Additional Authorities for Planning and Environmental Linkages

Additional Authorities for Planning and Environmental Linkages

Topics: BMW

Additional Authorities for Planning and Environmental Linkages

Gregory G. Nadeau
Federal Highway Administration
Therese W. McMillan
Federal Transit Administration
September 10, 2014

[Federal Register Volume 79, Number 175 (Wednesday, September 10, 2014)]
[Proposed Rules]
[Pages 53673-53683]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21439]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 450 and 771

Federal Transit Administration

49 CFR Parts 613 and 622

[Docket No. FHWA-2014-0031; FHWA RIN 2125-AF66; FTA RIN 2132-AB21]

Additional Authorities for Planning and Environmental Linkages

AGENCY: Federal Highway Administration, Federal Transit Administration,
DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This NPRM provides interested parties with the opportunity to
comment on proposed revisions to the Federal Highway Administration
(FHWA) and the Federal Transit Administration's (FTA) statewide and
nonmetropolitan and metropolitan transportation planning regulations
related to the use of and reliance on planning products developed
during the transportation planning process for project development and
the environmental review process. The revisions are prompted by the
enactment of the Moving Ahead for

[[Page 53674]]

Progress in the 21st Century Act (MAP-21). Specifically, through this
rulemaking FHWA and FTA would interpret and implement MAP-21's
additional authority for FHWA and FTA to use planning products
developed by States, Metropolitan Planning Organizations (MPO), and
other agencies during the transportation planning process in the
environmental review process for a project.

DATES: Comments must be received on or before November 10, 2014.

ADDRESSES: To ensure that you do not duplicate your docket submissions,
please submit them by only one of the following means:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave., SE., West Building Ground Floor
Room W12-140, Washington, DC 20590-0001;
Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Ave. SE., between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The telephone number is (202) 366-
9329;
Instructions: You must include the agency name and docket
number or the Regulatory Identification Number (RIN) for the rulemaking
at the beginning of your comments. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Harlan W. Miller,
Planning Oversight and Stewardship Team (HEPP-10), (202) 366-0847; or
Mr. Jomar Maldonado, Office of the Chief Counsel (HCC-30), (202) 366-
1373. For the FTA: Ms. Elizabeth Patel, Office of Planning and
Environment, (202) 366-0244; or Ms. Nancy-Ellen Zusman, Office of Chief
Counsel, (312) 353-2577. Both agencies are located at 1200 New Jersey
Avenue SE., Washington, DC 20590. Office hours are from 8:00 a.m. to
4:30 p.m., Eastern Time for FHWA, and 9 a.m. to 5:30 p.m., Eastern Time
for FTA, Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

On July 6, 2012, President Obama signed into law MAP-21 (Pub. L.
112-141, 126 Stat. 405); section 1310 codifies in 23 U.S.C. 168 an
additional authority for the use of planning products in the
environmental review process required under the National Environmental
Policy Act (NEPA) (42 U.S.C. 4321 et seq.). This NPRM proposes
amendments to 23 CFR parts 450 and 771, as well as amendments to the
authorities in 49 CFR parts 613 and 622, to reflect this additional
authority. The FHWA and FTA, hereafter referred to as the ``Agencies,''
are carrying out this rulemaking on behalf of the Secretary.

General Discussion of the Proposal

The transportation planning process--established in 23 U.S.C. 134-
135, 49 U.S.C. 5303-5304, and through implementing regulations at 23
CFR part 450--create the Statewide and Nonmetropolitan Transportation
Planning and the Metropolitan Transportation Planning programs. These
programs provide funding to support cooperative, continuous, and
comprehensive planning for making transportation investment decisions
throughout each State--both in metropolitan and nonmetropolitan areas.

The Statewide and Nonmetropolitan Transportation Planning Process

States must undertake a statewide planning process to develop a
multimodal, long-range statewide transportation plan and a statewide
transportation improvement program (STIP) (23 U.S.C. 135; 49 U.S.C.
5304; 23 CFR part 450, subpart B). The long-range statewide
transportation plan must provide for the development of transportation
facilities that function as an intermodal State transportation system
and must cover at least a 20-year planning horizon at the time of
adoption by the State (23 CFR 450.214). When developing a plan, States
need to cooperate with MPOs in the metropolitan areas (23 CFR 450.208).
In nonmetropolitan areas, States must cooperate with local elected
officials who have the responsibility for transportation (23 CFR
450.208). Some States may have regional planning organizations to help
support the planning process in nonmetropolitan areas. States also must
provide an opportunity for public comment on the long-range statewide
transportation plan (23 CFR 450.214).
In addition, States must develop a federally approved STIP at least
once every 4 years (23 CFR 450.216). The STIP contains a 4-year program
of projects, and must be consistent with the long-range statewide and
metropolitan transportation plans. The STIP must identify the sources
of funding that is reasonably expected to be available to support the
program of projects in the STIP (23 CFR 450.216). When the State
submits the STIP to the Agencies for approval, the State must certify
that the metropolitan and statewide and nonmetropolitan transportation
planning processes are in compliance with applicable requirements. The
Agencies will approve the STIP if they jointly determine that the STIP
substantially meets the statewide and nonmetropolitan transportation
planning requirements (23 CFR 450.218).
The Statewide transportation planning process provides an
opportunity for States, in cooperation with local elected officials and
MPOs, as appropriate, to develop studies and analyses. The STIP
identifies the projects or program of projects resulting from these
studies and analyses. Examples of these studies and analyses may
include corridor planning studies, evaluations of alternatives, traffic
analyses and forecasts, growth studies, land use analyses, and
population growth forecasts. It also provides an opportunity for
States, in cooperation with local elected officials and MPOs, as
appropriate, to make decisions that would affect transportation project
proposals such as decisions on transportation mode choice (e.g.,
transit, highway, rail), financing (e.g., tolling, use of public-
private partnerships), and general travel corridor location.

