[Federal Register Volume 72, Number 151 (Tuesday, August 7, 2007)]
[Proposed Rules]
[Pages 44038-44050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3781]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 622

Federal Highway Administration

23 CFR Part 771

[Docket No. FTA-2006-26604]
RIN 2132-AA87


Environmental Impact and Related Procedures

AGENCIES: Federal Transit Administration (FTA), Federal Highway 
Administration (FHWA), DOT.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: This notice of proposed rulemaking (NPRM) provides interested 
parties with the opportunity to comment on proposed changes to the 
joint FTA/FHWA procedures that implement the National Environmental 
Policy Act (NEPA). The revisions are prompted by enactment of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU), which prescribes additional requirements for 
environmental review and project decisionmaking that are not 
appropriately reflected in the existing joint NEPA procedures. Pursuant 
to provisions of SAFETEA-LU, this NPRM proposes to add new categorical 
exclusions (CEs) from the NEPA process. This NPRM also proposes other 
minor changes to the joint procedures in order to improve the 
description of the procedures or to provide clarification with respect 
to the interpretation of certain provisions. The FTA and the FHWA seek 
comments on the proposals contained in this notice.

DATES: Comments must be received by October 9, 2007.

ADDRESSES: Written Comments: Submit written comments to: U.S. 
Department of Transportation, Docket Operations, M-30, West Building 
Ground Floor, Room W12-140, 1200 New Jersey Ave. SE., Washington, DC 
20590.
    Comments. You may submit comments identified by the docket number 
(FTA-2006-26604) by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
    <bullet> Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    <bullet> Fax: 1-202-493-2251.
    <bullet> Mail: Docket Management System, U.S. Department of 
Transportation, Docket Operations, M-30, West Building Ground Floor, 
Room W12-140, 1200 New Jersey Ave. SE., Washington, DC 20590.
    <bullet> Hand Delivery: To the Docket Management System; U.S. 
Department of Transportation, Docket Operations, M-30, West Building 
Ground Floor, Room W12-140, 1200 New Jersey Ave. SE., Washington, DC 
20590 between 9 a.m. and 5 p.m., e.t., Monday through Friday, except 
Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) of this notice. 
Note that all comments received will be posted without change to http://dms.dot.gov including any personal information provided. Please see 
the Privacy Act heading under SUPPLEMENTARY INFORMATION.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to the 
Docket Management System. (See ADDRESSES.)

[[Page 44039]]


FOR FURTHER INFORMATION CONTACT: For the FHWA: Carol Braegelmann, 
Office of Project Development and Environmental Review (HEPE), (202) 
366-1701, or Janet Myers, Office of Chief Counsel (HCC), (202) 366-
2019, Federal Highway Administration, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. For 
the FTA: Joseph Ossi, Office of Planning and Environment (TPE), (202) 
366-1613, or Christopher Van Wyk, Office of Chief Counsel (TCC), (202) 
366-1733, Federal Transit Administration, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. 
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., for FHWA, and 9 
a.m. to 5:30 p.m., e.t., for FTA, Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Background

    On August 10, 2005, President Bush signed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144). Section 6002 of SAFETEA-
LU created 23 U.S.C. 139, which contains a number of new requirements 
that the FTA and the FHWA must meet in complying with the National 
Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347). In addition to 
these new requirements, section 6010 of SAFETEA-LU requires the FTA and 
the FHWA to initiate rulemaking to establish, to the extent 
appropriate, CEs for activities that support the deployment of 
intelligent transportation infrastructure and systems.
    In a Federal Register notice published on November 15, 2006 (71 FR 
66576), the FTA and the FHWA made available final joint guidance 
implementing the provisions of section 6002 of SAFETEA-LU. The final 
guidance is available at http://www.fhwa.dot.gov/hep/section6002/.
    This document proposes to codify changes mandated by section 6002 
of SAFETEA-LU in the joint NEPA procedures at 23 CFR Part 771 to 
eliminate confusion or inconsistencies could otherwise result. For 
example, the joint procedures currently provide that a comment period 
of ``not less than 45 days'' shall be established for draft 
environmental impact statements (EISs), but there is no upper limit 
provided on the number of days for that comment period. Section 6002 of 
SAFETEA-LU establishes a comment period for draft EISs of ``not more 
than 60 days,'' with certain exceptions. A second example is the need 
under section 6002 to extend invitations to take an active role in the 
process to ``participating agencies,'' a newly created class of 
agencies that may have an interest in a project under study. There is 
no parallel requirement in the existing regulation. The joint NEPA 
procedures would be revised to accommodate these types of issues, as 
well as other changes to the environmental review process.
    There are other environmental review requirements in section 6002 
of SAFETEA-LU that are neither inconsistent with the current joint 
procedures, nor part and parcel of a ``routine'' environmental review 
process. Such provisions are accommodated adequately through guidance. 
For example, a participating agency ``issue resolution'' process is 
expressly provided for in section 6002, but the FTA and the FHWA 
propose not to incorporate processes of that type into the joint NEPA 
procedures. Since we propose to codify changes mandated by section 6002 
of SAFETEA-LU in the joint NEPA procedures at 23 CFR part 771 only to 
the extent that confusion or inconsistencies could otherwise result, 
applicants and others participating in the environmental review process 
for highway or transit-related projects are advised to become 
thoroughly familiar with the provisions of section 6002. Those 
provisions supplement the NEPA implementing regulation of the Council 
on Environmental Quality (CEQ) and the joint FHWA-FTA environmental 
regulation, and must be followed.
    This NPRM proposes to revise 23 CFR 771.117 by adding new CE 
provisions and revising one existing provision. One newly proposed CE 
is for stand-alone intelligent transportation systems (ITS) projects. 
Section 6010 of SAFETEA-LU mandates the initiation of a rulemaking 
process to establish, as appropriate, a CE from the need to prepare 
either EISs or environmental assessments (EAs) for activities that 
support the deployment of intelligent transportation infrastructure and 
systems. ITS, an initiative begun with enactment of the Intermodal 
Surface Transportation Efficiency Act (ISTEA) (Pub. L. 102-240, 105 
Stat. 114) in 1991, encompass a broad range of wireless and wire line 
communications-based information and electronics technologies. When 
integrated into the transportation system's infrastructure, and into 
vehicles themselves, these types of technology may relieve congestion, 
improve safety, and enhance productivity.
    ITS include many types of technology-based systems that are 
generally divided into intelligent infrastructure systems and 
intelligent vehicle systems. Information about these systems and how 
they can be applied, as well as their costs and benefits, is available 
at the DOT's ITS Applications Overview Web site, which can be found at 
http://www.itsoverview.its.dot.gov. A hyperlink to ``Lessons Learned'' 
that can be accessed at this Web site provides additional insights into 
deployment of intelligent infrastructure systems and intelligent 
vehicle systems at various locations throughout the United States.
    There are presently scores of applications of ITS in both the 
infrastructure and vehicle categories. Virtually all applications of 
ITS fit within one or more existing CEs in the existing joint NEPA 
procedures, such as approval of utility installations (23 CFR 
771.117(c)(2)), installation of signs, pavement markers, traffic 
signals, and railroad warning devices (where no substantial land 
acquisition or traffic disruption will occur) (23 CFR 771.117(c)(8)), 
ridesharing activities (23 CFR 771.117(c)(13)), and activities that do 
not involve or lead directly to construction (23 CFR 771.117(c)(1)).
    Categorical exclusion of activities that support the deployment of 
intelligent transportation infrastructure and systems also finds 
substantiation in the CEs of other Federal departments and agencies, 
including the U.S. Department of Homeland Security (DHS) and agencies 
within that department. A 200-page ``Administrative Record for 
Categorical Exclusions (CATEX)'' supporting the DHS CEs provides 
additional substantiation for categorically excluding activities that 
support the deployment of intelligent transportation infrastructure and 
systems. That administrative record can be reviewed at http://www.dhs.gov/xlibrary/assets/nepa/Mgmt_NEPA_AdminRecdetailedCATEXsupport.pdf. The substantiation by the DHS 
includes a comparative review of other Federal agency CEs that reflect 
similar activities and impacts. The class of actions identified in the 
DHS administrative record is virtually identical to activities that 
support deployment of intelligent transportation infrastructure and 
systems: ``Construction, installation, operation, maintenance, and 
removal of utility and communication systems (such as mobile antennas, 
data processing cable, and similar electronic equipment) that use 
existing rights-of-way, easements, utility distribution systems, and/or 
facilities.'' (See CE E1 in the DHS administrative record referenced 
above). Those activities are similar to, and would have the same 
impacts as, the ITS activities proposed for a CE herein.

