[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)]
[Proposed Rules]
[Pages 45220-45228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20561]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 778 and 773

Federal Railroad Administration

49 CFR Part 264

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2016-0037]
FHWA RIN 2125-AF73: FRA RIN 2130-AC66: FTA RIN 2132-AB32


Program for Eliminating Duplication of Environmental Reviews

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

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

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SUMMARY: This NPRM provides interested parties with the opportunity to 
comment on proposed regulations governing the U.S. Department of 
Transportation's (DOT) Program for Eliminating Duplication of 
Environmental Reviews (Program) established by Section 1309 of the 
Fixing America's Surface Transportation Act (FAST Act). Section 1309 
directed the U.S. Secretary of Transportation (Secretary) to establish 
a pilot program authorizing up to five States to conduct environmental 
reviews and make approvals for projects under State environmental laws 
and regulations instead of the National Environmental Policy Act 
(NEPA). The FAST Act requires the Secretary, in consultation with the 
Chair of the Council on Environmental Quality (CEQ), to promulgate 
regulations to implement the requirements of the Program, including 
application requirements and criteria necessary to determine whether 
State laws and regulations are at least as stringent as the applicable 
Federal law. The FHWA, FRA, and FTA, hereinafter referred to as ``the 
Agencies,'' are proposing these regulations on behalf of the Secretary 
and seek comments on the proposals contained in this NPRM. This rule 
would also implement a provision in Section 1308 of the FAST Act that 
amends the corrective action period that the Agencies must provide to a 
State participating in the Surface Transportation Project Delivery 
Program (Section 327 Program).

DATES: Comments must be received on or before November 27, 2017.

ADDRESSES: You may submit comments, identified by the document number 
at the top of this document, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     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/Courier: 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: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
www.regulations.gov, including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For FHWA, James Gavin, Office of 
Project Development and Environmental Review, (202) 366-1473, or Diane 
Mobley, Office of Chief Counsel, (202) 366-1366. For FRA, Michael 
Johnsen, Office of Railroad Policy and Development, (202) 493-1310, or 
Chris Van Nostrand, Office of Chief Counsel, (202) 493-6058. For FTA, 
Megan Blum, Office of Planning and Environment, (202) 366-0463, or 
Helen Serassio, Office of Chief Counsel, (202) 366-1974. The Agencies 
are located at 1200 New Jersey Ave. SE., Washington, DC 20590. Office 
hours are from 9:00 a.m. to 5:00 p.m. ET, Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION: 

Background

    On December 4, 2015, President Obama signed into law the FAST Act 
(Pub. L. 114-94, 129 Stat. 1312), which contains new requirements 
related to the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 
et seq.). Section 1309 of the FAST Act, codified at 23 U.S.C. 330, 
established a pilot program that allows the Secretary to approve up to 
five States to use one or more State environmental laws instead of NEPA 
for environmental review of surface transportation projects. In order 
to be eligible to participate in the Program, a State must have assumed 
the Secretary's responsibilities for environmental

[[Page 45221]]

reviews under 23 U.S.C. 327. To participate in the Program, a State 
must submit an application and enter into an agreement with DOT.
    Section 1308(5) of the FAST Act amended the 23 U.S.C. 327(j) 
termination procedures for the Section 327 Program by: (1) Changing the 
number of days for corrective action the Agencies must provide to the 
State from 30 days to not less than 120 calendar days, and 2) upon the 
request of the Governor of the State, requiring the Agencies provide a 
detailed description of each responsibility in need of corrective 
action.
    Under Section 1309 of the FAST Act (23 U.S.C. 330), DOT, in 
consultation with the Chair of CEQ, must promulgate regulations 
implementing the requirements of that provision. The proposed 
regulations would establish the Program, specify the information that 
applicants must submit to participate in the Program, and define the 
criteria the Agencies, in consultation with the Office of the Secretary 
and with the concurrence of the Chair of CEQ, will use to determine 
whether a State law or regulation is as stringent as the Federal 
requirements under NEPA, the procedures implementing NEPA, and NEPA-
related regulations and Executive Orders. This NPRM proposes 
regulations establishing the Program and requests the public's 
comments.

Section-by-Section Discussion of the Proposals

23 CFR Part 778--Pilot Program for Eliminating Duplication of 
Environmental Reviews

    The Agencies propose a title to this part that clearly describes 
the Program's scope.

Section 778.101 Purpose

    The Agencies propose a section to explain the purpose of the 
Program.

Section 778.103 Eligibility and Certain Limitations

    The Agencies propose a section describing the Program's eligibility 
requirements and the limitations of a State's participation.
    This section proposes four requirements necessary for a State to 
participate in the Program. First, a State must act through the 
Governor or top-ranking State transportation official who is charged 
with responsibility for highway construction. Second, a State must 
expressly consent to the exclusive jurisdiction of the U.S. District 
Courts for compliance, discharge, and enforcement of any responsibility 
under this Program. Third, a State must have assumed the 
responsibilities of the Secretary under 23 U.S.C. 327. Fourth, a State 
must have laws in effect authorizing the State to take the actions 
necessary to carry out the alternative environmental review and 
approval procedures under State laws and regulations.
    Section 778.103 identifies two conditions governing a State's 
participation in the Program. First, State environmental laws and 
regulations may only be substituted as a means for complying with NEPA, 
procedures governing the implementation of NEPA, and related 
regulations and Executive Orders. Second, compliance with State 
environmental laws and regulations does not substitute for compliance 
with any other applicable Federal environmental requirements.

