45530 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules 

List of Subjects in 15 CFR Part 30 

Economic statistics, Exports, Foreign 

trade, Reporting and recordkeeping 

requirements. 

For the reasons set out in the 

preamble, the Census Bureau is 

proposing to amend Title 15, CFR part 

30, as follows: 

PART 30—FOREIGN TRADE 

REGULATIONS 

■ 1. The authority citation for 15 CFR 

part 30 continues to read as follows: 

Authority: 5 U.S.C. 301; 13 U.S.C. 301– 

307; Reorganization plan No. 5 of 1990 (3 

CFR 1949–1953 Comp., p. 1004); Department 

of Commerce Organization Order No. 35–2A, 

July 22, 1987, as amended, and No. 35–2B, 

December 20, 1996, as amended; Pub. L. 107– 

228, 116 Stat. 1350. 

■ 2. Amend § 30.1(c) by adding 

definitions for ‘‘Kimberley Process 

Certificate (KPC)’’ and ‘‘Voided 

Kimberley Process Certificate’’ to read 

as follows: 

§ 30.1 Purpose and definitions. 

* * * * * 

(c) * * * 

Kimberley Process Certificate (KPC). A 

forgery resistant document used to 

certify the origin of rough diamonds 

from sources which are free of conflict. 

* * * * * 

Voided Kimberley Process Certificate. 

A Kimberley Process Certificate 

intended to be used for the exportation 

of rough diamonds from the United 

States that has been cancelled for 

reasons such as loss or error. 

* * * * * 

■ 3. Amend § 30.4 by adding paragraph 

(e) to read as follows: 

§ 30.4 Electronic Export Information filing 

procedures, deadlines, and certification 

statements. 

* * * * * 

(e) Collection of KPCs and voided 

KPCs. Any voided KPC must be faxed 

by the voiding party to the Census 

Bureau on (800) 457–7328, or provided 

by other methods as permitted by the 

Census Bureau immediately upon 

voiding. The collection of KPCs, 

including voided KPCs, is performed 

pursuant to the Clean Diamond Trade 

Act, Public Law 108–19, 19 U.S.C. 

Section 3901 et seq. (CDTA) and 

Executive Order 13312, and not Title 13, 

U.S.C. 

■ 4. Amend § 30.7 by revising paragraph 

(c) to read as follows: 

§ 30.7 Annotating the bill of lading, air 

waybill, or other commercial loading 

documents with proof of filing citations, 

and exemption legends. 

* * * * * 

(c) Exports of rough diamonds 

classified under HS subheadings 

7102.10, 7102.21, 7102.31 require the 

proof of filing citation, as stated in 

paragraph (b) of this section, to be 

indicated on the Kimberley Process 

Certificate (KPC). In addition, the KPC 

must be faxed to the Census Bureau on 

(800) 457–7328, or provided by other 

methods as permitted by the Census 

Bureau, immediately after export of the 

shipment from the United States. 

■ 5. Amend § 30.50 by revising 

paragraph (c) to read as follows: 

§ 30.50 General requirements for filing 

import entries. 

* * * * * 

(c) The Kimberley Process Certificate 

(KPC) for all imports of rough diamonds 

classified under HS subheadings 

7102.10, 7102.21, 7102.31 must be faxed 

by the importer or customs broker to the 

Census Bureau on (800) 457–7328, or 

provided by other methods as permitted 

by the Census Bureau, immediately after 

entry of the shipment in the United 

States. 

■ 6. Amend § 30.60 by adding a note to 

read as follows: 

§ 30.60 Confidentiality of Electronic Export 

Information. 

* * * * * 

Note to § 30.60: Kimberley Process 

Certificates (KPCs), including voided KPCs, 

provided to the Census Bureau pursuant to 

the Clean Diamond Trade Act, Executive 

Order 13312, and this Part are not considered 

EEI and are not confidential under Title 13. 

■ 7. Amend § 30.70 by revising the 

introductory text to read as follows: 

§ 30.70 Violation of the Clean Diamond 

Trade Act. 

Section 8(c) of the Clean Diamond 

Trade Act (CDTA) authorizes U.S. 

Customs and Border Protection (CBP) 

and U.S. Immigration and Customs 

Enforcement (ICE) to enforce the laws 

and regulations governing exports of 

rough diamonds. The Treasury 

Department’s Office of Foreign Assets 

Control’s (OFAC) also has enforcement 

authority pursuant to section 5(a) of the 

CDTA, Executive Order 13312, and 

Rough Diamonds Control Regulations 

(31 CFR 592). CBP, ICE, and the OFAC 

are authorized to enforce provisions of 

the CDTA that provide for the following 

civil and criminal penalties: 

* * * * * 

Dated: September 22, 2017. 

Ron S. Jarmin, 

Associate Director for Economic Programs, 

Performing the Non-Exclusive Functions and 

Duties of the Director, Bureau of the Census. 

[FR Doc. 2017–20920 Filed 9–28–17; 8:45 am] 

BILLING CODE 3510–07–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

23 CFR Parts 771 and 774 

Federal Railroad Administration 

49 CFR Part 264 

Federal Transit Administration 

49 CFR Part 622 

[Docket No. FHWA–2015–0011] 

FHWA RIN 2125–AF60 

FRA RIN 2130–AC64 

FTA RIN 2132–AB26 

Environmental Impacts and Related 

Procedures 

AGENCY: Federal Highway 

Administration (FHWA), Federal 

Railroad Administration (FRA), Federal 

Transit Administration (FTA), DOT. 

ACTION: Supplemental notice of 

proposed rulemaking (SNPRM). 

SUMMARY: This SNPRM provides 

interested parties the opportunity to 

comment on the proposed revisions to 

the FHWA and FTA joint regulations 

implementing the National 

Environmental Policy Act (NEPA) and 

Section 4(f) requirements. The FHWA, 

FRA, and FTA (hereafter referred to as 

‘‘the Agencies’’) propose these revisions 

after the enactment of the Fixing 

America’s Surface Transportation 

(FAST) Act, which requires a 

rulemaking to address programmatic 

approaches in environmental reviews 

and makes other changes to existing law 

that should be addressed in a 

rulemaking. In this SNPRM the 

Agencies also propose to add FRA to 

regulations governing environmental 

impact and related procedures and the 

parks, recreation areas, wildlife and 

waterfowl refuges, and historic site, 

making those regulations FRA’s NEPA 

implementing procedures and FRA’s 

Section 4(f) implementing regulations, 

respectively. This SNPRM proposes to 

modify the FHWA/FTA Environmental 

Impact and Related Procedures due to 

changes to the environmental review 

process made by the FAST Act and to 

modify the Parks, Recreation Areas, 

Wildlife and Waterfowl Refuges, and 

Historic Sites regulations due to new 

exceptions created by the FAST Act. 

Lastly, the Agencies request comments 

regarding the current FHWA and FTA 

definition of ‘‘existing operational rightof-way’’ in their respective categorical 

exclusion sections. The Agencies seek 

comments on the proposals in this 

document. 


asabaliauskas on DSKBBXCHB2PROD with PROPOSALS
Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules 45531 

DATES: The Agencies must receive 

comments on or before November 28, 

2017. 

ADDRESSES: To ensure you do not 

duplicate your docket submissions, 

please submit them by only one of the 

following means: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for submitting 

comments. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Ave. SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery: West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Ave. SE., between 9 a.m.–5 

p.m., Monday through Friday, except 

Federal holidays. The telephone number 

is (202) 366–9329. 

Instructions: You must include the 

agency name and docket number or the 

Regulatory Identification Number (RIN) 

for the rulemaking at the beginning of 

your comments. All comments received 

will be posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: For 

FHWA: Neel Vanikar, Office of Project 

Delivery and Environmental Review, 

HEPE, (202) 366–2068, Neel.Vanikar@

dot.gov, or Diane Mobley, Office of the 

Chief Counsel, (202) 366–1366, 

Diane.Mobley@dot.gov. For FRA: 

Michael Johnsen, Office of Program 

Delivery, (202) 493–1310, 

michael.johnsen@dot.gov, or 

Christopher Van Nostrand, Office of 

Chief Counsel, (202) 493–6058, 

Christopher.Vannostrand@dot.gov. For 

FTA: Megan Blum, Office of Planning 

and Environment, (202) 366–0463, 

Megan.Blum@dot.gov, or Helen 

Serassio, Office of Chief Counsel, (202) 

366–1974, Helen.Serassio@dot.gov. The 

Agencies are located at 1200 New Jersey 

Ave. SE., Washington, DC 20590–0001. 

Office hours are from 8:00 a.m. to 4:30 

p.m. E.T., Monday through Friday, 

except Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Background 

On December 4, 2015, President 

Obama signed into law the FAST Act 

(Pub. L. 114–94, 129 Stat. 1312). The 

FAST Act contains new requirements 

the Agencies must follow to comply 

with NEPA (42 U.S.C. 4321 et seq.) and 

Section 4(f) (23 U.S.C. 138 and 49 U.S.C. 

303). This SNPRM includes proposed 

changes to 23 CFR part 771 to address 

the following issues: (1) Section 1304(k) 

which requires a rulemaking regarding 

programmatic approaches; (2) certain 

amendments to 23 U.S.C. 139 made by 

section 1304; and (3) the section 11503 

requirement that the Secretary of 

Transportation (Secretary) apply, to the 

greatest extent feasible, the project 

development procedures described in 

23 U.S.C. 139 to railroad projects 

requiring the Secretary’s approval under 

NEPA (49 U.S.C. 24201(a)). With respect 

to 23 CFR part 774, the SNPRM includes 

proposed changes to the Agencies’ 

Section 4(f) procedures to reflect the 

two new Section 4(f) exceptions created 

in the FAST Act (sections 1303 and 

11502). In addition, FRA also proposes 

joining 23 CFR part 774. 

General Discussion of the Proposals 

The following sections of the FAST 

Act affect 23 CFR parts 771 and 774, 

and are addressed in this SNPRM: 

• Section 1303 amends Section 4(f) to 

create an exception for certain common 

post-1945 concrete or steel bridges and 

culverts; 

• Section 1304 revises certain 

elements of the Agencies’ 

environmental review process at 23 

U.S.C. 139; 

• Section 1304(k) replaces a 

rulemaking requirement created by the 

Moving Ahead for Progress in the 21st 

Century Act (MAP–21), Public Law 112– 

141, 126 Stat. 405, with a new 

rulemaking requirement to implement 

the programmatic approaches provision 

in 23 U.S.C. 139(b)(3); 

• Section 11502 amends Section 4(f) 

to create a railroad or rail transit line 

exception when certain conditions are 

met; and, 

• Section 11503 requires the 

Secretary apply, to the greatest extent 

feasible, the project development 

procedures described in 23 U.S.C. 139 

to railroad projects requiring the 

Secretary’s approval under NEPA. 

SNPRM Rationale 

This SNPRM supplements the notice 

of proposed rulemaking (NPRM) FHWA 

and FTA issued on November 20, 2015 

(November 2015 NPRM) (80 FR 72624, 

Docket No. FHWA–2015–0011). The 

November 2015 NPRM proposed 

changes to the FHWA/FTA 

Environmental Impact and Related 

Procedures regulations (23 CFR part 

771) and the Parks, Recreation Areas, 

Wildlife and Waterfowl Refuges, and 

Historic Site regulations (23 CFR part 

774). Primarily, FHWA and FTA issued 

the November 2015 NPRM to address 

certain changes to the environmental 

review process imposed by MAP–21. 

The comment period for the 

November 2015 NPRM closed on 

January 19, 2016. The FHWA and FTA 

received 14 comment letters for 

consideration. During the November 

2015 NPRM comment period, President 

Obama signed the FAST Act into law. 

The FHWA and FTA did not pursue a 

final rule following the November 2015 

NPRM because certain FAST Act 

provisions affected portions of the 

regulatory provisions addressed in the 

November 2015 NPRM and because 

certain other FAST Act provisions are 

appropriately addressed in a 

rulemaking. The Agencies now propose 

addressing those changes to parts 771 

and 774 in this SNPRM. 

The Agencies used the proposals in 

the November 2015 NPRM as the 

baseline for this SNPRM (e.g., section/ 

paragraph organization and language). 

All substantive comments received on 

the November 2015 NPRM and this 

SNPRM, as well as the appropriate 

responses to both sets of comments, will 

be addressed in a final rule should a 

final rule be issued. The docket contains 

a redline that captures both the 

November 2015 NPRM and this 

SNPRM’s changes. 

This SNPRM contains proposals 

satisfying the rulemaking requirements 

in FAST Act sections 1304(k) and 

11503, and addresses changes to 23 

U.S.C. 139 (Efficient Environmental 

Reviews for Project Decisionmaking), 23 

U.S.C. 138 (Preservation of Parklands), 

and 49 U.S.C. 303 (Policy on Lands, 

Wildlife and Waterfowl Refuges, and 

Historic Sites) FAST Act sections 1304, 

1303, and 11502 made, respectively. 

The SNPRM also proposes to add FRA 

to parts 771 and 774. 

Applicability of 23 CFR Part 771 to 

FRA Actions 

Section 11503 of the FAST Act 

requires the Secretary, among other 

things, to apply, to the greatest extent 

feasible, the project development 

procedures described in 23 U.S.C. 139 

(Efficient Environmental Reviews for 

Project Decisionmaking) to railroad 

projects requiring the Secretary’s 

approval under NEPA. The Secretary 

must incorporate into FRA regulations 

and procedures for railroad projects 

aspects of the 23 U.S.C. 139 project 

development procedures, or portions 

thereof, that increase the efficiency of 

the review of railroad projects 

consistent with section 11503. 

The FRA has determined that 

applying 23 CFR part 771 to railroad 

actions is the most efficient way to 

comply with section 11503. By joining 

part 771, FRA would not need to 

develop entirely new NEPA regulations 

for railroads projects. On June 9, 2016, 

FRA published a notice in the Federal 

Register requesting public comment on 

the application of part 771 to FRA’s 


asabaliauskas on DSKBBXCHB2PROD with PROPOSALS
45532 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules 

railroad projects (81 FR 37237, June 9, 

2016). The comment period ended on 

July 11, 2016. The FRA received one 

comment on this notice from the 

Association of American Railroads 

(AAR). The commenter suggested that 

FRA develop its own regulations rather 

than adopt 23 CFR part 771 because of 

perceived difficulties applying certain 

requirements to freight railroad projects 

on privately owned infrastructure. 

