Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 84213 

estimate of 31,878 hours. BIS expects 

the burden hours associated with this 

collection to decrease slightly or have 

limited impact on the existing estimates. 

Any comments regarding the collection 

of information associated with this rule, 

including suggestions for reducing the 

burden, should be sent within 30 days 

of publication of this notice to http:// 

www.reginfo.gov/public/do/PRAMain. 

Find this particular information 

collection by selecting ‘‘Currently under 

30-day Review—Open for Public 

Comments’’ or by using the search 

function. 

List of Subjects in 15 CFR Part 740 

Administrative practice and 

procedure, Exports, Reporting and 

recordkeeping requirements. 

Accordingly, part 740 of the Export 

Administration Regulations (15 CFR 

parts 730–774) are amended as follows: 

PART 740—LICENSE EXCEPTIONS 

■ 1. The authority citation for part 740 

continues to read as follows: 

Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 

4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 

7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 

1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 

3 CFR, 2001 Comp., p. 783. 

■ 2. Section 740.4 is revised to read as 

follows: 

§ 740.4 Shipments to Country Group B 

countries (GBS). 

License Exception GBS authorizes 

exports and reexports to Country Group 

B (see Supplement No. 1 to part 740), 

except Ukraine, of those commodities 

where the Commerce Country Chart 

(Supplement No. 1 to part 738 of the 

EAR) indicates a license requirement to 

the ultimate destination for national 

security reasons only and identified by 

‘‘GBS—Yes’’ on the CCL. See § 743.1 of 

the EAR for reporting requirements for 

exports of certain commodities under 

License Exception GBS. 

■ 3. Section 740.6 is amended by 

revising paragraph (a) introductory text 

to read as follows: 

§ 740.6 Technology and software under 

restriction (TSR). 

(a) Scope. License Exception TSR 

permits exports and reexports of 

technology and software where the 

Commerce Country Chart (Supplement 

No. 1 to part 738 of the EAR) indicates 

a license requirement to the ultimate 

destination for national security reasons 

only and identified by ‘‘TSR—Yes’’ in 

entries on the CCL, provided the 

software or technology is destined to 

Country Group B, except Ukraine. (See 

Supplement No. 1 to part 740.) A 

written assurance is required from the 

consignee before exporting or 

reexporting under this License 

Exception. 

* * * * * 

Supplement No. 1 to Part 740 

[Amended] 

■ 4. Supplement No. 1 to part 740 is 

amended by 

■ a. In the Country Group A table, 

adding ‘‘Cyprus’’ and ‘‘Mexico’’ in 

alphabetical order to Column A:6. 

■ b. In the Country Group B table, 

adding ‘‘Ukraine’’ in alphabetical order; 

■ c. In the Country Group D table, 

removing the entry for ‘‘Ukraine’’; 

Matthew S. Borman, 

Deputy Assistant Secretary for Export 

Administration. 

[FR Doc. 2020–26552 Filed 12–23–20; 8:45 am] 

BILLING CODE 3510–33–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

23 CFR Parts 773 and 778 

Federal Railroad Administration 

49 CFR Part 264 

Federal Transit Administration 

49 CFR Part 662 

[Docket No. FHWA–2016–0037] 

FHWA RIN 2125–AF73; FRA RIN 2130– 

AC66; FTA RIN 2132–AB32 

Program for Eliminating Duplication of 

Environmental Review 

AGENCY: Federal Highway 

Administration (FHWA), Federal 

Railroad Administration (FRA), Federal 

Transit Administration (FTA), U.S. 

Department of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FHWA, FRA, and FTA are 

issuing this final rule to establish the 

regulations governing the DOT Program 

for Eliminating Duplication of 

Environmental Reviews (Pilot Program). 

Section 1309 of the Fixing America’s 

Surface Transportation (FAST) Act, as 

further amended, directed the Secretary 

of Transportation to establish a pilot 

program authorizing up to two States to 

conduct environmental reviews and 

make approvals for projects under State 

environmental laws and regulations, 

instead of the National Environmental 

Policy Act (NEPA), under certain 

circumstances. Section 1309(c) requires 

the Secretary, in consultation with the 

Chair of the Council on Environmental 

Quality (CEQ), to promulgate 

regulations to implement the 

requirements of the Pilot Program, 

including application requirements and 

criteria necessary to determine whether 

State laws and regulations are at least as 

stringent as the applicable Federal law. 

This final rule also implements 

Section 1308 of the FAST Act, which 

amends the corrective action period of 

the Surface Transportation Project 

Delivery Program (Section 327 

Program). 

DATES: This final rule is effective 

January 27, 2021. 

FOR FURTHER INFORMATION CONTACT: For 

FHWA, James Gavin, Office of Project 

Development and Environmental 

Review, (202) 366–1473, or Diane 

Mobley, Office of Chief Counsel, (202) 

366–1366. For FRA, Michael Johnsen, 

Office of Railroad Policy and 

Development, (202) 493–1310, or Chris 

Van Nostrand, Office of Chief Counsel, 

(202) 493–6058. For FTA, Megan Blum, 

Office of Planning and Environment, 

(202) 366–0463, or Mark Montgomery, 

Office of Chief Counsel, 202–366–1017. 

The Agencies are located at 1200 New 

Jersey Ave. SE, Washington, DC 20590. 

Office hours are from 9:00 a.m. to 5:00 

p.m. ET, Monday through Friday, except 

Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 1309 of the FAST Act (Pub. L. 

114–94, 129 Stat. 1312), codified at 23 

U.S.C. 330, established a pilot program 

that allows the Secretary to approve up 

to five States (to include the District of 

Columbia and Puerto Rico) to use one or 

more State environmental laws instead 

of the NEPA process for a State’s 

environmental review of surface 

transportation projects. Section 1309 

required the Secretary, in consultation 

with the Chair of CEQ, to promulgate 

regulations governing the Pilot Program. 

FHWA, FRA, and FTA, herein referred 

to as the ‘‘Agencies’’ or, when singular, 

the ‘‘Agency,’’ are promulgating these 

regulations under a delegation from the 

Secretary. 

This final rule establishes the Pilot 

Program, specifies application 

requirements, and defines the criteria 

the Agencies will use to determine 

whether a State law or regulation is as 

stringent as the Federal requirements 

under NEPA, the procedures 

implementing NEPA, and NEPA-related 

regulations and executive orders. As a 

prerequisite to a State’s participation in 

the Pilot Program, it must have assumed 

the Secretary’s responsibilities for 


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environmental reviews under 23 U.S.C. 

327 (the Section 327 Program). 

After publication of the NPRM, 

Section 578 of the FAA Reauthorization 

Act of 2018 (Pub. L. 115–254) amended 

23 U.S.C. 330(a)(2), reducing the 

number of States eligible to participate 

in the pilot from five to two. In addition, 

it amended 23 U.S.C. 330 (e)(2)(A) and 

(e)(3)(B)(i), changing the statute of 

limitations from 2 years to 150 days as 

set forth in 23 U.S.C. 139(l). In addition, 

CEQ issued a final rule 

comprehensively updating the 

regulations implementing NEPA. 85 FR 

43304 (July 16, 2020). These regulations 

became effective on September 14, 2020. 

In addition to creating the Pilot 

Program authorized under Section 1309, 

the FAST Act also amended 23 U.S.C. 

327, which authorizes DOT’s Section 

327 Program. Notably, section 1308(5) 

changed the termination procedures for 

the Section 327 Program by: (1) 

Lengthening the time the Agencies must 

provide to a State to take corrective 

action following a notice of noncompliance from 30 days to at least 120 

calendar days, and (2) requiring the 

Agencies to provide a detailed 

description of each responsibility in 

need of corrective action, upon the 

request of the Governor of the State. 23 

U.S.C. 327(j)(1). 

Notice of Proposed Rulemaking 

(NPRM) 

On September 28, 2017, the Agencies 

published their NPRM at 82 FR 45220. 

In the NPRM, the Agencies proposed 

regulations to implement the Pilot 

Program and its application and 

stringency requirements, and proposed 

amending the corrective action period 

that the Agencies must provide to a 

State participating in the Section 327 

Program. 

The public comment period closed on 

November 27, 2017. The Agencies 

considered all comments received when 

adopting this final rule. 

Summary of Comments and Responses 

The Agencies received 18 comment 

letters in response to the NRPM from 

the following groups or individuals: 1 

private citizen, 4 surface transportation 

industry interest groups (the American 

Association of State Highway and 

Transportation Officials, the American 

Road and Transportation Builders 

Association, the Association of 

American Railroads, and the Associated 

General Contractors of America), 1 

regional transportation agency (the 

Transportation Corridor Agencies), 2 

States (California Department of 

Transportation and Maryland State 

Highway Administration (MD SHA)), 1 

public transportation agency (the San 

Francisco Municipal Transportation 

Agency), 14 public interest groups (the 

Southern Environmental Law Center, 

the Natural Resources Defense Council, 

Earthjustice, WE ACT for Environmental 

Justice, Earthworks, Environmental Law 

& Policy Center, Waterkeeper Alliance, 

Western Watersheds Project Wilderness 

Workshop, Wyoming Outdoor Council, 

Center for Biological Diversity, Klamath 

Forest Alliance, Save EPA, 

Environmental Protection Information 

Center, and the Defenders of Wildlife), 

2 resource/regulatory agencies (the 

Arizona Fish and Game Department and 

the Department of the Interior), 1 port 

authority (Port of Long Beach), 1 

railroad company (Modesto and Empire 

Traction Company), 3 local governments 

(Orange County Public Works, Orange 

County Transportation Authority, and 

the Contra Costa Transportation 

Authority), and 1 anonymous 

commenter. 

The majority of comments addressed 

several common issues. The following 

section-by-section discussion of changes 

identifies and addresses the significant 

comments received. The Agencies 

responded to all comments except those 

related to § 779.109. CEQ responded to 

the comments related to § 779.109 

because that section addresses CEQ’s 

mandate to develop the criteria 

necessary to determine whether State 

laws and regulations are at least as 

stringent as the applicable Federal law. 

Discussion of Comments Received to 

the NPRM 

Section-by-Section Discussion of 

Changes 

Section 778.101—Purpose 

An anonymous commenter noted 

there is no discussion on the purpose of 

the Pilot Program. The commenter 

recommended that additional 

information be added to 23 CFR 778.101 

entitled ‘‘Purpose.’’ The Agencies 

decline to make the proposed change. 

The statute sets forth the purpose in 

section 1309(a) and requires the 

Secretary to establish the Pilot Program; 

therefore, the Agencies have determined 

a separate purpose section in the 

regulations is unnecessary. However, for 

clarity, the background section of the 

preamble for this final rule explains the 

Pilot Program’s basic purpose and 

history. 

Section 778.103—Eligibility and Certain 

Limitations 

One public transportation agency 

expressed reservations about a State 

transportation agency having the lead 

role in the environmental review and 

approval process, including oversight. 

Specifically, the commenter noted that 

federally funded transit projects located 

outside State rights-of-way do not fall 

within the State departments of 

transportation (State DOT) jurisdiction, 

so the proposed rules could place 

responsibility for environmental 

compliance on an agency that would not 

otherwise have a role in developing or 

approving a proposed project. The 

commenter suggested that additional 

coordination and review periods would 

lengthen the overall time and cost to 

complete the Federal NEPA process for 

transit projects. The public 

transportation agency also noted that, in 

certain States, individual jurisdictions, 

not State DOTs, may implement the 

State’s environmental laws. Under that 

process, the State’s only involvement in 

the environmental review of local 

projects would take place when there is 

a pass-through of FHWA funds, or when 

there is an affected State-owned facility 

or right-of-way. The public 

transportation agency expressed 

concern that adding another reviewer to 

the process would add new 

coordination requirements, leading to a 

lengthened documentation schedule. 

The Pilot Program, as authorized by 

Congress, allows a State—not local 

agencies or jurisdictions—to substitute 

an alternative environmental review and 

approval process for NEPA. However, in 

some situations a State may exercise 

authority under the Pilot Program on 

behalf of a local government pursuant to 

23 U.S.C. 330(h). Consistent with 

§ 778.107(h), a local government must 

request that the State exercise authority 

under the Pilot Program for the local 

government’s locally administered 

projects. If a local government does not 

submit such a request, NEPA, not the 

State’s alternative environmental review 

and approval process, would apply to 

such projects. 

In addition, the Agencies anticipate 

learning whether implementation of the 

Pilot Program has resulted in more 

efficient review of projects and 

identifying any recommendations for 

modifications to the program. 

A surface transportation industry 

interest group commented that in 

implementing the Pilot Program, the 

Agencies should be mindful that the 

Pilot Program’s purpose is to reduce 

delay in the environmental review 

process. The commenter suggested that, 

in determining which States participate 

in the Pilot Program, the Agencies 

should consider whether a State’s 

participation will improve the efficiency 

of the environmental review and 

approval process. In addition, the 

commenter suggested that, if applying a 


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State environmental review process 

would add time or complication to the 

review, NEPA should apply instead. 

