[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Proposed Rules]
[Pages 72624-72642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29413]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 771 and 774

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2015-0011]
FHWA RIN 2125-AF60
FTA RIN 2132-AB26


Environmental Impact and Related Procedures

AGENCY: Federal Highway Administration (FHWA), Federal Transit 
Administration (FTA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This NPRM provides interested parties with the opportunity to 
comment on proposed revisions to the FHWA and FTA joint regulations 
that implement the National Environmental Policy Act (NEPA) and Section 
4(f) of the Department of Transportation Act. The revisions are 
prompted by the enactment of the Moving Ahead for Progress in the 21st 
Century Act (MAP-21), which requires rulemaking to address programmatic 
approaches. This NPRM proposes to revise the FHWA/FTA Environmental 
Impact and Related Procedures and Parks, Recreation Areas, Wildlife and 
Waterfowl Refuges, and Historic Sites regulations due to MAP-21 changes 
to the environmental review process that FHWA and FTA have not 
previously captured in other rulemakings, such as the use of 
programmatic agreements and the use of single final environmental 
impact statement/record of decision documents. In addition, FHWA and 
FTA propose changes to the regulatory text to improve readability and 
to reflect current practice, consistent with an Executive order to 
improve regulations and regulatory review. The FHWA and FTA seek 
comments on the proposals contained in this notice.

DATES: Comments must be received on or before January 19, 2016.

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.
    Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New 
Jersey Ave. SE., between 9:00 a.m. and 5:00 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 Identifier Number (RIN) for the rulemaking at the 
beginning of your comments. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Neel Vanikar, Office of 
Project Development and Environmental Review, (202) 366-2068, or Diane 
Mobley, Office of Chief Counsel, (202) 366-1366. For FTA: Megan Blum, 
Office of Planning and Environment, (202) 366-0463, or Helen Serassio, 
Office of Chief Counsel, (202) 366-1974. The FHWA and FTA are both 
located at 1200 New Jersey Ave. SE., Washington, DC 20590. Office hours 
are from 9:00 a.m. to 5:00 p.m., 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 FHWA and 
FTA, hereafter referred to as the ``Agencies,'' must meet in complying 
with NEPA (42 U.S.C. 4321 et seq.), as well as a requirement to 
initiate a rulemaking to allow for the use of programmatic approaches. 
23 U.S.C. 139(b)(3)(A). Through this NPRM, the Agencies propose to 
revise their regulations that implement NEPA at 23 CFR part 771--
Environmental Impact and Related Procedures, and 23 U.S.C. 138 and 49 
U.S.C. 303 (hereafter referred to as Section 4(f) \1\) at 23 CFR part 
774--Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and 
Historic Sites. The proposed revisions would reflect MAP-21 
requirements and better reflect current Agency practice, as well as 
improve readability consistent with Executive Order 13563, ``Improving 
Regulation and Regulatory Review'' (2011).
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    \1\ Section 4(f) of the Department of Transportation Act of 1966 
was repealed in 1983 when it was codified without substantive change 
at 49 U.S.C. 303. A provision with the same meaning is found at 23 
U.S.C. 138. This regulation continues to refer to Section 4(f) as 
such because the policies Section 4(f) engendered are widely 
referred to as ``Section 4(f)'' matters.
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General Discussion of the Proposals

    The following bullets are sections of MAP-21 that affect 23 CFR 
parts 771 and 774; the list does not include the sections of MAP-21 
that have been the subject of other rulemakings:
     Section 1119(c)(2) revised the Section 4(f) exception for 
park road and parkway projects to apply to Federal lands transportation 
facilities, which affects the Section 4(f) exception in 774.13(e);
     Section 1122 replaced the former ``transportation 
enhancement projects program'' with a new ``transportation alternatives 
projects program,'' which affects the Section 4(f) exception in 
774.13(g);
     Section 1302 amended 23 U.S.C. 108 to address advance 
acquisition of real property interests, which affects the

[[Page 72625]]

timing of administrative activities in section 771.113;
     Section 1305 amended 23 U.S.C. 139(b)-(e) concerning 
programmatic approaches for environmental reviews; the Secretary's 
designation of lead Federal agency for projects with more than one 
modal administration; participating agency roles and responsibilities; 
and project initiation information, which affects early coordination, 
public involvement, and project development as described in section 
771.111;
     Section 1315 expanded the emergency actions covered by 
categorical exclusion (CE), which were addressed in a previous 
rulemaking, but also affected information in section 771.131, emergency 
action procedures, which are addressed in this rule;
     Section 1319 provided for the preparation of a final 
environmental impact statement (EIS) using errata sheets in certain 
circumstances and requiring the combination of final EISs with records 
of decision (ROD) to the maximum extent practicable if certain 
circumstances are met. This requirement affects definitions in Sec.  
771.107 as well as final EISs and RODs in Sec. Sec.  771.125 and 
771.127, respectively;
     Section 1320(d) provided a definition of ``early 
coordination activities;''
     Section 20003 amended 49 U.S.C. 5301 and struck 
minimization of environmental impacts from the statement of policies 
and purposes so the reference to section 5301 has been removed from 
Sec.  771.101;
     Section 20016 amended 49 U.S.C. 5323 by striking 
requirements for public review and comment and public hearings for 
capital projects that will not substantially affect a community or its 
public transportation service, which affects references in Sec. Sec.  
771.101 and 771.125; and
     Section 20017 amended 49 U.S.C. 5324 by striking 
requirements for findings of no significant impacts (FONSI) and RODs to 
have a written statement that no adverse environmental effect is likely 
from the project or no reasonable and prudent alternative exists and 
all attempts have been made to minimize effects, which affects a 
reference in Sec.  771.125.
    In addition to the proposed MAP-21-related changes, this proposed 
rule includes other proposed changes to provide clarification and 
guidance. All proposed changes are discussed in the next section.

Section-by-Section Discussion of the Proposals

NEPA Regulation Changes (Part 771)

Section 771.101 Purpose

    The Agencies propose to remove outdated references from and include 
new references in Sec.  771.101 in accordance with MAP-21. The Agencies 
propose to revise the last sentence in section 101 to include MAP-21 
references and updated U.S. Code references: ``This regulation also 
sets forth procedures to comply with 23 U.S.C. 109(h), 128, 138, 139, 
325, 326, 327; 49 U.S.C. 303, and 5323(q); and Pub. L. 112-141, 126 
Stat. 405, sections 1301, and 1319.''

Section 771.103 [Reserved]

    The Agencies propose no changes to section 771.103 in this NPRM.

Section 771.105 Policy

    The Agencies propose to remove references to specific guidance 
documents in the footnote to paragraph (a). The revised footnote would 
continue to refer to the Agencies' Web sites for the most recent 
guidance documents. These changes will allow the regulation to stay 
current as the Agencies release new guidance documents.
    The Agencies propose to add a new paragraph (b) to support 
development of programmatic approaches consistent with MAP-21 Section 
1305(a) (23 U.S.C. 139(b)): it is the Administration's policy that 
``[p]rogrammatic approaches be developed for compliance with 
environmental requirements, coordination among agencies and/or the 
public, or to otherwise enhance and accelerate project development.'' 
Addressing programmatic approaches in this section and under a separate 
paragraph refects the Agencies' intent to encourage their broader use.
    With the addition of proposed paragraph (b), current paragraphs 
(b), (c), (d), (e), and (f) would be re-lettered as paragraphs (c), 
(d), (e), (f), and (g), respectively. The Agencies propose no change in 
wording to any of these paragraphs.

Section 771.107 Definitions

    The Agencies propose to modify the first sentence of the definition 
of ``Administration action'' from passive voice to active voice without 
losing the original intent of the definition: ``FHWA or FTA approval of 
the applicant's request for Federal funds for construction.'' The rest 
of the definition would not change.
    The Agencies propose to modify the definition of ``applicant'' by 
adding the word ``Federal'' to include Federal governmental units as 
potential applicants. This change would provide for instances when the 
Federal Lands program is an FHWA applicant.
    The Agencies propose to add a definition for ``programmatic 
approaches'' to Sec.  771.107 consistent with MAP-21 Section 1305(a) 
(23 U.S.C. 139(b)). The proposed definition is ``an approach that 
reduces the need for project-by-project reviews, eliminates repetitive 
discussion of the same issue, or focuses on the actual issues ripe for 
analyses at each level of review, while maintaining appropriate 
consideration for the environment'' and is taken in large part from 23 
U.S.C. 139(b)(3)(A). The Agencies do not propose adding or deleting any 
other definitions.
    The Agencies propose to modify the definition of ``Project 
sponsor'' by adding ``Federal funding'' to the definition and 
clarifying that the project sponsor, if not the applicant, may conduct 
some of the activities on behalf of the applicant. This change would 
slightly broaden the definition of project sponsor and make it 
consistent with other parts of the regulation, as well as clarify that 
the project sponsor and the applicant are not always one and the same 
entity. The proposed revised definition is ``[t]he Federal, State, 
local, or federally-recognized Indian tribal governmental unit, or 
other entity, including any private or public-private entity that seeks 
Federal funding or an Administration action for a project. The project 
sponsor, if not the applicant, may conduct some of the activities on 
behalf of the applicant.''
    The Agencies propose to modify the definition of ``Section 4(f)'' 
to include a reference to the current implementing regulations for 
Section 4(f) (23 CFR part 774), and to delete footnote 2, which is 
discussed in 23 CFR part 774.
    Structurally, the Agencies propose reorganizing the definitions 
within this section by organizing them in alphabetical order and 
removing the lettering of paragraphs. This change is consistent with 
other regulations (e.g., 23 CFR part 774), and will aid reader 
comprehension, as definitions are typically in alphabetical order. In 
addition, this change would reduce future associated formatting changes 
to the regulation should definitions be added or removed.

Section 771.109 Applicability and Responsibilities

    The Agencies propose several changes to Sec.  771.109 that provide 
greater clarity on Agency, project sponsor, and applicant 
responsibilities, as well as improve the organizational structure of

[[Page 72626]]

the section. For example, the Agencies propose to reorganize paragraph 
(b) by renumbering it as paragraph (b)(1) and to modify the language of 
proposed paragraph (b)(1) by adding the phrase ``unless the 
Administration approves of their deletion or modification in writing'' 
to the end of the first sentence. This text is not new; the Agencies 
propose to move this concept from the last clause in paragraph (d) of 
this section and revise the language to be in active voice, clarifying 
that the Administration performs the action (i.e., the Agencies will 
approve of any deletions or modifications of mitigation measures 
previously committed to in the environmental documents prepared 
pursuant to this regulation). In addition to that change, the Agencies 
propose to modify the language of proposed paragraph (b)(1) by 
clarifying the responsibilities of FHWA in the second sentence. The 
current phrase, ``program management,'' would be replaced with 
``stewardship and oversight,'' and the phrase, ``that include reviews 
of designs, plans, specifications, and estimates (PS&E), and 
construction inspections,'' would be deleted. The Agencies propose this 
change to reflect the customary practice and responsibilities of FHWA. 
In summary, paragraph (b)(1) would read, ``The applicant, in 
cooperation with the Administration, is responsible for implementing 
those mitigation measures stated as commitments in the environmental 
documents prepared pursuant to this regulation unless the 
Administration approves of their deletion or modification in writing. 
The FHWA will assure that this is accomplished as a part of its 
stewardship and oversight responsibilities. The FTA will assure 
implementation of committed mitigation measures through incorporation 
by reference in the grant agreement, followed by reviews of designs and 
construction inspections.''
    The Agencies propose creating a new paragraph (b)(2) that reaffirms 
FHWA's commitment to ensuring that the State highway agency with which 
it partners fulfills all environmental commitments as listed in 
approved environmental review documents. The language found in proposed 
paragraph (b)(2) was previously found in section 771.109(d), though the 
last clause of paragraph (d) was added to paragraph (b)(1) as explained 
above. The Agencies moved the language to its new position in paragraph 
(b)(2) in order to improve the logical sequence of the section; 
paragraphs (b)(1) and (b)(2) both address mitigation measures.
    The Agencies propose to add a new paragraph (c)(7) that clarifies 
the responsibility of a participating agency: ``[a] participating 
agency is responsible for providing input, as appropriate, during the 
times specified in the coordination plan under 23 U.S.C. 139(g), and 
providing comments and concurrence on a schedule if included within the 
coordination plan.'' This change is proposed in accordance with MAP-21 
Section 1305(e) (23 U.S.C. 139(g)(1)(B)(i)).
    As noted in the discussion above, the Agencies propose to delete 
paragraph (d), as these responsibilities are now articulated through 
revisions to paragraph (b)(1) and in proposed new paragraph (b)(2).

