15310 Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Proposed Rules 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2012–4865 Filed 3–14–12; 8:45 am] 

BILLING CODE 6750–01–C 

DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

Federal Highway Administration 

23 CFR Part 771 

[Docket No. FTA–2011–0056] 

RIN 2132–AB03 

Environmental Impact and Related 

Procedures 

AGENCY: 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 Federal Transit Administration 

(FTA) and Federal Highway 

Administration (FHWA) regulations that 

implement the National Environmental 

Policy Act (NEPA). The proposed 

revisions would affect actions by FTA 

and project sponsors. The proposed 

revisions are intended to streamline the 

FTA environmental process for transit 

projects in response to the Presidential 

Memorandum on the subject ‘‘Speeding 

Infrastructure Development through 

More Efficient and Effective Permitting 

and Environmental Review’’ of August 

31, 2011. The proposed categorical 

exclusions (CEs) would apply to FTA 

and improve the efficiency of the NEPA 

environmental reviews by making 

available the least intensive form of 

review for those actions that typically 

do not have the potential for significant 

environmental effects and therefore do 

not merit additional analysis and 

documentation associated with an 

Environmental Assessment or an 

Environmental Impact Statement. FTA 

and the FHWA invite comments on the 

proposals contained in this notice. 

DATES: Comments must be received by 

May 14, 2012. 

ADDRESSES: You may submit comments 

identified by the docket number (FTA– 

2011–0056) by any of the following 

methods: 

Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

U.S. Mail: U.S. Department of 

Transportation, Docket Operations, 

West Building, Room W12–140, 1200 

New Jersey Avenue SE., Washington, 

DC 20590. 

Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

West Building, Room W12–140, 1200 

New Jersey Avenue SE., Washington, 

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

through Friday, except Federal holidays. 

Fax: (202) 493–2251. 

Instructions: You must include the 

agency name (Federal Transit 

Administration) and docket number 

(FTA–2011–0056) or Regulatory 

Identification Number (RIN 2132–AB03) 

for this rulemaking at the beginning of 

your comments. All comments received 

will be posted, without change and 

including any personal information 

provided, to http://www.regulations.gov, 

where they will be available to Internet 

users. Please see the discussion of the 

Privacy Act below. 

You should submit two copies of your 

comments if you submit them by mail. 

If you wish to receive confirmation that 

FTA received your comments, you must 

include a self-addressed, stamped 

postcard. Due to security procedures in 

effect since October 2001 regarding mail 

deliveries, mail received through the 

U.S. Postal Service may be subject to 

delays. Parties submitting comments 

may wish to consider using an express 

mail firm to ensure the prompt filing of 

any submissions not filed electronically 

or by hand. For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov and follow the 

online instructions for viewing the 

docket or visit Docket Operations at the 

address above. 

FOR FURTHER INFORMATION CONTACT: 

Antoinette Quagliata at (202) 366–4265 

or Megan Blum at (202) 366–0463, 

Office of Planning and Environment 

(TPE), or Christopher Van Wyk at (202) 

366–1733, or Scott Biehl at (202) 366– 

4011, Office of Chief Counsel (TCC), 

Federal Transit Administration, U.S. 

Department of Transportation, 1200 

New Jersey Avenue SE., Washington, 

DC 20590. 


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Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Proposed Rules 15311 

SUPPLEMENTARY INFORMATION: 

Background 

This Notice of Proposed Rulemaking 

(NPRM) proposes a number of revisions 

to the procedures that govern how the 

Federal Transit Administration (FTA) 

complies with the National 

Environmental Policy Act (NEPA). The 

regulation proposed for revision, Part 

771 of Title 23, Code of Federal 

Regulations (CFR), is a joint FTA and 

Federal Highway Administration 

(FHWA) regulation, but nearly all of the 

proposed revisions are written such that 

they would apply to actions by FTA. 

The proposed revisions that change 

FHWA’s NEPA implementing 

regulations are a minor, nonsubstantive, revision to a footnote 

discussing supplementary guidance and 

two spelling corrections. The remaining 

proposed revisions, including ten 

proposed categorical exclusions (CEs), 

apply to FTA. 

FTA’s primary goal in developing this 

NPRM has been streamlining the 

environmental process, without any loss 

of its environmental value. In a 

Presidential Memorandum on the 

subject, ‘‘Speeding Infrastructure 

Development through More Efficient 

and Effective Permitting and 

Environmental Review’’ issued August 

31, 2011, President Obama challenged 

the heads of Federal agencies to ‘‘take 

steps to expedite permitting and review, 

through such strategies as integrating 

planning and environmental reviews; 

coordinating multi-agency or multigovernmental reviews and approvals to 

run concurrently; setting clear 

schedules for completing steps in the 

environmental review and permitting 

process; and utilizing information 

technologies to inform the public about 

the progress of environmental reviews 

as well as the progress of Federal 

permitting and review processes.’’ This 

proposal is consistent with that 

direction, and also consistent with 

Executive Order 13571 issued on April 

27, 2011, titled ‘‘Streamlining Service 

Delivery and Improving Customer 

Service,’’ through which President 

Obama challenged Federal agencies to 

develop and implement plans for, 

among other actions: ‘‘improving the 

customer experience by adopting 

proven customer service best practices 

and coordinating across service 

channels (such as online, phone, inperson, and mail service);’’ 

‘‘streamlining agency procedures to 

reduce costs and accelerate delivery, 

while reducing the need for customer 

calls and inquiries;’’ and ‘‘identifying 

ways to use innovative technologies to 

accomplish the customer service 

activities above, thereby lowering costs, 

decreasing service delivery times, and 

improving the customer experience.’’ 

The general public, especially anyone 

affected or served by a transit project, is 

a primary ‘‘customer’’ served by FTA’s 

environmental process. FTA therefore 

proposes to maximize the use of the 

Internet, in accordance with the 

President’s Order, to deliver to the 

public expeditiously and efficiently the 

customer service provided by the NEPA 

documents and other environmental 

documents prepared by FTA. 

Recognizing that not every customer has 

access to the Internet, FTA will 

continue to use other means, consistent 

with the President’s Executive Order, of 

providing public access to FTA’s 

environmental documents. 

In addition to the recent Presidential 

direction noted above, the Council on 

Environmental Quality’s regulations for 

implementing the provisions of NEPA 

direct agencies to ‘‘review their policies, 

procedures, and regulations * * * and 

revise them as necessary to insure full 

compliance with the purposes and 

provisions of the Act’’ (40 CFR 1500.6). 

FTA’s shared environmental procedures 

were last modified in 2009 with very 

minor revisions to comply with certain 

provisions of the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA–LU), 

but the procedures have not undergone 

a complete retrospective analysis by 

FTA since their creation in 1987. An 

NPRM proposing major revisions to this 

regulation was published on May 25, 

2000, but was never finalized. 