The Agencies decline to make the 

proposed change. The criteria for a State 

to receive approval to participate in the 

Pilot Program is established in 23 U.S.C. 

330(d). The Agencies have determined 

that the statute does not permit the 

Agencies to consider a State’s 

demonstrated ability to reduce delays in 

the environmental review process as 

part of the application approval. 

However, the Agencies expect a State 

would consider whether the Pilot 

Program would lead to more efficient 

environmental reviews when deciding 

whether to submit an application. 

One surface transportation industry 

interest group proposed language that 

would exclude FRA or railroad projects 

from the Pilot Program. The surface 

transportation industry interest group 

argued that the Interstate Commerce 

Commission Termination Act of 1994 

(ICCTA), 49 U.S.C. 10501(b), establishes 

a broad preemption standard preventing 

the application of State and local laws 

to rail operations. 

The Agencies decline to make the 

proposed change. While in certain 

circumstances, ICCTA may preempt the 

application of State law under the Pilot 

Program, the Agencies do not believe it 

would do so in every case. Railroad 

projects are potentially eligible to 

participate in the Pilot Program and 

excluding them would be inconsistent 

with the statute. Prior to executing a 

written agreement under § 778.111(d), 

the applicable Agency will conduct a 

fact-specific review to determine the 

appropriateness of applying State law to 

a railroad project or class of railroad 

projects. The review will be based on 

the information the State submits with 

its application and the consideration of 

the law(s) a State identifies pursuant to 

§ 778.105(b), as they may relate to 

ICCTA preemption. In making this 

determination, the applicable Agency 

may consult with the Surface 

Transportation Board. The Agencies 

will memorialize the types of projects to 

which State law will be applied in the 

written agreement. 

A railroad company raised a similar 

concern and asked the Agencies to 

clarify that the Pilot Program would 

apply only to projects requiring both 

State and Federal environmental review, 

and that it would not apply to projects 

that are subject to Federal 

environmental review only. In such 

cases, the commenter suggests that a 

Federal lead Agency would be 

responsible for the environmental 

review, applying Federal law. 

Similar to the Section 327 program, 

the Pilot Program would apply to those 

actions where the State’s approval 

would normally require a Federal 

environmental review by one of the 

Agencies in the event the State was not 

participating in the Pilot Program. The 

statute does not limit the application to 

only those instances where both a State 

and Federal environmental review are 

required. Therefore, the Pilot Program 

would apply when an approval would 

require both a State and a Federal 

environmental review, as well as in 

cases only requiring Federal 

environmental review. The key question 

is whether the project or class of 

projects is within the scope of the 

application and the final written 

agreement. 

A railroad company commented that 

the State of California would not be 

well-suited for the Pilot Program and 

further suggested that if California 

applies and is approved to participate in 

the Pilot Program, then freight rail 

infrastructure projects in California 

should be excluded. 

The Agencies note that 23 U.S.C. 330 

does not give the Agencies discretion to 

preemptively exclude a State from 

participation in the Pilot Program. The 

Agencies will make determinations on a 

State’s participation in the Pilot 

Program only after receiving an 

application and following the process 

described in 23 U.S.C. 330 and 23 CFR 

778.107. 

Two commenters suggested that the 

Agencies create an ‘‘opt-out’’ provision. 

First, a railroad company suggested that 

a project proponent should be able to 

opt out of the Pilot Program at its 

discretion. Second, a public 

transportation agency suggested that 

local agencies should be allowed to opt 

out of the Pilot Program on a project-byproject basis in instances where 

participation in the Pilot Program would 

hinder, rather than streamline, the 

environmental review process. 

Due to logistical and administrative 

complications for the approving Agency 

and the participating State (e.g., 

managing, tracking, or auditing the Pilot 

Program, as appropriate), the Agencies 

decline to create an opt-out provision 

for project proponents or local agencies 

in the Pilot Program. Project sponsors 

concerned with how the Pilot Program 

would apply to their projects should 

coordinate with the State during the 

development of the application to 

ensure their concerns are addressed. 

With respect to the local agencies, the 

Agencies have modified § 778.107(h) by 

adding a new paragraph to require the 

State to provide the Agency with a copy 

of the local government’s written 

request for the State to apply the 

approved alternative review and 

approval procedures to a locally 

administered project. This new 

prerequisite would eliminate the 

possibility that a State could apply the 

Pilot Program to a project or projects 

over the objections of the local agency. 

In addition, the Agencies note that 23 

U.S.C. 330(f) gives a State participating 

in the Pilot Program the discretion to 

apply NEPA instead of the State’s 

alternative environmental review and 

approval procedures. How a State 

would communicate such a decision to 

the Agency and complete the 

environmental review would be further 

defined in the written agreement 

between the State and the approving 

Agency. 

A State suggested the Agencies should 

use the term ‘‘existing’’ rather than 

‘‘alternative’’ when describing the 

State’s environmental review process. 

The commenter suggested that the 

Agencies assume that States applying 

for the Pilot Program have existing 

environmental review and approval 

procedures that will be used to 

substitute for the Federal NEPA process. 

The Agencies decline to make the 

suggested change. The term 

‘‘alternative’’ is consistent with the 

statutory language in 23 U.S.C. 

330(a)(3). As described in statute, the 

term ‘‘alternative environmental review 

and approval procedures’’ means 

substitution of one or more State 

environmental laws and substitution of 

one or more State environmental 

regulations. The Agencies have 

modified § 778.103(a)(4) to use the term 

‘‘alternative’’ rather than ‘‘equivalent’’ 

for consistency. 

A State suggested clarifying the two 

limitations in § 778.103(b) to eliminate 

redundancy because the limitations in 

paragraphs (b)(1) and (b)(2) are the 

same. The Agencies disagree the 

limitations are the same and, therefore, 

decline to make the suggested changes. 

The two limitations in § 778.103(b) 

distinguish the conditions governing a 

State’s participation in the Pilot 

Program. The limitation in paragraph 

(b)(1) identifies which Federal laws the 

State’s alternative environmental review 

and approval procedures may 

substitute, whereas paragraph (b)(2) 

states that such procedures may not 

substitute for other Federal 

environmental laws. However, the 

Agencies have added a clause to (b)(2) 

to provide additional clarity. 

One public transportation agency 

requested the Agencies clarify and 

expand the phrase ‘‘related regulations 

and Executive orders’’ used in 

§ 778.103(b)(1)(iii). The Agencies 


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84216 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

decline to provide an exhaustive list in 

the Pilot Program regulation since 

regulations and executive orders change 

over time. During the negotiation of the 

written agreement, the approving 

Agency will identify which executive 

orders are related and applicable at that 

time and will provide for changes in 

law, including by regulation or 

executive order. 

One local government suggested that 

the regulation should address how the 

Agencies would treat (1) environmental 

documents started before a State 

participates in the Pilot Program and (2) 

environmental documents started 

during a State’s participation in the 

Pilot Program but not completed prior to 

the termination of the written 

agreement. The Agencies intend to 

address those scenarios in the written 

agreements between the approving 

Agency and the State, similar to how 

these situations are treated under the 

existing Section 327 program. This 

approach allows for the desired 

flexibility. 

Section 778.105—Application 

Requirements for Participation in the 

Program 

A local government suggested that the 

regulation address whether each State 

that has already assumed the 

responsibilities under the existing 

Section 327 Program would have to go 

through an application process under 

this Pilot Program. The commenter 

further suggested that, if a separate 

application process is required, the 

regulation should clarify how this 

process would be undertaken and 

whether States would still be able to 

process documents under their existing 

Section 327 Program agreements while 

applying to participate in the Pilot 

Program. 

Pursuant to 23 U.S.C. 330(a)(1) and 

§ 778.103(a)(3), the State must already 

be a participant in the Section 327 

Program to participate in the Pilot 

Program. To participate in the Pilot 

Program, a State must go through a 

separate application process, as 

described in §§ 778.105 and 778.107. 

Although the Pilot Program is intended 

to build on the established 

responsibility assumed by the State 

under the Section 327 Program, the 

programs are different and have separate 

application and participation 

requirements. 

With respect to how a State should 

process documents during the Pilot 

Program application process, the 

Agencies expect the State will continue 

to follow the requirements of its 

executed Section 327 Program 

agreement. In addition, the Section 327 

Program allows a State to take on 

broader environmental review 

responsibilities than can be substituted 

under the Pilot Program. Therefore, it is 

likely the State will retain some 

responsibilities to conduct Federal 

environmental reviews under the 

Section 327 Program, where such 

reviews cannot be substituted by the 

State’s alternative environmental review 

and approval process under the Pilot 

Program. 

Two surface transportation industry 

interest groups noted the proposed 

application requirements call for the 

applicant to provide a ‘‘detailed 

explanation of how the State 

environmental law and regulation 

intended to substitute for a Federal 

environmental requirement is at least as 

stringent as the Federal requirement’’ 

(§ 778.105(b)(4)). The commenters noted 

that wording in the NPRM implies that 

the State must separately demonstrate 

consistency with each Federal 

requirement. In addition, the 

commenters noted that it is more 

practical and consistent with the way 

the stringency criteria are defined to 

allow the application to address 

consistency with the Federal NEPA 

process and 23 U.S.C. 139 requirements 

together by addressing each of the 

stringency criteria listed in the 

regulations. 

The commenters are correct that the 

application should address the criteria 

for determining stringency set forth in 

§ 778.109 as part of the application 

requirements in § 778.105(b)(4). The 

States should include an explanation of 

how the State environmental law or 

regulation satisfies each of the 

stringency criteria in § 778.109. It is the 

Agencies’ expectation that the 

application will identify how the State 

law or regulation meets the criteria; 

however, the Agencies do not expect 

that the State law or regulation will 

have to follow all of the CEQ regulations 

implementing the NEPA standards 

associated with the criteria. As an 

example, the explanation could be in 

the form of a side-by-side comparison or 

walk-through of the stringency 

requirements and the appropriate State 

laws and regulations that meet the 

requirements. However, a State could 

address the application requirement in 

§ 778.105(b)(4) in a different manner if 

the application demonstrates how the 

requirement is met. The Agencies 

expect there will be differences on each 

specific detail of the various criteria, 

and the application process will 

facilitate a discussion with the 

respective States on the specific areas to 

ensure adequacy. 

A State commented that the term 

‘‘classes’’ in § 778.105(b)(5) needs to be 

better defined. The State recommended 

using the terms ‘‘actions’’ or ‘‘class of 

actions.’’ The Agencies decline to make 

the suggested changes because the term 

‘‘classes of projects’’ is the statutory 

term. Further, the terms ‘‘actions’’ and 

‘‘class of actions’’ have different 

meanings under 23 U.S.C. 139. With 

respect to how the Agencies will apply 

the term ‘‘class of projects,’’ the 

Agencies intend to be consistent with 

the Section 327 Program, which uses the 

same term. As defined in 23 CFR part 

773, a class of projects ‘‘means either a 

defined group of projects or all projects 

to which Federal environmental laws 

apply.’’ For purposes of the Pilot 

Program, ‘‘class of projects’’ would be 

defined as ‘‘either a defined group of 

projects or all projects to which NEPA, 

the procedures governing the 

implementation of NEPA and related 

procedural laws under the authority of 

the Secretary, including 23 U.S.C. 109 

and 139, and related regulations and 

Executive orders would apply.’’ This 

definition has been added to 

§ 778.105(b)(5) to provide clarity. 

One public interest group noted that, 

in numerous places, the proposed rule 

requires that the participating State’s 

Attorney General certify that the State 

has certain laws in place. The 

commenter recommended that, in each 

instance, the regulation should require 

identification of the State law(s) that 

form the basis for the certification. The 

Agencies decline the recommendation 

because the Agencies intend to be 

consistent with the requirements in the 

Section 327 Program, which does not 

require a similar identification (see 23 

CFR 773.109(a)(7)). Furthermore, no 

issues have arisen with the State 

certification process under the Section 

327 Program. 

One regional transportation agency 

noted that, according to proposed 

§ 778.105(b)(9)(B), the State must 

consent to exclusive Federal court 

jurisdiction for the compliance, 

discharge, and enforcement of any 

responsibility under the Pilot Program. 

The commenter requested that the 

Agencies clarify that any such lawsuit 

would need to be brought in Federal 

court for Federal court jurisdiction to 

apply and that a lawsuit brought in 

State court against the State 

environmental document would remain 

in State court. 

As described in the NPRM preamble, 

23 U.S.C. 330(e)(1) provides Federal 

district courts with exclusive 

jurisdiction over a State’s compliance, 

discharge, and enforcement of any 

responsibility under the Pilot Program. 


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Section 778.105(b)(9)(B) sets forth the 

application requirements for the Pilot 

Program with respect to waiver of 

sovereignty immunity. 

One public interest group expressed 

support for the requirement that States 

must consent to the jurisdiction of the 

Federal courts to be eligible to 

participate in the Pilot Program. 

