44038 Federal Register / Vol. 72, No. 151 / Tuesday, August 7, 2007 / Proposed Rules 

2 ‘‘CFC-Only Asthma Drugs Likely to Lose 

‘Essential Use’ Designation,’’ The Pink Sheet, July 

18, 2005, p. 15; minutes of the meeting and a 

transcript of the meeting are available at http:// 

www.fda.gov/ohrms/dockets/ (select ‘‘Advisory 

Committee Materials,’’ then ‘‘2005,’’ then 

‘‘Pulmonary-Allergy Drugs Advisory Committee’’). 

3For more information, see the discussion in the 

proposed rule (72 FR 32030 at 32031 and 32032). 

4The Unified Agenda (also known as the 

Semiannual Regulatory Agenda), published twice a 

year in the Federal Register, summarizes the rules 

and proposed rules that each Federal agency 

expects to issue during the next 6 months. 

finalizing this proposed rule potentially 

could delay or prevent the U.S. 

Government from taking actions to 

ensure a smooth transition to inhaled 

drug products for the treatment of 

asthma and chronic obstructive 

pulmonary disease that do not contain 

ODSs. We note that interested persons 

have had ample notice that FDA was 

considering removing the essential-use 

designation for pirbuterol and the six 

other drugs that are the subject of this 

rulemaking, including the following: 

• This issue was first considered at 

the July 14, 2005, meeting of the 

Pulmonary-Allergy Advisory Committee 

(see 70 FR 24605, May 10, 2005). The 

trade press reported on this meeting; 

and minutes and a transcript of the 

meeting were placed on the Internet.2

• At the 17th Meeting of the Parties 

to Montreal Protocol (Dakar, Senegal, 

December 12 through 16, 2005), the 

Parties decided that developed 

countries should provide a date to the 

Ozone Secretariat before the 18th 

meeting of the Parties (New Delhi, 

October 30 through November 3, 2006), 

by which time a regulation or 

regulations will have been proposed to 

determine whether MDIs, other than 

those that have albuterol as the only 

active ingredient, are nonessential.3 The 

U.S. Government provided information 

to the Ozone Secretariat that a proposed 

rule that would eliminate the essentialuse designation of pirbuterol and the six 

other drugs that are the subject of the 

proposed rule should publish by the 

end of May 2007. 

• We also announced our intention to 

publish a proposed rule by the end of 

May 2007 that would eliminate the 

essential-use designation of pirbuterol 

and the six other drugs that are the 

subject of the proposed rule in the 

Unified Agendas4 published in the 

Federal Register on December 11, 2006 

(71 FR 73195 at 73223), and April 30, 

2007 (72 FR 22489 at 22156). 

Because interested persons have had 

ample notice of this rulemaking dating 

back at least to May 2005, we do not 

intend to grant further requests for 

extension of the comment period on the 

proposed rule. 

As discussed in the previous 

paragraphs, FDA believes this extension 

will allow adequate time for interested 

persons to submit comments on the 

proposed rule, and that rescheduling the 

public meeting was unnecessary. The 

deadline for registration passed soon 

after the request to reschedule the 

meeting was made and interested 

persons had already made travel and 

other arrangements to participate on the 

scheduled date. Anyone who was 

unable to participate in the meeting still 

has the opportunity to submit written 

comments for an additional 30 days, as 

outlined in this notice. 

II. Request for Comments 

Interested persons may submit to the 

Division of Dockets Management (see 

ADDRESSES) written or electronic 

comments regarding the proposed rule 

(see DATES). Submit a single copy of 

electronic comments or two paper 

copies of any mailed comments, except 

that individuals may submit one paper 

copy. Comments are to be identified 

with the docket number found in 

brackets in the heading of this 

document. Received comments may be 

seen in the Division of Dockets 

Management between 9 a.m. and 4 p.m., 

Monday through Friday. 

Dated: August 1, 2007. 

Randall W. Lutter, 

Deputy Commissioner for Policy. 

[FR Doc. E7–15372 Filed 8–6–07; 8:45 am] 

BILLING CODE 4160–01–S 

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. 