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    Several other classes of action identified in the DHS 
administrative record also support categorical exclusion of activities 
that support deployment of intelligent transportation infrastructure 
and systems. Foremost among those classes of action are those 
identified as CEs B8 and B9.\1\ Actions categorically excluded under 
the DHS CE B8 include acquisition, installation, maintenance, 
operation, or evaluation of security equipment. Examples include 
cameras and biometric devices, as well as access controls, screening 
devices, and traffic management systems. Actions categorically excluded 
under CE B9 include acquisition, installation, operation, or evaluation 
of physical security devices, or controls to enhance physical security. 
Examples include motion detection systems, use of temporary barriers, 
fences, and jersey walls on or adjacent to existing facilities or on 
land that has already been disturbed or built upon, and remote video 
surveillance systems.
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    \1\ Other parts of the DHS administrative record that describe 
categories of action that are similar in many respects to activities 
that support deployment of intelligent transportation infrastructure 
and systems include CEs A7, B7, D1, and E2.
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    The environmental procedures of the Federal Railroad Administration 
(FRA) also contain a class of categorically excluded actions quite 
similar to activities that support deployment of intelligent 
transportation infrastructure and systems. Under section 4(c)(18) of 
the FRA's procedures, ``[r]esearch, development and/or demonstration of 
advances in signal communication and/or train control systems on 
existing rail lines provided that such research, development and/or 
demonstrations do not require the acquisition of a significant amount 
of right-of-way, and do not significantly alter the traffic density 
characteristics of the existing rail line'' qualifies for categorical 
exclusion from the need to prepare either an EIS or an EA. See FRA 
Procedures for Considering Environmental Impacts, 64 FR 28545, 28547 
(May 26, 1999), also available at http://www.fra.dot.gov/Downloads/RRDev/FRAEnvProcedures.pdf.
    Upon review and consideration, the FTA and the FHWA determined that 
the ITS activities proposed for inclusion as CEs herein are 
substantially equivalent to those of the DHS, the agencies within that 
department, and the FRA. The proposed ITS CE will continue to provide 
for unusual circumstances that would require an EIS or EA.
    For purposes of establishing applications of ITS as normally 
categorically excluded from the need to prepare EISs and EAs, listing 
each ITS application separately would be burdensome, require continual 
updating, and would be wholly inconsistent with the CEQ's guidance 
encouraging agencies to consider broadly defined criteria that 
characterize the types of actions that, based on the agency's 
experience, do not cause significant environmental effects. 
Accordingly, this NPRM proposes to add a new CE for ITS activities, 
under broadly defined criteria, to the list in 23 CFR 771.117(c). 
Consistent with the statutory definitions of ``intelligent 
transportation infrastructure'' and ``intelligent transportation 
system'' in SAFETEA-LU section 5310, the deployment of ``electronics, 
photonics, communications, or information processing used singly or in 
combination to improve the efficiency or safety of a surface 
transportation system'' would be categorically excluded.
    A second newly proposed CE arises from section 3024 of SAFETEA-LU, 
which added a provision at 49 U.S.C. 5324(c) that allows the FTA to 
participate in the acquisition of a pre-existing railroad right-of-way 
(ROW) prior to the completion of the NEPA process for any project that 
would eventually use that railroad ROW. This type of action 
contemplates only a change in ownership, usually from a private freight 
railroad company to a public transit agency. No operational changes or 
construction would be permitted on the ROW until such time as the 
environmental review of the proposed construction or change in 
operations has been completed. The action is fairly similar to an 
existing CE (23 CFR 771.117(d)(12)) and parallels in content and impact 
the types of activities that have been categorically excluded by the 
Surface Transportation Board (STB).
    The STB's environmental procedures (49 CFR 1105.6(c)(2)) 
categorically exclude from the need to prepare either an EIS or an EA 
any action that does not result in significant changes in rail carrier 
operations, including acquisition of a rail line. The STB also 
categorically excludes actions that could result in some operational 
changes the grant of trackage rights, for example--which contemplates 
an arrangement where a company that owns the line retains all rights, 
but allows another company to operate over certain sections of its 
track (see 49 CFR 1105.6(c)(4)). Significant changes to rail carrier 
operations can cause certain environmental impact thresholds to be 
exceeded. The thresholds involve operational changes--basically 
increased rail operations--that may negatively affect energy 
consumption and air quality. Under the CE proposed here for acquisition 
of a pre-existing railroad ROW, operational changes or construction 
would not be permitted.
    The environmental procedures of the FRA also contain a class of 
categorically excluded actions quite similar to acquisition of a pre-
existing railroad ROW. Under section 4(c)(17) of the FRA's procedures, 
``[a]cquisition of existing railroad equipment, track and bridge 
structures * * * and other existing railroad facilities or the right to 
use such facilities, for the purpose of conducting operations of a 
nature and at a level of use similar to those presently * * * existing 
on the subject properties'' qualifies for a CE from the need to prepare 
either an EIS or an EA. See FRA Procedures for Considering 
Environmental Impacts, 64 FR 28545, 28547 (May 26, 1999), also 
available at http://www.fra.dot.gov/Downloads/RRDev/FRAEnvProcedures.pdf.
    This NPRM proposes to add the acquisition of pre-existing railroad 
ROW to the activities that are categorically excluded from the need to 
prepare either an EIS or an EA in 23 CFR 771.117(c). Under the CE 
proposed here, operational changes or construction would not be 
permitted. The context of this provision within chapter 53 of title 49 
U.S.C. suggests that the proposed CE would apply to FTA actions only.
    The proposed revision of an existing CE would amend 23 CFR 
771.117(c)(5) to clarify the CE relating to Federal land transfers. A 
Federal land transfer is a conveyance by the FHWA of land owned by the 
United States to a State department of transportation (State DOT) or 
its nominee when such land or interest in land is necessary for a 
transportation project. The transfer typically uses a highway easement 
deed. The FHWA's regulations governing Federal land transfers are 
located at 23 CFR 710.601. This CE has been in the FHWA environmental 
regulation since 1980. See 45 FR 71972 (Oct. 30, 1980).
    The current language of 771.117(c)(5) provides that the 
``[t]ransfer of Federal lands pursuant to 23 U.S.C. 317 when the 
subsequent action is not an FHWA action'' is categorically excluded. 
This language categorically excludes Federal land transfers for 
projects for which FHWA has no involvement apart from the Federal land 
transfer. An example of such a situation is the perfection of title to 
an existing highway over Federal land for which no document of title 
previously had been delivered to the State DOT and recorded. This 
situation may exist for any number of reasons, such as where a highway 
had been built

[[Page 44041]]