Section 778.105 Application Requirements for Participation in the 
Program

    The Agencies propose a section describing the required content of 
an eligible State's application to participate in the Program.
    To participate in the Program, any eligible State would submit an 
application that includes:
    (1) A full and complete description of the alternative 
environmental review and approval procedures the State proposes to use, 
including (i) the procedures the State uses to engage the public and 
consider alternatives to the proposed action; and (ii) the extent to 
which the State considers environmental consequences or impacts on 
resources potentially impacted by the proposed actions (40 CFR 1508.7 
and 1508.8).
    (2) Identification of each Federal environmental requirement the 
State is seeking to substitute, within the limitations of this section;
    (3) Identification of each State environmental law and regulation 
that the State intends to substitute for a Federal environmental 
requirement, within the limitations of this section;
    (4) A detailed explanation of how the State environmental law and 
regulation intended to substitute for a Federal environmental 
requirement is at least as stringent as the Federal requirement;
    (5) A detailed description of the projects or classes of 
transportation projects for which the State anticipates exercising the 
authority that may be granted under the Program;
    (6) Verification that the State has the financial and personnel 
resources necessary to carry out the Program;
    (7) Evidence that the State has sought public comments on its 
application prior to its submittal and the State's response to any 
comments it received;
    (8) A point of contact for questions regarding the application and 
a point of contact regarding potential implementation of the Program 
(if different);
    (9) Certification and explanation by the State's Attorney General 
or other State official legally empowered by State law to issue legal 
opinions that bind the State that the State has legal authority to 
enter into the Program, and that the State consents to exclusive 
Federal court jurisdiction for the compliance, discharge, and 
enforcement of any responsibility under this Program;
    (10) Certification by the State's Attorney General or other State 
official legally empowered by State law to issue legal opinions that 
bind the State that the State has laws that are comparable to the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, including providing 
that any decision regarding the public availability of a document under 
those laws is reviewable by a court of competent jurisdiction; and
    (11) The State Governor's (or in the case of the District of 
Columbia, the Mayor's) or the State's top ranking transportation 
official's signature approving the application.

Section 778.107 Application Review and Approval

    The Agencies propose a section establishing the review and approval 
process for a State's application to the Program.
    To begin the review and approval process, the applicable Operating 
Administration also would solicit public comments on a State's complete 
application and would consider comments before making a decision on the 
application. In addition to the State's application, the Operating 
Administration may provide other documents for public review such as a 
draft of the proposed agreement. After receiving a complete 
application, the Operating Administration would have 120 calendar days 
to make a decision on the State's application. The Operating 
Administration would transmit the decision to the applicant, with an 
explanation in writing.
    In making the decision, the Operating Administration would approve 
a State's application only if:
    (1) That State is party to an agreement with the Operating 
Administration under 23 U.S.C. 327;
    (2) The Operating Administration has determined, after considering 
any public comments received, the State has the capacity, including 
financial and

[[Page 45222]]

personnel, to undertake the alternative environmental review and 
approval procedures; and
    (3) The Operating Administration, in consultation with the Office 
of the Secretary, with the concurrence of the Chair of CEQ, and after 
considering public comments received, has determined the State laws or 
regulations described in the State's application are at least as 
stringent as the Federal requirements they substitute.
    Before the Operating Administration approves the application, the 
State must enter into a written agreement with the Operating 
Administration. At a minimum the written agreement must:
    (1) Be executed by the Governor or top-ranking transportation 
official in the State charged with responsibility for highway 
construction;
    (2) Provide that the State agrees to assume the responsibilities of 
the Program, as identified by the Operating Administration;
    (3) Provide that the State expressly consents to accept Federal 
court jurisdiction for the compliance, discharge, or enforcement of any 
responsibility it undertakes for the Program;
    (4) Certify that State laws or regulations exist that authorize the 
State to carry out the responsibilities of the Program;
    (5) Certify that State laws or regulations exist that are 
comparable to FOIA (5 U.S.C. 552), including a provision that any 
decision regarding the public availability of a document under the 
State laws or regulations is reviewable by a Court of competent 
jurisdiction;
    (6) Commit the State to maintain the personnel and financial 
resources necessary to carry out its responsibilities under the 
Program;
    (7) Have a term of not more than 5 years, the term of a State's 
agreement with the Operating Administration in accordance with 23 
U.S.C. 327, or a term ending on December 4, 2027, whichever is sooner; 
and
    (8) Be renewable.
    The Operating Administration's execution of the Agreement would 
constitute approval of the application. A State approved to participate 
in the Program may further apply the approved alternative environmental 
review and approval procedures to locally administered projects for up 
to 25 local governments at the request of those local governments. For 
such locally administered projects, the State would be responsible for 
ensuring that the requirements of the approved alternative State 
procedures are met.

