Environmental Impact and Related Procedures |
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Peter Rogoff
Victor M. Mendez
Federal Transit Administration
Federal Highway Administration
February 7, 2013
[Federal Register Volume 78, Number 26 (Thursday, February 7, 2013)]
[Rules and Regulations]
[Pages 8964-8984]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02345]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 771
Federal Transit Administration
49 CFR Part 622
[Docket No. FTA-2011-0056]
RIN 2132-AB03
Environmental Impact and Related Procedures
AGENCY: Federal Transit Administration (FTA), Federal Highway
Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule makes revisions to the joint Federal Transit
Administration (FTA) and Federal Highway Administration (FHWA)
regulations that implement the National Environmental Policy Act
(NEPA). The revisions are aimed at streamlining the FTA environmental
process for transit projects, in response to the August 31, 2011,
Presidential Memorandum titled ``Speeding Infrastructure Development
through More Efficient and Effective Permitting and Environmental
Review.'' The revisions also respond to Executive Order 13563's
directive to periodically review existing regulations to determine if
they can be made more effective and/or less burdensome. The new
categorical exclusions (CEs) established by this rule, which affect
actions by FTA and FTA grant applicants, are intended to improve the
efficiency of the environmental review process by making available the
least intensive form of review for those actions that typically do not
have the potential for significant environmental effects, and,
therefore, do not merit additional analysis and documentation
associated with an environmental assessment or an environmental impact
statement.
DATES: Effective on February 7, 2013.
FOR FURTHER INFORMATION CONTACT: Megan Blum at (202) 366-0463, Terence
Plaskon at (202) 366-0442, Office of Planning and Environment (TPE); or
Christopher Van Wyk at (202) 366-1733, Office of Chief Counsel (TCC),
Federal Transit Administration, U.S. Department of Transportation, 1200
New Jersey Avenue SE., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Executive Summary
The Federal Transit Administration (FTA) and the Federal Highway
Administration (FHWA) published a Notice of Proposed Rulemaking (NPRM)
on March 15, 2012. In the NPRM, FTA proposed: (1) The creation of ten
new categorical exclusions (CEs) to be located in a newly proposed
section of the regulation at 23 CFR 771.118; (2) the expansion of
public involvement methods to include electronic means; (3) the
addition of language on early scoping into the regulations; (4) a
modification to the list of project types that normally result in the
preparation of an Environmental Impact Statement (EIS); and (5) the
inclusion of an FTA review role in contracting for Environmental
Assessment (EA) and EIS projects. The comment period closed on May 14,
2012.
Numerous organizations submitted substantive comments to FTA that
generally were positive in tone. Many comments requested clarification
of terms or phrases, and several comments requested modification of the
CE language and/or adding additional examples to the CEs found under
section 771.118(c). Other than comments on preamble terminology itself,
these comments were addressed by either providing the requested
clarifications or modifying the CE language or examples.
Some of the more substantial revisions made in response to comments
received on the proposed rule include: (1) The removal of an ``adverse
effect to historic properties'' condition from section 771.118(c)(3);
(2) the addition of ``operating assistance'' to section 771.118(c)(4);
(3) a distinction between bridge projects (i.e., section 771.118(d)(2)
covers projects involving new construction or reconstruction of a
bridge, while section 771.118(c)(8) covers bridge rehabilitation and
maintenance); and (4) the deletion of the proposed requirement that FTA
review the project scope prior to contract finalization for preparation
of EAs and EISs). FTA also made a number of minor revisions to the
proposals in the NPRM, which are described in detail in this final
rule.
Additionally, since the close of the comment period for the NPRM,
the President signed into law the Moving Ahead for Progress in the 21st
Century Act (MAP-21). This final rule is consistent with provisions in
MAP-21, and FTA and FHWA will initiate further rulemaking to implement
the various environmental provisions contained in MAP-21. FTA made one
edit in particular with respect to MAP-21: FTA removed the ``railroad''
limitation from the early acquisition of right-of-way CE pursuant to
MAP-21's revision to 49 U.S.C. 5323. Previously, an FTA grant applicant
was permitted to acquire only railroad right-of-way prior to the
completion of NEPA, but with the statutory revision, FTA grant
applicants are now permitted to acquire any right-of-way, at their own
risk, prior to the completion of NEPA. FTA received comments on its
proposed CE for early acquisition in the NPRM, and the changes made by
the final rule to the early acquisition provision in the regulation and
to the CEs for early acquisition mirror the MAP-21 statutory language.
Of the five major changes FTA and the FHWA included in the March
2012 NPRM noted in the beginning of the Executive Summary, four are
being carried forward in this final rule: (1) The creation of ten new
CEs to be located in a newly proposed section of the regulation at 23
CFR 771.118; (2) the expansion of public involvement methods to include
electronic means; (3) the addition of language on early scoping into
the regulations; and (4) a modification to the list of project types
that normally result in the preparation of an EIS. FTA intends that the
preamble language contained in this final rule be used as guidance when
applying the changes made by this final rule. This rule will become
effective immediately upon publication, as described in the ``Immediate
Effective Date'' section below.
Background
This final rule makes a number of revisions to the procedures that
govern how FTA complies with the National Environmental Policy Act
(NEPA). The regulation being revised, Part 771 of Title 23, Code of
Federal Regulations (CFR), is a joint FTA and FHWA regulation, but
nearly all of the revisions are written specifically to apply to
actions by FTA and FTA grantees. The rule does contain a minor, non-
substantive revision to a footnote discussing supplementary guidance,
which applies specifically to the FHWA
[[Page 8965]]
as well. The remaining revisions, including the ten new CEs, apply to
FTA.
FTA's primary goal in developing this final rule has been to
streamline the environmental review process to facilitate compliance
with NEPA by providing for more efficient reviews of proposed actions
while continuing to protect environmental and human health. In a
Presidential Memorandum on the subject, ``Speeding Infrastructure
Development through More Efficient and Effective Permitting and
Environmental Review,'' issued August 31, 2011, President Obama
challenged the heads of Federal agencies to ``take steps to expedite
permitting and review, through such strategies as integrating planning
and environmental reviews; coordinating multi-agency or multi-
governmental reviews and approvals to run concurrently; setting clear
schedules for completing steps in the environmental review and
permitting process; and utilizing information technologies to inform
the public about the progress of environmental reviews as well as the
progress of Federal permitting and review processes.'' This final rule
is consistent with that direction, and also consistent with Executive
Order 13571 issued on April 27, 2011, titled ``Streamlining Service
Delivery and Improving Customer Service,'' through which President
Obama challenged Federal agencies to develop and implement plans for,
among other actions: ``improving the customer experience by adopting
proven customer service best practices and coordinating across service
channels (such as online, phone, in-person, and mail service)'';
``streamlining agency procedures to reduce costs and accelerate
delivery, while reducing the need for customer calls and inquiries'';
and ``identifying ways to use innovative technologies to accomplish the
customer service activities above, thereby lowering costs, decreasing
service delivery times, and improving the customer experience.'' The
general public, especially anyone affected or served by a transit
project, is a primary ``customer'' served by FTA's environmental review
process. Moreover, this final rule is consistent with a goal of
Executive Order 13604 issued on March 22, 2012, titled ``Improving
Performance of Federal Permitting and Review of Infrastructure
Projects,'' which is to ``significantly reduce the aggregate time
required to make decisions in the permitting and review of
infrastructure projects by the Federal Government, while improving
environmental and community outcomes'' and is aimed at ensuring that
the ``Federal permitting and review processes * * * provide a
transparent, consistent, and predictable path for both grant applicants
and affected communities.''
FTA, therefore, aims to maximize the use of the Internet, in
accordance with the President's Order, to provide efficient customer
service to the public through expedited delivery of NEPA documents and
other environmental documents prepared by or for FTA. But recognizing
not every customer has access to the Internet, FTA will continue to use
other means of providing public access to FTA's environmental
documents, as well.
This final rule is consistent with the requirement in Section 6 of
Executive Order 13563, ``Improving Regulation and Regulatory Review,''
issued by President Obama on January 18, 2011. Section 6 calls on
Federal agencies to periodically review existing regulations to
``determine whether any such regulations should be modified,
streamlined, expanded, or repealed so as to make the agency's
regulatory program more effective or less burdensome in achieving the
regulatory objectives.'' This rule streamlines existing regulations
while maintaining their effectiveness by making available the least
intensive form of environmental review for those actions that typically
do not have the potential for significant environmental effects, and,
therefore, do not merit additional analysis and documentation.
In addition to the recent Presidential direction noted above, the
regulations of the Council on Environmental Quality (CEQ) implementing
NEPA direct agencies to ``review their policies, procedures, and
regulations * * * and revise them as necessary to insure full
compliance with the purposes and provisions of the Act'' (40 CFR
1500.6). The joint FTA/FHWA shared environmental procedures were last
modified in 2009 with revisions to comply with certain provisions of
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU), but the procedures have not undergone a
complete retrospective analysis by the two agencies since their
creation in 1987. A notice of proposed rulemaking (NPRM) proposing
major revisions to this regulation was published on May 25, 2000, but
was never finalized. The NPRM for this final rule was published in the
Federal Register on March 15, 2012.
FTA notes that since the publication of its NPRM, on July 6, 2012,
the President signed ``Moving Ahead for Progress in the 21st Century,''
or ``MAP-21'' (112 Pub. L. 141, 126 Stat. 405), which, beginning on
October 1, 2012, provides renewed authorization for Federal surface
transportation programs. MAP-21 also contains a number of changes to
the environmental review process for FTA and the FHWA, some of which
(such as the requirement for new CEs) are similar to the provisions
proposed through and finalized by this rulemaking. FTA and the FHWA
have determined that this final rule comports with some provisions of
MAP-21, even though this rulemaking was initiated prior to the
enactment of MAP-21.
In line with MAP-21, FTA recognizes the use of CEs, whenever
appropriate, as a way to improve NEPA efficiency. It has been more than
ten years since FTA comprehensively considered the CEs listed in the
environmental procedures as they apply to transit projects, and more
than 20 years since changes to the CEs were made as a result of a
comprehensive review. For this reason, FTA is now updating, through
this final rule, the CEs for particular types of proposed transit
projects and other proposed FTA actions. The CEs listed in paragraphs
(c) and (d) of 23 CFR 771.117 are now designated for actions within the
FHWA's authority through this final rule and will no longer apply to
FTA-only actions. Additionally, FTA is creating a new section, 23 CFR
771.118, which contains the CEs that will apply to FTA actions and
contains the new lists of CEs created through this rulemaking action
that are designated for actions within FTA's authority. All references
to a regulatory section or paragraph below, for which the CFR Title is
not specified, refer to Title 23, Code of Federal Regulations.
The list of new CEs in section 771.118(c) is intended to cover the
actions that previously applied to FTA in section 771.117(c), though
the CE language was expanded for purposes of efficiency in accordance
with CEQ guidance, ``Establishing, Applying, and Revising CEs under
NEPA'' (75 FR 75628). FTA will also be providing guidance that directs
FTA field offices to no longer use the lists of CEs in sections
771.117(c) and (d), but instead use the new lists in sections
771.118(c) and (d). The guidance will also provide direction on
implementing and interpreting the new CEs.
The CEs adopted in section 771.118(c) are organized into ten
defined categories of actions, each accompanied by examples
representing the types of FTA activities that fall within each
category. As explained in the NPRM, this approach is in compliance with
the CEQ regulations (40 CFR 1508.4), which
[[Page 8966]]
describe CEs as ``a category of actions which do not individually or
cumulatively have a significant effect on the human environment and
which have been found to have no such effect in procedures adopted by a
Federal agency in implementation of these regulations * * * and for
which, therefore, neither an EA nor an EIS is required.'' CEQ's
November 2010 guidance on establishing CEs reiterates CEQ's
recommendation to Federal agencies to characterize the types of CE
actions through broadly defined criteria, when appropriate, including
clearly defined eligible categories and constraints, followed by
examples. The examples FTA decided to list within each of the new CEs
are intended to be representative of the types of activities that fit
within the defined criteria of the CE; they are not intended to limit
the CE or to broaden it beyond those activities that do not typically,
either individually or cumulatively, cause significant environmental
effects.
Consistent with past practice for categories of actions, which
based on FTA's experience normally do not result in significant
environmental effects, FTA will continue to use the categorical
exclusion in section 771.118(d) for the examples listed in that
paragraph as well as for other actions that are shown, through
documentation, not to have significant environmental impacts. To do so,
FTA requires documentation to support that CE designation as
appropriate, as is stated in section 771.118(d), which mirrors the
former section 771.117(d). These CEs encourage grant applicants to
propose project actions located and designed so that no significant
impact will occur. FTA is deleting, however, some items in the list of
illustrative examples in the former section 771.117(d) from the new
list in section 771.118(d) as they are duplicative of CEs found in
section 771.118(c) or applicable to the FHWA. Additionally, FTA is
including new examples of actions that are slightly more broad than
some of the actions proposed in the NPRM for section 771.117(c) based
on comments received on that section and based on the fact that the
actions that can be categorically excluded are not limited to the
examples listed in section 771.118(d) (see Section-by-Section Analysis
of this final rule). The items listed under section 771.118(d) are
examples of actions that could be processed as CEs by FTA. Through this
final rule FTA is not making a substantive determination that the
actions represented by the new examples are categorically excluded, but
rather is simply providing examples of the types of actions that do not
normally result in significant effects and typically can be
categorically excluded through documentation showing no significant
environmental impacts result from the action. Each of the examples in
section 771.118(d) represents a less restrictive form of actions listed
as CEs in section 771.118(c). FTA considered the comments received on
those CEs in section 771.117(c) and its past experience with such
actions in adding new examples to the list at section 771.118(d).
Although MAP-21 Section 1318 requires rulemaking that would propose, to
the extent appropriate, moving two of those examples from section
771.118(d) to the listed activities in section 771.118(c), specifically
sections 771.118(d)(1) and (3), FTA is leaving those two examples in
section 771.118(d) until such time as the rulemaking required by MAP-21
Section 1318 is conducted to allow for further notice and comment on a
proposal to move them to section 771.118(c).
This rulemaking action does not change the requirements for
approving projects as CEs, either for ``listed'' CEs (in section
771.117(c) for the FHWA and section 771.118(c) for FTA) or for
``documented'' CEs (in section 771.117(d) for the FHWA or section
771.118(d) for FTA). For listed CEs, there should be a documented
description of the project or activity (for FTA grantees this is
typically contained in, or accompanies, a grant application) sufficient
to show that the action fits within the listed CE and that no unusual
circumstances exist that would make the application of the CE improper.
For documented CEs, there should be sufficient documentation to
demonstrate that the project meets all criteria for a CE, including any
conditions specified in the regulation for the (d) list CE in question.
