[Federal Register Volume 83, Number 209 (Monday, October 29, 2018)]
[Rules and Regulations]
[Pages 54480-54508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23286]



[[Page 54479]]

Vol. 83

Monday,

No. 209

October 29, 2018

Part III





 Department of Transportation





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Federal Highway Administration





Federal Railroad Administration





Federal Transit Administration





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23 CFR Parts 771 and 774

49 CFR Parts 264 and 622





 Environmental Impacts and Related Procedures; Final Rule

  Federal Register / Vol. 83 , No. 209 / Monday, October 29, 2018 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 771 and 774

Federal Railroad Administration

49 CFR Part 264

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2015-0011]
RIN 2125-AF60; 2130-AC64; 2132-AB26


Environmental Impacts and Related Procedures

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

ACTION: Final rule.

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SUMMARY: This final rule amends FHWA and FTA regulations implementing 
the National Environmental Policy Act (NEPA) and Section 4(f) 
requirements. In addition, through this final rule, FRA is joining 
those regulations, making them FRA's NEPA and Section 4(f) implementing 
regulations. The FHWA, FRA and FTA (hereafter collectively referred to 
as ``the Agencies'') modified the NEPA and Section 4(f) regulations to 
reflect various provisions of the Moving Ahead for Progress in the 21st 
Century Act (MAP-21) and the Fixing America's Surface Transportation 
(FAST) Act. The Agencies have also revised the Environmental Impact and 
Related Procedures regulations to reflect various procedural changes, 
such as including a new section on combined final environmental impact 
statement/record of decision documents, and to improve readability and 
reflect current practice. This final rule also amends the Parks, 
Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites 
regulations to reflect new exceptions created by the FAST Act.

DATES: Effective on November 28, 2018.

FOR FURTHER INFORMATION CONTACT: For the Federal Highway 
Administration: Emily Biondi, Office of Project Delivery and 
Environmental Review, HEPE, (202) 366-9482, [email protected], or 
Diane Mobley, Office of the Chief Counsel, (202) 366-1366, 
[email protected]. For FRA: Michael Johnsen, Office of Program 
Delivery, (202) 493-1310, [email protected], or Christopher Van 
Nostrand, Office of Chief Counsel, (202) 493-6058, 
[email protected]. For FTA: Megan Blum, Office of 
Planning and Environment, (202) 366-0463, [email protected], or Nancy-
Ellen Zusman, Office of Chief Counsel, (312) 353-2577, 
[email protected]. The Agencies are located at 1200 New Jersey 
Ave. SE, Washington, DC 20590-0001. Office hours are from 8:00 a.m. to 
4:30 p.m. E.T., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Background

    The MAP-21 (Pub. L. 112-141, 126 Stat. 405) and the FAST Act (Pub. 
L. 114-94, 129 Stat. 1312) contained new requirements that the Agencies 
must meet in complying with NEPA (42 U.S.C. 4321 et seq.) and Section 
4(f) (23 U.S.C. 138 and 49 U.S.C. 303). Through this final rule, the 
Agencies are revising the regulations that implement NEPA at 23 CFR 
part 771--Environmental Impact and Related Procedures, and Section 
4(f)[thinsp]at 23 CFR part 774--Parks, Recreation Areas, Wildlife and 
Waterfowl Refuges, and Historic Sites. The final rule modifies 23 CFR 
part 771 to implement MAP-21 (sections 1302, 1305, 1315, 1319, 1320(d), 
20003, 20016, and 20017) and the FAST Act (sections 1304 and 11503). 
This final rule also modifies 23 CFR part 774 to reflect MAP-21 
(sections 1119(c)(2) and 1122) and the FAST Act (section 1303 and 
11502).
    In addition, the final rule establishes 23 CFR parts 771 and 774 as 
FRA's NEPA implementing procedures and FRA's Section 4(f) implementing 
regulations, respectively. As described in the supplemental notice of 
proposed rulemaking, discussed later in this document, the procedures 
outlined in these regulations will apply to all environmental reviews 
where FRA is the lead agency and initiated after the effective date of 
the final rule. The FRA will continue to apply its FRA's Procedures for 
Considering Environmental Impacts \1\ (FRA Procedures) to projects 
initiated before the effective date of this final rule.
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    \1\ FRA's Procedures for Considering Environmental Impacts, 64 
FR 28545 (May 26, 1999), as modified by 78 FR 2713 (Jan. 14, 2013).
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    As appropriate, FRA intends to issue further direction for its 
practitioners and project sponsors clarifying what information should 
be included in FRA's environmental documents. However, until that time, 
FRA will rely on certain sections of FRA Procedures as guidance. In 
particular, FRA will continue to look to Section 10, Environmental 
Assessment Process, Section 11, Finding of No Significant Impact, and 
Section 14, Contents of an Environmental Impact Statement of the FRA 
Procedures. Project sponsors should contact FRA headquarters with any 
questions about FRA's expectations for the content of environmental 
documents.
    Once FRA has completed the environmental review of projects 
initiated before the date of this final rule, FRA plans to rescind the 
FRA Procedures.
    Lastly, the Agencies are modifying the NEPA implementing procedures 
through this final rule to reflect current Agency practice, as well as 
to improve readability consistent with Executive Order 13563, 
``Improving Regulation and Regulatory Review'' (2011).

Notices of Proposed Rulemaking (MAP-21 and FAST Act)

    On November 20, 2015, at 80 FR 72624, FHWA and FTA published a 
notice of proposed rulemaking (NPRM) proposing amendments to 23 CFR 
parts 771 and 774 to account for the changes made by MAP-21 and to 
reflect various readability changes (MAP-21 NPRM). The FAST Act was 
signed on December 4, 2015. Certain FAST Act provisions affected 
portions of the regulatory provisions addressed in the MAP-21 NPRM, and 
other FAST Act provisions required rulemaking. On September 29, 2017, 
at 82 FR 45530, the Agencies proposed additional amendments to reflect 
FAST Act provisions in a supplemental notice of proposed rulemaking 
(FAST Act SNPRM). The FAST Act SNPRM also proposed to add FRA to parts 
771 and 774.
    All substantive comments received on the MAP-21 NPRM and the FAST 
Act SNPRM were considered when developing this final rule. The docket 
contains a redline of parts 771 and 774 showing all changes.

Summary of Comments and Responses

    The Agencies received 14 comment letters in response to the MAP-21 
NPRM. Comment letters were submitted by six State departments of 
transportation (State DOTs); three transit agencies; three surface 
transportation interest groups (trade associations); one regional 
transportation agency; and three citizens.
    In response to the FAST Act SNPRM, the Agencies received 12 comment 
letters from the following groups: 1 citizen; 4 trade associations; 1 
public transportation agency; 3 resource/regulatory agencies; 2 State 
DOTs; and 1 Indian Tribe. The Agencies received 33 other comment 
letters that were deemed to be outside of scope of this

[[Page 54481]]

rulemaking and therefore are not addressed further.
    The following comment summaries reflect the significant comments 
received on both the MAP-21 NPRM and FAST Act SNPRM, the Agencies' 
responses to those comments, and any additional minor clarifications 
made by the Agencies after further consideration. The summaries are 
organized by regulatory section number. Any MAP-21 NPRM or FAST Act 
SNPRM proposals not specifically addressed below are being finalized as 
previously proposed.

