12518 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

23 CFR Part 771 

Federal Transit Administration 

49 CFR Part 622 

[Docket No. FTA–2006–26604] 

RIN 2132–AA87 

Environmental Impact and Related 

Procedures 

AGENCIES: Federal Highway 

Administration (FHWA), Federal 

Transit Administration (FTA), DOT. 

ACTION: Final rule. 

SUMMARY: The Federal Highway 

Administration (FHWA) and Federal 

Transit Administration (FTA) issue this 

final rule that modifies our regulations 

to make certain changes mandated by 

the Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA–LU). 

SAFETEA–LU prescribes additional 

requirements for environmental review 

and project decisionmaking that are not 

appropriately reflected in the existing 

FHWA–FTA joint National 

Environmental Policy Act (NEPA) 

procedures. Additionally, this final rule 

creates certain new categorical 

exclusions (CE) allowing proposed 

actions to proceed without an 

environmental assessment (EA) or 

environmental impact statement (EIS), 

and makes 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. 

DATES: Effective Date: April 23, 2009. 

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. For FTA: Joseph Ossi, 

Office of Planning and Environment 

(TPE), (202) 366–1613, or Christopher 

Van Wyk, Office of Chief Counsel, (202) 

366–1733. Both the FHWA and FTA are 

located at 1200 New Jersey Avenue, SE., 

Washington, DC 20590. Office hours are 

from 7:45 a.m. to 4:15 p.m., EST, for the 

FHWA, and 9 a.m. to 5:30 p.m., EST, 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 new requirements that 

the FHWA and FTA must meet in 

complying with NEPA (42 U.S.C. 4321– 

4347). In addition to these new 

requirements, section 6010 of 

SAFETEA–LU requires the FHWA and 

FTA to initiate rulemaking to establish, 

to the extent appropriate, CEs for 

activities that support the deployment 

of intelligent transportation 

infrastructure and systems. 

The FHWA and FTA published a 

notice of proposed rulemaking (NPRM) 

on August 7, 2007, at 72 FR 44038. The 

NPRM requested comments on certain 

changes proposed to codify changes 

mandated by 23 U.S.C. 139 in the joint 

NEPA procedures and to eliminate 

confusion or inconsistencies that could 

otherwise result. The NPRM also 

proposed several new CEs for projects 

that meet the criteria for categorical 

exclusion from NEPA review. Interested 

parties were invited to submit 

comments. The FHWA and FTA also 

invited interested parties 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. That input is being used to 

develop proposed CEs that will be 

published for public review and 

comment. The NPRM also proposed 

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. 

Profile of Respondents 

The docket received a total of 15 

responses to the NPRM. Out of the 15 

responses, 5 were submitted by State 

Departments of Transportation (DOT), 6 

by transit agencies, 3 by trade 

associations, and 1 by a metropolitan 

planning organization. 

General Comments 

Two commenters suggested that the 

FHWA and FTA replace the terms 

‘‘Urban Mass Transportation 

Administration’’ and ‘‘UMTA’’ with the 

terms ‘‘Federal Transit Administration’’ 

and ‘‘FTA’’ throughout the entire rule, 

including the sections where no 

revisions were proposed. By final rule 

published on May 9, 2005, the FHWA 

and FTA already corrected the name of 

the FTA from its former name, the 

Urban Mass Transportation 

Administration (UMTA), in 23 CFR part 

771 and 49 CFR part 622. See, 

Environmental Impact and Related 

Procedures, 70 FR 24468 (May 9, 2005) 

(codified at 23 CFR part 771 and 49 CFR 

part 622). The current Code of Federal 

Regulations and the Federal Register are 

available online from GPO Access, a 

service of the U.S. Government Printing 

Office, at http://www.gpoaccess.gov/ 

index.html. 

Numerous commenters expressed 

general support for the NPRM, although 

one commenter expressed concern that 

a substantial rewrite of the NEPA 

regulation may be delayed due to this 

rulemaking, which has a more limited 

scope. Along those same lines, two 

commenters suggested that the FHWA 

and FTA incorporate all mandatory 

elements of the new review process 

under 23 U.S.C. 139, but another 

commenter disagreed and supported the 

decision not to incorporate all elements 

as part of this rulemaking. Finally, one 

commenter suggested that this 

rulemaking is unnecessary, and that, 

when the FHWA and FTA decide to 

propose more significant revisions to 23 

CFR part 771, the focus be on 

eliminating regulation and substituting 

guidance in its place. The commenter 

also suggested that inconsistencies 

between 23 U.S.C. 139 and 23 CFR part 

771 would best be remedied by 

eliminating the regulation. 

The FHWA and FTA note the positive 

comments received and agree with the 

other commenters that a more 

substantial revision to the NEPA 

regulation is desirable. A more limited 

rulemaking was first necessary to avoid 

extending any confusion that would 

arise from conflicts between the NEPA 

regulation and the new requirements of 

23 U.S.C. 139. The FHWA and FTA also 

believe that eliminating 23 CFR part 771 

would take away the regulatory basis for 

many of the provisions that both 

agencies use as part of the NEPA 

process. Substituting guidance in place 

of these regulations would eliminate a 

major factor in providing the needed 

consistency among FHWA and FTA 

field locations and among applicants. 

Further, the FHWA and FTA would no 

longer have the benefit of NEPA 

provisions with the force of law if 

guidance were substituted. This would 

likely hamper efforts to defend 

environmental litigation claims. 

Note that the FHWA and FTA made 

one change with respect to the phrase 

‘‘environmental document,’’ which was 

used in the NPRM but replaced with 

‘‘environmental review document(s)’’ in 

the preamble discussion and regulatory 

text of this final rule. The FHWA and 

FTA use ‘‘environmental review 

document(s)’’ to include documents 

such as Section 4(f) evaluations and 

other documents that would not be 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12519 

1Section 774.14 of this final rule defines 

‘‘Administration’’ as ‘‘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’’. All references to the ‘‘Administration’’ in the 

preamble to this final rule are consistent with this 

definition. 

2The final guidance is available at http:// 

www.fhwa.dot.gov or in hard copy upon request. 

covered by the definition of 

‘‘environmental document’’ in the 

Council on Environmental Quality 

(CEQ) NEPA regulations at 40 CFR 

1508.10. In two places in the existing 

regulation, the term ‘‘NEPA document’’ 

was replaced with ‘‘environmental 

review document’’ for consistency with 

the other references. 

Section-by-Section Analysis of Specific 

Comments 

In this preamble, all references to the 

provisions of 23 CFR part 771 refer to 

the final rule as presented herein, unless 

this notice specifically indicates 

otherwise. No comments were received 

with respect to 23 CFR 771.101, 

771.105, 771.131, and 771.133. The 

FHWA and FTA have previously 

removed section 771.135 through the 

issuance of a final rule on March 12, 

2008, creating a new 23 CFR part 774 

that deals with Section 4(f) matters. 

Section 771.107 Definitions 

Several commenters suggested that 

the terms ‘‘participating agency,’’ 

‘‘project sponsor,’’ and ‘‘cooperating 

agency’’ be defined in part 771. They 

argue that the terms are used throughout 

part 771, and a person should not have 

to go to SAFETEA–LU or elsewhere to 

look up the definitions. The FHWA and 

FTA agree that ‘‘participating agency’’ 

and ‘‘project sponsor’’ should be 

defined and have provided the 

definitions. However, ‘‘cooperating 

agency’’ is defined in the CEQ NEPA 

regulations at 40 CFR 1508.5 and 

1501.6. Because part 771 is 

supplemental to the CEQ regulation and 

the FHWA and FTA expect the two 

regulations to be used together, the 

FHWA and FTA have not repeated the 

definition of ‘‘cooperating agency’’ in 

part 771. 

One commenter asserted that the 

stipulation that a lead agency be a direct 

recipient of Federal funds originated in 

guidance, not legislation. The 

commenter specifically notes that 

FHWA guidance, rather than legislation, 

requires direct recipients, not subrecipients, be joint lead agencies with 

the Administration.1 The FHWA 

believes that its interpretation of the 

intent of the lead agency provision in 23 

U.S.C. 139 is appropriate in light of the 

need to give effect to other statutes, 

regulations, and policies applicable to 

the Federal-aid highway program. 

