[Federal Register Volume 77, Number 190 (Monday, October 1, 2012)]
[Proposed Rules]
[Pages 59875-59878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23916]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 771

FHWA RIN 2125-AF46

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2012-0092]
FTA RIN 2132-AB04


Environmental Impact and Related Procedures

AGENCY: Federal Highway Administration, Federal Transit Administration, 
DOT.

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

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SUMMARY: This NPRM provides interested parties with the opportunity to 
comment on proposed changes to the Federal Highway Administration 
(FHWA) and the Federal Transit Administration (FTA) joint procedures 
that implement the National Environmental Policy Act (NEPA). The 
revisions are prompted by enactment of Public Law 112-141, 126 Stat. 
405, the Moving Ahead for Progress in the 21st Century Act (MAP-21). 
This NPRM proposes to modify an existing categorical exclusion (CE) for 
emergency repair projects under 23 U.S.C. 125 to include emergency 
projects as described in Section 1315 of MAP-21. This NPRM also 
requests comments on whether additional activities ought to be 
expressly included in the CE, consistent with the principles underlying 
emergency projects and sound transportation asset management. The FHWA 
and the FTA seek comments on the proposals contained in this notice.

DATES: Comments must be received on or before November 30, 2012.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001;
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Ave. SE., between 9 a.m. 5 p.m., Monday through Friday, 
except Federal holidays. The telephone number is (202) 366-9329;
     Instructions: You must include the agency name and docket 
number DOT-FHWA- or the Regulatory Identification Number (RIN) for the 
rulemaking at the beginning of your comments. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided.

FOR FURTHER INFORMATION CONTACT: For the Federal Highway 
Administration: Adam Alexander, Office of Project Delivery and 
Environmental Review, HEPE-10, (202) 366-1473, or Jomar Maldonado, 
Office of the Chief Counsel, (202) 366-1373, Federal Highway 
Administration, 1200 New Jersey Ave. SE., Washington, DC 20590-0001. 
For the Federal Transit Administration: Megan Blum at (202) 366-0463, 
Office of Planning and Environment (TPE); or Dana Nifosi at (202) 366-
4011, Office of Chief Counsel (TCC), Federal Transit Administration. 
Office hours are from 8 a.m. to 4:30 p.m. e.t., Monday through Friday, 
except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    On July 6, 2012, President Obama signed into law MAP-21, which 
contains new requirements that the FHWA and the FTA must meet in 
complying with NEPA (42 U.S.C. 4321-4347). One of these requirements, 
in Section 1315(a), is that the FHWA and the FTA, acting on behalf of 
the Secretary, must publish an NPRM to categorically exclude the repair 
or reconstruction of any road, highway, or bridge damaged by an 
emergency that is either (1) declared by the Governor of the State and 
concurred in by the Secretary of Transportation; or (2) declared by the 
President under the Stafford Act if such repair or reconstruction 
activity is in the same location with the same capacity, dimensions, 
and design as the original road, highway, or bridge as before the 
declaration; and is commenced within a 2-year period beginning on the 
date of the declaration. Currently, 23 CFR 771.117(c)(9) categorically 
excludes emergency repairs made during and immediately following a 
disaster to restore essential traffic, minimize the extent of the 
damage, or to protect the remaining facilities if the work is eligible 
under 23 U.S.C. 125.
    In addition, pursuant to Section 1315(b) of MAP-21, the FHWA and 
the FTA must ensure that the rulemaking helps to conserve Federal 
resources and protects public safety and health by providing for 
periodic evaluations to determine whether reasonable alternatives exist 
to roads, highways, or bridges that repeatedly require repair and 
reconstruction activities. ``Reasonable alternatives'' is defined in 
Section 1315(b)(2) as including actions that could reduce the need for 
Federal funds to be expended on such repair and reconstruction 
activities, better protect public safety and health and the 
environment, and meet transportation needs as described in relevant and 
applicable Federal, State, local, and tribal plans. There are no 
equivalent requirements in the FHWA/FTA environmental regulation to 
perform periodic review or a consideration of alternatives as outlined 
in Section 1315(b).

