Federal Register, Volume 78 Issue 40 (Thursday, February 28, 2013)

[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Proposed Rules]
[Pages 13609-13614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04678]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 771

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2012-0007]
FHWA RIN 2125-AF48
FTA RIN 2132-AB05

Environmental Impact and Related Procedures

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

ACTION: Notice of proposed rulemaking (NPRM).

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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's (FTA) joint procedures
that implement the National Environmental Policy Act (NEPA). The
revisions are prompted by enactment of the Moving Ahead for Progress in
the 21st Century Act (MAP-21). This NPRM proposes to add new
categorical exclusions for projects within an existing operational
right-of-way and projects receiving limited Federal funding, as
described in MAP-21. The Agencies seek comments on the proposals
contained in this document.

DATES: Comments must be received on or before April 29, 2013.

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. and 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 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 FHWA: Kreig Larson, Office of
Project Delivery and Environmental Review (HEPE), (202) 366-2056, or
Jomar Maldonado, Office of the Chief Counsel (HCC), (202) 366-1373,
Federal Highway Administration, 1200 New Jersey Ave. SE., Washington,
DC 20590-0001. For FTA: Megan Blum, Office of Planning and Environment
(TPE), (202) 366-0463, or Dana Nifosi, Office of Chief Counsel (TCC),
(202) 366-4011. Office hours are from 8:00 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
Secretary of Transportation must meet. Sections 1316 and 1317 require
the Secretary to promulgate regulations designating two types of
actions as categorically excluded under 23 CFR 771.117(c) from the
requirement under 40 CFR 1508.4 to prepare an environmental assessment
(EA) or environmental impact statement (EIS): (1) Any project (as
defined in 23 U.S.C. 101(a)) within an existing operational right-of-
way and (2) any project that receives less than $5,000,000 of Federal
funds or with a total estimated cost of not more than $30,000,000 and
Federal funds comprising less than 15 percent of the total estimated
project cost. Since MAP-21's enactment, FTA established 23 CFR 771.118
and is therefore proposing to designate the two new categorical
exclusions in section 771.118(c). The FHWA and FTA, hereafter referred
to as the ``Agencies,'' are carrying out this rulemaking on behalf of
the Secretary.

General Discussion of the Proposals

This NPRM proposes to revise 23 CFR 771.117(c) and 23 CFR
771.118(c) by designating new categorical exclusion (CE) provisions
mandated by Congress under sections 1316 and 1317 of MAP-21. The
Council on Environmental Quality's (CEQ) guidance, Establishing,
Applying, and Revising Categorical Exclusions under the National
Environmental Policy Act (75 FR 75628, December 6, 2010), makes
recommendations on procedures for establishing CEs in accordance with
section 1507.3 of the CEQ NEPA implementing regulations. The CEQ
guidance clarifies that the establishment and use of CEs called for by
statute are governed by the terms of the specific legislation and
subsequent interpretation by the agencies charged with the
implementation of the statute (75 FR at 75631 (Footnote 6)). Sections
1316 and 1317 of MAP-21 describe the actions and projects that must be
the subject of a rulemaking to categorically exclude those actions and
projects from further NEPA analysis when there are no unusual
circumstances, and this NPRM focuses on the Agencies' implementation
and interpretations of those provisions. The Agencies are proposing two
CEs that use the statutory language provided under sections 1316 and
1317 along with some clarifying language where the Agencies believe
such language is needed to achieve the overall purposes of sections
1316 and 1317, or to avoid confusion in program administration.
Actions that are within the scope of designated CEs in 23 CFR
771.117(c) and 771.118(c) normally do not require any further NEPA
analysis by the Agencies. Such actions only need a record in the
project file that confirms the action fits the description of the CE
and, in accordance with 23 CFR 771.117(b) and 771.118(b), that no
unusual circumstances exist that require environmental studies to
determine whether the CE classification is proper or whether further
NEPA analysis and documentation is necessary. Examples