While many of the FHWA and FTA 

actions are sponsored by government 

entities (e.g., State DOTs), the 

regulations can be applied to the actions 

on privately owned railroad 

infrastructure. This SNPRM proposes 

certain modifications to 23 CFR part 771 

to accommodate railroad projects. 

Section 11503 of the FAST Act also 

required FRA to survey its use of NEPA 

categorical exclusions (CE) in railroad 

projects since 2005. On June 2, 2016, 

FRA published a notice in the Federal 

Register providing the public with a 

review of FRA’s survey, requesting 

comments on two new classes of actions 

that might be appropriate for categorical 

exclusion, and requesting suggestions 

for additional categories of activities 

appropriate for exclusion (81 FR 35437, 

June 2, 2016) (June Notice). The 

comment period ended on July 5, 2016. 

The FRA received comments from the 

AAR, the Michigan Department of 

Transportation and the Oregon 

Department of Transportation which are 

addressed in the section-by-section 

analysis below. This SNPRM satisfies 

the FAST Act section 11503 

requirement that the Secretary publish 

an NPRM proposing new and existing 

CEs for railroad projects requiring the 

Secretary’s approval. 

The FRA proposes to join the 23 CFR 

part 774 regulations implementing 

Section 4(f). FRA determined joining 23 

CFR part 774 would further align its 

environmental review processes with 

the FHWA and FTA processes. This 

would create consistency implementing 

Section 4(f) and provide clarity to FRA’s 

applicants and project sponsors. 

Additionally, it eliminates FRA’s need 

to update the Section 4(f) sections of its 

existing Environmental Procedures; if 

FRA only joined 23 CFR part 771, the 

part 771 regulations would supersede 

most, if not all, of FRA’s Environmental 

Procedures, and FRA would still need to 

revise the Section 4(f) sections. In 

addition, FRA currently follows 23 CFR 

part 774 and associated FHWA and FTA 

guidance as guidance when it applies 

Section 4(f) to railroad projects and 

officially joining the regulations would 

not significantly change FRA’s current 

practice. In the future, DOT may 

consider proposing a Department-wide 

rule or updating Department-wide 

guidance on the implementation of 

Section 4(f). 

This SNPRM would also amend part 

264 in title 49 to add a cross reference 

23 CFR part 771 and 23 CFR part 774, 

and the Agencies propose changing the 

heading to ‘‘Environmental Impact and 

Related Procedures.’’ 

Section-by-Section Discussion of the 

Proposals 

NEPA Regulation Changes (Part 771) 

General 

There are two general proposals to 

note. First, the Agencies propose to list 

the Agencies in alphabetical order (e.g., 

‘‘FHWA, FRA, and FTA’’) whenever it is 

necessary to list all three agencies. This 

change would apply throughout the 

regulation. Second, the Agencies 

propose ‘‘final EIS’’ as the acronym for 

‘‘final environmental impact statement’’ 

(instead of ‘‘FEIS’’) throughout 23 CFR 

part 771 to provide consistency. 

Section 771.101 Purpose 

The Agencies propose to modify this 

section to add the appropriate 

references to FRA and railroad projects, 

which would allow FRA to use part 771 

as its procedures for implementing 

NEPA. The Agencies also propose 

updating the list of references in the last 

sentence to remove MAP–21 section 

1319 because it was codified at 23 

U.S.C. 139(n) and 49 U.S.C. 304a, and 

to add FAST Act section 1304. 

Section 771.105 Policy 

Through the November 2015 NPRM, 

FHWA and FTA proposed several 

revisions to 23 CFR part 771 to satisfy 

the programmatic approaches 

rulemaking requirement created by 

MAP–21, section 1305. To satisfy the 

programmatic approaches rulemaking 

requirement created by FAST Act, 

section 1304(k), the Agencies propose 

revising paragraph (b), originally 

proposed in the November 2015 NPRM, 

by including the parenthetical 

‘‘(including the requirements found at 

23 U.S.C. 139(b))’’ after the words 

‘‘environmental requirements.’’ 

The Agencies also propose a nonsubstantive change to paragraph (e)(2) in 

the first sentence to correct a typo (‘‘fo’’ 

to ‘‘of’’). 

The Agencies are proposing to revise 

§ 771.105 to directly address 23 U.S.C. 

139(d)(8)-Single NEPA Document, 

which requires the Agencies develop a 

single NEPA document that can be used 

for all Federal permits and reviews for 

a project to the maximum extent 

practicable and consistent with Federal 

law. The Agencies propose revising 

paragraph (a) by replacing ‘‘to the fullest 

extent possible’’ with ‘‘to the maximum 

extent practicable and consistent with 

Federal law’’ to reflect 23 U.S.C. 

139(d)(8) language. The policy 

statement applies broadly to the 

environmental review process and 

specifically encourages all 

environmental reviews and 

requirements (including permits) be 

addressed in a single process and 

environmental review document. 

Section 771.107 Definitions 

The Agencies propose to modify three 

definitions to add FRA’s railroad 

projects. Specifically, the Agencies 

propose adding ‘‘railroad’’ projects, 

‘‘FRA,’’ and ‘‘rulemakings’’ to the list of 

examples of major Federal actions in the 

definition of ‘‘Action,’’ and the Agencies 

propose adding ‘‘FRA’’ in all locations 

where FHWA and FTA are listed in the 

definition of ‘‘Administration.’’ The 

Agencies also propose similar changes 

to the definition of ‘‘Administration 

action’’ by adding ‘‘FRA’’ approval, and 

‘‘rulemakings’’ to the list of activities 

needing Agency approval. 

Section 771.109 Applicability and 

Responsibilities 

In paragraph (a)(1), the Agencies 

propose to clarify that the part 771 

regulations and the Council on 

Environmental Quality (CEQ) 

regulations (40 CFR parts 1500–1508) 

apply where one of the Agencies 

exercises sufficient control to condition 

an approval, not just a ‘‘permit or 

project approval,’’ by including ‘‘other’’ 

prior to ‘‘approvals’’ (i.e., ‘‘. . . 

condition the permit, project, or other 

approvals’’). The Agencies are 

proposing this change to accommodate 

FRA’s potential actions related to its 

safety programs. 

The Agencies are not proposing to 

modify paragraph (a)(3) to specifically 

address when the regulations would 

apply to FRA projects. The FRA would 

apply these regulations to projects 

initiated (through publishing a notice of 

intent for an environmental impact 

statement or determining to initiate an 

environmental assessment) after the 

Agencies issue a final rule, if one is 

issued. Until such time, FRA will 

continue to follow its Procedures for 

Considering Environmental Impacts 

(Environmental Procedures) (64 FR 

28545, May 26, 1999, updated 78 FR 

2713, Jan. 14, 2013). However, as 

required by the FAST Act, FRA will also 

follow the project development 

procedures described in 23 U.S.C. 139 

for its railroad projects initiated after 

December 4, 2015 unless the project is 

subject to a funding arrangement under 


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Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules 45533 

title 49, U.S.C. the Secretary approved 

before December 4, 2015. 

In paragraph (b)(1), the Agencies 

propose to add ‘‘FRA’’ as an agency that 

will assure implementation of 

committed mitigation measures by 

including the mitigation measures by 

reference in the grant agreement, 

followed by reviews of design and 

construction inspections. 

In paragraph (c)(2), FRA added 

reference to FRA’s financial assistance 

programs. 

In paragraph (c)(7), the Agencies 

propose several revisions to reflect 

changes to participating agencies’ 

responsibilities under section 1304 of 

the FAST Act, codified at 23 U.S.C. 

139(c)(6), (d)(9), (f)(4), and (g)(1). 

Section 139(c)(6)(C) requires the lead 

agency consider and respond to 

comments within a participating 

agency’s special expertise or 

jurisdiction. Similarly, section 139(d)(9) 

requires participating agencies to 

provide comments, responses, studies, 

or methodologies within the agency’s 

special expertise or jurisdiction, and to 

use the process to address its 

environmental issues of concern. 

Section 139(f)(4)(A)(ii) mandates 

participating agencies limit their 

agency’s comments to the subject matter 

areas within their agency’s special 

expertise or jurisdiction, to the 

maximum extent practicable and 

consistent with Federal law. Lastly, 

section 139(g)(1)(B) now requires the 

coordination plan that the lead agency 

develops under 23 U.S.C. 139 include a 

schedule, which must receive 

participating agency concurrence. 

In response to these changes to 23 

U.S.C. 139, the Agencies propose adding 

that participating agencies are 

responsible for providing input within 

their agency’s special expertise or 

jurisdiction and providing concurrence 

on the schedule that now must be 

included in the coordination plan. The 

Agencies propose paragraph (c)(7) reads 

as set out in the regulatory text below. 

The Agencies interpret the proposed 

language ‘‘providing input, as 

appropriate’’ to include the requirement 

at 23 U.S.C. 139(d)(9) that participating 

agencies’ input include ‘‘comments, 

responses, studies, or methodologies on 

those areas within the special expertise 

or jurisdiction of the agency’’ and, 

therefore, did not specifically list those 

activities in this paragraph or elsewhere 

in the regulation. The Agencies 

determined that listing those four 

specific activities is unnecessarily 

limiting and could lead a project 

sponsor to believe an unlisted method 

of providing input is not permitted. 

The Agencies further propose adding 

a new paragraph (e), which describes 

FRA’s requirements for third party 

contracting where the project sponsor is 

a private entity and there is no qualified 

applicant as defined in § 771.107. In 

that situation, FRA proposes to require 

third party contracting for all EISs and 

may also require them for EAs. When 

using a third party contract, the project 

sponsor retains a contractor to assist 

FRA in conducting the environmental 

review, and the contractor works under 

the direction, supervision and control of 

FRA. A third party contracting structure 

would be memorialized in a 

memorandum of understanding among 

FRA, the contractor, and the project 

sponsor. This paragraph is intended to 

ensure compliance with FRA’s 

responsibilities for EIS preparation in 

the CEQ implementing regulations at 40 

CFR 1506.5(c). 

The Agencies propose an associated 

change to the beginning of paragraph 

(b)(6), which addresses the role of a 

project sponsor that is a private entity. 

The proposed change reads, ‘‘Subject to 

paragraph (e).’’ 

Section 771.111 Early Coordination, 

Public Involvement, and Project 

Development 

The Agencies propose several 

additions to § 771.111 to reflect various 

FAST Act changes to 23 U.S.C. 139. To 

reflect planning and environmental 

tools not previously listed, the Agencies 

propose adding references to 23 U.S.C. 

139(f) (Purpose and need; alternatives 

analysis) and 23 U.S.C. 169 

(Development of programmatic 

mitigation plans) to the list in paragraph 

(a)(2)(i). Section 139(f)(4)(E) of title 23 

U.S.C. establishes a new process for 

reducing duplication between the 

planning and NEPA evaluation of 

alternatives processes by eliminating 

planning alternatives from detailed 

consideration under NEPA when certain 

conditions are met. Section 169 of title 

23 U.S.C. includes an optional 

framework for creating programmatic 

mitigation plans during the 

transportation planning process, and 

gives substantial weight to 

programmatic mitigation plans in the 

environmental review process. Note that 

a recent final rule (81 FR 34049, May 27, 

2016; Docket No. FHWA–2013–0037) 

modified 23 CFR part 450, which 

implements 23 U.S.C. 168 and 169. 

Please visit the docket for more 

information regarding specific changes 

to the planning and environmental 

linkages processes. The Agencies also 

added ‘‘as applicable’’ to paragraph 

(a)(2)(i) to acknowledge the three 

Agencies may have different processes 

or requirements authorized by statute 

among themselves. For example, 23 

U.S.C. 139 applies to FRA, but 23 U.S.C. 

168 does not. 

The Agencies propose adding the 

requirement that a lead agency, in 

consultation with participating 

agencies, will develop an environmental 

checklist, as appropriate, to assist in 

resource and agency identification to 

the end of paragraph (a)(3) to reflect the 

new environmental checklist language 

found at 23 U.S.C. 139(e)(5). The 

Agencies interpret the statutory 

language in 23 U.S.C. 139(e)(5)(A) (‘‘The 

lead agency for a project . . . shall 

develop, as appropriate, a checklist to 

help project sponsors identify potential 

natural, cultural, and historic resources 

. . . .’’) as providing flexibility through 

the phrase ‘‘as appropriate.’’ The 

Agencies are, therefore, proposing ‘‘will 

develop an environmental checklist, as 

appropriate’’ to reflect the statutory 

flexibility that allows lead agencies, 

including project sponsors, to develop 

environmental checklists when needed 

to facilitate the environmental process. 

The Agencies propose renumbering 

existing paragraph (b) as (b)(1) and 

adding a new paragraph (b)(2). Proposed 

paragraph (b)(2) would state that for 

projects to be evaluated with an EIS, the 

Administration will respond in writing 

to a project sponsor’s formal project 

notification within 45 days of receipt. 

This to respond to the new ‘‘review of 

application’’ paragraph at 23 U.S.C. 

139(e)(3), which builds off the existing 

project notification process established 

under the Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A 

Legacy of Users (SAFETEA–LU). The 

Agencies identify EISs in the proposed 

language because the procedures 

outlined in 23 U.S.C. 139 are 

‘‘applicable to all projects for which an 

[EIS] is prepared under [NEPA]’’ (23 

U.S.C. 139(b)(1)). The Agencies may 

apply the section 139 procedures to 

other classes of projects on a case-bycase basis but section 139 is only 

required for EISs, and the Agencies 

want to underscore that fact. 

In paragraph (c), the Agencies propose 

adding that a project sponsor may 

request the Secretary to designate the 

lead Federal agency when project 

elements fall within multiple DOT 

agencies’ expertise. This addition 

responds to 23 U.S.C. 139(e)(4), but 

adds clarity regarding the provision’s 

applicability. In most instances, the 

Agencies expect project sponsors will 

continue to contact FHWA, FRA, or 

FTA to determine the Federal lead 

agency, as is current practice. 

The Agencies propose building on the 

existing language regarding cooperating 


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and participating agency invitations in 

paragraph (d) by adding timing language 

for those agencies’ identification. The 

Agencies would require that the lead 

agencies identify participating agencies 

within 45 days from publication of the 

notice of intent at the end of paragraph 

(d) to address the new requirement to 

identify participating agencies within 45 

days at 23 U.S.C. 139(d)(2). 

