[Federal Register Volume 65, Number 102 (Thursday, May 25, 2000)]
[Proposed Rules]
[Pages 33960-33992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13022]



[[Page 33959]]

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Part IV





Department of Transportation





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Federal Aviation Administration



Federal Transit Administration



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23 CFR Parts 771, 1420 and 1430

49 CFR Parts 622 and 623



NEPA and Related Procedures for Transportation Decisionmaking, 
Protection of Public Parks, Wildlife and Waterfowl Refuges, and 
Historic Sites; Proposed Rule

  Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / 
Proposed Rules  

[[Page 33960]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 771, 1420, and 1430

Federal Transit Administration

23 CFR Parts 1420 and 1430

49 CFR Parts 622 and 623

[FHWA Docket No. FHWA-99-5989 ]
FHWA RIN 2125-AE64; FTA RIN 2132-AA43


NEPA and Related Procedures for Transportation Decisionmaking, 
Protection of Public Parks, Wildlife and Waterfowl Refuges, and 
Historic Sites

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

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA and the FTA are issuing this notice of proposed 
rulemaking to update and revise their National Environmental Policy Act 
of 1969 (NEPA) implementing regulation for projects funded or approved 
by the FHWA and the FTA. The current regulation was issued in 1987 and 
experience since that time as well as changes in legislation, most 
recently by the Transportation Equity Act for the 21st Century (TEA-
21), call for an updated approach to implementation of NEPA for FHWA 
and FTA projects and actions. Under this proposed rulemaking, the FHWA/
FTA regulation for implementing NEPA would be redesignated and revised 
to further emphasize using the NEPA process to facilitate effective and 
timely decisionmaking.
    This NPRM is being issued concurrently with another notice of 
proposed rulemaking on metropolitan and statewide transportation 
planning. This coordinated approach to rulemaking will further the goal 
of the FTA and the FHWA to better coordinate the results of the 
planning processes with project development activities and decisions 
associated with the NEPA process.

DATES: Comments must be received on or before August 23, 2000. For 
dates of public information meetings see Supplementary Information.

ADDRESSES: Submit written, signed comments to the docket number 
appearing at the top of this document. You must submit your comments to 
the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, 
SW., Washington, DC 20590-0001. All comments will be available for 
examination at the above address between 9 a.m. and 5 p.m., e.t., 
Monday through Friday, except Federal holidays. To receive notification 
of receipt of comments you must include a pre-addressed, stamped 
envelope or postcard. For addresses of public information meetings see 
Supplementary Information.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Fred Skaer, (202) 
366-2058, Office of Planning and Environment, HEPE, or Mr. L. Harold 
Aikens, (202) 366-0791, Office of the Chief Counsel, HCC-31. For the 
FTA: Mr. Joseph Ossi, (202) 366-0096, Office of Planning, TPL-22, or 
Mr. Scott Biehl, (202) 366-0952, Office of the Chief Counsel, TCC-30. 
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Dockets, Room PL401, by using the universal resource locator 
(URL):http://dms.dot.gov. It is available 24 hours each day, 365 days 
each year. Please follow the instructions online for more information 
and help.
    An electronic copy of this document may be downloaded by using a 
modem and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may reach the Office of the Federal Register's home page at: 
http://www.nara.gov/fedreg and the Government Printing Office's 
database at: http://www.access.gpo.gov/nara.

Contents of Preamble

     Background on the NEPA Rule
     Overall Strategy for Regulatory Development
     Relationship to U.S. DOT's Statewide and Metropolitan 
Planning Regulation and other Rulemaking Efforts
     Section-by-Section Analysis of the Proposed Rule for 
NEPA and Related Procedures for Transportation Decisionmaking
     Section-by-Section Analysis of the Proposed Rule for 
Protection of Public Parks, Wildlife and Waterfowl Refuges, and 
Historic Sites.

Public Information Meetings

    We will hold a series of seven public briefings within the comment 
period for the NPRM. The purposes of these briefings is to explain the 
content of the NPRM and encourage public input to the final rulemaking. 
The meetings will address this NPRM, the companion NPRM on the 
metropolitan and statewide planning process and the NPRM on Intelligent 
Transportation Systems Architecture consistency. The meetings will be 
scheduled from approximately 8 a.m. to 5 p.m. at the locations listed 
below. Changes in the information below will be made available after 
the publication of this NPRM through the FHWA and the FTA websites, 
other public announcement avenues and the newsletters and websites of 
major stakeholder groups. Individuals wishing information but without 
access to these sources may contact the individuals listed above.
    The structure of the meetings will emphasize brief presentations by 
the DOT staff regarding the content of the NPRM. A period for 
clarifying questions will be provided. Under current statutory and 
regulatory provisions, the DOT staff will not be permitted to engage in 
a substantive dialog regarding what the content of the NPRMs and the 
final regulations should be. Attendees wishing to express ideas and 
thoughts regarding the final content of the rules should direct those 
comments to the docket. Briefing sites will include: Boston, MA, 
Auditorium, Volpe National Transportation Systems Center, 55 Broadway, 
June 9, 2000; Atlanta, GA, Westin Peachtree Plaza Hotel, 210 Peachtree 
Street, June 20, 2000; Washington, D.C., Marriott Metro Center, 775 
12th Street, NW, June 23, 2000; Chicago, IL, Holiday Inn Mart Plaza, 
350 North Orleans Street, June 27, 2000; Denver, CO, Marriott City 
Center, 1701 California Street, June 30 , 2000; Dallas, TX, Hyatt 
Regency Hotel Dallas, 300 Reunion Boulevard, July 11, 2000; and, San 
Francisco, CA, Radisson Miyako, 1625 Post Street, July 19, 2000.
    As part of the outreach process planned for these proposed rules, 
the FHWA/FTA will be conducting a national teleconference on June 15, 
2000 from 1 to 4 p.m., e.t., through the auspices of the Center for 
Transportation and the Environment at North Carolina State University. 
The teleconference will be accessible through numerous downlink 
locations nationwide and further information can be obtained from Ms. 
Katie McDermott at [email protected] or (919) 515-8034. The purpose of 
the teleconference is to describe the proposed new statewide and 
metropolitan planning, NEPA implementation, and Intelligent 
Transportation Systems (ITS) rules.
    An overview of each of the three notices of proposed rulemakings 
(NPRMs) will be presented and the audience (remote and local) will have 
opportunities to ask questions and seek clarification of FHWA/FTA 
proposals. By sponsoring this teleconference it is

[[Page 33961]]

hoped that interest in the NPRMs is generated, that stakeholders will 
be well informed about FHWA/FTA proposals, and that interested parties 
will participate in the rulemaking process by submitting written 
suggestions, comments and concerns to the docket.

Background

    The FHWA and the FTA propose to update and revise the current 
regulation and guidance implementing the NEPA (42 U.S.C. 4321 et seq.) 
for transportation projects using Federal funds or requiring Federal 
approval.
    In this notice of proposed rulemaking, we are clearly communicating 
that our NEPA responsibilities include an affirmative duty to 
facilitate the development of transportation proposals which represent 
responsible stewardship of community and natural environmental 
resources. In the 13 years since the NEPA regulation was last issued, 
the nature of the highway and transit programs has evolved to reflect 
our country's changing transportation needs and the impact that the 
transportation network can have on a complex set of environmental, 
community, and economic considerations. What has not changed is the 
role of State and local officials and Federal land management agency 
decision makers to define transportation investment strategies, plan 
for a future transportation system that best reflects their community 
needs, and select and set priorities for transportation projects.
    The NPRM was developed by an interagency Task Force of the FHWA and 
the FTA with input from other DOT modal agencies, the U.S. 
Environmental Protection Agency (EPA), other Federal agencies and the 
Office of the Secretary, U.S. DOT. The Task Force reviewed all input 
received from the outreach process which is described below and through 
other sources that communicate regularly with U.S. DOT. In addition, 
input was provided from the field staff of the FHWA and the FTA.
    Over the past thirteen years we have developed an increased 
understanding of effective environmental analysis, a greater commitment 
to prevention of adverse environmental impacts, and a realization of 
the increased value of integrated agency and public coordination. Given 
these developments, our role to ensure that transportation projects are 
developed through a more effective and collaborative NEPA process at 
the State, local, and Federal levels becomes that much more pivotal. 
Our environmental rule reflects the understanding that NEPA is an 
important tool for helping make transportation decisions, rather than 
justifying decisions already made. In addition, we believe that a more 
coordinated approach to planning and project development (the NEPA 
process plus additional project level actions needed to prepare for 
project implementation) will contribute to more effective and 
environmentally sound decisions regarding investment choices and trade-
offs.
    By including the environmental streamlining provision in TEA-21, 
section 1309 of Public Law 105-178, 112 Stat. 108 at 232, the Congress 
intended that transportation planning and environmental considerations 
be better coordinated and that project delivery schedules be improved 
through a process that is efficient, comprehensive, and streamlined. 
Growing awareness of the need for a Federal role that would oversee 
development of a coordinated environmental review process is tempered 
with congressional intent that State and local decisions be respected. 
The most important Federal role in the transportation decisionmaking 
process is one where the FHWA and the FTA would facilitate other 
Federal agencies' early involvement and participation in NEPA 
activities so that redundant processes are identified and avoided. We 
will, in our role as lead agencies, highlight opportunities to use NEPA 
as a mechanism to address statutory responsibilities at Federal, State, 
and local levels of government. During the TEA-21 outreach process, 
there has been very strong support from our transportation and 
environmental partners for a better managed NEPA process which reflects 
these basic features: coordination, flexibility, and efficiency.
    For these reasons, it is clear that a fundamentally new approach to 
NEPA is needed, one that emphasizes strong environmental policy, 
collaborative program solving approaches involving all levels of 
government and the public early in the process, and integrated and 
streamlined coordination and decisionmaking processes. Proposed 
approaches are included in this notice of proposed rulemaking. This 
NPRM fully supports ``protection and enhancement of communities and the 
natural environment,'' one of five U.S. DOT strategic goals. 
Translating this strategic direction into day-to-day operations 
requires that appropriate changes be made to regulations and 
nonregulatory operating guidance.

Overall Strategy for Regulatory Development

    Our strategy for regulatory development has three principal 
elements: (1) Outreach and listening to stakeholders; (2) developing 
improvements that will allow the FHWA, the FTA, States and metropolitan 
areas to demonstrate measurable progress toward achieving congressional 
intent and objectives; and (3) seeking ways to improve coordination and 
performance, both internally and with our Federal partner agencies.

Input to Development of Notice of Proposed Rulemaking

    We have used several venues to obtain feedback on how to improve 
the administration of NEPA. Of principal importance was the NEPA 25th 
Anniversary Workshop held in Chattanooga, Tennessee in 1995. 
Participants included a diverse group of governmental and 
nongovernmental individuals representing transportation and community 
interests, as well as those interested in protecting the natural 
environment. The blueprint document that resulted from the NEPA 
Workshop underscores the need for a fundamentally new approach to NEPA, 
one that focuses on decisionmaking rather than compliance.
    The FHWA and the FTA, in concert with the Office of the Secretary 
and other modal administrations within the U.S. DOT, developed and 
implemented an extensive public outreach process on all elements of the 
TEA-21. The process began shortly after the legislation was enacted on 
June 9, 1998, and various types of outreach activities have been 
underway since that time. The initial six-month Departmentwide outreach 
process included twelve regional forums and over 50 focus groups and 
workshops (63 FR 40330, July 28, 1998). The U.S. DOT heard from over 
3,000 people including members of Congress, Governors and Mayors, other 
elected officials, transportation practitioners at all levels, 
community activists and environmentalists, freight shippers and 
suppliers, and other interested individuals. The input received was 
valuable and has helped us shape implementation strategy, guidance, and 
regulations.
    With respect to the planning and environmental provisions of TEA-
21, we learned a great deal through the twelve regional forums and 
focus group sessions and subsequently implemented a second, more 
focused phase of outreach which included issuing a discussion paper, 
``TEA-21 Planning and Environmental Provisions: Options for 
Discussion,'' FHWA/FTA, February 1999. The content of the Options Paper 
reflected input received up to that time and built upon the existing 
statewide

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and metropolitan planning regulations and our NEPA implementing 
regulation. We released the Options Paper on February 9, 1999, and 
received comments through April 30, 1999. More than 150 different sets 
of comments were received from State Departments of Transportation 
(DOTs), Metropolitan Planning Organizations (MPOs), counties, regional 
planning commissions, other Federal agencies, transit agencies, bicycle 
advocacy groups, engineering organizations, consultants, historical 
commissions, environmental groups, and customers-- the American public. 
These comments were all reviewed and taken into consideration in the 
development of this NPRM. Another element of outreach has included 
meetings with our key stakeholder groups, other Federal agencies, and 
the regional and field staff within our agencies.
    This proposed rule will be one part of a widespread agency effort 
to provide clear and consistent guidance on how the NEPA process can be 
most effectively used to help applicants make transportation decisions 
which reflect a concern for social, economic, and environmental well-
being. It provides the framework upon which we, along with State DOTs, 
MPOs, transit agencies, and Federal land management agencies, can base 
our approach to transportation decisionmaking.
    We recognize that a wide range of issues exist in the realm of 
transportation and the environment. Our outreach effort associated with 
TEA-21, as well as feedback to the Options Paper, have highlighted many 
areas of concern for which the FHWA and the FTA policy should be more 
clearly articulated. However, not all of these areas will be directly 
addressed as part of this rule. For many topics for which we feel 
regulatory treatment is unnecessary or inappropriate, we intend to 
issue a comprehensive package of materials to provide detailed, 
nonregulatory information on how to incorporate such considerations 
into the NEPA process. In addition, certain other topics will be the 
subject of individual, separate regulations or guidance.
    The comprehensive package of informational materials is envisioned 
as a replacement both for the 1987 FHWA Technical Advisory 6640.8a on 
environmental documents and the FTA (formerly Urban Mass Transportation 
Administration) Circular 5620.1 \1\ on environmental assessments. The 
timing of its development is intended to be consistent with the 
development of the regulations that will result from this NPRM. We 
anticipate that the comments we receive on the NPRM will help guide the 
creation of the informational materials, as well as the regulations. 
Thus, a more complete picture of our approach will be presented.
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    \1\ The FHWA and the FTA internal directives are available for 
inspection and copying as prescribed at 49 CFR part 7.
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    Further, we have been working with Federal environmental agencies 
to implement the environmental streamlining provisions of TEA-21. The 
results of those activities are described in the section-by-section 
analysis discussion later in this preamble.
    The TEA-21 outreach effort and comments on the Options Paper have 
all helped guide us in developing this notice of proposed rulemaking. 
Comments on this NPRM are welcomed and will be taken into account prior 
to the issuance of a final regulation containing updated NEPA 
implementation requirements.

Relationship to U.S. DOT's Statewide and Metropolitan Planning 
Regulation and Other Rulemaking Efforts

    There are four additional rulemaking activities either underway or 
planned which relate closely to this notice of proposed rulemaking. 
These include: the joint FHWA/FTA rules on statewide and metropolitan 
planning and on section 4(f), and the FHWA rules on acquisition of 
right-of-way and decision-build contracting. The relationship with the 
statewide and metropolitan planning rulemaking is described below, and 
the TEA-21 provisions and input received through the Options Paper on 
the other three issue areas follows:

Statewide and Metropolitan Planning

    Concurrent with the release of this notice of proposed rulemaking, 
the U.S. DOT is issuing a notice of proposed rulemaking to update and 
revise its statewide and metropolitan planning regulations (23 CFR part 
450 and 49 CFR part 613). As proposed in these coordinated rulemaking 
actions, the statewide and metropolitan planning rule and the NEPA and 
transportation decisionmaking rules would both be moved to new parts: 
1410 and 1420, respectively. This co-location is intended to underscore 
the integrated nature of transportation planning and the NEPA process.
    We intend to ensure that the regulatory provisions governing 
statewide and metropolitan planning and NEPA work in a consistent and 
complementary fashion, and result in sound transportation decisions. We 
view the changes in TEA-21 as opportunities to improve and integrate 
planning and environmental processes to support more effective 
decisionmaking and it is in this context that both notices of proposed 
rulemaking were developed. It is our intent to establish consistency 
between the two regulations to allow our State and local transportation 
partners that choose to conduct social, economic, and environmental 
analysis at the planning stage to incorporate that analysis at the 
project development phase. This approach offers options for integrating 
project development efficiencies into the overall planning process, 
where States, MPOs, and transit agencies deem such action appropriate 
and desirable.

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

    We propose to move the reference and citation for section 4(f) \2\ 
in title 23 of the Code of Federal Regulations. This proposal removes 
the provisions on section 4(f) from the NEPA rule and establishes a 
separate regulation for section 4(f). Years of applying section 4(f) to 
new and unprecedented situations have led to a history of case 
experience which must be reflected in the regulation. As a result, the 
rules governing section 4(f) have grown to the point that they warrant 
their own part in the regulations. We can envision a separate effort to 
revise and update the section 4(f) rule; however, we are proposing 
minor changes at this time. Nevertheless, we invite comment on 
suggested changes to the Section 4(f) rule of a more substantive 
nature. A comprehensive package of informational materials that will be 
released concurrent with this final regulation will elaborate on the 
continued fully integrated relationship between the NEPA process and 
the section 4(f) evaluation process.
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    \2\ Section 4(f) of the Department of Transportation Act, which 
protected certain public lands and all historic sites, technically 
was repealed in 1983 when it was codified without substantive 
change, as 49 U.S.C. 303. This regulation continues to refer to 
section 4(f) because it would create needless confusion to do 
otherwise; the policies section 4(f) engendered are widely referred 
to as ``section 4(f)'' matters. A provision with the same meaning is 
found at 23 U.S.C. 138 and applies only to FHWA actions.
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    The information within the proposed section 4(f) regulation has not 
changed in concept. However, new information has been added to bring 
the administration of section 4(f) evaluations up-to-date with FHWA and 
FTA programs such as Transportation Enhancements, Transit Enhancements, 
the Symms National Trail Program, etc. There has been little 
substantive change in the requirements of the section 4(f) regulation; 
rather the format of the information presented has been changed

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to reflect these program changes and proposed organizational changes.
    The separation of the section 4(f) and NEPA procedures into 
separate regulations is not intended to fragment compliance with 
section 4(f) and NEPA. Our intent is to continue a fully integrated 
implementation under the unified and coordinated process provided by 
the NEPA procedures as an umbrella for addressing all relevant 
responsibilities, including section 4(f). Placing the two regulations 
in sequence within the Code of Federal Regulations, with cross 
references between them, is intended to communicate the continued 
integration of section 4(f) and the NEPA process.

Right-of-Way Acquisition

    Section 1301 of the TEA-21 allows the value of land acquired by a 
State or local government without Federal assistance to be credited to 
the State share of a federally-assisted project which uses that land. 
However, the law stipulated that the land acquisition must not 
influence the environmental assessment of the project, including the 
need to construct the project, the consideration of alternatives, and 
the selection of a specific location.
    The FHWA considered, under a separate rulemaking, covering ``Right-
of-Way Program Administration'' published as a final rule in the 
December 21, 1999, Federal Register, an ``early acquisition'' policy to 
accommodate the acquisition of land or other property interests 
(including ``at-risk'' activities) by State or local agencies that may 
be deemed necessary while NEPA considerations are being concluded. 
These acquisitions would be considered ``at-risk'' in that the Federal 
reimbursement for a share of the acquisition costs would be forthcoming 
only if the acquired property is subsequently used in a federally-
assisted project. Interested parties should refer to the December 21, 
1999, final rulemaking (64 FR 71284-71297) in the Federal Register.
    Advance right-of-way acquisition was the subject of considerable 
debate during the TEA-21 outreach efforts. Several commenters including 
the Capital Area MPO in Albany, NY, argued that the advance acquisition 
of right-of-way in rapidly growing areas is desirable, cost effective 
and good policy. These commenters view land acquisition as 
environmentally neutral, in that unused land can be disposed of, often 
at a profit. Others, including the National Coalition to Defend NEPA, 
noted the inherent conflict between allowing advance right-of-way 
acquisition and corridor preservation initiatives, and the selection of 
a preferred alternative as part of the NEPA process. The National 
Coalition to Defend NEPA argues that purchase of land represents a 
commitment to a particular project location and that it, therefore, 
would influence the assessment of the project under NEPA.

Design-Build Contracting

    Section 1307 of the TEA-21 permits a State or local transportation 
agency to award a design-build contract during project development 
provided that final design shall not commence before the NEPA process 
has been completed.
    We have been concerned about design-build contracts (also called 
``turnkey'' contracts) for federally-assisted projects being let before 
the NEPA process has been completed. To do so could give the appearance 
that the State or local transportation agency is fully committed to a 
single course of action, and that the NEPA process is simply a 
clearance exercise and not a true decisionmaking process. There may, 
however, be some situations in which design-build procurement can be 
structured to allow for the design-builders to work on an alternative 
emerging from the NEPA process. Our agencies recognize that the 
emerging interest in design-build contracting may warrant specific 
regulatory language or guidance addressing the relationship between 
design-build procurement and NEPA.
    During the TEA-21 outreach efforts, some commenters suggested that 
design-build contracting provisions could include clauses that would 
preclude work on construction or the ``building'' of projects until 
after the NEPA Record of Decision \3\ is made. The American Road and 
Transportation Builders Association (ARTBA) suggested that any work 
done on projects using this type of procurement method would be ``at-
risk'' until the NEPA Record of Decision is announced, meaning that the 
work may have to be discarded if the NEPA process ultimately results in 
selection of an alternative project. In these cases, the State or local 
agency would not be eligible to receive Federal reimbursement until 
that time, and only if the action was consistent with the Record of 
Decision. The Virginia DOT suggested that design-build procurement 
awards should not be made until after the NEPA process had been 
concluded, at which point the specifics of the location and design 
decisions would be known. This approach has been used by the FTA in its 
Turnkey Demonstration Program. The Orange County Transportation 
Corridors Agency suggested that having a design-build agency on board 
at the earliest possible time is actually environmentally beneficial, 
since it can contribute valuable input in a timely way, to arrive at 
implementable and cost effective recommendations.
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    \3\ NEPA Record of Decision is the documentation of final action 
by the FHWA and the FTA regarding their decision on a project action 
(final alternative chosen, impacts, mitigation and basis for 
decision, etc.) addressed in an Environmental Impact Statement.
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    For highway projects, the FHWA's Office of Infrastructure is 
responsible for developing regulations which implement this TEA-21 
provision. It is currently engaged in fact-finding and consultation 
among transportation partners including the American Association of 
State Highway and Transportation Officials (AASHTO), and anticipates 
beginning the formal rulemaking process next year. Achieving a balance 
between realizing the fullest time-savings potential of design-build 
contracting and maintaining the integrity of the NEPA process will be 
the subject of considerable discussion during that rulemaking process.
    Our agencies intend to adopt consistent policies on the NEPA-
related aspects of the design-build issue for two reasons: (1) Transit 
projects should not have procedural disadvantages in comparison to 
highway projects, and (2) Federal transit law (49 U.S.C. 5304(e)) 
requires that the FTA and the FHWA conform their NEPA processes to each 
other's.