FTA recognizes that the use of CEs, 

whenever appropriate, is an easy and 

effective way to streamline the 

environmental process. However, it has 

been more than 10 years since FTA 

comprehensively considered the CEs 

listed in the environmental procedures 

that apply to transit and more than 20 

years since changes to the CEs were 

made as a result of a comprehensive 

review. For this reason, FTA has now 

embarked on an initiative to update the 

CEs for particular types of proposed 

transit projects and other FTA proposed 

actions. The current CEs listed in 

paragraphs (c) and (d) of 23 CFR 

771.117 are proposed to be FHWA CEs. 

FTA proposes to create a new section 

771.118(c), the new list of FTA CEs 

being proposed as part of this 

rulemaking action, which would apply 

to FTA actions. The list of new CEs to 

be located in section 771.118(c) is 

intended to cover the actions that 

previously applied to FTA in section 

771.117(c), though expanded for 

purposes of streamlining. If the new CEs 

are finalized, FTA expects to publish 

guidance to show how the list of CEs in 

section 771.117(c), which currently 

apply to FTA, is subsumed for FTA 

purposes by the new list at section 

771.118(c). Consistent with past 

practice, FTA is proposing to continue 

to allow the categorical exclusion of 

other actions through documentation 

with language proposed for section 

771.118(d), which mirrors the existing 

23 CFR 771.117(d). FTA is proposing to 

delete, however, some items in the list 

of illustrative examples in section 

771.117(d) from the new list in section 

771.118(d) as they are duplicative of the 

new CEs being proposed for FTA in 

section 771.118(c). 

According to the CEQ regulations (40 

CFR § 1508.4), CEs are defined as ‘‘a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment and which have been 

found to have no such effect in 

procedures adopted by a Federal agency 

in implementation of these regulations 

* * * and for which, therefore, neither 

an environmental assessment nor an 

environmental impact statement is 

required.’’ CEQ guidance on 

establishing CEs, issued in November 

2010, reiterates CEQ’s encouragement to 

Federal agencies to characterize the 

types of CE actions through broadly 

defined criteria, including clearly 

defined eligible categories and 

constraints, followed by examples. 

Accordingly, the CEs that FTA is 

proposing today are organized into ten 

defined categories of actions each 

accompanied by examples representing 

the types of FTA activities that fall 

within each category. The examples 

included are representative of the types 

of activities that fit within the defined 

criteria of the CE; they are not intended 

to limit the CE or to broaden it beyond 

those activities that do not typically, 

either individually or cumulatively, 

cause significant environmental effects. 

The proposed CEs have been 

substantiated with supporting 

documentation, which includes, but is 

not limited to, comparative 

benchmarking and expert opinion. The 

supporting documentation includes 

FTA Findings of No Significant Impact 

(FONSI) for projects that fall within the 

ten broad categories. Comparative 

benchmarking provides support to the 

revised CEs by using the experience of 

other Federal agencies that conduct 

actions of similar nature, scope, and 

intensity. Additionally, FTA convened 

an expert panel to review and evaluate 

each of the revised CEs with respect to 

concept, applicability, and potential 

environmental effects. Information 

describing the basis for the CEs 


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determinations (i.e., the substantiation 

package) and information concerning 

the members of the expert panel, and 

their NEPA-related experience, can be 

found on the FTA Web site (http:// 

fta.dot.gov/about/12347.html) and in 

the docket for this NPRM in 

Regulations.gov as described above. 

FTA examined data for the FONSIs 

used to substantiate the CEs proposed 

for FTA use (23 CFR 771.118). Based on 

a snapshot of available 2008 and 2009 

data, the average amount of time from 

Environmental Assessment (EA) 

initiation to FONSI signature was 

approximately 16.3 months. As this 

estimate is based on a constrained 

sample (ranging from facility 

improvements to streetcar and Bus 

Rapid Transit (BRT) implementation), 

FTA will track current and future 

projects in order to provide a more 

accurate assessment in the future. 

Currently, FTA anticipates an 85 

percent time savings for future projects 

of similar scope to those found in the 

substantiation package under the 

proposed categorically excluded 

projects at 23 CFR 771.118. 

This rulemaking action stems in part 

from the U.S. Department of 

Transportation’s ‘‘Retrospective Review 

and Analysis of Existing Rules’’ in 

response to Executive Order 13563. 

Information on that process can be 

obtained either on DOT’s Web site at 

http://regs.dot.gov/ 

RetrospectiveReview.htm or at 

Regulations.gov under docket number 

DOT–OST–2011–0025. 

What This NPRM Contains 

The following section of this 

preamble includes a ‘‘Section-bySection Analysis’’ of the revisions to the 

regulatory text proposed by this action. 

These explanations will aid the reader 

in understanding the reason behind 

each proposed regulatory change. 

Following the Section-by-Section 

Analysis is the ‘‘Regulatory Analysis 

and Notices’’ section of the NPRM, 

which includes descriptions of the 

requirements that apply to the 

rulemaking process and information on 

how this rulemaking effort fits within 

those requirements. 

The NPRM concludes with the actual 

proposed revisions to the regulatory text 

in the amendatory language required by 

the Office of the Federal Register. This 

language, if finalized, would modify the 

procedures that govern FTA’s 

compliance with NEPA. FTA seeks 

public comment on the proposed 

regulatory revisions. 

Section-by-Section Analysis 

Section 771.105 Policy 

A minor, non-substantive revision is 

proposed for the footnote to paragraph 

(a) to recognize the fact that both FTA 

and FHWA frequently update guidance 

relevant to the preparation of 

environmental documents. Thus, the 

phrase ‘‘but is not limited to’’ is 

proposed for addition to clarify this 

point, such that the introduction to 

supplementary guidance would read: 

‘‘FHWA and FTA have supplementary 

guidance on environmental documents 

and procedures for their programs. This 

guidance includes, but is not limited to 

* * *.’’ In addition, the spelling of the 

word ‘‘Web sites’’ is proposed to be 

changed to ‘‘Web sites.’’ 

Section 771.109 Applicability and 

Responsibilities 

One minor, non-substantive revision 

is proposed for this section: To correct 

the spelling of the word ‘‘construction.’’ 

Section 771.111 Early Coordination, 

Public Involvement, and Project 

Development 

The revised procedures in paragraph 

(i) are proposed to provide FTA grant 

applicants with flexibility and 

efficiency in the public participation 

aspect of the environmental process. 

Paragraph (i)(1) would clarify that 

applicants may announce project 

milestones using either electronic or 

paper media. Currently, the use of 

electronic means is already practiced by 

some transit applicants, but FTA would 

note the option for all transit applicants. 