The Agencies propose adding a 

reference to FRA programs to paragraph 

(i) and its subordinate paragraphs, 

clarifying that FRA is adopting the 

approach that applicants in FTA’s 

capital assistance programs use to 

engage the public. The Agencies also 

propose to add a reference to ‘‘the scope 

of the NEPA analysis’’ as an issue that 

the public or agencies might comment 

on during the 30-day period following 

the publication of a Notice of Intent. 

Additionally, the Agencies propose 

replacing ‘‘NEPA documents’’ with 

‘‘environmental documents’’ in 

paragraph (i)(3) to be consistent with 40 

CFR 1508.10. CEQ uses the term 

‘‘environmental document’’ to refer to 

EIS, EA, finding of no significant 

impact, and record of decision 

documents broadly, which also is the 

Agencies’ intent in paragraph (i)(3). 

The Agencies propose to add FRA’s 

contact information to paragraph (j). 

Section 771.113 Timing of 

Administration Activities 

In paragraph (a), the Agencies propose 

to add the word ‘‘environmental’’ before 

the word ‘‘studies’’ for consistency with 

the term’s use in the regulation. 

The Agencies propose to add 

paragraph (d)(4), which would create an 

FRA-specific exemption to the 

paragraph (a)(1) prohibition on 

proceeding with final design activities, 

property acquisition, purchase of 

construction materials or rolling stock, 

or project construction until the NEPA 

process is complete. The proposal is 

consistent with FRA policy and allows 

FRA to makes certain case-by-case 

exceptions for the purchase of railroad 

components or materials that can be 

used in other projects or resold. This is 

not a blanket exemption, and FRA 

would make case-by-case 

determinations based on the 

information available at the time to 

ensure such activities would not 

improperly influence the outcome of the 

NEPA process. 

Section 771.115 Classes of Actions 

In paragraph (a)(4), the Agencies 

propose to change ‘‘highway facility’’ to 

‘‘transportation right-of-way’’ for 

consistency in this section and across 

modes. This change is not meant to 

change the meaning of the term. 

The Agencies propose to add 

paragraph (a)(6), which would provide 

examples of FRA actions it finds 

normally require an EIS. Under this 

proposal, FRA would typically prepare 

an EIS for ‘‘new construction of major 

railroad lines or facilities (e.g., terminal 

passenger stations, freight transfer 

yards, or railroad equipment 

maintenance facilities) that will not be 

located within an existing 

transportation right-of-way.’’ These 

examples are generally consistent with 

FRA’s existing NEPA procedures and 

also the examples of FHWA and FTA 

actions normally requiring an EIS. 

In paragraph (b), the Agencies 

propose to add a reference to FRA’s CEs 

in section 771.116. 

Section 771.116 FRA Categorical 

Exclusions 

The Agencies propose to add a new 

§ 771.116. Although the Agencies 

collectively propose to add this section, 

the development of the proposed CEs 

for each Agency is based on each 

Agency’s particular mission and 

programs, unique experiences, and 

existing lists of CEs. As a result, this 

section focuses on FRA’s proposed CEs. 

One commenter suggests that DOT have 

one uniform set of CEs and identified 

specific FHWA CEs that FRA should 

adopt for its railroad projects. Typically, 

DOT operating administrations (OA) 

identify categories of actions 

appropriate for categorical exclusion 

based on the individual OA’s 

experience. The FRA has identified and 

substantiated this proposed list of CEs 

based on its experience with these 

categories of actions. However, since 

many of the FHWA, FRA, and FTA 

actions are often similar, the actions 

may be covered in each OA’s CE list but 

with appropriate differences reflecting 

the experiences of the OAs. 

Additionally, 49 U.S.C. 304 authorizes 

the use by one OA of another OA’s CE 

in certain multimodal situations. 

Paragraph (a) of this section proposes 

to adopt the current text of §§ 771.117(a) 

and 771.118(a), as modified to apply to 

FRA. This proposed paragraph would 

define a CE as an action meeting the 

definition in the CEQ regulation and, 

based on FRA’s past experience, does 

not involve significant environmental 

impacts. Paragraph (b) of this section 

proposes to describe the circumstances 

FRA would use to determine whether an 

activity, normally meeting the 

requirements of a CE, would require 

further environmental study. The FRA’s 

proposal to adopt the FTA and FHWA 

list of unusual circumstances addresses 

a comment recommending FRA redraft 

its existing list of circumstances 

requiring further environmental study 

(Environmental Procedures, section 

4(e)). Proposed paragraph (b) clearly 

articulates the circumstances requiring 

further environmental study for FRA’s 

railroad projects and provides 

consistency with FHWA and FTA. 

One commenter suggests FRA identify 

a subset of CEs that require 

documentation and those that do not 

need ‘‘further NEPA approvals by FRA.’’ 

The FRA understands this comment as 

a suggestion to adopt a ‘‘(c)’’ and ‘‘(d)’’ 

list similar to those used by FHWA and 

FTA. The FRA considered this approach 

but does not propose to distinguish 

between different classes of CEs and 

will instead continue to use one 

comprehensive list and decide the 

appropriate standards for 

documentation on a project-by-project 

basis. 

Paragraph (c) of this section proposes 

to include the activities for categorical 

exclusion. The proposed list of activities 

in paragraph (c) is based on the CEs 

identified in FRA’s Environmental 

Procedures, including those CEs added 

in 2013. Since 2013, FRA has conducted 

an internal review of its CEs to ensure 

their continued appropriate use and 

usefulness. Based on FRA’s internal 

review and the comments received on 

the June Notice, paragraph (c) of this 

section proposes to make minor edits to 

several of the existing CEs; to eliminate 

unnecessary or duplicative CEs; and to 

add two new CEs. 

Support for FRA’s proposals is 

included in a CE substantiation 

document. The CE substantiation 

document relies on internal FRA expert 

opinion, FRA’s experience managing 

projects and other activities related to 

railroad safety and infrastructure 

development, and FRA’s review of 

similar CEs used by other DOT OAs and 

other Federal agencies (often referred to 

as ‘‘comparative benchmarking’’). For 

additional information, including a 

description of the CEs FRA proposes to 

eliminate, please see the CE 

substantiation document, which FRA 

has included in the docket for public 

review. The following discussion 

focuses on the proposed new CEs and 

those FRA proposes to modify. 

Paragraph (c) proposes no changes to 

the following CEs (as compared to 

FRA’s current Procedures for 

Considering Environmental Impacts): 

Paragraph (c)(2) covering personnel 

actions; paragraph (c)(6) covering 

rulemakings issued under section 17 of 

the Noise Control Act of 1972; 

paragraph (c)(8) covering hearings, 

meetings, or public affairs activities; 


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paragraph (c)(16) covering alterations to 

existing facilities, locomotives, stations, 

and rail cars to make them accessible for 

the elderly and persons with 

disabilities; paragraph (c)(19) covering 

the installation, repair and replacement 

of equipment and small structures 

designed to promote transportation 

safety, security, accessibility, 

communication or operational 

efficiency; paragraph (c)(22) covering 

the assembly or construction of facilities 

or stations; and paragraph (c)(23) 

covering track and track structure 

maintenance and improvements. 

Proposed paragraph (c)(1) provides a 

CE addressing administrative 

procurements, contracts for personal 

services, and training. Proposed 

paragraph (c)(3) modifies an existing 

FRA CE by adding ‘‘training’’ to the list 

of covered activities. 

Proposed paragraph (c)(3) provides a 

CE addressing planning or design 

activities that do not commit FRA to a 

particular course of action affecting the 

environment. Proposed paragraph (c)(3) 

is a modification of an existing FRA CE 

as it eliminates the limitation that the 

planning or design activity must be 

funded through FRA’s financial 

assistance or FRA’s own procurement 

process. 

Proposed paragraph (c)(4) provides a 

CE addressing localized geotechnical 

and other investigations that provide 

information for preliminary design and 

for environmental analyses and 

permitting purposes, such as: Drilling 

test bores for soil sampling; 

archeological investigations for 

archeology resources assessment or 

similar survey; and wetland surveys. 

This proposed CE covers investigations 

and surveys that inform environmental 

analyses and preliminary engineering 

for rail projects. These activities include 

geotechnical, geophysical, and other 

subsurface investigations, pedestrian 

and ground disturbing archaeological 

surveys and testing to determine 

eligibility for the National Register of 

Historic Places, and wetland surveys for 

purposes of wetland delineation or 

jurisdictional determinations. In FRA’s 

experience, the impacts of these 

activities are generally minor in nature 

and any impacts are localized to the 

investigation or survey sites. This CE is 

consistent with existing FHWA and 

FTA CEs at 23 CFR 771.117(c)(24) and 

23 CFR 771.118(c)(16), respectively. 

FRA identified these activities as 

potentially appropriate for categorical 

exclusion in the June Notice. The FRA 

received one comment supporting this 

CE. 

Proposed paragraph (c)(5) provides a 

CE addressing internal orders, policies, 

and procedures that FRA is not required 

to publish in the Federal Register under 

the Administrative Procedure Act, 5 

U.S.C. 552(a)(1). This proposed CE is 

similar to an existing FRA CE. However, 

proposed paragraph (c)(5) would add 

‘‘policies’’ to the list of activities 

covered by the CE. 

Proposed paragraph (c)(7) provides a 

CE addressing the provision of financial 

assistance for a project where the 

financial assistance would fund a 

completed activity. For example, FRA 

may be involved in projects where an 

applicant requests financial assistance 

to refinance a loan. In that case, the 

agency’s decision is merely a financial 

transaction that would not itself lead to 

any environmental impacts. The FRA 

identified these activities as potentially 

being appropriate for categorical 

exclusion in the June Notice. FRA 

received one comment supporting this 

CE. 

Proposed paragraph (c)(9) provides a 

CE addressing maintenance or repair of 

existing railroad equipment. The 

proposed CE is a modified version of an 

existing FRA CE. Specifically, paragraph 

(c)(9) would move the phrase ‘‘existing 

railroad facilities’’ to the beginning of 

the CE. This clarifies that the list 

including equipment; track and bridge 

structures; and electrification, 

communication, signaling or security 

facilities are non-exclusive examples of 

existing railroad facilities. Paragraph 

(c)(9) would also clarify the scope of the 

CE to include ‘‘repair’’ activities. In 

FRA’s experience, the scope of the 

potential impacts resulting from repair 

activities is generally similar to those 

that might occur during routine 

maintenance. The primary difference 

between the two is that unlike 

maintenance, repair activities may not 

occur on a regular or reoccurring basis. 

Paragraph (c)(9) would also remove the 

definition of maintenance because it is 

unnecessary. One commenter suggests 

modifying paragraph (c)(9) to add a 

reference to right-of-way in the 

definition of ‘‘maintenance.’’ However, 

this modification is unnecessary since 

FRA’s proposal would eliminate the 

definition of maintenance. 

Proposed paragraph (c)(10) provides a 

CE addressing the emergency repair or 

replacement of an essential rail facility 

damaged by a natural disaster or 

catastrophic failure. This proposed CE is 

similar to an existing FRA CE; however, 

proposed paragraph (c)(10) would 

clarify that repairs following an 

emergency are also covered by the CE; 

define repair and replacement to 

include reconstruction, restoration, or 

retrofitting; clarify that when 

conducting the repair and replacement, 

the rail facility may be upgraded as 

necessary to meet existing codes and 

standards; remove the unnecessary 

limitation that the CE apply only to 

‘‘temporary’’ replacements; and remove 

the reference to the immediacy of the 

repairs in relation to the disaster or 

catastrophic failure. One commenter 

suggests that FRA adopt the ‘‘emergency 

repairs’’ CE applied by FHWA and FTA 

at 23 CFR 771.117(c)(9) and 23 CFR 

771.118(c)(11), respectively. In this 

SNPRM, FRA proposes modifications to 

its existing emergency repair CE, 

including the incorporation of relevant 

language and concepts from 23 CFR 

771.117(c)(9) and 23 CFR 

771.118(c)(11). 

Proposed paragraph (c)(11) provides a 

CE addressing operating assistance to a 

railroad to continue existing service or 

an increase in service to meet demand. 

This proposed CE is similar to an 

existing FRA CE. The existing CE 

applies if the assistance will not result 

in a change in the impact or effect to the 

environment whereas proposed 

paragraph (c)(11) would modify the CE 

to focus on whether the project would 

result in significant changes to traffic 

density. The FRA finds focusing on 

change in traffic density for a CE 

covering operating assistance is more 

appropriate than the current imprecise 

limitation that the assistance will not 

result in a change in the effect on the 

environment. 

One commenter suggests revising 

proposed paragraph (c)(12) by removing 

the word ‘‘minor’’ before ‘‘rail line 

additions,’’ adding the phrase ‘‘or 

within existing right-of-way,’’ and 

modifying the CE’s limitations by 

adding the requirement that the project 

can be constructed in less than 6 

months and substantially within the 

existing right-of-way, and will not have 

additional significant environmental 

impacts beyond the existing rail yard or 

existing right-of-way. The FRA will not 

adopt the suggested change to remove 

‘‘minor’’ because FRA cannot 

substantiate such an expansion of the 

CE. However, FRA proposes to adopt 

the suggested phrase ‘‘or within existing 

right-of-way’’ since it is consistent with 

the current scope of the CE and 

appropriately limits construction to 

within the existing right-of-way. The 

FRA also proposes to keep its existing 

limitations (i.e., ‘‘[the] additions are not 

inconsistent with existing zoning, do 

not involve acquisition of a significant 

amount of right-of-way, and do not 

significantly alter the traffic density 

characteristics of the existing rail lines 

or rail facilities.’’) which are consistent 

with FRA’s experience with railroad 

projects rather than adopt the 


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commenter’s suggestion which 

unnecessarily narrows the applicability 

of the CE. 

