33960 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 771, 1420, and 1430

Federal Transit Administration

23 CFR Parts 1420 and 1430

49 CFR Parts 622 and 623

[FHWA Docket No. FHWA–99–5989 ]

FHWA RIN 2125–AE64; FTA RIN 2132–AA43

NEPA and Related Procedures for

Transportation Decisionmaking,

Protection of Public Parks, Wildlife and

Waterfowl Refuges, and Historic Sites

AGENCIES: Federal Highway

Administration (FHWA), Federal

Transit Administration (FTA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM); request for comments.

SUMMARY: The FHWA and the FTA are

issuing this notice of proposed

rulemaking to update and revise their

National Environmental Policy Act of

1969 (NEPA) implementing regulation

for projects funded or approved by the

FHWA and the FTA. The current

regulation was issued in 1987 and

experience since that time as well as

changes in legislation, most recently by

the Transportation Equity Act for the

21st Century (TEA–21), call for an

updated approach to implementation of

NEPA for FHWA and FTA projects and

actions. Under this proposed

rulemaking, the FHWA/FTA regulation

for implementing NEPA would be

redesignated and revised to further

emphasize using the NEPA process to

facilitate effective and timely

decisionmaking.

This NPRM is being issued

concurrently with another notice of

proposed rulemaking on metropolitan

and statewide transportation planning.

This coordinated approach to

rulemaking will further the goal of the

FTA and the FHWA to better coordinate

the results of the planning processes

with project development activities and

decisions associated with the NEPA

process.

DATES: Comments must be received on

or before August 23, 2000. For dates of

public information meetings see

SUPPLEMENTARY INFORMATION.

ADDRESSES: Submit written, signed

comments to the docket number

appearing at the top of this document.

You must submit your comments to the

Docket Clerk, U.S. DOT Dockets, Room

PL–401, 400 Seventh Street, SW.,

Washington, DC 20590–0001. All

comments will be available for

examination at the above address

between 9 a.m. and 5 p.m., e.t., Monday

through Friday, except Federal holidays.

To receive notification of receipt of

comments you must include a preaddressed, stamped envelope or

postcard. For addresses of public

information meetings see

SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: For

the FHWA: Mr. Fred Skaer, (202) 366–

2058, Office of Planning and

Environment, HEPE, or Mr. L. Harold

Aikens, (202) 366–0791, Office of the

Chief Counsel, HCC–31. For the FTA:

Mr. Joseph Ossi, (202) 366–0096, Office

of Planning, TPL–22, or Mr. Scott Biehl,

(202) 366–0952, Office of the Chief

Counsel, TCC–30. Office hours are from

7:45 a.m. to 4:15 p.m., e.t., Monday

through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users may access all

comments received by the U.S. DOT

Dockets, Room PL401, by using the

universal resource locator (URL):http://

dms.dot.gov. It is available 24 hours

each day, 365 days each year. Please

follow the instructions online for more

information and help.

An electronic copy of this document

may be downloaded by using a modem

and suitable communications software

from the Government Printing Office’s

Electronic Bulletin Board Service at

(202) 512–1661. Internet users may

reach the Office of the Federal Register’s

home page at: http://www.nara.gov/

fedreg and the Government Printing

Office’s database at: http://

www.access.gpo.gov/nara.

Contents of Preamble

• Background on the NEPA Rule

• Overall Strategy for Regulatory

Development

• Relationship to U.S. DOT’s Statewide

and Metropolitan Planning Regulation and

other Rulemaking Efforts

• Section-by-Section Analysis of the

Proposed Rule for NEPA and Related

Procedures for Transportation

Decisionmaking

• Section-by-Section Analysis of the

Proposed Rule for Protection of Public Parks,

Wildlife and Waterfowl Refuges, and Historic

Sites.

Public Information Meetings

We will hold a series of seven public

briefings within the comment period for

the NPRM. The purposes of these

briefings is to explain the content of the

NPRM and encourage public input to

the final rulemaking. The meetings will

address this NPRM, the companion

NPRM on the metropolitan and

statewide planning process and the

NPRM on Intelligent Transportation

Systems Architecture consistency. The

meetings will be scheduled from

approximately 8 a.m. to 5 p.m. at the

locations listed below. Changes in the

information below will be made

available after the publication of this

NPRM through the FHWA and the FTA

websites, other public announcement

avenues and the newsletters and

websites of major stakeholder groups.

Individuals wishing information but

without access to these sources may

contact the individuals listed above.

The structure of the meetings will

emphasize brief presentations by the

DOT staff regarding the content of the

NPRM. A period for clarifying questions

will be provided. Under current

statutory and regulatory provisions, the

DOT staff will not be permitted to

engage in a substantive dialog regarding

what the content of the NPRMs and the

final regulations should be. Attendees

wishing to express ideas and thoughts

regarding the final content of the rules

should direct those comments to the

docket. Briefing sites will include:

Boston, MA, Auditorium, Volpe

National Transportation Systems Center,

55 Broadway, June 9, 2000; Atlanta, GA,

Westin Peachtree Plaza Hotel, 210

Peachtree Street, June 20, 2000;

Washington, D.C., Marriott Metro

Center, 775 12th Street, NW, June 23,

2000; Chicago, IL, Holiday Inn Mart

Plaza, 350 North Orleans Street, June 27,

2000; Denver, CO, Marriott City Center,

1701 California Street, June 30 , 2000;

Dallas, TX, Hyatt Regency Hotel Dallas,

300 Reunion Boulevard, July 11, 2000;

and, San Francisco, CA, Radisson

Miyako, 1625 Post Street, July 19, 2000.

As part of the outreach process

planned for these proposed rules, the

FHWA/FTA will be conducting a

national teleconference on June 15, 2000

from 1 to 4 p.m., e.t., through the

auspices of the Center for

Transportation and the Environment at

North Carolina State University. The

teleconference will be accessible

through numerous downlink locations

nationwide and further information can

be obtained from Ms. Katie McDermott

at kpm@unity.ncsu.edu or (919) 515–

8034. The purpose of the teleconference

is to describe the proposed new

statewide and metropolitan planning,

NEPA implementation, and Intelligent

Transportation Systems (ITS) rules.

An overview of each of the three

notices of proposed rulemakings

(NPRMs) will be presented and the

audience (remote and local) will have

opportunities to ask questions and seek

clarification of FHWA/FTA proposals.

By sponsoring this teleconference it is

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33961

hoped that interest in the NPRMs is

generated, that stakeholders will be well

informed about FHWA/FTA proposals,

and that interested parties will

participate in the rulemaking process by

submitting written suggestions,

comments and concerns to the docket.

Background

The FHWA and the FTA propose to

update and revise the current regulation

and guidance implementing the NEPA

(42 U.S.C. 4321 et seq.) for

transportation projects using Federal

funds or requiring Federal approval.

In this notice of proposed rulemaking,

we are clearly communicating that our

NEPA responsibilities include an

affirmative duty to facilitate the

development of transportation proposals

which represent responsible

stewardship of community and natural

environmental resources. In the 13 years

since the NEPA regulation was last

issued, the nature of the highway and

transit programs has evolved to reflect

our country’s changing transportation

needs and the impact that the

transportation network can have on a

complex set of environmental,

community, and economic

considerations. What has not changed is

the role of State and local officials and

Federal land management agency

decision makers to define transportation

investment strategies, plan for a future

transportation system that best reflects

their community needs, and select and

set priorities for transportation projects.

The NPRM was developed by an

interagency Task Force of the FHWA

and the FTA with input from other DOT

modal agencies, the U.S. Environmental

Protection Agency (EPA), other Federal

agencies and the Office of the Secretary,

U.S. DOT. The Task Force reviewed all

input received from the outreach

process which is described below and

through other sources that communicate

regularly with U.S. DOT. In addition,

input was provided from the field staff

of the FHWA and the FTA.

Over the past thirteen years we have

developed an increased understanding

of effective environmental analysis, a

greater commitment to prevention of

adverse environmental impacts, and a

realization of the increased value of

integrated agency and public

coordination. Given these

developments, our role to ensure that

transportation projects are developed

through a more effective and

collaborative NEPA process at the State,

local, and Federal levels becomes that

much more pivotal. Our environmental

rule reflects the understanding that

NEPA is an important tool for helping

make transportation decisions, rather

than justifying decisions already made.

In addition, we believe that a more

coordinated approach to planning and

project development (the NEPA process

plus additional project level actions

needed to prepare for project

implementation) will contribute to more

effective and environmentally sound

decisions regarding investment choices

and trade-offs.

By including the environmental

streamlining provision in TEA–21,

section 1309 of Public Law 105–178,

112 Stat. 108 at 232, the Congress

intended that transportation planning

and environmental considerations be

better coordinated and that project

delivery schedules be improved through

a process that is efficient,

comprehensive, and streamlined.

Growing awareness of the need for a

Federal role that would oversee

development of a coordinated

environmental review process is

tempered with congressional intent that

State and local decisions be respected.

The most important Federal role in the

transportation decisionmaking process

is one where the FHWA and the FTA

would facilitate other Federal agencies’

early involvement and participation in

NEPA activities so that redundant

processes are identified and avoided.

We will, in our role as lead agencies,

highlight opportunities to use NEPA as

a mechanism to address statutory

responsibilities at Federal, State, and

local levels of government. During the

TEA–21 outreach process, there has

been very strong support from our

transportation and environmental

partners for a better managed NEPA

process which reflects these basic

features: coordination, flexibility, and

efficiency.

For these reasons, it is clear that a

fundamentally new approach to NEPA

is needed, one that emphasizes strong

environmental policy, collaborative

program solving approaches involving

all levels of government and the public

early in the process, and integrated and

streamlined coordination and

decisionmaking processes. Proposed

approaches are included in this notice

of proposed rulemaking. This NPRM

fully supports ‘‘protection and

enhancement of communities and the

natural environment,’’ one of five U.S.

DOT strategic goals. Translating this

strategic direction into day-to-day

operations requires that appropriate

changes be made to regulations and

nonregulatory operating guidance.

Overall Strategy for Regulatory

Development

Our strategy for regulatory

development has three principal

elements: (1) Outreach and listening to

stakeholders; (2) developing

improvements that will allow the

FHWA, the FTA, States and

metropolitan areas to demonstrate

measurable progress toward achieving

congressional intent and objectives; and

(3) seeking ways to improve

coordination and performance, both

internally and with our Federal partner

agencies.

Input to Development of Notice of

Proposed Rulemaking

We have used several venues to

obtain feedback on how to improve the

administration of NEPA. Of principal

importance was the NEPA 25th

Anniversary Workshop held in

Chattanooga, Tennessee in 1995.

Participants included a diverse group of

governmental and nongovernmental

individuals representing transportation

and community interests, as well as

those interested in protecting the

natural environment. The blueprint

document that resulted from the NEPA

Workshop underscores the need for a

fundamentally new approach to NEPA,

one that focuses on decisionmaking

rather than compliance.

The FHWA and the FTA, in concert

with the Office of the Secretary and

other modal administrations within the

U.S. DOT, developed and implemented

an extensive public outreach process on

all elements of the TEA–21. The process

began shortly after the legislation was

enacted on June 9, 1998, and various

types of outreach activities have been

underway since that time. The initial

six-month Departmentwide outreach

process included twelve regional forums

and over 50 focus groups and

workshops (63 FR 40330, July 28, 1998).

The U.S. DOT heard from over 3,000

people including members of Congress,

Governors and Mayors, other elected

officials, transportation practitioners at

all levels, community activists and

environmentalists, freight shippers and

suppliers, and other interested

individuals. The input received was

valuable and has helped us shape

implementation strategy, guidance, and

regulations.

With respect to the planning and

environmental provisions of TEA–21,

we learned a great deal through the

twelve regional forums and focus group

sessions and subsequently implemented

a second, more focused phase of

outreach which included issuing a

discussion paper, ‘‘TEA–21 Planning

and Environmental Provisions: Options

for Discussion,’’ FHWA/FTA, February

1999. The content of the Options Paper

reflected input received up to that time

and built upon the existing statewide

33962 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

1The FHWA and the FTA internal directives are

available for inspection and copying as prescribed

at 49 CFR part 7.

2Section 4(f) of the Department of Transportation

Act, which protected certain public lands and all

historic sites, technically was repealed in 1983

when it was codified without substantive change,

as 49 U.S.C. 303. This regulation continues to refer

to section 4(f) because it would create needless

confusion to do otherwise; the policies section 4(f)

engendered are widely referred to as ‘‘section 4(f)’’

matters. A provision with the same meaning is

found at 23 U.S.C. 138 and applies only to FHWA

actions.

and metropolitan planning regulations

and our NEPA implementing regulation.

We released the Options Paper on

February 9, 1999, and received

comments through April 30, 1999. More

than 150 different sets of comments

were received from State Departments of

Transportation (DOTs), Metropolitan

Planning Organizations (MPOs),

counties, regional planning

commissions, other Federal agencies,

transit agencies, bicycle advocacy

groups, engineering organizations,

consultants, historical commissions,

environmental groups, and customers—

the American public. These comments

were all reviewed and taken into

consideration in the development of this

NPRM. Another element of outreach has

included meetings with our key

stakeholder groups, other Federal

agencies, and the regional and field staff

within our agencies.

This proposed rule will be one part of

a widespread agency effort to provide

clear and consistent guidance on how

the NEPA process can be most

effectively used to help applicants make

transportation decisions which reflect a

concern for social, economic, and

environmental well-being. It provides

the framework upon which we, along

with State DOTs, MPOs, transit

agencies, and Federal land management

agencies, can base our approach to

transportation decisionmaking.

We recognize that a wide range of

issues exist in the realm of

transportation and the environment.

Our outreach effort associated with

TEA–21, as well as feedback to the

Options Paper, have highlighted many

areas of concern for which the FHWA

and the FTA policy should be more

clearly articulated. However, not all of

these areas will be directly addressed as

part of this rule. For many topics for

which we feel regulatory treatment is

unnecessary or inappropriate, we intend

to issue a comprehensive package of

materials to provide detailed,

nonregulatory information on how to

incorporate such considerations into the

NEPA process. In addition, certain other

topics will be the subject of individual,

separate regulations or guidance.

The comprehensive package of

informational materials is envisioned as

a replacement both for the 1987 FHWA

Technical Advisory 6640.8a on

environmental documents and the FTA

(formerly Urban Mass Transportation

Administration) Circular 5620.1 1 on

environmental assessments. The timing

of its development is intended to be

consistent with the development of the

regulations that will result from this

NPRM. We anticipate that the comments

we receive on the NPRM will help guide

the creation of the informational

materials, as well as the regulations.

Thus, a more complete picture of our

approach will be presented.

Further, we have been working with

Federal environmental agencies to

implement the environmental

streamlining provisions of TEA–21. The

results of those activities are described

in the section-by-section analysis

discussion later in this preamble.

The TEA–21 outreach effort and

comments on the Options Paper have all

helped guide us in developing this

notice of proposed rulemaking.

Comments on this NPRM are welcomed

and will be taken into account prior to

the issuance of a final regulation

containing updated NEPA

implementation requirements.

Relationship to U.S. DOT’s Statewide

and Metropolitan Planning Regulation

and Other Rulemaking Efforts

There are four additional rulemaking

activities either underway or planned

which relate closely to this notice of

proposed rulemaking. These include:

the joint FHWA/FTA rules on statewide

and metropolitan planning and on

section 4(f), and the FHWA rules on

acquisition of right-of-way and decisionbuild contracting. The relationship with

the statewide and metropolitan

planning rulemaking is described

below, and the TEA–21 provisions and

input received through the Options

Paper on the other three issue areas

follows:

Statewide and Metropolitan Planning

Concurrent with the release of this

notice of proposed rulemaking, the U.S.

DOT is issuing a notice of proposed

rulemaking to update and revise its

statewide and metropolitan planning

regulations (23 CFR part 450 and 49

CFR part 613). As proposed in these

coordinated rulemaking actions, the

statewide and metropolitan planning

rule and the NEPA and transportation

decisionmaking rules would both be

moved to new parts: 1410 and 1420,

respectively. This co-location is

intended to underscore the integrated

nature of transportation planning and

the NEPA process.

We intend to ensure that the

regulatory provisions governing

statewide and metropolitan planning

and NEPA work in a consistent and

complementary fashion, and result in

sound transportation decisions. We

view the changes in TEA–21 as

opportunities to improve and integrate

planning and environmental processes

to support more effective

decisionmaking and it is in this context

that both notices of proposed

rulemaking were developed. It is our

intent to establish consistency between

the two regulations to allow our State

and local transportation partners that

choose to conduct social, economic, and

environmental analysis at the planning

stage to incorporate that analysis at the

project development phase. This

approach offers options for integrating

project development efficiencies into

the overall planning process, where

States, MPOs, and transit agencies deem

such action appropriate and desirable.

Section 4(f) (49 U.S.C. 303)

We propose to move the reference and

citation for section 4(f) 2 in title 23 of the

Code of Federal Regulations. This

proposal removes the provisions on

section 4(f) from the NEPA rule and

establishes a separate regulation for

section 4(f). Years of applying section

4(f) to new and unprecedented

situations have led to a history of case

experience which must be reflected in

the regulation. As a result, the rules

governing section 4(f) have grown to the

point that they warrant their own part

in the regulations. We can envision a

separate effort to revise and update the

section 4(f) rule; however, we are

proposing minor changes at this time.

Nevertheless, we invite comment on

suggested changes to the Section 4(f)

rule of a more substantive nature. A

comprehensive package of informational

materials that will be released

concurrent with this final regulation

will elaborate on the continued fully

integrated relationship between the

NEPA process and the section 4(f)

evaluation process.

The information within the proposed

section 4(f) regulation has not changed

in concept. However, new information

has been added to bring the

administration of section 4(f)

evaluations up-to-date with FHWA and

FTA programs such as Transportation

Enhancements, Transit Enhancements,

the Symms National Trail Program, etc.

There has been little substantive change

in the requirements of the section 4(f)

regulation; rather the format of the

information presented has been changed

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33963

3NEPA Record of Decision is the documentation

of final action by the FHWA and the FTA regarding

their decision on a project action (final alternative

chosen, impacts, mitigation and basis for decision,

etc.) addressed in an Environmental Impact

Statement.

to reflect these program changes and

proposed organizational changes.

The separation of the section 4(f) and

NEPA procedures into separate

regulations is not intended to fragment

compliance with section 4(f) and NEPA.

Our intent is to continue a fully

integrated implementation under the

unified and coordinated process

provided by the NEPA procedures as an

umbrella for addressing all relevant

responsibilities, including section 4(f).

Placing the two regulations in sequence

within the Code of Federal Regulations,

with cross references between them, is

intended to communicate the continued

integration of section 4(f) and the NEPA

process.

Right-of-Way Acquisition

Section 1301 of the TEA–21 allows

the value of land acquired by a State or

local government without Federal

assistance to be credited to the State

share of a federally-assisted project

which uses that land. However, the law

stipulated that the land acquisition must

not influence the environmental

assessment of the project, including the

need to construct the project, the

consideration of alternatives, and the

selection of a specific location.

The FHWA considered, under a

separate rulemaking, covering ‘‘Right-ofWay Program Administration’’

published as a final rule in the

December 21, 1999, Federal Register, an

‘‘early acquisition’’ policy to

accommodate the acquisition of land or

other property interests (including ‘‘atrisk’’ activities) by State or local

agencies that may be deemed necessary

while NEPA considerations are being

concluded. These acquisitions would be

considered ‘‘at-risk’’ in that the Federal

reimbursement for a share of the

acquisition costs would be forthcoming

only if the acquired property is

subsequently used in a federallyassisted project. Interested parties

should refer to the December 21, 1999,

final rulemaking (64 FR 71284–71297)

in the Federal Register.

Advance right-of-way acquisition was

the subject of considerable debate

during the TEA–21 outreach efforts.

Several commenters including the

Capital Area MPO in Albany, NY,

argued that the advance acquisition of

right-of-way in rapidly growing areas is

desirable, cost effective and good policy.

These commenters view land

acquisition as environmentally neutral,

in that unused land can be disposed of,

often at a profit. Others, including the

National Coalition to Defend NEPA,

noted the inherent conflict between

allowing advance right-of-way

acquisition and corridor preservation

initiatives, and the selection of a

preferred alternative as part of the NEPA

process. The National Coalition to

Defend NEPA argues that purchase of

land represents a commitment to a

particular project location and that it,

therefore, would influence the

assessment of the project under NEPA.

Design-Build Contracting

Section 1307 of the TEA–21 permits

a State or local transportation agency to

award a design-build contract during

project development provided that final

design shall not commence before the

NEPA process has been completed.

We have been concerned about

design-build contracts (also called

‘‘turnkey’’ contracts) for federallyassisted projects being let before the

NEPA process has been completed. To

do so could give the appearance that the

State or local transportation agency is

fully committed to a single course of

action, and that the NEPA process is

simply a clearance exercise and not a

true decisionmaking process. There

may, however, be some situations in

which design-build procurement can be

structured to allow for the designbuilders to work on an alternative

emerging from the NEPA process. Our

agencies recognize that the emerging

interest in design-build contracting may

warrant specific regulatory language or

guidance addressing the relationship

between design-build procurement and

NEPA.

During the TEA–21 outreach efforts,

some commenters suggested that designbuild contracting provisions could

include clauses that would preclude

work on construction or the ‘‘building’’

of projects until after the NEPA Record

of Decision 3 is made. The American

Road and Transportation Builders

Association (ARTBA) suggested that any

work done on projects using this type of

procurement method would be ‘‘at-risk’’

until the NEPA Record of Decision is

announced, meaning that the work may

have to be discarded if the NEPA

process ultimately results in selection of

an alternative project. In these cases, the

State or local agency would not be

eligible to receive Federal

reimbursement until that time, and only

if the action was consistent with the

Record of Decision. The Virginia DOT

suggested that design-build

procurement awards should not be

made until after the NEPA process had

been concluded, at which point the

specifics of the location and design

decisions would be known. This

approach has been used by the FTA in

its Turnkey Demonstration Program.

The Orange County Transportation

Corridors Agency suggested that having

a design-build agency on board at the

earliest possible time is actually

environmentally beneficial, since it can

contribute valuable input in a timely

way, to arrive at implementable and cost

effective recommendations.

For highway projects, the FHWA’s

Office of Infrastructure is responsible for

developing regulations which

implement this TEA–21 provision. It is

currently engaged in fact-finding and

consultation among transportation

partners including the American

Association of State Highway and

Transportation Officials (AASHTO), and

anticipates beginning the formal

rulemaking process next year.

Achieving a balance between realizing

the fullest time-savings potential of

design-build contracting and

maintaining the integrity of the NEPA

process will be the subject of

considerable discussion during that

rulemaking process.

Our agencies intend to adopt

consistent policies on the NEPA-related

aspects of the design-build issue for two

reasons: (1) Transit projects should not

have procedural disadvantages in

comparison to highway projects, and (2)

Federal transit law (49 U.S.C. 5304(e))

requires that the FTA and the FHWA

conform their NEPA processes to each

other’s.