SUMMARY: This notice of proposed 

rulemaking (NPRM) provides interested 

parties with the opportunity to 

comment on proposed changes to the 

joint FTA/FHWA procedures that 

implement the National Environmental 

Policy Act (NEPA). The revisions are 

prompted by enactment of the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU), which prescribes 

additional requirements for 

environmental review and project 

decisionmaking that are not 

appropriately reflected in the existing 

joint NEPA procedures. Pursuant to 

provisions of SAFETEA–LU, this NPRM 

proposes to add new categorical 

exclusions (CEs) from the NEPA 

process. This NPRM also proposes other 

minor changes to the joint procedures in 

order to improve the description of the 

procedures or to provide clarification 

with respect to the interpretation of 

certain provisions. The FTA and the 

FHWA seek comments on the proposals 

contained in this notice. 

DATES: Comments must be received by 

October 9, 2007. 

ADDRESSES: Written Comments: Submit 

written comments to: U.S. Department 

of Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey Ave. 

SE., Washington, DC 20590. 

Comments. You may submit 

comments identified by the docket 

number (FTA–2006–26604) by any of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Web site: http://dms.dot.gov. 

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management System, 

U.S. Department of Transportation, 

Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Ave. SE., Washington, 

DC 20590. 

• Hand Delivery: To the Docket 

Management System; U.S. Department 

of Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey Ave. 

SE., Washington, DC 20590 between 9 

a.m. and 5 p.m., e.t., Monday through 

Friday, except Federal holidays. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) of this notice. Note that 

all comments received will be posted 

without change to http://dms.dot.gov 

including any personal information 

provided. Please see the Privacy Act 

heading under SUPPLEMENTARY

INFORMATION. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

dms.dot.gov at any time or to the Docket 

Management System. (See ADDRESSES.) 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 151 / Tuesday, August 7, 2007 / Proposed Rules 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-ofway, 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. 


rfrederick on PROD1PC67 with PROPOSALS
44040 Federal Register / Vol. 72, No. 151 / Tuesday, August 7, 2007 / Proposed Rules 

1Other 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. 

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. 

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 preexisting 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 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 151 / Tuesday, August 7, 2007 / Proposed Rules 44041 

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). 

3An 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. 

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. 

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 


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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 decisionmaking 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 nonFederal 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. 


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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 


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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 upfront 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 crossreference 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 


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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 


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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 costeffective 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: 


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1FHWA 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. 

3On 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. 

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 § 771.101 to read as follows: 

§ 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 § 771.105 by revising 

paragraph (a) and its footnote to read as 

follows: 

§ 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

* * * * * 

5. Amend § 771.107 by revising 

paragraph (d) and adding paragraphs (f) 

and (g) to read as follows: 

§ 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 federallyrecognized 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 § 771.109 by removing the 

words ‘‘by the Administration’’ from 

paragraph (a)(3) and by revising 

paragraphs (c) and (d) to read as follows: 

§ 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 federallyrecognized 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 § 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: 

§ 771.111 Applicability and 

responsibilities. 

(a)(1) Early coordination with 

appropriate agencies and the public aids 

in determining the type of 

environmental document an action 

requires, the scope of the document, the 

level of analysis, and related 

environmental requirements. This 

involves the exchange of information 

from the inception of a proposal for 

action to preparation of the 

environmental document. Applicants 

intending to apply for funds should 

notify the Administration at the time 

that a project concept is identified. 

(2) The information and results 

presented in publicly available 

documents produced by, or in support 

of, the transportation planning process 

in 23 CFR part 450 may be incorporated 

into NEPA documents.3


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4FHWA 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. 

(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. 

* * * * * 

(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 § 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: 

§ 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 preexisting 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 § 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 Federalaid 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 § 771.117 by adding 

paragraphs (c)(21) and (c)(22), and by 

revising paragraphs (c)(5) and (d)(12) to 

read as follows: 

§ 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 


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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 § 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: 

§ 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 § 771.123 by revising 

paragraphs (a), (b), (c), (d), (i), and (j) to 

read as follows: 

§ 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 § 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 § 771.125 by removing 

paragraph (c)(3) and revising paragraphs 

(a)(1), (c)(1), and (e) to read as follows: 

§ 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 § 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 

§ 771.107(c) and does not commit the 

Administration to approve any future 

grant request to fund the preferred 

alternative. 