Section-by Section Analysis of the Proposed Rule on NEPA and 
Related Procedures for Transportation Decisionmaking

    This section of the notice of proposed rulemaking includes a 
section-by-section analysis of the proposed rule on NEPA and 
incorporates summary information on comments received on the Options 
Paper. All comments on the Options Paper are contained in the docket. 
The comments are, of necessity, summarized in each of the relevant 
sections of the proposed rule and are intended to provide an overall 
perspective on the comments submitted to the FHWA and the FTA. Details 
on specific comments and input can be obtained by reviewing the 
materials in the docket.
    The proposed regulations have been reordered as to content and 
organized into the following four subparts:

Subpart A--Purpose, Policy, and Mandate;
Subpart B--Program and Project Streamlining;

[[Page 33964]]

Subpart C--Process and Documentation Requirements; and
Subpart D--Definitions.

    The following table highlights the reordering and organization for 
each proposed subpart:

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            Proposed Section                     Current Section
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Subpart A--Purpose, Policy, and Mandate  None.
1420.101  Purpose of this regulation...  771.101  Purpose.
1420.103  Relationship of this           771.103  [Reserved]
 regulation to the CEQ regulation and
 other guidance.
1420.105  Applicability of this          771.109(a)  Applicability and
 regulation.                              responsibilities and
                                         771.111(f)  Early coordination,
                                          public involvement, and
                                          project development.
1420.107  Goals of the NEPA process....  None.
1420.109  The NEPA umbrella............  771.105  Policy.
1420.111  Environmental justice........  771.105  Policy.
1420.113  Avoidance, minimization,       771.105  Policy.
 mitigation, and enhancement
 responsibilities.
Subpart B--Program and Project           None.
 Streamlining.
1420.201  Relationship of planning and   None.
 project development processes.
1420.203  Environmental streamlining...  None.
1420.205  Programmatic approvals.......  None.
1420.207  Quality assurance process....  771.125  Final environmental
                                          impact statements.
1420.209  Alternate procedures.........  None.
1420.211  Use of this part by other      None.
 U.S. DOT agencies.
1420.213  Emergency action procedures..  771.131  Emergency action
                                          procedures.
Subpart C--Process and Documentation     None.
 Requirements.
1420.301  Responsibilities of the        771.109  Applicability and
 participating parties.                   responsibilities.
1420.303  Interagency coordination.....  771.111  Early coordination,
                                          public involvement, and
                                          project development.
1420.305  Public involvement...........  771.111  Early coordination,
                                          public involvement, and
                                          project development.
1420.307  Project development and        771.111  Early coordination,
 timing of activities.                    public involvement, and
                                          project development, and
None...................................  771.113  Timing of
                                          administration activities.
1420.309  Classes of actions...........  771.115  Classes of actions.
1420.311  Categorical exclusions.......  771.117 Categorical exclusion.
1420.313  Environmental assessments....  771.119  Environmental
                                          assessments.
1420.315  Findings of no significant     771.121  Findings of no
 impacts.                                 significant impacts.
1420.317  Draft environmental impact     771.123  Draft environmental
 statements.                              impact statements.
1420.319  Final environmental impact     771.125  Final environmental
 statements.                              impact statements.
1420.321  Record of decision...........  771.127  Record of decision.
1420.323  Re-evaluations...............  771.129  Re-evaluations.
1420.325  Supplemental environmental     771.130  Supplemental
 impact statements.                       environmental impact
                                          statements.
Subpart D--Definitions.................  None.
1420.401  Terms defined elsewhere......  None.
1420.403  Terms defined in this part...  771.107  Definitions.
------------------------------------------------------------------------

Subpart A--Purpose, Policy and Mandate

    This proposed subpart sets out the framework for the FHWA/FTA NEPA 
process. It complements and supplements the United States Council on 
Environmental Quality (CEQ) provisions that serve a similar function 
for the entire Federal government.

Section 1420.101  Purpose of This Regulation

    Current Sec. 771.101 would be redesignated as Sec. 1420.101 and 
revised to establish that the focus of the proposed regulation is to 
conduct a decisionmaking process for transportation projects that, 
under NEPA, integrates and streamlines compliance with all 
transportation and environmental laws applicable to decisionmaking 
during project development. Reference is made to the regulations for 
transportation planning as being a contributing factor to this 
decisionmaking process.

Section 1420.103  Relationship of This Regulation to the CEQ Regulation 
and Other Guidance

    The proposed Sec. 1420.103 does not appear in the current 
regulation. It clarifies that this regulation is to be read as a 
supplement to the CEQ's governmentwide regulations for implementing 
NEPA (40 CFR parts 1500-1508) and contains specific provisions for 
Federal surface transportation actions under our jurisdiction. Further, 
the proposed section acknowledges that, in addition to issuing revised 
NEPA regulations, we will conduct and fulfill our responsibilities 
under NEPA using any combination of approaches including, but not 
limited to, nonregulatory guidance, training, and technical assistance.
    The CEQ regulations cover regulatory definition and general 
environmental procedural requirements (e.g., acceptable development and 
evaluation of an acceptable range of alternatives). These are not 
repeated in this proposed rule because we want to avoid confusion by 
repeating or paraphrasing CEQ requirements. Reproducing requirements in 
the FHWA and the FTA environmental regulations that are identical to 
CEQ requirements could create potential conflicts and confusion as to 
the applicability of CEQ provisions not reproduced. Instead, the chosen 
approach makes a discernible connection between the different 
regulations, and provides the

[[Page 33965]]

opportunity for general practitioners to increase their familiarity 
with and understanding of the CEQ regulations, a familiarity of which 
is essential to their ability to comply fully with all of the 
environmental requirements applicable to transportation projects.

Section 1420.105  Applicability of This Regulation

    The proposed section revises current Secs. 771.109 and 771.111, 
Applicability and responsibilities and Early coordination, public 
involvement, and project development, respectively. The language 
appearing in paragraph (a) of the proposed section is a shortened 
version of paragraph (a) of current Sec. 771.109. Paragraph (b) in the 
proposed section is essentially the existing criteria for allowable 
segmentation of projects, taken from paragraph (f) of Sec. 771.111.

Section 1420.107  Goals of the NEPA Process

    Proposed section Sec. 1420.107 is to be read in close conjunction 
with the subsequent proposed Sec. 1420.109. Section 1420.107 would 
establish the goals of the FHWA/FTA transportation decisionmaking 
process. The goals are drawn from a variety of statutory mandates, 
including NEPA itself, and provisions of the various transportation 
laws that authorize our programs. The NEPA process is a partnership 
among Federal, State, and local governments and, at times, private 
entities. Our intent in this section is to establish a common 
understanding within the partnership of the goals to be achieved 
through the NEPA process.
    The FHWA and the FTA reaffirm their role as lead Federal agencies, 
and underscore their responsibility to manage the NEPA process with the 
objective of achieving these goals. This responsibility extends to 
ensuring that Federal NEPA decisions pay appropriate deference to State 
and local decisions made in good faith and not coerce a particular 
Federal point of view. State and local decisions made with full 
consideration of a broad range of social, economic, and environmental 
factors, and with the advice of appropriate Federal and other State 
resource agencies (i.e., the agencies responsible under law for the 
protection or management of natural and community resources) and with 
public involvement are those most likely to advance the NEPA goals.

Section 1420.109  The NEPA Umbrella

    Proposed Sec. 1420.109 would replace portions of current 
Sec. 771.105, Policy. The proposed section sets forth our basic policy 
regarding how the decisionmaking process for surface transportation 
projects is to be conducted . The proposed section states the intent of 
our agencies to use the NEPA process as the overarching procedural 
construct under which the varied legal requirements, environmental 
issues, and public interests relevant to the transportation decision 
are brought to bear; hence the term ``NEPA umbrella'' is used to 
describe the concept. The consideration of a proposed action under NEPA 
concludes with a decision made in the best overall public interest: one 
that balances the need for safe and efficient transportation with the 
project's social, economic, environmental benefits and impacts, and the 
attainment of relevant environmental protection goals.
    Experience in administering the NEPA process has shown that many 
practitioners do not fully understand or practice our approach of using 
the NEPA process as an umbrella for integrating their studies, reviews, 
or consultations and satisfying all relevant requirements in a single, 
integrated decisionmaking process. Instead, many have chosen to 
approach the various requirements as obstacles or hurdles to be 
addressed in a less than comprehensive fashion. Many delayed projects 
or failed processes can be traced back to a disintegrated and 
disconnected approach to meeting NEPA and other requirements. This 
section of the regulation is intended to clarify the preferred approach 
and explicitly demonstrate the multitude of factors that can influence 
Federal decisionmaking. Setting forth these expectations will 
contribute to a better, more efficient and timely NEPA process, one 
that is envisioned in the TEA-21 and highlighted in its section 1309 on 
environmental streamlining.

Section 1420.111  Environmental Justice

    Subsequent to the previous regulatory revision in 1987, the 1994 
Executive Order 12898 on Environmental Justice was issued to address 
disproportionately high and adverse human health and environmental 
effects of Federal government programs, policies, and activities on 
minority populations and low income populations. This section would be 
added to present regulatory language from our policy on environmental 
justice that is articulated in the DOT Order 5610.2 on Environmental 
Justice (62 FR 18377, April 15, 1997).

Section 1420.113  Avoidance, Minimization, Mitigation, and Enhancement 
Responsibilities

    This section would present our policy regarding NEPA's mandate that 
Federal agencies, to the fullest extent possible, use all practicable 
means to restore and enhance, and avoid or minimize any possible 
adverse effects of their actions upon the quality of the human 
environment.
    Our policy towards correcting adverse impacts is contained in the 
hierarchical but not necessarily sequential concepts of avoidance, 
minimization, and mitigation of impacts, and in the evaluation of 
environmental enhancements. The policy is consistent with the CEQ's 
approach to mitigation presented in 40 CFR 1500.2(f) and elsewhere, and 
would revise the language concerning mitigation of adverse impacts 
currently provided at Sec. 771.105(d). The proposed language reflects 
also the broadened Federal funding eligibility for enhancement 
measures, such as transportation enhancement activities and transit 
enhancements, enacted with ISTEA and TEA-21. The section would address 
the eligibility for Federal funding (to the extent authorized by law), 
of measures to avoid, minimize, or mitigate impacts, or to provide or 
implement enhancements.
    Our general responsibility for ensuring that mitigation is carried 
out would be presented in paragraph (d) of the proposed section, NEPA 
Commitments. These provisions would be redesignated from 
Sec. 771.109(b) to streamline the subject matter of the new 
regulations; the original text would be revised to detail the 
responsibility for implementing mitigation measures and environmental 
enhancements that resulted from commitments made in the FHWA/FTA NEPA 
process.

Subpart B--Program and Project Streamlining

    This subpart would group together a set of provisions aimed at 
improving the NEPA process, either on individual projects or on a 
programwide basis, so that transportation decisions can be made in a 
timely and environmentally sensitive manner. It would respond in part 
to the TEA-21 chapter on flexibility and streamlining, which addresses 
major investment study integration (section 1308) and contains the 
provisions on environmental streamlining (section 1309).

Section 1420.201  Relation of Planning and Project Development 
Processes

    This section would clarify the relationship of the transportation

[[Page 33966]]

planning process and the project development process which is the 
subject of this NPRM. It reflects coordination with our concurrent 
proposed Metropolitan and Statewide Planning regulations; Sec. 1420.318 
of that proposed rule, and its preamble, provide further discussion of 
the relationship between the planning and project development 
processes. The section also stresses that the record of prior 
transportation planning activities, such as development of purpose and 
need and the systems-level evaluation of alternatives, shall be 
incorporated into the scoping or early coordination phases of an EIS or 
EA, respectively, in order to establish the alternatives to be advanced 
to the NEPA process.
    Our agencies feel it is essential to clarify the nature of the 
linkage between planning and the NEPA process in this NPRM. The 
transportation planning process needs to be better coordinated with the 
project development/NEPA process so that transportation planning 
decisions can ultimately support the development of the individual 
projects which arise from transportation plans. During the TEA-21 
outreach efforts, opinions varied over whether regulatory language or 
guidance should be used to integrate planning and programming 
activities, but most commenters agreed that the linkage between 
planning and project development needs to be cultivated. Many 
commenters, including the AASHTO and many State DOTs, opposed any 
regulatory language which would place requirements of NEPA into the 
planning process. Others, including the National Coalition to Defend 
NEPA, pointed to the need for the core values of the NEPA process to be 
incorporated into the planning process and suggested that regulatory 
language is in order.
    The Options Paper discussed the notion that the establishment of 
purpose and need and the broad scale evaluation of alternatives can 
often be best accomplished during the planning process. How to frame 
the statement of purpose and need so that it is neither too narrow nor 
too broad is a continuing challenge. If too narrowly conceived, purpose 
and need can constrain the process with an unreasonably limited set of 
possible solutions; if too broadly constructed purpose and need may 
lead to an unmanageably large set of alternatives that unnecessarily 
bog down the process. Options to provide clearer direction regarding 
what constitutes an acceptable statement of purpose and need are being 
explored and we invite specific comments on this issue.
    There was considerable support for allowing States and MPOs the 
option of addressing purpose and need in the planning process, and even 
to initiate the NEPA process at that time. This would allow 
stakeholders to conduct broad ranging planning and subregional studies, 
reach agreement on purpose and need during the planning process, and 
benefit from such analyses by using them directly in the NEPA process. 
There was also strong support for establishing a point during the NEPA 
process at which the participants would discuss and concur in a 
statement of purpose and need.
    However, a considerable number of commenters, including many State 
DOTs and MPOs, objected to any mandate for the determination of purpose 
and need during planning and argued that it would burden the planning 
process and add considerable delay by seeking a determination of need 
at an inappropriate juncture.
    The Surface Transportation Policy Project (STPP) recommended a two-
stage NEPA process where the first phase would evaluate the range of 
social, fiscal, and environmental costs and benefits of various 
alternative visions for a corridor or community. Based on this 
evaluation, an initial statement of purpose and need would be 
articulated. This purpose and need statement would be very broad, an 
articulation of the goals for the area already arrived at through the 
planning process, for example. The STPP proposed that a wide field of 
inquiry would be maintained at this stage. Subsequent to this phase of 
evaluation, and once a detailed review of options is complete, an 
agency would have the information necessary to propose a revised, more 
specific statement of purpose and need. It would be this revised 
statement of purpose and need that would serve as the basis for a 
detailed review of alternatives under NEPA. Under both phases, the 
choice of a project purpose would be subject to public input.
    The Environmental Law and Policy Center argued for the allowance of 
lower-cost and lesser impact project alternatives to be selected 
through the NEPA process even if they do not fully meet the stated 
purpose and need. Both the U.S. EPA and the U.S. Department of Interior 
argued for broadly defined purpose and need during planning to ensure 
that a full range of modal alternatives are considered.
    The National Coalition to Defend NEPA expressed concern over the 
development of purpose and need during planning. It felt this could 
prematurely preclude options and alternatives and argued that, until 
the DEIS is completed, insufficient information is available with which 
to make such decisions. In short, it is concerned that defining purpose 
and need so early (in planning) could have the effect of ``setting in 
stone'' projects without adequate consideration of alternatives.
    Commenters asked for examples, best practices and information on 
issues related to purpose and need determination, and there was general 
consensus that improvements in defining purpose and need are warranted. 
They felt that the difficulties articulated in the Options Paper 
relating to broad versus narrow statements of purpose and need are 
indeed real problems and that our agencies could provide useful 
guidance in this area.
    We intend to provide continuity between the systems planning and 
project development processes so that the results of analysis performed 
during the planning stage, including project purpose and need, 
alternatives, public input, and environmental concerns are brought 
forward into project development. The proposed integration of the 
planning and project development process embodied in this regulation 
would enable a more broadly defined statement of purpose and need to be 
addressed at appropriate points in the integrated process.
    There has also been much discussion of the standing given to 
planning decisions on alternatives to be advanced or dropped from 
consideration. The proposed regulation envisions an active discussion 
of this issue during scoping, with the involvement of the responsible 
planning agencies (i.e., the MPO and/or the State DOT). Ultimately, the 
U.S. DOT agency, in cooperation with the applicant, must decide the 
range of alternatives to be evaluated in detail in the NEPA document. 
The proposed regulation allows these agencies to recognize planning 
decisions made with adequate supporting documentation. Though the form 
and content of this support will not be specified in the regulation, we 
expect to see some or all of the following offered in this context: 
technical studies as envisioned by proposed Sec. 1420.318(b), 
documentation of public reviews and comments, formal policy board 
resolutions in the case of MPO actions, or other supporting materials. 
For proposed major transit investments, this review will also decide 
whether the documented planning activities constitute the Alternatives 
Analysis required by 49 U.S.C. 5309(e) or, alternatively, if the 
requirement must still be satisfied in the NEPA process.
    We propose to provide more detailed treatment on the subjects of 
purpose and

[[Page 33967]]

need, and the development, analysis, and evaluation of alternatives in 
the comprehensive package of informational materials. This would 
include how to address alternatives which in the past have been 
rejected for not fully meeting traditional concepts of purpose and 
need. Further, we plan to showcase examples of successful practices 
which demonstrate how effective integration of planning and project 
development can protect communities and environmental resources and 
save time in providing needed transportation improvements.
    Examples of issues that might be covered include: the further 
consideration of alternatives that may not fully meeting traditional 
concepts of purpose and need; more broadly defined purpose and need 
statements during the planning stage so that a full range of modal 
alternatives are considered; an alternative analysis that examines non-
construction alternatives that use transportation demand strategies; 
and flexibility to encourage the consideration of alternatives which 
may have lower than originally desired levels of transportation service 
if there are cost, time, and impact savings that justify the lower 
levels of transportation service.
    We are soliciting comments on a suggestion that specifically 
addressing the requirements of the major investment study in the 
planning process would enhance that process by forging a clearer link 
between the planning and the project-level NEPA processes, leading to 
greater streamlining at the project level.

Section 1420.203  Environmental Streamlining

    This new section would be added to reflect the requirements of 
section 1309 of the TEA-21. The basic premise of section 1309 of the 
TEA-21 was to address concerns relating to delays, unnecessary 
duplication of efforts and costs associated with the development of 
highway and transit projects. Section 1309 also stipulates that nothing 
in section 1309 shall affect the applicability of NEPA or any other 
federal environmental statute or affect the responsibility of any 
federal offices to comply with or enforce such statutes. The rule 
responds to the TEA-21 environmental streamlining provisions by 
establishing a process intended to coordinate Federal agency 
involvement in major highway and transit projects with the goals of 
identifying decision points and potential conflicts as early as 
possible, integrating the NEPA process as early as possible, 
encouraging the full and early participation of all relevant agencies, 
and establishing coordinated time schedules for agencies to act on a 
project.
    This proposed section of the regulation establishes the 
``coordinated environmental review process'' which section 1309 of the 
TEA-21 directed the Secretary of Transportation to develop and 
implement. Paragraph (a) lays out the elements of this coordinated 
environmental review process, providing a substantive but flexible set 
of actions to be taken by the U.S. DOT in cooperation with the 
applicant to ensure that the goals of section 1309 are met. An 
important element of this coordinated environmental review process is 
reaching closure among the Federal agencies on the scoping process. 
This paragraph calls for agency concurrence at the end of scoping, 
which could take various forms depending upon the mutual understandings 
and agreements of the Federal agencies. In the event of nonconcurrence, 
this paragraph provides also for means to resolve interagency 
disagreements at the earliest possible time. Paragraph (b) describes 
the process for applying the coordinated environmental review process 
to State level environmental reviews. Paragraph (c) would implement the 
provisions of the statute which allow the Secretary to decide not to 
apply section 1309 to the preparation of an environmental assessment. 
Paragraph (d) would implement the CEQ NEPA regulation provisions on 
paperwork reduction and clarifies that the NEPA documentation need not 
explicitly contain a finding that a particular impact does not exist. 
For example, if the environmental inventory revealed that there were no 
wetlands in the project area, a specific finding indicating that the 
project would have no impacts on wetlands would not be required. This 
provision would help to focus NEPA documents on important issues in 
accordance with the CEQ NEPA regulations' provision on paperwork 
reduction.
    One consistent theme that emerged through the outreach process 
pointed to the need for early and up-front involvement of Federal 
agencies in the NEPA process and for close coordination and cooperation 
among the Federal agencies throughout the process. The State DOTs, the 
MPOs, the National Association of County Engineers, the U.S. EPA, and 
the U.S. Department of Interior all felt that Federal agency 
involvement is critical to successful implementation of the 
environmental streamlining provisions. They also recommend that our 
field offices and the resource agencies' field offices throughout the 
country have the authority to participate in, review, and respond to 
issues associated with the NEPA process.
    Inasmuch as stakeholder sentiments echoed a need for early 
collaboration and close coordination with all interested and affected 
parties, they also strongly reinforced the need for flexibility at the 
State and local levels for implementing the goals of streamlining. A 
``one-size-fits-all'' regulatory approach was soundly rejected by an 
overwhelming majority of stakeholders, other Federal agencies, 
practitioners, project sponsors, and field offices.
    We believe that successful implementation of environmental 
streamlining must be based upon a number of principles, and are 
pursuing a process that will ensure effective environmental 
decisionmaking in a timely manner. Both transportation and resource 
agencies must improve their environmental review processes. The U.S. 
DOT will provide national leadership on environmental streamlining, and 
is working with CEQ and headquarters offices of the EPA, the U.S. Army 
Corps of Engineers, the U.S. Fish and Wildlife Service, the U.S. 
National Park Service, the U.S. National Oceanic and Atmospheric 
Administration, the Advisory Council on Historic Preservation and 
others to obtain commitments to better decisionmaking. The framework 
for this commitment to the environment and to streamlining the 
environmental process is set forth in the national Memorandum of 
Understanding (MOU) which was entered into by the aforementioned 
agencies in July 1999.\4\ We fully expect to track the commitments 
reflected in the national MOU. We recognize that tangible progress will 
evolve locally, and State by State, at different rates, based largely 
on good working relationships and trust established among the agencies 
at the field office level.
---------------------------------------------------------------------------

    \4\ This Memorandum of Understanding is available electronically 
from FHWA's website at http://www.fhwa.dot.gov/environment/strming.htm.
---------------------------------------------------------------------------

    We are proposing to implement the environmental streamlining 
requirements largely outside of the regulatory process through the 
following means: (1) U.S. DOT memoranda of understanding with Federal 
or State agencies; (2) establishment of dispute resolution processes; 
(3) streamlining pilot efforts; (4) authorization of the U.S. DOT to 
approve State DOT or transit agency requests to reimburse Federal 
agencies for expenses associated with meeting expedited time frames; 
and (5) establishing performance measures to evaluate and measure 
success in both