General

    The Agencies made various nonsubstantive changes to their NEPA 
implementing regulations. The Agencies changed many instances of 
``will'' or ``shall'' to ``must'' unless it did not make sense to do 
so. The Agencies also changed all document references to lowercase 
(e.g., ``notice of intent,'' ``record of decision,'' ``environmental 
impact statement'').

MAP-21 NPRM--General Comments

    Two transit agencies supported the Agencies' efforts to improve and 
streamline environmental review regulations. One trade association 
supported the Agencies' efforts to ensure the joint environmental 
regulations provide guidance to project sponsors without imposing rigid 
requirements. One State DOT provided a general statement of support for 
the proposed revisions to the NEPA and Section 4(f) regulations. The 
Agencies appreciate the support and input provided by all commenters 
regarding the MAP-21-related proposals.
    One transit agency sought clarification on how joint lead agencies 
are applied to the NEPA process. The transit agency asked if it would 
become a joint lead agency when it prepares an environmental assessment 
on behalf of FTA and when and how determinations would be made on which 
entity would serve as the joint lead agency. They also inquired if 
there would be instances when a non-Federal agency applicant would 
serve as a joint lead agency. Typically, the applicant (e.g., State 
DOTs, public transportation agencies, and local governments) serves as 
a joint lead agency with the Federal lead agency. Lead agency 
determinations are made early in the environmental review process. 
Generally, the applicant will inform the Federal lead agency of its 
intent to conduct an environmental review for a proposed project that 
it anticipates will require an approval from that Federal lead agency 
(i.e., is requesting financial assistance for construction). The 
applicant should contact the Federal lead agency prior to making any 
project decisions, such as finalizing the project's purpose and need. 
The Agencies plan to provide more information regarding joint lead 
agencies in a forthcoming update to the ``SAFETEA-LU Environmental 
Review Process Final Guidance.''
    One trade association encouraged FHWA and FTA to expedite review of 
projects in finalizing the proposed rule. A regional transportation 
agency similarly encouraged the Agencies to use the rulemaking in a way 
that seeks to maximize opportunities for environmental streamlining. 
Five State DOTs also provided a general statement of support for 
efforts to streamline the project delivery and environmental review 
process. One trade association provided a letter of support for the 
proposed MAP-21 updates, specifically stating that ``all of the 
revisions . . . will have a positive impact on the project review and 
approval process'' and noting support for the combined final 
environmental impact statement/record of decision (FEIS/ROD) and errata 
sheet approaches and identification of a single lead modal agency. The 
Agencies appreciate the commenters' support as we continue to focus on 
expedited review of projects.

FAST Act SNPRM--General Comments

    Three trade associations provided comments that generally supported 
the proposed rulemaking, and noted that the proposed changes to part 
771 are consistent with the FAST Act and MAP-21, and will improve the 
efficiency of the NEPA process. The Agencies appreciate the commenters' 
support as we continue to focus on expedited review of projects.
    Two trade associations generally supported the proposal to add FRA 
to 23 CFR parts 771 and 774. These commenters noted that one common set 
of procedures, modified, as appropriate, to reflect the differences in 
each Agency's program, will result in a more efficient and timely 
review process. One trade association suggested applying part 771 to 
railroad projects will facilitate preparing single documents to support 
decisions from the operating administrations (OAs). Another trade 
association supported FRA's proposal to apply part 771 to its actions, 
stating that it will be especially helpful for multimodal projects that 
require preparation of a single NEPA document to support multiple 
decisions. The Agencies appreciate the commenter's support of FRA's 
proposal to join part 771. As described in the FAST Act SNPRM, FRA is 
joining the FHWA and FTA NEPA implementing regulations to comply with 
section 11503 of the FAST Act (49 U.S.C. 24201). In addition, applying 
the same procedures as the two other OAs responsible for surface 
transportation will result in a more efficient and predictable review 
for project sponsors.
    However, to clarify the timing of this final rule's applicability 
to FRA's actions, the Agencies are adding a new Sec.  771.109(a)(4), 
which, consistent with the SNPRM preamble, states that FRA will apply 
the procedures described in this final rule to actions inititated after 
its effective date. The Agencies have also modified Sec.  771.109(a)(3) 
to add a reference to FHWA and FTA.
    One trade association commented that the Agencies failed to respond 
to the comments it submitted on FRA's June 9, 2016, Federal Register 
notice (81 FR 37237) in which FRA requested the public's views on 
applying part 771 to railroad projects. The commenter repeated its 
suggestion that FRA develop its own regulations, rather than join part 
771, because of the unique needs of railroads. The Agencies addressed 
the trade association's comment in the ``Applicability of 23 CFR part 
771 to FRA Actions'' section of the FAST Act SNPRM. As described in 
that section, FRA determined that applying 23 CFR part 771 to railroad 
projects is the most efficient way to comply with section 11503 of the 
FAST Act. In addition, aligning FRA's procedures with FHWA and FTA will 
provide a more consistent and predictable process for potential project 
sponsors, especially those that engage in environmental reviews for 
more than one mode of surface transportation. As noted in the FAST Act 
SNPRM, the Agencies modified part 771 where necessary to reflect the 
differences among the three modes of transportation.

FAST Act SNPRM--Cross-Agency CE

    One trade association suggested that DOT OAs should be able to use 
another OA's categorical exclusions (CEs). In addition, one State DOT 
and one trade association requested that the Agencies issue guidance 
regarding the application of CEs for multimodal projects referenced in 
title 49 U.S.C. 304. The U.S. Department of Transportation previously 
issued guidance on the application of 49 U.S.C. 304; \2\ the Agencies 
have not supplemented this guidance. After considering the public

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comments regarding the use of another mode's CEs, the Agencies decided 
to include a new paragraph at Sec. Sec.  771.116(d), 771.117(h), and 
771.118(e) that allows FHWA, FTA, and FRA to use each other's CEs. The 
Agencies currently share environmental review process regulations and 
their actions are, in many cases, very similar (e.g., approving 
construction of new surface transportation projects). As such, the 
Agencies have determined it is appropriate to have the option to use 
each other's CE lists where the CE approved for an OA is applicable to 
the proposed action. This approach would allow for increased 
efficiencies while not functionally expanding the type of projects for 
which the CE was originally established. This option includes the 
opportunity for consultation as necessary to ensure the appropriate 
application of the CE. It should be noted that the analysis of unusual 
circumstances would still be considered in the application of the CE as 
defined in Sec.  771.116(b), Sec.  771.117(b), and Sec.  771.118(b). To 
accommodate the new language, Sec.  771.118(e) is now redesignated 
Sec.  771.118(f). The FHWA and FRA language is the same as the FTA 
language, modified only by changing FTA to FHWA or FRA, as applicable.
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    \2\ Guidance on the Application of Categorical Exclusions for 
Multimodal Projects under 49 U.S.C. 304, available at: https://www.transportation.gov/transportation-policy/permittingcenter/section-1310-guidance-application-categorical-exclusions.
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771.105 Policy

    One regional transportation agency suggested revising Sec.  
771.105(f) to include a reference to all of the other laws considered 
during the NEPA review by adding the phrase ``or required by law.'' The 
Agencies decline to include the proposed language because it is the 
Agencies' policy, which is consistent with the Council on Environmental 
Quality's (CEQ) NEPA implementing regulations, that compliance with all 
of the Federal environmental requirements (e.g., laws, regulations, and 
Executive Orders) be included in the NEPA review and documentation. See 
40 CFR 1500.2(c). As a result, costs incurred by an applicant preparing 
an environmental document requested by the Administration would be 
eligible for financial assistance.

