[Federal Register Volume 67, Number 183 (Friday, September 20, 2002)]
[Proposed Rules]
[Pages 59225-59228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23698]



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: Withdrawal of proposed rulemaking and closing of public docket.


SUMMARY: This document withdraws a proposed rulemaking proceeding to 
update and revise our National Environmental Policy Act (NEPA) 
implementation regulation for projects funded or approved by the FHWA 
and the FTA. The agencies undertook this action to update and revise 
the NEPA and related procedures regulation which was last issued in 
1987. The agencies intended to modify the regulation to reflect 
experience gained in administering these requirements and substantial 
changes in legislation that occurred during the time since 1987. The 
agencies have determined that the proposed changes generated such a 
diversity and disparity of comments that substantial further work is 
necessary to develop new proposals that accommodate these comments. 
However, with the close proximity of legislative reauthorization of the 
surface transportation program, the agencies believe that it would be 
prudent to wait for the outcome of the legislative process to see what 
further changes are needed. Accordingly, we are withdrawing the 
proposed rulemaking action and closing the docket.

366-2058, Office of Planning and Environment, HEPE, or Mr. L. Harold 
Aikens, (202) 366-0791, Office of the Chief Counsel, HCC-40. For the 
FTA: Ms. Susan Borinsky (202) 366-8012, Office of Human and Natural 
Environment, TPL-30, or Mr. Scott Biehl, (202) 366-0952, Office of the 
Chief Counsel, TCC-30. Both agencies are located at 400 Seventh Street, 
SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 
p.m., e.t., Monday through Friday, except Federal holidays.


Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Docket Facility, Room PL-401, by using the 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 
computer, 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 web site at: http://www.access.gpo.gov.


    A notice of proposed rulemaking (NPRM) published at 65 FR 33960 on 
May 25, 2000, with an extension of comment period published at 65 FR 
41892 on July 7, 2000, proposed revising the current FHWA and FTA 
regulation on environmental impact and related procedures at 23 CFR 
part 771 by creating a new rule, NEPA and Related Procedures for 
Transportation Decisionmaking, 23 CFR part 1420, and by moving the 
regulations implementing Section 4(f) of the Department of 
Transportation Act of 1966, with minor revisions, to a new section 
entitled Protection of Public Parks, Wildlife and Waterfowl Refuges, 
and Historic Sites, 23 CFR part 1430. The current rules implementing 
the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) 
for transportation projects using Federal funds or requiring Federal 
approval were last revised in 1987.
    Since the regulation was last issued, the nature of highway and 
transit programs has evolved, reflecting a change in national 
transportation needs and our understanding of the influences that the 
transportation network can have on a complex set of environmental, 
community, and economic

[[Page 59226]]

considerations. Section 1309 of the Transportation Equity Act for the 
21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 108; June 1998) 
called for a streamlined environmental review process that affects how 
the FHWA and the FTA carry out procedural responsibilities under NEPA. 
Therefore, in the NPRM, the FHWA and the FTA endeavored to clarify the 
role of the NEPA as an important tool for making transportation 
decisions and encouraged a more coordinated approach to transportation 
planning and project development as a means to more effective decisions 
regarding investment choices and trade-offs.
    The environmental streamlining provision of the TEA-21, section 
1309, clearly articulated Congress' intent that project delivery be 
improved with an environmental process that was more efficient, 
comprehensive, and streamlined, through negotiated time frames for 
concurrent reviews and national procedures for elevating disputes. The 
NPRM addressed streamlining by proposing a better managed NEPA process 
that included improved coordination, program and project flexibility, 
and overall process efficiency. It underscored the FHWA and FTA role as 
the lead Federal agency for transportation project review under NEPA 
and as facilitator of early involvement and participation of other 
Federal agencies in NEPA activities to identify and avoid redundant 
processes. In the NPRM negotiated project level timeframes were 
    In response to section 1309 and Section 1308 (Major Investment 
Study Integration), of the TEA-21, the FHWA and the FTA promoted the 
integration of transportation decisionmaking in the NPRM, NEPA and 
Related Procedures for Transportation Decisionmaking, as well as in the 
NPRMs, Statewide Transportation Planning and Metropolitan 
Transportation Planning. The agencies published the NPRMs on statewide 
and metropolitan transportation planning on May 25, 2000, at 65 FR 
33922. The FHWA and FTA observed that traditionally separate and 
distinct implementation requirements under NEPA and statewide and 
metropolitan planning created unintentional impediments to streamlining 
project delivery. Therefore, parallel concepts that proposed a 
fundamentally new approach to project development through integration 
and coordination of the transportation planning and NEPA decisionmaking 
processes were reflected in the NEPA and planning NPRMs. The concept 
encouraged a strong environmental policy and a collaborative problem 
solving approach involving all levels of government and the public 
early in the process. The NPRM, NEPA and Related Procedures for 
Transportation Decisionmaking, focused on a streamlined environmental 
review process that supported protection and enhancement of communities 
and the natural environment.
    The U.S. DOT agencies are responsible for complying with of the 
requirements of 49 U.S.C. 303 and 23 U.S.C. 138, originally enacted as 
Section 4(f) of the Department of Transportation Act (Pub. L. 89-670, 
80 Stat. 931 (1966)). Part 1430 of the NPRM, Protection of Public 
Parks, Wildlife and Waterfowl Refuges, and Historic Sites, proposed to 
redesignate the FHWA and FTA section 4(f) regulations (23 CFR 771.135) 
without substantive change. The FHWA and FTA declared their intent to 
address subsequent changes at a later date and specifically requested 
recommendations for changes that might be considered in future 