It is FTA’s experience that providing 

various means for seeking public input 

in the environmental process, such as 

increasing the use of Web sites, adds 

value and flexibility that broadens 

public access and input and, thereby, 

ultimately expedites project review. 

Paragraph (i)(2) formally presents the 

option of doing ‘‘early scoping,’’ which 

can be used to link the metropolitan and 

statewide transportation planning 

process mandated by 49 U.S.C. 5303– 

5304 with the NEPA process to provide 

a seamless transition from 

transportation planning to projectspecific environmental evaluation. 

Major capital investments by FTA on 

fixed guideway transit projects under 49 

U.S.C. 5309 (‘‘New Starts’’) have 

specific planning requirements that do 

not apply to FHWA programs nor to 

other FTA programs. Early scoping 

provides a logical connection between 

the planning-level alternatives analysis 

currently required by 49 U.S.C. 5309 

and the environmental evaluation of 

alternatives required by NEPA. Early 

scoping produces a specific proposed 

action to be studied during the NEPA 

environmental process, and the process 

could also prove useful in providing a 

link between the planning and NEPA 

processes for projects not funded under 

the New Starts program. Steps for 

following the early scoping process are 

included in the proposed paragraph 

(i)(2). 

To increase the public transparency of 

FTA environmental documents, the 

proposed paragraph (i)(3) encourages 

posting and distributing environmental 

process-related materials through 

publicly-accessible electronic means, 

including project Web sites. 

FTA proposes through a new 

paragraph, (i)(4), to encourage the 

posting of all environmental impact 

statements (EIS) (draft and final) and 

environmental records of decision on a 

transit grant applicant’s project Web site 

and maintaining it there until the 

project is constructed and operating. 

Additionally, the Environmental 

Protection Agency (EPA) is developing 

an electronic filing system for EIS 

documents, which will also allow for 

posting of EISs on the EPA Web site. 

FTA will provide a link on its Web site 

to direct the public to EPA’s 

comprehensive EIS database. This 

NPRM would not change the current 

rules for distribution of hard copies of 

FTA environmental documents upon 

request, and the placement of such 

documents in public libraries and local 

government buildings within the project 

area. 

Section 771.113 Timing of 

Administrative Activities 

The proposal of a new section 771.118 

for FTA CEs and the designation of the 

current section 771.117 for FHWA CEs 

require updates to existing references to 

771.117. As such, paragraph (d)(1) is 

proposed to be revised to clarify that the 

reference to 771.117(d)(12) applies to 

FHWA and to add a reference to the 

newly proposed sections 771.118(c)(6) 

and (d)(3) that apply to FTA. Paragraph 

(d)(2) is proposed to be revised to 

change the current reference from 

771.117(d)(13) to 771.118 (d)(4), as the 

paragraph refers to a transit action. 

Section 771.115 Classes of Actions 

Paragraph (a)(3) is proposed to be 

revised to clarify that the construction 

or extension of a fixed-guideway transit 

facility not located within an existing 

transportation right-of-way normally 

requires the preparation of an 

environmental impact statement. In 

addition, Bus Rapid Transit (BRT), as 

defined in the National Transit 

Database—Glossary was added to the 


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list of examples of such transit facilities. 

The current regulation, which this 

NPRM proposes to revise, could be 

interpreted to include a proposed transit 

project that would be located within an 

existing transportation right-of-way as 

an activity typically requiring an 

environmental impact statement. FTA is 

proposing to amend the current 

regulation because it has been the 

agency’s experience that most 

transportation projects constructed 

within an existing transportation rightof-way do not have significant impacts 

on the environment; thus, they do not 

necessitate the preparation of an 

environmental impact statement. In fact, 

as noted in the analysis of section 

771.118 below, certain transit facilities 

qualify for a CE when constructed 

predominantly within a transportation 

right-of-way. In any instance where 

potential unusual circumstances would 

cause such a project not to qualify for 

a CE, it would be reviewed with an EA 

or, if significant impacts are expected, 

an EIS. 

Paragraph (b) is proposed to be 

revised to clarify that in the explanation 

of the list of CEs not normally requiring 

documentation, the reference to 

771.117(c) applies to FHWA CEs and to 

add in a new reference, 771.118(c), to 

the location of the FTA CEs. Further, the 

explanation of CEs that require 

documentation is proposed to be revised 

to clarify that the reference to 

771.117(d) applies to the FHWA CEs 

and to add in a new reference to 

771.118(d) for the FTA CEs. 

Section 771.117 FHWA Categorical 

Exclusions 

The header for section 771.117, is 

proposed to be changed to ‘‘FHWA 

categorical exclusions,’’ because the CEs 

listed in section 771.117 would apply to 

FHWA actions. Conforming 

amendments to clarify that the list 

applies to FHWA are proposed that 

change ‘‘the Administration’’ to ‘‘the 

FHWA’’ in paragraphs (b), (c), and (d). 

Section 771.118 FTA Categorical 

Exclusions 

A new section, 771.118, is proposed 

to be added to 23 CFR that contains CEs 

applicable to FTA actions. The section 

will contain a paragraph (a) that 

describes and defines CE actions; a 

paragraph (b) that defines unusual 

circumstances; and a paragraph (e) that 

addresses the consideration for adding 

new CEs in the future. These three 

paragraphs mimic existing paragraphs 

(a), (b) and (e) at section 771.117. A new 

paragraph (c) will be added that 

describes the proposed FTA CEs. The 

section will also include a paragraph 

(d), which mimics the existing 

paragraph (d) at section 771.117, except 

in that it lists fewer examples in light of 

the separate lists and the more 

expansive list proposed for section 

771.118(c), focusing on those most 

applicable to FTA. The CEs listed in 

paragraphs (c) and (d) of section 771.117 

still may apply to multimodal projects 

that contain FHWA and FTA elements 

(such as the reconstruction of a highway 

lane within existing right-of-way with 

express bus service). FTA will issue 

guidance regarding the use of the new 

CEs for transit projects upon finalization 

of the FTA list at section 771.118(c). 

Per CEQ guidance, the CEs are 

presented as general categories that 

include appropriate limitations and 

provide an informative list of examples. 

The CEs proposed in this NPRM are 

listed below along with a summary of 

how each was substantiated. A 

summary of the substantiations are 

available on the FTA Web site (http:// 

fta.dot.gov/about/12347.html) and in 

the NPRM docket on Regulations.gov. 

The proposed CEs in paragraph (c) are: 

‘‘(1) Acquisition, installation, 

operation, evaluation, and improvement 

of discrete utilities and similar 

appurtenances (existing and new) 

within or adjacent to existing 

transportation right-of-way, such as: 

Utility poles; underground wiring, 

cables, and information systems; and 

power substations and transfer 

stations.’’ This proposed CE, which 

would focus on discrete installation and 

improvements of utilities, would 

expand upon the current CE at 23 CFR 

771.117(c)(2) (‘‘Approval of utility 

installations along or across a 

transportation facility’’). The additional 

activities (i.e., acquisition, operation, 

evaluation, and improvement) are 

consistent with other activities 

categorically excluded under the current 

FTA procedures and are supported by at 

least eight FTA FONSIs and in the 

established CEs of seven other federal 

agencies that conduct actions of a 

similar nature, scope, and intensity. 

