Environmental Impact and Related Procedures |
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Gregory G. Nadeau
Federal Highway Administration
Therese W. McMillan
Federal Transit Administration
November 20, 2015
[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Proposed Rules]
[Pages 72624-72642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29413]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 771 and 774
Federal Transit Administration
49 CFR Part 622
[Docket No. FHWA-2015-0011]
FHWA RIN 2125-AF60
FTA RIN 2132-AB26
Environmental Impact and Related Procedures
AGENCY: Federal Highway Administration (FHWA), Federal Transit
Administration (FTA), 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 FHWA and FTA joint regulations
that implement the National Environmental Policy Act (NEPA) and Section
4(f) of the Department of Transportation Act. The revisions are
prompted by the enactment of the Moving Ahead for Progress in the 21st
Century Act (MAP-21), which requires rulemaking to address programmatic
approaches. This NPRM proposes to revise the FHWA/FTA Environmental
Impact and Related Procedures and Parks, Recreation Areas, Wildlife and
Waterfowl Refuges, and Historic Sites regulations due to MAP-21 changes
to the environmental review process that FHWA and FTA have not
previously captured in other rulemakings, such as the use of
programmatic agreements and the use of single final environmental
impact statement/record of decision documents. In addition, FHWA and
FTA propose changes to the regulatory text to improve readability and
to reflect current practice, consistent with an Executive order to
improve regulations and regulatory review. The FHWA and FTA seek
comments on the proposals contained in this notice.
DATES: Comments must be received on or before January 19, 2016.
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.
Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New
Jersey Ave. SE., between 9:00 a.m. and 5:00 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 Identifier 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: Neel Vanikar, Office of
Project Development and Environmental Review, (202) 366-2068, or Diane
Mobley, Office of Chief Counsel, (202) 366-1366. For FTA: Megan Blum,
Office of Planning and Environment, (202) 366-0463, or Helen Serassio,
Office of Chief Counsel, (202) 366-1974. The FHWA and FTA are both
located at 1200 New Jersey Ave. SE., Washington, DC 20590. Office hours
are from 9:00 a.m. to 5:00 p.m., 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 FHWA and
FTA, hereafter referred to as the ``Agencies,'' must meet in complying
with NEPA (42 U.S.C. 4321 et seq.), as well as a requirement to
initiate a rulemaking to allow for the use of programmatic approaches.
23 U.S.C. 139(b)(3)(A). Through this NPRM, the Agencies propose to
revise their regulations that implement NEPA at 23 CFR part 771--
Environmental Impact and Related Procedures, and 23 U.S.C. 138 and 49
U.S.C. 303 (hereafter referred to as Section 4(f) \1\) at 23 CFR part
774--Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and
Historic Sites. The proposed revisions would reflect MAP-21
requirements and better reflect current Agency practice, as well as
improve readability consistent with Executive Order 13563, ``Improving
Regulation and Regulatory Review'' (2011).
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\1\ Section 4(f) of the Department of Transportation Act of 1966
was repealed in 1983 when it was codified without substantive change
at 49 U.S.C. 303. A provision with the same meaning is found at 23
U.S.C. 138. This regulation continues to refer to Section 4(f) as
such because the policies Section 4(f) engendered are widely
referred to as ``Section 4(f)'' matters.
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General Discussion of the Proposals
The following bullets are sections of MAP-21 that affect 23 CFR
parts 771 and 774; the list does not include the sections of MAP-21
that have been the subject of other rulemakings:
Section 1119(c)(2) revised the Section 4(f) exception for
park road and parkway projects to apply to Federal lands transportation
facilities, which affects the Section 4(f) exception in 774.13(e);
Section 1122 replaced the former ``transportation
enhancement projects program'' with a new ``transportation alternatives
projects program,'' which affects the Section 4(f) exception in
774.13(g);
Section 1302 amended 23 U.S.C. 108 to address advance
acquisition of real property interests, which affects the
[[Page 72625]]
timing of administrative activities in section 771.113;
Section 1305 amended 23 U.S.C. 139(b)-(e) concerning
programmatic approaches for environmental reviews; the Secretary's
designation of lead Federal agency for projects with more than one
modal administration; participating agency roles and responsibilities;
and project initiation information, which affects early coordination,
public involvement, and project development as described in section
771.111;
Section 1315 expanded the emergency actions covered by
categorical exclusion (CE), which were addressed in a previous
rulemaking, but also affected information in section 771.131, emergency
action procedures, which are addressed in this rule;
Section 1319 provided for the preparation of a final
environmental impact statement (EIS) using errata sheets in certain
circumstances and requiring the combination of final EISs with records
of decision (ROD) to the maximum extent practicable if certain
circumstances are met. This requirement affects definitions in Sec.
771.107 as well as final EISs and RODs in Sec. Sec. 771.125 and
771.127, respectively;
Section 1320(d) provided a definition of ``early
coordination activities;''
Section 20003 amended 49 U.S.C. 5301 and struck
minimization of environmental impacts from the statement of policies
and purposes so the reference to section 5301 has been removed from
Sec. 771.101;
Section 20016 amended 49 U.S.C. 5323 by striking
requirements for public review and comment and public hearings for
capital projects that will not substantially affect a community or its
public transportation service, which affects references in Sec. Sec.
771.101 and 771.125; and
Section 20017 amended 49 U.S.C. 5324 by striking
requirements for findings of no significant impacts (FONSI) and RODs to
have a written statement that no adverse environmental effect is likely
from the project or no reasonable and prudent alternative exists and
all attempts have been made to minimize effects, which affects a
reference in Sec. 771.125.
In addition to the proposed MAP-21-related changes, this proposed
rule includes other proposed changes to provide clarification and
guidance. All proposed changes are discussed in the next section.
Section-by-Section Discussion of the Proposals
NEPA Regulation Changes (Part 771)
Section 771.101 Purpose
The Agencies propose to remove outdated references from and include
new references in Sec. 771.101 in accordance with MAP-21. The Agencies
propose to revise the last sentence in section 101 to include MAP-21
references and updated U.S. Code references: ``This regulation also
sets forth procedures to comply with 23 U.S.C. 109(h), 128, 138, 139,
325, 326, 327; 49 U.S.C. 303, and 5323(q); and Pub. L. 112-141, 126
Stat. 405, sections 1301, and 1319.''
Section 771.103 [Reserved]
The Agencies propose no changes to section 771.103 in this NPRM.
Section 771.105 Policy
The Agencies propose to remove references to specific guidance
documents in the footnote to paragraph (a). The revised footnote would
continue to refer to the Agencies' Web sites for the most recent
guidance documents. These changes will allow the regulation to stay
current as the Agencies release new guidance documents.
The Agencies propose to add a new paragraph (b) to support
development of programmatic approaches consistent with MAP-21 Section
1305(a) (23 U.S.C. 139(b)): it is the Administration's policy that
``[p]rogrammatic approaches be developed for compliance with
environmental requirements, coordination among agencies and/or the
public, or to otherwise enhance and accelerate project development.''
Addressing programmatic approaches in this section and under a separate
paragraph refects the Agencies' intent to encourage their broader use.
With the addition of proposed paragraph (b), current paragraphs
(b), (c), (d), (e), and (f) would be re-lettered as paragraphs (c),
(d), (e), (f), and (g), respectively. The Agencies propose no change in
wording to any of these paragraphs.
Section 771.107 Definitions
The Agencies propose to modify the first sentence of the definition
of ``Administration action'' from passive voice to active voice without
losing the original intent of the definition: ``FHWA or FTA approval of
the applicant's request for Federal funds for construction.'' The rest
of the definition would not change.
The Agencies propose to modify the definition of ``applicant'' by
adding the word ``Federal'' to include Federal governmental units as
potential applicants. This change would provide for instances when the
Federal Lands program is an FHWA applicant.
The Agencies propose to add a definition for ``programmatic
approaches'' to Sec. 771.107 consistent with MAP-21 Section 1305(a)
(23 U.S.C. 139(b)). The proposed definition is ``an approach that
reduces the need for project-by-project reviews, eliminates repetitive
discussion of the same issue, or focuses on the actual issues ripe for
analyses at each level of review, while maintaining appropriate
consideration for the environment'' and is taken in large part from 23
U.S.C. 139(b)(3)(A). The Agencies do not propose adding or deleting any
other definitions.
The Agencies propose to modify the definition of ``Project
sponsor'' by adding ``Federal funding'' to the definition and
clarifying that the project sponsor, if not the applicant, may conduct
some of the activities on behalf of the applicant. This change would
slightly broaden the definition of project sponsor and make it
consistent with other parts of the regulation, as well as clarify that
the project sponsor and the applicant are not always one and the same
entity. The proposed revised definition is ``[t]he Federal, State,
local, or federally-recognized Indian tribal governmental unit, or
other entity, including any private or public-private entity that seeks
Federal funding or an Administration action for a project. The project
sponsor, if not the applicant, may conduct some of the activities on
behalf of the applicant.''
The Agencies propose to modify the definition of ``Section 4(f)''
to include a reference to the current implementing regulations for
Section 4(f) (23 CFR part 774), and to delete footnote 2, which is
discussed in 23 CFR part 774.
Structurally, the Agencies propose reorganizing the definitions
within this section by organizing them in alphabetical order and
removing the lettering of paragraphs. This change is consistent with
other regulations (e.g., 23 CFR part 774), and will aid reader
comprehension, as definitions are typically in alphabetical order. In
addition, this change would reduce future associated formatting changes
to the regulation should definitions be added or removed.
Section 771.109 Applicability and Responsibilities
The Agencies propose several changes to Sec. 771.109 that provide
greater clarity on Agency, project sponsor, and applicant
responsibilities, as well as improve the organizational structure of
[[Page 72626]]
the section. For example, the Agencies propose to reorganize paragraph
(b) by renumbering it as paragraph (b)(1) and to modify the language of
proposed paragraph (b)(1) by adding the phrase ``unless the
Administration approves of their deletion or modification in writing''
to the end of the first sentence. This text is not new; the Agencies
propose to move this concept from the last clause in paragraph (d) of
this section and revise the language to be in active voice, clarifying
that the Administration performs the action (i.e., the Agencies will
approve of any deletions or modifications of mitigation measures
previously committed to in the environmental documents prepared
pursuant to this regulation). In addition to that change, the Agencies
propose to modify the language of proposed paragraph (b)(1) by
clarifying the responsibilities of FHWA in the second sentence. The
current phrase, ``program management,'' would be replaced with
``stewardship and oversight,'' and the phrase, ``that include reviews
of designs, plans, specifications, and estimates (PS&E), and
construction inspections,'' would be deleted. The Agencies propose this
change to reflect the customary practice and responsibilities of FHWA.
In summary, paragraph (b)(1) would read, ``The applicant, in
cooperation with the Administration, is responsible for implementing
those mitigation measures stated as commitments in the environmental
documents prepared pursuant to this regulation unless the
Administration approves of their deletion or modification in writing.
The FHWA will assure that this is accomplished as a part of its
stewardship and oversight responsibilities. The FTA will assure
implementation of committed mitigation measures through incorporation
by reference in the grant agreement, followed by reviews of designs and
construction inspections.''
The Agencies propose creating a new paragraph (b)(2) that reaffirms
FHWA's commitment to ensuring that the State highway agency with which
it partners fulfills all environmental commitments as listed in
approved environmental review documents. The language found in proposed
paragraph (b)(2) was previously found in section 771.109(d), though the
last clause of paragraph (d) was added to paragraph (b)(1) as explained
above. The Agencies moved the language to its new position in paragraph
(b)(2) in order to improve the logical sequence of the section;
paragraphs (b)(1) and (b)(2) both address mitigation measures.
The Agencies propose to add a new paragraph (c)(7) that clarifies
the responsibility of a participating agency: ``[a] participating
agency is responsible for providing input, as appropriate, during the
times specified in the coordination plan under 23 U.S.C. 139(g), and
providing comments and concurrence on a schedule if included within the
coordination plan.'' This change is proposed in accordance with MAP-21
Section 1305(e) (23 U.S.C. 139(g)(1)(B)(i)).
As noted in the discussion above, the Agencies propose to delete
paragraph (d), as these responsibilities are now articulated through
revisions to paragraph (b)(1) and in proposed new paragraph (b)(2).
