benefit level payments that may be adjusted
including waiver valuation limits and applicable sections on mobile
homes at Sec. 24.502 and Sec. 24.503. FHWA believes that as discussed
in response to comments in Sec. 24.102(c)(2)(ii) Basic Acquisition
Policies--Negotiation Procedures; appraisal, waiver thereof, and
invitation to owner, allowing adjustment of waiver valuation limits in
this section will ensure that the effects of inflation do not
unnecessarily restrict appropriate use of waiver valuations. FHWA also
revised this section by adding in specific references to tenants of
mobile homes to more clearly provide applicable references to all
tenant eligibilities which may be adjusted as described in this section
of the regulation.
Subpart B--Real Property Acquisition
Section 24.101(b) Applicability of Acquisition Requirements--Voluntary
Acquisitions
FHWA received 15 comments on this section of the regulations. The
comments focused on several related questions regarding proposed
changes including: application and interpretation of Sec. 24.101(b);
use of Sec. 24.7, Federal agency waiver of regulations of this part;
applicability to specific Federal funding agency programs,
interpretation and applicability of Sec. 24.101(b)(1)(i) through
(iii); and the proposed addition of Sec. 24.101(d)(2) and (3).
FHWA Response: FHWA developed the proposed changes in the NPRM to
address questions it has received over the years about the intent and
applicability of the voluntary acquisition provisions. These questions
have been raised by both our Federal agency partners and the public.
The NPRM preamble noted that one of the goals of the proposed
reorganization was to clarify the meaning, interpretation, and
application of the terms geographic area and site (Sec.
24.101(b)(1)(i)). The NPRM noted that some Federal agencies reported
that terms were close enough in meaning that they caused confusion.
Those Federal agencies stated that the term ``site'' did not accurately
describe the type of project needs encountered in delivering their
programs and recommended changing the term to ``property.'' The NPRM
further noted that some agencies possess the power of eminent domain
but do not use it for specific projects. FHWA received questions about
the interpretation of this paragraph from several agencies. Some
agencies have interpreted this paragraph to mean that if an agency
possesses the power of eminent domain but will not use it on the
project, the agency would not be able to use the voluntary acquisition
authority for its project or program.
FHWA's approach in the NPRM was to attempt to clarify and simplify
the language in Sec. 24.101(b)(1)(i) through (iii). The comments
received on various issues related to or involving voluntary
acquisitions led FHWA to believe that the NPRM's proposed changes
addressed some of the issues and questions, but not all. In considering
the comments and the variety of questions, FHWA proposes to further
revise this section in the final rule. The FHWA removed Sec. Sec.
24.101(b)(2) and (3) and reorganized Sec. 24.101(b)(1) in the final
rule to clarify the requirements and qualifications for determining
when a voluntary acquisition may be advanced for Federal and federally
assisted programs and projects. FHWA believes these revisions
streamline the voluntary acquisition requirements and clarify
applicability. FHWA will include a new Sec. 24.101(b)(1) which clearly
states that if eminent domain will not be used and certain other
conditions are met, then an agency may use the voluntary acquisition
requirements provided by this section. FHWA is proposing no change to
Sec. 24.101(a) applicability and requirements. FHWA will address all
other questions related to aspects of voluntary acquisition separately
in this preamble and will incorporate the revised requirements of Sec.
24.101(b)(1) in the responses and changes to the regulatory text.
Section 24.101(b) Applicability of Acquisition Requirements--Voluntary
Acquisitions, Comments Related to Federal Agency Policies and
Procedures
FHWA received several comments requesting clarification of
voluntary acquisition requirements applicability to HUD programs. The
commenters suggested that they had significant difficulties in applying
the Uniform Act's voluntary acquisition regulations to HUD programs.
One commenter asked how an existing Section 8 contract being
transferred to an owner acquiring and rehabbing a project fit into
Sec. 24.101(b) since Section 8 contract funds are rental subsidies
that cover operating costs; the funds are not being used to acquire
real property for a project or program. The commenter also noted that
the acquisition notice at Sec. 24.101(b)(2)(iii) has been applied by
HUD to transactions between private parties. The commenter does not
believe this application is consistent with the voluntary acquisitions
requirements and further explains that there is no need for a private
buyer to inform a private seller that they are not using their eminent
domain authority to acquire their property because it is an authority
they do not have.
Another commenter believes that the Uniform Act presumes a Federal
agency is the acquiring party and a private homeowner, business, or
farm owner is the seller. The commenter noted that this dynamic is
entirely distinct from the Federal affordable housing programs when an
owner of existing federally assisted rural housing is selling or
refinancing their rural affordable multifamily property. The commenter
requested that the following be exempt from Sec. 24.101(b) compliance:
``transfers,
[[Page 36920]]
rehabilitations or demolitions of affordable housing assets restricted,
subsidized or otherwise assisted or to be restricted, subsidized or
otherwise assisted under Federal housing programs.''
FHWA Response: Because several Federal agencies have programs,
policies, and procedures that have aspects unique to that Federal
agency, this rulemaking does not address the interplay between these
requirements and other Federal agency programs. Some programs focus on
planned and federally assisted rehabilitation which requires a
temporary move. Others may require demolition and rebuilding of the
structure which also may require a temporary move or permanent
displacement. There are many scenarios that are not clearly either a
voluntary acquisition or an acquisition of real property rights. To
qualify as a voluntary acquisition under Sec. 24.101(b)(1) an
acquisition of real property rights would be pursuant to a Federal or
federally assisted project or program and would not use the authority
of eminent domain to acquire the real property rights. Voluntary
acquisitions that meet these two requirements would be subject to
compliance with the voluntary acquisition requirements of this rule.
In another commenter's example, another Federal agency was
providing Federal financial assistance to support the rehabilitation or
redevelopment of privately owned real property. After redevelopment or
rehabilitation of that property, it would continue to be privately
owned but would be required to be used for Section 8 housing. In this
instance, an agency must determine whether and how the use of Federal
funding or Federal financial assistance provided would require
compliance with the requirements of the Uniform Act. Generally, when
Federal funding or Federal financial assistance is used for a project
or program and there is either an acquisition of real property rights
or occupants will be displaced the Uniform Act requirements would
apply. If the Uniform Act requirements apply, then tenants and owners
who were in occupancy on the real property that is being redeveloped
would be eligible for assistance because they would be either displaced
persons or persons required to move temporarily.
If the determination was made that the acquisition of real property
rights was done in anticipation of receiving subsequent Federal
financial assistance for a planned or anticipated project or program,
then tenants and owners occupying the real property would be either
displaced persons or persons required to move temporarily as defined in
this rule and would be entitled to benefits and assistance under this
regulation. Similarly, FHWA does agree that a private market sale
carried out between a willing buyer and seller, which was not done in
anticipation of later incorporating that property into a planned or
anticipated project or program which would receive Federal financial
assistance, would not be subject to the voluntary acquisition
requirements of this part because the purchase of the real property
rights was not a part of or required by a Federal or federally assisted
project or program.
While the Uniform Act's overarching goal is to ensure equitable
treatment of those impacted by Federal and federally assisted projects
and programs, each Federal funding agency may have programs with unique
characteristics and requirements and the Federal funding agency would
need to provide specific guidance on Uniform Act compliance. HUD should
be consulted for guidance on voluntary acquisition for HUD-funded or -
supported projects and programs.
As a result of the above analysis, no changes were made to the
final rule in response to these comments.
Section 24.101(b)(1) Applicability of Acquisition Requirements--
Voluntary Acquisitions; Waiver of Regulations To Use Eminent Domain
FHWA received nine comments on the proposal to allow, in limited
instances, a waiver of regulations to allow the use of eminent domain
to acquire needed property when a voluntary acquisition did not result
in an agreement. One commenter supported the proposed ability to seek a
waiver to use eminent domain if a voluntary acquisition cannot be
finalized. Four commenters object to an agency using eminent domain
authority after a failed voluntary acquisition and believed that it
rewards poor policy and planning, will lessen public respect and trust
for the agency, and it could be used coercively. Commenters also noted
that if an agency was to use a waiver, it would naturally lead to
inconsistent treatment of property owners if some properties on a
project are acquired by voluntary acquisition and others are acquired
under threat of eminent domain.
One commenter agrees that if the NPRM provision is adopted, a
waiver of regulations could be justified when an unanticipated and
unplanned need arises. The commenter specifically mentioned a scenario
where a voluntary acquisition resulted in an agreement to sell but
there are liens or other encumbrances on the property's title. The
commentor noted that agencies sometimes make what is referred to as a
friendly condemnation in order to clear the property's title.
All commenters requested additional guidance clarifying when such
waivers may be acceptable. One commenter believes the NPRM's proposed
revisions to Sec. Sec. 24.101(b)(1) and (2) are more ambiguous as to
when the voluntary acquisition project should comply with the various
requirements and in determining when these criteria are applicable in
different acquisition scenarios, such as when an agency has eminent
domain authority and when an agency does not.
Two commenters focused on the term ``voluntary acquisition''. One
commenter requested that the opening paragraph of Sec. 24.101(b) use
the term ``voluntary'' acquisitions since this is the common term used
in the regulations. Also, one commenter requested further clarification
or examples for the use of voluntary acquisitions.
FHWA Response: The intent of the proposed changes was to address
questions FHWA received in the past about use of eminent domain
authority and voluntary acquisitions and to clarify interpretations of
long-standing policy and requirements.
The purpose of the voluntary acquisition regulations and
requirements is to allow a streamlined method for acquiring real
property for public projects when a property owner is not compelled or
required to sell his real property. This streamlined method ensures
that property owners are informed in writing that their property will
not be acquired if negotiations fail to result in an amicable agreement
and are provided a statement of what the acquiring agency believes to
be the fair market value of the property.
FHWA believes that the comments received indicate that the NPRM's
proposed changes to this portion of the rulemaking focused on possible
use of eminent domain after a voluntary acquisition offer raised as
many additional questions as were answered. FHWA understands and agrees
with the commenters' concerns about allowing acquisitions by eminent
domain when negotiations were initially undertaken as a voluntary
acquisition. FHWA also agrees that opportunities for coercive actions
using the threat of possible eminent domain is an important concern.
However, FHWA does not agree that the intent of the NPRM proposal was
to more frequently allow an agency to simply change its mind about
using eminent domain. FHWA
[[Page 36921]]
views the clear purpose of the provision as ensuring that voluntary
acquisitions are not simply preludes to an eminent domain acquisition,
should voluntary acquisition negotiations fail. However, FHWA also
recognizes that there may be an extraordinary circumstance in which use
of eminent domain may be necessary. For example, the use of eminent
domain may be necessary in the aftermath of a major disaster or a
presidentially declared national emergency, as indicated in Sec.
24.404(b) of this final rule, or to clear properties with clouded
titles or similar defects in the title. In those instances, the Federal
funding agency may consider granting a waiver of regulations under
authority of Sec. 24.7 of this part. The Federal funding agency will
make a fact-based, case-by-case determination as to whether a waiver of
the regulation's requirements may be allowed.
