66576 Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Notices 

at http://dms.dot.gov by using the above 

docket number. Comments that were 

previously received in response to the 

EA scoping may also be reviewed at this 

Web site under Docket No. FAA–2004–

17174. 

FOR FURTHER INFORMATION CONTACT: 

Peter F. Ciesla, Air Tour Management 

Plan Program Manager, Executive 

Resource Staff, AWP–4, Federal 

Aviation Administration, WesternPacific Region. Mailing address: P.O. 

Box 92007, Los Angeles, California 

90009–2007. Telephone: (310) 725–

3818. Street address: 15000 Aviation 

Boulevard, Lawndale, California 90261. 

E-mail: Pete.Ciesla@faa.gov. Park 

specific information can be obtained 

from Marilyn Parris, Superintendent, 

Haleakala National Park, Mile Marker 

11, Crater Road, Kula, HI 96790. 

Telephone: (808) 572–4401. E-mail: 

Marilyn_H_Parris@nps.gov. 

SUPPLEMENTARY INFORMATION: In 

developing an ATMP and any 

associated rulemaking actions, the FAA 

is required to comply with the National 

Environmental Policy Act of 1969 

(NEPA), which calls on Federal agencies 

to consider environmental issues as part 

of their decisionmaking process. For the 

purposes of compliance with NEPA on 

this project, the FAA is the Lead Agency 

and the NPS is a Cooperating Agency. 

The FAA ATMP Program Office and the 

NPS Natural Sounds Program Office are 

responsible for the overall 

implementation of the ATMP Program. 

Pete Ciesla is the FAA’s principal 

program manager responsible for all 

parts of the EIS and performance of 

required consultation regarding cultural 

resources and endangered and 

threatened species. For the park, 

Superintendent Marilyn Parris is 

responsible for park operations and 

management and for recommending the 

draft and final EIS and Record of 

Decision to the NPS Pacific West 

Regional Director. 

The EIS is being prepared in 

accordance with FAA Order 1050.1E, 

Environmental Impacts: Policies and 

Procedures, NPS Director’s Order #12: 

Conservation Planning, Environmental 

Impact Analysis, and Decisionmaking, 

and NPS Management Policies. The 

FAA is now inviting the public, 

agencies, and other interested parties to 

provide written comments, suggestions, 

and input regarding: (1) The scope, 

issues, and concerns related to the 

development of the ATMP for Haleakala 

National Park; (2) the scope of issues 

and the identification of significant 

issues regarding commercial air tours 

and their potential impacts to be 

addressed in the NEPA process; (3) the 

potential effects of commercial air tours 

on natural resources, congressionally 

designated wilderness, cultural 

resources, and the visitor experience; (4) 

preliminary ATMP alternatives; and, (5) 

past, present, and reasonably 

foreseeable future actions which, when 

considered with ATMP alternatives, 

may result in significant cumulative 

impacts. The FAA requests that 

comments be as specific as possible in 

response to actions that are being 

proposed under this notice. 

Scoping documents that describe the 

Haleakala National Park ATMP project 

in greater detail and the preliminary 

ATMP alternatives under consideration 

are available at the following locations: 

• FAA Air Tour Management Plan 

Program Web site, http://www.faa.gov/ 

about/office_org/headquarters_offices/ 

arc/programs/ 

air_tour_management_plan/. 

• Haleakala National Park, Mile 

Marker 11, Crater Road, Kula, HI 96790. 

• National Park Service, Pacific West 

Region—Honolulu Office, 300 Ala 

Moana Boulevard, Box 50165, 

Honolulu, HI 96850. 

• Hawai1i State Library, Hawai1i 

Documents Center, 478 South King 

Street, Honolulu, HI 96813. 

• Hana Public and School Library, 

4111 Hana Highway, Hana, HI 96713. 

• Makawao Public Library, 1159 

Makawao Avenue, Makawao, HI 96768. 

• Kahului Public Library, 90 School 

Street, Kahului, HI 96732. 

• Maui Community College Library, 

310 Ka1ahumanu Avenue, Kahului, HI 

96732. 

• Kihei Public Library, 35 

Waimahaihai Street, Kihei, HI 96753. 

• Lahaina Public Library, 680 Wharf 

Street, Lahaina, HI 96761. 

• Wailuku Public Library, 251 High 

Street, Wailuku, HI 96793 

Issued in Los Angeles, CA, on November 

6, 2006. 

Peter F. Ciesla, 

FAA, Air Tour Management Plan Program 

Manager, AWP–4. 

[FR Doc. E6–19202 Filed 11–14–06; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

Federal Highway Administration 

[Docket Number: FTA–2006–24905] 

Notice of Availability of Guidance on 

Section 6002 of the Safe, Accountable, 

Flexible, Efficient Transportation 

Equity Act: A Legacy for Users 

(SAFETEA–LU) 

AGENCY: Federal Transit Administration 

(FTA), Federal Highway Administration 

(FHWA), DOT. 

ACTION: Notice of availability. 

SUMMARY: This notice announces the 

availability of final guidance on the 

application of section 6002 of the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU) (Pub. L. 109–59, 

119 Stat. 1144) to projects funded by the 

Federal Transit Administration (FTA), 

the Federal Highway Administration 

(FHWA), or both. Section 6002 of 

SAFETEA–LU, which went into effect 

on August 10, 2005, adds requirements 

and refinements to the environmental 

review process for highway and public 

transportation capital projects. The 

section 6002 guidance describes how 

the FTA and FHWA will implement the 

new requirements within the 

environmental review process required 

by the National Environmental Policy 

Act (NEPA) and other Federal laws. The 

final guidance is available at the 

following URL: http://www.fta.dot.gov/ 

environment/guidance/ for FTA and at 

http://www.fhwa.dot.gov/hep/ 

section6002/ for FHWA. 

DATES: Effective Date: November 15, 

2006. 

FOR FURTHER INFORMATION CONTACT: For 

FTA: Joseph Ossi, Office of Planning 

and Environment (TPE), (202) 366–

1613, or Christopher Van Wyk, Office of 

Chief Counsel (TCC), (202) 366–1733, 

Federal Transit Administration, U.S. 

Department of Transportation, 400 

Seventh Street, SW., Washington, DC 

20590. For FHWA: Ruth Rentch, Office 

of Project Development (HEPE), (202) 

366–2034, or Janet Myers, Office of 

Chief Counsel (HCC), (202) 366–2019, 

Federal Highway Administration, U.S. 

Department of Transportation, 400 

Seventh Street, SW., Washington, DC 

20590. 

SUPPLEMENTARY INFORMATION: 

Availability of the Final Guidance and 

Comments 

Copies of the proposed and final 

guidance on the application of section 


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6002 of SAFETEA–LU to projects 

funded by the FTA, the FHWA, or both, 

the comments received from the public 

on the proposed guidance, and the 

agencies’ response to comments 

received are part of docket FTA–2006–

24905 and are available for inspection 

or copying at the Docket Management 

Facility, U.S. Department of 

Transportation, Room PL–401 on the 

plaza level of the Nassif Building, 400 

Seventh Street, SW., Washington, DC 

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

through Friday, except Federal holidays. 

You may retrieve the guidance and 

comments online through the Document 

Management System (DMS) at: http:// 

dms.dot.gov. Enter docket number 

24905 in the search field. The DMS is 

available 24 hours each day, 365 days 

each year. Electronic submission and 

retrieval help and guidelines are 

available under the help section of the 

Web site. You may download an 

electronic copy of this document by 

using a computer, 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 Web 

page at: http://www.nara.gov/fedreg and 

the Government Printing Office’s Web 

page at: http://www.gpoaccess.gov/fr/ 

index.html. 

Background 

On August 10, 2005, President Bush 

signed SAFETEA–LU. Section 6002 of 

SAFETEA–LU, which has been codified 

as 23 U.S.C. 139, prescribes a number of 

changes to existing FTA and FHWA 

procedures for implementing the 

National Environmental Policy Act of 

1969 (NEPA), 42 U.S.C. 4321–4351, as 

amended, and for the implementing 

regulations of the Council on 

Environmental Quality (CEQ), 40 CFR 

parts 1500 through 1508. Among the 

topics addressed in section 6002 are the 

roles of the project sponsor and the lead, 

participating, and cooperating agencies; 

requirements for coordinating and 

scheduling agency reviews; the 

authority for States to use Federal-aid 

funds to ensure timely environmental 

reviews; a 180-day statute of limitations 

on claims, and a process for resolving 

interagency disagreements. 

On June 29, 2006, the FTA and FHWA 

published a Notice of Availability and 

Request for Comments on the proposed 

guidance on the implementation of 

SAFETEA–LU section 6002 in the 

Federal Register (71 FR 37156). The 

agencies requested and received 

comments on the proposed guidance 

referenced in the June notice. The 

purpose of this notice is to announce 

the availability of the final guidance. 

The final guidance reflects the agencies’

consideration of these comments and 

further reviews by the FTA and FHWA. 

The final guidance is available on the 

docket (number 24905), which can be 

accessed by going to http://dms.dot.gov. 

The final guidance is available online 

line at http://www.fta.dot.gov/ 

environment/guidance/ for FTA and at 

http://www.fhwa.dot.gov/hep/ 

section6002/ for FHWA. 

The purpose of the section 6002 

guidance is to provide explanations of 

new and changed aspects of the 

environmental review process for FTA 

and FHWA NEPA practitioners. The 

guidance will inform readers about 

which aspects of the environmental 

review process need to be done 

differently as a result of SAFETEA–LU, 

and how the new procedures should be 

handled. Although the guidance 

outlines a new environmental review 

process for highway and public 

transportation capital projects, it does 

not supersede any previous guidance or 

regulations promulgated under NEPA. 