The Metropolitan Transportation Planning Process

Metropolitan transportation planning occurs in urbanized areas with
a population of 50,000 or greater (23 U.S.C. 134; 49 U.S.C. 5303; 23
CFR part 450, subpart C). An MPO is the policy board of the
organization created and designated by the Governor and local officials
to carry out the metropolitan planning process in an urbanized area.
The boundary of the metropolitan planning area covered by the MPO
planning process is established by agreement between the Governor and
the MPO and, in general, encompasses the current urbanized area and the
area to be urbanized during a 20-year forecast period. Certain
urbanized areas--generally those over 200,000 in population--are
designated as transportation management areas (TMA).
An MPO establishes the investment priorities of Federal
transportation funds in its metropolitan area through the metropolitan
transportation plan and transportation improvement program (TIP). Each
MPO, regardless of size, must prepare a metropolitan transportation
plan and update it every 4 or 5 years (23 CFR 450.322). The plan must
cover at least a 20-year planning

[[Page 53675]]

horizon at the time of adoption by the MPO. Before it adopts its plan,
the MPO must provide a reasonable opportunity for public comment on the
plan's content (23 CFR 450.322).
The MPO, in cooperation with the State and providers of public
transportation, must also develop a TIP (23 CFR 450.324). The TIP is a
prioritized listing/program of transportation projects covering a
period of 4 years, and must include a financial plan that describes the
sources of funding that would reasonably be expected to be available to
support the projects in the TIP. The MPO must update and approve the
TIP at least once every 4 years. Prior to approving the TIP, the MPO
must provide a reasonable opportunity for public comment on the TIP.
The TIP also is subject to approval by the Governor. When the MPO
submits the TIP to the State, the MPO must certify that the
metropolitan transportation planning process is in compliance with
applicable requirements (23 CFR 450.334).
The Agencies must certify the transportation planning process in
TMAs at least once every 4 years. During that certification process,
the Agencies will review whether the process complies with the
metropolitan transportation planning requirements (23 CFR 450.334).
Similar to the statewide transportation planning process, the
metropolitan transportation planning process provides opportunities for
agencies to develop analyses and studies, and to make decisions that
may affect the proposals for projects.

NPRM on 23 CFR Part 450 and 49 CFR Part 613 Published June 2, 2014

The Agencies jointly issued another NPRM for 23 CFR part 450 and 49
CFR part 613 to reflect other changes made by MAP-21 on statewide and
metropolitan planning processes (79 FR 31784, June 2, 2014). The
proposed rule would make the regulations consistent with current
statutory requirements and propose the following: A new mandate for
States and MPOs to take a performance-based approach to planning and
programming; a new emphasis on the nonmetropolitan transportation
planning processes, by requiring State to have a higher level of
involvement with nonmetropolitan local officials and providing a
process for the creation of regional transportation planning
organizations; a structural change to the membership of the larger
MPOs; a new framework for voluntary scenario planning; and a process
for optional programmatic mitigation plans. Depending on timing, the
Agencies may combine the proposed rules and issue a single final rule.

Other Planning Processes Pursuant to Federal Law

The statewide and metropolitan transportation planning processes
are not the only planning processes that are conducted pursuant to
Federal law. There are other planning processes that may occur during,
but independent of the transportation planning process and that could
produce planning products that should be considered in the
environmental review of a project. For example, 23 U.S.C. 119(e)
(section 1106 of MAP-21) requires States to develop risk-based asset
management plans to improve or preserve the condition of assets in the
National Highway System and to improve its performance. Another process
outside the statewide and metropolitan transportation planning process
is the process established by MAP-21's section 1315(b), requiring the
evaluations of reasonable alternatives for roads, highways, or bridges
that repeatedly require repair and reconstruction activities. The
results of both of these types of planning activities could be useful
to States and MPOs when making decisions about transportation needs and
investments.
The FTA is required by law to evaluate and rate transit capital
projects seeking funding under the discretionary Capital Investment
Grant program (known more commonly as the New Starts, Small Starts, and
Core Capacity program) authorized by 49 U.S.C. 5309. Additionally,
proposed projects must proceed through several formal steps outlined in
law before they can receive construction funding from FTA. Prior to the
enactment of MAP-21, the law required that a project seeking Capital
Investment Grant funding first complete a formal Alternatives Analysis
study to evaluate the mode and alignment options for the project
corridor. The Alternatives Analysis informed local officials and
community members of the benefits, costs, and impacts of transportation
options at a greater level of detail than is typically undertaken
during the metropolitan transportation planning process. Although MAP-
21 eliminated the requirement for a formal Alternatives Analysis study
separate from the metropolitan transportation planning process and the
environmental review process, some project sponsors may choose to
complete the studies they already had underway when the law went into
effect or initiate new Alternatives Analysis studies as a method to
better inform local decisionmaking.
In addition, there are many planning processes conducted pursuant
to Federal law that occur outside of the surface transportation context
that could also produce planning products to assist in the
environmental review of surface transportation projects. Examples
include the development of State and local hazard mitigation plans
(under Federal Emergency Management Agency's requirements), the Natural
Resources Conservation Service's conservation plans, Federal Aviation
Administration's airport layout plans, U.S. Fish and Wildlife Service
habitat conservation plans, and U.S. Forest Service land management
plans.

Planning and Environmental Linkages

The FHWA and FTA use the term Planning and Environment Linkages
(PEL) to refer to the process of using and relying on planning
analyses, studies, decisions, or other information for the project
development and environmental review of transportation projects. With
PEL, the Agencies could, for example: establish a project's purpose and
need by relying on the goal and objective developed during the planning
process; eliminate the need to further consider alternatives deemed to
be unreasonable by relying on alternatives analyses conducted during
planning; rely on future land use plans as a source of information for
the cumulative impacts analysis required under NEPA; or rely on the
modal choice selection as a method of establishing the criteria for the
consideration of reasonable alternatives to address the identified
need--provided such strategies are consistent with NEPA for the
particular project.
States, MPOs, and local agencies can achieve significant benefits
by incorporating environmental and community values into transportation
decisions during early planning and carrying these considerations
through project development and delivery. Through its focus on building
interagency relationships, the PEL approach enables non-transportation
Federal, State, and local government resource agencies and tribal
governments to be more effective players in the transportation
decisionmaking process. Federal, State, and local government resource
agencies and tribal governments have an opportunity to help shape
transportation projects by getting involved in the early stages of
planning. In addition, improvements to interagency relationships may
help resolve differences on key issues as

[[Page 53676]]