[[Page 13610]]

of unusual circumstances--which are similar to extraordinary
circumstances in the CEQ NEPA implementing regulations--include
significant environmental impacts, substantial controversy on
environmental grounds, significant impacts on properties protected by
Section 4(f) of the DOT 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); 23 CFR
771.118(b)(1)-(4)).
For the use of the proposed CEs, as for the use of any CE, the
action must also 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 that projects cannot be 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. In addition, even though a CE may apply to
a proposed action, thereby satisfying NEPA requirements, all other
requirements applicable to the activity under other Federal and State
laws and regulations still apply, such as the Clean Water Act, Clean
Air Act, NHPA, and the Endangered Species Act. Some of these
requirements may require the collection and analysis of information, or
coordination and consultation efforts that are independent of the
Agencies' NEPA CE determination. Also, some of these requirements may
involve actions by other Federal agencies (e.g., approvals or issuance
of permits) that could trigger a different level of NEPA analysis for
those Federal agencies. These requirements must be met before the
action proceeds regardless of the availability of a CE for the
transportation project under 23 CFR part 771.
The first proposed CE, pursuant to section 1316 of MAP-21, will
apply to projects, as defined in section 101(a) of title 23, U.S.C.,
that occur within an existing operational right-of-way. Section 101(a)
of title 23, U.S.C., defines ``project'' to mean ``any undertaking
eligible for assistance under [title 23].'' This definition includes
capital transit projects that are eligible for financial assistance
under title 23, U.S.C., through the eligibility criteria under the
Surface Transportation Program and Congestion Mitigation and Air
Quality Improvement Program, which specifically include all capital
transit projects eligible for funding under chapter 53 of title 49,
U.S.C. It also includes projects carried out under the Federal Lands
Highway programs. Section 1316(b) of MAP-21 defines ``operational
right-of-way'' as ``all the real property interests acquired for the
construction, operation, or mitigation of a project (as defined in
section 101(a) of title 23, U.S.C.), including the locations of the
roadway, bridges, interchanges, culverts, drainage, clear zone, traffic
control signage, landscaping, and any rest areas with direct access to
a controlled access highway.''
Consistent with this definition, proposed paragraph (c)(22) of 23
CFR 771.117 and proposed paragraph (c)(12) of 23 CFR 771.118 would
include conditions that require the action's scope be within the
geographic area previously permanently acquired, needed, and used for
the construction, mitigation, operation, and maintenance of an existing
transportation facility, which includes any facility eligible for
funding under title 23, U.S.C., or chapter 53 of title 49, U.S.C. The
geographic area under section 771.117(c)(22) includes the roadway,
bridges, interchanges, culverts, drainage, clear zone, traffic control
signage, landscaping, and any rest areas with direct access to a
controlled access highway. The Agencies also propose to include
analogous examples of infrastructure common to transit projects, and
propose to define the geographic area under section 771.118(c)(12) to
include roadway, fixed guideway, culverts, drainage, clear zone,
traffic control signage, landscaping, substations, and any park and
ride lots with direct access to an existing transit facility. Right-of-
way previously acquired that is not being used for the mitigation,
operation, or maintenance of an existing transportation facility is not
considered to be part of the operational right-of-way. Actions in
right-of-way acquired for corridor preservation or future corridor
expansion are not eligible if the corridors are not in operational use
at the time of the CE application.
For all actions processed under these proposed CEs, the project
record would need to demonstrate that it fits within the conditions
specified in the proposed CE language and that no unusual circumstances
exist that require environmental studies to determine whether the CE
classification is proper or further NEPA analysis and documentation is
required (see sections 771.117(b) and 771.118(b)).
The second proposed CE, pursuant to section 1317 of MAP-21, will
apply to projects that receive less than $5,000,000 of Federal funds or
with a total estimated cost of not more than $30,000,000 and Federal
funds comprising less than 15 percent of the total estimated project
cost. The proposed paragraph (c)(23) of 23 CFR 771.117 and proposed
paragraph (c)(13) of 23 CFR 771.118 would apply to projects that
receive funding under title 23, U.S.C., or chapter 53 of title 49,
U.S.C., but the Federal funding thresholds include any Federal funding
regardless of source. These CEs would apply to projects that only
involve Agency funding decisions and actions. These CEs would not be
applicable to projects that require other Agency actions (such as
Interstate access approvals for FHWA), even if that approval action is
for a project with a total project cost that meets the parameters of
the CEs. The project record would need to demonstrate that the action
fits within one of the funding thresholds for this CE and that no
unusual circumstances exist. The project record would also need to
demonstrate that the action has independent utility, connects logical
termini when applicable (i.e., linear facilities), and does not
restrict consideration of alternatives for other reasonably foreseeable
transportation improvements.