* * * * * 

13. Revise § 771.129 to read as 

follows: 

§ 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 rightof-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 § 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: 


rfrederick on PROD1PC67 with PROPOSALS
44050 Federal Register / Vol. 72, No. 151 / Tuesday, August 7, 2007 / Proposed Rules 

5The 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. 

§ 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 § 771.133 by revising the 

last sentence to read as follows: 

§ 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 § 771.139 to read as follows: 

§ 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. 

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 

DEPARTMENT OF EDUCATION 

34 CFR Part 691 

[Docket ID ED–2007–OPE–0135] 

RIN 1840–AC92 

Academic Competitiveness Grant 

Program and National Science and 

Mathematics Access To Retain Talent 

Grant Program 

AGENCY: Office of Postsecondary 

Education, Department of Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary proposes to 

amend the regulations for the Academic 

Competitiveness Grant (ACG) and 

National Science and Mathematics 

Access to Retain Talent Grant (National 

SMART Grant) programs. The Secretary 

is amending these regulations to reduce 

administrative burden for program 

participants and to clarify program 

requirements. 

DATES: We must receive your comments 

on or before September 6, 2007. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments by fax or by e-mail. Please 

submit your comments only one time, in 

order to ensure that we do not receive 

duplicate copies. In addition, please 

include the Docket ID at the top of your 

comments. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Under 

‘‘Search Documents’’ go to ‘‘Optional 

Step 2’’ and select ‘‘Department of 

Education’’ from the ‘‘Federal 

Department or Agency’’ drop-down 

menu, then click ‘‘Submit.’’ In the 

Docket ID column, select ED–2007–

OPE–0135 to add or view public 

comments and to view supporting and 

related materials available 

electronically. Information on using 

Regulations.gov, including instructions 

for submitting comments, accessing 

documents, and viewing the docket after 

the close of the comment period, is 

available through the site’s ‘‘User Tips’’

link. 

• Postal Mail, Commercial Delivery, 

or Hand Delivery. If you mail or deliver 

your comments about these proposed 

regulations, address them to Sophia 

McArdle, U.S. Department of Education, 

1990 K Street, NW., room 8019, 

Washington, DC 20006–8544. 

Privacy Note: The Department’s 

policy for comments received from 

members of the public (including those 

comments submitted by mail, 

commercial delivery, or hand delivery) 

is to make these submissions available 

for public viewing on the Federal 

eRulemaking Portal at http:// 

www.regulations.gov. All submissions 

will be posted to the Federal 

eRulemaking Portal without change, 

including personal identifiers and 

contact information. 

FOR FURTHER INFORMATION CONTACT: 

Topic Contact person and information 

General information and information related to recognition of rigorous 

secondary school programs and eligible majors.

Sophia McArdle. Telephone: (202) 219–7078 or via the Internet: sophia.mcardle@ed.gov. 

Information related to successful completion of a rigorous secondary 

school program.

Jacquelyn Butler. Telephone: (202) 502–7890 or via the Internet: jacquelyn.butler@ed.gov. 

Information related to grade point average .............................................. Anthony Jones. Telephone: (202) 502–7652 or via the Internet: anthony.jones@ed.gov. 

Information related to academic year progression and prior enrollment Fred Sellers. Telephone: (202) 502–7502 or via the Internet: 

fred.sellers@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD), you may call 

the Federal Relay Service (FRS) at 1–

800–877–8339. 

Individuals with disabilities may 

obtain this document in an alternative 

format (e.g., Braille, large print, 

audiotape, or computer diskette) on 

request to the first contact person listed 

under FOR FURTHER INFORMATION

CONTACT. 

SUPPLEMENTARY INFORMATION: 

Invitation to Comment 

As outlined in the section of this 

notice entitled ‘‘Negotiated 

Rulemaking,’’ significant public 


rfrederick on PROD1PC67 with PROPOSALS