The CEs adopted by this final rule have been substantiated with
supporting documentation, which includes, but is not limited to,
comparative benchmarking and expert opinion. The supporting
documentation includes FTA Findings of No Significant Impact (FONSI)
for projects that fall within the ten broad categories. Comparative
benchmarking provides support for the new CEs by using the experience
of other Federal agencies that conduct actions of similar nature,
scope, and intensity. Additionally, as described in the NPRM, FTA
convened an expert panel to review and evaluate each of the new CEs
with respect to concept, applicability, and potential environmental
effects. Information describing the basis for the CEs determinations
(i.e., the substantiation package) and information concerning the
members of the expert panel, and their NEPA-related experience, can be
found on the FTA Web site (http://fta.dot.gov/about/12347.html) and in
the docket for this rulemaking in Regulations.gov under docket number
FTA-2011-0056. The NPRM that was the basis for this final rule and the
comments received on it can also be accessed there.
FTA examined data for the FONSIs used to substantiate the CEs
proposed for FTA use (23 CFR 771.118). Based on a snapshot of available
2008 and 2009 data, the average amount of time from EA initiation to
FONSI signature was approximately 16.3 months. As this estimate is
based on a constrained sample (ranging from facility improvements to
streetcar and Bus Rapid Transit implementation), FTA intends to track
current and future projects in order to provide a more accurate
assessment in the future. Currently, FTA anticipates an 85 percent time
savings for future projects of similar scope to those found in the
substantiation package when processed as categorically excluded
projects through section 771.118.
As stated above, this rulemaking action stems in part from the U.S.
Department of Transportation's ``Retrospective Review and Analysis of
Existing Rules'' in response to Executive Order 13563. Information on
that process can be obtained either on DOT's Web site at http://regs.dot.gov/RetrospectiveReview.htm or at Regulations.gov under docket
number DOT-OST-2011-0025.
What This Final Rule Contains
The following section of this preamble includes a summary of the
comments received in response to the NPRM and FTA's response to those
comments. The summaries and responses are organized by the section
number of the regulatory text to which they relate.
Directly following the summary and response to comments, the
preamble includes a ``Section-by-Section Analysis'' of the revisions to
the regulatory text made by this action. These explanations will aid
the reader in understanding the reason behind each regulatory change.
Following the Section-by-Section Analysis is the ``Regulatory
Analysis and Notices'' section, which includes descriptions of the
requirements that apply to the rulemaking process and information on
how this rulemaking effort fits within those requirements.
[[Page 8967]]
The final rule concludes with the actual revisions to the
regulatory text in the amendatory language format required by the
Office of the Federal Register. This language modifies FTA's
environmental impact and related procedures on the effective date of
the regulation.
Summary of Comments and Responses
FTA and the FHWA received substantive comments from 18 transit
agencies, 8 State Departments of Transportation, 7 organizations, 2
Metropolitan Planning Organizations, 2 individuals, 1 business, and 1
Federal agency. Nearly all comments have been categorized by regulatory
section number and summarized below, with a response following each
section. There were some instances in which a commenter sought
clarification of the meaning of preamble language in the NPRM rather
than commenting on the actual regulatory proposal. Rather than
summarize and respond to comments that sought clarification of preamble
language (which was not intended to be definitive, but rather an
explanation of the regulatory text itself), FTA has considered those
requests for clarification in the drafting of the preamble language for
this final rule. The language of the preamble can be used as guidance
in interpreting the regulatory text in this final rule, but it is
neither binding nor regulatory.
The following summary and response to comments refers only to FTA,
given that all of the comments related to proposed regulatory text that
would affect only FTA actions.
General Comments
Comment: FTA received comments on issues other than the specific
changes proposed in the NPRM. Four comments generally supported the
proposed rule changes and the goal of streamlining environmental
review. Several comments recommended standard review times and standard
approaches to environmental documents. One comment encouraged public
notice of the availability of certain documents through electronic
mail. One comment questioned the need for transit-oriented development
as a priority. Finally, one comment recommended that FTA consider all
forms of rider amenities in transit planning.
Response: FTA appreciates the comments we received, including those
generally in support of the proposed rule change and our goal of
environmental streamlining. FTA encourages timely review of
environmental documents, though the agency recognizes that individual
projects are unique and that mandating standard review times would be
impractical. In addition, FTA is committed to the use of electronic
media as appropriate, and the response to comments on Section 771.111
indicates this commitment. Finally, FTA acknowledges all other comments
that are not directly addressed herein, and notes that those comments
were not within the scope of this rulemaking action.
Section 771.105 Policy
Comment: FTA received no comments on the proposed changes in this
section.
Response: FTA is adopting the proposed change as final.
Section 771.109 Applicability and Responsibilities
Comment: FTA received no comments on the proposed changes in this
section.
Response: FTA is adopting the proposed change as final.
Section 771.111 Applicability and Responsibilities
Comment: FTA received eight comments about its proposal in section
771.111(i)(1) that grant applicants for capital assistance in the FTA
program may announce project milestones to the public using electronic
or paper media. Five comments expressed support for use of the Internet
and electronic media in the environmental process. One comment
recommended FTA continue to support communities with limited Internet
access, primarily in low-income areas, by continuing to make paper
copies of documents available. One comment requested FTA clearly
outline its desire to modernize options for public involvement through
electronic media, including whether grant applicants can use electronic
media exclusively. One comment recommended FTA consider requiring grant
applicants to retain materials related to the environmental process
online for a certain time period, as some projects may be complex or
have limited Internet resources.
Response: FTA is aware that not everyone has access to the Internet
and electronic media. FTA is not lessening any public involvement
requirements through this rulemaking. Rather, FTA is revising the
regulation to encourage its grant applicants to use various means in
seeking public input, with an emphasis on electronic means as a
supplement to traditional means. Electronic media can broaden access to
project information and expedite the project review process. FTA
encourages its grant applicants to retain certain environmental
documents (e.g., decision documents, public meeting materials) for a
project posted on the Internet until the initiation of transit
operations.
Comment: FTA received eight comments in support of its proposal in
section 771.111(i)(2) regarding early scoping. One comment recommended
FTA provide clarification regarding the content of an early scoping
notice and its publication in the Federal Register.
Response: An early scoping notice must provide enough information
to allow the public and relevant agencies to participate effectively.
The notice should clearly describe the process of early scoping and
include information about any related planning study by the
metropolitan planning organization or sponsoring transit agency. Early
scoping cannot substitute for the normal scoping process unless the
early scoping notice states that this outcome is being pursued and the
early scoping process accomplishes all normal scoping requirements.
Section 771.113 Timing of Administration Activities
Comment: FTA received one comment requesting the removal of the
words ``hardship and protective'' from the sentence beginning
``Exceptions for hardship and protective acquisitions of real property
are addressed in * * *'' in section 771.113(d)(1). The comment explains
that the proposed section 771.118(c)(6) exempts certain real property
acquisitions outside those categorized as hardship and protective
acquisitions.
Response: FTA acknowledges section 771.113(d) must be revised to
reflect the change of sections where FTA's lists of CEs are located in
regulation and to reflect the expansion by MAP-21 Section 20016 of
early acquisition authority from railroad right-of-way to any right-of-
way needed for a transit project. Accordingly, FTA added amendatory
text to this final rule that updates the provisions on carrying out
property acquisition prior to conclusion of the environmental review
process. The provisions now include references to the FTA CEs in
section 771.118 and no longer contain a reference to ``railroad,''
reflecting the broadening of that authority by MAP-21. In addition, a
discussion in the Section-by-Section analysis below describes the fact
that section 771.118(c)(6) could cover hardship acquisitions,
protective acquisitions, and the acquisition of real property interests
needed for transportation right-of-way as long as the restrictive
language in section 771.118(c)(6) is met and there are no unusual
circumstances that would make the CE classification improper. Some
[[Page 8968]]
descriptive documentation would still be required for the use of the CE
in section 771.118(c)(6) to allow FTA to ensure that the acquisition of
property comports with the requirements for early acquisition.
Section 771.115 Classes of Actions
Comment: FTA received one comment requesting clarification
regarding what type of transit infrastructure is included under the
term ``a fixed transit facility,'' as listed in section 771.115.
Response: As provided in section 771.115, examples of what might
constitute a ``fixed transit facility'' include rapid rail, light rail,
commuter rail, and bus rapid transit. FTA considers infrastructure
supporting these services also to be fixed transit facilities.
Section 771.118 FTA Categorical Exclusions
FTA received a number of comments on CEs in general, not focused
specifically on any particular CE. The summaries of and responses to
those comments directly follow and precede the summary and response to
comments on specific CEs.
Comment: FTA received 23 comments expressing support for FTA's
proposed rulemaking. Nine of these comments suggested that FTA should
periodically revisit and update the list of CEs; of these comments,
several suggested FTA should establish a schedule that would direct FTA
to re-evaluate the CE list at specific time intervals.
Response: FTA is committed to revisiting our CE list on a regular
basis, and, per the new section 771.118(e), FTA will, at a minimum,
initiate rulemaking proposing to add a type of action to the list of
CEs where a pattern emerges of granting CE status under section
771.118(c) for a particular type of action.
Comment: FTA received one comment requesting, in recognition of
ferry systems that function as an extension of both the highway system
and the transit system, that FTA explain how the proposed CEs would
apply to routine actions conducted by public ferry systems.
Response: All forms of transit were considered in the development
of the new CEs. The CEs apply to public ferry systems, eligible for FTA
assistance, no differently than they would to other forms of public
transportation.
Comment: One comment recommended that no project should receive a
CE in areas with untested soils and unidentified underground
infrastructure.
Response: FTA has carefully substantiated all of the new CEs
adopted by this final rule, but there is always the possibility that
``unusual circumstances,'' such as the presence of contamination not
easily dealt with through routine remediation, would cause FTA to
instead evaluate an action through an EA or EIS.
Comment: One comment noted that without additional clarification on
FTA plans to integrate listed and documented CEs, it is difficult for
transit agencies to comment on this proposal. One comment noted the
proposed CEs fail to produce their intended purpose: to create for FTA
a set of CE provisions that are similar to the existing CEs. The
comment questioned whether FTA could use the proposed CEs.
Response: FTA is uncertain of the basis for these comments, as FTA
neither intended to integrate the listed and documented CEs nor to
create a set of CEs that are similar to FTA's former CEs. Rather, FTA
is adopting a regulatory framework that continues to distinguish
between the two types of CEs. FTA's intention was for the new list of
CEs to be categorically different from the list that has not been
substantially revised since 1987, reflecting both changes in FTA's
programs since that time and new knowledge concerning the environmental
impacts of FTA's actions learned over the years.
Comment: FTA received one comment requesting the proposed CE list
in section 771.118(c) include an exemption for the emergency procedures
included in existing section 771.117(c)(9).
Response: The CE in section 771.117(c)(9) is for emergency repairs
eligible under Section 125 of Title 23, U.S. Code, which is a statutory
program that establishes a fund for the emergency repair of highways,
roads, and trails. It is not expected that FTA would have an action
under that statutory provision given its limited applicability.
Emergency repairs of transit facilities could be categorically excluded
under section 771.118(d) if the action were demonstrated to not have,
either individually or cumulatively, significant effect on the human
environment. In addition, FTA will consider the extent to which
emergency-related activities could be categorically excluded through
other rulemaking actions, including rulemaking for section 1315 of MAP-
21.
Comment: FTA received one comment requesting the addition of a new
category for all bridge projects to the list of CEs at section 771.118,
citing potential confusion arising from including bridge projects in
both proposed lists in sections 771.118(c) and 771.118(d).
Response: FTA acknowledges the similarity between sections
771.118(c)(8) and 771.118(d)(2), and has revised the language in
section 771.118(d)(2) to remove the words ``rehabilitation,
reconstruction or'' such that the documented CE will cover ``bridge
replacement or the construction of grade separation to replace existing
at-grade railroad crossings.'' The action covered by section
771.118(c)(8) would be focused on maintenance, rehabilitation, and
reconstruction, as discussed below. FTA will consider whether it is
appropriate to place actions related to bridge projects in section
771.118(d)(2) or in section 771.118(c) as part of rulemaking for MAP-21
Section 1318.
Comment: FTA received five comments addressing the specificity with
which FTA should construct the lists of CEs. One of these comments
emphasized the need for FTA to remain flexible so that CEs are ``as
widely applicable as possible'' and are not defined by a list of
allowable activities. Several other comments recommended adding an
explanation stating the examples are not meant to be exhaustive (e.g.,
add ``including, but not limited to'' as appropriate). Another comment
requested more clarity and distinction between the listed and
documented CEs. This comment and others, however, also recommended
removal of all examples in the proposed section 771.118(d) list. Some
of these comments recommended that, consistent with the existing and
proposed versions of section 771.118(e), those activities noted in
draft sections 771.118(d)(2) through (4) be moved to section
771.118(c). The commenters suggested that the remaining example, in
section 771.118(d)(1), should be deleted as unnecessary and the revised
provision should end with the sentence: ``The applicant shall submit
documentation which demonstrates that the specific conditions or
criteria for these CEs are satisfied and that significant environmental
effects will not result.'' Several of these comments, in suggesting the
move of examples from section 771.118(d) to section 771.118(c) that
concern hardship and protective acquisition of property, recommended
including a note that grant applicants must provide information to FTA
that substantiates a request for hardship or protective acquisition of
property.
Response: The examples included for all CEs are illustrative
actions of the use of the CE and are not an exhaustive list
[[Page 8969]]
of the potential applications of that CE. This is made clear by the use
of the language ``such as'' to introduce the list of examples, which
has the same meaning as ``including, but not limited to,'' as suggested
by one commenter. FTA chose the list of examples in section 771.118(d)
based on FTA's experience that those activities are most likely to
require a greater degree of documentation from both a grants-making
perspective and an environmental perspective (i.e., to ensure the
classification of a CE is appropriate and there are no unusual
circumstances associated with it that reflect the potential for
significant environmental impacts). FTA has decided to keep several
examples listed to provide for some idea of the scope and scale of
activities that FTA generally would categorically exclude pursuant to
section 771.118(d). FTA does not intend to change the scope and scale
of activities that can be categorically excluded pursuant to section
771.118(d) under this final rule from those covered under section
771.117(d) that had been in place for FTA for approximately 25 years,
but FTA is changing the list of examples of the types of actions that
can be categorically excluded under section 771.118(d) to focus on
those activities and actions entirely by FTA (which primarily involves
the partial funding of transit projects by FTA). FTA is identifying
some types of actions that had been examples in section 771.117(d) as
listed CEs in the new section 771.118(c). Many of the examples in
section 771.117(d) were not carried over to section 771.118(d) due to
their primary applicability to the FHWA or because they are covered by
the categories listed in the new section 771.118(c). Because FTA has
carefully substantiated those categories of actions, less documentation
will generally be required to show the CE determination is appropriate,
resulting in quicker approvals for those actions. As always, unusual
circumstances must be considered for the proposed project, which may
require appropriate environmental studies to be conducted to determine
whether the project is eligible for a CE. Based on the result of these
studies, a documented CE, an EA, or an EIS may be the appropriate class
of action decision that results. Moreover, documentation may be
required in some cases for compliance with laws other than the NEPA.