based on a right-of-entry but was not followed by execution of a deed. 
The Federal land transfer in such cases is merely to perfect title and 
is not followed by project construction or any subsequent FHWA action. 
In the FHWA's experience, use of the CE for this situation is 
appropriate, but that use is not clear under the existing wording 
because in such cases there is no ``subsequent action'' following the 
land transfer.
    In addition, there is confusion whether or not the existing CE 
applies to all Federal land transfers undertaken by the FHWA even if 
the transfer is part of a larger project undergoing NEPA review. We 
believe that the CE for Federal land transfers is intended to be 
applicable to a minority of Federal land transfers. The majority of 
Federal land transfers are for Federal-aid highway construction or re-
construction projects. For those projects, there is no need for a CE 
for the Federal land transfer because the FHWA must comply with NEPA 
for the underlying transportation project itself. The NEPA 
documentation for the underlying project will include an analysis of 
environmental impacts resulting from the acquisition and use of all of 
the ROW needed for the highway project, including any ROW acquired 
through a Federal land transfer. Evidence supporting this view appears 
in 23 CFR 710.601(d)(7), which requires the application for a Federal 
land transfer to include ``[a] statement of compliance with the 
National Environmental Policy Act of 1969 (42 U.S.C. 4332, et seq.) and 
any other applicable Federal environmental laws, including the National 
Historic Preservation Act (16 U.S.C. 470(f)), and 23 U.S.C. 138.''
    The proposed revision to the CE in 771.117(c)(5) on Federal land 
transfers would amend the language to read: ``Transfer of Federal lands 
pursuant to 23 U.S.C. 107(d) and/or 23 U.S.C. 317 when the land 
transfer is in support of an action that is not otherwise subject to 
FHWA review under NEPA.'' This language will clarify the circumstances 
under which the CE applies. The reference to 23 U.S.C. 107(d) would be 
added because the authority for Federal land transfers for Interstate 
highway projects appears in 23 U.S.C. 107(d) and is in addition to the 
authority for other highway projects, which appears in 23 U.S.C. 317.
    Another provision added by section 6002 of SAFETEA-LU establishes a 
180-day statute of limitations for FTA and FHWA projects. That 180-day 
time period commences with publication in the Federal Register of a 
notice that informs the public that one or more Federal agency 
decisions on a project is final. The FTA and the FHWA propose to 
reference this new limitation on claims in their joint NEPA procedures. 
Detailed information on the actual mechanisms for carrying out this 
provision appear in the section 6002 final guidance that is available 
at http://www.fhwa.dot.gov/hep/section6002/.
    One of the overarching goals of SAFETEA-LU is to relieve congestion 
on the nation's roadways in order to promote fuel savings, to improve 
air quality, and to enhance passenger safety, among other objectives. 
To pursue this goal in the most expeditious manner possible, consistent 
with applicable authorities, the Administration is contemplating the 
addition of one or more new CEs for projects that reduce transportation 
system congestion (see http://www.fightgridlocknow.gov) and meet the 
criteria for categorical exclusion from NEPA review.
    Congestion management activities include measures such as value 
pricing \2\ and converting existing high occupancy vehicle (HOV) lanes 
to high occupancy toll (HOT) lanes.\3\ Based on experience to date, 
most of these types of projects would normally qualify for a CE because 
they are not major Federal actions affecting the quality of the human 
environment. Thus, the Administration is considering the addition of 
one or more CEs to explicitly identify those congestion management 
activities that typically meet CE criteria. To that end, the 
Administration requests comments, including data and information on the 
experiences of project sponsors and others with these types of 
projects, to assist with determining their appropriate class of action 
under NEPA. Interested parties are also invited to submit written 
evidence about particular congestion management activities that they 
believe qualify as CEs and specific regulatory language that might be 
used in one or more CEs for these types of projects.
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    \2\ Value pricing concepts presently include variably priced 
lanes or tolls, cordon charges, or area-wide charges (see http://ops.fhwa.dot.gov/publications/congestionpricing/sec2.htm).
    \3\ An HOV lane, sometimes called a carpool lane, is a lane 
reserved for the use of carpools, vanpools and buses. HOV lanes 
usually are located next to the regular, unrestricted, (``general 
purpose'') lanes. HOV lanes enable those who carpool or ride the bus 
to bypass the traffic in the adjacent, unrestricted lanes. HOT lanes 
are limited-access, normally barrier-separated highway lanes that 
provide free or reduced cost access to qualifying HOVs and also 
provide access to other paying vehicles not meeting passenger 
occupancy requirements. By using price and occupancy restrictions to 
manage the number of vehicles traveling on them, HOT lanes maintain 
volumes consistent with non-congested levels of service during peak 
travel periods. HOT lanes utilize sophisticated electronic toll 
collection and traffic information systems that also make variable, 
real-time toll pricing of non-HOV vehicles possible. For more 
detailed information on HOV lanes, see http://ops.fhwa.dot.gov/freewaymgmt/hov.htm and on HOT lanes, see http://www.itsdocs.fhwa.dot.gov//JPODOCS/REPTS_TE//13668.html.
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    We considered whether revisions are needed to part 771 to address 
non-CE projects that involve private sector participation, tolling, or 
contain other innovative financing or congestion management features. 
Examples of such projects include the conversion of an existing 
``free'' highway to a tolled facility, or the construction of a new 
facility that includes tolls. Questions about the scope of NEPA 
analysis required in such cases have become more frequent as a result 
of SAFETEA-LU provisions that facilitate innovative financing and 
congestion management measures.
    For example, we have been asked whether a ``no toll'' alternative 
must always be examined in the analysis of alternatives or whether the 
addition of tolls after the completion of an environmental impact 
statement requires a supplemental environmental impact statement. The 
analysis of alternatives must include all reasonable alternatives, and 
if ``no toll'' alternatives are demonstrably unreasonable, there is no 
reason to examine them in detail. Very often, the inclusion or absence 
of tolls has little or no additional or distinct environmental impact. 
In these cases, there is no reason to treat toll alternatives as 
different from ``no toll'' alternatives. Similarly, if tolls are added 
later in the project development process and do not result in different 
environmental impacts, no supplemental environmental impact statement 
would be required. However, if tolls do result in significantly 
different traffic behavior, further analysis will be required to 
determine if the environmental impacts are different, perhaps 
concluding that a supplemental environmental impact statement is 
necessary using the existing standards in 23 CFR 771.130. In other 
words, we have concluded that existing law and guidance sufficiently 
articulate the applicable standard, which is that the level of analysis 
is determined by the significance of the potential impacts of the 
project. The presence of tolling or other innovative measures does not 
change the standard for deciding the level of analysis needed. However, 
we are interested in comments on the need for revisions to part 771 on 
this topic.
    The section-by-section analysis that follows cites the provisions 
of SAFETEA-LU that result in inconsistencies with the joint 
environmental procedures, as currently

[[Page 44042]]

constituted, and advances proposed amendments that conform to the 
supplemental environmental review requirements. Other minor changes to 
help eliminate confusion among practitioners, or to bring the 
regulation into better alignment with current practice, are also 
proposed. Because of the limited scope of this rulemaking, there will 
continue to be some inconsistencies between provisions in the part 771 
regulation and provisions of statutes and regulations adopted under 
Title 23 and Title 49 since the last comprehensive revision of part 
771. The FTA and the FHWA anticipate addressing such matters in a 
subsequent, more comprehensive rulemaking proceeding.

Section-by-Section Analysis

    General Note: This NPRM contains references to regulations or other 
documents that are the subject of current rulemaking proceedings, such 
as the regulations pertaining to Section 4(f) (49 U.S.C. 303) that 
currently are contained in 23 CFR 771.135. Any final rule resulting 
from this NPRM will adopt revised references as appropriate to reflect 
the final results of other rulemaking proceedings.

Section 771.101 Purpose

    The Administration is proposing very minor changes to emphasize 
that this regulation is supplemental to the CEQ regulation at 40 CFR 
parts 1500-1508, to update the statutory references, and to use the 
statutorily defined term ``public transportation'' in referring to FTA 
actions (49 U.S.C. 5302(a), as amended by section 3004 of SAFETEA-LU).

Section 771.105 Policy

    No change in policy is proposed, but the footnote in this section 
would be updated to reference recent Administration guidance on 
environmental matters and to give the Web sites where information is 
available.

Section 771.107 Definitions

    Three new or revised definitions are proposed.
    The definition of ``Administration,'' which has meant the FHWA or 
the FTA, would be extended to include a State that has been assigned 
responsibility for certain environmental requirements in accordance 
with 23 U.S.C. 325, 326, or 327, or other applicable law, to the extent 
that the required agreement between the State and the FHWA or the FTA 
allows the State to act in place of the Administration. Sections 325, 
326, and 327 of Title 23 allow the FHWA and, in the case of section 
326, the FTA, to assign certain specified environmental 
responsibilities to a State through a written memorandum of 
understanding (MOU) or agreement. When the FHWA or the FTA enters into 
such MOU or agreement, the State will act in lieu of the Administration 
for those responsibilities that are specified in this regulation as 
Administration responsibilities and that have been assigned to the 
State through the MOU or agreement.
    One example of how this extended definition would operate is the 
delegation to a State, under 23 U.S.C. 326, of responsibility to 
determine whether projects satisfy the criteria for categorical 
exclusion from the need to prepare either EISs or EAs. Under 23 U.S.C. 
326, when the FHWA enters into a MOU with a State, the MOU specifies 
the scope of the NEPA CE decision-making authority in 23 CFR 771.117(c) 
and (d) that the FHWA assigns to the State. That is, the MOU expressly 
identifies certain types of projects or activities for which the NEPA 
CE decision will be made by the State. The State will determine whether 
individual actions within those assigned types of projects or 
activities qualify for CE status under 771.117 and the CEQ regulation 
at 40 CFR 1508.4. When making those assigned CE decisions, the State 
acts in the place of the FHWA and carries out the functions of the 
``Administration'' under the part 771 regulation.
    The proposed definition of ``applicant'' is new. It is being 
proposed because of the provision in SAFETEA-LU section 6002 (codified 
at 23 U.S.C. 139) that gives different roles in the environmental 
review process to project sponsors who are recipients of FHWA or FTA 
funding and project sponsors who merely seek an approval, such as a 
change in access control, that does not involve funding. It is 
important to recognize this distinction between direct funding 
recipients and project sponsors that are not direct recipients of 
funding, such as private entities and local public agencies sponsoring 
highway projects. The Administration expects that the involvement of 
the latter type of project sponsors will increase in the coming years 
as the use of innovative financing techniques and public-private 
partnerships grows. The definition would also clarify that, under the 
Federal Lands Highway Program and in other situations where a Federal 
agency would actually implement the project, the Federal lead agencies 
must perform the responsibilities of the applicant specified in the 
rule.
    The proposed definition of ``lead agencies'' is new. The new 
definition would implement the provision in section 6002 of SAFETEA-LU 
(23 U.S.C. 139(c)(3)) that requires that State and local governmental 
entities that are the direct recipients of FHWA or FTA funding serve as 
joint lead agencies with the Administration. Additional lead agencies, 
as envisioned by the CEQ regulation (40 CFR 1501.5(b)), may also be 
involved, and the proposed definition recognizes this possibility.