transportation programs and projects move from planning to design and
implementation.
Since 1998, the Agencies have undertaken several initiatives to
promote PEL. In February 2005, the Agencies disseminated a legal
analysis and program guidance document, ``Linking the Transportation
Planning and NEPA Process'' (http://www.fhwa.dot.gov/hep/guidance/plannepalegal050222.cfm), articulating how information, analyses, and
products from the transportation planning process could be incorporated
into and relied upon during the NEPA review process. In 2007, the
Agencies developed the regulatory authorities in 23 CFR 450.212 and
450.318, taking into account the guiding principles from the 2005 legal
analysis and program guidance. In addition, the Agencies developed and
incorporated as Appendix A to 23 CFR part 450 more detailed guidance
that described how information, analysis, and products from
transportation planning can be incorporated into and relied upon in
NEPA documents. Courts have upheld the PEL concept as a valid process
for informing the project development process and the environmental
review process.\1\
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\1\ See HonoluluTraffic.com v. Federal Transit Administration,
742 F.3d 1222, 1230-32 (9th Cir. 2014) (using transportation
planning process to define the project's purpose and need was
reasonable, and reliance on a State-prepared alternatives analysis
to eliminate alternatives was appropriate); Building a Better
Bellevue v. U.S. Dept. of Transp., 2013 WL 865843 (W.D. Wash. 2013)
(Sound Transit's reliance in the transportation planning process to
confine the purpose of the East Link to expanding light rail was
reasonable, and the EIS was not required to study alternatives that
did not meet that purpose); Sierra Club v. U.S. Dept. of Transp.,
310 F.Supp.2d 1168, 1193 (D. Nevada 2004) (a Federal agency does not
violate NEPA by relying on prior studies and analyses performed by
local and State agencies, and FHWA's reliance on the major
investment study to eliminate alternatives was not arbitrary and
capricious); Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42
F.3d 517, n. 6 (9th Cir. 1994) (the mere absence of a more thorough
discussion in the EIS of alternatives that were discussed in and
rejected as a result of prior State studies does not violate NEPA);
North Buckhead Civic Association v. Skinner, 903 F.2d 1533, 1542-43
(11th Cir. 1990) (Federal, State, and local officials complied with
federally mandated regional planning procedures to develop the
purpose and need section of the EIS, and it was not necessary for
the EIS to restate the conclusions of all the experts, or to engage
in a rethinking of the regional and citywide transportation plans).
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Congress established additional authority for PEL in 23 U.S.C. 168.
This additional authority is not meant to displace or repeal other
authorities that may be available for PEL, including the existing
authority available in 23 CFR 450.212 and 450.318. Rather, it provides
an additional avenue for pursuing PEL. See 23 U.S.C. 168(f)(3). This
NPRM proposes to amend 23 CFR parts 450 and 771 to reflect the
additional authority under 23 U.S.C. 168. It also amends the
authorities in 49 CFR parts 613 and 622.

Section-by-Section Discussion of the Proposal

Subpart B--Statewide Transportation Planning and Programming

Section 450.212
The term ``environmental review process'' is used throughout 23
U.S.C. 168 and is defined in the section as ``the process for preparing
for a project an environmental impact statement, environmental
assessment, categorical exclusion, or other document prepared'' under
NEPA. However, using this term throughout the regulation would create
confusion with the term ``environmental review process'' defined under
23 U.S.C. 139(a)(3)(A), which ``includes the process for and completion
of any environmental permit, approval, review, or study required for a
project under any Federal law other than'' NEPA. To avoid this
confusion, the Agencies propose to refer in the regulation to the NEPA
classes of action (categorical exclusions (CE), environmental
assessments (EA), or environmental impact statements (EIS)) and to
other documents prepared under NEPA instead of relying on the term
``environmental review process.'' Proposed paragraph (d) contains the
first instance.
Section 168 uses the term ``Federal lead agencies'' throughout. The
Agencies propose to use the term throughout the proposed regulation to
identify when the Federal agency is the responsible entity for a task.
The term refers to the Federal agency that has the lead role in the
NEPA process or the Federal agencies serving as joint leads when more
than one Federal agency is involved. The term ``Federal lead agency''
is narrower than the term ``NEPA lead agencies'' used in 23 CFR
450.212(b)-(c) and 450.318(b)-(c) because it excludes non-Federal
agencies that have been designated as joint lead agencies under 23
U.S.C. 139(c)(3). Section 168 makes clear that the Federal agency
leading the NEPA review process bears the responsibility for taking
some of the steps in the PEL adoption process pursuant to this
authority. The use of ``Federal lead agency'' is also meant to capture
States that have assumed the environmental review responsibilities of
the Agencies under 23 U.S.C. 326 or 327. These sections establish
programs that allow State agencies to assume the Agencies' NEPA
responsibilities and responsibilities under other environmental
requirements for highway and public transportation projects. The
Agencies note that section 327(c)(2)(B)(iv) prohibits the assignment of
responsibilities related to 23 U.S.C. 134 and 135 or 49 U.S.C. 5303 and
5304. However, this prohibition does not prohibit the assignment of
responsibilities related to PEL under the authority of 23 U.S.C. 168
since this authority would be used during the NEPA review process and
is a provision separate from 23 U.S.C. 134 and 135.
The Agencies propose to add a new paragraph (d) that interprets the
new PEL authority under 23 U.S.C. 168. The introduction would make it
clear that the authority granted in section 168 is a PEL authority in
addition to other existing authorities for PEL such as 23 CFR sections
450.212(b) and 450.318(b), and 40 CFR 1502.21 (incorporation by
reference). See 23 U.S.C. 168(f)(3). The introduction would establish
the effect of the adoption process under section 168, which is to allow
a planning product to be incorporated directly into an environmental
review process document or other environmental document. See 23 U.S.C.
168(e). The introduction also emphasizes that the Agencies may adopt a
planning product in its entirety or may choose to only adopt and use
portions of these planning products. See 23 U.S.C. 168(b)(3). The
introduction establishes that the timing of adoption could be at the
time the Agencies and other joint lead agencies (like non-Federal lead
agencies) are deciding the appropriate NEPA class of action or later
when the Agencies are developing the NEPA documents. See 23 U.S.C.
168(b)(4). Finally, the introduction establishes that subparagraphs
(d)(1) thru (d)(4) are pre-conditions prior to the adoption and use of
planning products in the NEPA process under 23 U.S.C. 168.
The first condition, established through proposed paragraph (d)(1),
is based on the definition of planning products found in 23 U.S.C.
168(a)(2) with three notable differences. First, the term ``timely''
used in the statute is not used in the rule. The Agencies believe that
a timely planning product is a planning product that was approved no
later than 5 years prior to the date on which the information will be
adopted. See 23 U.S.C. 168(d)(10). The Agencies found that there was no
need to introduce the term in the condition since this time restriction
is a pre-requisite to adoption.
Second, in providing examples for detailed corridor or
transportation plans, the statute makes specific reference only to
those developed