Section 771.111 Early Coordination, Public Involvement, and Project 
Development

    Upon review of Sec.  771.111, the Agencies found the beginning of 
the section to be out of logical order. The Agencies propose to 
reorganize paragraph (a) into three subparagraphs, keeping much of the 
same information: Paragraph (a)(1) addresses early coordination 
activities; paragraph (a)(2) covers the transportation planning process 
in relation to the environmental review process; and paragraph (a)(3) 
remains focused on class of action identification. The proposed new 
sentence in paragraph (a)(1) would discuss the benefits of early 
coordination activities: ``These [early coordination] activities 
contribute to reducing or eliminating delay, duplicative processes, and 
conflict by incorporating planning outcomes that have been reviewed by 
agencies and Indian tribal partners in project development.'' The 
Agencies developed this language after considering the language in 
section 1320(a)(1) of MAP-21, which essentially contains the goals of 
early coordination. Early coordination activities include: (1) 
Technical assistance on identifying potential impacts and mitigation 
issues; (2) the potential appropriateness of using planning products 
and decisions in later environmental reviews; and (3) the 
identification and elimination from detailed study in the environmental 
review process of the issues that are not significant or that have been 
covered by prior environmental reviews (for the list of activities, see 
MAP-21 Section 1320(d)). The Agencies propose deleting the second 
sentence currently in paragraph (a)(1) (``This involves the exchange of 
information from the inception of a proposal for action to preparation 
of the environmental review documents.'') because it is duplicative of 
the concepts addressed in paragraph (a)(2) (now proposed paragraph 
(a)(2)(i)).
    The Agencies propose modifying current paragraph (a)(2) by 
renumbering it as paragraph (a)(2)(i) and updating the citations to 
read ``40 CFR parts 1500 through 1508, 23 CFR part 450, or 23 U.S.C. 
168'' in order to be more encompassing of the referenced statute and 
regulations. In addition, a new paragraph (a)(2)(ii) would address the 
inclusion of mitigation actions in the planning process: ``The planning 
process described in paragraph (a)(2)(i) may include mitigation actions 
consistent with a programmatic mitigation plan developed pursuant to 23 
U.S.C. 169 or from a programmatic mitigation plan developed outside of 
that framework.'' Programmatic mitigation plans are the subject of a 
separate on-going MAP-21 rulemaking action (see 79 FR 31784, June 2, 
2014); in the event the Agencies publish a final rule, the Agencies 
would revise the proposed paragraph (a)(2)(ii) text to include a 
reference to the applicable regulation. The Agencies propose including 
the reference to programmatic mitigation plans to further encourage the 
link between the planning and environmental processes.
    Finally, paragraph (a)(3) would include the class of action 
identification language currently found in the last two sentences of 
paragraph (a)(1): ``Applicants intending to apply for funds should 
notify the Administration at the time that a project concept is 
identified. When requested, the Administration will advise the 
applicant, insofar as possible, of the probable class of action (see 23 
CFR 771.115) and related environmental laws and requirements and of the 
need for specific studies and findings that would normally be developed 
during the environmental review process.'' Generally, this is a non-
substantive change in that most of the information found in proposed 
new paragraph (a)(3) comes from the current paragraph (a)(1). But the 
Agencies clarified that the Administration may advise applicants of the 
need for specific studies and findings that would normally be developed 
during the environmental review process by replacing ``concurrently 
with'' with ``during,'' and ``documents'' with ``process.'' The 
Agencies want to highlight through these changes that the focus is on 
the environmental review process, not documents, and the studies and 
findings performed are completed as part of the process.
    In paragraph (c), the Agencies propose to replace the word 
``project'' with

[[Page 72627]]

``action'' to be consistent within 23 CFR part 771 and to more 
accurately reflect the work of the Agencies, which is not solely 
devoted to projects but to actions taken in advancement of projects. 
``Action'' is defined in section 771.107.
    In paragraph (d), the Agencies propose to delete the outdated 
footnote (footnote 4): ``The FHWA and FTA have developed guidance on 23 
U.S.C. Section 139 titled ``SAFETEA-LU Environmental Review Process: 
Final Guidance,'' November 15, 2006, and available at http://www.fhwa.dot.gov or in hard copy upon request.'' The Agencies are 
updating the guidance regarding section 139 to reflect MAP-21 changes 
and may update the guidance in response to future transportation bills. 
In order to maximize the flexibility of these regulations, the Agencies 
propose deleting the specific reference to the 2006 document.
    In paragraph (e), the Agencies propose to revise the second 
sentence to read: ``The Administration will provide direction to the 
applicant on how to approach any significant unresolved issues as early 
as possible during the environmental review process.'' This replaces 
the provision that the ``Administration will prepare a written 
evaluation of any significant unresolved issues.'' The change reflects 
current practice and is consistent with the responsibilities of the 
Agencies. The Agencies also replaced the references to environmental 
assessments and draft EIS documents with the broader term 
``environmental review process'' because the Agencies may provide 
direction on any class of action. Although a CE will not have 
significant unresolved issues, the Agencies could provide early input 
on an action with significant unresolved issues that allow for the use 
of a CE.
    Paragraph (f) would notably be modified to include CEs. The 
Agencies propose replacing ``In order to ensure meaningful evaluation 
of alternatives and to avoid commitments to transportation improvements 
before they are fully evaluated, the action evaluated in each EIS or 
finding of no significant impact (FONSI) shall:'' with ``Any action 
evaluated through a categorical exclusion (CE), environmental 
assessment (EA), or environmental impact statement (EIS) shall:''. This 
change would clarify that actions evaluated in a CE, EA, or EIS must 
comply with NEPA requirements related to connected actions and 
segmentation, per 40 CFR 1508.25. The Agencies recognize that projects 
cannot be segmented improperly, regardless of the NEPA class of action; 
any action evaluated 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. The Agencies have presented this guidance 
in recent rulemakings (e.g., 79 FR 60100, October 6, 2014 and 79 FR 
2107, January 13, 2014). For consistency, the term ``FONSI'' would be 
removed from the list and replaced with ``EA.''
    The Agencies propose to delete the outdated footnote in paragraph 
(h)(2)(viii) regarding Section 4(f) guidance (``The FHWA and FTA have 
developed guidance on Section 4(f) de minimis impact findings titled 
``Guidance for Determining De Minimis Impacts to Section 4(f) 
Resources,'' December 13, 2005, which is available at http://www.fhwa.dot.gov or in hard copy upon request.'') as de minimis 
guidance is now included in the Section 4(f) Policy Paper, available at 
http://www.environment.fhwa.dot.gov/4f/4fpolicy.pdf.
    The Agencies propose a number of non-substantive modifications to 
paragraph (i) in subparagraphs (1), (3), and (4). Subparagraph (1) 
would be modified to improve readability and improve understanding. The 
term ``projects'' would be replaced with ``actions'' to better reflect 
the work of the Agencies in two places, and the first sentence would be 
changed to reflect that scoping is about the environmental review 
``process,'' not simply about ``documents.'' In addition, the Agencies 
propose to remove the last sentence, ``For other projects that 
substantially affect the community or its public transportation 
service, an adequate opportunity for public review and comment must be 
provided,'' because the support for the statement (i.e., 49 U.S.C. 
5323) was repealed by MAP-21 Section 20016, and the opportunity for the 
public to review EA and EIS documents is provided for in sections 
771.119 (EA) and 771.123 (draft EIS). In subparagraph (3), the Agencies 
would modify the first sentence to provide examples of ``NEPA 
documents'' by adding ``(e.g., EAs and EISs),'' and would add 
``environmental studies (e.g., technical reports)'' and ``meeting'' 
minutes to the list of potential information and material that the 
Agencies encourage applicants for capital assistance in the FTA program 
to post and distribute to enhance public involvement. Finally, in 
subparagraph (4), the Agencies would clarify and update the list of 
materials FTA encourages applicants in the FTA program to post on a 
project Web site until the project is constructed and open for 
operation. This list would include FONSIs, combined final EIS/RODs, and 
RODs. This sentence would now read: ``Are encouraged to post all 
findings of no significant impact (FONSI), combined final environmental 
impact statement (EIS)/records of decision (ROD), and RODs on a project 
Web site until the project is constructed and open for operation.''
    Paragraph (j) would be modified to include updated contact 
information for FTA, and the Web site address for each Agency. These 
changes are meant simply to provide complete contact information for 
both Agencies.

Section 771.113 Timing of Administration Activities

    The Agencies propose modest changes to each of the four paragraphs 
in Sec.  771.113. In paragraph (a), the Agencies propose revising the 
paragraph by replacing the phrase ``(if not a lead agency)'' with ``and 
project sponsor as appropriate,'' in the first sentence. This change 
recognizes that the applicant and the project sponsor are not always 
the same entity and may not be identified as ``lead agencies,'' but 
they may work with the lead agencies to ``perform the work necessary to 
complete the environmental review process.'' As noted in the previous 
sentence, the Agencies would also revise the sentence by replacing the 
text, ``a finding of no significant impact (FONSI) or a record of 
decision (ROD) and comply with other related environmental laws and 
regulations to the maximum extent possible during the NEPA process'' 
with the text, ``the environmental review process.'' This modification 
changes the focus from the completion of a FONSI or a ROD to the 
completion of the environmental review process, which is a broader term 
and more accurately reflects the Agencies' goals. In addition, the 
Agencies propose revising the second sentence to more clearly provide 
examples of work that takes place during the review process. This 
sentence would be changed from, ``This work includes environmental 
studies, related engineering studies, agency coordination and public 
involvement'' to ``This work includes drafting environmental documents 
and completing studies, related engineering studies, agency 
coordination, and public involvement.'' Finally, the Agencies propose 
reorganizing the last sentence to bring the exception clause forward to 
lend greater reader comprehension; there is no content change to the 
last sentence.
    In subparagraph (a)(1), the Agencies propose to update the document 
types that indicate the environmental review process is complete. In 
(a)(1)(i), the

[[Page 72628]]

Agencies would simply use ``CE.'' In paragraph (a)(1)(ii), the Agencies 
would reword the sentence to make clear that the Administration issues 
a FONSI by replacing passive language with active language and by 
adding the text ``The Administration has issued a'' before ``FONSI'' 
and deleting ``has been approved.'' In paragraph (a)(1)(iii), the 
Agencies would replace the text, ``A final EIS has been approved and 
available for the prescribed period of time and a record of decision 
has been signed'' with ``The Administration has issued a combined final 
EIS/ROD or a final EIS and ROD.'' This change would be in compliance 
with MAP-21 Section 1319.
    Paragraph (b) would be reworded to clarify that it applies to FHWA 
alone. The phrase ``For activities proposed for FHWA action'' would be 
added to the beginning of the sentence.
    In paragraph (d), the Agencies propose several modifications 
pursuant to MAP-21, including MAP-21 Section 1302 (and as implemented 
in 23 CFR part 710, subpart E, Property Acquisition Alternatives), MAP-
21 Section 20008, and MAP-21 Section 20016. Generally, final design 
activities, property acquisition, purchase of construction materials or 
rolling stock, or project construction cannot proceed until the 
proposed action has been classified as a CE or a decision document has 
been issued. Exceptions to that prohibition, however, are found in 
paragraph (d). The Agencies propose modifying the text for subparagraph 
(d)(1) to read, ``Early acquisition, hardship and protective 
acquisitions of real property in accordance with 23 CFR part 710, 
subpart E for FHWA.'' This exception refers the reader to FHWA property 
acquisition regulations for the acquisition compliance requirements. 
The FTA's existing exception in subparagraph (d)(1) (i.e., the second 
sentence) would not change. To summarize, this subparagraph states that 
acquisition of land for hardship or protective purposes may occur prior 
to the completion of NEPA for Agency actions. Subparagraph (d)(2) 
pertains to FTA only; the text, revised as proposed, would no longer 
refer to FTA's ``acquisition of right-of-way'' CE, specifically, but 
would refer to the broader corridor preservation statute and guidance, 
pursuant to MAP-21 Section 20016. The proposed text for subparagraph 
(d)(2) would read: ``The early acquisition of right-of-way for future 
transit use in accordance with 49 U.S.C. 5323(q) and FTA guidance.'' 
The Agencies propose deleting subparagraphs (d)(3) and (d)(4) because 
the proposed language in subparagraph (d)(1) broadly encompasses 23 CFR 
part 710; therefore, the current references to 23 CFR 710.503 and 23 
CFR 710.501 would no longer be necessary. Finally, subparagraph (d)(5) 
would be renumbered as subparagraph (d)(3), and the statutory reference 
at the end of the sentence would be updated to reflect changes to 49 
U.S.C. 5309 by MAP-21 Section 20008: ``A limited exception for rolling 
stock is provided in 49 U.S.C. 5309(l)(6).'' These are non-substantive 
changes.