Section-by-Section Discussion of the Proposals

In General

This NPRM contains four proposed additions to the regulations at 23
CFR part 771. The CEs proposed for sections 771.117(c)(22) and
771.118(c)(12) are identical, as are the CEs proposed for sections
771.117(c)(23) and 771.118(c)(13). The identical proposals will be
described in this preamble together for ease of reading.

Proposed Section 771.117(c)(22) and 771.118(c)(12) Categorical
Exclusion

Two new sections would be added to 23 CFR part 771 to implement
MAP-21 section 1316: sections 771.117(c)(22) for FHWA and
771.118(c)(12) for FTA. Section 1316 of MAP-21 requires the Secretary
to promulgate regulations that designate as categorically excluded
projects, as defined in section 101(a) of title 23, U.S.C., occurring
within the existing operational right-of-way. Section 101(a) of title
23, U.S.C., defines ``project'' to mean ``any undertaking eligible for
assistance under [title 23].'' This definition includes transit
projects that are eligible for financial assistance under title 23,
U.S.C. It also includes projects carried out under the Federal Lands
Highway programs.

[[Page 13611]]

``Operational right-of-way'' is defined in section 1316(b) of MAP-
21 as ``all real property interests acquired for the construction,
operation, or mitigation of a project (as defined in section 101(a) of
title 23, U.S.C.), including the locations of the roadway, bridges,
interchanges, culverts, drainage, clear zone, traffic control signage,
landscaping, and any rest areas with direct access to a controlled
access highway.'' The Agencies are proposing to include regulatory
language to clarify the meaning of the statutory definition in the
context of the Agencies' programs. This NPRM proposes to define the
``operational right-of-way'' as those portions of the existing right-
of-way that have been disturbed for an existing transportation facility
that is in operational use, including areas that are regularly
maintained such as clear zones and landscaping. ``Transportation
facility'' is used in the CE to establish that the existing facility or
structure must be related to surface transportation. The use of the
phrase is intended to be used in its plain meaning, and is specifically
not intended to be limited to the term ``Transportation facilities'' as
defined in 23 CFR 973.104, which is applicable to the Indian
Reservation Roads Program. The proposed language provides that the
``operational right-of-way'' includes the features associated with the
physical footprint of the transportation facility (including the
roadway, bridges, interchanges, culverts, drainage) and other areas
regularly maintained, such as clear zones, traffic control signage,
landscaping, and any rest areas with direct access to a controlled
access highway. Under the proposal, ``operational right-of-way'' would
not include portions of the existing right-of-way that are not
currently being used or regularly maintained for transportation
purposes.
Many of these projects could be categorically excluded under CEs
already designated in sections 771.117 and 771.118. Examples of
projects that would, absent unusual circumstances, be categorically
excluded under existing provisions include construction of bicycle and
pedestrian lanes, paths, and facilities, landscaping, track and railbed
maintenance and improvements, and installation of traffic control and
detector devices. The new CEs (sections 771.117(c)(22) and
771.118(c)(12)), when finalized, could apply to projects that involve a
change from one transportation use to another or an increase in
facility capacity, if the change does not involve unusual
circumstances.