Section 771.111 Early Coordination, Public Involvement, and Project
Development
Upon review of Sec. 771.111, the Agencies found the beginning of
the section to be out of logical order. The Agencies propose to
reorganize paragraph (a) into three subparagraphs, keeping much of the
same information: Paragraph (a)(1) addresses early coordination
activities; paragraph (a)(2) covers the transportation planning process
in relation to the environmental review process; and paragraph (a)(3)
remains focused on class of action identification. The proposed new
sentence in paragraph (a)(1) would discuss the benefits of early
coordination activities: ``These [early coordination] activities
contribute to reducing or eliminating delay, duplicative processes, and
conflict by incorporating planning outcomes that have been reviewed by
agencies and Indian tribal partners in project development.'' The
Agencies developed this language after considering the language in
section 1320(a)(1) of MAP-21, which essentially contains the goals of
early coordination. Early coordination activities include: (1)
Technical assistance on identifying potential impacts and mitigation
issues; (2) the potential appropriateness of using planning products
and decisions in later environmental reviews; and (3) the
identification and elimination from detailed study in the environmental
review process of the issues that are not significant or that have been
covered by prior environmental reviews (for the list of activities, see
MAP-21 Section 1320(d)). The Agencies propose deleting the second
sentence currently in paragraph (a)(1) (``This involves the exchange of
information from the inception of a proposal for action to preparation
of the environmental review documents.'') because it is duplicative of
the concepts addressed in paragraph (a)(2) (now proposed paragraph
(a)(2)(i)).
The Agencies propose modifying current paragraph (a)(2) by
renumbering it as paragraph (a)(2)(i) and updating the citations to
read ``40 CFR parts 1500 through 1508, 23 CFR part 450, or 23 U.S.C.
168'' in order to be more encompassing of the referenced statute and
regulations. In addition, a new paragraph (a)(2)(ii) would address the
inclusion of mitigation actions in the planning process: ``The planning
process described in paragraph (a)(2)(i) may include mitigation actions
consistent with a programmatic mitigation plan developed pursuant to 23
U.S.C. 169 or from a programmatic mitigation plan developed outside of
that framework.'' Programmatic mitigation plans are the subject of a
separate on-going MAP-21 rulemaking action (see 79 FR 31784, June 2,
2014); in the event the Agencies publish a final rule, the Agencies
would revise the proposed paragraph (a)(2)(ii) text to include a
reference to the applicable regulation. The Agencies propose including
the reference to programmatic mitigation plans to further encourage the
link between the planning and environmental processes.
Finally, paragraph (a)(3) would include the class of action
identification language currently found in the last two sentences of
paragraph (a)(1): ``Applicants intending to apply for funds should
notify the Administration at the time that a project concept is
identified. When requested, the Administration will advise the
applicant, insofar as possible, of the probable class of action (see 23
CFR 771.115) and related environmental laws and requirements and of the
need for specific studies and findings that would normally be developed
during the environmental review process.'' Generally, this is a non-
substantive change in that most of the information found in proposed
new paragraph (a)(3) comes from the current paragraph (a)(1). But the
Agencies clarified that the Administration may advise applicants of the
need for specific studies and findings that would normally be developed
during the environmental review process by replacing ``concurrently
with'' with ``during,'' and ``documents'' with ``process.'' The
Agencies want to highlight through these changes that the focus is on
the environmental review process, not documents, and the studies and
findings performed are completed as part of the process.
In paragraph (c), the Agencies propose to replace the word
``project'' with
[[Page 72627]]
``action'' to be consistent within 23 CFR part 771 and to more
accurately reflect the work of the Agencies, which is not solely
devoted to projects but to actions taken in advancement of projects.
``Action'' is defined in section 771.107.
In paragraph (d), the Agencies propose to delete the outdated
footnote (footnote 4): ``The FHWA and FTA have developed guidance on 23
U.S.C. Section 139 titled ``SAFETEA-LU Environmental Review Process:
Final Guidance,'' November 15, 2006, and available at http://www.fhwa.dot.gov or in hard copy upon request.'' The Agencies are
updating the guidance regarding section 139 to reflect MAP-21 changes
and may update the guidance in response to future transportation bills.
In order to maximize the flexibility of these regulations, the Agencies
propose deleting the specific reference to the 2006 document.
In paragraph (e), the Agencies propose to revise the second
sentence to read: ``The Administration will provide direction to the
applicant on how to approach any significant unresolved issues as early
as possible during the environmental review process.'' This replaces
the provision that the ``Administration will prepare a written
evaluation of any significant unresolved issues.'' The change reflects
current practice and is consistent with the responsibilities of the
Agencies. The Agencies also replaced the references to environmental
assessments and draft EIS documents with the broader term
``environmental review process'' because the Agencies may provide
direction on any class of action. Although a CE will not have
significant unresolved issues, the Agencies could provide early input
on an action with significant unresolved issues that allow for the use
of a CE.
Paragraph (f) would notably be modified to include CEs. The
Agencies propose replacing ``In order to ensure meaningful evaluation
of alternatives and to avoid commitments to transportation improvements
before they are fully evaluated, the action evaluated in each EIS or
finding of no significant impact (FONSI) shall:'' with ``Any action
evaluated through a categorical exclusion (CE), environmental
assessment (EA), or environmental impact statement (EIS) shall:''. This
change would clarify that actions evaluated in a CE, EA, or EIS must
comply with NEPA requirements related to connected actions and
segmentation, per 40 CFR 1508.25. The Agencies recognize that projects
cannot be segmented improperly, regardless of the NEPA class of action;
any action evaluated 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. The Agencies have presented this guidance
in recent rulemakings (e.g., 79 FR 60100, October 6, 2014 and 79 FR
2107, January 13, 2014). For consistency, the term ``FONSI'' would be
removed from the list and replaced with ``EA.''
The Agencies propose to delete the outdated footnote in paragraph
(h)(2)(viii) regarding Section 4(f) guidance (``The FHWA and FTA have
developed guidance on Section 4(f) de minimis impact findings titled
``Guidance for Determining De Minimis Impacts to Section 4(f)
Resources,'' December 13, 2005, which is available at http://www.fhwa.dot.gov or in hard copy upon request.'') as de minimis
guidance is now included in the Section 4(f) Policy Paper, available at
http://www.environment.fhwa.dot.gov/4f/4fpolicy.pdf.
The Agencies propose a number of non-substantive modifications to
paragraph (i) in subparagraphs (1), (3), and (4). Subparagraph (1)
would be modified to improve readability and improve understanding. The
term ``projects'' would be replaced with ``actions'' to better reflect
the work of the Agencies in two places, and the first sentence would be
changed to reflect that scoping is about the environmental review
``process,'' not simply about ``documents.'' In addition, the Agencies
propose to remove the last sentence, ``For other projects that
substantially affect the community or its public transportation
service, an adequate opportunity for public review and comment must be
provided,'' because the support for the statement (i.e., 49 U.S.C.
5323) was repealed by MAP-21 Section 20016, and the opportunity for the
public to review EA and EIS documents is provided for in sections
771.119 (EA) and 771.123 (draft EIS). In subparagraph (3), the Agencies
would modify the first sentence to provide examples of ``NEPA
documents'' by adding ``(e.g., EAs and EISs),'' and would add
``environmental studies (e.g., technical reports)'' and ``meeting''
minutes to the list of potential information and material that the
Agencies encourage applicants for capital assistance in the FTA program
to post and distribute to enhance public involvement. Finally, in
subparagraph (4), the Agencies would clarify and update the list of
materials FTA encourages applicants in the FTA program to post on a
project Web site until the project is constructed and open for
operation. This list would include FONSIs, combined final EIS/RODs, and
RODs. This sentence would now read: ``Are encouraged to post all
findings of no significant impact (FONSI), combined final environmental
impact statement (EIS)/records of decision (ROD), and RODs on a project
Web site until the project is constructed and open for operation.''
Paragraph (j) would be modified to include updated contact
information for FTA, and the Web site address for each Agency. These
changes are meant simply to provide complete contact information for
both Agencies.
Section 771.113 Timing of Administration Activities
The Agencies propose modest changes to each of the four paragraphs
in Sec. 771.113. In paragraph (a), the Agencies propose revising the
paragraph by replacing the phrase ``(if not a lead agency)'' with ``and
project sponsor as appropriate,'' in the first sentence. This change
recognizes that the applicant and the project sponsor are not always
the same entity and may not be identified as ``lead agencies,'' but
they may work with the lead agencies to ``perform the work necessary to
complete the environmental review process.'' As noted in the previous
sentence, the Agencies would also revise the sentence by replacing the
text, ``a finding of no significant impact (FONSI) or a record of
decision (ROD) and comply with other related environmental laws and
regulations to the maximum extent possible during the NEPA process''
with the text, ``the environmental review process.'' This modification
changes the focus from the completion of a FONSI or a ROD to the
completion of the environmental review process, which is a broader term
and more accurately reflects the Agencies' goals. In addition, the
Agencies propose revising the second sentence to more clearly provide
examples of work that takes place during the review process. This
sentence would be changed from, ``This work includes environmental
studies, related engineering studies, agency coordination and public
involvement'' to ``This work includes drafting environmental documents
and completing studies, related engineering studies, agency
coordination, and public involvement.'' Finally, the Agencies propose
reorganizing the last sentence to bring the exception clause forward to
lend greater reader comprehension; there is no content change to the
last sentence.
In subparagraph (a)(1), the Agencies propose to update the document
types that indicate the environmental review process is complete. In
(a)(1)(i), the
[[Page 72628]]
Agencies would simply use ``CE.'' In paragraph (a)(1)(ii), the Agencies
would reword the sentence to make clear that the Administration issues
a FONSI by replacing passive language with active language and by
adding the text ``The Administration has issued a'' before ``FONSI''
and deleting ``has been approved.'' In paragraph (a)(1)(iii), the
Agencies would replace the text, ``A final EIS has been approved and
available for the prescribed period of time and a record of decision
has been signed'' with ``The Administration has issued a combined final
EIS/ROD or a final EIS and ROD.'' This change would be in compliance
with MAP-21 Section 1319.
Paragraph (b) would be reworded to clarify that it applies to FHWA
alone. The phrase ``For activities proposed for FHWA action'' would be
added to the beginning of the sentence.
In paragraph (d), the Agencies propose several modifications
pursuant to MAP-21, including MAP-21 Section 1302 (and as implemented
in 23 CFR part 710, subpart E, Property Acquisition Alternatives), MAP-
21 Section 20008, and MAP-21 Section 20016. Generally, final design
activities, property acquisition, purchase of construction materials or
rolling stock, or project construction cannot proceed until the
proposed action has been classified as a CE or a decision document has
been issued. Exceptions to that prohibition, however, are found in
paragraph (d). The Agencies propose modifying the text for subparagraph
(d)(1) to read, ``Early acquisition, hardship and protective
acquisitions of real property in accordance with 23 CFR part 710,
subpart E for FHWA.'' This exception refers the reader to FHWA property
acquisition regulations for the acquisition compliance requirements.
The FTA's existing exception in subparagraph (d)(1) (i.e., the second
sentence) would not change. To summarize, this subparagraph states that
acquisition of land for hardship or protective purposes may occur prior
to the completion of NEPA for Agency actions. Subparagraph (d)(2)
pertains to FTA only; the text, revised as proposed, would no longer
refer to FTA's ``acquisition of right-of-way'' CE, specifically, but
would refer to the broader corridor preservation statute and guidance,
pursuant to MAP-21 Section 20016. The proposed text for subparagraph
(d)(2) would read: ``The early acquisition of right-of-way for future
transit use in accordance with 49 U.S.C. 5323(q) and FTA guidance.''
The Agencies propose deleting subparagraphs (d)(3) and (d)(4) because
the proposed language in subparagraph (d)(1) broadly encompasses 23 CFR
part 710; therefore, the current references to 23 CFR 710.503 and 23
CFR 710.501 would no longer be necessary. Finally, subparagraph (d)(5)
would be renumbered as subparagraph (d)(3), and the statutory reference
at the end of the sentence would be updated to reflect changes to 49
U.S.C. 5309 by MAP-21 Section 20008: ``A limited exception for rolling
stock is provided in 49 U.S.C. 5309(l)(6).'' These are non-substantive
changes.
Section 771.115 Classes of Actions
The Agencies propose several minor modifications to Sec. 771.115
to clarify this section. In the introductory paragraph, the Agencies
would add the sentence ``A programmatic approach may be used for any
class of action'' to be consistent with MAP-21 Section 1305 (23 U.SC.