[[Page 59876]]

General Discussion of the Proposals

    The FHWA and the FTA propose to address Section 1315(a) within 23 
CFR Part 771 by revising Section 771.117(c)(9) by changing the heading 
for paragraph (9) to ``Emergencies'' and adding two new provisions 
under paragraph (9) describing the covered actions. New paragraph 
(9)(i) would include all emergency repairs under 23 U.S.C. 125, which 
is the same language used in the CE for emergency repairs under the 
existing Section 771.117(c)(9). New paragraph (9)(ii) would add the 
actions described in MAP-21 Section 1315(a), which include emergency 
repair or reconstruction activities for any road, highway, or bridge 
that is in operation or under construction when damaged by an emergency 
declared by the Governor of the State and concurred in by the 
Secretary, or for a disaster or emergency declared by the President 
under the Robert T. Stafford Act (42 U.S.C. 5121), subject to the 
conditions specified in the remainder of the proposed section 
771.117(c)(9)(ii). Such conditions are that the repair or 
reconstruction under section 771.117(c)(9)(ii) must be in the same 
location with the same capacity, dimensions, and design as the original 
road, highway, or bridge as before the emergency declaration, and the 
work must be commenced within a 2-year period beginning on the date of 
the emergency declaration.
    The FHWA and the FTA also seek comments on whether language should 
be added to the new CE to make it apply to certain types of activities 
that, in some cases, might be considered outside the scope of both the 
current emergency CE in Section 771.117(c)(9) and the language of 
Section 1315(a). The FHWA and the FTA are interested in comments that 
identify additional activities that would be important to include in an 
emergency repair project that do not typically involve significant 
environmental impacts. Specifically, the FHWA and the FTA seek comments 
on whether the emergency activities categorically excluded under the 
revised CE also should include: (1) Construction of engineering and 
design changes to a damaged facility to meet current design standards; 
(2) repair and reconstruction of adjacent transportation facilities 
within the right-of-way damaged by the emergency (such as bike paths or 
ancillary structures); (3) construction of betterments to the damaged 
facilities beyond those eligible under 23 U.S.C 125; (4) construction 
of engineering and design changes to a damaged facility for the purpose 
of seismic retrofitting; (5) construction of engineering and design 
changes to a damaged facility to deal with future extreme weather 
events and sea level rise; and (6) construction of other engineering 
and design changes to a damaged facility to address concerns such as 
safety and environmental impacts. The agencies also seek comment on 
whether the CE should include actions to repair, reconstruct, or 
replace a facility that has experienced catastrophic failure regardless 
of cause. A catastrophic failure is considered to be the sudden and 
complete failure of a major element or segment of the facility that 
causes a devastating impact on transportation services. The FHWA and 
the FTA seek comments from grantees about their experiences with these 
kinds of projects and activities described in this paragraph and the 
environmental impacts of such projects.
    The requirements in Section 1315(b) of MAP-21 will be addressed 
through questions presented in this NPRM and then more specifically 
through rulemaking for other relevant sections of MAP-21. The MAP-21 
creates requirements for both the FHWA and the FTA to develop asset 
management and other programs. For the FHWA, MAP-21 Section 1106 
creates a new requirement for States to develop risk-based asset 
management plans pursuant to 23 U.S.C. 119. The FHWA proposes to 
address the requirements of Section 1315(b) in the implementing 
regulations for MAP-21 Section 1106. The FHWA will also consider 
comments received in response to this NPRM in upcoming rulemaking 
proceedings to address other MAP-21 requirements related to asset 
management and the emergency relief program.
    The FTA proposes to address the requirements of Section 1315(b) 
through rulemaking to implement other MAP-21 provisions for transit 
projects. Including proposed regulations to address 1315(b) in other 
FHWA and FTA rulemakings would incorporate the periodic review and 
evaluation of alternatives in a program management process, which the 
FHWA and the FTA believe is the appropriate approach to achieve the 
most effective results.
    The FHWA and the FTA will use this rulemaking to obtain input on 
how to best approach the periodic evaluations required under Section 
1315(b). With respect to Section 1315(b) of MAP-21, the FHWA and the 
FTA specifically seek comment on the following questions regarding 
approaches to the requirement for periodic evaluations to determine 
whether reasonable alternatives exist to roads, highways, or bridges 
that repeatedly require repair and reconstruction activities:
    (1) Is it appropriate to incorporate the Section 1315(b) review 
into any periodic evaluation of transportation assets conducted by the 
State for its risk-based asset management plan developed pursuant to 23 
U.S.C. 119, or into similar transit programs? Are there other periodic 
reviews for either highways or transit into which the Section 1315(b) 
review could be incorporated?
    (2) How frequently should the evaluations be conducted? Should a 
time frame be specified in the regulation, or remain at the discretion 
of the State or transit agency?
    (3) How should the evaluations consider the risk of recurring 
damage and the cost of future repair under both current and future 
environmental conditions?
    (4) What factors ought to be considered in the evaluations to 
assess the risk of recurring damage, the protection of public safety 
and health and the environment, and the cost of future repairs?