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through the metropolitan planning process in 23 U.S.C. 134. The
Agencies understand that the statute provides this reference as an
example and believe that adding references to 23 U.S.C. 135 and 49
U.S.C. 5303-5304 would clarify that detailed corridor or transportation
plans developed under those authorities are also covered by the section
168 authority.
Third, the Agencies are proposing a process for obtaining approvals
for the planning products. Section 168(a)(2)(C) establishes that those
planning products intended to be adopted and relied on during the
environmental review process in accordance with the new section 168
authority must be approved by the State, all local and tribal
governments where the project is located, and by any appropriate MPO.
This approval requirement is a departure from current practice since
approval is typically reserved for the overall plan and not required
for the underlying analyses and studies that support the plan. Proposed
paragraph (d)(1)(iii) puts the preparers of planning products on notice
of this unique statutory requirement. The Agencies propose an approval
process where the preparer of the planning product provides the
planning product to the State, all local and tribal governments where
the project is located, and appropriate MPO and allows them at least 60
days for its review and approval unless additional time is needed for
good cause. The required approvals could occur through explicit
approvals or through implicit approval if the State, local, or tribal
government, or MPO remains silent, fails to object, or fails to
explicitly disapprove the planning product within the 60 day period.
The Agencies believe that 60 days is an appropriate time period that
allows enough time for entities such as MPOs to meet to execute the
required approval.
The second condition, established through proposed paragraph
(d)(2), states that the planning product must be a planning decision or
planning analysis. Planning decisions and planning analyses are
described through the list of illustrative examples in section
168(c)(1)-(2). The Agencies note that this is not an exhaustive list of
what could be considered a planning decision or planning analysis, but
provides an illustration of the types of decisions or analyses that may
be considered under this authority.
Proposed paragraph (d)(3) establishes that the preparer of the
planning product must provide Federal, State, and local agencies that
may have an interest in the project, tribal governments that may have
an interest in the project, and the public with an opportunity to
participate in the planning process that leads to the development of
the planning product. The Agencies propose that this opportunity be
announced through a notice, by publication or other means, during the
planning process. The notification should identify the planning
products that could be produced by the planning process and that could
be used and relied upon during the NEPA process. This condition derives
from 23 U.S.C. 168(d)(4). The Agencies decided to place this condition
as a stand-alone prerequisite prior to the ``determination'' required
from the Agencies in order to emphasize that it must be met at the
planning stage instead of the NEPA stage, and that it must be met by
the preparer of the planning product (i.e., State, MPO, or local
agency) instead of the Federal lead agency. The Agencies believe that
this difference between the location of the condition in the statutory
and regulatory processes does not represent a substantial deviation
from the statutory structure, and that this approach would retain the
purpose of the statutory requirement while making it consistent with
the planning process. The Agencies expect that this notification would
be made during the agency consultation and public involvement process
required for the plans.
Proposed paragraph (d)(4) establishes that the Federal lead agency
must make a determination that the conditions in paragraphs
(d)(4)(i)(A)-(H) have been met, secure the concurrence from all
participating agencies in this determination, and make the
determination and documentation relating to the planning product
available for public review and comment before drafting, adopting and
using the planning product for the NEPA process.
The list of conditions in proposed paragraphs (d)(4)(i)(A)-(H) is
based on the list of conditions in 23 U.S.C. 168(d). Proposed paragraph
(d)(4)(i)(A) mirrors section 168(d)(1) establishing that the planning
product must be developed through a planning process conducted pursuant
to applicable Federal law. Proposed paragraph (d)(4)(i)(B) reflects
section 168(d)(2), which establishes that the planning product must
have been developed through active consultation with appropriate
Federal and State resource agencies and Indian tribes. It also adds a
requirement that the Agencies must identify those agencies that
participated in the development of the planning product if the planning
product does not specifically mention them. This additional sentence is
based on section 168(b)(2), which requires the Federal lead agency to
identify the agencies that participated in the development of the
planning product.
Proposed paragraph (d)(4)(i)(C) mirrors section 168(d)(3) which
requires that the planning process must have included consideration of
systems-level or corridor-wide transportation needs. Proposed paragraph
(d)(4)(i)(D) mirrors section 168(d)(6) which establishes that no
significant new information or new circumstances have occurred since
the approval of the planning product. Proposed paragraph (d)(4)(i)(E)
mirrors section 168(d)(7) which requires that the planning product be
based on a rational basis and on reliable and reasonably current data
and scientifically acceptable methodologies.
Proposed paragraph (d)(4)(i)(F) mirrors section 168(d)(8), which
requires that the planning product be documented in sufficient detail
to support the decision or the results of the analysis. Proposed
paragraph (d)(4)(i)(G) mirrors section 168(d)(9), which requires the
Federal lead agency to determine that the planning product is
appropriate for adoption and use in the NEPA review. Finally, except
for a correction due to a drafting error with the statute, the proposed
paragraph (d)(4)(i)(H) mirrors section 168(d)(10), which the Agencies
believe was intended to establish a 5-year limit on the validity of an
approved planning product for purposes of the section 168 adoption
process. Pursuant to the proposed regulatory language, for purposes of
adoption and use of planning products under the authority of section
168, the date of approval of the planning products must not be earlier
than 5 years from the date of its adoption and use in the NEPA process.
Proposed paragraph (d)(4)(ii) indicates that the lead agency must
secure the concurrence on this determination from all participating
agencies with relevant expertise. The lead agency should also secure
the concurrence from project proponents as appropriate. Participating
agencies are Federal and non-Federal agencies that have an interest in
the project and have been invited to participate in the environmental
review process for a project. See 23 U.S.C. 139(d)(1). The request for
concurrence in the determination must include the planning products for
review or indicate where the planning products may be found for review.
The Agencies propose a process where the preparer of the planning
product sends each

[[Page 53678]]

