[Federal Register Volume 72, Number 151 (Tuesday, August 7, 2007)]
[Proposed Rules]
[Pages 44038-44050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3781]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 622
Federal Highway Administration
23 CFR Part 771
[Docket No. FTA-2006-26604]
RIN 2132-AA87
Environmental Impact and Related Procedures
AGENCIES: Federal Transit Administration (FTA), Federal Highway
Administration (FHWA), DOT.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: This notice of proposed rulemaking (NPRM) provides interested
parties with the opportunity to comment on proposed changes to the
joint FTA/FHWA procedures that implement the National Environmental
Policy Act (NEPA). The revisions are prompted by enactment of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU), which prescribes additional requirements for
environmental review and project decisionmaking that are not
appropriately reflected in the existing joint NEPA procedures. Pursuant
to provisions of SAFETEA-LU, this NPRM proposes to add new categorical
exclusions (CEs) from the NEPA process. This NPRM also proposes other
minor changes to the joint procedures in order to improve the
description of the procedures or to provide clarification with respect
to the interpretation of certain provisions. The FTA and the FHWA seek
comments on the proposals contained in this notice.
DATES: Comments must be received by October 9, 2007.
ADDRESSES: Written Comments: Submit written comments to: U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Ave. SE., Washington, DC
20590.
Comments. You may submit comments identified by the docket number
(FTA-2006-26604) by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Fax: 1-202-493-2251.
Mail: Docket Management System, U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Ave. SE., Washington, DC 20590.
Hand Delivery: To the Docket Management System; U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Ave. SE., Washington, DC
20590 between 9 a.m. and 5 p.m., e.t., Monday through Friday, except
Federal holidays.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) of this notice.
Note that all comments received will be posted without change to http://dms.dot.gov including any personal information provided. Please see
the Privacy Act heading under SUPPLEMENTARY INFORMATION.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to the
Docket Management System. (See ADDRESSES.)
[[Page 44039]]
FOR FURTHER INFORMATION CONTACT: For the FHWA: Carol Braegelmann,
Office of Project Development and Environmental Review (HEPE), (202)
366-1701, or Janet Myers, Office of Chief Counsel (HCC), (202) 366-
2019, Federal Highway Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. For
the FTA: Joseph Ossi, Office of Planning and Environment (TPE), (202)
366-1613, or Christopher Van Wyk, Office of Chief Counsel (TCC), (202)
366-1733, Federal Transit Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., for FHWA, and 9
a.m. to 5:30 p.m., e.t., for FTA, Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Background
On August 10, 2005, President Bush signed the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144). Section 6002 of SAFETEA-
LU created 23 U.S.C. 139, which contains a number of new requirements
that the FTA and the FHWA must meet in complying with the National
Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347). In addition to
these new requirements, section 6010 of SAFETEA-LU requires the FTA and
the FHWA to initiate rulemaking to establish, to the extent
appropriate, CEs for activities that support the deployment of
intelligent transportation infrastructure and systems.
In a Federal Register notice published on November 15, 2006 (71 FR
66576), the FTA and the FHWA made available final joint guidance
implementing the provisions of section 6002 of SAFETEA-LU. The final
guidance is available at http://www.fhwa.dot.gov/hep/section6002/.
This document proposes to codify changes mandated by section 6002
of SAFETEA-LU in the joint NEPA procedures at 23 CFR Part 771 to
eliminate confusion or inconsistencies could otherwise result. For
example, the joint procedures currently provide that a comment period
of ``not less than 45 days'' shall be established for draft
environmental impact statements (EISs), but there is no upper limit
provided on the number of days for that comment period. Section 6002 of
SAFETEA-LU establishes a comment period for draft EISs of ``not more
than 60 days,'' with certain exceptions. A second example is the need
under section 6002 to extend invitations to take an active role in the
process to ``participating agencies,'' a newly created class of
agencies that may have an interest in a project under study. There is
no parallel requirement in the existing regulation. The joint NEPA
procedures would be revised to accommodate these types of issues, as
well as other changes to the environmental review process.
There are other environmental review requirements in section 6002
of SAFETEA-LU that are neither inconsistent with the current joint
procedures, nor part and parcel of a ``routine'' environmental review
process. Such provisions are accommodated adequately through guidance.
For example, a participating agency ``issue resolution'' process is
expressly provided for in section 6002, but the FTA and the FHWA
propose not to incorporate processes of that type into the joint NEPA
procedures. Since we propose to codify changes mandated by section 6002
of SAFETEA-LU in the joint NEPA procedures at 23 CFR part 771 only to
the extent that confusion or inconsistencies could otherwise result,
applicants and others participating in the environmental review process
for highway or transit-related projects are advised to become
thoroughly familiar with the provisions of section 6002. Those
provisions supplement the NEPA implementing regulation of the Council
on Environmental Quality (CEQ) and the joint FHWA-FTA environmental
regulation, and must be followed.
This NPRM proposes to revise 23 CFR 771.117 by adding new CE
provisions and revising one existing provision. One newly proposed CE
is for stand-alone intelligent transportation systems (ITS) projects.
Section 6010 of SAFETEA-LU mandates the initiation of a rulemaking
process to establish, as appropriate, a CE from the need to prepare
either EISs or environmental assessments (EAs) for activities that
support the deployment of intelligent transportation infrastructure and
systems. ITS, an initiative begun with enactment of the Intermodal
Surface Transportation Efficiency Act (ISTEA) (Pub. L. 102-240, 105
Stat. 114) in 1991, encompass a broad range of wireless and wire line
communications-based information and electronics technologies. When
integrated into the transportation system's infrastructure, and into
vehicles themselves, these types of technology may relieve congestion,
improve safety, and enhance productivity.
ITS include many types of technology-based systems that are
generally divided into intelligent infrastructure systems and
intelligent vehicle systems. Information about these systems and how
they can be applied, as well as their costs and benefits, is available
at the DOT's ITS Applications Overview Web site, which can be found at
http://www.itsoverview.its.dot.gov. A hyperlink to ``Lessons Learned''
that can be accessed at this Web site provides additional insights into
deployment of intelligent infrastructure systems and intelligent
vehicle systems at various locations throughout the United States.
There are presently scores of applications of ITS in both the
infrastructure and vehicle categories. Virtually all applications of
ITS fit within one or more existing CEs in the existing joint NEPA
procedures, such as approval of utility installations (23 CFR
771.117(c)(2)), installation of signs, pavement markers, traffic
signals, and railroad warning devices (where no substantial land
acquisition or traffic disruption will occur) (23 CFR 771.117(c)(8)),
ridesharing activities (23 CFR 771.117(c)(13)), and activities that do
not involve or lead directly to construction (23 CFR 771.117(c)(1)).
Categorical exclusion of activities that support the deployment of
intelligent transportation infrastructure and systems also finds
substantiation in the CEs of other Federal departments and agencies,
including the U.S. Department of Homeland Security (DHS) and agencies
within that department. A 200-page ``Administrative Record for
Categorical Exclusions (CATEX)'' supporting the DHS CEs provides
additional substantiation for categorically excluding activities that
support the deployment of intelligent transportation infrastructure and
systems. That administrative record can be reviewed at http://www.dhs.gov/xlibrary/assets/nepa/Mgmt_NEPA_AdminRecdetailedCATEXsupport.pdf. The substantiation by the DHS
includes a comparative review of other Federal agency CEs that reflect
similar activities and impacts. The class of actions identified in the
DHS administrative record is virtually identical to activities that
support deployment of intelligent transportation infrastructure and
systems: ``Construction, installation, operation, maintenance, and
removal of utility and communication systems (such as mobile antennas,
data processing cable, and similar electronic equipment) that use
existing rights-of-way, easements, utility distribution systems, and/or
facilities.'' (See CE E1 in the DHS administrative record referenced
above). Those activities are similar to, and would have the same
impacts as, the ITS activities proposed for a CE herein.