Section 778.109 Criteria for Determining Stringency

    After consultation with the Agencies, CEQ identified criteria the 
Agencies would use to determine whether the State laws or regulations 
are at least as stringent as the Federal NEPA requirements. These 
criteria provide for protection of the environment, provide opportunity 
for public participation and comment (including access to the 
documentation necessary to review the potential impact of a project), 
and ensure consistent review of projects that would otherwise have been 
covered under NEPA. The legislative and regulatory citations noted are 
intended to indicate, in general, the basis for the criteria. Based on 
CEQ's criteria, the Agencies and CEQ propose that to be considered at 
least as stringent as the Federal NEPA requirements, a State 
environmental law or regulation, at a minimum, must:
    (a) Define the types of actions that normally require an 
environmental impact assessment, including government-sponsored 
projects such as those receiving Federal financial assistance or permit 
approvals. (42 U.S.C. 4332(2)(C); 40 CFR 1508.18);
    (b) Ensure an early process for determining the scope of the action 
and issues that need to be addressed, identifying the significant 
issues, and for the classification of the appropriate environmental 
impact assessment in accordance with the significance of the likely 
impacts. For actions that may result in significant impacts on the 
human environment the scoping process should be an open and public 
process. (23 U.S.C. 139(e); 40 CFR 1501.3, 1501.4, 1501.7, 1507.3(b), 
1508.14, and 1508.25);
    (c) Prohibit agencies and non-governmental proponents from taking 
action concerning the proposal until the environmental impact 
evaluation is complete when such action would (1) have adverse 
environmental impacts or (2) limit the choice of reasonable 
alternatives. (40 CFR 1506.1 and 1506.10(b)).
    (d) Protect the integrity and objectivity of the analysis by 
requiring the agency to take responsibility for the scope and content 
of the analysis and by preventing conflicts of interest among the 
parties developing the analysis and the parties with financial or other 
interest in the outcome of the project. (42 U.S.C. 4332(2)(D); 40 CFR 
1506.5);
    (e) Based on a proposed action's purpose and need, require 
objective evaluation of reasonable alternatives to the proposed action 
(including the alternative of not taking the action) if it may result 
in significant impacts to the human environment or, for those actions 
that may not result in significant impacts, consideration of 
alternatives if they will involve unresolved conflicts concerning 
alternative uses of available resources (42 U.S.C. 4332(2)(C)(iii); 42 
U.S.C. 4332(2)(E); 23 U.S.C. 330(b)(1)(A); 40 CFR 1502.13, 1502.14, and 
1508.9);
    (f) Require an assessment of the reasonably foreseeable direct, 
indirect, and cumulative impacts of a proposed action (and any 
reasonable alternatives) on the human environment, and a comparison of 
those potential impacts with existing environmental conditions (42 
U.S.C. 4332(2)(C); 23 U.S.C. 330(b)(1)(B); 40 CFR 1502.16, 1508.9(b), 
and 1508.4);
    (g) Require the consideration of appropriate mitigation for the 
impacts associated with a proposal and reasonable alternatives 
(including avoiding, minimizing, rectifying, reducing or eliminating 
the impact over time, and compensating for the impact) (40 CFR 
1502.14(f), 1502.16(h), and 1508.20);
    (h) Provide for adequate interagency participation, including 
appropriate coordination and consultation with State, Federal, tribal, 
and local agencies with jurisdiction by law, special expertise, or an 
interest with respect to any environmental impact associated with the 
proposal, and for collaboration that would eliminate duplication of 
reviews. For actions that may result in significant impacts to the 
human environment, the process should allow for the development of 
plans for interagency coordination and public involvement, and the 
setting of timetables for the review process (42 U.S.C. 4332(2)(C); 23 
U.S.C. 139(d) and 139(g); 40 CFR 1500.5(e), 1501.6, 1502.25, and part 
1503);
    (i) Provide an opportunity for public participation and comment 
that is commensurate with the significance of the proposal's impacts on 
the human environment, and require public access to the documentation 
developed during the environmental review and a process to respond to 
public comments. (42 U.S.C. 4332(2)(C); 23 U.S.C. 330(b)(1)(A); FAST 
Act, Sec. 1309(c)(2)(B)(ii); 40 CFR 1502.19, part 1503, and 1506.6; and 
E.O. 11514, Sec. 1(b));
    (j) Include procedures for the elevation and resolution of 
interagency disputes prior to a final decision on the proposed project. 
(23 U.S.C. 139(h); 40 CFR part 1504);
    (k) Require, for the conclusion of the process, a concise 
documentation of findings (for actions that would not