In particular, the previously mentioned 

CEQ regulations (40 CFR parts 1500–

1508) and FHWA–FTA NEPA regulation 

(23 CFR part 771) are supplemented by 

the section 6002 guidance and remain in 

effect. This guidance is consistent with 

and implements the requirements of 

U.S. DOT Order 5610.1C, ‘‘Procedures 

for Considering Environmental 

Impacts.’’

The intent of the guidance is to 

provide project sponsors with as much 

flexibility as possible in administering 

the environmental review process, 

while providing a framework to 

facilitate efficient project management 

and decisionmaking in accordance with 

the law. The guidance also is intended 

to assist agencies and related entities 

involved in the development of 

environmental impact statements (EISs) 

to satisfy the requirements of applicable 

Federal laws, regulations and policies. 

Additionally, this guidance is intended 

to be non-binding and should not be 

construed as a rule of general 

applicability. Because the size and 

scope of EISs can vary, adjustments to 

the recommended approaches included 

in the guidance may be appropriate, but 

the minimum statutory requirement 

always is noted. 

Response to Comments 

In the notice of availability of the 

proposed guidance, the FTA and FHWA 

requested comments on specific 

provisions in the proposed guidance 

and comments on particular questions 

posed by the agencies in the Federal 

Register notice. The agencies received 

comments from 29 parties. Commenters 

included four individuals, six transit 

agencies, 13 State highway agencies, 

one State environmental agency, one 

Federal environmental agency, and four 

national transportation organizations. 

Commenting entities included the New 

York Metropolitan Transit Authority, 

San Francisco Bay Area Rapid Transit 

District, Central Puget Sound Regional 

Transit Authority, Washington 

Metropolitan Area Transit Authority, 

Lane Transit District, San Diego 

Association of Governments, Virginia 

Department of Transportation, Maryland 

State Highway Administration, Idaho 

Transportation Department, Montana 

Transportation Department, North 

Dakota Transportation Department, 

South Dakota Transportation 

Department, Wyoming Transportation 

Department, Ohio Department of 

Transportation, Minnesota Department 

of Transportation, Louisiana 

Department of Transportation and 

Development, Florida Department of 

Transportation, California Department 

of Transportation, West Virginia 

Department of Transportation Division 

of Highways, State of Washington 

Department of Ecology, U.S. 

Environmental Protection Agency, 

American Highway Users Alliance, 

American Association of State Highway 

and Transportation Officials, American 

Road and Transportation Builders 

Association, and American Public 

Transportation Association. 

This section highlights the key issues 

identified in the comments on the 

proposed guidance, including 

comments in response to the agencies’

specific questions. This section also 

describes the FTA and FHWA response 

to the comments on section 6002 

implementation. The key issues are 

summarized and addressed below under 

general headings relating to the topics 

addressed. The first seven headings 

relate to the seven specific questions on 

which the FTA and FHWA requested 

comments. The remaining headings 

pertain to topics addressed within the 

three sections of the proposed guidance 

(Section 1: The Environmental Review 

Process; Section 2: Process 

Management; and Section 3: Statute of 

Limitations). Accordingly, the FTA and 

FHWA response is organized under the 

following headings: Adequacy of 

Guidance, Flexibility of the Process, 

Lead Agency Responsibilities, 

Methodologies for Project Analysis, 

Coordination with Participating 

Agencies, Schedules for FTA Projects, 

New Starts Alternatives Analysis, 

General Information About the 

Environmental Review Process, 


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Applicability Requirements, Project 

Initiation, Lead Agencies, Participating 

Agencies, Cooperating Agencies, 

Purpose and Need, Alternatives 

Analysis, Preferred Alternative, 

Coordination and Schedule, 

Requirements Placed on Non-U.S. DOT 

Federal Agencies, Concurrent Reviews, 

Issues Identification and Resolution, 

Funding of Additional Agency 

Resources, Statute of Limitations, and 

Other Comments. 

A number of commenters raised 

questions that relate to issues other than 

implementation of section 6002, such as 

inquiries about the FTA or FHWA 

practices under NEPA that are not 

affected by the implementation of 

section 6002. Because the section 6002 

guidance is intended to focus on topics 

relating directly to the new law, FTA 

and FHWA decided such questions 

were beyond the scope of the guidance. 

1. Adequacy of Guidance 

In the notice of availability of the 

proposed guidance, the FHWA 

requested comments on whether the 

guidance provided enough information 

and instruction on how best to 

implement the new requirements under 

section 6002. The FHWA received 

several comments on this question. In 

general, commenters appear satisfied 

with the level of information provided. 

Where commenters felt a particular part 

of the guidance warranted additional 

information or a different interpretation, 

they submitted their comments in the 

context of those specific questions. The 

key comments in terms of the overall 

adequacy of the guidance, and the 

agencies’ response, appear below. 

Several commenters stated that the 

FTA and FHWA should more strongly 

emphasize their intention to apply 

section 6002 in a manner that promotes 

faster processing of projects. We agree 

that the guidance could benefit from 

more emphasis on the streamlining 

goals of section 6002. The FTA and 

FHWA have revised the answer to 

Question 6 of the guidance to stress the 

opportunities for flexibility in designing 

an environmental review process that 

meets the statutory requirements of 

section 6002. This includes continuing 

to use existing procedures where 

appropriate. Revisions have been 

inserted in appropriate places 

throughout the guidance to identify 

opportunities to reduce paperwork by 

documenting the steps taken under 

section 6002 within types of documents 

already in use to comply with NEPA or 

other project-related procedures. 

One commenter stated there is a need 

for more information about how to 

interpret the guidance in the case of 

States assuming Federal responsibilities 

for NEPA or other aspects of the 

environmental review process, on a 

pilot basis, under section 6005 of 

SAFETEA–LU. On April 5, 2006, FHWA 

published a notice of proposed 

rulemaking in the Federal Register (71 

FR 107040, April 5, 2006) for the 

implementation of section 6005. 

Following issuance of the final rule and 

receipt of applications from the pilot 

States, the FHWA will work with pilot 

States to identify and address any issues 

created by the pilot States’ assumption 

of Federal environmental review 

responsibilities. We do not feel it is 

necessary to address this issue in the 

section 6002 guidance. 

2. Flexibility of the Process 

In the notice of availability of the 

proposed guidance, the FHWA 

requested comments on whether there 

are specific areas where the guidance 

could and should provide more 

flexibility while still meeting section 

6002 requirements. The request also 

asked that commenters consider how 

customization in particular areas might 

permit better responses to issues of 

regional concern. Six commenters 

submitted comments identified as 

responses to the FHWA questions on 

flexibility. The FTA and FHWA have 

considered various comments and 

concluded that the proposed guidance 

may not have identified the available 

flexibilities clearly enough. The 

agencies have revised the final guidance 

to highlight the flexibility inherent in 

implementation of many of the 

provisions of section 6002. The 

guidance continues to encourage 

agencies to tailor procedures to meet 

their needs, within the statutory 

parameters of section 6002 and other 

applicable laws, regulations, and 

funding agency requirements. 

Several commenters also stated that, 

where possible, the guidance should 

support the use of existing processes or 

procedures to meet section 6002 

administrative requirements. The FTA 

and FHWA agree with this comment 

and the final guidance clarifies that 

existing processes can be used as is, or 

modified as required, so long as the 

resulting procedures meet the statutory 

requirements of section 6002 [23 U.S.C. 

139] and other applicable Federal laws, 

regulations, and policies. 

3. Lead Agency Responsibilities 

The FHWA asked for comments 

concerning the adequacy of the 

descriptions in the proposed guidance 

of the responsibilities, authorities, and 

limitations of lead agencies. The FHWA 

also requested comment on whether the 

division of labor, responsibility and 

authority was appropriate. Several 

commenters addressed this topic 

through their comments on specific 

questions in the proposed guidance. The 

FHWA and FTA response to those 

comments appears with the relevant 

questions. 

4. Methodologies for Project Analysis 

The FHWA asked for comments on 

whether the proposed guidance 

adequately addressed the process for 

involving participating agencies in the 

selection of methodologies for project 

analysis. In particular, the FHWA 

wanted to know whether the process in 

the proposed guidance would serve to 

minimize the occurrence of debates 

about methodologies late in the project 

development process. Two commenters 

indicated a concern that the 

methodologies process could evolve 

into a document-intensive and 

contentious process. The FTA and 

FHWA appreciate that the 

determination of methodologies can be 

a challenging aspect of the 

environmental review process and have 

considered the comments and made 

several clarifications in the text of 

Question 38 of the final guidance. The 

clarifications are intended to improve 

the guidance’s explanation of the timing 

of coordination and decisionmaking on 

methodologies, and to facilitate the use 

of programmatic agreements on 

methodologies to the extent appropriate. 

5. Coordination With Participating 

Agencies 

Comments were requested on whether 

the proposed guidance provided 

sufficient detail about the coordination 

process with participating agencies. In 

particular, comments were sought on 

whether changes in schedule should 

require coordination with participating 

agencies. Two commenters replied to 

these questions and stated that the 

guidance, by requiring a project 

schedule for Federal-aid highway 

projects, is more restrictive than section 

6002 [23 U.S.C. 139(g)(1)(B)]. The 

statute makes schedules an optional part 

of the required coordination plan. The 

FHWA believes that a schedule is 

critical to successfully managing large 

or complex projects, including 

managing the environmental review 

process for such projects. The FHWA 

revised the final guidance to clarify that 

the FHWA, in its Federal lead agency 

capacity, assumes that a schedule will 

be used on all EA and EIS projects 

processed under section 6002. If the 

non-Federal lead agency believes that a 

schedule is not needed, then the nonFederal lead agency will be expected to 


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consult with the FHWA about how the 

project will proceed. For further detail 

on the use and modification of 

schedules, see the comments and 

responses to Questions 47–57. 