Proposed paragraph (c)(13) provides a 

CE addressing the acquisition, transfer 

and right to use real property and 

certain railroad infrastructure. The 

proposed CE would modify an existing 

version of this FRA CE by eliminating 

the reference to ‘‘existing railroad 

equipment’’ because acquisition of 

equipment would be covered by the CE 

proposed in paragraph (c)(18). Proposed 

paragraph (c)(13) also would allow the 

acquisition of ‘‘real property.’’ The FRA 

proposes this addition because 

acquisition alone does not impact the 

environment. In addition, the proposed 

CE would move the phrase ‘‘existing 

railroad facilities’’ to the beginning of 

the CE to clarify that the list including 

equipment; track and bridge structures; 

and electrification, communication, 

signaling or security facilities are nonexclusive examples of existing railroad 

facilities. This is also consistent with 

the proposed structure of paragraph 

(c)(9). The proposed paragraph (c)(13) 

would also add ‘‘transfer’’ to the list of 

covered activities to accommodate 

potential FRA involvement in the 

transfer of real property or existing 

railroad facilities. This is consistent 

with an FTA CE at 23 CFR 771.118(c)(6). 

Proposed paragraph (c)(14) provides a 

CE addressing research, development, 

and demonstration activities. This 

proposed CE is similar to an existing 

FRA CE. However, proposed paragraph 

(c)(14) would expand the scope of the 

existing CE to include research, 

development, and demonstration 

activities beyond the development of 

signal, communication, or train control 

systems. While in the past this CE was 

almost exclusively used for the testing 

of train control systems, including 

Positive Train Control, FRA funds other 

research, development, and 

demonstration activities similar in 

scope, but involving different rail 

systems or infrastructure, are also 

appropriate for categorical exclusion. 

Proposed paragraph (c)(15) provides a 

CE addressing the promulgation of 

rules, the issuance of policy statements, 

the waiver of modification of existing 

regulatory requirements, and 

discretionary approvals. This proposed 

CE is similar to an existing FRA CE; 

however, proposed paragraph (c)(15) 

would add the waiver or modification of 

existing regulatory requirements and 

discretionary approvals, and remove the 

limitation that these activities be related 

to railroad safety. This proposed CE 

would retain the existing limitation for 

increases in environmental impacts and 

would not be used if FRA finds the 

activity would significantly increase 

emissions of air or water pollutants or 

noise. However, FRA proposes striking 

the clause in the existing CE reading ‘‘or 

increased traffic congestion in any mode 

of transportation.’’ 

Proposed paragraph (c)(17) provides a 

CE addressing rehabilitation, 

reconstruction, removal, construction, 

or replacement of bridges. This 

proposed CE is similar to an existing 

FRA CE but adds ‘‘removal’’ of bridges 

to the scope of covered activities. The 

FRA finds it is sometimes necessary to 

remove old railroad bridges without 

simultaneously building a new bridge. 

In those cases, the removal of the bridge 

is not substantially different then 

construction, rehabilitation, or 

replacement activities and would have 

similar types of impacts. The FRA is 

also proposing minor edits to the 

existing FRA CE for clarity. 

Proposed paragraph (c)(18) addresses 

acquisition, rehabilitation, transfer, or 

maintenance of vehicles or equipment. 

The proposed CE is similar to an 

existing FRA CE but moves the 

examples of vehicles and equipment to 

precede the CE’s proposed limitation. 

The FRA also proposes to focus the CE’s 

limitation on whether the activity 

significantly alters the traffic density 

characteristics of an existing rail line 

rather than whether the activity causes 

a substantial increase in the use of 

infrastructure within the existing rightof-way. This proposed change will 

create consistency with other FRA CEs. 

Proposed paragraph (c)(20) provides a 

CE addressing environmental 

restoration, remediation and pollution 

prevention activities. This proposed CE 

is similar to an existing FRA CE. 

However, proposed paragraph (c)(20) 

would remove the limitation that 

activities occur ‘‘in or proximate to 

existing and former railroad track, 

infrastructure, stations, or facilities.’’ In 

many cases, environmental restoration 

and natural resource management 

activities do not occur in close 

proximity to existing or former railroad 

track, infrastructure, stations, or 

facilities. Instead, these activities— 

including mitigation—must frequently 

be located to optimize the ecological 

value or benefit of the activity and are 

sited in consultation with, or at the 

direction of, various permitting 

agencies. 

One commenter suggests FRA adopt a 

number of existing FHWA CEs from the 

‘‘(c)-list’’ with minor modifications to 

accommodate railroad projects. Most of 

the activities covered by the identified 

FHWA CEs are already included in one 

or more of FRA’s proposed CEs. With 

respect to the FHWA CEs identified by 

the commenter, the activities described 

in § 771.117(c)(7) (landscaping) and 

§ 771.117(c)(6) (installation of noise 

barriers or alternations to existing 

publically owned buildings to provide 

for noise reduction) are included in the 

non-exclusive list of activities in 

proposed paragraph (c)(20); the 

activities described in § 771.117(c)(8)) 

(installation of fencing, signs, pavement 

markings, small passenger shelters, 

traffic signals, and railroad warning 

devises where no substantial land 

acquisition or traffic disruption will 

occur) and § 771.117(c)(27) (highway 

safety or traffic operations improvement 

projects, including the installation of 

ramp metering control devices and 

lighting, if the project meets the 

constraints in paragraph (e) of the 

section) are included in proposed 

paragraph (c)(19); the activities 

described in § 771.117(c)(14)) (bus and 

rail car rehabilitation), § 771.117(c)(17) 

(the purchase of vehicles where the use 

of the vehicles can be accommodated by 

existing facilities or new facilities which 

themselves are within a CE), and 

§ 771.117(c)(19) (purchase and 

installation of operating or maintenance 

equipment to be located within the 

transit facility and with no significant 

impacts off the site) are covered by 

proposed FRA CE paragraph (c)(18); the 

activities described in § 771.117(c)(18) 

(track and rail bed maintenance and 

improvements when carried out within 

the existing right-of-way) are covered by 

proposed paragraph (c)(22); and the 

activities described in § 771.117(c)(28) 

(bridge rehabilitation, reconstruction, or 

replacement or the construction of grade 

separation to replace existing at-grade 

railroad crossings, if the actions meet 

the constraints in paragraph (e) of the 

section) are covered by proposed 

paragraph (c)(17). 

The same commenter also suggests 

FRA adopt § 771.117(c)(2) (approval of 

utility installations along or across a 

transportation facility). At this time and 

based on FRA’s experience, FRA does 

not have a sufficient need for a CE 

addressing utility installations. To the 

extent utility work is being completed 

as part of an FRA action, the work is 

typically incidental to a railroad project 

and as such is generally analyzed in an 

environmental document (which may be 

a CE if appropriate) for that project. The 

commenter also suggests FRA adopt 

§ 771.117(d)(1) (modernization of a 

highway by resurfacing, restoration, 

rehabilitation, reconstruction, adding 

shoulders, or adding auxiliary lanes (e.g. 

parking, weaving, turning, climbing)). 

The FRA is proposing CEs similar in 

scope but directly applicable to railroad 


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projects (e.g., proposed paragraphs (c)(9) 

and (22)). 

One commenter suggests FRA modify 

paragraph (c)(16) to allow alterations to 

existing facilities, locomotives, stations, 

and rail cars even where the alterations 

are not for the purpose of making them 

accessible for the elderly and persons 

with disabilities. This modification 

would change the scope of the CE FRA 

added in 2013 based on FRA’s 

experience with projects intended to 

improve accessibility. However, FRA 

notes that these same activities may be 

covered by another FRA CE (e.g., 

proposed paragraph (c)(18)). 

One commenter suggests FRA adopt 

one FHWA ‘‘(d)-list’’ CE modified 

slightly to accommodate railroad 

projects. Specifically, the commenter 

suggests FRA adopt § 771.117(d)(8) 

(construction of new bus storage and 

maintenance facilities in areas used 

predominantly for industrial or 

transportation purposes where such 

construction is not inconsistent with 

existing zoning and located on or near 

a street with adequate capacity to 

handle anticipated bus and support 

vehicle traffic). These activities are 

included in proposed paragraph (c)(21). 

One commenter asks FRA to address 

the authority provided by MAP–21 

section 1308 and FAST Act section 1315 

allowing State DOTs to enter into 

agreements with FHWA to make CE 

determinations on FHWA’s behalf. The 

FRA does not have the legal authority to 

participate in this program and will 

therefore not include it in this section. 

The same commenter suggests that FRA 

address 49 U.S.C. 304, Application of 

Categorical Exclusions for Multimodal 

Projects. That section does not create 

new CEs but rather sets up a process by 

which OAs can use the CEs of another 

OA under certain multimodal project 

circumstances. Since this process 

applies to all OAs, not just the Agencies, 

it is appropriately addressed by separate 

guidance, likely issued by DOT’s Office 

of the Secretary, and not in this SNPRM. 

One commenter also asked that FRA 

apply its CEs less strictly and exercise 

more flexibility in considering which 

projects qualify as a CE. The FRA will 

continue to review each FRA action on 

an individual basis to ensure the action 

meets the definition of one or more FRA 

CEs and does not involve circumstances 

requiring further environmental study. 

Where there are unusual circumstances 

present, FRA will, in cooperation with 

the applicant, conduct appropriate 

environmental studies to determine 

whether application of the CE is still 

proper. 

Two commenters supported the CEs 

FRA proposed in the June Notice. The 

FRA appreciates the commenters’ 

support. 

Section 771.117 FHWA Categorical 

Exclusions and 

Section 771.118 FTA Categorical 

Exclusions 

The Agencies propose to modify 

paragraph (a) under §§ 771.117 and 

771.118 to begin with ‘‘CEs’’ because the 

Agencies introduce the acronym earlier 

in the regulation. Additionally, the 

Agencies propose clarifying in the first 

sentence of §§ 771.117(a) and 771.118(a) 

that the actions are based on FHWA’s 

and FTA’s past experience, respectively. 

These are non-substantive changes 

providing clarity to paragraph (a) in 

both sections. 

Following 3 years of implementation, 

FHWA and FTA request comments 

regarding the definition of ‘‘operational 

right-of-way’’ for the CEs located at 23 

CFR 771.117(c)(22) and 771.118(c)(12), 

respectively. As currently defined in the 

regulation and as discussed in the 

January 13, 2014, final rule establishing 

the CEs (see 79 FR 2111–2112), the 

Agencies attemped to define 

‘‘operational right-of-way’’ broadly with 

few conditions, thereby allowing 

flexibility in the application of those 

CEs. The Agencies are soliciting 

feedback from the public on how 

operational right-of-way is currently 

defined in the regulation and request 

detailed proposals on ways to further 

clarify the existing definition. Is the 

scope of ‘‘operational right-of-way’’ 

appropriately broad? Should fewer 

conditions be applied? If so, what 

conditions? Can the definition be 

revised to allow for greater flexibility in 

the application of the CE? If so, how? 

Please provide specific examples and 

any data (e.g., cost and benefit 

information) to help justify your 

proposal. 

Section 771.119 Environmental 

Assessments 

The Agencies propose to add a new 

paragraph (a)(3) to address, for FRA, 

situations when a private entity 

proposes a project that can be analyzed 

in an EA and there is no applicant as 

defined in § 771.107. In those situations, 

this paragraph would give FRA the 

discretion to require the project sponsor 

to procure and use a third party 

contractor, as described in § 771.109(e), 

to prepare the EA. The Agencies also 

propose to add a requirement for 

contractors to execute a conflict of 

interest disclosure statement similar to 

the language in paragraph (a)(2) 

(previously proposed paragraph (a)(ii)), 

applicable to FTA projects and which 

FHWA and FTA proposed in the 

November 2015 NPRM. 

The Agencies also propose to clarify 

in paragraph (d) that an EA must be 

made available for public inspection at 

the applicant’s office and at the 

appropriate Administration field office, 

or for FRA at Headquarters offices, for 

30 days. This does not change any 

substantive or procedural requirement. 

Lastly, the Agencies propose to fix a 

typo in paragraph (h) by moving the 

period outside the last parenthesis after 

‘‘(See 40 CFR 1501.4(e)(2)).’’ 

Section 771.123 Draft Environmental 

Impact Statements 

In paragraphs (a) and existing (b) 

(proposed paragraph (b)(1), as discussed 

below), the Agencies propose modifying 

the existing language in the last 

sentence of each paragraph to encourage 

announcing the intent to prepare an EIS 

by the appropriate means at the State 

level, as well as the local level. 

The Agencies propose renumbering 

paragraph (b) as paragraph (b)(1) and 

adding a new paragraph (b)(2) regarding 

timing of the coordination plan in 

relation to notice of intent publication. 

This proposal reflects the changes to 23 

U.S.C. 139(g)(1)-coordination plan. 

In paragraph (c), the Agencies propose 

replacing ‘‘discuss’’ with ‘‘document’’ in 

the second sentence, which more 

accurately describes the action needing 

to occur. Additionally, in paragraph (c), 

the Agencies propose adding language 

to reflect the FAST Act changes to 23 

U.S.C. 139(f)(4) regarding the range of 

alternatives. The proposed language 

would fulfill the statutory intent of 

mandating use of the range of 

alternatives for all Federal 

environmental reviews and permit 

processes, to the maximum extent 

practicable and consistent with Federal 

law, while directing the reader to the 

statute for the specific exception 

requirements. The Agencies propose 

inserting after the second sentence a 

statement that the range of alternatives 

considered for further study shall be 

used for all Federal environmental 

reviews and permit processes, to the 

maximum extent practicable and 

consistent with Federal law, unless the 

lead and participating agencies agree to 

modify the alternatives in order to 

address significant new information and 

circumstances or to fulfill NEPA 

responsibilities in a timely manner, in 

accordance with 23 U.S.C. 139(f)(4)(B). 

Section 771.124 Final Environmental 

Impact Statement/Record of Decision 

The Agencies propose two nonsubstantive changes in this section. In 

paragraph (a)(1), the Agencies propose 


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1 ‘‘Program Comment Issue for Streamlining 

Section 106 Review for Actions Affecting Post-1945 

Concrete and Steel Bridges,’’ 77 FR 68790 (Nov. 16, 

2012). 

to replace ‘‘record of decision’’ with 

‘‘ROD’’ because the term is introduced 

earlier in the regulation. In paragraph 

(a)(1)(ii), the Agencies propose deleting 

‘‘and’’ after ‘‘environmental concerns’’ 

because it is awkward and unnecessary. 