FTA considered whether to propose a 

geographic limit on utility-related 

activity, but, based on the substantiating 

record for this CE, proposes that no such 

limit be included. FTA specifically 

seeks comment on this proposal. FTA 

also requests that commenters include 

evidence and demonstrate experience 

with the activity when possible. 

‘‘(2) Acquisition, construction, 

rehabilitation, and improvement or 

limited expansion of stand-alone 

recreation, pedestrian, or bicycle 

facilities, such as: A multiuse pathway, 

lane, trail, or pedestrian bridge; and 

transit plaza amenities.’’ This CE, which 

would focus on the construction and 

improvements related to recreation, 

pedestrian or bicycle facilities, would 

expand upon the current CE at 23 CFR 

771.117(c)(3) (‘‘Construction of bicycle 

and pedestrian lanes, paths, and 

facilities’’). The additional activities 

(i.e., acquisition, rehabilitation, 

improvement, and limited expansion) 

are within the realm of construction 

and, therefore, consistent with the 

current CE. The rationale for the 

proposed CE is supported by at least 

five FTA FONSIs and in the established 

CEs of three federal agencies that 

conduct actions of a similar nature, 

scope, and intensity. FTA considered 

whether to propose physical limitations 

on the activities included in this CE, 

such as restricting relevant activities to 

those within or adjacent to a 

transportation right-of-way or restricting 

by the scale of the activities, but, based 

on the substantiating record for this CE, 

proposes not to include such 

limitations. FTA specifically invites 

comments on this proposal in addition 

to general comments on the proposed 

CE. FTA also requests that commenters 

include evidence and demonstrate 

experience with the activity when 

possible. 

‘‘(3) Limited activities designed to 

mitigate environmental harm that cause 

no harm themselves or to maintain and 

enhance environmental quality and site 

aesthetics, and employ construction best 

management practices, such as: Noise 

mitigation activities; rehabilitation of 

public transportation buildings, 

structures, or facilities including those 

that are listed or eligible for listing on 

the National Register of Historic Places 

when there are no adverse effects under 

the National Historic Preservation Act; 

retrofitting for energy conservation; and 

landscaping or re-vegetation.’’ This CE, 

which would focus on activities 

designed to lessen harm to or enhance 

environmental quality, would 

consolidate and expand upon the 

current CE at 23 CFR 771.117(c)(6) 

(‘‘The installation of noise barriers or 

alterations to existing publicly owned 

buildings to provide for noise 

reduction’’) and (c)(7) (‘‘Landscaping’’). 

Expansion of activities within this 

category (i.e., those designed to lessen 

environmental harm and enhance and 

maintain the natural environment) is 

consistent with other activities 

categorically excluded under current 

procedures, and is supported in fact by 

at least nine FTA FONSIs, and in the 

established CEs of five federal agencies 

that conduct actions of a similar nature, 

scope, and intensity. 

‘‘(4) Planning and administrative 

activities which do not involve or lead 


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directly to construction, such as: 

Training and research; promulgation of 

rules, regulations, directives, or program 

guidance; approval of project concepts; 

and engineering.’’ This CE, which 

would include a variety of internal 

administrative activities that inherently 

have no potential for significant 

environmental impacts, would expand 

modestly on the current CEs at 23 CFR 

771.117(c)(1) (‘‘Activities which do not 

involve or lead directly to construction, 

such as planning and technical studies; 

grants for training and research 

programs, research activities as defined 

in 23 U.S.C. 307; approval of a unified 

work program and any finding required 

in the planning process pursuant to 23 

U.S.C. 134; approval of statewide 

programs under 23 CFR part 630; 

approval of project concepts under 23 

CFR part 476, engineering to define the 

elements of a proposed action or 

alternative so that social, economic, and 

environmental effects can be assessed; 

and Federal-aid system revisions which 

establish classes of highways on the 

Federal-aid highway system’’); 23 CFR 

771.117(c)(16) (‘‘Program 

administration, technical assistance 

activities, and operating assistance to 

transit authorities to continue existing 

service or increase service to meet 

routine changes in demand’’); and 23 

CFR 771.117(c)(20) (‘‘Promulgation of 

rules, regulations, and directives’’). The 

proposed category identifies additional 

activities that are consistent with the 

established CEs of nine Federal agencies 

that conduct actions of a similar nature, 

scope, and intensity. 

‘‘(5) Discrete activities, including 

repairs, designed to promote 

transportation safety, security, 

accessibility and effective 

communication within or adjacent to 

existing right-of-way, such as: The 

deployment of Intelligent 

Transportation Systems and 

components; installation and 

improvement of safety and 

communications equipment, including 

hazard elimination and mitigation 

measures; and retrofitting existing 

transportation vehicles, facilities or 

structures.’’ This CE, which would focus 

on discrete equipment, amenities, 

fittings, and improvements designed 

principally to secure passenger and 

pedestrian safety and convenience, 

would consolidate and expand slightly 

upon the current CEs at 23 CFR 

771.117(c)(8) (‘‘Installation of fencing, 

signs, pavement markings, small 

passenger shelters, traffic signals, and 

railroad warning devices where no 

substantial land acquisition or traffic 

disruption will occur’’); at 23 CFR 

771.117(c)(15) (‘‘Alterations to facilities 

or vehicles in order to make them 

accessible for elderly and handicapped 

persons’’); and at 23 CFR 771.117(c)(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 or to enhance 

security or passenger convenience. 

Examples include, but are not limited 

to, traffic control and detector devices, 

lane management systems, electronic 

payment equipment, automatic vehicle 

locaters, automated passenger counters, 

computer-aided dispatching systems, 

radio communications systems, 

dynamic message signs, and security 

equipment including surveillance and 

detection cameras on roadways and in 

transit facilities and on buses’’). 

Expansion of activities within this 

category (i.e., installation and 

improvement of safety and 

communications equipment) is 

consistent with other activities 

categorically excluded under the current 

procedures, and it is supported with at 

least four FTA FONSIs and in the 

established CEs of seven federal 

agencies that conduct actions of a 

similar nature, scope, and intensity. 

‘‘(6) Acquisition or transfer of an 

interest in real property that is not 

within or adjacent to recognized 

environmentally sensitive areas (e.g., 

wetlands, non-urban parks, wildlife 

management areas) and does not result 

in a substantial change in the functional 

use of the property or in substantial 

displacements, such as scenic 

easements and historic sites for the 

purpose of preserving the site. This CE 

extends only to acquisitions that will 

not limit the evaluation of alternatives.’’ 