One commenter expressed concern 

regarding the definition of 

‘‘Administration.’’ The concern is that, 

if FTA were to assign responsibility for 

CE determinations to a State in 

accordance with SAFETEA–LU section 

6004 (codified at 23 U.S.C. 326), then a 

transit agency in that State would be 

forced to obtain project approvals not 

from FTA but from a State agency, 

probably the State DOT, that may be 

unfamiliar with the transit agency’s 

programs. FTA agrees and will continue 

to provide CE determinations for any 

transit agency that prefers to continue 

working with FTA. FTA will provide 

affected transit agencies an opportunity 

to comment on this issue during the 

development of any section 6004 

Memorandum of Understanding (MOU) 

to which FTA is party. If FTA were to 

sign a section 6004 MOU, that MOU 

would explicitly exclude the projects of 

any transit agency that prefers to work 

with FTA. However, the State DOT is 

the grant recipient for several FTA 

programs, the largest of which is the 

Non-Urbanized Area Formula Program, 

and these State-administered transit 

programs would be the primary 

candidates for assignment of CE 

approvals by FTA to the State. The 

definition of ‘‘Administration’’ is 

consistent with FTA’s position on its 

assignment of CE responsibilities to 

States, as outlined above. Section 8 of 

the FHWA’s ‘‘Questions and Answers 

on the Implementation of SAFETEA–LU 

Section 6004 (State Assumption of 

Responsibility for Categorical 

Exclusions),’’ which is located at 

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

6004qa.htm, addresses transit-related 

considerations in more detail. 

The regulation refers to ‘‘federallyrecognized Indian tribal governmental 

units’’ in paragraphs (f), (h), and (i) of 

section 771.107, and in paragraph (c)(3) 

of section 771.109. This terminology is 

being used because it is consistent with 

the definition of ‘‘agency’’ in 23 U.S.C. 

139(a)(1). The change is intended to 

provide internal consistency within part 

771 in the references to Native 

American tribes and consistency 

between part 771 and 23 U.S.C. 139. It 

is not intended to differentiate the 

references to Native American tribes in 

part 771 from other references to Native 

American tribes in other regulations or 

executive orders. 

Section 771.109 Applicability and 

Responsibilities 

Several commenters stated that when 

a State DOT passes FHWA funds 

through to a turnpike authority or to a 

local or tribal governmental unit, the 

sub-recipient of the FHWA funds 

should be the joint lead agency with the 

FHWA and should be responsible for, 

among other things, the environmental 

review documents and mitigation 

commitments. As explained above, the 

FHWA and FTA believe that it is 

appropriate to require the direct 

recipients of Federal funds to be 

responsible for adherence to Federal 

requirements. For the FHWA, the direct 

recipient typically is the State DOT. 

This interpretation is consistent with 

FHWA statutes, regulations, and policy. 

The local or tribal governmental unit or 

turnpike authority may also be a joint 

lead agency, but is not required to be. 

The FHWA and FTA have issued 

‘‘SAFETEA–LU Environmental Review 

Process: Final Guidance,’’ November 15, 

2006, which discusses the provisions 

regarding lead agencies in greater 

detail.2 The FHWA expects the role of 

the State DOT, as a funding agency, to 

be similar to the oversight role played 

by the FHWA. The State DOT would be 

responsible for the content of the 

environmental review documents and 

for fulfilling mitigation commitments in 

the same way that the FHWA is 

responsible, but the State DOT may not 

have the same day-to-day role that it has 

when the project is one that the State 

DOT has planned and is developing. 

One commenter asserted that the 

FHWA and FTA should define ‘‘lead 

agency’’ so that the lead agency 

maintains maximum control over 

participating and cooperating agencies. 

The commenter said that the lead 

agency should have the authority to set 

deadlines and schedules and to decide 

which agencies to include in the review 

process. The FHWA and FTA have not 

changed the regulatory language in 

response to this comment. The lead 

agencies have the authority to set 

schedules and deadlines in accordance 

with 23 U.S.C. 139 and other applicable 

laws. When 23 U.S.C. 139 applies, the 

law clearly requires that all agencies 

with an interest be invited to 

participate. However, the lead agencies 

are responsible for the coordination 

plan, which can specify the nature and 

timing of the interaction with the 

participating agencies (including any 

cooperating agencies) and can provide 

the vehicle by which the lead agencies 

exercise control over the interaction 

with other agencies. As the coordination 

plan is being developed, the lead 

agencies should consult with the 

participating agencies on the 

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12520 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

identification of milestones in the NEPA 

process at which agency interaction 

would occur, and on the nature of that 

interaction. Such consultation is 

appropriate because key elements of the 

coordination plan may set expectations 

that require a commitment of resources 

by the participating agencies. The 

previously referenced FHWA and FTA 

guidance, ‘‘SAFETEA–LU 

Environmental Review Process: Final 

Guidance,’’ November 15, 2006, 

discusses participating agencies and 

coordination plans in greater detail. 

Section 771.111 Early Coordination, 

Public Involvement, and Project 

Development 

One commenter pointed out that the 

NPRM would give two sections of the 

regulation the same name. Our intent 

was not to change any of the existing 

section headings. The error has been 

corrected in the final rule. 

Several commenters pointed out that 

the regulatory provisions on linking the 

transportation planning and NEPA 

processes that appear in 23 CFR 450.212 

and 450.318 apply as much to these 

environmental impact procedures in 

part 771 as to the planning procedures 

in 23 CFR part 450. These commenters 

suggested that section 771.111 directly 

address the use of planning information 

and results in environmental review 

documents. The FHWA and FTA 

decline to reiterate the provisions of 

sections 450.212 and 450.318 in this 

rule. Not only would such reiteration be 

redundant, but it would require the 

insertion of major, new regulatory text 

that has not been subjected to review 

and comment. The FHWA and FTA 

have added in paragraph (a)(2) of 

section 771.111 a more explicit 

reference to the relevant sections of the 

planning regulations. A reference has 

also been added to paragraph (b) of 

section 771.123. 

One commenter noted that sections 

771.109 and 771.111 appear to 

encourage almost any public agency to 

become a lead agency. The FHWA and 

FTA disagree. The proposed language 

conforms to 23 U.S.C. 139 and the CEQ 

regulations, which specify which 

agencies may be joint lead agencies. 

One commenter suggested that the 

sentences dealing with cooperating 

agencies in paragraph (c) of section 

771.111 belong more appropriately in 

section 771.109. The FHWA and FTA 

do not agree. Section 771.109 deals with 

the roles and responsibilities of the lead 

agencies, applicants, and project 

sponsors, i.e., the primary agencies 

involved in advancing the project. 

Section 771.111 addresses the 

coordination of the lead agencies with 

other agencies, including participating 

and cooperating agencies, and the 

public. The sentences in paragraph (c) 

of section 771.111 regarding cooperating 

agencies are appropriately located in the 

section discussing coordination. 

One commenter suggested that the 

FHWA and FTA amend paragraph (c) of 

section 771.111, a paragraph to which 

no changes were proposed in the NPRM, 

to reflect that State, local, and tribal 

governmental units can now be joint 

lead agencies with the Administration. 

The commenter offered the following 

proposed language for paragraph (c) of 

section 771.111: ‘‘When FHWA and 

FTA are involved in the development of 

joint projects, or when FHWA or FTA 

acts as a joint lead agency with another 

Federal agency, any state or local 

governmental entity, or a federallyrecognized Indian tribe, a mutually 

acceptable process will be established 

on a case-by-case basis.’’ The FHWA 

and FTA disagree with this comment 

and decline to accept the commenter’s 

proposed language. Paragraph (c) of 

section 771.111 is intended to apply 

only when both the FHWA and FTA are 

involved in the development of a project 

or when the FHWA or FTA acts as a 

joint lead agency with another ‘‘Federal 

agency,’’ as defined in the CEQ 

regulation at 40 CFR 1508.12. The 

provisions of paragraph (c) in section 

771.111 are intended to provide a 

smooth environmental review process 

despite programmatic differences 

between the FHWA and FTA or 

differences between part 771 and 

another Federal agency’s NEPA 

procedures. It is neither necessary nor 

desirable to expand the range of entities 

covered by paragraph (c) of section 

771.111 to include entities that are not 

Federal agencies. When the FHWA or 

FTA is the only Federal lead agency, the 

procedures detailed in 23 U.S.C. 139 (as 

applicable) and 23 CFR part 771 apply 

and reconciliation of those procedures 

with any other agency’s NEPA 

procedures is not necessary. 