771.107 Definitions

Administration Action
    One citizen commented that the definition for Administration Action 
is too narrow because it does not include acquisition of rolling stock, 
and requested that the word construction be replaced with final design 
activities, property acquisition, purchase of construction materials or 
rolling stock, or project construction. This commenter also stated the 
exceptions in Sec.  771.113(d) do not need to be mentioned in this 
definition because allowing one of the excepted activities is an 
Administration action that is permitted prior to completion of the NEPA 
process. In addition, one regional transportation agency proposed 
inserting a statement regarding NEPA compliance at the end of the 
definition. The Agencies do not intend for the definition of 
Administration Action to be read so narrowly as to preclude additional 
activities. However, the Agencies do not believe it is necessary to add 
the proposed expansive list to the definition itself; those activities 
could be Administration actions but the Agencies are opting to present 
a non-exclusive list in order to maintain flexibility. The Agencies 
also decline to include the recommendation to refer to NEPA compliance 
because the activities listed in the paragraph require compliance with 
NEPA, and the paragraph would become circular in rationale. The only 
substantive changes to this definition that the Agencies are including 
are those proposed in the FAST Act SNPRM.
Programmatic Approaches
    Five State DOTs and a trade association suggested revisions to the 
programmatic approaches definition that they assert would more closely 
match the language in 23 U.S.C. 139(b)(3)(A)(iii), which refers to 
programmatic approaches being consistent with NEPA. The Agencies agree 
that the definition of programmatic approaches should reflect the 
statutory language and have modified the definition accordingly.
Project Sponsor
    A regional transportation agency commented that the project sponsor 
definition is vague and requested the Agencies clarify the activities 
the project sponsor is authorized to undertake on behalf of the 
applicant. The Agencies agree that the definition of project sponsor 
should be further clarified to acknowledge that the project sponsor may 
undertake some activities for the applicant and are therefore modifying 
the definition. However, the Agencies also note that when the project 
sponsor is a private institution or firm, Sec.  771.109(c)(6) limits 
those activities to providing technical studies and commenting on 
environmental review documents.

771.109 Applicability and Responsibilities

    Regarding Sec.  771.109(b)(1), one public commenter asked whether 
FHWA/FTA staff can realistically ensure mitigation commitments are 
implemented. The FHWA and FTA, in collaboration with project sponsors, 
strive to have sufficient staff to ensure mitigation commitments are 
implemented and to effectively administer the Federal-aid highway 
program and the environmental review process for federally funded 
transit projects.
    The Agencies are modifying Sec.  771.109(b)(1) by changing 
``applicant'' in the first sentence to ``project sponsor.'' The 
Agencies are engaging more frequently on projects advanced by private 
entities so it is appropriate to use the broader ``project sponsor'' to 
clarify that a private entity seeking funding or another approval from 
one of the Agencies may be required to carry out mitigation commitments 
identified during the environmental review process.
    One transit agency requested that a timeframe be specified for 
participating agencies to provide their comments in Sec.  
771.109(c)(7). The commenter suggested that the Agencies specify that 
the coordination plan contain timeframes that participating agencies 
are obligated to follow, and that failure to adhere to those timeframes 
would result in an agency's concurrence. One State DOT similarly 
commented that the language in this section does not address assumption 
of concurrence for participating agencies that do not concur on the 
schedule as part of the coordination plan. This commenter recommended 
that the final rule include clarification regarding how the lead 
agencies will satisfy their responsibilities under 23 U.S.C. 139(g) 
when the circumstance arises that one or more participating agencies do 
not concur or respond to the request for concurrence on a schedule for 
completion of the environmental review process. Two trade associations 
also expressed concern for a lead agency's responsibility in this 
scenario and provided recommendations to remedy this concern.
    In response to the requests for clarifications regarding comment 
periods and timeframes, the Agencies note that 23 U.S.C. 139(g)(2)(B) 
clearly states the lead agency will provide no more than a 60-day 
comment period for the draft EIS review and no more than a 30-day 
comment period for all other comment periods in the environmental 
review process. Lead agencies can rely on the statutory reference to 
support

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their comment deadlines in their requests for comments and in the 
development of the timeframes contained in the coordination plan.
    The Agencies appreciate the comments regarding participating agency 
concurrence and how to proceed when there is no response or concurrence 
from the participating agency. The Agencies previously determined that 
these scenarios should be addressed in guidance.\3\ The Agencies' 
existing guidance specifically addresses this, providing that the 
Agencies will assume a participating agency's concurrence if the 
participating agency fails to provide a written response on the 
proposed project schedule within the deadline established by the lead 
agency. In the absence of specific statutory authority for the Agencies 
to mandate concurrence from a participating agency, the Agencies will 
continue to address participating agency concurrence/non-concurrence in 
guidance.
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    \3\ Question 12 of the Fixing America's Surface Transportation 
Act (FAST): Questions and Answers on the procedural changes to 23 
U.S.C. 139 as they relate to Federal Highway Administration (FHWA), 
Federal Railroad Administration (FRA), & Federal Transit 
Administration (FTA) projects guidance, issued June 2017, available 
at: https://www.environment.fhwa.dot.gov/legislation/authorizations/fastact/qa_23USC_changes_1304.aspx.
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    Also within Sec.  771.109(c)(7), one citizen suggested replacing 
the phrase ``as appropriate'' because this language may cause agencies 
to expect a prompt from a lead agency when feedback is necessary. The 
commenter suggested language for rewording that would alert agencies as 
to what is available to them for comment. A trade association stated 
that language in the section should be stronger because the clear 
intent of the amendments to section 139 in the FAST Act was to direct, 
or at least encourage, participating agencies to focus their comments 
on the areas within the expertise and that language, in some form, 
should be included in the actual text of the section. The Agencies 
removed ``as appropriate'' to strengthen the paragraph so that it is 
clear that participating agencies are expected to comment within their 
area of special expertise or jurisdiction. The Agencies are also 
deleting ``if any'' from the second sentence to make the sentence more 
concise. The Agencies decline to insert the citizen's proposed language 
in order to preserve the flexibility in the section. The lead agencies 
will specifically identify what input they are seeking (e.g., comment 
responses, methodology feedback) from participating agencies.
    Regarding Sec.  771.109(e), specifically FRA's use of a qualified 
third-party contractor to prepare an EIS in certain circumstances 
(i.e., when FRA is the lead Federal agency, there is no applicant 
acting as a joint-lead agency, and the project sponsor is a private 
entity), one transit agency sought additional assurance that this 
paragraph would not limit a public applicant's choice to prepare an EA 
or EIS using its in-house resources because of a precedent set for a 
private entity under this paragraph. The third-party contracting 
arrangement described in Sec.  771.109(e) would not prohibit a public 
agency from preparing environmental documents using in-house expertise 
instead of consultant support. As described in the FAST Act SNPRM, 
third-party contracting is intended to address situations where a 
project sponsor is a private entity, and there is no other applicant 
acting as a lead agency. Consistent with FRA practice and the 40 Most 
Asked Questions Concerning CEQ's National Environmental Policy Act 
memorandum,\4\ third-party contracting is a mechanism allowing FRA to 
satisfy its obligations under 40 CFR 1506.5(c). To address the 
commenter's concerns, the Agencies are making minor edits to this 
section to clarify the third-party contracting process.
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    \4\ 46 FR 18026 (March 23, 1981).
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771.111 Early Coordination, Public Involvement, and Project Development

