[Federal Register Volume 77, Number 51 (Thursday, March 15, 2012)]
[Proposed Rules]
[Pages 15310-15319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6327]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
Federal Highway Administration
23 CFR Part 771
[Docket No. FTA-2011-0056]
RIN 2132-AB03
Environmental Impact and Related Procedures
AGENCY: Federal Transit Administration (FTA), Federal Highway
Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This notice of proposed rulemaking (NPRM) provides interested
parties with the opportunity to comment on proposed changes to the
joint Federal Transit Administration (FTA) and Federal Highway
Administration (FHWA) regulations that implement the National
Environmental Policy Act (NEPA). The proposed revisions would affect
actions by FTA and project sponsors. The proposed revisions are
intended to streamline the FTA environmental process for transit
projects in response to the Presidential Memorandum on the subject
``Speeding Infrastructure Development through More Efficient and
Effective Permitting and Environmental Review'' of August 31, 2011. The
proposed categorical exclusions (CEs) would apply to FTA and improve
the efficiency of the NEPA environmental reviews by making available
the least intensive form of review for those actions that typically do
not have the potential for significant environmental effects and
therefore do not merit additional analysis and documentation associated
with an Environmental Assessment or an Environmental Impact Statement.
FTA and the FHWA invite comments on the proposals contained in this
notice.
DATES: Comments must be received by May 14, 2012.
ADDRESSES: You may submit comments identified by the docket number
(FTA-2011-0056) by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting comments.
U.S. Mail: U.S. Department of Transportation, Docket Operations,
West Building, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC
20590.
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Fax: (202) 493-2251.
Instructions: You must include the agency name (Federal Transit
Administration) and docket number (FTA-2011-0056) or Regulatory
Identification Number (RIN 2132-AB03) for this rulemaking at the
beginning of your comments. All comments received will be posted,
without change and including any personal information provided, to
http://www.regulations.gov, where they will be available to Internet
users. Please see the discussion of the Privacy Act below.
You should submit two copies of your comments if you submit them by
mail. If you wish to receive confirmation that FTA received your
comments, you must include a self-addressed, stamped postcard. Due to
security procedures in effect since October 2001 regarding mail
deliveries, mail received through the U.S. Postal Service may be
subject to delays. Parties submitting comments may wish to consider
using an express mail firm to ensure the prompt filing of any
submissions not filed electronically or by hand. For access to the
docket to read background documents or comments received, go to http://www.regulations.gov and follow the online instructions for viewing the
docket or visit Docket Operations at the address above.
FOR FURTHER INFORMATION CONTACT: Antoinette Quagliata at (202) 366-4265
or Megan Blum at (202) 366-0463, Office of Planning and Environment
(TPE), or Christopher Van Wyk at (202) 366-1733, or Scott Biehl at
(202) 366-4011, Office of Chief Counsel (TCC), Federal Transit
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590.
[[Page 15311]]
SUPPLEMENTARY INFORMATION:
Background
This Notice of Proposed Rulemaking (NPRM) proposes a number of
revisions to the procedures that govern how the Federal Transit
Administration (FTA) complies with the National Environmental Policy
Act (NEPA). The regulation proposed for revision, Part 771 of Title 23,
Code of Federal Regulations (CFR), is a joint FTA and Federal Highway
Administration (FHWA) regulation, but nearly all of the proposed
revisions are written such that they would apply to actions by FTA. The
proposed revisions that change FHWA's NEPA implementing regulations are
a minor, non-substantive, revision to a footnote discussing
supplementary guidance and two spelling corrections. The remaining
proposed revisions, including ten proposed categorical exclusions
(CEs), apply to FTA.
FTA's primary goal in developing this NPRM has been streamlining
the environmental process, without any loss of its environmental value.
In a Presidential Memorandum on the subject, ``Speeding Infrastructure
Development through More Efficient and Effective Permitting and
Environmental Review'' issued August 31, 2011, President Obama
challenged the heads of Federal agencies to ``take steps to expedite
permitting and review, through such strategies as integrating planning
and environmental reviews; coordinating multi-agency or multi-
governmental reviews and approvals to run concurrently; setting clear
schedules for completing steps in the environmental review and
permitting process; and utilizing information technologies to inform
the public about the progress of environmental reviews as well as the
progress of Federal permitting and review processes.'' This proposal is
consistent with that direction, and also consistent with Executive
Order 13571 issued on April 27, 2011, titled ``Streamlining Service
Delivery and Improving Customer Service,'' through which President
Obama challenged Federal agencies to develop and implement plans for,
among other actions: ``improving the customer experience by adopting
proven customer service best practices and coordinating across service
channels (such as online, phone, in-person, and mail service);''
``streamlining agency procedures to reduce costs and accelerate
delivery, while reducing the need for customer calls and inquiries;''
and ``identifying ways to use innovative technologies to accomplish the
customer service activities above, thereby lowering costs, decreasing
service delivery times, and improving the customer experience.'' The
general public, especially anyone affected or served by a transit
project, is a primary ``customer'' served by FTA's environmental
process. FTA therefore proposes to maximize the use of the Internet, in
accordance with the President's Order, to deliver to the public
expeditiously and efficiently the customer service provided by the NEPA
documents and other environmental documents prepared by FTA.
Recognizing that not every customer has access to the Internet, FTA
will continue to use other means, consistent with the President's
Executive Order, of providing public access to FTA's environmental
documents.
In addition to the recent Presidential direction noted above, the
Council on Environmental Quality's regulations for implementing the
provisions of NEPA direct agencies to ``review their policies,
procedures, and regulations * * * and revise them as necessary to
insure full compliance with the purposes and provisions of the Act''
(40 CFR 1500.6). FTA's shared environmental procedures were last
modified in 2009 with very minor revisions to comply with certain
provisions of the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU), but the procedures have
not undergone a complete retrospective analysis by FTA since their
creation in 1987. An NPRM proposing major revisions to this regulation
was published on May 25, 2000, but was never finalized.
FTA recognizes that the use of CEs, whenever appropriate, is an
easy and effective way to streamline the environmental process.