However, it recommended that the 

Agencies require that a State have laws 

with a standard of review at least as 

stringent as the Administrative 

Procedure Act (APA). In the alternative, 

if States do not have a State law as 

stringent as the APA, the commenter 

suggested that the Agencies require the 

State to expressly submit to the 

jurisdiction of the APA for judicial 

review. The public interest group also 

suggested that the Agencies clarify 

which laws and standards will govern 

the review of the State laws substituting 

for the NEPA process. Specifically, the 

commenter sought clarification on the 

standards for determining standing and 

the applicability of arbitration. 

The Agencies agree that decisions 

under State law must be reviewable. To 

address the commenter’s concerns, the 

Agencies add a new application 

requirement in § 778.105(b)(9)(D) 

requiring a State to identify the 

jurisdictional requirements and 

standard of review that will be 

applicable to judicial review of 

decisions under the environmental laws 

proposed for substitution under the 

Pilot Program. The Agencies expect the 

information a State provides in response 

to this requirement will address the 

commenter’s concern about identifying 

the applicable standards and 

requirements under the State’s laws. 

One public interest group commented 

that the proposed language does not 

clearly require that a State waive its 

sovereign immunity before participating 

in the Pilot Program. The commenter 

recommended that the Agencies require 

a State to expressly waive immunity 

under each State law that would 

substitute for the Federal NEPA process. 

The commenter further suggested that, 

in some circumstances, the waiver of 

sovereign immunity should apply to the 

State’s equivalent of the APA, which 

‘‘creates the basis for the cause of 

action.’’ Similarly, 13 public interest 

groups commented that the rule should 

clarify that the right to judicial review 

remains when a State has assumed the 

responsibilities of the Secretary. 

An interested State must waive its 

sovereign immunity under the U.S. 

Constitution’s 11th Amendment to the 

extent needed to accept the jurisdiction 

of the Federal courts for the compliance, 

discharge, and enforcement of the 

environmental review responsibilities 

under the Pilot Program. A State’s 

consent to accept the exclusive 

jurisdiction of the Federal courts for 

compliance, discharge, and enforcement 

of any responsibility, as required under 

the Pilot Program, is the functional 

equivalent of the State’s waiver of the 

State’s sovereign immunity. The 

Agencies revised § 778.103(a)(2) to 

clarify that a waiver of sovereign 

immunity is necessary to participate in 

this Pilot Program. The Agencies also 

revised § 778.105(b)(9)(B) to ensure the 

State includes documentation regarding 

the waiver of sovereign immunity as 

part of its application for the Pilot 

Program. This sovereign immunity 

waiver is a significant precondition for 

the State’s participation that may 

require State legislative action (in some 

States gubernatorial action may be 

sufficient). 

A public interest group stated that it 

is important the Agencies ensure a State 

has a law similar to the Equal Access to 

Justice Act. The Agencies lack the 

authority under Section 1309 to require 

a State to have a law similar to the Equal 

Access to Justice Act. The Pilot Program 

covers the substitution of the 

procedures governing the 

implementation of NEPA and related 

procedural laws under the authority of 

the Secretary, including 23 U.S.C. 109 

and 139, and NEPA-related regulations 

and executive orders. It also identifies 

other laws a State must have in place— 

for example, a law comparable to the 

Freedom of Information Act (FOIA). 

However, since the statute does not 

require the State to have a law similar 

to the Equal Access to Justice Act, the 

Agencies cannot impose this 

requirement in a rulemaking as a 

condition of a State’s participation in 

the Pilot Program. 

One State DOT asked whether a State 

must provide a separate consent to 

Federal court jurisdiction in order to 

participate in this Pilot Program where 

the State has already given such consent 

pursuant to the Section 327 Program. 

The Agencies clarify that the 

certification and explanation required 

under § 778.105(b)(9) must be met 

separately for participation in the Pilot 

Program, i.e., the certification and 

explanation must be included in a 

State’s application to participate in the 

Pilot Program. The Agencies 

acknowledge that several States have 

provided this certification and 

explanation with applications to assume 

responsibilities under the Section 327 

Program; however, the Agencies require 

the inclusion of this certification and 

explanation in a State’s application for 

this Pilot Program to facilitate the 

approving Agency’s review of a 

complete application package. 

One public interest group supports 

the requirement that an interested State 

must demonstrate that it has a State 

public records law comparable to FOIA. 

However, the commenter suggested that 

the word ‘‘comparable’’ is ambiguous 

and suggested that the Agencies instead 

consider using the phrase ‘‘at least as 

stringent as the Freedom of Information 

Act (FOIA).’’ The commenter also 

recommended that any decision made 

under the State public records law must 

be reviewable in court. Additionally, the 

commenter recommended that, when 

evaluating a State’s public records law, 

the Agencies ensure that the law 

includes a fee waiver provision, a 

requirement that the State respond to a 

request for records within a specific 

time frame that is no less than the 

Federal 20-day obligation, and a 

requirement that each participating 

State certify that it has sufficient 

resources to comply with the provisions 

of its State public records law. 

The Agencies disagree with the 

commenter’s proposal to require States 

to have laws (and regulations) in effect 

that are at least as stringent as FOIA and 

decline to adopt the three suggested 

requirements. Under 23 U.S.C. 

330(d)(1)(D)(iii)(III)(bb), the Secretary 

must approve a State’s application to 

participate in the Pilot Program if the 

State executed an agreement with the 

Secretary in which the State, among 

other requirements, ‘‘certifies that State 

laws (including regulations) are in effect 

that . . . are comparable to 

[FOIA]. . . .’’ This certification is 

consistent with that required by the 

Section 327 program (23 CFR 

773.106(b)(7)). The statutory language 

does not establish factors to assess 

comparability. However, the Agencies 

have added an additional stringency 

requirement in § 778.109 that applicable 

State law must provide for public access 

to the documentation necessary to 

review the potential impacts of projects. 

One resource/regulatory agency 

commented that there is no mention of 

how the States will coordinate with 

other agencies during environmental 

reviews. The resource/regulatory agency 

recommended that State wildlife 

agencies be identified as cooperating 

agencies based on their regulatory 

authority and special expertise for 

wildlife and wildlife resources for highlevel NEPA analyses. The Agencies 

considered the comment, but decline to 

make the recommended change because 

the identification of cooperating 

agencies is a project-specific 

determination and not appropriate in 

this rulemaking. However, the Agencies 


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note that the stringency criteria in 

§ 778.109 address the need for 

coordination with other agencies, 

including those that have jurisdiction by 

law or special expertise. 

The resource/regulatory agency also 

noted that full public disclosure of 

impacts is a key component of NEPA 

and recommended that States be 

required to analyze impacts to all 

resources required under NEPA. Public 

disclosure and analysis of impacts to 

affected resources is considered as part 

of the evaluation of whether a State law 

or regulation is as stringent as NEPA 

(see §§ 778.109(f)–(i)). 

The same resource/regulatory agency 

recommends revising the requirements 

to direct that environmental review and 

analyses be documented in one allencompassing report in accordance with 

NEPA standards. The CEQ regulations 

implementing NEPA (40 CFR parts 

1500–1508) encourage the concurrent 

preparation and integration of the 

Federal NEPA process with other 

environmental impact analyses and 

surveys and studies required by other 

Federal laws. The CEQ regulations also 

encourage combining documents and 

processes to eliminate duplication and 

reduce paperwork (see 40 CFR 1506.2 

and 1506.4). However, these are best 

practices allowed under the CEQ 

regulations and are appropriately 

addressed in State applications. The 

Agencies, therefore, decline to make the 

commenter’s recommended change. 

Section 778.107—Application Review 

and Approval 

A regional transportation agency and 

a port authority suggest the Agencies 

consider streamlining the application 

and approval process by eliminating the 

separate requirements for a State to seek 

public comment on its application 

before submittal to the Agencies and for 

the Agencies to seek public comment 

before approving or disapproving an 

application. Instead, the commenters 

suggest requiring a State and the 

Agencies to seek one set of public 

comments. Similarly, one State 

questioned the need for two public 

comment periods, noting that 

§ 778.105(b)(7) requires that the State 

seek public input on the application 

prior to submitting it to the approving 

Agency. 

The Agencies decline to make the 

suggested change. Two public comment 

periods are required by 23 U.S.C. 330. 

As reflected in § 778.105(b)(7), 23 U.S.C. 

330(b)(7) requires that the application 

include evidence that the State sought 

and addressed public comments on its 

application. Additionally, as reflected in 

§ 778.107(a), 23 U.S.C. 330(c)(1) and 

(d)(1)(A)–(B) require the Secretary to 

accept and consider public comments 

on applications submitted. These 

requirements are separate; the presubmission comment period provides 

the public an opportunity to inform the 

State’s application, while the postsubmission comment period provides 

the public an opportunity to inform the 

approving Agency’s consideration of the 

application and the terms of the 

agreement with the State. Additionally, 

the second opportunity for public 

comment ensures transparency during 

the approval process. 

A regional transportation agency and 

a port authority recommended that the 

regulations require an approving 

Agency to approve the application 

within 60 days instead of 120 days. The 

Agencies decline the suggested change 

because the timeframe in § 778.107(b) is 

prescribed in the statute. Under 23 

U.S.C. 330(c)(2), the Secretary must 

approve or disapprove an application 

not later than 120 days after the date of 

receipt of an application that the 

Secretary determines is complete. 

A State commented that the 

requirement that a written agreement be 

made between the Governor or Senior 

Transportation Official and the 

approving Agency prior to approval of 

the application appears to be out of 

sequence. The State commented that the 

Agency should approve the application 

before the written agreement between 

the State and the approving Agency is 

finalized. The State also expressed 

confusion with the assertion in 

§ 778.107(f) that the approving Agency’s 

execution of the agreement will 

constitute approval of the application 

and the assertion in § 778.111(b) that, 

after making a decision on an 

application, the approving Agency must 

transmit the decision in writing to the 

State with a statement explaining the 

decision. 

The Agencies decline the 

commenter’s recommendation to 

approve the application prior to 

finalizing the written agreement. 

Section 330(d) of Title 23, U.S.C., 

authorizes approval of an application 

only if the State has executed an 

agreement with the approving Agency 

that memorializes the State’s 

responsibilities under the Pilot Program. 

The Agencies interpret this provision to 

require States to sign a written 

agreement prepared by the approving 

Agency during the approving Agency’s 

application review process to 

demonstrate the State’s ability to 

comply with all Pilot Program 

requirements. The approving Agency 

will sign and execute the agreement 

after the State, and only when it has 

determined approval of the State’s 

application is appropriate. The Agencies 

clarify the approving Agency’s signature 

on and execution of the agreement 

constitutes approval of a State’s 

application. The approving Agency’s 

transmittal of the agreement with the 

approving Agency’s signature will serve 

as the notice of approval required under 

23 U.S.C. 330(c). For clarity, the 

Agencies modify the text of § 778.107(f). 

In a joint letter, 13 public interest 

groups recommended changes to clarify 

the role of the Agencies in the review 

and approval of a State’s application to 

the Pilot Program. The commenters 

noted concerns about the lack of a 

requirement for the Agencies to respond 

to comments received during the public 

comment period following the State’s 

submission of an application. In 

addition, they noted concerns about the 

public’s ability to participate in the 

project-specific review and comment 

process once State environmental laws 

and regulations are substituted for the 

NEPA process under the Pilot Program. 

The Agencies read the statute to 

require the Agency receiving an 

application to accept and consider 

public comments on a State’s 

application, but the statute does not 

require the Agencies to respond to these 

public comments. The Agencies will 

seek and consider public comments 

before taking action on a State’s 

application, consistent with how the 

Agencies seek and consider public 

comments under the Section 327 

Program, and the written agreement 

approving a State’s participation in the 

Pilot Program will address, as 

appropriate, these comments. In 

addition, the Agencies confirm that the 

public will retain the same ability to 

review and comment on projects as 

currently provided under the NEPA 

process per § 778.109(i). Under the 

Section 327 Program, a State that 

assumes responsibility must meet the 

same procedural and substantive 

requirements as if the responsibility was 

carried out by the Secretary. Any 

environmental documentation 

developed under State environmental 

laws and regulations under this Pilot 

Program would still be required to 

comply with the notification, 

publication, and comment procedures 

as would be required under NEPA. 

The public interest groups also 

suggested that the final rule should 

require the Agencies to publish 

approval of the State’s application and 

a copy of the executed agreement in the 

Federal Register and clarify that such 

approval is a final Agency action subject 

to judicial review under the APA. The 

Agencies intend to approve applications 


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for participation in the Pilot Program in 

a manner consistent with that used by 

the Section 327 Program (see 23 U.S.C. 

327(b)(3)), which includes providing 

public notice as required by 23 U.S.C. 

330(c)(1). 

Section 778.109—Criteria for 

Determining Stringency 

A State commented that the § 778.109 

requirements ‘‘are overly detailed and 

may prohibit States from participating’’ 

in the Pilot Program. Rather than 

detailing an exhaustive list of separate 

requirements, the State suggested that 

the State law be evaluated for 

equivalency to the NEPA process as a 

whole, with provisions included in the 

NPRM to address shortcomings or 

deficiencies, should any be identified. 