participating agency the determination and documentation relating to
the planning product with a written request for concurrence. Once the
participating agency acknowledges receipt of the material and the
participating agency would have at least 60 days for its review and
concurrence unless additional time is needed for good cause. The
participating agency's acknowledgment of receipt may be done in a
variety of ways such as oral communication (e.g., phone conversation or
in person meeting), electronic (e.g., email), or regular mail (e.g.,
return receipt or letter acknowledging receipt). Each participating
agency has the option of concurring or nonconcurring in the
determination. The needed concurrence could occur through explicit
concurrence or through implicit concurrence if the participating agency
remains silent, fails to object, or fails to explicitly nonconcur with
the determination within the 60-day period. Concurrence of the
determination would be a concurrence with the Federal lead agency's
determination that a planning product meets the conditions for use and
adoption pursuant to section 168. Concurrence would not mean that the
participating agency endorses the findings or conclusions of the
planning product, nor that the data or methodologies are the only
acceptable and reasonable ones available.
If one or more participating agencies do not concur, the statutory
prerequisites for the use and adoption of the planning product through
section 168 would not be met and the planning product cannot be used
and adopted pursuant to the section 168 authority.
Proposed paragraph (d)(4)(iii) requires a public comment process
for the determination. This comment process should also make available
the documentation associated with the planning product that will be
adopted and used. Ideally, this public review process will be
coordinated with other public review processes required under NEPA, the
environmental review process outlined in 23 U.S.C. 139, and the
Agencies' environmental procedures. For example, the NEPA scoping
process for an EIS provides an opportunity to share this determination
with the public. Section 139(e) requires the Agencies to provide an
opportunity for involvement by the participating agencies and the
public in the definition of the purpose and need, and determining the
range of alternatives. The public review process under this paragraph
may be coordinated with these public involvement opportunities. The
Agencies note that there may be situations where the public review and
comment opportunity that must be provided under this authority would go
above and beyond the public involvement required by NEPA, 23 U.S.C.
139, or the Agencies procedures. One example is when the FHWA or FTA
would seek to adopt and rely on a planning product under this authority
to support a CE determination.
Proposed paragraph (e) discusses the effect that the Agencies'
adoption and use of a planning product pursuant to this authority may
have on other Federal agencies. Section 168(e) establishes that any
other Federal agency may use and rely on a planning product for their
own reviews as long as the planning product and adoption meets the
conditions outlined in section 168. The Agencies interpret ``reviews''
in this provision to mean the reviews other Federal agencies would need
to undertake for environmental permits, licenses, and other approvals
associated with the project, which also includes the NEPA
responsibilities associated with those approvals. The provision in
paragraph (e), like the statutory provision in section 168(e), is
permissive and leaves it up to the reviewing Federal agency's
discretion whether to rely on the planning product in its review.
Proposed paragraph (f) paraphrases the rules of construction
established in section 168(f). The Agencies believe that the section
applies to the incorporation by reference process outlined in paragraph
(b), as well as the proposed section (d). These authorities should not
be construed to (1) make NEPA applicable to the transportation planning
process conducted under 23 U.S.C. and chapter 53 of 49 U.S.C.; (2)
subject transportation plans and programs to NEPA if a CE
determination, EA, or EIS process, or preparation of a document under
NEPA is initiated for a project as a part of, or concurrently with,
transportation planning activities; or (3) affect the use of planning
products in the CE determination, EA, or EIS process, or document
prepared under NEPA pursuant to other authorities under any other
provision of law or to restrict the initiation of their development
during the transportation planning process. Proposed paragraph (f)(3)
is a savings clause that establishes that the authorities in sections
23 CFR 450.212 and 450.318, and section 168 do not prevent the reliance
or use of planning products if another law exists that allows such
reliance or use. It also establishes that nothing in these sections
would prevent an entity from voluntarily initiating the start of the
NEPA process during the transportation planning process.

Subpart C--Metropolitan Transportation Planning and Programming

Section 450.318
The Agencies propose to add a paragraph (f) to mirror the proposed
section 450.212(d) but apply it to the metropolitan transportation
planning process. The Agencies propose to add a section 450.318(g) that
would mirror the proposed section 450.212(e) but apply it to the
metropolitan transportation planning process. Finally, the Agencies
propose to add a section 450.318(h) that would mirror the proposed
section 450.212(f) but apply it to the metropolitan transportation
planning process. The same discussion and analysis provided for the
proposed paragraphs in section 450.212 applies to this section and is,
therefore, incorporated by reference.

Part 771--Environmental Impact and Related Procedures

Section 771.111
The Agencies propose an amendment to paragraph (a)(2) of this
section to reflect the new authority made available in 23 U.S.C. 168
and the proposed regulations in part 450.

Rulemaking Analyses and Notices

All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments, the
Agencies will also continue to file relevant information in the docket
as it becomes available after the comment period closing date, and
interested persons should continue to examine the docket for new
material.

Executive Orders 12866 and 13563 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures

Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). The
Agencies have determined preliminarily that this action would not be a
significant regulatory action under

[[Page 53679]]

Executive Order 12866 nor would it be significant within the meaning of
U.S. Department of Transportation regulatory policies and procedures
(44 FR 11032). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. It is anticipated that the
economic impact of this rulemaking would be minimal. The changes that
this rule proposes are intended to streamline environmental review.
These provisions are optional and would not have a significant cost
impact for MPOs, States, or local providers of public transportation.
It is anticipated that these optional provisions, if implemented, could
potentially result in cost savings for the States, MPOs, and local
providers of public transportation by minimizing the potential
duplication of planning and environmental processes and by improved
project delivery timeframes.
The Agencies do not have specific data to assess the monetary value
of the benefits to the proposed changes to the planning process made by
this rule because such data does not exist and would be difficult to
develop. There are several other benefits of the proposal including the
potential to enable agencies to be more effective players in the
transportation decisionmaking process through its focus on building
interagency relationships. By encouraging resource and regulatory
agencies to get involved in the early stages of planning, agencies have
an opportunity to help shape transportation projects.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), the Agencies have evaluated the effects of this
proposed rule on small entities and anticipate that this action would
not have a significant economic impact on a substantial number of small
entities.
States and metropolitan planning organizations are not included in
the definition of a small entity set forth in 5 U.S.C. 601. Small
governmental jurisdictions are limited to representations of
populations of less than 50,000. The MPOs, by definition, represent
urbanized areas having a minimum population of 50,000. Because the
regulations are primarily intended for States and MPOs, the Agencies
have determined that the action would not have a significant economic
impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This proposed rule will not result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$148.1 million or more in any one year (2 U.S.C. 1532). Further, in
compliance with the Unfunded Mandates Reform Act of 1995, the Agencies
will evaluate any regulatory action that might be proposed in
subsequent stages of the proceeding to assess the effects on State,
local, and tribal governments and the private sector. Additionally, the
definition of ``Federal Mandate'' in the Unfunded Mandates Reform Act
excludes financial assistance of the type in which State, local, or
tribal governments have authority to adjust their participation in
accordance with changes made in the program by the Federal Government.
The Federal-aid highway program permits this type of flexibility.

Executive Order 13132 (Federalism Assessment)

Executive Order 13132 requires agencies to ensure 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. The Agencies have analyzed this proposed
action in accordance with the principles and criteria contained in
Executive Order 13132 and determined that it would not have sufficient
federalism implications to warrant the preparation of a federalism
assessment. The Agencies have also determined that this proposed action
would not preempt any State law or State regulation or affect the
States' ability to discharge traditional State governmental functions.
We invite State and local governments with an interest in this
rulemaking to comment on the effect that adoption of specific proposals
may have on State or local governments.

Executive Order 13175 (Tribal Consultation)

States and MPOs are required through the transportation planning
process to develop plans in consultation with Indian Tribal government.
The proposed action would not substantively change how Indian Tribal
governments are involved in the transportation planning process. The
Agencies have analyzed this action under Executive Order 13175, and
believe that it would not have substantial direct effects on one or
more Indian Tribes; would not impose substantial direct compliance
costs on Indian Tribal governments; and would not preempt Tribal law.
Therefore, a Tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

The Agencies have analyzed this action under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agencies have determined that this action is
not a significant energy action under that order because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects under Executive Order 13211 is not required.