However, it has been more than 10 years since FTA comprehensively
considered the CEs listed in the environmental procedures that apply to
transit and more than 20 years since changes to the CEs were made as a
result of a comprehensive review. For this reason, FTA has now embarked
on an initiative to update the CEs for particular types of proposed
transit projects and other FTA proposed actions. The current CEs listed
in paragraphs (c) and (d) of 23 CFR 771.117 are proposed to be FHWA
CEs. FTA proposes to create a new section 771.118(c), the new list of
FTA CEs being proposed as part of this rulemaking action, which would
apply to FTA actions. The list of new CEs to be located in section
771.118(c) is intended to cover the actions that previously applied to
FTA in section 771.117(c), though expanded for purposes of
streamlining. If the new CEs are finalized, FTA expects to publish
guidance to show how the list of CEs in section 771.117(c), which
currently apply to FTA, is subsumed for FTA purposes by the new list at
section 771.118(c). Consistent with past practice, FTA is proposing to
continue to allow the categorical exclusion of other actions through
documentation with language proposed for section 771.118(d), which
mirrors the existing 23 CFR 771.117(d). FTA is proposing to delete,
however, some items in the list of illustrative examples in section
771.117(d) from the new list in section 771.118(d) as they are
duplicative of the new CEs being proposed for FTA in section
771.118(c).
According to the CEQ regulations (40 CFR Sec. 1508.4), CEs are
defined as ``a category of actions which do not individually or
cumulatively have a significant effect on the human environment and
which have been found to have no such effect in procedures adopted by a
Federal agency in implementation of these regulations * * * and for
which, therefore, neither an environmental assessment nor an
environmental impact statement is required.'' CEQ guidance on
establishing CEs, issued in November 2010, reiterates CEQ's
encouragement to Federal agencies to characterize the types of CE
actions through broadly defined criteria, including clearly defined
eligible categories and constraints, followed by examples. Accordingly,
the CEs that FTA is proposing today are organized into ten defined
categories of actions each accompanied by examples representing the
types of FTA activities that fall within each category. The examples
included are representative of the types of activities that fit within
the defined criteria of the CE; they are not intended to limit the CE
or to broaden it beyond those activities that do not typically, either
individually or cumulatively, cause significant environmental effects.
The proposed CEs have been substantiated with supporting
documentation, which includes, but is not limited to, comparative
benchmarking and expert opinion. The supporting documentation includes
FTA Findings of No Significant Impact (FONSI) for projects that fall
within the ten broad categories. Comparative benchmarking provides
support to the revised CEs by using the experience of other Federal
agencies that conduct actions of similar nature, scope, and intensity.
Additionally, FTA convened an expert panel to review and evaluate each
of the revised CEs with respect to concept, applicability, and
potential environmental effects. Information describing the basis for
the CEs
[[Page 15312]]
determinations (i.e., the substantiation package) and information
concerning the members of the expert panel, and their NEPA-related
experience, can be found on the FTA Web site (http://fta.dot.gov/about/12347.html) and in the docket for this NPRM in Regulations.gov as
described above.
FTA examined data for the FONSIs used to substantiate the CEs
proposed for FTA use (23 CFR 771.118). Based on a snapshot of available
2008 and 2009 data, the average amount of time from Environmental
Assessment (EA) initiation to FONSI signature was approximately 16.3
months. As this estimate is based on a constrained sample (ranging from
facility improvements to streetcar and Bus Rapid Transit (BRT)
implementation), FTA will track current and future projects in order to
provide a more accurate assessment in the future. Currently, FTA
anticipates an 85 percent time savings for future projects of similar
scope to those found in the substantiation package under the proposed
categorically excluded projects at 23 CFR 771.118.
This rulemaking action stems in part from the U.S. Department of
Transportation's ``Retrospective Review and Analysis of Existing
Rules'' in response to Executive Order 13563. Information on that
process can be obtained either on DOT's Web site at http://regs.dot.gov/RetrospectiveReview.htm or at Regulations.gov under docket
number DOT-OST-2011-0025.
What This NPRM Contains
The following section of this preamble includes a ``Section-by-
Section Analysis'' of the revisions to the regulatory text proposed by
this action. These explanations will aid the reader in understanding
the reason behind each proposed regulatory change.
Following the Section-by-Section Analysis is the ``Regulatory
Analysis and Notices'' section of the NPRM, which includes descriptions
of the requirements that apply to the rulemaking process and
information on how this rulemaking effort fits within those
requirements.
The NPRM concludes with the actual proposed revisions to the
regulatory text in the amendatory language required by the Office of
the Federal Register. This language, if finalized, would modify the
procedures that govern FTA's compliance with NEPA. FTA seeks public
comment on the proposed regulatory revisions.
Section-by-Section Analysis
Section 771.105 Policy
A minor, non-substantive revision is proposed for the footnote to
paragraph (a) to recognize the fact that both FTA and FHWA frequently
update guidance relevant to the preparation of environmental documents.
Thus, the phrase ``but is not limited to'' is proposed for addition to
clarify this point, such that the introduction to supplementary
guidance would read: ``FHWA and FTA have supplementary guidance on
environmental documents and procedures for their programs. This
guidance includes, but is not limited to * * *.'' In addition, the
spelling of the word ``Web sites'' is proposed to be changed to ``Web
sites.''
Section 771.109 Applicability and Responsibilities
One minor, non-substantive revision is proposed for this section:
To correct the spelling of the word ``construction.''
Section 771.111 Early Coordination, Public Involvement, and Project
Development
The revised procedures in paragraph (i) are proposed to provide FTA
grant applicants with flexibility and efficiency in the public
participation aspect of the environmental process. Paragraph (i)(1)
would clarify that applicants may announce project milestones using
either electronic or paper media. Currently, the use of electronic
means is already practiced by some transit applicants, but FTA would
note the option for all transit applicants. It is FTA's experience that
providing various means for seeking public input in the environmental
process, such as increasing the use of Web sites, adds value and
flexibility that broadens public access and input and, thereby,
ultimately expedites project review.
Paragraph (i)(2) formally presents the option of doing ``early
scoping,'' which can be used to link the metropolitan and statewide
transportation planning process mandated by 49 U.S.C. 5303-5304 with
the NEPA process to provide a seamless transition from transportation
planning to project-specific environmental evaluation. Major capital
investments by FTA on fixed guideway transit projects under 49 U.S.C.
5309 (``New Starts'') have specific planning requirements that do not
apply to FHWA programs nor to other FTA programs. Early scoping
provides a logical connection between the planning-level alternatives
analysis currently required by 49 U.S.C. 5309 and the environmental
evaluation of alternatives required by NEPA. Early scoping produces a
specific proposed action to be studied during the NEPA environmental
process, and the process could also prove useful in providing a link
between the planning and NEPA processes for projects not funded under
the New Starts program. Steps for following the early scoping process
are included in the proposed paragraph (i)(2).
To increase the public transparency of FTA environmental documents,
the proposed paragraph (i)(3) encourages posting and distributing
environmental process-related materials through publicly-accessible
electronic means, including project Web sites.