Also, in order to make clear that 

paragraph (c) of section 771.111 applies 

in any instance in which both the 

FHWA and FTA are involved in the 

development of a project and not to 

some more limited range of ‘‘joint 

projects,’’ the FHWA and FTA have 

changed paragraph (c) of section 

771.111 in the final rule to read as 

follows: ‘‘When both FHWA and FTA 

are involved in the development of a 

project, or when FHWA or FTA acts as 

a joint lead agency with another Federal 

agency, a mutually acceptable process 

will be established on a case-by-case 

basis.’’ 

One commenter requested that the 

FHWA and FTA change ‘‘may’’ to 

‘‘should’’ in paragraph (c)(3) of section 

771.109 and paragraph (d) of section 

771.111, where the rule discusses early 

agency coordination and public 

involvement activities. The commenter 

suggested that the FHWA and FTA 

make it clear that EAs and EISs require 

opportunities for agency and public 

involvement. The FHWA and FTA did 

not adopt this comment and the NPRM 

wording is retained in the final rule. In 

paragraph (c)(2) of section 771.109, the 

rule discusses the ability of the 

Administration to extend joint lead 

agency status to entities that do not 

qualify as mandatory joint lead agencies 

under 23 U.S.C. 139(c). The authority to 

invite other entities to serve as joint lead 

agencies is derived from the CEQ 

regulation (40 CFR 1501.5 and 1506.2), 

and is expressed in that regulation as a 

discretionary action. The FHWA and 

FTA believe that the decision whether 

to confer joint lead agency status on an 

entity has many potential implications 

and, thus, it should remain 

discretionary so that the Administration 

and any mandatory joint lead agency 

can exercise their judgment on a caseby-case basis. In paragraph (d) of section 

771.111, the rule distinguishes between 

those situations where the lead agencies 

must invite another agency to be a 

participating or cooperating agency and 

those situations where such invitations 

are discretionary. The distinctions in 

the rule mirror those contained in 23 

U.S.C. 139 and in the CEQ regulation 

(40 CFR 1501.6 and 1508.5). The FHWA 

and FTA guidance, ‘‘SAFETEA–LU 

Environmental Review Process: Final 

Guidance,’’ November 15, 2006, 

discusses cooperating and participating 

agencies in greater detail. 

Two commenters requested that 

paragraph (d) of section 771.111 

indicate that the requirement to invite 

interested agencies to participate 

applies only to an EIS for which the 

Notice of Intent (NOI) appeared in the 

Federal Register after SAFETEA–LU 

enactment on August 10, 2005. The 

FHWA and FTA are not making the 

requested change because such a 

statement would not be accurate. At the 

discretion of the FHWA and FTA, the 

environmental review process outlined 

in 23 U.S.C. 139 may be applied to EAs 

or CEs, or to projects initiated prior to 

SAFETEA–LU enactment under certain 

circumstances when the project is rescoped or reassessed. The FHWA and 

FTA carefully chose the language in 

paragraph (d) of section 771.111 to 

cover those cases as well as the cases 

offered by the commenter. Details are 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12521 

provided in the FHWA/FTA guidance 

on 23 U.S.C. 139 titled ‘‘SAFETEA–LU 

Environmental Review Process Final 

Guidance,’’ November 15, 2006, which 

is available at http://www.fhwa.dot.gov 

or in hard copy upon request. 

Two commenters suggest that the 

word ‘‘entitled’’ in footnote 4 to the 

proposed paragraph (d) of section 

771.111 be corrected to ‘‘titled,’’ 

reflecting the use of ‘‘titled’’ elsewhere 

in the proposed regulatory text. No 

difference in meaning was intended, 

and the suggested change has been 

made for stylistic consistency. 

Although the NPRM did not propose 

to change the last sentence of paragraph 

(d) of section 711.111, two commenters 

requested that the FHWA and FTA 

define or reference the definition of the 

phrase ‘‘agencies with jurisdiction by 

law.’’ The phrase ‘‘jurisdiction by law’’ 

is defined in the CEQ regulation at 40 

CFR 1508.15. Because 23 CFR part 771 

supplements the CEQ regulation and 

because the FHWA and FTA expect 23 

CFR part 771 to be used together with 

the CEQ regulation, the definition of 

‘‘jurisdiction by law’’ is not repeated 

here. Additional guidance can be found 

in the ‘‘Forty Most Frequently Asked 

Questions Concerning CEQ’s National 

Environmental Policy Act Regulations’’ 

(March 23, 1981); the memorandum for 

the heads of Federal agencies entitled 

‘‘Cooperating Agencies in Implementing 

the Procedural Requirements of the 

National Environmental Policy Act’’ and 

its Attachment I, ‘‘Factors for 

Determining Whether to Invite, Decline 

or End Cooperating Agency Status’’ 

(January 30, 2002); and the 

memorandum for heads of Federal 

agencies entitled ‘‘Designation of NonFederal Agencies to be Cooperating 

Agencies in Implementing the 

Procedural Requirements of the 

National Environmental Policy Act’’ 

(July 28, 1999). These documents can be 

obtained from the CEQ Web site at 

http://www.nepa.gov/regs/ 

guidance.html. 

Two commenters requested that the 

FHWA and FTA add a footnote 

referencing the FHWA/FTA ‘‘Guidance 

for Determining De Minimis Impacts to 

Section 4(f) Resources,’’ dated December 

13, 2005, to section 771.111. The FHWA 

and FTA issued a Section 4(f) final rule 

(23 CFR part 774) on March 12, 2008, 

at 73 FR 13367, that also addresses de 

minimis impact determinations and 

should be included in the footnote. The 

logical location for the footnote that the 

commenters requested is paragraph 

(h)(2)(viii) of section 771.111. The 

FHWA and FTA have added a new 

footnote 5 to the regulatory text of 

paragraph (h)(2)(viii) of section 771.111 

in response to these comments. 

Section 771.113 Timing of 

Administration Activities 

One commenter requested the FHWA 

and FTA consider further revisions to 

paragraph (a) of section 771.113 to 

increase flexibility on actions that can 

be taken during the NEPA process. 

Because the scope of this rulemaking is 

limited to making required changes 

resulting from law and making minor 

clarifications to the existing regulations, 

the FHWA and FTA decline to 

deliberate the more substantive changes 

requested by this comment at this time. 

The FHWA and FTA will consider 

requests for additional, substantive 

changes in a future rulemaking. 

Commenters suggested that the first 

sentence of paragraph (a) of section 

771.113 should, for internal 

consistency, refer to the ‘‘work 

necessary to complete a FONSI [Finding 

of No Significant Impact] or ROD 

[Record of Decision]’’ rather than a 

‘‘FONSI or EIS.’’ The suggested change 

has been made and the regulation now 

references the decision documents in 

both cases. 

The list of exceptions to the limitation 

on actions presented in paragraph (a) of 

section 771.113 has grown so that the 

paragraph is no longer understandable. 

FHWA and FTA concluded that the 

provision should be reorganized for 

clarity and to accommodate the addition 

of new exceptions pursuant to 

SAFETEA–LU. Accordingly, FHWA and 

FTA have added a new paragraph (d) to 

section 771.113 to list the exceptions, 

and to reference related FHWA 

regulations that apply only to the 

FHWA program. The new exceptions 

are the acquisition of railroad right-ofway in accordance with 49 U.S.C. 

5324(c) and the acquisition of transit 

rolling stock in accordance with 49 

U.S.C. 5309(h)(6), which provisions 

were added or modified by SAFETEA– 

LU. The exceptions for hardship and 

protective acquisition of right-of-way 

remain and are also listed in paragraph 

(d) of section 771.113. 

Section 771.115 Classes of Actions 

The only revision made by the final 

rule is to replace the word ‘‘cumulative’’ 

with the word ‘‘cumulatively’’ in order 

to fix a grammatical error. 

Section 771.117 Categorical 

Exclusions 

The FHWA and FTA received some 

general support for adding a CE for 

Intelligent Transportation Systems (ITS) 

activities. One commenter expressed 

support for adding activities that 

support the deployment of ITS to the 

list of CEs in paragraph 771.117(c)(21) 

but expressed concern that the proposed 

CE was written too narrowly. The 

commenter specifically mentioned 

transit passenger information 

technology and transit security systems 

as possibly not covered by the new CE. 