Section-by Section Analysis of the

Proposed Rule on NEPA and Related

Procedures for Transportation

Decisionmaking

This section of the notice of proposed

rulemaking includes a section-bysection analysis of the proposed rule on

NEPA and incorporates summary

information on comments received on

the Options Paper. All comments on the

Options Paper are contained in the

docket. The comments are, of necessity,

summarized in each of the relevant

sections of the proposed rule and are

intended to provide an overall

perspective on the comments submitted

to the FHWA and the FTA. Details on

specific comments and input can be

obtained by reviewing the materials in

the docket.

The proposed regulations have been

reordered as to content and organized

into the following four subparts:

Subpart A—Purpose, Policy, and

Mandate;

Subpart B—Program and Project

Streamlining;

33964 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

Subpart C—Process and Documentation

Requirements; and

Subpart D—Definitions.

The following table highlights the

reordering and organization for each

proposed subpart:

Proposed Section Current Section

Subpart A—Purpose, Policy, and Mandate ............................................. None.

1420.101 Purpose of this regulation ...................................................... 771.101 Purpose.

1420.103 Relationship of this regulation to the CEQ regulation and

other guidance.

771.103 [Reserved]

1420.105 Applicability of this regulation ................................................ 771.109(a) Applicability and responsibilities and

771.111(f) Early coordination, public involvement, and project development.

1420.107 Goals of the NEPA process ................................................... None.

1420.109 The NEPA umbrella ............................................................... 771.105 Policy.

1420.111 Environmental justice ............................................................. 771.105 Policy.

1420.113 Avoidance, minimization, mitigation, and enhancement responsibilities.771.105 Policy.

Subpart B—Program and Project Streamlining ....................................... None.

1420.201 Relationship of planning and project development processes.None.

1420.203 Environmental streamlining .................................................... None.

1420.205 Programmatic approvals ........................................................ None.

1420.207 Quality assurance process .................................................... 771.125 Final environmental impact statements.

1420.209 Alternate procedures .............................................................. None.

1420.211 Use of this part by other U.S. DOT agencies ....................... None.

1420.213 Emergency action procedures ............................................... 771.131 Emergency action procedures.

Subpart C—Process and Documentation Requirements ......................... None.

1420.301 Responsibilities of the participating parties ........................... 771.109 Applicability and responsibilities.

1420.303 Interagency coordination ........................................................ 771.111 Early coordination, public involvement, and project development.

1420.305 Public involvement ................................................................. 771.111 Early coordination, public involvement, and project development.

1420.307 Project development and timing of activities ......................... 771.111 Early coordination, public involvement, and project development, and

None ......................................................................................................... 771.113 Timing of administration activities.

1420.309 Classes of actions .................................................................. 771.115 Classes of actions.

1420.311 Categorical exclusions ........................................................... 771.117 Categorical exclusion.

1420.313 Environmental assessments .................................................. 771.119 Environmental assessments.

1420.315 Findings of no significant impacts ......................................... 771.121 Findings of no significant impacts.

1420.317 Draft environmental impact statements ................................. 771.123 Draft environmental impact statements.

1420.319 Final environmental impact statements ................................. 771.125 Final environmental impact statements.

1420.321 Record of decision ................................................................. 771.127 Record of decision.

1420.323 Re-evaluations ....................................................................... 771.129 Re-evaluations.

1420.325 Supplemental environmental impact statements ................... 771.130 Supplemental environmental impact statements.

Subpart D—Definitions ............................................................................. None.

1420.401 Terms defined elsewhere ...................................................... None.

1420.403 Terms defined in this part ...................................................... 771.107 Definitions.

Subpart A—Purpose, Policy and

Mandate

This proposed subpart sets out the

framework for the FHWA/FTA NEPA

process. It complements and

supplements the United States Council

on Environmental Quality (CEQ)

provisions that serve a similar function

for the entire Federal government.

Section 1420.101 Purpose of This

Regulation

Current § 771.101 would be

redesignated as § 1420.101 and revised

to establish that the focus of the

proposed regulation is to conduct a

decisionmaking process for

transportation projects that, under

NEPA, integrates and streamlines

compliance with all transportation and

environmental laws applicable to

decisionmaking during project

development. Reference is made to the

regulations for transportation planning

as being a contributing factor to this

decisionmaking process.

Section 1420.103 Relationship of This

Regulation to the CEQ Regulation and

Other Guidance

The proposed § 1420.103 does not

appear in the current regulation. It

clarifies that this regulation is to be read

as a supplement to the CEQ’s

governmentwide regulations for

implementing NEPA (40 CFR parts

1500–1508) and contains specific

provisions for Federal surface

transportation actions under our

jurisdiction. Further, the proposed

section acknowledges that, in addition

to issuing revised NEPA regulations, we

will conduct and fulfill our

responsibilities under NEPA using any

combination of approaches including,

but not limited to, nonregulatory

guidance, training, and technical

assistance.

The CEQ regulations cover regulatory

definition and general environmental

procedural requirements (e.g.,

acceptable development and evaluation

of an acceptable range of alternatives).

These are not repeated in this proposed

rule because we want to avoid

confusion by repeating or paraphrasing

CEQ requirements. Reproducing

requirements in the FHWA and the FTA

environmental regulations that are

identical to CEQ requirements could

create potential conflicts and confusion

as to the applicability of CEQ provisions

not reproduced. Instead, the chosen

approach makes a discernible

connection between the different

regulations, and provides the

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33965

opportunity for general practitioners to

increase their familiarity with and

understanding of the CEQ regulations, a

familiarity of which is essential to their

ability to comply fully with all of the

environmental requirements applicable

to transportation projects.

Section 1420.105 Applicability of This

Regulation

The proposed section revises current

§§ 771.109 and 771.111, Applicability

and responsibilities and Early

coordination, public involvement, and

project development, respectively. The

language appearing in paragraph (a) of

the proposed section is a shortened

version of paragraph (a) of current

§ 771.109. Paragraph (b) in the proposed

section is essentially the existing criteria

for allowable segmentation of projects,

taken from paragraph (f) of § 771.111.

Section 1420.107 Goals of the NEPA

Process

Proposed section § 1420.107 is to be

read in close conjunction with the

subsequent proposed § 1420.109.

Section 1420.107 would establish the

goals of the FHWA/FTA transportation

decisionmaking process. The goals are

drawn from a variety of statutory

mandates, including NEPA itself, and

provisions of the various transportation

laws that authorize our programs. The

NEPA process is a partnership among

Federal, State, and local governments

and, at times, private entities. Our intent

in this section is to establish a common

understanding within the partnership of

the goals to be achieved through the

NEPA process.

The FHWA and the FTA reaffirm their

role as lead Federal agencies, and

underscore their responsibility to

manage the NEPA process with the

objective of achieving these goals. This

responsibility extends to ensuring that

Federal NEPA decisions pay appropriate

deference to State and local decisions

made in good faith and not coerce a

particular Federal point of view. State

and local decisions made with full

consideration of a broad range of social,

economic, and environmental factors,

and with the advice of appropriate

Federal and other State resource

agencies (i.e., the agencies responsible

under law for the protection or

management of natural and community

resources) and with public involvement

are those most likely to advance the

NEPA goals.

Section 1420.109 The NEPA Umbrella

Proposed § 1420.109 would replace

portions of current § 771.105, Policy.

The proposed section sets forth our

basic policy regarding how the

decisionmaking process for surface

transportation projects is to be

conducted . The proposed section states

the intent of our agencies to use the

NEPA process as the overarching

procedural construct under which the

varied legal requirements,

environmental issues, and public

interests relevant to the transportation

decision are brought to bear; hence the

term ‘‘NEPA umbrella’’ is used to

describe the concept. The consideration

of a proposed action under NEPA

concludes with a decision made in the

best overall public interest: one that

balances the need for safe and efficient

transportation with the project’s social,

economic, environmental benefits and

impacts, and the attainment of relevant

environmental protection goals.

Experience in administering the

NEPA process has shown that many

practitioners do not fully understand or

practice our approach of using the

NEPA process as an umbrella for

integrating their studies, reviews, or

consultations and satisfying all relevant

requirements in a single, integrated

decisionmaking process. Instead, many

have chosen to approach the various

requirements as obstacles or hurdles to

be addressed in a less than

comprehensive fashion. Many delayed

projects or failed processes can be

traced back to a disintegrated and

disconnected approach to meeting

NEPA and other requirements. This

section of the regulation is intended to

clarify the preferred approach and

explicitly demonstrate the multitude of

factors that can influence Federal

decisionmaking. Setting forth these

expectations will contribute to a better,

more efficient and timely NEPA process,

one that is envisioned in the TEA–21

and highlighted in its section 1309 on

environmental streamlining.

Section 1420.111 Environmental

Justice

Subsequent to the previous regulatory

revision in 1987, the 1994 Executive

Order 12898 on Environmental Justice

was issued to address

disproportionately high and adverse

human health and environmental effects

of Federal government programs,

policies, and activities on minority

populations and low income

populations. This section would be

added to present regulatory language

from our policy on environmental

justice that is articulated in the DOT

Order 5610.2 on Environmental Justice

(62 FR 18377, April 15, 1997).

Section 1420.113 Avoidance,

Minimization, Mitigation, and

Enhancement Responsibilities

This section would present our policy

regarding NEPA’s mandate that Federal

agencies, to the fullest extent possible,

use all practicable means to restore and

enhance, and avoid or minimize any

possible adverse effects of their actions

upon the quality of the human

environment.

Our policy towards correcting adverse

impacts is contained in the hierarchical

but not necessarily sequential concepts

of avoidance, minimization, and

mitigation of impacts, and in the

evaluation of environmental

enhancements. The policy is consistent

with the CEQ’s approach to mitigation

presented in 40 CFR 1500.2(f) and

elsewhere, and would revise the

language concerning mitigation of

adverse impacts currently provided at

§ 771.105(d). The proposed language

reflects also the broadened Federal

funding eligibility for enhancement

measures, such as transportation

enhancement activities and transit

enhancements, enacted with ISTEA and

TEA–21. The section would address the

eligibility for Federal funding (to the

extent authorized by law), of measures

to avoid, minimize, or mitigate impacts,

or to provide or implement

enhancements.

Our general responsibility for

ensuring that mitigation is carried out

would be presented in paragraph (d) of

the proposed section, NEPA

Commitments. These provisions would

be redesignated from § 771.109(b) to

streamline the subject matter of the new

regulations; the original text would be

revised to detail the responsibility for

implementing mitigation measures and

environmental enhancements that

resulted from commitments made in the

FHWA/FTA NEPA process.

Subpart B—Program and Project

Streamlining

This subpart would group together a

set of provisions aimed at improving the

NEPA process, either on individual

projects or on a programwide basis, so

that transportation decisions can be

made in a timely and environmentally

sensitive manner. It would respond in

part to the TEA–21 chapter on flexibility

and streamlining, which addresses

major investment study integration

(section 1308) and contains the

provisions on environmental

streamlining (section 1309).

Section 1420.201 Relation of Planning

and Project Development Processes

This section would clarify the

relationship of the transportation

33966 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

planning process and the project

development process which is the

subject of this NPRM. It reflects

coordination with our concurrent

proposed Metropolitan and Statewide

Planning regulations; § 1420.318 of that

proposed rule, and its preamble,

provide further discussion of the

relationship between the planning and

project development processes. The

section also stresses that the record of

prior transportation planning activities,

such as development of purpose and

need and the systems-level evaluation of

alternatives, shall be incorporated into

the scoping or early coordination phases

of an EIS or EA, respectively, in order

to establish the alternatives to be

advanced to the NEPA process.

Our agencies feel it is essential to

clarify the nature of the linkage between

planning and the NEPA process in this

NPRM. The transportation planning

process needs to be better coordinated

with the project development/NEPA

process so that transportation planning

decisions can ultimately support the

development of the individual projects

which arise from transportation plans.

During the TEA–21 outreach efforts,

opinions varied over whether regulatory

language or guidance should be used to

integrate planning and programming

activities, but most commenters agreed

that the linkage between planning and

project development needs to be

cultivated. Many commenters, including

the AASHTO and many State DOTs,

opposed any regulatory language which

would place requirements of NEPA into

the planning process. Others, including

the National Coalition to Defend NEPA,

pointed to the need for the core values

of the NEPA process to be incorporated

into the planning process and suggested

that regulatory language is in order.

The Options Paper discussed the

notion that the establishment of purpose

and need and the broad scale evaluation

of alternatives can often be best

accomplished during the planning

process. How to frame the statement of

purpose and need so that it is neither

too narrow nor too broad is a continuing

challenge. If too narrowly conceived,

purpose and need can constrain the

process with an unreasonably limited

set of possible solutions; if too broadly

constructed purpose and need may lead

to an unmanageably large set of

alternatives that unnecessarily bog

down the process. Options to provide

clearer direction regarding what

constitutes an acceptable statement of

purpose and need are being explored

and we invite specific comments on this

issue.

There was considerable support for

allowing States and MPOs the option of

addressing purpose and need in the

planning process, and even to initiate

the NEPA process at that time. This

would allow stakeholders to conduct

broad ranging planning and subregional

studies, reach agreement on purpose

and need during the planning process,

and benefit from such analyses by using

them directly in the NEPA process.

There was also strong support for

establishing a point during the NEPA

process at which the participants would

discuss and concur in a statement of

purpose and need.

However, a considerable number of

commenters, including many State

DOTs and MPOs, objected to any

mandate for the determination of

purpose and need during planning and

argued that it would burden the

planning process and add considerable

delay by seeking a determination of

need at an inappropriate juncture.

The Surface Transportation Policy

Project (STPP) recommended a twostage NEPA process where the first

phase would evaluate the range of

social, fiscal, and environmental costs

and benefits of various alternative

visions for a corridor or community.

Based on this evaluation, an initial

statement of purpose and need would be

articulated. This purpose and need

statement would be very broad, an

articulation of the goals for the area

already arrived at through the planning

process, for example. The STPP

proposed that a wide field of inquiry

would be maintained at this stage.

Subsequent to this phase of evaluation,

and once a detailed review of options is

complete, an agency would have the

information necessary to propose a

revised, more specific statement of

purpose and need. It would be this

revised statement of purpose and need

that would serve as the basis for a

detailed review of alternatives under

NEPA. Under both phases, the choice of

a project purpose would be subject to

public input.

The Environmental Law and Policy

Center argued for the allowance of

lower-cost and lesser impact project

alternatives to be selected through the

NEPA process even if they do not fully

meet the stated purpose and need. Both

the U.S. EPA and the U.S. Department

of Interior argued for broadly defined

purpose and need during planning to

ensure that a full range of modal

alternatives are considered.

The National Coalition to Defend

NEPA expressed concern over the

development of purpose and need

during planning. It felt this could

prematurely preclude options and

alternatives and argued that, until the

DEIS is completed, insufficient

information is available with which to

make such decisions. In short, it is

concerned that defining purpose and

need so early (in planning) could have

the effect of ‘‘setting in stone’’ projects

without adequate consideration of

alternatives.

Commenters asked for examples, best

practices and information on issues

related to purpose and need

determination, and there was general

consensus that improvements in

defining purpose and need are

warranted. They felt that the difficulties

articulated in the Options Paper relating

to broad versus narrow statements of

purpose and need are indeed real

problems and that our agencies could

provide useful guidance in this area.

We intend to provide continuity

between the systems planning and

project development processes so that

the results of analysis performed during

the planning stage, including project

purpose and need, alternatives, public

input, and environmental concerns are

brought forward into project

development. The proposed integration

of the planning and project

development process embodied in this

regulation would enable a more broadly

defined statement of purpose and need

to be addressed at appropriate points in

the integrated process.

There has also been much discussion

of the standing given to planning

decisions on alternatives to be advanced

or dropped from consideration. The

proposed regulation envisions an active

discussion of this issue during scoping,

with the involvement of the responsible

planning agencies (i.e., the MPO and/or

the State DOT). Ultimately, the U.S.

DOT agency, in cooperation with the

applicant, must decide the range of

alternatives to be evaluated in detail in

the NEPA document. The proposed

regulation allows these agencies to

recognize planning decisions made with

adequate supporting documentation.

Though the form and content of this

support will not be specified in the

regulation, we expect to see some or all

of the following offered in this context:

technical studies as envisioned by

proposed § 1420.318(b), documentation

of public reviews and comments, formal

policy board resolutions in the case of

MPO actions, or other supporting

materials. For proposed major transit

investments, this review will also

decide whether the documented

planning activities constitute the

Alternatives Analysis required by 49

U.S.C. 5309(e) or, alternatively, if the

requirement must still be satisfied in the

NEPA process.

We propose to provide more detailed

treatment on the subjects of purpose and

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33967

4This Memorandum of Understanding is

available electronically from FHWA’s website at

http://www.fhwa.dot.gov/environment/strming.htm.

need, and the development, analysis,

and evaluation of alternatives in the

comprehensive package of informational

materials. This would include how to

address alternatives which in the past

have been rejected for not fully meeting

traditional concepts of purpose and

need. Further, we plan to showcase

examples of successful practices which

demonstrate how effective integration of

planning and project development can

protect communities and environmental

resources and save time in providing

needed transportation improvements.

Examples of issues that might be

covered include: the further

consideration of alternatives that may

not fully meeting traditional concepts of

purpose and need; more broadly defined

purpose and need statements during the

planning stage so that a full range of

modal alternatives are considered; an

alternative analysis that examines nonconstruction alternatives that use

transportation demand strategies; and

flexibility to encourage the

consideration of alternatives which may

have lower than originally desired

levels of transportation service if there

are cost, time, and impact savings that

justify the lower levels of transportation

service.

We are soliciting comments on a

suggestion that specifically addressing

the requirements of the major

investment study in the planning

process would enhance that process by

forging a clearer link between the

planning and the project-level NEPA

processes, leading to greater

streamlining at the project level.

Section 1420.203 Environmental

Streamlining

This new section would be added to

reflect the requirements of section 1309

of the TEA–21. The basic premise of

section 1309 of the TEA–21 was to

address concerns relating to delays,

unnecessary duplication of efforts and

costs associated with the development

of highway and transit projects. Section

1309 also stipulates that nothing in

section 1309 shall affect the

applicability of NEPA or any other

federal environmental statute or affect

the responsibility of any federal offices

to comply with or enforce such statutes.

The rule responds to the TEA–21

environmental streamlining provisions

by establishing a process intended to

coordinate Federal agency involvement

in major highway and transit projects

with the goals of identifying decision

points and potential conflicts as early as

possible, integrating the NEPA process

as early as possible, encouraging the full

and early participation of all relevant

agencies, and establishing coordinated

time schedules for agencies to act on a

project.

This proposed section of the

regulation establishes the ‘‘coordinated

environmental review process’’ which

section 1309 of the TEA–21 directed the

Secretary of Transportation to develop

and implement. Paragraph (a) lays out

the elements of this coordinated

environmental review process,

providing a substantive but flexible set

of actions to be taken by the U.S. DOT

in cooperation with the applicant to

ensure that the goals of section 1309 are

met. An important element of this

coordinated environmental review

process is reaching closure among the

Federal agencies on the scoping process.

This paragraph calls for agency

concurrence at the end of scoping,

which could take various forms

depending upon the mutual

understandings and agreements of the

Federal agencies. In the event of

nonconcurrence, this paragraph

provides also for means to resolve

interagency disagreements at the earliest

possible time. Paragraph (b) describes

the process for applying the coordinated

environmental review process to State

level environmental reviews. Paragraph

(c) would implement the provisions of

the statute which allow the Secretary to

decide not to apply section 1309 to the

preparation of an environmental

assessment. Paragraph (d) would

implement the CEQ NEPA regulation

provisions on paperwork reduction and

clarifies that the NEPA documentation

need not explicitly contain a finding

that a particular impact does not exist.

For example, if the environmental

inventory revealed that there were no

wetlands in the project area, a specific

finding indicating that the project

would have no impacts on wetlands

would not be required. This provision

would help to focus NEPA documents

on important issues in accordance with

the CEQ NEPA regulations’ provision on

paperwork reduction.

One consistent theme that emerged

through the outreach process pointed to

the need for early and up-front

involvement of Federal agencies in the

NEPA process and for close

coordination and cooperation among the

Federal agencies throughout the

process. The State DOTs, the MPOs, the

National Association of County

Engineers, the U.S. EPA, and the U.S.

Department of Interior all felt that

Federal agency involvement is critical to

successful implementation of the

environmental streamlining provisions.

They also recommend that our field

offices and the resource agencies’ field

offices throughout the country have the

authority to participate in, review, and

respond to issues associated with the

NEPA process.

Inasmuch as stakeholder sentiments

echoed a need for early collaboration

and close coordination with all

interested and affected parties, they also

strongly reinforced the need for

flexibility at the State and local levels

for implementing the goals of

streamlining. A ‘‘one-size-fits-all’’

regulatory approach was soundly

rejected by an overwhelming majority of

stakeholders, other Federal agencies,

practitioners, project sponsors, and field

offices.

We believe that successful

implementation of environmental

streamlining must be based upon a

number of principles, and are pursuing

a process that will ensure effective

environmental decisionmaking in a

timely manner. Both transportation and

resource agencies must improve their

environmental review processes. The

U.S. DOT will provide national

leadership on environmental

streamlining, and is working with CEQ

and headquarters offices of the EPA, the

U.S. Army Corps of Engineers, the U.S.

Fish and Wildlife Service, the U.S.

National Park Service, the U.S. National

Oceanic and Atmospheric

Administration, the Advisory Council

on Historic Preservation and others to

obtain commitments to better

decisionmaking. The framework for this

commitment to the environment and to

streamlining the environmental process

is set forth in the national Memorandum

of Understanding (MOU) which was

entered into by the aforementioned

agencies in July 1999.4 We fully expect

to track the commitments reflected in

the national MOU. We recognize that

tangible progress will evolve locally,

and State by State, at different rates,

based largely on good working

relationships and trust established

among the agencies at the field office

level.

We are proposing to implement the

environmental streamlining

requirements largely outside of the

regulatory process through the following

means: (1) U.S. DOT memoranda of

understanding with Federal or State

agencies; (2) establishment of dispute

resolution processes; (3) streamlining

pilot efforts; (4) authorization of the U.S.

DOT to approve State DOT or transit

agency requests to reimburse Federal

agencies for expenses associated with

meeting expedited time frames; and (5)

establishing performance measures to

evaluate and measure success in both

33968 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

environmental stewardship and

environmental streamlining. We have

established an environmental

streamlining page on the FHWA website

to keep the public up to date on our

ongoing activities and resources (http:/

/www.fhwa.dot.gov/environment/

strming.htm). We are also providing a

detailed description of our work to date

on the following:

(1) National MOU

The central effort on the national

MOU has been to craft an agreement

among agencies which demonstrates a

commitment to key principles and upon

which further agreements can be

executed at a local or regional level to

address more specific issues.

Establishing and maintaining clear and

frank communication has been at the

heart of the national MOU and would be

the primary guide to further interagency

agreements.

The process of developing the

national MOU was aimed chiefly at

responding to the concerns regarding

early and up-front involvement of

Federal agencies in the NEPA process

and for close coordination and

cooperation between Federal agencies

throughout the process. We are working

with representatives of other Federal

agencies at the headquarters and field

levels to develop a common

understanding of the environmental

streamlining provision and a

coordinated implementation strategy.

The development of the national MOU

has followed the suggestion of

AASHTO, Association of Metropolitan

Planning Organizations (AMPO), and

many State DOTs that the MOU include

broad principles of agreement on how

the NEPA process would be carried out

but that project-specific or programspecific MOU’s need to be developed at

the State, regional, or local level, based

upon these broad principles, and

tailored to specific local circumstances

or projects.