Comments Received in Response to the NPRM

    The agencies received 237 comments on the NPRM from transportation 
related and other organizations; State Departments of Transportation; 
private engineering and consulting firms; metropolitan planning 
organizations; advocacy and non-profit organizations; Federal agencies; 
State, regional and local governments, authorities and associations; 
tribal governments; and individual citizens.
    Of these comments, 41 called for suspending the NPRM and 76 called 
for a comprehensive revision of the NPRM before proceeding. Another 
thirty-four commenters specifically suggested that the agencies include 
a major overhaul of the existing section 4(f) (23 CFR 771.135) 
regulations as part of this rulemaking. Major commenters included the 
American Association of State Highway and Transportation Officials 
(AASHTO), individual State DOTs (many of which supported or endorsed 
AASHTO's comments), the Association of Metropolitan Planning 
Organizations (AMPO), the American Public Transportation Association 
(APTA), the Environmental Defense Fund (EDF), the Surface 
Transportation Policy Project (STPP), the Coalition to Defend NEPA 
(CDN), the Natural Resources Defense Council (NRDC), the American Road 
and Transportation Builders Association (ARTBA), the Association of 
General Contractors (AGC), and the American Consulting Engineers 
Council (ACEC).
    The most significant and controversial issues were identified in 
the following sections: Applicability (Sec.  1420.105); goals of the 
NEPA process (Sec.  1420.107); the NEPA umbrella (Sec.  1420.109); 
environmental justice (Sec.  1420.111); avoidance, minimization, 
mitigation, and enhancement responsibilities (Sec.  1420.113); the 
relationship of the planning and project development processes (Sec.  
1420.201); environmental streamlining (Sec.  1420.203); categorical 
exclusions (Sec.  1420.311); and section 4(f) (Sec.  1430).
    A number of commenters expressed concern about how and when the 
regulations would take effect and requested a reasonable transition 
period and/or a ``grandfather'' clause for projects that were already 

Section 1420.107 Goals of the NEPA Process

    Some commenters were critical of the agencies' attempt to restate 
the philosophy and the basic intent of the policy underlying the NEPA 
by specifying seven distinct goals of the NEPA process, which included 
the following: environmental ethic, environmental justice, integrated 
decisionmaking; environmental streamlining; collaboration; 
transportation problem solving; and financial stewardship. Many of the 
commenters expressed concern over the statement that the U.S. DOT would 
manage the NEPA process to ``maximize the attainment'' of these goals. 
It was the opinion of some commenters that this section would permit a 
substantive, rather than procedural, interpretation of the NEPA process 
and could lead to additional litigation.

Section 1420.109 The NEPA Umbrella

    Whereas the FHWA and FTA intended the discussion under this section 
to serve as a reminder of the full range of possible environmental 
considerations under NEPA, State DOTs, the AASHTO and some consulting 
firms expressed concern that the itemization of the NEPA ``umbrella'' 
considerations by the inclusion of a list of laws, regulations, and 
executive orders, could lead to a substantive rather than procedural, 
interpretation of the NEPA process and could pose an additional risk of 
litigation. However, there was general agreement of the basic NEPA 
umbrella concept and approach. Some Federal agencies and individual 
citizens provided suggestions for other considerations that they 
believe should be added to the list.

[[Page 59227]]

Section 1420.111 Environmental Justice

    The inclusion of environmental justice analysis requirements in the 
NEPA regulation was a provision of the NPRM that received the most 
comments. A major concern stated by some State DOTs and others was that 
the regulation confused and ``intermingled'' the separate 
considerations and requirements of Title VI of the Civil Rights Act of 
1964 (42 U.S.C. 2000d-2000d-4) and the provisions of the Executive 
Order 12898, Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations. While it was 
recognized that these were important considerations, it was suggested 
that they be treated separately. Several State DOTs expressed their 
opinions that the statement of environmental justice objectives as an 
integral part of the NEPA process was inappropriate. They were 
concerned that this would add the additional burden for data analysis 
and the necessity to reach a conclusion on disproportionate impacts.
    Some commenters expressed the concern that the inclusion of 
environmental justice requirements within the NEPA regulations would 
pose a greater risk of litigation and suggested replacing the entire 
section with a non-discrimination commitment. Advocacy and some special 
interest groups expressed their support of the environmental justice 
provisions that essentially served to clarify the project-level 
considerations required to meet Title VI provisions during the NEPA 