FTA proposes through a new paragraph, (i)(4), to encourage the
posting of all environmental impact statements (EIS) (draft and final)
and environmental records of decision on a transit grant applicant's
project Web site and maintaining it there until the project is
constructed and operating. Additionally, the Environmental Protection
Agency (EPA) is developing an electronic filing system for EIS
documents, which will also allow for posting of EISs on the EPA Web
site. FTA will provide a link on its Web site to direct the public to
EPA's comprehensive EIS database. This NPRM would not change the
current rules for distribution of hard copies of FTA environmental
documents upon request, and the placement of such documents in public
libraries and local government buildings within the project area.
Section 771.113 Timing of Administrative Activities
The proposal of a new section 771.118 for FTA CEs and the
designation of the current section 771.117 for FHWA CEs require updates
to existing references to 771.117. As such, paragraph (d)(1) is
proposed to be revised to clarify that the reference to 771.117(d)(12)
applies to FHWA and to add a reference to the newly proposed sections
771.118(c)(6) and (d)(3) that apply to FTA. Paragraph (d)(2) is
proposed to be revised to change the current reference from
771.117(d)(13) to 771.118 (d)(4), as the paragraph refers to a transit
action.
Section 771.115 Classes of Actions
Paragraph (a)(3) is proposed to be revised to clarify that the
construction or extension of a fixed-guideway transit facility not
located within an existing transportation right-of-way normally
requires the preparation of an environmental impact statement. In
addition, Bus Rapid Transit (BRT), as defined in the National Transit
Database--Glossary was added to the
[[Page 15313]]
list of examples of such transit facilities. The current regulation,
which this NPRM proposes to revise, could be interpreted to include a
proposed transit project that would be located within an existing
transportation right-of-way as an activity typically requiring an
environmental impact statement. FTA is proposing to amend the current
regulation because it has been the agency's experience that most
transportation projects constructed within an existing transportation
right-of-way do not have significant impacts on the environment; thus,
they do not necessitate the preparation of an environmental impact
statement. In fact, as noted in the analysis of section 771.118 below,
certain transit facilities qualify for a CE when constructed
predominantly within a transportation right-of-way. In any instance
where potential unusual circumstances would cause such a project not to
qualify for a CE, it would be reviewed with an EA or, if significant
impacts are expected, an EIS.
Paragraph (b) is proposed to be revised to clarify that in the
explanation of the list of CEs not normally requiring documentation,
the reference to 771.117(c) applies to FHWA CEs and to add in a new
reference, 771.118(c), to the location of the FTA CEs. Further, the
explanation of CEs that require documentation is proposed to be revised
to clarify that the reference to 771.117(d) applies to the FHWA CEs and
to add in a new reference to 771.118(d) for the FTA CEs.
Section 771.117 FHWA Categorical Exclusions
The header for section 771.117, is proposed to be changed to ``FHWA
categorical exclusions,'' because the CEs listed in section 771.117
would apply to FHWA actions. Conforming amendments to clarify that the
list applies to FHWA are proposed that change ``the Administration'' to
``the FHWA'' in paragraphs (b), (c), and (d).
Section 771.118 FTA Categorical Exclusions
A new section, 771.118, is proposed to be added to 23 CFR that
contains CEs applicable to FTA actions. The section will contain a
paragraph (a) that describes and defines CE actions; a paragraph (b)
that defines unusual circumstances; and a paragraph (e) that addresses
the consideration for adding new CEs in the future. These three
paragraphs mimic existing paragraphs (a), (b) and (e) at section
771.117. A new paragraph (c) will be added that describes the proposed
FTA CEs. The section will also include a paragraph (d), which mimics
the existing paragraph (d) at section 771.117, except in that it lists
fewer examples in light of the separate lists and the more expansive
list proposed for section 771.118(c), focusing on those most applicable
to FTA. The CEs listed in paragraphs (c) and (d) of section 771.117
still may apply to multimodal projects that contain FHWA and FTA
elements (such as the reconstruction of a highway lane within existing
right-of-way with express bus service). FTA will issue guidance
regarding the use of the new CEs for transit projects upon finalization
of the FTA list at section 771.118(c).
Per CEQ guidance, the CEs are presented as general categories that
include appropriate limitations and provide an informative list of
examples. The CEs proposed in this NPRM are listed below along with a
summary of how each was substantiated. A summary of the substantiations
are available on the FTA Web site (http://fta.dot.gov/about/12347.html)
and in the NPRM docket on Regulations.gov. The proposed CEs in
paragraph (c) are:
``(1) Acquisition, installation, operation, evaluation, and
improvement of discrete utilities and similar appurtenances (existing
and new) within or adjacent to existing transportation right-of-way,
such as: Utility poles; underground wiring, cables, and information
systems; and power substations and transfer stations.'' This proposed
CE, which would focus on discrete installation and improvements of
utilities, would expand upon the current CE at 23 CFR 771.117(c)(2)
(``Approval of utility installations along or across a transportation
facility''). The additional activities (i.e., acquisition, operation,
evaluation, and improvement) are consistent with other activities
categorically excluded under the current FTA procedures and are
supported by at least eight FTA FONSIs and in the established CEs of
seven other federal agencies that conduct actions of a similar nature,
scope, and intensity. FTA considered whether to propose a geographic
limit on utility-related activity, but, based on the substantiating
record for this CE, proposes that no such limit be included. FTA
specifically seeks comment on this proposal. FTA also requests that
commenters include evidence and demonstrate experience with the
activity when possible.
``(2) Acquisition, construction, rehabilitation, and improvement or
limited expansion of stand-alone recreation, pedestrian, or bicycle
facilities, such as: A multiuse pathway, lane, trail, or pedestrian
bridge; and transit plaza amenities.'' This CE, which would focus on
the construction and improvements related to recreation, pedestrian or
bicycle facilities, would expand upon the current CE at 23 CFR
771.117(c)(3) (``Construction of bicycle and pedestrian lanes, paths,
and facilities''). The additional activities (i.e., acquisition,
rehabilitation, improvement, and limited expansion) are within the
realm of construction and, therefore, consistent with the current CE.
The rationale for the proposed CE is supported by at least five FTA
FONSIs and in the established CEs of three federal agencies that
conduct actions of a similar nature, scope, and intensity. FTA
considered whether to propose physical limitations on the activities
included in this CE, such as restricting relevant activities to those
within or adjacent to a transportation right-of-way or restricting by
the scale of the activities, but, based on the substantiating record
for this CE, proposes not to include such limitations. FTA specifically
invites comments on this proposal in addition to general comments on
the proposed CE. FTA also requests that commenters include evidence and
demonstrate experience with the activity when possible.