In accordance with section 6010 of 

SAFETEA–LU, the FHWA and FTA 

worded the proposed CE for ITS to 

conform as closely as possible to the 

statutory definitions in SAFETEA–LU 

section 5310. Nevertheless, the FHWA 

and FTA agree that the description of 

ITS purposes mentioned in the 

proposed CE in the NPRM, i.e., to 

improve efficiency or safety, is not 

intended to exclude ITS activities that 

have security purposes or that provide 

passenger convenience. Therefore, to 

avoid potential misinterpretation, the 

FHWA and FTA have added the 

security and passenger convenience to 

the purposes that may be served by an 

ITS system that qualifies as a CE. 

The same commenter also proposed 

that additional security projects, that 

cannot be characterized as ITS projects, 

such as the construction of a 

communications center, should also be 

categorically excluded if it is located on 

existing transportation right-of-way. The 

FHWA and FTA have not acted on this 

suggestion because many security 

projects, if appropriately sited, would be 

covered by existing CEs, and a future 

rulemaking that considers this proposal 

would have the benefit of more 

experience with such projects. 

The commenter also suggested that 

the Department of Homeland Security 

(DHS) and the U.S. Department of 

Transportation (U.S. DOT) should have 

a single list of CEs for transportation 

security projects. The FHWA and FTA 

have not acted on this suggestion. The 

NEPA regulations of the CEQ require 

each Federal agency to have its own 

implementing procedures specific to its 

program. As a result, DHS and the two 

U.S. DOT agencies [FTA and FHWA] 

have their own separate NEPA 

procedures. 

One commenter suggested the specific 

mention of ‘‘radio communications 

systems’’ in the CE for ITS activities. In 

response, FHWA and FTA have added 

‘‘radio communications systems’’ to the 

ITS examples included in the regulatory 

text. 

One commenter suggested that the 

new CE for ITS equipment should 

provide specific examples of transitrelated ITS projects. The list might 

include items such as automatic vehicle 

locators, automated passenger counters, 

computer-aided dispatching systems, 

radio communication equipment, and 

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12522 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

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. 

4Not all congestion relief projects authorized 

under Federal law involve a discretionary decision 

or approval by the FHWA or FTA. If there is no 

discretionary decision, then NEPA does not apply. 

For example, the conversion of an HOV lane to a 

HOT lane pursuant to 23 U.S.C. 166(b)(4) does not, 

in and of itself, require approval by the FHWA. 

However, if the project also involves Federal-aid 

highway funding, the modification of prior FHWAState agreements affecting the facility, or some other 

type of action that does require a discretionary 

FHWA action, then NEPA would apply. For further 

information on the role of the FHWA in HOV-toHOT conversion projects, see Federal-aid Highway 

Program Guidance on High Occupancy Vehicle 

(HOV) Lanes, June 2008, Federal Highway 

Administration at http://www.fhwa.dot.gov/

operations/hovguide01.htm. 

security equipment including cameras 

in facilities and on buses. The FHWA 

and FTA agree that the commenter’s list 

gives prime examples of ITS projects 

that would be covered by the new CE 

and have added the examples to the 

regulatory language of this new CE. 

The NPRM announced that the FHWA 

and FTA might designate one or more 

new CEs for projects that reduce 

transportation system congestion. The 

NPRM invited comments on this 

proposed designation. The FHWA and 

FTA received eight comments, some 

supporting the designation of a CE, and 

some expressing concerns. As noted 

below, the FHWA and FTA plan to 

publish a Supplemental Notice of 

Proposed Rulemaking (SNPRM) so that 

the public has the benefit of 

commenting on the actual proposed 

language for such a CE before the 

agencies decide whether to finalize it in 

regulation. 

Several commenters expressed 

support for a new CE. Some indicated 

that the conversion of existing high 

occupancy vehicle (HOV) or generalpurpose highway lanes into high 

occupancy/toll (HOT) lanes 3 or 

standard toll lanes can be accomplished 

with minimal construction activity 

beyond the existing highway facility 

and should qualify as a CE. Two 

commenters proposed wording for a 

new CE that would read: ‘‘Conversion of 

an existing general use lane to an HOV/ 

HOT [High Occupancy Vehicle/High 

Occupancy Toll] or other toll lane and/ 

or other value pricing concept, along 

with supporting improvements which 

require no or minimal right-of-way (less 

than 1 acre) and result in less than 1 

acre of impact to aquatic resource.’’ 

A few commenters expressed 

concerns regarding the potential some 

congestion reduction projects might 

have for adverse environmental impacts 

that might not meet CE criteria, 

especially where congestion reduction 

elements are part of a larger project. 

Some of those commenters viewed this 

risk as a basis for limiting the scope of 

a designated CE. Several commenters 

correctly noted that where congestion 

management measures are component 

parts of larger projects, the 

characteristics of the larger project often 

drive the appropriate class of action 

under NEPA. Two commenters 

expressed equity concerns about the 

impact of toll charges on low-income 

drivers. 

After carefully considering all of the 

comments on this topic, the FHWA and 

FTA have decided that public comment 

on the actual language of a CE would be 

beneficial prior to finalizing it. Thus, 

the FHWA and FTA will publish an 

SNPRM that includes language for a 

specific CE on projects that reduce 

congestion on the nation’s highways. 

After receiving public comment, the 

FHWA and FTA would then finalize a 

CE, if appropriate, with another final 

rule at that time. 

This decision to defer action on this 

CE until after further public comment in 

no way limits the ability of the FHWA 

or FTA to use their authority under 23 

CFR 771.117(c) and (d) to determine 

that congestion management projects 

meet CE criteria. The FHWA and FTA 

will continue to utilize that authority for 

appropriate congestion management 

projects.4

One commenter appears to have 

misinterpreted the revised CE at 

paragraph (c)(5) of section 771.117, 

which has to do with the transfer of 

Federal lands. The misunderstanding 

may result from the term ‘‘Federal lands 

pursuant to 23 U.S.C. 107(d) or 317.’’ 

The cited statutory provisions refer to 

lands ‘‘owned by the United States.’’ 

The term does not include real property 

owned by a State or transit agency in 

which there is Federal financial interest 

resulting from the use of FHWA or FTA 

financial assistance to purchase the 

land. These lands are not ‘‘Federal 

lands’’ within the meaning of this CE. 

Two commenters requested a wording 

change in paragraph (d)(12)(ii) of 

section 771.117. One commenter wished 

to emphasize that, at the time of a 

protective acquisition, it usually is not 

known whether a property actually will 

be required for a project. The second 

commenter stated that the proposed 

change would provide funding 

recipients with flexibility. Specifically, 

both commenters requested a word 

change in the first sentence from ‘‘is’’ to 

‘‘may be.’’ The FHWA and FTA agree 

that the change would be helpful and 

have changed the first sentence of 

paragraph (d)(12)(ii) of section 771.117 

to ‘‘Protective acquisition is done to 

prevent imminent development of a 

parcel which may be needed for a 

proposed transportation corridor or 

site.’’ 

Three commenters proposed 

removing the last sentence of the 

description of a protective acquisition 

that would qualify as a CE. The proposal 

would allow protective acquisitions 

solely to avoid increases in the cost of 

real estate. Another commenter 

proposed that land acquisition solely to 

control the cost of right-of-way be 

allowed under the following conditions: 

(1) That the use of the acquired property 

not be changed prior to completion of 

the NEPA review of the project that 

would use the property; (2) that the 

acquisition not prejudice the 

consideration of alternatives to the 

project that would use the property; and 

(3) that the requirements of the Uniform 

Relocation Act be followed in acquiring 

the property. The suggested revisions 

would permit protective acquisitions 

based on economic reasons alone. The 

regulation presently permits 

consideration of cost as an element of 

justification, but not as the sole reason 

for a protective acquisition. The 

proposed changes, which would 

substantially alter existing limitations in 

the FHWA and FTA acquisition 

programs, have not been subjected to 

review and comment. For that reason, 

the FHWA and FTA decline to make the 

suggested revisions. Another commenter 

opposed the CEs for protective and 

hardship acquisitions. This commenter 

said that the project sponsor should be 

working with the local governmental 

entity that regulates land use to preserve 

the transportation corridor through 

overlay zoning or other land use 

controls under State or local 

jurisdiction. The commenter felt that no 

land should be purchased prior to 

completion of the NEPA review of the 

project that would use the land. The 

FHWA and FTA disagree. These 

exceptions are allowed under the 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12523 

existing regulation and are intended for 

limited use when an extenuating 

circumstance exists, such as imminent 

development or hardship on the existing 

owner. The land-use methods proposed 

by the commenter would not 

accomplish the purposes served by the 

present regulation. 