Executive Order 12372 (Intergovernmental Review)

The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities apply
to this program. Accordingly, the Agencies solicit comments on this
issue.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The Agencies have determined
that this proposal does not contain collection of information
requirements for the purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

Executive Order 12898 (Environmental Justice)

Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a), 91 FR 27534, May 10, 2012 (available online at
www.fhwa.dot.gov/enviornment/environmentaljustice/
ejatdot/order56102a/index.cfm), require DOT
agencies to achieve environmental justice (EJ) as part of their mission
by

[[Page 53680]]

identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects, including interrelated
social and economic effects, of their programs, policies, and
activities on minority populations and low-income populations in the
United States. The DOT Order requires DOT agencies to address
compliance with the Executive Order and the DOT Order in all rulemaking
activities. In addition, both Agencies have issued additional documents
relating to administration of the Executive Order and the DOT Order. On
June 14, 2012, the FHWA issued an update to its EJ order, FHWA Order
6640.23A, FHWA Actions to Address Environmental Justice in Minority
Populations and Low Income Populations (available online at
www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). The FTA also
issued an update to its EJ policy, FTA Policy Guidance for Federal
Transit Recipients, 77 FR 42077, July 17, 2012 (available online at
www.fta.dot.gov/legislationlaw/1234914740.html).
The Agencies have evaluated this proposed rule under the Executive
Order, the DOT Order, the FHWA Order, and the FTA Circular. The EJ
principles, in the context of planning, should be considered when the
planning process is being implemented at the State and local level. As
part of their stewardship and oversight of the federally aided
transportation planning process of the States, transit agencies, and
MPOs, FHWA, and FTA encourage these entities to incorporate EJ
principles into the statewide and metropolitan planning processes and
documents as appropriate consistent with the applicable Orders and the
FTA Circular. When the Agencies make a future funding or other approval
decision on a project basis, they consider EJ at that point.
Nothing inherent in these proposed regulations would
disproportionately impact minority or low income populations. The
proposed regulations would establish procedures and other requirements
to guide future State and local decisionmaking on programs and
projects. Neither the regulations nor 23 U.S.C. 134 and 135 dictate the
outcome of those decisions. The Agencies have determined that these
proposed regulations, if finalized as proposed, would not cause
disproportionately high and adverse human health and environmental
effects on minority or low income populations.

Executive Order 13045 (Protection of Children)

The Agencies have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The Agencies certify that this action would not concern an
environmental risk to health or safety that may disproportionately
affect children.

Executive Order 12630 (Taking of Private Property)

The Agencies do not anticipate that this action would affect a
taking of private property or otherwise have taking implications under
Executive Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights.

National Environmental Policy Act

Agencies are required to adopt implementing procedures for NEPA
that establish specific criteria for, and identification of, three
classes of actions: Those that normally require preparation of an EIS;
those that normally require preparation of an EA; and those that are
categorically excluded from further NEPA review (40 CFR 1507.3(b)).
This proposed action qualifies for categorical exclusions under 23 CFR
771.117(c)(20) (promulgation of rules, regulations, and directives) and
771.117(c)(1) (activities that do not lead directly to construction)
for FHWA, and 23 CFR 771.118(c)(4) (planning and administrative
activities which do not involve or lead directly to construction) for
FTA. The Agencies have evaluated whether the proposed action would
involve unusual circumstances or extraordinary circumstances and have
determined that this proposed action would not involve such
circumstances.
The proposed rule provides the policies and requirements for
statewide and metropolitan transportation plans and transportation
improvement programs. The proposed rule follows closely the
requirements in 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304. In
addition, 23 U.S.C. 134(q), 135(k), and 168(f)(1), and 49 U.S.C.
5303(q) and 5304(j) establish that NEPA does not apply to decisions by
the Secretary concerning a metropolitan or statewide transportation
plan or transportation improvement programs under those sections.

Regulation Identification Number

An RIN is assigned to each regulatory action listed in the Unified
Agenda of Federal Regulations. The Regulatory Information Service
Center publishes the Unified Agenda in April and October of each year.
The RIN contained in the heading of this document can be used to cross
reference this action with the Unified Agenda.

List of Subjects

23 CFR Part 450

Grant programs--transportation, Highway and roads, Mass
transportation, Reporting and recordkeeping requirements.

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 613

Grant programs--transportation, Highways and roads, Mass
transportation.

49 CFR Part 622

Environmental impact statements, Grant programs--transportation,
Public transit, Recreation areas, Reporting and recordkeeping
requirements.
In consideration of the foregoing, the FHWA and FTA propose to
amend 23 CFR parts 450 and 771, and 49 CFR parts 613 and 622, as set
forth below:

Title 23

PART 450--PLANNING ASSISTANCE AND STANDARDS

0
1. The authority citation for part 450 is revised to read as follows:

Authority: 23 U.S.C. 134, 135, and 168; 42 U.S.C. 7410 et seq.;
49 U.S.C. 5303 and 5304; 49 CFR 1.85 and 1.90.

Sec. 450.212 [Amended]

0
2. Amend Sec. 450.212 by adding paragraphs (d), (e), and (f) to read
as follows:

Sec. 450.212 Transportation planning studies and project development.

* * * * *
(d) In addition to the process for incorporation directly or by
reference outlined in paragraph (b) of this section, a Federal lead
agency may follow the process in this paragraph to adopt and use
planning products in support of a determination that a project
qualifies for a categorical exclusion, in the preparation of an
environmental assessment or environmental impact statement, or in the
development of other documents prepared under NEPA. The Federal lead
agency may incorporate the planning product directly into a document
prepared under NEPA. The Federal lead agency

[[Page 53681]]