[[Page 33968]]

environmental stewardship and environmental streamlining. We have 
established an environmental streamlining page on the FHWA website to 
keep the public up to date on our ongoing activities and resources 
(http://www.fhwa.dot.gov/environment/strming.htm). We are also 
providing a detailed description of our work to date on the following:
(1) National MOU
    The central effort on the national MOU has been to craft an 
agreement among agencies which demonstrates a commitment to key 
principles and upon which further agreements can be executed at a local 
or regional level to address more specific issues. Establishing and 
maintaining clear and frank communication has been at the heart of the 
national MOU and would be the primary guide to further interagency 
agreements.
    The process of developing the national MOU was aimed chiefly at 
responding to the concerns regarding early and up-front involvement of 
Federal agencies in the NEPA process and for close coordination and 
cooperation between Federal agencies throughout the process. We are 
working with representatives of other Federal agencies at the 
headquarters and field levels to develop a common understanding of the 
environmental streamlining provision and a coordinated implementation 
strategy. The development of the national MOU has followed the 
suggestion of AASHTO, Association of Metropolitan Planning 
Organizations (AMPO), and many State DOTs that the MOU include broad 
principles of agreement on how the NEPA process would be carried out 
but that project-specific or program-specific MOU's need to be 
developed at the State, regional, or local level, based upon these 
broad principles, and tailored to specific local circumstances or 
projects.
(2) Dispute Resolution Procedures
    Procedures for resolving conflict at the national, regional, and 
State levels are under development. Mediation methods and systems for 
alternative dispute resolution are being developed and training 
programs in these methods will be established. This approach will 
enable parties to seek timely intervention over disputes during the 
project development process, as a way to circumvent and minimize the 
number of environmentally unacceptable projects that may otherwise be 
referred to CEQ for resolution, by either reestablishing consensus on 
the need for the project or reaching consensus to drop the project 
entirely. Alternative dispute resolution strategies will be defined so 
that they can be effectively applied to improve institutional 
relationships among parties or to resolve conflicts surrounding 
specific project issues.
    On the matter of dispute resolution procedures, commenters made 
three key points. They felt that explicit time frames for document 
reviews are needed and should be agreed to, to the fullest extent 
possible, up-front in the process. Secondly, they supported an approach 
where the parties to the MOU agree, at an early stage, on the level of 
information and detail that is needed at various steps in the NEPA 
process. Resource agencies expressed frustration with the timing and 
level of detail of information that they are asked to consider and act 
upon, and State and local implementing agencies expressed frustration 
due to uncertainties over what specific information and level of detail 
would be required of them by the Federal resource, regulatory and 
permitting agencies. A third point made by many stakeholders was that 
procedures on coordination, documentation, and communications should be 
agreed to as early as possible. They felt that this would help to 
resolve differences that arise at various points in the process and 
which can contribute to delays.
(3) Pilot Efforts Are One Effective Mechanism for Testing and 
Evaluating Change
    One specific topic suggested for pilot projects was from the North 
Carolina DOT and the American Road and Transportation Builders 
Association, which suggested the testing of alternative approaches to 
gaining interagency cooperation during the NEPA process. The Virginia 
DOT suggested that pilot project efforts should be directed at finding 
ways to resolve differences between Federal agencies. A third 
suggestion was that pilot projects should test approaches to providing 
States flexibility in carrying out the NEPA process.
    Not all commenters supported the concept of pilot projects, 
however, and the National Coalition to Defend NEPA questions the legal 
authority of our agencies to conduct pilot projects and cautioned 
against using pilot projects to ``back-door'' the NEPA process. It was 
also concerned that pilot efforts not only involve partnership 
development between Federal and non-Federal partners and resource 
permitting agencies, but also include groups representing the public as 
well.
    Based on the input received on the issue of pilot efforts, we are 
not proposing to establish a formal process for pilots at this time, 
through regulation or any other means. Instead, we will participate in 
pilot efforts on a case-by-case basis. These pilot efforts might be 
focused on a single project or on improving a particular process, but 
would not include the delegation of Federal NEPA responsibilities to 
States that was considered but not enacted in the TEA-21. We will 
continue to coordinate closely with the U.S. EPA, the AASHTO and others 
who are developing pilot efforts, and will actively assist in sharing 
information on efforts including lessons learned.
(4) Use of Titles 23 and 49, U.S.C., Funds To Pay for Environmental 
Agency Work
    The agency reimbursement language in the environmental streamlining 
provisions of the TEA-21 offers an opportunity to partially overcome an 
historic obstacle, that Federal agencies cannot involve themselves in 
the process early enough or regularly enough due to resource 
constraints within agencies. The TEA-21 includes specific conditions 
allowing States and transit agencies to use Federal transportation 
funds for reimbursement of expenses related to work done to meet the 
expedited time schedules required by section 1309 of the TEA-21. In 
addition, other statutory authorities exist for agency reimbursement, 
and we are exploring the full range of options for reimbursing agencies 
through any of the available authorities. Furthermore, approaches to 
developing collaborative efforts with other Federal agencies are being 
explored in order to develop model reimbursement agreements, and to 
facilitate the implementation of such agreements by Federal agency 
field staff.
    Due to the need for flexibility and the different practices and 
needs of various State and resource agencies, it was determined that 
nonregulatory guidance would most appropriately address the use of 
Federal transportation funds for reimbursing costs associated with 
streamlining. Hence, we engaged participation by many other affected 
Federal agencies to develop a single guidance package that would be 
useful to transportation and environmental agencies, including State 
DOT's and transit agencies and Federal, State, and local resource 
agencies. The breadth of situations that might be addressed under this 
provision was such that the guidance does not try to anticipate them 
all. Rather, it reinforces the Federal government's belief in effective 
interagency coordination and

[[Page 33969]]

demonstrates a commitment from Headquarters offices to support field 
efforts in implementing this provision of the TEA-21.
    There were a number of comments on this TEA-21 provision and a 
suggestion from the American Road and Transportation Builders 
Association that the principles to apply to reimbursement should 
include a provision that reimbursement for Federal agency activities to 
expedite NEPA reviews must be linked to a specific project, set of 
tasks, and person or position to be involved on behalf of the Federal 
agency. Others, including the Nevada and Missouri DOTs, felt that 
reimbursing an agency for working on one project over another is not a 
good approach. Reimbursing agencies for doing their jobs, it was 
argued, would introduce a bias into the NEPA process which would result 
in an expedited review or enhanced level of participation on some 
projects over others.
(5) Performance Measures
    Our agencies have a joint effort underway to evaluate the 
timeliness and the effectiveness of the NEPA process at arriving at 
decisions that are in the best overall public interest. Further 
information on this effort can be obtained from the FHWA.

Section 1420.205  Programmatic Approvals

    Section 1420.205 would be added to establish in regulation the 
FHWA/FTA practice of using programmatic environmental approvals as one 
way of addressing recurring situations in a streamlined manner.
    This practice has been especially effective with categorical 
exclusions for meeting the NEPA requirements in uncomplicated and non-
controversial situations. One example of this are programmatic 
categorical exclusion approvals in which FHWA and a State DOT 
established a set of environmental impact thresholds, which, if not 
exceeded, allow the State DOT to apply the categorical exclusion 
approval without a project specific review by FHWA. Periodically, the 
FHWA reviews a sample of projects after-the-fact to ensure that the 
approval was appropriately applied. Other examples of programmatic 
approvals include section 4(f) approvals for minor uses of parkland and 
approval to delegate certain USDOT responsibilities under the recently 
issued regulations implementing section 106 of the National Historic 
Preservation Act. The proposed section explicitly recognizes the 
appropriateness of programmatic approaches for compliance with NEPA and 
related statutes, but does not specify the types of actions for which 
programmatic approaches would be created. Programmatic approaches to 
meeting the NEPA requirements which would not directly involve project 
level Federal approvals would be subject to periodic process reviews to 
ensure that they are being properly applied. This would enable the 
Federal agencies to focus limited resources on more problematic 
project-level decisions and to maintain a quality assurance role for 
projects with beneficial or de minimis environmental impacts. There was 
general support for such an approach in comments on the Options Paper. 
We invite comments on public notice and interagency coordination 
processes appropriate for making programmatic approvals.

Section 1420.207  Quality Assurance Process

    This new proposed section would establish an internal 
responsibility for our agencies to employ appropriate quality 
management methods to assure that the NEPA responsibilities are carried 
out in a competent and timely manner. Such a process is intended to 
streamline the process by institutionalizing lessons learned throughout 
the administration of our programs and NEPA so that mistakes are not 
repeated and innovative approaches are fully implemented.
    The requirements in the current regulation for legal sufficiency 
review of Final Environmental Impact Statements (FEIS) and prior 
concurrence of the Headquarters on certain FEISs would be incorporated 
into this proposed section. These processes have proven helpful in 
assuring the quality of analysis, coordination, and documentation and 
can prevent costly and timely lawsuits and conflicts. As proposed, the 
nature of legal sufficiency review and the threshold for requiring 
prior concurrence at Headquarters would not be specified in regulation, 
but would be the subject of internal orders.

Section 1420.209  Alternate Procedures

    This new section would be added to establish the procedures for 
processing and approving alternate procedures for complying with this 
regulation. This would give us the flexibility to partner with CEQ and 
State DOTs or transit agencies on NEPA reinvention efforts that achieve 
the goals of the NEPA process by using alternate methods or procedures 
that are more in tune with and supportive of non-Federal decisionmaking 
requirements.

Section 1420.211  Use of This Part by Other U.S. DOT Agencies

    In 1993, the U.S. DOT National Performance Review effort 
recommended that the NEPA procedures of the various modes be blended 
into a single process. Efforts to accomplish this unified procedure 
were purposely delayed until after passage of the surface 
transportation reauthorization which became TEA-21. Recent discussions 
within the U.S. DOT are now pointing toward a dual effort, one element 
of which would cover the entire department, the other of which is this 
proposed regulation covering just the FHWA and the FTA. To advance the 
first element, U.S. DOT would revise the U.S. DOT Order on NEPA to 
update the departmentwide statement of environmental policy and to 
remove barriers to collaboration between the U.S. DOT modes on NEPA 
issues. It would provide authority for one U.S. DOT agency to use the 
NEPA procedures of another U.S. DOT agency or to act as the agent for 
another U.S. DOT agency when a situation warrants. This proposed 
section clarifies in regulation that the internal order is considered 
legally sufficient to provide these authorities. The further action at 
the departmental level to amend the U.S. DOT Order on NEPA is under 
development.
    Most Options Paper commenters, including State DOTs, MPOs, 
associations, and authorities supported a coordinated approach to NEPA 
within the U.S. DOT and its modal administrations. There was strong 
support for the elimination of differences in how the FHWA and the FTA 
manage the NEPA process and for a consolidation of these approaches in 
the updated regulation. In addition, there was strong support from New 
York DOT, the American Road and Transportation Builders Association and 
others for the elimination of provisions duplicating the CEQ 
regulations, which many thought would lead to a streamlined regulation. 
Finally, many commenters supported the notion of the FHWA and the FTA 
having strong oversight over the NEPA process. Equally important, 
commenters noted, is that there be a true partnership between Federal 
agencies and State and local agencies.

Section 1420.213  Emergency Action Procedures

    This proposed section would contain the provision currently found 
at 23 CFR 771.131.

[[Page 33970]]

Subpart C--Process and Documentation Requirements

    This proposed subpart describes the requirements of carrying out 
the NEPA process, including establishing the roles of various 
governmental agencies and the public in the process, determining the 
appropriate level of environmental documentation under NEPA, and laying 
out the procedural requirements for processing NEPA documents. It 
complements and supplements the CEQ regulations that provide the 
general NEPA framework for the entire Federal government. In addition 
to the regulatory requirements described in this subpart, the FHWA's 
and FTA's comprehensive package of informational materials will provide 
detailed nonregulatory approaches to many of the subjects herein.

Section 1420.301  Responsibilities of the Participating Parties

    This is a new section that addresses some of the items currently 
contained within Sec. 771.109. Paragraph (a) of the proposed section 
utilizes the current CEQ regulations (40 CFR 1500-1508) to define terms 
and set forth concepts, such as: Lead and cooperating agencies; the 
relationship between Federal agencies, applicants, and contractors; and 
enhancing the efficiency of the NEPA process through cooperation 
between Federal, State, and local agencies.
    Paragraph (b) would clarify in regulation current practice for 
administering the NEPA process for projects implemented directly by the 
Federal government on Federal lands. Namely, it is a shared 
responsibility of the U.S. DOT and the Federal land management agency. 
The precise nature of the responsibility is specified in agreements or 
standard operating procedures.
    In the previous regulations, the provision in 23 CFR 771.109(c) on 
agency responsibilities is largely repetitive of what is also found in 
CEQ's regulations on NEPA. For this rulemaking effort, we are reluctant 
to propose regulatory language which simply restates existing sections 
of another regulation, and would streamline this section accordingly. 
Paragraph (c) of the proposed section addresses the use of contractors 
in the NEPA process for contracting for environmental and engineering 
services. The proposed rule allows a State to procure the services of a 
consultant, under a single contract, for environmental impact 
assessment and for subsequent post-NEPA engineering and design work in 
accordance with the provisions of 23 U.S.C. 112(g), as amended by the 
TEA-21.
    Section 1205 of the TEA-21 allows a State to procure under a single 
contract, the services of a consultant to prepare environmental 
documents for a project, and to perform subsequent final engineering 
and design work on the project. This would only occur if the State 
conducted a review assessing the objectivity of the environmental 
documentation. Experience has shown that, although on many projects 
consultants do prepare the bulk of the detailed analyses and NEPA 
documentation, this process involves close oversight by the State or 
local public agency and by the lead Federal agency. It is the ongoing 
responsibility of our agencies to ensure that all consultant work 
reflected in the NEPA process and documentation meets appropriate 
standards of objectivity and professionalism.
    The contracting provisions were included in the TEA-21 to clarify 
our agencies' positions on the use of contractors for environmental and 
engineering design work for Federal transportation projects, and were 
chiefly aimed at addressing concerns of potential conflict of interest 
on the part of the consultants.
    The U.S. DOT believes that more detailed nonregulatory guidance 
will best address the specifics of disclosure statements, other 
requirements of 40 CFR 1505.5(c), and the requirement for a review of 
the objectivity of the environmental document.
    Generally speaking, commenters on the Options Paper felt that 
current level of oversight and review is sufficient, and that 
additional documentation to ensure objectivity is unnecessary. The EPA 
suggested the need for the development of Federal procedures for 
monitoring, investigating, and resolving conflicts that might result 
from this TEA-21 provision.

Section 1420.303  Interagency Coordination

    The proposed section would revise the current Sec. 771.111 (a) 
through (e). The proposed section would simplify the current section by 
focusing on key terms and concepts that are the basis of an integrated 
decisionmaking process conducted under the NEPA umbrella. For example, 
the proposed section features the term ``interagency coordination'' to 
supplement the current ``early coordination'' in order to better 
express the collaborative intent of the FHWA/FTA NEPA process. The 
proposed section provides an explanation of the role and function of 
interagency coordination in the NEPA process. The term ``interested 
agencies'' would be added. The proposed section briefly outlines a 
procedure for notifying affected Federal, State, and local entities of 
the availability of approved documents for classes of action other than 
an EIS.
    Scoping and early coordination can set the tone, positive or 
negative, for subsequent project development activities. Experience has 
shown that many of the conflicts which delay Federal approvals of 
highway and transit projects are somewhat predictable, and might be 
better anticipated and managed by using the scoping process as an early 
warning system. In addition, the development of interest-based 
negotiating and collaborative problem solving skills can help to craft 
implementable solutions. Two possible solutions emerged through the 
outreach process that could assist Federal agencies and applicants in 
performing more effective project scoping. One approach to the scoping 
of complex projects is that agencies agree on review schedules, but 
only after sufficient information on issues has emerged to allow them 
to gauge the required level of effort for their respective agencies. 
Another approach might make the scoping process, as part of an 
aggressive, high visibility project management role by our agencies as 
the lead Federal agenc(ies), a mechanism for identifying the issues, 
and agreeing on roles, time frames and methodologies associated with 
advancing the project, and possibly memorializing that agreement in a 
project MOU.
    Both program reviews and feedback from stakeholders indicate that 
the FHWA and the FTA need to take a stronger leadership role in the 
NEPA process. Commenters including the National Coalition to Defend 
NEPA, the AASHTO, the American Road and Transportation Builders 
Association, and others reinforced this point in their comments on the 
Options Paper. These groups said that the FHWA and the FTA staff should 
attend meetings and serve as conflict resolution agents and mediators 
between other agencies. Also, they told us that we should provide 
information, such as, handbooks, best practices on scoping, and 
training for practitioners. As was the case in many areas, stakeholders 
including MPOs, State DOTs and others feel that much progress can be 
made in better integrating environmental and other considerations into 
the planning process through training, examples of where new approaches 
are working, handbooks and other useful materials.
    Many of the detailed considerations of the scoping process are 
outside the

[[Page 33971]]

scope of this proposed rule, and will be addressed separately. 
Effective project scoping and interagency coordination is a chief topic 
of our environmental streamlining efforts, and will be given more 
detailed treatment in the comprehensive package of informational 
materials to be issued in conjunction with the final rule. Scoping may 
also be the subject of further guidance on its own. We will make full 
use of input received through the outreach efforts, as well as through 
our ongoing coordination with transportation and environmental 
agencies, in the development of this additional guidance.

Section 1420.305  Public Involvement

    Current Sec. 771.111(h) would be redesignated as Sec. 1420.305. It 
remains relatively unchanged for State DOTs except that the separate 
requirements specific to the FHWA and the FTA programs would be 
deleted; and new references specific to public involvement procedures, 
notification requirements, and accommodations for those with 
disabilities would be added. A requirement would be added to 
specifically ascertain if public involvement is warranted whenever a 
reevaluation is being conducted. Also a minimum 45-day public comment 
period would be established whenever public involvement procedures are 
initially adopted or revised.
    The proposed rule also aims to consolidate requirements of our two 
agencies for public involvement so that the U.S. DOT can offer a more 
consistent approach on this subject. Based upon comments to the Options 
Paper, there was resounding support for a consistent approach to public 
involvement requirements between the FHWA and the FTA and this was 
cited by the National Coalition to Defend NEPA as one way to make the 
planning process more accessible and understandable to the public. This 
consolidation may mean that some transit agencies may have to formalize 
their public involvement procedures through board adoption, or revise 
their procedures to ensure their applicability to the NEPA process. The 
FTA does not expect to find many transit agencies without existing 
adopted procedures applicable to project development, but invites 
comment on this concern. We recognize the importance of public 
involvement to informed decisionmaking, and have issued a number of 
publications which provide nonregulatory guidance on how to increase 
the effectiveness of applicants' public involvement efforts.
    The new Sec. 1420.305(d) recognizes the need for public involvement 
on certain re-evaluations where the elapsed time may have altered 
public expectations.

Section 1420.307  Project Development and Timing of Activities

    Current Sec. 771.113 would be redesignated as Sec. 1420.307 and 
revised. The proposed section would clarify the circumstances in which 
the FHWA/FTA would not approve initiation and funding for certain 
activities, such as, final design activities. The proposed section 
would encourage compliance with the requirements of all applicable 
environmental laws, regulations, executive orders, and other related 
requirements be demonstrated prior to approval of the final 
environmental documents or categorical exclusion (CE) designation. 
Conditions under which agencies responsible for metropolitan and 
statewide planning would be notified in order to satisfy the planning 
and programming requirements of proposed 23 CFR part 1410 would be 
identified.
    However, under the NPRM the FHWA and the FTA would not prevent 
State and local governments and private entities from taking certain 
actions that are ``at risk'' of being rendered useless by the final 
NEPA decision. Such actions include final design or land acquisition 
prior to NEPA approval, but do not include those that would have an 
adverse impact, such as, demolition or construction. The FHWA and the 
FTA would view at risk activities that actually substantially harm 
environment as so subverting the NEPA process that we would inform 
applicants that the action would be ineligible for FHWA or FTA 
financial assistance. The FHWA and the FTA would not finance such ``at 
risk'' actions, and would not allow their decisions to be influenced by 
the actions taken by others. For projects that will be federally-
funded, the present regulation prohibits final design and land 
acquisition (with certain limited exceptions) prior to the completion 
of the NEPA process. The enforcement of this prohibition has been 
confounded by the fact that specific funding sources, especially for 
smaller projects, are often not identified until late in project 
development. Hence, the applicability of the Federal requirements that 
attach only to Federal funding sources is not yet determined at the 
time the ``at risk'' activities are initiated.
    We are considering issuing guidance on how to handle such 
situations, especially in terms of disclosure responsibilities.
    We propose to clarify that full compliance with the transportation 
conformity rule (40 CFR parts 51 and 93) is required prior to the 
approval of the final EIS, FONSI or CE \5\ designation. As a result, 
this proposal would allow preliminary engineering for project 
development activities to be done prior to final NEPA approval without 
having to meet conformity requirements. We request public comment on 
our proposed clarification.
---------------------------------------------------------------------------

    \5\ Environmental Impact Statement (EIS), Finding of No 
Significant Impact (FONSI), categorical exclusion (CE).
---------------------------------------------------------------------------

    We believe that this proposed change is allowed under current 
regulations. While the conformity rule requires that a project come 
from a conforming plan and transportation improvement program (TIP) 
before final NEPA approval, the rule does not explicitly specify that 
the project must be in a conforming plan and TIP in order to initiate 
the NEPA process. In fact, 40 CFR 93.126, table 2, identifies as 
exempt, ``engineering to assess social, economic, and environmental 
effects of the proposed alternatives to that action.'' We feel that 
this is an important distinction that may help to improve the quality 
of the NEPA process leading to more effective, efficient, and 
environmentally sound judgments, without compromising the planning 
process and air quality analysis.
    We believe that the emissions impacts of the project should be 
considered as early as possible and continue to encourage the inclusion 
of projects in the plan and TIP conformity analysis as early as 
feasible prior to the completion of the NEPA process where it is 
feasible. Earlier inclusion of the project in the plan and TIP is 
beneficial for the overall development of the plan and TIP because 
regional analysis is used as a long term indicator of the area's 
emissions impacts and associated problems. Early analysis of projects 
in the plan and TIP allows a more comprehensive long term assessment of 
how emissions impacts can be minimized, whether through changes in the 
timing of projects or changes to the composition of the plan and TIP.
    However, a major problem with this approach is that it is 
counterproductive to corridor planning, prejudges alternatives and can 
limit thorough exploration of all feasible alternatives throughout the 
project development process. It can be counterproductive to, rather 
than supportive of, good long term transportation systems planning in 
certain circumstances. The reason for this is that in order for a 
project to be included in the regional plan and TIP and regional 
analysis prior to

[[Page 33972]]

completion of NEPA, certain assumptions must be made about the project 
and related emissions impacts. It is difficult to define project design 
concept and scope that early in the planning process, especially for 
those projects requiring the highest level of environmental review and 
scrutiny. When taking complex projects through the project development 
process, it is very difficult to simply define two points of connection 
to the network, the number of lanes and facility type (that which is 
needed for regional analysis). Complex projects and corridor projects 
often examine multimodal options, some of which are not fully developed 
until later in the NEPA process. Under this scenario, the assumptions 
for regional analysis for conformity purposes may encourage an overly 
narrow alternatives analysis and constrain the environmental review 
process. We request comment on whether similar experiences have 
occurred in practice when accounting for preliminary engineering for 
project development in regional conformity analyses.
    It is important to note that, under this proposal, preliminary 
development of new projects could proceed during a conformity lapse, 
since such activities would not need to meet conformity requirements. 
However, final NEPA documents on new projects could not be approved 
under this proposal until a new conforming plan and TIP are in place.
    We believe the frequency requirements for conformity are sufficient 
to ensure that full emissions impacts of the projects are accounted for 
before projects move into the final design; therefore, long term risks 
are minimal and the projects must be included in the regional 
conformity emissions analysis prior to the completion of NEPA. The 
regional emissions analysis and conformity determinations can be made 
as frequently as once a year, but at a minimum at least every three 
years; therefore, it is reasonable to allow environmental reviews and 
the NEPA process to be initiated without the project being included in 
the conformity analysis.

Section 1420.309  Classes of Actions

    Current Sec. 771.115 would be redesignated as Sec. 1420.309 and the 
text would remain the same, except for the addition of certain 
intercity railroad and intermodal actions.