The FTA and FHWA have considered 

comments on coordination needed for 

changes to the schedule, along with the 

comments and have concluded that the 

concurrence requirement for schedule 

modification should apply only to 

cooperating agencies. This is consistent 

with the statute. However, the FTA and 

FHWA note that a successful 

environmental review process for a 

project often depends upon close and 

pragmatic coordination of the original 

and any modified schedule with all 

agencies that play a role in the review 

of a project. 

6. Schedules for FTA Projects 

The FTA requested comment whether 

it should require the development of a 

schedule for all FTA projects requiring 

an EIS. The notice of availability noted 

that section 6002 makes the inclusion of 

a project schedule in the ‘‘coordination 

plan’’ for the project optional, but that 

the FHWA was proposing the use of a 

project schedule for all EIS and EA 

projects. The FTA sought comments on 

whether to require, in the interest of 

good project management, the 

development of a project schedule and 

its inclusion in the coordination plan 

for any transit project requiring an EIS. 

A number of commenters addressed 

this question. All but one advocated 

keeping the schedule optional for FTA 

projects. These commenters generally 

argued that complex transit projects will 

frequently require schedule revisions, 

and the consultations required to revise 

a schedule when one is included in the 

coordination plan would defeat the 

objective of expediting by managing to 

a schedule. The one commenter who 

disagreed with this point of view argued 

for a mandatory schedule as a necessary 

project management tool. Having 

considered all of these comments, FTA 

has decided to keep the schedule 

optional. 

7. New Starts Alternatives Analysis 

The FTA requested comment whether 

it should continue to allow a New Starts 

Alternatives Analysis, as defined in 49 

U.S.C. 5309(a)(1), to be developed as a 

non-Federal planning document not 

subject to NEPA regulatory 

requirements, or require that the New 

Starts Alternatives Analysis be merged 

into the NEPA document (normally an 

EIS for New Starts projects), be subject 

to NEPA regulatory requirements, and 

be signed by the FTA Regional 

Administrator. 

The agencies received a number of 

comments on this question, and the 

commenters unanimously agreed that 

the flexibility of the status quo should 

be maintained. Accordingly, the FTA 

has decided to maintain the flexibility 

of performing a Small Starts or New 

Starts Alternatives Analysis as a 

planning study or as a NEPA document. 

One commenter requested 

clarification on whether, in this 

guidance, the term ‘‘New Starts 

projects’’ also encompassed ‘‘Small 

Starts projects’’ or not. The FTA has 

now decided to distinguish between 

transit fixed guideway projects that 

meet the Small Starts criteria [49 U.S.C. 

5309(e)] and those that do not [49 U.S.C. 

5309(d)], by referring to them as ‘‘Small 

Starts’’ and ‘‘New Starts’’ respectively. 

The requested clarifications, namely 

that this guidance applies to any FTA 

project requiring an EIS, including but 

not limited to any Small Starts project 

requiring an EIS, and that Question 13 

on the New Starts Alternatives Analysis 

also applies to Small Starts, have been 

made in the final guidance. 

8. General Information About the 

Environmental Review Process 

(Proposed Guidance Questions 1–7) 

Several parties offered comments on 

this segment of the proposed guidance. 

A number of the comments related to 

editing the proposed guidance for 

consistency in terminology and usage. 

The FTA and FHWA have considered 

those concerns in preparing the final 

guidance. The major comments on the 

content of this segment are described 

below. 

One commenter on Question 3 

thought that the FHWA should adopt 

the FTA policy of not applying section 

6002 to projects that are processed as 

environmental assessment (EA) and 

categorical exclusions (CE) projects 

under NEPA. One commenter advised 

the FTA not to rule out the use of 

section 6002 on EA projects. The FTA 

and FHWA have considered the 

comments, and both agencies have 

considered the role that EAs play in 

their programs. The FHWA and FTA 

have revised the final guidance to 

indicate that neither agency at this time 

intends to apply section 6002 to CE 

projects. In the case of EA projects, the 

‘‘default case’’ adopted by both agencies 

in the final guidance is that section 6002 

will not apply. However, the FHWA and 

FTA recognize that in some cases 

section 6002 may be appropriate for an 

EA project and, in such cases, section 

6002 procedures may be used. The text 

in the final guidance relating to 

Question 8 has been revised 

accordingly. The decision of the lead 

agencies to use section 6002 for an EA 

project will be documented in, and 

communicated through, the 

coordination plan. 

Another commenter suggested that 

the guidance should clarify that some 

environmental laws are administered by 

the U.S. DOT agencies and some are 

under the authority of other Federal 

agencies. The commenter also asked 

that the guidance clarify that in some 

cases, such as the New Jersey and 

Michigan Clean Water Act Section 404 

programs, a Federal program is partly or 

wholly operated under the authority of 

a State. The agencies have revised 

Question 3 of the final guidance to 

acknowledge these points. 

A number of commenters supported 

giving lead agencies the option to use 

interagency merger agreements, which 

currently provide for integrated project 

review processes under NEPA, the 

Clean Water Act, and other Federal 

laws, to meet the requirements of 

section 6002. Some commenters on 

Question 6 thought that the guidance 

should provide more information on the 

use of merger concurrence points and 

the effect of section 6002 on signatory 

agencies’ authority under the merger 

agreements. Commenters held differing 

views on whether concurrence points 

should apply in the future, and whether 

there is a need to renegotiate merger 

agreements in light of the provisions of 

section 6002. 

The FTA and FHWA agree that the 

use of merger agreements, where they 

are in effect and working well, should 

continue. The agencies have revised 

Questions 6, 9, and 48 in the final 

guidance to clarify this point. The 

revisions include an explanation that 

the merger agreement may be used by 

those entities that are signatories to it, 

but that the environmental review 

process must provide to others the 

opportunities for involvement specified 

in section 6002. The final guidance also 

states that, where a pre-existing merger 

agreement includes concurrence 

requirements, the lead agencies may 

continue to use those parts of the merger 

agreement if they wish. However, if the 

lead agencies conclude that concurrence 

on an issue is not achievable, then the 

lead agencies must exercise their 

decisionmaking obligations under 

Section 6002. For these reasons, lead 

agencies may find that, when preparing 

coordination plans, they need to 

supplement the provisions of a merger 

agreement to ensure that the 

requirements of section 6002 are 

satisfied. 

Several commenters indicated that the 

FTA and FHWA should permit merger 

processes to be ‘‘grandfathered’’ under 


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section 6002, treating such agreements 

as an ‘‘existing environmental review 

process * * * approved by the 

Secretary under section 1309 of the 

Transportation Equity Act for the 21st 

Century * * *’’ (TEA–21) (Pub. L. 105–

178; 112 Stat. 107), thereby allowing the 

substitution of the merger agreement for 

section 6002 procedures. The FTA and 

FHWA do not believe that a merger 

agreement is considered an ‘‘existing 

environmental review process’’ within 

that provision unless it adequately 

addresses the entire environmental 

review process, including the Section 

6002 procedures for providing 

opportunities for involvement to all 

parties that are entitled to such 

opportunities and the procedures for 

collaboration with participating 

agencies on methodologies (see 

Question 9 in final guidance). 

A commenter requested clarification 

in Question 7 as to whether the Tier 2 

EIS process had to start over with the 

section 6002 procedures such as notice 

of initiation and invitations to 

participating agencies. The FTA and 

FHWA have revised Question 7 to state 

that when initiating a Tier 2 EIS, most 

section 6002 procedures will apply as 

though Tier 2 is a new project. However, 

the lead agencies have the discretion to 

determine the degree to which Tier 2 

environmental review procedures 

should be modified in order to 

recognize the Tier 1 decisions that are 

final and carried into the Tier 2 

proceedings. 

9. Applicability Requirements (Proposed 

Guidance Questions 8–10) 

Several of the comments on this 

segment of the proposed guidance 

related to how the FTA and FHWA 

would apply section 6002 to EA and CE 

projects. The agencies addressed this 

topic in their response to comments on 

Question 3 and Question 8 of the 

proposed guidance. 

Commenters also suggested that the 

decision to use section 6002 for an EA 

should require the agreement of the 

project sponsor. The FTA and FHWA 

have considered this issue and have 

concluded that they will not adopt a 

requirement that the project sponsor 

agree to the use of section 6002 for an 

EA project. The agencies note, however, 

that if the project sponsor is a joint lead 

agency, it would have to agree to the use 

of Section 6002 process for an EA 

project as part of the joint 

decisionmaking described in Section 11 

(Lead Agencies) below. Private sponsors 

will be free to make their views known, 

but the government agencies responsible 

for NEPA must make the decision. 

One commenter thought that the 

guidance should clarify in Question 9 

whether an exemption from section 

6002 procedures based on an existing 

environmental review process approved 

under section 1309 of TEA–21 may be 

applied on a project-by-project basis. 

The FTA and FHWA have revised 

Question 9 to clarify that an 

environmental review process that is 

approved as a substitute for section 

6002 procedures must be used for a 

program or for a pre-approved class of 

projects, but cannot be substituted for 

section 6002 procedures on a project-byproject basis. 

A commenter described Question 10 

of the proposed guidance as too 

restrictive and in conflict with 

regulations at 23 CFR 771.130(d) and 40 

CFR 1502.9(c)(4) that eliminate scoping 

from the process for a supplemental EIS 

(SEIS). The commenter believed that 

section 6002 should not apply to SEISs 

that do not involve the reassessment of 

the entire action. Question 10 has been 

revised to state that a SEIS under 23 

CFR 771.130 for a project with a notice 

of intent that was issued prior to the 

enactment of SAFETEA–LU will not 

need to follow the SAFETEA–LU 

environmental review process if the 

SEIS does not involve the reassessment 

of the entire action. 