The State indicated that most of such 

issues could be easily addressed 

through the written agreement. 

Similarly, two surface transportation 

industry interest groups expressed 

concern that the requirement to satisfy 

14 distinct criteria as a ‘‘minimum’’ 

requirement could end up disqualifying 

States from participating in the Pilot 

Program even when the State law is 

‘‘equally as stringent or more stringent 

than NEPA overall.’’ They commented 

that even a State law with extremely 

stringent requirements, such as the 

California Environmental Quality Act 

(CEQA), may require a lower level of 

detail than NEPA in some specific areas. 

These commenters cited CEQ’s 

handbook on NEPA–CEQA integration 

where it points out that the alternative 

analysis and cumulative impact analysis 

under NEPA may need more detail than 

in the CEQA process. The surface 

transportation industry interest groups 

recommended that the final rule include 

language stating that the Agencies will 

base the stringency determination on an 

assessment of the State law as a whole, 

so that minor differences in the level of 

detail required on specific issues do not 

prevent the stringency requirement from 

being met. 

Section 1309(c)(2)(A) of the FAST Act 

requires CEQ to develop the criteria the 

Secretary will use to determine whether 

the State law or regulation is at least as 

stringent as the Federal requirements. 

At a minimum, the criteria for 

determining stringency must provide for 

protection of the environment, provide 

opportunity for public participation and 

comment, allow access to the 

documentation necessary to review the 

potential impacts of projects, and ensure 

consistency of review of projects. A 

broad criterion based on an assessment 

of the State law as a whole would fail 

to establish an objective way to compare 

the State and Federal requirements. For 

example, the State commenters point to 

CEQA as an example of a statute that is 

more stringent than NEPA, but did not 

explain how they arrived at this 

conclusion. In the absence of specific 

criteria to make a comparison, a similar 

conclusory statement could be said for 

many, if not all, of the other State laws 

or regulations that are comparable to 

NEPA. 

The Agencies clarify the expectations 

with regards to policies and guidance 

developed for NEPA for each of these 

criteria. The CEQ analyzed NEPA, the 

Regulations for Implementing the 

Procedural Provisions of NEPA, and 23 

U.S.C. 139 to determine the core 

elements that would ensure protection 

of the environment and consistency of 

review. The CEQ also took into account 

the existing State laws and regulations 

that are comparable to the NEPA 

process. A State law or regulation that 

meets each of the listed general criterion 

would meet the stringency required by 

the statute. The State law or regulation 

would meet the test if the statutory text, 

implementing regulations, policies, or 

guidance address each general criterion 

in § 778.109. The State law or regulation 

does not have to adopt or follow the 

Federal guidance, policy, and 

interpretation used for implementing 

the standard under NEPA. For example, 

the alternatives analysis criterion 

(§ 778.109(e)) would be met if the State 

law or regulation requires alternatives 

evaluation consistent with the criterion, 

but would not need to follow the CEQ 

guidance and interpretation on 

alternatives for NEPA such as those 

available in the 40 Most Asked 

Questions (46 FR 18026 (March 23, 

1981)) or based on NEPA case law. The 

same approach would follow for 

cumulative effects consideration. The 

Agencies do not require the State to 

follow CEQ guidance on cumulative 

effects analyses that is applicable to 

NEPA reviews, nor do they expect the 

cumulative effects case law under NEPA 

to apply to the State law or regulation 

implementation of its cumulative effects 

analysis expectations. 

Proposed Rule § 778.109(a) 

A public interest group expressed 

concerns that subsection (a) of the 

stringency criteria requires States to 

‘‘define the types of actions that 

normally require an environmental 

impact statement.’’ By using the term 

‘‘environmental impact statement,’’ a 

term of art under NEPA, the commenter 

asserts it is unclear whether the rule is 

requiring States to define what types of 

projects would be subject to NEPA 

review overall, or which projects would 

rise to the level of impact necessitating 

an environmental impact statement 

(EIS) rather than an environmental 

assessment (EA) or categorical exclusion 

(CE). The commenter recommended the 

rule make clear that States must first 

define the types of actions that are 

subject to NEPA review and then 

specify the level of documentation that 

will be required for different categories 

of projects. 

The Agencies, revised the language 

for additional clarity. Section 778.109(a) 

does not address the various levels of 

environmental impact evaluations or 

documentation that may be acceptable 

for particular types of projects. Proposed 

section 778.109(a) did not use the 

NEPA-specific term ‘‘environmental 

impact statement’’ to refer to the various 

types of environmental evaluations and 

documents required and produced 

under different State laws and 

regulations. The Agencies expect the 

State laws or regulations to be 

substituted for NEPA to establish which 

actions trigger environmental review. 

Actions requiring environmental review 

should include government-sponsored 

actions, including those receiving 

Federal financial assistance or permits. 

The classification of the appropriate 

environmental impact evaluations or 

documentation required for particular 

types of projects is addressed as part of 

§ 778.109(b). 

Proposed Rule § 778.109(b) 

A public interest group recommended 

amending the last sentence in 

§ 778.109(b) by changing the word 

‘‘should’’ to ‘‘must’’ to ensure that 

scoping for actions that may result in 

significant impacts on the human 

environment is guaranteed to be an 

‘‘open and public process.’’ The 

commenter also suggested the rule 

require participating States to provide 

public notification and public 

involvement, to the extent practicable, 

during the scoping process for State 

environmental reviews equivalent to 

EAs. 

The Agencies agree to change 

‘‘should’’ to ‘‘must’’ in the last sentence 

of § 778.109(b) to mirror the CEQ 

regulations scoping requirements for 

actions with potential significant 

impacts. The Agencies decline to 

require the State to provide public 

notification and public involvement 

during the scoping process for State 

environmental reviews equivalent to 

EAs. The CEQ regulations do not 

include similar requirements for EAs. 

Proposed Rule § 778.109(d) 

A public interest group commended 

the effort in § 778.109(d) to ensure a 

participating State’s objective analysis 


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84220 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

by preventing conflicts of interest from 

affecting environmental reviews and by 

requiring States to certify all 

environmental reviews performed and 

compiled for a project analysis. The 

commenter recommended the Agencies 

further safeguard against State reliance 

on substandard work from outside 

contractors by requiring States to ensure 

the ‘‘professional integrity,’’ including 

‘‘scientific integrity,’’ of the discussions 

and analyses in environmental 

evaluations and documents and to 

document the methodologies used, as 

required under 40 CFR 1502.24 (these 

requirements are now set forth in 40 

CFR 1502.23). The Agencies agree States 

participating in the Pilot Program 

should be required to comply with the 

intent of 40 CFR 1502.23 to protect the 

scientific integrity of environmental 

analyses and methodologies. 

Accordingly, the Agencies are adding 

language to paragraph (f) to address this 

comment. 

Proposed Rule § 778.109(e) 

A public interest group commented 

that, although § 778.109(e) properly 

tailors the evaluation of reasonable 

alternatives to a proposed action’s 

purpose and need, it does not ensure 

that the purpose and need for a project 

will be defined reasonably—a key first 

step in the NEPA process. To ensure 

that environmental reviews under State 

programs are not rendered meaningless 

by purpose and need statements drawn 

so narrowly that the proposed project is 

a foregone conclusion, or so broadly to 

be meaningless, the public interest 

group recommended the Agencies revise 

the rule to clarify that the same rule of 

reason applies to the definition of 

purpose and need and selection of a 

range of alternatives under State 

programs. The commenter also asserted 

it is essential that any State program 

include a requirement similar to CEQ’s 

regulations that mandate a brief 

discussion of the reasons for eliminating 

any alternatives not explored in detail 

in an environmental review document. 

The commenter stressed that only 

through this procedure will the public 

be able to determine if a ‘‘reasonable 

range’’ of alternatives has been 

considered. 

The Agencies decline to make 

changes because the Agencies believe 

the existing language adequately 

addresses the commenter’s concern. 

Proposed Rule § 778.109(f) 

A public interest group commented 

that § 778.109(f) suggests that an 

assessment of reasonably foreseeable 

direct, indirect, and cumulative impacts 

of a proposed action (and any 

reasonable alternatives) should be 

compared with ‘‘existing environmental 

conditions.’’ The commenter noted that 

courts have been clear that the 

environmental effects of the proposed 

action and alternative solutions should 

not be compared with existing 

environmental conditions, but rather 

with the ‘‘baseline’’ or ‘‘no action’’ 

condition described in 40 CFR 

1502.14(d) (now set out at 40 CFR 

1502.14(c)). The public interest group 

added that the proposed rule, therefore, 

requires further clarification, noting that 

where § 778.109(e) does describe the 

baseline ‘‘no action’’ alternative as 

essential to NEPA compliance, the 

introduction in § 778.109(f) of a 

comparison with ‘‘existing 

environmental conditions’’ could result 

in considerable confusion and departure 

from the legal requirements of NEPA. 

While initially a ‘‘no action’’ alternative 

may be the same as ‘‘existing 

conditions,’’ the future analysis that 

NEPA requires will likely require the 

projection of a future ‘‘no action’’ 

baseline that is distinct from ‘‘existing 

conditions.’’ The public interest group 

suggested that the rule be rewritten to 

clarify that the necessary comparison is 

to the ‘‘no action’’ alternative. 

The Agencies agree with the public 

interest group comments that including 

in the criteria the need for comparison 

between the environmental impacts and 

existing environmental conditions was 

confusing. The Regulations for 

Implementing the Procedural Provisions 

of NEPA (40 CFR parts 1500–1508) do 

not have this requirement; rather they 

require comparison among alternatives. 

Therefore, the Agencies revise 

§ 778.109(f) to make this clarification. 

Proposed Rule § 778.109(h) 

A public interest group commended 

the mandate in § 778.109(h), which 

properly requires States to coordinate 

and consult with interested parties. 

However, the public interest group 

noted the words ‘‘adequate’’ and 

‘‘appropriate’’ leave the proposed rule 

vague as to the degree of coordination 

and consultation required. The 

commenter recommended deleting both 

words. The Agencies believe that 

retaining ‘‘adequate’’ is warranted in 

this context. The need for and level of 

participation will depend on the type of 

analysis involved and the specific 

circumstances of the proposed project. 

Similarly, the Agencies believe that 

retaining ‘‘appropriate’’ is warranted 

because the review would not always 

require coordination with all the parties 

mentioned in the paragraph. 

A public interest group expressed 

particular concern that Federal agencies 

should continue to fulfill the 

independent obligation to determine 

whether there is a Tribal interest in an 

undertaking and consult with Tribal 

authorities. The public interest group 

suggested that the regulation should 

make clear that participating States’ 

obligations to consult with Tribal 

authorities are additional to the Federal 

obligation to do so and that the efforts 

should be coordinated. Similarly, in a 

joint letter, 13 public interest groups 

recommended that the proposed rule 

should explicitly acknowledge the 

Federal obligation to consult with 

Tribes regardless of any delegation of 

other responsibilities to States. 

The Agencies agree with the 

comments related to coordination and 

consultation with Tribes. The Federal 

Government’s responsibility to engage 

in government-to-government 

consultation with Tribes is a 

requirement independent of NEPA and, 

therefore, it is not subject to assignment 

under the Pilot Program. It is also 

excluded from the Section 327 Program. 

States must coordinate with Tribes as 

part of their responsibilities to assess 

environmental impacts, but this should 

not be interpreted as assigning the 

Federal Government’s unique 

responsibility to consult with Tribes 

when needed. 

One resource/regulatory agency 

recommended that the term 

‘‘appropriate coordination and 

consultation’’ in § 778.109(h) be 

strengthened to ensure that Federal 

agencies with jurisdiction by law or 

special expertise be invited as 

cooperating agencies to ensure that 

interagency consultation occurs early 

and throughout the environmental 

review process. The Agencies decline to 

make the recommended change. 

Requiring the establishment of 

cooperating agency relationships would 

be overly prescriptive. A State law or 

regulation may provide for establishing 

coordination relationships that are as 

equally effective as the concept of 

cooperating agency under the NEPA 

process. 

In their joint letter, 13 public interest 

groups noted that Congress did not 

authorize delegation of the review 

responsibility of the Environmental 

Protection Agency (EPA). The public 

interest groups recommended that the 

final rule explicitly address the 

requirement that, if a State does not 

incorporate EPA’s review into its NEPA 

process, the applicable Agency will 

have to do so before it can finalize 

project approval. The statue does not 

address the delegation of EPA’s review 

responsibility and it would be 

inappropriate for the Agencies to 


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determine the limitations of another 

Federal Agency’s authority. Therefore, 

the Agencies decline the commenters’ 

proposed edit on this point. 

