[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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------


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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