    In Sec.  771.111(a)(1), five State DOTs and one trade association 
recommended revising the second sentence to reflect that there are 
multiple ways that early coordination reduces delays and conflicts. In 
this same section, one regional transportation agency suggested adding 
``reducing costs'' as one of the activities that contribute to 
minimizing or eliminating delay. The Agencies accept the proposed 
recommendation to the second sentence to recognize the multiple avenues 
available to reduce delay and conflict. The Agencies decline to add 
``reducing costs'' as a way to minimize or eliminate delay because it 
is more an indirect factor.
    For Sec.  771.111(a)(2), five State DOTs and a trade association 
requested that Sec.  771.111(a)(2) be clearer regarding the ability to 
adopt or rely on planning process products in the environmental review 
process. Specifically, the commenters suggested that deleting the 
reference to 23 CFR part 450, Appendix A would be contrary to FHWA and 
FTA's intent to be more encompassing. One trade association commented 
on Sec.  771.111(a)(2)(i), expressing support for the characterization 
of the new statutory authority for adopting planning-level decisions in 
the NEPA process and agreed with the text of the proposed rule in this 
section. That trade association also noted that FRA could, in some 
circumstances, rely on planning-level decisions as the basis for 
eliminating alternatives. The Agencies accept the suggestion to clarify 
and are including the citation to 23 CFR part 450 Appendix A. The 
Agencies agree with the need to call attention to Appendix A. With 
respect to FRA's use of planning-level decisions in its alternatives 
analysis, FRA will rely on such decisions when defining the reasonable 
range of alternatives for analysis under NEPA where appropriate and 
allowed by law. Applicants seeking to eliminate alternatives based on 
past planning processes should contact FRA headquarters for further 
direction.
    In Sec.  771.111(a)(3), one regional transportation agency proposed 
revising the language to add a reference to other approvals. One State 
agency expressed support for the proposed addition of the environmental 
checklist to Sec.  771.111(a)(3) as a means to promote consistency 
among FHWA, FRA, and FTA and identify potential issues early in the 
environmental review process. The Agencies appreciate the support and 
accept the regional transportation agency's recommendation with 
modifications. It is important that the applicant notify the 
Administration as early as possible when a Federal action may be 
undertaken so the Administration can inform the applicant of likely 
requirements early in the environmental review process, as well as the 
class of action.
    One regional transportation agency proposed revising Sec.  
771.111(b) to add a requirement to inform the project sponsor or 
applicant of the probable class of action to maximize early 
coordination. The Agencies decline the recommendation because a 
project's class of action is identified in consultation with the 
project sponsor, though the Agencies are responsible for the final 
decision regarding the class of action. The project initiation process 
will be discussed in further detail in the Agencies' forthcoming update 
to the ``SAFETEA-LU Environmental Review Process Final Guidance.''
    One State agency commented on Sec.  771.111(d), stating that State 
wildlife agencies should be identified as cooperating agencies because 
of their regulatory authority and special expertise on wildlife and 
wildlife resources. The commenter further noted that a State DOT 
authorized to act as a lead agency for NEPA should similarly

[[Page 54484]]

recognize wildlife agencies as cooperating agencies during the 
environmental review process. The Agencies decline to specifically 
identify State wildlife agencies in paragraph (d) as such a reference 
would be too narrow and would not capture all the agencies that might 
be a cooperating agency. The Agencies revisited the paragraph, however, 
and made non-substantive clarification revisions; the changes do not 
affect the content or intent of the previously proposed language.
    One trade association expressed concerns with the proposal that FRA 
apply the factors listed in Sec.  771.111(f) to its railroad projects. 
The commenter is concerned that these factors were developed to apply 
to public transportation projects and are ill-suited to projects on 
private railroad infrastructure. The commenter further stated that 
freight railroad projects are governed by the individual priorities and 
needs of each railroad, and are not subject to the State and local 
planning provisions that apply to transit and highway projects. With 
respect to the commenter's concerns with FRA's application of the 
factors described in Sec.  771.111(f) to railroad projects, the 
Agencies disagree that these factors cannot be applied to projects on 
private railroad infrastructure. While these factors are specific to 
part 771, the obligation to appropriately define the scope of an 
environmental review is a general NEPA principle. For past projects, 
FRA has considered factors similar to Sec.  771.111(f) when defining 
the scope of its environmental reviews and has determined that the 
Sec.  771.111(f) factors are appropriate for future railroad projects, 
regardless of who owns the railroad infrastructure. Although freight 
railroad projects are not governed by State and local planning 
processes, in most cases, such a railroad project requiring an FRA 
action may still be subject to NEPA, and therefore part 771 would apply 
(e.g., there is an FRA action where FRA is providing Federal financial 
assistance for improvements to the freight railroad infrastructure).
    To improve readability, the Agencies removed the statutory 
reference and footnote in Sec.  771.111(h)(2)(viii) and replaced it 
with a direct citation to the Agencies Section 4(f) implementing 
regulations that specifically address the requirements for public 
notice and an opportunity for public review and comment on a Section 
4(f) de minimis impact finding. This change does not affect the content 
or intent of the previous language; however, it does reduce the number 
of footnotes within the current regulation while also linking the 
Agencies implementing regulations more clearly. One Federal agency 
recommended acknowledging in this footnote that FRA intends to use FHWA 
and FTA Section 4(f) policy guidance, as stated in the preamble, to 
provide further clarity to its applicants and projects sponsors and 
highlight current practice. The Agencies proposed deleting this 
outdated footnote in the MAP-21 NPRM because the de minimis guidance is 
now included in the Section 4(f) Policy Paper.\5\ The FHWA developed 
the Section 4(f) Policy Paper. The FTA applies the Section 4(f) Policy 
Paper to public transportation projects \6\ and FRA intends to continue 
using the Section 4(f) Policy Paper for its railroad projects. In 
addition, FRA is evaluating whether to adopt, in whole or in part, any 
of the existing FHWA Programmatic 4(f) Evaluations, described in 
footnote 1 to 23 CFR 774.3.
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    \5\ Section 4(f) Policy Paper (Policy Paper), available at: 
http://www.environment.fhwa.dot.gov/4f/4fpolicy.pdf
    \6\ FTA Use of the FHWA Section 4(f) Policy Paper memorandum, 
Nov. 9, 2012, available at: https://www.transit.dot.gov/regulations-and-guidance/environmental-programs/november-9-2012-memorandum.
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    One trade association expressed concerns with the proposal that FRA 
apply the public involvement procedures in Sec.  771.111(i) that apply 
to FTA's capital projects. The commenter distinguished between public 
transportation systems (i.e., highway and transit projects) and 
projects on infrastructure owned by freight railroads. The commenter 
stated that railroads would be constrained in their ability to solicit 
full public participation because the reason a railroad proposes a 
project often involves confidential business information about 
customers. The commenter proposed striking the reference to ``FRA 
programs'' from this section. The Agencies decline to make the proposed 
change. Section 771.111(i) describes the activities Applicants should 
engage in as part of the NEPA process. Because Applicants are limited 
to Federal, State, local or federally recognized Indian Tribal 
governmental units in the definition of Applicant under Sec.  771.107, 
a privately owned freight railroad would not be subject to these 
requirements. The FRA is always responsible for ensuring the 
appropriate level of public involvement during the NEPA process. Where 
a freight railroad is a project sponsor, as defined by in Sec.  
771.107, FRA will coordinate with the railroad as appropriate, 
including on the railroad's participation in the public involvement 
process.