(2) Dispute Resolution Procedures

Procedures for resolving conflict at

the national, regional, and State levels

are under development. Mediation

methods and systems for alternative

dispute resolution are being developed

and training programs in these methods

will be established. This approach will

enable parties to seek timely

intervention over disputes during the

project development process, as a way

to circumvent and minimize the number

of environmentally unacceptable

projects that may otherwise be referred

to CEQ for resolution, by either

reestablishing consensus on the need for

the project or reaching consensus to

drop the project entirely. Alternative

dispute resolution strategies will be

defined so that they can be effectively

applied to improve institutional

relationships among parties or to resolve

conflicts surrounding specific project

issues.

On the matter of dispute resolution

procedures, commenters made three key

points. They felt that explicit time

frames for document reviews are needed

and should be agreed to, to the fullest

extent possible, up-front in the process.

Secondly, they supported an approach

where the parties to the MOU agree, at

an early stage, on the level of

information and detail that is needed at

various steps in the NEPA process.

Resource agencies expressed frustration

with the timing and level of detail of

information that they are asked to

consider and act upon, and State and

local implementing agencies expressed

frustration due to uncertainties over

what specific information and level of

detail would be required of them by the

Federal resource, regulatory and

permitting agencies. A third point made

by many stakeholders was that

procedures on coordination,

documentation, and communications

should be agreed to as early as possible.

They felt that this would help to resolve

differences that arise at various points

in the process and which can contribute

to delays.

(3) Pilot Efforts Are One Effective

Mechanism for Testing and Evaluating

Change

One specific topic suggested for pilot

projects was from the North Carolina

DOT and the American Road and

Transportation Builders Association,

which suggested the testing of

alternative approaches to gaining

interagency cooperation during the

NEPA process. The Virginia DOT

suggested that pilot project efforts

should be directed at finding ways to

resolve differences between Federal

agencies. A third suggestion was that

pilot projects should test approaches to

providing States flexibility in carrying

out the NEPA process.

Not all commenters supported the

concept of pilot projects, however, and

the National Coalition to Defend NEPA

questions the legal authority of our

agencies to conduct pilot projects and

cautioned against using pilot projects to

‘‘back-door’’ the NEPA process. It was

also concerned that pilot efforts not only

involve partnership development

between Federal and non-Federal

partners and resource permitting

agencies, but also include groups

representing the public as well.

Based on the input received on the

issue of pilot efforts, we are not

proposing to establish a formal process

for pilots at this time, through

regulation or any other means. Instead,

we will participate in pilot efforts on a

case-by-case basis. These pilot efforts

might be focused on a single project or

on improving a particular process, but

would not include the delegation of

Federal NEPA responsibilities to States

that was considered but not enacted in

the TEA–21. We will continue to

coordinate closely with the U.S. EPA,

the AASHTO and others who are

developing pilot efforts, and will

actively assist in sharing information on

efforts including lessons learned.

(4) Use of Titles 23 and 49, U.S.C.,

Funds To Pay for Environmental

Agency Work

The agency reimbursement language

in the environmental streamlining

provisions of the TEA–21 offers an

opportunity to partially overcome an

historic obstacle, that Federal agencies

cannot involve themselves in the

process early enough or regularly

enough due to resource constraints

within agencies. The TEA–21 includes

specific conditions allowing States and

transit agencies to use Federal

transportation funds for reimbursement

of expenses related to work done to

meet the expedited time schedules

required by section 1309 of the TEA–21.

In addition, other statutory authorities

exist for agency reimbursement, and we

are exploring the full range of options

for reimbursing agencies through any of

the available authorities. Furthermore,

approaches to developing collaborative

efforts with other Federal agencies are

being explored in order to develop

model reimbursement agreements, and

to facilitate the implementation of such

agreements by Federal agency field staff.

Due to the need for flexibility and the

different practices and needs of various

State and resource agencies, it was

determined that nonregulatory guidance

would most appropriately address the

use of Federal transportation funds for

reimbursing costs associated with

streamlining. Hence, we engaged

participation by many other affected

Federal agencies to develop a single

guidance package that would be useful

to transportation and environmental

agencies, including State DOT’s and

transit agencies and Federal, State, and

local resource agencies. The breadth of

situations that might be addressed

under this provision was such that the

guidance does not try to anticipate them

all. Rather, it reinforces the Federal

government’s belief in effective

interagency coordination and

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33969

demonstrates a commitment from

Headquarters offices to support field

efforts in implementing this provision of

the TEA–21.

There were a number of comments on

this TEA–21 provision and a suggestion

from the American Road and

Transportation Builders Association

that the principles to apply to

reimbursement should include a

provision that reimbursement for

Federal agency activities to expedite

NEPA reviews must be linked to a

specific project, set of tasks, and person

or position to be involved on behalf of

the Federal agency. Others, including

the Nevada and Missouri DOTs, felt that

reimbursing an agency for working on

one project over another is not a good

approach. Reimbursing agencies for

doing their jobs, it was argued, would

introduce a bias into the NEPA process

which would result in an expedited

review or enhanced level of

participation on some projects over

others.

(5) Performance Measures

Our agencies have a joint effort

underway to evaluate the timeliness and

the effectiveness of the NEPA process at

arriving at decisions that are in the best

overall public interest. Further

information on this effort can be

obtained from the FHWA.

Section 1420.205 Programmatic

Approvals

Section 1420.205 would be added to

establish in regulation the FHWA/FTA

practice of using programmatic

environmental approvals as one way of

addressing recurring situations in a

streamlined manner.

This practice has been especially

effective with categorical exclusions for

meeting the NEPA requirements in

uncomplicated and non-controversial

situations. One example of this are

programmatic categorical exclusion

approvals in which FHWA and a State

DOT established a set of environmental

impact thresholds, which, if not

exceeded, allow the State DOT to apply

the categorical exclusion approval

without a project specific review by

FHWA. Periodically, the FHWA reviews

a sample of projects after-the-fact to

ensure that the approval was

appropriately applied. Other examples

of programmatic approvals include

section 4(f) approvals for minor uses of

parkland and approval to delegate

certain USDOT responsibilities under

the recently issued regulations

implementing section 106 of the

National Historic Preservation Act. The

proposed section explicitly recognizes

the appropriateness of programmatic

approaches for compliance with NEPA

and related statutes, but does not

specify the types of actions for which

programmatic approaches would be

created. Programmatic approaches to

meeting the NEPA requirements which

would not directly involve project level

Federal approvals would be subject to

periodic process reviews to ensure that

they are being properly applied. This

would enable the Federal agencies to

focus limited resources on more

problematic project-level decisions and

to maintain a quality assurance role for

projects with beneficial or de minimis

environmental impacts. There was

general support for such an approach in

comments on the Options Paper. We

invite comments on public notice and

interagency coordination processes

appropriate for making programmatic

approvals.

Section 1420.207 Quality Assurance

Process

This new proposed section would

establish an internal responsibility for

our agencies to employ appropriate

quality management methods to assure

that the NEPA responsibilities are

carried out in a competent and timely

manner. Such a process is intended to

streamline the process by

institutionalizing lessons learned

throughout the administration of our

programs and NEPA so that mistakes are

not repeated and innovative approaches

are fully implemented.

The requirements in the current

regulation for legal sufficiency review of

Final Environmental Impact Statements

(FEIS) and prior concurrence of the

Headquarters on certain FEISs would be

incorporated into this proposed section.

These processes have proven helpful in

assuring the quality of analysis,

coordination, and documentation and

can prevent costly and timely lawsuits

and conflicts. As proposed, the nature of

legal sufficiency review and the

threshold for requiring prior

concurrence at Headquarters would not

be specified in regulation, but would be

the subject of internal orders.

Section 1420.209 Alternate Procedures

This new section would be added to

establish the procedures for processing

and approving alternate procedures for

complying with this regulation. This

would give us the flexibility to partner

with CEQ and State DOTs or transit

agencies on NEPA reinvention efforts

that achieve the goals of the NEPA

process by using alternate methods or

procedures that are more in tune with

and supportive of non-Federal

decisionmaking requirements.

Section 1420.211 Use of This Part by

Other U.S. DOT Agencies

In 1993, the U.S. DOT National

Performance Review effort

recommended that the NEPA

procedures of the various modes be

blended into a single process. Efforts to

accomplish this unified procedure were

purposely delayed until after passage of

the surface transportation

reauthorization which became TEA–21.

Recent discussions within the U.S. DOT

are now pointing toward a dual effort,

one element of which would cover the

entire department, the other of which is

this proposed regulation covering just

the FHWA and the FTA. To advance the

first element, U.S. DOT would revise the

U.S. DOT Order on NEPA to update the

departmentwide statement of

environmental policy and to remove

barriers to collaboration between the

U.S. DOT modes on NEPA issues. It

would provide authority for one U.S.

DOT agency to use the NEPA

procedures of another U.S. DOT agency

or to act as the agent for another U.S.

DOT agency when a situation warrants.

This proposed section clarifies in

regulation that the internal order is

considered legally sufficient to provide

these authorities. The further action at

the departmental level to amend the

U.S. DOT Order on NEPA is under

development.

Most Options Paper commenters,

including State DOTs, MPOs,

associations, and authorities supported

a coordinated approach to NEPA within

the U.S. DOT and its modal

administrations. There was strong

support for the elimination of

differences in how the FHWA and the

FTA manage the NEPA process and for

a consolidation of these approaches in

the updated regulation. In addition,

there was strong support from New York

DOT, the American Road and

Transportation Builders Association and

others for the elimination of provisions

duplicating the CEQ regulations, which

many thought would lead to a

streamlined regulation. Finally, many

commenters supported the notion of the

FHWA and the FTA having strong

oversight over the NEPA process.

Equally important, commenters noted,

is that there be a true partnership

between Federal agencies and State and

local agencies.

Section 1420.213 Emergency Action

Procedures

This proposed section would contain

the provision currently found at 23 CFR

771.131.

33970 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

Subpart C—Process and Documentation

Requirements

This proposed subpart describes the

requirements of carrying out the NEPA

process, including establishing the roles

of various governmental agencies and

the public in the process, determining

the appropriate level of environmental

documentation under NEPA, and laying

out the procedural requirements for

processing NEPA documents. It

complements and supplements the CEQ

regulations that provide the general

NEPA framework for the entire Federal

government. In addition to the

regulatory requirements described in

this subpart, the FHWA’s and FTA’s

comprehensive package of informational

materials will provide detailed

nonregulatory approaches to many of

the subjects herein.

Section 1420.301 Responsibilities of

the Participating Parties

This is a new section that addresses

some of the items currently contained

within § 771.109. Paragraph (a) of the

proposed section utilizes the current

CEQ regulations (40 CFR 1500–1508) to

define terms and set forth concepts,

such as: Lead and cooperating agencies;

the relationship between Federal

agencies, applicants, and contractors;

and enhancing the efficiency of the

NEPA process through cooperation

between Federal, State, and local

agencies.

Paragraph (b) would clarify in

regulation current practice for

administering the NEPA process for

projects implemented directly by the

Federal government on Federal lands.

Namely, it is a shared responsibility of

the U.S. DOT and the Federal land

management agency. The precise nature

of the responsibility is specified in

agreements or standard operating

procedures.

In the previous regulations, the

provision in 23 CFR 771.109(c) on

agency responsibilities is largely

repetitive of what is also found in CEQ’s

regulations on NEPA. For this

rulemaking effort, we are reluctant to

propose regulatory language which

simply restates existing sections of

another regulation, and would

streamline this section accordingly.

Paragraph (c) of the proposed section

addresses the use of contractors in the

NEPA process for contracting for

environmental and engineering services.

The proposed rule allows a State to

procure the services of a consultant,

under a single contract, for

environmental impact assessment and

for subsequent post-NEPA engineering

and design work in accordance with the

provisions of 23 U.S.C. 112(g), as

amended by the TEA–21.

Section 1205 of the TEA–21 allows a

State to procure under a single contract,

the services of a consultant to prepare

environmental documents for a project,

and to perform subsequent final

engineering and design work on the

project. This would only occur if the

State conducted a review assessing the

objectivity of the environmental

documentation. Experience has shown

that, although on many projects

consultants do prepare the bulk of the

detailed analyses and NEPA

documentation, this process involves

close oversight by the State or local

public agency and by the lead Federal

agency. It is the ongoing responsibility

of our agencies to ensure that all

consultant work reflected in the NEPA

process and documentation meets

appropriate standards of objectivity and

professionalism.

The contracting provisions were

included in the TEA–21 to clarify our

agencies’ positions on the use of

contractors for environmental and

engineering design work for Federal

transportation projects, and were chiefly

aimed at addressing concerns of

potential conflict of interest on the part

of the consultants.

The U.S. DOT believes that more

detailed nonregulatory guidance will

best address the specifics of disclosure

statements, other requirements of 40

CFR 1505.5(c), and the requirement for

a review of the objectivity of the

environmental document.

Generally speaking, commenters on

the Options Paper felt that current level

of oversight and review is sufficient,

and that additional documentation to

ensure objectivity is unnecessary. The

EPA suggested the need for the

development of Federal procedures for

monitoring, investigating, and resolving

conflicts that might result from this

TEA–21 provision.

Section 1420.303 Interagency

Coordination

The proposed section would revise

the current § 771.111 (a) through (e).

The proposed section would simplify

the current section by focusing on key

terms and concepts that are the basis of

an integrated decisionmaking process

conducted under the NEPA umbrella.

For example, the proposed section

features the term ‘‘interagency

coordination’’ to supplement the current

‘‘early coordination’’ in order to better

express the collaborative intent of the

FHWA/FTA NEPA process. The

proposed section provides an

explanation of the role and function of

interagency coordination in the NEPA

process. The term ‘‘interested agencies’’

would be added. The proposed section

briefly outlines a procedure for

notifying affected Federal, State, and

local entities of the availability of

approved documents for classes of

action other than an EIS.

Scoping and early coordination can

set the tone, positive or negative, for

subsequent project development

activities. Experience has shown that

many of the conflicts which delay

Federal approvals of highway and

transit projects are somewhat

predictable, and might be better

anticipated and managed by using the

scoping process as an early warning

system. In addition, the development of

interest-based negotiating and

collaborative problem solving skills can

help to craft implementable solutions.

Two possible solutions emerged through

the outreach process that could assist

Federal agencies and applicants in

performing more effective project

scoping. One approach to the scoping of

complex projects is that agencies agree

on review schedules, but only after

sufficient information on issues has

emerged to allow them to gauge the

required level of effort for their

respective agencies. Another approach

might make the scoping process, as part

of an aggressive, high visibility project

management role by our agencies as the

lead Federal agenc(ies), a mechanism for

identifying the issues, and agreeing on

roles, time frames and methodologies

associated with advancing the project,

and possibly memorializing that

agreement in a project MOU.

Both program reviews and feedback

from stakeholders indicate that the

FHWA and the FTA need to take a

stronger leadership role in the NEPA

process. Commenters including the

National Coalition to Defend NEPA, the

AASHTO, the American Road and

Transportation Builders Association,

and others reinforced this point in their

comments on the Options Paper. These

groups said that the FHWA and the FTA

staff should attend meetings and serve

as conflict resolution agents and

mediators between other agencies. Also,

they told us that we should provide

information, such as, handbooks, best

practices on scoping, and training for

practitioners. As was the case in many

areas, stakeholders including MPOs,

State DOTs and others feel that much

progress can be made in better

integrating environmental and other

considerations into the planning process

through training, examples of where

new approaches are working,

handbooks and other useful materials.

Many of the detailed considerations of

the scoping process are outside the

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33971

5Environmental Impact Statement (EIS), Finding

of No Significant Impact (FONSI), categorical

exclusion (CE).

scope of this proposed rule, and will be

addressed separately. Effective project

scoping and interagency coordination is

a chief topic of our environmental

streamlining efforts, and will be given

more detailed treatment in the

comprehensive package of informational

materials to be issued in conjunction

with the final rule. Scoping may also be

the subject of further guidance on its

own. We will make full use of input

received through the outreach efforts, as

well as through our ongoing

coordination with transportation and

environmental agencies, in the

development of this additional

guidance.

Section 1420.305 Public Involvement

Current § 771.111(h) would be

redesignated as § 1420.305. It remains

relatively unchanged for State DOTs

except that the separate requirements

specific to the FHWA and the FTA

programs would be deleted; and new

references specific to public

involvement procedures, notification

requirements, and accommodations for

those with disabilities would be added.

A requirement would be added to

specifically ascertain if public

involvement is warranted whenever a

reevaluation is being conducted. Also a

minimum 45-day public comment

period would be established whenever

public involvement procedures are

initially adopted or revised.

The proposed rule also aims to

consolidate requirements of our two

agencies for public involvement so that

the U.S. DOT can offer a more

consistent approach on this subject.

Based upon comments to the Options

Paper, there was resounding support for

a consistent approach to public

involvement requirements between the

FHWA and the FTA and this was cited

by the National Coalition to Defend

NEPA as one way to make the planning

process more accessible and

understandable to the public. This

consolidation may mean that some

transit agencies may have to formalize

their public involvement procedures

through board adoption, or revise their

procedures to ensure their applicability

to the NEPA process. The FTA does not

expect to find many transit agencies

without existing adopted procedures

applicable to project development, but

invites comment on this concern. We

recognize the importance of public

involvement to informed

decisionmaking, and have issued a

number of publications which provide

nonregulatory guidance on how to

increase the effectiveness of applicants’

public involvement efforts.

The new § 1420.305(d) recognizes the

need for public involvement on certain

re-evaluations where the elapsed time

may have altered public expectations.

Section 1420.307 Project Development

and Timing of Activities

Current § 771.113 would be

redesignated as § 1420.307 and revised.

The proposed section would clarify the

circumstances in which the FHWA/FTA

would not approve initiation and

funding for certain activities, such as,

final design activities. The proposed

section would encourage compliance

with the requirements of all applicable

environmental laws, regulations,

executive orders, and other related

requirements be demonstrated prior to

approval of the final environmental

documents or categorical exclusion (CE)

designation. Conditions under which

agencies responsible for metropolitan

and statewide planning would be

notified in order to satisfy the planning

and programming requirements of

proposed 23 CFR part 1410 would be

identified.

However, under the NPRM the FHWA

and the FTA would not prevent State

and local governments and private

entities from taking certain actions that

are ‘‘at risk’’ of being rendered useless

by the final NEPA decision. Such

actions include final design or land

acquisition prior to NEPA approval, but

do not include those that would have an

adverse impact, such as, demolition or

construction. The FHWA and the FTA

would view at risk activities that

actually substantially harm environment

as so subverting the NEPA process that

we would inform applicants that the

action would be ineligible for FHWA or

FTA financial assistance. The FHWA

and the FTA would not finance such ‘‘at

risk’’ actions, and would not allow their

decisions to be influenced by the

actions taken by others. For projects that

will be federally-funded, the present

regulation prohibits final design and

land acquisition (with certain limited

exceptions) prior to the completion of

the NEPA process. The enforcement of

this prohibition has been confounded by

the fact that specific funding sources,

especially for smaller projects, are often

not identified until late in project

development. Hence, the applicability

of the Federal requirements that attach

only to Federal funding sources is not

yet determined at the time the ‘‘at risk’’

activities are initiated.

We are considering issuing guidance

on how to handle such situations,

especially in terms of disclosure

responsibilities.

We propose to clarify that full

compliance with the transportation

conformity rule (40 CFR parts 51 and

93) is required prior to the approval of

the final EIS, FONSI or CE 5 designation.

As a result, this proposal would allow

preliminary engineering for project

development activities to be done prior

to final NEPA approval without having

to meet conformity requirements. We

request public comment on our

proposed clarification.

We believe that this proposed change

is allowed under current regulations.

While the conformity rule requires that

a project come from a conforming plan

and transportation improvement

program (TIP) before final NEPA

approval, the rule does not explicitly

specify that the project must be in a

conforming plan and TIP in order to

initiate the NEPA process. In fact, 40

CFR 93.126, table 2, identifies as

exempt, ‘‘engineering to assess social,

economic, and environmental effects of

the proposed alternatives to that

action.’’ We feel that this is an

important distinction that may help to

improve the quality of the NEPA

process leading to more effective,

efficient, and environmentally sound

judgments, without compromising the

planning process and air quality

analysis.

We believe that the emissions impacts

of the project should be considered as

early as possible and continue to

encourage the inclusion of projects in

the plan and TIP conformity analysis as

early as feasible prior to the completion

of the NEPA process where it is feasible.

Earlier inclusion of the project in the

plan and TIP is beneficial for the overall

development of the plan and TIP

because regional analysis is used as a

long term indicator of the area’s

emissions impacts and associated

problems. Early analysis of projects in

the plan and TIP allows a more

comprehensive long term assessment of

how emissions impacts can be

minimized, whether through changes in

the timing of projects or changes to the

composition of the plan and TIP.

However, a major problem with this

approach is that it is counterproductive

to corridor planning, prejudges

alternatives and can limit thorough

exploration of all feasible alternatives

throughout the project development

process. It can be counterproductive to,

rather than supportive of, good long

term transportation systems planning in

certain circumstances. The reason for

this is that in order for a project to be

included in the regional plan and TIP

and regional analysis prior to

33972 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

completion of NEPA, certain

assumptions must be made about the

project and related emissions impacts. It

is difficult to define project design

concept and scope that early in the

planning process, especially for those

projects requiring the highest level of

environmental review and scrutiny.

When taking complex projects through

the project development process, it is

very difficult to simply define two

points of connection to the network, the

number of lanes and facility type (that

which is needed for regional analysis).

Complex projects and corridor projects

often examine multimodal options,

some of which are not fully developed

until later in the NEPA process. Under

this scenario, the assumptions for

regional analysis for conformity

purposes may encourage an overly

narrow alternatives analysis and

constrain the environmental review

process. We request comment on

whether similar experiences have

occurred in practice when accounting

for preliminary engineering for project

development in regional conformity

analyses.

It is important to note that, under this

proposal, preliminary development of

new projects could proceed during a

conformity lapse, since such activities

would not need to meet conformity

requirements. However, final NEPA

documents on new projects could not be

approved under this proposal until a

new conforming plan and TIP are in

place.

We believe the frequency

requirements for conformity are

sufficient to ensure that full emissions

impacts of the projects are accounted for

before projects move into the final

design; therefore, long term risks are

minimal and the projects must be

included in the regional conformity

emissions analysis prior to the

completion of NEPA. The regional

emissions analysis and conformity

determinations can be made as

frequently as once a year, but at a

minimum at least every three years;

therefore, it is reasonable to allow

environmental reviews and the NEPA

process to be initiated without the

project being included in the conformity

analysis.

Section 1420.309 Classes of Actions

Current § 771.115 would be

redesignated as § 1420.309 and the text

would remain the same, except for the

addition of certain intercity railroad and

intermodal actions.

Section 1420.311 Categorical

Exclusions

The proposed § 1430.311 would make

several changes from the list of CEs in

the current § 771.117 to reflect changes

in the FHWA and the FTA programs

since 1987. Modal limitations would be

eliminated wherever possible. In

addition, the CEs would be reordered

and regrouped so that similar actions

are listed together. The CEs would

continue to be organized into two major

groupings: those in paragraph (c) that

require no further U.S. DOT agency

approval, and those in paragraph (d)

that require a written demonstration

that the CE is appropriate. Paragraph (c)

would clarify the need for NEPA

approval by the U.S. DOT agency for

listed CEs to which other environmental

laws (e.g., section 106 of the National

Historic Preservation Act) apply.