Additionally, the Agencies propose 

inserting ‘‘pursuant to 40 CFR 

1503.4(c)’’ at the end of the clause ‘‘an 

errata sheet may be attached to the draft 

statement’’ in paragraph (a)(3) to 

provide consistency with 23 CFR 

771.125(g). 

Section 771.125 Final Environmental 

Impact Statements 

While the Agencies propose to add 

FRA to part 771, the Agencies are not 

proposing to change the general 

requirement in paragraph (c) that the 

Agencies submit certain Final EISs to 

the Administration’s Headquarters for 

prior concurrence. The FRA currently 

administers its environmental program 

from Headquarters. If FRA establishes 

field offices in the future, Headquarters’ 

prior concurrence for the actions 

described in paragraph (c) will still be 

required. 

In addition, in paragraph (d) the 

Agencies propose to replace ‘‘grant 

request’’ with ‘‘request for financial 

assistance’’ to clarify that approval of 

the final EIS does not commit the 

Administration to provide any future 

financial assistance (not just grant 

funding) for the preferred alternative. 

Section 771.129 Re-Evaluations 

In paragraph (c), the Agencies 

proposed re-inserting the sentence 

regarding consultations being 

documented when determined 

necessary by the Administration, which 

is existing language in 23 CFR 

771.129(c) but was inadvertently 

deleted when the November 2015 

NPRM was published for public review 

and comment. This is a non-substantive 

change. 

Section 771.131 Emergency Action 

Procedures 

The Agencies propose capitalizing 

‘‘headquarters’’ in order to be consistent 

with other references to Headquarters in 

the regulation; this is a non-substantive 

change. 

The Agencies also propose to add a 

reference to FRA’s CE covering the 

response to emergencies and disasters. 

Section 771.139 Limitation on Actions 

The Agencies propose modifying the 

title and text of this section by replacing 

‘‘actions’’ with ‘‘claims’’ to address a 

potential inconsistency with the 

definition of ‘‘Action’’ in 23 CFR 

771.107(b). The Agencies seek to clarify 

that the limitation is on legal claims 

arising out of an ‘‘Action,’’ not on an 

‘‘Action’’ itself. This is a nonsubstantive change. Additionally, the 

Agencies propose adding the word 

‘‘time’’ before the word ‘‘barred’’ 

throughout this section to clarify that 

this is a time limitation on claims. This 

is also a non-substantive change. 

The Agencies propose modifying this 

section to clearly describe the different 

limitations on claims. The Agencies 

propose to clarify the 150-day limitation 

is limited to FHWA and FTA. The 

Agencies also propose to add a sentence 

immediately following addressing 

FRA’s 2-year limitation on claims for 

railroad projects requiring the approval 

of the Secretary under NEPA created by 

section 11503 of the FAST Act (49 

U.S.C. 24201(a)(4)). Furthermore, the 

Agencies would revise the second 

reference to 150 days in the existing 

language to broadly refer to the two 

standards by stating ‘‘These time 

periods do not lengthen any shorter 

time period . . .’’ 

The Agencies also propose to delete 

the footnote in this section to be 

consistent with the November 2015 

NPRM. In that NPRM the Agencies 

proposed removing references to 

specific guidance documents, such as 

the footnote in this section, in order to 

maximize flexibility of this regulation. 

The Agencies are currently updating the 

‘‘SAFETEA–LU Environmental Review 

Process: Final Guidance,’’ so the current 

reference is outdated. 

Section 4(f) Regulation Changes 

(Part 774) 

Section 774.3 Section (f) Approvals 

As part of the review of regulatory 

provisions in drafting this SNPRM, the 

Agencies are proposing to modify the 

footnote in paragraph (d) to refer the 

reader to FHWA’s Section 4(f) 

Programmatic Evaluations Web page 

(www.environment.fhwa.dot.gov/4f/ 

4fnationwideevals.asp) rather than 

listing the Section 4(f) programmatic 

evaluations in the regulation. By 

providing a Web page, the reader would 

have access to the most recent list of 

programmatic evaluations available, and 

the regulation would stay current 

whenever the Agencies revise the list of 

Section 4(f) programmatic evaluations. 

In addition, the Web site may be used 

to provide guidance on use of the 

programmatic approaches. 

Section 774.13 Exceptions 

This section sets forth a number of 

exceptions to otherwise applicable 

Section 4(f) requirements. The 

exceptions are either founded in statute 

or reflect case law and longstanding 

practices governing when to apply 

Section 4(f). 

Paragraph (a) is an exception from the 

Section 4(f) process for projects 

involving work on a transportation 

facility that is itself historic. This 

exception reflects the Agencies’ 

longstanding policy that when a project 

involves a historic facility that is 

already dedicated to a transportation 

purpose and does not adversely affect 

the historic qualities of that facility, 

then the project does not ‘‘use’’ the 

facility within the meaning of Section 

4(f). The exception applies to all types 

of transportation facilities, including 

elements, structures, and features of a 

highway, transit, or rail facility. 

In the FAST Act, Congress created 

two new exceptions from Section 4(f) 

for historic transportation facilities in 

certain circumstances. The Agencies 

propose to amend paragraph (a) to 

incorporate the new exceptions. 

Specifically, the Agencies propose to 

incorporate the two new exceptions 

from the Section 4(f) process for historic 

transportation facilities by renumbering 

paragraph (a) as paragraph (a)(3) and 

adding new paragraphs (a)(1) and (2). 

The Agencies propose to add to 

paragraph (a) the introductory phrase 

‘‘the use of historic transportation 

facilities in certain circumstances:’’ to 

match the other existing exceptions in 

section 774.13. 

The Agencies propose new paragraph 

(a)(1) to incorporate section 1303 of the 

FAST Act which exempts from Section 

4(f) the use of common concrete and 

steel bridges and culverts, built after 

1945, that the Advisory Council on 

Historic Preservation exempted from 

individual Section 106 review under a 

Program Comment.1 The Program 

Comment applies to bridges lacking 

distinction, not previously listed or 

determined eligible for listing on the 

National Register, and not located in or 

adjacent to historic districts, and only 

becomes available in a particular State 

after the State Department of 

Transportation, the State Historic 

Preservation Officer, and the applicable 

FHWA Division office consult and reach 

agreement on whether the State has any 

exceptional bridges that the Program 

Comment will not cover. While FHWA 

proposed the Program Comment, it can 

be used by any Federal agency, 

including FTA and FRA. 

The intent of this new Section 4(f) 

exception is to eliminate unnecessary 


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Section 4(f) processes for the hundreds 

of thousands of common ‘‘cookiecutter’’ bridges constructed after 1945, 

which are not exceptional, in those 

States that have reported the results of 

the consultation required by the 

Program Comment. To date, 35 States 

and Puerto Rico have completed this 

requirement, as reflected on the Bridge 

Program Comment Excepted Bridges list 

available at https://www.environment.

fhwa.dot.gov/histpres/bridges_list.asp. 

The Agencies propose new paragraph 

(a)(2) to incorporate section 11502 of the 

FAST Act, which exempts 

improvements to historic railroad and 

transit lines and their elements from 

Section 4(f). 

The Agencies interpret the words 

‘‘improvements to’’ in section 11502 as 

inclusive of the other activities listed in 

section 11502: Maintenance, 

rehabilitation, or operation of railroad or 

rail transit lines. For clarity, the 

Agencies expanded the list of examples 

of activities that may occur on elements 

of railroad or rail transit lines that may 

improve the transportation function of 

those railroad and rail transit lines. The 

Agencies believe that preservation, 

modernization, reconstruction, and 

replacement of an element of a historic 

transportation facility are types of 

‘‘improvements’’ to railroad and rail 

transit lines and thus propose to include 

these activities in the exception. The 

Agencies further believe that any type of 

safety improvement to a highway 

crossing of an active railroad or transit 

line—whether at grade or grade 

separated—should be considered an 

‘‘improvement to’’ the railroad or transit 

line by virtue of making travel safer for 

the public, and thus would be covered 

by the new exception. 

While the Agencies chose not to 

further define the terms ‘‘railroad or rail 

transit lines or elements thereof’’ within 

the regulation text, they view these 

terms as including all elements related 

to the historic or current transportation 

function such as railroad or rail transit 

track, elevated support structures, 

rights-of-way, substations, 

communication devices, and 

maintenance facilities. The Agencies do 

not propose to include historic sites 

unrelated to transportation but located 

within or adjacent to railroads or rail 

transit lines, or elements thereof in this 

exception. Examples of such exclusions 

include archeological sites unrelated to 

railroad or rail transit and sites of 

traditional religious and cultural 

importance to Indian tribes. 

Per section 11502 of the FAST Act, all 

stations, and certain bridges and 

tunnels, are not included in the 

proposed paragraph (a)(2) exception. 

Specifically, bridges and tunnels on 

railroad lines that have been abandoned, 

as determined by the Surface 

Transportation Board through the 

process described in 49 CFR part 1152, 

are not included in the proposed 

exception, except for bridges and 

tunnels on railroads that have been 

railbanked, as defined in 16 U.S.C. 

1247(d) or otherwise preserved for 

future transportation use. In addition, 

the Agencies are proposing that bridges 

and tunnels on rail transit lines that are 

not in use and over which regular 

service has never operated are not 

included in the exception. 

The proposed new paragraph (a)(3) 

reads as set out in the regulatory text 

below. This paragraph mirrors existing 

§ 774.13(a). The Agencies are not 

proposing to change the short list of 

activities: ‘‘restoration, rehabilitation, or 

maintenance’’ that are included in the 

existing regulatory text now located 

under paragraph (a)(3), but the Agencies 

specifically request that commenters 

consider whether the list of covered 

activities should be expanded to mirror 

the activities included in paragraph 

(a)(2) which is proposed to read: 

‘‘maintenance, preservation, 

rehabilitation, operation, 

modernization, reconstruction, and 

replacement.’’ Under this option, there 

would still be two important conditions 

for the exception to apply under 

paragraph (a)(3): The Agencies must 

determine through a Section 106 

consultation that the work would not 

adversely affect the historic qualities of 

the historic transportation facility that 

cause it to be listed on or eligible for the 

National Register of Historic Places and 

the official(s) with jurisdiction must not 

object to that determination. Having the 

same list of activities in both 

subparagraphs is desirable because it 

would simplify administration of the 

exception. The Agencies seek comment, 

including examples, regarding whether 

the two conditions in paragraph (a)(3) 

would adequately protect significant 

historic transportation facilities in the 

case of projects to operate, modernize, 

reconstruct or replace the transportation 

facility. 

Section 774.15 Constructive Use 

Determinations 

In paragraph (f)(2), the Agencies 

propose to reorganize the paragraph and 

to add railroad projects to the sentence 

referencing the FTA guidelines for 

transit noise and vibration assessments 

because FRA has applied FTA criteria to 

evaluate noise impacts resulting from 

railroad operations for decades. In 

addition, the Agencies propose to add a 

new situation in which a constructive 

use would not occur. Specifically, the 

Agencies are proposing to add a 

reference to high-speed ground 

transportation projects having moderate 

noise impacts according to FRA’s 

established high-speed ground 

transportation noise and vibration 

guidelines. The FRA first developed 

these guidelines, available at https://

www.fra.dot.gov/eLib/Details/L04090, in 

the late 1990s and they apply to train 

operations over 90 miles per hour. 

Section 774.17 Definitions 

In the definition of ‘‘Administration’’ 

the Agencies propose to add FRA. 

In the definition of ‘‘CE’’ the Agencies 

propose to add a reference to FRA’s and 

FTA’s CEs in 23 CFR 771.116 and 23 

CFR 771.118, respectively. 

49 CFR Part 264—Environmental 

Impact and Related Procedures 

The Agencies propose to amend part 

264 in 49 CFR to include references to 

23 CFR part 771 and 23 CFR part 774. 

A cross reference would assist potential 

FRA applicants, State and Federal 

agencies, and the public. 

Rulemaking Analyses and Notices 

Statutory/Legal Authority for This 

Rulemaking 

The Agencies derive explicit authority 

for this rulemaking action from 49 

U.S.C. 322(a), which provides authority 

to ‘‘[a]n officer of the Department of 

Transportation [to] prescribe regulations 

to carry out the duties and powers of the 

officer.’’ The Secretary delegated this 

authority to prescribe regulations in 49 

U.S.C. 322(a) to the Agencies’ 

Administrators under 49 CFR 1.81(a)(3), 

The Secretary also delegated authority 

to the Agencies’ Administrators to 

implement NEPA and Section 4(f), the 

statutes implemented by this rule, in 49 

CFR 1.81(a)(4) and (5). Moreover, the 

CEQ regulations that implement NEPA 

provide at 40 CFR 1507.3 that agencies 

shall continue to review their policies 

and NEPA implementing procedures 

and revise them as necessary to ensure 

full compliance with the purposes and 

provisions of NEPA. 

Rulemaking Analyses and Notices 

The Agencies will consider all 

comments received before the close of 

business on the comment closing date 

indicated above and will make such 

comments available for examination in 

the docket (FHWA–2015–0011) at 

regulations.gov. Comments received 

after the comment closing date will be 

filed in the docket and the Agencies will 

consider them to the extent practicable. 

In addition to late comments, the 

Agencies will also continue to file 


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relevant information in the docket as it 

becomes available after the comment 

period closing date. Interested persons 

should continue to examine the docket 

for new material. The Agencies may 

publish a final rule at any time after 

close of the comment period. 

Executive Order 12866 (Regulatory 

Planning and Review), Executive Order 

13563 (Improving Regulation and 

Regulatory Review), Executive Order 

13771 (Reducing Regulation and 

Controlling Regulatory Costs), and DOT 

Regulatory Policies and Procedures 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). The Agencies have determined 

preliminarily that this action would not 

be a significant regulatory action under 

section 3(f) of Executive Order 12866 

and would not be significant within the 

meaning of U.S. Department of 

Transportation regulatory policies and 

procedures (44 FR 11032). Executive 

Order 13563 emphasizes the importance 

of quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. The Agencies 

anticipate that the economic impact of 

this rulemaking would be minimal. The 

Agencies do not have specific data to 

assess the monetary value of the benefits 

from the proposed changes because 

such data does not exist and would be 

difficult to develop. This proposed rule 

is not expected to be an Executive Order 

13771 regulatory action because this 

proposed rule is not significant under 

Executive Order 12866. 