10. Project Initiation (Proposed 

Guidance Questions 11–13) 

Several comments focused on the 

need for minor editing of the proposed 

guidance. The FTA and FHWA have 

reviewed those comments and the 

guidance, and made revisions as 

appropriate. Key comments on the 

content of the guidance, and the 

agencies’ responses, appear below. 

Several commenters questioned the 

effectiveness of trying to meet project 

initiation requirements when only 

limited information might be available 

about permit and approval requirements 

or other project details. They viewed the 

information required for the notice of 

initiation as a violation of NEPA 

because a determination about needed 

approvals requires knowledge of the 

alternatives to be considered and such 

knowledge is not available until later in 

the environmental review process. 

After considering the comments, the 

FTA and FHWA agree with the concern 

that in some cases not all project 

approval needs will be known at the 

time of project initiation. Question 11 in 

the final guidance has been revised to 

acknowledge that lead agencies will be 

expected to act on the best available 

knowledge at the time of initiation. 

Because the information in the notice of 

initiation will be used to plan the 

project proceedings, it is in the interest 

of all parties to have as much 

information as possible early in the 

process, and to pass along to the Federal 

lead agency any new information as 

soon as it becomes available. 

Several commenters expressed 

concern about the added paperwork that 

would be caused by the notice of 

initiation and asked whether the notice 

of intent for an EIS or the use of existing 

project initiation procedures could be 

combined with the notice of initiation 

under section 6002. Also, a commenter 

asked whether programmatic notices of 

initiation could be used rather than 

project-by-project notices. The FTA and 

FHWA agree with the commenters that 

it is desirable to avoid duplication and 

unnecessary paperwork. The agencies 

also recognize that the purposes of the 

notice of initiation include advising the 

Federal lead agency that it is time to 

start project review proceedings, and 

helping the lead agencies determine the 

scope of the required environmental 

review process. The agencies have 

revised Question 11 in the final 

guidance to more clearly support the 

adaptation of existing procedures to 

cover the notice of initiation 

requirement under section 6002. The 

procedure used must provide the 

information required under the project 

initiation provisions of the statute, to 

the extent the information is available. 

The use of one document to cover 

multiple project needs is fully endorsed 

by the FTA and FHWA. Whatever form 

or format is used also should indicate 

the timeframe within which the 

environmental review process should 

commence. In light of the staffing 

implications for all agencies involved, 

including the Federal lead agency, the 

initiation notice must be from an 

individual appropriately authorized by 

the project sponsor. 

11. Lead Agencies (Proposed Guidance 

Questions 14–20) 

Many commenters focused their 

comments on the operation of section 

6002 with respect to lead agencies and 

lead agency decisionmaking. The major 

comments and the Federal response are 

described below. 

Commenters were concerned about 

the FHWA requirement in the proposed 

guidance that the State DOT serve as the 

non-Federal lead agency under section 

6002 [23 U.S.C 139(c)(3)] for projects 

currently handled by local government 

agencies (hereinafter referred to as local 

government agencies) that receive 

‘‘pass-through’’ project funding. 

Commenters suggested that the FHWA 

should allow local government agencies, 

as subrecipients of Federal funds, to 


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serve as the mandatory non-Federal lead 

agency under section 6002. Commenters 

felt that the local government agencies 

would be best positioned to fulfill the 

section 6002 non-Federal lead agency 

role in the case of locally initiated 

projects. Commenters also cited the 

added burden that would be placed on 

the State DOTs if they were required to 

serve as the non-Federal lead agency for 

local projects. One commenter was 

concerned that the requirement that the 

recipient of funding serve as the nonFederal lead agency would disturb the 

procedures presently followed by the 

FTA and local transit agencies. Some 

commenters expressed the view that 

State agencies should have the option, 

at the State agency’s discretion, to serve 

as a non-Federal joint lead agency along 

with the local governmental agency. A 

few commenters encouraged allowing 

the State DOT to continue allowing 

local government agencies to prepare 

NEPA documents while the State DOT 

serves in a ‘‘NEPA reviewer’’ and 

quality assurance role, rather than 

requiring the State to hold the larger 

scope of responsibility described in the 

proposed guidance. 

The FHWA and FTA have considered 

the many comments on this topic and 

have concluded that the proposed 

guidance correctly interpreted the 

language of section 6002 on mandatory 

joint lead agencies. The final guidance 

continues to reserve mandatory lead 

agency status to the U.S. DOT agency 

and the direct recipient of Federal 

funds. The FTA and FHWA believe that 

this interpretation follows the language 

of section 6002 and recognizes the legal 

relationships embedded in other Federal 

laws and regulations relating to 

recipient and subrecipient 

responsibilities. However, the FTA and 

FHWA agree that revisions to Questions 

14–16 are appropriate to clarify and 

provide more detail on the lead agencies 

exercise of their discretion to extend 

invitations to agencies to serve as joint 

lead agencies under CEQ regulations. 

Question 15 of the final guidance 

notes that State or regional toll 

authorities are among the agencies that 

lead agencies may invite to serve as a 

joint lead agency. That part of the 

guidance also specifies that agencies 

invited to serve as joint lead agencies 

under CEQ regulations assume the full 

spectrum of decisionmaking roles and 

responsibilities assigned to lead 

agencies under section 6002. Because of 

the scope of the decisionmaking roles 

held by joint lead agencies, the lead 

agencies will want to assess carefully 

which status (joint lead, cooperating, or 

participating) is most appropriate for 

various agencies with an interest in the 

project. 

Question 16 revisions make it clear 

that the lead agencies typically will 

invite a local governmental agency to 

serve as a joint lead agency if it will be 

taking on design and construction 

responsibilities for the project. Once the 

local governmental agency accepts the 

invitation, the three agencies are ‘‘lead 

agencies’’ for purposes of section 6002. 

The three agencies then will determine 

how to allocate roles and 

responsibilities among themselves based 

on resources, expertise, project needs, 

and other relevant factors. However, the 

FHWA will continue to require the 

State, as the direct recipient of the 

Federal-aid highway funds, to serve as 

a joint lead agency on all projects 

regardless of the participation of a local 

governmental agency as a joint lead 

agency. The State remains legally 

responsible and liable for the proper 

performance of any NEPA or section 

6002 work assigned to the local 

governmental agency, and the State 

must provide active oversight and 

supervision to the local governmental 

agency’s work. This means that the State 

must be an active and knowledgeable 

participant in decisionmaking and must 

ensure that the local governmental 

agency, in carrying out any 

responsibilities assigned to it, fully 

complies with NEPA and section 6002. 

The FHWA’s legal relationship, 

including oversight for the 

environmental review process, will 

continue to be with the State as the 

direct recipient of Federal-aid highway 

funds. Thus, the lines of oversight and 

legal responsibility of the FHWA, the 

State, and the local governmental 

agency remain the same as they were 

prior to the enactment of section 6002. 

Several commenters raised questions 

on this and other parts of the proposed 

guidance about the FTA and FHWA 

interpretation of decisionmaking roles 

for the section 6002 Federal lead agency 

and non-Federal lead agencies. The 

main concern was that the U.S. DOT 

agencies were reserving to themselves 

the final decisionmaking authority, 

when section 6002 calls for joint 

decisionmaking between the two 

entities. A second concern was that the 

guidance did not describe how the lead 

agencies would resolve disagreements 

among themselves. The FTA and FHWA 

have considered the comments on the 

topic of lead agency decisionmaking 

and concluded that revisions should be 

made to the guidance to reflect a 

stronger joint decisionmaking process 

under section 6002. The agencies have 

revised Questions 19, 21, 32, 36, 38 and 

39 to include language that addresses 

these issues and to eliminate references 

to the Federal lead agency making the 

final decision in specified situations. 

The Federal lead agency and all joint 

lead agencies collectively constitute the 

‘‘lead agency’’ under section 6002 and 

they will engage in joint decisionmaking 

on matters involving the environmental 

review process. Disagreement on an 

issue must be resolved among those lead 

agencies before further action can be 

taken on the project that relates to the 

disputed issue. The effect of this 

decisionmaking process is that each 

party effectively holds a veto over the 

decision and the entities must cooperate 

in order to move the project forward on 

the issue in question. This is consistent 

with the discussion of joint lead agency 

decisionmaking in Conference Report 

109–203 at pages 1046–1052. 

12. Participating Agencies (Proposed 

Guidance Questions 21–29) 

One commenter expressed concern 

that the information provided in the 

proposed guidance was insufficient to 

advise lead agencies of how to operate 

under the participating agencies 

provision of section 6002. The FTA and 

FHWA have considered the comments 

and revised the final guidance to 

provide additional detail and to 

emphasize areas of flexibility. 

A few commenters raised questions 

about the process for identifying and 

inviting participating agencies. While 

commenters generally endorsed the 

process described in the proposed 

guidance, some commenters thought 

that the proposed guidance implied too 

broad an interpretation of an ‘‘interest’’

that would support inviting an entity to 

be a participating agency under section 

6002. Those commenters requested 

inclusion of a definition of ‘‘interest’’ in 

the guidance. They suggested that the 

term be limited to mean those agencies 

that have more than a remote or 

speculative interest in the project. The 

FTA and FHWA have considered the 

comments and agree with the need to 

clarify the intended interpretation of 

what level of interest is sufficient to 

warrant participating agency status. The 

agencies have revised Question 21 to 

provide that there must be more than a 

tangential, speculative, or remote 

interest in the project to support 

participating agency status. Indicators of 

an ‘‘interest’’ include agencies that have 

an expertise in a topic relevant to the 

project, have jurisdiction over some 

aspect of the project, or are responsible 

for governmental function(s) that may 

be affected by the project or its impacts. 