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Several other classes of action identified in the DHS
administrative record also support categorical exclusion of activities
that support deployment of intelligent transportation infrastructure
and systems. Foremost among those classes of action are those
identified as CEs B8 and B9.\1\ Actions categorically excluded under
the DHS CE B8 include acquisition, installation, maintenance,
operation, or evaluation of security equipment. Examples include
cameras and biometric devices, as well as access controls, screening
devices, and traffic management systems. Actions categorically excluded
under CE B9 include acquisition, installation, operation, or evaluation
of physical security devices, or controls to enhance physical security.
Examples include motion detection systems, use of temporary barriers,
fences, and jersey walls on or adjacent to existing facilities or on
land that has already been disturbed or built upon, and remote video
surveillance systems.
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\1\ Other parts of the DHS administrative record that describe
categories of action that are similar in many respects to activities
that support deployment of intelligent transportation infrastructure
and systems include CEs A7, B7, D1, and E2.
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The environmental procedures of the Federal Railroad Administration
(FRA) also contain a class of categorically excluded actions quite
similar to activities that support deployment of intelligent
transportation infrastructure and systems. Under section 4(c)(18) of
the FRA's procedures, ``[r]esearch, development and/or demonstration of
advances in signal communication and/or train control systems on
existing rail lines provided that such research, development and/or
demonstrations do not require the acquisition of a significant amount
of right-of-way, and do not significantly alter the traffic density
characteristics of the existing rail line'' qualifies for categorical
exclusion from the need to prepare either an EIS or an EA. See FRA
Procedures for Considering Environmental Impacts, 64 FR 28545, 28547
(May 26, 1999), also available at http://www.fra.dot.gov/Downloads/RRDev/FRAEnvProcedures.pdf.
Upon review and consideration, the FTA and the FHWA determined that
the ITS activities proposed for inclusion as CEs herein are
substantially equivalent to those of the DHS, the agencies within that
department, and the FRA. The proposed ITS CE will continue to provide
for unusual circumstances that would require an EIS or EA.
For purposes of establishing applications of ITS as normally
categorically excluded from the need to prepare EISs and EAs, listing
each ITS application separately would be burdensome, require continual
updating, and would be wholly inconsistent with the CEQ's guidance
encouraging agencies to consider broadly defined criteria that
characterize the types of actions that, based on the agency's
experience, do not cause significant environmental effects.
Accordingly, this NPRM proposes to add a new CE for ITS activities,
under broadly defined criteria, to the list in 23 CFR 771.117(c).
Consistent with the statutory definitions of ``intelligent
transportation infrastructure'' and ``intelligent transportation
system'' in SAFETEA-LU section 5310, the deployment of ``electronics,
photonics, communications, or information processing used singly or in
combination to improve the efficiency or safety of a surface
transportation system'' would be categorically excluded.
A second newly proposed CE arises from section 3024 of SAFETEA-LU,
which added a provision at 49 U.S.C. 5324(c) that allows the FTA to
participate in the acquisition of a pre-existing railroad right-of-way
(ROW) prior to the completion of the NEPA process for any project that
would eventually use that railroad ROW. This type of action
contemplates only a change in ownership, usually from a private freight
railroad company to a public transit agency. No operational changes or
construction would be permitted on the ROW until such time as the
environmental review of the proposed construction or change in
operations has been completed. The action is fairly similar to an
existing CE (23 CFR 771.117(d)(12)) and parallels in content and impact
the types of activities that have been categorically excluded by the
Surface Transportation Board (STB).
The STB's environmental procedures (49 CFR 1105.6(c)(2))
categorically exclude from the need to prepare either an EIS or an EA
any action that does not result in significant changes in rail carrier
operations, including acquisition of a rail line. The STB also
categorically excludes actions that could result in some operational
changes the grant of trackage rights, for example--which contemplates
an arrangement where a company that owns the line retains all rights,
but allows another company to operate over certain sections of its
track (see 49 CFR 1105.6(c)(4)). Significant changes to rail carrier
operations can cause certain environmental impact thresholds to be
exceeded. The thresholds involve operational changes--basically
increased rail operations--that may negatively affect energy
consumption and air quality. Under the CE proposed here for acquisition
of a pre-existing railroad ROW, operational changes or construction
would not be permitted.
The environmental procedures of the FRA also contain a class of
categorically excluded actions quite similar to acquisition of a pre-
existing railroad ROW. Under section 4(c)(17) of the FRA's procedures,
``[a]cquisition of existing railroad equipment, track and bridge
structures * * * and other existing railroad facilities or the right to
use such facilities, for the purpose of conducting operations of a
nature and at a level of use similar to those presently * * * existing
on the subject properties'' qualifies for a CE from the need to prepare
either an EIS or an EA. See FRA Procedures for Considering
Environmental Impacts, 64 FR 28545, 28547 (May 26, 1999), also
available at http://www.fra.dot.gov/Downloads/RRDev/FRAEnvProcedures.pdf.
This NPRM proposes to add the acquisition of pre-existing railroad
ROW to the activities that are categorically excluded from the need to
prepare either an EIS or an EA in 23 CFR 771.117(c). Under the CE
proposed here, operational changes or construction would not be
permitted. The context of this provision within chapter 53 of title 49
U.S.C. suggests that the proposed CE would apply to FTA actions only.
The proposed revision of an existing CE would amend 23 CFR
771.117(c)(5) to clarify the CE relating to Federal land transfers. A
Federal land transfer is a conveyance by the FHWA of land owned by the
United States to a State department of transportation (State DOT) or
its nominee when such land or interest in land is necessary for a
transportation project. The transfer typically uses a highway easement
deed. The FHWA's regulations governing Federal land transfers are
located at 23 CFR 710.601. This CE has been in the FHWA environmental
regulation since 1980. See 45 FR 71972 (Oct. 30, 1980).
The current language of 771.117(c)(5) provides that the
``[t]ransfer of Federal lands pursuant to 23 U.S.C. 317 when the
subsequent action is not an FHWA action'' is categorically excluded.
This language categorically excludes Federal land transfers for
projects for which FHWA has no involvement apart from the Federal land
transfer. An example of such a situation is the perfection of title to
an existing highway over Federal land for which no document of title
previously had been delivered to the State DOT and recorded. This
situation may exist for any number of reasons, such as where a highway
had been built
[[Page 44041]]
based on a right-of-entry but was not followed by execution of a deed.
The Federal land transfer in such cases is merely to perfect title and
is not followed by project construction or any subsequent FHWA action.
In the FHWA's experience, use of the CE for this situation is
appropriate, but that use is not clear under the existing wording
because in such cases there is no ``subsequent action'' following the
land transfer.
In addition, there is confusion whether or not the existing CE
applies to all Federal land transfers undertaken by the FHWA even if
the transfer is part of a larger project undergoing NEPA review. We
believe that the CE for Federal land transfers is intended to be
applicable to a minority of Federal land transfers. The majority of
Federal land transfers are for Federal-aid highway construction or re-
construction projects. For those projects, there is no need for a CE
for the Federal land transfer because the FHWA must comply with NEPA
for the underlying transportation project itself. The NEPA
documentation for the underlying project will include an analysis of
environmental impacts resulting from the acquisition and use of all of
the ROW needed for the highway project, including any ROW acquired
through a Federal land transfer. Evidence supporting this view appears
in 23 CFR 710.601(d)(7), which requires the application for a Federal
land transfer to include ``[a] statement of compliance with the
National Environmental Policy Act of 1969 (42 U.S.C. 4332, et seq.) and
any other applicable Federal environmental laws, including the National
Historic Preservation Act (16 U.S.C. 470(f)), and 23 U.S.C. 138.''