Section 771.109 Applicability and Responsibilities

    Changes are proposed in paragraphs (a), (c), and (d).
    The words ``by the Administration'' would be deleted in paragraph 
(a)(3) in recognition of the new role of non-Federal lead agencies 
described herein.
    Paragraph (c) would be replaced in its entirety. The new paragraph 
would establish which agencies will serve as lead agencies in the 
environmental review process and would identify the rules that govern 
the roles of other agencies and private entities.
    The role of an applicant that is a State or local governmental 
entity and is the direct recipient of Administration funding for the 
project was substantially altered by SAFETEA-LU section 6002 (23 U.S.C. 
139(c)(3)). Such applicant must serve as a joint lead agency with the 
Administration in managing the environmental review process and the 
preparation of the appropriate environmental document. Paragraphs 
(c)(1) and (c)(2) would so provide.
    SAFETEA-LU section 6002 defers to the CEQ regulation to establish 
some of the other roles of agencies. For example, the CEQ regulation 
(40 CFR 1501.5 and 1501.6) addresses when a lead agency other than 
those mandated by section 6002 should be brought into the process, and 
when an agency must be brought in as a cooperating agency. The proposed 
revisions in paragraphs (c)(3) and (c)(4) follow suit in deferring to 
the CEQ regulation on these roles.
    Paragraph (c)(5) would retain provisions relating to the authority, 
provided by section 102(2)(D) of NEPA itself, of a statewide agency to 
prepare an EIS.
    Paragraph (c)(6) substitutes the term ``project sponsor,'' from 
SAFETEA-LU section 6002, for ``applicant'' in order to update and 
clarify the existing regulatory language relating to the roles 
available to private institutions or firms in the environmental review 
process.
    A statutory reference in paragraph (d) would be updated.

[[Page 44043]]

Section 771.111 Early Coordination, Public Involvement, and Project 
Development

    Paragraph (a)(1) would be amended for consistency with section 6002 
of SAFETEA-LU by deleting the sentence that suggests an oversight role, 
rather than a joint lead agency role, for the Administration. Paragraph 
(a)(2) would be added to acknowledge the relationship between the 
planning process under sections 3005, 3006, and 6001 of SAFETEA-LU and 
the environmental review process, and to provide a footnote reference 
to guidance issued by the Administration on linking planning and NEPA.
    Paragraph (b) would be amended to eliminate an inconsistency with 
SAFETEA-LU section 6002 (23 U.S.C. 139(e)) regarding the initiation of 
the environmental review process.
    Paragraph (d) would be amended for consistency with SAFETEA-LU 
section 6002 (23 U.S.C. 139(d)) regarding the identification of, and 
invitations to, participating agencies, and to distinguish between 
participating and cooperating agencies. A footnote reference to 
guidance the Administration has issued on SAFETEA-LU section 6002 would 
also be added.
    Paragraph (h)(1) would be amended to add a reference to 23 U.S.C. 
139, which includes certain new public involvement requirements that 
are relevant in this context. Paragraphs (h)(2)(vii) and (viii) are 
proposed to be added so that the list of public involvement 
requirements derived from various statutory provisions is complete. The 
new paragraphs would address, respectively, the requirements in 
SAFETEA-LU section 6002 (23 U.S.C. 139(f)(1) and 139(f)(4)(A)) that an 
opportunity for public involvement be provided in defining the purpose 
and need for the proposed action and in determining the range of 
alternatives, and in SAFETEA-LU section 6009 (49 U.S.C. 303(d)(3)(A)) 
that public notice and an opportunity for public review and comment be 
provided prior to a Section 4(f) de minimis impact determination.
    Paragraph (i) would be revised to implement the provision in 
SAFETEA-LU section 3023 (49 U.S.C. 5323(b)) regarding public notice and 
hearings, and public review and comment, for transit capital projects. 
The requirement for a public hearing during the circulation period of a 
draft EIS accords with new 49 U.S.C. 5323(b)(1)(B) and is proposed to 
be retained. For other projects that substantially affect the community 
or its public transportation service, an adequate opportunity for 
public review and comment must be provided under 49 U.S.C. 
5323(b)(1)(A). The past transit practice of printing legal notices in 
newspapers to offer an opportunity for a hearing on every section 5309 
grant, regardless of the class of action, is no longer necessary.

Section 771.113 Timing of Administration activities

    Paragraph (a) would be modified for consistency with SAFETEA-LU 
section 6002 (23 U.S.C. 139(c)). The proposed revision recognizes that 
the lead agencies, which in the majority of cases will include the 
Administration and the applicant, are jointly responsible for executing 
the environmental review process. The third sentence, which addresses 
limitations on actions mandated by CEQ regulation (40 CFR 1506.1), also 
would be amended. The change would remove the reference to the CE for 
hardship and protective acquisitions in 771.117(d)(12) and add language 
acknowledging that the law provides some exceptions to the timing in 
771.113. The proposed revision would relocate the discussion of 
exceptions to paragraph (d). This paragraph, which is not intended to 
be all-inclusive, would include references to the existing CE for 
hardship and protective acquisitions in 771.117(d)(12), the new transit 
exception provided by SAFETEA-LU section 3024 (49 U.S.C. 5324(c)) for 
railroad ROW acquisitions, the exception in 49 U.S.C. 5309(h)(6) for 
certain rolling stock acquisitions, and existing exceptions applicable 
to the Federal-aid Highway Program that appear in FHWA regulations in 
23 CFR part 710. These proposed changes are to provide clarity. The 
Administration requests comments on whether additional revisions are 
needed to clarify the alignment between the 771.113(a) timing provision 
and the CEQ regulations and judicial decisions on this topic.
    Paragraph (a)(2) would be amended to use the term 
``Administration,'' because responsibilities related to 23 U.S.C. 128 
may be assigned to a State pursuant to 23 U.S.C. 325, 326, or 327.
    Paragraph (b) was originally included in the regulation to address 
FHWA funding issues. The statement that the completion of NEPA and 
related requirements does not constitute a commitment of Federal 
funding applies equally to the FTA program, and always has. To 
eliminate the inference drawn by some that the statement is not true 
for FTA, paragraph (b) would therefore be amended by excising the lead-
in phrase ``[f]or FHWA.''

Section 771.117 Categorical exclusions

    The FHWA is proposing to revise the language of paragraph (c)(5) to 
clarify that the CE does not apply to all Federal land transfers. The 
majority of such transfers provide ROW for projects that are themselves 
subject to NEPA. In such instances, ``the FHWA's NEPA documentation for 
the project will consider all significant environmental impacts of the 
project, including any resulting from the acquisition and use of ROW 
needed for the project. Therefore, the proposed revision clarifies that 
this CE only applies when the land transfer is in support of an action 
that is not otherwise subject to FHWA review under NEPA.
    The Administration is proposing to add a new CE to the list in 
subparagraph (c)(21) to implement SAFETEA-LU section 6010, which 
requires the Administration to initiate rulemaking that considers 
establishing CEs for activities that support the deployment of 
intelligent transportation infrastructure and systems. Intelligent 
transportation system is defined in section 5310(3) of SAFETEA-LU to be 
``electronics, photonics, communications, or information processing 
used singly or in combination to improve the efficiency or safety of a 
surface transportation system.'' Intelligent transportation 
infrastructure is defined in SAFETEA-LU section 5310(2) to mean ``fully 
integrated public sector intelligent transportation system components 
as defined by the [DOT] Secretary.''
    The Administration has much experience with deploying ITS, 
including stand-alone systems and systems that are elements of, or are 
associated with, major construction projects. An example of the former 
would be an incident management system, which may include video 
monitors installed along an existing freeway, together with a radio 
dispatch system for emergency response and towing. An example of the 
latter would be the construction of a bus rapid transit (BRT) line and 
stations on an urban arterial roadway, that includes, as part of the 
project, the installation of GPS sensors in buses, connected by radio 
to a central controller (i.e., a computer) that monitors the locations 
of buses and provides traffic signal pre-emption for buses traveling 
along the arterial.
    The FTA and the FHWA experience has shown that a stand-alone ITS 
project that is not an element of a larger construction project 
typically does not have significant impacts on the human environment. 
The Administration is proposing in new paragraph (c)(21) that