FHWA believes that the best way to clarify this section of the
regulation is to simplify the discussion by removing the discussion of
use of eminent domain and waiver of regulations from this section. As a
result of this analysis, the final rule will be modified by eliminating
the provisions describing the use of eminent domain both in the
regulation and in Appendix A to focus only on the use of voluntary
acquisition and its requirements. As discussed earlier in this
preamble, FHWA removed Sec. Sec. 24.101(b)(2) and (b)(3) and
reorganized Sec. 24.101(b)(1) in the final rule to clarify when a
voluntary acquisition may be used for a Federal and federally assisted
program or projects. The Appendix A discussion of Section
24.101(b)(2)(iii) was also removed. FHWA believes these revisions
streamline the voluntary acquisition requirements and clarify
applicability.
Section 24.101(b)(1) Applicability of Acquisition Requirements--
Voluntary Acquisitions; Owner Occupant Eligibility as a Displaced
Person as a Result of a Voluntary Acquisition Project
One commenter asked about owner-occupants whose property was
acquired by voluntary acquisition not being eligible for relocation
assistance as a displaced person if an agency should later acquire
adjoining properties owned by the same person by eminent domain for a
public improvement project.
FHWA Response: FHWA believes that agencies, when acquiring property
through voluntary acquisition, are obligated to advise owner-occupants
that, as a willing seller, they are not eligible for relocation
assistance as displaced persons, prior to making the offer to acquire.
FHWA notes that as stated in the NPRM preamble if eminent domain will
not be used, then an agency may use the voluntary acquisition
requirements provided by this section. FHWA believes that whether an
agency has such authority is not the relevant issue in determining
whether this section's requirements are being met. The relevant issue
is that eminent domain may not be used as part of the offer and
negotiation to acquire property needed for the project. An agency using
voluntary acquisition provisions of this rule must, in part, inform the
owner of the property or the owner's designated representative in
writing if the agency will not acquire the property if negotiations
fail to result in an amicable agreement.
FHWA believes an initial use of voluntary acquisition of a property
to advance a project or program, in most, if not all instances,
prohibits the later use of eminent domain authority to acquire the
property in order to advance that same project or program.
As a result of the above analysis, no changes were made to the
final rule in response to this comment.
Section 24.101(b) and 24.101(d); Questions About Inconsistency of
Requirements
One commenter believes there is a conflict between Sec. Sec.
24.101(b) and (d) when compliance with subpart B is discussed. The
commenter requested additional information in this section to explain
when acquisitions are exempt from this subpart and if agencies can
still require appraisals for these transactions as stated in appendix A
Sec. 24.101(b).
FHWA Response: FHWA believes the language in Sec. Sec. 24.101(b)
and (d) do not conflict. The applicability of subpart B and those
instances where the requirements of subpart B may not apply are
described in Sec. 24.101(b). Section 24.101(d) continues to apply to
projects and programs that are not exempted in Sec. 24.101(b). The
language in Sec. 24.101(d) was discussed in the 1989 final rule which
notes that the discussion of applicability and to the greatest extent
practicable under State law is the same as that found in section
46555(a) of the Uniform Act. FHWA interprets this to mean an agency
must comply if compliance is legally possible under State law. This
should be considered in an agency's assurances pursuant to Sec.
24.4(a). This section does not duplicate or nullify the requirements of
Sec. 24.101(b).
While voluntary acquisitions do not require appraisals, agencies
may continue to decide that an appraisal or wavier valuation is
necessary to support their determination of the fair market value of
these properties. However, properties acquired in advance of approval
of a Federal or federally assisted project or program (including prior
to a NEPA decision where such acquisitions are allowed under an
agency's programs) with the purpose or intent of being incorporated
into a Federal or federally assisted project or program must meet the
applicable Subpart B requirements.
As a result of this analysis, no changes were made to these
sections of the regulation.
Sections 24.101(b)(1) and 24.101(d)(2) and (3); Acquisition of Real
Property in Advance of Federal Authorization or a Federal Project
Designation With the Intent of Later Incorporated Into a Federally
Assisted Project.
FHWA received three comments on determining the intent of some real
property acquisitions completed in advance of Federal authorization or
of a Federal project designation which these commenters identified as
acquisitions that are completed prior to a project or program that will
receive Federal financial assistance. One commenter requested
clarification on whether determining the intent of the original
acquisition of property matters, and if so, what documentation would be
needed. The commenter further noted that the word ``intent'' is used to
clarify that property acquired with the intent of including it in a
Federal or federally assisted project or program, would require
compliance to the requirements in subparts B-F; however, the commenter
noted the NPRM proposal simply states that any property acquired which
may later be incorporated requires compliance. The second commenter
requested that additional language be added to 49 CFR part 24 regarding
the applicability of the Uniform Act when an agency contracts with a
private third-party to satisfy the necessary environmental wetland
mitigation requirements. Specifically, whether the Uniform Act applies
at all, and if so, whether voluntary acquisitions under Sec.
24.101(b)(2) can be utilized to comply with the Uniform Act. One
commenter suggested that owners of property for sale on the open market
before the acquisition began or that intend to sell their property
despite the transportation project be considered as a voluntary
acquisition and excluded from receiving relocation benefits because a
property owner that intends to sell his/her property despite the
transportation project is already planning for these expenses.
[[Page 36922]]
FHWA Response: FHWA believes that an agency's or person's intent
when acquiring real property is relevant in determining if and how the
requirements of 49 CFR part 24 apply. The FHWA currently has guidance
in the form of an FAQ for 49 CFR part 24 as referenced in the NPRM's
Section-by-Section Discussion of Proposed Changes. The guidance states
that the funding agency will review the acquisition records and
consider the relevant facts for the properties acquired by the local
agencies or third parties to determine if the intent of the acquisition
was to incorporate the real property into, or in some other way support
or otherwise advance, a Federal or federally assisted program or
project. If the property is being acquired with the intent of
incorporating it into a federally assisted project or program and the
agency is certain that eminent domain authority will not be used for
the intended project or program, then the limited requirements of
voluntary acquisition would apply. However, the agency must also
consider that acquiring the property and applying only the voluntary
acquisition requirements would in most cases preclude the agency from
later using eminent domain authority to acquire the property should
voluntary acquisitions not result in an agreement to sell the property
to the agency. However, there are a very limited number of cases where
an agency can start the process of a voluntary acquisition under Sec.
24.101(b) before later using eminent domain, such as in the aftermath
of a major disaster or a presidentially declared national emergency, as
indicated in Sec. 24.404(b) of this final rule. If the property was
acquired by other means (e.g., local government acquisition via tax
delinquency or exaction), documentation may be provided to show that
the property was not acquired with the intent of including it in a
Federal or federally assisted program or project. However, if at the
time of acquisition, there is a nexus between the property's
acquisition and a Federal or federally assisted program or project and
if the intent was to acquire the property for a Federal or federally
assisted program or project, the Uniform Act requirements must be
followed to maintain Federal eligibility.
FHWA believes there is not one answer that fits all third-party
environment mitigation scenarios. These determinations are fact-based
by nature. However, the key issue is whether the acquisition of
property for wetlands is specifically for mitigation of impacts on
federally assisted projects or programs.
Private entities who acquire property to create wetlands for
wetland banking purposes cannot be required to comply with the Uniform
Act if there is no planned or anticipated use by federally assisted
projects or programs. Establishment of such wetland banks, which may
include a Federal or federally funded project or program among its
future users, does not necessarily trigger application of the Uniform
Act requirements. When making a fact-based determination, the purpose
of the wetland bank, the existence of any agency funding for the bank
or commitment to use the bank, and whether the wetland bank restricts
who may purchase mitigation credits from it, are among the factors to
consider in determining applicability of Uniform Act requirements.
If an agency provides Federal financial assistance for creating a
wetland bank or has a prior agreement that the banked wetlands will be
used to mitigate impacts on a specific federally funded or assisted
project(s) or programs(s), then the property acquisitions for the
wetland bank must conform to Uniform Act requirements. If an agency
contracts with a private third-party provider that does not use the
power of eminent domain, the acquisition may qualify for treatment as a
voluntary acquisition and only the limited requirements as set forth in
Sec. 24.101(b)(1) would apply.
If the wetland bank has received Section 404 of the Clean Water Act
(33 U.S.C. 1344) approval, was established without any Federal-funding
participation prior to use of Federal funds for acquisition of wetland
mitigation credits and was not planned to be used only for mitigation
of impacts due to Federal and federally assisted projects and programs,
the Uniform Act requirements do not apply. The actions that the wetland
bank developer took in carrying out their private activity can be
viewed with regard to the Uniform Act in the same manner as other
actions taken by private parties without the anticipated or actual
benefit of Federal financial assistance.
FHWA does not believe that a property for sale on the open market
before the acquisition began or that an owner intended to sell despite
the transportation project would automatically make this property
subject to the voluntary acquisition provisions of this regulation and
therefore would not require relocation assistance be provided to the
property owner. As discussed in responses to other comments in this
section, the applicability of the voluntary acquisition requirements is
determined primarily by consideration of whether the acquisition of the
property will be carried out under authority or subject to use of
eminent domain authority. The fact that the property is listed for sale
is in almost all cases not a factor that can be used to deny a property
owner relocation assistance they would otherwise be entitled to
receive.
As a result of the above analysis, FHWA deleted the proposed
Sec. Sec. 24.101(d)(2) and (3) provisions because they were identified
in comments as confusing and raised questions about applicability and
purpose. As discussed earlier in this preamble, FHWA revised Sec.
24.101(b) to address properties acquired in advance and in anticipation
of a Federal or federally funded project or program and added a
discussion on wetlands banking to Sec. 24.101(b)(1)(iii), appendix A.
Appendix A, Section 24.102(c)(2) Appraisal, Waiver Thereof, and
Invitation to Owner
FHWA received four comments regarding the appendix A explanations
of waiver valuations. Three of those four comments discussed the term
``uncomplicated'' while one comment objecting to the idea that waiver
valuations should have similar unit values to appraisals of similar
property on the same project.
FHWA Response: FHWA appreciates the supportive comments about the
explanation of uncomplicated valuations found in appendix A and
recognizes that agencies can further define the term in their approved
procedures and manuals. FHWA does not believe that the final rule
should further explain or define uncomplicated. agencies and recipients
should develop procedures and policies where necessary to better
understand the determination of what qualifies as an uncomplicated
valuation. FHWA does not believe that a national standard defining an
uncomplicated valuation should be included in this final rule, as such
determinations are fact-based determinations based on State law and
local real estate market practices, which may include determinations of
what is real property and what is personal property.
FHWA believes that waiver valuations should reflect the land value
conclusions of similar properties on a project reflected in appraisal
reports provided on behalf of the acquiring agency for other properties
which it will be acquiring for the project. This is fundamental to
project consistency and uniform treatment of property owners.
[[Page 36923]]
As a result of the above analysis, no changes were made to appendix
A.