The actions contemplated in this 

proposed CE have no potential for 

significant environmental impacts, as 

the scope is limited to potential 

acquisitions and transfers that avoid real 

property within or adjacent to 

environmentally sensitive areas to 

ensure the subsequent use of the 

property would avoid the potential to 

cause harm to the human environment, 

and avoid a substantial change in the 

functional use of the property as a 

change in use could pose potential 

impacts. This CE would expand on the 

current CEs at 23 CFR 771.117(c)(10) 

(‘‘Acquisition of scenic easements’’); 23 

CFR 771.117(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’’); 

and at 23 CFR 771.117(d)(13) 

(‘‘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’’). Expansion of activities 

within this category including the 

acquisition activity, and identifying 

additional examples is consistent with 

other activities categorically excluded 

under the current procedures that are 

supported by at least five FTA FONSIs, 

and in the established CEs of seven 

federal agencies that conduct actions of 

a similar nature, scope, and intensity. 

‘‘(7) Acquisition, rehabilitation and 

maintenance of vehicles or equipment, 

within or accommodated by existing 

facilities, that does not result in a 

change in functional use of the facilities, 

such as: Equipment to be located within 

existing facilities and with no 

substantial off-site impacts; and 

vehicles, including buses, rail cars, 

trolley cars, ferry boats, and people 

movers that can be accommodated by 

existing facilities or by new facilities 

that qualify for categorical exclusion.’’ 

This CE, which would focus on 

acquisition and maintenance of public 

transportation vehicles and 

maintenance equipment to ensure 

passenger and pedestrian safety and to 

improve operations while not creating 

significant off-site impacts, would 

consolidate and expand slightly upon 

the current CEs at 23 CFR 771.117(c)(14) 

(‘‘Bus and rail car rehabilitation’’); 23 

CFR 771.117(c)(17) (‘‘The acquisition or 

lease (a) of vehicles where the vehicles 

can be accommodated by existing 

facilities or by new facilities which 

qualify for a CE; and (b) of existing 

facilities or other equipment’’); and 23 

CFR § 771.117(c)(19) (‘‘Purchase or lease 

and installation of operating or 

maintenance equipment to be located 

within the transit facility where there 

are no substantial off-site impacts’’). 

Expansion of activities within this 

category is consistent with other 

activities categorically excluded under 

the current procedures and is supported 

by at least four FTA FONSIs and in the 

established CEs of nine federal agencies 


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that conduct actions of a similar nature, 

scope, and intensity. 

‘‘(8) Maintenance and minimally 

intrusive rehabilitation and 

reconstruction of facilities that occupy 

substantially the same environmental 

footprint and do not result in a change 

in functional use, such as: 

Improvements to bridges, tunnels, 

storage yards, buildings, and terminals; 

and construction of platform extensions 

and passing track.’’ This CE, which 

would focus on maintenance, 

rehabilitation, and reconstruction of 

facilities ensuring passenger safety and 

convenience while improving 

operations, would consolidate and 

expand slightly upon the current CEs at 

23 CFR 771.117(c)(18) (‘‘Routine 

maintenance and rehabilitation (a) of 

buses and rail cars; (b) of existing 

transportation facilities, such as 

pavement; bridges, terminals, storage 

yards and buildings, including ferry 

facilities, where there are no substantial 

changes in the footprint of the facilities 

or other disruptions; and (c) of track and 

rail-bed maintenance and improvements 

when carried out within the existing 

right-of-way’’); CFR 771.117(d)(3) 

(‘‘Bridge rehabilitation, reconstruction 

or replacement or the construction of 

grade separation to replace existing atgrade railroad crossings’’); and CFR 

771.117(d)(9) (‘‘Rehabilitation or 

reconstruction of existing rail and bus 

buildings and ancillary facilities where 

only minor amounts of additional land 

are required and there is not a 

substantial increase in the number of 

users’’). Expansion of activities within 

this category (rehabilitation of tracks 

and improvements to bridges and 

tunnels) is consistent with other 

activities categorically excluded under 

the current procedures and is supported 

by at least six FTA FONSIs and in the 

established CEs of seven federal 

agencies that conduct actions of a 

similar nature, scope, and intensity. The 

term ‘‘footprint’’ refers to the physical 

boundary of the referenced facility. 

‘‘(9) Assembly or construction of 

facilities that is consistent with existing 

land use and zoning requirements 

(including floodplain regulations), is 

minimally intrusive, and requires no 

special permits, permissions, and uses a 

minimal amount of undisturbed land, 

such as: Buildings and associated 

structures; bus transfers, busways and 

streetcar lines within existing 

transportation right-of-way; and parking 

facilities’’ This proposed CE, would 

focus on construction of facilities 

consistent with existing land use and 

zoning requirements, and would 

consolidate and expand slightly upon 

the current CEs at 23 CFR 771.117(d)(4) 

(‘‘Transportation corridor fringe parking 

facilities’’); 23 CFR 771.117(d)(8) 

(‘‘Construction of new bus storage and 

maintenance facilities in areas used 

predominantly for industrial or 

transportation purposes where such 

construction is not inconsistent with 

existing zoning and located on or near 

a street with adequate capacity to 

handle anticipated bus and support 

vehicle traffic’’); 23 CFR 771.117(d)(10) 

(‘‘Construction of bus transfer facilities 

(an open area consisting of passenger 

shelters, boarding areas, kiosks and 

related street improvements) when 

located in a commercial area or other 

high activity center in which there is 

adequate street capacity for projected 

bus traffic’’); and 23 CFR 771.117(d)(11) 

(‘‘Construction of rail storage and 

maintenance facilities in areas used 

predominantly for industrial or 

transportation purposes where such 

construction is not inconsistent with 

existing zoning and where there is no 

significant noise impact on the 

surrounding community’’). Expansion of 

activities within this category (busways 

and streetcar lines within existing 

transportation right-of-way, including 

new lanes for buses, and parking 

facilities) is consistent with other 

activities categorically excluded under 

the current procedures and is supported 

by at least 39 FTA FONSIs and in the 

established CEs of three federal agencies 

that conduct actions of a similar nature, 

scope, and intensity. FTA considered 

whether to propose additional physical 

limitations on the activities included in 

this CE, but, based on the substantiating 

record for this CE, proposes not to 

include such limitations. FTA 

specifically invites comments on this 

proposal in addition to general 

comments on the proposed CE. FTA 

also requests that commenters include 

evidence and demonstrate experience 

with the activity when possible. 