Many commenters proposed 

additional changes to the CE for, and 

description of, hardship and protective 

acquisition. The FHWA and FTA did 

not propose, and are not making, any 

additional changes to the CE for 

hardship and protective acquisition. 

The description of the terms hardship 

and protective acquisition formerly 

appeared in footnotes and now have 

been moved, verbatim, into the 

regulatory text, with the one very minor 

exception discussed above. This change 

in the placement of the text on these 

CEs was made at the request of the 

Office of the Federal Register to 

conform with current standards for the 

format of regulations. 

Several commenters expressed 

support for the proposal to add a CE for 

the acquisition of pre-existing railroad 

right-of-way pursuant to 49 U.S.C. 

5324(c). Since the time that FTA 

proposed this provision in the NPRM, 

FTA has become aware of the need to 

review a project sponsor’s plans to 

purchase right-of-way under this CE to 

ensure that the statutory provision is 

implemented properly. Further, the CE 

concerns early purchase of right-of-way 

and is therefore similar to the CE for a 

hardship or protective purchase. The 

railroad right-of-way CE logically 

belongs in the same part of the CE 

regulation as the other early purchase 

CE. As a result, FTA has decided to list 

the CE for the acquisition of pre-existing 

railroad right-of-way in paragraph (d) of 

section 771.117. 

One commenter suggested that the 

FHWA and FTA consider a new CE for 

transit projects that alleviate urban 

congestion, such as bus rapid transit 

(BRT) operating on current bus routes or 

on new routes that are well-integrated 

into the transit network and have 

minimal negative impacts. The FHWA 

and FTA are not adding the proposed 

CE because BRT projects located on 

existing streets with stations on 

sidewalks or other public right-of-way 

would be covered by existing CEs which 

take into account that there are no 

unusual circumstances indicating that a 

significant impact could ensue. Once 

the FHWA and FTA have a larger body 

of experience with a greater variety of 

BRT projects, we will consider updating 

our regulations as necessary. 

One commenter suggested that 

rehabilitation of an existing transit 

station should be moved from the list of 

examples in paragraph (d) of section 

771.117 that require documentation to 

show that the project’s design or siting 

is proper and that no unusual 

circumstances exist, to the list of 

automatic CEs in paragraph (c) of 

section 771.117 that require no 

documentation other than a project 

description to show that the CE applies. 

The FHWA and FTA note that many 

such transit stations in older subway 

systems are on or are eligible for the 

National Register of Historic Places, or 

have elements such as antique tile walls 

that so qualify. Therefore, the FHWA 

and FTA believe that it is appropriate to 

require documentation that addresses 

not only the CE requirements but also 

any Section 106 or Section 4(f) 

implications of the rehabilitation. 

Therefore, transit station rehabilitation 

will remain in the list of CE examples 

in paragraph (d) of section 771.117. The 

FHWA and FTA may reconsider this 

decision in a future rulemaking when 

the suggested revision, which may be of 

high public interest, will be subject to 

an opportunity for public comment. 

One commenter proposed that the CE 

lists be expanded to include transit 

activities that became eligible for FTA 

funding after 1987, when the last major 

revision of 23 CFR part 771 occurred. 

The CEs suggested include preventive 

maintenance, as defined in Federal 

transit law, ADA-required transit 

services, and park-and-ride lots not 

located on the fringe of a transportation 

corridor. The comment also 

recommended moving certain CEs in the 

list of examples in paragraph (d) of 

section 771.117 requiring 

documentation to show that the CE 

conditions are met, to the list of 

automatic CEs in paragraph (c) of 

section 771.117. FTA agrees with this 

comment in concept, but has not acted 

on it in this rulemaking. Although the 

regulation would be cleaner if it 

explicitly listed all of the activities that 

FTA commonly funds that qualify as 

CEs, the commenter correctly points out 

that these activities are generally 

covered by paragraph (d) of section 

771.117. FTA did not provide 

substantiation of the proposed CEs in 

the NPRM, and as a result, the proposed 

CEs have not been subjected to public 

review and comment. The FHWA and 

FTA believe another, more 

comprehensive rulemaking would be 

necessary to address the proposed 

changes. 

One commenter suggested a number 

of changes to section 771.117, which 

governs categorical exclusions. One 

suggestion was that the FHWA and FTA 

abandon the creation of new categories 

of CEs in favor of allowing recipients to 

determine whether a project qualifies 

for CE status. The law places 

responsibility for NEPA compliance on 

the Secretary of Transportation and the 

agencies under the Secretary. The 

change requested by the commenter 

exceeds the two agencies’ [FHWA and 

FTA] legal authority. 

One commenter suggested that the 

FHWA and FTA add a CE for a situation 

where a project affects an isolated 

wetland that is not within the regulatory 

jurisdiction of the U.S. Army Corps of 

Engineers. The applicability of other 

Federal laws, such as the Clean Water 

Act, is a consideration in determining 

the NEPA class of action, but it is only 

one of many considerations. Thus, the 

FHWA and FTA believe that 

establishing criteria under only one 

Federal law would not be appropriate 

and would not elicit consideration of 

the full magnitude and context of an 

action in accordance with NEPA. 

The same commenter suggested that 

the FHWA and FTA require the agencies 

to establish a deadline for CE 

completion. The FHWA and FTA 

believe that good project management 

practices include having and working 

towards a project schedule. However, 

the FHWA and FTA do not believe that 

embedding a deadline requirement in 

the regulation governing CEs is an 

appropriate mechanism to achieve that 

goal. A deadline could not be set 

without considering all of the 

individual project situations that factor 

into developing an appropriate 

schedule. Agencies are currently free to 

set and work towards a deadline. 

Further, any establishment of a deadline 

that would be binding on other Federal 

agencies must be accomplished through 

congressional action. 

Finally, the commenter indicated that 

the FHWA and FTA should create a 

preference for CEs over EAs and provide 

other clarifications concerning when a 

CE should be used instead of an EA. The 

FHWA and FTA disagree with the 

commenter. The present regulations in 

section 771.117 provide an appropriate 

definition of what constitutes a CE and 

the standards for determining whether a 

project qualifies as a CE. Sections 

771.117 and 771.119, when read 

together with the CEQ regulation, define 

when an EA should be performed. The 

determination of the NEPA class of 

action applicable to a project is made 

based on the facts of the project, not the 

preference for one process or the other. 

Through an oversight, the NPRM 

failed to include asterisks at the end of 

the amendatory language for section 

771.117. The FHWA and FTA did not, 

however, intend to delete paragraph (e) 

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12524 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

of section 771.117, and the paragraph 

will remain unchanged by this final 

rule. The asterisks have been added to 

the amendatory language of this final 

rule to denote this. 

Section 771.119 Environmental 

Assessments 

One commenter suggested that the 

FHWA and FTA explicitly encourage 

the use of the environmental review 

procedures detailed in 23 U.S.C. 139 for 

EA projects. The FHWA and FTA agree 

that many of the procedures contained 

in 23 U.S.C. 139 could be beneficial to 

a project. Funding recipients may 

request the use of participating agency 

designations, scheduling, and other 

procedures similar to those established 

in 23 U.S.C. 139 on any project. 

Consequently, the FHWA and FTA 

continue to believe that the application 

of the 23 U.S.C. 139 procedures to nonEIS projects is best determined on a 

case-by-case basis. 

Two commenters objected to the 

proposed deletion of the sentence in the 

existing regulation that applies only to 

FTA projects and that allows an 

applicant to make an EA available for 

public review and comment before FTA 

has reviewed and approved the EA for 

public inspection. The commenters 

suggested that the required FTA 

approval would delay projects 

unnecessarily. FTA disagrees. In FTA’s 

experience, the release of an EA without 

an FTA review often results in an 

incomplete or insufficient document 

that fails to elicit meaningful public and 

interagency comment for NEPA 

purposes and cannot support a FONSI 

by FTA. This situation causes delays 

and duplication of effort when the EA 

must be corrected, re-advertised, and rereleased for public comment. For an 

adequate EA, the time required for an 

FTA approval would generally be the 

same whether that review precedes the 

release of the EA or precedes the 

issuance of a FONSI. As proposed in the 

NPRM, FTA is deleting the sentence 

that formerly permitted an applicant to 

release an EA without FTA approval. 