Section 24.102(c)(2)(ii) Basic Acquisition Policies--Negotiation
Procedures; Appraisal, Waiver Thereof, and Invitation to Owner
Thirteen commenters indicated support for increased regulatory
limits for the waiver valuation. One commenter cautioned against
increases in the waiver valuation limits suggesting that ``most State
DOTs are not adequately staffed with talented and trained individuals
to handle any increase in their program parameters.'' Five commenters
suggested the different tiers of the waiver valuation limits should be
tied to inflation. They reasoned that if the limits are not adjusted
through another rulemaking or regulatory process, the effects of
inflation would effectively reduce some flexibility this rule seeks to
provide. Commenters suggested many alternatives including using CPI-U
as the appropriate index, increasing the limits each year by 2 percent,
or establishing a schedule to review and adjust the limits every 5
years to avoid the administrative confusion and burden of having limits
adjusted annually. Other commenters suggested specific valuation limit
amounts or suggested valuation limits be established based on local
market real estate prices.
FHWA Response: While there was support from some of the commenters
for raising the waiver valuation limits, there is little uniformity in
the comments and recommendations other than the references to
inflationary pressures since the last publication of this rule in 2005
and the streamlining effect any increase in waiver valuation limits
would have on land acquisition programs. FHWA believes the appraisal
waiver requirements have proven to be an effective tool in containing
costs and in fostering accelerated project delivery which have proven
to be consistent with the overarching goal of protecting the rights of
property owners whose property is acquired for a Federal or federally
assisted project or program. A national survey and various FHWA process
reviews of State DOT programs confirmed this to be the case.
In response to comments received, and in consideration of the
feedback from a recently completed national waiver valuation survey and
research, FHWA will revise the waiver valuation regulations by making
four changes, which are changes to the first tier waiver valuation
limit (Sec. 24.102(c)(2)(ii)), changes to the second tier waiver
valuation limits (Sec. 24.102(c)(2)(ii)(C)), changes to requirements
to implement the third tier of the waiver valuation limits (Sec.
24.102(c)(2)(ii)(D)), and the addition of a process for updating the
waiver valuation limits in Sec. 24.11. Three of these four changes are
described in the following paragraphs with the fourth change which
relates to the third tier of the waiver valuation requirements
discussed in responses to comments on Sec. 24.102(c)(2)(ii)(D) Basic
Acquisition Policies; Requirements for use of the Third Tier of Waiver
Valuation later in this preamble.
After reviewing and considering comments received during the NPRM
comment period, FHWA has revised the final rule by increasing the
waiver valuation limits for the first tier to $15,000, the second tier
to $35,000, and the third tier limits to allow for properties with an
uncomplicated valuation problem and fair market value estimate of more
than $35,000 and up to $50,000.
FHWA has also revised the final rule to include a process for
updating of waiver valuation limits in Sec. 24.11. FHWA believes
including waiver valuation limits adjustment provisions in Sec. 24.11
will ensure that the effects of inflation do not unnecessarily restrict
appropriate use of waiver valuations.
Future determinations on the need for adjustments will be based on
the CPI-U, which includes a measure of the average change in the
consumer prices for a fixed market basket of goods and services that
includes costs of shelter. The CPI-U considers the cost of shelter for
renter-occupied housing. For an owner-occupied unit, the cost of
shelter is the rent that owner-occupants would have to pay if they were
renting their homes. Because market rent is a function of, and linked
to market value, FHWA believes use of CPI-U is appropriate for this
adjustment. FHWA does not believe that adjustments based on local
market conditions are appropriate. FHWA believes that a single national
standard ensures equitable treatment for those whose real property
rights are acquired and reduces opportunities for confusion in
understanding and applying the appropriate waiver valuation limits.
FHWA also notes that such a scheme would likely create administrative
burden which would outweigh any programmatic benefits that might be
achieved.
Section 24.102(c)(2)(ii) Basic Acquisition Policies; Competency
Requirement
Two commenters indicated support for the language that clarifies
that the agency employee or contractor making the determination to use
the waiver valuation option must understand valuation principles,
techniques, and use of appraisals in order to be able to determine
whether the proposed valuation is uncomplicated. One commenter
suggested that more definitive decision-making processes be developed
for waiver valuations.
FHWA Response: FHWA believes it is important to emphasize that the
person making the determination of whether the waiver valuation is the
appropriate valuation tool to develop and report an amount believed to
be just compensation must themselves have sufficient understanding of
the local markets; knowledge of appraisal principles; and the proper
use of valuation methodologies to be able to determine whether the
valuation problem is uncomplicated and whether the use of a waiver
valuation would be appropriate. FHWA will consider developing an FAQ to
clarify that waiver valuations follow a multi-step decision-making
process emphasizing that it must be apparent the valuation problem is
uncomplicated, and that the compensation limits for the waiver
valuation cannot be exceeded.
As a result of the above analysis, FHWA replaced the reference to
employee or contractor with ``representative'' to clarify that
responsibility to ensure competency in the administration of the waiver
valuation program remains the agency's responsibility, regardless of
the title of the person making the valuation assignment.
Section 24.102(c)(2)(ii)(A) Basic Acquisition Policies; Uniform Act and
USPAP Compliance
FHWA received ten comments related to the interrelationship between
the Uniform Act regulations and the USPAP with a wide diversity of
opinions about how licensed and certified appraisers can perform waiver
valuations and appraisals while remaining compliant with both the USPAP
and the regulation. At least one comment acknowledged that more
clarification is needed.
FHWA Response: FHWA understands that licensed and certified
appraisers continued to perceive a conflict between the requirements of
the regulatory provisions and USPAP standards, and FHWA addressed most
of those concerns with the modifications to the regulation discussed
under the definitions of appraisal and waiver valuation. These concerns
primarily focus on an appraiser's need to comply with USPAP licensure
standards while
[[Page 36924]]
simultaneously meeting the requirements of this rule. One remaining
conflict for license holders is that USPAP recognizes performing
valuation assignments involves two separate functions: (1) development
of a valuation, appraisal, or appraisal review, and (2) reporting the
results of a valuation, appraisal, or appraisal review to clients, and
intended users of valuation services. By comparison, the regulation has
traditionally viewed the terms developing and reporting when used in
reference to valuations, appraisals, and appraisal reviews, as meaning
the same thing. To address this conflict, FHWA revised Subpart B by
replacing the word ``develop(ed)'' with the word ``perform(ed)'' when
referring to waiver valuations, appraisals, or appraisal reviews to
avoid confusion with long standing interpretations in the USPAP. The
intent of this change is to ensure that readers of this regulation
understand that performance of a valuation, appraisal, or appraisal
review includes both development of the assignment results and
reporting those results to the client and intended users of the
product. This modification will provide clarity regarding the
interrelationship and applicability of Uniform Act requirements to
USPAP.
Section 24.102(c)(2)(ii)(A) Basic Acquisition Policies; Jurisdictional
Exception Language and USPAP Compliance
FHWA received six comments related to the proposed Jurisdictional
Exception language which states that licensed or certified appraisers
preparing or reviewing a waiver valuation are precluded from complying
with Standards Rules 1, 2, 3, and 4 of the USPAP, as promulgated by the
Appraisal Standards Board of The Appraisal Foundation.\2\ Four
commenters indicated support for the language, while two commenters
opposed the proposed language, with one commenter suggesting that the
Jurisdictional Exception language in USPAP was never intended to be
used in this manner. The second commenter opposed the jurisdictional
exceptions indicating that the proposed language is likely to have
unintended negative consequences.
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\2\ <a href="https://www.appraisalfoundation.org/imis/TAF/Standards/Appraisal_Standards/TAF/Standards.aspx">https://www.appraisalfoundation.org/imis/TAF/Standards/Appraisal_Standards/TAF/Standards.aspx</a>.
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FHWA Response: FHWA believes performing appraisals when a waiver
valuation would be sufficient can cause unnecessary delay, add
unnecessary cost to an acquisition, and deliver no appreciable benefit
to the property owner. FHWA notes that the final rule's revised
definition of a waiver valuation and the language precluding compliance
with Standard Rules 1, 2, 3, and 4 of USPAP will allow a licensed or
certified appraiser to perform or review a waiver valuation which, by
definition in this rule, is not an appraisal. One ongoing concern that
has been raised over the years is that those with an appraisal license
or appraisal certification are unsure how to meet seemingly different
requirements of USPAP and the Uniform Act.
As a result of the above analysis, FHWA has revised the definition
of ``waiver valuation'' in Sec. 24.2(a) to clarify that waiver
valuations are not appraisals. The language precluding compliance was
added to Sec. 24.102(c)(2)(ii)(A) to provide appraisers with the clear
language necessary to remove any confusion with regard to violation of
professional standards and State licensure requirements when an
appraiser complies with the Jurisdictional Exception requirements. The
severability clause in USPAP's Jurisdictional Exception Rule allows the
appraisers' obligation to comply with the rest of USPAP to remain
intact, including the requirements to be competent, ethical, and to not
produce misleading reports. FHWA believes the final rule language will
provide States, and licensed or certified appraisers, with clarity
about the requirements of this regulation, and the implications of
performing a waiver valuation. FHWA recognizes that while a formal
review of a waiver valuation is not required by the regulation, some
agencies may adopt a formal review of waiver valuations as part of
their quality control process. In those instances, the final rule will
also provide clarity to licensed or certified appraisers regarding
their obligations to comply with USPAP under the Jurisdictional
Exception language while performing a waiver valuation review
assignment. FHWA will also develop FAQs to demonstrate how appraisers
may comply with USPAP's Jurisdictional Exception Rule while performing
this type of assignment.
As a result of the comments received, FHWA will also change the
term ``licensed or certified appraisers'' to ``persons'' when
describing the requirements for performing waiver valuations to clarify
that the final rule's requirements apply to all who perform waiver
valuations.
Section 24.102(c)(2)(ii)(B) Basic Acquisition Policies; Minimum
Qualifications of Waiver Valuation Preparer
FHWA received two comments on minimum qualifications of a waiver
valuation preparer. One commenter indicated a desire for language that
clarifies that a highly regulated State agency can approve persons
performing waiver valuations. Another commenter recommended that all
persons performing waiver valuations receive basic training in
appraisal principles.
FHWA Response: FHWA believes that Federal agencies, States, and
other recipients can continue to make necessary policy determinations
on the most effective methods for training and qualifying those
performing waiver valuations.
As a result of the above analysis, no changes were made to this
section of the final rule.
Section 24.102(c)(2)(ii)(D) Basic Acquisition Policies; Requirements
for Use of the Third Tier of Waiver Valuation
FHWA received 12 comments related to the proposed requirements for
the new third tier of the waiver valuation. Eleven comments voiced
concerns about the requirements proposed for this tier. One comment was
supportive of the proposed requirements but suggested that the
requirement for quarterly reports be changed to milestone reports in
the right-of-way phase of the project. Of the 11 comments that voiced
concerns about the requirements for use of this tier, 4 of those
commenters did not support limiting this tier's use only to Federal
agencies and their recipients, suggesting that subrecipients should
also be allowed to use this tier. Two comments were in favor of not
allowing subrecipients to use this tier. Five comments were received
that indicated complying with the six requirements for Federal agency
approval to use the third tier would be overly burdensome.