``(3) Limited activities designed to mitigate environmental harm
that cause no harm themselves or to maintain and enhance environmental
quality and site aesthetics, and employ construction best management
practices, such as: Noise mitigation activities; rehabilitation of
public transportation buildings, structures, or facilities including
those that are listed or eligible for listing on the National Register
of Historic Places when there are no adverse effects under the National
Historic Preservation Act; retrofitting for energy conservation; and
landscaping or re-vegetation.'' This CE, which would focus on
activities designed to lessen harm to or enhance environmental quality,
would consolidate and expand upon the current CE at 23 CFR
771.117(c)(6) (``The installation of noise barriers or alterations to
existing publicly owned buildings to provide for noise reduction'') and
(c)(7) (``Landscaping''). Expansion of activities within this category
(i.e., those designed to lessen environmental harm and enhance and
maintain the natural environment) is consistent with other activities
categorically excluded under current procedures, and is supported in
fact by at least nine FTA FONSIs, and in the established CEs of five
federal agencies that conduct actions of a similar nature, scope, and
intensity.
``(4) Planning and administrative activities which do not involve
or lead
[[Page 15314]]
directly to construction, such as: Training and research; promulgation
of rules, regulations, directives, or program guidance; approval of
project concepts; and engineering.'' This CE, which would include a
variety of internal administrative activities that inherently have no
potential for significant environmental impacts, would expand modestly
on the current CEs at 23 CFR 771.117(c)(1) (``Activities which do not
involve or lead directly to construction, such as planning and
technical studies; grants for training and research programs, research
activities as defined in 23 U.S.C. 307; approval of a unified work
program and any finding required in the planning process pursuant to 23
U.S.C. 134; approval of statewide programs under 23 CFR part 630;
approval of project concepts under 23 CFR part 476, engineering to
define the elements of a proposed action or alternative so that social,
economic, and environmental effects can be assessed; and Federal-aid
system revisions which establish classes of highways on the Federal-aid
highway system''); 23 CFR 771.117(c)(16) (``Program administration,
technical assistance activities, and operating assistance to transit
authorities to continue existing service or increase service to meet
routine changes in demand''); and 23 CFR 771.117(c)(20) (``Promulgation
of rules, regulations, and directives''). The proposed category
identifies additional activities that are consistent with the
established CEs of nine Federal agencies that conduct actions of a
similar nature, scope, and intensity.
``(5) Discrete activities, including repairs, designed to promote
transportation safety, security, accessibility and effective
communication within or adjacent to existing right-of-way, such as: The
deployment of Intelligent Transportation Systems and components;
installation and improvement of safety and communications equipment,
including hazard elimination and mitigation measures; and retrofitting
existing transportation vehicles, facilities or structures.'' This CE,
which would focus on discrete equipment, amenities, fittings, and
improvements designed principally to secure passenger and pedestrian
safety and convenience, would consolidate and expand slightly upon the
current CEs at 23 CFR 771.117(c)(8) (``Installation of fencing, signs,
pavement markings, small passenger shelters, traffic signals, and
railroad warning devices where no substantial land acquisition or
traffic disruption will occur''); at 23 CFR 771.117(c)(15)
(``Alterations to facilities or vehicles in order to make them
accessible for elderly and handicapped persons''); and at 23 CFR
771.117(c)(21) (``Deployment of electronics, photonics, communications,
or information processing used singly or in combination, or as
components of a fully integrated system, to improve the efficiency or
safety of a surface transportation system or to enhance security or
passenger convenience. Examples include, but are not limited to,
traffic control and detector devices, lane management systems,
electronic payment equipment, automatic vehicle locaters, automated
passenger counters, computer-aided dispatching systems, radio
communications systems, dynamic message signs, and security equipment
including surveillance and detection cameras on roadways and in transit
facilities and on buses''). Expansion of activities within this
category (i.e., installation and improvement of safety and
communications equipment) is consistent with other activities
categorically excluded under the current procedures, and it is
supported with at least four FTA FONSIs and in the established CEs of
seven federal agencies that conduct actions of a similar nature, scope,
and intensity.
``(6) Acquisition or transfer of an interest in real property that
is not within or adjacent to recognized environmentally sensitive areas
(e.g., wetlands, non-urban parks, wildlife management areas) and does
not result in a substantial change in the functional use of the
property or in substantial displacements, such as scenic easements and
historic sites for the purpose of preserving the site. This CE extends
only to acquisitions that will not limit the evaluation of
alternatives.'' The actions contemplated in this proposed CE have no
potential for significant environmental impacts, as the scope is
limited to potential acquisitions and transfers that avoid real
property within or adjacent to environmentally sensitive areas to
ensure the subsequent use of the property would avoid the potential to
cause harm to the human environment, and avoid a substantial change in
the functional use of the property as a change in use could pose
potential impacts. This CE would expand on the current CEs at 23 CFR
771.117(c)(10) (``Acquisition of scenic easements''); 23 CFR
771.117(d)(12) (``Acquisition of land for hardship or protective
purposes. Hardship and protective buying will be permitted only for a
particular parcel or a limited number of parcels. These types of land
acquisition qualify for a CE only where the acquisition will not limit
the evaluation of alternatives, including shifts in alignment for
planned construction projects, which may be required in the NEPA
process. No project development on such land may proceed until the NEPA
process has been completed''); and at 23 CFR 771.117(d)(13)
(``Acquisition of pre-existing railroad right-of-way pursuant to 49
U.S.C. 5324(c). No project development on the acquired railroad right-
of-way may proceed until the NEPA process for such project development,
including the consideration of alternatives, has been completed'').
Expansion of activities within this category including the acquisition
activity, and identifying additional examples is consistent with other
activities categorically excluded under the current procedures that are
supported by at least five FTA FONSIs, and in the established CEs of
seven federal agencies that conduct actions of a similar nature, scope,
and intensity.
``(7) Acquisition, rehabilitation and maintenance of vehicles or
equipment, within or accommodated by existing facilities, that does not
result in a change in functional use of the facilities, such as:
Equipment to be located within existing facilities and with no
substantial off-site impacts; and vehicles, including buses, rail cars,
trolley cars, ferry boats, and people movers that can be accommodated
by existing facilities or by new facilities that qualify for
categorical exclusion.'' This CE, which would focus on acquisition and
maintenance of public transportation vehicles and maintenance equipment
to ensure passenger and pedestrian safety and to improve operations
while not creating significant off-site impacts, would consolidate and
expand slightly upon the current CEs at 23 CFR 771.117(c)(14) (``Bus
and rail car rehabilitation''); 23 CFR 771.117(c)(17) (``The
acquisition or lease (a) of vehicles where the vehicles can be
accommodated by existing facilities or by new facilities which qualify
for a CE; and (b) of existing facilities or other equipment''); and 23
CFR Sec. 771.117(c)(19) (``Purchase or lease and installation of
operating or maintenance equipment to be located within the transit
facility where there are no substantial off-site impacts''). Expansion
of activities within this category is consistent with other activities
categorically excluded under the current procedures and is supported by
at least four FTA FONSIs and in the established CEs of nine federal
agencies
[[Page 15315]]
that conduct actions of a similar nature, scope, and intensity.
