Environmental Impact and Related Procedures

Victor M. Mendez
Federal Highway Administration
Peter Rogoff
Federal Transit Administration
February 28, 2013

[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Proposed Rules]
[Pages 13609-13614]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04678]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 771

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2012-0007]
FHWA RIN 2125-AF48
FTA RIN 2132-AB05


Environmental Impact and Related Procedures

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 changes to the Federal Highway Administration 
(FHWA) and the Federal Transit Administration's (FTA) joint procedures 
that implement the National Environmental Policy Act (NEPA). The 
revisions are prompted by enactment of the Moving Ahead for Progress in 
the 21st Century Act (MAP-21). This NPRM proposes to add new 
categorical exclusions for projects within an existing operational 
right-of-way and projects receiving limited Federal funding, as 
described in MAP-21. The Agencies seek comments on the proposals 
contained in this document.

DATES: Comments must be received on or before April 29, 2013.

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 FHWA: Kreig Larson, Office of 
Project Delivery and Environmental Review (HEPE), (202) 366-2056, or 
Jomar Maldonado, Office of the Chief Counsel (HCC), (202) 366-1373, 
Federal Highway Administration, 1200 New Jersey Ave. SE., Washington, 
DC 20590-0001. For FTA: Megan Blum, Office of Planning and Environment 
(TPE), (202) 366-0463, or Dana Nifosi, Office of Chief Counsel (TCC), 
(202) 366-4011. Office hours are from 8:00 a.m. to 4:30 p.m. e.t., 
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    On July 6, 2012, President Obama signed into law MAP-21 (Pub. L. 
112-141, 126 Stat. 405), which contains new requirements that the 
Secretary of Transportation must meet. Sections 1316 and 1317 require 
the Secretary to promulgate regulations designating two types of 
actions as categorically excluded under 23 CFR 771.117(c) from the 
requirement under 40 CFR 1508.4 to prepare an environmental assessment 
(EA) or environmental impact statement (EIS): (1) Any project (as 
defined in 23 U.S.C. 101(a)) within an existing operational right-of-
way and (2) any project that receives less than $5,000,000 of Federal 
funds or with a total estimated cost of not more than $30,000,000 and 
Federal funds comprising less than 15 percent of the total estimated 
project cost. Since MAP-21's enactment, FTA established 23 CFR 771.118 
and is therefore proposing to designate the two new categorical 
exclusions in section 771.118(c). The FHWA and FTA, hereafter referred 
to as the ``Agencies,'' are carrying out this rulemaking on behalf of 
the Secretary.

General Discussion of the Proposals

    This NPRM proposes to revise 23 CFR 771.117(c) and 23 CFR 
771.118(c) by designating new categorical exclusion (CE) provisions 
mandated by Congress under sections 1316 and 1317 of MAP-21. The 
Council on Environmental Quality's (CEQ) guidance, Establishing, 
Applying, and Revising Categorical Exclusions under the National 
Environmental Policy Act (75 FR 75628, December 6, 2010), makes 
recommendations on procedures for establishing CEs in accordance with 
section 1507.3 of the CEQ NEPA implementing regulations. The CEQ 
guidance clarifies that the establishment and use of CEs called for by 
statute are governed by the terms of the specific legislation and 
subsequent interpretation by the agencies charged with the 
implementation of the statute (75 FR at 75631 (Footnote 6)). Sections 
1316 and 1317 of MAP-21 describe the actions and projects that must be 
the subject of a rulemaking to categorically exclude those actions and 
projects from further NEPA analysis when there are no unusual 
circumstances, and this NPRM focuses on the Agencies' implementation 
and interpretations of those provisions. The Agencies are proposing two 
CEs that use the statutory language provided under sections 1316 and 
1317 along with some clarifying language where the Agencies believe 
such language is needed to achieve the overall purposes of sections 
1316 and 1317, or to avoid confusion in program administration.
    Actions that are within the scope of designated CEs in 23 CFR 
771.117(c) and 771.118(c) normally do not require any further NEPA 
analysis by the Agencies. Such actions only need a record in the 
project file that confirms the action fits the description of the CE 
and, in accordance with 23 CFR 771.117(b) and 771.118(b), that no 
unusual circumstances exist that require environmental studies to 
determine whether the CE classification is proper or whether further 
NEPA analysis and documentation is necessary. Examples