FHWA Response: FHWA believes a primary purpose of the Uniform Act
is to ensure that just compensation offers are provided to property
owners fairly, timely, and efficiently. After considering the
commenters' concerns of administrative burden created by the NPRM's
proposed requirements for use of the third tier of waiver valuations,
FHWA revised the final rule requirements for use of the third tier of
waiver valuations by eliminating the documenting and reporting of names
or credentials of individuals who will be performing the waiver
valuations; eliminating the administrative/
[[Page 36925]]
managerial oversight mechanisms used to assure proper use and review of
this additional level of authority; eliminating the development and use
of the quality control procedures to be utilized; and revising the
reporting requirements.
As noted in the response to comments pertaining to Sec.
24.102(c)(2)(ii) Basic Negotiation Procedures; Appraisal, Waiver
Thereof, and Invitation to Owner'' and in this part seeking to increase
the limits for the third tier waiver valuations, the final rule
includes a revised third tier of the waiver valuations which includes
properties with an estimated compensation amount of more than $35,000
and up to $50,000.
FHWA agrees with several commenters that some of the requirements
related to reporting could be revised by streamlining or eliminating
some of the requirements. FHWA revised the reporting requirement to
require that within 6 months of completion of acquisition activities,
the agency must submit a close-out report measuring cost/time benefits;
condemnation rate; settlement rate; and any other relevant metric which
can document both the administrative savings, and accuracy and efficacy
of the waiver valuations.
FHWA acknowledges that recipient agencies continue to have
oversight responsibilities with their subrecipient agencies and can
best provide oversight and stewardship of those subrecipient agencies.
The FHWA agrees with several commenters that limiting the use of the
third tier waiver to Federal agencies and their recipients may be
unnecessarily restrictive and eliminated the proposed requirements
limiting the use of the third tier of waiver valuations to Federal
funding agencies and recipients. Therefore, recipient agencies should
consider developing policies for allowing the use of the third tier
waiver valuations by subrecipients.
Section 24.102(c)(2)(ii)(E) Basic Acquisition Policies; Requirements
for Agencies To Offer Property Owners the Option To Have the Agency
Provide Appraisals Instead of Waiver Valuations
One commenter indicated that the regulatory language as proposed
may have caused an unintended consequence. They noted that Sec.
24.102(c)(2)(ii)(E) is a subsection of Sec. 24.102(c)(2)(ii), which
authorizes the agency to determine that an appraisal is unnecessary for
acquisitions under $10,000. The commenter noted that it appears that
Sec. 24.102(c)(2)(ii)(E), as proposed, would require the agency to
perform an appraisal in all instances where an owner elects to have the
property appraised, including acquisitions under $10,000.
FHWA Response: FHWA agrees that the requirement to perform an
appraisal when requested by the property owner does not apply to waiver
valuations for acquisitions under the limit specified in Sec.
24.102(c)(2)(ii), which is raised in the final rule to $15,000. FHWA
acknowledges that the structure and organization of the paragraphs was
unclear and has modified the language in this final rule to clarify
that Sec. 24.102(c)(2)(ii)(E) applies only to Sec. Sec.
24.102(c)(2)(ii)(C) and (D).
Section 24.102(f) Basic Negotiation Procedures; Appendix A, Minimum
Negotiation Period
One commenter requested FHWA strengthen the statement in appendix
A, Sec. 24.102(f), regarding the 30-day minimum negotiation period to
find a balance between fairness and project delivery in the acquisition
phase.
FHWA Response: FHWA believes the current language is sufficient in
that it addresses a need to ensure fairness in allowing the property
owner a reasonable amount of time to consider the agency's offer
regardless of project delivery pressures. The current appendix A
language allows that the time needed to consider an offer can vary
significantly depending on the circumstances but that 30 days would
seem to be the minimum time these actions can be reasonably expected to
require. It also notes that regardless of project time pressures,
property owners must be afforded this opportunity. (appendix A, Sec.
24.102(f)). The current language also makes it permissible to complete
negotiations in less than 30 days if the parties can reach an
agreement. FHWA believes that it is important to note that this
requirement is not satisfied by simply establishing a minimum or
maximum number of days for a negotiation process. Instead, it is
focused on developing policies and practices necessary to ensure that
an agency does not cause those whose property is being acquired to
suffer an undue burden or to be treated in a manner that is coercive in
nature.
As a result of the above analysis, no changes were made to this
section or appendix A of the final rule.
Section 24.102(g) and (i)--Updating Offer of Just Compensation &
Administrative Settlements
One commenter described a court case related to a State's use of
its administrative revision process and requested guidance on the
proper use of administrative revisions and when they are appropriate.
FHWA Response: FHWA declines to comment on ongoing State court
litigation but notes the underlying and applicable Uniform Act
requirement for good faith negotiations, the provisions on revising
appraisals, and making an administrative settlement. Section 24.102(f)
requires that a property owner be given a reasonable opportunity to
consider the agency's offer and to present relevant material which they
believe provides a basis for a change or update in the agency's offer
of the amount believed to be just compensation and offer to purchase.
Agencies must update their waiver valuations and appraisals and, when
necessary, obtain a new appraisal or waiver valuation if new or
relevant information on the real property's value is presented by the
owner, a material change in the character or condition of the property
occurred, or a significant delay has occurred since the time of the
appraisal or waiver valuation was developed. If the updated or new
appraisal or waiver valuation information indicates that a change in
the value of real property being acquired, the agency shall promptly
revise its offer of the amount believed to be just compensation and
make that offer to the owner in writing (Sec. 24.102(g)). Section
24.102(i) of this final rule continues to permit use of an
administrative settlement as a means to reach a negotiated settlement
when possible. The use of an administrative settlement is consistent
with the Uniform Act (42 U.S.C. 4651), which has an underlying goal of
encouraging and expediting the acquisition of real property by reaching
agreements with owners, avoiding litigation, assuring consistent
treatment for owners and to promoting public confidence in Federal land
acquisition practices.
In addition, appendix A section 24.102(i) advises that appraisers,
including review appraisers, must not be pressured to adjust or revise
their opinions of value and recommendations (or approvals) of the
amount believed to be just compensation for the purpose of justifying
such administrative settlements.
As a result of the above analysis, no changes were made to the
final rule.
Section 24.102(j)--Payment Before Taking Possession
One commenter suggested a language change to clarify what is
intended by ``shall pay'' at Sec. 24.102(j).
FHWA Response: FHWA reviewed the relevant regulations and believes
the current regulations accurately list the
[[Page 36926]]
different ways payment can be made to a property owner depending on the
circumstances. FHWA believes the appropriate language for negotiated
agreement is the agency ``shall pay'' the agreed purchase price to the
owner. In the case of condemnation, in contrast, the agency ``makes the
funds available'' for the benefit of the owner, by depositing with the
court an amount not less than the approved fair market value. In
addition, FHWA notes that the use of the word ``pay'' in this
regulation is consistent with the description found in section 4651(4)
of the Uniform Act, which states that no owner shall be required to
surrender possession of real property before the head of the Federal
agency concerned pays the agreed purchase price, or deposits with the
court, for the benefit of the owner, an amount not less than the
agency's approved appraisal of the fair market value of such property,
or the amount of the award of compensation in the condemnation
proceeding for such property (for additional Federal condemnation see
also Sec. Sec. 3114(a) through (d) of Title 40). FHWA does not believe
that making the agreed purchase price available to the owner as opposed
to paying the owner are synonymous and believes that that ``paying''
more accurately describes this requirement.
As a result of the above analysis, no changes were made to this
section of the final rule.
Section 24.102(n) Conflict of Interest
FHWA received four comments on the NPRM's proposed changes to the
conflict of interest requirements. One commenter indicated a desire for
clearer explanation of the difference between conflict of interest
provisions for acquisitions of $10,000 and below, and acquisitions from
$10,001 to $25,000. Another commenter recommended that the final rule
increase the previous rule's limit for conflict of interest from
$10,000 to $15,000 and eliminate the NPRM's proposed second tier
because the requirements are too complicated and would not be used. A
third commenter suggested the existing limits be increased to account
for inflation and to eliminate the proposed requirements for the second
tier as they would increase administrative costs and slow down project
delivery. A fourth commenter suggested increasing the existing limits
to $25,000 and eliminating the proposed additional requirements for the
sake of simplicity.
FHWA Response: The FHWA's experience is that the conflict of
interest limit has been managed effectively and that protections for
property owners' rights have not been diminished by this process. In
recognition of that experience and in response to comments on this
part, FHWA revised this final rule to increase the upper limit of the
first tier of the conflict of interest provision to $15,000 and the
second tier to $35,000. FHWA believes increasing the limits of the
second tier of the conflict of interest provision to $35,000 to
coincide with the new second tier limits of the waiver valuation in
Sec. 24.102(c)(2)(ii), offers agencies opportunities for single agent
activities that can be performed in a way that encourages efficient
results, and does not unnecessarily burden them with administrative
costs. Use of this tier will continue to require an appraisal, and
review of the appraisal, if the valuation preparer is also acting as
the negotiator.
These changes will align the conflict of interest limits with the
increased limits of both the first tier of the waiver valuation in this
final rule at Sec. 24.102(c)(2)(ii), and the second tier of the waiver
valuation at Sec. 24.102(c)(2)(ii)(C).
FHWA believes that additional requirements for use of the second
tier of the conflict of interest provision are prudent and necessary to
minimize opportunities for waste, fraud, and abuse. FHWA revised this
section for clarity by moving the discussion on providing approval for
use of conflict of interest provisions to subrecipients to Sec.
24.102(n)(4). FHWA also revised appendix A to Sec. 24.102(n)(2) to
include mention of prohibitions against negotiators supervising the
persons performing waiver valuation.
Section 24.103 (a) Criteria for Appraisals
FHWA received four comments on criteria for appraisals. Three
commenters indicated a desire for language that more strongly
emphasized the importance of the Uniform Appraisal Standards for
Federal Land Acquisition (UASFLA). One commenter recommended that FHWA
update all USPAP references to the 2020-2021 version of USPAP.
FHWA Response: FHWA believes the appraisal standards outlined in
the UASFLA continue to be suitable for Federal and federally assisted
projects and programs. The recognition of USPAP as an appraisal
standard in the 2005 version of these regulations was not intended to
diminish the UASFLA's importance but instead to ensure that it is
understood that licensed and certified appraisers could comply with
these regulations, and to the extent appropriate, the UASFLA, while
still complying with their State's appraisal licensing requirements
under USPAP. FHWA is aware that the final rule language modification in
2005 was seen by some appraisers performing assignments for Federal
agencies to indicate that compliance with the UASFLA was not required
because the language was interpreted to mean that compliance with USPAP
alone was sufficient. FHWA may develop FAQs to emphasize and clarify
that non-compliance with UASFLA standards is neither required nor
suggested by this rule. The FAQs would offer clarity regarding the
importance for appraisers to understand their obligation for competency
in the jurisdictional area they are working.
As a result of this analysis, no changes were made to this section
of the final rule.