``(8) Maintenance and minimally intrusive rehabilitation and
reconstruction of facilities that occupy substantially the same
environmental footprint and do not result in a change in functional
use, such as: Improvements to bridges, tunnels, storage yards,
buildings, and terminals; and construction of platform extensions and
passing track.'' This CE, which would focus on maintenance,
rehabilitation, and reconstruction of facilities ensuring passenger
safety and convenience while improving operations, would consolidate
and expand slightly upon the current CEs at 23 CFR 771.117(c)(18)
(``Routine maintenance and rehabilitation (a) of buses and rail cars;
(b) of existing transportation facilities, such as pavement; bridges,
terminals, storage yards and buildings, including ferry facilities,
where there are no substantial changes in the footprint of the
facilities or other disruptions; and (c) of track and rail-bed
maintenance and improvements when carried out within the existing
right-of-way''); CFR 771.117(d)(3) (``Bridge rehabilitation,
reconstruction or replacement or the construction of grade separation
to replace existing at-grade railroad crossings''); and CFR
771.117(d)(9) (``Rehabilitation or reconstruction of existing rail and
bus buildings and ancillary facilities where only minor amounts of
additional land are required and there is not a substantial increase in
the number of users''). Expansion of activities within this category
(rehabilitation of tracks and improvements to bridges and tunnels) is
consistent with other activities categorically excluded under the
current procedures and is supported by at least six FTA FONSIs and in
the established CEs of seven federal agencies that conduct actions of a
similar nature, scope, and intensity. The term ``footprint'' refers to
the physical boundary of the referenced facility.
``(9) Assembly or construction of facilities that is consistent
with existing land use and zoning requirements (including floodplain
regulations), is minimally intrusive, and requires no special permits,
permissions, and uses a minimal amount of undisturbed land, such as:
Buildings and associated structures; bus transfers, busways and
streetcar lines within existing transportation right-of-way; and
parking facilities'' This proposed CE, would focus on construction of
facilities consistent with existing land use and zoning requirements,
and would consolidate and expand slightly upon the current CEs at 23
CFR 771.117(d)(4) (``Transportation corridor fringe parking
facilities''); 23 CFR 771.117(d)(8) (``Construction of new bus storage
and maintenance facilities in areas used predominantly for industrial
or transportation purposes where such construction is not inconsistent
with existing zoning and located on or near a street with adequate
capacity to handle anticipated bus and support vehicle traffic''); 23
CFR 771.117(d)(10) (``Construction of bus transfer facilities (an open
area consisting of passenger shelters, boarding areas, kiosks and
related street improvements) when located in a commercial area or other
high activity center in which there is adequate street capacity for
projected bus traffic''); and 23 CFR 771.117(d)(11) (``Construction of
rail storage and maintenance facilities in areas used predominantly for
industrial or transportation purposes where such construction is not
inconsistent with existing zoning and where there is no significant
noise impact on the surrounding community''). Expansion of activities
within this category (busways and streetcar lines within existing
transportation right-of-way, including new lanes for buses, and parking
facilities) is consistent with other activities categorically excluded
under the current procedures and is supported by at least 39 FTA FONSIs
and in the established CEs of three federal agencies that conduct
actions of a similar nature, scope, and intensity. FTA considered
whether to propose additional physical limitations on the activities
included in this CE, but, based on the substantiating record for this
CE, proposes not to include such limitations. FTA specifically invites
comments on this proposal in addition to general comments on the
proposed CE. FTA also requests that commenters include evidence and
demonstrate experience with the activity when possible.
``(10) Development activities for transit and non-transit purposes,
located on, above, or adjacent to existing transit facilities, that are
not part of a larger transportation project and do not substantially
enlarge such facilities, such as: Police facilities, daycare
facilities, public service facilities, and amenities. This CE would
apply to those activities taking place within or at a public
transportation facility that do not substantially expand the footprint,
and thereby do not impact the natural or human environments. Joint
development activities may increase user interactions at the transit
facility, which could increase the productivity of the public
transportation facility (e.g., economic development activities). These
related but separate opportunities may increase public safety (e.g.,
police facilities), public transportation-user convenience (e.g.,
daycare facilities), or consolidate government activities (e.g., public
service facilities). This proposed CE is supported by at least nine FTA
FONSIs, and in an established CE of the U.S. Army. FTA considered
whether to propose additional physical limitations on the activities
included in this CE, but, based on the substantiating record for this
CE, proposes not to include such limitations. FTA specifically invites
comments on this proposal in addition to general comments on the
proposed CE. FTA also requests that commenters include evidence and
demonstrate experience with the activity when possible.
Section 771.119 Environmental Assessments
A new paragraph (k) is proposed regarding contracts with
environmental contractors or consultants. FTA proposes that contract
elements for the preparation of EA documents not be finalized until the
process for informal scoping of the EA has been completed and the scope
of the EA has been approved by FTA after consulting with the grant
applicant. This change is intended to discourage the execution of
contract elements for preparation of EA documents that are more
extensive and costly to taxpayers than necessary, or take longer to
prepare than necessary.
Section 771.123 Draft Environmental Impact Statements
Language is proposed for paragraph (d) to prevent grant applicants
from executing contracts for preparation of EISs that are more
extensive and costly to taxpayers than necessary, or take longer to
prepare than necessary. FTA proposes that contract elements for the
preparation of EIS documents not be finalized until formal scoping has
been completed and the scope of the EIS has been approved by FTA after
consulting with the grant applicant.
Paragraph (j) is proposed to be deleted as unnecessary. Even
without this regulatory provision, FTA will ensure that every FTA draft
EIS evaluates a proposed action (also called a locally preferred
alternative) in sufficient detail, and that a planning-level
Alternatives Analysis that lacks such detail is used as ``early
scoping'' of the NEPA process and not as a draft EIS. As noted above, a
planning-level Alternatives Analysis is currently required by 49 U.S.C.
5309 for New Starts and Small Starts projects.
[[Page 15316]]
Section 771.133 Compliance With Other Requirements
One minor change is proposed for this paragraph: The word
``Administration's'' would be replaced with ``FHWA's'' in the last
sentence, given that the requirement referenced applies to FHWA, and
not to FTA. FTA's approval of an environmental document constitutes its
finding of compliance with the report requirements of 49 U.S.C.
