[Federal Register Volume 78, Number 33 (Tuesday, February 19, 2013)]
[Rules and Regulations]
[Pages 11593-11603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03494]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 771
Federal Transit Administration
49 CFR Part 622
[Docket No. FHWA-2012-0092]
FHWA RIN 2125-AF46
FTA RIN 2132-AB04
Environmental Impact and Related Procedures
AGENCY: Federal Highway Administration, Federal Transit Administration,
DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the Federal Highway Administration
(FHWA) and Federal Transit
[[Page 11594]]
Administration (FTA) joint procedures that implement the National
Environmental Policy Act (NEPA) by enacting a new categorical exclusion
(CE) for emergency actions as required by the Moving Ahead for Progress
in the 21st Century Act (MAP-21). The final rule modifies the existing
lists of FHWA and FTA CEs and expands the existing CE for emergencies
to include emergency actions as described in MAP-21 and pursuant to
this rulemaking.
DATES: Effective February 19, 2013.
FOR FURTHER INFORMATION CONTACT: For the FHWA: Adam Alexander, Office
of Project Delivery and Environmental Review, (202) 366-1473, or Jomar
Maldonado, Office of the Chief Counsel, (202) 366-1373, 1200 New Jersey
Ave. SE., Washington, DC 20590-0001. For the FTA: Maya Sarna at (202)
366-5811, Office of Planning and Environment; or Dana Nifosi at (202)
366-4011, Office of Chief Counsel. 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 (Pub. L.
112-141, 126 Stat. 405), which contains new requirements that the FHWA
and FTA, hereafter referred to as the ``Agencies,'' must meet in
complying with NEPA (42 U.S.C. 4321 et seq.). Section 1315(a) of MAP-21
required the Secretary of Transportation to engage in rulemaking to
categorically exclude from the requirements to prepare an environmental
assessment (EA) or environmental impact statement (EIS) under 23 CFR
part 771, 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; or (2) declared by the
President under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121 et seq.) 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. In addition, pursuant to
section 1315(b) of MAP-21, the Secretary must ensure that the
rulemaking helps conserve Federal resources and protect 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.
The Agencies published a notice of proposed rulemaking (NPRM)
addressing the section 1315 MAP-21 requirements on October 1, 2012 (77
FR 59875). This final rule makes changes to 23 CFR 771.117(c)(9) and
adds 771.118(c)(11) in response to MAP-21's section 1315 requirements
and the comments provided during the NPRM comment period.
It should be noted that the Agencies jointly published an NPRM in
March 2012 (77 FR 15310) and subsequently a final rule on February 7,
2013 (78 FR 8964), which, among other changes, created section 771.118.
The Agencies are calling attention to this new section because it will
be referenced throughout this final rule. Section 771.118 contains
categorically excluded actions and examples, as well as criteria, for
FTA actions. With this revision, section 771.117 applies to FHWA
actions, and section 771.118 applies to FTA actions.
It is important to emphasize that the availability of the CEs for
emergency actions is subject to the same requirements for the use of
any other CE in part 771. First, the CEs, like any other CE in part
771, apply to the Agencies' actions. Second, the use of the emergency-
related CEs would include an identification of any unusual
circumstances requiring further environmental studies to determine if
the CE classification is proper (23 CFR 771.117(b) and 771.118(b)).
Examples of unusual circumstances include significant environmental
impacts, substantial controversy on environmental grounds, significant
impacts on properties protected by 23 U.S.C. 138/49 U.S.C. 303 (also
known as ``section 4(f)'' of the Department of Transportation Act) or
section 106 of the National Historic Preservation Act (NHPA), or
inconsistencies with any Federal, State, or local law, requirement or
administrative determination relating to the environmental aspects of
the action (23 CFR 771.117(b)(1)-(4) and 23 CFR 771.118(b)(1)-(4)).
Third, the availability of the CEs does not exempt the applicability of
other environmental requirements such as, but not limited to, section 7
of the Endangered Species Act (ESA), section 106 of NHPA, section 404
permits under the Clean Water Act (CWA), 23 U.S.C. 138/49 U.S.C. 303
(section 4(f)), and bridge permits under the General Bridge Act of
1946. These requirements must be met regardless of the applicability of
the CE under NEPA. Some of these requirements may involve major Federal
actions for other Federal agencies (e.g., approvals or issuance of
permits) that would trigger a different NEPA process for those Federal
agencies. Early coordination amongst the applicants and the Federal
agencies is highly recommended to prevent a conflict in the Federal
agencies' NEPA, permitting, and other review processes.
Fourth, the action must comply with NEPA requirements relating to
connected actions and segmentation (see, e.g., 40 CFR 1508.25 and 23
CFR 771.111(f)). The Agencies recognize the importance of ensuring that
projects are not improperly segmented. The action must have independent
utility, connect logical termini when applicable (i.e., linear
facilities), and not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements. Finally, a CE may
not be established if the action normally has significant environmental
impacts either individually or cumulatively and may not be applied to a
proposed action if there are unusual circumstances. For example, a CE
may not be used if the action induces significant impacts to planned
growth or land use for the area; requires the relocation of significant
numbers of people; has significant impacts on any natural, cultural,
recreational, historic, or other resource; involves significant air,
noise, or water quality impacts; or has significant impacts on travel
patterns (23 CFR 771.117(a) and 23 CFR 771.118(a)).
Notice of Proposed Rulemaking
The October 1, 2012, NPRM proposed to expand 23 CFR 771.117(c)(9)
with a new subsection (ii) that provided for ``[t]he 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) [i]n the same location with the same capacity,
dimensions, and design as the original road, highway, or bridge as
before the declaration, and (B) [c]ommenced within a 2-year period
beginning on the date of the declaration'' (77 FR 59878). In addition
to the proposed CE language, the NPRM sought comments on whether the
emergency activities categorically excluded under the revised CE should
also include the following: (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
[[Page 11595]]
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 NPRM also sought comment on whether the CE should include
actions to repair, reconstruct, or replace a facility that has
experienced catastrophic failure regardless of cause. Catastrophic
failure was described as the sudden and complete failure of a major
element or segment of the facility that causes a devastating impact on
transportation services.