This SNPRM proposes to modify 23 

CFR parts 771 and 774 in order to be 

consistent with changes introduced by 

MAP–21 and the FAST Act, make the 

regulation more consistent with the 

FHWA and FTA practices, and add FRA 

to parts 771 and 774. These proposed 

changes would not adversely affect, in 

any material way, any sector of the 

economy. In addition, these changes 

would not interfere with any action 

taken or planned by another agency and 

would not materially alter the budgetary 

impact of any entitlements, grants, user 

fees, or loan programs. Consequently, a 

full regulatory evaluation is not 

required. The Agencies anticipate that 

the changes in this SNPRM would 

enable projects to move more 

expeditiously through the Federal 

review process and would reduce the 

preparation of extraneous 

environmental documentation and 

analysis not needed for compliance with 

NEPA or Section 4(f) while still 

ensuring that projects are built in an 

environmentally responsible manner 

and consistent with Federal law. The 

Agencies request comment, including 

data and information on the experiences 

of project sponsors, on the likely effects 

of the changes being proposed. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (Pub. L. 96–354, 5 U.S.C. 

601–612), the Agencies have evaluated 

the effects of this proposed rule on 

small entities and anticipate that this 

action would not 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 

proposed revisions are expected to 

expedite environmental review and thus 

are anticipated to be less burdensome 

than any current impact on small 

business entities. 

Unfunded Mandates Reform Act of 1995 

This proposed rule would not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 109 Stat. 48). This 

proposed rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $148.1 million or more 

in any one year (2 U.S.C. 1532). Further, 

in compliance with the Unfunded 

Mandates Reform Act of 1995, the 

Agencies will evaluate any regulatory 

action that might be proposed in 

subsequent stages of the proceeding to 

assess the effects on State, local, and 

tribal governments and the private 

sector. 

Executive Order 13132 (Federalism 

Assessment) 

Executive Order 13132 requires 

agencies to ensure 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. The Agencies 

analyzed this proposed action in 

accordance with the principles and 

criteria contained in Executive Order 

13132 and determined that it would not 

have sufficient federalism implications 

to warrant the preparation of a 

federalism assessment. The Agencies 

have also determined that this proposed 

action would not preempt any State law 

or State regulation or affect the States’ 

ability to discharge traditional State 

governmental functions. The Agencies 

invite State and local governments with 

an interest in this rulemaking to 

comment on the effect that adoption of 

specific proposals may have on State or 

local governments. 

Executive Order 13175 (Tribal 

Consultation) 

The Agencies have analyzed this 

action under Executive Order 13175, 

and determined that it would not have 

substantial direct effects on one or more 

Indian tribes; would not impose 

substantial direct compliance costs on 

Indian tribal governments; and would 

not preempt tribal law. Therefore, a 

tribal summary impact statement is not 

required. 

Executive Order 13211 (Energy Effects) 

The Agencies have analyzed this 

action under Executive Order 13211, 

Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. The Agencies have 

determined that this action is not a 

significant energy action under 

Executive Order 13211 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 under Executive Order 13211 is 

not required. 

Executive Order 12372 

(Intergovernmental Review) 

The DOT’s regulations implementing 

Executive Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities (49 CFR 

part 17) apply to this program. 

Accordingly, the Agencies solicit 

comments on this issue. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from the Office of Management and 

Budget for each collection of 

information they conduct, sponsor, or 

require through regulations. The 

Agencies have determined that this 

proposal does not contain collection of 

information requirements for the 

purposes of the PRA. 

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 


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Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

Executive Order 12898 (Environmental 

Justice) 

Executive Order 12898, Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, and DOT 

Order 5610.2(a), 91 FR 27534 (May 10, 

2012) (available online at 

www.fhwa.dot.gov/environment/ 

environmental_justice/ej_at_dot/order_

56102a/index.cfm), require DOT 

agencies to achieve environmental 

justice (EJ) as part of their mission by 

identifying and addressing, as 

appropriate, disproportionately high 

and adverse human health or 

environmental effects, including 

interrelated social and economic effects, 

of their programs, policies, and 

activities on minority populations and 

low-income populations in the United 

States. The DOT Order requires DOT 

agencies to address compliance with the 

Executive Order and the DOT Order in 

all rulemaking activities. In addition, 

FHWA and FTA have issued additional 

documents relating to administration of 

the Executive Order and the DOT Order. 

On June 14, 2012, FHWA issued an 

update to its EJ order, FHWA Order 

6640.23A, FHWA Actions to Address 

Environmental Justice in Minority 

Populations and Low Income 

Populations (available online at 

www.fhwa.dot.gov/legsregs/directives/ 

orders/664023a.cfm). The FTA also 

issued an update to its EJ policy, FTA 

Policy Guidance for Federal Transit 

Recipients, 77 FR 42077 (July 17, 2012) 

(available online at http://

www.fta.dot.gov/legislation_law/12349_

14740.html). 

The Agencies have evaluated this 

proposed rule under the Executive 

Order, the DOT Order, the FHWA 

Order, and the FTA Circular. The 

Agencies have determined that the 

proposed changes to 23 CFR parts 771 

and 774, if finalized as proposed, would 

not cause disproportionately high and 

adverse human health and 

environmental effects on minority or 

low income populations. 

At the time the Agencies apply the 

NEPA implementing procedures in 23 

CFR part 771, the Agencies would have 

an independent obligation to conduct an 

evaluation of the proposed action under 

the applicable EJ orders and guidance to 

determine whether the proposed action 

has the potential for EJ effects. The rule 

would not affect the scope or outcome 

of that EJ evaluation. In any instance 

where there are potential EJ effects 

resulting from a proposed Agency action 

covered under any of the NEPA classes 

of action in 23 CFR part 771, public 

outreach under the applicable EJ orders 

and guidance would provide affected 

populations with the opportunity to 

raise any concerns about those potential 

EJ effects. See DOT Order 5610.2(a), 

FHWA Order 6640.23A, and FTA Policy 

Guidance for Transit Recipients 

(available at links above). Indeed, 

outreach to ensure the effective 

involvement of minority and low 

income populations where there is 

potential for EJ effects is a core aspect 

of the EJ orders and guidance. For these 

reasons, the Agencies have determined 

that no further EJ analysis is needed and 

no mitigation is required in connection 

with the proposed revisions to the 

Agencies’ NEPA and Section 4(f) 

implementing regulations (23 CFR parts 

771 and 774). 

Executive Order 13045 (Protection of 

Children) 

The Agencies have analyzed this 

action under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. The Agencies certify that this 

action would not be an economically 

significant rule and would not cause an 

environmental risk to health or safety 

that may disproportionately affect 

children. 

Executive Order 12630 (Taking of 

Private Property) 

The Agencies do not anticipate that 

this action would affect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

National Environmental Policy Act 

Agencies are required to adopt 

implementing procedures for NEPA that 

establish specific criteria for, and 

identification of, three classes of 

actions: those that normally require 

preparation of an EIS; those that 

normally require preparation of an EA; 

and those that are categorically 

excluded from further NEPA review (40 

CFR 1507.3(b)). The CEQ regulations do 

not direct agencies to prepare a NEPA 

analysis or document before 

establishing agency procedures (such as 

this regulation) that supplement the 

CEQ regulations for implementing 

NEPA. The changes proposed in this 

rule are part of those agency procedures, 

and therefore establishing the proposed 

changes does not require preparation of 

a NEPA analysis or document. Agency 

NEPA procedures are generally 

procedural guidance to 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. 

Regulation Identifier Number 

A regulation identifier number (RIN) 

is assigned 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 contained in the heading 

of this document can be used to cross 

reference this action with the Unified 

Agenda. 

List of Subjects 

23 CFR Part 771 

Environmental review process, 

Environmental protection, Grant 

programs—transportation, Highways 

and roads, Historic preservation, 

Programmatic approaches, Public lands, 

Railroads, Recreation areas, Reporting 

and recordkeeping requirements. 

23 CFR Part 774 

Environmental protection, Grant 

programs—transportation, Highways 

and roads, Historic preservation, Mass 

transportation, Public lands, Railroads 

recreation areas, Reporting and 

recordkeeping requirements, Wildlife 

refuges. 

49 CFR Part 264 

Environmental impact statements, 

Environmental review process, 

Environmental protection, Grant 

programs—transportation, 

Programmatic approaches, Railroads, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 622 

Environmental impact statements, 

Environmental review process, Grant 

programs—transportation, Historic 

preservation, Programmatic approaches, 

Public lands, Public transportation, 

Recreation areas, Reporting and 

recordkeeping requirements, Transit. 


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1FHWA, FRA, and FTA have supplementary 

guidance on environmental documents and 

procedures for their programs available on the 

Internet at http://www.fhwa.dot.gov, http://

www.fra.dot.gov, and http://www.fta.dot.gov, or in 

hardcopy by request. 

Issued in Washington, DC, under authority 

delegated in 49 CFR 1.85 and 1.91: 

Brandye L. Hendrickson, 

Acting Administrator, Federal Highway 

Administration. 

Heath Hall, 

Acting Administrator, Federal Railroad 

Administration. 

Jane Williams, 

Acting Administrator, Federal Transit 

Administration. 

In consideration of the foregoing, the 

Agencies propose to amend title 23, 

Code of Federal Regulations parts 771 

and 774, and title 49, Code of Federal 

Regulations parts 264 and 622, as 

follows: 

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; 40 CFR parts 1500 

through 1508; 49 CFR 1.81, 1.85, and 1.91; 

Pub. L. 109–59, 119 Stat. 1144, Sections 6002 

and 6010; Pub. L. 112–141, 126 Stat. 405, 

Sections 1315, 1316, 1317, 1318, and 1319; 

and Public Law 114–94, 129 Stat. 1312, 

Sections 1314 and 1432. 

■ 2. Revise § 771.101 to read as follows: 

§ 771.101 Purpose. 

This regulation prescribes the policies 

and procedures of the Federal Highway 

Administration (FHWA), the Federal 

Railroad Administration (FRA), 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, FRA, FTA and 

Department of Transportation (DOT) 

requirements under NEPA for the 

processing of highway, public 

transportation, and railroad projects. 

This regulation also sets forth 

procedures to comply with 23 U.S.C. 

109(h), 128, 138, 139, 325, 326, and 327; 

49 U.S.C. 303 and 5323(q); Public Law 

112–141, 126 Stat. 405, section 1301 as 

applicable; and Public Law 114–94, 129 

Stat. 1312, section 1304. 

■ 3. Further amend § 771.105, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by removing the 

introductory text and revising 

paragraphs (a), (b), and the first sentence 

in (e)(2) to read as follows: 

§ 771.105 Policy. 

(a) To the maximum extent 

practicable and consistent with Federal 

law, 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

(b) Programmatic approaches be 

developed for compliance with 

environmental requirements (including 

the requirements found at 23 U.S.C. 

139(b)), coordination among agencies 

and/or the public, or to otherwise 

enhance and accelerate project 

development. 

* * * * * 

(e) * * * 

(2) The proposed mitigation 

represents a reasonable public 

expenditure after considering the 

impacts of the action and the benefits of 

the proposed mitigation measures. 

* * * 

* * * * * 

■ 4. Further amend § 771.107, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by revising the 

defintions for ‘‘Action,’’ 

‘‘Administration,’’ and ‘‘Administration 

action’’ to read as follows: 

§ 771.107 Definitions. 

* * * * * 

Action. A highway, transit, or railroad 

project proposed for FHWA, FRA, or 

FTA funding. It also includes activities 

such as joint and multiple use permits, 

changes in access control, rulemakings, 

etc., which may or may not involve a 

commitment of Federal funds. 

Administration. The FHWA, FRA, or 

FTA, whichever is the designated 

Federal lead agency for the proposed 

action. A reference herein to the 

Administration means the FHWA, FRA, 

or FTA, or a State when the State is 

functioning as the FHWA, FRA, 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. A reference 

herein to the FHWA, FRA, or FTA 

means the State when the State is 

functioning as the FHWA, FRA, or FTA, 

respectively 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. Nothing in this definition alters the 

scope of any delegation or assignment 

made by FHWA, FRA, or FTA. 

Administration action. FHWA, FRA, 

or FTA approval of the applicant’s 

request for Federal funds for 

construction. It also includes approval 

of activities such as joint and multiple 

use permits, changes in access control, 

rulemakings, etc., which may or may 

not involve a commitment of Federal 

funds. 

* * * * * 

■ 5. Further amend § 771.109, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by revising 

paragraphs (a)(1), (b)(1), and (c)(2), (6), 

and (7) and adding paragrpah (e) to read 

as follows: 

§ 771.109 Applicability and 

responsibilities. 

(a)(1) The provisions of this regulation 

and the CEQ regulation apply to actions 

where the Administration exercises 

sufficient control to condition the 

permit, project, or other approvals. 

Actions taken by the applicant which do 

not require Federal approvals, such as 

preparation of a regional transportation 

plan are not subject to this regulation. 

* * * * * 

(b)(1) The applicant, in cooperation 

with the Administration, is responsible 

for implementing those mitigation 

measures stated as commitments in the 

environmental documents prepared 

pursuant to this regulation unless the 

Administration approves of their 

deletion or modification in writing. The 

FHWA will assure that this is 

accomplished as a part of its 

stewardship and oversight 

responsibilities. The FRA and FTA will 

assure implementation of committed 

mitigation measures by including the 

mitigation measures by reference in the 

grant agreement, followed by reviews of 

designs and construction inspections. 

(c) * * * 

(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 or is, or is expected to be, a direct 

recipient of financial assistance for 

which FRA is responsible (e.g., Subtitle 

V of Title 49, U.S. Code) 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. 

* * * * * 

(6) Subject to paragraph (e) of this 

section, the role of a project sponsor that 

is a private institution or firm is limited 


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to providing technical studies and 

commenting on environmental review 

documents. 

(7) A participating agency is 

responsible for providing input, as 

appropriate, during the times specified 

in the coordination plan under 23 

U.S.C. 139(g) and within the agency’s 

special expertise or jurisdiction. 

Participating agencies provide 

comments, if any, and concurrence on 

the schedule within the coordination 

plan. 