Finally, FTA will continue to include CEs for property acquisition in
both sections 771.118(c)(6) (with some limitations) and 771.118(d)(3).
Comment: FTA received one comment noting that the regulatory
preamble contains an important statement allowing FTA and FHWA to rely
on CEs listed in either section 771.117 or 771.118 for multimodal
projects. The comment suggests adding this statement to the operative
language of the proposed sections 771.117(a) and 771.118(a).
Response: The language mentioned by the commenter was intended to
make clear that for a project with both an FTA and an FHWA action, FTA
could use the CEs in section 771.118 for an FTA action on the project
and the FHWA could use the CEs in section 771.117 for the FHWA action
on the same project, provided that the combined environmental effect of
the FHWA and FTA actions were not significant. In addition, section
1314 of MAP-21 contains a provision that allows, under certain
circumstances, one modal administration of the Department of
Transportation to use the CEs of another modal administration for a
multimodal project. Guidance is currently under development on the use
of that CE authority.
FTA's intent was not to allow FTA to continue to apply the actions
listed in section 771.117 to FTA projects. That would be unnecessary,
as FTA drafted the list of CE categories in section 771.118 such that
it contains all actions FTA might wish to take pursuant to the former
section 771.117. Moreover, FTA retains the ability to categorically
exclude actions not otherwise covered explicitly by the categories of
CEs in section 771.118 through its documented CE authority in section
771.118(d). Retaining the ability to continue to categorically exclude
any action that could have been categorically excluded prior to this
final rule is important for multimodal projects, and to do otherwise
would have the opposite effect of streamlining the process. Thus, FTA
does not believe it is necessary to add further explanatory language to
the regulatory text, but instead relies upon this clarification here in
the preamble.
Comment: FTA received several general comments advocating that
specific activities should be covered by CEs. One comment requested the
regulation clearly state that stations and facilities being
rehabilitated within an existing right-of-way should be automatically
classified as CEs. This comment notes that, if the basic function of
the station will remain the same, and there are no land acquisitions
associated with the project, experience shows that there will be no
significant environmental impacts other than those due to temporary and
minor construction activities. A second comment requested FTA expand
the proposed list in section 771.118(d) specifically to include
modernization or minor expansions of transit structures and facilities,
such as bridges, stations, or rail yards. A third comment requested
that FTA add to section 771.118(d)(1) ``modernization and resurfacing
of parking facilities.''
Response: FTA intended that rehabilitation of stations and
facilities and ``modernization and resurfacing of parking facilities''
within an existing right-of-way would be clearly covered by the new CE
in section 771.118(c)(8), unless unusual circumstances are present that
suggest the potential for significant environmental impacts. Although
FTA notes that significant environmental impacts due to very long-term
construction activities would in fact require an EIS, FTA's experience
has been that the types of construction impacts of the projects
mentioned by the commenters are usually of short duration and tend not
to rise to the level of significant. Because these types of activities
are generally covered by section 771.118(c)(8), FTA will not add the
example to the list in section 771.118(d).
Comment: FTA received one comment suggesting it would be helpful if
FTA would better define and reduce the scope and extent of
supplementary documentation required for review of the current list of
CEs in section 771.117(d).
Response: FTA has focused this rulemaking on the new CEs located in
section 771.118(c), and to the extent that actions previously approved
as ``documented'' CEs pursuant to former section 771.117(d) are now
covered by the new CEs in section 771.118(c), those actions would no
longer need additional documentation. FTA would expect a description of
the project or activity contained within or accompanying the grant
application sufficient to show that the action fits within the listed
CE (i.e., section 771.118(c)) and that no unusual circumstances would
result. That said, FTA acknowledges that in practice more documentation
may often be created than is necessary for environmental review
documents, which include EISs, and EAs, as well as documented CEs. FTA
is not changing the documentation standards for those types of NEPA
approvals; instead, FTA is attempting to bring practice in line with
what is actually required through issuance of guidance, increased
training, and better management of the process, all of which have
previously been ongoing. Scoping should have as its objective the
elimination of insignificant issues from
[[Page 8970]]
the scope of the study as much as the incorporation of significant
ones. Thus, FTA intends that extraneous, unnecessary documentation will
no longer be included for documenting compliance with NEPA, no matter
what the class of action.
Comment: FTA received one comment cautioning that ``the
consolidation and relocation of CEs should not inadvertently have the
effect of requiring an EA or EIS for projects that do not qualify for
the new undocumented CEs in section 771.118(c).'' The comment requested
FTA confirm that ``when a project which was formerly covered by a
documented CE in section 771.117(d) does not satisfy the qualifying
criteria in a corresponding CE in new section 771.118(c), the
documented CE procedure remains available,'' and that ``any action that
would qualify for one of the CEs previously specified in section
771.117(d) still could seek a documented CE, notwithstanding the
proposed revisions.'' Several other comments requested FTA consider a
CE determination for all actions not noted under section 771.118(c) if
the grant applicant produces documentation showing compliance with the
broader definition of a CE noted in the proposed rule and in the CEQ
regulations implementing NEPA.
Response: FTA agrees and acknowledges that the new list of CEs
should not inadvertently have the effect of requiring an EA or EIS for
projects that do not qualify for the new CEs in section 771.118(c). Any
action that would qualify for one of the CEs previously specified in
section 771.117(d), if it did not qualify for a CE under the new
section 771.118(c), could still be approved as a documented CE under
the new section 771.118(d), notwithstanding the changes of the final
rule, as long as the documentation demonstrated that the action would
not result in significant environmental impacts. FTA again notes that
the examples of activities provided in our list of CEs are not
exhaustive but illustrative and that a CE determination may be reached
for an action not specifically included in the list of examples either
under each CE category in section 771.118(c) or the list of examples
under section 771.118(d).
Comment: FTA received several comments requesting clarification for
when a more detailed environmental review is necessary. One comment
requested unambiguous environmental review criteria that would favor
the CE process over the more time-consuming EA or EIS where impacts are
clearly minimal unless there is ``compelling'' evidence warranting a
different course of action.
Response: FTA is not changing through this rulemaking the
thresholds that determine the level of environmental review (also
called ``class of action'') needed for any given FTA action. Rather,
FTA has documented the types of actions that normally do not,
individually or cumulatively, have a significant effect on the human
environment and incorporated those into this regulation as CEs. No
matter what benefits might result from processing an action with one
class of action versus another, FTA will use the class of action that
is appropriate given the potential impacts associated with the action.
That is the case even for an action listed as an example in the new
list of CEs in section 771.118(c). In other words, an action listed in
the examples in section 771.118(c) would still require an EA or EIS if
FTA determined unusual circumstances associated with the action could
result in significant environmental impacts.
Comment: One comment expressed concern about the effect of the new
rule on projects that might affect stormwater runoff, noise, or
environmental justice. The comment stated the construction of a bus
rapid transit project might require work that interferes with the
geometry of an existing road, thus affecting onsite runoff and how such
runoff is managed. The comment said managing such circumstances is
already addressed in regulation for the FHWA under 23 CFR part 771. The
comment suggested FTA create similar regulation or reference the FHWA
regulation in the new rule. A second comment recommended the comparable
CEs and documented CEs under sections 771.117(c) and (d) that would
apply to the FHWA with the adoption of this new rule also be similarly
revised.
Response: FTA cannot determine which section of 23 CFR part 771 the
comment refers, but it may be a reference to section 771.117(a), which
discusses the types of impacts that would make the use of a CE
inappropriate. FTA has exactly duplicated that language in section
771.118(a). If the comment is referring to section 771.105(d), that
paragraph applies as much to FTA as to the FHWA, as does any section of
23 CFR part 771 not explicitly limited to either the FHWA or FTA. The
FHWA will consider revisions to 23 CFR 771.117 as part of rulemaking
directed by MAP-21.
Comment: FTA received one comment expressing concern that some of
the language in the revised CEs could result in new burdens and delays,
rather than streamlining, in comparison to the existing CEs and
associated NEPA procedures set forth in the current version of section
771.117.
Response: FTA cannot tell from this comment what is behind the
concerns noted. The revisions are intended to streamline the FTA
environmental review process for transit projects. FTA believes that
the proposed CEs will improve the efficiency of that process by making
available the least intensive form of review for certain actions that
would have previously required CEs with more voluminous documentation
or EAs. The new lists in sections 771.118(c) and (d) are intended to
cover all actions that were previously covered by the list in section
771.117(c), as well as other actions for which FTA had substantiation.
Comment: One comment recommended supplemental guidance clarifying
the outlined provisions be made available to the FTA regional offices
to ensure consistency in implementing new environmental regulations.
Response: FTA plans to develop guidance on the use of these CEs and
make it available to all of its offices. The guidance will likely be
based on the content of the Section-by-Section analysis contained in
this final rule.
Comment: Four comments provided recommendations regarding project
review schedules. One comment urged FTA to include specific timelines
for the review and approval of these types of projects. Another comment
recommended a standard review time of 30 days be established for CE
schedules. A third comment recommended that in setting deadlines for
CEs, discussions involving FTA, participating agencies, and the grant
applicant should take place in order to determine a realistic deadline
for the project. Specifically, this comment recommends grant applicants
and regulatory agencies agree on individualized CE deadlines in the
beginning stages of the development process. The comment believes that
any changes to the CE process should allow for project-specific
flexibility in the setting of deadlines. The fourth comment expressed
concern that the NPRM did not propose to require FTA to develop
schedules for review or to commit to specific dates for the completion
of the review of environmental documents. This comment stated that
setting schedules can be a difficult and even risky task, but urged FTA
to include this change in the final rule because doing so would be an
important step in making the environmental review of transit projects
more streamlined, less time-consuming, and more predictable.
[[Page 8971]]
Response: FTA encourages timely review of environmental documents,
though FTA recognizes that individual projects and their impacts are
unique, which makes standard review times impracticable. One of the
main goals FTA has had through this rulemaking has been to reduce the
time associated with approving a project through a CE. Projects
approved through the new list of CEs in section 771.118(c) normally
would not require further NEPA approvals. FTA does expect documentation
that shows the project fits the category of action in section
771.118(c) and that no unusual circumstances are present that would
make the CE determination improper. In many cases, a thorough project
description in the grant application will be sufficient. In the other
cases, if the project has the potential to result in impacts to
resources protected under other environmental laws, additional
documentation and review time would be needed for that documentation.
For example, the consultation required under Section 106 of the
National Historic Preservation Act already has regulatory timeframes in
36 CFR part 800 associated with consultation between FTA and the State
Historic Preservation Officer. That consultation process cannot be
shortened through review times mandated by an FTA regulation. FTA will
continue to focus on evaluating projects quickly and efficiently, and
is confident this final rule will streamline the process substantially.
Comment: FTA received one comment recommending that funding
requests for projects under proposed section 771.118(c) require a
project description to confirm the project fits the CE category and a
statement that the project does not involve unusual circumstances as
detailed in section 771.118(b) be used in order to further the
streamlining effort. The comment suggests that where section 771.118(c)
projects may adversely affect properties on or eligible for the
National Register of Historic Places, the grant applicant could request
FTA initiate, or authorize the grant applicant to initiate,
consultation under Section 106 of the National Historic Preservation
Act. The comment suggests that no other technical evaluations be
required and recommends FTA's response be required within a specified
timeframe.
Response: FTA's intent is to reduce the paperwork for the types of
activities we determined normally do not, individually or cumulatively,
have a significant effect on the human environment. As previously
noted, FTA expects that in most cases a project description in the
grant application will be sufficient for purposes of determining
whether a project fits within one of the categories of CEs in section
771.118(c). FTA would also expect, as the comment suggested, that
compliance with environmental requirements other than those of NEPA
could be handled separately, although it would be perfectly appropriate
to mention compliance with those requirements in the grant application,
as FTA's approval of the CE would need to wait for compliance with the
other requirements in accordance with section 771.105(a). FTA noted
previously why mandated review times would not be appropriate given
each project has unique impacts and issues that cannot be predicted in
advance.
Comment: FTA received one comment urging FTA to consider allowing
state transit agencies to self-certify CE status for the projects in
section 771.118(c), with periodic audits by FTA to ensure regulatory
compliance. Self-certification would not only speed the development of
individual projects, but also free FTA staff time for other work.
Response: FTA acknowledges that many state transportation agencies
have programmatic CE agreements with the FHWA. Historically, FTA has
had a grant structure for funding individual transit projects that has
not lent itself well to a programmatic CE agreement approach, but FTA
will continue to evaluate the possibility of this approach in the
future.
Comment: FTA received one comment requesting FTA require consulting
parties, including the consulting State or Tribal Historic Preservation
Officer, to respond within 30 days of receipt of documentation of
historic resources and effects and to allow the Section 106 and NEPA
processes to proceed if no response is received within that time frame.
This requirement would be consistent with both the Section 106
regulations and the overall effort to streamline the review and
approval of transit projects.
Response: Consultation under Section 106 of the National Historic
Preservation Act is not within the scope of this rulemaking action.
Further, FTA could not change the requirements associated with that
process through rulemaking, as those requirements are contained in
regulations issued by the Advisory Council for Historic Preservation.
FTA has, however, sought to ensure that the Section 106 process is done
quickly and efficiently, and FTA will continue to pursue streamlining
approaches for that process separately.
Section 771.118(c)
The following paragraphs on section 771.118(c) are arranged in
order of occurrence in the regulation, and each is introduced with the
section number and proposed rule text of the new CE.
771.118(c)(1) Acquisition, installation, operation, evaluation, and
improvement of discrete utilities and similar appurtenances (existing
and new) within or adjacent to existing transportation right-of-way,
such as: utility poles, underground wiring, cables, and information
systems; and power substations and transfer stations.
Comment: FTA received 16 comments on proposed section
771.118(c)(1); one of these comments was in reference to the preamble.