Additionally, the NPRM requested comments on approaches to
addressing section 1315(b) of MAP-21. Specifically, the Agencies
requested comments on a proposal to address the requirements of this
section in future rulemakings required by other provisions of MAP-21.
Section 1106 of MAP-21 amends 23 U.S.C. 119 by requiring State
departments of transportation (State DOTs) to develop risk-based asset
management plans. The MAP-21 also created several new transit programs
under chapter 53 of title 49 U.S. Code. The Agencies requested comments
on several questions related to the periodic evaluation requirements in
section 1315(b).
The comment period for the NPRM closed on November 30, 2012, and
additional comments were received on December 3, 2012. All comments
were considered in the development of this final rule.
Summary Discussion of Comments Received in Response to the NPRM
Comments were received from 12 State DOTs, 7 public interest
groups, 4 transit agencies, and 2 Federal agencies. Commenters provided
111 comments on the NPRM, which were organized thematically and
according to whether the comment addressed section 1315(a) or section
1315(b) of MAP-21, or were general comments.
General Comments
Comments generally were supportive of the proposed rulemaking.
Commenters offered specific comments to the statutory language adopted
from section 1315(a) of MAP-21; provided input on the disposition of
section 1315(b); commented on the six actions proposed for inclusion in
the CE; and proposed revised language for consideration in the final
rule. Eleven State DOTs, six public interest groups, one rail agency,
and three transit agencies provided comments on the six additional
activities listed in the NPRM for comment (see Section-by-Section
Discussion of Comments below). The commenters indicated support for one
or more of the listed activities. Seven State DOTs, three public
interest groups, and two transit agencies expressed support for all six
proposed activities.
Regarding section 1315(b), one public interest group and seven
State DOTs commented on the NPRM that they agreed that the periodic
evaluations should be part of risk-based asset management plans
developed by the State. The Agencies agree with this proposal and are
addressing the periodic evaluations required under MAP-21 section
1315(b) through a rulemaking implementing section 1106 of MAP-21 and
through changes to implement the new programs authorized by MAP-21. As
discussed in the Section-by-Section Discussion of Comments below, the
Agencies relied on section 1315(b)'s requirement to ``ensure that the
rulemaking helps conserve Federal resources and protect public safety
and health'' in making improvements to the final CE.
One commenter commented that ``once an event is determined to
qualify for CE status, this decision should be treated as permanent and
not subject to subsequent reconsideration.'' All NEPA decisions under
23 CFR 771.117 are subject to compliance with sections 771.117(b) and
771.129(c). The NEPA decisions under 23 CFR 771.118 are subject to
compliance with sections 771.118(b) and 771.129(c). The final rule does
not eliminate these requirements. Additional review resulting from
unusual circumstances may warrant changes to the type of environmental
review for a particular proposed project to ensure the Agencies provide
the appropriate degree of consideration for environmental impacts
resulting from proposed actions.
One commenter recommended that the Agencies establish a flexible
process for determining when CEs should be used rather than relying on
a constraining list of activities eligible for CEs. The commenter also
suggested providing set time limits on a project-by-project basis for
the completion of NEPA. The final rule does not include either
suggestion; the ideas proposed by the commenter fall outside the scope
of this rulemaking.
Section-by-Section Discussion of Comments
Authorities for 49 CFR Part 622
No comments were received on this proposed change. The amendment
will add a reference to MAP-21 and section 1315 of that statute. The
FTA had considered adding a reference to section 20017 of MAP-21, which
created the new FTA Emergency Relief program. Since that time, FTA has
determined that section 20017 does not provide authority for the CE
being added by this rulemaking and is not needed for part 622. For
information on the Agencies' authority for this rulemaking, see the
section entitled ``Statutory/Legal Authority for This Rulemaking''
below.
Authorities for 23 CFR Part 771
No comments were received on this change. The amendment will add a
reference to MAP-21 and section 1315 of that statute. The FHWA had
considered adding a reference to section 1106 of MAP-21, which created
the requirement for risk-based asset management plans. Since that time,
FHWA has determined that section 1106 does not provide authority for
the CE language being added by this rulemaking and is not needed for
part 771. For information on the Agencies' authority for this
rulemaking, see the section entitled ``Statutory/Legal Authority for
This Rulemaking'' below.
Section 771.117(c)(9)
Three public interest groups, one rail agency, six State DOTs, and
two transit agencies commented that the final rule should include
language that expands the CE to cover catastrophic failures regardless
of cause. One commenter specifically noted that a scenario could occur
where there is a catastrophic failure of a major bridge or tunnel from
a disaster that does not rise to the level of an emergency declared by
the Governor and concurred in by the Secretary, or a disaster or
emergency declared by the President under the Stafford Act. One
commenter noted that ``the effects of catastrophic failures to public
safety and transportation are essentially the same as emergencies, and
the need to quickly and safely repair the failures remains the same.''
The commenter encouraged the Agencies to define all qualifying terms
such as ``sudden and complete failure'' and ``devastating impact'' to
account for different temporal and spatial scales. For example, ``a
bridge may be rendered unusable due to river scouring over several
months without the bridge completely collapsing; the impact of such a
bridge failure would be
[[Page 11596]]
devastating to the public and the economy in many areas'' of a State.
The Agencies have decided to limit the CE language to the same
circumstances that would trigger the FHWA and FTA emergency relief
programs. Under the Agencies' emergency relief programs, the damage to
the facility must have been caused by a natural disaster or a
catastrophic failure from an external cause. Limiting the new CE
language to the same circumstances that trigger the emergency relief
programs would ensure consistency. It also will avoid the need to
create a separate and independent process for the Secretary's
concurrence with a Governor's emergency declaration for catastrophic
failures that do not qualify for the emergency relief programs.
The Agencies are amending section 771.117(c)(9) by adding the
introductory phrase ``[t]he following actions for transportation
facilities damaged by an incident resulting in an emergency declared by
the Governor of the State and concurred in by the Secretary, or a
disaster or emergency declared by the President pursuant to the Robert
T. Stafford Act (42 U.S.C. 5121).'' This introductory phrase clarifies
that all the actions covered in the amended and new CE language must be
the result of the Agencies' (or their applicants or recipients')
efforts to restore surface transportation in the aftermath of
Presidentially declared emergency or disasters, or emergencies declared
by the Governor of a State and concurred in by the Secretary.