139(b)).
In paragraph (a), the Agencies would move the acronym ``EIS'' to
the beginning of the sentence and move ``Class 1'' to parentheses to
aid in readability.
Paragraph (a) states that ``actions that significantly affect the
environment require an EIS'' and provides examples of actions that
normally require an EIS in the subsequent subparagraphs. In
subparagraph (a)(3), FTA proposes to modify the current example,
``Construction or extension of a fixed transit facility (e.g., rapid
rail, light rail, commuter rail, bus rapid transit) that will not be
located within an existing transportation right-of-way,'' by inserting
the term ``primarily'' before ``within an existing transportation
right-of-way.'' This addition would be in response to FTA's recent
revisions to its list of CEs since 2012, including the ``assembly or
construction of facilities'' CE (23 CFR 771.118(c)(9)). The FTA has
categorically excluded some actions from requiring an EIS or EA when
they take place primarily or entirely within existing transportation
right-of-way; therefore, FTA proposes adding ``primarily'' to
subparagraph (a)(3) in order to distinguish clearly that actions not
primarily within existing transportation right-of-way will normally
require an EIS.
In subparagraph (a)(4), the Agencies would add ``For FHWA actions''
to the beginning of the sentence, but no other modifications are
proposed to the subparagraph: ``For FHWA actions, new construction or
extension of a separate roadway for buses or high occupancy vehicles
not located within an existing highway facility.'' The Agencies propose
this change because the Agencies propose adding a new subparagraph
(a)(5) to reflect FTA actions. The subparagraph (a)(5) language would
be similar to subparagraph (a)(4) language, but it would not refer to
high occupancy vehicles because they are not typically part of the FTA
program. In addition, the subparagraph would include the ``not located
primarily within an existing transportation right-of-way'' condition
(emphasis added) to reflect FTA's program, as discussed above for
subparagraph (a)(3). Proposed subparagraph (a)(5) would read: ``For FTA
actions, new construction or extension of a separate roadway for buses
not located primarily within an existing transportation right-of-way.''
As the Agencies propose for paragraph (a), the Agencies propose
moving the acronym for CEs to the beginning of the sentence in
paragraph (b), and moving the acronym for EAs to the beginning of the
sentence in paragraph (c) to aid in readability, followed by their
class in parentheses. Finally, the Agencies propose to slightly reword
the first sentence in paragraph (c) to clarify that it is the
Administration's responsibility to determine the significance of the
environmental impact, and where significance is not clearly
established, then an EA would be the appropriate class of action. The
first sentence in paragraph (c) would read, ``Actions in which the
Administration has not clearly established the significance of the
environmental impact.''
Section 771.117 FHWA Categorical Exclusions
The Agencies propose no changes to Sec. 771.117 in this NPRM.
Section 771.118 FTA Categorical Exclusions
The Agencies propose no changes to Sec. 771.118 in this NPRM.
Section 771.119 Environmental Assessments
The Agencies propose modifications to paragraphs (a) through (f)
and paragraph (h) in Sec. 771.119. In paragraph (a), the Agencies
would revise the first sentence from passive voice to active voice. It
would instead read as, ``The applicant shall prepare an EA. . .'' This
would make it clear that it is the applicant's responsibility to
prepare an EA. In addition, the Agencies would reorganize the paragraph
as subparagraph (a)(i). This change would aid in readability. It would
also support a second proposed modification to paragraph (a): New
subparagraph (a)(ii).
The Agencies propose adding a new subparagraph (a)(ii) that would
apply to FTA actions alone. Subparagraph (a)(ii)
[[Page 72629]]
would read, ``For FTA actions: When FTA or the applicant, as joint lead
agency, select a contractor to prepare the EA, then the contractor
shall execute an FTA conflict of interest disclosure statement. The
statement must be maintained in the FTA Regional Office and with the
applicant. The contractor's scope of work for the preparation of the EA
will not be finalized until the early coordination activities or
scoping process found in paragraph (b) is completed (including FTA
approval, in consultation with the applicant, of the scope of the EA
content).'' This new subparagraph would address two issues. First, it
would specify that if the applicant selects a contractor to prepare the
EA, the contractor must execute an FTA conflict of interest disclosure
statement (statement) attesting to the lack of a conflict of interest
in the NEPA process, pursuant to 40 CFR 1506.5. The Agencies propose
that the statement must be maintained in the FTA Regional Office and
with the applicant. This addition to our regulation is not a major
change from how FTA and its applicants currently prepare EAs, but it
updates our regulation to reflect current practice. Second, proposed
subparagraph (a)(ii) would require that the contractor's scope of work
for the preparation of the EA not be finalized until the early
coordination activities or scoping process found in paragraph (b) has
been completed. Under this proposal, the contractor's scope of work
would not be finalized until FTA and the applicant have approved the
scope, in terms of NEPA, of the EA analysis and documentation. This
addition would emphasize the importance that FTA places on early
coordination activities and scoping for its NEPA documents, with the
goal being more refined analyses that focus on significant issues
rather than all potential impacts. Although scoping as a formal process
is associated with EISs, a less formal type of scoping may be conducted
for projects evaluated with EAs. Regardless of the form early
coordination takes, FTA believes this addition will lead to better
decisionmaking and documentation. Note, the language proposed for
subparagraph (a)(ii) is similar to language proposed in a previous NPRM
(see 77 FR 15310, March 15, 2012), but the language was never
finalized. The FTA considered the comments received during the previous
NPRM comment period when developing the language proposed in this rule.
In paragraph (b), the Agencies would revise the last two sentences
regarding early coordination activities to read, ``The applicant shall
accomplish this through early coordination activities or through a
scoping process. The applicant shall summarize the public involvement
process and include the results of agency coordination in the EA.'' The
Agencies changed the reference from ``an early coordination process
(i.e., procedures under Sec. 771.111)'' to ``early coordination
activities'' for consistency with other early coordination references
proposed in this rule and MAP-21 Section 1320. The Agencies modified
the last sentence by (1) revising language from passive voice to active
voice and (2) identifying the applicant as the entity responsible for
summarizing the public involvement process and including the results of
agency coordination in the EA, which reflects current practice.
In paragraph (c), the Agencies would revise the sentence to clearly
state in a reader-friendly manner that the Administration must approve
the EA before it is made available to the public. Paragraph (c) would
read: ``The Administration must approve the EA before it is made
available to the public as an Administration document.''
In paragraph (d), the Agencies would revise the text from passive
voice to active voice, clearly identify the responsibilities of the
applicant, and make this paragraph easier to read and understand
overall. Paragraph (d) would read: ``The applicant does not need to
circulate the EA for comment but the document must be made available
for public inspection at the applicant's office and at the appropriate
Administration field offices in accordance with paragraphs (e) and (f)
of this section. The applicant shall send the notice of availability of
the EA, which briefly describes the action and its impacts, to the
affected units of Federal, State, and local government. The applicant
shall also send notice to the State intergovernmental review contacts
established under Executive Order 12372.'' Other than clearly
identifying the applicant's role in this paragraph, there are no
changes regarding content.
In paragraph (e), the Agencies would revise the first sentence by
changing the text from ``as part of the application for Federal funds''
to ``as part of the environmental review process for an action.'' This
change more accurately reflects current practice and is consistent with
other changes proposed in this rule (e.g., use of ``environmental
review process'' and ``action''). In addition, the Agencies propose
revising the second and third sentence of paragraph (e) by clarifying
the applicant's role in providing notice of the public hearing and
availability of the EA and clarifying when comments are accepted on the
EA, respectively. The second and third sentences of paragraph (e) would
read: ``The applicant shall publish a notice of the public hearing in
local newspapers that announces the availability of the EA and where it
may be obtained or reviewed. Any comments must be submitted in writing
to the applicant or the Administration during the 30-day availability
period of the EA unless the Administration determines, for good cause,
that a different period is warranted.'' These changes are minor but
improve the quality of the written language.
The Agencies propose revising the last sentence in paragraph (f) to
reflect the changes proposed for the last sentence in paragraph (e)
regarding comment submittal during the EA public availability period.
Paragraph (f) would read: ``When a public hearing is not held, the
applicant shall place a notice in a newspaper(s) similar to a public
hearing notice and at a similar stage of development of the action,
advising the public of the availability of the EA and where information
concerning the action may be obtained. The notice shall invite comments
from all interested parties. Any comments must be submitted in writing
to the applicant or the Administration during the 30-day availability
period of the EA unless the Administration determines, for good cause,
that a different period is warranted.'' This is a non-substantive
change proposed for consistency between paragraphs.
Lastly, the Agencies propose to limit paragraph (h) to FHWA actions
only by replacing ``Administration'' with ``FHWA'' at the beginning of
the paragraph. For FTA project sponsors, application of the Council on
Environmental Quality's (CEQ) regulatory provision alone aligns better
with how transit projects are planned, developed, and reviewed. The FTA
would direct its applicants and project sponsors to rely on the CEQ
NEPA Implementing Regulations, specifically 40 CFR 1501.4(e)(2), which
requires that in certain circumstances the FONSI be available for
public review for 30 days before FTA makes its final determination and
before the action may begin. This requirement applies when the proposed
action is (or is closely similar to) one that normally requires the
preparation of an EIS pursuant to Sec. 771.115, or when the nature of
the proposed action is one without precedent.
[[Page 72630]]
Section 771.121 Findings of No Significant Impact
The Agencies propose minor text revisions to all three paragraphs
in Sec. 771.121. In paragraph (a), the Agencies propose to reword the
first sentence to reflect existing practice: ``The Administration will
review the EA, comments submitted on the EA (in writing or at public
hearings/meetings), and other supporting documentation, as
appropriate.'' This is a non-substantive change and is meant to improve
readability.
Similarly, in paragraph (b), the Agencies propose to reword the
first sentence in active voice and to make it clear to the reader that
the Administration issues a FONSI. The first sentence would be
rewritten to read, ``After the Administration issues a FONSI . . .''
This non-substantive change does not affect the responsibility of the
Administration in issuing a FONSI, and it does not affect the
applicant's responsibility in providing notice of availability of the
FONSI to affected units of Federal, State, and local government or any
other responsibilities noted within this section.
In paragraph (c), the Agencies propose a slight modification to
include those times when the Administration may have an approval role
for another Federal agency's action (e.g., when FHWA issues Interstate
Access Point Approval). The modification would add ``or approval''
after ``Administration funding'' in the first sentence: ``If another
Federal agency has issued a FONSI on an action which includes an
element proposed for Administration funding or approval . . .'' In
these rare situations, the Administration would evaluate the other
agency's ``EA/FONSI'' (replacing the term ``FONSI'' at the end of the
first sentence) in determining whether to issue its own FONSI
incorporating the other agency's ``EA/FONSI'' (again, replacing the
term ``FONSI'' but at the end of the second sentence). The
Administration could also issue a CE for the element of the project
proposed for Administration funding or approval if it determines that a
CE would be appropriate.
Section 771.123 Draft Environmental Impact Statements
The Agencies propose a number of modifications to Sec. 771.123. In
paragraph (b), the Agencies would revise the language in the first
sentence to reference CEQ's NEPA Implementing Regulations (40 CFR parts
1500 through 1508), and replace ``which'' with ``that.'' In addition,
the Agencies propose deleting the reference to the FHWA in the third
sentence and deleting the fourth sentence pertaining to FTA; the
revised third sentence would apply to both Agencies. The Agencies
propose paragraph (b) read: ``After publication of the Notice of
Intent, the lead agencies, in cooperation with the applicant (if not a
lead agency), will begin a scoping process that may take into account
any planning work already accomplished, in accordance with 23 CFR
450.212, 450.318, or any applicable provisions of the CEQ regulations
at 40 CFR parts 1500 through 1508. The scoping process will be used to
identify the purpose and need, the range of alternatives and impacts,
and the significant issues to be addressed in the EIS and to achieve
the other objectives of 40 CFR 1501.7. Scoping is normally achieved
through public and agency involvement procedures required by Sec.
771.111. If a scoping meeting is to be held, it should be announced in
the Administration's Notice of Intent and by appropriate means at the
local level.'' These minor changes would update the text to be more
encompassing of the environmental review requirements and more
readable.