Section 771.115 Classes of Actions

    The Agencies propose several minor modifications to Sec.  771.115 
to clarify this section. In the introductory paragraph, the Agencies 
would add the sentence ``A programmatic approach may be used for any 
class of action'' to be consistent with MAP-21 Section 1305 (23 U.SC. 
139(b)).
    In paragraph (a), the Agencies would move the acronym ``EIS'' to 
the beginning of the sentence and move ``Class 1'' to parentheses to 
aid in readability.
    Paragraph (a) states that ``actions that significantly affect the 
environment require an EIS'' and provides examples of actions that 
normally require an EIS in the subsequent subparagraphs. In 
subparagraph (a)(3), FTA proposes to modify the current example, 
``Construction or extension of a fixed transit facility (e.g., rapid 
rail, light rail, commuter rail, bus rapid transit) that will not be 
located within an existing transportation right-of-way,'' by inserting 
the term ``primarily'' before ``within an existing transportation 
right-of-way.'' This addition would be in response to FTA's recent 
revisions to its list of CEs since 2012, including the ``assembly or 
construction of facilities'' CE (23 CFR 771.118(c)(9)). The FTA has 
categorically excluded some actions from requiring an EIS or EA when 
they take place primarily or entirely within existing transportation 
right-of-way; therefore, FTA proposes adding ``primarily'' to 
subparagraph (a)(3) in order to distinguish clearly that actions not 
primarily within existing transportation right-of-way will normally 
require an EIS.
    In subparagraph (a)(4), the Agencies would add ``For FHWA actions'' 
to the beginning of the sentence, but no other modifications are 
proposed to the subparagraph: ``For FHWA actions, new construction or 
extension of a separate roadway for buses or high occupancy vehicles 
not located within an existing highway facility.'' The Agencies propose 
this change because the Agencies propose adding a new subparagraph 
(a)(5) to reflect FTA actions. The subparagraph (a)(5) language would 
be similar to subparagraph (a)(4) language, but it would not refer to 
high occupancy vehicles because they are not typically part of the FTA 
program. In addition, the subparagraph would include the ``not located 
primarily within an existing transportation right-of-way'' condition 
(emphasis added) to reflect FTA's program, as discussed above for 
subparagraph (a)(3). Proposed subparagraph (a)(5) would read: ``For FTA 
actions, new construction or extension of a separate roadway for buses 
not located primarily within an existing transportation right-of-way.''
    As the Agencies propose for paragraph (a), the Agencies propose 
moving the acronym for CEs to the beginning of the sentence in 
paragraph (b), and moving the acronym for EAs to the beginning of the 
sentence in paragraph (c) to aid in readability, followed by their 
class in parentheses. Finally, the Agencies propose to slightly reword 
the first sentence in paragraph (c) to clarify that it is the 
Administration's responsibility to determine the significance of the 
environmental impact, and where significance is not clearly 
established, then an EA would be the appropriate class of action. The 
first sentence in paragraph (c) would read, ``Actions in which the 
Administration has not clearly established the significance of the 
environmental impact.''

Section 771.117 FHWA Categorical Exclusions

    The Agencies propose no changes to Sec.  771.117 in this NPRM.

Section 771.118 FTA Categorical Exclusions

    The Agencies propose no changes to Sec.  771.118 in this NPRM.

Section 771.119 Environmental Assessments

    The Agencies propose modifications to paragraphs (a) through (f) 
and paragraph (h) in Sec.  771.119. In paragraph (a), the Agencies 
would revise the first sentence from passive voice to active voice. It 
would instead read as, ``The applicant shall prepare an EA. . .'' This 
would make it clear that it is the applicant's responsibility to 
prepare an EA. In addition, the Agencies would reorganize the paragraph 
as subparagraph (a)(i). This change would aid in readability. It would 
also support a second proposed modification to paragraph (a): New 
subparagraph (a)(ii).
    The Agencies propose adding a new subparagraph (a)(ii) that would 
apply to FTA actions alone. Subparagraph (a)(ii)

[[Page 72629]]

would read, ``For FTA actions: When FTA or the applicant, as joint lead 
agency, select a contractor to prepare the EA, then the contractor 
shall execute an FTA conflict of interest disclosure statement. The 
statement must be maintained in the FTA Regional Office and with the 
applicant. The contractor's scope of work for the preparation of the EA 
will not be finalized until the early coordination activities or 
scoping process found in paragraph (b) is completed (including FTA 
approval, in consultation with the applicant, of the scope of the EA 
content).'' This new subparagraph would address two issues. First, it 
would specify that if the applicant selects a contractor to prepare the 
EA, the contractor must execute an FTA conflict of interest disclosure 
statement (statement) attesting to the lack of a conflict of interest 
in the NEPA process, pursuant to 40 CFR 1506.5. The Agencies propose 
that the statement must be maintained in the FTA Regional Office and 
with the applicant. This addition to our regulation is not a major 
change from how FTA and its applicants currently prepare EAs, but it 
updates our regulation to reflect current practice. Second, proposed 
subparagraph (a)(ii) would require that the contractor's scope of work 
for the preparation of the EA not be finalized until the early 
coordination activities or scoping process found in paragraph (b) has 
been completed. Under this proposal, the contractor's scope of work 
would not be finalized until FTA and the applicant have approved the 
scope, in terms of NEPA, of the EA analysis and documentation. This 
addition would emphasize the importance that FTA places on early 
coordination activities and scoping for its NEPA documents, with the 
goal being more refined analyses that focus on significant issues 
rather than all potential impacts. Although scoping as a formal process 
is associated with EISs, a less formal type of scoping may be conducted 
for projects evaluated with EAs. Regardless of the form early 
coordination takes, FTA believes this addition will lead to better 
decisionmaking and documentation. Note, the language proposed for 
subparagraph (a)(ii) is similar to language proposed in a previous NPRM 
(see 77 FR 15310, March 15, 2012), but the language was never 
finalized. The FTA considered the comments received during the previous 
NPRM comment period when developing the language proposed in this rule.
    In paragraph (b), the Agencies would revise the last two sentences 
regarding early coordination activities to read, ``The applicant shall 
accomplish this through early coordination activities or through a 
scoping process. The applicant shall summarize the public involvement 
process and include the results of agency coordination in the EA.'' The 
Agencies changed the reference from ``an early coordination process 
(i.e., procedures under Sec.  771.111)'' to ``early coordination 
activities'' for consistency with other early coordination references 
proposed in this rule and MAP-21 Section 1320. The Agencies modified 
the last sentence by (1) revising language from passive voice to active 
voice and (2) identifying the applicant as the entity responsible for 
summarizing the public involvement process and including the results of 
agency coordination in the EA, which reflects current practice.
    In paragraph (c), the Agencies would revise the sentence to clearly 
state in a reader-friendly manner that the Administration must approve 
the EA before it is made available to the public. Paragraph (c) would 
read: ``The Administration must approve the EA before it is made 
available to the public as an Administration document.''
    In paragraph (d), the Agencies would revise the text from passive 
voice to active voice, clearly identify the responsibilities of the 
applicant, and make this paragraph easier to read and understand 
overall. Paragraph (d) would read: ``The applicant does not need to 
circulate the EA for comment but the document must be made available 
for public inspection at the applicant's office and at the appropriate 
Administration field offices in accordance with paragraphs (e) and (f) 
of this section. The applicant shall send the notice of availability of 
the EA, which briefly describes the action and its impacts, to the 
affected units of Federal, State, and local government. The applicant 
shall also send notice to the State intergovernmental review contacts 
established under Executive Order 12372.'' Other than clearly 
identifying the applicant's role in this paragraph, there are no 
changes regarding content.
    In paragraph (e), the Agencies would revise the first sentence by 
changing the text from ``as part of the application for Federal funds'' 
to ``as part of the environmental review process for an action.'' This 
change more accurately reflects current practice and is consistent with 
other changes proposed in this rule (e.g., use of ``environmental 
review process'' and ``action''). In addition, the Agencies propose 
revising the second and third sentence of paragraph (e) by clarifying 
the applicant's role in providing notice of the public hearing and 
availability of the EA and clarifying when comments are accepted on the 
EA, respectively. The second and third sentences of paragraph (e) would 
read: ``The applicant shall publish a notice of the public hearing in 
local newspapers that announces the availability of the EA and where it 
may be obtained or reviewed. Any comments must be submitted in writing 
to the applicant or the Administration during the 30-day availability 
period of the EA unless the Administration determines, for good cause, 
that a different period is warranted.'' These changes are minor but 
improve the quality of the written language.
    The Agencies propose revising the last sentence in paragraph (f) to 
reflect the changes proposed for the last sentence in paragraph (e) 
regarding comment submittal during the EA public availability period. 
Paragraph (f) would read: ``When a public hearing is not held, the 
applicant shall place a notice in a newspaper(s) similar to a public 
hearing notice and at a similar stage of development of the action, 
advising the public of the availability of the EA and where information 
concerning the action may be obtained. The notice shall invite comments 
from all interested parties. Any comments must be submitted in writing 
to the applicant or the Administration during the 30-day availability 
period of the EA unless the Administration determines, for good cause, 
that a different period is warranted.'' This is a non-substantive 
change proposed for consistency between paragraphs.
    Lastly, the Agencies propose to limit paragraph (h) to FHWA actions 
only by replacing ``Administration'' with ``FHWA'' at the beginning of 
the paragraph. For FTA project sponsors, application of the Council on 
Environmental Quality's (CEQ) regulatory provision alone aligns better 
with how transit projects are planned, developed, and reviewed. The FTA 
would direct its applicants and project sponsors to rely on the CEQ 
NEPA Implementing Regulations, specifically 40 CFR 1501.4(e)(2), which 
requires that in certain circumstances the FONSI be available for 
public review for 30 days before FTA makes its final determination and 
before the action may begin. This requirement applies when the proposed 
action is (or is closely similar to) one that normally requires the 
preparation of an EIS pursuant to Sec.  771.115, or when the nature of 
the proposed action is one without precedent.

[[Page 72630]]

Section 771.121 Findings of No Significant Impact

    The Agencies propose minor text revisions to all three paragraphs 
in Sec.  771.121. In paragraph (a), the Agencies propose to reword the 
first sentence to reflect existing practice: ``The Administration will 
review the EA, comments submitted on the EA (in writing or at public 
hearings/meetings), and other supporting documentation, as 
appropriate.'' This is a non-substantive change and is meant to improve 
readability.
    Similarly, in paragraph (b), the Agencies propose to reword the 
first sentence in active voice and to make it clear to the reader that 
the Administration issues a FONSI. The first sentence would be 
rewritten to read, ``After the Administration issues a FONSI . . .'' 
This non-substantive change does not affect the responsibility of the 
Administration in issuing a FONSI, and it does not affect the 
applicant's responsibility in providing notice of availability of the 
FONSI to affected units of Federal, State, and local government or any 
other responsibilities noted within this section.
    In paragraph (c), the Agencies propose a slight modification to 
include those times when the Administration may have an approval role 
for another Federal agency's action (e.g., when FHWA issues Interstate 
Access Point Approval). The modification would add ``or approval'' 
after ``Administration funding'' in the first sentence: ``If another 
Federal agency has issued a FONSI on an action which includes an 
element proposed for Administration funding or approval . . .'' In 
these rare situations, the Administration would evaluate the other 
agency's ``EA/FONSI'' (replacing the term ``FONSI'' at the end of the 
first sentence) in determining whether to issue its own FONSI 
incorporating the other agency's ``EA/FONSI'' (again, replacing the 
term ``FONSI'' but at the end of the second sentence). The 
Administration could also issue a CE for the element of the project 
proposed for Administration funding or approval if it determines that a 
CE would be appropriate.