5323(b), and FTA proposes to add language specific to FTA's requirement
in this section.
Regulatory Analysis and Notices
All comments received on or before the close of business on the
comment closing date indicated above will be considered and will be
available for examination in the docket at the above address. Comments
received after the comment closing date will be filed in the docket and
will be considered to the extent practicable. In addition to late
comments, FTA will also continue to file relevant information in the
docket as it becomes available after the comment period closing date,
and interested persons should continue to examine the docket for new
material. A final rule may be published at any time after the close of
the comment period.
Executive Orders 13563 and 12866 and DOT Regulatory Policies and
Procedures
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. FTA and the FHWA have determined that this action is a
significant regulatory action under section 3(f) of Executive Order
12866 and the Regulatory Policies and Procedures of the Department of
Transportation (44 FR 11032). Therefore, this proposed rule was
submitted to the Office of Management and Budget for interagency
review. We also consider this proposal as a means to clarify the
existing regulatory requirements. These proposed changes would not
adversely affect, in any material way, any sector of the economy. In
addition, these changes would not interfere with any action taken or
planned by another agency and would not materially alter the budgetary
impact of any entitlements, grants, user fees, or loan programs. FTA
does anticipate that the changes in this proposal would enable projects
to move more expeditiously through the federal review process and would
reduce the preparation of extraneous environmental documentation and
analysis not needed for compliance with NEPA and for ensuring that
projects are built in an environmentally responsible manner. Under the
existing regulations, approximately 90 percent of FTA's actions are CEs
(specifically, sections 771.117(c) and (d)). FTA anticipates the
percentage will increase especially where new categorically excluded
actions are included (e.g., bus rapid transit projects within existing
transportation right-of-way). FTA is not able to quantify the economic
effects of these changes because the types of projects that will be
proposed for FTA funding and their potential impacts are unknown at
this time. But FTA requests comment, including data and information on
the experiences of project sponsors, on the likely effects of the
changes being proposed.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), we must consider whether a proposed rule would have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. We do not believe that this proposed rule
would have a significant economic impact on entities of any size, but
if your business or organization is a small entity and if adoption of
proposals contained in this notice could have a significant economic
impact on your operations, please submit a comment to explain how and
to what extent your business or organization could be affected.
Executive Order 13132: Federalism
Executive Order 13132 requires agencies to assure meaningful and
timely input by state and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. This proposed action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, and FTA and the FHWA have determined that this proposed
action would not have sufficient federalism implications to warrant the
preparation of a federalism assessment. FTA and the FHWA have also
determined that this proposed action would not preempt any state law or
state regulation or affect the states' ability to discharge traditional
government functions. We invite state and local governments with an
interest in this rulemaking to comment on the effect that adoption of
specific proposals may have on state or local governments.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 requires agencies to assure meaningful and
timely input from Indian tribal government representatives in the
development of rules that ``significantly or uniquely affect'' Indian
communities and that impose ``substantial and direct compliance costs''
on such communities. We have analyzed this proposed rule under
Executive Order 13175 and believe that the proposed action would not
have substantial direct effects on one or more Indian tribes; would not
impose substantial direct compliance costs on Indian tribal
governments; and would not preempt tribal laws. Therefore, a tribal
impact statement is not required. We invite Indian tribal governments
to provide comments on the effect that adoption of specific proposals
may have on Indian communities.
National Environmental Policy Act
This proposed action would not have any effect on the quality of
the environment under the National Environmental Policy Act of 1969
(NEPA). The Council on Environmental Quality regulations do not direct
agencies to prepare a NEPA analysis or document before establishing
Agency procedures (such as this regulation) that supplement the CEQ
regulations for implementing NEPA. Agencies are required to adopt NEPA
procedures that establish specific criteria for, and identification of,
three classes of actions: those that normally require preparation of an
environmental impact statement; those that normally require preparation
of an environmental assessment; and those that are categorically
excluded from further NEPA review (40 CFR 1507.3(b)). CEs are one part
of those agency procedures, and therefore establishing CEs does not
require preparation of a NEPA analysis or document. Agency NEPA
procedures are procedural guidance to assist agencies in the
fulfillment of agency
[[Page 15317]]
responsibilities under NEPA, but are not the agency's final
determination of what level of NEPA analysis is required for a
particular proposed action. The requirements for establishing agency
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The
determination that establishing CEs does not require NEPA analysis and
documentation has been upheld in Heartwood, Inc. v. U.S. Forest
Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d
947, 954-55 (7th Cir. 2000). Finally, the proposed action is intended
to streamline the environmental process for reviewing proposed transit
projects, including projects that will be environmentally beneficial.
Statutory/Legal Authority for This Rulemaking
This rulemaking is issued under authority of 42 U.S.C. 4321 et
seq.; 23 U.S.C. 139; 40 CFR parts 1500-1508; and 49 CFR 1.48(b) & 1.51.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to a collection of information unless it displays a valid OMB
control number. This notice does not propose any new or revise any
existing information collections.
Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. The RIN
number contained in the heading of this document may be used to cross-
reference this action with the Unified Agenda.
Privacy Act
Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477).
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This proposed rule will not result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$128.1 million or more in any one year (2 U.S.C. 1532). Further, in
compliance with the Unfunded Mandates Reform Act of 1995, FTA and FHWA
will evaluate any regulatory action that might be proposed in
subsequent stages of the proceeding to assess the effects on State,
local, and tribal governments and the private sector.
Executive Order 12630 (Taking of Private Property)
We have analyzed this proposed rule under Executive Order 12630,
Government Actions and Interface with Constitutionally Protected
Property Rights. We do not anticipate that this proposed rule would
affect a taking of private property or otherwise have taking
implications under Executive Order 12630.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13211 (Energy Effects)
We have analyzed this action under Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use,'' dated May 18, 2001. We have determined that
this is not a significant energy action under that order because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects is not required.
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. We certify that this proposed rule is not an economically
significant rule and would not cause an environmental risk to health or
safety that may disproportionately affect children.
List of Subjects in 23 CFR Part 771
Environmental impact statements, Environmental protection, Grant
programs--transportation, Highways and roads, Historic preservation,
Public lands, Recreation areas, Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, the Federal Transit
Administration and the Federal Highway Administration propose to amend
23 CFR part 771 as follows:
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
1. The authority citation for part 771 continues to read as
follows:
Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138,
139, 315, 325, 326, and 327; 49 U.S.C. 303, 5301(e), 5323(b), and
5324; Pub. L. 109-59, 119 Stat. 1144, sections 6002 and 6010; 40 CFR
parts 1500-1508; 49 CFR 1.48(b) and 1.51.