[[Page 13610]]

of unusual circumstances--which are similar to extraordinary 
circumstances in the CEQ NEPA implementing regulations--include 
significant environmental impacts, substantial controversy on 
environmental grounds, significant impacts on properties protected by 
Section 4(f) of the DOT Act or Section 106 of the National Historic 
Preservation Act (NHPA), or inconsistencies with any Federal, State, or 
local law, requirement or administrative determination relating to the 
environmental aspects of the action (23 CFR 771.117(b)(1)-(4); 23 CFR 
771.118(b)(1)-(4)).
    For the use of the proposed CEs, as for the use of any CE, the 
action must also comply with NEPA requirements relating to connected 
actions and segmentation (see, e.g., 40 CFR 1508.25, and 23 CFR 
771.111(f)). The Agencies recognize that projects cannot be improperly 
segmented. The action must have independent utility, connect logical 
termini when applicable (i.e., linear facilities), and not restrict 
consideration of alternatives for other reasonably foreseeable 
transportation improvements. In addition, even though a CE may apply to 
a proposed action, thereby satisfying NEPA requirements, all other 
requirements applicable to the activity under other Federal and State 
laws and regulations still apply, such as the Clean Water Act, Clean 
Air Act, NHPA, and the Endangered Species Act. Some of these 
requirements may require the collection and analysis of information, or 
coordination and consultation efforts that are independent of the 
Agencies' NEPA CE determination. Also, some of these requirements may 
involve actions by other Federal agencies (e.g., approvals or issuance 
of permits) that could trigger a different level of NEPA analysis for 
those Federal agencies. These requirements must be met before the 
action proceeds regardless of the availability of a CE for the 
transportation project under 23 CFR part 771.
    The first proposed CE, pursuant to section 1316 of MAP-21, will 
apply to projects, as defined in section 101(a) of title 23, U.S.C., 
that occur within an existing operational right-of-way. Section 101(a) 
of title 23, U.S.C., defines ``project'' to mean ``any undertaking 
eligible for assistance under [title 23].'' This definition includes 
capital transit projects that are eligible for financial assistance 
under title 23, U.S.C., through the eligibility criteria under the 
Surface Transportation Program and Congestion Mitigation and Air 
Quality Improvement Program, which specifically include all capital 
transit projects eligible for funding under chapter 53 of title 49, 
U.S.C. It also includes projects carried out under the Federal Lands 
Highway programs. Section 1316(b) of MAP-21 defines ``operational 
right-of-way'' as ``all the real property interests acquired for the 
construction, operation, or mitigation of a project (as defined in 
section 101(a) of title 23, U.S.C.), including the locations of the 
roadway, bridges, interchanges, culverts, drainage, clear zone, traffic 
control signage, landscaping, and any rest areas with direct access to 
a controlled access highway.''
    Consistent with this definition, proposed paragraph (c)(22) of 23 
CFR 771.117 and proposed paragraph (c)(12) of 23 CFR 771.118 would 
include conditions that require the action's scope be within the 
geographic area previously permanently acquired, needed, and used for 
the construction, mitigation, operation, and maintenance of an existing 
transportation facility, which includes any facility eligible for 
funding under title 23, U.S.C., or chapter 53 of title 49, U.S.C. The 
geographic area under section 771.117(c)(22) includes the roadway, 
bridges, interchanges, culverts, drainage, clear zone, traffic control 
signage, landscaping, and any rest areas with direct access to a 
controlled access highway. The Agencies also propose to include 
analogous examples of infrastructure common to transit projects, and 
propose to define the geographic area under section 771.118(c)(12) to 
include roadway, fixed guideway, culverts, drainage, clear zone, 
traffic control signage, landscaping, substations, and any park and 
ride lots with direct access to an existing transit facility. Right-of-
way previously acquired that is not being used for the mitigation, 
operation, or maintenance of an existing transportation facility is not 
considered to be part of the operational right-of-way. Actions in 
right-of-way acquired for corridor preservation or future corridor 
expansion are not eligible if the corridors are not in operational use 
at the time of the CE application.
    For all actions processed under these proposed CEs, the project 
record would need to demonstrate that it fits within the conditions 
specified in the proposed CE language and that no unusual circumstances 
exist that require environmental studies to determine whether the CE 
classification is proper or further NEPA analysis and documentation is 
required (see sections 771.117(b) and 771.118(b)).
    The second proposed CE, pursuant to section 1317 of MAP-21, will 
apply to projects that receive less than $5,000,000 of Federal funds or 
with a total estimated cost of not more than $30,000,000 and Federal 
funds comprising less than 15 percent of the total estimated project 
cost. The proposed paragraph (c)(23) of 23 CFR 771.117 and proposed 
paragraph (c)(13) of 23 CFR 771.118 would apply to projects that 
receive funding under title 23, U.S.C., or chapter 53 of title 49, 
U.S.C., but the Federal funding thresholds include any Federal funding 
regardless of source. These CEs would apply to projects that only 
involve Agency funding decisions and actions. These CEs would not be 
applicable to projects that require other Agency actions (such as 
Interstate access approvals for FHWA), even if that approval action is 
for a project with a total project cost that meets the parameters of 
the CEs. The project record would need to demonstrate that the action 
fits within one of the funding thresholds for this CE and that no 
unusual circumstances exist. The project record would also need to 
demonstrate that the action has independent utility, connects logical 
termini when applicable (i.e., linear facilities), and does not 
restrict consideration of alternatives for other reasonably foreseeable 
transportation improvements.