The proposed revision to the CE in 771.117(c)(5) on Federal land
transfers would amend the language to read: ``Transfer of Federal lands
pursuant to 23 U.S.C. 107(d) and/or 23 U.S.C. 317 when the land
transfer is in support of an action that is not otherwise subject to
FHWA review under NEPA.'' This language will clarify the circumstances
under which the CE applies. The reference to 23 U.S.C. 107(d) would be
added because the authority for Federal land transfers for Interstate
highway projects appears in 23 U.S.C. 107(d) and is in addition to the
authority for other highway projects, which appears in 23 U.S.C. 317.
Another provision added by section 6002 of SAFETEA-LU establishes a
180-day statute of limitations for FTA and FHWA projects. That 180-day
time period commences with publication in the Federal Register of a
notice that informs the public that one or more Federal agency
decisions on a project is final. The FTA and the FHWA propose to
reference this new limitation on claims in their joint NEPA procedures.
Detailed information on the actual mechanisms for carrying out this
provision appear in the section 6002 final guidance that is available
at http://www.fhwa.dot.gov/hep/section6002/.
One of the overarching goals of SAFETEA-LU is to relieve congestion
on the nation's roadways in order to promote fuel savings, to improve
air quality, and to enhance passenger safety, among other objectives.
To pursue this goal in the most expeditious manner possible, consistent
with applicable authorities, the Administration is contemplating the
addition of one or more new CEs for projects that reduce transportation
system congestion (see http://www.fightgridlocknow.gov) and meet the
criteria for categorical exclusion from NEPA review.
Congestion management activities include measures such as value
pricing \2\ and converting existing high occupancy vehicle (HOV) lanes
to high occupancy toll (HOT) lanes.\3\ Based on experience to date,
most of these types of projects would normally qualify for a CE because
they are not major Federal actions affecting the quality of the human
environment. Thus, the Administration is considering the addition of
one or more CEs to explicitly identify those congestion management
activities that typically meet CE criteria. To that end, the
Administration requests comments, including data and information on the
experiences of project sponsors and others with these types of
projects, to assist with determining their appropriate class of action
under NEPA. Interested parties are also invited to submit written
evidence about particular congestion management activities that they
believe qualify as CEs and specific regulatory language that might be
used in one or more CEs for these types of projects.
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\2\ Value pricing concepts presently include variably priced
lanes or tolls, cordon charges, or area-wide charges (see http://ops.fhwa.dot.gov/publications/congestionpricing/sec2.htm).
\3\ An HOV lane, sometimes called a carpool lane, is a lane
reserved for the use of carpools, vanpools and buses. HOV lanes
usually are located next to the regular, unrestricted, (``general
purpose'') lanes. HOV lanes enable those who carpool or ride the bus
to bypass the traffic in the adjacent, unrestricted lanes. HOT lanes
are limited-access, normally barrier-separated highway lanes that
provide free or reduced cost access to qualifying HOVs and also
provide access to other paying vehicles not meeting passenger
occupancy requirements. By using price and occupancy restrictions to
manage the number of vehicles traveling on them, HOT lanes maintain
volumes consistent with non-congested levels of service during peak
travel periods. HOT lanes utilize sophisticated electronic toll
collection and traffic information systems that also make variable,
real-time toll pricing of non-HOV vehicles possible. For more
detailed information on HOV lanes, see http://ops.fhwa.dot.gov/freewaymgmt/hov.htm and on HOT lanes, see http://www.itsdocs.fhwa.dot.gov//JPODOCS/REPTS_TE//13668.html.
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We considered whether revisions are needed to part 771 to address
non-CE projects that involve private sector participation, tolling, or
contain other innovative financing or congestion management features.
Examples of such projects include the conversion of an existing
``free'' highway to a tolled facility, or the construction of a new
facility that includes tolls. Questions about the scope of NEPA
analysis required in such cases have become more frequent as a result
of SAFETEA-LU provisions that facilitate innovative financing and
congestion management measures.
For example, we have been asked whether a ``no toll'' alternative
must always be examined in the analysis of alternatives or whether the
addition of tolls after the completion of an environmental impact
statement requires a supplemental environmental impact statement. The
analysis of alternatives must include all reasonable alternatives, and
if ``no toll'' alternatives are demonstrably unreasonable, there is no
reason to examine them in detail. Very often, the inclusion or absence
of tolls has little or no additional or distinct environmental impact.
In these cases, there is no reason to treat toll alternatives as
different from ``no toll'' alternatives. Similarly, if tolls are added
later in the project development process and do not result in different
environmental impacts, no supplemental environmental impact statement
would be required. However, if tolls do result in significantly
different traffic behavior, further analysis will be required to
determine if the environmental impacts are different, perhaps
concluding that a supplemental environmental impact statement is
necessary using the existing standards in 23 CFR 771.130. In other
words, we have concluded that existing law and guidance sufficiently
articulate the applicable standard, which is that the level of analysis
is determined by the significance of the potential impacts of the
project. The presence of tolling or other innovative measures does not
change the standard for deciding the level of analysis needed. However,
we are interested in comments on the need for revisions to part 771 on
this topic.
The section-by-section analysis that follows cites the provisions
of SAFETEA-LU that result in inconsistencies with the joint
environmental procedures, as currently
[[Page 44042]]
constituted, and advances proposed amendments that conform to the
supplemental environmental review requirements. Other minor changes to
help eliminate confusion among practitioners, or to bring the
regulation into better alignment with current practice, are also
proposed. Because of the limited scope of this rulemaking, there will
continue to be some inconsistencies between provisions in the part 771
regulation and provisions of statutes and regulations adopted under
Title 23 and Title 49 since the last comprehensive revision of part
771. The FTA and the FHWA anticipate addressing such matters in a
subsequent, more comprehensive rulemaking proceeding.
Section-by-Section Analysis
General Note: This NPRM contains references to regulations or other
documents that are the subject of current rulemaking proceedings, such
as the regulations pertaining to Section 4(f) (49 U.S.C. 303) that
currently are contained in 23 CFR 771.135. Any final rule resulting
from this NPRM will adopt revised references as appropriate to reflect
the final results of other rulemaking proceedings.
Section 771.101 Purpose
The Administration is proposing very minor changes to emphasize
that this regulation is supplemental to the CEQ regulation at 40 CFR
parts 1500-1508, to update the statutory references, and to use the
statutorily defined term ``public transportation'' in referring to FTA
actions (49 U.S.C. 5302(a), as amended by section 3004 of SAFETEA-LU).
Section 771.105 Policy
No change in policy is proposed, but the footnote in this section
would be updated to reference recent Administration guidance on
environmental matters and to give the Web sites where information is
available.
Section 771.107 Definitions
Three new or revised definitions are proposed.
The definition of ``Administration,'' which has meant the FHWA or
the FTA, would be extended to include a State that has been assigned
responsibility for certain environmental requirements in accordance
with 23 U.S.C. 325, 326, or 327, or other applicable law, to the extent
that the required agreement between the State and the FHWA or the FTA
allows the State to act in place of the Administration. Sections 325,
326, and 327 of Title 23 allow the FHWA and, in the case of section
326, the FTA, to assign certain specified environmental
responsibilities to a State through a written memorandum of
understanding (MOU) or agreement. When the FHWA or the FTA enters into
such MOU or agreement, the State will act in lieu of the Administration
for those responsibilities that are specified in this regulation as
Administration responsibilities and that have been assigned to the
State through the MOU or agreement.
One example of how this extended definition would operate is the
delegation to a State, under 23 U.S.C. 326, of responsibility to
determine whether projects satisfy the criteria for categorical
exclusion from the need to prepare either EISs or EAs. Under 23 U.S.C.