In paragraph (d), the Agencies would add language requiring a
conflict of interest disclosure for FTA actions. This change would be
consistent with proposed modifications to section 771.119(a)(ii) and 40
CFR 1506.5(c). Paragraph (d) would read, ``Any of the lead agencies may
select a consultant to assist in the preparation of an EIS in
accordance with applicable contracting procedures and with 40 CFR
1506.5(c). For FTA actions: When FTA or the applicant, as joint lead
agency, select a contractor to prepare the EIS, then the contractor
shall execute an FTA conflict of interest disclosure statement. The
statement must be maintained in the FTA Regional Office and with the
applicant. The contractor's scope of work for the preparation of the
EIS will not be finalized until the early coordination activities or
scoping process found in paragraph (b) is completed (including FTA
approval, in consultation with the applicant, of the scope of the EIS
content).'' See the discussion above in Sec. 771.119 for a more robust
discussion regarding this proposed addition.
The Agencies propose to add a new paragraph (e). Proposed new
paragraph (e) would encourage identification of the preferred
alternative in the draft EIS: ``The draft EIS should identify the
preferred alternative to the extent practicable. If the draft EIS does
not identify the preferred alternative, the Administration should
provide agencies and the public with an opportunity after issuance of
the draft EIS to review the impacts.'' This addition would update the
regulations in response to changes created by MAP-21 Section 1319 and
is consistent with the Agencies' ``Interim Guidance on MAP-21 Section
1319 Accelerated Decisionmaking in Environmental Reviews'' (January 14,
2013) (``Section 1319 Guidance''). It would also provide for the cases
where the preferred alternative is not identified in the draft EIS.
Section 1319(b) directs the lead agency, to the maximum extent
practicable, to expeditiously develop a single document that consists
of a final EIS and ROD, unless certain conditions exist. By identifying
the preferred alternative in the draft EIS, the lead agencies more
easily facilitate issuance of a combined final EIS/ROD document.
The Agencies would also add a new paragraph (f). Proposed new
paragraph (f) would allow the lead agency to develop the preferred
alternative (or portion thereof) for a project to a higher level of
detail than other alternatives in order to facilitate the development
of mitigation measures or compliance with requirements for permitting:
``At the discretion of the lead agency, the preferred alternative (or
portion thereof) for a project, after being identified, may be
developed to a higher level of detail than other alternatives in order
to facilitate the development of mitigation measures or compliance with
requirements for permitting. The development of such higher level of
detail must not prevent the lead agency from making an impartial
decision as to whether to accept another alternative that is being
considered in the environmental review process.'' This concept is not
new to the Agencies, as it was codified in 23 U.S.C. 139 via the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU) in 2005; the Agencies propose including a direct
copy of the codified language (23 U.S.C. 139(f)(4)(d)) in this section.
It is important to note that although the development of such higher
level of detail is acceptable in some circumstances as noted in the
proposed language, the lead agency must make an impartial decision
among the alternatives considered in the environmental review process.
Including this proposed paragraph would help streamline the
environmental review process, particularly in terms of fulfilling
permitting requirements and possibly in terms of complying with MAP-21
Section 1319(b). It also would safeguard
[[Page 72631]]
the impartiality of the alternative analysis done during the NEPA
process.
With the addition of proposed new paragraphs (e) and (f), current
paragraphs (e), (f), (g), (h), and (i) would be re-lettered as
paragraphs (g), (h), (i), (j), and (k), respectively.
In paragraph (g), the Agencies propose to add a sentence that
encourages including a notice on the cover sheet that the
Administration will issue a combined final EIS/ROD document unless
statutory criteria or practicability considerations preclude it. This
change would be consistent with MAP-21 Section 1319(b). Paragraph (g)
would read: ``The Administration, when satisfied that the draft EIS
complies with NEPA requirements, will approve the draft EIS for
circulation by signing and dating the cover sheet. The cover sheet
should include a notice that after circulation of the draft EIS and
consideration of the comments received, the Administration will issue a
combined final EIS/ROD document unless statutory criteria or
practicability considerations preclude issuance of the combined
document.''
The Agencies propose modifying the first sentence of paragraph (i)
(existing paragraph (g)) to read, ``The applicant, on behalf of the
Administration, shall circulate the draft EIS for comment.'' This
change is non-substantive and would change the current text from
passive voice to active voice. In addition, two subparagraphs of
paragraph (i) would be slightly modified. In subparagraph (i)(2), the
Agencies propose to replace ``Federal, State and local government
agencies expected to have jurisdiction or responsibility over, or
interest or expertise in, the action,'' with ``Cooperating and
participating agencies,'' because the types of agencies listed are
typically cooperating or participating agencies in the Agencies'
environmental review process. This change is consistent with 23 U.S.C.
139 and 40 CFR 1508.5, and provides additional consistency within the
Agencies' regulations. In proposed subparagraph (i)(3), the Agencies
would correct a small grammatical error; the word ``which'' would be
replaced with ``that.'' This change would be non-substantive.
The Agencies propose to delete the first two sentences found in
existing paragraph (h), which contain specific FHWA and FTA references.
The Agencies also propose to revise the third sentence to include a
general reference to Sec. 771.111, which would broaden the existing
language to clearly apply to both agencies. These changes would be
reflected in proposed paragraph (j); the first sentence would read:
``When a public hearing on the draft EIS is held (if required by 23 CFR
771.111), the draft EIS shall be available at the public hearing and
for a minimum of 15 days in advance of the public hearing.'' This
rewriting would not change the substance of the paragraph or current
practice; a draft EIS would still be required to be available at the
public hearing and for a minimum of 15 days in advance of the public
hearing, should one be held on the draft EIS, and the reader is
directed to Sec. 771.111 for specific Agency information. The
remainder of the paragraph would remain unchanged.
Section 771.124 Final Environmental Impact Statement/Record of Decision
The Agencies propose to add new Sec. 771.124 to address MAP-21
Section 1319(b) development of a combined final EIS/ROD. Section
1319(b) directs Agencies, to the maximum extent practicable, to
expeditiously develop a single document that consists of a final EIS
and ROD, unless certain conditions exist.
Proposed paragraph (a)(1) would make the section 1319(b)
requirement clear and identify the conditions when a combined final
EIS/ROD document would not be appropriate: ``After circulation of a
draft EIS and consideration of comments received, the lead agencies, in
cooperation with the applicant (if not a lead agency), shall combine
the final EIS and record of decision (ROD), to the maximum extent
practicable, unless (1) the final EIS makes substantial changes to the
proposed action that are relevant to environmental or safety concerns,
or (2) there are significant new circumstances or information relevant
to environmental concerns and that bear on the proposed action or the
impacts of the proposed action.'' This language is consistent with the
MAP-21 language and the Agencies' Section 1319 Guidance.
The existing applicable requirements for both a final EIS and ROD
must be met for issuance of a combined final EIS/ROD document. Proposed
paragraph (a)(2) clarifies this and refers the reader to other
applicable requirements: ``When the combined final EIS/ROD is a single
document, it shall include the content of a final EIS presented in
Sec. 771.125 and present the basis for the decision as specified in 40
CFR 1505.2, summarize any mitigation measures that will be incorporated
in the project, and document any required Section 4(f) approval in
accordance with part 774 of this title.''
Proposed paragraph (a)(3) establishes that both provisions of MAP-
21 Section 1319 (i.e., paragraphs (a) and (b)) may be used in concert
with each other. The proposed language is: ``If the comments on the
draft EIS are minor and confined to factual corrections or explanations
that do not warrant additional agency response, an errata sheet may be
attached to the draft statement, which together shall then become the
combined final EIS/ROD document.'' Errata sheets are not new to the
Agencies, but the Agencies are including them in this section in
response to MAP-21 Section 1319(a) to highlight their potential use,
especially with the new combined final EIS/ROD document type. When both
errata sheets and a combined final EIS/ROD are used, the combined final
NEPA document would consist of the draft EIS, errata sheets, and any
additional information required in a final EIS and ROD.
Proposed paragraph (a)(4) establishes that a combined final EIS/ROD
must meet legal sufficiency requirements. The proposed language is: ``A
combined final EIS/ROD will be reviewed for legal sufficiency prior to
issuance by the Administration.'' Legal sufficiency involves ensuring
adequate documentation exists to support the final agency action/
decision, as well as determining whether the combined final EIS/ROD
complies with minimum legal standards of NEPA and other procedural or
substantive requirements. It is not new to the Agencies' environmental
review process; it is included in this section for consistency with
Sec. 771.125.
Proposed paragraph (a)(5) would address Administration approval of
the combined final EIS/ROD: ``The Administration shall indicate
approval of the combined final EIS/ROD by signing the document. The
provision on Administration's Headquarters prior concurrence in Sec.
771.125(c) applies to the combined final EIS/ROD.''
Proposed paragraph (b) would make clear that the Federal Register
public availability notice does not establish a comment period for the
combined final EIS/ROD: ``The Federal Register public availability
notice published by EPA (40 CFR 1506.10) does not establish a waiting
period or a period of time for the return of comments on a combined
final EIS/ROD.''
Section 771.125 Final Environmental Impact Statements
The Agencies propose deleting paragraph (d) (``The signature of the
FTA approving official on the cover sheet also indicates compliance
with 49 U.S.C. 5324(b) and fulfillment of the grant application
requirements of 49
[[Page 72632]]
U.S.C. 5323(b).'') because sections 20016 and 20017 of MAP-21 repealed
the environmental review process-related requirements previously found
through those statutory references for FTA.
Due to the proposed deletion of paragraph (d), existing paragraphs
(e), (f), and (g) would be re-lettered as paragraphs (d), (e), and (f),
respectively.
The Agencies propose to modify paragraph (e), previously paragraph
(f), by replacing the word ``printing'' with the word ``publication.''
This change would address the fact that the final EIS may be produced
by electronic means and that paper hardcopies are not required except
as necessary to meet State requirements.
The Agencies propose to add a new paragraph (g) that states: ``The
final EIS may take the form of an errata sheet pursuant to 40 CFR
1503.4(c).'' As noted above, this change would make the Agencies'
regulations consistent with MAP-21 Section 1319(a), which provides for
the preparation of a final EIS by attaching errata sheets to the draft
EIS if certain conditions are met. The use of errata sheets is
appropriate when comments received on a draft EIS are minor, and the
lead agency's responses to those comments are limited to factual
corrections or explanations of why the comments do not warrant further
response.
Section 771.127 Record of Decision
The Agencies propose to modify paragraph (a) to reflect that the
minimum 30-day period between final EIS and ROD is incompatible with
the publication of a combined final EIS/ROD, as required by MAP-21
Section 1319. The modification would be made by adding the phrase,
``When the final EIS is not combined with the ROD,'' to the beginning
of the first sentence in this paragraph. This change would make clear
that the 30-day waiting period between final EIS and ROD applies only
for those instances where the final EIS is not combined with the ROD.
Under the scenario where the Administration signs a combined final EIS/
ROD document, there is no waiting period. In addition, the Agencies
propose to remove the last sentence from paragraph (a) (``Until any
required ROD has been signed, no further approvals may be given except
for administrative activities taken to secure further project funding
and other activities consistent with 40 CFR 1506.1'') because it is
duplicative of Sec. 771.113 and unnecessary to repeat in this section.
The changes presented to this paragraph are, therefore, non-
substantive.
In paragraph (b), the Agencies propose to modify the language to
reflect the possibility of an amended ROD, as well as to include a
reference to the combined final EIS/ROD process. In the discussion of a
revised ROD, the Agencies would add the text ``or amended'' before the
term ``ROD'' in both sentences to reflect FTA current practice.
Examples of when the Agencies would amend a ROD include where (1) the
Administration previously signed a combined final EIS/ROD or ROD and
subsequently decides to approve an alternative that was not identified
as the preferred alternative but was fully evaluated in the final EIS,
or (2) the Administration proposes to make substantial changes to the
mitigation measures or findings discussed in the combined final EIS/ROD
or ROD. To provide for the combined final EIS/ROD process requirements,
the Agencies propose inserting ``Sec. 771.124(a) or'' prior to the
existing reference to Sec. 771.125(c) at the end of the first
sentence, and removing ``pursuant to Sec. 771.125(g)'' from the second
sentence.