Section-by-Section Discussion of the Proposals

In General

    This NPRM contains four proposed additions to the regulations at 23 
CFR part 771. The CEs proposed for sections 771.117(c)(22) and 
771.118(c)(12) are identical, as are the CEs proposed for sections 
771.117(c)(23) and 771.118(c)(13). The identical proposals will be 
described in this preamble together for ease of reading.

Proposed Section 771.117(c)(22) and 771.118(c)(12) Categorical 
Exclusion

    Two new sections would be added to 23 CFR part 771 to implement 
MAP-21 section 1316: sections 771.117(c)(22) for FHWA and 
771.118(c)(12) for FTA. Section 1316 of MAP-21 requires the Secretary 
to promulgate regulations that designate as categorically excluded 
projects, as defined in section 101(a) of title 23, U.S.C., occurring 
within the existing operational right-of-way. Section 101(a) of title 
23, U.S.C., defines ``project'' to mean ``any undertaking eligible for 
assistance under [title 23].'' This definition includes transit 
projects that are eligible for financial assistance under title 23, 
U.S.C. It also includes projects carried out under the Federal Lands 
Highway programs.

[[Page 13611]]

    ``Operational right-of-way'' is defined in section 1316(b) of MAP-
21 as ``all real property interests acquired for the construction, 
operation, or mitigation of a project (as defined in section 101(a) of 
title 23, U.S.C.), including the locations of the roadway, bridges, 
interchanges, culverts, drainage, clear zone, traffic control signage, 
landscaping, and any rest areas with direct access to a controlled 
access highway.'' The Agencies are proposing to include regulatory 
language to clarify the meaning of the statutory definition in the 
context of the Agencies' programs. This NPRM proposes to define the 
``operational right-of-way'' as those portions of the existing right-
of-way that have been disturbed for an existing transportation facility 
that is in operational use, including areas that are regularly 
maintained such as clear zones and landscaping. ``Transportation 
facility'' is used in the CE to establish that the existing facility or 
structure must be related to surface transportation. The use of the 
phrase is intended to be used in its plain meaning, and is specifically 
not intended to be limited to the term ``Transportation facilities'' as 
defined in 23 CFR 973.104, which is applicable to the Indian 
Reservation Roads Program. The proposed language provides that the 
``operational right-of-way'' includes the features associated with the 
physical footprint of the transportation facility (including the 
roadway, bridges, interchanges, culverts, drainage) and other areas 
regularly maintained, such as clear zones, traffic control signage, 
landscaping, and any rest areas with direct access to a controlled 
access highway. Under the proposal, ``operational right-of-way'' would 
not include portions of the existing right-of-way that are not 
currently being used or regularly maintained for transportation 
purposes.
    Many of these projects could be categorically excluded under CEs 
already designated in sections 771.117 and 771.118. Examples of 
projects that would, absent unusual circumstances, be categorically 
excluded under existing provisions include construction of bicycle and 
pedestrian lanes, paths, and facilities, landscaping, track and railbed 
maintenance and improvements, and installation of traffic control and 
detector devices. The new CEs (sections 771.117(c)(22) and 
771.118(c)(12)), when finalized, could apply to projects that involve a 
change from one transportation use to another or an increase in 
facility capacity, if the change does not involve unusual 
circumstances.