Section 771.123 Draft Environmental 

Impact Statements 

Several commenters suggested that 

paragraph (b) of section 771.123 include 

‘‘purpose and need’’ among the issues to 

be addressed during the scoping 

process. The FHWA and FTA agree and 

have made the suggested change. One of 

these commenters suggested that this 

paragraph also assert the primacy of the 

lead agencies in crafting the purpose 

and need and in determining the range 

of alternatives. The FHWA and FTA 

have not acted on this recommendation 

because it is appropriately dealt with in 

guidance. In 2003, CEQ issued a 

guidance letter, available at: http:// 

www.nepa.gov/nepa/regs/ 

CEQPurpose2.pdf, which states: ‘‘In the 

case of a proposal intended to address 

transportation needs, joint lead or 

cooperating agencies should afford 

substantial deference to the DOT 

agency’s articulation of purpose and 

need. 49 U.S.C. 101(b)(5).’’ The letter 

recognizes that Federal agencies acting 

under their own authorizing legislation 

separate from NEPA may have 

independent responsibilities and 

concerns. Section 139 of Title 23, U.S. 

Code, states that the lead agencies 

determine the purpose and need and 

range of alternatives for any 

environmental document whose 

preparation is their responsibility. It 

does not override the statutory 

responsibilities of other Federal 

agencies, though it does establish a 

process that is intended to surface and 

resolve differences early. The regulatory 

assertion of primacy suggested by the 

commenter would not override other 

Federal laws. 

One commenter requested more 

flexibility or clarification regarding the 

role of a local agency in the 

development of an EIS. The FHWA and 

FTA look to the agencies that are the 

direct recipients of Federal funding to 

prepare environmental review 

documents under the oversight and 

supervision of the FHWA or FTA, as 

applicable. For the FHWA, this typically 

is the State DOT. For FTA, the direct 

recipient of funding typically is a 

metropolitan transit agency. In the case 

of the FHWA, the State DOT may work 

with local government agencies that are 

project sponsors, but the State DOT 

remains responsible to the FHWA for 

the environmental review documents. 

The relationship between the State DOT 

and the local agency in such cases is 

similar to the relationship between the 

FHWA and the State DOT. The State 

DOT must supervise, oversee, and 

independently evaluate the local 

agency’s preparation of the 

environmental review documents. A 

local agency that is not a direct recipient 

of Federal funds may be a joint lead 

agency at the discretion of the required 

lead agencies in accordance with the 

provisions of 23 U.S.C. 139(c)(2) and the 

CEQ regulation, and, as a joint lead 

agency, may prepare the EIS and other 

environmental review documents in 

accordance with those provisions. 

One commenter suggested that an 

applicant be required to file a 

declaration of its intention to build a 

project with the chief executive of all 

political subdivisions in which the 

action is located. The FHWA and FTA 

believe that the requirements of scoping 

and of identifying participating agencies 

and inviting their involvement are 

adequate in this regard and have not 

made the suggested change. 

FTA received one comment that 

supported the NPRM’s proposal to 

delete the requirement for a locally 

preferred alternative report following 

the draft EIS. The final rule omits that 

requirement, as it is more appropriately 

addressed in the regulation that 

implements FTA’s New Starts program 

at 49 CFR part 611. 

FTA also changed the terminology in 

paragraph (j) of section 771.123 to 

‘‘major fixed guideway capital project’’ 

to conform to current law. The new term 

is defined in Federal transit law at 49 

U.S.C. 5309(a)(3). 

Section 771.125 Final Environmental 

Impact Statements 

The FHWA and FTA revised 

paragraph (a) of section 771.125 for 

consistency with SAFETEA–LU section 

6002. In preparing a Final EIS, the 

responsibilities of the Administration 

under the former rule are now the 

responsibility of the lead agencies. The 

paragraph was revised to reflect this 

change. 

Two commenters suggested that 

paragraph (c)(1)(vi) of section 771.125 in 

the NPRM, which provided that issues 

other than those listed could warrant 

review of an EIS by the FHWA or FTA 

headquarters, be deleted because it 

would lead to more Final EISs being 

reviewed in the FHWA or FTA 

headquarters office, resulting in 

unnecessary delays. The FHWA and 

FTA have removed the subject 

paragraph from the final rule, as 

requested, but for a different reason. The 

paragraph was redundant because the 

first sentence of paragraph (c)(1) of 

section 771.125 accomplishes the same 

purpose, that of stating the ultimate 

authority of the FHWA and FTA 

headquarters offices over the NEPA 

process. The delegations of the authority 

to make NEPA decisions to the FHWA 

and FTA field offices does not absolve 

the FHWA and FTA Administrators of 

their responsibilities under NEPA and 

other environmental laws. The FHWA 

and FTA headquarters offices, under the 

direction of each respective 

Administrator, must retain the authority 

to review a Final EIS in headquarters 

before it is signed, whenever the 

Administrator deems it appropriate. 

Without the addition of paragraph 

(c)(1)(vi) of section 771.125, as was 

proposed in the NPRM, paragraph (c)(1) 

of section 771.125 remains unchanged. 

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FTA proposed in the NPRM to delete 

paragraph (c)(3) of section 771.125 

because the requirement was considered 

perfunctory due to the increase in size 

of the New Starts program and because 

the list of reasons in paragraph (c)(1) of 

section 771.125 already accomplishes 

this purpose. No comment was received 

on this proposed change, so the 

paragraph is deleted in this final rule as 

proposed in the NPRM. 

One commenter suggested that the 

FHWA and FTA revise the regulation at 

section 771.125 on Final EISs to require 

that a Final EIS provide specific permit 

status information, including the record 

of coordination and interaction with 

resource agencies. The FHWA and FTA 

do not believe such change is 

warranted. Part 771 supplements the 

CEQ regulation, which already describes 

similar requirements. The CEQ 

requirements include the circulation of 

the documents (see, e.g., 40 CFR 

1502.19), documented responses to 

comments received (40 CFR 1503.4), 

and a listing of required Federal permits 

(40 CFR 1502.25(b)). The FHWA and 

FTA believe that the CEQ requirements 

are sufficient and there is no need to 

replicate them in part 771. To the extent 

that the commenter calls for more 

detailed documentation of interactions 

with resource agencies than presently is 

required, the FHWA and FTA believe 

that decision is best made on a case-bycase basis because the usefulness of 

such detailed information varies by 

project. 

Section 771.127 Record of Decision 

The FHWA and FTA made minor 

stylistic changes in this section. 

Section 771.129 Re-evaluations 

The FHWA and FTA had proposed to 

re-order the paragraphs in this section 

without modification. Upon further 

reflection, the original order seems 

preferable because the original 

regulation addressed the three situations 

in the sequential order that they occur 

in the project development process. In 

responding to the comment on 

paragraph (a) of section 771.113 

discussed above, the FHWA and FTA 

noticed that the same comment would 

apply to the original paragraph (c) of 

section 771.129 (paragraph (a) of section 

771.129 in the NPRM). That paragraph 

referred to ‘‘approval of the EIS, FONSI, 

or CE designation’’ as the completion of 

the NEPA process, when it should have 

referred to ‘‘approval of the ROD, 

FONSI, or CE designation.’’ The FHWA 

and FTA have accordingly changed 

‘‘EIS’’ to ‘‘ROD’’ here as well. 

One commenter requested that section 

771.129 be further revised to clarify 

what happens if the CE or FONSI needs 

updating but the changes do not cause 

the need for a new or supplemental 

document. The FHWA and FTA believe 

paragraph (c) of section 771.129 of the 

final rule adequately covers this 

situation and does not need further 

revision. Under this provision an 

applicant will contact the 

Administration to determine if the ROD, 

CE or FONSI needs updating and the 

Administration shall decide when the 

consultations should be documented. 

Section 771.130 Supplemental 

Environmental Impact Statements 

In paragraph (a)(2) of section 771.130, 

the FHWA and FTA corrected a 

typographical error in the former 

regulation. 

In paragraph (e) of section 771.130, 

the terminology was changed to 

conform with current Federal transit 

law as discussed previously for 

paragraph (j) of section 771.123. 