Section 771.123 Draft Environmental Impact Statements

    The Agencies propose a number of modifications to Sec.  771.123. In 
paragraph (b), the Agencies would revise the language in the first 
sentence to reference CEQ's NEPA Implementing Regulations (40 CFR parts 
1500 through 1508), and replace ``which'' with ``that.'' In addition, 
the Agencies propose deleting the reference to the FHWA in the third 
sentence and deleting the fourth sentence pertaining to FTA; the 
revised third sentence would apply to both Agencies. The Agencies 
propose paragraph (b) read: ``After publication of the Notice of 
Intent, the lead agencies, in cooperation with the applicant (if not a 
lead agency), will begin a scoping process that may take into account 
any planning work already accomplished, in accordance with 23 CFR 
450.212, 450.318, or any applicable provisions of the CEQ regulations 
at 40 CFR parts 1500 through 1508. The scoping process will be used to 
identify the purpose and need, the range of alternatives and impacts, 
and the significant issues to be addressed in the EIS and to achieve 
the other objectives of 40 CFR 1501.7. Scoping is normally achieved 
through public and agency involvement procedures required by Sec.  
771.111. If a scoping meeting is to be held, it should be announced in 
the Administration's Notice of Intent and by appropriate means at the 
local level.'' These minor changes would update the text to be more 
encompassing of the environmental review requirements and more 
readable.
    In paragraph (d), the Agencies would add language requiring a 
conflict of interest disclosure for FTA actions. This change would be 
consistent with proposed modifications to section 771.119(a)(ii) and 40 
CFR 1506.5(c). Paragraph (d) would read, ``Any of the lead agencies may 
select a consultant to assist in the preparation of an EIS in 
accordance with applicable contracting procedures and with 40 CFR 
1506.5(c). For FTA actions: When FTA or the applicant, as joint lead 
agency, select a contractor to prepare the EIS, then the contractor 
shall execute an FTA conflict of interest disclosure statement. The 
statement must be maintained in the FTA Regional Office and with the 
applicant. The contractor's scope of work for the preparation of the 
EIS will not be finalized until the early coordination activities or 
scoping process found in paragraph (b) is completed (including FTA 
approval, in consultation with the applicant, of the scope of the EIS 
content).'' See the discussion above in Sec.  771.119 for a more robust 
discussion regarding this proposed addition.
    The Agencies propose to add a new paragraph (e). Proposed new 
paragraph (e) would encourage identification of the preferred 
alternative in the draft EIS: ``The draft EIS should identify the 
preferred alternative to the extent practicable. If the draft EIS does 
not identify the preferred alternative, the Administration should 
provide agencies and the public with an opportunity after issuance of 
the draft EIS to review the impacts.'' This addition would update the 
regulations in response to changes created by MAP-21 Section 1319 and 
is consistent with the Agencies' ``Interim Guidance on MAP-21 Section 
1319 Accelerated Decisionmaking in Environmental Reviews'' (January 14, 
2013) (``Section 1319 Guidance''). It would also provide for the cases 
where the preferred alternative is not identified in the draft EIS. 
Section 1319(b) directs the lead agency, to the maximum extent 
practicable, to expeditiously develop a single document that consists 
of a final EIS and ROD, unless certain conditions exist. By identifying 
the preferred alternative in the draft EIS, the lead agencies more 
easily facilitate issuance of a combined final EIS/ROD document.
    The Agencies would also add a new paragraph (f). Proposed new 
paragraph (f) would allow the lead agency to develop the preferred 
alternative (or portion thereof) for a project to a higher level of 
detail than other alternatives in order to facilitate the development 
of mitigation measures or compliance with requirements for permitting: 
``At the discretion of the lead agency, the preferred alternative (or 
portion thereof) for a project, after being identified, may be 
developed to a higher level of detail than other alternatives in order 
to facilitate the development of mitigation measures or compliance with 
requirements for permitting. The development of such higher level of 
detail must not prevent the lead agency from making an impartial 
decision as to whether to accept another alternative that is being 
considered in the environmental review process.'' This concept is not 
new to the Agencies, as it was codified in 23 U.S.C. 139 via the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU) in 2005; the Agencies propose including a direct 
copy of the codified language (23 U.S.C. 139(f)(4)(d)) in this section. 
It is important to note that although the development of such higher 
level of detail is acceptable in some circumstances as noted in the 
proposed language, the lead agency must make an impartial decision 
among the alternatives considered in the environmental review process. 
Including this proposed paragraph would help streamline the 
environmental review process, particularly in terms of fulfilling 
permitting requirements and possibly in terms of complying with MAP-21 
Section 1319(b). It also would safeguard

[[Page 72631]]

the impartiality of the alternative analysis done during the NEPA 
process.
    With the addition of proposed new paragraphs (e) and (f), current 
paragraphs (e), (f), (g), (h), and (i) would be re-lettered as 
paragraphs (g), (h), (i), (j), and (k), respectively.
    In paragraph (g), the Agencies propose to add a sentence that 
encourages including a notice on the cover sheet that the 
Administration will issue a combined final EIS/ROD document unless 
statutory criteria or practicability considerations preclude it. This 
change would be consistent with MAP-21 Section 1319(b). Paragraph (g) 
would read: ``The Administration, when satisfied that the draft EIS 
complies with NEPA requirements, will approve the draft EIS for 
circulation by signing and dating the cover sheet. The cover sheet 
should include a notice that after circulation of the draft EIS and 
consideration of the comments received, the Administration will issue a 
combined final EIS/ROD document unless statutory criteria or 
practicability considerations preclude issuance of the combined 
document.''
    The Agencies propose modifying the first sentence of paragraph (i) 
(existing paragraph (g)) to read, ``The applicant, on behalf of the 
Administration, shall circulate the draft EIS for comment.'' This 
change is non-substantive and would change the current text from 
passive voice to active voice. In addition, two subparagraphs of 
paragraph (i) would be slightly modified. In subparagraph (i)(2), the 
Agencies propose to replace ``Federal, State and local government 
agencies expected to have jurisdiction or responsibility over, or 
interest or expertise in, the action,'' with ``Cooperating and 
participating agencies,'' because the types of agencies listed are 
typically cooperating or participating agencies in the Agencies' 
environmental review process. This change is consistent with 23 U.S.C. 
139 and 40 CFR 1508.5, and provides additional consistency within the 
Agencies' regulations. In proposed subparagraph (i)(3), the Agencies 
would correct a small grammatical error; the word ``which'' would be 
replaced with ``that.'' This change would be non-substantive.
    The Agencies propose to delete the first two sentences found in 
existing paragraph (h), which contain specific FHWA and FTA references. 
The Agencies also propose to revise the third sentence to include a 
general reference to Sec.  771.111, which would broaden the existing 
language to clearly apply to both agencies. These changes would be 
reflected in proposed paragraph (j); the first sentence would read: 
``When a public hearing on the draft EIS is held (if required by 23 CFR 
771.111), the draft EIS shall be available at the public hearing and 
for a minimum of 15 days in advance of the public hearing.'' This 
rewriting would not change the substance of the paragraph or current 
practice; a draft EIS would still be required to be available at the 
public hearing and for a minimum of 15 days in advance of the public 
hearing, should one be held on the draft EIS, and the reader is 
directed to Sec.  771.111 for specific Agency information. The 
remainder of the paragraph would remain unchanged.

Section 771.124 Final Environmental Impact Statement/Record of Decision

    The Agencies propose to add new Sec.  771.124 to address MAP-21 
Section 1319(b) development of a combined final EIS/ROD. Section 
1319(b) directs Agencies, to the maximum extent practicable, to 
expeditiously develop a single document that consists of a final EIS 
and ROD, unless certain conditions exist.
    Proposed paragraph (a)(1) would make the section 1319(b) 
requirement clear and identify the conditions when a combined final 
EIS/ROD document would not be appropriate: ``After circulation of a 
draft EIS and consideration of comments received, the lead agencies, in 
cooperation with the applicant (if not a lead agency), shall combine 
the final EIS and record of decision (ROD), to the maximum extent 
practicable, unless (1) the final EIS makes substantial changes to the 
proposed action that are relevant to environmental or safety concerns, 
or (2) there are significant new circumstances or information relevant 
to environmental concerns and that bear on the proposed action or the 
impacts of the proposed action.'' This language is consistent with the 
MAP-21 language and the Agencies' Section 1319 Guidance.
    The existing applicable requirements for both a final EIS and ROD 
must be met for issuance of a combined final EIS/ROD document. Proposed 
paragraph (a)(2) clarifies this and refers the reader to other 
applicable requirements: ``When the combined final EIS/ROD is a single 
document, it shall include the content of a final EIS presented in 
Sec.  771.125 and present the basis for the decision as specified in 40 
CFR 1505.2, summarize any mitigation measures that will be incorporated 
in the project, and document any required Section 4(f) approval in 
accordance with part 774 of this title.''
    Proposed paragraph (a)(3) establishes that both provisions of MAP-
21 Section 1319 (i.e., paragraphs (a) and (b)) may be used in concert 
with each other. The proposed language is: ``If the comments on the 
draft EIS are minor and confined to factual corrections or explanations 
that do not warrant additional agency response, an errata sheet may be 
attached to the draft statement, which together shall then become the 
combined final EIS/ROD document.'' Errata sheets are not new to the 
Agencies, but the Agencies are including them in this section in 
response to MAP-21 Section 1319(a) to highlight their potential use, 
especially with the new combined final EIS/ROD document type. When both 
errata sheets and a combined final EIS/ROD are used, the combined final 
NEPA document would consist of the draft EIS, errata sheets, and any 
additional information required in a final EIS and ROD.
    Proposed paragraph (a)(4) establishes that a combined final EIS/ROD 
must meet legal sufficiency requirements. The proposed language is: ``A 
combined final EIS/ROD will be reviewed for legal sufficiency prior to 
issuance by the Administration.'' Legal sufficiency involves ensuring 
adequate documentation exists to support the final agency action/
decision, as well as determining whether the combined final EIS/ROD 
complies with minimum legal standards of NEPA and other procedural or 
substantive requirements. It is not new to the Agencies' environmental 
review process; it is included in this section for consistency with 
Sec.  771.125.
    Proposed paragraph (a)(5) would address Administration approval of 
the combined final EIS/ROD: ``The Administration shall indicate 
approval of the combined final EIS/ROD by signing the document. The 
provision on Administration's Headquarters prior concurrence in Sec.  
771.125(c) applies to the combined final EIS/ROD.''
    Proposed paragraph (b) would make clear that the Federal Register 
public availability notice does not establish a comment period for the 
combined final EIS/ROD: ``The Federal Register public availability 
notice published by EPA (40 CFR 1506.10) does not establish a waiting 
period or a period of time for the return of comments on a combined 
final EIS/ROD.''

Section 771.125 Final Environmental Impact Statements

    The Agencies propose deleting paragraph (d) (``The signature of the 
FTA approving official on the cover sheet also indicates compliance 
with 49 U.S.C. 5324(b) and fulfillment of the grant application 
requirements of 49

[[Page 72632]]

U.S.C. 5323(b).'') because sections 20016 and 20017 of MAP-21 repealed 
the environmental review process-related requirements previously found 
through those statutory references for FTA.
    Due to the proposed deletion of paragraph (d), existing paragraphs 
(e), (f), and (g) would be re-lettered as paragraphs (d), (e), and (f), 
respectively.
    The Agencies propose to modify paragraph (e), previously paragraph 
(f), by replacing the word ``printing'' with the word ``publication.'' 
This change would address the fact that the final EIS may be produced 
by electronic means and that paper hardcopies are not required except 
as necessary to meet State requirements.
    The Agencies propose to add a new paragraph (g) that states: ``The 
final EIS may take the form of an errata sheet pursuant to 40 CFR 
1503.4(c).'' As noted above, this change would make the Agencies' 
regulations consistent with MAP-21 Section 1319(a), which provides for 
the preparation of a final EIS by attaching errata sheets to the draft 
EIS if certain conditions are met. The use of errata sheets is 
appropriate when comments received on a draft EIS are minor, and the 
lead agency's responses to those comments are limited to factual 
corrections or explanations of why the comments do not warrant further 
response.

Section 771.127 Record of Decision

    The Agencies propose to modify paragraph (a) to reflect that the 
minimum 30-day period between final EIS and ROD is incompatible with 
the publication of a combined final EIS/ROD, as required by MAP-21 
Section 1319. The modification would be made by adding the phrase, 
``When the final EIS is not combined with the ROD,'' to the beginning 
of the first sentence in this paragraph. This change would make clear 
that the 30-day waiting period between final EIS and ROD applies only 
for those instances where the final EIS is not combined with the ROD. 
Under the scenario where the Administration signs a combined final EIS/
ROD document, there is no waiting period. In addition, the Agencies 
propose to remove the last sentence from paragraph (a) (``Until any 
required ROD has been signed, no further approvals may be given except 
for administrative activities taken to secure further project funding 
and other activities consistent with 40 CFR 1506.1'') because it is 
duplicative of Sec.  771.113 and unnecessary to repeat in this section. 
The changes presented to this paragraph are, therefore, non-
substantive.
    In paragraph (b), the Agencies propose to modify the language to 
reflect the possibility of an amended ROD, as well as to include a 
reference to the combined final EIS/ROD process. In the discussion of a 
revised ROD, the Agencies would add the text ``or amended'' before the 
term ``ROD'' in both sentences to reflect FTA current practice. 
Examples of when the Agencies would amend a ROD include where (1) the 
Administration previously signed a combined final EIS/ROD or ROD and 
subsequently decides to approve an alternative that was not identified 
as the preferred alternative but was fully evaluated in the final EIS, 
or (2) the Administration proposes to make substantial changes to the 
mitigation measures or findings discussed in the combined final EIS/ROD 
or ROD. To provide for the combined final EIS/ROD process requirements, 
the Agencies propose inserting ``Sec.  771.124(a) or'' prior to the 
existing reference to Sec.  771.125(c) at the end of the first 
sentence, and removing ``pursuant to Sec.  771.125(g)'' from the second 
sentence.