771.113 Timing of Administration Activities

    One trade association supported the proposed language with the 
understanding that the environmental review process definition is broad 
enough to capture early planning activities and activities that could 
be covered under a CE. The Agencies interpret this comment as 
pertaining to language changes made in Sec.  771.113(a). The Agencies 
confirm that the environmental review process covers early scoping 
activities and CEs. The environmental review process does not include 
early planning activities, but the Agencies encourage such activities 
to support future NEPA reviews.
    One regional transportation agency suggested adding identification 
of mitigation required by law to the second sentence of Sec.  
771.113(a) to recognize mitigation that may be required under other 
environmental laws such as the Clean Water Act or the Endangered 
Species Act. The Agencies partially accept the commenter's suggestion 
and revised the language to include the identification of mitigation 
measures. However, the Agencies determined referencing only mitigation 
required by law is too narrow.
    For Sec.  771.113(d), one citizen requested another exception to 
meet changes to FTA's small capital project grants (i.e., section 5307 
and 5309 grant programs) under MAP-21 because projects receiving those 
grants may include final design activities that would be conducted 
concurrently with the environmental review process. MAP-21 eliminated 
the former distinction between preliminary engineering and final design 
for these projects. This commenter proposed new exception language to 
reflect those grants, but FTA declines to accept the suggestion. How a 
particular discretionary funding program is structured is irrelevant to 
FTA's prohibition of final design-like activities because they tend to 
prejudice the consideration of alternatives. There is an exception to 
that rule in 23 U.S.C. 139(f)(4)(D) for taking the preferred 
alternative to a higher level of design for purposes of mitigation when 
the proper circumstances exist.
    One citizen provided support for the FRA-specific exception added 
in Sec.  771.113(d)(4) because of the explanation that it will be not 
be applied broadly, but rather, on a case-by-case basis to be efficient 
with the resources acquired by FRA. One trade association also 
commented on this section, and recommended adding a similar exception 
for FHWA and FTA to

[[Page 54485]]

make case-by-case determinations allowing activities (including 
purchases) that would not improperly influence the outcome of the NEPA 
process, such as the acquisition of long-lead time construction 
materials or equipment. The FHWA and FTA decline to extend the Sec.  
771.113(d)(4) exemption covering limited advanced purchases of railroad 
components or materials to their programs. Such purchases are not 
allowed under FHWA procurement practices. In certain circumstances, FTA 
may allow limited advance purchase of railroad components or materials 
where the acquisitions would have independent utility from the overall 
action. Because FTA can already allow the action, FTA determined it 
does not need to revise regulation text to reflect the practice. The 
FRA is making a minor modification to this paragraph for clarity, 
however.

771.115 Classes of Actions

    One regional transportation agency noted that programmatic 
approaches provide significant cost and time savings, and as such, the 
Agencies should encourage and, where appropriate, require them. 
Accordingly, the commenter recommended revising Sec.  771.115 to state 
that programmatic approaches ``shall be used where practicable for any 
class of action.'' The Agencies decline to make the recommended edit 
because there is no statutory language that authorizes the mandatory 
language. The Agencies encourage the use of programmatic actions, where 
appropriate.
    The Agencies are modifying Sec.  771.115(c)(4) by deleting ``FHWA 
action,'' Sec.  771.115(c)(5) by deleting ``FTA action,'' and Sec.  
771.115(c)(6) by deleting ``FRA action'' because the actions listed in 
those sections are appropriately analyzed in an environmental impact 
statement regardless of which of the Agencies is conducting the 
environmental review.
    For Sec.  771.115(c), one citizen noted that the need for public 
involvement remains on certain transit projects that are known upfront 
to have no significant environmental impacts but may affect the lives 
of people who use transit in ways they need to know. Although a CE does 
not include any formal public involvement requirements, in certain 
situations, public involvement can accompany a CE, if appropriate. 
Alternatively, when public involvement seems prudent due to potential 
impacts or environmental controversy, FTA may choose to consider an EA, 
particularly if those impacts affect an environmental justice 
community. The FTA's Standard Operating Procedure No. 2, Project 
Initiation and Determining NEPA Class of Action, further explains FTA's 
approach to this topic.\7\
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    \7\ Project Initiation and Determining NEPA Class of Action, 
issued Aug. 2016, available at: https://www.transit.dot.gov/regulations-and-guidance/environmental-programs/environmental-standard-operating-procedures.
---------------------------------------------------------------------------

    One regional transportation agency suggested striking the phrase 
``the appropriate environmental document'' and adding a reference to 
FONSIs and EISs in Sec.  771.115(c). The regional transportation agency 
suggested this substituted language because the EA is an environmental 
document. The Agencies decline the proposed revision based on the 
definition of an EA. The Agencies do not want to preclude the use of a 
CE in scenarios where there is a change in project scope.

771.116 FRA Categorical Exclusions

    One State DOT and three trade associations expressed general 
support for the proposed addition of FRA's newly expanded CE list into 
this part as Sec.  771.116. One trade association also supported the 
proposed FRA CEs, specifically identifying the proposed CEs covering 
geotechnical investigations and property acquisitions as being useful. 
The commenter noted that consistency among FHWA, FRA, and FTA will help 
streamline the environmental review process.
    The Agencies are proposing a minor modification to Sec.  771.116(c) 
to prevent any appearance of a conflict with the limitations on a 
project sponsor's participation described in Sec.  771.109(c)(6).
    One trade association opposed the proposed elimination of FRA's CE 
(previously in section 4(c)(6) of the FRA Procedures) covering, 
``Changes in plans for an FRA action for which an environmental 
document has been prepared, where the changes would not alter the 
environmental impacts of the action.'' The commenter disagreed that 
Sec.  771.129(c) addresses the types of activities previously covered 
by the FRA CE and requested that the Agencies add the original CE to 
the final rule. The CE at section (4)(c)(6) of the FRA Procedures 
served much the same function as the re-evaluation process outlined in 
Sec.  771.129. The underlying purpose is to determine whether project 
changes or new information require FRA to undertake additional 
environmental review. By joining part 771, FRA is aligning its NEPA 
practice with FHWA and FTA, including the process for re-evaluating 
environmental documents consistent with Sec.  771.129. This consistency 
should help streamline environmental reviews and provide certainty for 
FRA's project sponsors and applicants. Keeping the CE at section 
4(c)(6) of the FRA Procedures and applying Sec.  771.129 could create 
unnecessary confusion, undermining FRA's goal of creating consistency 
with FHWA and FTA practice.
    One Tribal historic preservation office objected to FRA's CEs 
covering activities within railroad rights-of-way. The commenter stated 
that the CEs will lead to ``abuse or misuse'' and expressed concerns 
that they could result in adverse effects to archaeological sites and 
properties of religious and cultural significance. The FRA has 
significant experience applying CEs to proposed actions within railroad 
rights-of-way and believes that the CEs are appropriately limited to 
avoid misapplication. In addition, the decision to apply a CE is one 
FRA makes on a project-by-project basis. In making that project-
specific decision, FRA will consider the unusual circumstances listed 
in Sec.  771.116(b), which includes Sec.  771.116(b)(3) covering 
significant impact to properties protected by Section 4(f) requirements 
or Section 106 of the National Historic Preservation Act (Section 106). 
This would include a consideration of potential effects to 
archaeological sites and properties of religious and cultural 
significance to Tribes.
    The Tribal historic preservation office requested that the Agencies 
define the terms improvements and upgrade because the terms may include 
different types of activities, some of which might result in adverse 
effects under the National Historic Preservation Act or significant 
impacts under NEPA. The FRA declines to add definitions of the terms 
improvements and upgrades in the final rule. In the CE in Sec.  
771.116(c)(22), the term improvements is already described. When 
developing this CE in 2013, FRA drafted the proposed CEs to clearly 
describe each eligible category of action, including necessary spatial, 
temporal, or geographic limitations, and provided demonstrative 
examples of the types of actions that would typically be covered under 
the text of the CE. With respect to the term upgrades, FRA intended for 
it to read as part of the repair or replacement activity. In some 
cases, the railroad infrastructure damaged by a natural disaster or 
catastrophic failure was constructed before the development of modern 
safety and design standards. Therefore, FRA determined that allowing 
applicants to use new codes and standards when repairing or replacing 
damaged infrastructure would