Section 771.139 Limitations on Claims 

Three commenters asked for 

clarification about the applicability of 

the new limitations on claims provision 

(23 U.S.C. 139(l); amplified in section 

771.139 in the NPRM). Specifically, the 

commenters asked (1) whether the 

limitations provision applies to all 

classes of action (EISs, EAs, and CEs) 

without regard to whether the projects 

had used the environmental review 

process procedures in 23 U.S.C. 139; (2) 

whether the limitations provision 

applies to reevaluations (section 

771.129) and tiered EISs (paragraph (g) 

of section 771.111); and (3) whether 

clarifications could be added to part 771 

to foreclose a possible interpretation of 

section 23 U.S.C. 139 (l)(2) as requiring 

a supplemental environmental review 

document each time new information 

arises. The FHWA and FTA do not 

believe that any of the three commenters 

raised issues that require regulatory 

action at this time. As the FHWA and 

FTA previously have indicated in 

guidance (see Question 11 in Appendix 

E of ‘‘SAFETEA–LU Environmental 

Review Process: Final Guidance,’’ 

issued November 15, 2006, available at 

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

section6002/index.htm), the agencies 

believe that Congress’ intent in adopting 

the limitations on claims provision was 

to permit it to be applied to any Federal 

agency decision that is necessary in 

order for any highway or public 

transportation capital project to move 

forward to implementation. This means 

it can be applied to any project, 

regardless of its NEPA class of action. In 

all cases, the decision whether to 

publish a limitations notice should be 

made on a case-by-case basis as 

discussed in Appendix E to the abovereferenced final guidance on the 

implementation of 23 U.S.C. 139. 

As described in the above discussion 

on section 771.129, reevaluations are 

used to address a variety of 

circumstances. The limitations 

provision may be applied to a 

reevaluation decision, but it would not 

be needed for the vast majority of 

reevaluations which simply confirm 

that there is neither any change in the 

project nor any new information that 

requires additional analysis that could 

affect a prior project decision. The 

FHWA and FTA also note that when 

legal challenges to a project otherwise 

are foreclosed by law, such as by the 

expiration of a previous limitations 

notice, the agencies’ view is that only 

the issues specifically addressed in the 

reevaluation may be challenged. Neither 

the mere fact a reevaluation is done, nor 

the act of publishing a limitations notice 

for the reevaluation, would serve to 

reopen other issues to judicial review. 

See Highland Village Parents Group v. 

U.S. Federal Highway Admin., No. 4:07– 

CV–548, 2008 WL 2462944 (E.D. Tex. 

June 13, 2008). 

In the case of decisions based on a tier 

1 EIS, a limitations notice may be issued 

for those decisions that the agency 

considers to be final and that the agency 

does not expect to revisit in tier 2 

proceedings, such as elimination of 

modal alternatives or project corridors, 

absent significant new information. 

Particular care is required when making 

a determination as to which decisions 

are final and subject to a limitations 

notice for a tier 1 document. For FHWA 

notices, pre-publication consultation 

with headquarters staff is encouraged. 

(FTA notices are always prepared and 

reviewed by FTA headquarters staff.) 

Finally, the FHWA and FTA agree 

that SAFETEA–LU did not alter the 

standards for deciding when a 

supplemental EA or EIS is required. 

Section 139(l)(2) of Title 23, U.S. Code, 

addresses the consideration of new 

information received after the close of a 

comment period. That section also 

makes it clear that a decision based on 

a supplemental EA or EIS is a separate 

final agency action and can be the 

subject of a 180-day notice. 

Regulatory Notices 

All comments received are available 

for examination in the docket at 

http://www.regulations.gov. All 

comments, including a number of 

comments received after the comment 

closing date of October 9, 2007, have 

been fully considered in this final rule. 

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12526 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

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 final 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 

final action will not have sufficient 

federalism implications to warrant 

additional consultation.. The agencies 

have also determined that this final 

action will not preempt any State law or 

State regulation or affect the States’ 

ability to discharge traditional 

government functions. 

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. The FHWA and FTA have 

analyzed this final rule under Executive 

Order 13175 and believe that this final 

action will not have substantial, direct 

effects on one or more Indian tribes; will 

not impose substantial direct 

compliance costs on Indian tribal 

governments; and will not preempt 

tribal laws. Therefore, a tribal impact 

statement is not required. The FHWA 

and FTA received no comments on the 

NPRM from Indian tribal governments. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

of 1980 (5 U.S.C. 601 et seq.), the FHWA 

and FTA must consider whether a 

proposed rule would have a significant 

economic impact on a substantial 

number of small entities. ‘‘Small 

entities’’ include small businesses, notfor-profit organizations that are 

independently owned and operated and 

are not dominant in their fields, and 

governmental jurisdictions with 

populations under 50,000. The FHWA 

and FTA certify that this final rule will 

not have a significant economic impact 

on substantial number of small entities. 

National Environmental Policy Act 

The Council on Environmental 

Quality does not direct agencies to 

prepare a NEPA analysis or document 

before establishing Agency regulations 

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 require preparation of 

an EIS; those that require preparation of 

an EA; and those that are categorically 

excluded from further NEPA review (40 

CFR 1507.3(b)). Categorical exclusions 

are one part of those agency procedures, 

and therefore establishing categorical 

exclusions does not require preparation 

of a NEPA analysis or document. 

Agency NEPA regulations assist 

agencies in the fulfillment of agency 

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 categorical exclusions 

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). 

Furthermore, this final action will not 

have any effect on the quality of the 

environment under the NEPA and is 

categorically excludable under the 

current 23 CFR 771.117(c)(20). This 

final action is intended to incorporate 

new statutory requirements into the 

agencies’ regulations and to add new 

CEs to the NEPA process. Additionally, 

this final 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 the 

authority of 49 U.S.C. 5323(b), 49 U.S.C. 

5324(c), 23 U.S.C. 139, 23 U.S.C. 325, 23 

U.S.C. 326, 23 U.S.C. 327, section 6002 

of SAFETEA–LU, and section 6010 of 

SAFETEA–LU, the last of which 

required the Secretary of Transportation 

to initiate rulemaking to establish, as 

appropriate, CEs for ITS projects. In 

addition, this NPRM implements 

changes made by the creation of 23 

U.S.C. 139 to the process by which the 

FHWA and FTA comply with NEPA. 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

The FHWA and FTA have determined 

that this action is not considered a 

significant regulatory action under 

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.’’ The FHWA 

and FTA anticipate that the direct 

economic impact of this rulemaking will 

be minimal. Some of the changes that 

this rule makes are requirements 

mandated in SAFETEA–LU. The FHWA 

and FTA also consider this rule as a 

means to clarify the existing regulatory 

requirements. These changes will not 

adversely affect, in any material way, 

any sector of the economy. In addition, 

these changes will not interfere with 

any action taken or planned by another 

agency and will 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 U.S. DOT 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 crossreference 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 U.S. DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477), or you may visit http:// 

docketsinfo.dot.gov/. 

Unfunded Mandates Reform Act of 

1995 

This final rule will not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 109 Stat. 48). This final 

rule will not result in the expenditure 

by State, local, and tribal governments, 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12527 

1FHWA and FTA have supplementary guidance 

on environmental review 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. 

in the aggregate, or by the private sector, 

of $128.1 million or more in any one 

year (2 U.S.C. 1532). 

Executive Order 12630 (Taking of 

Private Property) 

The FHWA and FTA have analyzed 

this final rule under Executive Order 

12630, Government Actions and 

Interface with Constitutionally 

Protected Property Rights. The FHWA 

and FTA do not anticipate that this final 

rule will 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) 

The FHWA and FTA have analyzed 

this action under Executive Order 

13211. Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use dated May 18, 2001. 

The FHWA and FTA 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) 

The FHWA and FTA have analyzed 

this action under Executive Order 

13045, Protection of Children from 

Environmental Health Risks and Safety 

Risks. The FHWA and FTA certify that 

this final rule is not an economically 

significant rule and will not cause an 

environmental risk to health or safety 

that may disproportionately affect 

children. 

List of Subjects 

23 CFR Part 771 

Environmental protection, Grant 

programs—transportation, Highways 

and roads, Historic preservation, Public 

lands, Recreation areas, Reporting and 

recordkeeping requirements. 

49 CFR Part 622 

Environmental impact statements, 

Grant programs—transportation, Public 

transit, Recreation areas, Reporting and 

recordkeeping requirements. 