The proposed changes in CEs in

paragraph (c) would be as follows:

Paragraph (c)(1) (non-construction

activities) would incorporate the text of

current § 771.117(c)(1), (c)(20), and part

of (c)(16) without substantive change. It

would add designations to the National

Highway System to the list.

Paragraph (c)(2) (resurfacing) would

move part of the text of current

§ 771.117(d)(1) to paragraph (c).

Experience has shown that simple

resurfacing of an existing pavement

does not require additional written

information for a CE determination.

Paragraph (c)(3) (routine

maintenance) is not explicitly covered

in the current § 771.117, but it is an

important program activity, especially

for transit with the re-definition of

preventive maintenance as a capital

expense.

Paragraph (c)(4) (ITS elements) is not

explicitly covered in the text of current

§ 771.117. Installation of isolated ITS

elements is proposed for paragraph (c),

but an areawide coordination of

multiple ITS elements that would have

greater impact on the transportation

system is proposed for paragraph (d)(2).

Paragraph (c)(5) (safety programs)

would incorporate the text of current

§ 771.117(c)(4) and would add a current

CE of the Federal Railroad

Administration related to safety.

Paragraph (c)(6) (support facility

improvements) would incorporate the

current § 771.117(c)(12), but would

extend it to cover toll facilities, control

centers, and vehicle test centers,

facilities that are similar in size and

activity to those in the current CE.

Paragraph (c)(7) (carpool programs)

uses a defined term to incorporate the

text of current § 771.117(c)(13) except

that carpool activities requiring land

acquisition and construction (such as

new parking lots) would be excluded

and covered in paragraph (d)(6).

Paragraph (c)(8) (emergency repairs)

would incorporate the text of current

§ 771.117(c)(9), but extends it to cover

modes other than highways.

Paragraph (c)(9) (operating assistance)

would incorporate the second part of

the text of current § 771.117(c)(16)

without substantive change.

Paragraph (c)(10) (vehicle acquisition)

would incorporate the text of current

§ 771.117(c)(17) without substantive

change.

Paragraph (c)(11) (purchase and lease

of equipment) would incorporate the

text of current § 771.117(c)(19), but

would extend it to cover leases and the

capital cost of contracting for transit

services.

Paragraph (c)(12) (vehicle

rehabilitation) would incorporate the

current § 771.117(c)(14), but would

extend it to cover conversions to

alternative fuels.

Paragraph (c)(13) (track maintenance)

would incorporate the text of current

§ 771.117(c)(18), but would extend it to

cover wayside systems in addition to

tracks and railbeds.

Paragraph (c)(14) (bicycle-pedestrian

facilities) would incorporate the text of

current § 771.117(c)(3) except that

bicycle and pedestrian projects

requiring land acquisition and

construction (such as bike paths on new

right-of-way) would be excluded and

covered in paragraph (d)(19).

Paragraph (c)(15) (ADA accessibility)

would incorporate the text of current

§ 771.117(c)(15) without substantive

change.

Paragraph (c)(16) (signing, etc.) would

incorporate the text of current

§ 771.117(c)(8) without substantive

change.

Paragraph (c)(17) (property

management) would incorporate the text

of current § 771.117(c)(2), (5), and (11),

and similar property management

activities under the transit program. In

addition, disposal of excess property

would be moved from § 771.117(d)(6)

because experience has shown that the

sale or transfer of property does not

have significant impact in and of itself,

and the U.S. DOT agency does not have

the statutory authority to control the

subsequent use of property after it has

been sold by the applicant.

Paragraph (c)(18) (transportation

enhancements) would incorporate the

text of current § 771.117(c)(7) and (10),

and would add other transportation

enhancement activities and transit

enhancements to the list.

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33973

Paragraph (c)(19) (noise walls) would

incorporate the current § 771.117(c)(6)

without substantive change.

Paragraph (c)(20) (mitigation banking)

would be added due to the

transportation enhancement provisions

and changes in the mitigation policies of

Federal resource agencies that allow or

encourage this form of mitigation.

The proposed changes in CEs in

paragraph (d) would be as follows:

Paragraph (d)(1) (highway

rehabilitation) would incorporate the

text of current § 771.117(d)(1) except

that simple resurfacing is now proposed

to be moved to paragraph (c) and would

not require a written CE demonstration.

Paragraph (d)(2) (operational

improvements) would incorporate part

of the text of current § 771.117(d)(2),

with clarification through examples of

the ITS systems that would be covered.

Paragraph (d)(3) (safety

improvements) would incorporate parts

of the text of current § 771.117(d)(2) and

(3) without substantive change. It would

add safety-related programs of recent

importance including seismic retrofit

and mitigation of wildlife hazards.

Paragraph (d)(4) (bridge

rehabilitation) would incorporate part of

the text of current § 771.117(d)(3) with

the clarification that the approaches to

the bridge or tunnel would also be

included in the project and that historic

bridges and bridges providing access to

ecologically sensitive areas are

excluded.

Paragraph (d)(5) (bridge replacement)

would incorporate the remaining part of

the text of current § 771.117(d)(3). If

applicable, ‘‘section 106’’ (National

Historic Preservation Act (16 U.S.C. 470

et seq.)), ‘‘4(f)’’ (49 U.S.C. 303), ‘‘section

404’’ (Federal Water Pollution Control

Act, as amended (33 U.S.C. 1251 to

1376)) and coastal zone management

issues must be addressed in the CE

documentation and coordinated with

the other agencies in accordance with

those statutes.

Paragraph (d)(6) (parking facilities)

would incorporate activities from the

current § 771.117(c)(13) and (d)(4), but

would apply to all parking facilities, not

just those on transportation fringes, if

the CE conditions are met.

Paragraph (d)(7) (new operations

centers) would be added as a CE

primarily covering the construction of

buildings to house the control centers

from which ITS systems are operated

and managed.

Paragraph (d)(8) (support facility

construction) would incorporate the text

of current § 771.117(d)(5) with the

addition of other similarly sized support

facilities.

Paragraph (d)(9) (access control)

would incorporate the text of current

§ 771.117(d)(7) without substantive

change.

Paragraph (d)(10) (track

improvements) would incorporate the

text of current § 771.117(c)(18) in

situations where land acquisition is

needed.

Paragraph (d)(11) (storage yards and

shops) would incorporate the text of

current § 771.117(d)(8) and (11) without

substantive change.

Paragraph (d)(12) (building

renovation) would incorporate the text

of current § 771.117(d)(9) without

substantive change.

Paragraph (d)(13) (transfer facilities)

would incorporate the text of current

§ 771.117(d)(10) without substantive

change.

Paragraph (d)(14) (ferry facilities)

would be added as an explicit statement

that work on existing ferry facilities may

be a CE, but concern for water-related

impacts necessitates its inclusion in

paragraph (d) so that a written CE

demonstration must be provided.

Paragraph (d)(15) (rail service

demonstrations) would be added as a

CE, based on our experience with

previous similar cases. If the service

demonstration were to lead to proposal

for permanent service involving Federal

financial support, that permanent

project would be separately evaluated

for its impacts.

Paragraph (d)(16) (advance land

acquisition) would have three parts to it

as follows:

(1) Paragraph (d)(16)(i) would allow

the acquisition primarily of

underutilized private railroad rights-ofway (ROW). It reflects current FTA

practice where present or recent rail

operations on the ROW ensure that

adjacent land uses remain generally

compatible with the continued

transportation use of the ROW;

(2) Paragraph (d)(16)(ii) would

respond to the provisions of the TEA–

21 section 1301 without attempting to

elaborate on those provisions. Such

elaboration would be covered in

separate guidance on the issue of

advance land acquisition; and,

(3) Paragraph (d)(16)(iii) would

incorporate the text of current

§ 771.117(d)(12) covering hardship and

protective acquisitions, without

substantive change.

Paragraph (d)(17) (joint development)

would incorporate part of the text of

current § 771.117(d)(6) without

substantive change.

Paragraph (d)(18) (bicycle facilities)

would incorporate activities covered in

the text of current § 771.117(c)(3). With

this change, bicycle projects involving

land acquisition and construction

would require a written CE

demonstration.

Paragraph (d)(19) (storm water

management) would add a new CE that

covers a transportation enhancement

activity that may involve land

acquisition and construction of storm

water detention or retention ponds. It is,

therefore, proposed to be included in

the list where a CE demonstration is

required.

Paragraph (d)(20) (historic

transportation facilities) would add a

new CE that covers a transportation

enhancement activity that will have

section 106 (historic preservation)

implications. It is, therefore, proposed

to be included in the list where a CE

demonstration is required.

Paragraph (d)(21) (other

transportation enhancements) would

add a new CE that covers the other

transportation enhancement activities

and transit enhancements that are not

explicitly listed.

We propose additional, nonregulatory

guidance on situations where a group of

different, but related, categorically

excluded actions may need to be

evaluated as a whole if they have a net

effect that warrants further

environmental analysis (e.g., ITS

projects throughout a corridor).

Some commenters including the

Michigan DOT, the AASHTO and others

requested that advance right-of-way

acquisition be added to the categorical

exclusion list. The U.S. EPA was

concerned about coordinating any

expansions of the list with other Federal

agencies and was particularly concerned

about wetlands mitigation needs. The

Ohio DOT suggested that rather than

expand the list of categorical exclusions,

our agencies develop ‘‘thresholds of

significance’’ whereby projects within

those thresholds would be those

considered for categorical exclusions.

Finally, a number of commenters,

including the Ventura County

Transportation Commission, the

ARTBA, and the Oregon DOT supported

the categorical exclusion of

transportation enhancement activities

and suggested categorically excluding

congestion mitigation and air quality

program (CMAQ) eligible projects. We

have considered these comments in

devising the proposed list. Nevertheless,

we invite comment on these suggestions

and on the appropriateness of the

activities proposed to be categorically

excluded, including whether or not

specific activities should be included in

the list under paragraph (c) or the list

under paragraph (d). We encourage

commenters to provide examples or

information drawn from their

33974 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

experience bearing on the

appropriateness of the proposed

categorical exclusions. We also invite

comments on the practice, begun with

the 1987 regulation, of using an openended list of examples of activities that

can be categorically excluded only after

appropriate documentation has been

prepared and approved on a case-bycase basis by the USDOT agency.

Section 1420.313 Environmental

Assessments

Current § 771.119 would be

redesignated as § 1420.313 with some

minor editing changes.

Section 1420.315 Findings of No

Significant Impact

Current § 771.121 would be

redesignated as § 1420.121 with minor

editing changes.

Section 1420.317 Draft Environmental

Impact Statements

The proposed section would revise

the current § 771.123 by expanding the

description of both public involvement

procedures and the information

products developed in accordance to the

proposed 23 CFR part 1410. Paragraph

(b) would specifically indicate that the

scoping process must consider the

results of the planning process

including public involvement and

interagency coordination. Items related

to mitigation would be expanded to

include environmental enhancements.

Paragraph (b) would now emphasize

public involvement and interagency

coordination. Paragraph (c) would add

language to our goals and policies in

terms of implementing NEPA. The

discussion on the use of consultants in

the development of the draft EIS would

be removed to avoid repetition with

proposed § 1420.301.

Section 1420.319 Final Environmental

Impact Statements

Current § 771.125 would be

redesignated as § 1420.319. Information

would be added in paragraph (a)(1) to

require any additional environmental

studies, public involvement, and/or

coordination to consider refinements of

alternatives and mitigation to be

presented in the FEIS.

Section 1420.321 Record of Decision

Current § 771.127 would be

redesignated as § 1420.321. In paragraph

(a), the information about preparation of

the notice of availability would be

expanded to indicate where and to

whom the notice should be provided. In

paragraph (c), wording would be added

to emphasize that mitigation and

enhancement features associated with

the selected alternative become

enforceable conditions of any U.S. DOT

actions.

Section 1420.323 Re-evaluations

Current § 771.129 would be

redesignated as § 1420.323. Paragraphs

(a) through (c) are essentially unchanged

from the current regulation. Paragraph

(d) has been added to ensure public

involvement and interagency

coordination when the situation

warrants. Guidance will be provided on

this subject. We invite comment on how

effective the proposed reevaluation

provision would be in addressing

projects which are implemented over an

extended period of time, with

construction occurring under multiple

contracts. We also invite comment on

the appropriate role of public

involvement in reevaluations.

Section 1420.325 Supplemental

Environmental Impact Statements

Current § 771.130 would be

redesignated as § 1420.325. It is

essentially unchanged from the current

regulation except that supplementation

now includes consideration of public

involvement and interagency

coordination.

Section-by-Section Analysis of the

Proposed Rule on Protection of Public

Parks, Wildlife and Waterfowl Refuges,

and Historic Sites

For ease of reference, a distribution

table is provided for the current sections

and proposed sections as follows:

Current Section Proposed Section

None ......................................................................................................................................................... 1430.101 Purpose.

771.109(a)(1) and(2) and part of 771.135(b) ........................................................................................... 1430.105 Applicability.

771.135(a) ................................................................................................................................................ 1430.103 Mandate.

771.135(c) and (e) ................................................................................................................................... 1430.109 Significance.

771.135(p)(1),(2),(4), and (7) ................................................................................................................... 1430.107 Use of land.

771.135(d),(f),(g),(h), and (p)(5) ............................................................................................................... 1430.111 Exceptions.

771.135(a)(2), part of (b), part of (i), (j),(k),(l),(p)(3), and (p)(6) .............................................................. 1430.113 Evaluations under NEPA.

771.135(m) and (o) .................................................................................................................................. 1430.115 Separate evaluations.

771.135(i)[last sentence] .......................................................................................................................... 1430.117 Programmatic evaluations.

771.135(o) ................................................................................................................................................ 1430.119 Linkage to planning.

None ......................................................................................................................................................... 1430.121 Definitions.

Section 1430.101 Purpose

This new section would be added to

state that this regulation implements 49

U.S.C. 303 and 23 U.S.C. 138 (section

4(f)).

Section 1430.103 Mandate

Current § 771.135(a)(1) would be

redesignated as § 1430.103 without

substantive change in text.

Section 1430.105 Applicability

Current §§ 771.109(a)(1) and (2)

provide the basis for this proposed

section. Also, part of § 771.135(b) would

be incorporated to make clear that the

U.S. DOT agency decides the

applicability of section 4(f).

Section 1430.107 Use of Land

Current § 771.135(p)(1), (2), (4), and

(7) would be redesignated as § 1430.107

without substantive change.

Section 1430.109 Significance of the

Section 4(f) Resource

Current § 135(c) and (e) would be

redesignated as § 1430.109 without

substantive change.

Section 1430.111 Exceptions

Current § 771.135(d), (g), (h), and

(p)(5) would be redesignated as

§ 1430.111 without substantive change.

The proposed section also incorporates

the current § 771.135(f), except that the

consultation requirement has been

modified to be consistent with the new

36 CFR part 800 recently published by

the Advisory Council on Historic

Preservation. As proposed, the

provision is silent with respect to the

relationship between ‘‘adverse effects’’

under 36 CFR part 800 and

‘‘constructive use’’ under this

regulation. We invite comment as to

whether or not a specific relationship

should be established in this regulation.

We also invite comment as to other

measures that we might take to better

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33975

coordinate the section 4(f) process with

the process established under 36 CFR

800. The proposed section also has three

new provisions in paragraphs (a), (b),

and (c), stating that section 4(f) would

not apply to park roads, parkways,

trails, transportation enhancement

activities, and transit enhancements

where the purpose of the U.S. DOT

agency approval of transportation

funding is to improve the section 4(f)

resource.

Section 1430.113 Section 4(f)

Evaluations and Determinations Under

the NEPA Umbrella

Current § 771.135(a)(2), (j), (k), (l),

(p)(3), (p)(6), most of (i), and part of (b)

would be redesignated as § 1430.113

without substantive change. The

proposed section also would include a

new provision in proposed paragraph

(b) allowing consideration of the

products of the planning process in the

section 4(f) evaluation. Both the current

and proposed regulation continue to

codify in regulation language of the

Supreme Court decision in Overton Park

(401 U.S. 402 (1971)) that an avoidance

alternative must be preferred unless the

evaluation demonstrates that there are

‘‘unique problems or unusual features

associated with it, or that the cost, the

social, economical, or environmental

impacts, or the community disruption

resulting from such alternatives reach

extraordinary magnitudes.’’ We invite

comment on whether or not this

standard deserves further definition in

regulation or in guidance in light of

changes to the highway program in the

years since the court’s decision. In

particular, we would appreciate views

on whether or not the qualitative

importance or value of the section 4(f)

resource should be explicitly taken into

account in determining whether or not

an avoidance alternative is ‘‘feasible and

prudent,’’ especially when balancing the

impacts of the various alternatives.

Section 1430.115 Separate Section 4(f)

Evaluations

Current § 771.135(m) and (n) would

be redesignated as § 1430.115 without

substantive change.

Section 1430.117 Programmatic

Section 4(f) Evaluations

The last sentence of current

§ 771.135(i) would be redesignated as

§ 1430.117, including a new explanatory

introductory sentence. The proposed

provision would provide a clear

regulatory basis for programmatic

section 4(f) evaluations and approvals, a

practice which the Department of

Transportation has used from time to

time. For example, programmatic

section 4(f) evaluations have been

prepared for the following situations:

Bikeways, historic bridges, projects

involving minimal use of property for

historic properties and projects

involving minimal use of parkland. We

invite suggestions of additional

situations that would be appropriate

subjects of future programmatic section

4(f) evaluations.

Section 1430.119 Linkage with

Transportation Planning

Current § 771.135(o) would be

redesignated as § 1430.119 and would

remain substantively unchanged except

that the concept of a preliminary section

4(f) evaluation has been extended to the

planning process in exactly the same

way it previously applied to first-tier

EISs.

Section 1430.121 Definitions

A new § 1430.121 would be added to

provide a consistent set of definitions of

terms used in the planning regulations

(23 CFR part 1410), the NEPA regulation

(23 CFR part 1420), and this regulation

(23 CFR part 1430).

Rulemaking Analyses and Notices

All comments received before the

close of business on the comment

closing date indicated above will be

considered and will be available for

examination using the docket number

appearing at the top of this document in

the docket room at the above address or

via the electronic addresses provided

above. The FHWA and the FTA will file

comments received after the comment

closing date in the docket and will

consider late comments to the extent

practicable. The FHWA and the FTA

may, however, issue a final rule at any

time after the close of the comment

period. In addition to late comments,

the FHWA and the FTA will also

continue to file in the docket relevant

information becoming available after the

comment closing date, and interested

persons should continue to examine the

docket for new material.

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

We have determined that this

proposed action is a significant

regulatory action within the meaning of

Executive Order 12866, and under the

Department of Transportation regulatory

policies and procedures because of

substantial State, local government,

congressional, and public interest.

These interests involve receipt of

Federal financial support for

transportation investments, appropriate

compliance with statutory requirements,

and balancing of transportation mobility

and environmental goals. We anticipate

that the economic impact of this

rulemaking will be minimal. Most costs

associated with these rules are

attributable to the provisions of the

TEA–21, the ISTEA, the Clean Air Act

(as amended), and other statutes

including earlier highway acts.

We consider this proposal to be a

means to simplify, clarify, and

reorganize existing regulatory

requirements. There have been no

changes to NEPA or CEQ regulations.

These rules would merely revise

existing NEPA regulations of the FHWA

and the FTA and conform those

regulations to the environmental

streamlining requirements of TEA–21.

In response to congressional direction in

TEA–21, the U.S. DOT is proposing to

implement improved coordinated

environmental review processes for

highway and transit projects. States

have been carrying out statewide

transportation planning activities with

title 23, U.S.C., and FTA planning and

research funds for many years. Neither

the individual nor the cumulative

impact of this action would be

significant because this action would

not alter the funding levels available to

the States for Federal or federallyassisted programs covered by the TEA–

21.

The amendments impose no

additional requirements. The

environmental streamlining process

under section 1309 of TEA–21

establishes coordinated environmental

review processes by which U.S. DOT

would work with other Federal agencies

to assure that major highway and transit

projects are advanced according to

cooperatively determined time frames.

Such processes have been incorporated

into a memorandum of understanding

between U.S. DOT and other Federal

agencies.

Regulatory Flexibility Act

In compliance with the Regulatory

Flexibility Act (5 U.S.C. 601–602), we

have evaluated the effects of this rule on

small entities, such as local

governments and businesses. The TEA–

21 provides the flexibility for these

agencies to provide the resources

necessary to meet any time limits

established under environmental

streamlining. Additionally, the FHWA

has issued guidance concerning

transportation funding for Federal

agency coordination using a full range

of options for reimbursement under

appropriate authorities. Accordingly,

the FHWA and the FTA certify that this

action would not have a significant

economic impact on a substantial

33976 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

number of small entities. This proposed

action would merely update and clarify

existing procedures. We specifically

invite comments on the projected

economic impact of this proposal, and

will actively consider such information

before completing our Regulatory

Flexibility Act analysis when adopting

final rules.

Environmental Impacts

We have also analyzed this proposed

action for the purpose of the National

Environmental Policy Act (42 U.S.C.

4321 et seq.), and preliminarily

conclude that this action would not

have any effect on the quality of the

human and natural environment and is

therefore categorically excluded under

23 CFR 771.117(c)(20). The TEA–21

directs the implementation of a

coordinated environmental review

process for highway construction

projects, yet, also ensures that such

concurrent review shall not result in a

significant adverse impact to the

environment or substantively alter the

operation of Federal law. Time periods

for review shall be consistent with time

periods established by the Council on

Environmental Quality under 40 CFR

1501.8 and 1506.10. As stated in the

TEA–21, nothing in section 1309 (the

environmental streamlining section)

shall affect the applicability of NEPA or

any other Federal environmental statute

or affect the responsibility of any

Federal officer to comply with or

enforce any such statute.

Executive Order 13132 (Federalism

Assessment)

This proposed action has been

analyzed in accordance with the

principles and criteria contained in

Executive Order 13132, dated August 4,

1999, and it has been determined that

this action does not have a substantial

direct effect or sufficient Federalism

implications on States and local

governments that would limit the

policymaking discretion of the States.

Nothing in this document directly

preempts any State law or regulation.

The TEA–21 directs the DOT to

establish an integrated NEPA review

and permitting process and to encourage

approvals as early as possible in the

scoping and planning process, yet also

to maintain an emphasis on a strong

environmental policy. Throughout the

proposed regulation there is an effort to

keep administrative burdens to a

minimum.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number 20.205,

Highway planning and construction (or

20.217, Motor Carrier Safety). The

regulations implementing Executive

Order 12372 regarding

intergovernmental consultation on

Federal programs and activities apply to

this program.

Unfunded Mandates Reform Act of

1995

This rule does not impose a Federal

mandate resulting in the expenditure by

State, local, tribal governments, in the

aggregate, or by the private sector, of

$100 million or more in any one year.

(2 U.S.C. 1531 et seq.).