* * * * * 

(e) When FRA is the lead Federal 

agency, and the project sponsor is a 

private entity, and there is no applicant 

acting as a joint-lead agency, FRA shall 

use a qualified third-party contractor to 

prepare an EIS. Third-party contracting 

is a voluntary arrangement whereby the 

project sponsor retains a contractor to 

assist in conducting the environmental 

review under the direction, supervision, 

and control of the Administration. FRA 

must oversee the preparation of the EIS 

and retains ultimate control over the 

third-party contractor’s work product. 

FRA may require use of a third-party 

contractor for preparation of an EA at its 

discretion. FRA, the project sponsor, 

and the contractor will enter into a 

memorandum of understanding (MOU) 

that outlines at a minimum the 

conditions and procedures to be 

followed in carrying out the MOU and 

the responsibilities of the parties to the 

MOU. 

■ 6. Further amend § 771.111, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by revising 

paragraphs (a)(2)(i), (a)(3), (b), (c), (d), 

(i), and (j) to read as follows: 

§ 771.111 Early coordination, public 

involvement, and project development. 

(a) * * * 

(2)(i) 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 

parts 1500 through 1508, 23 CFR part 

450, or 23 U.S.C. 139(f), 168, or 169, as 

applicable. 

* * * * * 

(3) 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 (see § 771.115) 

and related environmental laws and 

requirements and of the need for 

specific studies and findings that would 

normally be developed during the 

environmental review process. A lead 

agency, in consultation with 

participating agencies, will develop an 

environmental checklist, as appropriate, 

to assist in resource and agency 

identification. 

(b)(1) The Administration will 

identify the probable class of action as 

soon as sufficient information is 

available to identify the probable 

impacts of the action. 

(2) For projects to be evaluated with 

an EIS, the Administration shall 

respond to a project sponsor’s formal 

project notification within 45 days of 

receipt and in writing. 

(c) When the FHWA, FRA, or FTA are 

involved in the development of an 

action, or when the FHWA, FRA, or 

FTA act as a joint lead agency with 

another Federal agency, a mutually 

acceptable process will be established 

on a case-by-case basis. A project 

sponsor may request the Secretary to 

designate the lead Federal agency when 

project elements fall within multiple 

DOT agencies’ expertise. 

(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. Agencies with special 

expertise may be invited to become 

cooperating agencies. Agencies with 

jurisdiction by law must be requested to 

become cooperating agencies. The lead 

agencies identify participating agencies 

within 45 days from publication of the 

notice of intent. 

* * * * * 

(i) Applicants for FRA programs or 

the FTA capital assistance program: 

(1) Achieve public participation on 

proposed actions through activities that 

engage the public, including public 

hearings, town meetings, and charrettes, 

and seeking input from the public 

through scoping for the environmental 

review process. Project milestones may 

be announced to the public using 

electronic or paper media (e.g., 

newsletters, note cards, or emails) 

pursuant to 40 CFR 1506.6. For actions 

requiring EISs, an early opportunity for 

public involvement in defining the 

purpose and need for the action and the 

range of alternatives must be provided, 

and a public hearing will be held during 

the circulation period of the draft EIS. 

(2) May participate in early scoping as 

long as enough project information is 

known so the public and other agencies 

can participate effectively. Early scoping 

constitutes initiation of NEPA scoping 

while local planning efforts to aid in 

establishing the purpose and need and 

in evaluating alternatives and impacts 

are underway. Notice of early scoping 

must be made to the public and other 

agencies. If early scoping is the start of 

the NEPA process, the early scoping 

notice must include language to that 

effect. After development of the 

proposed action at the conclusion of 

early scoping, FRA or FTA will publish 

the Notice of Intent if it is determined 

at that time that the proposed action 

requires an EIS. The Notice of Intent 

will establish a 30-day period for 

comments on the purpose and need, 

alternatives, and the scope of the NEPA 

analysis. 

(3) Are encouraged to post and 

distribute materials related to the 

environmental review process, 

including but not limited to, 

environmental documents (e.g., EAs and 

EISs), environmental studies (e.g., 

technical reports), public meeting 

announcements, and meeting minutes, 

through publicly-accessible electronic 

means, including project Web sites. 

Applicants are encouraged to keep these 

materials available to the public 

electronically until the project is 

constructed and open for operations. 

(4) Are encouraged to post all findings 

of no significant impact (FONSI), 

combined final environmental impact 

statement (final EIS)/records of decision 

(ROD), and RODs on a project Web site 

until the project is constructed and open 

for operation. 

(j) Information on the FHWA 

environmental process may be obtained 

from: FHWA Director, Office of Project 

Development and Environmental 

Review, Federal Highway 

Administration, Washington, DC 20590, 

or www.fhwa.dot.gov. Information on 

the FRA environmental process may be 

obtained from: FRA Chief, 

Environmental and Corridor Planning 

Division, Office of Program Delivery, 

Federal Railroad Administration, 

Washington, DC 20590, or 

www.fra.dot.gov. Information on the 

FTA environmental process may be 

obtained from: FTA Director, Office of 

Environmental Programs, Federal 

Transit Administration, Washington, DC 

20590, or www.fta.dot.gov. 

■ 7. Further amend § 771.113, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by revising the 

second sentence in paragraph (a) and 

adding paragraph (d)(4) to read as 

follows: 

§ 771.113 Timing of Administration 

activities. 

(a) * * * This work includes drafting 

environmental documents and 

completing environmental studies, 

related engineering studies, agency 


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coordination, and public involvement. 

* * * 

* * * * * 

(d) * * * 

(4) FRA makes exceptions on a caseby-case basis for purchases of railroad 

components or materials that can be 

used for other projects or resold. 

■ 8. Further amend § 771.115, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by removing the 

introductory text, revising paragraphs 

(a) introductory text and (a)(4), adding 

paragraph (a)(6), and revising paragraph 

(b) to read as follows: 

§ 771.115 Classes of actions. 

(a) EIS (Class I). Actions that 

significantly affect the environment 

require an EIS (40 CFR 1508.27). The 

following are examples of actions that 

normally require an EIS: 

* * * * * 

(4) For FHWA actions, new 

construction or extension of a separate 

roadway for buses or high occupancy 

vehicles not located within an existing 

transportation right-of-way. 

* * * * * 

(6) For FRA actions, new construction 

of major railroad lines or facilities (e.g. 

terminal passenger stations, freight 

transfer yards, or railroad equipment 

maintenance facilities) that will not be 

located within an existing 

transportation right-of-way. 

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

individually or cumulatively have a 

significant environmental effect are 

excluded from the requirement to 

prepare an EA or EIS. A specific list of 

CEs normally not requiring NEPA 

documentation is set forth in 

§ 771.117(c) for FHWA actions or 

pursuant to § 771.118(c) for FTA 

actions. When appropriately 

documented, additional projects may 

also qualify as CEs pursuant to 

§ 771.117(d) for FHWA actions or 

pursuant to § 771.118(d) for FTA 

actions. FRA’s CEs are listed in 

§ 771.116. 

* * * * * 

■ 9. Add § 771.116 to read as follows: 

§ 771.116 FRA categorical exclusions. 

(a) CEs are actions which meet the 

definition contained in 40 CFR 1508.4, 

and, based on FRA’s past experience 

with similar actions, do not involve 

significant environmental impacts. They 

are actions which: Do not induce 

significant impacts to planned growth or 

land use for the area; do not require the 

relocation of significant numbers of 

people; do not have a significant impact 

on any natural, cultural, recreational, 

historic or other resource; do not 

involve significant air, noise, or water 

quality impacts; do not have significant 

impacts on travel patterns; or do not 

otherwise, either individually or 

cumulatively, have any significant 

environmental impacts. 

(b) Any action which normally would 

be classified as a CE but could involve 

unusual circumstances will require 

FRA, in cooperation with the applicant, 

to conduct appropriate environmental 

studies to determine if the CE 

classification is proper. Such unusual 

circumstances include: 

(1) Significant environmental impacts; 

(2) Substantial controversy on 

environmental grounds; 

(3) Significant impact on properties 

protected by Section 4(f) of the DOT Act 

or Section 106 of the National Historic 

Preservation Act; or 

(4) Inconsistencies with any Federal, 

State, or local law, requirement or 

administrative determination relating to 

the environmental aspects of the action. 

(c) Actions that FRA determines fall 

within the following categories of FRA 

CEs and that meet the criteria for CEs in 

the CEQ regulation (40 CFR 1508.4) and 

paragraph (a) of this section may be 

designated as CEs only after FRA 

approval. Where there is a project 

applicant or sponsor, it must submit 

documentation which demonstrates that 

the specific conditions or criteria for 

these CEs are satisfied and that 

significant environmental effects will 

not result. 

(1) Administrative procurements (e.g., 

for general supplies), contracts for 

personal services, and training. 

(2) Personnel actions. 

(3) Planning or design activities that 

do not commit to a particular course of 

action affecting the environment. 

(4) Localized geotechnical and other 

investigations to provide information for 

preliminary design and for 

environmental analyses and permitting 

purposes, such as drilling test bores for 

soil sampling; archeological 

investigations for archeology resources 

assessment or similar survey; and 

wetland surveys. 

(5) Internal orders, policies, and 

procedures not required to be published 

in the Federal Register under the 

Administrative Procedure Act, 5 U.S.C. 

552(a)(1). 

(6) Rulemakings issued under section 

17 of the Noise Control Act of 1972, 42 

U.S.C. 4916. 

(7) Financial assistance to an 

applicant where the financial assistance 

funds an action that is already 

completed, such as refinancing 

outstanding debt. 

(8) Hearings, meetings, or public 

affairs activities. 

(9) Maintenance or repair of existing 

railroad facilities where the 

maintenance or repair activities do not 

change the existing character of the 

facility, including equipment; track and 

bridge structures; electrification, 

communication, signaling, or security 

facilities; stations; tunnels; 

maintenance-of-way and maintenanceof-equipment bases. 

(10) Emergency repair or replacement, 

including reconstruction, restoration, or 

retrofitting of an essential rail facility 

damaged by the occurrence of a natural 

disaster or catastrophic failure. Such 

repair or replacement may include 

upgrades to meet existing codes and 

standards as well as upgrades warranted 

to address conditions that have changed 

since the rail facility’s original 

construction. 

(11) Operating assistance to a railroad 

to continue existing service or to 

increase service to meet demand, where 

the assistance will not significantly alter 

the traffic density characteristics of 

existing rail service. 

(12) Minor rail line additions, 

including construction of side tracks, 

passing tracks, crossovers, short 

connections between existing rail lines, 

and new tracks within existing rail 

yards or right-of-way, provided that 

such additions are not inconsistent with 

existing zoning, do not involve 

acquisition of a significant amount of 

right of way, and do not significantly 

alter the traffic density characteristics of 

the existing rail lines or rail facilities. 

(13) Acquisition or transfer of real 

property or existing railroad facilities 

including: Track and bridge structures; 

electrification, communication, 

signaling or security facilities; stations; 

and maintenance of way and 

maintenance of equipment bases or the 

right to use such real property and 

railroad facilities, for the purpose of 

conducting operations of a nature and at 

a level of use similar to those presently 

or previously existing on the subject 

properties or facilities. 

(14) Research, development, or 

demonstration activities on existing 

railroad lines or at existing facilities, 

where such activities do not require the 

acquisition of a significant amount of 

right-of-way, and do not significantly 

alter the traffic density characteristics of 

the existing rail line or facility, such as 

advances in signal communication or 

train control sytems, equipment, track, 

or track structures. 

(15) Promulgation of rules, the 

issuance of policy statements, the 

waiver or modification of existing 

regulatory requirements, or 

discretionary approvals that do not 

result in significantly increased 


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emissions of air or water pollutants or 

noise. 

(16) Alterations to existing facilities, 

locomotives, stations, and rail cars in 

order to make them accessible for the 

elderly and persons with disabilities, 

such as modifying doorways, adding or 

modifying lifts, constructing access 

ramps and railings, modifying 

restrooms, and constructing accessible 

platforms. 

(17) The rehabilitation, 

reconstruction, removal, or replacement 

of bridges, the rehabilitation or 

maintenance of the rail elements of 

docks or piers for the purposes of 

intermodal transfers, and the 

construction of bridges, culverts, or 

grade separation projects that are 

predominantly within existing right-ofway and that do not involve extensive 

in-water construction activities, such as 

projects replacing bridge components 

including stringers, caps, piles, or 

decks, the construction of roadway 

overpasses to replace at-grade crossings, 

construction or reconstruction of 

approaches or embankments to bridges, 

or construction or replacement of short 

span bridges. 

(18) Acquisition (including purchase 

or lease), rehabilitation, transfer, or 

maintenance of vehicles or equipment 

that does not significantly alter the 

traffic density characteristics of an 

existing rail line, including locomotives, 

passenger coaches, freight cars, 

trainsets, and construction, maintenance 

or inspection equipment. 

(19) Installation, repair and 

replacement of equipment and small 

structures designed to promote 

transportation safety, security, 

accessibility, communication or 

operational efficiency that take place 

predominantly within the existing rightof-way and do not result in a major 

change in traffic density on the existing 

rail line or facility, such as the 

installation, repair or replacement of 

surface treatments or pavement 

markings, small passenger shelters, 

passenger amenities, benches, signage, 

sidewalks or trails, equipment 

enclosures, and fencing, railroad 

warning devices, train control systems, 

signalization, electric traction 

equipment and structures, electronics, 

photonics, and communications systems 

and equipment, equipment mounts, 

towers and structures, information 

processing equipment, and security 

equipment, including surveillance and 

detection cameras. 

(20) Environmental restoration, 

remediation, pollution prevention, and 

mitigation activities conducted in 

conformance with applicable laws, 

regulations and permit requirements, 

including activities such as noise 

mitigation, landscaping, natural 

resource management activities, 

replacement or improvement to storm 

water oil/water separators, installation 

of pollution containment systems, slope 

stabilization, and contaminated soil 

removal or remediation activities. 

(21) Assembly or construction of 

facilities or stations that are consistent 

with existing land use and zoning 

requirements, do not result in a major 

change in traffic density on existing rail 

or highway facilities and result in 

approximately less than ten acres of 

surface disturbance, such as storage and 

maintenance facilities, freight or 

passenger loading and unloading 

facilities or stations, parking facilities, 

passenger platforms, canopies, shelters, 

pedestrian overpasses or underpasses, 

paving, or landscaping. 