This introductory language also is included in 23 CFR
771.118(c)(11) with the same intent. As mentioned above, categorically
excluded FTA actions are now found at 23 CFR 771.118. Through this
final rule, FTA is incorporating the new emergency CE established
pursuant to section 1315 of MAP-21 by adding a new CE at section
771.118(c)(11) that is equivalent to the CE applicable to FHWA found at
23 CFR 771.117(c)(9). This new CE covers emergency repairs under 49
U.S.C. 5324 for public transportation infrastructure ``damaged by an
incident resulting in an emergency declared by the Governor of the
State and concurred by the Secretary, or a disaster or emergency
declared by the President pursuant to the Robert T. Stafford Act (42
U.S.C. 5121).''
Section 771.117(c)(9)(i)
One public interest group and three State DOTs expressed a desire
to maintain the CE currently found in 23 CFR 771.117(c)(9) to ensure
that flexibility is maintained with the final rule to continue
categorically excluding emergency repairs under 23 U.S.C. 125, the FHWA
Emergency Relief Program.
The Agencies continue to believe that ``emergency repairs'' do not
typically result in significant environmental impacts. ``Emergency
repairs'' are defined in the FHWA Emergency Relief Program regulations
as ``[t]hose repairs including temporary traffic operations undertaken
during or immediately following the disaster occurrence for the purpose
of: (1)[m]inimizing the extent of damage, (2) [p]rotecting remaining
facilities, or (3) [r]estoring essential traffic'' (23 CFR 668.103).
The original language in section 771.117(c)(9) is retained as new
paragraph (c)(9)(i) to continue covering these types of actions. The CE
language for emergency repairs under 23 U.S.C. 125 was not carried
forward to section 771.118(c)(11), however, due to its lack of
applicability to FTA actions.
Section 771.117(c)(9)(ii)
One rail agency and three public interest groups commented on the
section 1315(a) language noting that the language was overly
restrictive and should be expanded to include infrastructure components
specific to rail and transit infrastructure. One commenter proposed
specific language to amend section 771.117(c)(9)(ii) to read ``[t]he
repair or reconstruction of any road, highway, bridge, or transit
facility that is in operation or under construction * * *'' and to
amend proposed 23 CFR 771.117(c)(9)(ii)(A) to read ``[i]n the same
location with the same capacity, dimensions, and design as the original
road, highway, bridge, or transit facility as before the declaration *
* * '' Another commenter proposed adding railroad right-of-way,
railroad bridge, or railroad tunnel to proposed 23 CFR
771.117(c)(9)(ii)(A). Another commenter recommended clarification of
the wording to include ``critical transportation infrastructure
including but not limited to any road, highway, rail, bridge, tunnel,
or dock * * *''
The Agencies added the term ``transit facility'' to the list of
transportation facilities that are subject to the new CE language at
sections 771.117(c)(9)(ii) and 771.118(c)(11)(ii). The addition of this
term expands the CE language to include the emergency repair or
reconstruction of all transit facilities following an emergency or
disaster, not just those that are co-located on roads or highways. The
term ``transit facility'' includes rail transit and components of ferry
terminals and systems, such as docks, piers, platforms, pedestrian
loading structures, and ticketing facilities. This addition goes
further than the list of transportation facilities provided in section
1315 of MAP-21. Documentation supporting this expansion is discussed
below.
The final rule also adds section 771.118(c)(11)(i) to cover
emergency repairs pursuant to 49 U.S.C. 5324. This addition will cover
activities under the Public Transportation Emergency Relief Program (49
U.S.C. 5324) created by section 20017 of MAP-21. The types of
activities covered (i.e., emergency repair of transit facilities) are
analogous to the activities covered by the existing CE for emergency
repairs in FHWA's Emergency Relief Program.
To support the inclusion of public transportation infrastructure in
sections 771.117(c)(9) and 771.118(c)(11), FTA revisited and cross-
referenced the substantiation record for FTA's March 2012 NEPA NPRM
(Docket No. FTA-2011-0056-0002), which proposed a new list of CEs for
FTA (77 FR 15310 (Mar. 15, 2012)). A substantiation record summary is
provided in the docket for this rulemaking. The FTA also identified new
supporting documentation, which includes, but is not limited to: The
FTA documented CEs and Findings of No Significant Impact for past
disaster-related projects, and for repair and reconstruction projects
for transit facilities. The FTA also utilized comparative benchmarking,
which provides support for the additional CE language by using the
experience of other Federal agencies that conduct actions of similar
nature, scope, and intensity. Although some of the actions covered by
this added language might be covered by other CEs listed in sections
771.117 and 771.118, there is value in adding this CE language
specifically for the FTA's Emergency Relief Program for ease of
application when a practitioner is faced with emergency or disaster-
related actions.
One commenter indicated that it was not clear why bridges are
specifically mentioned, but other critical infrastructure such as
tunnels and docks were not included. The commenter recommended wording
to add tunnels and docks.
As discussed above, the term ``transit facility'' includes rail
transit and components of ferry terminals and systems, such as docks,
piers, platforms, pedestrian loading structures, and ticketing
facilities. The Agencies have included ``tunnels'' in the list of
transportation facilities covered by the CE language. Damaged tunnels
can result in as much traffic and transit disruption as damaged bridges
and therefore, deserve similar consideration. The types of tunnel-
related actions
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necessitated by emergencies include dewatering to remove flood waters;
repairs to electrical and mechanical systems; repairs to suspended
ceilings and to ceiling or wall tiles; and, for highway tunnels,
repairs to pavement. The environmental impacts from these types of
actions would be similar for both highway and transit tunnels. Highway
and transit tunnels are structurally and functionally similar, although
design details and equipment are different because a tunnel is designed
to address the operating needs of the mode(s) the tunnel serves. For
example, the air vent system for a highway tunnel typically would be
more extensive than for a tunnel serving only transit, but repairs
performed on highway tunnel air vents within the right-of-way would not
be expected to have significant environmental effects. In the Agencies'
experience, the level of impacts for these actions is typically not
significant because the actions are limited to the existing right-of-
way and must substantially conform to the preexisting design, function,
and location of the original facility.