[[Page 44044]]

the stand-alone ITS activities be categorically excluded, in accordance 
with SAFETEA-LU section 6010. The Administration is not proposing to 
exclude an ITS activity when it is an element of a larger construction 
project. In this case, the magnitude and location of the construction 
activities will, in all likelihood, dictate the appropriate class of 
action. In addition, even though an ITS project might satisfy CE 
criteria for NEPA purposes, that does not affect the requirements 
applicable to the ITS activity under other Federal and State 
environmental laws.
    The FTA proposes to add a new CE to the list in subparagraph 
(c)(22) to facilitate the implementation of the provision in SAFETEA-LU 
section 3024 (49 U.S.C. 5324(c)). This new provision of law allows the 
Administration to assist in acquiring a pre-existing railroad ROW, 
usually from a private freight railroad company that is interested in 
liquidating the asset, without having first performed a NEPA review of 
any project that may in the future occupy that ROW.
    On occasion, the FTA has been directed by Congress, through 
specific earmarks, to assist a public transportation agency financially 
in the acquisition of a private railroad ROW. In these cases, the 
project described in the earmark was strictly the acquisition of ROW, 
and the funding provided in the earmark was adequate only to acquire 
the ROW. No project that would use the ROW had been planned at all, or 
had not been planned to the point that it was sufficiently well-defined 
to permit its NEPA review. In these cases, FTA has, through its 
applicant, conducted environmental reviews of the acquisition itself, 
and has determined that the change in ownership of the ROW, without any 
change in the use of the ROW, would not have any significant 
environmental effects. For example, the railroad ROW on which the 
Trinity Railway Express, a commuter rail line, operates between Dallas 
and Fort Worth was acquired by the public transportation agencies with 
FTA assistance. It remained strictly a freight railroad operation for 
many years after its acquisition. No significant impacts resulted from 
the change in ownership. The construction of commuter rail was 
considered in a separate, unrelated NEPA review conducted many years 
later.
    The FTA is therefore proposing to add the acquisition of pre-
existing railroad ROW under 49 U.S.C. 5324(c) to the list actions that 
are known not to have significant environmental impacts. The proposed 
revision to paragraph (c)(22) specifies that no project development may 
proceed, including any project to intensify the transportation use of 
the acquired ROW, until that project has been subjected to a NEPA 
review that considers alternatives.
    Paragraph (d)(12) would be amended by deleting advance land 
acquisition loans under 49 U.S.C. 5309(b). The authority to make such 
loans has been eliminated from 49 U.S.C. 5309 by SAFETEA-LU section 
3011. The definitions of hardship and protective acquisition have been 
removed from a footnote added to the text of the paragraph. In 
addition, a typographical error is proposed to be corrected.

Section 771.119 Environmental Assessments

    The FTA is proposing to delete the option provided exclusively to 
FTA applicants in the second sentence of paragraph (c) of circulating 
an EA without FTA approval. There are several reasons for this 
proposal: (1) SAFETEA-LU section 6002 (23 U.S.C. 139(c)(6)) requires 
that the FTA, as lead agency, take an active role in completing the 
environmental review process expeditiously. The FTA will facilitate the 
EA process through active involvement in developing an EA that meets 
Federal requirements prior to its circulation; (2) the FTA has 
experienced cases where an EA circulated by an applicant without FTA 
approval was so deficient that major revisions and recirculation were 
necessary. An up-front review by the FTA would avoid such duplication 
of effort and associated delay; and (3) the FTA began the process of 
conforming its NEPA requirements as closely as possible with the 
FHWA's, in accordance with a requirement to that effect that appeared 
in two previous surface transportation authorizing laws, ISTEA and the 
Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-
178, 112 Stat 107). As a result, the FTA's practice in most FTA 
regional offices already conforms with the proposed change. The change 
would provide consistency among all FTA regional offices and 
applicants.
    A typographical error in paragraph (g) is proposed to be corrected.
    Paragraph (j) is proposed to be added for consistency with SAFETEA-
LU section 6002 (23 U.S.C. 139(b)(1)), which gives the Administration 
the discretion of applying the environmental review process described 
in SAFETEA-LU section 6002 to EA projects.

Section 771.123 Draft Environmental Impact Statements

    The new requirement in SAFETEA-LU section 6002 (23 U.S.C. 139(e)) 
for project sponsor notification of the Administration is proposed to 
be added to paragraph (a).
    Paragraphs (b) and (c) would also be modified for consistency with 
SAFETEA-LU section 6002 (23 U.S.C. 139(c)). The proposed revisions 
recognize that the lead agencies, which in the majority of cases will 
include the Administration and the applicant, are jointly responsible 
for scoping (paragraph (b)) and preparation of the draft EIS (paragraph 
(c)).
    Paragraph (d) would be revised to acknowledge that, in accordance 
with CEQ regulation, any of the joint lead agencies may select and 
manage a contractor to assist in the preparation of the EIS.
    Paragraph (i) would be modified for consistency with the comment 
deadline periods established in SAFETEA-LU section 6002 (23 U.S.C. 
139(g)(2)).
    Paragraph (j) is proposed to be revised in two ways: (1) The words 
that describe the FTA program in question would be changed for 
consistency with the latest definitions in 49 U.S.C. 5302(a) and the 
current statutory section heading in 49 U.S.C. 5309; and (2) the 
requirement for a locally preferred alternative report following the 
draft EIS would be deleted from this regulation. The locally preferred 
alternative report is a New Starts program requirement, not a NEPA 
requirement, and is more appropriately addressed in the New Starts 
regulation (49 CFR part 611).

Section 771.125 Final Environmental Impact Statements

    Paragraph (a)(1) would be modified for consistency with SAFETEA-LU 
section 6002 (23 U.S.C. 139(c)). The revision would recognize that the 
lead agencies, which in the majority of cases will include the 
Administration and the applicant, are jointly responsible for the 
preparation of the final EIS. A cross-reference to paragraph 109(d) on 
mitigation that was inadvertently omitted from the original regulation 
would be added to assist the reader in connecting related provisions.
    Paragraph (c)(3) requiring the prior concurrence of FTA 
Headquarters in all final EISs for major transit capital investments is 
deleted. This concurrence has become perfunctory as the size of the 
transit New Starts program has grown, and it is no longer needed. The 
FTA Headquarters can still require prior concurrence for final EISs 
that fall in the categories listed in

[[Page 44045]]

paragraphs (c)(1) and (2), including actions involving national policy 
issues, actions with major unresolved issues or opposition on 
environmental grounds by a State or local government, and any action 
which the Administration's Headquarters determines should require its 
prior concurrence. Paragraph (c)(1) is proposed to be revised to 
clarify that the list of the types of projects requiring prior FTA or 
FHWA Headquarters concurrence is not intended to be all inclusive, and 
that, at its discretion, the FTA or the FHWA Headquarters may require 
prior concurrence in other cases.
    The FTA and the FHWA propose to clarify a reference in paragraph 
(e) and correct a capitalization error.

Section 771.129 Re-Evaluations

    The proposed revision in this section is not substantive. The 
paragraphs would simply be rearranged, without any change in wording, 
into an order that most people would find more logical. The meaning 
would not be changed by the re-sequencing.

Section 771.130 Supplemental Environmental Impact Statements

    A typographical error in paragraph (a)(2) would be corrected.
    Paragraph (e) would be updated, without substantive change, for 
consistency with the latest definitions in 49 U.S.C. 5302(a) and the 
current statutory section heading in 49 U.S.C. 5309.

Section 771.131 Emergency Action Procedures

    There is no change proposed to the wording of this section. 
However, the new definition of ``Administration'' would change the 
meaning of this section in certain circumstances, namely when a State 
acts in lieu of the Administration under an MOU signed in accordance 
with 23 U.S.C. 325, 326, or 327. The FTA and the FHWA intend that, in 
the absence of a provision in such MOU that explicitly addresses 
emergency action procedures, the responsibility and authority to 
develop emergency action procedures is retained by the FTA and the 
FHWA.

Section 771.133 Compliance With Other Requirements

    We propose to substitute ``Administration's'' for ``FHWA'' in the 
final sentence of this section. The effect of the change would be to 
make it clear that when a State is acting in the place of the FHWA or 
FTA pursuant to 23 U.S.C. 325, 326, or 327, the State may be assigned 
the authority to certify compliance with the requirements of 23 U.S.C. 
128. Additional edits to the last sentence are proposed for clarity, 
without changing the substance of the sentence.

Section 771.135 Section 4(f) (49 U.S.C. 303)

    No revision to section 771.135 of the regulation is proposed in 
this NPRM. The FTA and the FHWA, however, are currently engaged in a 
separate rulemaking by the Administration that proposed, through an 
NPRM (71 FR 42611, July 27, 2006), to delete section 771.135 and create 
a new 23 CFR part 774 to implement Section 4(f), as amended by SAFETEA-
LU.

Section 771.139 Statute of Limitations

    The FTA and the FHWA propose to add this new section to provide, in 
accordance with 23 U.S.C. 139(l), that agency decisions under NEPA, 
Section 4(f) determinations, project-level air quality conformity 
determinations, and other final Federal decisions on a project, that 
are announced in the Federal Register, may not be challenged unless 
such claim is filed within 180 days of the publication of a Federal 
Register notice announcing the decisions(s). The proposed revision 
includes a reference to information on the Administration's 
interpretation of the provision, and detailed implementation guidance 
that applies to FHWA projects.

Regulatory Notices

    All comments received on or before the close of business on the 
comment closing date indicated above will be considered and will be 
available for examination in the docket at the above address. Comments 
received after the comment closing date will be filed in the docket and 
will be considered to the extent practicable. In addition to late 
comments, the FHWA and the FTA will also continue to file relevant 
information in the docket as it becomes available after the comment 
period closing date, and interested persons should continue to examine 
the docket for new material. A final rule may be published at any time 
after the close of the comment period.