326, when the FHWA enters into a MOU with a State, the MOU specifies
the scope of the NEPA CE decision-making authority in 23 CFR 771.117(c)
and (d) that the FHWA assigns to the State. That is, the MOU expressly
identifies certain types of projects or activities for which the NEPA
CE decision will be made by the State. The State will determine whether
individual actions within those assigned types of projects or
activities qualify for CE status under 771.117 and the CEQ regulation
at 40 CFR 1508.4. When making those assigned CE decisions, the State
acts in the place of the FHWA and carries out the functions of the
``Administration'' under the part 771 regulation.
The proposed definition of ``applicant'' is new. It is being
proposed because of the provision in SAFETEA-LU section 6002 (codified
at 23 U.S.C. 139) that gives different roles in the environmental
review process to project sponsors who are recipients of FHWA or FTA
funding and project sponsors who merely seek an approval, such as a
change in access control, that does not involve funding. It is
important to recognize this distinction between direct funding
recipients and project sponsors that are not direct recipients of
funding, such as private entities and local public agencies sponsoring
highway projects. The Administration expects that the involvement of
the latter type of project sponsors will increase in the coming years
as the use of innovative financing techniques and public-private
partnerships grows. The definition would also clarify that, under the
Federal Lands Highway Program and in other situations where a Federal
agency would actually implement the project, the Federal lead agencies
must perform the responsibilities of the applicant specified in the
rule.
The proposed definition of ``lead agencies'' is new. The new
definition would implement the provision in section 6002 of SAFETEA-LU
(23 U.S.C. 139(c)(3)) that requires that State and local governmental
entities that are the direct recipients of FHWA or FTA funding serve as
joint lead agencies with the Administration. Additional lead agencies,
as envisioned by the CEQ regulation (40 CFR 1501.5(b)), may also be
involved, and the proposed definition recognizes this possibility.
Section 771.109 Applicability and Responsibilities
Changes are proposed in paragraphs (a), (c), and (d).
The words ``by the Administration'' would be deleted in paragraph
(a)(3) in recognition of the new role of non-Federal lead agencies
described herein.
Paragraph (c) would be replaced in its entirety. The new paragraph
would establish which agencies will serve as lead agencies in the
environmental review process and would identify the rules that govern
the roles of other agencies and private entities.
The role of an applicant that is a State or local governmental
entity and is the direct recipient of Administration funding for the
project was substantially altered by SAFETEA-LU section 6002 (23 U.S.C.
139(c)(3)). Such applicant must serve as a joint lead agency with the
Administration in managing the environmental review process and the
preparation of the appropriate environmental document. Paragraphs
(c)(1) and (c)(2) would so provide.
SAFETEA-LU section 6002 defers to the CEQ regulation to establish
some of the other roles of agencies. For example, the CEQ regulation
(40 CFR 1501.5 and 1501.6) addresses when a lead agency other than
those mandated by section 6002 should be brought into the process, and
when an agency must be brought in as a cooperating agency. The proposed
revisions in paragraphs (c)(3) and (c)(4) follow suit in deferring to
the CEQ regulation on these roles.
Paragraph (c)(5) would retain provisions relating to the authority,
provided by section 102(2)(D) of NEPA itself, of a statewide agency to
prepare an EIS.
Paragraph (c)(6) substitutes the term ``project sponsor,'' from
SAFETEA-LU section 6002, for ``applicant'' in order to update and
clarify the existing regulatory language relating to the roles
available to private institutions or firms in the environmental review
process.
A statutory reference in paragraph (d) would be updated.
[[Page 44043]]
Section 771.111 Early Coordination, Public Involvement, and Project
Development
Paragraph (a)(1) would be amended for consistency with section 6002
of SAFETEA-LU by deleting the sentence that suggests an oversight role,
rather than a joint lead agency role, for the Administration. Paragraph
(a)(2) would be added to acknowledge the relationship between the
planning process under sections 3005, 3006, and 6001 of SAFETEA-LU and
the environmental review process, and to provide a footnote reference
to guidance issued by the Administration on linking planning and NEPA.
Paragraph (b) would be amended to eliminate an inconsistency with
SAFETEA-LU section 6002 (23 U.S.C. 139(e)) regarding the initiation of
the environmental review process.
Paragraph (d) would be amended for consistency with SAFETEA-LU
section 6002 (23 U.S.C. 139(d)) regarding the identification of, and
invitations to, participating agencies, and to distinguish between
participating and cooperating agencies. A footnote reference to
guidance the Administration has issued on SAFETEA-LU section 6002 would
also be added.
Paragraph (h)(1) would be amended to add a reference to 23 U.S.C.
139, which includes certain new public involvement requirements that
are relevant in this context. Paragraphs (h)(2)(vii) and (viii) are
proposed to be added so that the list of public involvement
requirements derived from various statutory provisions is complete. The
new paragraphs would address, respectively, the requirements in
SAFETEA-LU section 6002 (23 U.S.C. 139(f)(1) and 139(f)(4)(A)) that an
opportunity for public involvement be provided in defining the purpose
and need for the proposed action and in determining the range of
alternatives, and in SAFETEA-LU section 6009 (49 U.S.C. 303(d)(3)(A))
that public notice and an opportunity for public review and comment be
provided prior to a Section 4(f) de minimis impact determination.
Paragraph (i) would be revised to implement the provision in
SAFETEA-LU section 3023 (49 U.S.C. 5323(b)) regarding public notice and
hearings, and public review and comment, for transit capital projects.
The requirement for a public hearing during the circulation period of a
draft EIS accords with new 49 U.S.C. 5323(b)(1)(B) and is proposed to
be retained. For other projects that substantially affect the community
or its public transportation service, an adequate opportunity for
public review and comment must be provided under 49 U.S.C.
5323(b)(1)(A). The past transit practice of printing legal notices in
newspapers to offer an opportunity for a hearing on every section 5309
grant, regardless of the class of action, is no longer necessary.
Section 771.113 Timing of Administration activities
Paragraph (a) would be modified for consistency with SAFETEA-LU
section 6002 (23 U.S.C. 139(c)). The proposed revision recognizes that
the lead agencies, which in the majority of cases will include the
Administration and the applicant, are jointly responsible for executing
the environmental review process. The third sentence, which addresses
limitations on actions mandated by CEQ regulation (40 CFR 1506.1), also
would be amended. The change would remove the reference to the CE for
hardship and protective acquisitions in 771.117(d)(12) and add language
acknowledging that the law provides some exceptions to the timing in
771.113. The proposed revision would relocate the discussion of
exceptions to paragraph (d). This paragraph, which is not intended to
be all-inclusive, would include references to the existing CE for
hardship and protective acquisitions in 771.117(d)(12), the new transit
exception provided by SAFETEA-LU section 3024 (49 U.S.C. 5324(c)) for
railroad ROW acquisitions, the exception in 49 U.S.C. 5309(h)(6) for
certain rolling stock acquisitions, and existing exceptions applicable
to the Federal-aid Highway Program that appear in FHWA regulations in
23 CFR part 710. These proposed changes are to provide clarity. The
Administration requests comments on whether additional revisions are
needed to clarify the alignment between the 771.113(a) timing provision
and the CEQ regulations and judicial decisions on this topic.
Paragraph (a)(2) would be amended to use the term
``Administration,'' because responsibilities related to 23 U.S.C. 128
may be assigned to a State pursuant to 23 U.S.C. 325, 326, or 327.
Paragraph (b) was originally included in the regulation to address
FHWA funding issues. The statement that the completion of NEPA and
related requirements does not constitute a commitment of Federal
funding applies equally to the FTA program, and always has. To
eliminate the inference drawn by some that the statement is not true
for FTA, paragraph (b) would therefore be amended by excising the lead-
in phrase ``[f]or FHWA.''