Section 24.104(a) Review of Appraisal
FHWA received two comments on the review of appraisal. One
commenter indicated that since appraisal review was not identified
specifically in the law, it should be eliminated from the regulation to
save time and costs to the acquiring agency, or alternatively, that
appraisal review only be imposed upon all appraisals that estimated
compensation above $250,000. One commenter thought that the acquiring
agency should be allowed to determine when an appraisal review should
be required.
FHWA Response: FHWA notes that the previous final rules also
recognized a need for appraisal review and its important role in
ensuring agencies provide just compensation. The 2005 final rule
preamble, 70 FR 599 (January 4, 2005), noted that FHWA does not believe
that it has flexibility under the Uniform Act to make appraisal review
optional. The discussion described the Uniform Act's requirement for an
approved appraisal, which FHWA interprets and implements as requiring a
technically reviewed appraisal. The discussion also noted that while
the Uniform Act specifically grants authority for waiver of the
appraisal, it does not do so for approving an appraisal and that for
over 30 years, the regulation has been consistent in the description
and requirements for this function.
FHWA continues to believe that the appraisal review function's
primary purpose is to serve as a necessary quality control tool. The
appraisal review requirement is not a requirement to perform a second
appraisal, or in some other way duplicate the effort and work necessary
to perform and report an opinion of value.
The appraisal review requirement ensures that agency officials
charged
[[Page 36927]]
with approving amounts believed to be just compensation have reliable,
relevant, and consistent information which is necessary to approve an
amount believed to be just compensation, and when necessary, in
approving administrative settlements. The appraisal review process also
ensures that opinions of value are appropriately supported and meet
agency requirements, and that offers to property owners are based on
coherent and consistent land values. The appraisal review process also
ensures that appraisals are competently scoped, developed, and
documented.
As a result of the above analysis, no changes were made to this
section of the final rule.
Subpart C--General Relocation Requirements
Section 24.202(a) Persons Required To Move Temporarily
FHWA received 13 comments with suggested changes and general
support for the proposed temporary relocation reorganization and
clarification. The comments were grouped below into smaller
subcategories in order to provide succinct responses to each of the
comments received.
Section 24.202(a) Persons Required To Move Temporarily--Temporary
Displacement vs. Permanent Displacement
Two comments supported the proposed addition and use of ``persons
required to move temporarily.'' One commenter suggested that the term
``temporarily displaced'' be replaced with ``temporarily relocated.''
Two commenters asked for clarification on the NPRM's proposal to add a
new Sec. 24.202(a), ``Persons temporarily displaced,'' which they felt
needed to be revised because they interpreted the rule to say that a
person required to move temporarily is not displaced and therefore not
eligible for assistance under this rule. One commenter suggested
revising the title of the section to clarify applicability of the
requirements, while another commenter requested examples be added to
aid in determining who is temporarily displaced. One commenter
expressed concern that the NPRM's proposed changes and addition of
regulatory requirements for persons who are temporarily displaced
create deep structural disconnects between Uniform Act terms and
requirements and conditions that housing authorities and others working
within affordable housing programs and other similar programs
encounter. The commenter expressed concern that the NPRM also fails to
recognize the overlapping regulatory and contractual requirements of
owners of properties assisted by the Federal loan and subsidy programs
to provide notices and avoid displacement that exist outside of the
Uniform Act.
FHWA Response: FHWA revised the final rule to consistently use the
term ``persons required to move temporarily'' to ensure that there is
clarity and consistency in describing the benefits and assistance that
would be provided to those who are temporarily displaced.
FHWA considered the request to include examples of persons required
to move temporarily in this rule. FHWA believes that the definition of
``displaced person'' provides agencies with the factors used in
determining when a person is permanently displaced. To ensure that
there is a clear distinction between ``displaced person'' and ``persons
required to move temporarily'', FHWA added the word ``permanently'' to
the definition of ``displaced person'' in Sec. 24.2 to more clearly
describe those who are permanently displaced. This same definition has
separate provisions that can be applied when a person is required to
either temporarily discontinue the use of their property or to move
temporarily from their property. FHWA understands that some of the
activities that may require a person to move temporarily or to
temporarily discontinue the use of their property are either unique,
episodic, or in some other fashion impose temporary limits on the use
of real property. FHWA has added language in Sec. Sec. 24.202 through
24.204 to more clearly indicate which requirements apply to those who
are temporarily displaced. Because temporary relocations can be
episodic or unique in nature, FHWA has also added language which
clarifies when certain actions require determinations of applicability
by the funding agency. The FHWA believes that Federal funding agencies
can develop policies or guidance which may assist it and its recipients
in making a determination of when their Federal and federally assisted
projects or programs cause persons to move temporarily or to
temporarily discontinue use of their property.
FHWA considered the proposed use of the term temporarily
``relocated'' in place of temporarily ``displaced.'' In reviewing the
proposed addition of requirements for those who are required to move
temporarily or to temporarily discontinue the use of their real
property FHWA notes that the definition of displaced person now
includes a subsection which addresses those required to move
temporarily.
As a result of the above analysis, FHWA has revised the final rule
by adding a definition in Sec. 24.2(a)(ii) to discern the differences
between those permanently displaced and those required to move
temporarily and by revising the requirements in Sec. 24.202 to explain
what benefits and assistance are provided to persons required to move
temporarily.
The final rule also includes a section describing moving costs and
allows for storage for persons required to move temporarily with
Federal agency approval.
FHWA believes the final rule's requirements for persons required to
move temporarily, the discussion and clarification about development of
funding agency specific policies, and the revision of the title of the
notice at Sec. 24.203(b) ensure that those carrying out relocations
have the tools necessary to correctly implement the funding agency's
program in compliance with Uniform Act requirements. As noted in the
NPRM's preamble at 84 FR 69476, FHWA believes this change aligns the
regulation more closely with the language and requirements of Section
4621 of the Uniform Act. These requirements include a recognition that
assistance policies must provide for fair, uniform, and equitable
treatment of all affected persons. In addition, FHWA believes that
providing services and assistance to persons required to move
temporarily is necessary to minimize the impacts of displacement and to
maintain the economic and social well-being of communities.
FHWA will consider development of FAQs describing requirements for
persons required to move temporarily under the final rule.
Section 24.202(a) Persons Required To Move Temporarily--Payment for
Temporarily Closing of a Business
Two commenters noted some businesses that might temporarily
discontinue use of their property would not qualify for assistance
because a business might only be eligible for payment of expenses when
a person's business is required to move temporarily due to
rehabilitation of a site. These same commenters suggested the final
rule should be revised to ensure that businesses required to move
temporarily for reasons other than rehabilitation of a site be eligible
for temporary relocation benefits as well. One commenter requested
clarification in the final rule focused on temporary business
displacement. This commenter suggested allowing payment to
[[Page 36928]]
businesses to compensate the business for temporarily closing instead
of moving temporarily. The proposed payment would be determined by
using average daily income. The commenter reasoned that the proposed
payment would allow the business to remain in place but closed for
business until the project or program activity is completed.
FHWA Response: FHWA believes that this regulation does not contain
language that would limit eligibility for temporary nonresidential
moves to when the temporary displacement was caused by rehabilitation.
The NPRM's preamble discussion of proposed changes to the definition of
displaced person addresses eligibility for those who are required to
move temporarily.
The preamble discussion at 84 FR 69476 noted that several Federal
agencies have programs or projects that do not require the acquisition
of real property, but instead may require the rehabilitation or
demolition of real property, and that FHWA proposed adding the terms
``rehabilitate or demolish'' to the definition of a displaced person.
The addition would clarify that the term ``displaced person'' includes
those required to move, or move their personal property, or who are
required to temporarily move from or to temporarily discontinue use of
their real property as a result of a written notice of intent to
rehabilitate or demolish, even if the real property is not being
acquired. The final rule adopts the NPRM proposals addressing
businesses that are required to move temporarily at Sec. 24.202(a).
The term ``displaced person'' is used in the Uniform Act to
describe persons who move permanently because of a Federal or federally
assisted project or program. ``Persons not displaced'' is a term used
to describe persons who do not qualify for Uniform Act benefits. FHWA
revised and reorganized the definition to specifically address persons
who are required to move temporarily and included a new addition in the
final rule, Sec. 24.202(a), to describe the required assistance and
services that must be made available for persons who are required to
move temporarily. FHWA notes that the final rule will continue to
include a notice of intent to rehabilitate or demolish but does not
agree or believe that the notice would restrict eligibility for those
required to move temporarily to only residential occupants.
FHWA considered the comments on allowing a business owner to decide
to claim a payment for temporary closure of a business in lieu of
temporary relocation and does not agree that such a payment should be
allowed. Such a payment is specifically disallowed under the current
regulations in Sec. 24.301(h), Loss of profits, and FHWA sees no
rationale for allowing such a payment to a business required to move
temporarily. FHWA also believes that determination of a temporary loss
of business payment due to temporary closure of a business raises
questions about calculation methodology. Several considerations would
make such a determination and calculation imprecise, unworkable, and
impractical to document including uncertainty about determining if
businesses' customers would all return after the temporary closure,
calculation of temporary loss of temporary loss of goodwill, and
whether such payments would be available to all businesses required to
move temporarily or only certain types of businesses that have
machinery and equipment requiring substantial costs to move and
reinstall.
FHWA recognizes that a temporary move and a return to the site may
not be practical or possible for some businesses for several reasons,
including, but not limited to, prohibitive costs to move and equipment
that cannot be relocated temporarily due to cost or specific
requirements related to installation (including the need for new pits,
pads, utility service requirements, modifications necessary due to code
requirements, etc.). The FHWA believes that, in these instances,
displacing agencies will need to make a fact determination and document
the reasons why a temporary displacement may not be possible for a
business and determine that instead, such a business should be provided
relocation assistance to permanently relocate the business.
FHWA similarly does not agree that a business required to move
temporarily for reasons other than rehabilitation of a site would be
ineligible as defined in this rule. Such an eligibility determination
would be a fact-based determination which would consider the project's
impacts on the business in making an eligibility determination.
As a result of the above analysis, no change was made to this
section of the final rule.
Section 24.202(a) Persons Required To Move Temporarily--12 Month Time
Limit
Two commenters raised concerns about the 12-month time limit for
temporary relocations. Both commenters were concerned that some
projects might require a temporary relocation longer than 12 months.
One commenter reasoned that Sec. 24.207(f) would prohibit an occupant
from agreeing to a temporary relocation of longer than 12 months.
FHWA Response: The FHWA considered the comments raising concerns
that some projects may require a temporary relocation for a period of
more than 12 months. The commenters raised additional concerns that the
language in the proposed rule might be interpreted to prohibit a
displaced person from agreeing to a temporary relocation longer than 12
months after being informed of their eligibility as a displaced person.