Executive Order 13132: Federalism

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. This proposed action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132, and the FHWA and the FTA have determined that this 
proposed action would not have sufficient federalism implications to 
warrant the preparation of a federalism assessment. The agencies have 
also determined that this proposed action would not preempt any State 
law or State regulation or affect the States' ability to discharge 
traditional government functions. We invite State and local governments 
with an interest in this rulemaking to comment on the effect that 
adoption of specific proposals may have on State or local governments.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    Executive Order 13175 requires agencies to assure meaningful and 
timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. We have analyzed this proposed rule under 
Executive Order 13175 and believe that the proposed action would not 
have substantial direct effects on one or more Indian tribes; would not 
impose substantial direct compliance costs on Indian tribal 
governments; and would not preempt tribal laws. Therefore, a tribal 
impact statement is not required. We invite Indian tribal governments 
to provide comments on the effect that adoption of specific proposals 
may have on Indian communities.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.), we must consider whether a proposed rule would have a 
significant economic impact on a substantial number of small entities. 
``Small entities'' include small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000. If your business or organization is a small 
entity and if adoption of proposals contained in this notice could have 
a significant economic impact on your operations, please submit a 
comment to explain how and to what extent your business or organization 
could be affected.

National Environmental Policy Act

    This proposed action would not have any effect on the quality of 
the environment under the National

[[Page 44046]]

Environmental Policy Act of 1969 (NEPA) and is categorically excluded 
under 23 CFR 771.117(c)(20). The proposed action is intended to 
incorporate new statutory requirements into the agencies regulations 
and to add new CEs from the NEPA process. Additionally, this proposed 
rule seeks to improve the description of the procedures and to provide 
clarification with respect to the interpretation of certain provisions.

Statutory/Legal Authority for this Rulemaking

    This rulemaking is issued under authority of sections 3023, 3024, 
6002, 6003, 6004, 6005, and 6010 of the SAFETEA-LU, the latter of which 
requires the Secretary of Transportation to initiate rulemaking to 
establish, as appropriate, CEs for ITS projects. In addition, this NPRM 
implements changes made by section 6002 to the process by which the FTA 
and the FHWA comply with NEPA.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    The FTA and the FHWA have determined preliminarily that this action 
is not considered a significant regulatory action under section 3(f) of 
Executive Order 12866 and the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11032).
    Executive Order 12866 requires agencies to regulate in the ``most 
cost-effective manner,'' to make a ``reasoned determination that the 
benefits of the intended regulation justify its costs,'' and to develop 
regulations that ``impose the least burden on society.'' We anticipate 
that the direct economic impact of this rulemaking would be minimal. 
Some of the changes that this rule proposes are requirements mandated 
in SAFETEA-LU. We also consider this proposal as a means to clarify the 
existing regulatory requirements. These proposed changes would not 
adversely affect, in any material way, any sector of the economy. In 
addition, these changes would not interfere with any action taken or 
planned by another agency and would not materially alter the budgetary 
impact of any entitlements, grants, user fees, or loan programs.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to a collection of information unless it displays a valid OMB 
control number. This notice does not propose any new information 
collection burdens.

Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. The RIN 
number contained in the heading of this document may be used to cross-
reference this action with the Unified Agenda.

Privacy Act

    Anyone is able to search the electronic form for all comments 
received into any of our dockets by the name of the individual 
submitting the comments (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This proposed rule will not result in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$128.1 million or more in any one year (2 U.S.C. 1532). Further, in 
compliance with the Unfunded Mandates Reform Act of 1995, the agencies 
will evaluate any regulatory action that might be proposed in 
subsequent stages of the proceeding to assess the affects on State, 
local, and tribal governments and the private sector.

Executive Order 12630 (Taking of Private Property)

    We have analyzed this proposed rule under Executive Order 12630, 
Government Actions and Interface with Constitutionally Protected 
Property Rights. We do not anticipate that this proposed rule would 
effect a taking of private property or otherwise have taking 
implications under Executive Order 12630.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use dated May 18, 2001. We have determined that this 
is not a significant energy action under that order because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects is not required.

Executive Order 13045 (Protection of Children)

    We have analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. We certify that this proposed rule is not an economically 
significant rule and would not cause an environmental risk to health or 
safety that may disproportionately affect children.

List of Subjects

49 CFR Part 622

    Environmental impact statements, Grant programs--transportation, 
Public transit, Recreation areas, Reporting and recordkeeping 
requirements.

23 CFR Part 771

    Environmental protection, Grant programs--transportation, Highways 
and roads, Historic preservation, Public lands, Recreation areas, 
Reporting and recordkeeping requirements.
    For the reasons set forth in the preamble, it is proposed to amend 
Chapter VI of Title 49 and Chapter I of Title 23, Code of Federal 
Regulations, by amending 49 CFR Part 622 and 23 CFR Part 771, 
respectively as set forth below:

Federal Transit Administration

Title 49--Transportation

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

Subpart A--Environmental Procedures

    1. Revise the authority citation for part 622 to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303, 5301(a) and 
(e), 5323(b), and 5324; 23 U.S.C. 139 and 326; Pub. L. 109-59, 119 
Stat. 1144, section 6010; 40 CFR parts 1500-1508; 49 CFR 1.51.

Federal Highway Administration

Title 23--Highways

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

    2. Revise the authority citation for part 771 to read as follows:


[[Page 44047]]


    Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138, 
139, 315, 325, 326, and 327; 49 U.S.C. 303, 5301(e), 5323(b), and 
5324; Pub. L. 109-59, 119 Stat. 1144, section 6010; 40 CFR parts 
1500-1508; 49 CFR 1.48(b) and 1.51.

    3. Revise Sec.  771.101 to read as follows:


Sec.  771.101  Purpose.

    This regulation prescribes the policies and procedures of the 
Federal Highway Administration (FHWA) and the Federal Transit 
Administration (FTA) for implementing the National Environmental Policy 
Act of 1969 as amended (NEPA), and supplements the regulation of the 
Council on Environmental Quality (CEQ), 40 CFR parts 1500 through 1508 
(CEQ regulation). Together these regulations set forth all FHWA, FTA, 
and Department of Transportation (DOT) requirements under NEPA for the 
processing of highway and public transportation projects. This 
regulation also sets forth procedures to comply with 23 U.S.C. 109(h), 
128, 138, 139, 325, 326, 327, and 49 U.S.C. 303, 5301(e), 5323(b), and 
5324(b) and (c).
    4. Amend Sec.  771.105 by revising paragraph (a) and its footnote 
to read as follows:


Sec.  771.105  Policy.

* * * * *
    (a) To the fullest extent possible, all environmental 
investigations, reviews, and consultations be coordinated as a single 
process, and compliance with all applicable environmental requirements 
be reflected in the environmental document required by this 
regulation.\1\
---------------------------------------------------------------------------

    \1\ FHWA and FTA have supplementary guidance on environmental 
documents and procedures for their programs. This guidance includes: 
the FHWA Technical Advisory T6640.8A, October 30, 1987; ``SAFETEA-LU 
Environmental Review Process: Final Guidance,'' November 15, 2006; 
Appendix A to 23 CFR part 450 titled ``Linking the Transportation 
Planning and NEPA Processes''; and ``Transit Noise and Vibration 
Impact Assessment,'' May 2006. The FHWA and the FTA supplementary 
guidance, and any updated versions of the guidance, are available 
from the respective FHWA and FTA headquarters and field offices as 
prescribed in 49 CFR part 7 and on their respective Web sites at 
http://www.fhwa.dot.gov and http://www.fta.dot.gov, or in hard copy 
by request.
---------------------------------------------------------------------------

* * * * *
    5. Amend Sec.  771.107 by revising paragraph (d) and adding 
paragraphs (f) and (g) to read as follows:


Sec.  771.107  Definitions.

* * * * *
    (d) Administration. FHWA or FTA, whichever is the designated 
Federal lead agency for the proposed action. A reference herein to the 
Administration means the State when the State is functioning as the 
FHWA or FTA in carrying out responsibilities delegated or assigned to 
the State in accordance with 23 U.S.C. 325, 326, or 327, or other 
applicable law.
* * * * *
    (f) Applicant. Any State or local governmental entity, or 
federally-recognized Indian tribe, that requests funding approval or 
other action by the Administration and that the Administration works 
with to conduct environmental studies and prepare environmental 
documents. When another Federal agency, or the Administration itself, 
is implementing the action, then the lead agencies (as defined in this 
regulation) may assume the responsibilities of the applicant herein. If 
there is no applicant, then the Federal lead agency will assume the 
responsibilities of the applicant hereunder.
    (g) Lead agencies. The Administration and any other agency 
designated to serve as a joint lead agency with the Administration 
under 23 U.S.C. 139(c)(3) or under the CEQ regulation.
    6. Amend Sec.  771.109 by removing the words ``by the 
Administration'' from paragraph (a)(3) and by revising paragraphs (c) 
and (d) to read as follows:


Sec.  771.109  Applicability and responsibilities.

