Environmental Impact and Related Procedures |
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Victor M. Mendez
Federal Highway Administration
Peter Rogoff
Federal Transit Administration
October 1, 2012
[Federal Register Volume 77, Number 190 (Monday, October 1, 2012)]
[Proposed Rules]
[Pages 59875-59878]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23916]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 771
FHWA RIN 2125-AF46
Federal Transit Administration
49 CFR Part 622
[Docket No. FHWA-2012-0092]
FTA RIN 2132-AB04
Environmental Impact and Related Procedures
AGENCY: Federal Highway Administration, Federal Transit Administration,
DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: This NPRM provides interested parties with the opportunity to
comment on proposed changes to the Federal Highway Administration
(FHWA) and the Federal Transit Administration (FTA) joint procedures
that implement the National Environmental Policy Act (NEPA). The
revisions are prompted by enactment of Public Law 112-141, 126 Stat.
405, the Moving Ahead for Progress in the 21st Century Act (MAP-21).
This NPRM proposes to modify an existing categorical exclusion (CE) for
emergency repair projects under 23 U.S.C. 125 to include emergency
projects as described in Section 1315 of MAP-21. This NPRM also
requests comments on whether additional activities ought to be
expressly included in the CE, consistent with the principles underlying
emergency projects and sound transportation asset management. The FHWA
and the FTA seek comments on the proposals contained in this notice.
DATES: Comments must be received on or before November 30, 2012.
ADDRESSES: To ensure that you do not duplicate your docket submissions,
please submit them by only one of the following means:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001;
Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Ave. SE., between 9 a.m. 5 p.m., Monday through Friday,
except Federal holidays. The telephone number is (202) 366-9329;
Instructions: You must include the agency name and docket
number DOT-FHWA- or the Regulatory Identification Number (RIN) for the
rulemaking at the beginning of your comments. All comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided.
FOR FURTHER INFORMATION CONTACT: For the Federal Highway
Administration: Adam Alexander, Office of Project Delivery and
Environmental Review, HEPE-10, (202) 366-1473, or Jomar Maldonado,
Office of the Chief Counsel, (202) 366-1373, Federal Highway
Administration, 1200 New Jersey Ave. SE., Washington, DC 20590-0001.
For the Federal Transit Administration: Megan Blum at (202) 366-0463,
Office of Planning and Environment (TPE); or Dana Nifosi at (202) 366-
4011, Office of Chief Counsel (TCC), Federal Transit Administration.
Office hours are from 8 a.m. to 4:30 p.m. e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
On July 6, 2012, President Obama signed into law MAP-21, which
contains new requirements that the FHWA and the FTA must meet in
complying with NEPA (42 U.S.C. 4321-4347). One of these requirements,
in Section 1315(a), is that the FHWA and the FTA, acting on behalf of
the Secretary, must publish an NPRM to categorically exclude the repair
or reconstruction of any road, highway, or bridge damaged by an
emergency that is either (1) declared by the Governor of the State and
concurred in by the Secretary of Transportation; or (2) declared by the
President under the Stafford Act if such repair or reconstruction
activity is in the same location with the same capacity, dimensions,
and design as the original road, highway, or bridge as before the
declaration; and is commenced within a 2-year period beginning on the
date of the declaration. Currently, 23 CFR 771.117(c)(9) categorically
excludes emergency repairs made during and immediately following a
disaster to restore essential traffic, minimize the extent of the
damage, or to protect the remaining facilities if the work is eligible
under 23 U.S.C. 125.
In addition, pursuant to Section 1315(b) of MAP-21, the FHWA and
the FTA must ensure that the rulemaking helps to conserve Federal
resources and protects public safety and health by providing for
periodic evaluations to determine whether reasonable alternatives exist
to roads, highways, or bridges that repeatedly require repair and
reconstruction activities. ``Reasonable alternatives'' is defined in
Section 1315(b)(2) as including actions that could reduce the need for
Federal funds to be expended on such repair and reconstruction
activities, better protect public safety and health and the
environment, and meet transportation needs as described in relevant and
applicable Federal, State, local, and tribal plans. There are no
equivalent requirements in the FHWA/FTA environmental regulation to
perform periodic review or a consideration of alternatives as outlined
in Section 1315(b).