Several comments supported the proposed CE. Four comments requested FTA
explicitly define the types of activities that qualify. Five comments
requested FTA clarify activities that are included ``within'' or
``adjacent to'' existing transportation right-of-way. One comment
suggested this CE be limited to activities ``within'' existing right-
of-way and not ``adjacent to,'' because ``adjacent to'' is too
subjective and may not adequately limit the activities intended to be
included in this CE. One comment noted that failing to define
``discrete'' may lead to unintended environmental consequences. One
comment suggested that FTA define the term with consideration for
Executive Order 13154, ``Federal Leadership in Environmental, Energy,
and Economic Performance,'' which encourages sustainability, and
Executive Order 13423, ``Strengthening Federal Environmental, Energy,
and Transportation,'' which encourages the integration of renewable
energy.
Response: FTA intended for this CE to apply to utility relocation
and accommodation activities when limited in scope and generally
confined to the property considered the traditional transportation
right-of-way. This CE covers utility activities occurring within the
boundaries of the right-of-way, including those utility activities
taking place primarily within the right-of-way that may extend onto
adjacent property, as well as utility-related activities (e.g.,
landscaping or re-vegetation) that occur within the right-of-way or on
immediately adjacent property. FTA will consider the present use of the
adjoining property and the amount of such property involved in
determining whether this CE is appropriate. ``Discrete'' utilities are
those that are separate from a larger transit project or other larger
project, such as the modernization of an entire rail transit
[[Page 8972]]
line that includes station expansions, station redesign for access by
the disabled, and upgrading the traction power. FTA admits the use of
the term ``transfer station'' may have been interpreted as a bus
transfer station, rather than a utility power station and has clarified
that terminology.
Comment: Four comments suggested FTA include additional activities
in this CE. One comment suggested changing the language to ensure
readers know the listed activities were not exhaustive. One comment
suggested adding ``catenary and signal work.'' One comment suggested
adding ``maintenance'' and ``rehabilitation'' activities. Several
comments suggested adding ``replacement.'' Finally, one comment
suggested FTA state that ownership of the utility is not a factor in
determining whether this CE may be applicable.
Response: The examples included for this and all CEs are
illustrations of the use of the CE and are not an exhaustive list of
its application. This CE covers ``catenary and signal work'' given that
these activities are substantially similar to the listed examples.
Likewise, this CE covers ``maintenance'' and ``rehabilitation''
activities as well as the environmental impacts of these activities are
likely the same or less than an ``improvement.'' FTA is adding
``replacement'' to the list of activities under this CE, as replacement
is substantially similar to installation in terms of impacts and may be
the most common utility activity occurring within transit rights-of-
way. Finally, ownership of the utility is not a factor in determining
the application of this CE. For example, a utility company may own an
easement on the transit right-of-way, but an action on their part may
not involve an FTA action, and as such may not result in application of
FTA's NEPA regulation.
771.118(c)(2) Acquisition, construction, rehabilitation, and
improvement or limited expansion of stand-alone recreation, pedestrian,
or bicycle facilities, such as: a multiuse pathway, lane, trail, or
pedestrian bridge; and transit plaza amenities.
Comment: FTA received 12 comments on proposed section 771.118(c)(2)
that covers certain pedestrian and bicycle facilities and similar or
related facilities. Several of these comments were in reference to the
preamble. Some of the comments supported the proposed CE. Some of the
comments requested FTA define the term ``limited expansion.'' One
comment requested FTA define the term ``transit plaza amenities.'' One
comment suggested FTA clarify the term ``stand-alone.'' This comment
suggested this CE should not apply to stand-alone facilities, but to
the acquisition, construction, etc., of facilities associated with an
already existing station, so long as the facilities are not a part of a
larger new project.
Response: FTA views the expansion of such facilities covered by
this CE as being ``limited'' where the expansion is smaller in
magnitude than the original facility and is confined to the original
environmental setting. Transit plaza amenities are those features of a
facility that add to its desirability as viewed by the traveling public
(e.g., wayfinding signs, bike lockers, ticket vending machines,
benches, and landscaping). FTA uses the term ``stand-alone'' to mean a
facility that is capable of operating independently. FTA uses the term,
as applied here, to avoid including facilities that are part of a
larger proposed project with the potential for significant
environmental impacts.
Comment: Several comments suggested FTA include additional
activities in this CE. One comment suggested FTA include ``ferry
terminal passenger overhead loading structures'' because
rehabilitation, construction, and improvements to these structures do
not ``materially expand the environmental footprint of existing
structures.'' One comment suggested FTA add ``maintenance activities''
because they are similar to the activities already listed.
Response: As stated above, the CE does not contain an exhaustive
list of examples. This CE covers ferry terminal passenger overhead
loading structures in that these structures are virtually synonymous
with ``pedestrian bridge.'' FTA agrees that maintenance activities are
similar in impact to the activities already listed and included
``maintenance'' in this final rule.
Comment: One comment suggested this CE should not extend to new
construction with new surface disturbance and significant changes in or
increase in use because stand-alone facilities such as pedestrian and
bike paths can impact ``sizeable swaths of habitat.''
Response: FTA usually constructs this type of facility in urbanized
areas and sizeable swaths of habitat are not impacted. If sizeable
swaths of habitat are impacted, then that unusual circumstance would
likely require FTA and the grant applicant to conduct appropriate
environmental studies under section 771.118(b)(1) to determine whether
the CE classification is proper.
771.118(c)(3) Limited activities designed to mitigate environmental
harm that cause no harm themselves or to maintain and enhance
environmental quality and site aesthetics, and employ construction best
management practices, such as: noise mitigation activities;
rehabilitation of public transportation buildings, structures, or
facilities, including those that are listed or eligible for listing on
the National Register of Historic Places when there are no adverse
effects under the National Historic Preservation Act; retrofitting for
energy conservation; and landscaping or re-vegetation.
Comment: FTA received 21 comments on proposed section
771.118(c)(3); one of these comments was in reference to the preamble.
Several comments supported the proposed CE. Several comments suggested
FTA not limit the historic transportation activities to those not
having an adverse effects under the Section 106 regulation (36 CFR Part
800), with several comments specifically suggesting removing the
language ``when there are no adverse effects under the National
Historic Preservation Act.'' One of these comments noted that not all
adverse effects constitute a ``significant impact'' under NEPA.
Similarly, one comment suggested this CE be consistent with sections
771.117(c)(6) and (7), both of which lack the ``no adverse effect''
language.
Response: FTA recognizes that not all adverse effects under Section
106 constitute a significant environmental impact for purposes of
compliance with NEPA. For consistency with our other CEs, FTA deleted
``including those that are listed or eligible for listing on the
National Register of Historic Places when there are no adverse effects
under the National Historic Preservation Act.'' Such reference to
Section 106 would suggest that Section 106 is an issue only for this CE
and would lessen the attention paid to Section 106 for other CEs in
which Section 106 compliance is not mentioned in the CE language;
Section 106 applies to all actions covered by CEs that may affect a
property on or eligible for the National Register of Historic Places.
Comment: FTA received five comments suggesting additional
activities be covered under this CE. One comment suggested adding
``replacement of in-water creosote-treated timber piles, berthing, and
other structures such as wingwalls, dolphins, and pilings underneath
trestle and docks.'' This comment noted that removal of creosote-
treated timber is an environmental priority for many Federal, State,
and local agencies. One comment suggested adding ``stormwater
management'' and ``roof replacement.'' Several comments suggested
adding
[[Page 8973]]
``bridges'' and ``viaducts.'' One comment suggested adding ``other
resource conservations measures (not just limited to energy).''
Response: As stated above, the CE does not contain an exhaustive
list of examples. This CE covers replacement of in-water creosote-
treated timber piles, berthing, and other structures, as this
constitutes rehabilitation of public transportation buildings,
structures, or facilities. Likewise, this CE covers stormwater
management as an activity designed to mitigate environmental harm. This
CE covers roof replacement to the extent it fits within the CE's
limitations (i.e., designed to mitigate environmental harm and causes
no harm itself, or maintains and enhances environmental quality and
site aesthetics, and employs construction best management practices).
This CE covers rehabilitation of bridges and viaducts if they are
considered public transportation structures. FTA agrees that ``other
resource'' conservation measures (not just energy) should be included
in the list of examples, and amended the final rule to include this
activity.
Comment: There were ten comments requesting FTA remove the word
``limited.'' Four of these comments stated the term is unclear,
ambiguous, or subject to misinterpretation. Four comments suggested
eliminating the word to allow for an expansion of the activities
included in this CE.
Response: FTA's expectation is that these CE activities would occur
within or adjacent to the transportation right-of-way to be eligible
for FTA assistance. Thus, these activities would be limited by FTA's
funding program requirements. Removing the term ``limited'' would not
broaden the application of this CE. Therefore, FTA agrees that this
term is unnecessary and it is not included in the final rule.
771.118(c)(4) Planning and administrative activities which do not
involve or lead directly to construction, such as: training, technical
assistance and research; promulgation of rules, regulations,
directives, or program guidance; approval of project concepts; and
engineering.
Comment: FTA received six comments on proposed section
771.118(c)(4). One comment suggested FTA omit environmental
requirements in their entirety for internal management and planning
activities that have no environmental impact.
Response: FTA's intent with this rulemaking is to reduce the
paperwork for activities that normally do not, individually or
cumulatively, have a significant effect on the human environment. As
noted above, FTA's expectation for the documentation required for a CE
under section 771.118(c) is minimal, usually collected as part of the
grant application process, and should not cause an undue burden. FTA
cannot, through a categorical exclusion, change the applicability of
other environmental laws that might apply.
Comment: FTA received six comments suggesting this CE include
additional activities. Several comments suggested FTA include
``planning and technical studies'' to maintain consistency and avoid
ambiguity. One comment suggested FTA include ``operating assistance to
transit authorities to continue existing or increase service to meet
routine demand,'' as included in former sections 771.117(c)(1) and
(16). Several comments suggested certain geotechnical activities be
included. One of these comments suggested adding geotechnical
investigations that are necessary to define the elements of the
proposed action or alternative so that grant applicants can assess
structural, seismic, and environmental conditions. This comment also
noted geotechnical investigation is often included as part of the
scoping process. Another comment suggested adding technical borings,
monitoring wells, utility potholing, archeological surveys, and similar
subsurface investigations which would not lead directly to construction
or environmental impacts.
Response: As stated above, the CE does not contain an exhaustive
list of examples. This CE covers planning and technical studies. FTA
agrees that ``operating assistance to transit authorities to continue
existing or increase service to meet routine demand'' activity should
be added to the CE as it is supported by past FTA documentation and
regulations (i.e., section 771.117(c)(16)). FTA agrees that
``geotechnical investigations'' are routine activities that are a
necessary part of the environmental review of a construction project
and typically do not have significant environmental impacts, but FTA
has chosen not to add the activity to the list of examples at this
time, as some geotechnical work can be substantial and might not be
appropriate for approval under this CE. That said, some geotechnical
work (such as the use of ground penetrating radar), could be approved
under this CE as long as it did not involve construction or lead
directly to construction.
771.118(c)(5) Discrete activities, including repairs, designed to
promote transportation safety, security, accessibility and effective
communication within or adjacent to existing right-of-way, such as: the
deployment of Intelligent Transportation Systems and components;
installation and improvement of safety and communications equipment,
including hazard elimination and mitigation; and retrofitting existing
transportation vehicles, facilities, or structures.
Comment: FTA received 19 comments on proposed section
771.118(c)(5); eight of these comments were in reference to the
preamble. One comment suggested FTA include ``ferry terminal passenger
overhead loading or transfer spans'' to the CE list. One comment
requested FTA add additional language to clarify that the CE does not
include new construction with surface disturbance and significant
change or increase in use. Several comments suggested FTA remove the
term ``discrete'' because it is too subjective a term. Several comments
suggested FTA add ``installation of fencing, signs, pavement markings,
and small passenger shelters'' to the list of activities.
Response: As stated above, the CE does not contain an exhaustive
list of examples. Section 771.118(c)(2) covers ferry terminal passenger
overhead loading or transfer spans. Activities occurring under this CE
would rarely include new construction with surface disturbance and
significant change or increase in use. If this occurred, another CE in
section 771.118(c) may apply, or FTA and the grant applicant would
conduct and document appropriate environmental studies to determine if
the CE classification under section 771.118(d) is proper. FTA agrees
the term ``discrete'' is confusing and deleted it. The term was
intended to distinguish stand-alone projects, such as the installation
of communications equipment along an existing line, from an element of
a larger project, such as construction of a new transit line that
includes installation of communication equipment, among other elements.
As suggested, FTA added ``replacements, and rehabilitations'' to the
final rule for clarity. This CE covers ``installation of fencing,
signs, pavement markings, and small passenger shelters,'' as these
activities promote transportation safety, security, accessibility, and
effective communication.
771.118(c)(6) Acquisition or transfer of an interest in real
property that is not within or adjacent to recognized environmentally
sensitive areas (e.g., wetlands, non-urban parks, wildlife management
areas) and does not result in a substantial change in the functional
use of the property or in substantial displacements, such as: scenic
[[Page 8974]]
easements and historic sites for the purpose of preserving the site.
This CE extends only to acquisitions that will not limit the evaluation
of alternatives.
Comment: FTA received 19 comments on proposed section
771.118(c)(6); four of these comments were in reference to the
preamble. One comment requested clarification of the phrases
``acquisition or transfer of an interest in real property'' and ``not
within or adjacent to.'' FTA received four comments requesting ``or
transfers'' be added to the second sentence of the CE. FTA received
several comments requesting clarification that ``acquisitions or
transfers'' include acquiring interests in real property where those
real property interests will not limit the evaluation of alternatives.
Response: FTA uses the phrase ``Acquisition or transfer of an
interest in real property'' to mean the act of purchasing or otherwise
acquiring a property right in the property (e.g., absolute ownership,
trackage right, easement, etc.). FTA uses the phrase ``not within or
adjacent to'' to mean property that is not inside or adjoining other
property considered environmentally sensitive. FTA agrees that
including ``or transfers'' in the second sentence will clarify FTA's
intent to apply this CE to both acquisitions and transfers of interest
in real property. FTA further clarifies that the ``acquisitions or
transfers'' under this CE will not limit the NEPA evaluation of
alternatives for FTA-assisted projects built on the property. Note that
a similar CE covering property acquisition in section 771.118(d)(3)
would allow property acquisition without these limitations but would
require documentation under section 771.118(d) to demonstrate that the
CE applies.
Comment: FTA received one comment requesting clarification of the
phrase ``substantial displacements, such as scenic easements and
historic sites.'' FTA received one comment that noted the commenter
interpreted this CE to include ``hardship acquisitions, provided that
they do not result in a substantial change in the functional use of the
property or in substantial displacements prior to completion of the
[NEPA] process for any proposed change in the use of the property for
the project under consideration.''
Response: FTA's reference to scenic easements or historic sites
(for preserving the site) was to provide examples of special cases
where this CE might apply. As noted previously, section 771.118(d)(3)
covers other acquisition of property (including real property for
hardship or protective purposes) where the limitations of section
771.118(c)(6) are not satisfied.