Paperwork Reduction Act

This proposal contains no new

collection of information requirements

for purposes of the Paperwork

Reduction Act of 1995, 44 U.S.C. 3501–

3520. This notice of proposed

rulemaking would encourage the

coordination of approvals by Federal

agencies involved in the NEPA process

and could reduce the level of

recordkeeping.

The information prepared by nonFederal parties pursuant to this

proposed regulation is exempt from the

requirements of the Paperwork

Reduction Act. First, the collection of

information does not entail reporting of

information in response to identical

questions. NEPA documents do not

involve answering specific questions;

they address issues relating to the

requirements of multiple Federal

environmental statutes. There are too

many variables relating to the proposed

action, the location in which the action

is to be taken, and the statutes that are

implicated (and to what extent) to

permit a standardized format or content.

The issues to be addressed in NEPA

documents are therefore determined on

a case by case basis. Each is a one of a

kind document.

Second, the information is not

requested of non-Federal entities but of

Federal agencies. The State and local

transportation departments and transit

agencies compiling information are

voluntarily serving as consultants to

FHWA and FTA for their own

convenience. As the proposers of the

actions subject to NEPA, and the

owners, operators, and maintainers of

the resulting facility, and key

decisionmakers regarding the choices

involved in project development, it is

easier for them to prepare the NEPA

documents. Information is not requested

of outside entities except within the

PRA exception relating to ‘‘facts or

opinions submitted in response from

general solicitations of comments for the

general public (5 CFR 1320.3(h)(4).’’

Third, State and local departments of

transportation and transit agencies

develop this information reported to

FHWA/FTA as a normal part of doing

business. NEPA documents contain

engineering and environmental

information that is integral to

developing projects in a way that

conforms to State and local laws. The

development of engineering and

environmental information is an

unavoidable step in project

development whether or not the Federal

government is involved. We invite

comments on this analysis.

Executive Order 12630 (Taking of

Private Property)

This rule will not effect a taking of

private property or otherwise have

taking implications under Executive

Order 12630, Governmental Actions and

Interference with Constitutionally

Protected Property Rights.

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 13045 (Protection of

Children)

We have analyzed this action under

Executive Order 13045, Protection of

Children from Environmental Health

Risks and Safety Risks. This rule is not

an economically significant rule and

does not concern an environmental risk

to healthy or safety that may

disproportionately affect children.

Regulation Identification Number

A regulation identification 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 771

Environmental protection, Grant

programs—transportation, Highways

and roads, Historic preservation, Public

lands, Recreation areas, Reporting and

recordkeeping requirements.

23 CFR Part 1420

Environmental impact statements,

Grant programs—transportation,

Highways and roads, Mass

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33977

transportation, Reporting and

recordkeeping requirements.

23 CFR Part 1430

Environmental protection, Grant

programs—transportation, Highways

and roads, Historic preservation, Mass

transportation, Public lands, Recreation

areas, Reporting and recordkeeping

requirements, Wildlife refuges.

49 CFR Part 622

Environmental impact statements,

Grant programs—transportation, Mass

transportation, Reporting and

recordkeeping requirements.

49 CFR Part 623

Environmental protection, Grant

programs—transportation, Mass

Transportation, Public lands, Recreation

areas, Reporting and recordkeeping

requirements, Wildlife refuges.

Federal Highway Administration

23 CFR Chapter I

For reasons set forth in the preamble,

and under the authority of 23 U.S.C.

109, 128, 134, 138, and 315, the Federal

Highway Administration proposes to

amend Chapter I of title 23, Code of

Federal Regulations, as follows:

PART 771—[REMOVED]

1. Remove part 771.

23 CFR Chapter IV

For reasons set forth in the preamble,

the Federal Highway Administration

and the Federal Transit Administration

propose to amend proposed Chapter IV

in title 23, Code of Federal Regulations

(published elsewhere in this Federal

Register), as set forth below:

2. Add parts 1420 and 1430 to read as

follows:

PART 1420—NEPA AND RELATED

PROCEDURES FOR

TRANSPORTATION DECISIONMAKING

Subpart A—Purpose, Policy, and

Mandate

Sec.

1420.101 Purpose.

1420.103 Relationship of this regulation to

the CEQ regulation and other guidance.

1420.105 Applicability of this part.

1420.107 Goals of the NEPA process.

1420.109 The NEPA umbrella.

1420.111 Environmental justice.

1420.113 Avoidance, minimization,

mitigation, and enhancement

responsibilities.

Subpart B—Program and Project

Streamlining

1420.201 Relation of planning and project

development processes.

1420.203 Environmental streamlining.

1420.205 Programmatic approvals.

1420.207 Quality assurance process.

1420.209 Alternate procedures.

1420.211 Use of this part by other U.S. DOT

agencies.

1420.213 Emergency action procedures.

Subpart C—Process and Documentation

Requirements

1420.301 Responsibilities of the

participating parties.

1420.303 Interagency coordination.

1420.305 Public involvement.

1420.307 Project development and timing

of activities.

1420.309 Classes of actions.

1420.311 Categorical exclusions.

1420.313 Environmental assessments.

1420.315 Findings of no significant impact.

1420.317 Draft environmental impact

statements.

1420.319 Final environmental impact

statements.

1420.321 Record of decision.

1420.323 Re-evaluations.

1420.325 Supplemental environmental

impact statements.

Subpart D—Definitions

1420.401 Terms defined elsewhere.

1420.403 Terms defined in this part.

Authority: 23 U.S.C. 109, 128, 134, 138 and

315; 42 U.S.C. 2000d–2000d–4, 4321 et seq.,

and 7401 et seq.; 49 U.S.C. 303, 5301(e),

5303, 5309, and 5324 (b) and (c); 49 CFR

1.48, and 1.51; 33 CFR 115.60(b); 40 CFR

parts 1500–1508.

Subpart A—Purpose, Policy, and

Mandate

§ 1420.101 Purpose.

The purpose of this part is to establish

policies and procedures of the Federal

Highway Administration (FHWA) and

the Federal Transit Administration

(FTA) for implementing the National

Environmental Policy Act of 1969

(NEPA) as amended, and to supplement

the regulation of the Council on

Environmental Quality (CEQ), 40 CFR

parts 1500 through 1508. In concert

with 23 CFR 1410 this part sets forth a

NEPA process that integrates and

streamlines the compliance with all

applicable transportation and

environmental laws that govern Federal

transportation decisionmaking.

§ 1420.103 Relationship of this regulation

to the CEQ regulation and other guidance.

The CEQ regulation lays out NEPA

responsibilities for all Federal agencies.

This FHWA/FTA regulation

supplements the CEQ regulation with

specific provisions regarding the

FHWA/FTA approach to implementing

NEPA for the Federal surface

transportation actions under their

jurisdiction. For a full understanding of

NEPA responsibilities relative to the

FHWA/FTA actions, the reader must

refer to both this regulation and the CEQ

regulation. In addition, the FHWA/FTA

will rely on nonregulatory guidance

materials, training courses, and

documentation of best practices in the

management of their NEPA

responsibilities. The available materials

and training course schedules are

posted on the FHWA and the FTA web

sites and can be obtained by contacting

Planning and Environment Program

Manager, Federal Highway

Administration, Washington, DC 20590

or Associate Administrator for Planning,

Federal Transit Administration,

Washington, DC 20590.

§ 1420.105 Applicability of this part.

(a)(1) The provisions of this part and

the CEQ regulation apply to actions

where a U.S. DOT agency exercises

sufficient control and has the statutory

authority to condition the action or

approval. Actions taken by the applicant

or others that do not require any U.S.

DOT agency approval or over which a

U.S. DOT agency has no discretion,

including, but not limited to, projects or

maintenance on Federal-aid highways

or transit systems not involving Federalaid funds or approvals, and actions from

which the U.S. DOT agency are

excluded by law or regulation, are not

subject to this part.

(2) This part does not apply to, or

alter approvals by the U.S. DOT

agencies made prior to the effective date

of this part.

(3) NEPA documents accepted or

prepared by the U.S. DOT agency after

the effective date of this part shall be

developed in accordance with this part.

(b) In order to ensure meaningful

evaluation of alternatives and to avoid

commitments to transportation

improvements before they are fully

evaluated, the actions covered by each

environmental impact statement (EIS) or

environmental assessment (EA), or

designated a categorical exclusion (CE)

shall:

(1) Have independent utility or

independent significance, i.e., be usable

and be a reasonable expenditure even if

no additional transportation

improvements in the area are made;

(2) Connect logical termini, if linear in

configuration, and be of sufficient

length or size to address environmental

matters over a sufficiently wide area

that all reasonably foreseeable impacts

are considered; and

(3) Not restrict consideration of

alternatives for other reasonably

33978 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

foreseeable transportation

improvements.

§ 1420.107 Goals of the NEPA process.

(a) It is the intent of the U.S. DOT

agencies that the NEPA principles of

environmental stewardship and the

Transportation Equity Act for the 21st

Century (TEA–21) objective of timely

implementation of transportation

facilities and provision of transportation

services should guide Federal, State,

local, and tribal decisionmaking on all

transportation actions subject to these

laws. Accordingly, in administering

their responsibilities under numerous

transportation and environmental laws,

the U.S. DOT agencies will manage the

NEPA process to maximize attainment

of the following goals:

(1) Environmental ethic. Federal

actions reflect concern for, and

responsible choices that preserve,

communities and the natural

environment, in accordance with the

purpose and policy direction of NEPA

(42 U.S.C. 4321 and 4331), and the

specific mandates of statutes,

regulations, and executive orders.

(2) Environmental justice.

Disproportionate adverse effects on

minority and low income populations

are identified and addressed; no person,

because of handicap, age, race, color,

sex, or national origin, is excluded from

participating in, denied the benefits of,

or subject to discrimination under any

U.S. DOT agency program or activity

conducted in accordance with this

regulation.

(3) Integrated decisionmaking.

Federal transportation approvals are

coordinated in a logical fashion with

other Federal reviews and approvals,

and with State, local, and tribal

governmental actions, and actions by

private entities, in recognition of

interdependencies of decisions by the

various parties and the procedural

umbrella that the NEPA process

provides for facilitating decisionmaking.

(4) Environmental streamlining.

Federal transportation and

environmental reviews and approvals

are completed in a timely fashion

through a coordinated review process.

(5) Collaboration. Transportation

decisions are made through a

collaborative partnership involving

Federal, State, local, and tribal agencies,

communities, interest groups, private

businesses, and interested individuals.

(6) Transportation problem solving.

Transportation decisions represent cost

effective solutions to current and future

problems based on an interdisciplinary

evaluation of alternative courses of

action.

(7) Financial stewardship. Public

funds are used to achieve the maximum

benefit for the financial investment in

accordance with governing statutes and

regulations.

§ 1420.109 The NEPA umbrella.

(a) In keeping with the above goals, it

is the policy of the FHWA/FTA that the

NEPA process be the means of bringing

together all legal responsibilities, issues,

and interests relevant to the

transportation decision in a logical way

to evaluate alternative courses of action,

and that it lead to a single final decision

regarding the key characteristics of a

proposed action (such as, location,

major design features, mitigation

measures, and environmental

enhancements). This decision shall be

made in the best overall public interest

based on a balanced consideration of the

need for safe and efficient

transportation; the social, economic,

and environmental benefits and impacts

of the proposed action; and the

attainment of national, State, tribal, and

local environmental protection goals.

(b) Any environmentally related

study, review, or consultation required

by Federal law should be conducted

within the framework of the NEPA

process to assure integrated and

efficient decisionmaking. The State is

encouraged to conduct its activities

during the NEPA process toward the

same goal.

(c) Federal responsibilities to be

addressed in the NEPA process

whenever applicable to the decision on

the proposed action include, but are not

limited to the following protections of:

(1) Individual rights:

(i) Title VI of the Civil Rights Act of

1964 (42 U.S.C. 2000d–2000d–4) and

related statutes;

(ii) Uniform Relocation Assistance

and Real Property Acquisition Policies

Act of 1970 (42 U.S.C. 4601 et seq.), as

amended;

(iii) Americans with Disabilities Act

(42 U.S.C. 12101 et seq.);

(iv) 49 U.S.C. 5332,

nondiscrimination;

(v) 49 U.S.C. 5324(a), relocation

requirements;

(vi) 23 U.S.C. 128 and 49 U.S.C.

5323(b), public hearing requirements;

(2) Communities and community

resources:

(i) Executive Order 12898 (59 FR

7629, 3 CFR, 1995 comp., p. 859),

environmental justice for minority and

low-income populations;

(ii) 49 U.S.C. 303, protection of public

parks and recreation areas;

(iii) 23 U.S.C. 109(h), economic,

social, and environmental effects of

highways;

(iv) 49 U.S.C. 5324(b), economic,

social, and environmental effects of

transit;

(v) 23 U.S.C. 109(i), highway noise

standards;

(vi) Clean Air Act (23 U.S.C. 109(j), 42

U.S.C. 7509 and 7521(a) et seq.), as

amended;

(vii) Safe Drinking Water Act (42

U.S.C. 201 and 300);

(viii) Farmland Protection Policy Act

of 1981 (7 U.S.C. 4201–4209);

(ix) National Flood Insurance Act (42

U.S.C. 1401, 2414, 4001 to 4127);

(x) Solid Waste Disposal Act (Public

Law 89–272; 42 U.S.C. 6901 et seq.);

(xi) Resource Conservation and

Recovery Act of 1976 (42 U.S.C. 6901 et

seq.);

(xii) Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980 (42 U.S.C. 9601 et seq.);

(xiii) Emergency Planning and

Community Right to Know Act of 1986

(42 U.S.C. 11001 to 11050);

(3)Cultural resources and aesthetics:

(i) 49 U.S.C. 303, protection of

historic sites;

(ii) National Historic Preservation Act

(16 U.S.C. 470 et seq.);

(iii) 23 U.S.C. 109(h), economic,

social, and environmental effects of

highways;

(iv) 49 U.S.C. 5324(b), economic,

social, and environmental effects of

transit;

(v) 23 U.S.C. 109(i), highway noise

standards;

(vi) Clean Air Act (23 U.S.C. 109(j), 42

U.S.C. 7509 and 7521(a) et seq.), as

amended;

(vii) Safe Drinking Water Act (42

U.S.C. 201 and 300);

(viii) Farmland Protection Policy Act

of 1981 (7 U.S.C. 4201–4209);

(ix) National Flood Insurance Act (42

U.S.C. 1401, 2414, 4001 to 4127);

(x) Solid Waste Disposal Act (Public

Law 89–272; 42 U.S.C. 6901 et seq.);

(xi) Resource Conservation and

Recovery Act of 1976 (42 U.S.C. 6901 et

seq.);

(xii) Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980 (42 U.S.C. 9601 et seq.);

(xiii) Emergency Planning and

Community Right to Know Act of 1986

(42 U.S.C. 11001 to 11050);

(3) Cultural resources and aesthetics:

(i) 49 U.S.C. 303, protection of

historic sites;

(ii) National Historic Preservation Act

(16 U.S.C. 470 et seq.);

(iii) 23 U.S.C. 109(h), economic,

social, and environmental effects of

highways;

(iv) 49 U.S.C. 5324(b), economic,

social, and environmental effects of

transit;

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33979

1These documents are available for inspection

and copying as prescribed at 49 CFR part 7.

(v) Archeological and Historic

Preservation Act (16 U.S.C. 469);

(vi) Archeological Resources

Protection Act (16 U.S.C. 470aa to

47011);

(vii) Act for the Preservation of

American Antiquities (16 U.S.C. 431 to

433);

(viii) American Indian Religious

Freedom Act (42 U.S.C. 1996 et seq.);

(ix) Native American Grave Protection

and Repatriation Act (25 U.S.C. 3001 to

3013);

(x) 23 U.S.C. 144(o), historic bridges;

(xi) 23 U.S.C. 530, wildflowers;

(xii) 23 U.S.C. 131, 136, 319, highway

beautification;

(4) Waters and water-related

resources:

(i) 23 U.S.C. 109(h), economic, social,

and environmental effects of highways;

(ii) 49 U.S.C. 5324(b), economic,

social, and environmental effects of

transit;

(iii) Federal Water Pollution Act, as

amended (33 U.S.C. 1251 to 1376);

(iv) Wild and Scenic Rivers Act (16

U.S.C. 1271 to 1287);

(v) Land and Water Conservation

Fund Act of 1965 (16 U.S.C. 460);

(vi) Water Bank Act (16 U.S.C. 1301

to 1311);

(vii) Executive Order 11990 (42 FR

26961; 3 CFR, 1977 comp., p. 121),

protection of wetlands;

(viii) Emergency Wetlands Resources

Act of 1986 (16 U.S.C. 3921 to 3931);

(ix) Rivers and Harbors Act of 1899

(33 U.S.C. 401 et seq.);

(x) Executive Orders 11988 (42 FR

26951; 3 CFR, 1977 comp., p. 1171) and

12148 (44 FR 43239; 3 CFR, 1979 comp.,

p. 412), floodplain management;

(5) Wildlife, plants and natural areas:

(i) Endangered Species Act of 1973 (7

U.S.C. 136, 16 U.S.C. 1531 to 1543);

(ii) 49 U.S.C. 303, protection of

wildlife and waterfowl refuges;

(iii) 23 U.S.C. 109(h), economic,

social, and environmental effects of

highways;

(iv) 9 U.S.C. 5324(b), economic,

social, and environmental effects of

transit;

(v) Marine Protection Research and

Sanctuaries Act of 1972 (16 U.S.C. 1431

to 1445, 33 U.S.C. 1401 to 1445);

(vi) Fish and Wildlife Coordination

Act (16 U.S.C. 661 to 666);

(vii) Wilderness Act (16 U.S.C. 1131

to 1136);

(viii) Wild and Scenic Rivers Act (16

U.S.C. 1271 to 1287);

(ix) Coastal Zone Management Act of

1972 (16 U.S.C. 1451 to 1464);

(x) Coastal Barrier Resources Act (16

U.S.C. 3501 to 3510, 42 U.S.C. 4028);

(xi) National Trails System Act (16

U.S.C. 1241 to 1249);

(xii) Executive Order 13112 (64 FR

6183), Invasive Species.

§ 1420.111 Environmental justice.

(a) In accordance with the goals

established in Executive Order 12898, as

implemented by DOT Order 5610.2 and

the FHWA Order 6640.23,1 and the

requirements of the Civil Rights Act of

1964, Title VI, and its implementing

regulations, proposed actions shall be

developed in a manner to avoid or

mitigate disproportionately high and

adverse human health or environmental

effects, including interrelated social and

economic effects, on low income

populations and minority populations.

Adverse effects can include a denial of

or reduction in benefits.

(b) In performing an environmental

analysis of proposed actions, applicants

must analyze data necessary to

determine whether the actions will have

disproportionately high and adverse

effects on low income and minority

communities. When disproportionately

high and adverse effects are found, the

applicant must identify measures to

address these disproportionate effects,

including actions to avoid or mitigate

them, or it must explain and justify why

such measures cannot be taken.

(c) The findings and determinations

made pursuant to paragraphs (a) and (b)

of this section must be documented as

part of the NEPA document prepared for

the proposed action, or in a

supplemental document if the NEPA

process has been completed.

(d) In accordance with Executive

Order 12898, DOT Order 5610.2, and

the FHWA Order 6640.23, nothing in

this section is intended to, nor shall

create, any right to judicial review of

any action taken by the agency, its

officers or its recipients taken under this

section to comply with such Orders.

§ 1420.113 Avoidance, minimization,

mitigation, and enhancement

responsibilities.

(a) In accordance with the goals

established in § 1420.107, it is the

policy of the FHWA and the FTA that

proposed actions be developed as

described in this section, to the fullest

extent practicable. For the purposes of

this section, ‘‘practicable’’ means a

common sense balancing of

environmental values with safety,

transportation need, costs, and other

relevant factors in decisionmaking. No

additional findings or paperwork are

required.

(1) Adverse social, economic, and

environmental impacts to the affected

human communities and the natural

environment should be avoided.

(2) Where adverse impacts cannot be

avoided, proposed measures should be

developed to minimize adverse impacts.

(3) Measures necessary to mitigate

unavoidable adverse impacts be

incorporated into the action, or should

be part of a mitigation program

completed in advance of the action.

(4) Environmental enhancements

should be evaluated and incorporated

into the action as appropriate.

(b) Mitigation measures and

environmental enhancements shall be

eligible for Federal funding to the fullest

extent authorized by law.

(c) NEPA commitments.

(1) It shall be the responsibility of the

applicant in cooperation with the U.S.

DOT agency to implement those

mitigation measures and environmental

enhancements, stated as commitments

in the final EIS/ROD, EA/FONSI, or CE

prepared or supplemented pursuant to

this regulation, unless the commitment

is modified or eliminated in a

supplemental final EIS/ROD, EA/FONSI

or CE, or re-evaluation approved by the

U.S. DOT agency.

(2) If a final EIS/ROD, EA/FONSI, CE,

or other U.S. DOT agency approval

commits to coordination with another

agency during the final design and

construction phase, or during the

operational phase of the action, the

applicant is responsible for such

coordination, unless the commitment is

removed in a supplemental final EIS/

ROD, EA/FONSI or CE, or re-evaluation

approved by the U.S. DOT agency.

Subpart B—Program and Project

Streamlining

§ 1420.201 Relationship of planning and

project development processes.

(a) The planning products described

in § 1410.318 shall be considered early

in the NEPA process. The FTA and the

FHWA encourage all Federal, State and

local agencies with project level

responsibilities for investments

included in a transportation plan to

participate in the planning process so as

to maximize the usefulness of the

planning products for the NEPA process

and eliminate duplication.

(b) Applicants preparing documents

under this part shall, to the maximum

extent useful and practicable,

incorporate and utilize analyses,

studies, documents, and other sources

of information developed during the

transportation planning processes of 23

CFR part 1410 and other planning

processes in satisfying the requirements

of the NEPA process. The provisions of

40 CFR 1502.21 (incorporation by

reference) will be used as appropriate.

33980 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

(c) During scoping for an EIS or early

coordination for an environmental

assessment, the U.S. DOT agency and

the applicant shall, in consultation with

the transportation planning agencies

responsible for inclusion of the project

in the metropolitan (if applicable) and

statewide plan and program, review the

record of previously completed

planning activities, including any

existing statement of purpose and need

and evaluation of alternatives. Where

the U.S. DOT agency, in cooperation

with the applicant, determines that

planning decisions are adequately

supported, the detailed evaluation of

alternatives required under

§ 1420.313(b) or § 1420.317(c) may be

limited to the no action and reasonable

alternatives requiring further

consideration. In deciding which of the

evaluations and conclusions of the

planning process are adequately

supported and may be incorporated

during the NEPA process, the U.S. DOT

agency and the applicant shall take into

account the following:

(1) The validity and completeness of

the supporting analyses,

(2) The public involvement process

associated with those planning

products,

(3) The degree of coordination with

Federal, State, and local resource

agencies with interest in or authority

over the ultimate action(s); and

(4) The level of formal endorsement of

the analyses and conclusions by

participants in the planning process.

§ 1420.203 Environmental streamlining.

(a) For highway and mass transit

projects requiring an environmental

impact statement, an environmental

assessment, or an environmental review,

analysis, opinion, or environmental

permit, license, or approval by

operation of Federal law, as lead Federal

agency, the U.S. DOT agency, in

cooperation with the applicant, shall

perform the following:

(1) Consult with the applicant

regarding the issues involved, the likely

Federal involvement, and project

timing.