[[Page 54486]]

result in no or minimal environmental impacts, and therefore the 
activities are appropriate for categorical exclusion. The same is true 
for upgrades necessary to address existing conditions. It is reasonable 
for an applicant to modify or upgrade infrastructure, as necessary, to 
accommodate the circumstances at the time of the repair or replacement 
activity occurs and not be constrained to the conditions that existed 
when the railroad infrastructure was originally constructed.
    The Tribal historic preservation office noted that five of the CEs 
listed in FRA's July 5, 2016, notice identified as ``most frequently 
used'' cover activities within existing rights-of-way and existing 
railroad facilities, and those that are consistent with existing land 
use. Those CEs are found in Sec. Sec.  771.116(c)(9) (covering 
maintenance or repair of existing railroad facilities), (c)(12) 
(covering minor rail line additions), (c)(17) (covering the 
rehabilitation, reconstruction, or replacement of bridges), (c)(21) 
(covering the assembly or construction of certain facilities or 
stations), and (c)(22) (covering track and track structure maintenance 
and improvements). The commenter assumed that these types of activities 
were appropriate because they occurred in areas that are previously 
disturbed or covered in fill. The commenter indicated that even where 
right-of-way is in use, there may still be archaeological or cultural 
resources present and identified the CE in Sec.  771.116(c)(21) as 
presenting a ``significant threat'' to such resources. The commenter 
asked how FRA would identify and document what areas have been 
previously disturbed, indicating that in its experience, Federal 
agencies are unable or unwilling to document the extent of previous 
disturbance. The commenter also requested that FRA consider ground 
disturbance in terms of both vertical and horizontal dimensions. The 
commenter suggested that vertical disturbance is not always considered, 
and that categorically excluded projects involving ground disturbance 
should not affect undisturbed areas.
    The FRA establishes CEs based on its past experience with railroad 
project construction and operation, and after determining the category 
of actions do not individually or cumulatively have a significant 
effect on a human environment and an opportunity for public review and 
comment. The FRA has a long history applying the CEs identified by the 
commenter and have not found them to pose a significant threat to 
cultural resources. As discussed above, FRA decides whether to apply a 
CE on a project-by-project basis and will do so after considering the 
factors listed in Sec.  771.116(b). The FRA makes this decision after 
reviewing necessary technical information, which may include results of 
site visits or archaeological surveys, or documentation that 
illustrates past ground disturbance such as photographs, maps, or 
construction or engineering plans from previous construction 
activities. In doing so, FRA typically considers the extent of existing 
ground disturbance in terms of both vertical and horizontal dimensions. 
In addition, as the commenter notes in its comment letter, even where 
an action is appropriate for a CE, FRA must still demonstrate 
compliance with Section 106, which includes a consideration of 
potential impacts to archaeological resources that may be present 
beneath railroad rights-of-way.
    The Tribal historic preservation office suggested an action would 
not be eligible for a CE if archaeological sites or property of 
religious or cultural significance to federally recognized Tribes or 
Native Hawaiian organizations was present and as such, agencies would 
therefore need to know the exact location of such resources before 
determining whether a CE was appropriate. The commenter reminded the 
Agencies of the importance of consultation with Native American Tribes 
and noted that the failure to do so would risk failing to identify 
natural, cultural, and historic resource and underestimating the 
significance of those sites. The commenter expressed concerns that the 
CEs would diminish Native American Tribes' ability to consult and 
requested that FRA continue to consult with Tribes for each action to 
determine whether a CE is appropriate. The commenter supported FRA's 
practice of evaluating projects on a case-by-case when determining 
whether to apply a CE. The commenter also reminded the Agencies that 
complying with NEPA does not satisfy obligations under Section 106. The 
FRA appreciates the commenter's support of FRA's standard practice. The 
FRA agrees that complying with NEPA does not automatically satisfy its 
Section 106 responsibilities. Where possible and appropriate, FRA 
completes the required Section 106 review, including consultation with 
appropriate consulting parties, including Tribes, concurrently with its 
review of the proposed action under NEPA. The FRA does not approve the 
use of a CE until the Section 106 process is complete.
    The Tribal historic preservation office requested that the final 
rule or any future guidance address post-review discoveries, require 
project sponsors stop construction work if a potential historic 
property is discovered, and notify the lead agency, which would then 
notify other appropriate parties (e.g., State Historic Preservation 
Officer (SHPO) or Tribal Historic Preservation Officer (THPO)). The FRA 
does not believe it is appropriate to address the process for post-
review discoveries as part of this rulemaking. The Advisory Council for 
Historic Preservation addresses post-review discoveries in its 
regulations at 36 CFR 800.13, which FRA follows. However, the steps the 
commenter identifies in its comment letter are consistent with FRA 
expectations and practice. For example, for construction projects in 
areas of known archaeological sensitivity, it is common for FRA to 
require the project sponsor to develop and implement an Unanticipated 
Discoveries Plan, which includes stop-work and notification protocols, 
and measures to secure the discovery. Such plans are developed in 
consultation with the relevant SHPO or THPO and other Section 106 
consulting parties, including Tribes.
    The Agencies are modifying Sec.  771.116(c)(7) by changing the term 
``action'' to ``activity'' in order to correct an oversight in the 
SNPRM. This change makes the CE consistent with the FRA's September, 
2017 Categorical Exclusion Substantiation, which the Agencies provided 
for public review in the SNPRM docket.
    The Agencies are modifying Sec.  771.116(c)(9) by moving the 
limitation on the use of the CE (i.e., ``where the maintenance or 
repair activities do not change the existing character of the 
facility'') to the beginning of the CE for clarity.