may adopt a planning product in its entirety or may select portions for
adoption. The determination with respect to adoption of a planning
product may be made at the time the Federal lead agency and other joint
lead agencies decide the appropriate scope of the class of action, as
defined in 23 CFR 771.115, or later during the preparation of materials
for compliance with NEPA requirements. To adopt and use planning
products pursuant to this paragraph:
(1) The planning product must be a detailed decision, analysis,
study, or other documented information that:
(i) Is the result of an evaluation or decisionmaking process
carried out during transportation planning, including a detailed
corridor plan or a transportation plan developed under 23 U.S.C. 134 or
135 (or 49 U.S.C. 5303-5304) that fully analyzes impacts on mobility,
adjacent communities, and the environment;
(ii) Is intended to be carried into the transportation project
development process; and
(iii) Has been approved by the State, all local and tribal
governments where the project is located, and by any relevant
metropolitan planning organization. Approved means that the preparer of
the planning product provided the planning product to these entities
with at least 60 days for review and approval, unless an extension is
needed for good cause, and the entities:
(A) Explicitly approved the planning product; or
(B) Implicitly approved the planning product by remaining silent,
failing to object, or failing to explicitly disapprove the planning
product within the specified time.
(2) The planning product must be either a planning decision or a
planning analysis.
(i) Planning decisions that may be adopted under this process
include:
(A) Whether tolling, private financial assistance, or other special
financial measures are necessary to implement the project;
(B) A decision with respect to modal choice, including a decision
to implement corridor or subarea study recommendations to advance
different modal solutions as separate projects with independent
utility;
(C) A basic description of the environmental setting;
(D) A decision with respect to methodologies for analysis; and
(E) An identification of programmatic level mitigation for
potential impacts that the Federal lead agency, in consultation with
Federal, State, local, and tribal resource agencies, determines are
most effectively addressed at a regional or national program level,
including: System-level measures to avoid, minimize, or mitigate
impacts of proposed transportation investments on environmental
resources, including regional ecosystem and water resources; and
potential mitigation activities, locations, and investments.
(ii) Planning analyses that may be adopted under this process
include studies with respect to:
(A) Travel demands;
(B) Regional development and growth;
(C) Local land use, growth management, and development;
(D) Population and employment;
(E) Natural and built environmental conditions;
(F) Environmental resources and environmentally sensitive areas;
(G) Potential environmental effects, including the identification
of resources of concern and potential cumulative effects on those
resources, identified as a result of a statewide or regional cumulative
effects assessment; and
(H) Mitigation needs for a proposed action, or for programmatic
level mitigation, for potential effects that the Federal lead agency
determines are most effectively addressed at a regional or national
program level.
(3) The preparer of the planning product must provide Federal,
State, and local agencies that may have interest in the proposed
project, tribal governments that may have interest in the proposed
project, and the general public with an opportunity to participate in
the planning process leading to the development of the planning
product. This opportunity must be offered through a notice, by
publication or other means, during the planning process that identifies
the planning products that the planning process would produce and that
would be relied on during any subsequent NEPA review of the project.
(4) Prior to its determination that a project qualifies for a
categorical exclusion, during the environmental impact statement, or
environmental assessment process, or prior to the completion of other
documents prepared under NEPA, the Federal lead agency must:
(i) Determine that all of the following conditions are met:
(A) The planning product was developed through a planning process
conducted pursuant to applicable Federal law.
(B) The planning product was developed by engaging in active
consultation with appropriate Federal and State resource agencies and
Indian tribes. The determination must identify those agencies that
participated in the development of the planning product if the planning
product does not specifically mention the agencies.
(C) The planning process included broad, multidisciplinary
consideration of systems-level or corridor-wide transportation needs
and potential effects, including effects on the human and natural
environment.
(D) There is no significant new information or new circumstance
that has a reasonable likelihood of affecting the continued validity or
appropriateness of the planning product.
(E) The planning product has a rational basis and is based on
reliable and reasonably current data and reasonable and scientifically
acceptable methodologies.
(F) The planning product is documented in sufficient detail to
support the decision or the results of the analysis and to meet
requirements for use of the information in the categorical exclusion
determination, environmental assessment, or environmental impact
statement process, or other documents prepared under NEPA.
(G) The planning product is appropriate for adoption and use in the
categorical exclusion determination, environmental assessment, or
environmental impact statement process, or other documents prepared
under NEPA for the project.
(H) The planning product was approved, as established in paragraph
(d)(1)(iii) of this section, not earlier than 5 years prior to the date
on which the information is adopted.
(ii) Obtain the concurrence on this determination from other
participating agencies with relevant expertise and, when appropriate,
from project sponsors, and make the documentation relating to the
planning product available for their review. Concurrence under this
subsection means that the Federal lead agency provided the proposed
determination and the documentation relating to the planning product
to, and received acknowledgment of receipt by, each of these entities
with at least 60 days for review and concurrence, unless an extension
was needed for good cause, and each of these entities:
(A) Explicitly concurred with the determination; or
(B) Implicitly concurred with the determination by remaining
silent, failing to object, or failing to explicitly nonconcur with the
determination within the specified time.
(iii) Make this determination and the documentation relating to the
planning product available for public comment,

[[Page 53682]]

and consider the comments received in its decision whether to adopt and
use the planning product.
(e) Any other Federal agency may rely upon and use any planning
product adopted by a Federal lead agency through this process in
carrying out reviews of the project.
(f) This section shall not be construed to:
(1) Make NEPA applicable to the transportation planning process
conducted under 23 U.S.C. and chapter 53 of 49 U.S.C.
(2) Subject transportation plans and programs to NEPA if a
categorical exclusion determination, environmental assessment, or
environmental impact statement process, or preparation of a document
under NEPA is initiated as a part of, or concurrently with,
transportation planning activities.
(3) Affect the use of planning products in the categorical
exclusion determination, environmental assessment, or environmental
impact statement process, or a document prepared under NEPA pursuant to
other authorities under any other provision of law or to restrict the
initiation of their development during the transportation planning
process.

Sec. 450.318 [Amended]

0
3. Amend Sec. 450.318 by adding paragraph (f), (g), and (h) to read as
follows:

Sec. 450.318 Transportation planning studies and project development.