Proposed Sections 771.117(c)(23) and 771.118(c)(13) Categorical 
Exclusion

    The Agencies propose to add new sections 771.117(c)(23) and 
771.118(c)(13) to implement MAP-21 section 1317, which requires the 
Secretary to promulgate regulations that designate as categorically 
excluded actions receiving limited Federal funds. Specifically, section 
1317(1) of MAP-21 provides for the designation of the CE for ``any 
project--(A) that receives less than $5,000,000 of Federal funds; or 
(B) with a total estimated cost of not more than $30,000,000 and 
Federal funds comprising less than 15 percent of the total estimated 
project cost.''
    The Agencies propose to use the phrase ``Federally funded 
projects'' to clarify that the project must receive some amount of 
Federal funding to be eligible for these CEs. This interpretation is 
consistent with the title in section 1317, the use of the term 
``funds'' in section 1317(1)(A)-(B), and the statute's Conference 
Report indicating Congress intended the CE to cover those actions that 
receive limited Federal funding (House Report 112-557, 112th Congress, 
at 598 (June 28, 2012)). This term includes, but is not limited to, 
projects receiving Federal grants, loans, loan guarantees, lines of 
credit, and projects receiving funds authorized for the Federal Lands 
Access Program, the Federal Lands Transportation Program, and the 
Tribal Transportation Program. The Federal funding thresholds take into 
account any Federal funding to cover the capital costs of the 
undertaking regardless of source, but exclude Federal funds for 
operating costs and expenses that may be provided to the facility.
    The Agencies interpret the section 1317(1)(A)-(B) provisions on 
levels of Federal funding and on estimated project costs as requiring 
consideration during the NEPA process of whether the projected level of 
Federal funding and the estimated project cost, as applicable, are 
reasonably supported by the facts. A change occurring after the NEPA 
determination, while there is still an FHWA and/or FTA action to be 
taken, that raises the level of Federal funding beyond the thresholds 
specified in the CEs will trigger re-evaluation under 23 CFR 771.129 
and possible preparation of additional NEPA documentation. Section 
771.129(c) requires the ``applicant,'' as defined in 23 CFR 771.107(f), 
to consult with the appropriate ``Administration,'' as defined in 23 
CFR 771.107(d), prior to requesting any major approvals or grants 
(including changes in project plans, specifications, or estimates) to 
establish whether the CE designation remains valid for the requested 
Agency action.
    The proposed regulatory language includes the phrase ``that do not 
require Administration actions other than funding'' to clarify that the 
CE is limited to situations where the only Agency action involved is 
funding. ``Administration action'' is defined in 23 CFR 771.107(c) as 
the approval by the Agencies of the applicant's request for Federal 
funds for construction, and approval of activities such as joint and 
multiple use permits, changes in access control, etc., which may or may 
not involve a commitment in Federal funds. Expanding the CE to apply to 
federally funded projects that involve other Agency action, even when 
the funds are within the limits established by Congress, would be 
beyond the statutory limits of the CE. For example, a project that 
would receive Federal funding at or below the specified limits but that 
also would need an Interstate access approval from FHWA under section 
111(a) of title 23, U.S.C., could not be processed as a CE under the 
proposed rule. Projects requiring Agency action other than Agency 
funding may still be eligible for a CE determination under other CEs in 
sections 771.117 or 771.118.
    For the use of the proposed CEs, as for the use of any CE, the 
action must also comply with NEPA requirements relating to connected 
actions and segmentation (see, e.g., 40 CFR 1508.25, and 23 CFR 
771.111(f)).

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. A final rule may be published at any time after close of the 
NPRM comment period.