(2) Early in the NEPA process, contact

Federal agencies likely to be involved in

the proposed action to verify the nature

of their involvement and to discuss

issues, methodologies, information

requirements, time frames and

constraints associated with their

involvement.

(3) Identify and use the appropriate

means listed in 40 CFR 1500.4 and

1500.5 for reducing paperwork and

reducing delay.

(4) Document the results of such

consultation and distribute to the

appropriate Federal agencies for their

concurrence, identifying at a minimum

the following:

(i) Federal reviews and approvals

needed for the action,

(ii) Those issues to be addressed in

the NEPA process and those that need

no further evaluation,

(iii) Methodologies to be employed in

the conduct of the NEPA process,

(iv) Proposed agency and public

involvement processes, and

(v) A process schedule.

(5) Identify, during the course of

completing the NEPA process, points of

interagency disagreement causing delay

and immediately take informal

measures to resolve or reduce delay. If

these measures are not successful in a

reasonable time, the U.S. DOT agency

shall initiate a dispute resolution

process pursuant to section 1309 of the

TEA–21.

(b) A State may request that all State

agencies with environmental review or

approval responsibilities be included in

the coordinated environmental review

process and, with the consent of the

U.S. DOT agency, establish an

appropriate means to assure that Federal

and State environmental reviews and

approvals are fully coordinated.

(c) At the request of the applicant, the

coordinated environmental review

process need not be applied to an action

not requiring an environmental impact

statement.

(d) In accordance with the CEQ

regulations on reducing paperwork (40

CFR 1500.4), NEPA documents prepared

by DOT agencies need not devote paper

to impact areas and issues that are not

implicated in the proposed action and

need not make explicit findings on such

issues.

§ 1420.205 Programmatic approvals.

(a) Nothing in this part shall prohibit

the U.S. DOT agency from making

approvals which apply to future actions

consistent with the conditions

established for such programmatic

approvals.

(b) Applicants shall cooperate with

the U.S. DOT agency in conducting

program evaluations to ensure that such

programmatic approvals are being

properly applied.

§ 1420.207 Quality assurance process.

(a) The FHWA and the FTA shall

institute a process to assure that actions

subject to this part meet or exceed legal

requirements and are processed in a

timely manner.

(b) For actions processed with an

environmental impact statement, this

process shall include a legal sufficiency

review and may require the prior

concurrence of the Headquarters office

in accordance with procedures

established by the FTA and the FHWA.

§ 1420.209 Alternate procedures.

(a) An applicant may propose to the

U.S. DOT agency alternative procedures

for complying with the intent of this

part with respect to its actions.

(b) The U.S. DOT agency shall publish

such alternative procedures in the

Federal Register for notice and

comment and shall consult with the

CEQ pursuant to 40 CFR 1507.3.

(c) After taking into account

comments received, and negotiating

with the applicant appropriate changes

to such alternative procedures, the U.S.

DOT agency shall approve such

alternative procedures only after making

a finding that the alternative procedures

will be fully effective at complying with

NEPA and related responsibilities.

§ 1420.211 Use of this part by other U.S.

DOT agencies.

As authorized by the Secretary, other

U.S. DOT agencies may use this part for

specific actions or categories of actions

under their jurisdiction.

§ 1420.213 Emergency action procedures.

Requests for deviations from the

procedures in this part because of

emergency circumstances shall be

referred to the U.S. DOT agency for

evaluation and decision in consultation

with the CEQ in accordance with 40

CFR 1506.11.

Subpart C—Process and

Documentation Requirements

§ 1420.301 Responsibilities of the

participating parties.

(a) The CEQ regulation establishes

rules for lead agencies (40 CFR 1501.5)

and cooperating agencies (40 CFR

1501.6). It also encourages Federal

agencies to cooperate with State and

local agencies to eliminate duplication

(40 CFR 1506.2) and defines the

relationship between Federal agencies,

applicants, and contractors (40 CFR

1506.5).

(b) For actions on Federal lands that

are developed directly by the U.S. DOT

agency in cooperation with the Federal

land management agency,

responsibilities for management of the

NEPA process shall be as established by

interagency agreement or procedure.

(c) Use of contractors.

(1) The U.S. DOT agency or an

applicant may select and use

contractors, in accordance with

applicable contracting procedures, and

the provisions of 40 CFR 1506.5(c), in

support of their respective roles in the

NEPA process. An applicant which is a

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33981

State agency with statewide jurisdiction

may select a contractor to assist in the

preparation of an EIS. Where the

applicant is not a State agency with

statewide jurisdiction, the applicant

may select a contractor, after

coordination with the U.S. DOT agency

to assure compliance with 40 CFR

1506.5(c) relative to conflict of interest.

Contractors that have a role in the actual

writing of a NEPA document shall

execute a disclosure statement in

accordance with 40 CFR 1506.5(c),

specifying that such contractor has no

financial or other interest in the

outcome of the action (other than

engineering with the exception allowed

by paragraph (c)(2) of this section, if

applicable), and will not acquire such

an interest prior to the approval of the

final NEPA document by the U.S. DOT

agency or the termination of the

contractor’s involvement in writing the

NEPA document, whichever occurs

first.

(2) A State may procure the services

of a consultant, under a single contract,

for environmental impact assessment

and subsequent engineering and design

work, provided that the State conducts

a review that assesses the objectivity of

the NEPA work in accordance with the

provisions of 23 U.S.C. 112(g).

§ 1420.303 Interagency coordination.

(a) Interagency coordination during

the NEPA process involves the early and

continuing exchange of information

with interested Federal, State, local

public agencies, and tribal governments.

Interagency coordination should begin

early as part of the planning process and

continue through project development,

the preparation of an appropriate NEPA

document, and, by agreement, into the

implementation stage of the action.

Interested agencies include those that

express a continuing interest in any

aspect of the actions during the

planning process and project

development processes. They include

those agencies whose jurisdiction,

responsibilities, or expertise may

involve any aspect of the action or its

alternatives. The purpose of interagency

coordination is to aid in determining the

class of action, the scope of the NEPA

document, the identification of key

issues, the appropriate level of analysis,

methods of avoidance, minimization,

and mitigation of adverse impact,

opportunities for environmental

enhancement, and related

environmental requirements.

Coordination early in the NEPA process

must extend beyond agencies consulted

during the planning process to those

agencies whose interest begins only

when preliminary designs of alternative

actions are being developed. The

appropriate frequency and timing of

coordination with a particular agency

will depend on the interests of the

agency consulted.

(b) Federal land management entities,

neighboring States, and tribal

governments, that may be significantly

affected by the action or by any of the

alternatives shall be notified early in the

NEPA process and their views solicited

by the applicant in cooperation with the

U.S. DOT agency.

(c) Upon U.S. DOT agency written

approval of an EA, FONSI, separate

section 4(f) determination, or CE

designation, the applicant shall send a

notice of availability of the approved

document, or a copy of the approved

document itself, to the affected units of

Federal, State, and local government.

The notice shall briefly describe the

action and its location and impacts.

Cooperating agencies shall be provided

a copy of the approved document.

§ 1420.305 Public involvement.

(a) The applicant must have a

continuing program of public

involvement which actively encourages

and facilitates the participation of

transportation and environmental

interest groups, citizens groups, private

businesses, and the general public

including minority and low income

populations through a wide range of

techniques for communicating and

exchanging information. The applicant

shall use the products of the public

involvement process developed during

planning pursuant to 23 CFR 1410.212

and 1410.316, whenever such

information is reasonably available and

relevant, to provide continuity between

the public involvement programs.

(b) Each applicant developing projects

under this part must adopt written

procedures to carry out the public

involvement requirements of this

section and 40 CFR 1506.6, and, as

appropriate, 23 U.S.C. 128, and 49

U.S.C. 5323(b) and 5324(b). The

applicant’s public involvement

procedures shall apply to all classes of

action as described in § 1420.309 and

shall be developed in cooperation with

other transportation agencies with

jurisdiction in the same area, so that, to

the maximum extent practicable, the

public is presented with a consistent set

of procedures that do not vary with the

transportation mode of the proposed

action or with the phase of project

development. Where two or more

involved parties have separate

established procedures, a cooperative

process for determining the appropriate

public involvement activities and their

consistency with the separate agency’s

procedures will be cooperatively

established.

(c) Public involvement procedures

must provide for the following:

(1) Coordination of public

involvement activities with the entire

NEPA process and, when appropriate,

with the planning process. The

procedures also must provide for

coordination and information required

to comply with public involvement

requirements of other related laws,

executive orders, and regulations;

(2) Early and continuing opportunities

for the public to be informed about, and

involved in the identification of social,

economic, and environmental impacts

and impacts associated with relocation

of individuals, groups, or institutions;

(3) The use of an appropriate variety

of public involvement activities,

techniques, meeting and hearing

formats, and notification media;

(4) A scoping process that satisfies the

requirements of 40 CFR 1501.7;

(5) One or more public hearings or the

opportunity for hearing(s) to be held at

a convenient time and place that

encourage public participation, for any

project which requires the relocation of

substantial numbers of people,

substantially changes the layout or

functions of connecting transportation

facilities or of the facility being

improved, has a substantial adverse

impact on abutting property,

substantially affects a community or its

mass transportation service, otherwise

has a substantial social, economic,

environmental or other effect, or for

which the U.S. DOT agency determines

that a public hearing is in the public

interest;

(6) Reasonable notice to the public of

either a public hearing or the

opportunity for a public hearing where

a hearing is determined appropriate.

Such notice shall indicate the

availability of explanatory information;

(7) Where appropriate, the submission

to the U.S. DOT agency of a transcript

of each public hearing and a

certification (pursuant to 23 U.S.C. 128

or 49 U.S.C. 5324(b)(2)) that a required

hearing or hearing opportunity was

offered. The transcript should be

accompanied by copies of all written

statements from the public, submitted

either at the public hearing or during an

announced period after the public

hearing;

(8) Specific procedures for complying

with the public and agency involvement

and notification requirements for the

following: EAs, Findings of no

significant impact (FONSI), Draft EISs,

Final EISs, and Records of decision

(ROD);

33982 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

(9) Reasonable accommodations for

participation by persons with

disabilities, including, upon request, the

provision of auxiliary aids and services

for understanding speakers at meetings

and environmental documents.

(d) Where a re-evaluation of NEPA

documents is required pursuant to

§ 1420.323, the U.S. DOT agency and

the applicant will determine whether

changes in the project or new

information warrant additional public

involvement.

(e) A minimum public comment

period of 45 days shall be provided

prior to the initial adoption or

substantial revision of public

involvement procedures.

(f) Public involvement procedures in

effect as of the date of this part remain

valid, but will be reviewed periodically

for effectiveness.

§ 1420.307 Project development and

timing of activities.

(a) The FHWA and/or the FTA will

not approve the initiation and will not

authorize funding for final design

activities, property acquisition (except

the types of advance land acquisitions

described in § 1420.311(d)(16)),

purchase of construction materials or

transit vehicles, or construction, until

the following have been completed:

(1)(i) The action has been classified as

a categorical exclusion (CE), or

(ii) A FONSI has been approved, or

(iii) A final EIS has been approved,

made available for the prescribed period

of time, and a record of decision has

been signed;

(2) The U.S. DOT agency has received

transcripts of public hearings held, and

any required certifications that a hearing

or opportunity for a hearing was

provided; and

(3) The planning and programming

requirements of 23 CFR part 1410 have

been met.

(b) Before completion of the NEPA

document, if it becomes apparent that

the preferred alternative will not be

consistent with the design concept and

scope of the action identified in the

relevant plan and TIP, the applicant

shall immediately notify the State

agency responsible for the State TIP,

and, in metropolitan areas, the MPO, so

that the planning and programming

requirements of 23 CFR part 1410 can be

satisfied prior to the approval of a final

EIS, Record of Decision, FONSI or CE.

(c) Compliance with the requirements

of all applicable environmental laws,

regulations, executive orders, and other

related requirements as set forth in

§ 1420.109 should be completed prior to

the approval of the final EIS, FONSI, or

the CE designation. If full compliance is

not possible by the time the final EIS or

FONSI is prepared, the final EIS or

FONSI should reflect consultation with

the appropriate agencies and provide

reasonable assurance that the

requirements will be met. However, full

compliance with the U.S. EPA’s

conformity regulation at 40 CFR parts 51

and 93 is required prior to the approval

of the ROD, FONSI or CE designation.

Approval of the NEPA document

constitutes adoption of DOT agency

findings and determinations that are

contained therein unless otherwise

specified. The FHWA approval of the

appropriate NEPA document will

constitute its finding of compliance

with the report requirements of 23

U.S.C. 128. The FTA approval of the

appropriate NEPA document indicates

compliance with 49 U.S.C. 5324(b) and

fulfillment of the grant application

requirements of 49 U.S.C. 5323(b), if

such requirements are applicable to the

action.

(d) The completion of the

requirements set forth in this section is

considered the U.S. DOT agency’s

acceptance of the location of the action

and design concepts described in the

NEPA document unless otherwise

specified by the approving official.

However, such acceptance does not

commit the U.S. DOT agency to approve

any future grant request to fund the

preferred alternative.

§ 1420.309 Classes of actions.

(a) Class I (EISs). Actions that

significantly affect the environment

require an EIS (40 CFR 1508.27). The

following are examples of actions

normally requiring an EIS:

(1) A new controlled access freeway.

(2) A highway project of four or more

lanes on a new location.

(3) New construction or major

extension of fixed rail transit facilities

(e.g., rapid rail, light rail, automated

guideway transit).

(4) New construction or major

extension of a separate roadway for

buses or high occupancy vehicles not

located within an existing highway

facility.

(5) New construction or major

extension of an intercity railroad not

located within existing railroad right-ofway.

(6) A multimodal or intermodal

facility that includes or requires any of

the other Class I actions.

(b) Class II (Categorical Exclusions).

Actions that do not individually or

cumulatively have a significant

environmental impact are excluded

from the requirement to prepare an EA

or EIS. A specific list of CEs normally

not requiring NEPA documentation is

set forth in § 1420.311(c). Additional

actions not listed may be designated as

CEs pursuant to § 1420.311(d), if

documented environmental studies

demonstrate that the action would not,

either individually or cumulatively,

have a significant environmental

impact.

(c) Class III (EAs). Actions in which

the significance of the environmental

impact is not clearly established. All

actions that are not Class I or II are Class

III. All actions in this class require the

preparation of an EA to determine the

appropriate, subsequent NEPA

document (i.e., Findings of no

significant impact or EIS).

§ 1420.311 Categorical exclusions.

(a) Categorical exclusions (CEs) are

actions which meet the definition

contained in 40 CFR 1508.4, and are

known, on the basis of past experience

with similar actions, not to involve

significant environmental impacts. They

are actions which: Do not induce

significant impacts to planned growth or

land use for the area; do not require the

relocation of significant numbers of

people; do not have a significant impact

on any natural, cultural, recreational,

historic or other resource; do not

involve significant air, noise, or water

quality impacts; do not have significant

impacts on travel patterns; or do not

otherwise, either individually or

cumulatively, have any significant

environmental impacts.

(b) Any action which normally would

be classified as a CE but could involve

unusual circumstances will require the

U.S. DOT agency, in cooperation with

the applicant, to conduct appropriate

environmental studies to determine if

the CE classification is proper. Such

unusual circumstances include:

(1) Unique environmental impacts;

(2) Substantial controversy on

environmental grounds;

(3) Significant impact on properties

protected by 49 U.S.C. 303 (section 4(f))

or section 106 of the National Historic

Preservation Act; or

(4) Inconsistencies with any Federal,

State, or local law, requirement or

administrative determination relating to

the environmental aspects of the action.

(c) The following actions meet the

criteria for CEs in the CEQ regulation

(40 CFR 1508.4) and § 1420.311(a) of

this regulation. If other environmental

laws (i.e., those listed in § 1420.109(c))

do not apply to the action, then it does

not require any further NEPA approval

by the U.S. DOT agency. If the U.S. DOT

agency is not sure of the applicability of

one of these CEs or of other

environmental laws to a particular

proposed action, the applicant will be

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33983

required to provide supporting

documentation in accordance with

paragraph (d) of this section. The

following are CEs:

(1) Activities which do not involve or

lead directly to construction, such as

program administration (e.g., personnel

actions, procurement of consulting

services or office supplies); the

promulgation of rules, regulations,

directives, and legislative proposals;

planning and technical studies;

technical assistance activities; training

and research programs; technology

transfer activities; research activities as

defined in 23 U.S.C. 501–507;

archaeological planning and research;

approval of a unified planning work

program; development and

establishment of management systems

under 23 U.S.C. 303; approval of project

concepts under 23 CFR part 476;

preliminary engineering to define the

elements of a proposed action or

alternatives so that social, economic,

and environmental effects can be

assessed; Federal-aid system revisions

which establish classes of highways;

and designation of highways to the

National Highway System.

(2) Modernization of a highway by

resurfacing.

(3) Routine maintenance or minor

rehabilitation of existing transportation

facilities, including pavements, tracks,

railbeds, bridges, structures, stations,

terminals, maintenance shops, storage

yards, and buildings, that occurs

entirely on or within the facility, where

there is no change in the character and

use of the facility, and no substantial

disruption of service or traffic; purchase

of associated capital maintenance items;

preventive maintenance of transit

facilities, vehicles, and other

equipment.

(4) Incorporation of an Intelligent

Transportation Systems (ITS) element

into an existing transportation facility or

service, including the development,

purchase, installation, maintenance,

improvement, and operation of a

traveler information system, incident

management and emergency response

system, traffic management and control

system, security system, or MAYDAY

system that enables public agencies to

detect and respond to emergency

situations.

(5) Activities included in the State’s

highway safety program under 23 U.S.C.

402; enforcement of railroad safety

regulations, including the issuance of

emergency orders.

(6) Improvement of existing rest areas,

toll collection facilities, truck weigh

stations, traffic management and control

centers, and vehicle emissions testing

centers where no substantial land

acquisition or traffic disruption will

occur.

(7) Carpool and vanpool projects, as

defined in 23 U.S.C. 146, if no

substantial land acquisition or traffic

disruption will occur.

(8) Emergency repairs of highways,

roads and trails under 23 U.S.C. 125;

emergency repair of transit or railroad

facilities after a natural disaster or

catastrophic failure.

(9) Operating assistance to transit

agencies.

(10) Acquisition of buses, rail

vehicles, paratransit vehicles, and

transit-support vehicles, where the use

of these vehicles can be accommodated

by existing facilities or by new facilities

which are themselves CEs.

(11) Purchase or installation of

operating or maintenance equipment to

be located within an existing

transportation facility with no

significant impacts off the site; lease of

existing facilities, vehicles, or other

equipment for use in providing transit

services; capital cost of contracting for

transit services.

(12) Bus and rail car rehabilitation,

including the retrofit or replacement of

vehicles for alternative fuels, where the

use of these vehicles can be

accommodated by existing facilities or

new facilities which are themselves CEs.

(13) Improvement of existing tracks,

railbeds, communications systems,

signal systems, security systems, and

electrical power systems when carried

out within the existing right-of-way

without substantial service disruption.

(14) Construction of bicycle and

pedestrian lanes, paths, and facilities

within existing transportation facilities

or right-of-ways; installation of

equipment for transporting bicycles on

transit vehicles.

(15) Alterations to transportation

facilities or vehicles in order to make

them accessible by persons with

disabilities.

(16) Installation of fencing, signs,

pavement markings, small passenger

shelters, traffic signals, lighting, and

railroad warning devices where no

substantial land acquisition or traffic

disruption will occur.

(17) Transfer of Federal lands

pursuant to 23 U.S.C. 317 when the

subsequent action is not an FHWA

action; approvals of disposals of excess

right-of-way; transfer of surplus assets,

in accordance with 49 U.S.C. 5334(g);

approval of utility installations along or

across a transportation facility.

(18) Landscaping, streetscaping,

public art and other scenic

beautification; control and removal of

outdoor advertising; acquisition of

scenic easements and scenic or historic

sites for the purpose of preserving the

site.

(19) Installation of noise barriers or

other alterations to existing facilities to

provide for noise reduction; alterations

to existing non-historic buildings to

provide for noise reduction.

(20) Contributions to statewide or

regional efforts to conserve, restore,

enhance, and create wetlands or wildlife

habitats.

(d) Additionally, for individual

proposed actions to be categorically

excluded under this section, the

applicant shall submit documentation

which demonstrates that the specific

conditions or criteria for these CEs are

satisfied, that significant environmental

effects will not result, that the

applicant’s public involvement process

is consistent with the procedures

adopted pursuant to § 1420.305, that

any appropriate interagency

coordination has occurred, and that any

other applicable environmental laws

(e.g., those listed in § 1420.109(c)) have

been satisfied. This demonstration may

require investigations of specific areas

of impact to determine whether the CE

criteria are satisfied. If the DOT agency

is not certain that the appropriateness of

the CE has been demonstrated,

additional documentation or an EA or

EIS will be required of the applicant.

Examples of actions for which a CE

demonstration may be possible include,

but are not limited to:

(1) Modernization of a highway

through restoration, rehabilitation,

reconstruction, adding shoulders, or

adding auxiliary lanes (e.g., parking,

weaving, turning, climbing lanes), or

travel lanes in the median of an existing

facility, including any such action

necessary to accommodate other

transportation modes on an existing

facility.

(2) Transportation operational

improvements, including those that use

ITS, such as, freeway surveillance and

control systems, traffic signal

monitoring and control systems, transit

management systems, electronic fare

payment systems, and electronic toll

collection systems.

(3) Transportation safety

improvements and programs; hazard

eliminations, including construction of

grade separation to replace existing

highway-railway grade crossings;

projects to mitigate hazards caused by

wildlife; and seismic retrofit of existing

transportation facilities or structures.

(4) Rehabilitation or reconstruction of

tunnels, bridges, and other structures,

and the approaches thereto.

(5) Modification or replacement of an

existing bridge on essentially the same

alignment or location.

33984 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

(6) Construction of parking facilities

or carpool and vanpool projects that

involve land acquisition and

construction.

(7) Construction of new buildings to

house transportation management and

control centers, carpool and vanpool

operations centers, or vehicle emissions

testing centers.

(8) Construction of new rest areas, toll

collection facilities, truck weigh stations

or auto emissions testing or safety

testing facilities.

(9) Approvals for changes in highway

access control.

(10) Improvement of existing tracks,

railbeds, communications systems,

signal systems, security systems, and

electrical power systems, including

construction of sidings or passing

tracks; extension or expansion of rail

electrification on existing, operating rail

lines.

(11) Construction of new bus or rail

storage and maintenance facilities in

undeveloped areas or areas used

predominantly for industrial or

transportation purposes, where such

facility is compatible with existing

zoning, the site is located on or near a

street with adequate capacity to handle

anticipated traffic, and there is no

significant air or noise impact on the

surrounding community.

(12) Renovation, reconstruction, or

improvement of existing rail, bus, and

intermodal buildings and facilities,

including conversion to use by

alternative-fuel vehicles.

(13) Construction of bus transfer

facilities (an open area consisting of

passenger shelters, boarding areas,

kiosks and related street improvements)

or intermodal transfer facilities, when

located in a commercial area or other

high activity center in which there is

adequate street capacity for projected

traffic.