However, the final guidance also 

recognizes the flexibility lead agencies 

have in this area, and the guidance 


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acknowledges that practices may vary 

from State to State. 

A few commenters raised a question 

about the effect of agency resources on 

the responsibility of participating 

agencies to participate in the 

environmental review process under 

section 6002. The FTA and FHWA 

revised Question 22 to address this 

concern. The FTA and FHWA 

acknowledge that many agencies face 

resource constraints on their operations, 

and that such constraints may affect the 

ability of an agency to participate in 

every project. At the same time, section 

6002 clearly establishes Congress’s 

intent to make the environmental 

review process work more efficiently in 

terms of the time required to deliver 

projects. In order to meet the 

environmental review process 

requirements under section 6002, some 

agencies may have to determine which 

projects are priorities and to allocate 

resources accordingly. The lead 

agencies also will be affected by this 

challenge, and they will need to 

consider the potential effects of not 

having full participation by an agency 

on a project. For example, nonparticipation may have unfavorable 

impacts later when a participating or 

cooperating agency has to make its own 

decisions on the project. 

The FTA and FHWA also note that, in 

their experience, an agency often finds 

it difficult to make meaningful 

contributions to the environmental 

review process if it becomes fully 

involved for the first time only after 

major decisions have been made. For 

these reasons, participating agency 

resource constraints are an important 

factor that the lead agencies should 

consider in developing the project 

coordination plan, including the timing 

of decision points in the process. The 

FTA and FHWA wish to emphasize that 

States still have the authority under 23 

U.S.C. 139(j) to use Federal funds 

received under Title 23 and Title 49 to 

provide financial assistance to agencies 

for the purpose of expediting the 

environmental review process. In the 

final analysis, however, section 6002 

does not provide any exemption from 

participation for agencies that face 

staffing, financial, or other resource 

constraints and the FTA and FHWA 

have not revised the final guidance to 

create one. 

Some commenters asked about the 

timing of the participating agency 

invitations and asked whether 

participating agency invitations could 

be handled prior to the beginning of 

scoping, or whether the scoping process 

could be used to identify participating 

agencies. The FTA and FHWA have 

revised Question 23 to clarify that the 

timing of invitations to serve as 

participating agencies may vary. To the 

extent that the lead agencies know prior 

to scoping that certain entities should be 

invited to serve, the lead agencies may 

send invitations at or after the time of 

the project notice of initiation. If, as the 

project progresses, the lead agencies 

identify additional entities that should 

be invited to serve as participating 

agencies, then they should invite those 

entities promptly. 

Some commenters expressed concern 

about the difference in treatment of 

Federal and non-Federal agencies with 

respect to response, or the lack of 

response, to an invitation to be a 

participating agency. The provisions of 

section 6002 relating to invitations to 

participating agencies [23 U.S.C. 

139(d)(2)–(3)] create a mandatory 

protocol for handling Federal agency 

invitations and the subsequent 

responses or lack of responses. The 

proposed and final guidance reflect that 

statutory procedure in Question 25. 

Because participating agency status 

carries with it certain responsibilities 

that accompany the benefits of the 

opportunity for early and substantive 

participation in the project 

decisionmaking process, the FTA and 

FHWA concluded that conferring 

‘‘involuntary’’ participating agency 

status on non-Federal agencies is 

neither feasible nor appropriate. The 

final guidance retains the original 

procedure for non-Federal agencies. 

A number of commenters proposed 

changes to the language in Questions 

26–27. Question 26 relates to how to 

handle situations in which an agency 

becomes a participating agency after the 

environmental review process is 

underway, either because new 

information indicates that there is a 

need for the agency’s participation, or 

because the agency originally declined 

to participate but has changed its mind. 

Question 27 addresses what happens if 

an agency declines to be a participating 

agency but makes comments on the 

project anyway. Commenters had 

varying concerns. The most prevalent 

issue raised was how to ensure that 

decisions, once made, are not revisited 

unnecessarily, yet how to make certain 

that a new participating agency’s 

interest and concerns were adequately 

addressed. The agencies determined 

that the procedures described in 

Question 26 of the proposed guidance 

establish the appropriate standards for 

the scenarios described in both 

Question 26 and Question 27. The 

agencies have revised Question 27 to 

clarify that the procedures in Question 

26 apply in the case of an agency that 

initially declines to be a participating 

agency but later decides to submit 

comments on the project. 

Question 27 of the proposed guidance 

stated that comments received from 

agencies that declined to be 

participating agencies ‘‘are not entitled 

to any greater or lesser deference than 

those of the general public.’’ A number 

of commenters inferred from this 

proposed language that participating 

agency comments would receive more 

weight than comments from the general 

public. Commenters asked for a 

clarification on this point. The FTA and 

FHWA have reviewed the text and have 

revised the text for Question 27 by 

deleting the phrase in question and 

inserting a reference to the process for 

handling comments that is outlined in 

the text for Question 26 of the final 

guidance. The lead agencies will 

consider all comments on a project, and 

evaluate the comments by considering 

relevant factors that may affect the 

credibility and weight that the agencies 

should afford the comments. 

Some commenters suggested that the 

guidance should recognize that 

participating agencies may have 

different roles and levels of 

participation in the environmental 

review process and indicated that lead 

agencies should have the authority to 

identify a core group of participating 

agencies for regular meetings and 

provide more limited opportunities for 

participation to the remaining 

participating agencies. The FTA and 

FHWA have revised Question 28 to 

clarify that expectations and 

commitments about agency 

participation should be addressed in the 

coordination plan. It is appropriate to 

tailor an agency’s participation to its 

area of interest or jurisdiction, but the 

lead agencies should make their choices 

after considering the potential effects if 

the agency is not provided an 

opportunity for involvement in some 

aspects of the environmental review 

process. Lead agencies also are free to 

honor requests from participating 

agencies to limit the participating 

agency’s involvement, but in such cases 

the participating agency remains bound 

by the section 6002 process and the 

participating agency’s self-imposed nonparticipation or selective participation 

may deprive it of the ability to influence 

the outcome of specific decision points 

in the process. 

One commenter asked that the 

guidance be revised to reflect the ability 

of participating agencies to submit 

comments later in the process if 

additional information from technical 

studies or development of the draft EIS 

becomes available. The FTA and FHWA 


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agree that there are occasions when 

significant and relevant new 

information that is materially different 

than the information available at the 

time of the original comment period 

would merit an additional round of 

comments or require reconsideration of 

previous decisions on a project. The 

lead agencies will have to determine on 

a case-by-case basis whether such a 

situation exists. The FTA and FHWA 

have revised Question 28 to reflect this 

aspect of the process. 

13. Cooperating Agencies (Proposed 

Guidance Questions 30–31) 

One commenter asked for clarification 

in Question 31. The FTA and FHWA 

have revised Question 31 to indicate 

that invitations to agencies to 

participate in the environmental review 

process should be explicit about each 

role that the invited agency is being 

asked to serve. The agencies also 

clarified that, in the interest of 

efficiency, the lead agencies should use 

a single invitation whenever possible to 

address both cooperating agency and 

participating agency status. 

14. Purpose and Need (Proposed 

Guidance Questions 32–35) 

A commenter noted that the guidance 

should better recognize that, because 

other agencies may have to make 

decisions on the project, it would be 

useful for the agencies to jointly develop 

the statement of purpose and need. The 

FTA and FHWA agree with the 

suggestion and have revised Question 

31 accordingly. 

Commenters questioned the use of the 

term ‘‘collaboration’’ in the proposed 

guidance when discussing the 

decisionmaking process for purpose and 

need (Question 32) and range of 

alternatives (Question 36). Questions 32 

and 36 have been revised to state that 

the lead agencies are responsible for the 

development of the purpose and need 

statement and the range of alternatives, 

after considering input from the 

participating agencies and the public. 

Section 6002 calls for giving 

participating agencies and the public an 

opportunity for involvement on purpose 

and need and range of alternatives. 

Commenters on this topic generally 

considered ‘‘opportunity for 

involvement’’ to authorize something 

different than, and potentially less 

interactive than, ‘‘collaboration.’’

Several commenters noted that the use 

of the phrase ‘‘in a timely and 

meaningful way’’ in the answer to 

Question 34 did not provide enough 

guidance on when or how lead agencies 

should provide an ‘‘opportunity for 

involvement’’ on purpose and need. The 

FTA and FHWA have revised Question 

34 to clarify that the opportunity for 

involvement is not a static concept, but 

flexible and depends on the project and 

issues involved. ‘‘Opportunity for 

involvement’’ is intended to gather 

information and perspectives, and to 

make sure that decisionmakers 

understand the concerns of interested 

parties. The FTA and FHWA believe it 

is important to provide maximum 

flexibility to the lead agencies on the 

timing and nature of involvement 

opportunities. The agencies have 

concluded that it would be difficult to 

provide a more precise description in 

the guidance without becoming 

prescriptive. 

A number of commenters expressed 

concerns about how the guidance 

references the transportation planning 

process and its products in Questions 33 

and 35. Questions 33 and 35 have been 

revised to describe the considerations 

that apply to using the results of the 

planning process when developing the 

statement of purpose and need. 

15. Alternatives Analysis (Proposed 

Guidance Questions 36–38) 

Commenters made nearly identical 

comments on the purpose and need and 

alternatives analysis segments of the 

proposed guidance with respect to the 

use of the term ‘‘collaboration’’ and the 

desirability of coordinating decisions on 

these issues with agencies that make 

decisions on the project under other 

laws. The agencies responded to those 

questions in the purpose and need 

segment of this notice, and made the 

same revisions to both the purpose and 

need segment and this alternatives 

analysis segment of the final guidance. 