FHWA agrees that projects often experience unexpected delays for a
number of reasons. Given the longstanding regulatory flexibility,
history, and application, FHWA does not agree that the requirements in
Sec. 24.207(f) would prohibit an occupant from agreeing to a temporary
relocation of longer than 12 months after being informed of their
eligibility as a displaced person. The 2005 final rule preamble
discussion of Sec. 24.2(a)(9)(ii)(D) Temporary Relocation, 70 FR 592
(January 4, 2005), provided details on how and why a temporarily
displaced person may elect to continue to be temporarily displaced. The
rule reasoned that ``Such tenants may be given the opportunity to
choose to continue to remain temporarily relocated for an agreed to
period (based on new information about when they can return to the
displacement unit), choose to permanently relocate to the unit which
has been their temporary unit, and/or choose to permanently relocate
elsewhere with Uniform Act assistance.'' FHWA continues to believe that
when a person who is required to move temporarily, or temporarily
discontinue use of their property, is fully informed about their
eligibilities, that they may make a choice which can include to remain
temporarily displaced for more than a 12-month time period. This choice
must be documented by having the person required to move temporarily,
or to temporarily discontinue use of their property, sign a written
agreement documenting their intent to elect to remain temporarily
displaced while they wait for the project to conclude.
Appendix A, Sec. 24.207(f) also addresses the commenters' concern
that a person required to move temporarily could not agree to remain
classified as a ``person required to move temporarily'' for more than
12 months after being informed of their eligibility as a displaced
person. The appendix A discussion points out that while the regulation
prohibits an agency from proposing or requesting that a displaced
person waive their rights or entitlements
[[Page 36929]]
to relocation assistance and payments, an agency may accept a written
statement from the displaced person that states that they have chosen
not to accept some or all of the payments or assistance to which they
are entitled in anticipation of returning to their dwelling or a
similar dwelling in the building when the project is completed. The
written statement must clearly document that the individual knows which
benefits and assistance they are entitled to receive, a copy of the
Notice of Eligibility that was provided may serve as documentation, and
their statement must specifically identify which assistance or payments
they have chosen not to accept. The statement must be signed and dated
and may not be coerced by the agency.
The 2005 final rule allows waiver of regulatory requirements when
that waiver does not reduce benefits or assistance otherwise available
to an owner or displaced person. This provision, found at 49 CFR 24.7,
has been a part of the Uniform Act regulation for almost 40 years. The
1989 final rule preamble at 54 FR 8917 (March 2, 1989); section 24.7
Federal agency Waiver of Regulations, noted that requirements imposed
by the Uniform Act may, necessarily, create some delay and
administrative burden and that it would be inappropriate to grant a
waiver based on the general proposition of delay and administrative
burden. A waiver proposal would need to be specific, protect the rights
of owners and displaced persons, and not be designed to provide
administrative relief to the acquiring agency. The 1989 preamble also
noted that the waiver provision, in turn, is explicit regarding two
major considerations. The first is that the Federal agency, before
waiving any requirement, must determine that the waiver does not reduce
any assistance or protection provided to an owner or displaced person
under this regulation. The second is that any request for a waiver
shall be justified on a case-by-case basis. FHWA noted in this passage
that it does not interpret case-by-case to mean, necessarily, a parcel-
by-parcel basis, neither does it encompass the waiver of a requirement
on a program-wide scope, and therefore the broader the scope of the
waiver, the more carefully the Federal agency must weigh its effect on
the assistance and protection to be provided an owner or displaced
person. This final rule does not propose changes to the Sec. 24.7
waiver provisions or any changes in interpretation and application of
the wavier of regulations.
Federal agencies should develop policies for determining when a
waiver of the 12-month requirements may be allowed. FHWA notes that
previous regulatory preambles also addressed the question of whether a
waiver of regulations in Sec. 24.7 allows for project- or program-
based waiver of regulations by the funding agency. FHWA continues to
believe that Federal funding agencies considering approving a waiver of
regulations must ensure that any waiver of regulations does not reduce
any benefits or assistance due to displaced owners and tenants. FHWA
believes that Federal funding agencies may grant approval to allow a
waiver of the 12-month requirement on a project by project basis. Such
a waiver would need to establish the new maximum duration for requiring
a person to move temporarily and be approved by the funding agency
prior to initiation of the project because each person who is or will
be required to move temporarily, or temporarily discontinue use of
their property, and must be informed of their eligibilities and
entitlements. To the extent practicable, agencies should consider the
need for a waiver of the 12-month requirement in advance of the
project's initiation. This must include documentation of why the waiver
is necessary and why a waiver would not reduce required benefits or
assistance. In some cases, the need to extend temporary relocation
beyond 12 months will not be foreseeable at the initiation of the
project but will become apparent at some later stage of the project. In
such instances, agencies are not required to request a Sec. 24.7
waiver, if the agency fully informs the temporarily displaced persons
of their eligibility as a permanently displaced person before giving
them the option of continuing in a temporarily displaced status. If
that option is selected, it should be memorialized in a written
agreement between the agency and the temporarily displaced person.
Given the history and longstanding interpretation of the waiver of
regulations provisions, FHWA does not believe that additional
regulatory changes are necessary and that agencies can develop further
policy and procedures that describe safeguards necessary to ensure that
displaced persons are provided all eligibilities and assistance
required under this rule. Such policies and procedures should include
consideration of what the agency believes to be the maximum duration
that a person can required to remain a person required to move
temporarily and when such waivers may and may not be granted.
As a result of the above analysis, no changes were made to this
section of the final rule.
Section 24.202(a) Persons Required To Move Temporarily--Requirement for
Notices
One commenter raised a question about notice requirements for those
who are required to move temporarily, or to temporarily discontinue use
of their property, and specifically asked about the applicability of
the 90-day notice requirement for those required to move temporarily or
to temporarily discontinue use of their property.
FHWA Response: FHWA considered the commenter's questions about
notices for persons who are required to move temporarily or to
temporarily discontinue use of their property. The final rule includes
specific eligibilities in Sec. 24.202(a) for persons required to move
temporarily as proposed in the NPRM, which include notice requirements.
As a result of the above analysis, no changes were made to this
section of the final rule.
Section 24.202(a) Persons Required To Move Temporarily--Advisory
Services
Two commenters raised a question about meeting the requirements for
providing advisory services to persons required to move temporarily.
FHWA Response: FHWA believes that the requirements of Sec.
24.205(c) provide detailed requirements for advisory services for those
displaced are applicable in part to those persons required to move
temporarily. However, the primary purpose of advisory services is to
ensure that a displaced person is fully informed about the assistance
and benefits that may be available to them. Such advisory services
necessarily require an agency to develop and maintain ongoing
communication with a person required to move temporarily. Such
communication will ensure that the agency understands the needs of the
person required to move temporarily and addresses those needs as
required and allowed in this rule.
As a result of the above analysis, no changes were made to this
section of the final rule.
Section 24.203 Relocation Notices
FHWA received responses from two commenters on relocation notices.
One commenter asked that the final rule clarify when and how notice
requirements in this rule should be applied to Federal rental housing
programs. This commenter pointed out that some programs do not have a
readily identifiable initiation of negotiations. One commenter
suggested the elimination of the notice of intent to
[[Page 36930]]
acquire, rehabilitate, or demolish, and reasoned that the General
Information Notice already serves the same purpose; and also asked that
the final rule include a discussion of timing for the various notices.
This commenter reasoned that the NPRM contains a description of
notices, which do not always clearly fit into Federal agency
acquisition and relocation processes, and which are sometimes
dissimilar to what is described in the final rule. One commenter
suggested that Federal funding agencies ensure that notices are written
in easily understood terms and organized in a way to ensure that
displaced persons or occupants are provided with information they need
in as basic a manner as possible.
FHWA Response: The requirement for notices is one of the most
basic, but also one of the most important, requirements in this rule.
Notices serve to ensure that those impacted by a Federal or federally
assisted project or program receive information and assistance that
they will need to successfully relocate.
FHWA understands the concerns about how some of the requirements
are not easily applied to all Federal programs but does not believe
that changes to the final rule can adequately address concerns that are
specific to each Federal agency's program. FHWA believes agencies
should develop policies and guidance to clarify how requirements in
this rule are implemented, as necessary.
FHWA agrees with the commenter who suggested that notices should be
written in a manner that ensures that those impacted or affected by a
Federal or federally assisted project or program receive notices that
are clear, concise, and ensure that the necessary information is
efficiently and effectively provided. FHWA believes that the final rule
provides the requirements necessary to develop such notices but
believes that each Federal agency must develop its own processes and
policies to ensure that the notices being provided serve the purpose of
providing needed information as effectively and efficiently as
possible.
Similarly, FHWA does not agree that the notice of intent to
acquire, rehabilitate, or demolish be removed from this regulation. As
indicated in the regulatory language, the notice's specific purpose is
to provide written assurance that the agency intends to acquire the
real property, in whole or in part. This notice is provided to an
occupant who is either required to move temporarily or who may be
permanently displaced. An important purpose of this notice is to allow
a person who may be either required to move temporarily or who may be
permanently displaced to move in advance of offers or other notices
while not jeopardizing any potential relocation assistance to which
they may be entitled.
As a result of the above analysis, FHWA revised Sec. 24.203(d) to
specifically include persons who are required to temporarily move. FHWA
believes that the modifications to Sec. 24.203(d) will clarify the
purpose, intent, and timing of this notice. The FHWA does not believe
an additional discussion in Sec. 24.203 on timing of notices is
warranted.
Section 24.205(c) Relocation Planning Advisory Services and
Coordination
FHWA received one comment requesting that as part of relocation
assistance advisory services, and to ensure active citizen
participation throughout the whole project, agencies should establish a
relocation committee to include agency personnel, community residents,
and community leaders. The commenter noted such a committee could be
essential in cultivating a bond of trust with the residents, moving
proposed projects forward in a timely manner, and in helping to
identify the needs of displaced persons.
FHWA Response: FHWA appreciates this information on best practices
but does not believe that such a process should be a requirement.
However, FHWA does agree with the commenter's insight that establishing
trust with tenants encourages participation and provides a good method
to ensure successful relocation outcomes and advance projects in a
timely manner. The FHWA notes that the relocation planning requirements
remained largely unchanged for almost 40 years, in this final rule and
the rulemakings that preceded it; beginning with the final rule in
1989, 59 FR 8909 (March 2, 1989), and in the 2005 rulemaking, 70 FR 590
(January 4, 2005). The 1989 final rule preamble explained in part that
``. . . FHWA believes that most displacing agencies are well aware of
the program or project benefits which can be derived through early and
sound relocation planning and many agencies currently use comprehensive
planning techniques in project development. FHWA does not view
relocation planning as a complicated, time-consuming activity. FHWA
sees relocation planning as a process which provides meaningful
information to program and project decisionmakers. It does not need to
result in a detailed document containing unnecessary data and needless
problem solving. Instead, it should be a process which is scoped to the
complexity and nature of anticipated program or project relocation
activity and should not require a burdensome commitment of agency
resources.''
The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 notes that ``This subchapter establishes a uniform
policy for the fair and equitable treatment of persons displaced as a
direct result of programs or projects undertaken by a Federal agency or
with Federal financial assistance. The primary purpose of this
subchapter is to ensure that such persons shall not suffer
disproportionate injuries as a result of programs and projects designed
for the benefit of the public as a whole and to minimize the hardship
of displacement on such persons.'' 42 U.S.C. 4621. This section also
includes congressional findings and declarations which note that the:
``. . . (2) relocation assistance policies must provide for fair,
uniform, and equitable treatment of all affected persons; (3) the
displacement of businesses often results in their closure . . .''