[[Page 45223]]

likely result in significant impacts to the human environment) or, for 
actions that may result in significant impacts, a concise record that 
states the decision that: (i) Identifies all alternatives considered 
(specifying which were environmentally preferable); (ii) identifies and 
discusses all factors that were balanced by the agency in making its 
decision, and states how those considerations entered into the 
decision; (iii) states whether all practicable means to avoid or 
minimize environmental harm have been adopted, and if not, why they 
were not; and (iv) describes the monitoring and enforcement program 
that will be adopted where applicable for any mitigation (40 CFR 1501.4 
and 1505.2);
    (l) Require the agency to supplement environmental impacts 
assessments if there are substantial changes in the proposal that are 
relevant to environmental concerns or significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts (23 U.S.C. 330(e)(3); 40 CFR 1502.9); 
and
    (m) Allow for the use of procedures that facilitate process 
efficiency such as the identification of categories of actions that do 
not individually or cumulatively have a significant impact on the human 
environment and which have been found to not have such effect with 
procedures that require the consideration of extraordinary 
circumstances that would warrant a higher level of analysis, the use of 
tiering, programmatic approaches, adoption, incorporation by reference, 
approaches to eliminate duplication with other Federal requirements, 
and special procedures to address emergency situations (23 U.S.C. 
139(b)(3); 40 CFR 1502.20, 1502.21, 1502.25, 1506.2, 1506.3, 1506.4, 
1507.3(b)(ii), and 1508.4).

Section 778.111 Review and Termination

    The Agencies propose a section describing the termination date of 
the Program, the Operating Administration's responsibilities to review 
each approved State's performance implementing the Program, and the 
Operating Administration's right to terminate a State's participation 
in the Program early.
    Under FAST Act Section 1309, the Program will terminate 12 years 
after enactment (December 4, 2027). Until then, the Operating 
Administration would review each participating State's performance, at 
least once every 5 years. The Operating Administration would provide 
public notice and an opportunity for public comment on the review. At 
the conclusion of the Operating Administration's last review before the 
expiration of the term, the Operating Administration may extend a 
State's participation in the Program for an additional term not to 
exceed 5 years (if this extension ends before December 4, 2027) or it 
may terminate the State's participation in the Program.
    Finally, the Operating Administration could terminate a State's 
participation in the Program if the Operating Administration, in 
consultation with the Office of the Secretary and the Chair of CEQ, 
determines a participating State's performance fails to meet the terms 
of the written agreement, the requirements of 23 CFR part 778, or 23 
U.S.C. 330. Before terminating the State's participation, the Operating 
Administration would first notify the State and allow 90 days for the 
State to take corrective action. If the State fails to take corrective 
action during this time, the Operating Administration may then 
terminate that State's participation in the Program.

23 CFR Part 773--Surface Transportation Project Delivery Program 
Application Requirements and Termination

    The Agencies propose to revise section 773.117(a)(2) by modifying 
the current termination time period language to state that the 
Operating Administration(s) must provide the State no less than 120 
days to take corrective actions.
    The Agencies propose to add a new section 773.117(a)(3) to include 
that on the request of the Governor of the State, the Operating 
Administration(s) shall provide a detailed description of each 
responsibility in need of corrective action regarding an inadequacy 
identified by the Operating Administration.

49 CFR Part 264--Program for Eliminating Duplication of Environmental 
Reviews and the Surface Transportation Project Delivery Program

    The Agencies propose to revise the heading for 49 CFR part 264 and 
add a reference to 23 U.S.C. 330 and the Program application procedures 
in 23 CFR part 778 as applicable to rail projects. This cross-reference 
would assist potential FRA applicants, State and Federal agencies, and 
the public.

49 CFR Part 622--Environmental Impact and Related Procedures

    The Agencies propose to revise the authorities in subpart A--
Environmental Procedures to include a reference to 23 U.S.C. 330 and 
the application procedures in 23 CFR part 778 as applicable to transit 
projects. This cross-reference would assist potential FTA applicants, 
State and Federal agencies, and the public.

Statutory/Legal Authority for This Rulemaking

    The Agencies have the authority for this rulemaking action under 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' Administrators 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].''

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 make 
such comments available for examination in the docket at the above 
regulations.gov address. The Agencies will file comments received after 
the comment closing date and 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. 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), Executive Order 
13771 (Reducing Regulation and Controlling Regulatory Costs), 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 and would not be significant within the meaning of DOT's 
regulatory policies and procedures (44 FR 11032). This

[[Page 45224]]

proposed rule is not expected to be an Executive Order 13771 regulatory 
action because this proposed rule is not significant under Executive 
Order 12866.
    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 proposed rulemaking would not adversely affect, in any 
material way, any sector of the economy. This proposed rulemaking sets 
forth application requirements for the Program, which will result in 
only minimal costs to Program applicants. In addition, these changes 
would not interfere with any action taken or planned by another agency 
and would not materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs. Consequently, a full 
regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the Agencies 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 rule addresses application 
requirements for States wishing to participate in the Program. As such, 
it affects only States, and States are not included in the definition 
of small entity set forth in 5 U.S.C. 601. Therefore, the Regulatory 
Flexibility Act does not apply, and the Agencies certify that this 
action would not have significant economic impact on a substantial 
number of small 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 
$155 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. Additionally, the 
definition of ``Federal Mandate'' in the Unfunded Mandates Reform Act 
excludes financial assistance of the type in which State, local, or 
tribal governments have authority to adjust their participation in the 
Program in accordance with changes made in the Program by the Federal 
Government.