Section 771.129 Re-Evaluations

    The Agencies propose to add introductory text before paragraph (a) 
to provide the purpose and timing of re-evaluations. The introductory 
text would read: ``The Administration shall determine, prior to 
granting any new approval related to an action or amending any 
previously approved aspect of an action, including mitigation 
commitments, whether an approved environmental document remains valid 
as described below. . . .'' This change would clarify the 
Administration's responsibility regarding re-evaluations and provide a 
link to existing paragraphs (a) through (c).
    In paragraph (a), the Agencies propose a non-substantive change 
that changes passive voice to active voice. The Agencies would add the 
text ``The applicant shall prepare a'' to the beginning of this 
paragraph and remove ``shall be prepared by the applicant'' from later 
in the sentence. This change clearly states that the applicant is 
responsible for preparing the written evaluation of the draft EIS.
    In paragraph (b), the Agencies propose similar modifying language 
to clarify that the applicant is responsible for preparing a written 
evaluation of the final EIS before further Administration approvals may 
be granted. The first sentence would be modified to read: ``The 
applicant shall prepare a written evaluation of the final EIS before 
the Administration may grant further approvals if major. . . .'' This 
change clarifies the actions of the applicant and Administration and is 
consistent with current practice.
    The Agencies propose revising the first sentence in paragraph (c) 
to include combined final EIS/ROD documents in the list of 
environmental documents that the Administration issues and to clearly 
state the Administration's role. Paragraph (c) would be revised to 
read: ``After the Administration issues a combined final EIS/ROD, ROD, 
FONSI, or CE designation, the applicant. . . .'' The original language 
noted ``approval'' of the ROD, FONSI, or CE designation, but did not 
state who approved the document nor did the use of ``approval'' 
accurately reflect the Administration's role. The proposed change would 
clarify that it is the Administration that issues environmental 
decision documents, which is consistent with other proposals in this 
rule.

Section 771.130 Supplemental Environmental Impact Statements

    The Agencies propose to delete paragraph (e) from this section (``A 
supplemental draft EIS may be necessary for major new fixed guideway 
capital projects proposed for FTA funding if there is a substantial 
change in the level of detail on project impacts during project 
planning and development. The supplement will address site-specific 
impacts and refined cost estimates that have been developed since the 
original draft EIS.''). The FTA proposes deleting this paragraph 
because it is not necessary to refer specifically to major new fixed 
guideway capital projects; a supplemental document may be needed for a 
variety of public transportation projects.
    The Agencies propose to modify existing paragraph (f) (proposed 
paragraph (e) if the deletion noted above is finalized) to add EAs as a 
supplemental document type that may be used to analyze issues of 
limited scope; the addition of EAs to this paragraph is consistent with 
Sec.  771.130(c). The modification would be made by revising the first 
sentence: ``In some cases, an EA or supplemental EIS may be required . 
. .'' In addition, the Agencies would replace the term ``EIS'' with 
``document'' in the last sentence of the paragraph and the last 
sentence of subparagraph (e)(3) to account for the possibility of 
completing an EA for the supplemental analyses.

Section 771.131 Emergency Action Procedures

    The Agencies propose to add an introductory sentence to the current 
paragraph in this section to address

[[Page 72633]]

emergency and disaster-related CEs. This change would reflect the 
recently updated Agencies' CEs in Sec. Sec.  771.117 and 771.118 for 
FHWA and FTA, respectively. The introductory sentence would read: 
``Responses to some emergencies and disasters are categorical 
exclusions under Sec.  771.117 for FHWA or Sec.  771.118 for FTA.'' In 
the second sentence, the Agencies would add ``Otherwise,'' to the 
beginning of the sentence to account for those actions that do not 
qualify for a CE and must follow current emergency action procedures.

Section 771.133 Compliance With Other Requirements

    The Agencies are proposing to modify the current paragraph by 
reorganizing the section and adding or modifying text. The existing 
paragraph would be listed as paragraph (a) and, in accordance with 
Section 1319 of MAP-21, paragraph (a) would be modified to include 
``combined final EIS/ROD'' as a document type that should comply with 
requirements of all applicable environmental laws, Executive orders, 
and other related requirements. In the last sentence of paragraph (a), 
the Agencies propose changing the reference to ``the Administration'' 
to ``the FHWA'' because the report requirements referenced in the 
paragraph and found in 23 U.S.C. 128 do not apply to FTA. This is a 
minor change that accurately reflects legal requirements and current 
practice.
    The Agencies propose to add a new paragraph (b) to provide for the 
possibility that applicants may want to meet compliance requirements 
with other laws, regulations or Executive orders through programmatic 
approaches, consistent with MAP-21 Section 1305(a) (23 U.S.C. 139(b)). 
This new paragraph would read, ``In consultation with the 
Administration and subject to Administration approval, an applicant may 
develop a programmatic approach for compliance with the requirements of 
any law, regulation, or Executive order applicable to the project 
development process.''

Section 771.137 International Actions

    The Agencies propose no changes to Sec.  771.137 in this NPRM.

Section 771.139 Limitations on Actions

    The Agencies propose to modify this section by replacing the 180-
day statute of limitations for claims arising under Federal law seeking 
judicial review of any final decisions by the Administration or by 
other Federal agencies on a transportation project announced in the 
Federal Register with a 150-day time period. The Agencies would replace 
the text ``180'' with ``150''. This modification would make the 
paragraph consistent with MAP-21 Section 1308 (23 U.S.C. 139(l)).

Section 4(f) Regulation Changes (Part 774)

Section 774.11 Applicability

    In paragraph (i), the Agencies propose to revise the examples of 
documentation that would be adequate to show that a transportation 
facility and a Section 4(f) property were concurrently or jointly 
planned or developed: ``(1) Formal reservation of a property for a 
future transportation use can be demonstrated by a government document 
created prior to or contemporaneously with the establishment of the 
park, recreation area, or wildlife and waterfowl refuge. Examples of an 
adequate document to formally reserve a future transportation use 
include: (A) A government map that depicts a transportation facility on 
the property; (B) a land use or zoning plan depicting a transportation 
facility on the property; or (C) a fully executed real estate 
instrument that references a future transportation facility on the 
property. (2) Concurrent or joint planning or development can be 
demonstrated by a government document created after, contemporaneously 
with, or prior to the establishment of the Section 4(f) property. 
Examples of an adequate document to demonstrate concurrent or joint 
planning or development include: (A) A government document that 
describes or depicts the designation or donation of the property for 
both the potential transportation facility and the Section 4(f) 
property; or (B) a government agency map, memorandum, planning 
document, report, or correspondence that describes or depicts action 
taken with respect to the property by two or more governmental agencies 
with jurisdiction for the potential transportation facility and the 
Section 4(f) property, in consultation with each other.'' This would 
expand the current text that provides more limited direction to 
applicants as to what the Agencies will accept as adequate 
documentation of concurrent or joint planning or development of a 
transportation facility and a park, recreation area, or wildlife and 
waterfowl refuge.

Section 774.13 Exceptions

    In paragraph (e), the Agencies propose to revise the exception to 
read: ``Projects for the Federal lands transportation facilities 
described in 23 U.S.C. 101(a)(8).'' This replaces: ``Park road or 
parkway projects under 23 U.S.C. 204.'' This change is necessary due to 
the restructuring of the Federal Lands Highway Program by MAP-21, and 
more specifically, to implement Section 1119(c)(2) of MAP-21, which 
revised and broadened the Section 4(f) exception for park road and 
parkway projects to apply to Federal lands transportation facilities. 
Federal lands transportation facilities are public highways, roads, 
bridges, trails, and transit systems that are located on, adjacent to, 
or provide access to Federal lands for which title and maintenance 
responsibility is vested in the Federal Government, and that appear on 
the national Federal lands transportation facility inventory described 
in 23 U.S.C. 203(c).
    In paragraph (g), the Agencies propose to revise the exception to 
read: ``Transportation enhancement activities, transportation 
alternatives projects, and mitigation activities . . .'' This replaces: 
``Transportation enhancement projects and mitigation activities . . .'' 
This change is necessary because Section 1122 of MAP-21 replaced the 
former ``transportation enhancement projects program'' with a new 
``transportation alternatives projects program.'' This exception would 
continue to be limited to situations where the official(s) with 
jurisdiction over the Section 4(f) resource agrees that ``the use of 
the Section 4(f) property is solely for the purpose of preserving or 
enhancing an activity, feature, or attribute that qualifies the 
property for Section 4(f) protection.''

Statutory/Legal Authority for This Rulemaking

    The Agencies derive explicit authority for this rulemaking action 
from 49 U.S.C. 322(a), 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.'' The Secretary delegated 
this authority to the Agencies in 49 CFR 1.81(a)(3), which provides 
that the authority to prescribe regulations contained in 49 U.S.C. 
322(a) is delegated to each Administrator ``with respect to statutory 
provisions for which authority is delegated by other sections in [49 
CFR part 1].'' The Secretary has delegated authority to the Agencies to 
implement NEPA and Section 4(f), the statutes implemented by this rule, 
in 49 CFR 1.81(a)(4) and (5). Moreover, the CEQ regulations that 
implement NEPA provide at 40 CFR 1507.3 that agencies shall continue to 
review their policies and NEPA implementing procedures

[[Page 72634]]

and revise them as necessary to ensure full compliance with the 
purposes and provisions of NEPA.

Rulemaking Analyses and Notices

    The agencies will consider all comments received before the close 
of business on the comment closing date indicated above and will be 
available for examination in the docket (FHWA-2015-0011) at 
regulations.gov. Comments received after the comment closing date will 
be filed in the docket and the Agencies will consider them 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. The Agencies 
may publish a final rule at any time after close of the comment period.

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory 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 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 U.S. Department 
of Transportation regulatory policies and procedures (44 FR 11032, 
February 26, 1979). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. The Agencies anticipate that the economic 
impact of this rulemaking would be minimal. The Agencies do not have 
specific data to assess the monetary value of the benefits from the 
proposed changes because such data does not exist and would be 
difficult to develop.
    This NPRM proposes to modify 23 CFR parts 771 and 774 in order to 
be consistent with changes introduced by MAP-21 as well as to provide 
clarification and make the regulation more consistent with the 
Agencies' practices. 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 NPRM 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 or Section 4(f) while still ensuring that projects 
are built in an environmentally responsible manner. 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. ``Small entities'' include small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000. The proposed revisions are expected to 
expedite environmental review and thus are anticipated to 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 ensure 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. The Agencies analyzed this proposed 
action in accordance with the principles and criteria contained in 
Executive Order 13132 and determined that it 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. 
The Agencies 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 determined 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 DOT's regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities (49 
CFR part 17) 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

[[Page 72635]]

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, 
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) (available online at 
www.fhwa.dot.gov/environment/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, 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.cfm). 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 http://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 changes to 23 CFR part 771, 
if finalized as proposed, would not cause disproportionately high and 
adverse human health and environmental effects on minority or low 
income populations.
    At the time the Agencies apply the NEPA implementing procedures in 
23 CFR part 771, 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 resulting from a proposed Agency action covered 
under any of the NEPA classes of action in 23 CFR part 771, 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 have determined that no further EJ analysis is 
needed and no mitigation is required in connection with the proposed 
revisions to the Agencies' NEPA and Section 4(f) implementing 
regulations (23 CFR parts 771 and 774).

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 be an 
economically significant rule and would not cause 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 changes proposed in this rule are part of those agency procedures, 
and therefore establishing the proposed changes 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.

Regulation Identifier 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 review process, Environmental protection, Grant 
programs--transportation, Highways and roads, Historic preservation, 
Mitigation plans, Programmatic approaches, Public lands, Recreation 
areas, Reporting and recordkeeping requirements.

23 CFR Part 774

    Environmental protection, Grant programs-transportation, Highways 
and roads, Historic preservation, Mass Transportation, Public Lands, 
Recreation areas, Reporting and recordkeeping requirements, Wildlife 
refuges.

49 CFR Part 622

    Environmental impact statements, Environmental review process, 
Grant programs--transportation, Mitigation plans, Programmatic 
approaches, Public transportation, Recreation areas, Reporting and 
recordkeeping requirements, Transit.


[[Page 72636]]


    Issued in Washington, DC, on November 10, 2015, under authority 
delegated in 49 CFR 1.85 and 1.91.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
Therese W. McMillan,
Acting Administrator, Federal Transit Administration.

    In consideration of the foregoing, the Agencies propose to amend 
title 23, Code of Federal Regulations parts 771 and 774, and title 49, 
Code of Federal Regulations part 622, as follows:

TITLE 23--Highways

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
1. Revise authority citation for part 771 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, and 1.91; Pub. L. 109-59, 119 Stat. 1144, 
Sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, Sections 
1315, 1316, 1317, 1318, and 1319.

0
2. Revise Sec.  771.101 to read as follows:


Sec.  771.101  Purpose.