Section 771.129 Re-Evaluations
The Agencies propose to add introductory text before paragraph (a)
to provide the purpose and timing of re-evaluations. The introductory
text would read: ``The Administration shall determine, prior to
granting any new approval related to an action or amending any
previously approved aspect of an action, including mitigation
commitments, whether an approved environmental document remains valid
as described below. . . .'' This change would clarify the
Administration's responsibility regarding re-evaluations and provide a
link to existing paragraphs (a) through (c).
In paragraph (a), the Agencies propose a non-substantive change
that changes passive voice to active voice. The Agencies would add the
text ``The applicant shall prepare a'' to the beginning of this
paragraph and remove ``shall be prepared by the applicant'' from later
in the sentence. This change clearly states that the applicant is
responsible for preparing the written evaluation of the draft EIS.
In paragraph (b), the Agencies propose similar modifying language
to clarify that the applicant is responsible for preparing a written
evaluation of the final EIS before further Administration approvals may
be granted. The first sentence would be modified to read: ``The
applicant shall prepare a written evaluation of the final EIS before
the Administration may grant further approvals if major. . . .'' This
change clarifies the actions of the applicant and Administration and is
consistent with current practice.
The Agencies propose revising the first sentence in paragraph (c)
to include combined final EIS/ROD documents in the list of
environmental documents that the Administration issues and to clearly
state the Administration's role. Paragraph (c) would be revised to
read: ``After the Administration issues a combined final EIS/ROD, ROD,
FONSI, or CE designation, the applicant. . . .'' The original language
noted ``approval'' of the ROD, FONSI, or CE designation, but did not
state who approved the document nor did the use of ``approval''
accurately reflect the Administration's role. The proposed change would
clarify that it is the Administration that issues environmental
decision documents, which is consistent with other proposals in this
rule.
Section 771.130 Supplemental Environmental Impact Statements
The Agencies propose to delete paragraph (e) from this section (``A
supplemental draft EIS may be necessary for major new fixed guideway
capital projects proposed for FTA funding if there is a substantial
change in the level of detail on project impacts during project
planning and development. The supplement will address site-specific
impacts and refined cost estimates that have been developed since the
original draft EIS.''). The FTA proposes deleting this paragraph
because it is not necessary to refer specifically to major new fixed
guideway capital projects; a supplemental document may be needed for a
variety of public transportation projects.
The Agencies propose to modify existing paragraph (f) (proposed
paragraph (e) if the deletion noted above is finalized) to add EAs as a
supplemental document type that may be used to analyze issues of
limited scope; the addition of EAs to this paragraph is consistent with
Sec. 771.130(c). The modification would be made by revising the first
sentence: ``In some cases, an EA or supplemental EIS may be required .
. .'' In addition, the Agencies would replace the term ``EIS'' with
``document'' in the last sentence of the paragraph and the last
sentence of subparagraph (e)(3) to account for the possibility of
completing an EA for the supplemental analyses.
Section 771.131 Emergency Action Procedures
The Agencies propose to add an introductory sentence to the current
paragraph in this section to address
[[Page 72633]]
emergency and disaster-related CEs. This change would reflect the
recently updated Agencies' CEs in Sec. Sec. 771.117 and 771.118 for
FHWA and FTA, respectively. The introductory sentence would read:
``Responses to some emergencies and disasters are categorical
exclusions under Sec. 771.117 for FHWA or Sec. 771.118 for FTA.'' In
the second sentence, the Agencies would add ``Otherwise,'' to the
beginning of the sentence to account for those actions that do not
qualify for a CE and must follow current emergency action procedures.
Section 771.133 Compliance With Other Requirements
The Agencies are proposing to modify the current paragraph by
reorganizing the section and adding or modifying text. The existing
paragraph would be listed as paragraph (a) and, in accordance with
Section 1319 of MAP-21, paragraph (a) would be modified to include
``combined final EIS/ROD'' as a document type that should comply with
requirements of all applicable environmental laws, Executive orders,
and other related requirements. In the last sentence of paragraph (a),
the Agencies propose changing the reference to ``the Administration''
to ``the FHWA'' because the report requirements referenced in the
paragraph and found in 23 U.S.C. 128 do not apply to FTA. This is a
minor change that accurately reflects legal requirements and current
practice.
The Agencies propose to add a new paragraph (b) to provide for the
possibility that applicants may want to meet compliance requirements
with other laws, regulations or Executive orders through programmatic
approaches, consistent with MAP-21 Section 1305(a) (23 U.S.C. 139(b)).
This new paragraph would read, ``In consultation with the
Administration and subject to Administration approval, an applicant may
develop a programmatic approach for compliance with the requirements of
any law, regulation, or Executive order applicable to the project
development process.''
Section 771.137 International Actions
The Agencies propose no changes to Sec. 771.137 in this NPRM.
Section 771.139 Limitations on Actions
The Agencies propose to modify this section by replacing the 180-
day statute of limitations for claims arising under Federal law seeking
judicial review of any final decisions by the Administration or by
other Federal agencies on a transportation project announced in the
Federal Register with a 150-day time period. The Agencies would replace
the text ``180'' with ``150''. This modification would make the
paragraph consistent with MAP-21 Section 1308 (23 U.S.C. 139(l)).
Section 4(f) Regulation Changes (Part 774)
Section 774.11 Applicability
In paragraph (i), the Agencies propose to revise the examples of
documentation that would be adequate to show that a transportation
facility and a Section 4(f) property were concurrently or jointly
planned or developed: ``(1) Formal reservation of a property for a
future transportation use can be demonstrated by a government document
created prior to or contemporaneously with the establishment of the
park, recreation area, or wildlife and waterfowl refuge. Examples of an
adequate document to formally reserve a future transportation use
include: (A) A government map that depicts a transportation facility on
the property; (B) a land use or zoning plan depicting a transportation
facility on the property; or (C) a fully executed real estate
instrument that references a future transportation facility on the
property. (2) Concurrent or joint planning or development can be
demonstrated by a government document created after, contemporaneously
with, or prior to the establishment of the Section 4(f) property.
Examples of an adequate document to demonstrate concurrent or joint
planning or development include: (A) A government document that
describes or depicts the designation or donation of the property for
both the potential transportation facility and the Section 4(f)
property; or (B) a government agency map, memorandum, planning
document, report, or correspondence that describes or depicts action
taken with respect to the property by two or more governmental agencies
with jurisdiction for the potential transportation facility and the
Section 4(f) property, in consultation with each other.'' This would
expand the current text that provides more limited direction to
applicants as to what the Agencies will accept as adequate
documentation of concurrent or joint planning or development of a
transportation facility and a park, recreation area, or wildlife and
waterfowl refuge.
Section 774.13 Exceptions
In paragraph (e), the Agencies propose to revise the exception to
read: ``Projects for the Federal lands transportation facilities
described in 23 U.S.C. 101(a)(8).'' This replaces: ``Park road or
parkway projects under 23 U.S.C. 204.'' This change is necessary due to
the restructuring of the Federal Lands Highway Program by MAP-21, and
more specifically, to implement Section 1119(c)(2) of MAP-21, which
revised and broadened the Section 4(f) exception for park road and
parkway projects to apply to Federal lands transportation facilities.
Federal lands transportation facilities are public highways, roads,
bridges, trails, and transit systems that are located on, adjacent to,
or provide access to Federal lands for which title and maintenance
responsibility is vested in the Federal Government, and that appear on
the national Federal lands transportation facility inventory described
in 23 U.S.C. 203(c).
In paragraph (g), the Agencies propose to revise the exception to
read: ``Transportation enhancement activities, transportation
alternatives projects, and mitigation activities . . .'' This replaces:
``Transportation enhancement projects and mitigation activities . . .''
This change is necessary because Section 1122 of MAP-21 replaced the
former ``transportation enhancement projects program'' with a new
``transportation alternatives projects program.'' This exception would
continue to be limited to situations where the official(s) with
jurisdiction over the Section 4(f) resource agrees that ``the use of
the Section 4(f) property is solely for the purpose of preserving or
enhancing an activity, feature, or attribute that qualifies the
property for Section 4(f) protection.''
Statutory/Legal Authority for This Rulemaking
The Agencies derive explicit authority for this rulemaking action
from 49 U.S.C. 322(a), which provides authority to ``[a]n officer of
the Department of Transportation [to] prescribe regulations to carry
out the duties and powers of the officer.'' The Secretary delegated
this authority to the Agencies in 49 CFR 1.81(a)(3), which provides
that the authority to prescribe regulations contained in 49 U.S.C.
322(a) is delegated to each Administrator ``with respect to statutory
provisions for which authority is delegated by other sections in [49
CFR part 1].'' The Secretary has delegated authority to the Agencies to
implement NEPA and Section 4(f), the statutes implemented by this rule,
in 49 CFR 1.81(a)(4) and (5). Moreover, the CEQ regulations that
implement NEPA provide at 40 CFR 1507.3 that agencies shall continue to
review their policies and NEPA implementing procedures
[[Page 72634]]
and revise them as necessary to ensure full compliance with the
purposes and provisions of NEPA.
Rulemaking Analyses and Notices
The agencies will consider all comments received before the close
of business on the comment closing date indicated above and will be
available for examination in the docket (FHWA-2015-0011) at
regulations.gov. Comments received after the comment closing date will
be filed in the docket and the Agencies will consider them 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. The Agencies
may publish a final rule at any time after close of the comment period.
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory 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 section 3(f) of Executive Order
12866 nor would it be significant within the meaning of U.S. Department
of Transportation regulatory policies and procedures (44 FR 11032,
February 26, 1979). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. The Agencies anticipate that the economic
impact of this rulemaking would be minimal. The Agencies do not have
specific data to assess the monetary value of the benefits from the
proposed changes because such data does not exist and would be
difficult to develop.
This NPRM proposes to modify 23 CFR parts 771 and 774 in order to
be consistent with changes introduced by MAP-21 as well as to provide
clarification and make the regulation more consistent with the
Agencies' practices. 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 NPRM 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 or Section 4(f) while still ensuring that projects
are built in an environmentally responsible manner. 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. ``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. The proposed revisions are expected to
expedite environmental review and thus are anticipated to 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 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 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.
The Agencies 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 determined 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 DOT's regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities (49
CFR part 17) 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
[[Page 72635]]
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/environment/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, 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.cfm). 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 http://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 changes to 23 CFR part 771,
if finalized as proposed, would not cause disproportionately high and
adverse human health and environmental effects on minority or low
income populations.
At the time the Agencies apply the NEPA implementing procedures in
23 CFR part 771, 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 resulting from a proposed Agency action covered
under any of the NEPA classes of action in 23 CFR part 771, 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 have determined that no further EJ analysis is
needed and no mitigation is required in connection with the proposed
revisions to the Agencies' NEPA and Section 4(f) implementing
regulations (23 CFR parts 771 and 774).
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 be an
economically significant rule and would not cause 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 changes proposed in this rule are part of those agency procedures,
and therefore establishing the proposed changes 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.
Regulation Identifier 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 review process, Environmental protection, Grant
programs--transportation, Highways and roads, Historic preservation,
Mitigation plans, Programmatic approaches, Public lands, Recreation
areas, Reporting and recordkeeping requirements.
23 CFR Part 774
Environmental protection, Grant programs-transportation, Highways
and roads, Historic preservation, Mass Transportation, Public Lands,
Recreation areas, Reporting and recordkeeping requirements, Wildlife
refuges.
49 CFR Part 622
Environmental impact statements, Environmental review process,
Grant programs--transportation, Mitigation plans, Programmatic
approaches, Public transportation, Recreation areas, Reporting and
recordkeeping requirements, Transit.
[[Page 72636]]
Issued in Washington, DC, on November 10, 2015, under authority
delegated in 49 CFR 1.85 and 1.91.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
Therese W. McMillan,
Acting Administrator, Federal Transit Administration.
In consideration of the foregoing, the Agencies propose to amend
title 23, Code of Federal Regulations parts 771 and 774, and title 49,
Code of Federal Regulations part 622, as follows:
TITLE 23--Highways
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
0
1. Revise authority citation for part 771 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; 40 CFR parts 1500-
1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119 Stat. 1144,
Sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, Sections
1315, 1316, 1317, 1318, and 1319.
0
2. Revise Sec. 771.101 to read as follows:
Sec. 771.101 Purpose.