The CEs would only cover the repair, reconstruction, retrofit, or
replacement of an existing tunnel as long as it occurs within the
existing right-of-way and in a manner that substantially conforms to
the preexisting design, function, and location as the original.
Including those conditions in the text of the CE ensures its
applicability does not extend to construction of new tunnels. There may
be situations when the nature of the damage to a tunnel (e.g., complete
collapse) or the activity needed (e.g., substantial reconstruction or
replacement) would warrant careful consideration of unusual
circumstances. In these situations, the reviewer must determine if
further environmental studies are needed to determine if the CE
classification is proper or if a different class of NEPA review is
warranted.
In response to the six questions noted below, seven State DOTs,
three public interest groups, and one transit agency commented overall
on the questions and proposal, stating that the Agencies needed to
allow for flexible interpretation of the language in section 1315(a) of
MAP-21. A specific concern with section 1315(a) was that the language
could preclude use of the CE for projects that meet current design
standards. The commenters encouraged an interpretation of this language
to mean that the project meets the ``present-day equivalent of the
original design standards for the facility.'' One commenter
specifically noted that they have experienced frequent emergency
projects in recent years with extreme weather events that ``bring high
rainfall and runoff rates, as well as tidal surges that lead to river
and marsh flows over top of roads, bridges and culverts.'' The
commenter noted this has resulted in washed out pipe culverts and
collapse of the roadways over the culverts. The commenter also reported
experience with pavement and long-term road closures due to storm surge
events on coastal roadways resulting in interruption of travel and
evacuation routes. The commenter noted that in-kind replacements
guarantee repeat failures and are a waste of taxpayer money. In
addition, another commenter noted that the Federal Emergency Management
Agency (FEMA) includes some of the proposed activities as a CE under 44
CFR 10.8(d)(2)(xv) (FEMA CE (xv)) for the``[r]epair, reconstruction,
restoration, elevation, retrofitting, upgrading to current codes and
standards, or replacement of any facility in a manner that
substantially conforms to the preexisting design, function, and
location.''
The Agencies agree with these comments. Upgrades to current codes
and standards can avoid repetitive damage to transportation facilities
and can also help protect public safety and health. Additionally, in
certain situations, environmental conditions have changed to a degree
that would warrant consideration of more protective measures than the
existing codes and standards. Allowing these actions for damaged
facilities is consistent with MAP-21's section 1315(b) requirement that
the Secretary ensure the rule helps conserve Federal resources and
protect public safety and health.
The Agencies have relied on their past experience as well as on
benchmarking CEs covering similar activities, such as on the FEMA CE
(xv) (44 CFR 10.8(d)(2(xv)), to modify the language originally proposed
in 23 CFR 771.117(c)(9)(ii) of the NPRM for the final rule. The FEMA's
CE is explicitly for ``[r]epair, reconstruction, restoration,
elevation, retrofitting, upgrading to current codes and standards, or
replacement of any facility in a manner that substantially conforms to
the preexisting design, function, and location.'' The final rule
modifies the proposed 23 CFR 771.117(c)(9)(ii) language and establishes
771.118(11)(ii) to read, ``[t]he repair, reconstruction, restoration,
retrofitting, or replacement of any road, highway, bridge, tunnel, or
transit facility (such as a ferry dock or bus transfer station),
including ancillary transportation facilities (such as pedestrian/
bicycle paths and bike lanes), that is in operation or under
construction when damaged and the action: (A) [o]ccurs within the
existing right-of-way and in a manner that substantially conforms to
the preexisting design, function, and location as the original (which
may include upgrades to meet existing codes and standards as well as
upgrades warranted to address conditions that have changed since the
original construction); and [i]s commenced within a 2-year period
beginning on the date of the declaration.'' The Agencies' repair,
reconstruction, restoration, retrofit, and replacement actions are
similar to FEMA's actions of Federal financial assistance for
transportation facilities. The Agencies' and FEMA's actions are
typically carried out as permanent work that is eligible under a post-
disaster assistance program. The only difference between a FEMA-funded
and a FHWA- or FTA-funded repair, reconstruction, restoration,
retrofit, or replacement of road, bridge, or transit facility is the
funding source. The nature and typical level of impacts are similar,
particularly when the actions substantially conform to the preexisting
design, function, and location. In the Agencies' experience the level
of impacts for these actions are typically not significant because the
actions are limited to the existing right-of-way and must substantially
conform to the preexisting design, function, and location of the
original facility. This is consistent with FEMA's availability and use
of FEMA CE (xv) and a review of FEMA's publicly available NEPA
documents. A substantiation record summary based on benchmarking is
provided in the docket for this rulemaking.
The term ``reconstruction'' means the demolition and rebuilding of
a damaged facility, or part of a damaged facility, within the same
footprint of the original. The term ``retrofitting'' refers to the
addition of elements to a damaged facility to extend the life of the
facility or to conform to a protective measure (e.g., earthquake
retrofit, measure to reduce flood vulnerability, safety). The term
``replacement'' is meant to capture situations where a comparable
facility is needed. These actions are covered by the new CE language as
long as they occur within the existing right-of-way and in a manner
that substantially conforms to the preexisting design, function, and
location as the original.
The phrase ``substantially conforms to the preexisting design,
function, and location'' is used to limit the amount of ground
disturbance or resource impact. The phrase ``substantially conforms''
allows for some deviation from the
[[Page 11598]]
original footprint, design, and function, but does not allow
construction of a facility that is substantially different in nature.