‘‘(10) Development activities for 

transit and non-transit purposes, located 

on, above, or adjacent to existing transit 

facilities, that are not part of a larger 

transportation project and do not 

substantially enlarge such facilities, 

such as: Police facilities, daycare 

facilities, public service facilities, and 

amenities. This CE would apply to those 

activities taking place within or at a 

public transportation facility that do not 

substantially expand the footprint, and 

thereby do not impact the natural or 

human environments. Joint 

development activities may increase 

user interactions at the transit facility, 

which could increase the productivity 

of the public transportation facility (e.g., 

economic development activities). 

These related but separate opportunities 

may increase public safety (e.g., police 

facilities), public transportation-user 

convenience (e.g., daycare facilities), or 

consolidate government activities (e.g., 

public service facilities). This proposed 

CE is supported by at least nine FTA 

FONSIs, and in an established CE of the 

U.S. Army. FTA considered whether to 

propose additional physical limitations 

on the activities included in this CE, 

but, based on the substantiating record 

for this CE, proposes not to include such 

limitations. FTA specifically invites 

comments on this proposal in addition 

to general comments on the proposed 

CE. FTA also requests that commenters 

include evidence and demonstrate 

experience with the activity when 

possible. 

Section 771.119 Environmental 

Assessments 

A new paragraph (k) is proposed 

regarding contracts with environmental 

contractors or consultants. FTA 

proposes that contract elements for the 

preparation of EA documents not be 

finalized until the process for informal 

scoping of the EA has been completed 

and the scope of the EA has been 

approved by FTA after consulting with 

the grant applicant. This change is 

intended to discourage the execution of 

contract elements for preparation of EA 

documents that are more extensive and 

costly to taxpayers than necessary, or 

take longer to prepare than necessary. 

Section 771.123 Draft Environmental 

Impact Statements 

Language is proposed for paragraph 

(d) to prevent grant applicants from 

executing contracts for preparation of 

EISs that are more extensive and costly 

to taxpayers than necessary, or take 

longer to prepare than necessary. FTA 

proposes that contract elements for the 

preparation of EIS documents not be 

finalized until formal scoping has been 

completed and the scope of the EIS has 

been approved by FTA after consulting 

with the grant applicant. 

Paragraph (j) is proposed to be deleted 

as unnecessary. Even without this 

regulatory provision, FTA will ensure 

that every FTA draft EIS evaluates a 

proposed action (also called a locally 

preferred alternative) in sufficient 

detail, and that a planning-level 

Alternatives Analysis that lacks such 

detail is used as ‘‘early scoping’’ of the 

NEPA process and not as a draft EIS. As 

noted above, a planning-level 

Alternatives Analysis is currently 

required by 49 U.S.C. 5309 for New 

Starts and Small Starts projects. 


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Section 771.133 Compliance With 

Other Requirements 

One minor change is proposed for this 

paragraph: The word 

‘‘Administration’s’’ would be replaced 

with ‘‘FHWA’s’’ in the last sentence, 

given that the requirement referenced 

applies to FHWA, and not to FTA. 

FTA’s approval of an environmental 

document constitutes its finding of 

compliance with the report 

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

FTA proposes to add language specific 

to FTA’s requirement in this section. 

Regulatory Analysis and 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, 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 Orders 13563 and 12866 and 

DOT Regulatory Policies and Procedures 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. FTA and 

the FHWA have determined that this 

action is 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). 

Therefore, this proposed rule was 

submitted to the Office of Management 

and Budget for interagency review. 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. FTA does 

anticipate that the changes in this 

proposal would enable projects to move 

more expeditiously through the federal 

review process and would reduce the 

preparation of extraneous 

environmental documentation and 

analysis not needed for compliance with 

NEPA and for ensuring that projects are 

built in an environmentally responsible 

manner. Under the existing regulations, 

approximately 90 percent of FTA’s 

actions are CEs (specifically, sections 

771.117(c) and (d)). FTA anticipates the 

percentage will increase especially 

where new categorically excluded 

actions are included (e.g., bus rapid 

transit projects within existing 

transportation right-of-way). FTA is not 

able to quantify the economic effects of 

these changes because the types of 

projects that will be proposed for FTA 

funding and their potential impacts are 

unknown at this time. But FTA requests 

comment, including data and 

information on the experiences of 

project sponsors, on the likely effects of 

the changes being proposed. 

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. We do 

not believe that this proposed rule 

would have a significant economic 

impact on entities of any size, but 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. 

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 FTA and the FHWA have 

determined that this proposed action 

would not have sufficient federalism 

implications to warrant the preparation 

of a federalism assessment. FTA and the 

FHWA 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. 

National Environmental Policy Act 

This proposed action would not have 

any effect on the quality of the 

environment under the National 

Environmental Policy Act of 1969 

(NEPA). The Council on Environmental 

Quality regulations do not direct 

agencies to prepare a NEPA analysis or 

document before establishing Agency 

procedures (such as this regulation) that 

supplement the CEQ regulations for 

implementing NEPA. Agencies are 

required to adopt NEPA procedures that 

establish specific criteria for, and 

identification of, three classes of 

actions: those that normally require 

preparation of an environmental impact 

statement; those that normally require 

preparation of an environmental 

assessment; and those that are 

categorically excluded from further 

NEPA review (40 CFR 1507.3(b)). CEs 

are one part of those agency procedures, 

and therefore establishing CEs does not 

require preparation of a NEPA analysis 

or document. Agency NEPA procedures 

are procedural guidance to assist 

agencies in the fulfillment of agency 


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1FHWA and FTA have supplementary guidance 

on environmental documents and procedures for 

their programs. This guidance includes, but is not 

limited to: FHWA Technical Advisory T6640.8A, 

October 30, 1987; ‘‘SAFETEA–LU Environmental 

Review Process: Final Guidance,’’ November 15, 

2006; Appendix A of 23 CFR part 450, titled 

‘‘Linking the Transportation Planning and NEPA 

Processes’’; and ‘‘Transit Noise and Vibration 

Impact Assessment,’’ May 2006. The FHWA and 

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. 

responsibilities under NEPA, but are not 

the agency’s final determination of what 

level of NEPA analysis is required for a 

particular proposed action. The 

requirements for establishing agency 

NEPA procedures are set forth at 40 CFR 

1505.1 and 1507.3. The determination 

that establishing CEs does not require 

NEPA analysis and documentation has 

been upheld in Heartwood, Inc. v. U.S. 

Forest Service, 73 F. Supp. 2d 962, 972– 

73 (S.D. Ill. 1999), aff’d, 230 F.3d 947, 

954–55 (7th Cir. 2000). Finally, the 

proposed action is intended to 

streamline the environmental process 

for reviewing proposed transit projects, 

including projects that will be 

environmentally beneficial. 

Statutory/Legal Authority for This 

Rulemaking 

This rulemaking is issued under 

authority of 42 U.S.C. 4321 et seq.; 23 

U.S.C. 139; 40 CFR parts 1500–1508; 

and 49 CFR 1.48(b) & 1.51. 