Section 771.117 Categorical exclusions
The FHWA is proposing to revise the language of paragraph (c)(5) to
clarify that the CE does not apply to all Federal land transfers. The
majority of such transfers provide ROW for projects that are themselves
subject to NEPA. In such instances, ``the FHWA's NEPA documentation for
the project will consider all significant environmental impacts of the
project, including any resulting from the acquisition and use of ROW
needed for the project. Therefore, the proposed revision clarifies that
this CE only applies when the land transfer is in support of an action
that is not otherwise subject to FHWA review under NEPA.
The Administration is proposing to add a new CE to the list in
subparagraph (c)(21) to implement SAFETEA-LU section 6010, which
requires the Administration to initiate rulemaking that considers
establishing CEs for activities that support the deployment of
intelligent transportation infrastructure and systems. Intelligent
transportation system is defined in section 5310(3) of SAFETEA-LU to be
``electronics, photonics, communications, or information processing
used singly or in combination to improve the efficiency or safety of a
surface transportation system.'' Intelligent transportation
infrastructure is defined in SAFETEA-LU section 5310(2) to mean ``fully
integrated public sector intelligent transportation system components
as defined by the [DOT] Secretary.''
The Administration has much experience with deploying ITS,
including stand-alone systems and systems that are elements of, or are
associated with, major construction projects. An example of the former
would be an incident management system, which may include video
monitors installed along an existing freeway, together with a radio
dispatch system for emergency response and towing. An example of the
latter would be the construction of a bus rapid transit (BRT) line and
stations on an urban arterial roadway, that includes, as part of the
project, the installation of GPS sensors in buses, connected by radio
to a central controller (i.e., a computer) that monitors the locations
of buses and provides traffic signal pre-emption for buses traveling
along the arterial.
The FTA and the FHWA experience has shown that a stand-alone ITS
project that is not an element of a larger construction project
typically does not have significant impacts on the human environment.
The Administration is proposing in new paragraph (c)(21) that
[[Page 44044]]
the stand-alone ITS activities be categorically excluded, in accordance
with SAFETEA-LU section 6010. The Administration is not proposing to
exclude an ITS activity when it is an element of a larger construction
project. In this case, the magnitude and location of the construction
activities will, in all likelihood, dictate the appropriate class of
action. In addition, even though an ITS project might satisfy CE
criteria for NEPA purposes, that does not affect the requirements
applicable to the ITS activity under other Federal and State
environmental laws.
The FTA proposes to add a new CE to the list in subparagraph
(c)(22) to facilitate the implementation of the provision in SAFETEA-LU
section 3024 (49 U.S.C. 5324(c)). This new provision of law allows the
Administration to assist in acquiring a pre-existing railroad ROW,
usually from a private freight railroad company that is interested in
liquidating the asset, without having first performed a NEPA review of
any project that may in the future occupy that ROW.
On occasion, the FTA has been directed by Congress, through
specific earmarks, to assist a public transportation agency financially
in the acquisition of a private railroad ROW. In these cases, the
project described in the earmark was strictly the acquisition of ROW,
and the funding provided in the earmark was adequate only to acquire
the ROW. No project that would use the ROW had been planned at all, or
had not been planned to the point that it was sufficiently well-defined
to permit its NEPA review. In these cases, FTA has, through its
applicant, conducted environmental reviews of the acquisition itself,
and has determined that the change in ownership of the ROW, without any
change in the use of the ROW, would not have any significant
environmental effects. For example, the railroad ROW on which the
Trinity Railway Express, a commuter rail line, operates between Dallas
and Fort Worth was acquired by the public transportation agencies with
FTA assistance. It remained strictly a freight railroad operation for
many years after its acquisition. No significant impacts resulted from
the change in ownership. The construction of commuter rail was
considered in a separate, unrelated NEPA review conducted many years
later.
The FTA is therefore proposing to add the acquisition of pre-
existing railroad ROW under 49 U.S.C. 5324(c) to the list actions that
are known not to have significant environmental impacts. The proposed
revision to paragraph (c)(22) specifies that no project development may
proceed, including any project to intensify the transportation use of
the acquired ROW, until that project has been subjected to a NEPA
review that considers alternatives.
Paragraph (d)(12) would be amended by deleting advance land
acquisition loans under 49 U.S.C. 5309(b). The authority to make such
loans has been eliminated from 49 U.S.C. 5309 by SAFETEA-LU section
3011. The definitions of hardship and protective acquisition have been
removed from a footnote added to the text of the paragraph. In
addition, a typographical error is proposed to be corrected.
Section 771.119 Environmental Assessments
The FTA is proposing to delete the option provided exclusively to
FTA applicants in the second sentence of paragraph (c) of circulating
an EA without FTA approval. There are several reasons for this
proposal: (1) SAFETEA-LU section 6002 (23 U.S.C. 139(c)(6)) requires
that the FTA, as lead agency, take an active role in completing the
environmental review process expeditiously. The FTA will facilitate the
EA process through active involvement in developing an EA that meets
Federal requirements prior to its circulation; (2) the FTA has
experienced cases where an EA circulated by an applicant without FTA
approval was so deficient that major revisions and recirculation were
necessary. An up-front review by the FTA would avoid such duplication
of effort and associated delay; and (3) the FTA began the process of
conforming its NEPA requirements as closely as possible with the
FHWA's, in accordance with a requirement to that effect that appeared
in two previous surface transportation authorizing laws, ISTEA and the
Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-
178, 112 Stat 107). As a result, the FTA's practice in most FTA
regional offices already conforms with the proposed change. The change
would provide consistency among all FTA regional offices and
applicants.
A typographical error in paragraph (g) is proposed to be corrected.
Paragraph (j) is proposed to be added for consistency with SAFETEA-
LU section 6002 (23 U.S.C. 139(b)(1)), which gives the Administration
the discretion of applying the environmental review process described
in SAFETEA-LU section 6002 to EA projects.
Section 771.123 Draft Environmental Impact Statements
The new requirement in SAFETEA-LU section 6002 (23 U.S.C. 139(e))
for project sponsor notification of the Administration is proposed to
be added to paragraph (a).
Paragraphs (b) and (c) would also be modified for consistency with
SAFETEA-LU section 6002 (23 U.S.C. 139(c)). The proposed revisions
recognize that the lead agencies, which in the majority of cases will
include the Administration and the applicant, are jointly responsible
for scoping (paragraph (b)) and preparation of the draft EIS (paragraph
(c)).
Paragraph (d) would be revised to acknowledge that, in accordance
with CEQ regulation, any of the joint lead agencies may select and
manage a contractor to assist in the preparation of the EIS.
Paragraph (i) would be modified for consistency with the comment
deadline periods established in SAFETEA-LU section 6002 (23 U.S.C.
139(g)(2)).
Paragraph (j) is proposed to be revised in two ways: (1) The words
that describe the FTA program in question would be changed for
consistency with the latest definitions in 49 U.S.C. 5302(a) and the
current statutory section heading in 49 U.S.C. 5309; and (2) the
requirement for a locally preferred alternative report following the
draft EIS would be deleted from this regulation. The locally preferred
alternative report is a New Starts program requirement, not a NEPA
requirement, and is more appropriately addressed in the New Starts
regulation (49 CFR part 611).
Section 771.125 Final Environmental Impact Statements
Paragraph (a)(1) would be modified for consistency with SAFETEA-LU
section 6002 (23 U.S.C. 139(c)). The revision would recognize that the
lead agencies, which in the majority of cases will include the
Administration and the applicant, are jointly responsible for the
preparation of the final EIS. A cross-reference to paragraph 109(d) on
mitigation that was inadvertently omitted from the original regulation
would be added to assist the reader in connecting related provisions.