[[Page 59876]]
General Discussion of the Proposals
The FHWA and the FTA propose to address Section 1315(a) within 23
CFR Part 771 by revising Section 771.117(c)(9) by changing the heading
for paragraph (9) to ``Emergencies'' and adding two new provisions
under paragraph (9) describing the covered actions. New paragraph
(9)(i) would include all emergency repairs under 23 U.S.C. 125, which
is the same language used in the CE for emergency repairs under the
existing Section 771.117(c)(9). New paragraph (9)(ii) would add the
actions described in MAP-21 Section 1315(a), which include emergency
repair or reconstruction activities for any road, highway, or bridge
that is in operation or under construction when damaged by an emergency
declared by the Governor of the State and concurred in by the
Secretary, or for a disaster or emergency declared by the President
under the Robert T. Stafford Act (42 U.S.C. 5121), subject to the
conditions specified in the remainder of the proposed section
771.117(c)(9)(ii). Such conditions are that the repair or
reconstruction under section 771.117(c)(9)(ii) must be in the same
location with the same capacity, dimensions, and design as the original
road, highway, or bridge as before the emergency declaration, and the
work must be commenced within a 2-year period beginning on the date of
the emergency declaration.
The FHWA and the FTA also seek comments on whether language should
be added to the new CE to make it apply to certain types of activities
that, in some cases, might be considered outside the scope of both the
current emergency CE in Section 771.117(c)(9) and the language of
Section 1315(a). The FHWA and the FTA are interested in comments that
identify additional activities that would be important to include in an
emergency repair project that do not typically involve significant
environmental impacts. Specifically, the FHWA and the FTA seek comments
on whether the emergency activities categorically excluded under the
revised CE also should include: (1) Construction of engineering and
design changes to a damaged facility to meet current design standards;
(2) repair and reconstruction of adjacent transportation facilities
within the right-of-way damaged by the emergency (such as bike paths or
ancillary structures); (3) construction of betterments to the damaged
facilities beyond those eligible under 23 U.S.C 125; (4) construction
of engineering and design changes to a damaged facility for the purpose
of seismic retrofitting; (5) construction of engineering and design
changes to a damaged facility to deal with future extreme weather
events and sea level rise; and (6) construction of other engineering
and design changes to a damaged facility to address concerns such as
safety and environmental impacts. The agencies also seek comment on
whether the CE should include actions to repair, reconstruct, or
replace a facility that has experienced catastrophic failure regardless
of cause. A catastrophic failure is considered to be the sudden and
complete failure of a major element or segment of the facility that
causes a devastating impact on transportation services. The FHWA and
the FTA seek comments from grantees about their experiences with these
kinds of projects and activities described in this paragraph and the
environmental impacts of such projects.
The requirements in Section 1315(b) of MAP-21 will be addressed
through questions presented in this NPRM and then more specifically
through rulemaking for other relevant sections of MAP-21. The MAP-21
creates requirements for both the FHWA and the FTA to develop asset
management and other programs. For the FHWA, MAP-21 Section 1106
creates a new requirement for States to develop risk-based asset
management plans pursuant to 23 U.S.C. 119. The FHWA proposes to
address the requirements of Section 1315(b) in the implementing
regulations for MAP-21 Section 1106. The FHWA will also consider
comments received in response to this NPRM in upcoming rulemaking
proceedings to address other MAP-21 requirements related to asset
management and the emergency relief program.
The FTA proposes to address the requirements of Section 1315(b)
through rulemaking to implement other MAP-21 provisions for transit
projects. Including proposed regulations to address 1315(b) in other
FHWA and FTA rulemakings would incorporate the periodic review and
evaluation of alternatives in a program management process, which the
FHWA and the FTA believe is the appropriate approach to achieve the
most effective results.
The FHWA and the FTA will use this rulemaking to obtain input on
how to best approach the periodic evaluations required under Section
1315(b). With respect to Section 1315(b) of MAP-21, the FHWA and the
FTA specifically seek comment on the following questions regarding
approaches to the requirement for periodic evaluations to determine
whether reasonable alternatives exist to roads, highways, or bridges
that repeatedly require repair and reconstruction activities:
(1) Is it appropriate to incorporate the Section 1315(b) review
into any periodic evaluation of transportation assets conducted by the
State for its risk-based asset management plan developed pursuant to 23
U.S.C. 119, or into similar transit programs? Are there other periodic
reviews for either highways or transit into which the Section 1315(b)
review could be incorporated?
(2) How frequently should the evaluations be conducted? Should a
time frame be specified in the regulation, or remain at the discretion
of the State or transit agency?
(3) How should the evaluations consider the risk of recurring
damage and the cost of future repair under both current and future
environmental conditions?