(22) Track and track structure 

maintenance and improvements when 

carried out predominantly within the 

existing right-of-way that do not cause 

a substantial increase in rail traffic 

beyond existing or historic levels, such 

as stabilizing embankments, installing 

or reinstalling track, re-grading, 

replacing rail, ties, slabs and ballast, 

installing, maintaining, or restoring 

drainage ditches, cleaning ballast, 

constructing minor curve realignments, 

improving or replacing interlockings, 

and the installation or maintenance of 

ancillary equipment. 

■ 10. Revise § 771.117(a) to read as 

follows: 

§ 771.117 FHWA categorical exclusions. 

(a) CEs are actions which meet the 

definition contained in 40 CFR 1508.4, 

and, based on FHWA’s past experience 

with similar actions, do not involve 

significant environmental impacts. They 

are actions which: Do not induce 

significant impacts to planned growth or 

land use for the area; do not require the 

relocation of significant numbers of 

people; do not have a significant impact 

on any natural, cultural, recreational, 

historic or other resource; do not 

involve significant air, noise, or water 

quality impacts; do not have significant 

impacts on travel patterns; or do not 

otherwise, either individually or 

cumulatively, have any significant 

environmental impacts. 

* * * * * 

■ 11. Revise § 771.118(a) to read as 

follows: 

§ 771.118 FTA categorical exclusions. 

(a) CEs are actions which meet the 

definition contained in 40 CFR 1508.4, 

and, based on FTA’s past experience 

with similar actions, do not involve 

significant environmental impacts. They 

are actions which: Do not induce 

significant impacts to planned growth or 

land use for the area; do not require the 

relocation of significant numbers of 

people; do not have a significant impact 

on any natural, cultural, recreational, 

historic or other resource; do not 

involve significant air, noise, or water 

quality impacts; do not have significant 

impacts on travel patterns; or do not 

otherwise, either individually or 

cumulatively, have any significant 

environmental impacts. 

* * * * * 

■ 12. Further amend § 771.119, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by redesignating 

paragraphs (a)(i) and (ii) as paragraphs 

(a)(1) and (2), adding paragraph (a)(3), 

and revising paragraphs (d) and (h) to 

read as follows: 

§ 771.119 Environmental assessments. 

(a) * * * 

(3) For FRA actions: When FRA or the 

applicant, as joint lead agency, select a 

contractor to prepare the EA, then the 

contractor must execute an FRA conflict 

of interest disclosure statement. In the 

absence of an applicant, FRA may 

require private project sponsors to 

provide a third party contractor to 

prepare the EA as described in 

§ 771.109(e). 

* * * * * 

(d) The applicant does not need to 

circulate the EA for comment but the 

document must be made available for 

public inspection at the applicant’s 

office and at the appropriate 

Administration field offices or, for FRA 

at Headquarters, for 30 days and in 

accordance with paragraphs (e) and (f) 

of this section. The applicant shall send 

the notice of availability of the EA, 

which briefly describes the action and 

its impacts, to the affected units of 

Federal, State and local government. 

The applicant shall also send notice to 

the State intergovernmental review 

contacts established under Executive 

Order 12372. 

* * * * * 

(h) When the FHWA expects to issue 

a FONSI for an action described in 

§ 771.115(a), copies of the EA shall be 

made available for public review 

(including the affected units of 

government) for a minimum of 30 days 

before the Administration makes its 

final decision (See 40 CFR 1501.4(e)(2)). 

This public availability shall be 

announced by a notice similar to a 

public hearing notice. 

* * * * * 

■ 13. Further amend § 771.123, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by revising 


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paragraphs (a), (b) and (c) 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 State or local level. 

(b)(1) 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 that may take into account any 

planning work already accomplished, in 

accordance with 23 CFR 450.212, 

450.318, or any applicable provisions of 

the CEQ regulations at 40 CFR parts 

1500 through 1508. 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. 

Scoping is normally achieved through 

public and agency involvement 

procedures required by § 771.111. 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 State or local level. 

(2) The lead agencies must establish a 

coordination plan, including a schedule, 

within 90 days of notice of intent 

publication. 

(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 document 

the reasons why other alternatives, 

which may have been considered, were 

eliminated from detailed study. The 

range of alternatives considered for 

further study shall be used for all 

Federal environmental reviews and 

permit processes, to the maximum 

extent practicable and consistent with 

Federal law, unless the lead and 

participating agencies agree to modify 

the alternatives in order to address 

significant new information and 

circumstances or to fulfill NEPA 

responsibilities in a timely manner, in 

accordance with 23 U.S.C. 139(f)(4)(B). 

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. 

* * * * * 

■ 14. Further amend § 771.124, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by revising 

paragraphs (a)(1) introductory text, 

(a)(1)(ii), and (a)(3) to read as follows: 

§ 771.124 Final environmental impact 

statement/record of decision document. 

(a)(1) After circulation of a draft EIS 

and consideration of comments 

received, the lead agencies, in 

cooperation with the applicant (if not a 

lead agency), shall combine the final EIS 

and ROD, to the maximum extent 

practicable, unless: 

* * * * * 

(ii) There are significant new 

circumstances or information relevant to 

environmental concerns that bear on the 

proposed action or the impacts of the 

proposed action. 

* * * * * 

(3) If the comments on the draft EIS 

are minor and confined to factual 

corrections or explanations that do not 

warrant additional agency response, an 

errata sheet may be attached to the draft 

statement pursuant to 40 CFR 1503.4(c), 

which together shall then become the 

combined final EIS/ROD. 

* * * * * 

■ 15. Further amend § 771.125, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by revising 

paragraph (d) to read as follows: 

§ 771.125 Final environmental impact 

statements. 

* * * * * 

(d) 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 request for financial 

assistance to fund the preferred 

alternative. 

* * * * * 

■ 16. Further amend § 771.129, as 

proposed to be amended at 80 FR 72624 

(November 20, 2015), by revising 

paragraph (c) to read as follows: 

§ 771.129 Re-evaluations. 

* * * * * 

(c) After the Administration issues a 

combined final EIS/ROD, ROD, FONSI, 

or CE designation, the applicant shall 

consult with the Administration prior to 

requesting any major approvals or grants 

to establish whether or not the approved 

environmental document or CE 

designation remains valid for the 

requested Administration action. These 

consultations will be documented when 

determined necessary by the 

Administration. 

■ 17. Revise § 771.131 to read as 

follows: 

§ 771.131 Emergency action procedures. 

Responses to some emergencies and 

disasters are categorically excluded 

under § 771.117 for FHWA, § 771.118 

for FTA, or § 771.116 for FRA. 

Otherwise, requests for deviations from 

the procedures in this regulation 

because of emergency circumstances (40 

CFR 1506.11) shall be referred to the 

Administration’s Headquarters for 

evaluation and decision after 

consultation with CEQ. 

■ 18. Revise § 771.139 to read as 

follows: 

§ 771.139 Limitations on claims. 

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 by FHWA or FTA are time 

barred unless filed within 150 days after 

the date of publication of the limitations 

on claims notice. Claims arising under 

Federal law seeking judicial review of 

any such decisions by FRA are time 

barred unless filed within 2 years after 

the date of publication of the limitations 

on claims notice. These time periods do 

not lengthen any shorter time period for 

seeking judicial review that otherwise is 

established by the Federal law under 

which judicial review is allowed. 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. 

PART 774—PARKS, RECREATION 

AREAS, WILDLIFE AND WATERFOWL 

REFUGES, AND HISTORIC SITES 

(SECTION 4(f)) 

■ 19. Revise the authority citation for 

part 774 to read as follows: 

Authority: 23 U.S.C. 103(c), 109(h), 138, 

325, 326, 327 and 204(h)(2); 49 U.S.C. 303; 

Section 6009, Pub. L. 109–59, Aug. 10, 2005, 

119 Stat. 1144; 49 CFR 1.81 and 1.91; and, 

Pub. L. 114–94, 129 Stat. 1312, Sections 1303 

and 11502. 

■ 20. Amend § 774.3 by revising 

footnote 1 to read as follows: 

§ 774.3 Section 4(f) approvals. 

* * * * * 1FHWA Section 4(f) Programmatic 

Evaluations can be found at 


asabaliauskas on DSKBBXCHB2PROD with PROPOSALS
Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules 45547 

www.environment.fhwa.dot.gov/4f/ 

4fnationwideevals.asp. 

* * * * * 

■ 21. Amend § 774.13 by revising 

paragraph (a) to read as follows: 

§ 774.13 Exceptions. 

* * * * * 

(a) The use of historic transportation 

facilities in certain circumstances: 

(1) Common post-1945 concrete or 

steel bridges and culverts that are 

exempt from individual review under 

54 U.S.C. 306108. 

(2) Improvement of railroad or rail 

transit lines that are in use or were 

historically used for the transportation 

of goods or passengers, including, but 

not limited to, maintenance, 

preservation, rehabilitation, operation, 

modernization, reconstruction, and 

replacement of elements of such 

railroad or rail transit lines except for: 

(i) Stations; 

(ii) Bridges or tunnels on railroad 

lines that have been abandoned or 

transit lines not in use over which 

regular service has never operated, and 

that have not been railbanked or 

otherwise reserved for the 

transportation of goods or passengers; 

and 

(iii) Historic sites unrelated to the 

railroad or rail transit lines. 

(3) Restoration, rehabilitation, or 

maintenance of other types of historic 

transportation facilities, if the 

Administration concludes, as a result of 

the consultation under 36 CFR 800.5, 

that: 

(i) Such work will not adversely affect 

the historic qualities of the facility that 

caused it to be on or eligible for the 

National Register; and 

(ii) The official(s) with jurisdiction 

over the Section 4(f) resource have not 

objected to the Administration 

conclusion in paragraph (a)(3)(i) of this 

section. 

* * * * * 

■ 22. Amend § 774.15 by revising 

paragraph (f)(2) to read as follows: 

§ 774.15 Constructive use determinations. 

* * * * * 

(f) * * * 

(2) For projected noise levels: 

(i) The impact of projected traffic 

noise levels of the proposed highway 

project on a noise-sensitive activity do 

not exceed the FHWA noise abatement 

criteria as contained in Table 1 in part 

772 of this chapter; or 

(ii) The projected operational noise 

levels of the proposed transit or railroad 

project do not exceed the noise impact 

criteria for a Section 4(f) activity in the 

FTA guidelines for transit noise and 

vibration impact assessment or the 

moderate impact criteria in the FRA 

guidelines for high-speed transportation 

noise and vibration impact assessment; 

* * * * * 

■ 23. Amend § 774.17 by revising the 

definitions for ‘‘Administration’’ and 

‘‘CE’’ to read as follows: 

§ 774.17 Definitions. 

* * * * * 

Administration. The FHWA, FRA, or 

FTA, whichever is approving the 

transportation program or project at 

issue. A reference herein to the 

Administration means the State when 

the State is functioning as the FHWA, 

FRA, or FTA in carrying out 

responsibilities delegated or assigned to 

the State in accordance with 23 U.S.C. 

325, 326, 327, or other applicable law. 

* * * * * 

CE. Refers to a Categorical Exclusion, 

which is an action with no individual 

or cumulative significant environmental 

effect pursuant to 40 CFR 1508.4 and 

§ 771.116, § 771.117, or § 771.118 of this 

chapter; unusual circumstances are 

taken into account in making categorical 

exclusion determinations. 

* * * * * 

Title 49—Transportation 

PART 264—ENVIRONMENTAL IMPACT 

AND RELATED PROCEDURES 

■ 24. Revise the authority citation for 

part 264 to read as follows: 

Authority: 42 U.S.C. 4321 et seq.; 49 

U.S.C. 303; 23 U.S.C. 139; 40 CFR parts 1500 

through 1508; 49 CFR 1.81; Pub. L. 112–141, 

126 Stat. 405, Section 1319; and Pub. L. 114– 

94, 129 Stat. 1312, Sections 1432 and 11502. 

■ 25. Revise the heading for part 264 to 

read as set forth above. 

■ 26. Revise § 264.101 to read as 

follows: 

§ 264.101 Procedures for complying with 

the surface transportation project delivery 

program application requirements and 

termination. 

The procedures for complying with 

the National Environmental Policy Act 

of 1969, as amended (42 U.S.C. 4321 et 

seq.), and related statutes, regulations, 

and orders are set forth in part 771 of 

title 23 of the Code of Federal 

Regulations. The procedures for 

complying with 49 U.S.C. 303, 

commonly known as ‘‘Section 4(f),’’ are 

set forth in part 774 of title 23 of the 

Code of Federal Regulations. The 

procedures for complying with the 

surface transportation project delivery 

program application requirements and 

termination are set forth in part 773 of 

title 23 of the Code of Federal 

Regulations. 

PART 622—ENVIRONMENTAL IMPACT 

AND RELATED PROCEDURES 

■ 27. Revise authority citation for part 

622 to read as follows: 

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 

303 and 5323(q); 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 1.81; 

Pub. L. 112–141, 126 Stat. 405, Sections 

1315, 1316, 1317, 1318, and 1319; and Pub. 

L. 114–94, 129 Stat. 1312, Sections 1314 and 

1432. 

[FR Doc. 2017–20565 Filed 9–27–17; 11:15 am] 

BILLING CODE 4910–22–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2017–0398; FRL–9968–50– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Nonattainment New Source 

Review Requirements for the 2008 

8-Hour Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) proposes to approve the 

state implementation plan (SIP) revision 

submitted by the Maryland Department 

of the Environment (MDE) on behalf of 

the State of Maryland in response to 

EPA’s February 3, 2017 Findings of 

Failure to Submit for various 

requirements relating to the 2008 8-hour 

ozone national ambient air quality 

standards (NAAQS). This SIP revision is 

specific to nonattainment new source 

review (NNSR) requirements. In the 

Final Rules section of this Federal 

Register, EPA is approving the State’s 

SIP submittal as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed description of the 

state submittal and EPA’s evaluation is 

included in a technical support 

document (TSD) prepared in support of 

this rulemaking action. A copy of the 

TSD is available, upon request, from the 

EPA Regional Office listed in the 

ADDRESSES section of this document or 

is also available electronically within 

the Docket for this rulemaking action. If 

no adverse comments are received in 

response to this action, no further 

activity is contemplated. If EPA receives 

adverse comments, the direct final rule 

will be withdrawn and all public 

comments received will be addressed in 


asabaliauskas on DSKBBXCHB2PROD with PROPOSALS