Paragraph (c)(3) requiring the prior concurrence of FTA
Headquarters in all final EISs for major transit capital investments is
deleted. This concurrence has become perfunctory as the size of the
transit New Starts program has grown, and it is no longer needed. The
FTA Headquarters can still require prior concurrence for final EISs
that fall in the categories listed in
[[Page 44045]]
paragraphs (c)(1) and (2), including actions involving national policy
issues, actions with major unresolved issues or opposition on
environmental grounds by a State or local government, and any action
which the Administration's Headquarters determines should require its
prior concurrence. Paragraph (c)(1) is proposed to be revised to
clarify that the list of the types of projects requiring prior FTA or
FHWA Headquarters concurrence is not intended to be all inclusive, and
that, at its discretion, the FTA or the FHWA Headquarters may require
prior concurrence in other cases.
The FTA and the FHWA propose to clarify a reference in paragraph
(e) and correct a capitalization error.
Section 771.129 Re-Evaluations
The proposed revision in this section is not substantive. The
paragraphs would simply be rearranged, without any change in wording,
into an order that most people would find more logical. The meaning
would not be changed by the re-sequencing.
Section 771.130 Supplemental Environmental Impact Statements
A typographical error in paragraph (a)(2) would be corrected.
Paragraph (e) would be updated, without substantive change, for
consistency with the latest definitions in 49 U.S.C. 5302(a) and the
current statutory section heading in 49 U.S.C. 5309.
Section 771.131 Emergency Action Procedures
There is no change proposed to the wording of this section.
However, the new definition of ``Administration'' would change the
meaning of this section in certain circumstances, namely when a State
acts in lieu of the Administration under an MOU signed in accordance
with 23 U.S.C. 325, 326, or 327. The FTA and the FHWA intend that, in
the absence of a provision in such MOU that explicitly addresses
emergency action procedures, the responsibility and authority to
develop emergency action procedures is retained by the FTA and the
FHWA.
Section 771.133 Compliance With Other Requirements
We propose to substitute ``Administration's'' for ``FHWA'' in the
final sentence of this section. The effect of the change would be to
make it clear that when a State is acting in the place of the FHWA or
FTA pursuant to 23 U.S.C. 325, 326, or 327, the State may be assigned
the authority to certify compliance with the requirements of 23 U.S.C.
128. Additional edits to the last sentence are proposed for clarity,
without changing the substance of the sentence.
Section 771.135 Section 4(f) (49 U.S.C. 303)
No revision to section 771.135 of the regulation is proposed in
this NPRM. The FTA and the FHWA, however, are currently engaged in a
separate rulemaking by the Administration that proposed, through an
NPRM (71 FR 42611, July 27, 2006), to delete section 771.135 and create
a new 23 CFR part 774 to implement Section 4(f), as amended by SAFETEA-
LU.
Section 771.139 Statute of Limitations
The FTA and the FHWA propose to add this new section to provide, in
accordance with 23 U.S.C. 139(l), that agency decisions under NEPA,
Section 4(f) determinations, project-level air quality conformity
determinations, and other final Federal decisions on a project, that
are announced in the Federal Register, may not be challenged unless
such claim is filed within 180 days of the publication of a Federal
Register notice announcing the decisions(s). The proposed revision
includes a reference to information on the Administration's
interpretation of the provision, and detailed implementation guidance
that applies to FHWA projects.
Regulatory Notices
All comments received on or before the close of business on the
comment closing date indicated above will be considered and will be
available for examination in the docket at the above address. Comments
received after the comment closing date will be filed in the docket and
will be considered to the extent practicable. In addition to late
comments, the FHWA and the FTA will also continue to file relevant
information in the docket as it becomes available after the comment
period closing date, and interested persons should continue to examine
the docket for new material. A final rule may be published at any time
after the close of the comment period.
Executive Order 13132: Federalism
Executive Order 13132 requires agencies to assure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This proposed action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, and the FHWA and the FTA have determined that this
proposed action would not have sufficient federalism implications to
warrant the preparation of a federalism assessment. The 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 government functions. We invite State and local governments
with an interest in this rulemaking to comment on the effect that
adoption of specific proposals may have on State or local governments.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 requires agencies to assure meaningful and
timely input from Indian tribal government representatives in the
development of rules that ``significantly or uniquely affect'' Indian
communities and that impose ``substantial and direct compliance costs''
on such communities. We have analyzed this proposed rule under
Executive Order 13175 and believe that the proposed action 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 laws. Therefore, a tribal
impact statement is not required. We invite Indian tribal governments
to provide comments on the effect that adoption of specific proposals
may have on Indian communities.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), we must consider whether a proposed rule would have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. If your business or organization is a small
entity and if adoption of proposals contained in this notice could have
a significant economic impact on your operations, please submit a
comment to explain how and to what extent your business or organization
could be affected.
National Environmental Policy Act
This proposed action would not have any effect on the quality of
the environment under the National
[[Page 44046]]
Environmental Policy Act of 1969 (NEPA) and is categorically excluded
under 23 CFR 771.117(c)(20). The proposed action is intended to
incorporate new statutory requirements into the agencies regulations
and to add new CEs from the NEPA process. Additionally, this proposed
rule seeks to improve the description of the procedures and to provide
clarification with respect to the interpretation of certain provisions.
Statutory/Legal Authority for this Rulemaking
This rulemaking is issued under authority of sections 3023, 3024,
6002, 6003, 6004, 6005, and 6010 of the SAFETEA-LU, the latter of which
requires the Secretary of Transportation to initiate rulemaking to
establish, as appropriate, CEs for ITS projects. In addition, this NPRM
implements changes made by section 6002 to the process by which the FTA
and the FHWA comply with NEPA.
Executive Order 12866 and DOT Regulatory Policies and Procedures
The FTA and the FHWA have determined preliminarily that this action
is not considered a significant regulatory action under section 3(f) of
Executive Order 12866 and the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11032).
Executive Order 12866 requires agencies to regulate in the ``most
cost-effective manner,'' to make a ``reasoned determination that the
benefits of the intended regulation justify its costs,'' and to develop
regulations that ``impose the least burden on society.'' We anticipate
that the direct economic impact of this rulemaking would be minimal.
Some of the changes that this rule proposes are requirements mandated
in SAFETEA-LU. We also consider this proposal as a means to clarify the
existing regulatory requirements. 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.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to a collection of information unless it displays a valid OMB
control number. This notice does not propose any new information
collection burdens.
Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. The RIN
number contained in the heading of this document may be used to cross-
reference this action with the Unified Agenda.
Privacy Act
Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.
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
$128.1 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 affects on State,
local, and tribal governments and the private sector.
Executive Order 12630 (Taking of Private Property)
We have analyzed this proposed rule under Executive Order 12630,
Government Actions and Interface with Constitutionally Protected
Property Rights. We do not anticipate that this proposed rule would
effect a taking of private property or otherwise have taking
implications under Executive Order 12630.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13211 (Energy Effects)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use dated May 18, 2001. We have determined that this
is not a significant energy action under that order because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects is not required.
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. We certify that this proposed rule is not an economically
significant rule and would not cause an environmental risk to health or
safety that may disproportionately affect children.
List of Subjects
49 CFR Part 622
Environmental impact statements, Grant programs--transportation,
Public transit, Recreation areas, Reporting and recordkeeping
requirements.
23 CFR Part 771
Environmental protection, Grant programs--transportation, Highways
and roads, Historic preservation, Public lands, Recreation areas,
Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed to amend
Chapter VI of Title 49 and Chapter I of Title 23, Code of Federal
Regulations, by amending 49 CFR Part 622 and 23 CFR Part 771,
respectively as set forth below:
Federal Transit Administration
Title 49--Transportation
PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
Subpart A--Environmental Procedures
1. Revise the authority citation for part 622 to read as follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303, 5301(a) and
(e), 5323(b), and 5324; 23 U.S.C. 139 and 326; Pub. L. 109-59, 119
Stat. 1144, section 6010; 40 CFR parts 1500-1508; 49 CFR 1.51.