(4) What factors ought to be considered in the evaluations to
assess the risk of recurring damage, the protection of public safety
and health and the environment, and the cost of future repairs?
Section-by-Section Discussion of the Proposals
This proposal would amend 23 CFR 771.117(c)(9) by changing the
heading for paragraph (9) to ``Emergencies'' and adding two new
provisions under paragraph (9) describing the covered actions. The new
paragraph (9)(i) would include all emergency repairs under 23 U.S.C.
125, which is the same language used in the CE for emergency repairs
under the existing Section 771.117(c)(9). The new subparagraph (9)(ii)
would add the new covered actions described in MAP-21 Section 1315(a)
by adding emergency repair or reconstruction activities for any road,
highway, or bridge that is in operation or under construction when
damaged by an emergency declared by the Governor of the State and
concurred in by the Secretary, or for a disaster or emergency declared
by the President under the Robert T. Stafford Act (42 U.S.C. 5121),
subject to the conditions specified in the subsection. The conditions
would appear in two subparagraphs under the proposed 23 CFR
771.117(c)(9)(ii), and would require the repair or reconstruction under
the CE be in the same location with the same capacity, dimensions, and
design as the original road, highway, or bridge as before the emergency
declaration, and the work must be commenced within a 2-year period
beginning on the date of the emergency declaration. These conditions
are required under Section 1315(a).
[[Page 59877]]
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments, the
FHWA and the FTA will also continue to file relevant information in the
docket as it becomes available after the comment period closing date,
and interested persons should continue to examine the docket for new
material. A final rule may be published at any time after close of the
comment period.
Executive Orders 12866 and 13563 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). The FHWA
and the FTA have determined preliminarily that this action would not be
a significant regulatory action under section 3(f) of Executive Order
12866 nor would it be significant within the meaning of Department of
Transportation regulatory policies and procedures (44 FR 11032).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. It is anticipated that the economic impact of
this rulemaking would be minimal. The changes that this rule proposes
are requirements mandated by MAP-21 intended to streamline
environmental review by making changes in the agencies' environmental
review procedures. The activities this NPRM proposes to add to section
771.117(c)(9), which are described in Section 1315(a), are inherently
limited in their potential to cause significant environmental impacts.
These proposed changes would not adversely affect, in any material way,
any sector of the economy. In addition, these changes would not
interfere with any action taken or planned by another agency and would
not materially alter the budgetary impact of any entitlements, grants,
user fees, or loan programs. Consequently, a full regulatory evaluation
is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 60l-612), the FHWA and the FTA have evaluated the effects of
this proposed rule on small entities and anticipate that this action
would not have a significant economic impact on a substantial number of
small entities. The proposed revision could streamline environmental
review and thus would be less than any current impact on small business
entities.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48,
March 22, 1995). This proposed rule will not result in the expenditure
by State, local, and tribal governments, in the aggregate, or by the
private sector, of $148.1 million or more in any one year (2 U.S.C.
1532). Further, in compliance with the Unfunded Mandates Reform Act of
1995, the agencies will evaluate any regulatory action that might be
proposed in subsequent stages of the proceeding to assess the effects
on State, local, and tribal governments and the private sector.
Executive Order 13132 (Federalism Assessment)
Executive Order 13132 requires agencies to assure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This proposed action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, and the FHWA and the FTA have determined that this
proposed action would not have sufficient federalism implications to
warrant the preparation of a federalism assessment. The FHWA and the
FTA have also determined that this proposed action would not preempt
any State law or State regulation or affect the States' ability to
discharge traditional State governmental functions. We invite State and
local governments with an interest in this rulemaking to comment on the
effect that adoption of specific proposals may have on State or local
governments.
Executive Order 13175 (Tribal Consultation)
The FHWA and FTA have analyzed this action under Executive Order
13175, dated November 6, 2000, and believe that it would not have
substantial direct effects on one or more Indian tribes; would not
impose substantial direct compliance costs on Indian tribal
governments; and would not preempt tribal law. Therefore, a tribal
summary impact statement is not required.