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 believe that it would not have substantial direct effects on one or 
more Indian tribes; would not impose substantial direct compliance 
costs on Indian tribal governments; and would not preempt tribal law. 
Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    The Agencies have analyzed this action under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agencies have determined that this action is 
not a significant energy action under Executive Order 13211 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 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), 77 FR 27534 (May 10, 2012), require DOT agencies to 
achieve environmental justice (EJ) as part of their mission by 
identifying and addressing, as appropriate, disproportionately high and 
adverse human health or environmental effects, including interrelated 
social and economic effects, of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. The DOT Order requires DOT agencies to address 
compliance with the Executive Order and the DOT Order in all rulemaking 
activities. In addition, FHWA and FTA have issued additional documents 
relating to administration of the Executive Order and the DOT Order. On 
June 14, 2012, the FHWA issued an update to its EJ order, FHWA Order 
6640.23A, FHWA Actions to Address

[[Page 45225]]

Environmental Justice in Minority Populations and Low-Income 
Populations. FTA also issued an update to its EJ policy, FTA Policy 
Guidance for Federal Transit Recipients, 77 FR 42077 (July 17, 2012).
    The Agencies have evaluated this proposed rule under the Executive 
Order, the DOT Order, the FHWA Order, and the FTA Policy Guidance. The 
Agencies have determined that the proposed application regulations, if 
finalized, would not cause disproportionately high and adverse human 
health and environmental effects on minority or low-income populations. 
States participating in the Program must comply with DOT's and the 
appropriate Agency guidance and policies on environmental justice.

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)). 
This proposed action qualifies for categorical exclusions under 23 CFR 
771.117(c)(20) (promulgation of rules, regulations, and directives) and 
771.117(c)(1) (activities that do not lead directly to construction) 
for FHWA, and 23 CFR 771.118(c)(4) (planning and administrative 
activities which do not involve or lead directly to construction) for 
FTA. In addition, FRA has determined that this proposed action is not a 
major FRA action requiring the preparation of an environmental impact 
statement or environmental assessment under FRA's Procedures for 
Considering Environmental Impacts (64 FR 28545, May 26, 1999, as 
amended by 78 FR 2713, Jan. 14, 2013). The Agencies have evaluated 
whether the proposed action would involve unusual or extraordinary 
circumstances and have determined that this proposed action would not 
involve such circumstances.
    Under the Program, a selected State may conduct environmental 
reviews and make approvals for projects under State environmental laws 
and regulations instead of NEPA. These State environmental laws and 
regulations must be at least as stringent as the Federal requirements. 
As a result, the Agencies find that this proposed rulemaking would not 
result in significant impacts on the human environment.

Regulation Identifier Number

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

List of Subjects

23 CFR Part 778

    Environmental protection, Eliminating duplication of environmental 
reviews pilot program, Highways and roads.

23 CFR Part 773

    Environmental protection, Surface transportation project delivery 
program application requirements and termination, Highways and roads.

49 CFR Part 264

    Environmental protection, Eliminating duplication of environmental 
reviews pilot program, Railroads.

49 CFR Part 622

    Environmental protection, Environmental impact and related 
procedures, Public transportation, Transit.

Brandye L. Hendrickson,

Acting Administrator, Federal Highway Administration.

Heath Hall,

Acting Administrator, Federal Railroad Administration.

Jane Williams,

Acting Administrator, Federal Transit Administration.

    For the reasons discussed in the preamble, the Agencies propose to 
amend 23 CFR chapter I and 49 CFR chapters II and VI as follows:

Title 23--Highways

PART 773--SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM 
APPLICATION REQUIREMENTS AND TERMINATION

0
1. The authority citation for part 773 continues to read as follows:

    Authority:  23 U.S.C. 315 and 327; 49 CFR 1.81(a)(4)-(6); 49 CFR 
1.85.

0
2. Amend Sec.  773.117 by revising paragraph (a)(2) and adding 
paragraph (a)(3) to read as follows:
    (a) * * *
    (2) The Operating Administration(s) may not terminate a State's 
participation without providing the State with notification of the 
noncompliance issue that could give rise to the termination, and 
without affording the State an opportunity to take corrective action to 
address the noncompliance issue. The Operating Administration(s) must 
provide the State a period of no less than 120 days to take corrective 
actions. The Operating Administration(s) is responsible for making the 
final decision on whether the corrective action is satisfactory.
    (3) On the request of the Governor of the State, the Operating 
Administration(s) shall provide a detailed description of each 
responsibility in need of corrective action regarding an inadequacy 
identified by the Operating Administration(s).
* * * * *
0
3. Add part 778 to read as follows:

PART 778--PILOT PROGRAM FOR ELIMINATING DUPLICATION OF 
ENVIRONMENTAL REVIEWS

Sec.
778.101 Purpose.
778.103 Eligibility and Certain Limitations.
778.105 Application requirements for participation in the program.
778.107 Application review and approval.
778.109 Criteria for Determining Stringency.
778.111 Review and Termination.

    Authority:  23 U.S.C. 330; 49 CFR 1.81.


Sec.  778.101  Purpose.