Proposed Rule § 778.109(i) 

A public interest group commented 

that § 778.109(i) requires that States 

‘‘provide an opportunity for public 

participation and comment that is 

commensurate with the significance of 

the proposal’s impacts on the human 

environment.’’ The public interest group 

commented that this statement is overly 

vague and suggested that the rule must 

establish the bare minimum required for 

public participation, namely: (1) The 

right to notice and comment on draft 

EISs; (2) the right to notice and 

comment on draft EAs where the 

proposed project is controversial or 

where mitigation is relied upon to avoid 

potential significant impacts; and (3) the 

right to view all environmental review 

documents prior to a decision being 

made, including those supporting the 

application of CEs. The commenter also 

suggested that the rule make clear that, 

beyond simply providing an 

opportunity for the public to comment, 

States will ‘‘affirmatively solicit 

comments from persons or organizations 

who may be interested or affected.’’ The 

commenter recommended that the 

proposed rule refer States to the 2016 

report of the Federal Interagency 

Working Group on Environmental 

Justice and its NEPA Committee titled, 

‘‘Promising Practices for Environmental 

Justice Methodologies in NEPA 

Reviews,’’ and subsequent guidance 

from these bodies. The public interest 

group further noted that the rule should 

stress that a State’s duty is not limited 

to allowing for public comment, but that 

it also encompasses a duty to carefully 

consider public comment and respond 

to all comments—including opposing 

viewpoints—in subsequent NEPA 

documents. 

The Agencies decline to make the 

recommended changes. State law or 

regulations may create different 

categories of analysis that would not be 

the same as an EIS, EA, or CE. The 

criteria should be flexible enough to 

allow differences in the categorization 

of environmental analyses. The 

Agencies also do not find it necessary to 

require the same public comment 

standard as NEPA since the State law or 

regulations must have adequate public 

involvement procedures that are as 

equally effective and are consistent with 

State law. 

In their joint letter, 13 public interest 

groups commented that the proposed 

rule should identify specific 

requirements for notice and comment 

that a State must provide to meet the 

guarantees of public participation 

currently provided by NEPA, including 

the right to notice and comment on draft 

EAs and draft EISs, and the right to all 

environmental review documents in 

time for non-expert members of the 

public to understand, assess, and 

provide informed comment on the 

decision being made. 

The Agencies agree with the 

commenters that public participation 

procedures under NEPA are worth 

emulating. However, requiring that a 

State law or regulation adopt the same 

public requirements applicable to NEPA 

ignores the fact that States have their 

own public involvement procedures and 

applicable laws. The State law or 

regulation may have adequate public 

involvement procedures that are equally 

effective. 

The public interest groups also 

requested that a State’s use of CEs be 

limited to those established by Federal 

transportation agencies after public 

notice and comment. The Agencies 

decline this request. If the States in the 

Pilot Program choose to propose and 

develop additional categories of projects 

to exclude from detailed environmental 

analysis under the applicable State law, 

that process would be handled 

consistent with the State’s legal 

authority that was determined to be as 

stringent as NEPA. Once a State is in the 

Pilot Program, it would no longer apply 

Agencies’ CEs. 

Proposed Rule § 778.109(j) 

In their joint letter, 13 public interest 

groups noted that, under existing law, 

other Federal agencies can refer 

environmental reviews to CEQ (see 40 

CFR 1504.3). The public interest groups 

commented that the final rule should 

also address the requirement that, if a 

Federal agency refers concerns about a 

proposed project to CEQ, CEQ must 

resolve those concerns before the project 

is approved. The Agencies agree that a 

referral process should be part of the 

stringency criteria and revise the 

regulation in § 778.109(j) to add a 

referral process. However, the Agencies 

believe that requiring the same referral 

process as required for the Federal 

NEPA process would be overly 

prescriptive. A State law or regulation 

may provide for a referral process that 

is as equally effective as the referral 

process under 40 CFR part 1504. 

Proposed Rule § 778.109(l) 

A public interest group noted the rule 

should make clear that supplemental 

environmental documents must be 

‘‘prepared and circulated in a similar 

fashion’’ to the original environmental 

documents. The Agencies believe that 

this proposed change would be overly 

restrictive. Requiring that a State law or 

regulation adopt the same circulation 

requirement applicable to NEPA ignores 

the fact that States have their own 

public involvement procedures and 

applicable laws. The State law or 

regulation may have adequate public 

involvement procedures that are equally 

effective. Although the Agencies are not 

making changes in response to the 

commenter, the Agencies intend to 

consider each State application’s 

treatment of this issue by evaluating the 

alternative environmental review and 

approval procedures that States propose 

in their applications to the Pilot 

Program and through the review process 

established in § 778.111. 

Proposed Rule § 778.109(m) 

A public interest group noted that 

§ 778.109(m) risks seriously 

undermining the effectiveness of the 

proposed rule because it requires 

procedures to ‘‘facilitate process 

efficiency’’ without requiring that any 

such abbreviated procedures be at least 

as protective as their Federal 

equivalents. The public interest group 

commented that this subsection has the 

potential to become a large loophole for 

a State inclined to avoid environmental 

reviews by, for example, designating 

excessively large categories of actions 

exempt, conducting overly broad 

programmatic reviews, or similar 

actions. The commenter suggested that 

§ 778.109(m) should be removed 

entirely, or at least any requirement to 

adopt abbreviated procedures should be 

separated from the stringency analysis. 

Beyond that, the commenter 

recommended the rule should make 

clear that any procedures set in place to 

‘‘facilitate process efficiency’’ must be at 

least as stringent as their Federal 

equivalents. 

The Agencies decline to make the 

proposed changes. The Agencies and 

CEQ have pursued measures to make 

the process more efficient, starting with 

Executive Order 11514 onward to the 

latest efforts captured in Executive 

Order 13807, as well as regulations 

implementing the Moving Ahead for 

Progress in the 21st Century Act (MAP– 

21) and the FAST Act. The public 

comment process on State guidance and 

procedures, along with judicial review, 

provide the appropriate check on 

attempts to avoid compliance with 

applicable environmental reviews. 

Furthermore, as part of ongoing 

monitoring, the Agencies maintain the 

opportunity to provide oversight of any 

updated State environmental review 

procedures. 


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Additional Requirements 

In their joint letter, 13 public interest 

groups recommended that 2 additional 

elements that are part of the current 

NEPA process be added to what is 

required in a State submission: (1) A 

requirement that the State review 

address disproportionate impacts on 

low-income and minority populations, 

and (2) an enforceable requirement that, 

when avoiding potentially significant 

impacts, any mitigation measures 

identified in the State review be 

incorporated as conditions of approval 

in the Federal decision that the State 

review supports. Similarly, a public 

interest group commented that the rule 

should make clear that States have a 

responsibility to address 

disproportionate impacts on minority 

and low-income communities. 

The Agencies decline to make the 

proposed changes. First, the Agencies 

acknowledge the commenter’s concern 

regarding the consideration of 

disproportionate impacts on minority 

and low-income communities and note 

they must be evaluated as part of the 

environmental review process per 

Executive Order 12898. While this is a 

process typically integrated into the 

NEPA process, it is not one that may be 

substituted under this Pilot Program. 

However, State agencies continue to 

have this responsibility and must 

comply with the Federal standard. 

Second, allowing a project with 

potential significant impacts to proceed 

with an EA and a Finding of No 

Significant Impact instead of an EIS, if 

there are mitigation commitments that 

reduce the impacts below the threshold 

of significance, is a NEPA-specific 

concept. There may be some State laws 

or regulations that allow a similar 

process, but this would be subject to 

State law. The Agencies are not 

requiring the adoption of the same 

concepts of EIS, EA, and CE as in the 

NEPA process and, therefore, do not 

believe that there is a need to require 

this NEPA-specific concept from State 

law or regulations. 

The public interest groups also 

requested clarification on the role of 

Federal agencies in project approval. 

The commenters noted that Congress 

provided States the opportunity to stand 

in the shoes of the Secretary for 

compliance with other Federal 

environmental laws as well as NEPA (23 

U.S.C. 327(a)(2)(B)(i)). This could 

include, for example, the obligation to 

consult with U.S. Fish & Wildlife 

Service under the Endangered Species 

Act. It could also possibly include 

compliance with the National Historic 

Preservation Act. The project approval, 

however, remains with the Secretary. 

The commenters recommended that the 

proposed rule should explicitly state so 

to avoid any confusion. 

The Agencies agree with the 

commenters regarding project approval, 

but do not find that any additional 

clarification is needed. The procedures 

for the Section 327 Program make clear 

that the only assignable responsibilities 

under the Section 327 Program are the 

environmental review responsibilities; 

project approvals are not authorized to 

be assigned under the Section 327 

Program (see 23 CFR 773.105(b)(5)). 

With regard to the Pilot Program, 

§§ 778.101 and 778.103(b) make clear 

that the only requirements being 

substituted are those related to NEPA. 

One local government recommended 

that the Pilot Program regulations 

include an allowance for granting 

environmental review exemptions for 

categories of projects that have been 

determined not to have a significant 

effect on the environment. The Agencies 

find that this suggestion is addressed in 

§ 778.109(b) (classification of the 

appropriate assessment of 

environmental impacts) and 

§ 778.109(m) (categories of action). 

However, the Agencies want to 

highlight that, as with a CE under 

NEPA, these are not exemptions from 

the applicability of the State law or 

regulation, but rather are situations 

where the analysis is more limited and 

where consideration of extraordinary 

circumstances evaluation is warranted. 

Section 778.111—Review and 

Terminations 

One local government suggested that 

the proposed rule should provide what 

the compliance and reporting measures 

would be for States participating in the 

Pilot Program. The Agencies 

acknowledge the comment and agree 

States participating in the Pilot Program 

should be informed about required 

compliance and reporting measures. 

The Agencies believe that the 

appropriate place to do this is the 

written agreement consistent with the 

Section 327 Program. In addition, the 

Agencies want to further clarify that the 

frequency of review of the State’s 

performance in implementing the 

requirements of the Pilot Program will 

be determined as necessary by the 

approving Agency and included in the 

written agreement. 

One public interest group noted 

concerns about the mechanisms for 

ensuring State compliance with the 

proposed review and the termination 

requirements, including the public’s 

opportunity to provide input, and 

recommended many changes. The 

Agencies agree that monitoring and 

auditing each approved State’s 

performance implementing the Pilot 

Program is critical to its success, and the 

Agencies possess the right and 

responsibility to terminate a State’s 

participation in the Pilot Program early 

(see § 778.111(c)). The Agencies will 

provide the necessary compliance and 

reporting measures as part of the written 

agreement required between the 

approving Agency and the State. 

In their joint letter, 13 public interest 

groups noted that the proposed rule fails 

to provide the public an opportunity to 

petition the Secretary to rescind 

approval for a State to participate in the 

Pilot Program, stating that such 

opportunity is a fundamental aspect of 

delegation of other authority to States to 

implement and enforce environmental 

laws. The Agencies determine that a 

public or formal petition process is not 

necessary or supported by statute. 

However, the public can submit 

concerns regarding a State’s 

implementation of the Pilot Program to 

the Secretary at any time. In addition, 

the Agencies note that, under 

§ 778.111(b), the Agencies must review 

each participating State’s performance 

in implementing the requirements of the 

Pilot Program at least once every 5 years 

and must provide notice and an 

opportunity for public comment during 

that review. 

Section 778.111—Review and 

Terminations 

One State noted concerns with 

termination of the Pilot Program after 12 

years of enactment of the FAST Act. 

Specifically, the commenter indicated 

participation in the Pilot Program would 

likely require it to revise its processes 

and procedures for completing 

applicable environmental review under 

existing regulations and, therefore, the 

definable and finite termination of the 

Pilot Program after 12 years under 

§ 778.111 would place a burden on the 

State to revise its regulations again to 

account for Pilot Program termination. 

The commenter also noted termination 

of the Pilot Program after 12 years could 

confuse staff and resource agencies 

required to switch between legal 

standards. The Agencies acknowledge 

the concern; however, the termination 

provision is prescribed by the statute. 

Congress mandated in 23 U.S.C. 330(k) 

that the Pilot Program terminate 12 

years after the date the FAST Act was 

signed into law. The Agencies have 

added a new section to address the 

termination of the Pilot Program and a 

sunset of the regulations absent 

Congressional action to extend the 

program. 


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Locally Administered Projects 

A public transportation agency and a 

port authority requested that the 

Agencies clarify that States can change 

the local governments that participate in 

the Pilot Program, as needed, provided 

the total number of local governments 

participating at one time does not 

exceed 25. The Agencies decline to 

provide additional clarification in the 

regulation. Under § 778.107(h), a State is 

responsible for ensuring that the 

requirements of the approved 

alternative State procedures are met 

when applying the alternative 

procedures to locally administered 

projects. Procedures for identifying the 

local governments participating in the 

Pilot Program will be defined in the 

written agreement between the State 

and the approving Agency. 

One State requested that the provision 

that limits the application to only 25 

local government agencies be 

eliminated, noting that other Stateadministered Federal programs, such as 

the Recreational Trails Program, do not 

include this limitation. Section 

778.107(h) is consistent with the statute. 

Accordingly, the Agencies decline the 

suggested change. The number of local 

governments participating in the Pilot 

Program is limited by 23 U.S.C. 