Federal Highway Administration
Title 23--Highways
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
2. Revise the authority citation for part 771 to read as follows:
[[Page 44047]]
Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138,
139, 315, 325, 326, and 327; 49 U.S.C. 303, 5301(e), 5323(b), and
5324; Pub. L. 109-59, 119 Stat. 1144, section 6010; 40 CFR parts
1500-1508; 49 CFR 1.48(b) and 1.51.
3. 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 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, 327, and 49 U.S.C. 303, 5301(e), 5323(b), and
5324(b) and (c).
4. Amend Sec. 771.105 by revising paragraph (a) and its footnote
to read as follows:
Sec. 771.105 Policy.
* * * * *
(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 document required by this
regulation.\1\
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\1\ FHWA and FTA have supplementary guidance on environmental
documents and procedures for their programs. This guidance includes:
the FHWA Technical Advisory T6640.8A, October 30, 1987; ``SAFETEA-LU
Environmental Review Process: Final Guidance,'' November 15, 2006;
Appendix A to 23 CFR part 450 titled ``Linking the Transportation
Planning and NEPA Processes''; and ``Transit Noise and Vibration
Impact Assessment,'' May 2006. The FHWA and the FTA supplementary
guidance, and any updated versions of the guidance, are available
from the respective FHWA and FTA headquarters and field offices as
prescribed in 49 CFR part 7 and on their respective Web sites at
http://www.fhwa.dot.gov and http://www.fta.dot.gov, or in hard copy
by request.
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* * * * *
5. Amend Sec. 771.107 by revising paragraph (d) and adding
paragraphs (f) and (g) to read as follows:
Sec. 771.107 Definitions.
* * * * *
(d) Administration. FHWA or FTA, whichever is the designated
Federal lead agency for the proposed action. A reference herein to the
Administration means the 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.
* * * * *
(f) Applicant. Any State or local governmental entity, or
federally-recognized Indian tribe, that requests funding approval or
other action by the Administration and that the Administration works
with to conduct environmental studies and prepare environmental
documents. When another Federal agency, or the Administration itself,
is implementing the action, then the lead agencies (as defined in this
regulation) may assume the responsibilities of the applicant herein. If
there is no applicant, then the Federal lead agency will assume the
responsibilities of the applicant hereunder.
(g) 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.
6. Amend Sec. 771.109 by removing the words ``by the
Administration'' from paragraph (a)(3) and by revising paragraphs (c)
and (d) to read as follows:
Sec. 771.109 Applicability and responsibilities.
* * * * *
(c) The following roles and responsibilities apply during the
environmental review process:
(1) The lead agencies are responsible for managing the
environmental review process and the preparation of the appropriate
environmental document.
(2) Any applicant that is a State or local governmental entity that
is, or is expected to be, a direct recipient of funds under title 23
U.S.C. or chapter 53 of title 49 U.S.C. for the action shall serve as a
joint lead agency with the Administration in accordance with 23 U.S.C.
139, and may prepare environmental documents if the Federal lead agency
furnishes guidance and independently evaluates the documents.
(3) The Administration may invite other Federal, State, or local
governmental entities or federally-recognized Indian tribes to serve as
joint lead agencies in accordance with the CEQ regulation. If the
applicant is serving as a joint lead agency under 23 U.S.C. 139(c)(3),
then the Administration and the applicant will decide jointly which
other agencies to invite to serve as joint lead agencies.
(4) When the applicant seeks an Administration action other than
the approval of funds, the role of the applicant will be determined by
the Administration in accordance with the CEQ regulation and 23 U.S.C.
139.
(5) Regardless of its role under paragraphs (c)(2) through (c)(4)
of this section, a public agency that has statewide jurisdiction (for
example, a State highway agency or a State department of
transportation) or a local unit of government acting through a
statewide agency, that meets the requirements of section 102(2)(D) of
NEPA, may prepare the EIS and other environmental documents with the
Administration furnishing guidance, participating in the preparation,
and independently evaluating the document. All FHWA applicants qualify
under this paragraph.
(6) The role of project sponsors that are private institutions or
firms is limited to providing technical studies and commenting on
environmental documents.
(d) When entering into Federal-aid project agreements pursuant to
23 U.S.C. 106, it shall be the responsibility of the State highway
agency to ensure that the project is constructed in accordance with and
incorporates all committed environmental impact mitigation measures
listed in approved environmental documents unless the State requests
and receives written FHWA approval to modify or delete such mitigation
features.
7. Amend Sec. 771.111 by revising paragraphs (a), (b), (d),
(h)(1), and (i) and adding paragraphs (h)(2)(vii) and (h)(2)(viii) to
read as follows:
Sec. 771.111 Applicability and responsibilities.
(a)(1) Early coordination with appropriate agencies and the public
aids in determining the type of environmental document an action
requires, the scope of the document, the level of analysis, and related
environmental requirements. This involves the exchange of information
from the inception of a proposal for action to preparation of the
environmental document. Applicants intending to apply for funds should
notify the Administration at the time that a project concept is
identified.
(2) The information and results presented in publicly available
documents produced by, or in support of, the transportation planning
process in 23 CFR part 450 may be incorporated into NEPA documents.\3\
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\3\ On February 14, 2007, FHWA and FTA issued guidance on
incorporating products of the planning process into NEPA documents
as Appendix A of 23 CFR part 450. Titled ``Linking the
Transportation Planning and NEPA Processes,'' the guidance is
available on the FHWA Web site at http://www.fhwa.dot.gov, or in
hard copy by request.
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[[Page 44048]]
(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.
* * * * *
(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.\4\ Agencies with special
expertise may be invited to become cooperating agencies. Agencies with
jurisdiction by law must be requested to become cooperating agencies.
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\4\ FHWA and FTA have developed guidance on 23 U.S.C. 139
entitled ``SAFETEA-LU Environmental Review Process: Final
Guidance,'' November 15, 2006, and available at http://www.fhwa.dot.gov or in hardcopy upon request.
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* * * * *
(h) * * *
(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 40 CFR parts 1500 through 1508.
(2) * * *
* * * * *
(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 achieve
public participation on proposed projects by holding public hearings
and seeking input from the public through the scoping process for
environmental documents. For projects requiring EISs, an early
opportunity for public involvement in defining the purpose and need for
action and the range of alternatives must be provided, and a public
hearing will be held during the circulation period of the draft EIS.
For other projects that substantially affect the community or its
public transportation service, an adequate opportunity for public
review and comment must be provided, pursuant to 49 U.S.C. 5323(b).
* * * * *
8. Amend Sec. 771.113 by revising the introductory text of
paragraph (a), paragraph (a)(2), and first sentence of paragraph (b),
and adding paragraph (d), to read as follows:
Sec. 771.113 Timing of Administration activities.
(a) The lead agencies, in cooperation with the applicant (if not a
lead agency), will perform the work necessary to complete a FONSI or an
EIS and comply with other related environmental laws and regulations to
the maximum extent possible during the NEPA process. This work includes
environmental studies, related engineering studies, agency coordination
and public involvement. However, final design activities, property
acquisition, purchase of construction materials or rolling stock, or
project construction shall not proceed until the following have been
completed, except as otherwise provided in law or in paragraph (d):
* * * * *
(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;
* * * * *
(b) 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 document unless
otherwise specified by the approving official. * * *
* * * * *
(d) The prohibition in paragraph (a)(1) of this section is limited
by the following exceptions:
(1) Section 771.117(c)(22) contains an exception for the
acquisition of pre-existing railroad right-of-way for future transit
use in accordance with 49 U.S.C. 5324(c).
(2) Exceptions for hardship and protective acquisitions of real
property are addressed in Sec. 771.117(d)(12).
(3) FHWA regulations at 23 CFR 710.503 establish conditions for
FHWA approval of Federal-aid highway funding for hardship and
protective acquisitions.