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

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory

[[Page 13612]]

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 section 3(f) 
of Executive Order 12866 nor would it be significant within the meaning 
of Department of Transportation regulatory policies and procedures (44 
FR 11032). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. It is anticipated that the 
economic impact of this rulemaking would be minimal. The changes that 
this rule proposes are requirements mandated by MAP-21 intended to 
streamline environmental review by making changes in the Agencies' 
environmental review procedures.
    The activities this NPRM proposes to add to 23 CFR 771.117(c)(22) 
and (c)(23) and 771.118(c)(12) and (c)(13), which are described in 
section 1316 and 1317, are inherently limited in their potential to 
cause significant environmental impacts because the use of the CEs is 
subject to the unusual circumstances provision in 23 CFR 771.117(b) and 
771.118(b). That provision requires appropriate environmental studies, 
and may result in the reclassification of the proposal for evaluation 
of the project through an EA or EIS, if the proposal involves 
potentially significant or significant environmental impacts. These 
proposed changes would not adversely affect, in any material way, any 
sector of the economy. In addition, these changes would not interfere 
with any action taken or planned by another agency and would not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs. Consequently, a full regulatory evaluation is 
not required. The Agencies anticipate that the changes in this proposal 
would enable projects to move more expeditiously through the Federal 
review process and would reduce the preparation of extraneous 
environmental documentation and analysis not needed for compliance with 
NEPA and for ensuring that projects are built in an environmentally 
responsible manner. The vast majority of FHWA actions presently are 
determined to be CEs. In a recent survey conducted on CE usage, carried 
out pursuant to MAP-21 section 1318, responding State departments of 
transportation reported that 90 percent to 99 percent of their projects 
qualified for CE determinations. Approximately 90 percent of FTA's 
actions are within the scope of existing CEs (specifically, sections 
771.118(c) and (d)). The Agencies anticipate the percentages may 
increase with the promulgation of the proposed CEs. The FHWA and FTA 
are not able to quantify the economic effects of these changes because 
the types of projects that will be proposed for FHWA and FTA funding 
and their potential impacts are unknown at this time, particularly 
given changes to the programs in MAP-21. The Agencies request comment, 
including data and information on the experiences of project sponsors, 
on the likely effects of the changes being proposed.

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. The proposed revision could streamline environmental review 
and thus would be less than any current impact on small business 
entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This proposed rule will not result in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$148.1 million or more in any one year (2 U.S.C. 1532). Further, in 
compliance with the Unfunded Mandates Reform Act of 1995, the Agencies 
will evaluate any regulatory action that might be proposed in 
subsequent stages of the proceeding to assess the effects on State, 
local, and tribal governments and the private sector.

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. This proposed action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132, and the Agencies have determined that this proposed action 
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)

    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,

[[Page 13613]]

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), 77 FR 27534 (May 10, 2012) (available online at 
www.fhwa.dot.gov/enviornment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve environmental 
justice (EJ) as part of their mission by 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/legislation_law/12349_14740.html).
    The Agencies have evaluated this proposed rule under the Executive 
Order, the DOT Order, the FHWA Order, and the FTA Circular. The 
Agencies have determined that the proposed new CEs, if finalized, would 
not cause disproportionately high and adverse human health and 
environmental effects on minority or low income populations. This 
action proposes to add a provision to the Agencies' NEPA procedures 
under which they may decide in the future that a project or program 
does not require the preparation of an EA or EIS. The proposed rule 
itself has no potential for effects until it is applied to a proposed 
action requiring approval by the FHWA or FTA.
    At the time the Agencies apply the CE proposed by this rulemaking, 
the Agencies would have an independent obligation to conduct an 
evaluation of the proposed action under the applicable EJ orders and 
guidance to determine whether the proposed action has the potential for 
EJ effects. The rule would not affect the scope or outcome of that EJ 
evaluation. In any instance where there are potential EJ effects and 
the Agencies were to consider applying one of the CEs proposed by this 
rulemaking, public outreach under the applicable EJ orders and guidance 
would provide affected populations with the opportunity to raise any 
concerns about those potential EJ effects. See DOT Order 5610.2(a), 
FHWA Order 6640.23A, and FTA Policy Guidance for Transit Recipients 
(available at links above). Indeed, outreach to ensure the effective 
involvement of minority and low income populations where there is 
potential for EJ effects is a core aspect of the EJ orders and 
guidance. For these reasons, the Agencies also have determined that no 
further EJ analysis is needed and no mitigation is required in 
connection with the designation of the proposed CEs.