Comment: FTA received one comment suggesting the CE include the
phrase ``until such time as the evaluation of alternatives is completed
or suspended'' in order to clarify the timing of the change in the
functional use of the property. One comment suggested the ``functional
use'' criterion may be unnecessarily narrow because not all changes in
functional use pose a potential for impacts. The comment suggested FTA
revise the proposed criterion from ``does not result in a substantial
change in the functional use of the property'' to read, ``does not
result in a substantial physical change to the property.''
Response: FTA agrees with the recommendation to add, ``until such
time as the evaluation of alternatives is completed or suspended''
though FTA revised the language to read, ``for future FTA-assisted
projects that make use of the acquired or transferred property.'' FTA
will keep ``functional use'' as a qualifying criterion for this CE
because any change in the functional use of the property, if FTA-
assisted, would require a separate NEPA evaluation of the project.
Comment: FTA received one comment that suggested additional
activities be included in this CE. The comment requested FTA add
``Approval for Right of Way Disposal or Joint or Limited Use'' which
was previously in section 771.117(d)(6).
Response: For FTA, the transit agency's disposal of property that
it owns, but in which there is an FTA financial interest due to past
grant(s), is not a Federal action for purposes of NEPA and the FTA
environmental review process because, as several Federal courts have
found, Federal agencies do not exercise sufficient control over these
actions to trigger NEPA. See, e.g., Woodham v. FTA, 125 F.Supp.2d 1106,
1110 (N.D. Ga. 2000); South Bronx Coalition for Clean Air v. Conroy, 20
F. Supp.2d 565, 570-71 (S.D.N.Y. 1998). Thus, there is no need to
categorically exclude these actions from NEPA because NEPA does not
apply. Instead, disposition actions by transit agencies of their own
property are governed by FTA rules that protect FTA's investment in
transit, and the property owner can take any action within those rules
with no discretion by FTA over which action is taken.
For joint development projects funded with FTA grants, FTA has
added a new CE at section 771.118(c)(10) that would cover actions
previously covered by section 771.117(d)(6).
771.118(c)(7) Acquisition, rehabilitation and maintenance of
vehicles or equipment, within or accommodated by existing facilities,
that does not result in a change in functional use of the facilities,
such as: equipment to be located within existing facilities and with no
substantial off-site impacts; and vehicles, including buses, rail cars,
trolley cars, ferry boats and people movers that can be accommodated by
existing facilities or by new facilities that qualify for categorical
exclusion.
Comment: FTA received 14 comments on proposed section
771.118(c)(7); eight of these comments were in reference to the
preamble. Of the remaining comments, several comments asked FTA to
clarify phrases used in the proposed rule, including ``located within
existing facilities;'' ``no substantial off-site impacts;'' and ``that
can be accommodated by existing facilities or new facilities.'' One
comment recommended FTA revise the language to clearly address
installation of new equipment within the transit facility. Several
comments suggested FTA add ``installation'' and ``replacement''
involving vehicles and equipment to this category.
Response: FTA uses the phrase ``located within existing
facilities'' to mean equipment located within a property that is
already dedicated to a transportation function or within an existing
building. FTA uses the phrase ``no substantial off-site impacts'' to
mean that minor, insignificant impacts may occur outside property
lines. FTA uses the phrase ``that can be accommodated by existing
facilities or by new facilities'' to mean that the existing facilities
have sufficient excess capacity to accommodate the vehicles, or, if the
transit vehicles require new facilities, the new facilities also meet
the requirements for a categorical exclusion. If the new facilities
required by the new vehicles require an EA or EIS, the vehicle
acquisition would be evaluated as part of that larger project. FTA
agrees with adding ``installation'' and ``replacement'' of vehicles or
equipment to the CE and has done so.
771.118(c)(8) Maintenance and minimally intrusive rehabilitation
and reconstruction of facilities that occupy substantially the same
environmental footprint and do not result in a change in functional
use, such as: Improvements to bridges, tunnels, storage yards,
buildings, and terminals; and construction of platform extensions and
passing track.
Comment: FTA received 40 comments on proposed section
771.118(c)(8); five of these comments were in reference to
[[Page 8975]]
the preamble. FTA received nine comments requesting clarification of
terms and phrases, including ``minimally intrusive;'' ``facilities that
occupy substantially the same environmental footprint;''
``reconstruction;'' and ``footprint.'' Eight comments specifically
suggested FTA delete ``minimally intrusive.'' A few comments suggested
FTA replace ``environmental'' with ``physical,'' and one comment
recommended FTA replace ``environmental footprint'' with ``general
location.'' One comment requested FTA replace ``that occupy
substantially the same environmental footprint'' with ``that does not
result in substantial off-site impacts.'' One comment requested the
category be further limited (e.g., ``actions that do not increase the
environmental footprint of a facility'').
Response: FTA intended the term ``minimally intrusive'' to describe
rehabilitation and reconstruction activity that would not have
significant adverse environmental effects. FTA agrees that this term
could be misinterpreted. Further, FTA finds this CE is substantially
constrained by the other limitations in the CE and therefore removed
``minimally intrusive'' from the final rule. FTA uses the term
``reconstruction'' to mean a rebuilding of the facility. FTA intended
the phrase ``facilities that occupy substantially the same
environmental footprint'' to mean facilities that are geographically
located on the same property and within the same developed or disturbed
area; for purposes of clarity, FTA will use ``geographic footprint''
instead of ``environmental footprint.'' The term ``geographic
footprint'' is intended to be slightly more general than the term
``engineering footprint,'' the use of which would confine project
activities strictly to the locations where human-built structures or
facilities already exist, whereas the term ``geographic footprint''
would include all areas already affected by the impacts of the
facility. This also addresses the concern that this comment be further
limited. In other words, confining these activities to those areas
would ensure no potential for significant environmental effects.
Comment: FTA received 13 comments recommending revisions to the CE
language. FTA received several comments stating the CE language is not
clear and does not broaden the scope of activities included under this
CE. One comment also proposed creating a new CE specifically for
``maintenance and improvement to rail-bed and track when carried out
within the existing right-of-way.''
Response: FTA agrees that track and railbed improvements are
projects that qualify under this CE, and are so commonly assisted by
FTA grants they should be added to the list of examples. The language
in the final rule reflects this change. FTA does believe that this CE
broadens the transit-related CEs from the former section 771.117(c),
and activities that do not qualify under this CE might still qualify
under section 771.118(d), with documentation.
Comment: FTA received one comment stating the proposed replacement
provision ``muddles the concept of restorative activities'' by
providing examples of ``improvements,'' while at the same time
disclaiming the availability of a CE for any project that will cause a
change (i.e., an ``improvement'') in functional use. In other words, if
a grant applicant intends a project to ``improve'' certain
infrastructure through maintenance, rehabilitation, and reconstruction,
the project is entitled to a CE. However, if the proposed action
``improves'' the functional use of the facility, a CE may not be
available.
Response: FTA disagrees with this analysis. Maintenance,
rehabilitation, and reconstruction of certain facilities would be
included in this CE as long as the facilities occupy substantially the
same geographic footprint, meaning the impact to the environment is
essentially unchanged and the functional use of the facility is
unchanged. An improvement to the facilities is not a change in
functional use. For example, when a transit center is rehabilitated
under this CE, it may be improved by incorporating the latest
communications and passenger information technologies. If the transit
center's function is changed by converting it into a bus maintenance
facility, then it would not qualify under this CE, though it may
qualify under section 771.118(d), with documentation. Thus, certain
improvements would be allowed by this CE as long as the functional use
does not change and the other conditions are met.
Comment: FTA received 12 comments requesting FTA include additional
examples for section 771.118(c)(8). Proposed additional examples
include ``track and railbed improvements;'' ``railbed maintenance and
improvements within the existing right-of-way;'' ``stations'' or
``stations and station buildings;'' ``bridge replacement;'' ``renewal
and/or component repair;'' and ``retaining walls.'' FTA received one
comment requesting clarification whether track and railbed work is
included in this CE. FTA received one comment requesting that
``terminals'' include ferry terminals, and one comment asking FTA to
confirm rehabilitation of transit infrastructure (track, ties,
supporting structures, and utilities) would be included in this CE.
Response: As stated above, the CE does not contain an exhaustive
list of examples. FTA is adding ``track and railbed improvements,''
``stations,'' and ``retaining walls'' to the list of examples because
these activities are frequently assisted by FTA grants. ``Bridge
replacement,'' however, is more appropriately addressed under section
771.118(d), which requires that it be appropriately documented. As
written, this CE covers ``renewal and/or component repair,'' ferry
terminals, and transit infrastructure rehabilitation.
Comment: FTA received one comment that asked whether all activities
listed under former section 771.117(d)(3) fall under this CE.
Response: Most, but not all, of the activities falling under
section 771.117(d)(3) would fall under section 771.118(c)(8). The types
of actions in section 771.117(d)(3), specifically reconstruction of a
bridge and construction of a new rail-highway grade separation, at this
time would require documentation to demonstrate that the CE would apply
and that no unusual circumstances would result. These types of projects
are included in section 771.118(d)(2) of this final rule. Other than
these larger projects, activities falling under section 771.117(d)(3)
now fall under section 771.118(c)(8) in this final rule, as well.
771.118(c)(9) Assembly or construction of facilities that is
consistent with existing land use and zoning requirements (including
floodplain regulations), is minimally intrusive, and requires no
special permits, permissions, and uses a minimal amount of undisturbed
land, such as: buildings and associated structures; bus transfers,
busways, and streetcar lines within existing transportation right-of-
way; and parking facilities.
Comment: FTA received 58 comments on proposed section
771.118(c)(9); 11 of these comments were in reference to the preamble.
FTA received nine comments on the term ``minimally intrusive.''
Comments suggested the term was ambiguous or subjective and recommended
FTA either remove this language or provide further clarification of its
meaning. FTA received 20 comments on the phrase ``requires no special
permit, permissions.'' Comments suggested the phrase added confusion to
the applicability of the CE as nearly all projects require some type of
permit or permission, and recommended FTA
[[Page 8976]]
either remove this language or provide further clarification of its
meaning. FTA received 11 comments on the phrase ``uses a minimal amount
of undisturbed land.'' Comments suggested FTA remove this language,
provide further clarification of its meaning, or change the language to
``uses previously disturbed land.'' FTA received 11 comments on the
term ``bus transfers.'' Comments suggested the term was ambiguous or
too limiting and recommended FTA either provide further clarification
of its meaning or replace the language with the term ``bus transfer
stations and intermodal centers'' in order to capture all appropriate
bus facilities and broaden the applicability of this CE. FTA received
11 comments on the term ``streetcar lines.'' Comments suggested FTA
replace this language with ``fixed guideways'' in order to be mode-
neutral and broaden the scope of projects eligible under this CE.
Response: FTA agrees the term ``minimally intrusive'' is covered by
the permit restriction and therefore removes it from the final rule.
FTA agrees that the phrase ``requires no special permit, permissions''
is also not necessary, as it represents requirements under other laws
that would require the same degree of compliance regardless of the NEPA
class of action. FTA is removing that language as not necessary to the
determination. Where special permits are required that raise questions
about the environmental impacts of the proposed action, a documented
CE, EA, or EIS may be appropriate if ``unusual circumstances'' are
present that suggest there could be individual or cumulative
significant effects to the environment. FTA intended the phrase ``uses
a minimal amount of undisturbed land'' to mean a negligible amount of
land in its natural state. Given the comment and the need for
clarification, however, FTA is revising that language to read ``uses
primarily land previously disturbed for transportation use.'' FTA
believes that use of this phrase responds to the comment and clarifies
the application.
FTA agrees to replace ``bus transfers'' with ``bus transfer
stations or intermodal centers'' in the final rule. Rather than replace
``streetcar lines'' with ``fixed guideways'' in the final rule, FTA
will use the term ``busways, streetcar lines, or other transit
investments'' to allow for other types of transit investments that
would be appropriate for this CE.
Comment: FTA received eight comments suggesting FTA modify the CE
language by adding ``operating'' prior to ``within existing
transportation right-of-way'' to limit the actions that could be
covered by this CE. One comment asked FTA to clarify why FTA did not
include bus stations/stops, bus passenger shelters, bus lanes, bus
bays, bus queue jumper and bypass lanes, and bus malls. One comment
asked FTA to consider including ``electric trolleybus'' to the list of
examples. Lastly, one comment noted many of the FTA FONSIs supporting
this CE in the substantiating documentation include right-of-way
acquisition. FTA interprets this comment to mean the commenter would
like this CE to include projects that would primarily occur within the
public right-of-way, but not entirely, and result in few displacements.
Response: Rather than include the term ``operating'' prior to
``within existing transportation right-of-way'' in this final rule, FTA
added language to that particular CE example that attempts to get at
the same point but with more specificity. Rather than using ``existing
transportation right-of-way,'' FTA will use the terminology: ``areas of
the right-of-way occupied by the physical footprint of the existing
facility or otherwise maintained for transportation operations.'' This
will provide the limitation requested by the commenter in a more
specific way for this project example in this CE. Future rulemaking
will address a CE designation for projects within the ``operational
right-of-way,'' as required under section 1316 of MAP-21. FTA chose to
limit the number of examples under this and all CEs because FTA meant
for the list to be merely illustrative of its applicability. For
example, FTA will not include ``electric trolleybus'' to the list of
examples, even though they would be covered by the CE if the proposed
action otherwise met the CE requirements. But as noted above, FTA has
decided, to make this clearer, to broaden the example to ``busways,
streetcar lines, or other similar transit investments.'' FTA decided
not to allow some unspecified amount of land acquisition beyond public
rights-of-way to be associated with this CE for streetcar and busway
projects because the environmental impacts of the use of that land
would be unknown. But projects functionally similar to those listed and
requiring minor right-of-way acquisition may still be covered by the CE
as long as ``unusual circumstances'' would not result in environmental
impacts where the CE classification would be improper.
Comment: FTA received one comment suggesting that proposed section
771.118(c)(9) overlaps with the proposed sections 771.118(d)(1) and
(d)(2), and that this could cause confusion when determining which CE
to apply. This comment requested more clarity and distinction between
undocumented and documented CEs. This comment also recommended removal
of all examples in the section 771.118(d).
Response: For purposes of streamlining, FTA focused this rulemaking
on the new section 771.118(c). FTA does not agree that examples falling
under section 771.118(d) should be removed. FTA continues to believe
that, at this time, grant applicants should submit documentation
demonstrating the specific conditions or criteria for the examples
listed are satisfied and that unusual circumstances will not result in
significant environmental effects.