Section 1420.311  Categorical Exclusions

    The proposed Sec. 1430.311 would make several changes from the list 
of CEs in the current Sec. 771.117 to reflect changes in the FHWA and 
the FTA programs since 1987. Modal limitations would be eliminated 
wherever possible. In addition, the CEs would be reordered and 
regrouped so that similar actions are listed together. The CEs would 
continue to be organized into two major groupings: those in paragraph 
(c) that require no further U.S. DOT agency approval, and those in 
paragraph (d) that require a written demonstration that the CE is 
appropriate. Paragraph (c) would clarify the need for NEPA approval by 
the U.S. DOT agency for listed CEs to which other environmental laws 
(e.g., section 106 of the National Historic Preservation Act) apply.
    The proposed changes in CEs in paragraph (c) would be as follows:
    Paragraph (c)(1) (non-construction activities) would incorporate 
the text of current Sec. 771.117(c)(1), (c)(20), and part of (c)(16) 
without substantive change. It would add designations to the National 
Highway System to the list.
    Paragraph (c)(2) (resurfacing) would move part of the text of 
current Sec. 771.117(d)(1) to paragraph (c). Experience has shown that 
simple resurfacing of an existing pavement does not require additional 
written information for a CE determination.
    Paragraph (c)(3) (routine maintenance) is not explicitly covered in 
the current Sec. 771.117, but it is an important program activity, 
especially for transit with the re-definition of preventive maintenance 
as a capital expense.
    Paragraph (c)(4) (ITS elements) is not explicitly covered in the 
text of current Sec. 771.117. Installation of isolated ITS elements is 
proposed for paragraph (c), but an areawide coordination of multiple 
ITS elements that would have greater impact on the transportation 
system is proposed for paragraph (d)(2).
    Paragraph (c)(5) (safety programs) would incorporate the text of 
current Sec. 771.117(c)(4) and would add a current CE of the Federal 
Railroad Administration related to safety.
    Paragraph (c)(6) (support facility improvements) would incorporate 
the current Sec. 771.117(c)(12), but would extend it to cover toll 
facilities, control centers, and vehicle test centers, facilities that 
are similar in size and activity to those in the current CE.
    Paragraph (c)(7) (carpool programs) uses a defined term to 
incorporate the text of current Sec. 771.117(c)(13) except that carpool 
activities requiring land acquisition and construction (such as new 
parking lots) would be excluded and covered in paragraph (d)(6).
    Paragraph (c)(8) (emergency repairs) would incorporate the text of 
current Sec. 771.117(c)(9), but extends it to cover modes other than 
highways.
    Paragraph (c)(9) (operating assistance) would incorporate the 
second part of the text of current Sec. 771.117(c)(16) without 
substantive change.
    Paragraph (c)(10) (vehicle acquisition) would incorporate the text 
of current Sec. 771.117(c)(17) without substantive change.
    Paragraph (c)(11) (purchase and lease of equipment) would 
incorporate the text of current Sec. 771.117(c)(19), but would extend 
it to cover leases and the capital cost of contracting for transit 
services.
    Paragraph (c)(12) (vehicle rehabilitation) would incorporate the 
current Sec. 771.117(c)(14), but would extend it to cover conversions 
to alternative fuels.
    Paragraph (c)(13) (track maintenance) would incorporate the text of 
current Sec. 771.117(c)(18), but would extend it to cover wayside 
systems in addition to tracks and railbeds.
    Paragraph (c)(14) (bicycle-pedestrian facilities) would incorporate 
the text of current Sec. 771.117(c)(3) except that bicycle and 
pedestrian projects requiring land acquisition and construction (such 
as bike paths on new right-of-way) would be excluded and covered in 
paragraph (d)(19).
    Paragraph (c)(15) (ADA accessibility) would incorporate the text of 
current Sec. 771.117(c)(15) without substantive change.
    Paragraph (c)(16) (signing, etc.) would incorporate the text of 
current Sec. 771.117(c)(8) without substantive change.
    Paragraph (c)(17) (property management) would incorporate the text 
of current Sec. 771.117(c)(2), (5), and (11), and similar property 
management activities under the transit program. In addition, disposal 
of excess property would be moved from Sec. 771.117(d)(6) because 
experience has shown that the sale or transfer of property does not 
have significant impact in and of itself, and the U.S. DOT agency does 
not have the statutory authority to control the subsequent use of 
property after it has been sold by the applicant.
    Paragraph (c)(18) (transportation enhancements) would incorporate 
the text of current Sec. 771.117(c)(7) and (10), and would add other 
transportation enhancement activities and transit enhancements to the 
list.

[[Page 33973]]

    Paragraph (c)(19) (noise walls) would incorporate the current 
Sec. 771.117(c)(6) without substantive change.
    Paragraph (c)(20) (mitigation banking) would be added due to the 
transportation enhancement provisions and changes in the mitigation 
policies of Federal resource agencies that allow or encourage this form 
of mitigation.
    The proposed changes in CEs in paragraph (d) would be as follows:
    Paragraph (d)(1) (highway rehabilitation) would incorporate the 
text of current Sec. 771.117(d)(1) except that simple resurfacing is 
now proposed to be moved to paragraph (c) and would not require a 
written CE demonstration.
    Paragraph (d)(2) (operational improvements) would incorporate part 
of the text of current Sec. 771.117(d)(2), with clarification through 
examples of the ITS systems that would be covered.
    Paragraph (d)(3) (safety improvements) would incorporate parts of 
the text of current Sec. 771.117(d)(2) and (3) without substantive 
change. It would add safety-related programs of recent importance 
including seismic retrofit and mitigation of wildlife hazards.
    Paragraph (d)(4) (bridge rehabilitation) would incorporate part of 
the text of current Sec. 771.117(d)(3) with the clarification that the 
approaches to the bridge or tunnel would also be included in the 
project and that historic bridges and bridges providing access to 
ecologically sensitive areas are excluded.
    Paragraph (d)(5) (bridge replacement) would incorporate the 
remaining part of the text of current Sec. 771.117(d)(3). If 
applicable, ``section 106'' (National Historic Preservation Act (16 
U.S.C. 470 et seq.)), ``4(f)'' (49 U.S.C. 303), ``section 404'' 
(Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 to 
1376)) and coastal zone management issues must be addressed in the CE 
documentation and coordinated with the other agencies in accordance 
with those statutes.
    Paragraph (d)(6) (parking facilities) would incorporate activities 
from the current Sec. 771.117(c)(13) and (d)(4), but would apply to all 
parking facilities, not just those on transportation fringes, if the CE 
conditions are met.
    Paragraph (d)(7) (new operations centers) would be added as a CE 
primarily covering the construction of buildings to house the control 
centers from which ITS systems are operated and managed.
    Paragraph (d)(8) (support facility construction) would incorporate 
the text of current Sec. 771.117(d)(5) with the addition of other 
similarly sized support facilities.
    Paragraph (d)(9) (access control) would incorporate the text of 
current Sec. 771.117(d)(7) without substantive change.
    Paragraph (d)(10) (track improvements) would incorporate the text 
of current Sec. 771.117(c)(18) in situations where land acquisition is 
needed.
    Paragraph (d)(11) (storage yards and shops) would incorporate the 
text of current Sec. 771.117(d)(8) and (11) without substantive change.
    Paragraph (d)(12) (building renovation) would incorporate the text 
of current Sec. 771.117(d)(9) without substantive change.
    Paragraph (d)(13) (transfer facilities) would incorporate the text 
of current Sec. 771.117(d)(10) without substantive change.
    Paragraph (d)(14) (ferry facilities) would be added as an explicit 
statement that work on existing ferry facilities may be a CE, but 
concern for water-related impacts necessitates its inclusion in 
paragraph (d) so that a written CE demonstration must be provided.
    Paragraph (d)(15) (rail service demonstrations) would be added as a 
CE, based on our experience with previous similar cases. If the service 
demonstration were to lead to proposal for permanent service involving 
Federal financial support, that permanent project would be separately 
evaluated for its impacts.
    Paragraph (d)(16) (advance land acquisition) would have three parts 
to it as follows:
    (1) Paragraph (d)(16)(i) would allow the acquisition primarily of 
underutilized private railroad rights-of-way (ROW). It reflects current 
FTA practice where present or recent rail operations on the ROW ensure 
that adjacent land uses remain generally compatible with the continued 
transportation use of the ROW;
    (2) Paragraph (d)(16)(ii) would respond to the provisions of the 
TEA-21 section 1301 without attempting to elaborate on those 
provisions. Such elaboration would be covered in separate guidance on 
the issue of advance land acquisition; and,
    (3) Paragraph (d)(16)(iii) would incorporate the text of current 
Sec. 771.117(d)(12) covering hardship and protective acquisitions, 
without substantive change.
    Paragraph (d)(17) (joint development) would incorporate part of the 
text of current Sec. 771.117(d)(6) without substantive change.
    Paragraph (d)(18) (bicycle facilities) would incorporate activities 
covered in the text of current Sec. 771.117(c)(3). With this change, 
bicycle projects involving land acquisition and construction would 
require a written CE demonstration.
    Paragraph (d)(19) (storm water management) would add a new CE that 
covers a transportation enhancement activity that may involve land 
acquisition and construction of storm water detention or retention 
ponds. It is, therefore, proposed to be included in the list where a CE 
demonstration is required.
    Paragraph (d)(20) (historic transportation facilities) would add a 
new CE that covers a transportation enhancement activity that will have 
section 106 (historic preservation) implications. It is, therefore, 
proposed to be included in the list where a CE demonstration is 
required.
    Paragraph (d)(21) (other transportation enhancements) would add a 
new CE that covers the other transportation enhancement activities and 
transit enhancements that are not explicitly listed.
    We propose additional, nonregulatory guidance on situations where a 
group of different, but related, categorically excluded actions may 
need to be evaluated as a whole if they have a net effect that warrants 
further environmental analysis (e.g., ITS projects throughout a 
corridor).
    Some commenters including the Michigan DOT, the AASHTO and others 
requested that advance right-of-way acquisition be added to the 
categorical exclusion list. The U.S. EPA was concerned about 
coordinating any expansions of the list with other Federal agencies and 
was particularly concerned about wetlands mitigation needs. The Ohio 
DOT suggested that rather than expand the list of categorical 
exclusions, our agencies develop ``thresholds of significance'' whereby 
projects within those thresholds would be those considered for 
categorical exclusions. Finally, a number of commenters, including the 
Ventura County Transportation Commission, the ARTBA, and the Oregon DOT 
supported the categorical exclusion of transportation enhancement 
activities and suggested categorically excluding congestion mitigation 
and air quality program (CMAQ) eligible projects. We have considered 
these comments in devising the proposed list. Nevertheless, we invite 
comment on these suggestions and on the appropriateness of the 
activities proposed to be categorically excluded, including whether or 
not specific activities should be included in the list under paragraph 
(c) or the list under paragraph (d). We encourage commenters to provide 
examples or information drawn from their

[[Page 33974]]

experience bearing on the appropriateness of the proposed categorical 
exclusions. We also invite comments on the practice, begun with the 
1987 regulation, of using an open-ended list of examples of activities 
that can be categorically excluded only after appropriate documentation 
has been prepared and approved on a case-by-case basis by the USDOT 
agency.

Section 1420.313  Environmental Assessments

    Current Sec. 771.119 would be redesignated as Sec. 1420.313 with 
some minor editing changes.

Section 1420.315  Findings of No Significant Impact

    Current Sec. 771.121 would be redesignated as Sec. 1420.121 with 
minor editing changes.

Section 1420.317  Draft Environmental Impact Statements

    The proposed section would revise the current Sec. 771.123 by 
expanding the description of both public involvement procedures and the 
information products developed in accordance to the proposed 23 CFR 
part 1410. Paragraph (b) would specifically indicate that the scoping 
process must consider the results of the planning process including 
public involvement and interagency coordination. Items related to 
mitigation would be expanded to include environmental enhancements. 
Paragraph (b) would now emphasize public involvement and interagency 
coordination. Paragraph (c) would add language to our goals and 
policies in terms of implementing NEPA. The discussion on the use of 
consultants in the development of the draft EIS would be removed to 
avoid repetition with proposed Sec. 1420.301.

Section 1420.319  Final Environmental Impact Statements

    Current Sec. 771.125 would be redesignated as Sec. 1420.319. 
Information would be added in paragraph (a)(1) to require any 
additional environmental studies, public involvement, and/or 
coordination to consider refinements of alternatives and mitigation to 
be presented in the FEIS.

Section 1420.321  Record of Decision

    Current Sec. 771.127 would be redesignated as Sec. 1420.321. In 
paragraph (a), the information about preparation of the notice of 
availability would be expanded to indicate where and to whom the notice 
should be provided. In paragraph (c), wording would be added to 
emphasize that mitigation and enhancement features associated with the 
selected alternative become enforceable conditions of any U.S. DOT 
actions.

Section 1420.323  Re-evaluations

    Current Sec. 771.129 would be redesignated as Sec. 1420.323. 
Paragraphs (a) through (c) are essentially unchanged from the current 
regulation. Paragraph (d) has been added to ensure public involvement 
and interagency coordination when the situation warrants. Guidance will 
be provided on this subject. We invite comment on how effective the 
proposed reevaluation provision would be in addressing projects which 
are implemented over an extended period of time, with construction 
occurring under multiple contracts. We also invite comment on the 
appropriate role of public involvement in reevaluations.

Section 1420.325  Supplemental Environmental Impact Statements

    Current Sec. 771.130 would be redesignated as Sec. 1420.325. It is 
essentially unchanged from the current regulation except that 
supplementation now includes consideration of public involvement and 
interagency coordination.

Section-by-Section Analysis of the Proposed Rule on Protection of 
Public Parks, Wildlife and Waterfowl Refuges, and Historic Sites

    For ease of reference, a distribution table is provided for the 
current sections and proposed sections as follows:

----------------------------------------------------------------------------------------------------------------
               Current Section                                         Proposed Section
----------------------------------------------------------------------------------------------------------------
None........................................  1430.101  Purpose.
771.109(a)(1) and(2) and part of 771.135(b).  1430.105  Applicability.
771.135(a)..................................  1430.103  Mandate.
771.135(c) and (e)..........................  1430.109  Significance.
771.135(p)(1),(2),(4), and (7)..............  1430.107  Use of land.
771.135(d),(f),(g),(h), and (p)(5)..........  1430.111  Exceptions.
771.135(a)(2), part of (b), part of (i),      1430.113  Evaluations under NEPA.
 (j),(k),(l),(p)(3), and (p)(6).
771.135(m) and (o)..........................  1430.115  Separate evaluations.
771.135(i)[last sentence]...................  1430.117  Programmatic evaluations.
771.135(o)..................................  1430.119  Linkage to planning.
None........................................  1430.121  Definitions.
----------------------------------------------------------------------------------------------------------------

Section 1430.101  Purpose

    This new section would be added to state that this regulation 
implements 49 U.S.C. 303 and 23 U.S.C. 138 (section 4(f)).

Section 1430.103  Mandate

    Current Sec. 771.135(a)(1) would be redesignated as Sec. 1430.103 
without substantive change in text.

Section 1430.105  Applicability

    Current Secs. 771.109(a)(1) and (2) provide the basis for this 
proposed section. Also, part of Sec. 771.135(b) would be incorporated 
to make clear that the U.S. DOT agency decides the applicability of 
section 4(f).

Section 1430.107  Use of Land

    Current Sec. 771.135(p)(1), (2), (4), and (7) would be redesignated 
as Sec. 1430.107 without substantive change.

Section 1430.109  Significance of the Section 4(f) Resource

    Current Sec. 135(c) and (e) would be redesignated as Sec. 1430.109 
without substantive change.

Section 1430.111  Exceptions

    Current Sec. 771.135(d), (g), (h), and (p)(5) would be redesignated 
as Sec. 1430.111 without substantive change. The proposed section also 
incorporates the current Sec. 771.135(f), except that the consultation 
requirement has been modified to be consistent with the new 36 CFR part 
800 recently published by the Advisory Council on Historic 
Preservation. As proposed, the provision is silent with respect to the 
relationship between ``adverse effects'' under 36 CFR part 800 and 
``constructive use'' under this regulation. We invite comment as to 
whether or not a specific relationship should be established in this 
regulation. We also invite comment as to other measures that we might 
take to better

[[Page 33975]]

coordinate the section 4(f) process with the process established under 
36 CFR 800. The proposed section also has three new provisions in 
paragraphs (a), (b), and (c), stating that section 4(f) would not apply 
to park roads, parkways, trails, transportation enhancement activities, 
and transit enhancements where the purpose of the U.S. DOT agency 
approval of transportation funding is to improve the section 4(f) 
resource.

Section 1430.113  Section 4(f) Evaluations and Determinations Under the 
NEPA Umbrella

    Current Sec. 771.135(a)(2), (j), (k), (l), (p)(3), (p)(6), most of 
(i), and part of (b) would be redesignated as Sec. 1430.113 without 
substantive change. The proposed section also would include a new 
provision in proposed paragraph (b) allowing consideration of the 
products of the planning process in the section 4(f) evaluation. Both 
the current and proposed regulation continue to codify in regulation 
language of the Supreme Court decision in Overton Park (401 U.S. 402 
(1971)) that an avoidance alternative must be preferred unless the 
evaluation demonstrates that there are ``unique problems or unusual 
features associated with it, or that the cost, the social, economical, 
or environmental impacts, or the community disruption resulting from 
such alternatives reach extraordinary magnitudes.'' We invite comment 
on whether or not this standard deserves further definition in 
regulation or in guidance in light of changes to the highway program in 
the years since the court's decision. In particular, we would 
appreciate views on whether or not the qualitative importance or value 
of the section 4(f) resource should be explicitly taken into account in 
determining whether or not an avoidance alternative is ``feasible and 
prudent,'' especially when balancing the impacts of the various 
alternatives.

Section 1430.115  Separate Section 4(f) Evaluations

    Current Sec. 771.135(m) and (n) would be redesignated as 
Sec. 1430.115 without substantive change.

Section 1430.117  Programmatic Section 4(f) Evaluations

    The last sentence of current Sec. 771.135(i) would be redesignated 
as Sec. 1430.117, including a new explanatory introductory sentence. 
The proposed provision would provide a clear regulatory basis for 
programmatic section 4(f) evaluations and approvals, a practice which 
the Department of Transportation has used from time to time. For 
example, programmatic section 4(f) evaluations have been prepared for 
the following situations: Bikeways, historic bridges, projects 
involving minimal use of property for historic properties and projects 
involving minimal use of parkland. We invite suggestions of additional 
situations that would be appropriate subjects of future programmatic 
section 4(f) evaluations.

Section 1430.119  Linkage with Transportation Planning

    Current Sec. 771.135(o) would be redesignated as Sec. 1430.119 and 
would remain substantively unchanged except that the concept of a 
preliminary section 4(f) evaluation has been extended to the planning 
process in exactly the same way it previously applied to first-tier 
EISs.

Section 1430.121  Definitions

    A new Sec. 1430.121 would be added to provide a consistent set of 
definitions of terms used in the planning regulations (23 CFR part 
1410), the NEPA regulation (23 CFR part 1420), and this regulation (23 
CFR part 1430).

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination using the docket number appearing at the top of this 
document in the docket room at the above address or via the electronic 
addresses provided above. The FHWA and the FTA will file comments 
received after the comment closing date in the docket and will consider 
late comments to the extent practicable. The FHWA and the FTA may, 
however, issue a final rule at any time after the close of the comment 
period. In addition to late comments, the FHWA and the FTA will also 
continue to file in the docket relevant information becoming available 
after the comment closing date, and interested persons should continue 
to examine the docket for new material.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    We have determined that this proposed action is a significant 
regulatory action within the meaning of Executive Order 12866, and 
under the Department of Transportation regulatory policies and 
procedures because of substantial State, local government, 
congressional, and public interest. These interests involve receipt of 
Federal financial support for transportation investments, appropriate 
compliance with statutory requirements, and balancing of transportation 
mobility and environmental goals. We anticipate that the economic 
impact of this rulemaking will be minimal. Most costs associated with 
these rules are attributable to the provisions of the TEA-21, the 
ISTEA, the Clean Air Act (as amended), and other statutes including 
earlier highway acts.
    We consider this proposal to be a means to simplify, clarify, and 
reorganize existing regulatory requirements. There have been no changes 
to NEPA or CEQ regulations. These rules would merely revise existing 
NEPA regulations of the FHWA and the FTA and conform those regulations 
to the environmental streamlining requirements of TEA-21. In response 
to congressional direction in TEA-21, the U.S. DOT is proposing to 
implement improved coordinated environmental review processes for 
highway and transit projects. States have been carrying out statewide 
transportation planning activities with title 23, U.S.C., and FTA 
planning and research funds for many years. Neither the individual nor 
the cumulative impact of this action would be significant because this 
action would not alter the funding levels available to the States for 
Federal or federally-assisted programs covered by the TEA-21.
    The amendments impose no additional requirements. The environmental 
streamlining process under section 1309 of TEA-21 establishes 
coordinated environmental review processes by which U.S. DOT would work 
with other Federal agencies to assure that major highway and transit 
projects are advanced according to cooperatively determined time 
frames. Such processes have been incorporated into a memorandum of 
understanding between U.S. DOT and other Federal agencies.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
602), we have evaluated the effects of this rule on small entities, 
such as local governments and businesses. The TEA-21 provides the 
flexibility for these agencies to provide the resources necessary to 
meet any time limits established under environmental streamlining. 
Additionally, the FHWA has issued guidance concerning transportation 
funding for Federal agency coordination using a full range of options 
for reimbursement under appropriate authorities. Accordingly, the FHWA 
and the FTA certify that this action would not have a significant 
economic impact on a substantial

[[Page 33976]]

number of small entities. This proposed action would merely update and 
clarify existing procedures. We specifically invite comments on the 
projected economic impact of this proposal, and will actively consider 
such information before completing our Regulatory Flexibility Act 
analysis when adopting final rules.

Environmental Impacts

    We have also analyzed this proposed action for the purpose of the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.), and 
preliminarily conclude that this action would not have any effect on 
the quality of the human and natural environment and is therefore 
categorically excluded under 23 CFR 771.117(c)(20). The TEA-21 directs 
the implementation of a coordinated environmental review process for 
highway construction projects, yet, also ensures that such concurrent 
review shall not result in a significant adverse impact to the 
environment or substantively alter the operation of Federal law. Time 
periods for review shall be consistent with time periods established by 
the Council on Environmental Quality under 40 CFR 1501.8 and 1506.10. 
As stated in the TEA-21, nothing in section 1309 (the environmental 
streamlining section) shall affect the applicability of NEPA or any 
other Federal environmental statute or affect the responsibility of any 
Federal officer to comply with or enforce any such statute.

Executive Order 13132 (Federalism Assessment)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, dated 
August 4, 1999, and it has been determined that this action does not 
have a substantial direct effect or sufficient Federalism implications 
on States and local governments that would limit the policymaking 
discretion of the States. Nothing in this document directly preempts 
any State law or regulation. The TEA-21 directs the DOT to establish an 
integrated NEPA review and permitting process and to encourage 
approvals as early as possible in the scoping and planning process, yet 
also to maintain an emphasis on a strong environmental policy. 
Throughout the proposed regulation there is an effort to keep 
administrative burdens to a minimum.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway planning and construction (or 20.217, Motor Carrier Safety). 
The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities apply 
to this program.

Unfunded Mandates Reform Act of 1995

    This rule does not impose a Federal mandate resulting in the 
expenditure by State, local, tribal governments, in the aggregate, or 
by the private sector, of $100 million or more in any one year. (2 
U.S.C. 1531 et seq.).