■ For the reasons set forth in the 

preamble, amend Chapter I of Title 23 

and Chapter VI of Title 49, of the Code 

of Federal Regulations as set forth 

below: 

Federal Highway Administration 

Title 23—Highways 

PART 771—ENVIRONMENTAL IMPACT 

AND RELATED PROCEDURES 

■ 1. Revise the authority citation for part 

771 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. 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 

NEPA 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). 

■ 3. 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 review 

document required by this regulation.1

* * * * * 

■ 4. Amend § 771.107 by revising 

paragraph (d) and adding paragraphs (f), 

(g), (h), and (i) to read as follows: 

§ 771.107 Definitions. 

* * * * * 

(d) Administration. The 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, local, or 

federally-recognized Indian tribal 

governmental unit that requests funding 

approval or other action by the 

Administration and that the 

Administration works with to conduct 

environmental studies and prepare 

environmental review 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 in 

this part. If there is no applicant, then 

the Federal lead agency will assume the 

responsibilities of the applicant in this 

part. 

(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. 

(h) Participating agency. A Federal, 

State, local, or federally-recognized 

Indian tribal governmental unit that 

may have an interest in the proposed 

project and has accepted an invitation to 

be a participating agency, or, in the case 

of a Federal agency, has not declined 

the invitation in accordance with 23 

U.S.C. 139(d)(3). 

(i) Project sponsor. The Federal, State, 

local, or federally-recognized Indian 

tribal governmental unit, or other entity, 

including any private or public-private 

entity that seeks an Administration 

action. 

■ 5. 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 

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12528 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

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. This guidance, titled ‘‘Linking the 

Transportation Planning and NEPA Processes,’’ is 

available on the FHWA Web site at http:// 

www.fhwa.dot.gov or in hard copy upon request. 

4The FHWA and FTA have developed guidance 

on 23 U.S.C. Section 139 titled ‘‘SAFETEA–LU 

Environmental Review Process: Final Guidance,’’ 

November 15, 2006, and available at http:// 

www.fhwa.dot.gov or in hard copy upon request. 

5The FHWA and FTA have developed guidance 

on Section 4(f) de minimis impact findings titled 

‘‘Guidance for Determining De Minimis Impacts to 

Section 4(f) Resources,’’ December 13, 2005, which 

is available at http://www.fhwa.dot.gov or in hard 

copy upon request. 

appropriate environmental review 

documents. 

(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. Code, or 

chapter 53 of title 49 U.S. Code, 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 review documents if the 

Administration furnishes guidance and 

independently evaluates the documents. 

(3) The Administration may invite 

other Federal, State, local, or federallyrecognized Indian tribal governmental 

units 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 review 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 a project sponsor that 

is a private institution or firm is limited 

to providing technical studies and 

commenting on environmental review 

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 review documents unless 

the State requests and receives written 

FHWA approval to modify or delete 

such mitigation features. 

■ 6. Amend § 771.111 by revising 

paragraphs (a), (b), (c), (d), (h)(1), and (i) 

and adding paragraphs (h)(2)(vii) and 

(h)(2)(viii) to read as follows: 

§ 771.111 Early coordination, public 

involvement, and project development. 

(a)(1) Early coordination with 

appropriate agencies and the public aids 

in determining the type of 

environmental review documents 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 review documents. 

Applicants intending to apply for funds 

should notify the Administration at the 

time that a project concept is identified. 

When requested, the Administration 

will advise the applicant, insofar as 

possible, of the probable class of action 

and related environmental laws and 

requirements and of the need for 

specific studies and findings which 

would normally be developed 

concurrently with the environmental 

review documents. 

(2) The information and results 

produced by, or in support of, the 

transportation planning process may be 

incorporated into environmental review 

documents in accordance with 40 CFR 

1502.21 and 23 CFR 450.212 or 

450.318.3

(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. 

(c) When both the FHWA and FTA are 

involved in the development of a 

project, or when the FHWA or FTA acts 

as a joint lead agency with another 

Federal agency, a mutually acceptable 

process will be established on a case-bycase basis. 

(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 CEQ regulation. 

(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).5

* * * * * 

(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 

review 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). 

* * * * * 

■ 7. Amend § 771.113 by revising 

paragraphs (a) introductory text, (a)(2) 

and (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 finding of no significant 

impact (FONSI) or a record of decision 

(ROD) 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 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12529 

completed, except as otherwise 

provided in law or in paragraph (d) of 

this section: 

* * * * * 

(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 review 

documents unless otherwise specified 

by the approving official. 

* * * * * 

(d) The prohibition in paragraph (a)(1) 

of this section is limited by the 

following exceptions: 

(1) Exceptions for hardship and 

protective acquisitions of real property 

are addressed in paragraph (d)(12) of 

§ 771.117. 

(2) Paragraph (d)(13) of § 771.117 

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). 

(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 

paragraphs (b) and (c) of § 710.501, 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). 

§ 771.115 [Amended] 

■ 8. Amend § 771.115 in paragraph (b) 

by replacing the word ‘‘cumulative’’ 

with the word ‘‘cumulatively’’. 

■ 9. Amend § 771.117 as follows: 

■ a. In paragraph (a), remove the word 

‘‘significnt’’ and add the word 

‘‘significant’’ in its place. 

■ b. Revise paragraphs (c)(5) and (d)(12) 

and add paragraphs (c)(21) and (d)(13) 

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 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. 

* * * * * 

(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 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. 

(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. 

* * * * * 

■ 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 which may 

take into account any planning work 

already accomplished, in accordance 

with 23 CFR 450.212 or 450.318. The 

scoping process will be used to identify 

the purpose and need, 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 the 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. 

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12530 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

6The FHWA published a detailed discussion of 

US 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 hard copy by request. 

(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 major new fixed guideway 

capital projects proposed for FTA 

funding, FTA may give approval to 

begin preliminary engineering on the 

principal alternative(s) under 

consideration after circulation of a draft 

EIS and consideration of comments 

received. 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) 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 paragraphs (b) and (d) of 

§ 771.109. 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. 

* * * * * 

(e) Approval of the final EIS is not an 

Administration action as defined in 

paragraph (c) of § 771.107 and does not 

commit the Administration to approve 

any future grant request to fund the 

preferred alternative. 

* * * * * 

§ 771.127 [Amended] 

■ 13. Amend § 771.127 as follows: 

■ a. In paragraph (a), remove the words 

‘‘record of decision (ROD)’’ and add the 

word ‘‘ROD’’ in their place. 

■ b. In paragraph (a), remove the word 

‘‘chapter’’ and add the word ‘‘title’’ in 

its place. 

§ 771.129 [Amended] 

■ 14. Amend § 771.129 as follows: 

■ a. In paragraph (a), remove the 

number ‘‘3’’ and add the word ‘‘three’’ 

in its place. 

■ b. In paragraph (c), remove the word 

‘‘EIS’’ and add the word ‘‘ROD’’ in its 

place. 

■ 15. 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: 

§ 771.130 Supplemental environmental 

impact statements. 

* * * * * 

(e) A supplemental draft EIS may be 

necessary for major new fixed guideway 

capital projects proposed for FTA 

funding if there is a substantial change 

in the level of detail on project impacts 

during project planning and 

development. * * * 

* * * * * 

■ 16. Amend § 771.133 by revising the 

last sentence to read as follows: 

§ 771.133 Compliance with other 

requirements. 

* * * The Administration’s approval 

of an environmental document 

constitutes its finding of compliance 

with the report requirements of 23 

U.S.C. 128. 

■ 17. Add § 771.139 to read as follows: 

§ 771.139 Limitations on Actions. 

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.6 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. 

Federal Transit Administration 

Title 49—Transportation 

PART 622—ENVIRONMENTAL IMPACT 

AND RELATED PROCEDURES 

Subpart A—Environmental Procedures 

■ 18. 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, sections 6002 and 6010; 40 CFR parts 

1500–1508; 49 CFR 1.51. 

Issued in Washington, DC this 17th day of 

March, 2009. 

Jeffrey F. Paniati, 

Acting Deputy Administrator, Federal 

Highway Administration. 

Matthew J. Welbes, 

Acting Deputy Administrator, Federal Transit 

Administration. 

[FR Doc. E9–6144 Filed 3–23–09; 8:45 am] 

BILLING CODE 4910–57–P 

mstockstill on PROD1PC66 with RULES2