Commenters objected to the use of the 

term ‘‘timely and meaningful’’ in 

Question 37 as overly broad, and to the 

statement in the proposed guidance that 

opportunities for involvement on 

purpose and need and range of 

alternatives ‘‘may be concurrent or 

sequential’’ as failing to recognize that 

the range of alternatives for analysis can 

be determined only after the purpose 

and need of the project is decided. The 

agencies agree that the phrase ‘‘timely 

and meaningful’’ is overly broad and 

have revised Question 37 by removing 

the phrase. Additionally, the question 

has been revised to further explain that 

the opportunity for involvement must 

be provided prior to the lead agencies’

decision regarding the range of 

alternatives. The agencies also clarified 

that lead agencies must consider 

whether additional opportunity for 

involvement on the range of alternatives 

is required if changes to the purpose 

and need arise out of involvement by 

the participating agencies and the 

public. 

Some commenters stated that the 

guidance should clarify the parameters 

of the collaboration process for choosing 

methodologies, including the 

timeframes for comment. Another 

concern was that reaching closure on 

methodologies during scoping may not 

be feasible, and that the process for 

selecting methodologies discussed in 

Question 38 could become timeconsuming and contentious. 

The FTA and FHWA have considered 

all of the comments on the process for 

selection of methodologies and have 

concluded that revisions to Question 38 

are warranted. The agencies agree that 

collaboration on methodologies need 

occur only with agencies that have some 

expertise, experience, statutory mission, 

or jurisdiction relevant to the object of 

the pending analysis. The FTA and 

FHWA note that this standard should be 

interpreted reasonably, so that 

participating agencies are not 

inappropriately excluded from 

collaborating on methodologies. If the 

lead agencies elect to establish a 

comment period under section 6002 [23 

U.S.C. 139(g)(2)(B)] to help bring closure 

to the selection process, then they will 

need to follow procedures for giving 

notice of the comment period (see 

Question 54). Issues on methodologies 

should be raised and resolved as soon 

in the environmental review process as 

the lead agencies believe there is 

sufficient information on the particular 

issue to reasonably support selection of 

the methodology for analysis. The FTA 

and FHWA have concluded that the 

language on documenting the selection 

of methodology, and any objections 

thereto by participating agencies, is 

appropriate and consistent with NEPA 

requirements. Such documentation also 

is a good administrative practice, 

particularly in the event of later 

litigation. That language is retained in 

the final guidance. 

A commenter raised a concern that 

the language in Question 38 on 

‘‘comments late in the process’’ appears 

to conflict with 40 CFR part 1503 

requirements for the consideration of 

comments received during the draft EIS 

comment period. The NEPA regulation 

at 40 CFR 1503.4(a) does require an 

agency preparing a final EIS to ‘‘assess 

and consider’’ comments made on a 

draft EIS. However, under 40 CFR 

1503.4(a)(5), the agency preparing the 

final EIS may ‘‘explain why the 

comments do not warrant further agency 

response, citing the sources, authorities, 

or reasons which support the agency’s 

position and, if appropriate, indicate 

those circumstances which would 


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trigger agency reappraisal or further 

response.’’ The FTA and FHWA have 

concluded that the lead agencies are not 

required to revisit an issue on which 

participating agencies had an 

opportunity to comment earlier in the 

environmental review process. The 

exception would be if the draft EIS is 

the first opportunity a participating 

agency has to comment on significant 

and material new information affecting 

the selection. The FTA and FHWA have 

determined that the language in the 

proposed guidance represents an 

appropriate interpretation that is in 

harmony with both the NEPA regulatory 

provisions and section 6002 

requirements. 

The FTA and FHWA also have 

revised Question 38 to clarify the 

procedure for developing and applying 

a methodology for a program, region, or 

class of projects. 

16. Preferred Alternative (Proposed 

Guidance Questions 39–46) 

Several commenters asked for 

clarification of Question 39, concerning 

who decides whether the preferred 

alternative can be developed to a higher 

level of detail. Some objected to the use 

of the term ‘‘locally preferred 

alternative’’ because it is not a term 

used in the statute. The agencies have 

revised Question 39 to eliminate the 

term ‘‘locally preferred alternative.’’ The 

agencies also have adopted in Question 

39, as throughout the final guidance, 

language that reflects joint 

decisionmaking among the lead 

agencies. If the joint decisionmaking 

process does not result in mutual 

agreement on whether there is a 

preferred alternative or whether the 

section 6002 criteria for doing a higher 

level of design for a preferred alternative 

[23 U.S.C. 139(f)(4)(D)] are satisfied, 

then no action can be taken that relies 

on such decision(s) until there is 

agreement among all of the lead 

agencies. 

Commenters asked for clarification of 

what ‘‘accepted’’ means in Questions 39 

and 41 with respect to the preferred 

alternative. The FTA and FHWA have 

revised Question 41 to clarify this point. 

Some commenters asked whether 

acceptance of the identification of a 

preferred alternative affects the New 

Starts or Small Starts rating process. The 

FTA has revised Question 41 to state 

that neither acceptance of a preferred 

alternative, nor a decision to do a higher 

level of design on a preferred 

alternative, affects the New Starts or 

Small Starts rating process. 

Several commenters asked the FTA 

and FHWA to consider ways to reduce 

the analysis and documentation 

requirements for the determination 

whether to do a higher level of design 

on the preferred alternative (see 

Questions 42–44), and to clarify when 

the lead agency can identify a preferred 

alternative. The FTA and FHWA have 

considered all of the comments on this 

issue and appreciate the commenters’

desire to streamline the process for 

making the decision on doing a higher 

level of detail. The agencies note that 

the criteria for the decision, and the 

limitations on the purposes for which 

the work can be done and the scope of 

work that can be performed, appear in 

section 6002 [23 U.S.C. 139(f)(4)(D)]. 

Those provisions echo language in 

NEPA regulations and relevant case law. 

The agencies have concluded that the 

requested revisions would not be 

consistent with those laws, particularly 

with respect to the required finding of 

impartiality in future decisionmaking 

on the selection of alternatives. Lead 

agencies are encouraged to identify 

workable methods for expediting this 

decision, but the requirement for 

project-by-project review is retained in 

the final guidance. 

The FTA and FHWA have clarified in 

Question 43 when the lead agencies 

may decide on a preferred alternative 

and the performance of a higher level of 

design work for the preferred 

alternative. In keeping with NEPA and 

agency practices prior to SAFETEA–LU, 

a decision on a preferred alternative 

cannot occur until after the lead 

agencies have conducted sufficient 

scoping and analysis of alternatives to 

support the identification. Further, there 

cannot have been sufficient scoping 

until after an opportunity for the 

involvement of participating agencies 

and the public on the purpose and need 

and the range of alternatives has 

occurred. 

A number of commenters asked the 

FTA and FHWA to consider amending 

Question 40 to authorize, during the 

completion of the NEPA process, design 

work that goes beyond the level of work 

described in section 6002. The types of 

work that the commenters indicated 

should be permitted, and would not bias 

decisionmaking, included geotechnical 

assessments, hydraulic and hydrologic 

analysis, traffic studies, hazardous 

materials assessments, utility 

engineering, cost estimates, and 

development of preliminary design 

drawings. The FTA and FHWA have 

considered the various comments on the 

issues of the level of additional design 

work and purposes for which additional 

design work could be done for a 

preferred alternative during NEPA 

review and have decided not to make 

the requested revisions. The agencies 

note that the types of work listed by the 

commenters often are a part of the 

higher level of design work allowed in 

order to meet NEPA or permitting 

agency requirements for information 

about engineering and operational 

feasibility, impacts, or other issues. The 

type of work is not determinative. The 

key questions are whether the purpose 

of the additional work is one that is 

authorized by law, and whether the 

scope of work to be done is limited to 

what is needed to satisfy such 

authorized purpose(s). The FTA and 

FHWA will continue to require good 

faith and reasonable determinations that 

the permitted level of design is what is 

needed to meet a purpose authorized by 

applicable laws and regulations, 

including section 6002. 

17. Coordination and Schedule 

(Proposed Guidance Questions 47–57) 

This segment of the proposed 

guidance drew many comments, 

particularly with respect to the need for 

a schedule and the process of modifying 

a schedule. The concerns of many 

commenters focused on when parties 

other than the lead agencies have a role 

in scheduling decisions. With respect to 

transit projects, commenters questioned 

the applicability of section 6002 to New 

Starts and Small Starts projects, and one 

commenter suggested that FTA exempt 

Small Starts projects from the project 

coordination plan requirements under 

section 6002 because Small Starts 

projects are intended to have 

streamlined processes and should be 

allowed to develop individualized plans 

for project planning, development, and 

implementation. 

The FTA and FHWA agree with the 

commenter’s sentiments about the 

importance of streamlining the process 

and having plans that are tailored to the 

needs of the project. The FTA and 

FHWA believe the coordination plan 

requirements will promote these 

objectives, not hinder them. The 

agencies have made no change to the 

final guidance in terms of the projects 

that are subject to the coordination plan 

requirements. 

Some commenters suggested the 

addition of language advising lead 

agencies to give cooperating and 

participating agencies a role in the 

development of project coordination 

plans. Question 47 has been revised to 

state that because key elements of the 

coordination plan may be setting 

expectations that require resource 

commitments by the participating 

agencies, consultation with the 

participating agencies is strongly 

encouraged. 


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A number of commenters submitted 

questions about the scope, content, and 

use of schedules in project coordination 

plans under section 6002. Some 

commenters objected to the FHWA 

requirement for a schedule (Question 

52), citing the optional nature of 

schedules under section 6002 [23 U.S.C. 