771.117 FHWA Categorical Exclusions and 771.118 FTA Categorical 
Exclusions

    One State DOT recommended reorganizing Sec.  771.117, noting that 
it has become fragmented and increasingly difficult to implement. In 
particular, the commenter highlighted difficulty with projects 
requiring if-then analyses of the CEs at Sec.  771.118(c)(26), (27), 
and (28), which are conditioned on meeting the requirements in Sec.  
771.118(e), but would otherwise fall under Sec.  771.118(d)(13). 
Finally, the commenter noted that the CE at Sec.  771.118(c)(23) could 
overlap with a number of other Sec.  771.118(c) and (d) CEs. The FHWA 
appreciates the comments regarding the organization of Sec.  771.117. 
The FHWA determined it will consider this change in future rulemaking 
efforts, where appropriate.
    One transit agency, three trade associations, and two State DOTs 
suggested the current definition of

[[Page 54487]]

``operational right-of-way'' in Sec. Sec.  771.17(c)(22) and 
771.118(c)(12) should be more broadly construed. The trade associations 
highlighted MAP-21 language stating that the CE should apply to any 
project within an existing right-of-way. One trade association opined 
that as long as a right-of-way was properly obtained for any purpose, 
the CE should apply because the environmental review had already been 
conducted on existing right-of-way. The transit agency noted that the 
final sentence of the existing definition may at times be unclear. The 
transit agency opined that though ``disturbance'' or ``maintenance'' of 
certain rights-of-way has not occurred for many years, those rights-of-
way should fall within the operational right-of-way definition. One 
State DOT noted that the addition of these terms created an additional 
burden to make distinctions for land within a transportation right-of-
way in order to be able to apply the CE.
    Two trade associations recommended the Agencies redraft Sec. Sec.  
771.117(c)(22) and 771.118(c)(12) to conform with the definition in 
Section 1316 of MAP-21 and noted that the addition of the terms 
previously disturbed and maintained for have restricted the 
availability of the CE. Several commenters proposed text for the CE 
designating all rights-of-way acquired for construction, operation, or 
mitigation of an existing transportation facility, including the 
features associated with the physical footprint of the transportation 
facility, such as the roadway, bridges, interchanges, culverts, 
drainage, fixed guideways, mitigation areas, clear zone, traffic 
control signage, landscaping, any rest areas with direct access to a 
controlled access highway, areas maintained for safety and security of 
a transportation facility, parking facilities with direct access to an 
existing transportation facility, transit power substations, transit 
venting structures, and transit maintenance facilities.
    The Agencies agree with the concern in the comments that the 
definition of operational right-of-way in the regulation is narrower 
than the definition provided in the statute. As a result, this final 
rule revises the definition, in both Sec. Sec.  771.117(c)(22) and 
771.118(c)(12), to return to the broad statutory language. The revised 
definition continues to include examples of features of the right-of-
way, which the Agencies edited slightly to be mode-neutral and to 
recognize that there may be other features that are not enumerated in 
the regulation. While the revised regulatory text includes a number of 
illustrative examples of features in the operational right-of-way, the 
Agencies emphasize the defining sentence of the statute, which is now 
incorporated in the regulatory text verbatim: Existing operational 
right-of-way ``means all real property interests acquired for the 
construction, operation, or mitigation of a project'' (emphasis added). 
The Agencies specially underscore the word ``all.'' As a clarifying 
example, if title 23 (or certain title 49) funds were authorized for 
the acquisition of the real property, then that property was acquired 
for an eligible purpose, which was construction, operation, or 
mitigation, and thus is part of the operational right-of-way. Real 
property interests acquired with title 23 funds, or otherwise conveyed 
for title 23 purposes, are eligible for this categorical exclusion as 
long as those interests continue to be used in accordance with Sec.  
710.403(b). This change expands the applicability of the operational 
right-of-way CE from the existing regulation and ensures that the 
Agencies interpret it consistent with the statute.

771.119 Environmental Assessments

    One trade association and one public transit agency provided 
comments in response to FTA's contractor scope of work language in 
Sec. Sec.  771.119(a)(2) and 771.123(d). The trade association noted 
that the Agencies' proposed approach in ensuring a contractor's scope 
of work not be finalized until the early coordination activities or 
scoping is completed is well-intended but is likely to be difficult to 
implement for many agencies due to contracting process. According to 
the commenter, a transportation agency typically enters into a scope of 
work for the overall project, including activities supporting early 
coordination, and to separate these stages into separate and 
consecutive approvals would require contract amendments or change 
orders to contracts that may conflict with professional service 
contract standards. The public transit agency provided similar comments 
regarding the contractor scope of work proposal. The public 
transportation agency interprets the provision to mean that transit 
authorities would not be able to finalize a statement of work for NEPA 
consultants until FTA has concurred. If FTA does not concur, a transit 
authority may have to restart its procurement process, which could 
cause significant delay. The FTA acknowledges the comments, and that 
the timing of this review could be challenging. The FTA will change 
``will'' to ``should'' and otherwise maintain the language as 
previously proposed. The purpose of adding language regarding 
finalizing a contractor's scope of work once early coordination or 
scoping is completed was to place a renewed focus on the accuracy and 
efficiency of those activities. This will help ensure the scope of the 
project accurately reflects the scope of work required. The Agencies do 
not intend or envision this language as a hindrance to contracting 
practices. Rather, the timing of this approval will improve decision 
making during the EA's environmental review process, resulting in a 
sounder environmental document.
    For Sec.  771.119(a)(2), one public transit agency sought 
clarification on how to determine whether the scope of work is 
finalized. The commenter thought this section of the NPRM would result 
in multi-stage procurement for consultant services or more difficult 
and less specific consultant scope, which would potentially require 
multiple change orders. The Agencies clarify what finalized would 
typically mean by providing an example. In an ideal scenario for an FTA 
funded project, the project sponsor would contact FTA during the 
planning process or prior to project initiation in the environmental 
review process. The FTA would then work with the project sponsor to 
determine the appropriate project scope. Once the project scope is 
determined, a project sponsor would contract with a consultant, if it 
chooses, to complete activities required for the EA. The FTA would 
expect that the contractor would be procured, and the scope of 
activities necessary for the EA would be finalized in a scope of work 
by the conclusion of early coordination or scoping for the EA.
    One trade association requested the Agencies affirmatively state 
that they do not envision reviewing or approving any consultant's scope 
of work. The FTA does not envision approving a contractor's scope of 
work but may review the contractor's proposed scope of work for the EA 
for compliance with NEPA requirements, consistent with their respective 
responsibilities for the environmental review process on federally 
funded projects.
    One transit agency sought clarification on Sec.  771.119(a)(3) 
regarding FRA's conflict of interest disclosure statement requirement. 
Specifically, the commenter inquired as to whether there will be a 
template for that disclosure statement provided to applicants, or if 
the applicants can use a statement they choose. The commenter also 
noted that this requirement could exacerbate what it views as a trend 
where contractors focus on engineering work rather than responding to 
solicitations for planning work. The FRA plans to develop a