Section 1420.113 Avoidance, Minimization, Mitigation, and Enhancement

    Most of the comments received on this section from State DOTs and 
the AASHTO expressed the opinion that environmental ``enhancements'' 
should be optional and at the discretion of the State applicant to 
consider or implement. They believed that this language should be 
removed from the proposed regulation. Some individual citizens called 
for the U.S. DOT to do more to assure that the health effects of road 
expansions are accounted for, mitigated, and avoided during the NEPA 
process. They encouraged the strengthening of provisions regarding the 
dismissal of alternatives that would reduce health risks.

Section 1420.113 Relationship of Planning and Project Development 

    Most commenters supported the elimination of duplicative paperwork 
and the linkage of transportation planning and the NEPA processes but 
expressed doubts whether the regulations, as proposed, would actually 
accomplish these goals, especially if the NEPA process was not formally 
bound by planning-level decisions. It was generally recognized that the 
planning and NEPA linkage provisions of this section were an attempt to 
integrate the major investment study (MIS) objectives into the planning 
and NEPA processes as required by the TEA-21, section 1308. However, 
concern was expressed that the mechanisms employed would have the 
effect of extending MIS-type requirements to a larger community of 
projects, thus increasing the paperwork burden without eliminating 
duplicative processes in planning and the NEPA project development 

Section 1420.203 Environmental Streamlining

    A common sentiment, especially of the AASHTO and the State DOTs, 
was that the NPRM failed to streamline the environmental process.
    Several commenters viewed the proposed NPRM as a missed opportunity 
to address the intent of the TEA-21 and actually represented an 
increased burden of paperwork, process requirements, and potential 
additional litigation.
    Many comments noted a lack of specific provisions addressing 
timeframes, comment deadlines, dispute resolution, and ``closing the 
record'' on decisionmaking at an appropriate stage.
    The NPRM was criticized for addressing large and small projects in 
very much the same way and, in terms of requirements, many commenters 
thought the proposed changes would result in the delay of some routine 
minor actions processed with environmental assessments or categorical 
    The proposed coordinated review procedures were criticized for 
being too complex and time consuming. Some commenters suggested that we 
should seek the comments of other Federal and State agencies, rather 
than their ``concurrence'' on project decisions.

Section 1420.311 Categorical Exclusions (CEs)

    Some commenters were concerned over the scope and number of the 
categorical exclusions (CEs), while others thought the list was not 
exhaustive or inclusive enough.
    Some commenters requested that the rule provide clarification of 
the fact that CEs were subject to environmental mandates and 
evaluation, while others requested the removal of any documentation 
requirements that would slow down the CE determination process.
    Although not a part of the CE section, it was suggested that the 
provisions of Sec.  1420.105(b) that proposed to establish the set of 
criteria for transportation alternatives (logical termini, independent 
utility, and restriction on the consideration of alternatives for other 
reasonably foreseeable transportation activities) were inappropriate 
for CE actions and would have the effect of requiring an alternatives 
analysis for a CE action, where it was previously not required.

Part 1430, Section 4(f) Provision

    Thirty-four of the fifty-seven comments complained about the lack 
of substantive revision of 23 CFR 771.135 and requested a comprehensive 
overhaul of the section 4(f) regulations in this NPRM. There was a 
general sentiment regarding section 4(f) that a major reform was 
necessary to reduce the risk of litigation, reduce paperwork and cost, 
and increase the time it takes to deliver projects where section 4(f) 
is an issue.


    We considered the comments to the docket and determined that we 
were unable to develop a satisfactory final rule based on the proposed 
rule that would respond to the diversity and disparity of comments 
received. We also determined that issuing a supplemental notice of 
proposed rulemaking would not be reasonable, given the close proximity 
of legislation to reauthorize the surface transportation program and 
the likelihood that this legislation would necessitate further 
regulatory changes. Instead of rulemaking at this time, we propose to 
continue implementing statutory responsibilities not reflected in the 
existing regulation through a combination of non-regulatory guidance 
and sharing of best practices. The existing regulation (23 CFR part 
771) remains in effect. We will revisit the issue of whether rulemaking 
to change the existing regulation is necessary or appropriate following 
the reauthorization of the surface transportation program.


    For the reasons stated above, the agencies are terminating this 
proposed rulemaking and closing the docket.

[[Page 59228]]

    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, Sections 1308 and 1309 of 
TEA-21 (Public Law 105-178, 112 Stat. 108 at 231-234).

    Issued on: September 12, 2002.
Jennifer L. Dorn,
Federal Transit Administrator.
Mary E. Peters,
Federal Highway Administrator.
[FR Doc. 02-23698 Filed 9-19-02; 8:45 am]