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 or revise any existing 

information collections. 

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). 

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, FTA and 

FHWA will evaluate any regulatory 

action that might be proposed in 

subsequent stages of the proceeding to 

assess the effects 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 affect 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 in 23 CFR Part 771 

Environmental impact statements, 

Environmental protection, Grant 

programs—transportation, Highways 

and roads, Historic preservation, Public 

lands, Recreation areas, Reporting and 

recordkeeping requirements. 

For the reasons stated in the 

preamble, the Federal Transit 

Administration and the Federal 

Highway Administration propose to 

amend 23 CFR part 771 as follows: 

PART 771—ENVIRONMENTAL IMPACT 

AND RELATED PROCEDURES 

1. The authority citation for part 771 

continues to read as follows: 

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, sections 

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

CFR 1.48(b) and 1.51. 

2. Amend § 771.105 by revising 

footnote 1 of paragraph (a) to read as 

follows: 

§ 771.105 Policy. 

* * * * * 

(a) * * * 1

§ 771.109 [Amended] 

3. Amend § 771.109 in paragraph (b) 

by replacing the misspelled word 

‘‘contruction’’ with the word 

‘‘construction’’. 

4. Amend § 771.111 by revising 

paragraph (i) to read as follows: 

§ 771.111 Early coordination, public 

involvement, and project development. 

* * * * * 

(i) Applicants for capital assistance in 

the FTA program: 

(1) Achieve public participation on 

proposed projects through activities that 

engage the public, including public 

hearings, town meetings, and charettes, 

and seeking input from the public 

through the scoping process for 

environmental review documents. 

Project milestones may be announced to 

the public using electronic or paper 

media (e.g., newsletters, note cards, or 

emails) pursuant to 40 CFR 1506.6. 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 


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adequate opportunity for public review 

and comment must be provided, 

pursuant to 49 U.S.C. 5323(b). 

(2) May participate in early scoping as 

long as enough project information is 

known so the public and other agencies 

can participate effectively. Early scoping 

constitutes initiation of NEPA scoping 

while local planning efforts to aid in 

establishing the purpose and need and 

in evaluating alternatives and impacts 

are underway. Notice of early scoping 

must be made to the public and other 

agencies. If early scoping is the start of 

the NEPA process, the early scoping 

notice must include language to that 

effect. After development of the 

proposed action at the conclusion of 

early scoping, FTA will publish the 

Notice of Intent if it is determined at 

that time that the proposed action 

requires an EIS. The Notice of Intent 

will establish a 30-day period for 

comments on the purpose and need and 

the alternatives. 

(3) Are encouraged to post and 

distribute materials related to the 

environmental review process, 

including but not limited to, NEPA 

documents, public meeting 

announcements, and minutes, through 

publicly-accessible electronic means, 

including project Web sites. Applicants 

are encouraged to keep these materials 

available to the public electronically 

until the project is constructed and open 

for operations. 

(4) Are encouraged to post all 

environmental impact statements and 

records of decision on a project Web site 

until the project is constructed and open 

for operation. 

5. Amend § 771.113 by revising 

paragraph (d) to read as follows: 

§ 771.113 Timing of Administration 

activities. 

* * * * * 

(d) * * * 

(1) Exceptions for hardship and 

protective acquisitions of real property 

are addressed in paragraph (d)(12) of 

§ 771.117 for FHWA and paragraphs 

(c)(6) and (d)(3) of § 771.118 for FTA. 

(2) Paragraph (d)(4) of § 771.118 

contains an exception for the 

acquisition of pre-existing railroad rightof-way for future transit use in 

accordance with 49 U.S.C. 5324(c). 

* * * * * 

6. Amend § 771.115 by revising 

paragraph (a)(3) and paragraph (b) to 

read as follows: 

§ 771.115 Classes of actions. 

* * * * * 

(a) * * * 

* * * * * 

(3) Construction or extension of a 

fixed transit facility (e.g., rapid rail, 

light rail, commuter rail, bus rapid 

transit) that will not be located within 

an existing transportation right-of-way 

* * * * * 

(b) Class II (CEs). Actions that do not 

individually or cumulatively have a 

significant environmental effect are 

excluded from the requirement to 

prepare an EA or EIS. A specific list of 

CEs normally not requiring NEPA 

documentation is set forth in 

§ 771.117(c) for FHWA or pursuant to 

§ 771.118(c) for FTA. When 

appropriately documented, additional 

projects may also qualify as CEs 

pursuant to § 771.117(d) for FHWA or 

pursuant to § 771.118(d) for FTA. 

7. Amend § 771.117 by revising the 

heading of the section and by revising 

the first sentences of paragraphs (b), (c), 

and (d) to read as follows: 

§ 771.117 FHWA Categorical Exclusions. 

* * * * * 

(b) Any action which normally would 

be classified as a CE but could involve 

unusual circumstances will require the 

FHWA, in cooperation with the 

applicant, to conduct appropriate 

environmental studies to determine if 

the CE classification is proper. 

* * * * * 

(c) The following actions meet the 

criteria for CEs in the CEQ regulation 

(section 1508.4) and § 771.117(a) of this 

regulation and normally do not require 

any further NEPA approvals by the 

FHWA. 

* * * * * 

(d) Additional actions which meet the 

criteria for a CE in the CEQ regulations 

(40 CFR 1508.4) and paragraph (a) of 

this section may be designated as CEs 

only after FHWA approval. 

* * * * * 

8. Add § 771.118 to read as follows: 

§ 771.118 FTA Categorical Exclusions. 

(a) Categorical exclusions (CEs) are 

actions which meet the definition 

contained in 40 CFR 1508.4, and, based 

on past experience with similar actions; 

do not involve significant 

environmental impacts. They are 

actions which: do not induce significant 

impacts to planned growth or land use 

for the area; do not require the 

relocation of significant numbers of 

people; do not have a significant impact 

on any natural, cultural, recreational, 

historic or other resource; do not 

involve significant air, noise, or water 

quality impacts; do not have significant 

impacts on travel patterns; or do not 

otherwise, either individually or 

cumulatively, have any significant 

environmental impacts. 

(b) Any action which normally would 

be classified as a CE but could involve 

unusual circumstances will require the 

FTA, in cooperation with the applicant, 

to conduct appropriate environmental 

studies to determine if the CE 

classification is proper. Such unusual 

circumstances include: 

(1) Significant environmental impacts; 

(2) Substantial controversy on 

environmental grounds; 

(3) Significant impact on properties 

protected by section 4(f) of the DOT Act 

or section 106 of the National Historic 

Preservation Act; or 

(4) Inconsistencies with any Federal, 

State, or local law, requirement or 

administrative determination relating to 

the environmental aspects of the action. 

