[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR710.603]

[Page 347-348]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 710--RIGHT-OF-WAY AND REAL ESTATE--Table of Contents
 
                 Subpart F--Federal Assistance Programs
 
Sec. 710.603  Direct Federal acquisition.

    (a) The provisions of this section apply to any land and or 
improvements needed in connection with any project on the Interstate 
System, defense access roads, public lands highways, park roads, 
parkways, Indian reservation roads, and projects performed by the FHWA 
in cooperation with Federal and State agencies. For projects on the 
Interstate System and defense access roads, the provisions of this part 
are applicable only where the State is unable to acquire the required 
right-of-way or is unable to obtain possession with sufficient 
promptness.
    (b) To enable the FHWA to make the necessary finding to proceed with 
the acquisition of the rights-of-way, the STDs written application for 
Federal acquisition shall include:
    (1) Justification for the Federal acquisition of the lands or 
interests in lands;
    (2) The date the FHWA authorized the STD to commence right-of-way 
acquisition, the date of the project agreement and a statement that the 
agreement contains the provisions required by 25 U.S.C. 111;
    (3) The necessity for acquisition of the particular lands under 
request;
    (4) A statement of the specific interests in lands to be acquired, 
including the proposed treatment of control of access;
    (5) The STDs intentions with respect to the acquisition, 
subordination, or exclusion of outstanding interests, such as minerals 
and utility easements, in connection with the proposed acquisition;
    (6) A statement on compliance with the provisions of part 771 of 
this chapter;
    (7) Adequate legal descriptions, plats, appraisals, and title data;
    (8) An outline of the negotiations which have been conducted by the 
STD with landowners;
    (9) An agreement that the STD will pay its pro rata share of costs 
incurred in the acquisition of, or the attempt to acquire rights-of-way; 
and
    (10) A statement that assures compliance with the applicable 
provisions of the Uniform Act. (42 U.S.C. 4601, et seq.)
    (c) If the landowner tenders a right-of-entry or other right of 
possession document required by State law any time before the FHWA makes 
a determination that the STD is unable to acquire the rights-of-way with 
sufficient promptness, the STD is legally obligated to accept such 
tender and the FHWA may not proceed with Federal acquisition.
    (d) If the STD obtains title to a parcel prior to the filing of the 
Declaration of Taking, it shall notify the FHWA and immediately furnish 
the appropriate U.S. Attorney with a disclaimer together with a request 
that the action against the landowner be dismissed (ex parte) from the 
proceeding and the estimated just compensation deposited into the 
registry of the court for the affected parcel be withdrawn after the 
appropriate motions are approved by the court.
    (e) When the United States obtains a court order granting possession 
of the real property, the FHWA shall authorize the STD to take over 
supervision of the property. The authorization shall

[[Page 348]]

include, but need not be limited to, the following:
    (1) The right to take possession of unoccupied properties;
    (2) The right to give 90 days notice to owners to vacate occupied 
properties and the right to take possession of such properties when 
vacated;
    (3) The right to permit continued occupancy of a property until it 
is required for construction and, in those instances where such 
occupancy is to be for a substantial period of time, the right to enter 
into rental agreements, as appropriate, to protect the public interest;
    (4) The right to request assistance from the U.S. Attorney in 
obtaining physical possession where an owner declines to comply with the 
court order of possession;
    (5) The right to clear improvements and other obstructions;
    (6) Instructions that the U.S. Attorney be notified prior to actual 
clearing, so as to afford him an opportunity to view the lands and 
improvements, to obtain appropriate photographs, and to secure 
appraisals in connection with the preparation of the case for trial;
    (7) The requirement for appropriate credits to the United States for 
any net salvage or net rentals obtained by the State, as in the case of 
right-of-way acquired by the State for Federal-aid projects; and
    (8) Instructions that the authority granted to the STD is not 
intended to preclude the U.S. Attorney from taking action, before the 
STD has made arrangements for removal, to reach a settlement with the 
former owner which would include provision for removal.
    (f) If the Federal Government initiates condemnation proceedings 
against the owner of real property in a Federal court and the final 
judgment is that the Federal agency cannot acquire the real property by 
condemnation, or the proceeding is abandoned, the court is required by 
law to award such a sum to the owner of the real property that in the 
opinion of the court provides reimbursement for the owner's reasonable 
costs, disbursements, and expenses, including reasonable attorney, 
appraisal, and engineering fees, actually incurred because of the 
condemnation proceedings.
    (g) As soon as practicable after the date of payment of the purchase 
price or the date of deposit in court of funds to satisfy the award of 
the compensation in a Federal condemnation, the FHWA shall reimburse the 
owner to the extent deemed fair and reasonable, the following costs:
    (1) Recording fees, transfer taxes, and similar expenses incidental 
to conveying such real property to the United States;
    (2) Penalty costs for prepayment of any preexisting recorded 
mortgage entered into in good faith encumbering such real property; and
    (3) The pro rata portion of real property taxes paid which are 
allocable to a period subsequent to the date of vesting title in the 
United States or the effective date of possession, whichever is the 
earlier.
    (h) The lands or interests in lands, acquired under this section, 
will be conveyed to the State or the appropriate political subdivision 
thereof, upon agreement by the STD, or said subdivision to:
    (1) Maintain control of access where applicable;
    (2) Accept title thereto;
    (3) Maintain the project constructed thereon;
    (4) Abide by any conditions which may set forth in the deed; and
    (5) Notify the FHWA at the appropriate time that all the conditions 
have been performed by the State.
    (i) The deed from the United States to the State, or to the 
appropriate political subdivision thereof, shall include the conditions 
required by 49 CFR part 21. The deed shall be recorded by the grantee in 
the appropriate land record office, and the FHWA shall be advised of the 
recording date.