    The purpose of this part is to establish the requirements for a 
State to participate in the pilot program for eliminating duplication 
of environmental reviews (``Program'') under 23 U.S.C. 330. This 
Program allows States to conduct environmental reviews and make 
approvals for projects

[[Page 45226]]

under State environmental laws and regulations instead of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).


Sec.  778.103  Eligibility and Certain Limitations.

    (a) Applicants. To be eligible for the Program, a State must:
    (1) Act by and through the Governor or top-ranking State 
transportation official who is charged with responsibility for highway 
construction;
    (2) Expressly consent to the exclusive jurisdiction of U.S. 
District Courts for compliance, discharge, and enforcement of any 
responsibility under this Program;
    (3) Have previously assumed the responsibilities of the Secretary 
under 23 U.S.C. 327 related to environmental review, consultation, or 
other actions required under certain Federal environmental laws; and
    (4) Identify laws authorizing the State to take the actions 
necessary to carry out the equivalent environmental review and approval 
procedures under State laws and regulations.
    (b) Certain Limitations. (1) State environmental laws and 
regulations may only be substituted as a means of complying with:
    (i) NEPA;
    (ii) Procedures governing the implementation of NEPA and related 
procedural laws under the authority of the Secretary, including 23 
U.S.C. 109, 128, and 139; and
    (iii) Related regulations and Executive Orders.
    (2) Compliance with State environmental laws and regulations may 
not serve as a substitute for the Secretary's responsibilities 
regarding compliance with any other Federal environmental laws.


Sec.  778.105  Application requirements for participation in the 
Program.

    (a) To apply to participate in the Program, a State must submit an 
application to the Federal Highway Administration, Federal Railroad 
Administration, or Federal Transit Administration, as appropriate.
    (b) Each application submitted must contain the following 
information:
    (1) A full and complete description of the alternative 
environmental review and approval procedures the State proposes, 
including:
    (i) The procedures the State uses to engage the public and consider 
alternatives to the proposed action; and
    (ii) The extent to which the State considers environmental 
consequences or impacts on resources potentially impacted by the 
proposed actions (such as air, water, or species).
    (2) Each Federal environmental requirement the State is seeking to 
substitute, within the limitations of Sec.  778.103(b);
    (3) Each State environmental law and regulation the State intends 
to substitute for a Federal environmental requirement, within the 
limitations of Sec.  778.103(b);
    (4) A detailed explanation (with supporting documentation 
incorporated by reference) of the basis for concluding the State 
environmental law or regulation intended to substitute for a Federal 
environmental requirement is at least as stringent as that Federal 
requirement;
    (5) A description of the projects or classes of projects for which 
the State anticipates exercising the authority that may be granted 
under the Program;
    (6) Verification that the State has the financial and personnel 
resources necessary to fulfill its obligations under the Program;
    (7) Evidence that the State has sought public comments on its 
application prior to the submittal and the State's response to any 
comments it received;
    (8) A point of contact for questions regarding the application and 
a point of contact regarding potential implementation of the Program 
(if different);
    (9) Certification and explanation by the State's Attorney General 
or other State official legally empowered by State law to issue legal 
opinions that bind the State that the State has legal authority to 
enter into the Program, and that the State consents to exclusive 
Federal court jurisdiction for the compliance, discharge, and 
enforcement of any responsibility under this Program;
    (10) Certification by the State's Attorney General or other State 
official legally empowered by State law to issue legal opinions that 
bind the State that the State has laws that are comparable to the 
Freedom of Information Act, 5 U.S.C. 552 (FOIA), including laws that 
allow for any decision regarding the public availability of a document 
under those laws to be reviewed by a court of competent jurisdiction; 
and
    (11) The State Governor's (or in the case of the District of 
Columbia, the Mayor's) or the State's top ranking transportation 
official's signature approving the application.


Sec.  778.107  Application review and approval.

    (a) The Operating Administration must solicit public comments on 
the application and must consider comments received before making a 
decision to approve or disapprove the application. Materials made 
available for this public review must include the State's application 
and may include additional supporting materials.
    (b) After receiving an application Operating Administration deems 
complete, the Operating Administration must make a decision on whether 
to approve or disapprove the application within 120 calendar days. The 
Operating Administration must transmit the decision in writing to the 
State with a statement explaining the decision.
    (c) The Operating Administration will approve an application only 
if it determines the following conditions are satisfied:
    (1) The State is party to an agreement with the Operating 
Administration under 23 U.S.C. 327;
    (2) The Operating Administration has determined, after considering 
any public comments received, the State has the capacity, including 
financial and personnel, to undertake the alternative environmental 
review and approval procedures; and
    (3) The Operating Administration, in consultation with the Office 
of the Secretary with the concurrence of the Chair of CEQ, and after 
considering public comments received, has determined that the State 
environmental laws and regulations described in the State's application 
are at least as stringent as the Federal requirements for which they 
substitute.
    (d) The State must enter into a written agreement with the 
Operating Administration.
    (e) The written agreement must:
    (1) Be executed by the Governor or top-ranking transportation 
official in the State charged with responsibility for highway 
construction;
    (2) Provide that the State agrees to assume the responsibilities of 
the Program, as identified by the Operating Administration;
    (3) Provide that the State expressly consents to accept Federal 
court jurisdiction for the compliance, discharge, or enforcement of any 
responsibility undertaken as part of the Program;
    (4) Certify that State laws and regulations exist that authorize 
the State to carry out the responsibilities of the Program;
    (5) Certify that State laws and regulations exist that are 
comparable to FOIA (5 U.S.C. 552), including a provision that any 
decision regarding the public availability of a document under the 
State laws and regulations is reviewable by a court of competent 
jurisdiction;
    (6) Contain a commitment that the State will maintain the personnel 
and financial resources necessary to carry