2. Amend Sec. 771.105 by revising footnote 1 of paragraph (a) to
read as follows:
Sec. 771.105 Policy.
* * * * *
(a) * * * \1\
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\1\ FHWA and FTA have supplementary guidance on environmental
documents and procedures for their programs. This guidance includes,
but is not limited to: FHWA Technical Advisory T6640.8A, October 30,
1987; ``SAFETEA-LU Environmental Review Process: Final Guidance,''
November 15, 2006; Appendix A of 23 CFR part 450, titled ``Linking
the Transportation Planning and NEPA Processes''; and ``Transit
Noise and Vibration Impact Assessment,'' May 2006. The FHWA and FTA
supplementary guidance, and any updated versions of the guidance,
are available from the respective FHWA and FTA headquarters and
field offices as prescribed in 49 CFR part 7 and on their respective
Web sites at http://www.fhwa.dot.gov and http://www.fta.dot.gov, or
in hard copy by request.
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Sec. 771.109 [Amended]
3. Amend Sec. 771.109 in paragraph (b) by replacing the misspelled
word ``contruction'' with the word ``construction''.
4. Amend Sec. 771.111 by revising paragraph (i) to read as
follows:
Sec. 771.111 Early coordination, public involvement, and project
development.
* * * * *
(i) Applicants for capital assistance in the FTA program:
(1) Achieve public participation on proposed projects through
activities that engage the public, including public hearings, town
meetings, and charettes, and seeking input from the public through the
scoping process for environmental review documents. Project milestones
may be announced to the public using electronic or paper media (e.g.,
newsletters, note cards, or emails) pursuant to 40 CFR 1506.6. For
projects requiring EISs, an early opportunity for public involvement in
defining the purpose and need for action and the range of alternatives
must be provided, and a public hearing will be held during the
circulation period of the draft EIS. For other projects that
substantially affect the community or its public transportation
service, an
[[Page 15318]]
adequate opportunity for public review and comment must be provided,
pursuant to 49 U.S.C. 5323(b).
(2) May participate in early scoping as long as enough project
information is known so the public and other agencies can participate
effectively. Early scoping constitutes initiation of NEPA scoping while
local planning efforts to aid in establishing the purpose and need and
in evaluating alternatives and impacts are underway. Notice of early
scoping must be made to the public and other agencies. If early scoping
is the start of the NEPA process, the early scoping notice must include
language to that effect. After development of the proposed action at
the conclusion of early scoping, FTA will publish the Notice of Intent
if it is determined at that time that the proposed action requires an
EIS. The Notice of Intent will establish a 30-day period for comments
on the purpose and need and the alternatives.
(3) Are encouraged to post and distribute materials related to the
environmental review process, including but not limited to, NEPA
documents, public meeting announcements, and minutes, through publicly-
accessible electronic means, including project Web sites. Applicants
are encouraged to keep these materials available to the public
electronically until the project is constructed and open for
operations.
(4) Are encouraged to post all environmental impact statements and
records of decision on a project Web site until the project is
constructed and open for operation.
5. Amend Sec. 771.113 by revising paragraph (d) to read as
follows:
Sec. 771.113 Timing of Administration activities.
* * * * *
(d) * * *
(1) Exceptions for hardship and protective acquisitions of real
property are addressed in paragraph (d)(12) of Sec. 771.117 for FHWA
and paragraphs (c)(6) and (d)(3) of Sec. 771.118 for FTA.
(2) Paragraph (d)(4) of Sec. 771.118 contains an exception for the
acquisition of pre-existing railroad right-of-way for future transit
use in accordance with 49 U.S.C. 5324(c).
* * * * *
6. Amend Sec. 771.115 by revising paragraph (a)(3) and paragraph
(b) to read as follows:
Sec. 771.115 Classes of actions.
* * * * *
(a) * * *
* * * * *
(3) Construction or extension of a fixed transit facility (e.g.,
rapid rail, light rail, commuter rail, bus rapid transit) that will not
be located within an existing transportation right-of-way
* * * * *
(b) Class II (CEs). Actions that do not individually or
cumulatively have a significant environmental effect are excluded from
the requirement to prepare an EA or EIS. A specific list of CEs
normally not requiring NEPA documentation is set forth in Sec.
771.117(c) for FHWA or pursuant to Sec. 771.118(c) for FTA. When
appropriately documented, additional projects may also qualify as CEs
pursuant to Sec. 771.117(d) for FHWA or pursuant to Sec. 771.118(d)
for FTA.
7. Amend Sec. 771.117 by revising the heading of the section and
by revising the first sentences of paragraphs (b), (c), and (d) to read
as follows:
Sec. 771.117 FHWA Categorical Exclusions.
* * * * *
(b) Any action which normally would be classified as a CE but could
involve unusual circumstances will require the FHWA, in cooperation
with the applicant, to conduct appropriate environmental studies to
determine if the CE classification is proper.
* * * * *
(c) The following actions meet the criteria for CEs in the CEQ
regulation (section 1508.4) and Sec. 771.117(a) of this regulation and
normally do not require any further NEPA approvals by the FHWA.
* * * * *
(d) Additional actions which meet the criteria for a CE in the CEQ
regulations (40 CFR 1508.4) and paragraph (a) of this section may be
designated as CEs only after FHWA approval.
* * * * *
8. Add Sec. 771.118 to read as follows:
Sec. 771.118 FTA Categorical Exclusions.
(a) Categorical exclusions (CEs) are actions which meet the
definition contained in 40 CFR 1508.4, and, based on past experience
with similar actions; do not involve significant environmental impacts.
They are actions which: do not induce significant impacts to planned
growth or land use for the area; do not require the relocation of
significant numbers of people; do not have a significant impact on any
natural, cultural, recreational, historic or other resource; do not
involve significant air, noise, or water quality impacts; do not have
significant impacts on travel patterns; or do not otherwise, either
individually or cumulatively, have any significant environmental
impacts.
(b) Any action which normally would be classified as a CE but could
involve unusual circumstances will require the FTA, in cooperation with
the applicant, to conduct appropriate environmental studies to
determine if the CE classification is proper. Such unusual
circumstances include:
(1) Significant environmental impacts;
(2) Substantial controversy on environmental grounds;
(3) Significant impact on properties protected by section 4(f) of
the DOT Act or section 106 of the National Historic Preservation Act;
or
(4) Inconsistencies with any Federal, State, or local law,
requirement or administrative determination relating to the
environmental aspects of the action.