Paperwork Reduction Act

    This proposal contains no new collection of information 
requirements for purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501-3520. This notice of proposed rulemaking would encourage 
the coordination of approvals by Federal agencies involved in the NEPA 
process and could reduce the level of recordkeeping.
    The information prepared by non-Federal parties pursuant to this 
proposed regulation is exempt from the requirements of the Paperwork 
Reduction Act. First, the collection of information does not entail 
reporting of information in response to identical questions. NEPA 
documents do not involve answering specific questions; they address 
issues relating to the requirements of multiple Federal environmental 
statutes. There are too many variables relating to the proposed action, 
the location in which the action is to be taken, and the statutes that 
are implicated (and to what extent) to permit a standardized format or 
content. The issues to be addressed in NEPA documents are therefore 
determined on a case by case basis. Each is a one of a kind document.
    Second, the information is not requested of non-Federal entities 
but of Federal agencies. The State and local transportation departments 
and transit agencies compiling information are voluntarily serving as 
consultants to FHWA and FTA for their own convenience. As the proposers 
of the actions subject to NEPA, and the owners, operators, and 
maintainers of the resulting facility, and key decisionmakers regarding 
the choices involved in project development, it is easier for them to 
prepare the NEPA documents. Information is not requested of outside 
entities except within the PRA exception relating to ``facts or 
opinions submitted in response from general solicitations of comments 
for the general public (5 CFR 1320.3(h)(4).''
    Third, State and local departments of transportation and transit 
agencies develop this information reported to FHWA/FTA as a normal part 
of doing business. NEPA documents contain engineering and environmental 
information that is integral to developing projects in a way that 
conforms to State and local laws. The development of engineering and 
environmental information is an unavoidable step in project development 
whether or not the Federal government is involved. We invite comments 
on this analysis.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

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

Regulation Identification Number

    A regulation identification 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 protection, Grant programs--transportation, Highways 
and roads, Historic preservation, Public lands, Recreation areas, 
Reporting and recordkeeping requirements.

23 CFR Part 1420

    Environmental impact statements, Grant programs--transportation, 
Highways and roads, Mass

[[Page 33977]]

transportation, Reporting and recordkeeping requirements.

23 CFR Part 1430

    Environmental protection, Grant programs--transportation, Highways 
and roads, Historic preservation, Mass transportation, Public lands, 
Recreation areas, Reporting and recordkeeping requirements, Wildlife 
refuges.

49 CFR Part 622

    Environmental impact statements, Grant programs--transportation, 
Mass transportation, Reporting and recordkeeping requirements.

49 CFR Part 623

    Environmental protection, Grant programs--transportation, Mass 
Transportation, Public lands, Recreation areas, Reporting and 
recordkeeping requirements, Wildlife refuges.

Federal Highway Administration

  

23 CFR Chapter I

    For reasons set forth in the preamble, and under the authority of 
23 U.S.C. 109, 128, 134, 138, and 315, the Federal Highway 
Administration proposes to amend Chapter I of title 23, Code of Federal 
Regulations, as follows:

PART 771--[REMOVED]

    1. Remove part 771.

  

23 CFR Chapter IV

    For reasons set forth in the preamble, the Federal Highway 
Administration and the Federal Transit Administration propose to amend 
proposed Chapter IV in title 23, Code of Federal Regulations (published 
elsewhere in this Federal Register), as set forth below:
    2. Add parts 1420 and 1430 to read as follows:

PART 1420--NEPA AND RELATED PROCEDURES FOR TRANSPORTATION 
DECISIONMAKING

Subpart A--Purpose, Policy, and Mandate

Sec.
1420.101  Purpose.
1420.103  Relationship of this regulation to the CEQ regulation and 
other guidance.
1420.105  Applicability of this part.
1420.107  Goals of the NEPA process.
1420.109   The NEPA umbrella.
1420.111   Environmental justice.
1420.113   Avoidance, minimization, mitigation, and enhancement 
responsibilities.
Subpart B--Program and Project Streamlining
1420.201   Relation of planning and project development processes.
1420.203   Environmental streamlining.
1420.205   Programmatic approvals.
1420.207   Quality assurance process.
1420.209   Alternate procedures.
1420.211   Use of this part by other U.S. DOT agencies.
1420.213   Emergency action procedures.
Subpart C--Process and Documentation Requirements
1420.301   Responsibilities of the participating parties.
1420.303   Interagency coordination.
1420.305   Public involvement.
1420.307   Project development and timing of activities.
1420.309   Classes of actions.
1420.311   Categorical exclusions.
1420.313   Environmental assessments.
1420.315   Findings of no significant impact.
1420.317   Draft environmental impact statements.
1420.319   Final environmental impact statements.
1420.321   Record of decision.
1420.323   Re-evaluations.
1420.325   Supplemental environmental impact statements.
Subpart D--Definitions
1420.401   Terms defined elsewhere.
1420.403   Terms defined in this part.

    Authority: 23 U.S.C. 109, 128, 134, 138 and 315; 42 U.S.C. 
2000d-2000d-4, 4321 et seq., and 7401 et seq.; 49 U.S.C. 303, 
5301(e), 5303, 5309, and 5324 (b) and (c); 49 CFR 1.48, and 1.51; 33 
CFR 115.60(b); 40 CFR parts 1500-1508.

Subpart A--Purpose, Policy, and Mandate


Sec. 1420.101  Purpose.

    The purpose of this part is to establish policies and procedures of 
the Federal Highway Administration (FHWA) and the Federal Transit 
Administration (FTA) for implementing the National Environmental Policy 
Act of 1969 (NEPA) as amended, and to supplement the regulation of the 
Council on Environmental Quality (CEQ), 40 CFR parts 1500 through 1508. 
In concert with 23 CFR 1410 this part sets forth a NEPA process that 
integrates and streamlines the compliance with all applicable 
transportation and environmental laws that govern Federal 
transportation decisionmaking.


Sec. 1420.103  Relationship of this regulation to the CEQ regulation 
and other guidance.

    The CEQ regulation lays out NEPA responsibilities for all Federal 
agencies. This FHWA/FTA regulation supplements the CEQ regulation with 
specific provisions regarding the FHWA/FTA approach to implementing 
NEPA for the Federal surface transportation actions under their 
jurisdiction. For a full understanding of NEPA responsibilities 
relative to the FHWA/FTA actions, the reader must refer to both this 
regulation and the CEQ regulation. In addition, the FHWA/FTA will rely 
on nonregulatory guidance materials, training courses, and 
documentation of best practices in the management of their NEPA 
responsibilities. The available materials and training course schedules 
are posted on the FHWA and the FTA web sites and can be obtained by 
contacting Planning and Environment Program Manager, Federal Highway 
Administration, Washington, DC 20590 or Associate Administrator for 
Planning, Federal Transit Administration, Washington, DC 20590.


Sec. 1420.105  Applicability of this part.

    (a)(1) The provisions of this part and the CEQ regulation apply to 
actions where a U.S. DOT agency exercises sufficient control and has 
the statutory authority to condition the action or approval. Actions 
taken by the applicant or others that do not require any U.S. DOT 
agency approval or over which a U.S. DOT agency has no discretion, 
including, but not limited to, projects or maintenance on Federal-aid 
highways or transit systems not involving Federal-aid funds or 
approvals, and actions from which the U.S. DOT agency are excluded by 
law or regulation, are not subject to this part.
    (2) This part does not apply to, or alter approvals by the U.S. DOT 
agencies made prior to the effective date of this part.
    (3) NEPA documents accepted or prepared by the U.S. DOT agency 
after the effective date of this part shall be developed in accordance 
with this part.
    (b) In order to ensure meaningful evaluation of alternatives and to 
avoid commitments to transportation improvements before they are fully 
evaluated, the actions covered by each environmental impact statement 
(EIS) or environmental assessment (EA), or designated a categorical 
exclusion (CE) shall:
    (1) Have independent utility or independent significance, i.e., be 
usable and be a reasonable expenditure even if no additional 
transportation improvements in the area are made;
    (2) Connect logical termini, if linear in configuration, and be of 
sufficient length or size to address environmental matters over a 
sufficiently wide area that all reasonably foreseeable impacts are 
considered; and
    (3) Not restrict consideration of alternatives for other reasonably

[[Page 33978]]

foreseeable transportation improvements.


Sec. 1420.107  Goals of the NEPA process.

    (a) It is the intent of the U.S. DOT agencies that the NEPA 
principles of environmental stewardship and the Transportation Equity 
Act for the 21st Century (TEA-21) objective of timely implementation of 
transportation facilities and provision of transportation services 
should guide Federal, State, local, and tribal decisionmaking on all 
transportation actions subject to these laws. Accordingly, in 
administering their responsibilities under numerous transportation and 
environmental laws, the U.S. DOT agencies will manage the NEPA process 
to maximize attainment of the following goals:
    (1) Environmental ethic. Federal actions reflect concern for, and 
responsible choices that preserve, communities and the natural 
environment, in accordance with the purpose and policy direction of 
NEPA (42 U.S.C. 4321 and 4331), and the specific mandates of statutes, 
regulations, and executive orders.
    (2) Environmental justice. Disproportionate adverse effects on 
minority and low income populations are identified and addressed; no 
person, because of handicap, age, race, color, sex, or national origin, 
is excluded from participating in, denied the benefits of, or subject 
to discrimination under any U.S. DOT agency program or activity 
conducted in accordance with this regulation.
    (3) Integrated decisionmaking. Federal transportation approvals are 
coordinated in a logical fashion with other Federal reviews and 
approvals, and with State, local, and tribal governmental actions, and 
actions by private entities, in recognition of interdependencies of 
decisions by the various parties and the procedural umbrella that the 
NEPA process provides for facilitating decisionmaking.
    (4) Environmental streamlining. Federal transportation and 
environmental reviews and approvals are completed in a timely fashion 
through a coordinated review process.
    (5) Collaboration. Transportation decisions are made through a 
collaborative partnership involving Federal, State, local, and tribal 
agencies, communities, interest groups, private businesses, and 
interested individuals.
    (6) Transportation problem solving. Transportation decisions 
represent cost effective solutions to current and future problems based 
on an interdisciplinary evaluation of alternative courses of action.
    (7) Financial stewardship. Public funds are used to achieve the 
maximum benefit for the financial investment in accordance with 
governing statutes and regulations.


Sec. 1420.109  The NEPA umbrella.

    (a) In keeping with the above goals, it is the policy of the FHWA/
FTA that the NEPA process be the means of bringing together all legal 
responsibilities, issues, and interests relevant to the transportation 
decision in a logical way to evaluate alternative courses of action, 
and that it lead to a single final decision regarding the key 
characteristics of a proposed action (such as, location, major design 
features, mitigation measures, and environmental enhancements). This 
decision shall be made in the best overall public interest based on a 
balanced consideration of the need for safe and efficient 
transportation; the social, economic, and environmental benefits and 
impacts of the proposed action; and the attainment of national, State, 
tribal, and local environmental protection goals.
    (b) Any environmentally related study, review, or consultation 
required by Federal law should be conducted within the framework of the 
NEPA process to assure integrated and efficient decisionmaking. The 
State is encouraged to conduct its activities during the NEPA process 
toward the same goal.
    (c) Federal responsibilities to be addressed in the NEPA process 
whenever applicable to the decision on the proposed action include, but 
are not limited to the following protections of:
    (1) Individual rights:
    (i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-
2000d-4) and related statutes;
    (ii) Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970 (42 U.S.C. 4601 et seq.), as amended;
    (iii) Americans with Disabilities Act (42 U.S.C. 12101 et seq.);
    (iv) 49 U.S.C. 5332, nondiscrimination;
    (v) 49 U.S.C. 5324(a), relocation requirements;
    (vi) 23 U.S.C. 128 and 49 U.S.C. 5323(b), public hearing 
requirements;
    (2) Communities and community resources:
    (i) Executive Order 12898 (59 FR 7629, 3 CFR, 1995 comp., p. 859), 
environmental justice for minority and low-income populations;
    (ii) 49 U.S.C. 303, protection of public parks and recreation 
areas;
    (iii) 23 U.S.C. 109(h), economic, social, and environmental effects 
of highways;
    (iv) 49 U.S.C. 5324(b), economic, social, and environmental effects 
of transit;
    (v) 23 U.S.C. 109(i), highway noise standards;
    (vi) Clean Air Act (23 U.S.C. 109(j), 42 U.S.C. 7509 and 7521(a) et 
seq.), as amended;
    (vii) Safe Drinking Water Act (42 U.S.C. 201 and 300);
    (viii) Farmland Protection Policy Act of 1981 (7 U.S.C. 4201-4209);
    (ix) National Flood Insurance Act (42 U.S.C. 1401, 2414, 4001 to 
4127);
    (x) Solid Waste Disposal Act (Public Law 89-272; 42 U.S.C. 6901 et 
seq.);
    (xi) Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 
et seq.);
    (xii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (42 U.S.C. 9601 et seq.);
    (xiii) Emergency Planning and Community Right to Know Act of 1986 
(42 U.S.C. 11001 to 11050);
    (3)Cultural resources and aesthetics:
    (i) 49 U.S.C. 303, protection of historic sites;
    (ii) National Historic Preservation Act (16 U.S.C. 470 et seq.);
    (iii) 23 U.S.C. 109(h), economic, social, and environmental effects 
of highways;
    (iv) 49 U.S.C. 5324(b), economic, social, and environmental effects 
of transit;
    (v) 23 U.S.C. 109(i), highway noise standards;
    (vi) Clean Air Act (23 U.S.C. 109(j), 42 U.S.C. 7509 and 7521(a) et 
seq.), as amended;
    (vii) Safe Drinking Water Act (42 U.S.C. 201 and 300);
    (viii) Farmland Protection Policy Act of 1981 (7 U.S.C. 4201-4209);
    (ix) National Flood Insurance Act (42 U.S.C. 1401, 2414, 4001 to 
4127);
    (x) Solid Waste Disposal Act (Public Law 89-272; 42 U.S.C. 6901 et 
seq.);
    (xi) Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 
et seq.);
    (xii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (42 U.S.C. 9601 et seq.);
    (xiii) Emergency Planning and Community Right to Know Act of 1986 
(42 U.S.C. 11001 to 11050);
    (3) Cultural resources and aesthetics:
    (i) 49 U.S.C. 303, protection of historic sites;
    (ii) National Historic Preservation Act (16 U.S.C. 470 et seq.);
    (iii) 23 U.S.C. 109(h), economic, social, and environmental effects 
of highways;
    (iv) 49 U.S.C. 5324(b), economic, social, and environmental effects 
of transit;

[[Page 33979]]

    (v) Archeological and Historic Preservation Act (16 U.S.C. 469);
    (vi) Archeological Resources Protection Act (16 U.S.C. 470aa to 
47011);
    (vii) Act for the Preservation of American Antiquities (16 U.S.C. 
431 to 433);
    (viii) American Indian Religious Freedom Act (42 U.S.C. 1996 et 
seq.);
    (ix) Native American Grave Protection and Repatriation Act (25 
U.S.C. 3001 to 3013);
    (x) 23 U.S.C. 144(o), historic bridges;
    (xi) 23 U.S.C. 530, wildflowers;
    (xii) 23 U.S.C. 131, 136, 319, highway beautification;
    (4) Waters and water-related resources:
    (i) 23 U.S.C. 109(h), economic, social, and environmental effects 
of highways;
    (ii) 49 U.S.C. 5324(b), economic, social, and environmental effects 
of transit;
    (iii) Federal Water Pollution Act, as amended (33 U.S.C. 1251 to 
1376);
    (iv) Wild and Scenic Rivers Act (16 U.S.C. 1271 to 1287);
    (v) Land and Water Conservation Fund Act of 1965 (16 U.S.C. 460);
    (vi) Water Bank Act (16 U.S.C. 1301 to 1311);
    (vii) Executive Order 11990 (42 FR 26961; 3 CFR, 1977 comp., p. 
121), protection of wetlands;
    (viii) Emergency Wetlands Resources Act of 1986 (16 U.S.C. 3921 to 
3931);
    (ix) Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.);
    (x) Executive Orders 11988 (42 FR 26951; 3 CFR, 1977 comp., p. 
1171) and 12148 (44 FR 43239; 3 CFR, 1979 comp., p. 412), floodplain 
management;
    (5) Wildlife, plants and natural areas:
    (i) Endangered Species Act of 1973 (7 U.S.C. 136, 16 U.S.C. 1531 to 
1543);
    (ii) 49 U.S.C. 303, protection of wildlife and waterfowl refuges;
    (iii) 23 U.S.C. 109(h), economic, social, and environmental effects 
of highways;
    (iv) 9 U.S.C. 5324(b), economic, social, and environmental effects 
of transit;
    (v) Marine Protection Research and Sanctuaries Act of 1972 (16 
U.S.C. 1431 to 1445, 33 U.S.C. 1401 to 1445);
    (vi) Fish and Wildlife Coordination Act (16 U.S.C. 661 to 666);
    (vii) Wilderness Act (16 U.S.C. 1131 to 1136);
    (viii) Wild and Scenic Rivers Act (16 U.S.C. 1271 to 1287);
    (ix) Coastal Zone Management Act of 1972 (16 U.S.C. 1451 to 1464);
    (x) Coastal Barrier Resources Act (16 U.S.C. 3501 to 3510, 42 
U.S.C. 4028);
    (xi) National Trails System Act (16 U.S.C. 1241 to 1249);
    (xii) Executive Order 13112 (64 FR 6183), Invasive Species.


Sec. 1420.111  Environmental justice.

    (a) In accordance with the goals established in Executive Order 
12898, as implemented by DOT Order 5610.2 and the FHWA Order 
6640.23,\1\ and the requirements of the Civil Rights Act of 1964, Title 
VI, and its implementing regulations, proposed actions shall be 
developed in a manner to avoid or mitigate disproportionately high and 
adverse human health or environmental effects, including interrelated 
social and economic effects, on low income populations and minority 
populations. Adverse effects can include a denial of or reduction in 
benefits.
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    \1\ These documents are available for inspection and copying as 
prescribed at 49 CFR part 7.
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    (b) In performing an environmental analysis of proposed actions, 
applicants must analyze data necessary to determine whether the actions 
will have disproportionately high and adverse effects on low income and 
minority communities. When disproportionately high and adverse effects 
are found, the applicant must identify measures to address these 
disproportionate effects, including actions to avoid or mitigate them, 
or it must explain and justify why such measures cannot be taken.
    (c) The findings and determinations made pursuant to paragraphs (a) 
and (b) of this section must be documented as part of the NEPA document 
prepared for the proposed action, or in a supplemental document if the 
NEPA process has been completed.
    (d) In accordance with Executive Order 12898, DOT Order 5610.2, and 
the FHWA Order 6640.23, nothing in this section is intended to, nor 
shall create, any right to judicial review of any action taken by the 
agency, its officers or its recipients taken under this section to 
comply with such Orders.


Sec. 1420.113  Avoidance, minimization, mitigation, and enhancement 
responsibilities.

    (a) In accordance with the goals established in Sec. 1420.107, it 
is the policy of the FHWA and the FTA that proposed actions be 
developed as described in this section, to the fullest extent 
practicable. For the purposes of this section, ``practicable'' means a 
common sense balancing of environmental values with safety, 
transportation need, costs, and other relevant factors in 
decisionmaking. No additional findings or paperwork are required.
    (1) Adverse social, economic, and environmental impacts to the 
affected human communities and the natural environment should be 
avoided.
    (2) Where adverse impacts cannot be avoided, proposed measures 
should be developed to minimize adverse impacts.
    (3) Measures necessary to mitigate unavoidable adverse impacts be 
incorporated into the action, or should be part of a mitigation program 
completed in advance of the action.
    (4) Environmental enhancements should be evaluated and incorporated 
into the action as appropriate.
    (b) Mitigation measures and environmental enhancements shall be 
eligible for Federal funding to the fullest extent authorized by law.
    (c) NEPA commitments.
    (1) It shall be the responsibility of the applicant in cooperation 
with the U.S. DOT agency to implement those mitigation measures and 
environmental enhancements, stated as commitments in the final EIS/ROD, 
EA/FONSI, or CE prepared or supplemented pursuant to this regulation, 
unless the commitment is modified or eliminated in a supplemental final 
EIS/ROD, EA/FONSI or CE, or re-evaluation approved by the U.S. DOT 
agency.
    (2) If a final EIS/ROD, EA/FONSI, CE, or other U.S. DOT agency 
approval commits to coordination with another agency during the final 
design and construction phase, or during the operational phase of the 
action, the applicant is responsible for such coordination, unless the 
commitment is removed in a supplemental final EIS/ROD, EA/FONSI or CE, 
or re-evaluation approved by the U.S. DOT agency.

Subpart B--Program and Project Streamlining


Sec. 1420.201  Relationship of planning and project development 
processes.

    (a) The planning products described in Sec. 1410.318 shall be 
considered early in the NEPA process. The FTA and the FHWA encourage 
all Federal, State and local agencies with project level 
responsibilities for investments included in a transportation plan to 
participate in the planning process so as to maximize the usefulness of 
the planning products for the NEPA process and eliminate duplication.
    (b) Applicants preparing documents under this part shall, to the 
maximum extent useful and practicable, incorporate and utilize 
analyses, studies, documents, and other sources of information 
developed during the transportation planning processes of 23 CFR part 
1410 and other planning processes in satisfying the requirements of the 
NEPA process. The provisions of 40 CFR 1502.21 (incorporation by 
reference) will be used as appropriate.

[[Page 33980]]

    (c) During scoping for an EIS or early coordination for an 
environmental assessment, the U.S. DOT agency and the applicant shall, 
in consultation with the transportation planning agencies responsible 
for inclusion of the project in the metropolitan (if applicable) and 
statewide plan and program, review the record of previously completed 
planning activities, including any existing statement of purpose and 
need and evaluation of alternatives. Where the U.S. DOT agency, in 
cooperation with the applicant, determines that planning decisions are 
adequately supported, the detailed evaluation of alternatives required 
under Sec. 1420.313(b) or Sec. 1420.317(c) may be limited to the no 
action and reasonable alternatives requiring further consideration. In 
deciding which of the evaluations and conclusions of the planning 
process are adequately supported and may be incorporated during the 
NEPA process, the U.S. DOT agency and the applicant shall take into 
account the following:
    (1) The validity and completeness of the supporting analyses,
    (2) The public involvement process associated with those planning 
products,
    (3) The degree of coordination with Federal, State, and local 
resource agencies with interest in or authority over the ultimate 
action(s); and
    (4) The level of formal endorsement of the analyses and conclusions 
by participants in the planning process.


Sec. 1420.203  Environmental streamlining.