(4) FHWA regulations at 23 CFR 710.501 address early acquisition of
right-of-way by a State prior to the execution of a project agreement
with the FHWA or completion of NEPA. In 710.501(b) and (c), the
regulation establishes conditions governing subsequent requests for
Federal-aid credit or reimbursement for the acquisition. Any State-
funded early acquisition for a Federal-aid highway project where there
will not be Federal-aid highway credit or reimbursement for the early
acquisition is subject to the limitations described in the CEQ
regulations at 40 CFR 1506.1 and other applicable Federal requirements.
(5) A limited exception for rolling stock is provided in 49 U.S.C.
5309(h)(6).
9. Amend Sec. 771.117 by adding paragraphs (c)(21) and (c)(22),
and by revising paragraphs (c)(5) and (d)(12) to read as follows:
Sec. 771.117 Categorical exclusions.
* * * * *
(c) * * *
(5) Transfer of Federal lands pursuant to 23 U.S.C. 107(d) and/or
23 U.S.C. 317 when the land transfer is in support of an action that is
not otherwise subject to FHWA review under NEPA.
* * * * *
(21) Deployment of electronics, photonics, communications, or
information processing used singly or in combination, or as components
of a fully integrated system, to improve the efficiency or safety of a
surface transportation system.
(22) Acquisition of pre-existing railroad right-of-way pursuant to
49 U.S.C. 5324(c). No project development on the acquired railroad
right-of-way may proceed until the NEPA process for such project
development, including the consideration of alternatives, has been
completed.
* * * * *
(d) * * *
* * * * *
(12) Acquisition of land for hardship or protective purposes.
Hardship and protective buying will be permitted only for a particular
parcel or a limited number of parcels. These types of land acquisition
qualify for a CE only where the acquisition will not limit the
evaluation of alternatives, including shifts in alignment for planned
construction projects, which may be required in the NEPA process. No
project development on such land may proceed until the NEPA process has
been completed.
(i) Hardship acquisition is early acquisition of property by the
applicant at the property owner's request to alleviate particular
hardship to the owner, in contrast to others, because of an inability
to sell his property. This is justified when the property owner can
document on the basis of health, safety or financial reasons that
remaining in the property poses an undue hardship compared to others.
(ii) Protective acquisition is done to prevent imminent development
of a parcel which is needed for a proposed transportation corridor or
site. Documentation must clearly demonstrate that development of the
[[Page 44049]]
land would preclude future transportation use and that such development
is imminent. Advance acquisition is not permitted for the sole purpose
of reducing the cost of property for a proposed project.
10. Amend Sec. 771.119 as follows:
a. In paragraph (c), remove the second sentence.
b. In paragraph (g), capitalize the word ``administration''.
c. Add paragraph (j) to read as follows:
Sec. 771.119 Environmental assessments.
* * * * *
(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.
11. Amend Sec. 771.123 by revising paragraphs (a), (b), (c), (d),
(i), and (j) 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. The scoping process will be used to identify 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. For
FHWA, scoping is normally achieved through public and agency
involvement procedures required by Sec. 771.111. For FTA, scoping is
achieved by soliciting agency and public responses to the action by
letter or by holding scoping meetings. 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).
* * * * *
(i) 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.
(j) For FTA-funded major public capital investments, at the
conclusion of the Draft EIS circulation period, approval may be given
to begin preliminary engineering on the principal alternative(s) under
consideration. During the course of such preliminary engineering, the
applicant will refine project costs, effectiveness, and impact
information with particular attention to alternative designs,
operations, detailed location decisions and appropriate mitigation
measures. These studies will be used to prepare the final EIS or, where
appropriate, a supplemental draft EIS.
12. Amend Sec. 771.125 by removing paragraph (c)(3) and revising
paragraphs (a)(1), (c)(1), and (e) to read as follows:
Sec. 771.125 Final environmental impact statements.
(a)(1) After circulation of a draft EIS and consideration of
comments received, a final EIS shall be prepared by the lead agencies,
in cooperation with the applicant (if not a lead agency). The final EIS
shall identify the preferred alternative and evaluate all reasonable
alternatives considered. It shall also discuss substantive comments
received on the draft EIS and responses thereto, summarize public
involvement, and describe the mitigation measures that are to be
incorporated into the proposed action. Mitigation measures presented as
commitments in the final EIS will be incorporated into the project as
specified in Sec. 771.109(b) and (d). The final EIS 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.
* * * * *
(c) * * *
(1) Any action for which the Administration determines that the
final EIS should be reviewed at the Headquarters office. This would
typically occur when the Headquarters office determines that (i)
additional coordination with other Federal, State, or local government
agencies is needed; (ii) the social, economic, or environmental impacts
of the action may need to be more fully explored; (iii) the impacts of
the proposed action are unusually great; (iv) major issues remain
unresolved; (v) the action involves national policy issues; or (vi)
other considerations warrant review at the Headquarters office.
* * * * *
(e) Approval of the final EIS is not an Administration action as
defined in Sec. 771.107(c) and does not commit the Administration to
approve any future grant request to fund the preferred alternative.
* * * * *
13. Revise Sec. 771.129 to read as follows:
Sec. 771.129 Re-evaluations.
(a) After approval of the EIS, 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. These consultations will be documented
when determined necessary by the Administration.
(b) A written evaluation of the draft EIS shall be prepared by the
applicant 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.
(c) A written evaluation of the final EIS will be required before
further approvals may be granted 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 PS&E) have not
occurred within three years after the approval of the final EIS, final
EIS supplement, or the last major Administration approval or grant.
14. Amend Sec. 771.130 as follows:
a. In paragraph (a)(2), revise the word ``bearings'' to read
``bearing''.
b. Revise the first sentence of paragraph (e) to read as follows:
[[Page 44050]]
Sec. 771.130 Supplemental environmental impact statements.
* * * * *
(e) A supplemental draft EIS may be necessary for FTA major public
transportation capital investments if there is a substantial change in
the level of detail on project impacts during project planning and
development. * * *
* * * * *
15. Amend Sec. 771.133 by revising the last sentence to read as
follows:
Sec. 771.133 Compliance with other requirements.
* * * The Administration's approval of a NEPA document constitutes
its finding of compliance with the report requirements of 23 U.S.C.
128.
16. Add Sec. 771.139 to read as follows:
Sec. 771.139 Statute of Limitations.
Notices announcing decisions by the Administration or by other
Federal agencies on a transportation project may be published in the
Federal Register indicating that such decisions are final within the
meaning of 23 U.S.C. 139(l). Claims arising under Federal law seeking
judicial review of any such decisions are barred unless filed within
180 days after publication of the notice. This 180-day time period does
not lengthen any shorter time period for seeking judicial review that
otherwise is established by the Federal law under which judicial review
is allowed.\5\ This provision does not create any right of judicial
review or place any limit on filing a claim that a person has violated
the terms of a permit, license, or approval.
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\5\ The FHWA published a detailed discussion of DOT's
interpretation of 23 U.S.C. 139(l), together with information
applicable to FHWA projects about implementation procedures for 23
U.S.C. 139(l), in Appendix E to the ``SAFETEA-LU Environmental
Review Process: Final Guidance,'' dated November 15, 2006. The
implementation procedures in Appendix E apply only to FHWA projects.
The section 6002 guidance, including Appendix E, is available at
http://www.fhwa.dot.gov//, or in hardcopy by request.
Issued in Washington, DC, this 23rd day of July, 2007.
James S. Simpson,
Administrator, Federal Transit Administration.
Issued in Washington, DC, this 23rd day of July, 2007.
J. Richard Capka,
Administrator, Federal Highway Administration.
[FR Doc. 07-3781 Filed 8-6-07; 8:45 am]
BILLING CODE 4910-57-P