While this final rule will not include additional requirements for
relocation planning, FHWA believes that modern projects and attendant
right-of-way needs are becoming more complex and, in some cases, more
impactful to those displaced and the surrounding communities. Such
planning necessitates a thorough analysis and understanding of the
potential displacements a proposed project or its alignments may cause.
Such analysis and understanding are critical to ensuring that those
displaced do not suffer disproportionate injuries and that they receive
uniform, fair, and equitable treatment.
FHWA encourages each funding agency to carefully review its
policies and procedures while implementing this rule in order to ensure
that the relocation planning requirements are being caried out. FHWA
believes that the consequences of not carrying out the requirements of
relocation planning may cause disproportionate injury to those
displaced, project delay, escalation of project costs, and difficulty
in timely development and advancement of projects. FHWA will consider
developing new FAQ and other supporting materials to explain the need
for effective relocation planning, emphasize best practices and success
stories, and to examine lessons learned.
FHWA also revised the appendix A, Sec. 24.205(a) discussion by
adding a reference to those who live in other federally subsidized
housing to ensure that agencies are aware of the need to assess and
plan for effective advisory
[[Page 36931]]
services. The FHWA encourages agencies to creatively and
collaboratively develop methods to provide advisory services that meet
the needs of those displaced.
Section 24.205(c) Relocation Planning Advisory Services and
Coordination
FHWA received one comment requesting that as part of relocation
assistance advisory services, and to ensure active citizen
participation throughout the whole project, agencies should establish a
relocation committee to include agency personnel, community residents,
and community leaders. The commenter noted that at the public
corporation where the commenter works, a housing committee was
established. The commenter relayed that the committee was essential in
cultivating a bond of trust with the residents, moving proposed
projects forward in a timely manner, and in helping to identify the
needs of displaced persons.
FHWA Response: FHWA appreciates the information about the housing
committee and its processes and best practices. FHWA however does not
believe that such a process should be a requirement. In addition,
appendix A Sec. 24.205(a) addresses the need to ensure that
relocations that may take additional time for advisory services and
coordination are properly addressed through the relocation planning
process.
However, FHWA agrees with the commenter's insight about the
importance of the relationship with residents to ensure active citizen
participation and to move the proposed project in a timely manner. FHWA
also agrees with the commenter that residents can help identify the
specific needs of some families.
As a result of the above analysis, no changes were made to this
section of the final rule.
Section 24.205(c)(2)(II)(C) Relocation Assistance Advisory Services;
Services To Be Provided--Inspection Criteria
One commenter believes that improvements could be made to the
requirements necessary to establish that a dwelling is DSS. They
reasoned that updating, revising, and clarifying inspection
requirements in the Uniform Act would be consistent with current
requirements in many federally assisted housing programs. They noted
that the Housing Opportunity Through Modernization Act of 2016 (Pub. L.
114-201) designated both lead-based paint, and missing or defective
carbon monoxide detectors, as life-threatening conditions for the
purposes of initial housing quality standards inspections for Housing
Choice Voucher and Project-Based Voucher units. They also noted that
the Lead Safe Housing Rule, 24 CFR 35.80 et seq., which applies to all
target housing that is federally owned or assisted, also requires lead
paint inspections, and risk assessments/remediation, if necessary,
prior to occupancy in all programs (excluding mortgage insurance),
except the Housing Choice Voucher Program and project-based units
receiving less than $5,000. The commenter believes that updating
Uniform Act inspection language to include similar provisions would be
consistent with current requirements.
The FHWA Response: A DSS inspection in this final rule requires a
determination that the dwelling meets the more stringent requirements
of this rule, local housing code, Federal agency regulations, or the
agency's regulations or written policy. For example, in instances in
which the funding agency has established requirements or standards for
DSS that are more stringent than the regulation's requirements, the
funding agencies' requirements would need to be met. Displacing
agencies will need to ensure that they understand which DSS
requirements are most stringent and apply them when making a DSS
inspection and determination.
FHWA appreciates that some agencies require that a DSS inspection
include inspection and determination protocol in addition to those
required by this rule. These additional considerations or requirements
may be established through specific agency policy, regulation, or
statute. FHWA, however, does not believe that requiring a certain
inspection criterion, in this case a criterion for lead-based paint, in
this final rule is necessary. FHWA believes that such inspections and
testing should best be done by providers who have the requested
training and tools to ensure effective lead-based paint testing. FHWA
believes that the regulation's requirement that the dwelling meets the
more stringent requirements of this rule, local housing code, Federal
agency regulation or the agency's regulations or written policy,
ensures that each Federal funding agency and its recipients will be
aware of and use the required criteria that ensure a dwelling is DSS.
Funding agencies may determine that additional guidance or
requirements, which require additional considerations or standards be
met when making DSS determinations, are necessary for their program.
As a result of this analysis, no additional change was made in the
final rule.
Section 24.205(c)(2)(II)(C) Relocation Assistance Advisory Services;
Services To Be Provided--Comparable Inspection
One commenter understands the proposed changes to allow an agency
to forego the required DSS inspection. One commenter felt that the
requirement for the agency to inspect a comparable dwelling prior to
using it in any eligibility determination is overly burdensome to the
agency. One commenter advised that the agency currently relies on an
outside visual inspection and review of MLS listing information when
selecting comparable replacement housing. This commenter has the belief
that most displaced persons do not choose the comparable housing made
available to them, and when they do select a replacement dwelling, the
agency requires the dwelling to pass an extensive DSS inspection prior
to occupancy and a replacement housing payment being made. One
commenter stated if agencies do not inspect comparable replacement
units, the rule should specify that the maximum replacement housing
payment must be recalculated if the unit upon which it was based is
later found to not be DSS. Two commenters were uncertain if the new
language regarding inspection of the dwellings used in the comparable
replacement housing determination means that all the comparable
dwellings must be inspected, or if only the selected comparable
dwelling must be inspected. One of these commenters requested guidance
on what would be an acceptable reason for not being able to walk
through and physically inspect the interior and exterior of comparable
dwellings.
FHWA Response: Prior to requiring a residential occupant to move
from their dwelling, an agency must make at least one DSS comparable
replacement dwelling available to them. This final rule at Sec.
24.205(c)(2)(ii)(C) continues to require that where feasible,
comparable housing should be inspected prior to being made available. A
walkthrough and physical inspection of the interior and exterior of the
displaced person's replacement dwelling also continues to be required
to ensure that the replacement dwelling is DSS prior to a payment being
provided to the displaced person. The requirement for a physical
inspection of the replacement dwelling is unchanged in this final rule.
FHWA also believes that given the importance of ensuring displaced
persons are treated fairly, consistently, and equitably, so they will
not suffer disproportionate injuries as a result of
[[Page 36932]]
projects designed for the benefit of the public as a whole, an agency
should develop policies that limit or prohibit the use of uninspected
comparable dwellings. As a result of this analysis, FHWA has
reorganized the appendix A sections of both Sec. 24.205(c)(2)(ii)(C)
and Sec. 24.403(a)(1) to more clearly relate to the relevant
regulation section requirements and for purposes of organizational
clarity.
As a result of this analysis, no additional change was made in the
final rule.
Section 24.205(c)(2)(ii)(C), Relocation Advisory Assistance Services--
Notification Requirements When DSS Inspection of Comparable Replacement
Housing Is Not Performed
One commenter advised that the notice requirement may suggest the
agency is not providing all relocation services to the displaced
person. One commenter suggested that providing a written justification
of why a DSS inspection was not done for a comparable dwelling before
determination of the RHP should not be a requirement in the final rule.
This commenter felt that the agency should be allowed to provide an
alternative justification in the RHP calculation and package that is
eventually presented to the displaced person.
FHWA Response: The NPRM proposal required that in unusual or
extraordinary circumstances when a physical inspection of a comparable
dwelling is not possible, the agency is required to provide the
displaced person written justification. FHWA does not believe that
acknowledging that a comparable dwelling was not physically inspected
in unusual or extraordinary circumstances and requiring a written
notice in these instances will limit required assistance and services
to those displaced. FHWA notes that the required written notice must be
provided to a displaced person as soon as possible but not later than
the notice of relocation eligibility, Sec. 24.203(b). FHWA also notes
that the primary question here is typically whether the interior of the
comparable dwelling was physically walked through and inspected.
FHWA understands that not all comparable dwellings may be available
for physical inspection for a variety of practical reasons but believes
agencies must balance that against the critical requirement that a
comparable dwelling must be DSS in order to be deemed made available.
FHWA believes that a walk through and physical inspection of the
interior and exterior are the only realistic and reliable ways an
agency can ensure that it has met the requirements to ensure a
comparable replacement dwelling is DSS. Therefore, it is important to
emphasize that instances in which a physical walk through and
inspection of a comparable dwelling is not possible, should be the
exception and not the normal course of business. When possible,
agencies should consider removing uninspected comparable dwellings from
consideration. Nothing in this rule prohibits agencies from
establishing additional policies or requirements for physical
inspection of comparable dwellings.
In addition, an agency should provide clear direction and policy or
requirements on how to document and communicate why an inspection was
not made both to the displaced person and in the agency's records.
Should the selected comparable dwelling later be found to not be DSS
then the agency's policies and procedures must ensure that a displaced
person's eligibility determination will be recalculated. If the agency
does not recalculate the eligibility in these instances, FHWA does not
believe that the requirement to ensure that a decent, safe and sanitary
dwelling be made available are met.
As a result of this analysis, FHWA has reorganized the appendix A
sections of both Sec. 24.205(c)(2)(ii)(C) and Sec. 24.403(a)(1) and
added language to more clearly indicate the relevant regulation section
requirements and for purposes of organizational clarity.
As a result of this analysis, no additional change was made in the
final rule.
Section 24.205(c)(2)(ii)(D)--Relocation Planning, Advisory Services,
and Coordination; Appendix A
One comment was received regarding language in the NPRM encouraging
agencies ``. . . whenever possible . . .'' to provide minority persons
who reside in communities of minority concentration with opportunities
to relocate to DSS housing in areas other than those of minority
concentration. The commenter believes these preferences should be up to
the persons being relocated. Further, they state that there is a
likelihood that this will lead to non-uniform treatment of displaced
persons. The commenter further raised concerns that the requirement to
document efforts to meet the goals of this section would be
administratively burdensome.
FHWA Response: FHWA believes the needs and preferences of all
displaced persons are determining factors in developing a relocation
assistance eligibility comparable determination. The role of the
acquiring agency is to give displaced persons reasonable opportunities
to relocate to comparable housing without mandating or limiting areas
of that housing. However, it is the displaced person's right to make
the final replacement dwelling selection for themselves. FHWA notes
that the goals and statements in this section of the current final rule
have been consistently stated in preceding final rules for almost 40
years. During that time, FHWA received little indication that this
section's goals and permissive language were unclear or impractical.