This regulation prescribes the policies and procedures of the
Federal Highway Administration (FHWA) and the Federal Transit
Administration (FTA) for implementing the National Environmental Policy
Act of 1969 as amended (NEPA), and supplements the NEPA regulation of
the Council on Environmental Quality (CEQ), 40 CFR parts 1500 through
1508 (CEQ regulation). Together these regulations set forth all FHWA,
FTA and Department of Transportation (DOT) requirements under NEPA for
the processing of highway and public transportation projects. This
regulation also sets forth procedures to comply with 23 U.S.C. 109(h),
128, 138, 139, 325, 326, and 327; 49 U.S.C. 303 and 5323(q); and Public
Law 112-141, 126 Stat. 405, sections 1301 and 1319.
0
3. Revise Sec. 771.105 and its footnote to read as follows:
Sec. 771.105 Policy.
It is the policy of the Administration that:
(a) To the fullest extent possible, all environmental
investigations, reviews, and consultations be coordinated as a single
process, and compliance with all applicable environmental requirements
be reflected in the environmental review document required by this
regulation.\1\
---------------------------------------------------------------------------
\1\ FHWA and FTA have supplementary guidance on environmental
documents and procedures for their programs available on the
Internet at http://www.fhwa.dot.gov and http://www.fta.dot.gov, or
in hardcopy by request.
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(b) Programmatic approaches be developed for compliance with
environmental requirements, coordination among agencies and/or the
public, or to otherwise enhance and accelerate project development.
(c) Alternative courses of action be evaluated and decisions be
made in the best overall public interest based upon a balanced
consideration of the need for safe and efficient transportation; of the
social, economic, and environmental impacts of the proposed
transportation improvement; and of national, State, and local
environmental protection goals.
(d) Public involvement and a systematic interdisciplinary approach
be essential parts of the development process for proposed actions.
(e) Measures necessary to mitigate adverse impacts be incorporated
into the action. Measures necessary to mitigate adverse impacts are
eligible for Federal funding when the Administration determines that:
(1) The impacts for which the mitigation is proposed actually
result from the Administration action; and
(2) The proposed mitigation represents a reasonable public
expenditure after considering the impacts of the action and the
benefits fo the proposed mitigation measures. In making this
determination, the Administration will consider, among other factors,
the extent to which the proposed measures would assist in complying
with a Federal statute, Executive order, or Administration regulation
or policy.
(f) Costs incurred by the applicant for the preparation of
environmental documents requested by the Administration be eligible for
Federal assistance.
(g) No person, because of handicap, age, race, color, sex, or
national origin, be excluded from participating in, or denied benefits
of, or be subject to discrimination under any Administration program or
procedural activity required by or developed pursuant to this
regulation.
0
4. Revise Sec. 771.107 to read as follows:
Sec. 771.107 Definitions.
The definitions contained in the CEQ regulation and in titles 23
and 49 of the United States Code are applicable. In addition, the
following definitions apply.
Action. A highway or transit project proposed for FHWA or FTA
funding. It also includes activities such as joint and multiple use
permits, changes in access control, etc., which may or may not involve
a commitment of Federal funds.
Administration. The FHWA or FTA, whichever is the designated
Federal lead agency for the proposed action. A reference herein to the
Administration means the FHWA, or FTA, or a State when the State is
functioning as the FHWA or FTA in carrying out responsibilities
delegated or assigned to the State in accordance with 23 U.S.C. 325,
326, or 327, or other applicable law. A reference herein to the FHWA or
FTA means the State when the State is functioning as the FHWA or FTA
respectively in carrying out responsibilities delegated or assigned to
the State in accordance with 23 U.S.C. 325, 326, or 327, or other
applicable law. Nothing in this definition alters the scope of any
delegation or assignment made by FHWA or FTA.
Administration action. FHWA or FTA approval of the applicant's
request for Federal funds for construction. It also includes approval
of activities such as joint and multiple use permits, changes in access
control, etc., which may or may not involve a commitment of Federal
funds.
Applicant. Any Federal, State, local, or federally-recognized
Indian tribal governmental unit that requests funding approval or other
action by the Administration and that the Administration works with to
conduct environmental studies and prepare environmental review
documents. When another Federal agency, or the Administration itself,
is implementing the action, then the lead agencies (as defined in this
section) may assume the responsibilities of the applicant in this part.
If there is no applicant then the Federal lead agency will assume the
responsibilities of the applicant in this part.
Environmental studies. The investigations of potential
environmental impacts to determine the environmental process to be
followed and to assist in the preparation of the environmental
document.
Lead agencies. The Administration and any other agency designated
to serve as a joint lead agency with the Administration under 23 U.S.C.
139(c)(3) or under the CEQ regulation.
Participating agency. A Federal, State, local, or federally-
recognized Indian tribal governmental unit that may have an interest in
the proposed project and has accepted an invitation to be a
participating agency, or, in the case of a Federal agency, has not
declined the invitation in accordance with 23 U.S.C. 139(d)(3).
Programmatic approaches. An approach that reduces the need for
[[Page 72637]]
project-by-project reviews, eliminates repetitive discussion of the
same issue, or focuses on the actual issues ripe for analyses at each
level of review, while maintaining appropriate consideration for the
environment.
Project sponsor. The Federal, State, local, or federally-recognized
Indian tribal governmental unit, or other entity, including any private
or public-private entity that seeks Federal funding or an
Administration action for a project. The project sponsor, if not the
applicant, may conduct some of the activities on behalf of the
applicant.
Section 4(f). Refers to 49 U.S.C. 303 and 23 U.S.C. 138 (as
implemented by 23 CFR part 774).
0
5. Amend Sec. 771.109 by revising paragraph (b) and adding paragraph
(c)(7) to read as follows:
Sec. 771.109 Applicability and responsibilities.
* * * * *
(b)(1) The applicant, in cooperation with the Administration, is
responsible for implementing those mitigation measures stated as
commitments in the environmental documents prepared pursuant to this
regulation unless the Administration approves of their deletion or
modification in writing. The FHWA will assure that this is accomplished
as a part of its stewardship and oversight responsibilities. The FTA
will assure implementation of committed mitigation measures through
incorporation by reference in the grant agreement, followed by reviews
of designs and construction inspections.
(2) When entering into Federal-aid project agreements pursuant to
23 U.S.C. 106, FHWA shall ensure that the State highway agency
constructs the project in accordance with and incorporates all
committed environmental impact mitigation measures listed in approved
environmental review documents.
(c) * * *
(7) A participating agency is responsible for providing input, as
appropriate, during the times specified in the coordination plan under
23 U.S.C. 139(g), and providing comments and concurrence on a schedule
if included within the coordination plan.
* * * * *
0
6. Revise Sec. 771.111 to read as follows:
Sec. 771.111 Early coordination, public involvement, and project
development.
(a)(1) Early coordination with appropriate agencies and the public
aids in determining the type of environmental review document an action
requires, the scope of the document, the level of analysis, and related
environmental requirements. These activities contribute to reducing or
eliminating delay, duplicative processes, and conflict by incorporating
planning outcomes that have been reviewed by agencies and Indian tribal
partners in project development.
(2)(i) 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 parts 1500
through 1508, 23 CFR part 450, or 23 U.S.C. 168.
(ii) The planning process described in paragraph (a)(2)(i) may
include mitigation actions consistent with a programmatic mitigation
plan developed pursuant to 23 U.S.C. 169 or from a programmatic
mitigation plan developed outside of that framework.
(3) Applicants intending to apply for funds should notify the
Administration at the time that a project concept is identified. When
requested, the Administration will advise the applicant, insofar as
possible, of the probable class of action (see 23 CFR 771.115) and
related environmental laws and requirements and of the need for
specific studies and findings that would normally be developed during
the environmental review process.
(b) The Administration will identify the probable class of action
as soon as sufficient information is available to identify the probable
impacts of the action.
(c) When both the FHWA and FTA are involved in the development of
an action, or when the FHWA or FTA acts as a joint lead agency with
another Federal agency, a mutually acceptable process will be
established on a case-by-case basis.
(d) During the early coordination process, the lead agencies may
request other agencies having an interest in the action to participate,
and must invite such agencies if the action is subject to the project
development procedures in 23 U.S.C. 139. Agencies with special
expertise may be invited to become cooperating agencies. Agencies with
jurisdiction by law must be requested to become cooperating agencies.
(e) Other States and Federal land management entities that may be
significantly affected by the action or by any of the alternatives
shall be notified early and their views solicited by the applicant in
cooperation with the Administration. The Administration will provide
direction to the applicant on how to approach any significant
unresolved issues as early as possible during the environmental review
process.
(f) Any action evaluated through a categorical exclusion (CE),
environmental assessment (EA), or environmental impact statement (EIS)
shall:
(1) Connect logical termini and be of sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or independent significance, i.e., be
usable and be a reasonable expenditure even if no additional
transportation improvements in the area are made; and
(3) Not restrict consideration of alternatives for other reasonably
foreseeable transportation improvements.
(g) For major transportation actions, the tiering of EISs as
discussed in the CEQ regulation (40 CFR 1502.20) may be appropriate.
The first tier EIS would focus on broad issues such as general
location, mode choice, and areawide air quality and land use
implications of the major alternatives. The second tier would address
site-specific details on project impacts, costs, and mitigation
measures.
(h) For the Federal-aid highway program:
(1) Each State must have procedures approved by the FHWA to carry
out a public involvement/public hearing program pursuant to 23 U.S.C.
128 and 139 and CEQ regulation.
(2) State public involvement/public hearing procedures must provide
for:
(i) Coordination of public involvement activities and public
hearings with the entire NEPA process.
(ii) Early and continuing opportunities during project development
for the public to be involved in the identification of social,
economic, and environmental impacts, as well as impacts associated with
relocation of individuals, groups, or institutions.
(iii) One or more public hearings or the opportunity for hearing(s)
to be held by the State highway agency at a convenient time and place
for any Federal-aid project which requires significant amounts of
right-of-way, substantially changes the layout or functions of
connecting roadways or of the facility being improved, has a
substantial adverse impact on abutting property, otherwise has a
significant social, economic, environmental or other effect, or for
which the FHWA determines that a public hearing is in the public
interest.
(iv) Reasonable notice to the public of either a public hearing or
the opportunity for a public hearing. Such notice will indicate the
availability of explanatory information. The notice shall also provide
information required
[[Page 72638]]
to comply with public involvement requirements of other laws, Executive
orders, and regulations.
(v) Explanation at the public hearing of the following information,
as appropriate:
(A) The project's purpose, need, and consistency with the goals and
objectives of any local urban planning,
(B) The project's alternatives, and major design features,
(C) The social, economic, environmental, and other impacts of the
project,
(D) The relocation assistance program and the right-of-way
acquisition process.
(E) The State highway agency's procedures for receiving both oral
and written statements from the public.
(vi) Submission to the FHWA of a transcript of each public hearing
and a certification that a required hearing or hearing opportunity was
offered. The transcript will be accompanied by copies of all written
statements from the public, both submitted at the public hearing or
during an announced period after the public hearing.
(vii) An opportunity for public involvement in defining the purpose
and need and the range of alternatives, for any action subject to the
project development procedures in 23 U.S.C. 139.
(viii) Public notice and an opportunity for public review and
comment on a Section 4(f) de minimis impact finding, in accordance with
49 U.S.C. 303(d).
(i) Applicants for capital assistance in the FTA program:
(1) Achieve public participation on proposed actions through
activities that engage the public, including public hearings, town
meetings, and charrettes, and seeking input from the public through
scoping for the environmental review process. Project milestones may be
announced to the public using electronic or paper media (e.g.,
newsletters, note cards, or emails) pursuant to 40 CFR 1506.6. For
actions requiring EISs, an early opportunity for public involvement in
defining the purpose and need for action and the range of alternatives
must be provided, and a public hearing will be held during the
circulation period of the draft EIS.
(2) May participate in early scoping as long as enough project
information is known so the public and other agencies can participate
effectively. Early scoping constitutes initiation of NEPA scoping while
local planning efforts to aid in establishing the purpose and need and
in evaluating alternatives and impacts are underway. Notice of early
scoping must be made to the public and other agencies. If early scoping
is the start of the NEPA process, the early scoping notice must include
language to that effect. After development of the proposed action at
the conclusion of early scoping, FTA will publish the Notice of Intent
if it is determined at that time that the proposed action requires an
EIS. The Notice of Intent will establish a 30-day period for comments
on the purpose and need and the alternatives.