330(h)(1), which specifies that a State 

with an approved Pilot Program, at the 

request of a local government, may 

exercise authority under that program 

for up to 25 local governments for 

locally administered programs. 

One public interest group noted that 

the proposed rule provides little detail 

beyond the text of 23 U.S.C. 330(h) 

about how States and local governments 

might apply the alternative 

environmental review and approval 

procedures to locally administrated 

projects. The commenter noted the 

proposed rule does not describe or limit 

which projects or local governments 

may qualify for or be eligible to 

implement the State’s alternative 

environmental review and approval 

procedures, nor does the proposed rule 

define ‘‘locally administered project’’ or 

‘‘local government.’’ 

The Agencies decline to provide 

additional clarification of the terms 

‘‘locally administered project’’ and 

‘‘local government’’ in the regulation 

due to differing program definitions and 

requirements among the Agencies, but 

may define expectations regarding 

locally administered projects and local 

governments in the written agreement. 

Under the Pilot Program, the State is the 

responsible party that must meet the 

Pilot Program requirements. Any local 

governments participating in the Pilot 

Program may conduct the 

environmental analyses or reviews, but 

the State is responsible for ensuring that 

the requirements of the approved 

alternative State procedures are met for 

those projects (see § 778.107(h)). 

A local government suggested that the 

Agencies consider requiring States to 

participate in the Pilot Program so that 

local agencies, which are responsible for 

delivering local transportation projects, 

can benefit from the Pilot Program. The 

commenter also noted that, if State 

participation in the Pilot Program is 

optional, local agencies should be given 

the opportunity to demonstrate their 

ability to participate in the Pilot 

Program. Similarly, another local 

government commented that the Pilot 

Program should provide administrative 

delegation of the proposed regulations 

to a local agency to further streamline 

the process and review of 

environmental documents. 

The Agencies acknowledge the 

commenters’ interest in the Pilot 

Program and concerns with the 

proposed rule. However, 23 U.S.C. 

330(a) only allows, and does not 

require, States to participate in the Pilot 

Program. The scope of the Pilot Program 

in relation to locally administered 

projects is established by 23 U.S.C. 

330(h). It provides that a State with an 

approved program, at the request of a 

local government, may exercise 

authority under that program on behalf 

of up to 25 local governments for locally 

administered projects and, for up to 25 

local governments selected by a State 

participating in the Pilot Program, the 

State shall be responsible for ensuring 

compliance with Federal and State law 

and the Pilot Program. 

Statutes of Limitations 

Several commenters raised concerns 

with the statute of limitations in the 

proposed rule. A public transportation 

agency commented that the 2-year 

statute of limitations established under 

Section 1309 of the FAST Act is a 

deterrent to participation in the Pilot 

Program. A surface transportation 

industry interest group noted the statute 

of limitations for any claims challenging 

actions taken by a State under the Pilot 

Program is different from the 150-day 

period that otherwise would apply to 

claims challenging actions taken by 

State agencies approving a highway or 

transit project under the Section 327 

Program. The surface transportation 

industry interest group commented that 

the disparity between these two statutes 

of limitations means that a lawsuit 

challenging a single State decision 

approving a highway or transit project 

could be subject to two different 

limitations periods; a 2-year period 

relative to a State’s action under the 

State law substituted for NEPA, and a 

150-day period relative to State’s action 

under other Federal laws not covered by 

the Pilot Program (e.g., 49 U.S.C. 303, 

commonly known as ‘‘Section 4(f)’’). To 

provide clarity for applicants and for 

States participating in the Pilot Program, 

the commenter recommended that the 

Agencies include a section in the 

regulations specifically addressing the 

issuance of statute of limitations notices 

under the Pilot Program. The surface 

transportation industry interest group 

commented that the regulations should 

confirm that the State can still issue a 

150-day statute of limitations notice for 

all actions taken by the State or other 

Federal agencies under other Federal 

laws. 

Similarly, a State seeks clarification 

on whether the statute of limitations is 

two years following the publication in 

the Federal Register of the Notice of 

Final Federal Agency Action. The 

commenter also noted that, if the statute 

of limitations under the Pilot Program is 

set at two years, this is significantly 

longer than the 150-day period currently 

afforded to other surface transportation 

projects by MAP–21. The State DOT 

commented that, in order to streamline 

project delivery, the statute of 

limitations under the Pilot Program 

should be the same period established 

by the State law that will be used to 

substitute for NEPA, or the 150-day 

period established by MAP–21, 

whichever period is shorter. A local 

government also suggested the Pilot 

Program consider adopting the 150-day 

statute of limitations for NEPA actions 

and decisions, provided a Notice of 

Final Agency Action is placed in the 

Federal Register. A local government, a 

regional transportation agency, and a 

port authority all commented that, since 

the Pilot Program would allow States to 

substitute their environmental review 

procedures for Federal procedures, the 

State’s statute of limitations should 

apply to legal challenges related to the 

environmental review. Finally, a public 

interest group sought clarification on 

the applicable statute of limitations. 

After publication of the NPRM, 

Section 578 of the FAA Reauthorization 

Act of 2018 (Pub. L. 115–254) amended 

23 U.S.C. 330(a)(2), reducing the 

number of States eligible to participate 

in the pilot from five to two. In addition, 

it amended 23 U.S.C. 330 (e)(2)(A) and 

(e)(3)(B)(i), changing the statute of 

limitations from two years to 150 days 

as set forth in 23 U.S.C. 139(l). This 

statutory change regarding the 

applicable statute of limitations is 

reflected in the rulemaking and 


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84224 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

otherwise responds to and clarifies the 

comments received regarding the 

applicable statute of limitations. 

Environmental Permits 

A regional transportation agency and 

a port authority commented that there 

were benefits to be realized from State 

and local governments using State 

environmental review procedures to 

satisfy the NEPA process. However, 

these two commenters expressed 

concerns that the State and local 

governments may not be able to obtain 

required permits from Federal resource 

agencies if the State reviews are not 

given the required deference. The two 

commenters stated that approved State 

and local governments in the Pilot 

Program should be treated the same as 

a Federal participating agency. Under 

the Pilot Program, the Agencies intend 

for the approved State agency to have 

the same standing as would a lead 

Federal agency under the NEPA process. 

This intent also applies to those local 

governments or locally administered 

projects that are subject to the approved 

Pilot Program application and written 

agreement, though the State will retain 

the responsibility for ensuring the 

requirements of the approved 

alternative State procedures are met. 

One local government noted that 

Federal environmental resource agency 

review and approvals to obtain 

environmental permits continue to be a 

challenge and suggested the Pilot 

Program consider streamlining Federal 

environmental resource agency 

approvals and potentially assign 

environmental permitting to the State. 

Similarly, a public transportation 

agency recommended that States look 

for ways to maximize and utilize a 

project’s environmental document for 

not only NEPA, but also for other 

Federal agency reviews and permitting 

requirements, in order to minimize 

duplicative efforts and streamline the 

environmental review process. While 

these comments are outside the scope of 

this rule, the Agencies direct the 

commenters to Executive Order 13807 

and its corresponding One Federal 

Decision memorandum of 

understanding, which aim to condense 

Federal environmental review and 

authorization (e.g., permitting) decisions 

to the maximum extent practicable. 

Performance Measurement 

A surface transportation industry 

interest group and a local government 

suggested that the Agencies establish a 

system for tracking and benchmarking 

the performance of the Pilot Program. 

The two commenters noted this system 

would allow DOT and Congress to 

compare the Pilot Program’s timelines 

with those of States and the Federal 

Government applying NEPA 

requirements. Similarly, a private 

citizen noted the Pilot Program can 

provide key data regarding the 

possibility of saving money, whether 

State laws can substitute Federal 

environmental laws, and whether this 

program impacts project delivery. The 

private citizen recommended that DOT 

be sure to maintain careful records 

about the successes and failures of the 

Pilot Program to help determine 

whether the Pilot Program should be 

extended to more States. 

Per 23 U.S.C. 330(j), the Agencies 

must submit a report to Congress that 

describes the administration of the Pilot 

Program. As such, the Agencies will 

collect the necessary data and 

information needed to comply with 

these requirements. However, the 

Agencies do not believe it is necessary 

to address data collection for the Pilot 

Program in regulation. 

Miscellaneous 

A private citizen expressed support 

for the proposed rulemaking and its 

attempt to aid in the reduction of 

duplicative environmental reviews at 

the State and Federal levels. The citizen 

also noted that the reduction in 

environmental reviews and subsequent 

potential cost savings could lead to a 

reallocation of increased transportation 

funding for infrastructure. The 

individual requested that the Agencies 

seek to expand the Pilot Program 

beyond five States to gain a better 

understanding of the efficacy of the 

Pilot Program across the country since 

limiting it to only five States could 

create a limited data set to analyze. The 

Agencies note that the limit of State 

participation is based upon a statutory 

mandate in 23 U.S.C. 330(a)(2), which 

the FAA Reauthorization Act of 2018 

reduced to two States. This rulemaking 

is consistent with that statute. 

49 CFR Part 264 

The Agencies are modifying the 

heading and list of authorities to align 

with the Final Rule published on 

October 29, 2018 (83 FR 54480). These 

changes are administrative in nature. 

Rulemaking Analyses and Notices 

Statutory/Legal Authority for This 

Rulemaking 

The Agencies have the authority for 

this rulemaking action under 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’ 

Administrators 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].’’ 

Rulemaking Analyses and Notices 

The Agencies considered all 

comments received before the close of 

business on the comment closing date 

indicated above. The comments are 

available for examination in the docket 

(FHWA–2017–20561) at 

www.regulations.gov. The Agencies also 

considered comments received after the 

comment closing date to the extent 

practicable. 

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 

that this action would not be a 

significant regulatory action under 

section 3(f) of Executive Order 12866 

and would not be significant within the 

meaning of U.S. Department of 

Transportation Regulatory Policies and 

Procedures. Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. This action 

complies with Executive Orders 12866 

and 13563. 

Executive Order 13771 (Reducing 

Regulation and Controlling Regulatory 

Costs) 

This final rule is considered an E.O. 

13771 deregulatory action. The 

Agencies expect minor cost savings 

from this rulemaking that cannot be 

quantified. 

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 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 


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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 rule addresses application 

requirements for States wishing to 

participate in the Pilot Program. As 

such, it affects only States, and States 

are not included in the definition of 

small entity set forth in 5 U.S.C. 601. 

Therefore, the Regulatory Flexibility Act 

does not apply, and the Agencies certify 

that this action would not have a 

significant economic impact on a 

substantial number of small entities. 

Unfunded Mandates Reform Act of 

1995 

This final rule would not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 109 Stat. 48). This final 

rule will not result in the expenditure 

by State, local, and Tribal governments, 

in the aggregate, or by the private sector, 

of $155 million or more in any one year 

(2 U.S.C. 1532). In addition, the 

definition of ‘‘Federal mandate’’ in the 

Unfunded Mandates Reform Act 

excludes financial assistance of the type 

in which State, local, or Tribal 

governments have authority to adjust 

their participation in the program in 

accordance with changes made in the 

program by the Federal Government. 

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 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 final rule would not preempt any 

State law or State regulation or affect the 

States’ ability to discharge traditional 

State governmental functions. 

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 

Executive Order 13211 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) 

DOT’s regulations implementing 

Executive Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities (49 CFR 

part 17) apply to this program. The 

Agencies solicited comments on this 

issue with the proposed rulemakings 

but did not receive any comments 

pertaining to Executive Order 12372. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from the Office of Management and 

Budget for each collection of 

information they conduct, sponsor, or 

require through regulations. The 

Agencies have determined that this final 

rule 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 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.(e)(2)). 

This action qualifies for CEs under 23 

CFR 771.116(c)(15) (promulgation of 

rules), 23 CFR 771.117(c)(20) 

(promulgation of rules, regulations, and 

directives) and 771.117(c)(1) (activities 

that do not lead directly to 

construction), 23 CFR 771.118(c)(4) 

(planning and administrative activities 

which do not involve or lead directly to 

construction). The Agencies have 

evaluated whether this action would 

involve unusual or extraordinary 

circumstances and have determined that 

this action would not involve such 

circumstances. 

Under the Pilot Program, a selected 

State may conduct environmental 

reviews and make approvals for projects 

under State environmental laws and 

regulations instead of NEPA. These 

State environmental laws and 

regulations must be at least as stringent 

as the Federal requirements. As a result, 

the Agencies find that this rulemaking 

would not result in significant impacts 

on the human environment. 

Regulation Identifier Number 

A regulation identifier number (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 773 

Environmental protection, Surface 

Transportation Project Delivery Program 

application requirements and 

termination, Highways and roads 

23 CFR Part 778 

Environmental protection, eliminating 

duplication of environmental reviews 

pilot program, Highways and roads 

49 CFR Part 264 

Environmental protection, 

Eliminating duplication of 

environmental reviews pilot program, 

Railroads 

49 CFR Part 622 

Environmental protection, 

Environmental impact and related 

procedures, Public transportation, 

Transit 


tkelley on DSKBCP9HB2PROD with RULES
84226 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

Issued in Washington, DC, under authority 

delegated in 49 CFR 1.81(a)(5), 1.85, and 

1.91: 

Nicole R. Nason, 

Administrator, Federal Highway 

Administration. 