139(g)(1)(B)]. Others were concerned by 

the use of the word ‘‘negotiated’’ in the 

Question 52 discussion of the process 

for creating a schedule, especially the 

potential interpretation of that word as 

requiring the agreement of participating 

agencies to a proposed schedule. The 

FTA and FHWA have considered the 

various comments on this topic. The 

agencies also have considered that 

section 6002 is intended to expedite the 

environmental review process, and to 

avoid duplication and waste. The use of 

a project schedule is one important tool 

to use to achieve those goals. Both the 

FTA and the FHWA support tailoring 

the form and substance of project 

schedules to meet the needs of the 

particular projects and the factors 

specified in section 6002 [23 U.S.C. 

139(g)(1)(B)(ii)]. 

The final guidance recognizes that 

schedules are optional, not mandatory, 

under section 6002. The FTA decision 

to treat schedules as optional remains 

unchanged in the final guidance. The 

FHWA believes that management and 

stewardship of public funds within the 

Federal-aid highway program dictates 

the need for a schedule for EA and EIS 

projects. The final guidance states that 

FHWA assumes that a schedule will be 

used on all EA and EIS projects 

processed under section 6002. If the 

non-Federal lead agency believes that a 

schedule is not needed, then the nonFederal lead agency will be expected to 

consult with the FHWA about how the 

project will proceed. The development 

of a schedule will involve consulting 

with the participating agencies, but does 

not require consensus or concurrence. 

A few commenters suggested that the 

factors for establishing a project 

schedule, listed in Question 53 of the 

proposed guidance, were incomplete 

because they failed to include a factor 

that recognized the need to speed up the 

environmental review process. The FTA 

and FHWA agree with the commenters 

that it is important to always keep in 

mind that the section 6002 provisions 

are intended to expedite effective 

project environmental reviews, which 

includes realistic schedules that focus 

on timely decisionmaking. The agencies 

note that the factors listed in Question 

53 are derived from the statute. The 

FTA and FHWA have revised Question 

53 to recognize explicitly the 

importance of using a schedule to help 

expedite project reviews, and the ability 

of the lead agencies to consider 

whatever array of factors they believe 

may have a substantial effect on moving 

the environmental review process 

forward in an efficient and effective 

manner. 

Some commenters raised concerns 

about how to handle needed changes in 

project schedules. They expressed 

particular interest in how to 

accommodate changes in the level of 

knowledge about issues affecting the 

project. Commenters also asked for 

clarification about the type of 

interaction with other agencies that is 

required before changing a schedule. 

Section 6002 [23 U.S.C. 139(g)(1)(D)] 

permits the lead agencies to lengthen a 

schedule for good cause. Concurrence of 

other agencies is required only if a 

schedule is shortened, and even then 

agreement is needed only from 

cooperating agencies that would be 

affected by the shorter schedule. The 

agencies have revised Question 56 to 

clarify this point. If the component of 

the schedule that the lead agencies 

propose to shorten does not apply to a 

particular cooperating agency, then that 

agency’s concurrence is not required for 

the change. The FTA and FHWA do 

encourage lead agencies to consider the 

benefits that can be obtained by 

coordinating proposed schedule 

changes with both cooperating and 

participating agencies so that all 

affected agencies can plan 

appropriately. 

One commenter suggested that the 

guidance should emphasize that there is 

flexibility in setting the deadlines for 

comments if there is good cause for 

exceeding the section 6002 statutory 

time periods [23 U.S.C. 139(g)(2)], 

which may include where there is new 

information or a substantial change to 

the project. The FTA and FHWA agree 

with the commenter that there may be 

circumstances when good cause will 

exist for the lead agencies to extend a 

comment period or, in extreme cases, to 

reopen comments on an issue by 

creating a second comment period. It is 

a lead agency decision whether such 

circumstances exist on a particular 

project. The FTA and FHWA have 

revised Question 54 of the final 

guidance to point out the lead agencies’

ability to extend comment periods for 

good cause. The lead agencies may 

provide notice to participating agencies 

and the public about when a particular 

comment period starts and concludes 

through distribution of the schedule or 

by other means. 

The agencies have revised Question 

57 to clarify that where the lead 

agencies decide to adjust a schedule, 

section 6002 [23 U.S.C. 139(g)(1)(E)] 

does require the lead agencies to 

provide a copy of the revised schedule 

to the participating agencies, the State 

DOT, and the project sponsor (if not the 

State). The revised schedule also must 

be made available to the public. 

18. Requirements Placed on Non-U.S. 

DOT Federal Agencies (Proposed 

Guidance Questions 58–59) 

Several commenters objected to the 

Question 58 language that describes the 

180-day deadline for decisions under 

Federal laws as applying only to 

decisions made by Federal agencies. 

The commenters stated that the 

deadline for decisionmaking also should 

apply to decisions by State agencies that 

are made under Federal law, such as a 

Section 401 water quality certification 

under the Clean Water Act, 33 U.S.C. 

1341. The language of the statute itself 

references ‘‘the failure of the Federal 

agency to make the decision’’ [23 U.S.C. 

139(g)(3)(A)]. The Conference Substitute 

Report for SAFETEA-LU [Conference 

Report on the Committee of the 

Conference on H.R. 3, House of 

Representatives Report 109–23, page 

1051] refers to the section as 

‘‘provid[ing] notice * * * of the failure 

of a Federal agency to make decisions in 

the environmental review process 

(section 139(g)(3)).’’ The FTA and 

FHWA have concluded that the 

language in the proposed guidance is 

correct. 

19. Concurrent Reviews (Proposed 

Guidance Question 60) 

In connection with Question 60, one 

commenter asked for additional 

information on how the FHWA will 

ensure that the participating agencies 

fulfill their responsibilities under 

section 6002 [23 U.S.C. 139(h)(3)] to 

identify issues of concern as early as 

practicable. The FTA and FHWA 

believe that all lead and participating 

agencies have legal and general 

governmental obligations to work 

cooperatively to improve the 

environmental review process. In 

particular, the agencies point to the 

roles and responsibilities specified in 

section 6002 for lead agencies [23 U.S.C. 

139(c)(6) and (h)(2)] and participating 

agencies [23 U.S.C. 139(d)(7) and (h)(3)]. 

The U.S. DOT is working with other 

Federal agencies to help them 

understand their obligations under 

section 6002 and to encourage actions to 

meet those obligations. The FTA and 

FHWA have revised the final guidance 

to better capture these points. 


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1U.S. Department of Transportation Collaborative 

Problem Solving: Better and Streamlined Outcomes 

for All (2002), available online at the following 

URL: http://www.environment.fhwa.dot.gov/ 

strmlng/adrguide/index.asp. 

2The order is available online at http:// 

www.environment.fhwa.dot.gov/strmlng/ 

dot5611_order.asp. 

20. Issues Identification and Resolution 

(Proposed Guidance Questions 61–63) 

A number of comments were 

submitted relating to dispute resolution 

procedures and the effect of the new 

issue resolution provisions in section 

6002 [23 U.S.C. 139(h)]. Commenters 

wanted clarification on which 

procedures apply, when they apply, and 

who can initiate the procedures. Some 

commenters asked for clarification of 

the differences between the SAFETEA–

LU section 6002 procedure and other 

agency dispute resolution processes 

(including ‘‘informal’’ procedures). The 

agencies believe that the starting point 

for this topic is a better definition of 

what the section 6002 procedure [23 

U.S.C. 139(h)] does, and does not, 

encompass. The FTA and FHWA agree 

with the commenters who observed that 

the section 6002 process may be 

initiated only by the project sponsor (as 

defined in section 6002) or the Governor 

of the State in which the project is 

located. The agencies have revised 

Question 61 in the final guidance to 

clarify this point. 

The FTA and FHWA also note that 

the section 6002 dispute resolution 

process applies ‘‘at any time * * * to 

resolve issues that could delay the 

completion of the environmental review 

process or could result in denial of any 

approvals required for the project under 

applicable law.’’ Disputes that are likely 

to affect the progress of a project often 

are disputes over decisions that lie 

outside the decisionmaking authority of 

the lead agencies, so the lead agencies 

are not able to impose a final decision 

if the dispute is not otherwise resolved. 

The FTA and FHWA do believe the 

likelihood of success will be enhanced 

if the individuals attending a dispute 

resolution meeting have the rank and 

authority to make ‘‘on-the-spot’’

commitments that will bind their 

respective agencies or organizations. 

The guidance has been revised to 

highlight this principle and to recognize 

that the organizational level of the 

persons invited should be guided by the 

kinds of issues in dispute. 

Some commenters stated that the 

dispute resolution guidance and order 

issued under section 1309 of TEA–21 1

should be withdrawn because section 

1309 was repealed by section 6002 of 

SAFETEA–LU. Those commenters 

suggested that the section 6002 

provision was intended to replace other 

agency dispute resolution procedures, 

and that States should have the 

flexibility to establish their own dispute 

resolution procedures so long as they 

are consistent with the provisions of 

section 6002. 

The FTA and FHWA recognize that 

there is nothing in the section 6002 

dispute resolution process that assures 

resolution of the disagreement. The 

endpoint of the section 6002 process, as 

indicated in Question 61 of the 

proposed guidance, is notice to 

specified congressional committees that 

the dispute remains unresolved [23 

U.S.C. section 139(h)(4)(B)]. For these 

reasons, the FTA and FHWA encourage 

separate dispute resolution procedures 

at the State and Federal levels to 

address disagreements over important 

issues of concern. Lead agencies may 

include dispute resolution procedures 

in project coordination plans. This may 

be done on a project-by-project basis or 

as part of program-wide coordination 

plan provisions. 

Individual Federal agencies have 

recognized the value of dispute 

resolution procedures and many have 

such procedures either as a matter of 

administrative policy or as a result of 

statutory provisions. The FTA and 

FHWA do not believe that the repeal of 

section 1309 of TEA–21 in any way 

affects Federal agency authority to 

maintain and apply dispute resolution 

procedures. The FHWA and FTA have 

concluded that most of the dispute 

resolution guidance developed after the 

adoption of TEA–21 simply describes 

dispute resolution principles and 

practices that continue to be useful. The 

U.S. DOT Order 5611.1A, entitled ‘‘U.S. 