* * * * *
(f) In addition to the process for incorporation directly or by
reference outlined in paragraph (b) of this section, a Federal lead
agency may follow the process in this paragraph to adopt and use
planning products in support of a determination that a project
qualifies for a categorical exclusion, in the preparation of an
environmental assessment or environmental impact statement, or in the
development of other documents prepared under NEPA. The Federal lead
agency may incorporate the planning product directly into a document
prepared under NEPA. The Federal lead agency may adopt a planning
product in its entirety or may select portions for adoption. The
determination with respect to adoption of a planning product may be
made at the time the Federal lead agency and other joint lead agencies
decide the appropriate scope of the class of action, as defined in 23
CFR 771.115, or later during the preparation of materials for
compliance with NEPA requirements. To adopt and use planning products
pursuant to this paragraph:
(1) The planning product must be a detailed decision, analysis,
study, or other documented information that:
(i) Is the result of an evaluation or decisionmaking process
carried out during transportation planning, including a detailed
corridor plan or a transportation plan developed under 23 U.S.C. 134 or
135 (or 49 U.S.C. 5303-5304) that fully analyzes impacts on mobility,
adjacent communities, and the environment;
(ii) Is intended to be carried into the transportation project
development process; and
(iii) Has been approved by the State, all local and tribal
governments where the project is located, and by any relevant
metropolitan planning organization. Approved means that the preparer of
the planning product provided the planning product to these entities
with at least 60 days for review and approval, unless an extension is
needed for good cause, and the entities:
(A) Explicitly approved the planning product; or
(B) Implicitly approved the planning product by remaining silent,
failing to object, or failing to explicitly disapprove the planning
product within the specified time.
(2) The planning product must be either a planning decision or a
planning analysis.
(i) Planning decisions that may be adopted under this process
include:
(A) Whether tolling, private financial assistance, or other special
financial measures are necessary to implement the project;
(B) A decision with respect to modal choice, including a decision
to implement corridor or subarea study recommendations to advance
different modal solutions as separate projects with independent
utility;
(C) A basic description of the environmental setting;
(D) A decision with respect to methodologies for analysis; and
(E) An identification of programmatic level mitigation for
potential impacts that the Federal lead agency, in consultation with
Federal, State, local, and tribal resource agencies, determines are
most effectively addressed at a regional or national program level,
including: System-level measures to avoid, minimize, or mitigate
impacts of proposed transportation investments on environmental
resources, including regional ecosystem and water resources; and
potential mitigation activities, locations, and investments.
(ii) Planning analyses that may be adopted under this process
include studies with respect to:
(A) Travel demands;
(B) Regional development and growth;
(C) Local land use, growth management, and development;
(D) Population and employment;
(E) Natural and built environmental conditions;
(F) Environmental resources and environmentally sensitive areas;
(G) Potential environmental effects, including the identification
of resources of concern and potential cumulative effects on those
resources, identified as a result of a statewide or regional cumulative
effects assessment; and
(H) Mitigation needs for a proposed action, or for programmatic
level mitigation, for potential effects that the Federal lead agency
determines are most effectively addressed at a regional or national
program level.
(3) The preparer of the planning product must provide Federal,
State, and local agencies that may have interest in the proposed
project, tribal governments who may have interest in the proposed
project, and the general public with an opportunity to participate in
the planning process leading to the development of the planning
product. This opportunity must be offered through a notice, by
publication or other means, during the planning process that identifies
the planning products that the planning process would produce and that
would be relied on during any subsequent NEPA review of the project.
(4) Prior to its determination that a project qualifies for a
categorical exclusion, during the environmental impact statement, or
environmental assessment process, or prior to the completion of other
documents prepared under NEPA, the Federal lead agency must:
(i) Determine that all of the following conditions are met:
(A) The planning product was developed through a planning process
conducted pursuant to applicable Federal law.
(B) The planning product was developed by engaging in active
consultation with appropriate Federal and State resource agencies and
Indian tribes. The determination must identify those agencies that
participated in the development of the planning product if the planning
product does not specifically mention the agencies.
(C) The planning process included broad, multidisciplinary
consideration of systems-level or corridor-wide transportation needs
and potential

[[Page 53683]]

effects, including effects on the human and natural environment.
(D) There is no significant new information or new circumstance
that has a reasonable likelihood of affecting the continued validity or
appropriateness of the planning product.
(E) The planning product has a rational basis and is based on
reliable and reasonably current data and reasonable and scientifically
acceptable methodologies.
(F) The planning product is documented in sufficient detail to
support the decision or the results of the analysis and to meet
requirements for use of the information in the categorical exclusion
determination, environmental assessment, or environmental impact
statement process, or other documents prepared under NEPA.
(G) The planning product is appropriate for adoption and use in the
categorical exclusion determination, environmental assessment, or
environmental impact statement process, or other documents prepared
under NEPA for the project.
(H) The planning product was approved, as established in paragraph
(e)(1)(iii) of this section, not earlier than 5 years prior to the date
on which the information is adopted.
(ii) Obtain the concurrence on this determination from other
participating agencies with relevant expertise and, when appropriate,
from project sponsors and make the documentation relating to the
planning product available for their review. Concurrence under this
subsection means that the Federal lead agency provided the proposed
determination and the documentation relating to the planning product
to, and received acknowledgment of receipt by, each of these entities
with at least 60 days for review and concurrence, unless an extension
was needed for good cause, and each of these entities:
(A) Explicitly concurred with the determination; or
(B) Implicitly concurred with the determination by remaining
silent, failing to object, or failing to explicitly nonconcur with the
determination within the specified time.
(iii) Make this determination and the documentation relating to the
planning product available for public comment and consider the comments
received in its decision whether to adopt and use the planning product.
(g) Any other Federal agency may rely upon and use any planning
product adopted by a Federal lead agency through this process in
carrying out reviews of the project.
(h) This section shall not be construed to:
(1) Make NEPA applicable to the transportation planning process
conducted under 23 U.S.C. and chapter 53 of 49 U.S.C.
(2) Subject transportation plans and programs to NEPA if a
categorical exclusion determination, environmental assessment, or
environmental impact statement process, or preparation of a document
under NEPA is initiated as a part of, or concurrently with,
transportation planning activities.
(3) Affect the use of planning products in the categorical
exclusion determination, environmental assessment, or environmental
impact statement process, or a document prepared under NEPA pursuant to
other authorities under any other provision of law or to restrict the
initiation of their development during the transportation planning
process.

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
4. The authority citation for part 771 is revised to read as follows:

Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128,
138, 139, 168, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR Parts
1500-1508; 49 CFR 1.81, 1.85; Pub. L. 109-59, 119 Stat. 1144,
sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, sections
1315, 1316, 1317, and 1318.

Sec. 771.111 [Amended]

0
5. Revise Sec. 771.111(a)(2) to read as follows:

Sec. 771.111 Early coordination, public involvement, and project
development.

* * * * *
(a) * * *
(2) The information and results produced by, or in support of, the
transportation planning process may be incorporated into environmental
review documents in accordance with 40 CFR 1502.21, and 23 CFR
450.212(b) or 450.318(b). In addition, planning products may be adopted
and used in accordance with 23 CFR 450.212(d) or 450.318(f), which
implement 23 U.S.C. 168.\3\
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\3\ On February 14, 2007, FHWA and FTA issued guidance on
incorporating products of the planning process into NEPA documents
as Appendix A of 23 CFR part 450. This guidance, titled ``Linking
the Transportation Planning and NEPA Processes,'' is available on
the FHWA Web site at http://www.fhwa.dot.gov or in hard copy upon
request.
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* * * * *

Title 49

PART 613--PLANNING ASSISTANCE AND STANDARDS

0
6. The authority citation for part 613 is revised to read as follows:

Authority: 23 U.S.C. 134, 135, 168, and 217(g); 42 U.S.C. 3334,
4233, 4332, 7410 et seq.; 49 U.S.C. 5303-5306, 5323(k); and 49 CFR
1.85, 1.51(f), and 21.7(a).

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
7. The authority citation for part 622 is revised to read as follows:

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303, 5301 and
5323; 23 U.S.C. 139, 168, and 326; Pub. L. 109-59, 119 Stat. 1144,
sections 6002 and 6010; 40 CFR parts 1500-1508; 49 CFR 1.51; and
Pub. L. 112-141, 126 Stat. 405, sections 1310, 1315, 1316 and 1317.

Issued in Washington, DC, on September 3, 2014, under authority
delegated in 49 CFR 1.85 and 1.91.
Gregory G. Nadeau,
Acting Administrator, Federal Transit Administration.
Therese W. McMillan,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2014-21439 Filed 9-9-14; 8:45 am]
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