Section-by-Section Discussion of the Proposals

    This proposal would amend 23 CFR 771.117(c)(9) by changing the 
heading for paragraph (9) to ``Emergencies'' and adding two new 
provisions under paragraph (9) describing the covered actions. The new 
paragraph (9)(i) would include all emergency repairs under 23 U.S.C. 
125, which is the same language used in the CE for emergency repairs 
under the existing Section 771.117(c)(9). The new subparagraph (9)(ii) 
would add the new covered actions described in MAP-21 Section 1315(a) 
by adding emergency repair or reconstruction activities for any road, 
highway, or bridge that is in operation or under construction when 
damaged by an emergency declared by the Governor of the State and 
concurred in by the Secretary, or for a disaster or emergency declared 
by the President under the Robert T. Stafford Act (42 U.S.C. 5121), 
subject to the conditions specified in the subsection. The conditions 
would appear in two subparagraphs under the proposed 23 CFR 
771.117(c)(9)(ii), and would require the repair or reconstruction under 
the CE be in the same location with the same capacity, dimensions, and 
design as the original road, highway, or bridge as before the emergency 
declaration, and the work must be commenced within a 2-year period 
beginning on the date of the emergency declaration. These conditions 
are required under Section 1315(a).

[[Page 59877]]

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination 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, the 
FHWA and the 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 close of the 
comment period.

Executive Orders 12866 and 13563 (Regulatory Planning and Review) and 
DOT Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). The FHWA 
and the FTA have determined preliminarily that this action would not be 
a significant regulatory action under section 3(f) of Executive Order 
12866 nor would it be significant within the meaning of Department of 
Transportation regulatory policies and procedures (44 FR 11032). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. It is anticipated that the economic impact of 
this rulemaking would be minimal. The changes that this rule proposes 
are requirements mandated by MAP-21 intended to streamline 
environmental review by making changes in the agencies' environmental 
review procedures. The activities this NPRM proposes to add to section 
771.117(c)(9), which are described in Section 1315(a), are inherently 
limited in their potential to cause significant environmental impacts. 
These proposed changes would not adversely affect, in any material way, 
any sector of the economy. In addition, these changes would not 
interfere with any action taken or planned by another agency and would 
not materially alter the budgetary impact of any entitlements, grants, 
user fees, or loan programs. Consequently, a full regulatory evaluation 
is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 60l-612), the FHWA and the FTA have evaluated the effects of 
this proposed rule on small entities and anticipate that this action 
would not have a significant economic impact on a substantial number of 
small entities. The proposed revision could streamline environmental 
review and thus would be less than any current impact on small business 
entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, 
March 22, 1995). This proposed rule will not result in the expenditure 
by State, local, and tribal governments, in the aggregate, or by the 
private sector, of $148.1 million or more in any one year (2 U.S.C. 
1532). Further, in compliance with the Unfunded Mandates Reform Act of 
1995, the agencies will evaluate any regulatory action that might be 
proposed in subsequent stages of the proceeding to assess the effects 
on State, local, and tribal governments and the private sector.