771.118(c)(10) Development activities for transit and non-transit
purposes, located on, above, or adjacent to existing transit
facilities, that are not part of a larger transportation project and do
not substantially enlarge such facilities, such as: police facilities,
daycare facilities, public service facilities, and amenities.
Comment: FTA received 17 comments on proposed section
771.118(c)(10); several of these comments were in reference to the
preamble. FTA received four comments that requested clarification of
the range of activities falling within the definition of ``development
activities.'' One comment suggested the proposed CE is limited to
public service facilities and amenities, and does not include
commercial or residential development. Four comments recommended FTA
replace the term ``development'' with ``construction,'' ``facilities,''
``structures,'' or ``buildings.'' One comment requested FTA clarify
that the proposed uses must not adversely impact transit operations,
safety, and future facility plans. One comment requested FTA clarify
the phrase ``located on, above, or adjacent to existing transit
facilities.'' Several comments requested FTA clarify the phrase ``do
not substantially enlarge such facilities'' and one comment requested
the CE be further limited because ``substantially'' is ``open to
interpretation.'' Finally, one comment proposed that standard public
notification and public comment opportunities associated with local
land use decisions meant that a separate EA for development activities
was unwarranted.
Response: FTA agrees the term ``development activities'' is
excessively inclusive and therefore replaces it with the term
``development of facilities.'' FTA does not want to limit this CE to
public service facilities and amenities,
[[Page 8977]]
and adds, ``commercial, retail, and residential development'' to the
list of activities covered by this CE accordingly. FTA agrees the
development must not adversely impact transit operations and safety.
The environmental review process is not FTA's mechanism for enforcing
operating and safety constraints in this situation; rather, MAP-21 has
provided FTA with new authority in these areas. FTA uses the terms
``located on, above, or adjacent to'' in keeping with common usage and
interpretation, but FTA is very unlikely to be involved in a project
that does not have some transit connection. FTA uses the term
``substantially'' to limit the potential environmental impacts of the
facilities covered by section 771.118(c)(10), but section 771.118(d)
may apply when section 771.118(c)(10) does not. FTA agrees that
typically an EA for the development activities described in this CE
would not be triggered by local ordinances that require public
notification procedures; an EA would be triggered based on uncertainty
of environmental impacts. Comments on section 771.118(d) have all been
covered in the responses above to general comments and to the comments
on section 771.118(c).
Section 771.118(d)
Comment: FTA received one comment requesting clarification
regarding whether the activities under section 771.118(d)(1) include
adding bus lanes, bus shoulder lanes, busways, bus malls, bus bays, bus
queue jumper and bypass lanes, HOV lanes, and/or HOT lanes, and whether
the list also includes the conversion of a mixed-use traffic lane into
a bus lane, HOV lane, HOT lane, or bus mall in addition to turn lanes
and passing lanes.
Response: FTA recommends a grant applicant work closely with the
FTA regional office to determine whether a particular project is
eligible for FTA assistance and meets the requirements for any
particular CE. In this instance, the comment provides some examples
that appear to be new transit lanes to a highway. Some of the project
examples in the comment may or may not, depending on additional unknown
project details, include a transit component. The language of the
example in section 771.118(d)(1) is written to cover the conversion of
existing auxiliary lanes or shoulders to a transit purpose, not general
purpose travel lanes, but it is only an example, and other similar
projects could potentially be categorically excluded if a reasonable
amount of documentation can show there is no potential for significant
environmental impacts. Also, the new CE in section 771.118(c)(9) can be
used for busways if the limitations in the CE language are met.
Comment: FTA received seven comments on the proposed documented
categorical exclusion located within section 771.118(d)(2). One comment
requested that FTA clarify the range of actions allowed under
``reconstruction'' and ``grade-separation to replace existing at-grade
railroad crossings.'' Several comments suggested that FTA consider
appending additional actions to this example, including ``grade
separation to replace at-grade busway crossings'' and ``direct access
ramps.'' Additionally, the comment recommended that FTA use either the
term ``railroad-highway grade crossing'' or ``railway-highway grade
crossing'' instead of ``at-grade railroad crossings.''
Response: Section 771.118(d) mimics section 771.117(d), except that
it lists fewer examples in light of the separate FHWA and FTA lists and
the more expansive list proposed for section 771.118(c). Given that the
list of actions in the new section 771.118(d) are only examples of the
types of actions that could be categorically excluded through the use
of documentation, FTA does not see the need to modify the language in
the example at this time. The projects represented by the edits to this
CE language by commenters could certainly be categorically excluded if
demonstrated as having no potential for significant environmental
effects in the same way as a project represented by the language in the
CE example.
FTA acknowledges, however, that the language in section
771.118(d)(4) must be modified to reflect the expansion by MAP-21
Section 20016 of early acquisition authority from railroad right-of-way
to any right-of-way needed for a transit project (i.e., ``railroad''
was deleted). Despite the expansion to any right-of-way needed for a
transit project, the conditions found in sections 771.118(a) and (b)
must be met to qualify for a CE.
Section 771.119 Environmental assessments
The proposed changes to sections 771.119 and 771.123 were very
similar in content, and, as a result, the comments on section 771.119
were essentially the same as the comments on section 771.123. Responses
below address both Sections.
Section 771.123 Draft environmental impact statements
Comment: FTA received several comments in support of the proposed
change to section 771.119(k) relating to outside contractors preparing
EAs, and section 771.123(d) relating to outside contractors preparing
draft EISs. FTA received 13 comments that opposed the proposed change
and recommended that FTA eliminate this proposal from inclusion in the
final rule. Twenty-seven comments suggested the proposal may have
unintended impacts on project timeline, add uncertainty to the process,
and delay preparation and completion of environmental documentation,
all running counter to FTA's goal of making the environmental review
process more efficient. Several comments suggested the proposal may be
inconsistent with transit agency or local government environmental
requirements or contracting requirements and may be inconsistent with
State law. Thirteen comments recommended FTA should instead provide
guidance to grant applicants before they contract the environmental
work, and that this guidance provide standard outlines and suggested
content for the contracts' statements of work (SOWs) for EAs and EISs.
These commenters argued this guidance would provide significant support
toward achieving FTA's streamlining goal. Seven comments recommended
FTA define the term ``informal scoping'' and agency expectations for
this step in the process. One comment suggested that rather than
require FTA approval of a NEPA contractor's SOW, which can often be
very long and detailed, a more streamlined approach would be to require
FTA approval of a simple outline or table of contents for the EA or EIS
describing the alternatives and elements of the environment to be
studied in the document. The grant applicant can then work directly
with the contractor to reflect the agreed upon scope of the document.
Finally, one comment requested FTA consider allowing grant applicants
to hire a NEPA contractor using a two-part SOW. The first part would be
limited to work necessary for scoping; the second would be to prepare
the environmental document, subject to the conditions set forth in
sections 771.119 and 771.123.
Response: Due to the number of comments received and their
overwhelming opposition to, or problem identification for, the proposed
language in the NPRM, FTA will not include contracting language in 23
CFR Part 771 at this time. FTA will provide guidance to highlight best
practices on contracting, including recommendations on the procurement
timing and EA/EIS development (e.g., two-part statements of work, task
orders), and what grant applicants should consider when
[[Page 8978]]
reviewing statements of work and selecting contractors.
Section-by-Section Analysis
Section 771.101 Purpose
The NPRM contained no proposed changes for section 771.101, but
MAP-21 eliminated environmental provisions previously contained in 49
U.S.C. 5324, so FTA is removing reference to that section and changing
the reference to 49 U.S.C. 5323 to be consistent with the new statutory
structure.
Section 771.105 Policy
The minor, non-substantive revision to the footnote to section
771.105(a) proposed in the NPRM has been included. This revision
recognizes the fact that both FTA and the FHWA frequently update
guidance relevant to the preparation of environmental documents. The
added phrase ``but is not limited to'' clarifies this point, such that
the introduction to supplementary guidance now reads: ``FHWA and FTA
have supplementary guidance on environmental documents and procedures
for their programs. This guidance includes, but is not limited to * * *
'' In addition, the spelling of the word ``Web sites'' has been changed
to the more commonly used ``websites.''
Section 771.107 Definitions
Although not mentioned in the NPRM, FTA and the FHWA have made
revisions to the definition of ``Administration'' in paragraph (d) of
this section to clarify that any reference in Part 771 to ``the
Administration'' means the FHWA, FTA, or a State when the State is
functioning as the FHWA or FTA in carrying out responsibilities
delegated or assigned to the State under 23 U.S.C 325, 326, or 327, or
other applicable law. The clarification was made due to changes to
sections 771.117 and 771.118 where it is now specifically noted that
section 771.117 applies to FHWA actions and section 771.118 applies to
FTA actions. If the final rule did not make this change, then
technically, the CE lists would not apply in any instance in which a
State has been delegated or assigned the authority of the FHWA or FTA.
This is a technical/administrative change only. In addition, clarifying
text was added to the end of the definition to clarify that this
definition is not intended to affect the scope of any delegation or
assignment.
Section 771.109 Applicability and responsibilities
The minor, non-substantive revision proposed for this section to
correct the spelling of the word ``construction'' has been completed.
Section 771.111 Early coordination, public involvement, and project
development
FTA is adopting the proposed procedures in section 771.111(i) that
provide grant applicants with flexibility and efficiency in the public
involvement aspects of the environmental process. Section 771.111(i)(1)
encourages grant applicants to announce project milestones using either
electronic or paper media. Currently, the use of electronic means is
already practiced by some grant applicants, but FTA is making clear
that the use of the option is available for all grant applicants. FTA
is taking advantage of its experience that seeking public input in the
environmental process by various means, such as increasing the use of
project websites, adds value and flexibility that broadens public
access and input and, thereby, ultimately expedites project review.
Additionally, FTA deleted ``pursuant to 49 U.S.C. 5323(b)'' from the
end of section 771.111(i) to reflect changes to FTA law made by MAP-21.
There is no longer a statutory requirement for public involvement in
transit law at Chapter 53 of Title 49, U.S. Code, but public
involvement is required by NEPA and remains fixed in FTA's
environmental regulation (i.e., 23 CFR part 771) and thereby part of
the environmental review process for transit projects. Section
771.111(i)(2) formally presents the option of doing ``early scoping,''
which can be used to link the metropolitan and statewide transportation
planning processes, mandated by 49 U.S.C. 5303-5304, with the
environmental review process to provide a seamless transition from
transportation planning to project-specific environmental evaluation.
Early scoping provides a logical connection between planning-level
corridor studies and environmental review required by NEPA to produce a
proposed action to be studied during the NEPA process. Steps for
following the early scoping process are included in section
771.111(i)(2), which FTA is adopting. To increase the transparency of
FTA environmental documents and process, section 771.111(i)(3)
encourages posting and distributing environmental process-related
materials through publicly-accessible electronic means, including
project websites. FTA is adopting section 771.111(i)(4) to encourage
the posting of all EISs (draft and final) and environmental records of
decision (RODs) on a grant applicant's project website and maintaining
it there until the project is constructed and operating. Additionally,
the Environmental Protection Agency (EPA) has developed an electronic
filing system for EIS documents (e-NEPA), which allows for posting of
EISs on the EPA website (http://www.epa.gov/oecaerth/nepa/submiteis/index.html). FTA provides a link on its website to direct the public to
EPA's comprehensive EIS database at http://www.fta.dot.gov/12347_documents.html. This final rule does not change the procedure for
distribution of hard copies of FTA environmental documents upon request
or the placement of such documents in public libraries and local
government buildings within the project area.
Section 771.113 Timing of Administration activities
Prior to this final rule, section 771.113 contained references to
the CEs in section 771.117 that applied to both FTA and the FHWA. With
this final rule, FTA's use of section 771.118 for its CEs and the
designation of section 771.117 for FHWA CEs required updates to the CE
references in section 771.113. Therefore, section 771.113(d)(1) has
been revised to refer to section 771.117(d)(12) for FHWA, and to add a
reference to the new sections 771.118(c)(6) and (d)(3) for FTA. Section
771.113(d)(2) has been revised to reference section 771.118(d)(4), as
this CE applies only to transit actions. Additionally, section
771.113(d)(2) was revised to delete ``pre-existing railroad'' from the
acquisition exception and to update the statutory authority to ``49
U.S.C. 5323(q)'' as a result of changes mandated by MAP-21. By deleting
``pre-existing railroad,'' right-of-way not associated with railroad
corridors may be purchased under section 771.118(d)(4) when the
conditions in sections 771.118(a) and (b) are met, though no work can
take place on the right-of-way until the completion of NEPA for the
project.
Section 771.115 Classes of actions
Section 771.115(a)(3) has been revised to clarify that construction
or extension of a fixed-guideway transit facility not located within an
existing transportation right-of-way normally requires the preparation
of an EIS. In addition, bus rapid transit (BRT), as defined in the
National Transit Database--Glossary was added to the list of examples
of such transit facilities. The former regulation was sometimes
interpreted to expect an EIS for a proposed transit project located
within an existing transportation right-of-way if the project would add
a new transit
[[Page 8979]]
mode to that right-of-way. This final rule reflects FTA's experience
that transit projects constructed within existing transportation
rights-of-way often do not have significant impacts on the environment
and do not require an EIS. In fact, it is FTA's experience that certain
transit facilities qualify for a CE when constructed predominantly
within a transportation right-of-way. In any instance where unusual
circumstances would cause such a project, which would normally be an
excluded action, to have the potential for significant environmental
effects that would require further analysis,, FTA would review it with
an EA or an EIS.
Section 771.115(b) has been revised to state that the CE lists in
section 771.117 apply to FHWA actions, and the CE lists in section
771.118 apply to FTA actions.
Section 771.117 FHWA categorical exclusions
The header for section 771.117 has been changed to ``FHWA
categorical exclusions,'' because the CEs listed in section 771.117 now
apply to FHWA actions. Conforming amendments to clarify the list
applies to the FHWA were performed by changing ``the Administration''
to ``the FHWA'' in sections 771.117(b), (c), and (d). In addition,
although not proposed in the NPRM, this final rule deletes section
771.117(d)(13) as unnecessary because the CE does not apply to the FHWA
and the list in section 771.117(d) is for FHWA actions. The CE will
continue to apply to FTA actions through section 771.118(d)(4). This is
a technical/administrative correction only.
Section 771.118 FTA categorical exclusions
FTA is adopting the new section 771.118 that contains CEs
applicable to FTA actions. The section contains: section 771.118(a)
that describes and defines CE actions; section 771.118(b) that defines
unusual circumstances; and section 771.118(e) that addresses the
consideration for adding new CEs in the future. These three paragraphs
mimic sections 771.117(a), (b), and (e) that formerly applied to both
the FHWA and FTA, but now apply only to FHWA actions.