Executive Order 13211 (Energy Effects)
The FHWA and the FTA have analyzed this action under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use. We have determined that it is not
a significant energy action under that order because it is not likely
to have a significant adverse effect on the supply, distribution, or
use of energy. Therefore, a Statement of Energy Effects under Executive
Order 13211 is not required.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities apply
to this program. Accordingly, the FHWA and the FTA solicit comments on
this issue.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The FHWA and the FTA have
determined that this proposal does not contain collection of
information requirements for the purposes of the PRA.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
The FHWA and FTA have analyzed this action under Executive Order
13045, Protection of Children from Environmental Health Risks and
Safety Risks. The FHWA and the FTA certify that this action would not
concern an environmental risk to health or safety
[[Page 59878]]
that may disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
The FHWA and the FTA do not anticipate that this action would
affect a taking of private property or otherwise have taking
implications under Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
National Environmental Policy Act
Agencies are required to adopt implementing procedures for NEPA
that establish specific criteria for, and identification of, three
classes of actions: Those that normally require preparation of an
environmental impact statement; those that normally require preparation
of an environmental assessment; and those that are categorically
excluded from further NEPA review (40 CFR 1507.3(b)). The Council on
Environmental Quality (CEQ) regulations do not direct agencies to
prepare a NEPA analysis or document before establishing agency
procedures (such as this regulation) that supplement the CEQ
regulations for implementing NEPA. The CEs are one part of those agency
procedures, and therefore establishing CEs does not require preparation
of a NEPA analysis or document. Agency NEPA procedures are generally
procedural guidance to assist agencies in the fulfillment of agency
responsibilities under NEPA, but are not the agency's final
determination of what level of NEPA analysis is required for a
particular proposed action. The requirements for establishing agency
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The
determination that establishing CEs does not require NEPA analysis and
documentation was upheld in Heartwood, Inc. v. U.S. Forest Service, 73
F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55
(7th Cir. 2000). Finally, this action is intended to streamline the
environmental process for reviewing proposed highway and transit
projects, including projects that will be environmentally beneficial.
It is consistent with, and promotes the purposes of, Executive Order
13604 (Improving Performance of Federal Permitting and Review of
Infrastructure Projects).
Regulation Identification Number
A RIN is assigned to each regulatory action listed in the Unified
Agenda of Federal Regulations. The Regulatory Information Service
Center publishes the Unified Agenda in April and October of each year.
The RIN contained in the heading of this document can be used to cross
reference this action with the Unified Agenda.
List of Subjects
49 CFR Part 622
Environmental impact statements, Energy conservation, Grant
programs--transportation, Public transit, Recreation areas, Reporting
and recordkeeping requirements.
23 CFR Part 771
Environmental impact statements, Environmental protection, Grant
programs--transportation, Highways and roads, Historic preservation,
Public lands, Recreation areas, Reporting and recordkeeping
requirements.
In consideration of the foregoing, the FHWA and the FTA propose to
amend title 49, Code of Federal Regulations part 622 and title 23, Code
of Federal Regulations part 771 as follows:
PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
1. The authority citation for part 622 is revised to read as
follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303, 5301(a) and
(e), 5323(b), and 5324; 23 U.S.C. 139 and 326; Pub. L. 109-59, 119
Stat. 1144, sections 6002 and 6010; 40 CFR parts 1500-1508; 49 CFR
1.51; and Pub. L. 112-141, 126 Stat. 405, sections 1315 and 20017.
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
2. The authority citation for part 771 is revised to read as
follows:
Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138,
139, 315, 325, 326, and 327; 49 U.S.C. 303, 5301(a) and (e),
5323(b), and 5324; 40 CFR Parts 1500-1508; 49 CFR 1.48(b) and 1.51;
Pub. L. 109-59, 119 Stat. 1144, sections 6002 and 6010; Pub. L. 112-
141, 126 Stat. 405, sections 1106 and 1315.
3. Amend Sec. 771.117 by revising paragraph (c)(9) to read as
follows:
Sec. 771.117 Categorical exclusions.
(c)(9) Emergencies
(i) Emergency repairs under 23 U.S.C. 125.
(ii) The repair or reconstruction of any road, highway, or bridge
that is in operation or under construction when damaged by an emergency
declared by the Governor of the State and concurred in by the
Secretary, or for a disaster or emergency declared by the President
pursuant to the Robert T. Stafford Act (42 U.S.C. 5121) if the repair
or reconstruction activity is:
(A) In the same location with the same capacity, dimensions, and
design as the original road, highway, or bridge as before the
declaration, and
(B) Commenced within a 2-year period beginning on the date of the
declaration.
* * * * *
Issued on: September 21, 2012.
The date of issuance is the signature date.
Victor M. Mendez,
Administrator, Federal Highway Administrator.
Peter Rogoff,
Administrator, Federal Transit Administration.
[FR Doc. 2012-23916 Filed 9-28-12; 8:45 am]
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