This addition goes beyond the language provided in section 1315 of MAP-
21, but is consistent with the Agencies' practice in funding these
actions. Work is restricted to the area within the existing right-of-
way as an additional measure to limit the likelihood of potential
impacts to protected resources. The phrase ``which may include upgrades
to meet existing codes and standards as well as upgrades warranted to
address conditions that have changed since the original construction''
allows for the restoration of the facility taking into account up-to-
date codes and standards, but also allows for situations where
restoration should accommodate changed conditions. For example, new
flood risk information could be taken into account in the design of the
transportation facility even when the community has not adopted a
higher floodplain code. Another example is when the reconstruction of
water crossing presents an opportunity to address fish passage
concerns. In these situations conditions have changed since the
original construction that may warrant a construction approach that
goes beyond existing codes and standards. As previously noted, even if
the new CE language applies, the Agencies must comply with the
requirements of other environmental laws (e.g., section 106 under NHPA,
section 404 of the CWA, 23 U.S.C. 138/49 U.S.C. 303 (section 4(f)),
section 7 under ESA, bridge permits under the General Bridge Act of
1946) to address impacts in those unique situations where protected
resources are present in the existing right-of-way.
The language in the final rule addresses the six additional
activities proposed in the NPRM and comments received from the public
on the inclusion of these activities. Below is a discussion of comments
received on each of the proposed additional activities and how the
final rule language reflects modifications to the proposal in response
to these comments.
(1) Construction of engineering and design changes to a damaged
facility to meet current design standards
One commenter expressed support for including this activity as a
CE, noting that FEMA includes this activity as a CE under 44 CFR
10.8(d)(2)(xv), which allows for a CE for the ``[r]epair,
reconstruction, restoration, elevation, retrofitting, upgrading to
current codes and standards, or replacement of any facility in a manner
that substantially conforms to the preexisting design, function and
location.'' Others commented in support of this provision with one
noting that ``this provision would help to ensure that emergency repair
projects can qualify for a CE when they are designed to meet current
standards.''
The Agencies agree with these comments and modified the proposed
language in the NPRM. The new sections 771.117(c)(9)(ii) and
771.118(c)(11)(ii) provide for the ``repair, reconstruction,
restoration, retrofitting, or replacement of any road, highway, bridge,
tunnel, or transit facility (such as a ferry dock or bus transfer
station), including ancillary transportation facilities (such as
pedestrian/bicycle paths and bike lanes), that is in operation or under
construction when damaged and the action: (A) [o]ccurs within the
existing right-of-way and in a manner that substantially conforms to
the preexisting design, function, and location as the original (which
may include upgrades to meet existing codes and standards as well as
upgrades warranted to address conditions that have changed since the
original construction); and [i]s commenced within a 2-year period
beginning on the date of the declaration.'' A substantiation record
summary which includes benchmarking FEMA's CE(xv), is provided in the
docket for this rulemaking.
(2) Repair and reconstruction of adjacent transportation facilities
within the right-of-way damaged by the emergency (such as bike paths or
ancillary structures);
One commenter noted that ``adjacent facilities often are affected
by emergencies and are in need of emergency repairs at the same time
primary facilities are repaired. Not repairing adjacent facilities may
expose the primary facility to further damage and increase the risk of
repeated failure.'' Another commenter noted that many of the listed
activities are already covered under 23 CFR 771.117(c) and expressed
support for including this activity in the CE. One commenter
recommended inclusion of ``transportation facilities and infrastructure
damaged by the emergency'' in this provision.
The Agencies agree with these comments and have included ancillary
transportation facilities in the final CE language. Ancillary
transportation facilities, such as pedestrian/bicycle paths, bike
lanes, and streetscape, contribute to the function of the road,
highway, bridge, tunnel, or transit facility and are co-located to
provide for the overall functioning of the transportation system
network. Permanently repairing such adjacent facilities that previously
existed or are under construction at the time of the incident and are
co-located with the primary transportation facility ensures that
already approved transportation facilities are fully replaced and
provides for the complete functioning of the transportation network
damaged by the incident. With this change, the CE language would cover
the whole project when the restoration of the road, highway, bridge,
tunnel, or transit facility includes repairing damaged ancillary
facilities. In the Agencies' experience, the level of impacts of
restoring damaged ancillary transportation facilities is typically not
significant when they are limited to the existing right-of-way and must
substantially conform to the preexisting design, function, and location
of the original facility. This is consistent with FEMA's availability
and use of FEMA CE (xv) and a review of FEMA's publicly available NEPA
documents. A substantiation record summary based on benchmarking is
provided in the docket for this rulemaking.
(3) Construction of betterments to the damaged facilities beyond
those eligible under 23 U.S.C. 125;
Two commenters noted that inclusion of betterments would provide
the opportunity to address scenarios where a culvert affected by an
emergency is too small to handle the current debris flows. Inclusion of
betterments would provide opportunities to install appropriately sized
culverts and to armor bridge abutments as part of permanent repairs
resulting from an emergency and help reduce long-term environmental
impacts by reducing the frequency of catastrophic failure. One
commenter stated that some betterments are minor activities, such as
installation of riprap or raising the elevation of the roadway, and
that these activities may add to the safety and life expectancy of the
facility. One commenter noted that many betterments are already listed
CEs. Additionally, other commenters expressed concerns about the lack
of specificity as to what constituted betterments beyond those eligible
under 23 U.S.C. 125.
The FHWA defines ``betterments'' as ``[a]dded protective features,
such as rebuilding of roadways at a higher elevation or the lengthening
of bridges, or changes which modify the function or character of a
highway facility from what existed prior to the disaster or
catastrophic failure, such as additional lanes or added access
control'' (23 CFR 668.103). Under the FHWA Emergency Relief Program,
betterments are eligible
[[Page 11599]]
for Federal assistance if they are economically justified in accordance
with 23 CFR 668.109(b)(6). Betterments may add protective features
within the right-of-way such as rebuilding roadways at a higher
elevation, installation of riprap, raising bridges, increasing the size
of drainage structures, installation of seismic retrofits on bridges,
and adding scour protection at bridges. Betterments may also add
protective features that do not take place in the right-of-way such as
relocating roadways or stabilizing slide areas. Another group of
betterments involve the change of function or character of the
transportation facility such as adding grade separations and improving
access control. Upgrades to current codes and standards are eligible
actions but are not considered to be ``betterments.'' The FTA does not
currently use the term ``betterments.''