(14) Rehabilitation, renovation, or

improvement of existing ferry terminals,

piers, and facilities.

(15) Short-term demonstrations of rail

service on existing tracks.

(16) An acquisition of land or

property interests that meets the criteria

of paragraph (d)(16)(i), (ii) or (iii) of this

section may be evaluated against the

criteria for a CE in the CEQ regulations

(40 CFR 1508.4) and paragraph (a) of

this section separately from any planned

action that would use the land or

property interests. Any subsequent

action that would use the acquired

right-of-way or property interests and

would require a DOT agency action

must be separately reviewed in

accordance with this part prior to any

construction on, or change in the land.

The following types of acquisitions may

qualify as CEs:

(i) Acquisition of an existing

transportation right-of-way which is

linear in its general configuration and is

not publicly owned, such as a railroad

or a private road, for the purpose of

either maintaining preexisting levels of

transportation service on the facility or

of preserving the right-of-way for a

future transportation action or

transportation enhancement activity.

(ii) Acquisition of land, easements, or

other property interests with the intent

of preserving alternatives for a future

transportation action, where the

following conditions are met: The

transportation action that would use the

land or property interests has been

specifically included in a transportation

plan for the area adopted pursuant to 23

CFR part 1410 and such plan has been

found by the U.S. DOT agency to

conform to air quality plans in

accordance with 40 CFR parts 51 and

93, if applicable; and the acquisition

will not limit the evaluation of

alternatives to the planned action that

would use the land or property interests

including shifts in alignment that may

be required.

(iii) Acquisition of land or property

interests for hardship or protective

purposes where the following

conditions are met: The transportation

action that would use the land or

property interests has been specifically

included in a transportation plan for the

area adopted pursuant to 23 CFR part

1410 and such plan has been found by

the U.S. DOT agency to conform to air

quality plans in accordance with 40 CFR

parts 51 and 93, if applicable; the

hardship and protective buying will be

limited to a particular parcel or a small

number of parcels related to the planned

transportation action; and the

acquisition will not limit the evaluation

of alternatives to the planned action that

would use the land or property

interests, including shifts in alignment

that may be required.

(17) Approvals for joint or limited use

of right-of-way, where the proposed use

does not have significant adverse

impacts.

(18) Construction of a bicycle

transportation facility on its own, new

right-of-way.

(19) Mitigation of water pollution due

to storm water runoff from

transportation facilities.

(20) Rehabilitation and operation of

historic transportation buildings,

structures, or facilities (including

historic railroad or bus facilities and

canals).

(21) Transportation enhancement

activities and transit enhancements

defined in 23 U.S.C. 101 and 49 U.S.C.

5302.

§ 1420.313 Environmental assessments.

(a) An EA shall be prepared by the

applicant in consultation with the U.S.

DOT agency for each action(s) that is not

a CE and does not clearly require the

preparation of an EIS, or where the U.S.

DOT agency believes an EA would assist

in determining the need for an EIS.

(b) The EA shall evaluate the social,

economic, and environmental impacts

of the proposed action, reasonable

alternatives that would avoid or reduce

adverse impacts, measures which would

mitigate adverse impacts, and

environmental enhancements if any that

would aid in harmonizing the action

with the surrounding community. The

EA shall discuss compliance with other

related environmental laws, regulations,

and executive orders.

(c) The EA is subject to U.S. DOT

agency approval before it is made

available to the public as a U.S. DOT

agency document.

(d) For actions that require an EA, the

applicant, in consultation with the U.S.

DOT agency, shall do the following:

(1) Conduct interagency coordination

in accordance with § 1420.303,

beginning at the earliest appropriate

time, to advise agencies of the proposed

action and to achieve the following

objectives: Determine which aspects of

the proposed action have potential for

social, economic, or environmental

impact; identify alternatives and

measures which might avoid or mitigate

adverse impacts; identify environmental

enhancements that might aid in

harmonizing the action with the

surrounding community; and identify

other environmental review and

coordination requirements which

should be performed concurrently with

the EA. The results of interagency

coordination to the time of EA approval

by the U.S. DOT agency shall be

included in the EA.

(2) Provide for public involvement in

accordance with the procedures

established pursuant to § 1420.305.

Public involvement to the time of EA

approval by the U.S. DOT agency shall

be summarized in the EA.

(e) The EA need not be circulated for

comment but the document must be

made available for inspection in public

places readily accessible to the affected

community in accordance with

paragraphs (f) and (g) of this section.

Notice of availability of the EA, briefly

describing the action(s) and its impacts,

or a copy of the EA, shall be sent by the

applicant to the affected units of

Federal, State and local government.

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33985

(f) When, in accordance with the

public involvement procedures

established pursuant to § 1420.305, a

public hearing on an action evaluated in

an EA is held, the following shall occur:

(1) The EA shall be available at the

public hearing and for a minimum of 15

days in advance of the public hearing.

(2) The notice of the public hearing in

local newspapers shall announce the

availability of the EA and where it may

be obtained or reviewed.

(3) Pursuant to 40 CFR 1501.4(c)

comments shall be submitted in writing

to the applicant or the U.S. DOT agency

within 30 days of publication of the

notice of availability of the EA unless

the U.S. DOT agency determines, for

good cause, that a different period is

warranted.

(g) When, in accordance with the

public involvement procedures

established pursuant to § 1420.305, a

public hearing on an action evaluated in

an EA is not held, the following shall

occur:

(1) The applicant shall place a notice

in a newspaper(s) similar to a public

hearing notice at an appropriate stage of

development of the action.

(2) The notice shall advise the public

of the availability of the EA, state where

information concerning the action may

be obtained, and invite comments from

all parties with an interest in the social,

economic, or environmental aspects of

the action.

(3) Pursuant to 40 CFR 1501.4(c)

comments shall be submitted in writing

to the applicant or the U.S. DOT agency

within 30 days of the publication of the

notice unless the U.S. DOT agency

determines, for good cause, that a

different period is warranted.

(h) If no significant impacts are

identified, the applicant shall consider

the public and agency comments

received; revise the EA as appropriate;

furnish the U.S. DOT agency a copy of

the revised EA, the public hearing

transcript, where applicable, and copies

of any comments received and

responses thereto; and recommend a

FONSI. The revised EA shall also

document compliance, to the fullest

extent possible, with other related

environmental laws, regulations, and

executive orders applicable to the

action, or provide reasonable assurance

that the requirements will be met. Full

compliance with the transportation

conformity rule (40 CFR parts 51 and

93) and the planning regulation (23 CFR

part 1410) is required before completion

of the FONSI.

(i) If, at any point in the EA process,

the U.S. DOT agency determines that

the action is likely to have a significant

impact on the environment, the

preparation of an EIS will be required.

(j) Any action which normally would

be classified as an EA but could involve

unusual circumstances, such as,

substantial controversy on community

impact and/or environmental grounds,

will require the U.S. DOT agency, in

cooperation with the applicant, to

determine if the EA is the appropriate

level of documentation.

§ 1420.315 Findings of no significant

impact.

(a) The U.S. DOT agency will review

the EA and other documents submitted

pursuant to § 1420.313 (e.g., copies of

any hearing transcript and written

comments, and the applicant’s

responses). If the U.S. DOT agency

agrees with the applicant’s

recommendation of a FONSI, it will

make such finding in writing and

incorporate by reference the EA and any

other related documentation.

(b) Pursuant to 40 CFR 1501.4(e)(2),

for proposed actions which are either

similar to ones normally requiring an

EIS or are without precedent and the

U.S. DOT agency is processing the

action with an EA and expects to issue

a FONSI, copies of the EA and proposed

FONSI shall be made available for

review by the public and affected units

of government for a minimum of 30

days before the U.S. DOT agency makes

its final decision. This public

availability shall be announced by a

notice similar to a public hearing notice.

(c) After a FONSI has been made by

the U.S. DOT agency, a notice of

availability of the FONSI shall be sent

by the applicant to the affected units of

Federal, State and local government,

and the document shall be available

from the applicant and the U.S. DOT

agency upon request by the public.

Notice shall also be sent to the State

intergovernmental review contacts

established under Executive Order

12372.

(d) Where substantial changes are

made to the project and/or its potential

impacts after the public review period

for the EA, the applicant, pursuant to

§ 1420.323(c), shall make copies of the

revised EA and the FONSI available for

review by the public and affected units

of government for a minimum of 30

days before the U.S. DOT agency makes

its final decision, unless the U.S. DOT

agency determines, for good cause, that

a different period is warranted.

(e) If another Federal agency has

issued a FONSI on an action which

includes an element proposed for U.S.

DOT agency action, the U.S. DOT

agency will evaluate the other agency’s

EA/FONSI. If the U.S. DOT agency

determines that this element of the

action and its environmental impacts

have been adequately identified and

assessed, the U.S. DOT agency will

issue its own FONSI in accordance with

paragraphs (a), (b), (c) and (d) of this

section, incorporating the other agency’s

FONSI and any other related

documentation. If environmental issues

have not been adequately identified and

assessed, the U.S. DOT agency will

require appropriate environmental

studies to complete the assessment.

§ 1420.317 Draft environmental impact

statements.

(a) A draft EIS shall be prepared when

the U.S. DOT agency determines that

the action(s) is likely to cause

significant impacts on the environment

or if the preparation of an EIS is

otherwise appropriate. When the

decision has been made by the U.S.

DOT agency to prepare an EIS, the U.S.

DOT agency will publish a Notice of

Intent (40 CFR 1508.22) in the Federal

Register. Applicants must announce the

intent to prepare an EIS by appropriate

means at the local level in accordance

with the public involvement procedures

established pursuant to § 1420.305.

(b) The U.S. DOT agency, in

cooperation with the applicant, will

publish the Notice of Intent and begin

a scoping process to establish the scope

of the draft EIS and the work necessary

for its preparation. The documented

results of the planning process relevant

to the action, including the public

involvement and interagency

coordination that has occurred, must be

considered in scoping. Scoping is

normally achieved through the actions

taken to comply with the public

involvement procedures and

interagency coordination required by

§§ 1420.303 and 1420.305. The scoping

process will: Review the range of

alternatives and impacts and the major

issues to be addressed in the EIS; aid in

determining which aspects of the

proposed action have potential for

social, economic, or environmental

impact; help identify measures which

might mitigate adverse environmental

impacts; identify environmental

enhancements that might aid in

harmonizing the action with the

surrounding community; identify other

environmental review and coordination

requirements that must be performed

concurrently with the EIS preparation;

and achieve the other objectives of 40

CFR 1501.7 and environmental

streamlining (§ 1420.203). If a public

scoping meeting is to be held, it must be

announced in the U.S. DOT agency ’s

Notice of Intent and by an appropriate

means at the local level.

33986 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

2This document is available for inspection and

copying as prescribed in 49 CFR part 7.

(c) The draft EIS shall be prepared by

the U.S. DOT agency in cooperation

with the applicant or, where permitted

by 40 CFR 1506.5, by the applicant with

appropriate guidance and participation

by the U.S. DOT agency. The draft EIS

shall evaluate all reasonable alternatives

and may rely on information developed

in accordance with 23 CFR part 1410.

The draft EIS shall discuss the reasons

why other alternatives, which may have

been considered, were eliminated from

detailed study. The draft EIS shall

evaluate the social, economic, and

environmental impacts of the proposed

action, reasonable alternatives that

would avoid or reduce adverse impacts,

measures which would mitigate adverse

impacts, and environmental

enhancements that would aid in

harmonizing the action with the

surrounding community. Alternatives

must be sufficiently well-defined to

allow full evaluation of the specific

alignment and design variations that

would avoid or minimize adverse

impacts. The draft EIS shall summarize

the public involvement and interagency

coordination to the time of its approval.

The draft EIS shall also summarize the

studies, reviews, consultations, and

coordination required by other related

environmental laws, regulations, and

executive orders to the extent

appropriate at this stage in the

environmental process.

(d) The U.S. DOT agency, when

satisfied that the draft EIS complies

with NEPA requirements, will approve

the draft EIS for circulation by signing

and dating the cover sheet.

(e) A lead, joint lead, or a cooperating

agency shall be responsible for printing

and distributing the draft EIS. The

initial printing of the draft EIS shall be

in sufficient quantity to meet requests

for copies which can reasonably be

expected from agencies, organizations,

and individuals. Normally, copies will

be furnished free of charge. However,

with U.S. DOT agency concurrence, the

party requesting the draft EIS may be

charged a fee which is not more than the

actual cost of reproducing the copy and

also must be informed of the nearest

location where the draft EIS may be

reviewed without charge.

(f) The draft EIS shall be circulated for

comment by the applicant on behalf of

the U.S. DOT agency. The draft EIS shall

be made available to the public and

transmitted to agencies for comment no

later than the time the document is filed

with the Environmental Protection

Agency in accordance with 40 CFR

1506.9. The draft EIS shall be

transmitted to the following:

(1) Public officials, interest groups,

and members of the public known to

have an interest in the proposed action

or alternatives;

(2) Federal, State and local

government agencies expected to have

jurisdiction or responsibility over, or

interest or expertise in, the action, and

to the State intergovernmental review

contacts established under Executive

Order 12372; and

(3) Neighboring States and Federal

land management entities which may be

affected by any of the alternatives.

(g) Public hearing requirements are to

be carried out in accordance with the

provisions of § 1420.305 and this

section. Whenever a public hearing is

held, the draft EIS shall be available at

the public hearing and for a minimum

of 15 days in advance of the public

hearing. The availability of the draft EIS

shall be mentioned, and public

comments requested, in any public

hearing notice and at any public hearing

presentation. If a public hearing is not

held, a notice shall be placed in a

newspaper similar to a public hearing

notice advising where the draft EIS is

available for review, how copies may be

obtained, and where the comments

should be sent.

(h) Through the U.S. Environmental

Protection Agency’s notice of

availability (40 CFR 1506.10), the U.S.

DOT agency shall establish a period of

not less than 45 days for the receipt of

comments on the draft EIS. The draft

EIS or a transmittal letter sent with each

copy of the draft EIS shall identify

where comments are to be sent and

when the comment period ends.

§ 1420.319 Final environmental impact

statements.

(a)(1) After circulation of a draft EIS

and consideration of comments

received, a final EIS shall be prepared

by the U.S. DOT agency in cooperation

with the applicant or, where permitted

by 40 CFR 1506.5, by the applicant with

appropriate guidance and participation

by the U.S. DOT agency. Preparation of

the final EIS will involve such

additional public involvement,

interagency coordination, and

engineering or environmental studies as

are necessary to consider the

appropriateness of refinements in the

alternatives and the incorporation of

mitigation measures and environmental

enhancements in response to comments

received on the draft EIS.

(2) Every reasonable effort shall be

made to resolve interagency

disagreements on actions before

processing the final EIS. If major issues

remain unresolved, the final EIS shall

identify those issues and the

coordination and other efforts made to

resolve them.

(3) The final EIS shall evaluate all

reasonable alternatives considered and

identify the preferred alternative. It

shall also discuss substantive comments

received on the draft EIS and responses

thereto, summarize public involvement

and interagency coordination, and

describe the environmental design

features, including mitigation measures

and environmental enhancements, that

are incorporated into the proposed

action. Environmental design features or

other mitigation measures presented as

commitments in the final EIS shall be

incorporated into the action. The final

EIS shall also document compliance

with other related environmental laws,

regulations, and executive orders

applicable to the action, and, if full

compliance is not possible, provide

reasonable assurance that the

requirements will be met.

(b) The U.S. DOT agency will indicate

approval of the final EIS by signing and

dating the cover page. Approval of the

final EIS does not commit the U.S. DOT

agency to approve any future grant

request.

(c) The initial printing of the final EIS

shall be in sufficient quantity to meet

the request for copies which can be

reasonably expected from agencies,

organizations, and individuals.

Normally, copies will be furnished free

of charge. However, with U.S. DOT

agency concurrence, the party

requesting the final EIS may be charged

a fee which is not more than the actual

cost of reproducing the copy and also

must be informed of the nearest location

where the final EIS may be reviewed

without charge.

(d) The final EIS shall be transmitted

to any persons, organizations, or

agencies that made substantive

comments on the draft EIS and to

anyone requesting a copy, no later than

the time the document is filed with the

U.S. EPA. In the case of lengthy

documents, the U.S. DOT agency may

allow alternative circulation processes

in accordance with 40 CFR 1502.19. The

applicant shall publish a notice of

availability in local newspapers and

make the final EIS available through the

mechanism established pursuant to

DOT Order 4600.13 2 which implements

Executive Order 12372. The final EIS

shall be available for public review at

the applicant’s offices and at

appropriate DOT agency offices for at

least 30 days after the U.S. EPA

publication of the Federal Register

notice of availability. Copies should also

be made available for public review at

institutions such as local government

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33987

offices, libraries, and schools, as

appropriate.

§ 1420.321 Record of decision.

(a) The U.S. DOT agency will

complete and sign a record of decision

(ROD) no sooner than 30 days after the

U.S. EPA publication in the Federal

Register of the notice of availability for

the final EIS or 90 days after the U.S.

EPA publication of the notice for the

draft EIS, whichever is later. The ROD

will present the basis for the decision as

specified in 40 CFR 1505.2, summarize

any mitigation measures and

environmental enhancements that have

been incorporated into the action, and

document any required section 4(f)

approval in accordance with 23 CFR

part 1430. Until the ROD has been

signed, no further approvals relative to

the action may be given except those for

administrative activities taken to secure

further project funding and for other

activities consistent with the limitation

on actions in 40 CFR 1506.1. The

applicant, in coordination with the U.S.

DOT agency shall publish a notice of

availability of the ROD for public review

in a newspaper of general circulation,

and, to the extent practicable, provide

the approved ROD to all persons,

organizations, and agencies that

received a copy of the final EIS pursuant

to § 1420.319(d).

(b) After issuance of a ROD, the U.S.

DOT agency shall issue a revised ROD

if it wishes to approve an alternative

which was not identified as the

preferred alternative but was fully

evaluated in the final EIS or proposes to

make substantial changes to the

mitigation measures or findings

discussed in the original ROD. Before

issuing the revised ROD, the U.S. DOT

agency shall consider whether

additional notification, interagency

coordination, and public involvement

are needed in accordance with

§ 1420.303 and § 1420.305. To the extent

practicable the approved revised ROD

shall be provided to all persons,

organizations and agencies that received

a copy of the Final EIS pursuant to

§ 1420.319(d).

(c) Upon approval of the ROD, the

mitigation and environmental

enhancements in the final EIS

associated with the alternative selected

in the ROD become enforceable

conditions of any subsequent grant

related to the action or other DOT

agency approval of the action. The U.S.

DOT agency will ensure implementation

of mitigation and environmental

enhancements as described in

§ 1420.113.

§ 1420.323 Re-evaluations.

(a) A written evaluation of the draft

EIS shall be prepared by the applicant

in cooperation with the U.S. DOT

agency if a final EIS is not approved by

the U.S. DOT agency within three years

from the date of the draft EIS

circulation. The purpose of this

evaluation is to determine whether a

supplement to the draft EIS or a new

draft EIS is needed.

(b) A written evaluation of the final

EIS will be required before further

approvals may be granted if major steps

to advance the action (e.g., authority to

undertake final design, authority to

acquire a significant portion of the rightof-way, or approval of the plans,

specifications and estimates) have not

occurred within three years after the

approval of the final EIS, final EIS

supplement, or the last major DOT

agency approval or grant.

(c) After approval of the EIS, FONSI,

or CE designation, the applicant shall

consult with the U.S. DOT agency prior

to requesting any major approvals or

grants to establish whether or not the

approved environmental document or

CE designation remains valid for the

requested U.S. DOT action. These

consultations will be documented when

determined necessary by the U.S. DOT

agency.

(d) A re-evaluation under this section

shall include additional notification,

interagency coordination, and public

involvement as appropriate in

accordance with § 1420.303 and

§ 1420.305.

§ 1420.325 Supplemental environmental

impact statements.

(a) A draft EIS or final EIS may be

supplemented whenever the U.S. DOT

agency determines that supplementation

would improve decisionmaking, better

inform the agency or the public, or serve

other purposes. An EIS shall be

supplemented whenever the U.S. DOT

agency determines that:

(1) Changes to the proposed action

would result in significant

environmental impacts that were not

evaluated in the EIS.

(2) New information or circumstances

relevant to environmental concerns and

bearing on the proposed action or its

impacts would result in significant

environmental impacts not evaluated in

the EIS.

(b) A supplemental EIS will not be

necessary where:

(1) The changes to the proposed

action, new information, or new

circumstances result in the actual

lessening of adverse environmental

impacts evaluated in the EIS without

causing other environmental impacts

that are significant and were not

evaluated in the EIS; or

(2) The U.S. DOT agency decides to

approve an alternative fully evaluated in

an approved final EIS but not identified

as the preferred alternative. In such a

case, a ROD shall be prepared and

circulated in accordance with

§ 1420.321.

(c) Where the U.S. DOT agency is

uncertain of the significance of the new

impacts, the applicant will develop

appropriate environmental studies or, if

the U.S. DOT agency deems appropriate,

an EA to assess the impacts of the

changes, new information, or new

circumstances. If, based upon the

studies, the U.S. DOT agency

determines that a supplemental EIS is

not necessary, the U.S. DOT agency

shall so indicate in the project file.

(d) A supplement is to be developed

using the same process and format (i.e.,

draft EIS, final EIS, and ROD) as an

original EIS, except that scoping is not

required. Public involvement and

interagency coordination commensurate

with the nature and scope of the

supplemental EIS shall be conducted in

accordance with § 1420.305 and the

public involvement procedures

developed thereunder.

(e) In some cases, a supplemental EIS

may be required to address issues of

limited scope, such as the extent of

proposed mitigation or the evaluation of

location or design variations for a

limited portion of the overall project.

Where this is the case, the preparation

of a supplemental EIS shall not

necessarily prevent the granting of new

approvals; require the withdrawal of

previous approvals; or require the

suspension of project activities for any

activity not directly affected by the

supplement. If the changes in question

are of such magnitude to require a new

evaluation of the entire action, or more

than a limited portion of the overall

action, the U.S. DOT agency shall

suspend any activities which would

have an adverse environmental impact

or limit the choice of reasonable

alternatives, until the supplemental EIS

is completed.

Subpart D—Definitions

§ 1420.401 Terms defined elsewhere.

The definitions contained in the CEQ

regulation (40 CFR 1508) and in titles 23

(23 U.S.C. 101) and 49 of the United

States Code (49 U.S.C. 14202) are

applicable except as modified in

§ 1420.403.

33988 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

§ 1420.403 Terms defined in this part.

The following definitions apply to

this part and to part 1430 of this

chapter:

Action means a surface transportation

infrastructure or service investment

(e.g., highway, transit, railroad, or

mixed mode) proposed for direct

implementation by the U.S. DOT agency

or for the U.S. DOT agency financial

assistance; and other activities, such as,

joint or multiple use of right-of-way,

changes in access control, that require a

U.S. DOT agency approval or permit,

but may or may not involve a

commitment of Federal funds; and other

FHWA or FTA program decisions, such

as, promulgation of regulations and

approval of programs, unless

specifically defined by statute or

regulation as not being an action.

Applicant means the Federal, State or

local governmental authority that the

U.S. DOT agency works with to conduct

environmental studies and prepare

environmental documents. For

transportation actions implemented by

the Federal government on Federal

lands, the U.S. DOT agency or the

Federal land management agency will

take on the responsibilities of the

applicant described herein.