Proposed Sections 771.117(c)(23) and 771.118(c)(13) Categorical
Exclusion

The Agencies propose to add new sections 771.117(c)(23) and
771.118(c)(13) to implement MAP-21 section 1317, which requires the
Secretary to promulgate regulations that designate as categorically
excluded actions receiving limited Federal funds. Specifically, section
1317(1) of MAP-21 provides for the designation of the CE for ``any
project--(A) that receives less than $5,000,000 of Federal funds; or
(B) with a total estimated cost of not more than $30,000,000 and
Federal funds comprising less than 15 percent of the total estimated
project cost.''
The Agencies propose to use the phrase ``Federally funded
projects'' to clarify that the project must receive some amount of
Federal funding to be eligible for these CEs. This interpretation is
consistent with the title in section 1317, the use of the term
``funds'' in section 1317(1)(A)-(B), and the statute's Conference
Report indicating Congress intended the CE to cover those actions that
receive limited Federal funding (House Report 112-557, 112th Congress,
at 598 (June 28, 2012)). This term includes, but is not limited to,
projects receiving Federal grants, loans, loan guarantees, lines of
credit, and projects receiving funds authorized for the Federal Lands
Access Program, the Federal Lands Transportation Program, and the
Tribal Transportation Program. The Federal funding thresholds take into
account any Federal funding to cover the capital costs of the
undertaking regardless of source, but exclude Federal funds for
operating costs and expenses that may be provided to the facility.
The Agencies interpret the section 1317(1)(A)-(B) provisions on
levels of Federal funding and on estimated project costs as requiring
consideration during the NEPA process of whether the projected level of
Federal funding and the estimated project cost, as applicable, are
reasonably supported by the facts. A change occurring after the NEPA
determination, while there is still an FHWA and/or FTA action to be
taken, that raises the level of Federal funding beyond the thresholds
specified in the CEs will trigger re-evaluation under 23 CFR 771.129
and possible preparation of additional NEPA documentation. Section
771.129(c) requires the ``applicant,'' as defined in 23 CFR 771.107(f),
to consult with the appropriate ``Administration,'' as defined in 23
CFR 771.107(d), prior to requesting any major approvals or grants
(including changes in project plans, specifications, or estimates) to
establish whether the CE designation remains valid for the requested
Agency action.
The proposed regulatory language includes the phrase ``that do not
require Administration actions other than funding'' to clarify that the
CE is limited to situations where the only Agency action involved is
funding. ``Administration action'' is defined in 23 CFR 771.107(c) as
the approval by the Agencies of the applicant's request for Federal
funds for construction, and approval of activities such as joint and
multiple use permits, changes in access control, etc., which may or may
not involve a commitment in Federal funds. Expanding the CE to apply to
federally funded projects that involve other Agency action, even when
the funds are within the limits established by Congress, would be
beyond the statutory limits of the CE. For example, a project that
would receive Federal funding at or below the specified limits but that
also would need an Interstate access approval from FHWA under section
111(a) of title 23, U.S.C., could not be processed as a CE under the
proposed rule. Projects requiring Agency action other than Agency
funding may still be eligible for a CE determination under other CEs in
sections 771.117 or 771.118.
For the use of the proposed CEs, as for the use of any CE, the
action must also comply with NEPA requirements relating to connected
actions and segmentation (see, e.g., 40 CFR 1508.25, and 23 CFR
771.111(f)).

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
Agencies 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
NPRM 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

[[Page 13612]]

approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). The Agencies 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 23 CFR 771.117(c)(22)
and (c)(23) and 771.118(c)(12) and (c)(13), which are described in
section 1316 and 1317, 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
771.118(b). That provision requires appropriate environmental studies,
and may result in the reclassification of the proposal for evaluation
of the project through an EA or EIS, if the proposal involves
potentially significant or 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. The Agencies anticipate that the changes in this proposal
would enable projects to move more expeditiously through the Federal
review process and would reduce the preparation of extraneous
environmental documentation and analysis not needed for compliance with
NEPA and for ensuring that projects are built in an environmentally
responsible manner. The vast majority of FHWA actions presently are
determined to be CEs. In a recent survey conducted on CE usage, carried
out pursuant to MAP-21 section 1318, responding State departments of
transportation reported that 90 percent to 99 percent of their projects
qualified for CE determinations. Approximately 90 percent of FTA's
actions are within the scope of existing CEs (specifically, sections
771.118(c) and (d)). The Agencies anticipate the percentages may
increase with the promulgation of the proposed CEs. The FHWA and FTA
are not able to quantify the economic effects of these changes because
the types of projects that will be proposed for FHWA and FTA funding
and their potential impacts are unknown at this time, particularly
given changes to the programs in MAP-21. The Agencies request comment,
including data and information on the experiences of project sponsors,
on the likely effects of the changes being proposed.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), the Agencies 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).
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 Agencies have determined that this proposed action
would not have sufficient federalism implications to warrant the
preparation of a federalism assessment. The Agencies 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 Agencies have analyzed this action under Executive Order 13175,
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 this action 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 Agencies 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 Agencies 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,

[[Page 13613]]