    This regulation prescribes the policies and procedures of the 
Federal Highway Administration (FHWA) and the Federal Transit 
Administration (FTA) for implementing the National Environmental Policy 
Act of 1969 as amended (NEPA), and supplements the NEPA regulation of 
the Council on Environmental Quality (CEQ), 40 CFR parts 1500 through 
1508 (CEQ regulation). Together these regulations set forth all FHWA, 
FTA and Department of Transportation (DOT) requirements under NEPA for 
the processing of highway and public transportation projects. This 
regulation also sets forth procedures to comply with 23 U.S.C. 109(h), 
128, 138, 139, 325, 326, and 327; 49 U.S.C. 303 and 5323(q); and Public 
Law 112-141, 126 Stat. 405, sections 1301 and 1319.
0
3. Revise Sec.  771.105 and its footnote to read as follows:


Sec.  771.105  Policy.

    It is the policy of the Administration that:
    (a) To the fullest extent possible, all environmental 
investigations, reviews, and consultations be coordinated as a single 
process, and compliance with all applicable environmental requirements 
be reflected in the environmental review document required by this 
regulation.\1\
---------------------------------------------------------------------------

    \1\ FHWA and FTA have supplementary guidance on environmental 
documents and procedures for their programs available on the 
Internet at http://www.fhwa.dot.gov and http://www.fta.dot.gov, or 
in hardcopy by request.
---------------------------------------------------------------------------

    (b) Programmatic approaches be developed for compliance with 
environmental requirements, coordination among agencies and/or the 
public, or to otherwise enhance and accelerate project development.
    (c) Alternative courses of action be evaluated and decisions be 
made in the best overall public interest based upon a balanced 
consideration of the need for safe and efficient transportation; of the 
social, economic, and environmental impacts of the proposed 
transportation improvement; and of national, State, and local 
environmental protection goals.
    (d) Public involvement and a systematic interdisciplinary approach 
be essential parts of the development process for proposed actions.
    (e) Measures necessary to mitigate adverse impacts be incorporated 
into the action. Measures necessary to mitigate adverse impacts are 
eligible for Federal funding when the Administration determines that:
    (1) The impacts for which the mitigation is proposed actually 
result from the Administration action; and
    (2) The proposed mitigation represents a reasonable public 
expenditure after considering the impacts of the action and the 
benefits fo the proposed mitigation measures. In making this 
determination, the Administration will consider, among other factors, 
the extent to which the proposed measures would assist in complying 
with a Federal statute, Executive order, or Administration regulation 
or policy.
    (f) Costs incurred by the applicant for the preparation of 
environmental documents requested by the Administration be eligible for 
Federal assistance.
    (g) No person, because of handicap, age, race, color, sex, or 
national origin, be excluded from participating in, or denied benefits 
of, or be subject to discrimination under any Administration program or 
procedural activity required by or developed pursuant to this 
regulation.
0
4. Revise Sec.  771.107 to read as follows:


Sec.  771.107  Definitions.

    The definitions contained in the CEQ regulation and in titles 23 
and 49 of the United States Code are applicable. In addition, the 
following definitions apply.
    Action. A highway or transit project proposed for FHWA or FTA 
funding. It also includes activities such as joint and multiple use 
permits, changes in access control, etc., which may or may not involve 
a commitment of Federal funds.
    Administration. The FHWA or FTA, whichever is the designated 
Federal lead agency for the proposed action. A reference herein to the 
Administration means the FHWA, or FTA, or a State when the State is 
functioning as the FHWA or FTA in carrying out responsibilities 
delegated or assigned to the State in accordance with 23 U.S.C. 325, 
326, or 327, or other applicable law. A reference herein to the FHWA or 
FTA means the State when the State is functioning as the FHWA or FTA 
respectively in carrying out responsibilities delegated or assigned to 
the State in accordance with 23 U.S.C. 325, 326, or 327, or other 
applicable law. Nothing in this definition alters the scope of any 
delegation or assignment made by FHWA or FTA.
    Administration action. FHWA or FTA approval of the applicant's 
request for Federal funds for construction. It also includes approval 
of activities such as joint and multiple use permits, changes in access 
control, etc., which may or may not involve a commitment of Federal 
funds.
    Applicant. Any Federal, State, local, or federally-recognized 
Indian tribal governmental unit that requests funding approval or other 
action by the Administration and that the Administration works with to 
conduct environmental studies and prepare environmental review 
documents. When another Federal agency, or the Administration itself, 
is implementing the action, then the lead agencies (as defined in this 
section) may assume the responsibilities of the applicant in this part. 
If there is no applicant then the Federal lead agency will assume the 
responsibilities of the applicant in this part.
    Environmental studies. The investigations of potential 
environmental impacts to determine the environmental process to be 
followed and to assist in the preparation of the environmental 
document.
    Lead agencies. The Administration and any other agency designated 
to serve as a joint lead agency with the Administration under 23 U.S.C. 
139(c)(3) or under the CEQ regulation.
    Participating agency. A Federal, State, local, or federally-
recognized Indian tribal governmental unit that may have an interest in 
the proposed project and has accepted an invitation to be a 
participating agency, or, in the case of a Federal agency, has not 
declined the invitation in accordance with 23 U.S.C. 139(d)(3).
    Programmatic approaches. An approach that reduces the need for

[[Page 72637]]

project-by-project reviews, eliminates repetitive discussion of the 
same issue, or focuses on the actual issues ripe for analyses at each 
level of review, while maintaining appropriate consideration for the 
environment.
    Project sponsor. The Federal, State, local, or federally-recognized 
Indian tribal governmental unit, or other entity, including any private 
or public-private entity that seeks Federal funding or an 
Administration action for a project. The project sponsor, if not the 
applicant, may conduct some of the activities on behalf of the 
applicant.
    Section 4(f). Refers to 49 U.S.C. 303 and 23 U.S.C. 138 (as 
implemented by 23 CFR part 774).
0
5. Amend Sec.  771.109 by revising paragraph (b) and adding paragraph 
(c)(7) to read as follows:


Sec.  771.109  Applicability and responsibilities.

* * * * *
    (b)(1) The applicant, in cooperation with the Administration, is 
responsible for implementing those mitigation measures stated as 
commitments in the environmental documents prepared pursuant to this 
regulation unless the Administration approves of their deletion or 
modification in writing. The FHWA will assure that this is accomplished 
as a part of its stewardship and oversight responsibilities. The FTA 
will assure implementation of committed mitigation measures through 
incorporation by reference in the grant agreement, followed by reviews 
of designs and construction inspections.
    (2) When entering into Federal-aid project agreements pursuant to 
23 U.S.C. 106, FHWA shall ensure that the State highway agency 
constructs the project in accordance with and incorporates all 
committed environmental impact mitigation measures listed in approved 
environmental review documents.
    (c) * * *
    (7) A participating agency is responsible for providing input, as 
appropriate, during the times specified in the coordination plan under 
23 U.S.C. 139(g), and providing comments and concurrence on a schedule 
if included within the coordination plan.
* * * * *
0
6. Revise Sec.  771.111 to read as follows:


Sec.  771.111  Early coordination, public involvement, and project 
development.

    (a)(1) Early coordination with appropriate agencies and the public 
aids in determining the type of environmental review document an action 
requires, the scope of the document, the level of analysis, and related 
environmental requirements. These activities contribute to reducing or 
eliminating delay, duplicative processes, and conflict by incorporating 
planning outcomes that have been reviewed by agencies and Indian tribal 
partners in project development.
    (2)(i) The information and results produced by, or in support of, 
the transportation planning process may be incorporated into 
environmental review documents in accordance with 40 CFR parts 1500 
through 1508, 23 CFR part 450, or 23 U.S.C. 168.
    (ii) The planning process described in paragraph (a)(2)(i) may 
include mitigation actions consistent with a programmatic mitigation 
plan developed pursuant to 23 U.S.C. 169 or from a programmatic 
mitigation plan developed outside of that framework.
    (3) Applicants intending to apply for funds should notify the 
Administration at the time that a project concept is identified. When 
requested, the Administration will advise the applicant, insofar as 
possible, of the probable class of action (see 23 CFR 771.115) and 
related environmental laws and requirements and of the need for 
specific studies and findings that would normally be developed during 
the environmental review process.
    (b) The Administration will identify the probable class of action 
as soon as sufficient information is available to identify the probable 
impacts of the action.
    (c) When both the FHWA and FTA are involved in the development of 
an action, or when the FHWA or FTA acts as a joint lead agency with 
another Federal agency, a mutually acceptable process will be 
established on a case-by-case basis.
    (d) During the early coordination process, the lead agencies may 
request other agencies having an interest in the action to participate, 
and must invite such agencies if the action is subject to the project 
development procedures in 23 U.S.C. 139. Agencies with special 
expertise may be invited to become cooperating agencies. Agencies with 
jurisdiction by law must be requested to become cooperating agencies.
    (e) Other States and Federal land management entities that may be 
significantly affected by the action or by any of the alternatives 
shall be notified early and their views solicited by the applicant in 
cooperation with the Administration. The Administration will provide 
direction to the applicant on how to approach any significant 
unresolved issues as early as possible during the environmental review 
process.
    (f) Any action evaluated through a categorical exclusion (CE), 
environmental assessment (EA), or environmental impact statement (EIS) 
shall:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;
    (2) Have independent utility or independent significance, i.e., be 
usable and be a reasonable expenditure even if no additional 
transportation improvements in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably 
foreseeable transportation improvements.
    (g) For major transportation actions, the tiering of EISs as 
discussed in the CEQ regulation (40 CFR 1502.20) may be appropriate. 
The first tier EIS would focus on broad issues such as general 
location, mode choice, and areawide air quality and land use 
implications of the major alternatives. The second tier would address 
site-specific details on project impacts, costs, and mitigation 
measures.
    (h) For the Federal-aid highway program:
    (1) Each State must have procedures approved by the FHWA to carry 
out a public involvement/public hearing program pursuant to 23 U.S.C. 
128 and 139 and CEQ regulation.
    (2) State public involvement/public hearing procedures must provide 
for:
    (i) Coordination of public involvement activities and public 
hearings with the entire NEPA process.
    (ii) Early and continuing opportunities during project development 
for the public to be involved in the identification of social, 
economic, and environmental impacts, as well as impacts associated with 
relocation of individuals, groups, or institutions.
    (iii) One or more public hearings or the opportunity for hearing(s) 
to be held by the State highway agency at a convenient time and place 
for any Federal-aid project which requires significant amounts of 
right-of-way, substantially changes the layout or functions of 
connecting roadways or of the facility being improved, has a 
substantial adverse impact on abutting property, otherwise has a 
significant social, economic, environmental or other effect, or for 
which the FHWA determines that a public hearing is in the public 
interest.
    (iv) Reasonable notice to the public of either a public hearing or 
the opportunity for a public hearing. Such notice will indicate the 
availability of explanatory information. The notice shall also provide 
information required

[[Page 72638]]

to comply with public involvement requirements of other laws, Executive 
orders, and regulations.
    (v) Explanation at the public hearing of the following information, 
as appropriate:
    (A) The project's purpose, need, and consistency with the goals and 
objectives of any local urban planning,
    (B) The project's alternatives, and major design features,
    (C) The social, economic, environmental, and other impacts of the 
project,
    (D) The relocation assistance program and the right-of-way 
acquisition process.
    (E) The State highway agency's procedures for receiving both oral 
and written statements from the public.
    (vi) Submission to the FHWA of a transcript of each public hearing 
and a certification that a required hearing or hearing opportunity was 
offered. The transcript will be accompanied by copies of all written 
statements from the public, both submitted at the public hearing or 
during an announced period after the public hearing.
    (vii) An opportunity for public involvement in defining the purpose 
and need and the range of alternatives, for any action subject to the 
project development procedures in 23 U.S.C. 139.
    (viii) Public notice and an opportunity for public review and 
comment on a Section 4(f) de minimis impact finding, in accordance with 
49 U.S.C. 303(d).
    (i) Applicants for capital assistance in the FTA program:
    (1) Achieve public participation on proposed actions through 
activities that engage the public, including public hearings, town 
meetings, and charrettes, and seeking input from the public through 
scoping for the environmental review process. Project milestones may be 
announced to the public using electronic or paper media (e.g., 
newsletters, note cards, or emails) pursuant to 40 CFR 1506.6. For 
actions requiring EISs, an early opportunity for public involvement in 
defining the purpose and need for action and the range of alternatives 
must be provided, and a public hearing will be held during the 
circulation period of the draft EIS.
    (2) May participate in early scoping as long as enough project 
information is known so the public and other agencies can participate 
effectively. Early scoping constitutes initiation of NEPA scoping while 
local planning efforts to aid in establishing the purpose and need and 
in evaluating alternatives and impacts are underway. Notice of early 
scoping must be made to the public and other agencies. If early scoping 
is the start of the NEPA process, the early scoping notice must include 
language to that effect. After development of the proposed action at 
the conclusion of early scoping, FTA will publish the Notice of Intent 
if it is determined at that time that the proposed action requires an 
EIS. The Notice of Intent will establish a 30-day period for comments 
on the purpose and need and the alternatives.
    (3) Are encouraged to post and distribute materials related to the 
environmental review process, including but not limited to, NEPA 
documents (e.g., EAs and EISs), environmental studies (e.g., technical 
reports), public meeting announcements, and meeting minutes, through 
publicly-accessible electronic means, including project Web sites. 
Applicants are encouraged to keep these materials available to the 
public electronically until the project is constructed and open for 
operations.
    (4) Are encouraged to post all findings of no significant impact 
(FONSI), combined final environmental impact statement (FEIS)/records 
of decision (ROD), and RODs on a project Web site until the project is 
constructed and open for operation.
    (j) Information on the FTA environmental process may be obtained 
from: Director, Office of Environmental Programs, Federal Transit 
Administration, Washington, DC 20590, or www.fta.dot.gov. Information 
on the FHWA environmental process may be obtained from: Director, 
Office of Project Development and Environmental Review, Federal Highway 
Administration, Washington, DC 20590, or www.fhwa.dot.gov.
0
7. Revise Sec.  771.113 to read as follows:


Sec.  771.113  Timing of Administration activities.