The Agencies believe that they do not need to specifically call out
``betterments'' in the new CE language because it is not a term of art
that is used in the FTA Emergency Relief Program. The Agencies agree
that the new CE language can include some improvements on the original
project or facility that was damaged, particularly if they help
conserve Federal resources and protect public safety and health (see
MAP-21 sec. 1315(b)). Therefore, improvements that are related to the
covered activities (i.e., repair, reconstruction, restoration,
retrofitting, or replacement) and that meet the specified conditions
(i.e., occur within the existing right-of-way and in a manner that
substantially conforms to the preexisting design, function, and
location as the original) are covered by the new CE language. For
example, enlarging a culvert or armoring activities may be covered if
they are needed for the upgrade of the facility to current codes,
conditions, and standards.
One commenter specifically commented that betterments ``may either
deliberately or inadvertently facilitate increased traffic capacity
and/or cause significant ground disturbance in previously undisturbed
areas. These actions could significantly impact archaeological
properties, historic facilities (such as the road or bridge needing
repair), or a historic district that surrounds or is adjacent to the
facility needing repair'' and noted that compliance with 36 CFR part
800 typically is required for actions of this type. The commenter
acknowledged that a CE does not equate to a waiver of section 106
requirements, but thought that confusion may result on the part of
agencies responsible for fulfilling NEPA requirements on the project.
The commenter recommended that the final rule clarify that the CE does
not exempt the Agencies from other regulatory requirements and should
``specify extraordinary circumstances as an integral element of the
categorical exclusion to ensure that where appropriate, the presence of
historic properties may require a more extensive environmental review
under NEPA.''
The Agencies agree with the comment. The Agencies have clarified
throughout the preamble of this final rule the requirement for
consideration of unusual circumstances, which give rise to the
potential for significant impacts on properties protected by 23 U.S.C.
138/49 U.S.C. 303 (section 4(f)) or section 106 of NHPA (sections
771.117(b)(3) and 771.118(b)(3)), when applying the CE to a proposed
action. The Agencies also acknowledge the need for compliance with
other environmental requirements in addition to NEPA. Finally, through
the language in this final rule, the Agencies are applying this CE only
to those improvements that are part of the reconstruction, retrofit, or
replacement action when they occur within the existing right-of-way and
substantially conform to the pre-existing design, function, and
location as the original.
(4) Construction of engineering and design changes to a damaged
facility for the purpose of seismic retrofitting;
One commenter suggested broadening this provision to allow for
seismic retrofitting prior to a natural disaster or structure failure
in addition to seismic retrofitting following an event that caused
damage in order to extend the life of the facility. The commenter noted
that seismic retrofitting to prevent damage might result in less damage
to the environment than waiting to perform seismic retrofitting
activities after damage has occurred. Another commenter expressed
support for inclusion of seismic retrofitting activities in the CE.
Seismic retrofits of a damaged facility (i.e., road, highway,
bridge, tunnel, transit facility, or ancillary transportation facility)
would be covered by the new CE language. The new CE language
specifically addresses the need for expediency in the restoration of
transportation infrastructure damaged by qualifying events and to
capitalize on the opportunity created by these events to incorporate
resiliency principles in these restoration activities. Incorporation of
resiliency principles would help conserve Federal resources by avoiding
repetitive damage to these facilities as a result of similar disasters
and to avoid significant damage from other potential hazards. The
Agencies agree that improving surface transportation facilities before
a disaster strikes is the ideal approach. Seismic retrofits prior to a
disaster are outside the scope of section 1315(a) of MAP-21 and this
regulation. However, the Agencies note that there are other CEs in 23
CFR part 771 that could be relied upon to make improvements to a
transportation facility prior to a disaster such as 23 CFR
771.117(c)(12), (c)(8), (d)(1), (d)(2), and (d)(3) for FHWA actions and
23 CFR 771.118(c)(1), (c)(2), (c)(8), (d)(1), and (d)(6) for FTA
actions.
(5) Construction of engineering and design changes to a damaged
facility to deal with future extreme weather events and sea level rise;
One commenter expressed support for inclusion of this provision and
provided an example of improvements made to a bridge, and processed as
a CE, that allowed for improvements to the bridge as part of emergency
repairs that increased the likelihood of the structure withstanding the
stresses of future extreme weather events. The commenter also provided
other examples of roadways that were improved to accommodate future
storm events after being washed out. Another commenter expressed
support of this provision and noted that recent severe storm events on
the East Coast underscore the importance of providing flexibility to
States to easily update infrastructure design to upgrade facilities
after storm events to accommodate future storm events.
The Agencies agree that the new CE language should allow for some
improvements on the original transportation facility based on the
Agencies' experience with past actions, consideration of FEMA's
experience with its CE (xv), and the determination that those types of
improvements do not typically have a significant effect on the
environment. Changes to a damaged facility that are related to the
covered activities (i.e., repair, reconstruction, restoration,
retrofitting, or replacement) and that meet the specified conditions
(i.e., occur within the existing right-of-way and in a manner that
substantially conforms to the preexisting design, function, and
location as the original) are covered by the new CE language. The
phrase ``substantially conforms to the preexisting design, function,
and location'' is used to limit the amount of ground disturbance or
resource impact. The phrase ``substantially conforms'' allows for some
deviation from the original footprint, but does not allow construction
of a facility that is substantially different in nature. Improvements
that are not covered by
[[Page 11600]]
the new CE language may be covered by other CEs in 23 CFR part 771 such
as 23 CFR 771.117(c)(12), (c)(8), (d)(1), (d)(2), and (d)(3) for FHWA
actions and 23 CFR 771.118(c)(1), (c)(2), (c)(8), (d)(1), and (d)(6)
for FTA actions.
One commenter raised concerns about the potential impacts of these
types of actions on the human environment. The commenter provided that,
as an example, projects covered by this provision could involve
potential relocation of infrastructure to accommodate sea level rise.
One commenter proposed inclusion of additional text should the final
rule include the six proposed additional activities: ``(7)
Modifications to the design or betterments to a damaged facility shall
be a CE if such changes do not expand the footprint of the facility or
have negative environmental impacts that would be greater than a
reconstruction without such modifications or betterments.''