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to 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 the FHWA and the FTA have determined that this 
proposed action would not have sufficient federalism implications to 
warrant the preparation of a federalism assessment. The FHWA and the 
FTA have also determined that this proposed action would not preempt 
any State law or State regulation or affect the States' ability to 
discharge traditional State governmental functions. 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 (Tribal Consultation)

    The FHWA and FTA have analyzed this action under Executive Order 
13175, dated November 6, 2000, and believe that it would not have 
substantial direct effects on one or more Indian tribes; would not 
impose substantial direct compliance costs on Indian tribal 
governments; and would not preempt tribal law. Therefore, a tribal 
summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    The FHWA and the FTA have analyzed this action under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use. We have determined that it 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 under Executive 
Order 13211 is not required.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities apply 
to this program. Accordingly, the FHWA and the FTA solicit comments on 
this issue.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or require through regulations. The FHWA and the FTA have 
determined that this proposal does not contain collection of 
information requirements for the purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

    The FHWA and FTA have analyzed this action under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. The FHWA and the FTA certify that this action would not 
concern an environmental risk to health or safety

[[Page 59878]]

that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    The FHWA and the FTA do not anticipate that this action would 
affect a taking of private property or otherwise have taking 
implications under Executive Order 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights.

National Environmental Policy Act

    Agencies are required to adopt implementing procedures for NEPA 
that establish specific criteria for, and identification of, three 
classes of actions: Those that normally require preparation of an 
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)). The Council on 
Environmental Quality (CEQ) regulations do not direct agencies to 
prepare a NEPA analysis or document before establishing agency 
procedures (such as this regulation) that supplement the CEQ 
regulations for implementing NEPA. The 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 generally 
procedural guidance to assist agencies in the fulfillment of agency 
responsibilities under NEPA, but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular proposed action. The requirements for establishing agency 
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The 
determination that establishing CEs does not require NEPA analysis and 
documentation was 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, this action is intended to streamline the 
environmental process for reviewing proposed highway and transit 
projects, including projects that will be environmentally beneficial. 
It is consistent with, and promotes the purposes of, Executive Order 
13604 (Improving Performance of Federal Permitting and Review of 
Infrastructure Projects).

Regulation Identification Number

    A RIN is assigned to each regulatory action listed in the Unified 
Agenda of Federal Regulations. The Regulatory Information Service 
Center publishes the Unified Agenda in April and October of each year. 
The RIN contained in the heading of this document can be used to cross 
reference this action with the Unified Agenda.

List of Subjects

49 CFR Part 622

    Environmental impact statements, Energy conservation, Grant 
programs--transportation, Public transit, Recreation areas, Reporting 
and recordkeeping requirements.

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.

    In consideration of the foregoing, the FHWA and the FTA propose to 
amend title 49, Code of Federal Regulations part 622 and title 23, Code 
of Federal Regulations part 771 as follows:

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

    1. The authority citation for part 622 is revised to read as 
follows:

    Authority:  42 U.S.C. 4321 et seq.; 49 U.S.C. 303, 5301(a) and 
(e), 5323(b), and 5324; 23 U.S.C. 139 and 326; Pub. L. 109-59, 119 
Stat. 1144, sections 6002 and 6010; 40 CFR parts 1500-1508; 49 CFR 
1.51; and Pub. L. 112-141, 126 Stat. 405, sections 1315 and 20017.

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

    2. The authority citation for part 771 is revised 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(a) and (e), 
5323(b), and 5324; 40 CFR Parts 1500-1508; 49 CFR 1.48(b) and 1.51; 
Pub. L. 109-59, 119 Stat. 1144, sections 6002 and 6010; Pub. L. 112-
141, 126 Stat. 405, sections 1106 and 1315.

    3. Amend Sec.  771.117 by revising paragraph (c)(9) to read as 
follows:


Sec.  771.117  Categorical exclusions.

(c)(9) Emergencies
    (i) Emergency repairs under 23 U.S.C. 125.
    (ii) The repair or reconstruction of any road, highway, or bridge 
that is in operation or under construction when damaged by an emergency 
declared by the Governor of the State and concurred in by the 
Secretary, or for a disaster or emergency declared by the President 
pursuant to the Robert T. Stafford Act (42 U.S.C. 5121) if the repair 
or reconstruction activity is:
    (A) In the same location with the same capacity, dimensions, and 
design as the original road, highway, or bridge as before the 
declaration, and
    (B) Commenced within a 2-year period beginning on the date of the 
declaration.
* * * * *

    Issued on: September 21, 2012.

    The date of issuance is the signature date.
Victor M. Mendez,
Administrator, Federal Highway Administrator.
Peter Rogoff,
Administrator, Federal Transit Administration.
[FR Doc. 2012-23916 Filed 9-28-12; 8:45 am]
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