    (a) The lead agencies, in cooperation with the applicant and 
project sponsor as appropriate, will perform the work necessary to 
complete the environmental review process. This work includes drafting 
environmental documents and completing studies, related engineering 
studies, agency coordination, and public involvement. Except as 
otherwise provided in law or in paragraph (d) of this section, final 
design activities, property acquisition, purchase of construction 
materials or rolling stock, or project construction shall not proceed 
until the following have been completed:
    (1)(i) The action has been classified as a CE;
    (ii) The Administration has issued a FONSI; or
    (iii) The Administration has issued a combined final EIS/ROD or a 
final EIS and ROD;
    (2) For actions proposed for FHWA funding, the Administration has 
received and accepted the certifications and any required public 
hearing transcripts required by 23 U.S.C. 128;
    (3) For activities proposed for FHWA funding, the programming 
requirements of 23 CFR part 450, subpart B, and 23 CFR part 630, 
subpart A, have been met.
    (b) For activities proposed for FHWA action, completion of the 
requirements set forth in paragraphs (a)(1) and (2) of this section is 
considered acceptance of the general project location and concepts 
described in the environmental review documents unless otherwise 
specified by the approving official.
    (c) Letters of Intent issued under the authority of 49 U.S.C. 
5309(g) are used by FTA to indicate an intention to obligate future 
funds for multi-year capital transit projects. Letters of Intent will 
not be issued by FTA until the NEPA process is completed.
    (d) The prohibition in paragraph (a)(1) of this section is limited 
by the following exceptions:
    (1) Early acquisition, hardship and protective acquisitions of real 
property in accordance with 23 CFR part 710, subpart E for FHWA. 
Exceptions for the acquisitions of real property are addressed in 
paragraphs (c)(6) and (d)(3) of Sec.  771.118 for FTA.
    (2) The early acquisition of right-of-way for future transit use in 
accordance with 49 U.S.C. 5323(q) and FTA guidance.
    (3) A limited exception for rolling stock is provided in 49 U.S.C. 
5309(l)(6).
0
8. Revise Sec.  771.115 to read as follows:


Sec.  771.115  Classes of actions.

    There are three classes of actions which prescribe the level of 
documentation required in the NEPA process. A programmatic approach may 
be used for any class of action.
    (a) EIS (Class I). Actions that significantly affect the 
environment require an EIS (40 CFR 1508.27). The following are examples 
of actions that normally required an EIS:
    (1) A new controlled access freeway.
    (2) A highway project of four or more lanes on a new location.
    (3) Construction or extension of a fixed transit facility (e.g., 
rapid rail, light rail, commuter rail, bus rapid transit) that will not 
be located primarily within an existing transportation right-of-way.
    (4) For FHWA actions, new construction or extension of a separate 
roadway for buses or high occupancy

[[Page 72639]]

vehicles not located within an existing highway facility.
    (5) For FTA actions, new construction or extension of a separate 
roadway for buses not located primarily within an existing 
transportation right-of-way.
    (b) CE (Class II). Actions that do not individually or cumulatively 
have a significant environmental effect are excluded from the 
requirement to prepare an EA or EIS. A specific list of CEs normally 
not requiring NEPA documentation is set forth in Sec.  771.117(c) for 
FHWA actions or pursuant to Sec.  771.118(c) for FTA actions. When 
appropriately documented, additional projects may also qualify as CEs 
pursuant to Sec.  771.117(d) for FHWA actions or pursuant to Sec.  
771.118(d) for FTA actions.
    (c) EA (Class III). Actions in which the Administration has not 
clearly established the significance of the environmental impact. All 
actions that are not Class I or II are Class III. All actions in this 
class require the preparation of an EA to determine the appropriate 
environmental document required.
0
9. Revise Sec.  771.119 to read as follows:


Sec.  771.119  Environmental assessments.

    (a)(i) The applicant shall prepare an EA in consultation with the 
Administration for each action that is not a CE and does not clearly 
require the preparation of an EIS, or where the Administration believes 
an EA would assist in determining the need for an EIS.
    (ii) For FTA actions: When FTA or the applicant, as joint lead 
agency, select a contractor to prepare the EA, then the contractor 
shall execute an FTA conflict of interest disclosure statement. The 
statement must be maintained in the FTA Regional Office and with the 
applicant. The contractor's scope of work for the preparation of the EA 
will not be finalized until the early coordination activities or 
scoping process found in paragraph (b) of this section is completed 
(including FTA approval, in consultation with the applicant, of the 
scope of the EA content).
    (b) For actions that require an EA, the applicant, in consultation 
with the Administration, shall, at the earliest appropriate time, begin 
consultation with interested agencies and others to advise them of the 
scope of the project and to achieve the following objectives: Determine 
which aspects of the proposed action have potential for social, 
economic, or environmental impact; identify alternatives and measures 
which might mitigate adverse environmental impacts; and identify other 
environmental review and consultation requirements which should be 
performed concurrently with the EA. The applicant shall accomplish this 
through early coordination activities or through a scoping process. The 
applicant shall summarize the public involvement process and include 
the results of agency coordination in the EA.
    (c) The Administration must approve the EA before it is made 
available to the public as an Administration document.
    (d) The applicant does not need to circulate the EA for comment but 
the document must be made available for public inspection at the 
applicant's office and at the appropriate Administration field offices 
in accordance with paragraphs (e) and (f) of this section. The 
applicant shall send the notice of availability of the EA, which 
briefly describes the action and its impacts, to the affected units of 
Federal, State and local government. The applicant shall also send 
notice to the State intergovernmental review contacts established under 
Executive Order 12372.
    (e) When a public hearing is held as part of the environmental 
review process for an action, the EA shall be available at the public 
hearing and for a minimum of 15 days in advance of the public hearing. 
The applicant shall publish a notice of the public hearing in local 
newspapers that announces the availability of the EA and where it may 
be obtained or reviewed. Any comments must be submitted in writing to 
the applicant or the Administration during the 30-day availability 
period of the EA unless the Administration determines, for good cause, 
that a different period is warranted. Public hearing requirements are 
as described in Sec.  771.111.
    (f) When a public hearing is not held, the applicant shall place a 
notice in a newspaper(s) similar to a public hearing notice and at a 
similar stage of development of the action, advising the public of the 
availability of the EA and where information concerning the action may 
be obtained. The notice shall invite comments from all interested 
parties. Any comments must be submitted in writing to the applicant or 
the Administration during the 30-day availability period of the EA 
unless the Administration determines, for good cause, that a different 
period is warranted.
    (g) If no significant impacts are identified, the applicant shall 
furnish the Administration a copy of the revised EA, as appropriate; 
the public hearing transcript, where applicable; copies of any comments 
received and responses thereto; and recommend a FONSI. The EA should 
also document compliance, to the extent possible, with all applicable 
environmental laws and Executive orders, or provide reasonable 
assurance that their requirements can be met.
    (h) When the FHWA expects to issue a FONSI for an action described 
in Sec.  771.115(a), copies of the EA shall be made available for 
public review (including the affected units of government) for a 
minimum of 30 days before the Administration makes its final decision 
(See 40 CFR 1501.4(e)(2).) This public availability shall be announced 
by a notice similar to a public hearing notice.
    (i) If, at any point in the EA process, the Administration 
determines that the action is likely to have a significant impact on 
the environment, the preparation of an EIS will be required.
    (j) If the Administration decides to apply 23 U.S.C. 139 to an 
action involving an EA, then the EA shall be prepared in accordance 
with the applicable provisions of that statute.
0
10. Revise Sec.  771.121 to read as follows:


Sec.  771.121  Findings of no significant impact.

    (a) The Administration will review the EA, comments submitted on 
the EA (in writing or at public hearings/meetings), and other 
supporting documentation, as appropriate. If the Administration agrees 
with the applicant's recommendations pursuant to Sec.  771.119(g), it 
will make a separate written FONSI incorporating by reference the EA 
and any other appropriate environmental documents.
    (b) After the Administration issues a FONSI, a notice of 
availability of the FONSI shall be sent by the applicant to the 
affected units of Federal, State, and local government, and the 
document shall be available from the applicant and the Administration 
upon request by the public. Notice shall also be sent to the State 
intergovernmental review contacts established under Executive Order 
12372.
    (c) If another Federal agency has issued a FONSI on an action which 
includes an element proposed for Administration funding or approval, 
the Administration will evaluate the other agency's EA/FONSI. If the 
Administration determines that this element of the project and its 
environmental impacts have been adequately identified and assessed and 
concurs in the decision to issue a FONSI, the Administration will issue 
its own FONSI incorporating the other agency's EA/FONSI. If 
environmental

[[Page 72640]]

issues have not been adequately identified and assessed, the 
Administration will require appropriate environmental studies.
0
11. Revise Sec.  771.123 to read as follows:


Sec.  771.123  Draft environmental impact statements.

    (a) A draft EIS shall be prepared when the Administration 
determines that the action is likely to cause significant impacts on 
the environment. When the applicant, after consultation with any 
project sponsor that is not the applicant, has notified the 
Administration in accordance with 23 U.S.C. 139(e) and the decision has 
been made by the Administration to prepare an EIS, the Administration 
will issue a Notice of Intent (40 CFR 1508.22) for publication in the 
Federal Register. Applicants are encouraged to announce the intent to 
prepare an EIS by appropriate means at the local level.
    (b) After publication of the Notice of Intent, the lead agencies, 
in cooperation with the applicant (if not a lead agency), will begin a 
scoping process that may take into account any planning work already 
accomplished, in accordance with 23 CFR 450.212, 450.318, or any 
applicable provisions of the CEQ regulations at 40 CFR parts 1500-1508. 
The scoping process will be used to identify the purpose and need, the 
range of alternatives and impacts, and the significant issues to be 
addressed in the EIS and to achieve the other objectives of 40 CFR 
1501.7. Scoping is normally achieved through public and agency 
involvement procedures required by Sec.  771.111. If a scoping meeting 
is to be held, it should be announced in the Administration's Notice of 
Intent and by appropriate means at the local level.
    (c) The draft EIS shall be prepared by the lead agencies, in 
cooperation with the applicant (if not a lead agency). The draft EIS 
shall evaluate all reasonable alternatives to the action and discuss 
the reasons why other alternatives, which may have been considered, 
were eliminated from detailed study. The draft EIS shall also summarize 
the studies, reviews, consultations, and coordination required by 
environmental laws or Executive orders to the extent appropriate at 
this stage in the environmental process.
    (d) Any of the lead agencies may select a consultant to assist in 
the preparation of an EIS in accordance with applicable contracting 
procedures and with 40 CFR 1506.5(c). For FTA actions: When FTA or the 
applicant, as joint lead agency, select a contractor to prepare the 
EIS, then the contractor shall execute an FTA conflict of interest 
disclosure statement. The statement must be maintained in the FTA 
Regional Office and with the applicant. The contractor's scope of work 
for the preparation of the EIS will not be finalized until the early 
coordination activities or scoping process found in paragraph (b) of 
this section is completed (including FTA approval, in consultation with 
the applicant, of the scope of the EIS content).
    (e) The draft EIS should identify the preferred alternative to the 
extent practicable. If the draft EIS does not identify the preferred 
alternative, the Administration should provide agencies and the public 
with an opportunity after issuance of the draft EIS to review the 
impacts.
    (f) At the discretion of the lead agency, the preferred alternative 
(or portion thereof) for a project, after being identified, may be 
developed to a higher level of detail than other alternatives in order 
to facilitate the development of mitigation measures or compliance with 
requirements for permitting. The development of such higher level of 
detail must not prevent the lead agency from making an impartial 
decision as to whether to accept another alternative that is being 
considered in the environmental review process.
    (g) The Administration, when satisfied that the draft EIS complies 
with NEPA requirements, will approve the draft EIS for circulation by 
signing and dating the cover sheet. The cover sheet should include a 
notice that after circulation of the draft EIS and consideration of the 
comments received, the Administration will issue a combined final EIS/
ROD document unless statutory criteria or practicability considerations 
preclude issuance of the combined document.
    (h) A lead, joint lead, or a cooperating agency shall be 
responsible for printing the EIS. The initial printing of the draft EIS 
shall be in sufficient quantity to meet requirements for copies which 
can reasonably be expected from agencies, organizations, and 
individuals. Normally, copies will be furnished free of charge. 
However, with Administration concurrence, the party requesting the 
draft EIS may be charged a fee which is not more than the actual cost 
of reproducing the copy or may be directed to the nearest location 
where the statement may be reviewed.
    (i) The applicant, on behalf of the Administration, shall circulate 
the draft EIS for comment. The draft EIS shall be made available to the 
public and transmitted to agencies for comment no later than the time 
the document is filed with the Environmental Protection Agency in 
accordance with 40 CFR 1506.9. The draft EIS shall be transmitted to:
    (1) Public officials, interest groups, and members of the public 
known to have an interest in the proposed action or the draft EIS;
    (2) Cooperating and participating agencies. Copies shall be 
provided directly to appropriate State and local agencies, and to the 
State intergovernmental review contacts established under Executive 
Order 12372; and
    (3) States and Federal land management entities that may be 
significantly affected by the proposed action or any of the 
alternatives. These copies shall be accompanied by a request that such 
State or entity advise the Administration in writing of any 
disagreement with the evaluation of impacts in the statement. The 
Administration will furnish the comments received to the applicant 
along with a written assessment of any disagreements for incorporation 
into the final EIS.
    (j) When a public hearing on the draft EIS is held (if required by 
23 CFR 771.111), the draft EIS shall be available at the public hearing 
and for a minimum of 15 days in advance of the public hearing. The 
availability of the draft EIS shall be mentioned, and public comments 
requested, in any public hearing notice and at any public hearing 
presentation. If a public hearing on an action proposed for FHWA 
funding is not held, a notice shall be placed in a newspaper similar to 
a public hearing notice advising where the draft EIS is available for 
review, how copies may be obtained, and where the comments should be 
sent.
    (k) The Federal Register public availability notice (40 CFR 
1506.10) shall establish a period of not fewer than 45 days nor more 
than 60 days for the return of comments on the draft EIS unless a 
different period is established in accordance with 23 U.S.C. 
139(g)(2)(A). The notice and the draft EIS transmittal letter shall 
identify where comments are to be sent.
0
12. Add Sec.  771.124 to read as follows:


Sec.  771.124  Final environmental impact statement/record of decision 
document

    (a)(1) After circulation of a draft EIS and consideration of 
comments received, the lead agencies, in cooperation with the applicant 
(if not a lead agency), shall combine the final EIS and record of 
decision (ROD), to the maximum extent practicable, unless:
    (i) The final EIS makes substantial changes to the proposed action 
that are relevant to environmental or safety concerns; or

[[Page 72641]]

    (ii) There are significant new circumstances or information 
relevant to environmental concerns and that bear on the proposed action 
or the impacts of the proposed action.
    (2) When the combined final EIS/ROD is a single document, it shall 
include the content of a final EIS presented in Sec.  771.125 and 
present the basis for the decision as specified in 40 CFR 1505.2, 
summarize any mitigation measures that will be incorporated in the 
project, and document any required Section 4(f) approval in accordance 
with part 774 of this title.
    (3) If the comments on the draft EIS are minor and confined to 
factual corrections or explanations that do not warrant additional 
agency response, an errata sheet may be attached to the draft 
statement, which together shall then become the combined final EIS/ROD.
    (4) A combined final EIS/ROD will be reviewed for legal sufficiency 
prior to issuance by the Administration.
    (5) The Administration shall indicate approval of the combined 
final EIS/ROD by signing the document. The provision on 
Administration's Headquarters prior concurrence in Sec.  771.125(c) 
applies to the combined final EIS/ROD.
    (b) The Federal Register public availability notice published by 
EPA (40 CFR 1506.10) does not establish a waiting period or a period of 
time for the return of comments on a combined final EIS/ROD.
0
13. Amend Sec.  771.125 as follows:
0
a. Remove paragraph (d) and redesignate paragraphs (e) through (g) as 
paragraphs (d) through (f);
0
b. Revise newly redesignated paragraphs (e) through (f) and add new 
paragraph (g).
    The revisions read as follows:


Sec.  771.125  Final environmental impact statements.

* * * * *
    (e) The initial publication of the final EIS shall be in sufficient 
quantity to meet the request for copies which can be reasonably 
expected from agencies, organizations, and individuals. Normally, 
copies will be furnished free of charge. However, with Administration 
concurrence, the party requesting the final EIS may be charged a fee 
which is not more than the actual cost of reproducing the copy or may 
be directed to the nearest location where the statement may be 
reviewed.
    (f) The final EIS shall be transmitted to any persons, 
organizations, or agencies that made substantive comments on the draft 
EIS or requested a copy, no later than the time the document is filed 
with EPA. In the case of lengthy documents, the agency may provide 
alternative circulation processes in accordance with 40 CFR 1502.19. 
The applicant shall also publish a notice of availability in local 
newspapers and make the final EIS available through the mechanism 
established pursuant to DOT Order 4600.13 which implements Executive 
Order 12372. When filed with EPA, the final EIS shall be available for 
public review at the applicant's offices and at appropriate 
Administration offices. A copy should also be made available for public 
review at institutions such as local government offices, libraries, and 
schools, as appropriate.
    (g) The final EIS may take the form of an errata sheet pursuant to 
40 CFR 1503.4(c).
0
14. Revise Sec.  771.127 to read as follows:


Sec.  771.127  Record of decision.

    (a) When the final EIS is not combined with the ROD, the 
Administration will complete and sign a ROD no sooner than 30 days 
after publication of the final EIS notice in the Federal Register or 90 
days after publication of a notice for the draft EIS, whichever is 
later. The ROD will present the basis for the decision as specified in 
40 CFR 1505.2, summarize any mitigation measures that will be 
incorporated in the project and document any required Section 4(f) 
approval in accordance with part 774 of this title.
    (b) If the Administration subsequently wishes to approve an 
alternative which was not identified as the preferred alternative but 
was fully evaluated in the final EIS, or proposes to make substantial 
changes to the mitigation measures or findings discussed in the ROD, a 
revised or amended ROD shall be subject to review by those 
Administration offices which reviewed the final EIS under Sec.  
771.124(a) or Sec.  771.125(c). To the extent practicable the approved 
revised or amended ROD shall be provided to all persons, organizations, 
and agencies that received a copy of the final EIS.
0
15. Revise Sec.  771.129 to read as follows:


Sec.  771.129  Re-evaluations.

    The Administration shall determine, prior to granting any new 
approval related to an action or amending any previously approved 
aspect of an action, including mitigation commitments, whether an 
approved environmental document remains valid as described below:
    (a) The applicant shall prepare a written evaluation of the draft 
EIS in cooperation with the Administration if an acceptable final EIS 
is not submitted to the Administration within three years from the date 
of the draft EIS circulation. The purpose of this evaluation is to 
determine whether or not a supplement to the draft EIS or a new draft 
EIS is needed.
    (b) The applicant shall prepare a written evaluation of the final 
EIS before the Administration may grant further approvals if major 
steps to advance the action (e.g., authority to undertake final design, 
authority to acquire a significant portion of the right-of-way, or 
approval of the plans, specifications and estimates) have not occurred 
within three years after the approval of the final EIS, final EIS 
supplement, or the last major Administration approval or grant.
    (c) After the Administration issues a combined final EIS/ROD, ROD, 
FONSI, or CE designation, the applicant shall consult with the 
Administration prior to requesting any major approvals or grants to 
establish whether or not the approved environmental document or CE 
designation remains valid for the requested Administration action.
0
16. Amend Sec.  771.130 by removing paragraph (e) and redesignating 
paragraph (f) as paragraph (e), and revising it to read as follows:


Sec.  771.130  Supplemental environmental impact statements.

* * * * *
    (e) In some cases, an EA or supplemental EIS may be required to 
address issues of limited scope, such as the extent of proposed 
mitigation or the evaluation of location or design variations for a 
limited portion of the overall project. Where this is the case, the 
preparation of a supplemental document shall not necessarily:
    (1) Prevent the granting of new approvals;
    (2) Require the withdrawal of previous approvals; or
    (3) Require the suspension of project activities, for any activity 
not directly affected by the supplement. If the changes in question are 
of such magnitude to require a reassessment of the entire action, or 
more than a limited portion of the overall action, the Administration 
shall suspend any activities which would have an adverse environmental 
impact or limit the choice of reasonable alternatives, until the 
supplemental document is completed.
0
17. Revise Sec.  771.131 to read as follows:


Sec.  771.131  Emergency action procedures.

    Responses to some emergencies and disasters are categorical 
exclusions under Sec.  771.117 for FHWA or Sec.  771.118

[[Page 72642]]

for FTA. Otherwise, requests for deviations from the procedures in this 
regulation because of emergency circumstances (40 CFR 1506.11) shall be 
referred to the Administration's headquarters for evaluation and 
decision after consultation with CEQ.
0
18. Revise Sec.  771.133 to read as follows:


Sec.  771.133  Compliance with other requirements.

    (a) The combined final EIS/ROD, final EIS or FONSI should document 
compliance with requirements of all applicable environmental laws, 
Executive orders, and other related requirements. If full compliance is 
not possible by the time the combined final EIS/ROD, final EIS or FONSI 
is prepared, the combined final EIS/ROD, final EIS or FONSI should 
reflect consultation with the appropriate agencies and provide 
reasonable assurance that the requirements will be met. Approval of the 
environmental document constitutes adoption of any Administration 
findings and determinations that are contained therein. The FHWA's 
approval of an environmental document constitutes its finding of 
compliance with the report requirements of 23 U.S.C. 128.
    (b) In consultation with the Administration and subject to 
Administration approval, an applicant may develop a programmatic 
approach for compliance with the requirements of any law, regulation, 
or Executive order applicable to the project development process.


Sec.  771.139  [Amended]

0
19. Revise Sec.  771.139 by replacing ``180'' with ``150'' in the 
second and third sentences.

PART 774--PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES, 
AND HISTORIC SITES (SECTION 4(f))

0
20. Revise the authority citation for part 774 to read as follows:

    Authority:  23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and 
204(h)(2); 49 U.S.C. 303; Section 6009 of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.81 and 
1.91.

0
21. Revise Sec.  774.11(i) to read as follows:


Sec.  774.11  Applicability.

* * * * *
    (i) When a property is formally reserved for a future 
transportation facility before or at the same time a park, recreation 
area, or wildlife and waterfowl refuge is established, and concurrent 
or joint planning or development of the transportation facility and the 
Section 4(f) resource occurs, then any resulting impacts of the 
transportation facility will not be considered a use as defined in 
Sec.  774.17.
    (1) Formal reservation of a property for a future transportation 
use can be demonstrated by a government document created prior to or 
contemporaneously with the establishment of the park, recreation area, 
or wildlife and waterfowl refuge. Examples of an adequate document to 
formally reserve a future transportation use include:
    (i) A government map that depicts a transportation facility on the 
property;
    (ii) A land use or zoning plan depicting a transportation facility 
on the property; or
    (iii) A fully executed real estate instrument that references a 
future transportation facility on the property.
    (2) Concurrent or joint planning or development can be demonstrated 
by a government document created after, contemporaneously with, or 
prior to the establishment of the Section 4(f) property. Examples of an 
adequate document to demonstrate concurrent or joint planning or 
development include:
    (i) A government document that describes or depicts the designation 
or donation of the property for both the potential transportation 
facility and the Section 4(f) property; or
    (ii) A government agency map, memorandum, planning document, 
report, or correspondence that describes or depicts action taken with 
respect to the property by two or more governmental agencies with 
jurisdiction for the potential transportation facility and the Section 
4(f) property, in consultation with each other.
0
22. Amend Sec.  774.13 by revising paragraphs (e) and (g) to read as 
follows:


Sec.  774.13  Exceptions.

* * * * *
    (e) Projects for the Federal lands transportation facilities 
described in 23 U.S.C. 101(a)(8).
* * * * *
    (g) Transportation enhancement activities, transportation 
alternatives projects, and mitigation activities, where:
    (1) The use of the Section 4(f) property is solely for the purpose 
of preserving or enhancing an activity, feature, or attribute that 
qualifies the property for Section 4(f) protection; and
    (2) The official(s) with jurisdiction over the Section 4(f) 
resource agrees in writing to paragraph (g)(1) of this section.

TITLE 49--Transportation

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
23. Amend authority citation for part 622 to read as follows:

    Authority:  42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 
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; and Pub. L. 112-141, 
126 Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319.

[FR Doc. 2015-29413 Filed 11-19-15; 8:45 am]
BILLING CODE 4910-22-P