[[Page 45227]]

out its responsibilities under the Program;
    (7) Have a term of not more than 5 years, the term of a State's 
agreement with the Operating Administration in accordance with 23 
U.S.C. 327, or a term ending on December 4, 2027, whichever is sooner; 
and
    (8) Be renewable.
    (f) The State must execute the agreement before the Operating 
Administration executes the agreement and approves the application. The 
Operating Administration's execution of the agreement will constitute 
approval of the application.
    (g) The agreement may be renewed at the end of its term, but may 
not extend beyond December 4, 2027.
    (h) A State approved to participate in the Program may further 
apply the approved alternative environmental review and approval 
procedures to locally administered projects, for up to 25 local 
governments at the request of those local governments. For such locally 
administered projects, the State shall be responsible for ensuring that 
the requirements of the approved alternative State procedures are met.


Sec.  778.109  Criteria for Determining Stringency

    To be considered at least as stringent as a Federal requirement 
under this Program, the State laws and regulations, must, at a minimum:
    (a) Define the types of actions that normally require an 
environmental impact assessment, including government-sponsored 
projects such as those receiving Federal financial assistance or permit 
approvals. (42 U.S.C. 4332(2)(C); 40 CFR 1508.18);
    (b) Ensure an early process for determining the scope of the action 
and issues that need to be addressed, identifying the significant 
issues, and for the classification of the appropriate environmental 
impact assessment in accordance with the significance of the likely 
impacts. For actions that may result in significant impacts on the 
human environment the scoping process should be an open and public 
process. (23 U.S.C. 139(e); 40 CFR 1501.3, 1501.4, 1501.7, 1507.3(b), 
1508.14, and 1508.25);
    (c) Prohibit agencies and non-governmental proponents from taking 
action concerning the proposal until the environmental impact 
evaluation is complete when such action would:
    (1) Have adverse environmental impacts or
    (2) Limit the choice of reasonable alternatives. (40 CFR 1506.1 and 
1506.10(b)).
    (d) Protect the integrity and objectivity of the analysis by 
requiring the agency to take responsibility for the scope and content 
of the analysis and by preventing conflicts of interest among the 
parties developing the analysis and the parties with financial or other 
interest in the outcome of the project. (42 U.S.C. 4332(2)(D); 40 CFR 
1506.5);
    (e) Based on a proposed action's purpose and need, require 
objective evaluation of reasonable alternatives to the proposed action 
(including the alternative of not taking the action) if it may result 
in significant impacts to the human environment or, for those actions 
that may not result in significant impacts, consideration of 
alternatives if they will involve unresolved conflicts concerning 
alternative uses of available resources (42 U.S.C. 4332(2)(C)(iii); 42 
U.S.C. 4332(2)(E); 23 U.S.C. 330(b)(1)(A); 40 CFR 1502.13, 1502.14, and 
1508.9);
    (f) Require an assessment of the reasonably foreseeable direct, 
indirect, and cumulative impacts of a proposed action (and any 
reasonable alternatives) on the human environment, and a comparison of 
those potential impacts with existing environmental conditions (42 
U.S.C. 4332(2)(C); 23 U.S.C. 330(b)(1)(B); 40 CFR 1502.16, 1508.9(b), 
and 1508.4);
    (g) Require the consideration of appropriate mitigation for the 
impacts associated with a proposal and reasonable alternatives 
(including avoiding, minimizing, rectifying, reducing or eliminating 
the impact over time, and compensating for the impact) (40 CFR 
1502.14(f), 1502.16(h), and 1508.20);
    (h) Provide for adequate interagency participation, including 
appropriate coordination and consultation with State, Federal, tribal, 
and local agencies with jurisdiction by law, special expertise, or an 
interest with respect to any environmental impact associated with the 
proposal, and for collaboration that would eliminate duplication of 
reviews For actions that may result in significant impacts to the human 
environment, the process should allow for the development of plans for 
interagency coordination and public involvement, and the setting of 
timetables for the review process (42 U.S.C. 4332(2)(C); 23 U.S.C. 
139(d) and 139(g); 40 CFR 1500.5(e), 1501.6, 1502.25, and part 1503);
    (i) Provide an opportunity for public participation and comment 
that is commensurate with the significance of the proposal's impacts on 
the human environment, and require public access to the documentation 
developed during the environmental review and a process to respond to 
public comments (42 U.S.C. 4332(2)(C); 23 U.S.C. 330(b)(1)(A); FAST 
Act, Sec. 1309(c)(2)(B)(ii); 40 CFR 1502.19, part 1503, and 1506.6; and 
E.O. 11514, Sec. 1(b));
    (j) Include procedures for the elevation and resolution of 
interagency disputes prior to a final decision on the proposed project 
(23 U.S.C. 139(h); 40 CFR part 1504);
    (k) Require, for the conclusion of the process, a concise 
documentation of findings (for actions that would not likely result in 
significant impacts to the human environment) or, for actions that may 
result in significant impacts, a concise record that states the agency 
decision that:
    (i) Identifies all alternatives considered (specifying which were 
environmentally preferable),
    (ii) Identifies and discusses all factors that were balanced by the 
agency in making its decision and states how those considerations 
entered into the decision,
    (iii) States whether all practicable means to avoid or minimize 
environmental harm have been adopted, and if not, why they were not; 
and
    (iv) Describes the monitoring and enforcement program that will be 
adopted where applicable for any mitigation (40 CFR 1501.4 and 1505.2).
    (l) Require the agency to supplement environmental impact 
assessments if there are substantial changes in the proposal that are 
relevant to environmental concerns or significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts. (23 U.S.C. 330(e)(3); 40 CFR 1502.9); 
and
    (m) Allow for the use of procedures that facilitate process 
efficiency such as the identification of categories of actions that do 
not individually or cumulatively have a significant impact on the human 
environment and which have been found to not have such effect with 
procedures that require the consideration of extraordinary 
circumstances that would warrant a higher level of analysis, the use of 
tiering, programmatic approaches, adoption, incorporation by reference, 
approaches to eliminate duplication with other Federal requirements, 
and special procedures to address emergency situations (23 U.S.C. 
139(b)(3); 40 CFR 1502.20, 1502.21, 1502.25, 1506.2, 1506.3, 1506.4, 
1507.3(b)(ii), and 1508.4).