FHWA reviewed the statutory language in the Uniform Act at Section
4621(b)(2) and (3), Declaration of Findings and Policy. The primary
purpose of the relocation assistance is described as ensuring that
displaced persons do not suffer disproportionate injuries as a result
of being displaced for programs or projects undertaken by a Federal
agency or with Federal financial assistance. It further states that
``the improvement of housing conditions of economically disadvantaged
persons under this subchapter shall be undertaken, to the maximum
extent feasible . . .''
FHWA revised appendix A to more clearly indicate that agencies
should continue to, where practical and feasible, provide those
displaced persons who live in areas of minority concentration
opportunities to improve their housing conditions and living
situations, and that agencies should maintain adequate written
documentation of efforts made to locate such comparable and replacement
housing.
Section 24.208(c) Aliens Not Lawfully Present in the United States
FHWA received five comments on this section's proposed changes. One
commenter expressed concerns that the NPRM's proposed changes might
involve the collection of sensitive personally identifiable information
and would require implementing new processes to ensure the information
is appropriately safeguarded. One commenter asked that the word
``alien'' not be used as it may be perceived to be offensive. One
commenter felt that the proposed changes to the verification process
would be administratively burdensome and suggested simply retaining the
requirement for verification on a case-by-case basis. One commenter
noted that they viewed the proposed change as creating a new
requirement. One commenter noted that they run an essentially parallel
system, which results in a certification from their recipients
verifying citizenship
[[Page 36933]]
and immigration status, and believes it meets the requirements of this
section.
FHWA Response: FHWA appreciates the comments, perspectives, and
concerns expressed. FHWA believes that it is important to note that
this section of the regulation continues to require that displaced
persons provide a certification that they are a citizen or national of
the United States, or an alien lawfully present in the United States.
The statutory requirement found at 42 U.S.C. 4605 was added to the
regulations by a final rule in 1999 (64 FR 7127, February 12, 1999).
Should the agency deem an alien's certification to not be credible or
invalid, the regulation continues to require that the agency take the
additional step of verifying the person's United States citizenship
status. The primary change in this final rule is to the method for
verification. The final rule requires agencies to utilize the United
States Citizenship and Immigration Services (USCIS) Systematic Alien
Verification System (SAVE) rather than the previous requirement to
contact the local Bureau of Citizenship and Immigration Services office
for verification. Agency processes for obtaining and handling personal
information as part of their Uniform Act programs should be secure and
collect the fact-specific information required for verification.
FHWA acknowledges a need to ensure that in verifying citizenship
status, a displaced person should be afforded deference and
consideration to ensure that derogatory or otherwise insensitive
language is not used. The use of the term ``alien'' as it relates to
this rule can be found in statute in Public Law 105-117, November 21,
1997. FHWA considered whether other terms might reasonably be used.
FHWA notes that the term ``alien not lawfully present in the United
States'' appears in the Uniform Act, 42 U.S.C. 4605(a). Moreover, the
term ``alien'' has a specific legal meaning and is used in several
other Federal agency regulations and statutes describing citizenship
status for those who live in the United States. (See Title 8, U.S.C.
and 8 CFR Chapter I). Consequently, FHWA has not made any changes in
this final rule.
Subpart D--Payments for Moving and Related Expenses
Section 24.301(b)(2) Moves From a Dwelling, Self-Moves; Section
24.301(c)(2) Moves From a Mobile Home, Self-Moves: Use of Commercial
Moving Bids or Agency Staff Prepared Estimates for Self-Moves
FHWA received responses from eight commenters regarding the
proposed alternative reimbursement methodology for residential self-
moves. The NPRM included a request for comments on adding an option for
residential self-moves based on either the amount of the lower of two
commercial moving bids, or an estimate prepared by a qualified agency
staff person. FHWA also asked for comments on whether a commercial
mover's overhead and profit should be subtracted from a self-move
payment eligibility determination or if the self-move payment should be
based on the full amount of the lowest bid. FHWA received a wide
variety of suggestions in response.
One commenter stated that reducing the administrative burden on the
displaced person is a positive thing and that payment to the displaced
person for a residential self-move should be based on either the lower
of two moving bids, or the average of the two bids. Another commenter
was concerned that allowing a residential self-move payment based on
the lower of two bids from a commercial mover would result in an
increase in administrative burden to agency personnel. The commenter
believes that it may be preferable to only add or adopt the use of a
moving cost finding for nonresidential moves as described in the
preamble that allows a qualified agency staff person to prepare
estimates.
Five commenters believe that determining a moving company's
overhead costs would be difficult and impractical. One commenter
suggested that any adjustment to the bid amount should be a flat
percentage deduction, and that overhead in this rule should only
include administrative expenses and office space costs, while another
suggested that 20 percent of the lowest bid amount is a fair amount to
deduct for a commercial mover's overhead. This same commenter stated
that this percentage is used in their State and is based on their poll
of several commercial movers.
One commenter believes that the administrative costs should not
include costs of vehicle, gas, labor, etc., used during a move. The
commenter reasoned that the costs for vehicle, gas, and labor are costs
that are also borne by the displaced person as part of a self-move and
should be compensated.
One commenter asked whether FHWA would monitor the hourly fees
charged to a consumer when using self-moves. The commenter further
wanted to know if a person can submit a Freedom of Information Act
request to FHWA for movers' rates. The commenter also wanted to know
what the displaced person's eligibility for reimbursement would be if
the rates are not within the limit scales of the U.S. Department of
Labor's Consumer Price Index.
One commenter did not support using commercial moving bids to
determine eligibility for reimbursement of a residential displaced
person's self-move. Another commenter believes that adding an
additional residential self-move payment option may have drawbacks and
would add additional complexity to each residential relocation. This
same commenter expressed the belief that residential displaced persons
may be less able than nonresidential displaced persons to determine
whether a self-move would be advantageous.
One commenter noted, that in their experience, reimbursement based
on actual costs is not a viable option for a residential self-move,
because it is often very difficult to obtain actual cost receipts from
the displaced person, or alternatively for a displaced person to obtain
information and documentation from commercial movers, which would be
needed to calculate reimbursement eligibility.
FHWA Response: FHWA appreciates the supportive and constructive
comments received and program insight offered. FHWA believes the
addition of a self-move option is beneficial in that it provides more
choices to the displaced person. FHWA believes it is the responsibility
of the agency to provide adequate advisory services to ensure that the
displaced person clearly understands the moving options available and
makes a selection that best meets their needs. FHWA noted both the
support and concerns raised about use of commercial bids to determine
reimbursement amount eligibility for residential self-moves and about
whether and how to adjust the amount of the lowest commercial bid to
account for overhead. FHWA notes that overhead costs across the Nation
and in individual markets vary based on a number of factors. FHWA does
not believe that establishing a national and Federal Government-wide
flat percentage to account for overhead in this final rule is
practical. For these reasons, the final rule will not require a
deduction from a move cost estimate to account for overhead. FHWA
considered whether allowing reimbursement on this basis might lead to
waste, fraud, or abuse and believes that proper funding agency
oversight and stewardship will ensure that this provision is
appropriately and effectively administered. Federal funding agencies
that believe more financial control is needed may develop policies and
procedures that include the
[[Page 36934]]
deduction of an amount from the commercial bids which represents
overhead and profit but are not required to do so.
The current regulation allows a qualified staff person to prepare
the moving cost payment estimate for a nonresidential self-move;
therefore, allowing similar method to establish reimbursement
eligibility for a residential move should not be burdensome. FHWA also
notes that the self-move reimbursement for labor based on hourly rates,
etc. is not new to this rulemaking. The Federal funding agencies may
also utilize policies and guidance on how best to administer this
requirement. For example, in its role as a Federal funding agency, FHWA
provides stewardship and oversight by requiring approved manuals that
describe approved processes its grantees follow in determining actual
reasonable and necessary reimbursement. FHWA received little or no
feedback over the years that would lead FHWA to conclude that this
additional residential move cost reimbursement option may create waste,
fraud, or abuse.
FHWA revised the final rule by making similar revisions in Sec.
24.301(b)(2)(ii) through (iv) (moves from a dwelling) and (c)(2)(ii)
through (iv) (moves from a mobile home). Section 24.301(b)(2)(ii) and
(c)(2)(ii) add criteria needed to determine and document self-move
reimbursement eligibilities. Section 24.301(b)(2)(iii) and (c)(2)(iii)
adds new flexibility to allow use of a move cost estimate prepared by
qualified agency staff. Section 24.301(b)(2)(iv) and (c)(2)(iv) adds
new flexibility to base residential self-move cost reimbursement
eligibility on the lower of two commercial moving cost bids.
Section 24.301(d) Moves From a Business, Farm, or Nonprofit
Organization--Moving Cost Finding and Nonresidential Moving Cost
Schedule
FHWA received three comments on whether a moving cost finding for
nonresidential moves should be reinstated, or if a nonresidential
moving cost schedule should be developed and included in the final
rule. Both methods were proposed to streamline the process for
determining moving cost benefit amounts for low-cost, uncomplicated
nonresidential moves. One commenter was opposed to a Fixed Moving Cost
Schedule for Nonresidential Moves because there are too many variables
but supported adding a nonresidential fixed moving cost schedule for
use when developing a benefit amount for personal property located in
storage facilities. Another commenter concurred with the proposal to
adopt the use of a moving cost finding for businesses and to consider
development of a nonresidential moving cost schedule for uncomplicated
moves because these methods would provide streamlined approaches that
will reduce the burden for both the nonresidential displaced person and
the agency. A final commenter supported development of a tool similar
to the Fixed Residential Moving Cost Schedule and preferred any type of
schedule to take jurisdictional cost differences into account. This
same commenter believed that the proposed schedule would reduce
administrative burden and expedite the payment of moving expenses to
displaced businesses and use of such a tool would eliminate the time-
consuming tasks of soliciting at least two commercial moving bids or
seeking backup documentation from displaced businesses to support their
reimbursement requests.
FHWA Response: FHWA appreciates receiving the comments regarding
the proposal to reinstate a nonresidential move cost finding and to
develop a nonresidential moving cost schedule. FHWA recently completed
a research project examining possible nonresidential moving cost
estimation and reimbursement methods in use by a study group of nine
State DOTs and four Federal agencies. The comments received in the NPRM
are in line with the findings in the study's final report, which will
be published shortly.
FHWA agrees that including additional streamlining methods for
developing moving cost eligibility determinations can provide
additional options and reduce administrative burden to both displaced
persons and agencies. However, FHWA does not have enough supportive
materials and data to institute a fixed cost schedule for
nonresidential moves in this final rule. FHWA will continue to explore
potential options and may consider at a later date the possibility of
adding a nonresidential moving cost schedule option to a future
rulemaking.
FHWA believes that for nonresidential moves, a move cost finding
would only be appropriate for moves of personal property which are
uncomplicated and therefore do not require disconnect and reconnection,
and for items which do not require specialty movers, such as a rigger,
or equipment to provide specialty moving services. FHWA believes that
it is
[…truncated; see source link]Indexed from Federal Register on May 3, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.