    (a) For highway and mass transit projects requiring an 
environmental impact statement, an environmental assessment, or an 
environmental review, analysis, opinion, or environmental permit, 
license, or approval by operation of Federal law, as lead Federal 
agency, the U.S. DOT agency, in cooperation with the applicant, shall 
perform the following:
    (1) Consult with the applicant regarding the issues involved, the 
likely Federal involvement, and project timing.
    (2) Early in the NEPA process, contact Federal agencies likely to 
be involved in the proposed action to verify the nature of their 
involvement and to discuss issues, methodologies, information 
requirements, time frames and constraints associated with their 
involvement.
    (3) Identify and use the appropriate means listed in 40 CFR 1500.4 
and 1500.5 for reducing paperwork and reducing delay.
    (4) Document the results of such consultation and distribute to the 
appropriate Federal agencies for their concurrence, identifying at a 
minimum the following:
    (i) Federal reviews and approvals needed for the action,
    (ii) Those issues to be addressed in the NEPA process and those 
that need no further evaluation,
    (iii) Methodologies to be employed in the conduct of the NEPA 
process,
    (iv) Proposed agency and public involvement processes, and
    (v) A process schedule.
    (5) Identify, during the course of completing the NEPA process, 
points of interagency disagreement causing delay and immediately take 
informal measures to resolve or reduce delay. If these measures are not 
successful in a reasonable time, the U.S. DOT agency shall initiate a 
dispute resolution process pursuant to section 1309 of the TEA-21.
    (b) A State may request that all State agencies with environmental 
review or approval responsibilities be included in the coordinated 
environmental review process and, with the consent of the U.S. DOT 
agency, establish an appropriate means to assure that Federal and State 
environmental reviews and approvals are fully coordinated.
    (c) At the request of the applicant, the coordinated environmental 
review process need not be applied to an action not requiring an 
environmental impact statement.
    (d) In accordance with the CEQ regulations on reducing paperwork 
(40 CFR 1500.4), NEPA documents prepared by DOT agencies need not 
devote paper to impact areas and issues that are not implicated in the 
proposed action and need not make explicit findings on such issues.


Sec. 1420.205  Programmatic approvals.

    (a) Nothing in this part shall prohibit the U.S. DOT agency from 
making approvals which apply to future actions consistent with the 
conditions established for such programmatic approvals.
    (b) Applicants shall cooperate with the U.S. DOT agency in 
conducting program evaluations to ensure that such programmatic 
approvals are being properly applied.


Sec. 1420.207  Quality assurance process.

    (a) The FHWA and the FTA shall institute a process to assure that 
actions subject to this part meet or exceed legal requirements and are 
processed in a timely manner.
    (b) For actions processed with an environmental impact statement, 
this process shall include a legal sufficiency review and may require 
the prior concurrence of the Headquarters office in accordance with 
procedures established by the FTA and the FHWA.


Sec. 1420.209  Alternate procedures.

    (a) An applicant may propose to the U.S. DOT agency alternative 
procedures for complying with the intent of this part with respect to 
its actions.
    (b) The U.S. DOT agency shall publish such alternative procedures 
in the Federal Register for notice and comment and shall consult with 
the CEQ pursuant to 40 CFR 1507.3.
    (c) After taking into account comments received, and negotiating 
with the applicant appropriate changes to such alternative procedures, 
the U.S. DOT agency shall approve such alternative procedures only 
after making a finding that the alternative procedures will be fully 
effective at complying with NEPA and related responsibilities.


Sec. 1420.211  Use of this part by other U.S. DOT agencies.

    As authorized by the Secretary, other U.S. DOT agencies may use 
this part for specific actions or categories of actions under their 
jurisdiction.


Sec. 1420.213  Emergency action procedures.

    Requests for deviations from the procedures in this part because of 
emergency circumstances shall be referred to the U.S. DOT agency for 
evaluation and decision in consultation with the CEQ in accordance with 
40 CFR 1506.11.

Subpart C--Process and Documentation Requirements


Sec. 1420.301  Responsibilities of the participating parties.

    (a) The CEQ regulation establishes rules for lead agencies (40 CFR 
1501.5) and cooperating agencies (40 CFR 1501.6). It also encourages 
Federal agencies to cooperate with State and local agencies to 
eliminate duplication (40 CFR 1506.2) and defines the relationship 
between Federal agencies, applicants, and contractors (40 CFR 1506.5).
    (b) For actions on Federal lands that are developed directly by the 
U.S. DOT agency in cooperation with the Federal land management agency, 
responsibilities for management of the NEPA process shall be as 
established by interagency agreement or procedure.
    (c) Use of contractors.
    (1) The U.S. DOT agency or an applicant may select and use 
contractors, in accordance with applicable contracting procedures, and 
the provisions of 40 CFR 1506.5(c), in support of their respective 
roles in the NEPA process. An applicant which is a

[[Page 33981]]

State agency with statewide jurisdiction may select a contractor to 
assist in the preparation of an EIS. Where the applicant is not a State 
agency with statewide jurisdiction, the applicant may select a 
contractor, after coordination with the U.S. DOT agency to assure 
compliance with 40 CFR 1506.5(c) relative to conflict of interest. 
Contractors that have a role in the actual writing of a NEPA document 
shall execute a disclosure statement in accordance with 40 CFR 
1506.5(c), specifying that such contractor has no financial or other 
interest in the outcome of the action (other than engineering with the 
exception allowed by paragraph (c)(2) of this section, if applicable), 
and will not acquire such an interest prior to the approval of the 
final NEPA document by the U.S. DOT agency or the termination of the 
contractor's involvement in writing the NEPA document, whichever occurs 
first.
    (2) A State may procure the services of a consultant, under a 
single contract, for environmental impact assessment and subsequent 
engineering and design work, provided that the State conducts a review 
that assesses the objectivity of the NEPA work in accordance with the 
provisions of 23 U.S.C. 112(g).


Sec. 1420.303  Interagency coordination.

    (a) Interagency coordination during the NEPA process involves the 
early and continuing exchange of information with interested Federal, 
State, local public agencies, and tribal governments. Interagency 
coordination should begin early as part of the planning process and 
continue through project development, the preparation of an appropriate 
NEPA document, and, by agreement, into the implementation stage of the 
action. Interested agencies include those that express a continuing 
interest in any aspect of the actions during the planning process and 
project development processes. They include those agencies whose 
jurisdiction, responsibilities, or expertise may involve any aspect of 
the action or its alternatives. The purpose of interagency coordination 
is to aid in determining the class of action, the scope of the NEPA 
document, the identification of key issues, the appropriate level of 
analysis, methods of avoidance, minimization, and mitigation of adverse 
impact, opportunities for environmental enhancement, and related 
environmental requirements. Coordination early in the NEPA process must 
extend beyond agencies consulted during the planning process to those 
agencies whose interest begins only when preliminary designs of 
alternative actions are being developed. The appropriate frequency and 
timing of coordination with a particular agency will depend on the 
interests of the agency consulted.
    (b) Federal land management entities, neighboring States, and 
tribal governments, that may be significantly affected by the action or 
by any of the alternatives shall be notified early in the NEPA process 
and their views solicited by the applicant in cooperation with the U.S. 
DOT agency.
    (c) Upon U.S. DOT agency written approval of an EA, FONSI, separate 
section 4(f) determination, or CE designation, the applicant shall send 
a notice of availability of the approved document, or a copy of the 
approved document itself, to the affected units of Federal, State, and 
local government. The notice shall briefly describe the action and its 
location and impacts. Cooperating agencies shall be provided a copy of 
the approved document.


Sec. 1420.305  Public involvement.

    (a) The applicant must have a continuing program of public 
involvement which actively encourages and facilitates the participation 
of transportation and environmental interest groups, citizens groups, 
private businesses, and the general public including minority and low 
income populations through a wide range of techniques for communicating 
and exchanging information. The applicant shall use the products of the 
public involvement process developed during planning pursuant to 23 CFR 
1410.212 and 1410.316, whenever such information is reasonably 
available and relevant, to provide continuity between the public 
involvement programs.
    (b) Each applicant developing projects under this part must adopt 
written procedures to carry out the public involvement requirements of 
this section and 40 CFR 1506.6, and, as appropriate, 23 U.S.C. 128, and 
49 U.S.C. 5323(b) and 5324(b). The applicant's public involvement 
procedures shall apply to all classes of action as described in 
Sec. 1420.309 and shall be developed in cooperation with other 
transportation agencies with jurisdiction in the same area, so that, to 
the maximum extent practicable, the public is presented with a 
consistent set of procedures that do not vary with the transportation 
mode of the proposed action or with the phase of project development. 
Where two or more involved parties have separate established 
procedures, a cooperative process for determining the appropriate 
public involvement activities and their consistency with the separate 
agency's procedures will be cooperatively established.
    (c) Public involvement procedures must provide for the following:
    (1) Coordination of public involvement activities with the entire 
NEPA process and, when appropriate, with the planning process. The 
procedures also must provide for coordination and information required 
to comply with public involvement requirements of other related laws, 
executive orders, and regulations;
    (2) Early and continuing opportunities for the public to be 
informed about, and involved in the identification of social, economic, 
and environmental impacts and impacts associated with relocation of 
individuals, groups, or institutions;
    (3) The use of an appropriate variety of public involvement 
activities, techniques, meeting and hearing formats, and notification 
media;
    (4) A scoping process that satisfies the requirements of 40 CFR 
1501.7;
    (5) One or more public hearings or the opportunity for hearing(s) 
to be held at a convenient time and place that encourage public 
participation, for any project which requires the relocation of 
substantial numbers of people, substantially changes the layout or 
functions of connecting transportation facilities or of the facility 
being improved, has a substantial adverse impact on abutting property, 
substantially affects a community or its mass transportation service, 
otherwise has a substantial social, economic, environmental or other 
effect, or for which the U.S. DOT agency determines that a public 
hearing is in the public interest;
    (6) Reasonable notice to the public of either a public hearing or 
the opportunity for a public hearing where a hearing is determined 
appropriate. Such notice shall indicate the availability of explanatory 
information;
    (7) Where appropriate, the submission to the U.S. DOT agency of a 
transcript of each public hearing and a certification (pursuant to 23 
U.S.C. 128 or 49 U.S.C. 5324(b)(2)) that a required hearing or hearing 
opportunity was offered. The transcript should be accompanied by copies 
of all written statements from the public, submitted either at the 
public hearing or during an announced period after the public hearing;
    (8) Specific procedures for complying with the public and agency 
involvement and notification requirements for the following: EAs, 
Findings of no significant impact (FONSI), Draft EISs, Final EISs, and 
Records of decision (ROD);

[[Page 33982]]

    (9) Reasonable accommodations for participation by persons with 
disabilities, including, upon request, the provision of auxiliary aids 
and services for understanding speakers at meetings and environmental 
documents.
    (d) Where a re-evaluation of NEPA documents is required pursuant to 
Sec. 1420.323, the U.S. DOT agency and the applicant will determine 
whether changes in the project or new information warrant additional 
public involvement.
    (e) A minimum public comment period of 45 days shall be provided 
prior to the initial adoption or substantial revision of public 
involvement procedures.
    (f) Public involvement procedures in effect as of the date of this 
part remain valid, but will be reviewed periodically for effectiveness.


Sec. 1420.307  Project development and timing of activities.

    (a) The FHWA and/or the FTA will not approve the initiation and 
will not authorize funding for final design activities, property 
acquisition (except the types of advance land acquisitions described in 
Sec. 1420.311(d)(16)), purchase of construction materials or transit 
vehicles, or construction, until the following have been completed:
    (1)(i) The action has been classified as a categorical exclusion 
(CE), or
    (ii) A FONSI has been approved, or
    (iii) A final EIS has been approved, made available for the 
prescribed period of time, and a record of decision has been signed;
    (2) The U.S. DOT agency has received transcripts of public hearings 
held, and any required certifications that a hearing or opportunity for 
a hearing was provided; and
    (3) The planning and programming requirements of 23 CFR part 1410 
have been met.
    (b) Before completion of the NEPA document, if it becomes apparent 
that the preferred alternative will not be consistent with the design 
concept and scope of the action identified in the relevant plan and 
TIP, the applicant shall immediately notify the State agency 
responsible for the State TIP, and, in metropolitan areas, the MPO, so 
that the planning and programming requirements of 23 CFR part 1410 can 
be satisfied prior to the approval of a final EIS, Record of Decision, 
FONSI or CE.
    (c) Compliance with the requirements of all applicable 
environmental laws, regulations, executive orders, and other related 
requirements as set forth in Sec. 1420.109 should be completed prior to 
the approval of the final EIS, FONSI, or the CE designation. If full 
compliance is not possible by the time the final EIS or FONSI is 
prepared, the final EIS or FONSI should reflect consultation with the 
appropriate agencies and provide reasonable assurance that the 
requirements will be met. However, full compliance with the U.S. EPA's 
conformity regulation at 40 CFR parts 51 and 93 is required prior to 
the approval of the ROD, FONSI or CE designation. Approval of the NEPA 
document constitutes adoption of DOT agency findings and determinations 
that are contained therein unless otherwise specified. The FHWA 
approval of the appropriate NEPA document will constitute its finding 
of compliance with the report requirements of 23 U.S.C. 128. The FTA 
approval of the appropriate NEPA document indicates compliance with 49 
U.S.C. 5324(b) and fulfillment of the grant application requirements of 
49 U.S.C. 5323(b), if such requirements are applicable to the action.
    (d) The completion of the requirements set forth in this section is 
considered the U.S. DOT agency's acceptance of the location of the 
action and design concepts described in the NEPA document unless 
otherwise specified by the approving official. However, such acceptance 
does not commit the U.S. DOT agency to approve any future grant request 
to fund the preferred alternative.


Sec. 1420.309  Classes of actions.

    (a) Class I (EISs). Actions that significantly affect the 
environment require an EIS (40 CFR 1508.27). The following are examples 
of actions normally requiring an EIS:
    (1) A new controlled access freeway.
    (2) A highway project of four or more lanes on a new location.
    (3) New construction or major extension of fixed rail transit 
facilities (e.g., rapid rail, light rail, automated guideway transit).
    (4) New construction or major extension of a separate roadway for 
buses or high occupancy vehicles not located within an existing highway 
facility.
    (5) New construction or major extension of an intercity railroad 
not located within existing railroad right-of-way.
    (6) A multimodal or intermodal facility that includes or requires 
any of the other Class I actions.
    (b) Class II (Categorical Exclusions). Actions that do not 
individually or cumulatively have a significant environmental impact 
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 
Sec. 1420.311(c). Additional actions not listed may be designated as 
CEs pursuant to Sec. 1420.311(d), if documented environmental studies 
demonstrate that the action would not, either individually or 
cumulatively, have a significant environmental impact.
    (c) Class III (EAs). Actions in which the significance of the 
environmental impact is not clearly established. All actions that are 
not Class I or II are Class III. All actions in this class require the 
preparation of an EA to determine the appropriate, subsequent NEPA 
document (i.e., Findings of no significant impact or EIS).


Sec. 1420.311  Categorical exclusions.

    (a) Categorical exclusions (CEs) are actions which meet the 
definition contained in 40 CFR 1508.4, and are known, on the basis of 
past experience with similar actions, not to involve significant 
environmental impacts. They are actions which: Do not induce 
significant impacts to planned growth or land use for the area; do not 
require the relocation of significant numbers of people; do not have a 
significant impact on any natural, cultural, recreational, historic or 
other resource; do not involve significant air, noise, or water quality 
impacts; do not have significant impacts on travel patterns; or do not 
otherwise, either individually or cumulatively, have any significant 
environmental impacts.
    (b) Any action which normally would be classified as a CE but could 
involve unusual circumstances will require the U.S. DOT agency, in 
cooperation with the applicant, to conduct appropriate environmental 
studies to determine if the CE classification is proper. Such unusual 
circumstances include:
    (1) Unique environmental impacts;
    (2) Substantial controversy on environmental grounds;
    (3) Significant impact on properties protected by 49 U.S.C. 303 
(section 4(f)) or section 106 of the National Historic Preservation 
Act; or
    (4) Inconsistencies with any Federal, State, or local law, 
requirement or administrative determination relating to the 
environmental aspects of the action.
    (c) The following actions meet the criteria for CEs in the CEQ 
regulation (40 CFR 1508.4) and Sec. 1420.311(a) of this regulation. If 
other environmental laws (i.e., those listed in Sec. 1420.109(c)) do 
not apply to the action, then it does not require any further NEPA 
approval by the U.S. DOT agency. If the U.S. DOT agency is not sure of 
the applicability of one of these CEs or of other environmental laws to 
a particular proposed action, the applicant will be

[[Page 33983]]

required to provide supporting documentation in accordance with 
paragraph (d) of this section. The following are CEs:
    (1) Activities which do not involve or lead directly to 
construction, such as program administration (e.g., personnel actions, 
procurement of consulting services or office supplies); the 
promulgation of rules, regulations, directives, and legislative 
proposals; planning and technical studies; technical assistance 
activities; training and research programs; technology transfer 
activities; research activities as defined in 23 U.S.C. 501-507; 
archaeological planning and research; approval of a unified planning 
work program; development and establishment of management systems under 
23 U.S.C. 303; approval of project concepts under 23 CFR part 476; 
preliminary engineering to define the elements of a proposed action or 
alternatives so that social, economic, and environmental effects can be 
assessed; Federal-aid system revisions which establish classes of 
highways; and designation of highways to the National Highway System.
    (2) Modernization of a highway by resurfacing.
    (3) Routine maintenance or minor rehabilitation of existing 
transportation facilities, including pavements, tracks, railbeds, 
bridges, structures, stations, terminals, maintenance shops, storage 
yards, and buildings, that occurs entirely on or within the facility, 
where there is no change in the character and use of the facility, and 
no substantial disruption of service or traffic; purchase of associated 
capital maintenance items; preventive maintenance of transit 
facilities, vehicles, and other equipment.
    (4) Incorporation of an Intelligent Transportation Systems (ITS) 
element into an existing transportation facility or service, including 
the development, purchase, installation, maintenance, improvement, and 
operation of a traveler information system, incident management and 
emergency response system, traffic management and control system, 
security system, or MAYDAY system that enables public agencies to 
detect and respond to emergency situations.
    (5) Activities included in the State's highway safety program under 
23 U.S.C. 402; enforcement of railroad safety regulations, including 
the issuance of emergency orders.
    (6) Improvement of existing rest areas, toll collection facilities, 
truck weigh stations, traffic management and control centers, and 
vehicle emissions testing centers where no substantial land acquisition 
or traffic disruption will occur.
    (7) Carpool and vanpool projects, as defined in 23 U.S.C. 146, if 
no substantial land acquisition or traffic disruption will occur.
    (8) Emergency repairs of highways, roads and trails under 23 U.S.C. 
125; emergency repair of transit or railroad facilities after a natural 
disaster or catastrophic failure.
    (9) Operating assistance to transit agencies.
    (10) Acquisition of buses, rail vehicles, paratransit vehicles, and 
transit-support vehicles, where the use of these vehicles can be 
accommodated by existing facilities or by new facilities which are 
themselves CEs.
    (11) Purchase or installation of operating or maintenance equipment 
to be located within an existing transportation facility with no 
significant impacts off the site; lease of existing facilities, 
vehicles, or other equipment for use in providing transit services; 
capital cost of contracting for transit services.
    (12) Bus and rail car rehabilitation, including the retrofit or 
replacement of vehicles for alternative fuels, where the use of these 
vehicles can be accommodated by existing facilities or new facilities 
which are themselves CEs.
    (13) Improvement of existing tracks, railbeds, communications 
systems, signal systems, security systems, and electrical power systems 
when carried out within the existing right-of-way without substantial 
service disruption.
    (14) Construction of bicycle and pedestrian lanes, paths, and 
facilities within existing transportation facilities or right-of-ways; 
installation of equipment for transporting bicycles on transit 
vehicles.
    (15) Alterations to transportation facilities or vehicles in order 
to make them accessible by persons with disabilities.
    (16) Installation of fencing, signs, pavement markings, small 
passenger shelters, traffic signals, lighting, and railroad warning 
devices where no substantial land acquisition or traffic disruption 
will occur.
    (17) Transfer of Federal lands pursuant to 23 U.S.C. 317 when the 
subsequent action is not an FHWA action; approvals of disposals of 
excess right-of-way; transfer of surplus assets, in accordance with 49 
U.S.C. 5334(g); approval of utility installations along or across a 
transportation facility.
    (18) Landscaping, streetscaping, public art and other scenic 
beautification; control and removal of outdoor advertising; acquisition 
of scenic easements and scenic or historic sites for the purpose of 
preserving the site.
    (19) Installation of noise barriers or other alterations to 
existing facilities to provide for noise reduction; alterations to 
existing non-historic buildings to provide for noise reduction.
    (20) Contributions to statewide or regional efforts to conserve, 
restore, enhance, and create wetlands or wildlife habitats.
    (d) Additionally, for individual proposed actions to be 
categorically excluded under this section, the applicant shall submit 
documentation which demonstrates that the specific conditions or 
criteria for these CEs are satisfied, that significant environmental 
effects will not result, that the applicant's public involvement 
process is consistent with the procedures adopted pursuant to 
Sec. 1420.305, that any appropriate interagency coordination has 
occurred, and that any other applicable environmental laws (e.g., those 
listed in Sec. 1420.109(c)) have been satisfied. This demonstration may 
require investigations of specific areas of impact to determine whether 
the CE criteria are satisfied. If the DOT agency is not certain that 
the appropriateness of the CE has been demonstrated, additional 
documentation or an EA or EIS will be required of the applicant. 
Examples of actions for which a CE demonstration may be possible 
include, but are not limited to:
    (1) Modernization of a highway through restoration, rehabilitation, 
reconstruction, adding shoulders, or adding auxiliary lanes (e.g., 
parking, weaving, turning, climbing lanes), or travel lanes in the 
median of an existing facility, including any such action necessary to 
accommodate other transportation modes on an existing facility.
    (2) Transportation operational improvements, including those that 
use ITS, such as, freeway surveillance and control systems, traffic 
signal monitoring and control systems, transit management systems, 
electronic fare payment systems, and electronic toll collection 
systems.
    (3) Transportation safety improvements and programs; hazard 
eliminations, including construction of grade separation to replace 
existing highway-railway grade crossings; projects to mitigate hazards 
caused by wildlife; and seismic retrofit of existing transportation 
facilities or structures.
    (4) Rehabilitation or reconstruction of tunnels, bridges, and other 
structures, and the approaches thereto.
    (5) Modification or replacement of an existing bridge on 
essentially the same alignment or location.