(c) The following FTA CEs meet the 

criteria for CEs in the CEQ regulation 

(section 1508.4) and § 771.118(a) of this 

regulation and normally do not require 

any further NEPA approvals by FTA. 

(1) Acquisition, installation, 

operation, evaluation, and improvement 

of discrete utilities and similar 

appurtenances (existing and new) 

within or adjacent to existing 

transportation right-of-way, such as 

utility poles; underground wiring, 

cables, and information systems; and 

power substations and transfer stations. 

(2) Acquisition, construction, 

rehabilitation, and improvement or 

limited expansion of stand-alone 

recreation, pedestrian, or bicycle 

facilities, such as a multiuse pathway, 

lane, trail, or pedestrian bridge; and 

transit plaza amenities. 

(3) Limited activities designed to 

mitigate environmental harm that cause 

no harm themselves or to maintain and 

enhance environmental quality and site 

aesthetics, and employ construction best 

management practices, such as: noise 

mitigation activities; rehabilitation of 

public transportation buildings, 

structures, or facilities including those 

that are listed or eligible for listing on 

the National Register of Historic Places 

when there are no adverse effects under 

the National Historic Preservation Act; 

retrofitting for energy conservation; and 

landscaping or re-vegetation. 

(4) Planning and administrative 

activities which do not involve or lead 

directly to construction, such as 

training, technical assistance and 

research; promulgation of rules, 

regulations, directives, or program 

guidance; approval of project concepts; 

and engineering. 

(5) Discrete activities, including 

repairs, designed to promote 

transportation safety, security, 

accessibility and effective 

communication within or adjacent to 

existing right-of-way, such as the 


tkelley on DSK3SPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Proposed Rules 15319 

deployment of Intelligent 

Transportation Systems and 

components; installation and 

improvement of safety and 

communications equipment, including 

hazard elimination and mitigation; and 

retrofitting existing transportation 

vehicles, facilities or structures. 

(6) Acquisition or transfer of an 

interest in real property that is not 

within or adjacent to recognized 

environmentally sensitive areas (e.g., 

wetlands, non-urban parks, wildlife 

management areas) and does not result 

in a substantial change in the functional 

use of the property or in substantial 

displacements, such as scenic 

easements and historic sites for the 

purpose of preserving the site. This CE 

extends only to acquisitions that will 

not limit the evaluation of alternatives. 

(7) Acquisition, rehabilitation and 

maintenance of vehicles or equipment, 

within or accommodated by existing 

facilities, that does not result in a 

change in functional use of the facilities, 

such as equipment to be located within 

existing facilities and with no 

substantial off-site impacts; and 

vehicles, including buses, rail cars, 

trolley cars, ferry boats and people 

movers that can be accommodated by 

existing facilities or by new facilities 

that qualify for categorical exclusion. 

(8) Maintenance and minimally 

intrusive rehabilitation and 

reconstruction of facilities that occupy 

substantially the same environmental 

footprint and do not result in a change 

in functional use, such as improvements 

to bridges, tunnels, storage yards, 

buildings, and terminals; and 

construction of platform extensions and 

passing track. 

(9) Assembly or construction of 

facilities that is consistent with existing 

land use and zoning requirements 

(including floodplain regulations), is 

minimally intrusive, and requires no 

special permits, permissions, and uses a 

minimal amount of undisturbed land, 

such as buildings and associated 

structures; bus transfers, busways and 

streetcar lines within existing 

transportation right-of-way; and parking 

facilities. 

(10) Development activities for transit 

and non-transit purposes, located on, 

above, or adjacent to existing transit 

facilities, that are not part of a larger 

transportation project and do not 

substantially enlarge such facilities, 

such as police facilities, daycare 

facilities, public service facilities, and 

amenities. 

(d) Additional actions which meet the 

criteria for a CE in the CEQ regulations 

(40 CFR 1508.4) and paragraph (a) of 

this section may be designated as CEs 

only after FTA approval. The applicant 

shall submit documentation which 

demonstrates that the specific 

conditions or criteria for these CEs are 

satisfied and that significant 

environmental effects will not result. 

Examples of such actions include but 

are not limited to: 

(1) Modernization of a highway by 

resurfacing, restoration, rehabilitation, 

reconstruction, adding shoulders, or 

adding auxiliary lanes (e.g., parking, 

weaving, turning, climbing). 

(2) Bridge rehabilitation, 

reconstruction or replacement or the 

construction of grade separation to 

replace existing at-grade railroad 

crossings. 

(3) 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 may be needed for a 

proposed transportation corridor or site. 

Documentation must clearly 

demonstrate that development of the 

land would preclude future 

transportation use and that such 

development is imminent. Advance 

acquisition is not permitted for the sole 

purpose of reducing the cost of property 

for a proposed project. 

(4) 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. 

(e) Where a pattern emerges of 

granting CE status for a particular type 

of action, the Administration will 

initiate rulemaking proposing to add 

this type of action to the appropriate list 

of categorical exclusions in this section. 

9. Amend § 771.119 by adding a new 

paragraph (k) to read as follows: 

§ 771.119 Environmental assessments. 

* * * * * 

(k) For FTA actions: If the applicant 

selects a contractor to prepare the EA, 

the contractor’s final scope of work for 

the preparation of the EA will not be 

determined until the informal scoping 

process is completed, and the scope of 

study has been approved by FTA in 

consultation with the applicant. 

10. Amend § 771.123 by deleting 

paragraph (j) and by adding the 

following sentence at the end of 

paragraph (d) to read as follows: 

§ 771.123 Draft environmental impact 

statements. 

* * * * * 

(d) * * *. For FTA actions, the 

contractor’s final scope of work for the 

preparation of the EIS will not be 

determined until scoping has been 

completed, and the scope of study has 

been approved by FTA in consultation 

with the applicant. 

§ 771.133 [Amended] 

11. Amend § 771.133 in its final 

sentence by replacing the word 

‘‘Administration’s’’ with the word 

‘‘FHWA’s’’ and by adding the following 

text at the end of the paragraph: ‘‘FTA’s 

approval of an environmental document 

constitutes its finding of compliance 

with the requirements of 49 U.S.C. 

5323(b) and 49 U.S.C. 5324(b).’’ 

Issued on: March 7, 2012. 

Peter Rogoff, 

Administrator, Federal Transit 

Administration. 

Victor M. Mendez, 

Administrator, Federal Highway 

Administrator. 

[FR Doc. 2012–6327 Filed 3–14–12; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[REG–130777–11] 

RIN 1545–BK45 

Treasury Inflation-Protected Securities 

Issued at a Premium; Hearing 

Cancellation 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Cancellation of notice of public 

hearing on proposed rulemaking. 

SUMMARY: This document cancels a 

public hearing on proposed regulations 


tkelley on DSK3SPTVN1PROD with PROPOSALS-1