The Agencies agree that some actions under the proposed activity
could raise environmental impact concerns, which is one of the reasons
for consideration of unusual circumstances prior to applying the CE. In
the Agencies' experience the level of impacts for these actions is
normally not significant. The Agencies have created restrictions that
limit the amount and level of environmental impacts, including impacts
on the human environment. The phrase ``substantially conforms to the
preexisting design, function, and location'' is used to limit the
amount of ground disturbance or resource impact. The phrase
``substantially conforms'' allows for some deviation from the original
footprint, but does not allow construction of a facility that is
substantially different in nature. In addition, work is restricted to
the area within the existing right-of-way as an additional measure to
limit impacts to protected resources. The proposed actions must
continue to meet the requirements of other environmental laws (e.g.,
section 106 under NHPA, section 404 of CWA, 23 U.S.C. 138/49 U.S.C. 303
(section 4(f)), section 7 under ESA, bridge permits under the General
Bridge Act of 1946) when protected resources are present in the
existing right-of-way. The additional safeguards provided under other
applicable laws and regulations provide further assurance that the
activities included in the new FHWA and FTA CEs do not have the
potential to result in significant impacts on the human environment.
This is consistent with FEMA's availability and use of FEMA CE (xv) and
a review of FEMA's publicly available NEPA documents. A substantiation
record summary based on benchmarking is provided in the docket for this
rulemaking.
(6) Construction of other engineering and design changes to a
damaged facility to address concerns such as safety and environmental
impacts.
Two commenters supported allowing proactive approaches to natural
hazards under the emergency repairs CE, like design and engineering
changes to address earthquakes, extreme weather events, sea level rise,
and other safety and environmental impacts. One commenter stated that
including these activities in the CE will allow States and transit
agencies to reduce the impact of future emergency events, rather than
limiting the agencies' efforts merely to reacting to emergencies. One
commenter expressed support for this provision noting the example
modifications to a roadway following a washout event that provided the
opportunity for the State DOT to modify the roadway revetment and
protect sea turtle nesting habitat. One commenter noted that these
activities should be expanded to include transit related
infrastructure.
The final CE language in sections 771.117(c)(9)(ii) and
771.118(c)(11)(ii) includes engineering and design changes to address
safety and environmental impacts as long as they are related to the
covered activities (i.e., repair, reconstruction, restoration,
retrofitting, or replacement) and meet the specified conditions (i.e.,
occur within the existing right-of-way and in a manner that
substantially conforms to the preexisting design, function, and
location as the original). As discussed above, the final language
includes ``transit facilities'' in the infrastructure covered by the
new CE language.
Statutory/Legal Authority for This Rulemaking
The Agencies derive explicit authority for this rulemaking action
from 49 U.S.C. 322, which provides authority to ``[a]n officer of the
Department of Transportation [to] prescribe regulations to carry out
the duties and powers of the officer.'' That authority is delegated to
the Agencies through 49 CFR 1.81(a)(3), which provides that the
authority to prescribe regulations contained in 49 U.S.C. 322 is
delegated to each Administrator ``with respect to statutory provisions
for which authority is delegated by other sections in [49 CFR Part
1].'' Included in 49 CFR part 1, specifically 49 CFR 1.81(a)(5), is the
delegation of authority with respect to NEPA, the statute implemented
by this final rule. Moreover, the Council on Environmental Quality
regulations that implement NEPA provide at 40 CFR 1500.6 that
``[a]gencies shall review their policies, procedures, and regulations
accordingly and revise them as necessary to insure full compliance with
the purposes and provisions of [NEPA].''
Rulemaking Analyses and Notices
The Agencies considered all comments received before the close of
business on the comment closing date indicated above, and the comments
are available for examination in the docket at the above address. The
Agencies also considered comments received after the comment closing
date and filed in the docket prior to this final rule.
Immediate Effective Date
The Agencies have determined that this rule be made effective
immediately upon publication. The Administrative Procedure Act (5
U.S.C. 553(d)) requires that a rule be published 30 days prior to its
effective date unless one of three exceptions applies. One of these
exceptions is when the agency finds good cause for a shorter period.
Here, the Agencies have determined that ``good cause'' exists for
immediate effectiveness of this rule because this rule is expected to
apply in many cases that address the immediate need to fund repairs of
transit systems facilities and equipment damaged by Hurricane Sandy.
Hurricane Sandy affected mid-Atlantic and northeastern States in
October 2012, and particularly devastated transit operations in New
Jersey and New York. These operations serve about 40 percent of all
transit riders in the country. With Congress' passage of supplemental
appropriations, Public Law 113-2, that fund FTA's Emergency Relief
Program authorized at 49 U.S.C. 5324, immediate promulgation of the
categorical exclusion for actions under that program will expand the
FTA's ability to support much needed Hurricane Sandy recovery efforts
and process these new funding requests in an expeditious manner, while
still ensuring that the environment is protected. Thus, it is in the
public interest for this final rule to have an immediate effective
date. The Agencies acknowledge that although the justification for
making this rule immediately effective stems from the need for transit
recovery actions in response to Hurricane Sandy, the revisions
contained within this final rule will be immediately applicable to a
broader suite of the Agencies' funded and approved projects.
[[Page 11601]]
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
Agencies have determined 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 increase efficiencies in environmental review by making
changes in the Agencies' environmental review procedures.
The activities this final rule adds to sections 771.117(c)(9) and
771.118(c)(11), which are described in section 1315(a), are inherently
limited in their potential to cause significant environmental impacts
because the use of the CEs is subject to the unusual circumstances
provision in 23 CFR 771.117(b) and 23 CFR 771.118(b), respectively.
These provisions require appropriate environmental studies, and may
result in the reclassification of the NEPA evaluation of the project to
an EA or EIS, if the Agencies determine that the proposal involves
potentially significant or significant environmental impacts. These
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. 601-612), the Agencies evaluated the effects of this final
rule on small entities and anticipate that this action would not have a
significant economic impact on a substantial number of small entities.
The 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 final rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This final 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 action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, and the Agencies have determined that this action would
not have sufficient federalism implications to warrant the preparation
of a federalism assessment. The Agencies have also determined that this
action will not preempt any State law or State regulation or affect the
States' ability to discharge traditional State governmental functions.