[[Page 33984]]

    (6) Construction of parking facilities or carpool and vanpool 
projects that involve land acquisition and construction.
    (7) Construction of new buildings to house transportation 
management and control centers, carpool and vanpool operations centers, 
or vehicle emissions testing centers.
    (8) Construction of new rest areas, toll collection facilities, 
truck weigh stations or auto emissions testing or safety testing 
facilities.
    (9) Approvals for changes in highway access control.
    (10) Improvement of existing tracks, railbeds, communications 
systems, signal systems, security systems, and electrical power 
systems, including construction of sidings or passing tracks; extension 
or expansion of rail electrification on existing, operating rail lines.
    (11) Construction of new bus or rail storage and maintenance 
facilities in undeveloped areas or areas used predominantly for 
industrial or transportation purposes, where such facility is 
compatible with existing zoning, the site is located on or near a 
street with adequate capacity to handle anticipated traffic, and there 
is no significant air or noise impact on the surrounding community.
    (12) Renovation, reconstruction, or improvement of existing rail, 
bus, and intermodal buildings and facilities, including conversion to 
use by alternative-fuel vehicles.
    (13) Construction of bus transfer facilities (an open area 
consisting of passenger shelters, boarding areas, kiosks and related 
street improvements) or intermodal transfer facilities, when located in 
a commercial area or other high activity center in which there is 
adequate street capacity for projected traffic.
    (14) Rehabilitation, renovation, or improvement of existing ferry 
terminals, piers, and facilities.
    (15) Short-term demonstrations of rail service on existing tracks.
    (16) An acquisition of land or property interests that meets the 
criteria of paragraph (d)(16)(i), (ii) or (iii) of this section may be 
evaluated against the criteria for a CE in the CEQ regulations (40 CFR 
1508.4) and paragraph (a) of this section separately from any planned 
action that would use the land or property interests. Any subsequent 
action that would use the acquired right-of-way or property interests 
and would require a DOT agency action must be separately reviewed in 
accordance with this part prior to any construction on, or change in 
the land. The following types of acquisitions may qualify as CEs:
    (i) Acquisition of an existing transportation right-of-way which is 
linear in its general configuration and is not publicly owned, such as 
a railroad or a private road, for the purpose of either maintaining 
preexisting levels of transportation service on the facility or of 
preserving the right-of-way for a future transportation action or 
transportation enhancement activity.
    (ii) Acquisition of land, easements, or other property interests 
with the intent of preserving alternatives for a future transportation 
action, where the following conditions are met: The transportation 
action that would use the land or property interests has been 
specifically included in a transportation plan for the area adopted 
pursuant to 23 CFR part 1410 and such plan has been found by the U.S. 
DOT agency to conform to air quality plans in accordance with 40 CFR 
parts 51 and 93, if applicable; and the acquisition will not limit the 
evaluation of alternatives to the planned action that would use the 
land or property interests including shifts in alignment that may be 
required.
    (iii) Acquisition of land or property interests for hardship or 
protective purposes where the following conditions are met: The 
transportation action that would use the land or property interests has 
been specifically included in a transportation plan for the area 
adopted pursuant to 23 CFR part 1410 and such plan has been found by 
the U.S. DOT agency to conform to air quality plans in accordance with 
40 CFR parts 51 and 93, if applicable; the hardship and protective 
buying will be limited to a particular parcel or a small number of 
parcels related to the planned transportation action; and the 
acquisition will not limit the evaluation of alternatives to the 
planned action that would use the land or property interests, including 
shifts in alignment that may be required.
    (17) Approvals for joint or limited use of right-of-way, where the 
proposed use does not have significant adverse impacts.
    (18) Construction of a bicycle transportation facility on its own, 
new right-of-way.
    (19) Mitigation of water pollution due to storm water runoff from 
transportation facilities.
    (20) Rehabilitation and operation of historic transportation 
buildings, structures, or facilities (including historic railroad or 
bus facilities and canals).
    (21) Transportation enhancement activities and transit enhancements 
defined in 23 U.S.C. 101 and 49 U.S.C. 5302.


Sec. 1420.313  Environmental assessments.

    (a) An EA shall be prepared by the applicant in consultation with 
the U.S. DOT agency for each action(s) that is not a CE and does not 
clearly require the preparation of an EIS, or where the U.S. DOT agency 
believes an EA would assist in determining the need for an EIS.
    (b) The EA shall evaluate the social, economic, and environmental 
impacts of the proposed action, reasonable alternatives that would 
avoid or reduce adverse impacts, measures which would mitigate adverse 
impacts, and environmental enhancements if any that would aid in 
harmonizing the action with the surrounding community. The EA shall 
discuss compliance with other related environmental laws, regulations, 
and executive orders.
    (c) The EA is subject to U.S. DOT agency approval before it is made 
available to the public as a U.S. DOT agency document.
    (d) For actions that require an EA, the applicant, in consultation 
with the U.S. DOT agency, shall do the following:
    (1) Conduct interagency coordination in accordance with 
Sec. 1420.303, beginning at the earliest appropriate time, to advise 
agencies of the proposed action and to achieve the following 
objectives: Determine which aspects of the proposed action have 
potential for social, economic, or environmental impact; identify 
alternatives and measures which might avoid or mitigate adverse 
impacts; identify environmental enhancements that might aid in 
harmonizing the action with the surrounding community; and identify 
other environmental review and coordination requirements which should 
be performed concurrently with the EA. The results of interagency 
coordination to the time of EA approval by the U.S. DOT agency shall be 
included in the EA.
    (2) Provide for public involvement in accordance with the 
procedures established pursuant to Sec. 1420.305. Public involvement to 
the time of EA approval by the U.S. DOT agency shall be summarized in 
the EA.
    (e) The EA need not be circulated for comment but the document must 
be made available for inspection in public places readily accessible to 
the affected community in accordance with paragraphs (f) and (g) of 
this section. Notice of availability of the EA, briefly describing the 
action(s) and its impacts, or a copy of the EA, shall be sent by the 
applicant to the affected units of Federal, State and local government.

[[Page 33985]]

    (f) When, in accordance with the public involvement procedures 
established pursuant to Sec. 1420.305, a public hearing on an action 
evaluated in an EA is held, the following shall occur:
    (1) The EA shall be available at the public hearing and for a 
minimum of 15 days in advance of the public hearing.
    (2) The notice of the public hearing in local newspapers shall 
announce the availability of the EA and where it may be obtained or 
reviewed.
    (3) Pursuant to 40 CFR 1501.4(c) comments shall be submitted in 
writing to the applicant or the U.S. DOT agency within 30 days of 
publication of the notice of availability of the EA unless the U.S. DOT 
agency determines, for good cause, that a different period is 
warranted.
    (g) When, in accordance with the public involvement procedures 
established pursuant to Sec. 1420.305, a public hearing on an action 
evaluated in an EA is not held, the following shall occur:
    (1) The applicant shall place a notice in a newspaper(s) similar to 
a public hearing notice at an appropriate stage of development of the 
action.
    (2) The notice shall advise the public of the availability of the 
EA, state where information concerning the action may be obtained, and 
invite comments from all parties with an interest in the social, 
economic, or environmental aspects of the action.
    (3) Pursuant to 40 CFR 1501.4(c) comments shall be submitted in 
writing to the applicant or the U.S. DOT agency within 30 days of the 
publication of the notice unless the U.S. DOT agency determines, for 
good cause, that a different period is warranted.
    (h) If no significant impacts are identified, the applicant shall 
consider the public and agency comments received; revise the EA as 
appropriate; furnish the U.S. DOT agency a copy of the revised EA, the 
public hearing transcript, where applicable, and copies of any comments 
received and responses thereto; and recommend a FONSI. The revised EA 
shall also document compliance, to the fullest extent possible, with 
other related environmental laws, regulations, and executive orders 
applicable to the action, or provide reasonable assurance that the 
requirements will be met. Full compliance with the transportation 
conformity rule (40 CFR parts 51 and 93) and the planning regulation 
(23 CFR part 1410) is required before completion of the FONSI.
    (i) If, at any point in the EA process, the U.S. DOT agency 
determines that the action is likely to have a significant impact on 
the environment, the preparation of an EIS will be required.
    (j) Any action which normally would be classified as an EA but 
could involve unusual circumstances, such as, substantial controversy 
on community impact and/or environmental grounds, will require the U.S. 
DOT agency, in cooperation with the applicant, to determine if the EA 
is the appropriate level of documentation.


Sec. 1420.315  Findings of no significant impact.

    (a) The U.S. DOT agency will review the EA and other documents 
submitted pursuant to Sec. 1420.313 (e.g., copies of any hearing 
transcript and written comments, and the applicant's responses). If the 
U.S. DOT agency agrees with the applicant's recommendation of a FONSI, 
it will make such finding in writing and incorporate by reference the 
EA and any other related documentation.
    (b) Pursuant to 40 CFR 1501.4(e)(2), for proposed actions which are 
either similar to ones normally requiring an EIS or are without 
precedent and the U.S. DOT agency is processing the action with an EA 
and expects to issue a FONSI, copies of the EA and proposed FONSI shall 
be made available for review by the public and affected units of 
government for a minimum of 30 days before the U.S. DOT agency makes 
its final decision. This public availability shall be announced by a 
notice similar to a public hearing notice.
    (c) After a FONSI has been made by the U.S. DOT agency, a notice of 
availability of the FONSI shall be sent by the applicant to the 
affected units of Federal, State and local government, and the document 
shall be available from the applicant and the U.S. DOT agency upon 
request by the public. Notice shall also be sent to the State 
intergovernmental review contacts established under Executive Order 
12372.
    (d) Where substantial changes are made to the project and/or its 
potential impacts after the public review period for the EA, the 
applicant, pursuant to Sec. 1420.323(c), shall make copies of the 
revised EA and the FONSI available for review by the public and 
affected units of government for a minimum of 30 days before the U.S. 
DOT agency makes its final decision, unless the U.S. DOT agency 
determines, for good cause, that a different period is warranted.
    (e) If another Federal agency has issued a FONSI on an action which 
includes an element proposed for U.S. DOT agency action, the U.S. DOT 
agency will evaluate the other agency's EA/FONSI. If the U.S. DOT 
agency determines that this element of the action and its environmental 
impacts have been adequately identified and assessed, the U.S. DOT 
agency will issue its own FONSI in accordance with paragraphs (a), (b), 
(c) and (d) of this section, incorporating the other agency's FONSI and 
any other related documentation. If environmental issues have not been 
adequately identified and assessed, the U.S. DOT agency will require 
appropriate environmental studies to complete the assessment.


Sec. 1420.317  Draft environmental impact statements.

    (a) A draft EIS shall be prepared when the U.S. DOT agency 
determines that the action(s) is likely to cause significant impacts on 
the environment or if the preparation of an EIS is otherwise 
appropriate. When the decision has been made by the U.S. DOT agency to 
prepare an EIS, the U.S. DOT agency will publish a Notice of Intent (40 
CFR 1508.22) in the Federal Register. Applicants must announce the 
intent to prepare an EIS by appropriate means at the local level in 
accordance with the public involvement procedures established pursuant 
to Sec. 1420.305.
    (b) The U.S. DOT agency, in cooperation with the applicant, will 
publish the Notice of Intent and begin a scoping process to establish 
the scope of the draft EIS and the work necessary for its preparation. 
The documented results of the planning process relevant to the action, 
including the public involvement and interagency coordination that has 
occurred, must be considered in scoping. Scoping is normally achieved 
through the actions taken to comply with the public involvement 
procedures and interagency coordination required by Secs. 1420.303 and 
1420.305. The scoping process will: Review the range of alternatives 
and impacts and the major issues to be addressed in the EIS; aid in 
determining which aspects of the proposed action have potential for 
social, economic, or environmental impact; help identify measures which 
might mitigate adverse environmental impacts; identify environmental 
enhancements that might aid in harmonizing the action with the 
surrounding community; identify other environmental review and 
coordination requirements that must be performed concurrently with the 
EIS preparation; and achieve the other objectives of 40 CFR 1501.7 and 
environmental streamlining (Sec. 1420.203). If a public scoping meeting 
is to be held, it must be announced in the U.S. DOT agency 's Notice of 
Intent and by an appropriate means at the local level.

[[Page 33986]]

    (c) The draft EIS shall be prepared by the U.S. DOT agency in 
cooperation with the applicant or, where permitted by 40 CFR 1506.5, by 
the applicant with appropriate guidance and participation by the U.S. 
DOT agency. The draft EIS shall evaluate all reasonable alternatives 
and may rely on information developed in accordance with 23 CFR part 
1410. The draft EIS shall discuss the reasons why other alternatives, 
which may have been considered, were eliminated from detailed study. 
The draft EIS shall evaluate the social, economic, and environmental 
impacts of the proposed action, reasonable alternatives that would 
avoid or reduce adverse impacts, measures which would mitigate adverse 
impacts, and environmental enhancements that would aid in harmonizing 
the action with the surrounding community. Alternatives must be 
sufficiently well-defined to allow full evaluation of the specific 
alignment and design variations that would avoid or minimize adverse 
impacts. The draft EIS shall summarize the public involvement and 
interagency coordination to the time of its approval. The draft EIS 
shall also summarize the studies, reviews, consultations, and 
coordination required by other related environmental laws, regulations, 
and executive orders to the extent appropriate at this stage in the 
environmental process.
    (d) The U.S. DOT agency, when satisfied that the draft EIS complies 
with NEPA requirements, will approve the draft EIS for circulation by 
signing and dating the cover sheet.
    (e) A lead, joint lead, or a cooperating agency shall be 
responsible for printing and distributing the draft EIS. The initial 
printing of the draft EIS shall be in sufficient quantity to meet 
requests for copies which can reasonably be expected from agencies, 
organizations, and individuals. Normally, copies will be furnished free 
of charge. However, with U.S. DOT agency concurrence, the party 
requesting the draft EIS may be charged a fee which is not more than 
the actual cost of reproducing the copy and also must be informed of 
the nearest location where the draft EIS may be reviewed without 
charge.
    (f) The draft EIS shall be circulated for comment by the applicant 
on behalf of the U.S. DOT agency. The draft EIS shall be made available 
to the public and transmitted to agencies for comment no later than the 
time the document is filed with the Environmental Protection Agency in 
accordance with 40 CFR 1506.9. The draft EIS shall be transmitted to 
the following:
    (1) Public officials, interest groups, and members of the public 
known to have an interest in the proposed action or alternatives;
    (2) Federal, State and local government agencies expected to have 
jurisdiction or responsibility over, or interest or expertise in, the 
action, and to the State intergovernmental review contacts established 
under Executive Order 12372; and
    (3) Neighboring States and Federal land management entities which 
may be affected by any of the alternatives.
    (g) Public hearing requirements are to be carried out in accordance 
with the provisions of Sec. 1420.305 and this section. Whenever a 
public hearing is held, the draft EIS shall be available at the public 
hearing and for a minimum of 15 days in advance of the public hearing. 
The availability of the draft EIS shall be mentioned, and public 
comments requested, in any public hearing notice and at any public 
hearing presentation. If a public hearing is not held, a notice shall 
be placed in a newspaper similar to a public hearing notice advising 
where the draft EIS is available for review, how copies may be 
obtained, and where the comments should be sent.
    (h) Through the U.S. Environmental Protection Agency's notice of 
availability (40 CFR 1506.10), the U.S. DOT agency shall establish a 
period of not less than 45 days for the receipt of comments on the 
draft EIS. The draft EIS or a transmittal letter sent with each copy of 
the draft EIS shall identify where comments are to be sent and when the 
comment period ends.


Sec. 1420.319  Final environmental impact statements.

    (a)(1) After circulation of a draft EIS and consideration of 
comments received, a final EIS shall be prepared by the U.S. DOT agency 
in cooperation with the applicant or, where permitted by 40 CFR 1506.5, 
by the applicant with appropriate guidance and participation by the 
U.S. DOT agency. Preparation of the final EIS will involve such 
additional public involvement, interagency coordination, and 
engineering or environmental studies as are necessary to consider the 
appropriateness of refinements in the alternatives and the 
incorporation of mitigation measures and environmental enhancements in 
response to comments received on the draft EIS.
    (2) Every reasonable effort shall be made to resolve interagency 
disagreements on actions before processing the final EIS. If major 
issues remain unresolved, the final EIS shall identify those issues and 
the coordination and other efforts made to resolve them.
    (3) The final EIS shall evaluate all reasonable alternatives 
considered and identify the preferred alternative. It shall also 
discuss substantive comments received on the draft EIS and responses 
thereto, summarize public involvement and interagency coordination, and 
describe the environmental design features, including mitigation 
measures and environmental enhancements, that are incorporated into the 
proposed action. Environmental design features or other mitigation 
measures presented as commitments in the final EIS shall be 
incorporated into the action. The final EIS shall also document 
compliance with other related environmental laws, regulations, and 
executive orders applicable to the action, and, if full compliance is 
not possible, provide reasonable assurance that the requirements will 
be met.
    (b) The U.S. DOT agency will indicate approval of the final EIS by 
signing and dating the cover page. Approval of the final EIS does not 
commit the U.S. DOT agency to approve any future grant request.
    (c) The initial printing of the final EIS shall be in sufficient 
quantity to meet the request for copies which can be reasonably 
expected from agencies, organizations, and individuals. Normally, 
copies will be furnished free of charge. However, with U.S. DOT agency 
concurrence, the party requesting the final EIS may be charged a fee 
which is not more than the actual cost of reproducing the copy and also 
must be informed of the nearest location where the final EIS may be 
reviewed without charge.
    (d) The final EIS shall be transmitted to any persons, 
organizations, or agencies that made substantive comments on the draft 
EIS and to anyone requesting a copy, no later than the time the 
document is filed with the U.S. EPA. In the case of lengthy documents, 
the U.S. DOT agency may allow alternative circulation processes in 
accordance with 40 CFR 1502.19. The applicant shall publish a notice of 
availability in local newspapers and make the final EIS available 
through the mechanism established pursuant to DOT Order 4600.13 \2\ 
which implements Executive Order 12372. The final EIS shall be 
available for public review at the applicant's offices and at 
appropriate DOT agency offices for at least 30 days after the U.S. EPA 
publication of the Federal Register notice of availability. Copies 
should also be made available for public review at institutions such as 
local government

[[Page 33987]]

offices, libraries, and schools, as appropriate.
---------------------------------------------------------------------------

    \2\ This document is available for inspection and copying as 
prescribed in 49 CFR part 7.
---------------------------------------------------------------------------


Sec. 1420.321  Record of decision.

    (a) The U.S. DOT agency will complete and sign a record of decision 
(ROD) no sooner than 30 days after the U.S. EPA publication in the 
Federal Register of the notice of availability for the final EIS or 90 
days after the U.S. EPA publication of the notice for the draft EIS, 
whichever is later. The ROD will present the basis for the decision as 
specified in 40 CFR 1505.2, summarize any mitigation measures and 
environmental enhancements that have been incorporated into the action, 
and document any required section 4(f) approval in accordance with 23 
CFR part 1430. Until the ROD has been signed, no further approvals 
relative to the action may be given except those for administrative 
activities taken to secure further project funding and for other 
activities consistent with the limitation on actions in 40 CFR 1506.1. 
The applicant, in coordination with the U.S. DOT agency shall publish a 
notice of availability of the ROD for public review in a newspaper of 
general circulation, and, to the extent practicable, provide the 
approved ROD to all persons, organizations, and agencies that received 
a copy of the final EIS pursuant to Sec. 1420.319(d).
    (b) After issuance of a ROD, the U.S. DOT agency shall issue a 
revised ROD if it wishes to approve an alternative which was not 
identified as the preferred alternative but was fully evaluated in the 
final EIS or proposes to make substantial changes to the mitigation 
measures or findings discussed in the original ROD. Before issuing the 
revised ROD, the U.S. DOT agency shall consider whether additional 
notification, interagency coordination, and public involvement are 
needed in accordance with Sec. 1420.303 and Sec. 1420.305. To the 
extent practicable the approved revised ROD shall be provided to all 
persons, organizations and agencies that received a copy of the Final 
EIS pursuant to Sec. 1420.319(d).
    (c) Upon approval of the ROD, the mitigation and environmental 
enhancements in the final EIS associated with the alternative selected 
in the ROD become enforceable conditions of any subsequent grant 
related to the action or other DOT agency approval of the action. The 
U.S. DOT agency will ensure implementation of mitigation and 
environmental enhancements as described in Sec. 1420.113.


Sec. 1420.323  Re-evaluations.

    (a) A written evaluation of the draft EIS shall be prepared by the 
applicant in cooperation with the U.S. DOT agency if a final EIS is not 
approved by the U.S. DOT agency within three years from the date of the 
draft EIS circulation. The purpose of this evaluation is to determine 
whether a supplement to the draft EIS or a new draft EIS is needed.
    (b) A written evaluation of the final EIS will be required before 
further approvals may be granted if major steps to advance the action 
(e.g., authority to undertake final design, authority to acquire a 
significant portion of the right-of-way, or approval of the plans, 
specifications and estimates) have not occurred within three years 
after the approval of the final EIS, final EIS supplement, or the last 
major DOT agency approval or grant.
    (c) After approval of the EIS, FONSI, or CE designation, the 
applicant shall consult with the U.S. DOT agency 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 U.S. DOT action. These consultations will be documented when 
determined necessary by the U.S. DOT agency.
    (d) A re-evaluation under this section shall include additional 
notification, interagency coordination, and public involvement as 
appropriate in accordance with Sec. 1420.303 and Sec. 1420.305.


Sec. 1420.325  Supplemental environmental impact statements.

    (a) A draft EIS or final EIS may be supplemented whenever the U.S. 
DOT agency determines that supplementation would improve 
decisionmaking, better inform the agency or the public, or serve other 
purposes. An EIS shall be supplemented whenever the U.S. DOT agency 
determines that:
    (1) Changes to the proposed action would result in significant 
environmental impacts that were not evaluated in the EIS.
    (2) New information or circumstances relevant to environmental 
concerns and bearing on the proposed action or its impacts would result 
in significant environmental impacts not evaluated in the EIS.
    (b) A supplemental EIS will not be necessary where:
    (1) The changes to the proposed action, new information, or new 
circumstances result in the actual lessening of adverse environmental 
impacts evaluated in the EIS without causing other environmental 
impacts that are significant and were not evaluated in the EIS; or
    (2) The U.S. DOT agency decides to approve an alternative fully 
evaluated in an approved final EIS but not identified as the preferred 
alternative. In such a case, a ROD shall be prepared and circulated in 
accordance with Sec. 1420.321.
    (c) Where the U.S. DOT agency is uncertain of the significance of 
the new impacts, the applicant will develop appropriate environmental 
studies or, if the U.S. DOT agency deems appropriate, an EA to assess 
the impacts of the changes, new information, or new circumstances. If, 
based upon the studies, the U.S. DOT agency determines that a 
supplemental EIS is not necessary, the U.S. DOT agency shall so 
indicate in the project file.
    (d) A supplement is to be developed using the same process and 
format (i.e., draft EIS, final EIS, and ROD) as an original EIS, except 
that scoping is not required. Public involvement and interagency 
coordination commensurate with the nature and scope of the supplemental 
EIS shall be conducted in accordance with Sec. 1420.305 and the public 
involvement procedures developed thereunder.
    (e) In some cases, a supplemental EIS may be required to address 
issues of limited scope, such as the extent of proposed mitigation or 
the evaluation of location or design variations for a limited portion 
of the overall project. Where this is the case, the preparation of a 
supplemental EIS shall not necessarily prevent the granting of new 
approvals; require the withdrawal of previous approvals; or require the 
suspension of project activities for any activity not directly affected 
by the supplement. If the changes in question are of such magnitude to 
require a new evaluation of the entire action, or more than a limited 
portion of the overall action, the U.S. DOT agency shall suspend any 
activities which would have an adverse environmental impact or limit 
the choice of reasonable alternatives, until the supplemental EIS is 
completed.

Subpart D--Definitions


Sec. 1420.401  Terms defined elsewhere.

    The definitions contained in the CEQ regulation (40 CFR 1508) and 
in titles 23 (23 U.S.C. 101) and 49 of the United States Code (49 
U.S.C. 14202) are applicable except as modified in Sec. 1420.403.

[[Page 33988]]

Sec. 1420.403  Terms defined in this part.