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), 77 FR 27534 (May 10, 2012) (available online at
www.fhwa.dot.gov/enviornment/environmental_justice/ej_at_dot/order_56102a/index.cfm), 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 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). The 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 this proposed rule under the Executive
Order, the DOT Order, the FHWA Order, and the FTA Circular. The
Agencies have determined that the proposed new CEs, if finalized, would
not cause disproportionately high and adverse human health and
environmental effects on minority or low income populations. This
action proposes to add 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 proposed 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 proposed by this rulemaking,
the Agencies would have an independent obligation to conduct an
evaluation of the proposed action under the applicable EJ orders and
guidance to determine whether the proposed action has the potential for
EJ effects. The rule would not affect the scope or outcome of that EJ
evaluation. In any instance where there are potential EJ effects and
the Agencies were to consider applying one of the CEs proposed by this
rulemaking, public outreach under the applicable EJ orders and guidance
would provide affected populations with the opportunity to raise any
concerns about those potential EJ effects. See DOT Order 5610.2(a),
FHWA Order 6640.23A, and FTA Policy Guidance for Transit Recipients
(available at links above). Indeed, outreach to ensure the effective
involvement of minority and low income populations where there is
potential for EJ effects is a core aspect of the EJ orders and
guidance. For these reasons, the Agencies also have determined that no
further EJ analysis is needed and no mitigation is required in
connection with the designation of the proposed CEs.

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
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 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 Agencies propose to amend
title 23, Code of Federal Regulations part 771 and title 49, Code of
Federal Regulations part 622 as follows:

Title 23--Highways

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, 5301 and 5323; 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 1315, 1316 and 1317.

0
2. Amend Sec. 771.117 by adding paragraphs (c)(22) and (c)(23) to read
as follows:

Sec. 771.117 FHWA categorical exclusions.

* * * * *
(c) * * *

[[Page 13614]]

(22) Projects, as defined in 23 U.S.C. 101, that would take place
entirely within the existing operational right-of-way. The operational
right-of-way includes those portions of the right-of-way that have been
disturbed for an existing transportation facility or are regularly
maintained for transportation purposes. This area includes the features
associated with the physical footprint of the transportation facility
(including the roadway, bridges, interchanges, culverts, drainage,
fixed guideways, substations, etc.) and other areas regularly
maintained for transportation purposes such as clear zone, traffic
control signage, landscaping, any rest areas with direct access to a
controlled access highway, or park and ride lots with direct access to
an existing transit facility. It does not include portions of the
existing right-of-way that are not currently being used or not
regularly maintained for transportation purposes.
(23) Federally funded projects that do not require Administration
actions other than funding, and:
(i) That receive less than $5,000,000 of Federal funds; or
(ii) With a total estimated cost of not more than $30,000,000 and
Federal funds comprising less than 15 percent of the total estimated
project cost.
* * * * *
0
3. Amend Sec. 771.118 by adding paragraphs (c)(12) and (c)(13) to read
as follows:

Sec. 771.118 FTA categorical exclusions.

* * * * *
(c) * * *
(12) Projects, as defined in 23 U.S.C. 101, that would take place
entirely within the existing operational right-of-way. The operational
right-of-way includes those portions of the right-of-way that have been
disturbed for an existing transportation facility or are regularly
maintained for transportation purposes. This area includes the features
associated with the physical footprint of the transportation facility
(including the roadway, bridges, interchanges, culverts, drainage,
fixed guideways, substations, etc.) and other areas regularly
maintained for transportation purposes such as clear zone, traffic
control signage, landscaping, any rest areas with direct access to a
controlled access highway, or park and ride lots with direct access to
an existing transit facility. It does not include portions of the
existing right-of-way that are not currently being used or not
regularly maintained for transportation purposes.
(13) Federally funded projects that do not require Administration
actions other than funding, and:
(i) That receive less than $5,000,000 of Federal funds; or
(ii) With a total estimated cost of not more than $30,000,000 and
Federal funds comprising less than 15 percent of the total estimated
project cost.
* * * * *

Title 49--Transportation

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
4. 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 and
5323; 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, 1316 and 1317.

Issued on: February 22, 2013.
Victor M. Mendez,
Administrator, Federal Highway Administrator.
Peter Rogoff,
Administrator, Federal Transit Administration.
[FR Doc. 2013-04678 Filed 2-27-13; 8:45 am]
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