Department of Transportation National 

Procedures for Elevating Highway and 

Transit Environmental Disputes’’

(October 10, 2003),2 which was created 

under section 1309 of TEA–21, does not 

apply to section 6002 projects. The 

FHWA will develop updated procedures 

to guide FHWA-initiated dispute 

resolution efforts on projects subject to 

Section 6002. 

Another commenter stated that the 

FTA and FHWA should not require the 

completion of agency dispute resolution 

procedures before initiation of the 

section 6002 issue resolution procedure. 

The FTA and FHWA have considered 

this comment and agree that the final 

guidance should clarify this point. The 

agencies emphasize that State and 

Federal dispute resolution procedures, 

both formal and informal, should 

operate to complement the section 6002 

issue resolution procedure. State or 

Federal agency dispute resolution 

procedures are not considered as legally 

required prior to the initiation of the 

section 6002 issue resolution process. 

State or Federal agency dispute 

resolution procedures may be used prior 

to, or concurrent with, the section 6002 

procedure. However, the FTA and 

FHWA strongly believe that the State 

and Federal agency dispute resolution 

procedures provide an effective method 

for solving major disagreements. The 

agencies know, based on experience, 

that resolution of issues at the lowest 

possible level through problem solving 

among the immediate parties to the 

dispute typically is the most effective 

way to keep a project on track. 

A few commenters indicated that 

more guidance is needed in Question 62 

on the scope of the term ‘‘issues of 

concern’’ so that practitioners can 

understand which types of 

disagreements are subject to the issue 

resolution provisions of section 6002. 

Commenters generally were concerned 

that too many issues would be referred 

for dispute resolution procedures, 

thereby delaying the decisionmaking 

process. One commenter observed that 

carefully defining the kinds of issues 

that are important enough to trigger the 

dispute resolution procedures 

contributes to the successful use of a 

dispute resolution procedure. 

The FTA and FHWA have considered 

the comments on this point, and have 

concluded that lead agencies and 

participating agencies should be guided 

by the statutory language in section 

6002 [23 U.S.C. 139(h)(3)–(4)]. The 

agencies have revised Question 62 to 

track the statutory language. The 

provision on participating agency 

responsibilities states that participating 

agencies ‘‘shall identify, as early as 

practicable, any issues that could 

substantially delay or prevent an agency 

from granting a permit or other approval 

that is needed for a project.’’ In practice, 

this means that both lead agencies and 

participating agencies have 

responsibilities for identifying the 

importance of a disagreement. The lead 

agencies need to manage the project and 

its schedule well enough, and consult 

with participating agencies effectively 

enough, to know when there is an issue 

that is unresolved and likely to cause 

delay or prevent issuance of a permit 

needed for the project. A participating 

agency has the obligation to come 

forward as soon as it is aware that there 

may be an issue that will cause a 

substantial delay or permit denial if not 

satisfactorily resolved. When a 

participating agency informs the lead 

agencies of an issue of concern within 

the meaning of section 6002, the lead 


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agencies should evaluate whether 

further dispute resolution efforts using 

formal or informal processes other than 

section 6002 can be productive. This 

step by the lead agencies does not 

foreclose the initiation of the section 

6002 issue resolution procedure by the 

project sponsor or the State Governor, 

but the FTA and FHWA discourage use 

of the section 6002 issue resolution 

procedure as the ‘‘first step’’ after a 

participating agency disclosure of an 

issue of concern. The FTA and FHWA 

believe that it is clear from the limiting 

language in the statute itself that few 

disputes should be deemed of sufficient 

importance to trigger the section 6002 

issue resolution process. Disputes of 

lesser importance should be resolved by 

the parties through the section 6002 

authorities for lead agency decisions, if 

applicable, or through other dispute 

resolution procedures. 

21. Funding of Additional Agency 

Resources (Proposed Guidance 

Questions 67–69) 

One commenter asked that the 

guidance make it clear that no 

additional funds are given to States for 

the purpose of providing the financial 

assistance authorized by section 6002. 

The agencies have revised Question 67 

to make this point. 

22. Statute of Limitations (Proposed 

Guidance Section 3) 

The final guidance retains the election 

by the FTA and FHWA to approach 

administration of the statute of 

limitations (SOL) provision in section 

6002 [23 U.S.C. 139(l)] in different 

ways. Comments received on the SOL 

segment (Section 3) of the proposed 

guidance indicated that the final 

guidance should provide greater 

emphasis on this fact, and the FTA and 

FHWA have made appropriate revisions 

to Section 3 of the final guidance. 

Agencies receiving funding from the 

FTA should consult the part of Section 

3 of the final guidance that is specific 

to FTA. Similarly, agencies receiving 

funding through the FHWA should refer 

to the FHWA portion of Section 3 of the 

final guidance. Procedures described in 

Appendix E apply only to FHWA and 

the recipients of Federal-aid highway 

funding. Despite the differences in the 

implementation procedures between 

FTA and FHWA, the agencies stress that 

they interpret the scope and intent of 

the SAFETEA–LU SOL provision in the 

same way and that their implementation 

decisions are based solely on 

administrative differences between the 

FTA and FHWA programs. 

For the FHWA, the final guidance 

replaces its earlier ‘‘Interim Guidance 

on the Use of 23 U.S.C. 139(l) 

Limitations on Claims Notices,’’ dated 

December 1, 2005, that informed actions 

to implement the SAFETEA–LU SOL 

provision between the effective date of 

SAFETEA–LU and the effective date of 

the final guidance on section 6002. The 

final guidance contains not only SOL 

revisions responding to comments 

received in the docket, but also changes 

initiated by the FHWA as a result of the 

agency’s experience with the SOL 

provisions since the effective date of 

SAFETEA–LU. 

Only a small number of major 

comments were submitted with respect 

to the FHWA SOL guidance in 

Appendix E. Some commenters asked 

for clarification in Appendix E about 

which Federal agencies may publish the 

SOL notice, and how to handle 

publication where a substantial period 

of time has elapsed between the FHWA 

Record of Decision (ROD) and the last 

permit decision by other agencies. The 

FTA and FHWA have considered the 

comment and have added clarifying 

language to Section 3 of the final 

guidance. The FHWA has revised 

Question E–16 in Appendix E of the 

final guidance to clarify that the FHWA, 

as Federal lead agency, expects to 

publish all notices regardless of the 

lapse of time between the ROD and the 

last Federal agency project decision. 

One commenter asked for guidance on 

whether the publication of a SOL notice 

for a SEIS will reopen issues covered in 

the original EIS for which a SOL notice 

previously was published. The FHWA 

amended Question E–21 in the final 

guidance to include this issue. The 

effect of a SEIS SOL notice on decisions 

covered by a SOL notice published for 

an earlier ROD will depend on the 

circumstances. The FHWA believes that 

litigation of earlier decisions that are 

unrelated to topics addressed by the 

SEIS will be foreclosed by the 

expiration of the 180-day period after 

the publication of the SOL notice 

covering those earlier decisions. Any 

issues addressed in the SEIS 

proceedings, and the Federal agency 

decisions that rely on the information 

developed during the SEIS proceedings, 

would be subject to the SOL notice(s) 

published in the Federal Register after 

the SEIS and related ROD. 

Another commenter noted that the 

SOL notice is a Federal requirement and 

expressed the view that the cost of the 

notice should be borne by the FHWA. 

The SOL notices are an optional 

measure that will be used on individual 

projects. As such, the cost of publishing 

the notices is logically a project-related 

expense that may be necessary or 

appropriate to the ultimate construction 

of an approved project. Until a system 

is in place to handle State 

reimbursement of FHWA for SOL notice 

costs, the FHWA will continue to pay 

for the publication of the notices in the 

Federal Register. 

23. Other Comments 

A number of commenters asked 

whether electronic communications 

could be used in place of hard copy 

letters for various actions that require 

documentation, such as invitations to 

participating agencies. The commenters 

cited the prevalence of electronic 

communications and the potential 

timesavings that can be accomplished 

by using electronic communications. 

The FTA and FHWA agree with the 

commenters that electronic means of 

communication can be used, subject to 

certain common sense recordkeeping 

and authentication requirements so that 

lead agencies maintain the required 

project records and have assurance that 

they are dealing with properly 

authorized agency representatives. The 

FTA and FHWA revised the final 

guidance to reflect this view. 

One commenter asked for guidance on 

how lead agencies should handle 

situations where actions were taken 

after August 10, 2005, on a project that 

is subject to section 6002, but the 

actions may not conform to all 

requirements of the final guidance 

because the guidance did not exist. The 

FTA and FHWA have considered the 

comment and have revised Question 8 

of the final guidance to clarify how to 

handle such cases. If the difference 

relates to a substantial requirement 

under the final guidance, then the 

Federal lead agency will assess whether 

additional action is needed and can be 

taken to cure the discrepancy. 

The FTA and FHWA recognize and 

appreciate the efforts of all parties who 

provided comments for consideration in 

the development and finalization of the 

section 6002 guidance. 

(Authority: 23 U.S.C. 315; Pub. L. 109–59, 

119 Stat. 1144; 49 U.S.C. 5334; 23 U.S.C. 139; 

49 CFR 1.48; 49 CFR 1.54) 

Issued on: November 7, 2006. 

James S. Simpson, 

Federal Transit Administrator. 

J. Richard Capka, 

Federal Highway Administrator. 

[FR Doc. 06–9201 Filed 11–14–06; 8:45 am] 

BILLING CODE 4910–57–P 


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