(3) Are encouraged to post and distribute materials related to the
environmental review process, including but not limited to, NEPA
documents (e.g., EAs and EISs), environmental studies (e.g., technical
reports), public meeting announcements, and meeting minutes, through
publicly-accessible electronic means, including project Web sites.
Applicants are encouraged to keep these materials available to the
public electronically until the project is constructed and open for
operations.
(4) Are encouraged to post all findings of no significant impact
(FONSI), combined final environmental impact statement (FEIS)/records
of decision (ROD), and RODs on a project Web site until the project is
constructed and open for operation.
(j) Information on the FTA environmental process may be obtained
from: Director, Office of Environmental Programs, Federal Transit
Administration, Washington, DC 20590, or www.fta.dot.gov. Information
on the FHWA environmental process may be obtained from: Director,
Office of Project Development and Environmental Review, Federal Highway
Administration, Washington, DC 20590, or www.fhwa.dot.gov.
0
7. Revise Sec. 771.113 to read as follows:
Sec. 771.113 Timing of Administration activities.
(a) The lead agencies, in cooperation with the applicant and
project sponsor as appropriate, will perform the work necessary to
complete the environmental review process. This work includes drafting
environmental documents and completing studies, related engineering
studies, agency coordination, and public involvement. Except as
otherwise provided in law or in paragraph (d) of this section, final
design activities, property acquisition, purchase of construction
materials or rolling stock, or project construction shall not proceed
until the following have been completed:
(1)(i) The action has been classified as a CE;
(ii) The Administration has issued a FONSI; or
(iii) The Administration has issued a combined final EIS/ROD or a
final EIS and ROD;
(2) For actions proposed for FHWA funding, the Administration has
received and accepted the certifications and any required public
hearing transcripts required by 23 U.S.C. 128;
(3) For activities proposed for FHWA funding, the programming
requirements of 23 CFR part 450, subpart B, and 23 CFR part 630,
subpart A, have been met.
(b) For activities proposed for FHWA action, completion of the
requirements set forth in paragraphs (a)(1) and (2) of this section is
considered acceptance of the general project location and concepts
described in the environmental review documents unless otherwise
specified by the approving official.
(c) Letters of Intent issued under the authority of 49 U.S.C.
5309(g) are used by FTA to indicate an intention to obligate future
funds for multi-year capital transit projects. Letters of Intent will
not be issued by FTA until the NEPA process is completed.
(d) The prohibition in paragraph (a)(1) of this section is limited
by the following exceptions:
(1) Early acquisition, hardship and protective acquisitions of real
property in accordance with 23 CFR part 710, subpart E for FHWA.
Exceptions for the acquisitions of real property are addressed in
paragraphs (c)(6) and (d)(3) of Sec. 771.118 for FTA.
(2) The early acquisition of right-of-way for future transit use in
accordance with 49 U.S.C. 5323(q) and FTA guidance.
(3) A limited exception for rolling stock is provided in 49 U.S.C.
5309(l)(6).
0
8. Revise Sec. 771.115 to read as follows:
Sec. 771.115 Classes of actions.
There are three classes of actions which prescribe the level of
documentation required in the NEPA process. A programmatic approach may
be used for any class of action.
(a) EIS (Class I). Actions that significantly affect the
environment require an EIS (40 CFR 1508.27). The following are examples
of actions that normally required an EIS:
(1) A new controlled access freeway.
(2) A highway project of four or more lanes on a new location.
(3) Construction or extension of a fixed transit facility (e.g.,
rapid rail, light rail, commuter rail, bus rapid transit) that will not
be located primarily within an existing transportation right-of-way.
(4) For FHWA actions, new construction or extension of a separate
roadway for buses or high occupancy
[[Page 72639]]
vehicles not located within an existing highway facility.
(5) For FTA actions, new construction or extension of a separate
roadway for buses not located primarily within an existing
transportation right-of-way.
(b) CE (Class II). Actions that do not individually or cumulatively
have a significant environmental effect are excluded from the
requirement to prepare an EA or EIS. A specific list of CEs normally
not requiring NEPA documentation is set forth in Sec. 771.117(c) for
FHWA actions or pursuant to Sec. 771.118(c) for FTA actions. When
appropriately documented, additional projects may also qualify as CEs
pursuant to Sec. 771.117(d) for FHWA actions or pursuant to Sec.
771.118(d) for FTA actions.
(c) EA (Class III). Actions in which the Administration has not
clearly established the significance of the environmental impact. All
actions that are not Class I or II are Class III. All actions in this
class require the preparation of an EA to determine the appropriate
environmental document required.
0
9. Revise Sec. 771.119 to read as follows:
Sec. 771.119 Environmental assessments.
(a)(i) The applicant shall prepare an EA in consultation with the
Administration for each action that is not a CE and does not clearly
require the preparation of an EIS, or where the Administration believes
an EA would assist in determining the need for an EIS.
(ii) For FTA actions: When FTA or the applicant, as joint lead
agency, select a contractor to prepare the EA, then the contractor
shall execute an FTA conflict of interest disclosure statement. The
statement must be maintained in the FTA Regional Office and with the
applicant. The contractor's scope of work for the preparation of the EA
will not be finalized until the early coordination activities or
scoping process found in paragraph (b) of this section is completed
(including FTA approval, in consultation with the applicant, of the
scope of the EA content).
(b) For actions that require an EA, the applicant, in consultation
with the Administration, shall, at the earliest appropriate time, begin
consultation with interested agencies and others to advise them of the
scope of the project and to achieve the following objectives: Determine
which aspects of the proposed action have potential for social,
economic, or environmental impact; identify alternatives and measures
which might mitigate adverse environmental impacts; and identify other
environmental review and consultation requirements which should be
performed concurrently with the EA. The applicant shall accomplish this
through early coordination activities or through a scoping process. The
applicant shall summarize the public involvement process and include
the results of agency coordination in the EA.
(c) The Administration must approve the EA before it is made
available to the public as an Administration document.
(d) The applicant does not need to circulate the EA for comment but
the document must be made available for public inspection at the
applicant's office and at the appropriate Administration field offices
in accordance with paragraphs (e) and (f) of this section. The
applicant shall send the notice of availability of the EA, which
briefly describes the action and its impacts, to the affected units of
Federal, State and local government. The applicant shall also send
notice to the State intergovernmental review contacts established under
Executive Order 12372.
(e) When a public hearing is held as part of the environmental
review process for an action, the EA shall be available at the public
hearing and for a minimum of 15 days in advance of the public hearing.
The applicant shall publish a notice of the public hearing in local
newspapers that announces the availability of the EA and where it may
be obtained or reviewed. Any comments must be submitted in writing to
the applicant or the Administration during the 30-day availability
period of the EA unless the Administration determines, for good cause,
that a different period is warranted. Public hearing requirements are
as described in Sec. 771.111.
(f) When a public hearing is not held, the applicant shall place a
notice in a newspaper(s) similar to a public hearing notice and at a
similar stage of development of the action, advising the public of the
availability of the EA and where information concerning the action may
be obtained. The notice shall invite comments from all interested
parties. Any comments must be submitted in writing to the applicant or
the Administration during the 30-day availability period of the EA
unless the Administration determines, for good cause, that a different
period is warranted.
(g) If no significant impacts are identified, the applicant shall
furnish the Administration a copy of the revised EA, as appropriate;
the public hearing transcript, where applicable; copies of any comments
received and responses thereto; and recommend a FONSI. The EA should
also document compliance, to the extent possible, with all applicable
environmental laws and Executive orders, or provide reasonable
assurance that their requirements can be met.
(h) When the FHWA expects to issue a FONSI for an action described
in Sec. 771.115(a), copies of the EA shall be made available for
public review (including the affected units of government) for a
minimum of 30 days before the Administration makes its final decision
(See 40 CFR 1501.4(e)(2).) This public availability shall be announced
by a notice similar to a public hearing notice.
(i) If, at any point in the EA process, the Administration
determines that the action is likely to have a significant impact on
the environment, the preparation of an EIS will be required.
(j) If the Administration decides to apply 23 U.S.C. 139 to an
action involving an EA, then the EA shall be prepared in accordance
with the applicable provisions of that statute.
0
10. Revise Sec. 771.121 to read as follows:
Sec. 771.121 Findings of no significant impact.
(a) The Administration will review the EA, comments submitted on
the EA (in writing or at public hearings/meetings), and other
supporting documentation, as appropriate. If the Administration agrees
with the applicant's recommendations pursuant to Sec. 771.119(g), it
will make a separate written FONSI incorporating by reference the EA
and any other appropriate environmental documents.
(b) After the Administration issues a FONSI, a notice of
availability of the FONSI shall be sent by the applicant to the
affected units of Federal, State, and local government, and the
document shall be available from the applicant and the Administration
upon request by the public. Notice shall also be sent to the State
intergovernmental review contacts established under Executive Order
12372.
(c) If another Federal agency has issued a FONSI on an action which
includes an element proposed for Administration funding or approval,
the Administration will evaluate the other agency's EA/FONSI. If the
Administration determines that this element of the project and its
environmental impacts have been adequately identified and assessed and
concurs in the decision to issue a FONSI, the Administration will issue
its own FONSI incorporating the other agency's EA/FONSI. If
environmental
[[Page 72640]]
issues have not been adequately identified and assessed, the
Administration will require appropriate environmental studies.
0
11. Revise Sec. 771.123 to read as follows:
Sec. 771.123 Draft environmental impact statements.
(a) A draft EIS shall be prepared when the Administration
determines that the action is likely to cause significant impacts on
the environment. When the applicant, after consultation with any
project sponsor that is not the applicant, has notified the
Administration in accordance with 23 U.S.C. 139(e) and the decision has
been made by the Administration to prepare an EIS, the Administration
will issue a Notice of Intent (40 CFR 1508.22) for publication in the
Federal Register. Applicants are encouraged to announce the intent to
prepare an EIS by appropriate means at the local level.
(b) After publication of the Notice of Intent, the lead agencies,
in cooperation with the applicant (if not a lead agency), will begin a
scoping process that may take into account any planning work already
accomplished, in accordance with 23 CFR 450.212, 450.318, or any
applicable provisions of the CEQ regulations at 40 CFR parts 1500-1508.
The scoping process will be used to identify the purpose and need, the
range of alternatives and impacts, and the significant issues to be
addressed in the EIS and to achieve the other objectives of 40 CFR
1501.7. Scoping is normally achieved through public and agency
involvement procedures required by Sec. 771.111. If a scoping meeting
is to be held, it should be announced in the Administration's Notice of
Intent and by appropriate means at the local level.
(c) The draft EIS shall be prepared by the lead agencies, in
cooperation with the applicant (if not a lead agency). The draft EIS
shall evaluate all reasonable alternatives to the action and discuss
the reasons why other alternatives, which may have been considered,
were eliminated from detailed study. The draft EIS shall also summarize
the studies, reviews, consultations, and coordination required by
environmental laws or Executive orders to the extent appropriate at
this stage in the environmental process.
(d) Any of the lead agencies may select a consultant to assist in
the preparation of an EIS in accordance with applicable contracting
procedures and with 40 CFR 1506.5(c). For FTA actions: When FTA or the
applicant, as joint lead agency, select a contractor to prepare the
EIS, then the contractor shall execute an FTA conflict of interest
disclosure statement. The statement must be maintained in the FTA
Regional Office and with the applicant. The contractor's scope of work
for the preparation of the EIS will not be finalized until the early
coordination activities or scoping process found in paragraph (b) of
this section is completed (including FTA approval, in consultation with
the applicant, of the scope of the EIS content).
(e) The draft EIS should identify the preferred alternative to the
extent practicable. If the draft EIS does not identify the preferred
alternative, the Administration should provide agencies and the public
with an opportunity after issuance of the draft EIS to review the
impacts.
(f) At the discretion of the lead agency, the preferred alternative
(or portion thereof) for a project, after being identified, may be
developed to a higher level of detail than other alternatives in order
to facilitate the development of mitigation measures or compliance with
requirements for permitting. The development of such higher level of
detail must not prevent the lead agency from making an impartial
decision as to whether to accept another alternative that is being
considered in the environmental review process.
(g) The Administration, when satisfied that the draft EIS complies
with NEPA requirements, will approve the draft EIS for circulation by
signing and dating the cover sheet. The cover sheet should include a
notice that after circulation of the draft EIS and consideration of the
comments received, the Administration will issue a combined final EIS/
ROD document unless statutory criteria or practicability considerations
preclude issuance of the combined document.