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)). 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. 
The CEs are one part of those agency procedures, and therefore 
establishing CEs does not require preparation of a NEPA analysis or 
document. Agency NEPA procedures are generally procedural guidance to 
assist agencies in the fulfillment of agency responsibilities under 
NEPA, but are not the agency's final determination of what level of 
NEPA analysis is required for a particular proposed action. The 
requirements for establishing agency NEPA procedures are set forth at 
40 CFR 1505.1 and 1507.3. The determination that establishing CEs does 
not require NEPA analysis and documentation was upheld in Heartwood, 
Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 
1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).

Regulation Identification Number

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

List of Subjects

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 record keeping 
requirements.

    In consideration of the foregoing, the Agencies propose to amend 
title 23, Code of Federal Regulations part 771 and title 49, Code of 
Federal Regulations part 622 as follows:

Title 23--Highways

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

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

    Authority:  42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 
138, 139, 315, 325, 326, and 327; 49 U.S.C. 303, 5301 and 5323; 40 
CFR Parts 1500-1508; 49 CFR 1.48(b) and 1.51; Pub. L. 109-59, 119 
Stat. 1144, sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, 
sections 1315, 1316 and 1317.

0
2. Amend Sec.  771.117 by adding paragraphs (c)(22) and (c)(23) to read 
as follows:


Sec.  771.117  FHWA categorical exclusions.

* * * * *
    (c) * * *

[[Page 13614]]

    (22) Projects, as defined in 23 U.S.C. 101, that would take place 
entirely within the existing operational right-of-way. The operational 
right-of-way includes those portions of the right-of-way that have been 
disturbed for an existing transportation facility or are regularly 
maintained for transportation purposes. This area includes the features 
associated with the physical footprint of the transportation facility 
(including the roadway, bridges, interchanges, culverts, drainage, 
fixed guideways, substations, etc.) and other areas regularly 
maintained for transportation purposes such as clear zone, traffic 
control signage, landscaping, any rest areas with direct access to a 
controlled access highway, or park and ride lots with direct access to 
an existing transit facility. It does not include portions of the 
existing right-of-way that are not currently being used or not 
regularly maintained for transportation purposes.
    (23) Federally funded projects that do not require Administration 
actions other than funding, and:
    (i) That receive less than $5,000,000 of Federal funds; or
    (ii) With a total estimated cost of not more than $30,000,000 and 
Federal funds comprising less than 15 percent of the total estimated 
project cost.
* * * * *
0
3. Amend Sec.  771.118 by adding paragraphs (c)(12) and (c)(13) to read 
as follows:


Sec.  771.118  FTA categorical exclusions.

* * * * *
    (c) * * *
    (12) Projects, as defined in 23 U.S.C. 101, that would take place 
entirely within the existing operational right-of-way. The operational 
right-of-way includes those portions of the right-of-way that have been 
disturbed for an existing transportation facility or are regularly 
maintained for transportation purposes. This area includes the features 
associated with the physical footprint of the transportation facility 
(including the roadway, bridges, interchanges, culverts, drainage, 
fixed guideways, substations, etc.) and other areas regularly 
maintained for transportation purposes such as clear zone, traffic 
control signage, landscaping, any rest areas with direct access to a 
controlled access highway, or park and ride lots with direct access to 
an existing transit facility. It does not include portions of the 
existing right-of-way that are not currently being used or not 
regularly maintained for transportation purposes.
    (13) Federally funded projects that do not require Administration 
actions other than funding, and:
    (i) That receive less than $5,000,000 of Federal funds; or
    (ii) With a total estimated cost of not more than $30,000,000 and 
Federal funds comprising less than 15 percent of the total estimated 
project cost.
* * * * *

Title 49--Transportation

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
4. 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 and 326; Pub. L. 109-59, 119 Stat. 1144, 
sections 6002 and 6010; 40 CFR parts 1500-1508; 49 CFR 1.51; and 
Pub. L. 112-141, 126 Stat. 405, sections 1315, 1316 and 1317.

    Issued on: February 22, 2013.
Victor M. Mendez,
Administrator, Federal Highway Administrator.
Peter Rogoff,
Administrator, Federal Transit Administration.
[FR Doc. 2013-04678 Filed 2-27-13; 8:45 am]
BILLING CODE 4910-22-P