Quintin C. Kendall, 

Deputy Administrator, Federal Railroad 

Administration. 

K. Jane Williams, 

Deputy Administrator, Federal Transit 

Administration. 

For the reasons set out in the 

preamble the Federal Highway 

Administration mends title 23, chapter 

I of the Code of Federal Regulations as 

follows: 

TITLE 23—HIGHWAYS 

PART 773—SURFACE 

TRANSPORTATION PROJECT 

DELIVERY PROGRAM APPLICATION 

REQUIREMENTS AND TERMINATION 

■ 1. The authority citation for part 773 

continues to read as follows: 

Authority: 23 U.S.C. 315 and 327; 49 CFR 

1.81(a)(4)–(6); 49 CFR 1.85. 

■ 2. Amend § 773.117 by revising 

paragraph (a)(2) and adding paragraph 

(a)(3) to read as follows: 

(a) * * * 

(2) The Operating Administration(s) 

may not terminate a State’s participation 

without providing the State with 

notification of the noncompliance issue 

that could give rise to the termination, 

and without affording the State an 

opportunity to take corrective action to 

address the noncompliance issue. The 

Operating Administration(s) must 

provide the State a period of no less 

than 120 days to take corrective actions. 

The Operating Administration(s) is 

responsible for making the final 

decision on whether the corrective 

action is satisfactory. 

(3) On the request of the Governor of 

the State (or in the case of the District 

of Columbia, the Mayor), the Operating 

Administration(s) shall provide a 

detailed description of each 

responsibility in need of corrective 

action regarding an inadequacy 

identified by the Operating 

Administration(s). 

* * * * * 

■ 3. Add part 778 to read as follows: 

PART 778—PILOT PROGRAM FOR 

ELIMINATING DUPLICATION OF 

ENVIRONMENTAL REVIEWS 

Sec. 

778.101 Purpose. 

778.103 Eligibility and Certain Limitations. 

778.105 Application requirements for 

participation in the Pilot Program. 

778.107 Application review and approval. 

778.109 Criteria for Determining 

Stringency. 

778.111 Review and Termination. 

778.113 Program Termination and 

Regulations Sunset 

Authority: 23 U.S.C. 330; 49 CFR 1.81. 

§ 778.101 Purpose. 

The purpose of this part is to establish 

the requirements for a State to 

participate in the Pilot Program for 

eliminating duplication of 

environmental reviews (‘‘Pilot 

Program’’), authorized under 23 U.S.C. 

330. The Pilot Program allows States to 

conduct environmental reviews and 

make approvals for projects under State 

environmental laws and regulations 

instead of the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et 

seq.). 

§ 778.103 Eligibility and Certain 

Limitations. 

(a) Applicants. To be eligible for the 

Pilot Program, a State must: 

(1) Act by and through the Governor 

or top-ranking State transportation 

official who is charged with 

responsibility for highway construction; 

(2) Consent to a waiver of its 

sovereign immunity for the compliance, 

discharge, and enforcement of any 

responsibility under this Pilot Program; 

(3) Have previously assumed the 

responsibilities of the Secretary under 

23 U.S.C. 327 related to environmental 

review, consultation, or other actions 

required under certain Federal 

environmental laws; and 

(4) Identify laws authorizing the State 

to take the actions necessary to carry out 

the alternative environmental review 

and approval procedures under State 

laws and regulations. 

(b) Certain Limitations. (1) State 

environmental laws and regulations 

may only be substituted as a means of 

complying with: 

(i) NEPA; 

(ii) Procedures governing the 

implementation of NEPA and related 

procedural laws under the authority of 

the Secretary, including 23 U.S.C. 109, 

128, and 139; and 

(iii) Related regulations and executive 

orders. 

(2) Compliance with State 

environmental laws and regulations 

may not substitute for the Secretary’s 

responsibilities regarding compliance 

with any other Federal environmental 

laws other than those set forth in (b)(1). 

§ 778.105 Application requirements for 

participation in the Pilot Program. 

(a) To apply to participate in the Pilot 

Program, a State must submit an 

application to the applicable Operating 

Administration(s) (i.e., FHWA, FRA, or 

FTA). 

(b) Each application submitted must 

contain the following information: 

(1) A full and complete description of 

the alternative environmental review 

and approval procedures, including: 

(i) The procedures the State uses to 

engage the public and consider 

alternatives to the proposed action; and 

(ii) The extent to which the State 

considers environmental consequences 

or impacts on resources potentially 

impacted by the proposed actions (such 

as air, water, or species). 

(2) Each Federal environmental 

requirement the State is seeking to 

substitute, within the limitations of 

§ 778.103(b); 

(3) Each State environmental law and 

regulation the State intends to substitute 

for a Federal environmental 

requirement, within the limitations of 

§ 778.103(b); 

(4) A detailed explanation (with 

supporting documentation, incorporated 

by reference where appropriate and 

reasonably available) of the basis for 

concluding the State environmental law 

or regulation intended to substitute for 

a Federal environmental requirement is 

at least as stringent as that requirement; 

(5) A description of the projects or 

classes of projects (defined as either a 

defined group of projects or all projects 

to which NEPA, the procedures 

governing the implementation of NEPA 

and related procedural laws under the 

authority of the Secretary, including 23 

U.S.C. 109 and 139, and related 

regulations and Executive orders would 

apply) for which the State would 

exercise the authority that may be 

granted under the Pilot Program; 

(6) Verification that the State has the 

financial and personnel resources 

necessary to fulfill its obligations under 

the Pilot Program; 

(7) Evidence that the State has sought 

public comments on its application 

prior to the submittal and the State’s 

response to any comments it received; 

(8) A point of contact for questions 

regarding the application and a point of 

contact regarding potential 

implementation of the Pilot Program (if 

different); 

(9) Certification and explanation by 

the State’s Attorney General or other 

State official empowered by State law to 

issue legal opinions that bind the State: 

(i) That the State has legal authority 

to enter into the Pilot Program; 

(ii) That the State waives its sovereign 

immunity to the extent necessary to 

consent to exclusive Federal court 

jurisdiction for the compliance, 

discharge, and enforcement of any 

responsibility under this Pilot Program; 


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Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 84227 

(iii) That the State has laws that are 

comparable to the Freedom of 

Information Act, 5 U.S.C. 552 (FOIA), 

including laws that allow for any 

decision regarding the public 

availability of a document under those 

laws to be reviewed by a court of 

competent jurisdiction; 

(iv) Identifying within the State’s laws 

the jurisdictional requirements and 

standards of review applicable to 

judicial review of decisions under the 

environmental laws proposed for 

substitution under the Pilot Program; 

and 

(10) The State Governor’s (or in the 

case of the District of Columbia, the 

Mayor’s) or the State’s top-ranking 

transportation official’s signature 

approving the application. 

§ 778.107 Application review and approval. 

(a) The Operating Administration 

must solicit public comments on the 

application and must consider 

comments received before making a 

decision to approve or disapprove the 

application. Materials made available 

for this public review must include the 

State’s application and supporting 

materials. 

(b) After receiving an application the 

Operating Administration deems 

complete, the Operating Administration 

must make a decision on whether to 

approve or disapprove the application 

within 120 calendar days. The 

Operating Administration must transmit 

the decision in writing to the State with 

a statement explaining the decision. 

(c) The Operating Administration will 

approve an application only if it 

determines the following conditions are 

satisfied: 

(1) The State is party to an agreement 

with the Operating Administration 

under 23 U.S.C. 327; 

(2) The Operating Administration has 

determined, after considering any 

public comments received, the State has 

the capacity, including financial and 

personnel, to undertake the alternative 

environmental review and approval 

procedures; and 

(3) The Operating Administration, in 

consultation with the Office of the 

Secretary, with the concurrence of the 

Chair of CEQ, and after considering 

public comments received, has 

determined that the State environmental 

laws and regulations described in the 

State’s application are at least as 

stringent as the Federal requirements for 

which they substitute. 

(d) The State must enter into a written 

agreement with the Operating 

Administration. 

(e) The written agreement must: 

(1) Be executed by the Governor (or in 

the case of the District of Columbia, the 

Mayor) or top-ranking transportation 

official in the State charged with 

responsibility for highway construction; 

(2) Provide that the State agrees to 

assume the responsibilities of the Pilot 

Program, as identified by the Operating 

Administration; 

(3) Provide that the State, in 

accordance with the sovereign 

immunity waiver process required by 

State law, expressly consents to and 

accepts Federal court jurisdiction with 

respect to compliance, discharge, and 

enforcement of any responsibility 

undertaken as part of the Pilot Program; 

(4) Certify that State laws and 

regulations exist that authorize the State 

to carry out the responsibilities of the 

Pilot Program; 

(5) Certify that State laws and 

regulations exist that are comparable to 

FOIA (5 U.S.C. 552), including a 

provision that any decision regarding 

the public availability of a document 

under the State laws and regulations is 

reviewable by a court of competent 

jurisdiction; 

(6) Contain a commitment that the 

State will maintain the personnel and 

financial resources necessary to carry 

out its responsibilities under the Pilot 

Program; 

(7) Have a term of not more than 5 

years, the term of a State’s agreement 

with the Operating Administration in 

accordance with 23 U.S.C. 327, or a 

term ending on December 4, 2027, 

whichever is sooner; and 

(8) Be renewable. 

(f) The State must execute the 

agreement before the Operating 

Administration executes the agreement. 

The Operating Administration’s 

execution of the agreement and 

transmittal to the State will constitute 

approval of the application. 

(g) The agreement may be renewed at 

the end of its term, but may not extend 

beyond December 4, 2027. 

(h) A State approved to participate in 

the Pilot Program may apply the 

approved alternative environmental 

review and approval procedures to 

locally administered projects, for up to 

25 local governments at the request of 

those local governments. For such 

locally administered projects, the State 

shall be responsible for ensuring that 

the requirements of the approved 

alternative State procedures are met. 

§ 778.109 Criteria for determining 

stringency. 

To be considered at least as stringent 

as a Federal requirement under this 

Pilot Program, the State laws and 

regulations, must, at a minimum: 

(a) Define the types of actions that 

normally require an assessment of 

environmental impacts, including 

government-sponsored projects such as 

those receiving Federal financial 

assistance or permit approvals. (42 

U.S.C. 4332(2)(C); 40 CFR 1501.1(a)(4), 

1501.3, 1507.3(e)(2)(i), 1508.1(q); 

(b) Ensure an early process for 

determining the scope of the action and 

issues that need to be addressed, 

identifying the significant issues, and 

for the classification of the appropriate 

assessment of environmental impacts in 

accordance with the significance of the 

likely impacts. For actions that may 

result in significant impacts on the 

environment, the scoping process must 

be an open and public process. (23 

U.S.C. 139(e); 40 CFR 1501.5, 1501.9, 

1506.6, 1507.3(c), 1507.3(e), 1508.1(y), 

and 1508.1(cc)); 

(c) Prohibit agencies and 

nongovernmental proponents from 

taking action concerning the proposal 

until the environmental impact 

evaluation is complete when such 

action would: 

(1) Have adverse environmental 

impacts or 

(2) Limit the choice of reasonable 

alternatives. (40 CFR 1506.1 and 

1506.11(b)). 

(d) Protect the integrity and 

objectivity of the analysis by requiring 

the agency to take responsibility for the 

scope and content of the analysis, and 

by preventing conflicts of interest 

among the parties developing the 

analysis and the parties with financial 

or other interest in the outcome of the 

project. (42 U.S.C. 4332(2)(D); 40 CFR 

1506.5); 

(e) Based on a proposed action’s 

purpose and need, require objective 

evaluation of reasonable alternatives to 

the proposed action (including the 

alternative of not taking the action) if it 

may result in significant impacts to the 

environment or, for those actions that 

may not result in significant impacts, 

consideration of alternatives if they will 

involve unresolved conflicts concerning 

alternative uses of available resources 

(42 U.S.C. 4332(2)(C)(iii); 42U.S.C. 

4332(2)(E); 23 U.S.C. 330(b)(1)(A); 40 

CFR 1502.13, and 1502.14); 

(f) Using procedures that ensure 

professional and scientific integrity of 

the discussions and analysis, require an 

assessment of the changes to the human 

environment from the proposed action 

or alternatives that are reasonably 

foreseeable and have a reasonably close 

causal relationship to the proposed 

action or alternatives. (42 U.S.C. 