The NPRM invited 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. No comments on this issue were
provided by State or local governments.
Executive Order 13175 (Tribal Consultation)
The Agencies 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 Agencies have analyzed this action under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agencies 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 these programs and were carried out in the development of this rule.
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 Agencies determined that
final rule 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 12898 (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a), 91 FR 27534, May 10, 2012, require DOT agencies to
achieve environmental justice (EJ) as part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects, including interrelated
social and economic effects, of their programs, policies, and
activities on minority populations and low-income populations in the
United States. The DOT Order requires DOT agencies to address
compliance with the Executive Order and the DOT Order in all
[[Page 11602]]
rulemaking activities. In addition, both Agencies have issued
additional documents relating to administration of the Executive Order
and the DOT Order. On June 14, 2012, the FHWA issued an update to its
EJ order, FHWA Order 6640.23A, ``FHWA Actions to Address Environmental
Justice in Minority Populations and Low Income Populations'' (available
online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). FTA
also issued an update to its EJ policy, ``FTA Policy Guidance for
Federal Transit Recipients'', 77 FR 42077, July 17, 2012 (available
online at www.fta.dot.gov/legislation_law/12349_14740.html).
The Agencies have evaluated the CE under the Executive Order, the
DOT Order, the FHWA Order, and the FTA Circular. The Agencies have
determined that the designation of the new CE for emergency actions
through this rulemaking will not cause disproportionately high and
adverse effects on minority or low income populations. The rule simply
adds a provision to the Agencies' NEPA procedures under which they may
decide in the future that a project or program does not require the
preparation of an EA or EIS. The rule itself has no potential for
effects until it is applied to a proposed action requiring approval by
the FHWA or FTA.
At the time the Agencies apply the CE established by this
rulemaking, the Agencies have an independent obligation to conduct an
evaluation of the proposed action under the applicable EJ orders and
guidance. The adoption of this rule does not affect the scope or
outcome of that EJ evaluation. Nor does the new rule affect the ability
of affected populations to raise any concerns about potential EJ
effects at the time the Agencies consider applying the new CE. Indeed,
outreach to ensure the effective involvement of minority and low income
populations in the environmental review process is a core aspect of the
EJ orders and guidance. For these reasons, the Agencies also have
determined no further EJ analysis is needed and no mitigation is
required in connection with the designation of the CE for emergency
actions.
Executive Order 13045 (Protection of Children)
The Agencies have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The Agencies certify that this action would not concern an
environmental risk to health or safety that may disproportionately
affect children.
Executive Order 12630 (Taking of Private Property)
The Agencies 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 EIS;
those that normally require preparation of an EA; 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).
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects
23 CFR Part 771
Environmental protection, Grant programs--transportation, Highways
and roads, Historic preservation, Public lands, Recreation areas,
Reporting and recordkeeping requirements.
49 CFR Part 622
Environmental impact statements, Grant programs--transportation,
Public transit, Recreation areas, Reporting and record keeping
requirements.
In consideration of the foregoing, the FHWA and FTA amend 23 CFR
part 771 and 49 CFR part 622 as follows:
Title 23
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES.
0
1. 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; 40 CFR Parts 1500-
1508; 49 CFR 1.81, 1.85; Pub. L. 109-59, 119 Stat. 1144, sections
6002 and 6010; Pub. L. 112-141, 126 Stat. 405, section 1315.
0
2. Amend Sec. 771.117 by revising paragraph (c)(9) to read as follows:
Sec. 771.117 FHWA categorical exclusions.
* * * * *
(c) * * *
(9) The following actions for transportation facilities damaged by
an incident resulting in an emergency declared by the Governor of the
State and concurred in by the Secretary, or a disaster or emergency
declared by the President pursuant to the Robert T. Stafford Act (42
U.S.C. 5121):
(i) Emergency repairs under 23 U.S.C. 125; and
(ii) The repair, reconstruction, restoration, retrofitting, or
replacement of any road, highway, bridge, tunnel, or transit facility
(such as a ferry dock or bus transfer station), including ancillary
transportation facilities (such as pedestrian/bicycle paths and bike
lanes), that is in operation or under construction when damaged and the
action:
(A) Occurs within the existing right-of-way and in a manner that
substantially conforms to the preexisting design, function, and
location as the original (which may include upgrades to meet existing
codes and standards as well as upgrades warranted to address conditions
that have changed since the original construction); and
(B) Is commenced within a 2-year period beginning on the date of
the declaration.
* * * * *
0
3. Amend Sec. 771.118 by adding paragraph (c)(11) to read as follows:
Sec. 771.118 FTA categorical exclusions.
* * * * *
(c) * * *
[[Page 11603]]
(11) The following actions for transportation facilities damaged by
an incident resulting in an emergency declared by the Governor of the
State and concurred in by the Secretary, or a disaster or emergency
declared by the President pursuant to the Robert T. Stafford Act (42
U.S.C. 5121):
(i) Emergency repairs under 49 U.S.C. 5324; and
(ii) The repair, reconstruction, restoration, retrofitting, or
replacement of any road, highway, bridge, tunnel, or transit facility
(such as a ferry dock or bus transfer station), including ancillary
transportation facilities (such as pedestrian/bicycle paths and bike
lanes), that is in operation or under construction when damaged and the
action:
(A) Occurs within the existing right-of-way and in a manner that
substantially conforms to the preexisting design, function, and
location as the original (which may include upgrades to meet existing
codes and standards as well as upgrades warranted to address conditions
that have changed since the original construction); and
(B) Is commenced within a 2-year period beginning on the date of
the declaration.
* * * * *
Title 49
PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
0
4. The authority citation for subpart A is revised to read as follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303; 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 1.81, 1.85; and Pub. L. 112-141, 126
Stat. 405, section 1315.
Issued on: February 8, 2013.
Victor M. Mendez,
Federal Highway Administrator.
Peter Rogoff,
Federal Transit Administrator.
[FR Doc. 2013-03494 Filed 2-15-13; 8:45 am]
BILLING CODE 4910-22-P