(c) The following FTA CEs meet the criteria for CEs in the CEQ
regulation (section 1508.4) and Sec. 771.118(a) of this regulation and
normally do not require any further NEPA approvals by FTA.
(1) Acquisition, installation, operation, evaluation, and
improvement of discrete utilities and similar appurtenances (existing
and new) within or adjacent to existing transportation right-of-way,
such as utility poles; underground wiring, cables, and information
systems; and power substations and transfer stations.
(2) Acquisition, construction, rehabilitation, and improvement or
limited expansion of stand-alone recreation, pedestrian, or bicycle
facilities, such as a multiuse pathway, lane, trail, or pedestrian
bridge; and transit plaza amenities.
(3) Limited activities designed to mitigate environmental harm that
cause no harm themselves or to maintain and enhance environmental
quality and site aesthetics, and employ construction best management
practices, such as: noise mitigation activities; rehabilitation of
public transportation buildings, structures, or facilities including
those that are listed or eligible for listing on the National Register
of Historic Places when there are no adverse effects under the National
Historic Preservation Act; retrofitting for energy conservation; and
landscaping or re-vegetation.
(4) Planning and administrative activities which do not involve or
lead directly to construction, such as training, technical assistance
and research; promulgation of rules, regulations, directives, or
program guidance; approval of project concepts; and engineering.
(5) Discrete activities, including repairs, designed to promote
transportation safety, security, accessibility and effective
communication within or adjacent to existing right-of-way, such as the
[[Page 15319]]
deployment of Intelligent Transportation Systems and components;
installation and improvement of safety and communications equipment,
including hazard elimination and mitigation; and retrofitting existing
transportation vehicles, facilities or structures.
(6) Acquisition or transfer of an interest in real property that is
not within or adjacent to recognized environmentally sensitive areas
(e.g., wetlands, non-urban parks, wildlife management areas) and does
not result in a substantial change in the functional use of the
property or in substantial displacements, such as scenic easements and
historic sites for the purpose of preserving the site. This CE extends
only to acquisitions that will not limit the evaluation of
alternatives.
(7) Acquisition, rehabilitation and maintenance of vehicles or
equipment, within or accommodated by existing facilities, that does not
result in a change in functional use of the facilities, such as
equipment to be located within existing facilities and with no
substantial off-site impacts; and vehicles, including buses, rail cars,
trolley cars, ferry boats and people movers that can be accommodated by
existing facilities or by new facilities that qualify for categorical
exclusion.
(8) Maintenance and minimally intrusive rehabilitation and
reconstruction of facilities that occupy substantially the same
environmental footprint and do not result in a change in functional
use, such as improvements to bridges, tunnels, storage yards,
buildings, and terminals; and construction of platform extensions and
passing track.
(9) Assembly or construction of facilities that is consistent with
existing land use and zoning requirements (including floodplain
regulations), is minimally intrusive, and requires no special permits,
permissions, and uses a minimal amount of undisturbed land, such as
buildings and associated structures; bus transfers, busways and
streetcar lines within existing transportation right-of-way; and
parking facilities.
(10) Development activities for transit and non-transit purposes,
located on, above, or adjacent to existing transit facilities, that are
not part of a larger transportation project and do not substantially
enlarge such facilities, such as police facilities, daycare facilities,
public service facilities, and amenities.
(d) Additional actions which meet the criteria for a CE in the CEQ
regulations (40 CFR 1508.4) and paragraph (a) of this section may be
designated as CEs only after FTA approval. The applicant shall submit
documentation which demonstrates that the specific conditions or
criteria for these CEs are satisfied and that significant environmental
effects will not result. Examples of such actions include but are not
limited to:
(1) Modernization of a highway by resurfacing, restoration,
rehabilitation, reconstruction, adding shoulders, or adding auxiliary
lanes (e.g., parking, weaving, turning, climbing).
(2) Bridge rehabilitation, reconstruction or replacement or the
construction of grade separation to replace existing at-grade railroad
crossings.
(3) Acquisition of land for hardship or protective purposes.
Hardship and protective buying will be permitted only for a particular
parcel or a limited number of parcels. These types of land acquisition
qualify for a CE only where the acquisition will not limit the
evaluation of alternatives, including shifts in alignment for planned
construction projects, which may be required in the NEPA process. No
project development on such land may proceed until the NEPA process has
been completed.
(i) Hardship acquisition is early acquisition of property by the
applicant at the property owner's request to alleviate particular
hardship to the owner, in contrast to others, because of an inability
to sell his property. This is justified when the property owner can
document on the basis of health, safety or financial reasons that
remaining in the property poses an undue hardship compared to others.
(ii) Protective acquisition is done to prevent imminent development
of a parcel which may be needed for a proposed transportation corridor
or site. Documentation must clearly demonstrate that development of the
land would preclude future transportation use and that such development
is imminent. Advance acquisition is not permitted for the sole purpose
of reducing the cost of property for a proposed project.
(4) Acquisition of pre-existing railroad right-of-way pursuant to
49 U.S.C. 5324(c). No project development on the acquired railroad
right-of-way may proceed until the NEPA process for such project
development, including the consideration of alternatives, has been
completed.
(e) Where a pattern emerges of granting CE status for a particular
type of action, the Administration will initiate rulemaking proposing
to add this type of action to the appropriate list of categorical
exclusions in this section.
9. Amend Sec. 771.119 by adding a new paragraph (k) to read as
follows:
Sec. 771.119 Environmental assessments.
* * * * *
(k) For FTA actions: If the applicant selects a contractor to
prepare the EA, the contractor's final scope of work for the
preparation of the EA will not be determined until the informal scoping
process is completed, and the scope of study has been approved by FTA
in consultation with the applicant.
10. Amend Sec. 771.123 by deleting paragraph (j) and by adding the
following sentence at the end of paragraph (d) to read as follows:
Sec. 771.123 Draft environmental impact statements.
* * * * *
(d) * * *. For FTA actions, the contractor's final scope of work
for the preparation of the EIS will not be determined until scoping has
been completed, and the scope of study has been approved by FTA in
consultation with the applicant.
Sec. 771.133 [Amended]
11. Amend Sec. 771.133 in its final sentence by replacing the word
``Administration's'' with the word ``FHWA's'' and by adding the
following text at the end of the paragraph: ``FTA's approval of an
environmental document constitutes its finding of compliance with the
requirements of 49 U.S.C. 5323(b) and 49 U.S.C. 5324(b).''
Issued on: March 7, 2012.
Peter Rogoff,
Administrator, Federal Transit Administration.
Victor M. Mendez,
Administrator, Federal Highway Administrator.
[FR Doc. 2012-6327 Filed 3-14-12; 8:45 am]
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