Environmental enhancement means a

measure which contributes to blending

the proposed project harmoniously with

its surrounding human communities

and the natural environment and

extends beyond those measures

necessary to mitigate the specific

adverse impacts resulting from a

proposed transportation action. This

includes measures eligible for Federal

funding, such as transportation

enhancement activities or transit

enhancements, and measures funded by

the applicant or by others.

Environmental studies means the

investigations of potential social,

economic, or environmental impacts

conducted:

(1) As part of the metropolitan or

statewide transportation planning

process under 23 CFR part 1410,

(2) To determine the NEPA class of

action and scope of analysis, and/or

(3) To provide information to be

included in a NEPA decision process.

Hardship acquisition means the early

acquisition of property by the applicant

at the property owner’s request to

alleviate particular hardship to the

owner, in contrast to others, because of

an inability to sell his/her property.

This is justified when the property

owner can document on the basis of

health, safety, or financial reasons that

remaining in the property poses an

undue hardship compared to others.

Planning process means the process of

developing metropolitan and statewide

transportation plans and programs in

accordance with 23 CFR part 1410.

Protective acquisition means the

purchase of land to prevent imminent

development of a parcel which is

needed for a proposed transportation

corridor or site. Documentation must

clearly demonstrate that development of

the land would preclude future

transportation use and that such

development is imminent. Advance

acquisition is not permitted for the sole

purpose of reducing the cost of property

for a proposed project.

Section 4(f) means the provision in

law which provides protection to

certain public lands and all historic

properties (now codified in 49 U.S.C.

303 and 23 U.S.C. 138).

Transportation conformity means the

process for assuring or conformity of

transportation projects, programs, and

plans with the purpose of State plans for

attainment and maintenance of air

quality standards under the U.S. EPA

regulation at 40 CFR parts 51 and 93.

The process applies only to areas

designated as nonattainment or

maintenance for a transportation related

pollutant.

U.S. DOT agency means the FHWA,

the FTA, or the FHWA and the FTA

together. In addition, U.S. DOT agency

refers to any other agency within the

U.S. Department of Transportation that

uses this part as provided for in

§ 1420.209.

U.S. DOT agency approval means the

approval by FHWA/FTA of the

applicant’s request relative to an action.

The applicant’s request may be for

Federal financial assistance, or it may be

for some other U.S. DOT agency

approval that does not involve a

commitment of Federal funds.

PART 1430—PROTECTION OF PUBLIC

PARKS, WILDLIFE AND WATERFOWL

REFUGES, AND HISTORIC SITES

Sec.

1430.101 Purpose.

1430.103 Mandate.

1430.105 Applicability.

1430.107 Use of land.

1430.109 Significance of the section 4(f)

resource.

1430.111 Exceptions.

1430.113 Section 4(f) evaluations and

determinations under the NEPA

umbrella.

1430.115 Separate section 4(f) evaluations.

1430.117 Programmatic section 4(f)

evaluations.

1430.119 Linkage with transportation

planning.

1430.121 Definitions.

Authority: 23 U.S.C. 138 and 315; 49

U.S.C. 303; 49 CFR 1.48 and 1.51.

§ 1430.101 Purpose.

The purpose of this part is to

implement 49 U.S.C. 303 and 23 U.S.C.

138 which were originally enacted as

section 4(f) of the Department of

Transportation Act of 1966 and are still

commonly referred to as section 4(f).

§ 1430.103 Mandate.

(a) The U.S. DOT agency may approve

a transportation project that uses

publicly owned land from a significant

public park, recreation area, or wildlife

and waterfowl refuge, or any land from

a significant historic site only if the U.S.

DOT agency has determined that:

(1) There is no feasible and prudent

alternative to the use of land from the

property; and

(2) The project includes all possible

planning to minimize harm to the

property resulting from such use.

(b) [Reserved]

§ 1430.105 Applicability.

(a) This part applies to transportation

projects that require an approval by the

U.S. DOT agency, where the U.S. DOT

agency has sufficient control and the

statutory authority to condition the

project or approval.

(b) The U.S. DOT agency will

determine the applicability of section

4(f) in accordance with this part.

(c) This part does not apply to or alter

approvals by the U.S. DOT agency made

prior to the effective date of this

regulation.

§ 1430.107 Use of land.

(a) Except as set forth in paragraph (b)

of this section and § 1430.111, use of

land occurs:

(1) When land is permanently

incorporated into a transportation

facility;

(2) When there is a temporary

occupancy of land that is adverse to the

statutory purpose of preserving the

natural beauty of that land, as

determined by the criteria in paragraph

(b) of this section; or

(3) When there is a constructive use

of land as determined by the criteria in

paragraph (c) of this section.

(b) A temporary occupancy of land

occurs when the use is so minimal that

it does not constitute a use within the

meaning of section 4(f) (§ 1420.403)

when the following conditions are

satisfied:

(1) The duration of the occupancy

must be temporary, i.e., less than the

time needed for construction of the

project, and there should be no change

in ownership of the land;

(2) Scope of the work must be minor,

i.e., both the nature and the magnitude

of the changes to the section 4(f)

resource are minimal;

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33989

(3) There are no anticipated

permanent adverse physical impacts,

nor will there be interference with the

activities or purposes of the resource, on

either a temporary or permanent basis;

(4) The land being used must be fully

restored, i.e., the resource must be

returned to a condition which is at least

as good as that which existed prior to

the project; and

(5) There must be documented

agreement of the appropriate Federal,

State, or local officials having

jurisdiction over the resource regarding

the above conditions.

(c) A constructive use of section 4(f)

land occurs when the transportation

project does not incorporate land from

the section 4(f) resource, but the impacts

of the project on the resource due to its

proximity are so severe that the

activities, features, or attributes that

qualify the resource for the protection of

section 4(f) are substantially impaired.

The U.S. DOT agencies have reviewed

the following situations and have

determined that constructive use occurs

when:

(1) The projected noise level increase

attributable to the transportation project

substantially interferes with the use and

enjoyment of a noise-sensitive facility

that is a resource protected by section

4(f), such as hearing the performances at

a public outdoor amphitheater, sleeping

in the sleeping area of a public

campground, enjoyment of a historic

site where a quiet setting is a generally

recognized feature or attribute of the

site’s significance, or enjoyment of an

urban park where serenity and quiet are

significant attributes;

(2) The proximity of the project to the

section 4(f) resource substantially

impairs aesthetic features or attributes

of a resource protected by section 4(f),

where such features or attributes make

an important contribution to the value

of the resource. For example, substantial

impairment of visual or aesthetic

qualities occurs where a transportation

structure is located in such proximity

that it obstructs or eliminates the

primary views of an architecturally

significant historical building, or

substantially detracts from the setting of

a park or historic site which derives its

value in substantial part from its setting;

(3) The project restricts access to the

section 4(f) property and, as a result,

substantially diminishes the utility of

the resource;

(4) The vibration impact from

operation of the project substantially

impairs the use of a section 4(f)

resource, such as vibration levels from

a rail project that are great enough to

affect the structural integrity of a

historic building or substantially

diminish the utility of the building; or

(5) The ecological intrusion of the

project substantially diminishes the

value of wildlife habitat in a wildlife or

waterfowl refuge adjacent to the project

or substantially interferes with the

access to a wildlife or waterfowl refuge,

when such access is necessary for

established wildlife migration or critical

life cycle processes.

§ 1430.109 Significance of the section 4(f)

resource.

(a) Consideration under section 4(f) is

required when the Federal, State, or

local officials having jurisdiction over a

park, recreation area or refuge determine

that the entire section 4(f) resource is

significant. In the absence of such a

determination, the section 4(f) land will

be presumed to be significant, unless

the U.S. DOT agency and the officials

with jurisdiction have agreed, formally

or informally, that the resource is not

significant. The U.S. DOT agency will

review the significance determination to

assure its reasonableness.

(b) Section 4(f) applies to all

properties on or eligible for the National

Register of Historic Places. The U.S.

DOT agency, in cooperation with the

applicant, will consult with the State

Historic Preservation Officer (SHPO)

and appropriate local officials to

identify such historic sites. Section 4(f)

applies only to historic sites on or

eligible for the National Register unless

the U.S. DOT agency determines that

the application of section 4(f) to a

historic site is otherwise appropriate.

§ 1430.111 Exceptions.

(a) Consideration under section 4(f) is

not required for any park road or

parkway project developed in

accordance with 23 U.S.C. 204.

(b) Consideration under section 4(f) is

not required for trail-related projects

funded through the Symms National

Recreational Trails Act of 1991 (16

U.S.C. 1261).

(c) Consideration under section 4(f) is

not required for ‘‘transportation

enhancement activities’’ as defined in

23 U.S.C. 101(a) and transit

enhancements as defined in 49 U.S.C.

5302(a)(15) if:

(1) The use of the section 4(f) property

is solely for the purpose of preserving or

enhancing the activities, features, or

attributes that qualify the property for

section 4(f) protection; and

(2) The Federal, State, or local official

having jurisdiction over the property

agrees in writing that the use is solely

for the purpose of preserving or

enhancing the section 4(f) activities,

features, or attributes of the property

and will, in fact, accomplish this

purpose.

(d) Where Federal lands or other

public land holdings (e.g., State forests)

are administered under statutes

permitting management for multiple

uses and are, in fact, managed for

multiple uses, section 4(f) applies only

to those portions of such lands which

function as significant public parks,

recreation areas, or wildlife refuges, or

which are designated in the plans of the

administering agency as being for,

significant park, recreation, or wildlife

purposes or historic sites. The

determination as to which lands so

function or are so designated, and the

significance of those lands, shall be

made by the officials having jurisdiction

over the lands. The determination of

significance shall apply to the entire

area of lands which so function or are

so designated. The U.S. DOT agency

will review these determinations to

assure their reasonableness.

(e) Consideration under section 4(f) is

not required for the restoration,

rehabilitation, or maintenance of

transportation facilities that are on or

eligible for the National Register when:

(1) Such work will not adversely

affect the historic qualities of the facility

that caused it to be on or eligible for the

National Register, and

(2) The SHPO has been consulted and

has not objected to the U.S. DOT agency

finding in paragraph (e)(1) of this

section.

(f) Archeological sites.

(1) Section 4(f) applies to all

archeological sites on or eligible for

inclusion in the National Register,

including those discovered during

construction except as set forth in

paragraph (f)(2) of this section. When

section 4(f) requirements apply to

archeological sites discovered during

construction, the section 4(f) process

will be expedited. In such cases, the

evaluation of feasible and prudent

alternatives will take into account the

level of investment already made in the

project. The review process, including

the consultation with other agencies,

will be shortened as appropriate.

(2) Section 4(f) requirements do not

apply to archeological sites where the

U.S. DOT agency, after consultation

with the SHPO, determines that the

archeological resource is important

chiefly because of what can be learned

by data recovery and has minimal value

for preservation in place. This exception

applies both to situations where data

recovery is undertaken or where the

U.S. DOT agency decides, with

agreement of the SHPO, not to recover

the data in the resource.

33990 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

(g) Designations of park and

recreation lands, wildlife and waterfowl

refuges, and historic sites are sometimes

made, and determinations of

significance changed, late in the

development of a project. With the

exception of the treatment of

archeological resources in paragraph (f)

of this section, the U.S. DOT agency

may permit a project to proceed without

consideration under section 4(f) if the

property interest in the section 4(f)

lands was acquired for transportation

purposes prior to the designation or

change in the determination of

significance and if an adequate effort

was made to identify properties

protected by section 4(f) prior to

acquisition.

(h) Constructive use normally does

not occur when:

(1) Compliance with the requirements

of section 106 of the National Historic

Preservation Act and 36 CFR part 800

for proximity impacts of the proposed

action, on a site listed on or eligible for

the National Register of Historic Places

results in an agreement of no adverse

effect;

(2) The projected traffic noise levels of

a proposed nearby highway project do

not exceed the FHWA noise abatement

criteria given in Table 1, 23 CFR part

772, or the projected operational noise

levels of a proposed nearby transit

project do not exceed the noise impact

criteria in the FTA guidelines (Federal

Transit Administration, Transit Noise

and Vibration Impact Assessment, April

1995, available from the FTA offices);

(3) The projected noise levels exceed

the relevant threshold in paragraph

(h)(2) of this section because of high

existing noise, but the increase in the

projected noise levels if the proposed

project is constructed, when compared

with the projected noise levels if the

project is not built, is barely perceptible

(3 dBA or less);

(4) A proposed transportation project

will have proximity impacts on a

section 4(f) property, but a

governmental agency’s right-of-way

acquisition, an applicant’s adoption of

project location, or the U.S. DOT agency

approval of a final NEPA document

established the location of the project

before the designation, establishment, or

change in the significance of the section

4(f) property. However, if the property

in question is a historic site that would

be eligible for the National Register

except for its age at the time that the

project location is established, and

construction of the project would begin

after the site became eligible, then

constructive use of the historic site may

occur and such use must be evaluated;

(5) There are proximity impacts to a

proposed public park, recreation area, or

wildlife refuge, but the proposed

transportation project and the resource

are concurrently planned or developed.

The following examples of such

concurrent planning or development

include, but are not limited to:

(i) Designation or donation of

property for the specific purpose of such

concurrent development by the entity

with jurisdiction or ownership of the

property for both the potential

transportation project and the section

4(f) resource; or

(ii) Designation, donation, planning or

development of property by two or more

governmental agencies, with

jurisdiction for the potential

transportation project and the section

4(f) resource, in consultation with each

other;

(iii) Overall (combined) proximity

impacts caused by a proposed project do

not substantially impair the activities,

features, or attributes that qualify a

resource for protection under section

4(f);

(iv) Proximity impacts will be

mitigated to a condition equivalent to,

or better than, that which would occur

under a no-build scenario;

(v) Change in accessibility will not

substantially diminish the utilization of

the section 4(f) resource; or

(vi) Vibration levels from project

construction activities are mitigated,

through advance planning and

monitoring of the activities, to levels

that do not cause a substantial

impairment of the section 4(f) resource.

§ 1430.113 Section 4(f) evaluations and

determinations under the NEPA umbrella.

(a) Alternatives to avoid the use of

section 4(f) properties and measures to

minimize harm to such land shall be

developed and evaluated by the

applicant in cooperation with the U.S.

DOT agency. Such evaluation shall be

initiated early when alternatives are

under study. An alternative that avoids

section 4(f) property must be preferred

unless the evaluation demonstrates that

there are unique problems or unusual

factors associated with it, or that the

cost, the social, economic, or

environmental impacts, or the

community disruption resulting from

such alternative reach extraordinary

magnitudes.

(b) In accordance with the concept of

the NEPA umbrella in 23 CFR 1420.109,

the section 4(f) evaluation is normally

presented in the draft environmental

impact statement (EIS), the

environmental assessment (EA), or the

categorical exclusion (CE)

documentation. The evaluation may

incorporate relevant information from

the planning process in accordance with

§ 1430.119. A separate section 4(f)

evaluation may be necessary as

described in section § 1430.115.

(c) The section 4(f) evaluation shall be

provided for coordination and comment

to the officials having jurisdiction over

the section 4(f) property and to the U.S.

Department of the Interior, and as

appropriate to the U.S. Department of

Agriculture and the U.S. Department of

Housing and Urban Development. A

minimum of 45 days shall be

established by the U.S. DOT agency for

receipt of comments.

(d) When adequate support exists for

a section 4(f) determination, the

discussion in the final EIS, the finding

of no significant impact (FONSI), the CE

documentation, or the separate section

4(f) evaluation shall specifically address

the following:

(1) The reasons why the alternatives

to avoid a section 4(f) property are not

feasible and prudent; and

(2) All measures incorporated into the

project that will be taken to minimize

harm to the section 4(f) property.

(e) The U.S. DOT agency is not

required to determine that there is no

constructive use. However, such a

determination may be made at the

discretion of the U.S. DOT agency.

When a constructive use determination

is made, it will be based, to the extent

it reasonably can, upon the following:

(1) Identification of the current

activities, features, or attributes of a

resource that qualify it for protection

under section 4(f) and which may be

sensitive to proximity impacts;

(2) An analysis of the proximity

impacts of the proposed project on the

section 4(f) resource. If any of the

proximity impacts will be mitigated,

only the net impact need be considered

in this analysis. The analysis should

also describe and consider the impacts

which could reasonably be expected if

the proposed project were not

implemented, since such impacts

should not be attributed to the proposed

project; and

(3) Consultation, on the above

identification and analysis, with the

Federal, State, or local officials having

jurisdiction over the park, recreation

area, refuge, or historic site.

(f) For actions processed with an EIS,

the U.S. DOT agency will make the

section 4(f) determination either in its

approval of the final EIS or in the record

of decision (ROD). Where the section

4(f) approval is documented in the final

EIS, the U.S. DOT agency will

summarize the basis for its section 4(f)

approval in the ROD. Actions requiring

the use of section 4(f) property, and

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33991

proposed to be processed with a FONSI

or classified as a CE, shall not proceed

until the U.S. DOT agency has given

notification of section 4(f) approval. For

these actions, any required section 4(f)

approval will be documented in the

FONSI, in the CE approval, if one is

provided, or in a separate section 4(f)

document.

(g) The final section 4(f) evaluation

will be reviewed for legal sufficiency.

§ 1430.115 Separate section 4(f)

evaluations.

(a) Circulation of a separate section

4(f) evaluation will be required when:

(1) A proposed modification of the

alignment or design would require the

use of section 4(f) land after the CE,

FONSI, draft EIS, or final EIS has been

processed;

(2) A proposed modification of the

alignment, design, or measures to

minimize harm after an original section

4(f) approval, would result in a

substantial increase in the use of section

4(f) land or a substantial reduction in

the measures to minimize harm

included in the project;

(3) The U.S. DOT agency determines,

after processing the CE, FONSI, draft

EIS, or final EIS that section 4(f) applies

to a property; or

(4) An agency whose actions are not

subject to section 4(f) requirements is

the lead agency for the NEPA process on

an action that involves section 4(f)

property and requires a U.S. DOT

agency action.

(b) If the U.S. DOT agency determines

under paragraph (a) of this section or

otherwise, that section 4(f) is applicable

after the CE, FONSI, or ROD has been

processed, the decision to prepare and

circulate a section 4(f) evaluation will

not necessarily require the preparation

of a new or supplemental NEPA

document. Where a separately

circulated section 4(f) evaluation is

prepared after the CE, FONSI, or ROD

has been processed, such evaluation

does not necessarily:

(1) Prevent the granting of new

approvals;

(2) Require the withdrawal of

previous approvals; or

(3) Require the suspension of project

activities for any activity not affected by

the new section 4(f) evaluation.

§ 1430.117 Programmatic section 4(f)

evaluations.

The U.S. DOT agency, in consultation

with the U.S. Department of the Interior

and other agencies, as appropriate, may

make a programmatic section 4(f)

determination for a class of similar

projects. Uses of section 4(f) land

covered by a programmatic section 4(f)

evaluation shall be documented and

coordinated as specified in the

programmatic section 4(f) evaluation.

§ 1430.119 Linkage with transportation

planning.

(a) An analysis required by section

4(f) may involve different levels of

detail where the section 4(f)

involvement is addressed during the

planning process or in a tiered EIS.

(b) When a planning document or a

first-tier EIS is intended to provide the

basis for subsequent project

development as provided in § 1420.201

and 40 CFR 1502.20, the detailed

information necessary to complete the

section 4(f) evaluation may not be

available at that stage in the

development of the action. In such

cases, an evaluation should be made of

the potential impacts that a proposed

action will have on section 4(f) land and

whether those impacts could have a

bearing on the decision to be made. A

preliminary determination may be made

at this time as to whether there are

feasible and prudent locations or

alternatives for the action to avoid the

use of section 4(f) land. This

preliminary determination shall

consider all possible planning to

minimize harm, to the extent that the

level of detail at this stage allows. It is

recognized that such planning at this

stage will normally be limited to

ensuring that opportunities to minimize

harm at subsequent stages in the project

development process have not been

precluded by decisions made at this

stage. This preliminary determination is

then incorporated into official planning

documents or the first-tier EIS.

(c) A section 4(f) approval made when

additional design details are available

will include a determination that:

(1) The preliminary section 4(f)

determination made pursuant to

paragraph (a) remains valid; and

(2) The criteria of § 1430.103 and

§ 1430.113(a) have been met.

§ 1430.121 Definitions.

The definitions contained in 23 CFR

1420.403, 23 U.S.C. 101(a), 49 U.S.C.

5302, and 40 CFR part 1508 are

applicable to this part.

Federal Transit Administration

49 CFR Chapter VI

For the reasons set forth in the

preamble, the Federal Transit

Administration proposes to amend

chapter VI of title 49, Code of Federal

Regulations, as follows:

3. Revise part 622 to read as follows:

PART 622—NEPA AND RELATED

PROCEDURES FOR

TRANSPORTATION DECISIONMAKING

Subpart A—Purpose, Policy, and

Mandate

Sec.

622.101 Cross-reference to subpart A of 23

CFR part 1420.

Subpart B—Program and Project

Streamlining

622.201 Cross-reference to subpart B of 23

CFR part 1420.

Subpart C—Process and Documentation

Requirements

622.301 Cross-reference to subpart C of 23

CFR part 1420.

Subpart D—Definitions

622.401 Cross-reference to subpart D of 23

CFR part 1420.

Authority: 23 U.S.C. 109, 128, 134 and 138;

42 U.S.C. 2000d–2000d–4, 4321 et seq., and

7401 et seq.; 49 U.S.C. 303, 5301(e), 5303,

5309, and 5324(b) and (c); 49 CFR 1.51.

Subpart A—Purpose, Policy, and

Mandate

§ 622.101 Cross-reference to subpart A of

23 CFR part 1420.

The regulations for complying with

this subpart are set forth in subpart A of

23 CFR part 1420.

Subpart B—Program and Project

Streamlining

§ 622.201 Cross-reference to subpart B of

23 CFR part 1420.

The regulations for complying with

this subpart are set forth in subpart B of

23 CFR part 1420.

Subpart C—Process and

Documentation Requirements

§ 622.301 Cross-reference to subpart C of

23 CFR part 1420.

The regulations for complying with

this subpart are set forth in subpart C of

23 CFR part 1420.

Subpart D—Definitions

§ 622.401 Cross-reference to subpart D of

23 CFR part 1420.

The regulations for complying with

this subpart are set forth in subpart D of

23 CFR part 1420.

4. Add a new part 623 to read as

follows:

33992 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

PART 623—PROTECTION OF PUBLIC

PARKS, WILDLIFE AND WATERFOWL

REFUGES, AND HISTORIC SITES

Sec.

623.101 Cross-reference to 23 CFR part

1430.

Authority: 49 U.S.C. 303; 49 CFR 1.51.

§ 623.101 Cross-reference to 23 CFR part

1430.

The regulations for complying with 49

U.S.C. 303 are set forth in 23 CFR part

1430.

Issued on: May 18, 2000.

Vincent F. Schimmoller,

Acting Executive Director, Federal Highway

Administration.

Nuria I. Fernandez,

Acting Administrator, Federal Transit

Administration.

[FR Doc. 00–13022 Filed 5–19–00; 1:15 pm]

BILLING CODE 4910–MR–P