New sections 771.118(c) and (d) have been added to describe the FTA
CEs. The list in section 771.118(c) is more expansive than the former
list in section 771.117(c). It focuses on the actions most applicable
to FTA and generalizes the descriptions of those actions to be as
inclusive as appropriate for a CE. As described above in the Comments
and Responses section, this final rule makes minor revisions to the
NPRM wording of these CEs in response to comments on the NPRM and for
clarity. FTA will determine whether the action described by the grant
applicant falls within the CE category. FTA expects that a description
of the project in the grant application will normally be sufficient for
FTA to determine that the CE applies and that no unusual circumstances
would result for projects falling under section 771.118(c), but
projects could require documentation for other environmental
requirements, such as Section 106 of the National Historic Preservation
Act, the Endangered Species Act, the Clean Water Act, or the Clean Air
Act. The section also includes section 771.118(d), which lists CEs that
require documentation to verify that the application of a CE is
appropriate. Section 771.118(d) lists fewer examples of CEs than the
former section 771.117(d) because the FHWA and FTA lists have been
separated and the CEs listed in section 771.118(c) were generalized to
include many of the transit actions formerly covered by section
771.117(d). Multimodal projects containing both FHWA and FTA actions
(such as the reconstruction of a highway lane within existing right-of-
way for express bus service funded by FTA but requiring an FHWA
approval) may be processed as CEs under section 771.117 for FHWA and
under section 771.118 for FTA provided there are no cumulative
significant effects of the FHWA and FTA actions.
Per CEQ guidance, the CEs in section 771.118 are presented as
general categories that include appropriate limitations and provide an
informative (but not exhaustive) list of examples. The CEs adopted in
this final rule are listed in the amendatory language of the regulation
itself. Substantiation of the CEs, in accordance with CEQ guidance, was
provided as part of the NPRM and remains available in the NPRM docket
on Regulations.gov. Three of the revisions to the NPRM wording of the
CEs included in this final rule are substantive and are described
below.
Section 771.118(c)(3) was expanded to allow the maintenance and
rehabilitation of historic transportation facilities that may be
adversely affected by the project. None of the CEs except this one
originally involved compliance with both NEPA and Section 106. Such
reference to Section 106 would suggest that Section 106 is an issue
only for this CE and would lessen the attention paid to Section 106 for
other CEs in which Section 106 compliance is not mentioned in the CE
language. Section 106 applies to all CEs that may affect a property on
or eligible for the National Register of Historic Places. Furthermore,
FTA and its grant applicants have in the past had Section 106
programmatic agreements covering the adverse effects of the maintenance
and rehabilitation of historic rapid rail stations eligible for FTA
state-of-good-repair grants. Such programmatic agreements should be
encouraged by FTA, not discouraged by eliminating the applicability of
this CE when a programmatic agreement is signed.
Section 771.118(c)(4) was revised to include transit operating
assistance. Operating assistance is typically used by the grant
applicant to pay bus drivers their wages and for other similar
operating costs that do not involve any construction. Operating
assistance has been one of FTA's long-standing CEs without challenge or
question, and was inadvertently omitted from the NPRM.
Section 771.118(d)(2) was reworded to distinguish between bridge
projects requiring in-water activities and those that do not. Whereas
the NPRM worded section 771.118(d)(2) to cover all bridge-related
projects, in this final rule that section now requires environmental
documentation only for bridge projects involving new construction or
reconstruction of a bridge. Bridge rehabilitation and maintenance,
which would have no significant environmental impacts, are covered by
section 771.118(c)(8) and do not require additional NEPA documentation.
FTA's rationale for having the acquisition of certain real property
interests covered in sections 771.118(c)(6), (d)(3), and (d)(4)
requires explanation. Sections 771.118(d)(3), and (d)(4) cover the
traditional early acquisitions available in the former version of this
regulation, namely hardship and protective acquisitions in section
771.118(d)(3) and the acquisition of existing railroad right-of-way
(ROW) in section 771.118(d)(4). FTA indicates in section 771.118(c)(6)
that under certain conditions, an early property acquisition is
appropriate and categorically excluded even when the acquisition is not
a protective, hardship, or railroad ROW acquisition. The early
acquisitions covered by section 771.118(c)(6) do have some constraints,
however, regarding the environmental context of the property. FTA chose
to add the environmentally constrained acquisitions to the CE list in
section 771.118(c), while retaining the protective and hardship
acquisitions in section 771.118(d). In addition, FTA is retaining but
modifying the CE proposed for section 771.118(d) that would cover
railroad ROW acquisition. FTA is modifying that CE by deleting the word
``railroad'' to reflect the change made to the statute by MAP-21
Section
[[Page 8980]]
20016. FTA recognizes the categories of property acquisition in
sections 771.118(c) and (d) overlap in their coverage, but neither
absorbs the other category of CE in its entirety. Therefore, FTA is
adopting all of the CE categories regarding property acquisition to
maximize coverage.
Further, for reasons described more fully in the background
information, FTA is further expanding section 771.118(d) through the
adoption of the following examples of actions that can be categorically
excluded through the use of documentation:
(5) Construction of bicycle facilities within existing
transportation right-of-way.
(6) Facility modernization through construction or replacement of
existing components.
These examples may be eligible as categorical exclusions as long as
they meet the requirements set forth in sections 771.118(a) and (b).
Section 771.119 Environmental assessments
FTA is adopting no change to section 771.119.
Section 771.123 Draft environmental impact statements
FTA is adopting no change to section 771.123(d). Section 771.123(j)
is deleted as unnecessary, as proposed in the NPRM.
Section 771.133 Compliance with other requirements
No changes are made to this paragraph. FTA had proposed to add a
sentence to this paragraph that stated that its approval of an
environmental document constitutes its finding of compliance with
Sections 5323(b) and 5324(b) of Title 49, U.S. Code. Since issuance of
that NPRM, however, MAP-21 deleted the substantive requires in those
sections. So FTA will not make changes to the regulatory text at this
time.
Regulatory Analysis and Notices
All comments received on or before the close of business on the
comment closing date indicated above were considered and are available
for examination in the docket (FTA-2011-0056) at Regulations.gov.
Comments received after the comment closing date were filed in the
docket and were considered to the extent practicable.
Immediate Effective Date
FTA has determined that this rule be made effective immediately
upon publication. The Administrative Procedure Act (5 U.S.C. 553(d))
requires that a rule be published 30 days prior to its effective date
unless one of three exceptions applies. One of these exceptions is when
the agency finds good cause for a shorter period. Here, FTA has
determined that ``good cause'' exists for immediate effectiveness of
this rule because this rule is expected to apply in many cases that
address the immediate need to repair the transit system facilities and
equipment damaged by Hurricane Sandy. Hurricane Sandy affected mid-
Atlantic and northeastern states in October 2012, and particularly
devastated transit operations in New Jersey and New York. These
operations serve about 40% of all transit riders in the country.
Through immediate promulgation of the categorical exclusions in section
771.118, many of the much needed Hurricane Sandy recovery efforts can
occur in a more expeditious manner, while still ensuring that the
environment is protected. Thus, it is in the public interest for this
final rule to have an immediate effective date. FTA acknowledges the
revisions contained within this final rule are applicable to a broader
suite of FTA-funded and approved projects, but the good cause for
making the rule effective immediately is specifically the support of
Hurricane Sandy recovery efforts.
Executive Orders 13563 and 12866 and DOT Regulatory Policies and
Procedures
Executive Orders 13563 and 12866 direct agencies to assess 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). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, of promoting flexibility, and of
reviewing existing rules to determine if they can be made more
effective or less burdensome in achieving their objectives. FTA and the
FHWA determined this action is a significant regulatory action under
Section 3(f) of Executive Order 12866 and the Regulatory Policies and
Procedures of the Department of Transportation (44 FR 11032).
Therefore, this final rule was submitted to the Office of Management
and Budget (OMB) for interagency review.
This final rule clarifies the existing regulatory requirements for
categorical exclusions, and the provisions of this rule would not
adversely affect, in any material way, any sector of the economy. In
addition, these changes will not interfere with any action taken or
planned by another agency and will not materially alter the budgetary
impact of any entitlements, grants, user fees, or loan programs. FTA
anticipates that the changes included in this final rule will enable
certain projects to move more expeditiously through the Federal NEPA
review process and will reduce the preparation of extraneous
environmental documentation and analysis not needed for compliance with
NEPA or for ensuring that projects are built in an environmentally
responsible manner. Under the previous regulations, approximately 90
percent of FTA's actions were CEs (specifically, under former sections
771.117(c) and (d)). FTA anticipates the percentage will increase under
this final rule, especially where new categorically excluded actions
are included.
FTA has estimated generally that, in the past, the duration of
FTA's environmental review process for various NEPA actions has been
within the following ranges: EISs from 1.5 years to 4 years; EAs from 6
months to 22 months; and documented CEs from 1 to 6 months. Where a
particular action falls within that range depends on a number of
factors, including the complexity of the action, the extent of
environmental impacts, the local financial resources available for the
project, and the source of Federal funds (along with any project
development or evaluation processes involved in securing a Federal
funding commitment). Actions processed as CEs under the old section
771.117(c) (now under this final rule at section 771.118(c)) have
tended to take from a few days up to a month, depending primarily on
whether there are other environmental requirements that must be met and
whether the project description in the grant application is
sufficiently thorough.
The greatest percentage of actions that will be processed under the
new section 771.118(c) that were not previously processed under the old
section 771.117(c) were likely processed before as documented CEs under
section 771.117(d). The time saved from processing those actions under
the new list would be due primarily to the need for less documentation,
and thus would depend greatly on whether there are other environmental
requirements (such as Section 106 consultation under the National
Historic Preservation Act or compliance with Executive Order 12898 on
Environmental Justice) that still must be met regardless of the CE type
used. Some projects that will qualify as CEs
[[Page 8981]]
under the new section 771.118(c) might otherwise have been processed as
EAs in the past. For those projects, greater time savings are
anticipated given that there no longer will be a need to prepare an EA
and a Finding of No Significant Impact for publication, in addition to
reduced need to produce environmental documentation demonstrating a
lack of impacts. As for projects previously evaluated with EISs, it is
unlikely that any such actions would qualify as CEs under the new
section 771.118(c) because most actions evaluated as EISs result in
significant environmental impacts.
FTA is not able to quantify the economic effects of these changes
because the types of projects that will be proposed for FTA funding and
their potential impacts are unknown at this time. FTA received no
comment on the likely effects of the changes proposed by the NPRM, but
FTA anticipates this final rule will result in substantial benefits
associated with the quicker delivery of transit projects with no
associated increase in costs or decrease in environmental protection.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), FTA and the FHWA must consider whether this final rule would
have a significant economic impact on a substantial number of small
entities. ``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. FTA does not believe that this final rule
will have a significant economic impact on entities of any size, and
FTA received no comment in response to our request for any such
information in the NPRM. Thus, FTA and the FHWA determine that this
final rule will not have a significant economic impact on a substantial
number of small entities.
Executive Order 13132: Federalism
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 final rule has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132. FTA and the FHWA have determined that this action will not
have a substantial direct effect on the States, or the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government,
and, therefore, does not have Federalism implications. We received no
comments from State and local governments in response to our request in
the NPRM for information on the effect that specific proposals would
have on State or local governments.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 requires agencies to assure meaningful and
timely input from Indian tribal government representatives in the
development of rules that ``significantly or uniquely affect'' Indian
communities and that impose ``substantial and direct compliance costs''
on such communities. FTA analyzed this final rule under Executive Order
13175 and believes that the proposed action will not have substantial
direct effects on one or more Indian tribes; will not impose
substantial direct compliance costs on Indian tribal governments; and
will not preempt tribal laws. Therefore, a tribal impact statement is
not required. FTA received no comment in response to our request in the
NPRM for comments from Indian tribal governments on the effect that
adoption of specific proposals might have on Indian communities.
National Environmental Policy Act
This action would not have any effect on the quality of the
environment under the National Environmental Policy Act of 1969 (NEPA).
The 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.
Agencies are required to adopt NEPA procedures that establish specific
criteria for, and identification of, three classes of actions: those
that normally require preparation of an EIS; those that normally
require preparation of an EA; and those that are categorically excluded
from further NEPA review (40 CFR 1507.3(b)). 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
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).
Statutory/Legal Authority for This Rulemaking
The FHWA and FTA derive explicit authority for this rulemaking
action from 49 U.S.C. 322, which provides authority to ``[a]n officer
of the Department of Transportation [to] prescribe regulations to carry
out the duties and powers of the officer.'' That authority is delegated
to the FHWA and FTA through 49 CFR 1.81(a)(3), which provides that the
authority to prescribe regulations contained in 49 U.S.C. 322 is
delegated to each Administrator ``with respect to statutory provisions
for which authority is delegated by other sections in [49 CFR Part
1].'' Included in 49 CFR part 1, specifically 49 CFR 1.81(a)(5), is the
delegation of authority with respect to NEPA, the statute implemented
by this final rule. Moreover, the CEQ regulations that implement NEPA
provide at 40 CFR 1500.6 that ``[a]gencies shall review their policies,
procedures, and regulations accordingly and revise them as necessary to
insure full compliance with the purposes and provisions of [NEPA].''
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no Federal agency shall
conduct or sponsor a collection of information unless in advance the
agency has obtained approval by and a control number from OMB, and no
person is required to respond to a collection of information unless it
displays a valid OMB control number. This rule does not include any new
or revise any existing information collection.
Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) 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
number contained in the heading of this document may be used to cross-
reference this action with the Unified Agenda.
[[Page 8982]]
Privacy Act
Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477).
Unfunded Mandates Reform Act of 1995
This final rule will not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This final rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$128.1 million or more in any one year (2 U.S.C. 1532).
Executive Order 12630 (Taking of Private Property)
FTA analyzed this final rule under Executive Order 12630,
Government Actions and Interface with Constitutionally Protected
Property Rights. This rule will not affect a taking of private property
or otherwise have taking implications under Executive Order 12630.
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 13211 (Energy Effects)
FTA analyzed this action under Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use,'' dated May 18, 2001. FTA determined that this 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 is not required.
Executive Order 13045 (Protection of Children)
FTA analyzed this action under Executive Order 13045, Protection of
Children from Environmental Health Risks and Safety Risks. FTA
certifies that this final rule is not an economically significant rule
and will not cause an environmental risk to health or safety that may
disproportionately affect children.
List of Subjects
23 CFR Part 771
Environmental protection, Grant programs--transportation, Highways
and roads, Historic preservation, Public lands, Recreation areas,
Reporting and recordkeeping requirements.