    The following definitions apply to this part and to part 1430 of 
this chapter:
    Action means a surface transportation infrastructure or service 
investment (e.g., highway, transit, railroad, or mixed mode) proposed 
for direct implementation by the U.S. DOT agency or for the U.S. DOT 
agency financial assistance; and other activities, such as, joint or 
multiple use of right-of-way, changes in access control, that require a 
U.S. DOT agency approval or permit, but may or may not involve a 
commitment of Federal funds; and other FHWA or FTA program decisions, 
such as, promulgation of regulations and approval of programs, unless 
specifically defined by statute or regulation as not being an action.
    Applicant means the Federal, State or local governmental authority 
that the U.S. DOT agency works with to conduct environmental studies 
and prepare environmental documents. For transportation actions 
implemented by the Federal government on Federal lands, the U.S. DOT 
agency or the Federal land management agency will take on the 
responsibilities of the applicant described herein.
    Environmental enhancement means a measure which contributes to 
blending the proposed project harmoniously with its surrounding human 
communities and the natural environment and extends beyond those 
measures necessary to mitigate the specific adverse impacts resulting 
from a proposed transportation action. This includes measures eligible 
for Federal funding, such as transportation enhancement activities or 
transit enhancements, and measures funded by the applicant or by 
others.
    Environmental studies means the investigations of potential social, 
economic, or environmental impacts conducted:
    (1) As part of the metropolitan or statewide transportation 
planning process under 23 CFR part 1410,
    (2) To determine the NEPA class of action and scope of analysis, 
and/or
    (3) To provide information to be included in a NEPA decision 
process.
    Hardship acquisition means the early acquisition of property by the 
applicant at the property owner's request to alleviate particular 
hardship to the owner, in contrast to others, because of an inability 
to sell his/her property. This is justified when the property owner can 
document on the basis of health, safety, or financial reasons that 
remaining in the property poses an undue hardship compared to others.
    Planning process means the process of developing metropolitan and 
statewide transportation plans and programs in accordance with 23 CFR 
part 1410.
    Protective acquisition means the purchase of land to prevent 
imminent development of a parcel which is needed for a proposed 
transportation corridor or site. Documentation must clearly demonstrate 
that development of the land would preclude future transportation use 
and that such development is imminent. Advance acquisition is not 
permitted for the sole purpose of reducing the cost of property for a 
proposed project.
    Section 4(f) means the provision in law which provides protection 
to certain public lands and all historic properties (now codified in 49 
U.S.C. 303 and 23 U.S.C. 138).
    Transportation conformity means the process for assuring or 
conformity of transportation projects, programs, and plans with the 
purpose of State plans for attainment and maintenance of air quality 
standards under the U.S. EPA regulation at 40 CFR parts 51 and 93. The 
process applies only to areas designated as nonattainment or 
maintenance for a transportation related pollutant.
    U.S. DOT agency means the FHWA, the FTA, or the FHWA and the FTA 
together. In addition, U.S. DOT agency refers to any other agency 
within the U.S. Department of Transportation that uses this part as 
provided for in Sec. 1420.209.
    U.S. DOT agency approval means the approval by FHWA/FTA of the 
applicant's request relative to an action. The applicant's request may 
be for Federal financial assistance, or it may be for some other U.S. 
DOT agency approval that does not involve a commitment of Federal 
funds.

PART 1430--PROTECTION OF PUBLIC PARKS, WILDLIFE AND WATERFOWL 
REFUGES, AND HISTORIC SITES

Sec.
1430.101   Purpose.
1430.103   Mandate.
1430.105   Applicability.
1430.107   Use of land.
1430.109   Significance of the section 4(f) resource.
1430.111   Exceptions.
1430.113   Section 4(f) evaluations and determinations under the 
NEPA umbrella.
1430.115   Separate section 4(f) evaluations.
1430.117   Programmatic section 4(f) evaluations.
1430.119   Linkage with transportation planning.
1430.121   Definitions.

    Authority:  23 U.S.C. 138 and 315; 49 U.S.C. 303; 49 CFR 1.48 
and 1.51.


Sec. 1430.101  Purpose.

    The purpose of this part is to implement 49 U.S.C. 303 and 23 
U.S.C. 138 which were originally enacted as section 4(f) of the 
Department of Transportation Act of 1966 and are still commonly 
referred to as section 4(f).


Sec. 1430.103  Mandate.

    (a) The U.S. DOT agency may approve a transportation project that 
uses publicly owned land from a significant public park, recreation 
area, or wildlife and waterfowl refuge, or any land from a significant 
historic site only if the U.S. DOT agency has determined that:
    (1) There is no feasible and prudent alternative to the use of land 
from the property; and
    (2) The project includes all possible planning to minimize harm to 
the property resulting from such use.
    (b) [Reserved]


Sec. 1430.105  Applicability.

    (a) This part applies to transportation projects that require an 
approval by the U.S. DOT agency, where the U.S. DOT agency has 
sufficient control and the statutory authority to condition the project 
or approval.
    (b) The U.S. DOT agency will determine the applicability of section 
4(f) in accordance with this part.
    (c) This part does not apply to or alter approvals by the U.S. DOT 
agency made prior to the effective date of this regulation.


Sec. 1430.107  Use of land.

    (a) Except as set forth in paragraph (b) of this section and 
Sec. 1430.111, use of land occurs:
    (1) When land is permanently incorporated into a transportation 
facility;
    (2) When there is a temporary occupancy of land that is adverse to 
the statutory purpose of preserving the natural beauty of that land, as 
determined by the criteria in paragraph (b) of this section; or
    (3) When there is a constructive use of land as determined by the 
criteria in paragraph (c) of this section.
    (b) A temporary occupancy of land occurs when the use is so minimal 
that it does not constitute a use within the meaning of section 4(f) 
(Sec. 1420.403) when the following conditions are satisfied:
    (1) The duration of the occupancy must be temporary, i.e., less 
than the time needed for construction of the project, and there should 
be no change in ownership of the land;
    (2) Scope of the work must be minor, i.e., both the nature and the 
magnitude of the changes to the section 4(f) resource are minimal;

[[Page 33989]]

    (3) There are no anticipated permanent adverse physical impacts, 
nor will there be interference with the activities or purposes of the 
resource, on either a temporary or permanent basis;
    (4) The land being used must be fully restored, i.e., the resource 
must be returned to a condition which is at least as good as that which 
existed prior to the project; and
    (5) There must be documented agreement of the appropriate Federal, 
State, or local officials having jurisdiction over the resource 
regarding the above conditions.
    (c) A constructive use of section 4(f) land occurs when the 
transportation project does not incorporate land from the section 4(f) 
resource, but the impacts of the project on the resource due to its 
proximity are so severe that the activities, features, or attributes 
that qualify the resource for the protection of section 4(f) are 
substantially impaired. The U.S. DOT agencies have reviewed the 
following situations and have determined that constructive use occurs 
when:
    (1) The projected noise level increase attributable to the 
transportation project substantially interferes with the use and 
enjoyment of a noise-sensitive facility that is a resource protected by 
section 4(f), such as hearing the performances at a public outdoor 
amphitheater, sleeping in the sleeping area of a public campground, 
enjoyment of a historic site where a quiet setting is a generally 
recognized feature or attribute of the site's significance, or 
enjoyment of an urban park where serenity and quiet are significant 
attributes;
    (2) The proximity of the project to the section 4(f) resource 
substantially impairs aesthetic features or attributes of a resource 
protected by section 4(f), where such features or attributes make an 
important contribution to the value of the resource. For example, 
substantial impairment of visual or aesthetic qualities occurs where a 
transportation structure is located in such proximity that it obstructs 
or eliminates the primary views of an architecturally significant 
historical building, or substantially detracts from the setting of a 
park or historic site which derives its value in substantial part from 
its setting;
    (3) The project restricts access to the section 4(f) property and, 
as a result, substantially diminishes the utility of the resource;
    (4) The vibration impact from operation of the project 
substantially impairs the use of a section 4(f) resource, such as 
vibration levels from a rail project that are great enough to affect 
the structural integrity of a historic building or substantially 
diminish the utility of the building; or
    (5) The ecological intrusion of the project substantially 
diminishes the value of wildlife habitat in a wildlife or waterfowl 
refuge adjacent to the project or substantially interferes with the 
access to a wildlife or waterfowl refuge, when such access is necessary 
for established wildlife migration or critical life cycle processes.


Sec. 1430.109  Significance of the section 4(f) resource.

    (a) Consideration under section 4(f) is required when the Federal, 
State, or local officials having jurisdiction over a park, recreation 
area or refuge determine that the entire section 4(f) resource is 
significant. In the absence of such a determination, the section 4(f) 
land will be presumed to be significant, unless the U.S. DOT agency and 
the officials with jurisdiction have agreed, formally or informally, 
that the resource is not significant. The U.S. DOT agency will review 
the significance determination to assure its reasonableness.
    (b) Section 4(f) applies to all properties on or eligible for the 
National Register of Historic Places. The U.S. DOT agency, in 
cooperation with the applicant, will consult with the State Historic 
Preservation Officer (SHPO) and appropriate local officials to identify 
such historic sites. Section 4(f) applies only to historic sites on or 
eligible for the National Register unless the U.S. DOT agency 
determines that the application of section 4(f) to a historic site is 
otherwise appropriate.


Sec. 1430.111  Exceptions.

    (a) Consideration under section 4(f) is not required for any park 
road or parkway project developed in accordance with 23 U.S.C. 204.
    (b) Consideration under section 4(f) is not required for trail-
related projects funded through the Symms National Recreational Trails 
Act of 1991 (16 U.S.C. 1261).
    (c) Consideration under section 4(f) is not required for 
``transportation enhancement activities'' as defined in 23 U.S.C. 
101(a) and transit enhancements as defined in 49 U.S.C. 5302(a)(15) if:
    (1) The use of the section 4(f) property is solely for the purpose 
of preserving or enhancing the activities, features, or attributes that 
qualify the property for section 4(f) protection; and
    (2) The Federal, State, or local official having jurisdiction over 
the property agrees in writing that the use is solely for the purpose 
of preserving or enhancing the section 4(f) activities, features, or 
attributes of the property and will, in fact, accomplish this purpose.
    (d) Where Federal lands or other public land holdings (e.g., State 
forests) are administered under statutes permitting management for 
multiple uses and are, in fact, managed for multiple uses, section 4(f) 
applies only to those portions of such lands which function as 
significant public parks, recreation areas, or wildlife refuges, or 
which are designated in the plans of the administering agency as being 
for, significant park, recreation, or wildlife purposes or historic 
sites. The determination as to which lands so function or are so 
designated, and the significance of those lands, shall be made by the 
officials having jurisdiction over the lands. The determination of 
significance shall apply to the entire area of lands which so function 
or are so designated. The U.S. DOT agency will review these 
determinations to assure their reasonableness.
    (e) Consideration under section 4(f) is not required for the 
restoration, rehabilitation, or maintenance of transportation 
facilities that are on or eligible for the National Register when:
    (1) 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
    (2) The SHPO has been consulted and has not objected to the U.S. 
DOT agency finding in paragraph (e)(1) of this section.
    (f) Archeological sites.
    (1) Section 4(f) applies to all archeological sites on or eligible 
for inclusion in the National Register, including those discovered 
during construction except as set forth in paragraph (f)(2) of this 
section. When section 4(f) requirements apply to archeological sites 
discovered during construction, the section 4(f) process will be 
expedited. In such cases, the evaluation of feasible and prudent 
alternatives will take into account the level of investment already 
made in the project. The review process, including the consultation 
with other agencies, will be shortened as appropriate.
    (2) Section 4(f) requirements do not apply to archeological sites 
where the U.S. DOT agency, after consultation with the SHPO, determines 
that the archeological resource is important chiefly because of what 
can be learned by data recovery and has minimal value for preservation 
in place. This exception applies both to situations where data recovery 
is undertaken or where the U.S. DOT agency decides, with agreement of 
the SHPO, not to recover the data in the resource.

[[Page 33990]]

    (g) Designations of park and recreation lands, wildlife and 
waterfowl refuges, and historic sites are sometimes made, and 
determinations of significance changed, late in the development of a 
project. With the exception of the treatment of archeological resources 
in paragraph (f) of this section, the U.S. DOT agency may permit a 
project to proceed without consideration under section 4(f) if the 
property interest in the section 4(f) lands was acquired for 
transportation purposes prior to the designation or change in the 
determination of significance and if an adequate effort was made to 
identify properties protected by section 4(f) prior to acquisition.
    (h) Constructive use normally does not occur when:
    (1) Compliance with the requirements of section 106 of the National 
Historic Preservation Act and 36 CFR part 800 for proximity impacts of 
the proposed action, on a site listed on or eligible for the National 
Register of Historic Places results in an agreement of no adverse 
effect;
    (2) The projected traffic noise levels of a proposed nearby highway 
project do not exceed the FHWA noise abatement criteria given in Table 
1, 23 CFR part 772, or the projected operational noise levels of a 
proposed nearby transit project do not exceed the noise impact criteria 
in the FTA guidelines (Federal Transit Administration, Transit Noise 
and Vibration Impact Assessment, April 1995, available from the FTA 
offices);
    (3) The projected noise levels exceed the relevant threshold in 
paragraph (h)(2) of this section because of high existing noise, but 
the increase in the projected noise levels if the proposed project is 
constructed, when compared with the projected noise levels if the 
project is not built, is barely perceptible (3 dBA or less);
    (4) A proposed transportation project will have proximity impacts 
on a section 4(f) property, but a governmental agency's right-of-way 
acquisition, an applicant's adoption of project location, or the U.S. 
DOT agency approval of a final NEPA document established the location 
of the project before the designation, establishment, or change in the 
significance of the section 4(f) property. However, if the property in 
question is a historic site that would be eligible for the National 
Register except for its age at the time that the project location is 
established, and construction of the project would begin after the site 
became eligible, then constructive use of the historic site may occur 
and such use must be evaluated;
    (5) There are proximity impacts to a proposed public park, 
recreation area, or wildlife refuge, but the proposed transportation 
project and the resource are concurrently planned or developed. The 
following examples of such concurrent planning or development include, 
but are not limited to:
    (i) Designation or donation of property for the specific purpose of 
such concurrent development by the entity with jurisdiction or 
ownership of the property for both the potential transportation project 
and the section 4(f) resource; or
    (ii) Designation, donation, planning or development of property by 
two or more governmental agencies, with jurisdiction for the potential 
transportation project and the section 4(f) resource, in consultation 
with each other;
    (iii) Overall (combined) proximity impacts caused by a proposed 
project do not substantially impair the activities, features, or 
attributes that qualify a resource for protection under section 4(f);
    (iv) Proximity impacts will be mitigated to a condition equivalent 
to, or better than, that which would occur under a no-build scenario;
    (v) Change in accessibility will not substantially diminish the 
utilization of the section 4(f) resource; or
    (vi) Vibration levels from project construction activities are 
mitigated, through advance planning and monitoring of the activities, 
to levels that do not cause a substantial impairment of the section 
4(f) resource.


Sec. 1430.113  Section 4(f) evaluations and determinations under the 
NEPA umbrella.

    (a) Alternatives to avoid the use of section 4(f) properties and 
measures to minimize harm to such land shall be developed and evaluated 
by the applicant in cooperation with the U.S. DOT agency. Such 
evaluation shall be initiated early when alternatives are under study. 
An alternative that avoids section 4(f) property must be preferred 
unless the evaluation demonstrates that there are unique problems or 
unusual factors associated with it, or that the cost, the social, 
economic, or environmental impacts, or the community disruption 
resulting from such alternative reach extraordinary magnitudes.
    (b) In accordance with the concept of the NEPA umbrella in 23 CFR 
1420.109, the section 4(f) evaluation is normally presented in the 
draft environmental impact statement (EIS), the environmental 
assessment (EA), or the categorical exclusion (CE) documentation. The 
evaluation may incorporate relevant information from the planning 
process in accordance with Sec. 1430.119. A separate section 4(f) 
evaluation may be necessary as described in section Sec. 1430.115.
    (c) The section 4(f) evaluation shall be provided for coordination 
and comment to the officials having jurisdiction over the section 4(f) 
property and to the U.S. Department of the Interior, and as appropriate 
to the U.S. Department of Agriculture and the U.S. Department of 
Housing and Urban Development. A minimum of 45 days shall be 
established by the U.S. DOT agency for receipt of comments.
    (d) When adequate support exists for a section 4(f) determination, 
the discussion in the final EIS, the finding of no significant impact 
(FONSI), the CE documentation, or the separate section 4(f) evaluation 
shall specifically address the following:
    (1) The reasons why the alternatives to avoid a section 4(f) 
property are not feasible and prudent; and
    (2) All measures incorporated into the project that will be taken 
to minimize harm to the section 4(f) property.
    (e) The U.S. DOT agency is not required to determine that there is 
no constructive use. However, such a determination may be made at the 
discretion of the U.S. DOT agency. When a constructive use 
determination is made, it will be based, to the extent it reasonably 
can, upon the following:
    (1) Identification of the current activities, features, or 
attributes of a resource that qualify it for protection under section 
4(f) and which may be sensitive to proximity impacts;
    (2) An analysis of the proximity impacts of the proposed project on 
the section 4(f) resource. If any of the proximity impacts will be 
mitigated, only the net impact need be considered in this analysis. The 
analysis should also describe and consider the impacts which could 
reasonably be expected if the proposed project were not implemented, 
since such impacts should not be attributed to the proposed project; 
and
    (3) Consultation, on the above identification and analysis, with 
the Federal, State, or local officials having jurisdiction over the 
park, recreation area, refuge, or historic site.
    (f) For actions processed with an EIS, the U.S. DOT agency will 
make the section 4(f) determination either in its approval of the final 
EIS or in the record of decision (ROD). Where the section 4(f) approval 
is documented in the final EIS, the U.S. DOT agency will summarize the 
basis for its section 4(f) approval in the ROD. Actions requiring the 
use of section 4(f) property, and

[[Page 33991]]

proposed to be processed with a FONSI or classified as a CE, shall not 
proceed until the U.S. DOT agency has given notification of section 
4(f) approval. For these actions, any required section 4(f) approval 
will be documented in the FONSI, in the CE approval, if one is 
provided, or in a separate section 4(f) document.
    (g) The final section 4(f) evaluation will be reviewed for legal 
sufficiency.


Sec. 1430.115  Separate section 4(f) evaluations.

    (a) Circulation of a separate section 4(f) evaluation will be 
required when:
    (1) A proposed modification of the alignment or design would 
require the use of section 4(f) land after the CE, FONSI, draft EIS, or 
final EIS has been processed;
    (2) A proposed modification of the alignment, design, or measures 
to minimize harm after an original section 4(f) approval, would result 
in a substantial increase in the use of section 4(f) land or a 
substantial reduction in the measures to minimize harm included in the 
project;
    (3) The U.S. DOT agency determines, after processing the CE, FONSI, 
draft EIS, or final EIS that section 4(f) applies to a property; or
    (4) An agency whose actions are not subject to section 4(f) 
requirements is the lead agency for the NEPA process on an action that 
involves section 4(f) property and requires a U.S. DOT agency action.
    (b) If the U.S. DOT agency determines under paragraph (a) of this 
section or otherwise, that section 4(f) is applicable after the CE, 
FONSI, or ROD has been processed, the decision to prepare and circulate 
a section 4(f) evaluation will not necessarily require the preparation 
of a new or supplemental NEPA document. Where a separately circulated 
section 4(f) evaluation is prepared after the CE, FONSI, or ROD has 
been processed, such evaluation does not necessarily:
    (1) Prevent the granting of new approvals;
    (2) Require the withdrawal of previous approvals; or
    (3) Require the suspension of project activities for any activity 
not affected by the new section 4(f) evaluation.


Sec. 1430.117  Programmatic section 4(f) evaluations.

    The U.S. DOT agency, in consultation with the U.S. Department of 
the Interior and other agencies, as appropriate, may make a 
programmatic section 4(f) determination for a class of similar 
projects. Uses of section 4(f) land covered by a programmatic section 
4(f) evaluation shall be documented and coordinated as specified in the 
programmatic section 4(f) evaluation.


Sec. 1430.119  Linkage with transportation planning.

    (a) An analysis required by section 4(f) may involve different 
levels of detail where the section 4(f) involvement is addressed during 
the planning process or in a tiered EIS.
    (b) When a planning document or a first-tier EIS is intended to 
provide the basis for subsequent project development as provided in 
Sec. 1420.201 and 40 CFR 1502.20, the detailed information necessary to 
complete the section 4(f) evaluation may not be available at that stage 
in the development of the action. In such cases, an evaluation should 
be made of the potential impacts that a proposed action will have on 
section 4(f) land and whether those impacts could have a bearing on the 
decision to be made. A preliminary determination may be made at this 
time as to whether there are feasible and prudent locations or 
alternatives for the action to avoid the use of section 4(f) land. This 
preliminary determination shall consider all possible planning to 
minimize harm, to the extent that the level of detail at this stage 
allows. It is recognized that such planning at this stage will normally 
be limited to ensuring that opportunities to minimize harm at 
subsequent stages in the project development process have not been 
precluded by decisions made at this stage. This preliminary 
determination is then incorporated into official planning documents or 
the first-tier EIS.
    (c) A section 4(f) approval made when additional design details are 
available will include a determination that:
    (1) The preliminary section 4(f) determination made pursuant to 
paragraph (a) remains valid; and
    (2) The criteria of Sec. 1430.103 and Sec. 1430.113(a) have been 
met.


Sec. 1430.121  Definitions.

    The definitions contained in 23 CFR 1420.403, 23 U.S.C. 101(a), 49 
U.S.C. 5302, and 40 CFR part 1508 are applicable to this part.

Federal Transit Administration

  

49 CFR Chapter VI

    For the reasons set forth in the preamble, the Federal Transit 
Administration proposes to amend chapter VI of title 49, Code of 
Federal Regulations, as follows:
    3. Revise part 622 to read as follows:

PART 622--NEPA AND RELATED PROCEDURES FOR TRANSPORTATION 
DECISIONMAKING

Subpart A--Purpose, Policy, and Mandate

Sec.
622.101   Cross-reference to subpart A of 23 CFR part 1420.
Subpart B--Program and Project Streamlining
622.201   Cross-reference to subpart B of 23 CFR part 1420.
Subpart C--Process and Documentation Requirements
622.301   Cross-reference to subpart C of 23 CFR part 1420.
Subpart D--Definitions
622.401   Cross-reference to subpart D of 23 CFR part 1420.

    Authority: 23 U.S.C. 109, 128, 134 and 138; 42 U.S.C. 2000d-
2000d-4, 4321 et seq., and 7401 et seq.; 49 U.S.C. 303, 5301(e), 
5303, 5309, and 5324(b) and (c); 49 CFR 1.51.

Subpart A--Purpose, Policy, and Mandate


Sec. 622.101  Cross-reference to subpart A of 23 CFR part 1420.

    The regulations for complying with this subpart are set forth in 
subpart A of 23 CFR part 1420.

Subpart B--Program and Project Streamlining


Sec. 622.201  Cross-reference to subpart B of 23 CFR part 1420.

    The regulations for complying with this subpart are set forth in 
subpart B of 23 CFR part 1420.

Subpart C--Process and Documentation Requirements


Sec. 622.301  Cross-reference to subpart C of 23 CFR part 1420.

    The regulations for complying with this subpart are set forth in 
subpart C of 23 CFR part 1420.

Subpart D--Definitions


Sec. 622.401  Cross-reference to subpart D of 23 CFR part 1420.

    The regulations for complying with this subpart are set forth in 
subpart D of 23 CFR part 1420.
    4. Add a new part 623 to read as follows:

[[Page 33992]]

PART 623--PROTECTION OF PUBLIC PARKS, WILDLIFE AND WATERFOWL 
REFUGES, AND HISTORIC SITES

Sec.
623.101   Cross-reference to 23 CFR part 1430.

    Authority: 49 U.S.C. 303; 49 CFR 1.51.


Sec. 623.101  Cross-reference to 23 CFR part 1430.

    The regulations for complying with 49 U.S.C. 303 are set forth in 
23 CFR part 1430.

    Issued on: May 18, 2000.
Vincent F. Schimmoller,
Acting Executive Director, Federal Highway Administration.
Nuria I. Fernandez,
Acting Administrator, Federal Transit Administration.
[FR Doc. 00-13022 Filed 5-19-00; 1:15 pm]
BILLING CODE 4910-MR-P