(h) A lead, joint lead, or a cooperating agency shall be
responsible for printing the EIS. The initial printing of the draft EIS
shall be in sufficient quantity to meet requirements for copies which
can reasonably be expected from agencies, organizations, and
individuals. Normally, copies will be furnished free of charge.
However, with Administration concurrence, the party requesting the
draft EIS may be charged a fee which is not more than the actual cost
of reproducing the copy or may be directed to the nearest location
where the statement may be reviewed.
(i) The applicant, on behalf of the Administration, shall circulate
the draft EIS for comment. The draft EIS shall be made available to the
public and transmitted to agencies for comment no later than the time
the document is filed with the Environmental Protection Agency in
accordance with 40 CFR 1506.9. The draft EIS shall be transmitted to:
(1) Public officials, interest groups, and members of the public
known to have an interest in the proposed action or the draft EIS;
(2) Cooperating and participating agencies. Copies shall be
provided directly to appropriate State and local agencies, and to the
State intergovernmental review contacts established under Executive
Order 12372; and
(3) States and Federal land management entities that may be
significantly affected by the proposed action or any of the
alternatives. These copies shall be accompanied by a request that such
State or entity advise the Administration in writing of any
disagreement with the evaluation of impacts in the statement. The
Administration will furnish the comments received to the applicant
along with a written assessment of any disagreements for incorporation
into the final EIS.
(j) When a public hearing on the draft EIS is held (if required by
23 CFR 771.111), the draft EIS shall be available at the public hearing
and for a minimum of 15 days in advance of the public hearing. The
availability of the draft EIS shall be mentioned, and public comments
requested, in any public hearing notice and at any public hearing
presentation. If a public hearing on an action proposed for FHWA
funding is not held, a notice shall be placed in a newspaper similar to
a public hearing notice advising where the draft EIS is available for
review, how copies may be obtained, and where the comments should be
sent.
(k) The Federal Register public availability notice (40 CFR
1506.10) shall establish a period of not fewer than 45 days nor more
than 60 days for the return of comments on the draft EIS unless a
different period is established in accordance with 23 U.S.C.
139(g)(2)(A). The notice and the draft EIS transmittal letter shall
identify where comments are to be sent.
0
12. Add Sec. 771.124 to read as follows:
Sec. 771.124 Final environmental impact statement/record of decision
document
(a)(1) After circulation of a draft EIS and consideration of
comments received, the lead agencies, in cooperation with the applicant
(if not a lead agency), shall combine the final EIS and record of
decision (ROD), to the maximum extent practicable, unless:
(i) The final EIS makes substantial changes to the proposed action
that are relevant to environmental or safety concerns; or
[[Page 72641]]
(ii) There are significant new circumstances or information
relevant to environmental concerns and that bear on the proposed action
or the impacts of the proposed action.
(2) When the combined final EIS/ROD is a single document, it shall
include the content of a final EIS presented in Sec. 771.125 and
present the basis for the decision as specified in 40 CFR 1505.2,
summarize any mitigation measures that will be incorporated in the
project, and document any required Section 4(f) approval in accordance
with part 774 of this title.
(3) If the comments on the draft EIS are minor and confined to
factual corrections or explanations that do not warrant additional
agency response, an errata sheet may be attached to the draft
statement, which together shall then become the combined final EIS/ROD.
(4) A combined final EIS/ROD will be reviewed for legal sufficiency
prior to issuance by the Administration.
(5) The Administration shall indicate approval of the combined
final EIS/ROD by signing the document. The provision on
Administration's Headquarters prior concurrence in Sec. 771.125(c)
applies to the combined final EIS/ROD.
(b) The Federal Register public availability notice published by
EPA (40 CFR 1506.10) does not establish a waiting period or a period of
time for the return of comments on a combined final EIS/ROD.
0
13. Amend Sec. 771.125 as follows:
0
a. Remove paragraph (d) and redesignate paragraphs (e) through (g) as
paragraphs (d) through (f);
0
b. Revise newly redesignated paragraphs (e) through (f) and add new
paragraph (g).
The revisions read as follows:
Sec. 771.125 Final environmental impact statements.
* * * * *
(e) The initial publication of the final EIS shall be in sufficient
quantity to meet the request for copies which can be reasonably
expected from agencies, organizations, and individuals. Normally,
copies will be furnished free of charge. However, with Administration
concurrence, the party requesting the final EIS may be charged a fee
which is not more than the actual cost of reproducing the copy or may
be directed to the nearest location where the statement may be
reviewed.
(f) The final EIS shall be transmitted to any persons,
organizations, or agencies that made substantive comments on the draft
EIS or requested a copy, no later than the time the document is filed
with EPA. In the case of lengthy documents, the agency may provide
alternative circulation processes in accordance with 40 CFR 1502.19.
The applicant shall also publish a notice of availability in local
newspapers and make the final EIS available through the mechanism
established pursuant to DOT Order 4600.13 which implements Executive
Order 12372. When filed with EPA, the final EIS shall be available for
public review at the applicant's offices and at appropriate
Administration offices. A copy should also be made available for public
review at institutions such as local government offices, libraries, and
schools, as appropriate.
(g) The final EIS may take the form of an errata sheet pursuant to
40 CFR 1503.4(c).
0
14. Revise Sec. 771.127 to read as follows:
Sec. 771.127 Record of decision.
(a) When the final EIS is not combined with the ROD, the
Administration will complete and sign a ROD no sooner than 30 days
after publication of the final EIS notice in the Federal Register or 90
days after publication of a notice for the draft EIS, whichever is
later. The ROD will present the basis for the decision as specified in
40 CFR 1505.2, summarize any mitigation measures that will be
incorporated in the project and document any required Section 4(f)
approval in accordance with part 774 of this title.
(b) If the Administration subsequently wishes to approve an
alternative which was not identified as the preferred alternative but
was fully evaluated in the final EIS, or proposes to make substantial
changes to the mitigation measures or findings discussed in the ROD, a
revised or amended ROD shall be subject to review by those
Administration offices which reviewed the final EIS under Sec.
771.124(a) or Sec. 771.125(c). To the extent practicable the approved
revised or amended ROD shall be provided to all persons, organizations,
and agencies that received a copy of the final EIS.
0
15. Revise Sec. 771.129 to read as follows:
Sec. 771.129 Re-evaluations.
The Administration shall determine, prior to granting any new
approval related to an action or amending any previously approved
aspect of an action, including mitigation commitments, whether an
approved environmental document remains valid as described below:
(a) The applicant shall prepare a written evaluation of the draft
EIS in cooperation with the Administration if an acceptable final EIS
is not submitted to the Administration within three years from the date
of the draft EIS circulation. The purpose of this evaluation is to
determine whether or not a supplement to the draft EIS or a new draft
EIS is needed.
(b) The applicant shall prepare a written evaluation of the final
EIS before the Administration may grant further approvals if major
steps to advance the action (e.g., authority to undertake final design,
authority to acquire a significant portion of the right-of-way, or
approval of the plans, specifications and estimates) have not occurred
within three years after the approval of the final EIS, final EIS
supplement, or the last major Administration approval or grant.
(c) After the Administration issues a combined final EIS/ROD, ROD,
FONSI, or CE designation, the applicant shall consult with the
Administration prior to requesting any major approvals or grants to
establish whether or not the approved environmental document or CE
designation remains valid for the requested Administration action.
0
16. Amend Sec. 771.130 by removing paragraph (e) and redesignating
paragraph (f) as paragraph (e), and revising it to read as follows:
Sec. 771.130 Supplemental environmental impact statements.
* * * * *
(e) In some cases, an EA or supplemental EIS may be required to
address issues of limited scope, such as the extent of proposed
mitigation or the evaluation of location or design variations for a
limited portion of the overall project. Where this is the case, the
preparation of a supplemental document shall not necessarily:
(1) Prevent the granting of new approvals;
(2) Require the withdrawal of previous approvals; or
(3) Require the suspension of project activities, for any activity
not directly affected by the supplement. If the changes in question are
of such magnitude to require a reassessment of the entire action, or
more than a limited portion of the overall action, the Administration
shall suspend any activities which would have an adverse environmental
impact or limit the choice of reasonable alternatives, until the
supplemental document is completed.
0
17. Revise Sec. 771.131 to read as follows:
Sec. 771.131 Emergency action procedures.
Responses to some emergencies and disasters are categorical
exclusions under Sec. 771.117 for FHWA or Sec. 771.118
[[Page 72642]]
for FTA. Otherwise, requests for deviations from the procedures in this
regulation because of emergency circumstances (40 CFR 1506.11) shall be
referred to the Administration's headquarters for evaluation and
decision after consultation with CEQ.
0
18. Revise Sec. 771.133 to read as follows:
Sec. 771.133 Compliance with other requirements.
(a) The combined final EIS/ROD, final EIS or FONSI should document
compliance with requirements of all applicable environmental laws,
Executive orders, and other related requirements. If full compliance is
not possible by the time the combined final EIS/ROD, final EIS or FONSI
is prepared, the combined final EIS/ROD, final EIS or FONSI should
reflect consultation with the appropriate agencies and provide
reasonable assurance that the requirements will be met. Approval of the
environmental document constitutes adoption of any Administration
findings and determinations that are contained therein. The FHWA's
approval of an environmental document constitutes its finding of
compliance with the report requirements of 23 U.S.C. 128.
(b) In consultation with the Administration and subject to
Administration approval, an applicant may develop a programmatic
approach for compliance with the requirements of any law, regulation,
or Executive order applicable to the project development process.
Sec. 771.139 [Amended]
0
19. Revise Sec. 771.139 by replacing ``180'' with ``150'' in the
second and third sentences.
PART 774--PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES,
AND HISTORIC SITES (SECTION 4(f))
0
20. Revise the authority citation for part 774 to read as follows:
Authority: 23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and
204(h)(2); 49 U.S.C. 303; Section 6009 of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.81 and
1.91.
0
21. Revise Sec. 774.11(i) to read as follows:
Sec. 774.11 Applicability.
* * * * *
(i) When a property is formally reserved for a future
transportation facility before or at the same time a park, recreation
area, or wildlife and waterfowl refuge is established, and concurrent
or joint planning or development of the transportation facility and the
Section 4(f) resource occurs, then any resulting impacts of the
transportation facility will not be considered a use as defined in
Sec. 774.17.
(1) Formal reservation of a property for a future transportation
use can be demonstrated by a government document created prior to or
contemporaneously with the establishment of the park, recreation area,
or wildlife and waterfowl refuge. Examples of an adequate document to
formally reserve a future transportation use include:
(i) A government map that depicts a transportation facility on the
property;
(ii) A land use or zoning plan depicting a transportation facility
on the property; or
(iii) A fully executed real estate instrument that references a
future transportation facility on the property.
(2) Concurrent or joint planning or development can be demonstrated
by a government document created after, contemporaneously with, or
prior to the establishment of the Section 4(f) property. Examples of an
adequate document to demonstrate concurrent or joint planning or
development include:
(i) A government document that describes or depicts the designation
or donation of the property for both the potential transportation
facility and the Section 4(f) property; or
(ii) A government agency map, memorandum, planning document,
report, or correspondence that describes or depicts action taken with
respect to the property by two or more governmental agencies with
jurisdiction for the potential transportation facility and the Section
4(f) property, in consultation with each other.
0
22. Amend Sec. 774.13 by revising paragraphs (e) and (g) to read as
follows:
Sec. 774.13 Exceptions.
* * * * *
(e) Projects for the Federal lands transportation facilities
described in 23 U.S.C. 101(a)(8).
* * * * *
(g) Transportation enhancement activities, transportation
alternatives projects, and mitigation activities, where:
(1) The use of the Section 4(f) property is solely for the purpose
of preserving or enhancing an activity, feature, or attribute that
qualifies the property for Section 4(f) protection; and
(2) The official(s) with jurisdiction over the Section 4(f)
resource agrees in writing to paragraph (g)(1) of this section.
TITLE 49--Transportation
PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
0
23. Amend authority citation for part 622 to read as follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q);
23 U.S.C. 139 and 326; Pub. L. 109-59, 119 Stat. 1144, Sections 6002
and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81; and Pub. L. 112-141,
126 Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319.
[FR Doc. 2015-29413 Filed 11-19-15; 8:45 am]
BILLING CODE 4910-22-P