49 CFR Part 622
Environmental impact statements, Grant programs--transportation,
Public transit, Recreation areas, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, amend Chapter I of Title
23 and Chapter VI of Title 49, of the Code of Federal Regulations as
set forth below:
Federal Highway Administration
Title 23--Highways
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
0
1. The authority citation for part 771 continues 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; Pub. L. 109-59, 119
Stat. 1144, Sections 6002 and 6010; 40 CFR parts 1500-1508; 23
U.S.C. 322; 49 CFR 1.81; Pub. L. 112-141, 126 Stat. 405.
0
2. Amend Sec. 771.101 by revising the last sentence to read as
follows:
Sec. 771.101 Purpose.
* * * This regulation also sets forth procedures to comply with 23
U.S.C. 109(h), 128, 138, 139, 325, 326, 327, and 49 U.S.C. 303, 5301,
and 5323.
0
3. Amend Sec. 771.105 by revising footnote 1 of paragraph (a) to read
as follows:
Sec. 771.105 Policy.
* * * * *
(a) * * * 1
1 FHWA and FTA have supplementary guidance on
environmental documents and procedures for their programs. This
guidance includes, but is not limited to: FHWA Technical Advisory
T6640.8A, October 30, 1987; ``SAFETEA-LU Environmental Review
Process: Final Guidance,'' November 15, 2006; Appendix A of 23 CFR
part 450, titled ``Linking the Transportation Planning and NEPA
Processes''; and ``Transit Noise and Vibration Impact Assessment,''
May 2006. The FHWA and FTA supplementary guidance, and any updated
versions of the guidance, are available from the respective FHWA and
FTA headquarters and field offices as prescribed in 49 CFR part 7
and on their respective Web sites at http://www.fhwa.dot.gov and
http://www.fta.dot.gov, or in hard copy by request.
0
4. Amend Sec. 771.107 by revising paragraph (d) to read as follows:
Sec. 771.107 Definitions.
* * * * *
(d) Administration. The FHWA or FTA, whichever is the designated
Federal lead agency for the proposed action. A reference herein to the
Administration means the FHWA, or FTA, or a State when the State is
functioning as the FHWA or FTA in carrying out responsibilities
delegated or assigned to the State in accordance with 23 U.S.C. 325,
326, or 327, or other applicable law. A reference herein to the FHWA or
FTA means the State when the State is functioning as the FHWA or FTA
respectively in carrying out responsibilities delegated or assigned to
the State in accordance with 23 U.S.C. 325, 326, or 327, or other
applicable law. Nothing in this definition alters the scope of any
delegation or assignment made by FHWA or FTA.
* * * * *
Sec. 771.109 [Amended]
0
5. Amend Sec. 771.109 in paragraph (b) by removing the misspelled word
``contruction'' and adding in its place the word ``construction''.
0
6. Amend Sec. 771.111 by revising paragraph (i) to read as follows:
Sec. 771.111 Early coordination, public involvement, and project
development.
* * * * *
(i) Applicants for capital assistance in the FTA program:
(1) Achieve public participation on proposed projects through
activities that engage the public, including public hearings, town
meetings, and charettes, and seeking input from the public through the
scoping process for environmental review documents. Project milestones
may be announced to the public using electronic or paper media (e.g.,
newsletters, note cards, or emails) pursuant to 40 CFR 1506.6. For
projects requiring EISs, an early opportunity for public involvement in
defining the purpose and need for action and the range of alternatives
must be provided, and a public hearing will be held during the
circulation period of the draft EIS. For other projects that
substantially affect the community or its public transportation
service, an adequate opportunity for public review and comment must be
provided.
(2) May participate in early scoping as long as enough project
information is known so the public and other agencies can participate
effectively. Early scoping constitutes initiation of NEPA scoping while
local planning efforts to aid in establishing the purpose and need and
[[Page 8983]]
in evaluating alternatives and impacts are underway. Notice of early
scoping must be made to the public and other agencies. If early scoping
is the start of the NEPA process, the early scoping notice must include
language to that effect. After development of the proposed action at
the conclusion of early scoping, FTA will publish the Notice of Intent
if it is determined at that time that the proposed action requires an
EIS. The Notice of Intent will establish a 30-day period for comments
on the purpose and need and the alternatives.
(3) Are encouraged to post and distribute materials related to the
environmental review process, including but not limited to, NEPA
documents, public meeting announcements, and minutes, through publicly-
accessible electronic means, including project Web sites. Applicants
are encouraged to keep these materials available to the public
electronically until the project is constructed and open for
operations.
(4) Are encouraged to post all environmental impact statements and
records of decision on a project Web site until the project is
constructed and open for operation.
* * * * *
0
7. Amend Sec. 771.113 by revising paragraphs (d)(1) and (2) to read as
follows:
Sec. 771.113 Timing of Administration activities.
* * * * *
(d) * * *
(1) Exceptions for hardship and protective acquisitions of real
property are addressed in paragraph (d)(12) of Sec. 771.117 for FHWA.
Exceptions for the acquisitions of real property are addressed in
paragraphs (c)(6) and (d)(3) of Sec. 771.118 for FTA.
(2) Paragraph (d)(4) of Sec. 771.118 contains an exception for the
acquisition of right-of-way for future transit use in accordance with
49 U.S.C. 5323(q).
* * * * *
0
8. Amend Sec. 771.115 by revising paragraph (a)(3) and paragraph (b)
to read as follows:
Sec. 771.115 Classes of actions.
* * * * *
(a) * * *
(3) Construction or extension of a fixed transit facility (e.g.,
rapid rail, light rail, commuter rail, bus rapid transit) that will not
be located within an existing transportation right-of-way.
* * * * *
(b) Class II (CEs). Actions that do not individually or
cumulatively have a significant environmental effect are excluded from
the requirement to prepare an EA or EIS. A specific list of CEs
normally not requiring NEPA documentation is set forth in Sec.
771.117(c) for FHWA actions or pursuant to Sec. 771.118(c) for FTA
actions. When appropriately documented, additional projects may also
qualify as CEs pursuant to Sec. 771.117(d) for FHWA actions or
pursuant to Sec. 771.118(d) for FTA actions.
* * * * *
0
9. Amend Sec. 771.117 by:
0
a. Revising the heading of the section.
0
b. Removing paragraph (d)(13).
0
c., Revising the first sentence of paragraph (b) introductory text.
0
d. Revising paragraph (c) introductory text.
0
e. Revising the first sentence of paragraph (d) introductory text.
0
f. Revising paragraph (e).
The revisions read as follows:
Sec. 771.117 FHWA categorical exclusions.
* * * * *
(b) Any action which normally would be classified as a CE but could
involve unusual circumstances will require the FHWA, in cooperation
with the applicant, to conduct appropriate environmental studies to
determine if the CE classification is proper. * * *
* * * * *
(c) The following actions meet the criteria for CEs in the CEQ
regulations (40 CFR 1508.4) and Sec. 771.117(a) and normally do not
require any further NEPA approvals by the FHWA:
* * * * *
(d) Additional actions which meet the criteria for a CE in the CEQ
regulations (40 CFR 1508.4) and paragraph (a) of this section may be
designated as CEs only after the FHWA approval. * * *
* * * * *
(e) Where a pattern emerges of granting CE status for a particular
type of action, the FHWA will initiate rulemaking proposing to add this
type of action to the list of categorical exclusions in paragraph (c)
or (d) of this section, as appropriate.
0
10. Add Sec. 771.118 to read as follows:
Sec. 771.118 FTA categorical exclusions
(a) Categorical exclusions (CEs) are actions which meet the
definition contained in 40 CFR 1508.4, and, based on past experience
with similar actions, do not involve significant environmental impacts.
They are actions which: do not induce significant impacts to planned
growth or land use for the area; do not require the relocation of
significant numbers of people; do not have a significant impact on any
natural, cultural, recreational, historic or other resource; do not
involve significant air, noise, or water quality impacts; do not have
significant impacts on travel patterns; or do not otherwise, either
individually or cumulatively, have any significant environmental
impacts.
(b) Any action which normally would be classified as a CE but could
involve unusual circumstances will require FTA, in cooperation with the
applicant, to conduct appropriate environmental studies to determine if
the CE classification is proper. Such unusual circumstances include:
(1) Significant environmental impacts;
(2) Substantial controversy on environmental grounds;
(3) Significant impact on properties protected by Section 4(f) of
the DOT Act or Section 106 of the National Historic Preservation Act;
or
(4) Inconsistencies with any Federal, State, or local law,
requirement or administrative determination relating to the
environmental aspects of the action.
(c) Actions that FTA determines fall within the following
categories of FTA CEs and that meet the criteria for CEs in the CEQ
regulation (40 CFR 1508.4) and paragraph (a) of this section normally
do not require any further NEPA approvals by FTA.
(1) Acquisition, installation, operation, evaluation, replacement,
and improvement of discrete utilities and similar appurtenances
(existing and new) within or adjacent to existing transportation right-
of-way, such as: utility poles, underground wiring, cables, and
information systems; and power substations and utility transfer
stations.
(2) Acquisition, construction, maintenance, rehabilitation, and
improvement or limited expansion of stand-alone recreation, pedestrian,
or bicycle facilities, such as: a multiuse pathway, lane, trail, or
pedestrian bridge; and transit plaza amenities.
(3) Activities designed to mitigate environmental harm that cause
no harm themselves or to maintain and enhance environmental quality and
site aesthetics, and employ construction best management practices,
such as: noise mitigation activities; rehabilitation of public
transportation buildings, structures, or facilities; retrofitting for
energy or other resource conservation; and landscaping or re-
vegetation.
(4) Planning and administrative activities which do not involve or
lead directly to construction, such as: training, technical assistance
and research; promulgation of rules, regulations, directives, or
program
[[Page 8984]]
guidance; approval of project concepts; engineering; and operating
assistance to transit authorities to continue existing service or
increase service to meet routine demand.
(5) Activities, including repairs, replacements, and
rehabilitations, designed to promote transportation safety, security,
accessibility and effective communication within or adjacent to
existing right-of-way, such as: the deployment of Intelligent
Transportation Systems and components; installation and improvement of
safety and communications equipment, including hazard elimination and
mitigation; installation of passenger amenities and traffic signals;
and retrofitting existing transportation vehicles, facilities or
structures, or upgrading to current standards.
(6) Acquisition or transfer of an interest in real property that is
not within or adjacent to recognized environmentally sensitive areas
(e.g., wetlands, non-urban parks, wildlife management areas) and does
not result in a substantial change in the functional use of the
property or in substantial displacements, such as: acquisition for
scenic easements or historic sites for the purpose of preserving the
site. This CE extends only to acquisitions and transfers that will not
limit the evaluation of alternatives for future FTA-assisted projects
that make use of the acquired or transferred property.
(7) Acquisition, installation, rehabilitation, replacement, and
maintenance of vehicles or equipment, within or accommodated by
existing facilities, that does not result in a change in functional use
of the facilities, such as: equipment to be located within existing
facilities and with no substantial off-site impacts; and vehicles,
including buses, rail cars, trolley cars, ferry boats and people movers
that can be accommodated by existing facilities or by new facilities
that qualify for a categorical exclusion.
(8) Maintenance, rehabilitation, and reconstruction of facilities
that occupy substantially the same geographic footprint and do not
result in a change in functional use, such as: improvements to bridges,
tunnels, storage yards, buildings, stations, and terminals;
construction of platform extensions, passing track, and retaining
walls; and improvements to tracks and railbeds.
(9) Assembly or construction of facilities that is consistent with
existing land use and zoning requirements (including floodplain
regulations) and uses primarily land disturbed for transportation use,
such as: buildings and associated structures; bus transfer stations or
intermodal centers; busways and streetcar lines or other transit
investments within areas of the right-of-way occupied by the physical
footprint of the existing facility or otherwise maintained or used for
transportation operations; and parking facilities.
(10) Development of facilities for transit and non-transit
purposes, located on, above, or adjacent to existing transit
facilities, that are not part of a larger transportation project and do
not substantially enlarge such facilities, such as: police facilities,
daycare facilities, public service facilities, amenities, and
commercial, retail, and residential development.
(d) Additional actions which meet the criteria for a CE in the CEQ
regulations (40 CFR 1508.4) and paragraph (a) of this section may be
designated as CEs only after FTA approval. The applicant shall submit
documentation which demonstrates that the specific conditions or
criteria for these CEs are satisfied and that significant environmental
effects will not result. Examples of such actions include but are not
limited to:
(1) Modernization of a highway by resurfacing, restoring,
rehabilitating, or reconstructing shoulders or auxiliary lanes (e.g.,
lanes for parking, weaving, turning, climbing).
(2) Bridge replacement or the construction of grade separation to
replace existing at-grade railroad crossings.
(3) Acquisition of land for hardship or protective purposes.
Hardship and protective buying will be permitted only for a particular
parcel or a limited number of parcels. These types of land acquisition
qualify for a CE only where the acquisition will not limit the
evaluation of alternatives, including shifts in alignment for planned
construction projects, which may be required in the NEPA process. No
project development on such land may proceed until the NEPA process has
been completed.
(i) Hardship acquisition is early acquisition of property by the
applicant at the property owner's request to alleviate particular
hardship to the owner, in contrast to others, because of an inability
to sell his property. This is justified when the property owner can
document on the basis of health, safety or financial reasons that
remaining in the property poses an undue hardship compared to others.
(ii) Protective acquisition is done to prevent imminent development
of a parcel which may be needed for a proposed transportation corridor
or site. Documentation must clearly demonstrate that development of the
land would preclude future transportation use and that such development
is imminent. Advance acquisition is not permitted for the sole purpose
of reducing the cost of property for a proposed project.
(4) Acquisition of right-of-way. No project development on the
acquired right-of-way may proceed until the NEPA process for such
project development, including the consideration of alternatives, has
been completed.
(5) Construction of bicycle facilities within existing
transportation right-of-way.
(6) Facility modernization through construction or replacement of
existing components.
(e) Where a pattern emerges of granting CE status for a particular
type of action, FTA will initiate rulemaking proposing to add this type
of action to the appropriate list of categorical exclusions in this
section.
Sec. 771.123 [Amended]
0
11. Amend Sec. 771.123 by removing paragraph (j).
Federal Transit Administration
Title 49--Transportation
PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
Subpart A--Environmental Procedures
0
12. The authority citation for subpart A to 622 is revised to read as
follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 23
U.S.C. 139 and 326; Pub. L. 109-59, 119 Stat. 1144, sections 6002
and 6010; 40 CFR parts 1500-1508; and 49 CFR 1.81.
Peter Rogoff,
Administrator, Federal Transit Administration.
Victor M. Mendez,
Administrator, Federal Highway Administration.
[FR Doc. 2013-02345 Filed 2-6-13; 8:45 am]
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