Sec.  778.111  Review and Termination

    (a) In General. The Program shall terminate December 4, 2027.
    (b) Review. The Operating Administration must review each

[[Page 45228]]

participating State's performance in implementing the requirements of 
the Program at least once every 5 years.
    (1) The Operating Administration must provide notice and an 
opportunity for public comment during the review.
    (2) At the conclusion of its last review prior to the expiration of 
the term, the Operating Administration may extend a State's 
participation in the Program for an additional term of not more than 5 
years (as long as such term does not extend beyond the termination date 
of the Program) or terminate the State's participation in the Program.
    (c) Early Termination. (1) If the Operating Administration, in 
consultation with the Office of the Secretary and the Chair of CEQ, 
determines that a State is not administering the Program consistent 
with the terms of its written agreement, or the requirements of this 
part or 23 U.S.C. 330, the Operating Administration must provide the 
State notification of that determination.
    (2) After notifying the State of its determination under paragraph 
(c)(1), the Operating Administration must provide the State a maximum 
of 90 days to take the appropriate corrective action. If the State 
fails to take such corrective action, the Operating Administration may 
terminate the State's participation in the Program.

Title 49--Transportation

PART 264--PROGRAM FOR ELIMINATING DUPLICATION OF ENVIRONMENTAL 
REVIEWS AND THE SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM

0
4. The authority citation for part 264 is revised to read as follows:

    Authority:  23 U.S.C. 327; 49 CFR 1.81; 23 U.S.C. 330.

0
5. Revise the heading for part 264 to read as set forth above.
0
6. Revise Sec.  264.101 to read as follows:


Sec.  264.101  Procedures for complying with the surface transportation 
project delivery program application requirements and termination and 
the procedures for participating in and complying with the program for 
eliminating duplication of environmental reviews.

    The procedures for complying with the surface transportation 
project delivery program application requirements and termination are 
set forth in part 773 of title 23 of the Code of Federal Regulations. 
The procedures for participating in and complying with the program for 
eliminating duplication of environmental reviews are set forth in part 
778 of title 23 of the Code of Federal Regulations.

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
7. The authority citation for part 622 is revised to read as follows:

    Authority:  42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 
23 U.S.C. 139, 326, 327, and 330; Pub. L. 109-59, 119 Stat. 1144, 
sections 6002 and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81; Pub. L. 
112-141, 126 Stat. 405, sections 1315, 1316, 1317, and 1318; and 
Pub. L. 114-94, section 1309.

0
8. Revise Sec.  622.101 to read as follows:


Sec.  622.101  Cross-reference to procedures.

    The procedures for complying with the National Environmental Policy 
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes, 
regulations, and orders are set forth in part 771 of title 23 of the 
Code of Federal Regulations. The procedures for complying with 49 
U.S.C. 303, commonly known as ``Section 4(f),'' are set forth in part 
774 of title 23 of the Code of Federal Regulations. The procedures for 
complying with the surface transportation project delivery program 
application requirements and termination are set forth in part 773 of 
title 23 of the Code of Federal Regulations. The procedures for 
participating and complying with the program for eliminating 
duplication of environmental reviews are set forth in part 778 of title 
23 of the Code of Federal Regulations.

[FR Doc. 2017-20561 Filed 9-27-17; 8:45 am]
 BILLING CODE 4910-22-P