* * * * *
    (c) The following roles and responsibilities apply during the 
environmental review process:
    (1) The lead agencies are responsible for managing the 
environmental review process and the preparation of the appropriate 
environmental document.
    (2) Any applicant that is a State or local governmental entity that 
is, or is expected to be, a direct recipient of funds under title 23 
U.S.C. or chapter 53 of title 49 U.S.C. for the action shall serve as a 
joint lead agency with the Administration in accordance with 23 U.S.C. 
139, and may prepare environmental documents if the Federal lead agency 
furnishes guidance and independently evaluates the documents.
    (3) The Administration may invite other Federal, State, or local 
governmental entities or federally-recognized Indian tribes to serve as 
joint lead agencies in accordance with the CEQ regulation. If the 
applicant is serving as a joint lead agency under 23 U.S.C. 139(c)(3), 
then the Administration and the applicant will decide jointly which 
other agencies to invite to serve as joint lead agencies.
    (4) When the applicant seeks an Administration action other than 
the approval of funds, the role of the applicant will be determined by 
the Administration in accordance with the CEQ regulation and 23 U.S.C. 
139.
    (5) Regardless of its role under paragraphs (c)(2) through (c)(4) 
of this section, a public agency that has statewide jurisdiction (for 
example, a State highway agency or a State department of 
transportation) or a local unit of government acting through a 
statewide agency, that meets the requirements of section 102(2)(D) of 
NEPA, may prepare the EIS and other environmental documents with the 
Administration furnishing guidance, participating in the preparation, 
and independently evaluating the document. All FHWA applicants qualify 
under this paragraph.
    (6) The role of project sponsors that are private institutions or 
firms is limited to providing technical studies and commenting on 
environmental documents.
    (d) When entering into Federal-aid project agreements pursuant to 
23 U.S.C. 106, it shall be the responsibility of the State highway 
agency to ensure that the project is constructed in accordance with and 
incorporates all committed environmental impact mitigation measures 
listed in approved environmental documents unless the State requests 
and receives written FHWA approval to modify or delete such mitigation 
features.
    7. Amend Sec.  771.111 by revising paragraphs (a), (b), (d), 
(h)(1), and (i) and adding paragraphs (h)(2)(vii) and (h)(2)(viii) to 
read as follows:


Sec.  771.111  Applicability and responsibilities.

    (a)(1) Early coordination with appropriate agencies and the public 
aids in determining the type of environmental document an action 
requires, the scope of the document, the level of analysis, and related 
environmental requirements. This involves the exchange of information 
from the inception of a proposal for action to preparation of the 
environmental document. Applicants intending to apply for funds should 
notify the Administration at the time that a project concept is 
identified.
    (2) The information and results presented in publicly available 
documents produced by, or in support of, the transportation planning 
process in 23 CFR part 450 may be incorporated into NEPA documents.\3\
---------------------------------------------------------------------------

    \3\ On February 14, 2007, FHWA and FTA issued guidance on 
incorporating products of the planning process into NEPA documents 
as Appendix A of 23 CFR part 450. Titled ``Linking the 
Transportation Planning and NEPA Processes,'' the guidance is 
available on the FHWA Web site at http://www.fhwa.dot.gov, or in 
hard copy by request.

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[[Page 44048]]

    (b) The Administration will identify the probable class of action 
as soon as sufficient information is available to identify the probable 
impacts of the action.
* * * * *
    (d) During the early coordination process, the lead agencies may 
request other agencies having an interest in the action to participate, 
and must invite such agencies if the action is subject to the project 
development procedures in 23 U.S.C. 139.\4\ Agencies with special 
expertise may be invited to become cooperating agencies. Agencies with 
jurisdiction by law must be requested to become cooperating agencies.
---------------------------------------------------------------------------

    \4\ FHWA and FTA have developed guidance on 23 U.S.C. 139 
entitled ``SAFETEA-LU Environmental Review Process: Final 
Guidance,'' November 15, 2006, and available at http://www.fhwa.dot.gov or in hardcopy upon request.
---------------------------------------------------------------------------

* * * * *
    (h) * * *
    (1) Each State must have procedures approved by the FHWA to carry 
out a public involvement/public hearing program pursuant to 23 U.S.C. 
128 and 139 and 40 CFR parts 1500 through 1508.
    (2) * * *
* * * * *
    (vii) An opportunity for public involvement in defining the purpose 
and need and the range of alternatives, for any action subject to the 
project development procedures in 23 U.S.C. 139.
    (viii) Public notice and an opportunity for public review and 
comment on a Section 4(f) de minimis impact finding, in accordance with 
49 U.S.C. 303(d).
* * * * *
    (i) Applicants for capital assistance in the FTA program achieve 
public participation on proposed projects by holding public hearings 
and seeking input from the public through the scoping process for 
environmental documents. For projects requiring EISs, an early 
opportunity for public involvement in defining the purpose and need for 
action and the range of alternatives must be provided, and a public 
hearing will be held during the circulation period of the draft EIS. 
For other projects that substantially affect the community or its 
public transportation service, an adequate opportunity for public 
review and comment must be provided, pursuant to 49 U.S.C. 5323(b).
* * * * *
    8. Amend Sec.  771.113 by revising the introductory text of 
paragraph (a), paragraph (a)(2), and first sentence of paragraph (b), 
and adding paragraph (d), to read as follows:


Sec.  771.113  Timing of Administration activities.

    (a) The lead agencies, in cooperation with the applicant (if not a 
lead agency), will perform the work necessary to complete a FONSI or an 
EIS and comply with other related environmental laws and regulations to 
the maximum extent possible during the NEPA process. This work includes 
environmental studies, related engineering studies, agency coordination 
and public involvement. However, final design activities, property 
acquisition, purchase of construction materials or rolling stock, or 
project construction shall not proceed until the following have been 
completed, except as otherwise provided in law or in paragraph (d):
* * * * *
    (2) For actions proposed for FHWA funding, the Administration has 
received and accepted the certifications and any required public 
hearing transcripts required by 23 U.S.C. 128;
* * * * *
    (b) Completion of the requirements set forth in paragraphs (a)(1) 
and (2) of this section is considered acceptance of the general project 
location and concepts described in the environmental document unless 
otherwise specified by the approving official. * * *
* * * * *
    (d) The prohibition in paragraph (a)(1) of this section is limited 
by the following exceptions:
    (1) Section 771.117(c)(22) contains an exception for the 
acquisition of pre-existing railroad right-of-way for future transit 
use in accordance with 49 U.S.C. 5324(c).
    (2) Exceptions for hardship and protective acquisitions of real 
property are addressed in Sec.  771.117(d)(12).
    (3) FHWA regulations at 23 CFR 710.503 establish conditions for 
FHWA approval of Federal-aid highway funding for hardship and 
protective acquisitions.
    (4) FHWA regulations at 23 CFR 710.501 address early acquisition of 
right-of-way by a State prior to the execution of a project agreement 
with the FHWA or completion of NEPA. In 710.501(b) and (c), the 
regulation establishes conditions governing subsequent requests for 
Federal-aid credit or reimbursement for the acquisition. Any State-
funded early acquisition for a Federal-aid highway project where there 
will not be Federal-aid highway credit or reimbursement for the early 
acquisition is subject to the limitations described in the CEQ 
regulations at 40 CFR 1506.1 and other applicable Federal requirements.
    (5) A limited exception for rolling stock is provided in 49 U.S.C. 
5309(h)(6).
    9. Amend Sec.  771.117 by adding paragraphs (c)(21) and (c)(22), 
and by revising paragraphs (c)(5) and (d)(12) to read as follows:


Sec.  771.117  Categorical exclusions.