4332(2)(C); 23 U.S.C. 330(b)(1)(B); 40 

CFR 1501.5(c)(2), 1502.16, 1502.23, and 

1508.1(g); 


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84228 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

(g) Require the consideration of 

appropriate mitigation for the impacts 

associated with a proposal and 

reasonable alternatives (including 

avoiding, minimizing, rectifying, 

reducing or eliminating the impact over 

time, and compensating for the impact) 

(40 CFR 1502.14(e), 1502.16(a)(9), and 

1508.1(s)); 

(h) Provide for adequate interagency 

participation, including appropriate 

coordination and consultation with 

State, Federal, Tribal, and local agencies 

with jurisdiction by law, special 

expertise, or an interest with respect to 

any environmental impact associated 

with the proposal, and for collaboration 

that would eliminate duplication of 

reviews. For actions that may result in 

significant impacts to the environment, 

the process should allow for the 

development of plans for interagency 

coordination and public involvement, 

and the setting of timetables for the 

review process (42 U.S.C. 4332(2)(C); 23 

U.S.C. 139(d) and 139(g); 40 CFR 

1500.5(g), 1501.8, 1501.9(b), 1502.174, 

and part 1503); 

(i) Provide an opportunity for public 

participation and comment that is 

commensurate with the significance of 

the proposal’s impacts on the 

environment, and require public access 

to the documentation developed during 

the environmental review and a process 

to respond to public comments (42 

U.S.C. 4332(2)(C); 23 U.S.C. 

330(b)(1)(A); FAST Act, Sec. 

1309(c)(2)(B)(ii); 40 CFR 1502.20, part 

1503, and 1506.6; and Executive Order 

11514, Sec.1(b)); 

(j) Provide for public access to the 

documentation necessary to review the 

potential impacts of projects; 

(k) Include procedures for the 

elevation, resolution, and referral of 

interagency disputes prior to a final 

decision on the proposed project (23 

U.S.C. 139(h); 40 CFR part 1504); 

(l) For the conclusion of the 

environmental review process, require a 

concise documentation of findings (for 

actions that would not likely result in 

significant impacts to the environment) 

or, for actions that may result in 

significant impacts, a concise record 

that states the agency decision that: 

(1) Identifies all alternatives 

considered (specifying which were 

environmentally preferable), 

(2) Identifies and discusses all factors 

that were balanced by the agency in 

making its decision and states how 

those considerations entered into the 

decision, 

(3) States whether all practicable 

means to avoid or minimize 

environmental harm have been adopted, 

and if not, why they were not; and 

(4) Describes the monitoring and 

enforcement program that is adopted, 

where applicable, for any mitigation (40 

CFR 1501.6(c), 1505.2, and 1505.3). 

(m) Require the agency to supplement 

assessments of environmental impacts if 

there are substantial changes in the 

proposal that are relevant to 

environmental concerns or significant 

new circumstances or information 

relevant to environmental concerns and 

have a bearing on the proposed action 

or its impacts. (23 U.S.C. 330(e)(3); 40 

CFR 1502.9(d)); and 

(n) Allow for the use of procedures to 

facilitate process efficiency, such as 

tiering, programmatic approaches, 

adoption, incorporation by reference, 

approaches to eliminate duplication 

with other Federal requirements, and 

special procedures to address 

emergency situations. Where the 

procedures allow for the identification 

and establishment of categories of 

actions that normally do not have a 

significant impact on the environment 

and are therefore excluded from further 

review, ensure that the procedures 

require the consideration of 

extraordinary circumstances that would 

warrant a higher level of analysis in 

which a normally excluded action may 

have a significant environmental effect. 

(23 U.S.C. 139(b)(3); 40 CFR 1500.4, 

1500.5, 1501.4, 1501.11, 1501.12, 

1502.24, 1506.2, 1506.3, and 1506.4). 

§ 778.111 Review and termination. 

(a) Review. The Operating 

Administration must review each 

participating State’s performance in 

implementing the requirements of the 

Pilot Program at least once every 5 

years. 

(1) The Operating Administration 

must provide notice and an opportunity 

for public comment during the review. 

(2) At the conclusion of its last review 

prior to the expiration of the term, the 

Operating Administration may extend a 

State’s participation in the Pilot 

Program for an additional term of not 

more than 5 years (as long as such term 

does not extend beyond the termination 

date of the Pilot Program) or terminate 

the State’s participation in the Pilot 

Program. 

(b) Early Termination. (1) If the 

Operating Administration, in 

consultation with the Office of the 

Secretary and the Chair of CEQ, 

determines that a State is not 

administering the Pilot Program 

consistent with the terms of its written 

agreement, or the requirements of this 

part or 23 U.S.C. 330, the Operating 

Administration must provide the State 

notification of that determination. 

(2) After notifying the State of its 

determination under paragraph (c)(1), 

the Operating Administration must 

provide the State a maximum of 90 days 

to take the appropriate corrective action. 

If the State fails to take such corrective 

action, the Operating Administration 

may terminate the State’s participation 

in the Pilot Program. 

§ 778.113 Program termination and 

regulations sunset. 

(a) In General. The Pilot Program shall 

terminate December 4, 2027, unless 

Congress extends the authority under 23 

U.S.C. 330. 

(b) Sunset. Unless Congress extends 

the authority for the Pilot Program that 

sunsets 12 years after the date of 

enactment, this rule shall expire on 

December 4, 2027. 

For the reasons set out in the 

preamble the Federal Railroad 

Administration amends 49 CFR part 264 

as follows: 

TITLE 49—TRANSPORTATION 

PART 264—ENVIRONMENTAL IMPACT 

AND RELATED PROCEDURES 

■ 4. The authority citation for part 264 

is revised to read as follows: 

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 

303; 23 U.S.C. 139, 327, 330; 40 CFR parts 

1500–1508; 49 CFR 1.81; Pub. L. 112–141, 

126 Stat. 405, Section 1319; and Pub. L. 114– 

94, 129 Stat. 1312, Sections 1309, 1432, 

11502, and 11503. 

■ 5. Revise § 264.101 to read as follows: 

§ 264.101 Cross reference to 

environmental impact and related 

procedures. 

The procedures for complying with 

the National Environmental Policy Act 

of 1969, as amended (42 U.S.C. 4321 et 

seq.), and related statutes, regulations, 

and orders are set forth in part 771 of 

title 23 of the Code of Federal 

Regulations. The procedures for 

complying with 49 U.S.C. 303, 

commonly known as ‘‘Section 4(f),’’ are 

set forth in part 774 of title 23 of the 

Code of Federal Regulations. The 

procedures for complying with the 

Surface Transportation Project Delivery 

Program application requirements and 

termination are set forth in part 773 of 

title 23 of the CFR. The procedures for 

participating in and complying with the 

program for eliminating duplication of 

environmental reviews are set forth in 

part 778 of title 23 of the CFR. 

For the reasons set forth in the 

preamble, the Federal Transit 

Administration amends 49 CR part 622 

as follows: 


tkelley on DSKBCP9HB2PROD with RULES
Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 84229 

PART 622—ENVIRONMENTAL IMPACT 

AND RELATED PROCEDURES 

Subpart A—Environmental Procedures 

■ 7. The authority citation for subpart A 

of part 622 is revised to read as follows: 

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 

303 and 5323(q); 23 U.S.C. 139, 326, 327, and 

330; Pub. L. 109–59, 119 Stat. 1144, Sections 

6002 and 6010; 40 CFR parts 1500–1508; 49 

CFR 1.81; Pub. L. 112–141, 126 Stat.405, 

Sections 1315, 1316, 1317, and 1318; and 

Pub. L. 114–94, Section 1309. 

■ 8. Revise § 622.101 to read as follows: 

§ 622.101 Cross-reference to procedures. 

The procedures for complying with 

the National Environmental Policy Act 

of 1969, as amended (42 U.S.C. 4321 et 

seq.), and related statutes, regulations, 

and Executive Orders are set forth in 

part 771 of title 23 of the CFR. The 

procedures for complying with 49 

U.S.C. 303, commonly known as 

‘‘Section 4(f),’’ are set forth in part 774 

of title 23 of the CFR. The procedures 

for complying with the Surface 

Transportation Project Delivery Program 

application requirements and 

termination are set forth in part 773 of 

title 23 of the CFR. The procedures for 

participating and complying with the 

program for eliminating duplication of 

environmental reviews are set forth in 

part 778 of title 23 of the CFR. 

[FR Doc. 2020–26395 Filed 12–23–20; 8:45 am] 

BILLING CODE 4910–22–P 

DEPARTMENT OF JUSTICE 

Office of the Attorney General 

28 CFR Part 0 

[Docket No. OAG 162; AG Order No. 4926– 

2020] 

Approval of Civil Consent Decrees 

With State and Local Governmental 

Entities 

AGENCY: Office of the Attorney General, 

Justice. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

regulations of the Department of Justice 

(‘‘Department’’) setting forth the 

approval procedures to be used when a 

civil action against a State or local 

governmental entity is resolved by 

consent decree, prior to the finalization 

of that agreement. 

DATES: This rule is effective December 

28, 2020. 

FOR FURTHER INFORMATION CONTACT: J. 

Taylor McConkie, Deputy Associate 

Attorney General, Department of Justice, 

Washington, DC 20530; telephone: (202) 

514–9500 (not a toll-free number). 

SUPPLEMENTARY INFORMATION: In 

enforcing Federal law, the Department 

may bring lawsuits against State and 

local governmental entities. State 

governments are sovereigns with special 

and protected roles under our 

constitutional order. Accordingly, the 

Department must ensure that its 

practices in such cases are in the 

interests of justice, transparent, and 

consistent with the impartial rule of law 

and fundamental constitutional 

principles, including federalism and 

democratic control and accountability. 

On November 7, 2018, Attorney 

General Jeff Sessions issued a 

memorandum (‘‘November 7 

memorandum’’ or ‘‘memorandum’’) to 

the heads of the Department’s civil 

litigating components and the United 

States Attorneys addressing many of the 

particular considerations arising when a 

civil action against a State or local 

government is resolved by consent 

decree or settlement agreement. 

Principles and Procedures for Civil 

Consent Decrees and Settlement 

Agreements with State and Local 

Government Entities (Nov. 7, 2018) 

(available at https://www.justice.gov/ 

opa/press-release/file/1109681/ 

download). 

As that memorandum explained, 

while consent decrees may be necessary 

and appropriate to secure compliance 

with Federal law, Federal court decrees 

that impose wide-ranging and long-term 

obligations on, or require ongoing 

judicial supervision of, State or local 

governments are extraordinary remedies 

that ‘‘raise sensitive federalism 

concerns.’’ Id. at 2 (citing Horne v. 

Flores, 557 U.S. 433, 448 (2009)). It is 

appropriate that the Department should 

exercise special caution before entering 

into a consent decree with a State or 

local governmental entity. While such 

consent decrees can be appropriate 

settlement vehicles in limited 

circumstances, they should be 

employed carefully and only after 

review and approval of senior 

leadership of the Department. Id. at 3– 

4. 

To that end, the November 7 

memorandum set forth important 

principles to guide the development of 

consent decrees with State or local 

governmental entities, including 

limitations on the circumstances in 

which a consent decree with a State or 

local governmental entity may be 

appropriate, the substantive 

requirements for such consent decrees, 

internal notification requirements 

regarding the initiation of negotiation 

for consent decrees, and a requirement 

of review and approval of senior 

leadership of the Department before a 

consent decree is agreed to by the 

United States or submitted to the court 

for entry. 

The principles of the November 7 

memorandum are applicable, by its 

terms, to all civil litigation conducted 

by the Department that involves any 

civil consent decrees or settlement 

agreements with State or local 

governmental entities. However, it is 

appropriate to amend the Department’s 

settlement regulations to effectuate one 

aspect addressed by the memorandum, 

i.e., the requirement for leadership 

approval of consent decrees prior to the 

agreement or submission to a court for 

entry. As noted in the memorandum 

(pages 2 n.3 and 3 n.4), the 

Department’s existing regulations on the 

delegation of settlement authority 

govern the requirements for certain 

settlements to be approved by the 

Department’s senior leadership. This 

final rule amends the existing 

settlement regulations to add a new 

paragraph codifying the requirement for 

the relevant Assistant Attorney General 

of the civil litigating division (or the 

United States Attorney to whom 

settlement authority has been 

redelegated under 28 CFR 0.168) to 

approve and submit consent decrees 

involving State or local government 

entities for approval by the Deputy 

Attorney General or the Associate 

Attorney General if the consent decree 

would (1) place a court in a long-term 

position of monitoring compliance by a 

State or local governmental entity; (2) 

create long-term structural or 

programmatic obligations, or long-term, 

indeterminate financial obligations, for 

a State or local governmental entity; or 

(3) otherwise raise novel questions of 

law or policy that merit review by 

senior Department leadership. However, 

consistent with the November 7 

memorandum at page 3 n.5, this new 

approval requirement does not apply 

where use of a consent decree is 

required by statute or regulation or the 

consent decree is limited to the payment 

of a sum certain of money or 

performance of a specific environmental 

removal action. 

Accordingly, to achieve the foregoing 

objectives, before a consent decree that 

comes within one of the categories set 

forth above is agreed to by the United 

States or submitted to a court for entry, 

it must be approved by the United 

States Attorney or the Assistant 

Attorney General for the litigating 

component responsible for the subject 

matter of the consent decree and by the 

Deputy Attorney General or the 


tkelley on DSKBCP9HB2PROD with RULES