* * * * *
    (c) * * *
    (5) Transfer of Federal lands pursuant to 23 U.S.C. 107(d) and/or 
23 U.S.C. 317 when the land transfer is in support of an action that is 
not otherwise subject to FHWA review under NEPA.
* * * * *
    (21) Deployment of electronics, photonics, communications, or 
information processing used singly or in combination, or as components 
of a fully integrated system, to improve the efficiency or safety of a 
surface transportation system.
    (22) Acquisition of pre-existing railroad right-of-way pursuant to 
49 U.S.C. 5324(c). No project development on the acquired railroad 
right-of-way may proceed until the NEPA process for such project 
development, including the consideration of alternatives, has been 
completed.
* * * * *
    (d) * * *
* * * * *
    (12) Acquisition of land for hardship or protective purposes. 
Hardship and protective buying will be permitted only for a particular 
parcel or a limited number of parcels. These types of land acquisition 
qualify for a CE only where the acquisition will not limit the 
evaluation of alternatives, including shifts in alignment for planned 
construction projects, which may be required in the NEPA process. No 
project development on such land may proceed until the NEPA process has 
been completed.
    (i) Hardship acquisition is early acquisition of property by the 
applicant at the property owner's request to alleviate particular 
hardship to the owner, in contrast to others, because of an inability 
to sell his property. This is justified when the property owner can 
document on the basis of health, safety or financial reasons that 
remaining in the property poses an undue hardship compared to others.
    (ii) Protective acquisition is done to prevent imminent development 
of a parcel which is needed for a proposed transportation corridor or 
site. Documentation must clearly demonstrate that development of the

[[Page 44049]]

land would preclude future transportation use and that such development 
is imminent. Advance acquisition is not permitted for the sole purpose 
of reducing the cost of property for a proposed project.
    10. Amend Sec.  771.119 as follows:
    a. In paragraph (c), remove the second sentence.
    b. In paragraph (g), capitalize the word ``administration''.
    c. Add paragraph (j) to read as follows:


Sec.  771.119  Environmental assessments.

* * * * *
    (j) If the Administration decides to apply 23 U.S.C. 139 to an 
action involving an EA, then the EA shall be prepared in accordance 
with the applicable provisions of that statute.
    11. Amend Sec.  771.123 by revising paragraphs (a), (b), (c), (d), 
(i), and (j) to read as follows:


Sec.  771.123  Draft environmental impact statements.

    (a) A draft EIS shall be prepared when the Administration 
determines that the action is likely to cause significant impacts on 
the environment. When the applicant, after consultation with any 
project sponsor that is not the applicant, has notified the 
Administration in accordance with 23 U.S.C. 139(e) and the decision has 
been made by the Administration to prepare an EIS, the Administration 
will issue a Notice of Intent (40 CFR 1508.22) for publication in the 
Federal Register. Applicants are encouraged to announce the intent to 
prepare an EIS by appropriate means at the local level.
    (b) After publication of the Notice of Intent, the lead agencies, 
in cooperation with the applicant (if not a lead agency), will begin a 
scoping process. The scoping process will be used to identify the range 
of alternatives and impacts and the significant issues to be addressed 
in the EIS and to achieve the other objectives of 40 CFR 1501.7. For 
FHWA, scoping is normally achieved through public and agency 
involvement procedures required by Sec.  771.111. For FTA, scoping is 
achieved by soliciting agency and public responses to the action by 
letter or by holding scoping meetings. If a scoping meeting is to be 
held, it should be announced in the Administration's Notice of Intent 
and by appropriate means at the local level.
    (c) The draft EIS shall be prepared by the lead agencies, in 
cooperation with the applicant (if not a lead agency). The draft EIS 
shall evaluate all reasonable alternatives to the action and discuss 
the reasons why other alternatives, which may have been considered, 
were eliminated from detailed study. The draft EIS shall also summarize 
the studies, reviews, consultations, and coordination required by 
environmental laws or Executive Orders to the extent appropriate at 
this stage in the environmental process.
    (d) Any of the lead agencies may select a consultant to assist in 
the preparation of an EIS in accordance with applicable contracting 
procedures and with 40 CFR 1506.5(c).
* * * * *
    (i) The Federal Register public availability notice (40 CFR 
1506.10) shall establish a period of not fewer than 45 days nor more 
than 60 days for the return of comments on the draft EIS unless a 
different period is established in accordance with 23 U.S.C. 
139(g)(2)(A). The notice and the draft EIS transmittal letter shall 
identify where comments are to be sent.
    (j) For FTA-funded major public capital investments, at the 
conclusion of the Draft EIS circulation period, approval may be given 
to begin preliminary engineering on the principal alternative(s) under 
consideration. During the course of such preliminary engineering, the 
applicant will refine project costs, effectiveness, and impact 
information with particular attention to alternative designs, 
operations, detailed location decisions and appropriate mitigation 
measures. These studies will be used to prepare the final EIS or, where 
appropriate, a supplemental draft EIS.
    12. Amend Sec.  771.125 by removing paragraph (c)(3) and revising 
paragraphs (a)(1), (c)(1), and (e) to read as follows:


Sec.  771.125  Final environmental impact statements.

    (a)(1) After circulation of a draft EIS and consideration of 
comments received, a final EIS shall be prepared by the lead agencies, 
in cooperation with the applicant (if not a lead agency). The final EIS 
shall identify the preferred alternative and evaluate all reasonable 
alternatives considered. It shall also discuss substantive comments 
received on the draft EIS and responses thereto, summarize public 
involvement, and describe the mitigation measures that are to be 
incorporated into the proposed action. Mitigation measures presented as 
commitments in the final EIS will be incorporated into the project as 
specified in Sec.  771.109(b) and (d). The final EIS should also 
document compliance, to the extent possible, with all applicable 
environmental laws and Executive Orders, or provide reasonable 
assurance that their requirements can be met.
* * * * *
    (c) * * *
    (1) Any action for which the Administration determines that the 
final EIS should be reviewed at the Headquarters office. This would 
typically occur when the Headquarters office determines that (i) 
additional coordination with other Federal, State, or local government 
agencies is needed; (ii) the social, economic, or environmental impacts 
of the action may need to be more fully explored; (iii) the impacts of 
the proposed action are unusually great; (iv) major issues remain 
unresolved; (v) the action involves national policy issues; or (vi) 
other considerations warrant review at the Headquarters office.
* * * * *
    (e) Approval of the final EIS is not an Administration action as 
defined in Sec.  771.107(c) and does not commit the Administration to 
approve any future grant request to fund the preferred alternative.
* * * * *
    13. Revise Sec.  771.129 to read as follows:


Sec.  771.129  Re-evaluations.

    (a) After approval of the EIS, FONSI, or CE designation, the 
applicant shall consult with the Administration prior to requesting any 
major approvals or grants to establish whether or not the approved 
environmental document or CE designation remains valid for the 
requested Administration action. These consultations will be documented 
when determined necessary by the Administration.
    (b) A written evaluation of the draft EIS shall be prepared by the 
applicant in cooperation with the Administration if an acceptable final 
EIS is not submitted to the Administration within three years from the 
date of the draft EIS circulation. The purpose of this evaluation is to 
determine whether or not a supplement to the draft EIS or a new draft 
EIS is needed.
    (c) A written evaluation of the final EIS will be required before 
further approvals may be granted if major steps to advance the action 
(e.g., authority to undertake final design, authority to acquire a 
significant portion of the right-of-way, or approval of PS&E) have not 
occurred within three years after the approval of the final EIS, final 
EIS supplement, or the last major Administration approval or grant.
    14. Amend Sec.  771.130 as follows:
    a. In paragraph (a)(2), revise the word ``bearings'' to read 
``bearing''.
    b. Revise the first sentence of paragraph (e) to read as follows:

[[Page 44050]]

Sec.  771.130  Supplemental environmental impact statements.

* * * * *
    (e) A supplemental draft EIS may be necessary for FTA major public 
transportation capital investments if there is a substantial change in 
the level of detail on project impacts during project planning and 
development. * * *
* * * * *
    15. Amend Sec.  771.133 by revising the last sentence to read as 
follows:


Sec.  771.133  Compliance with other requirements.

    * * * The Administration's approval of a NEPA document constitutes 
its finding of compliance with the report requirements of 23 U.S.C. 
128.
    16. Add Sec.  771.139 to read as follows:


Sec.  771.139  Statute of Limitations.

    Notices announcing decisions by the Administration or by other 
Federal agencies on a transportation project may be published in the 
Federal Register indicating that such decisions are final within the 
meaning of 23 U.S.C. 139(l). Claims arising under Federal law seeking 
judicial review of any such decisions are barred unless filed within 
180 days after publication of the notice. This 180-day time period does 
not lengthen any shorter time period for seeking judicial review that 
otherwise is established by the Federal law under which judicial review 
is allowed.\5\ This provision does not create any right of judicial 
review or place any limit on filing a claim that a person has violated 
the terms of a permit, license, or approval.
---------------------------------------------------------------------------

    \5\ The FHWA published a detailed discussion of DOT's 
interpretation of 23 U.S.C. 139(l), together with information 
applicable to FHWA projects about implementation procedures for 23 
U.S.C. 139(l), in Appendix E to the ``SAFETEA-LU Environmental 
Review Process: Final Guidance,'' dated November 15, 2006. The 
implementation procedures in Appendix E apply only to FHWA projects. 
The section 6002 guidance, including Appendix E, is available at 
http://www.fhwa.dot.gov//, or in hardcopy by request.

    Issued in Washington, DC, this 23rd day of July, 2007.
James S. Simpson,
Administrator, Federal Transit Administration.
    Issued in Washington, DC, this 23rd day of July, 2007.
J. Richard Capka,
Administrator, Federal Highway Administration.
[FR Doc. 07-3781 Filed 8-6-07; 8:45 am]
BILLING CODE 4910-57-P