[[Page 54488]]

template conflict of interest form, which it would make available to 
applicants on a project-by-project basis. While the Agencies understand 
that contractors may decide to choose engineering over planning work, 
the Agencies cannot control the business decisions of private 
companies. In addition, the conflict of interest disclosure requirement 
does not necessarily prohibit all post-environmental review work on a 
project. Applicants with questions about what activities a contractor 
can engage in after executing a NEPA conflict of interest disclosure 
should contact FRA or FTA headquarters, as applicable.
    One Federal agency submitted an informal comment regarding Sec.  
771.119(b). This commenter noted that while Sec.  771.119(d) requires 
the applicant to send notices of availability for EAs to affected parts 
of Federal, State, and local governments, Sec.  771.119(b) only 
requires applicants to complete early consultation with interested 
agencies. The commenter cited examples of projects where the first 
opportunity for review was when it received a notice of availability 
for an EA, which can create permitting complications in certain 
instances. The commenters recommended modifying Sec.  771.119(b) to 
mirror Sec.  771.119(d). The Agencies decline to make the recommended 
change because Sec.  771.119(b) pertains only to the scope of an EA. 
Scope of work for an EA is addressed in Sec.  771.119(a)(2).
    One citizen expressed support for requiring consultation prior to 
finalizing any EA scope of work in Sec.  771.119(b) and asked whether 
the proposed revision allows the consultant, acting on behalf of the 
applicant, to complete the consultation. Consistent with this part, a 
consultant may act on behalf of an applicant, but the applicant retains 
full responsibility for the consultant's action.
    One regional transportation agency described programmatic 
approaches as an important streamlining tool. For that reason, the 
commenter suggested revising Sec.  771.119(b), regarding actions that 
require an EA, by adding a clear reference to programmatic approaches. 
The Agencies decline to make the recommended revision. An EA 
encompasses an evaluation on whether significant impacts may result 
from the project. As each project may involve different potential 
impacts, an EA does not readily lend itself to a programmatic approach.
    One public transit agency provided a comment expressing concern 
about the timing of making a document publicly available but did not 
provide a citation. The Agencies believe this comment was made in 
regard to the proposed changes in Sec.  771.119(c). The commenter 
expressed concern that the requirement could convert a parallel 
document approval process into a sequential one, which could delay 
projects for those agencies that need authorization from FTA as well as 
the transit agency board. In the commenter's case, the board approval 
process is a public process. The commenter requested (1) the final 
regulatory language acknowledge that the board approval process 
simultaneously satisfies the prerequisite for public release, and (2) 
assurance that the public board approval process can be conducted at 
the same time that the FTA approval process is completed. The Agencies 
acknowledge that where local approval of an EA is required (e.g., a 
board action), the local approval process can occur concurrently with 
the Federal agency review and approval (e.g., FTA's review and approval 
of an EA before it is posted for public comment). However, consistent 
with this section, the EA may not be made available to the public until 
after the Federal agency has approved the EA. Because the proposed 
changes in Sec.  771.119(c) do not affect that practice, the Agencies 
will not further revise the language.
    One citizen proposed that the encouragement in Sec.  771.111(i)(3) 
that EAs be posted on the web should be repeated in Sec.  771.119(d). 
The Agencies appreciate the comment, and accepted the commenter's 
proposed revisions with modifications.
    One citizen proposed clarifying Sec.  771.119(g). The Agencies 
acknowledge the comment, but because some of the proposed changes may 
affect the text's meaning, they decline the suggested changes. 
Additionally, the section is existing regulatory language not affected 
by MAP-21 or the FAST Act.

771.121 Findings of No Significant Impact

    For Sec.  771.121(b), a citizen suggested that the encouragement in 
Sec.  771.111(i)(4) that FONSIs be posted on the web should be repeated 
here. The Agencies added a reference to this section. The language is 
consistent with other paragraphs within 23 CFR part 771.

771.123 Draft Environmental Impact Statements

    Regarding Sec.  771.123(b), five State DOTs and a trade association 
recommended this section expressly recognize Appendix A to 23 CFR part 
450 as a means by which planning process products can be adopted or 
relied upon in the environmental review process and add a reference to 
Appendix A in this section. The Agencies are accepting the recommended 
additions. Similar to the accepted revision in Sec.  771.111(a)(2), the 
revised Sec.  771.123(b) will cite to 23 CFR part 450 Appendix A.
    A regional transportation agency proposed a revision to the 
language in the final sentence of Sec.  771.123(b), to add the 
feasibility of using a programmatic approach as part of the list of 
things the scoping process will be used to identify. The Agencies 
decline to accept the suggested edit because programmatic approaches 
are not identified in statute as a mandatory requirement.
    A Federal agency commenter suggested adding cooperating and 
participating agency(s) to the end of the first sentence of Sec.  
771.123(c) because it believes the intent of 23 U.S.C. 139(c)(6)(C) is 
that the lead agency consider and respond to comments within a 
participating or a cooperating agency's special expertise or 
jurisdiction. The commenter concluded that this is best achieved by 
ensuring EIS preparation describes participating agency involvement. 
The Agencies recognize the important role that cooperating and 
participating agencies have in developing a draft EIS, but decline to 
make the proposed change, as the draft EIS itself is usually drafted by 
the lead agency and/or the applicant. Participating and cooperating 
agency roles, including providing comments on draft documents, are 
described in Sec.  771.109(c)(7).
    A regional transportation agency commented on Sec. Sec.  771.123(c) 
and (d) and expressed concern that, when read together, these sections 
could prevent environmental consultant procurement by a project sponsor 
or applicant to prepare an EIS. The commenters recommended the Agencies 
clarify that applicants or project sponsors, aside from the lead 
agency, can directly contract with environmental consultants to prepare 
a draft EIS. The Agencies agree that applicants and certain project 
sponsors can directly contract with environmental consultants to 
prepare a draft EIS. However, the Agencies disagree that the language 
should be revised. The sections do not prevent applicants who choose to 
contract with environmental consultants to prepare a draft EIS from 
being considered joint lead agencies. However, it is important to note 
that project sponsors that are private institutions or firms cannot be 
lead agencies or contract directly with consultants to prepare a draft 
EIS.
    A transit agency sought clarification in Sec.  771.123(d) on 
whether there will be a uniform conflict of interest statement or a 
template of such a statement

[[Page 54489]]

provided to applicants. There is not a uniform conflict of interest 
statement that applies to all the Agencies. For FTA projects, there is 
a conflict of interest statement template for projects requiring an EIS 
or an EA. The project sponsor should work with the FTA Regional Office 
to execute the appropriate conflict of interest statement for the 
project at issue. As discussed in response to the transit agency's 
comments on Sec.  771.119(a)(3), FRA plans to develop a conflict of 
interest template. The FHWA does not use a template conflict of 
interest form. The Agencies are modifying Sec.  771.123(d) to address 
FRA's conflict of interest disclosure statements for a contractor 
preparing an EIS. This requirement will mirror FRA's requirements for 
an EA in Sec.  771.119.
    A Federal agency supported the language in Sec.  771.123(e) that 
provides a comment opportunity on a preferred alternative before 
issuing a record of decision (ROD) or a combined FEIS/ROD. To provide 
additional clarity, the commenter suggested adding the phrase ``of the 
preferred alternative'' to the end of this paragraph. The Agencies 
agree with the suggestion and accept the proposal.
    A transit agency expressed concern with the language in proposed 
Sec.  771.123(e) that recommends agencies provide the public with an 
opportunity after issuance of the DEIS to review the impacts, if a 
preferred alternative is not identified in the DEIS. The commenter 
stated the proposal creates additional procedural and circulation 
requirements, and noted the reason for such additional procedural 
requirements is unclear because impacts for all alternatives, including 
the preferred alternative, are identified in the DEIS. The commenter 
suggested keeping the language encouraging identification of a 
preferred alternative in the DEIS without reference to additional 
public review and circulation periods beyond what is already required. 
The Agencies decline to make the suggested change. While the Agencies 
encourage identifying the preferred alternative in the DEIS, sometimes 
this is not possible. Regardless, the public should have an opportunity 
to review an alternative's impacts after its selection as the preferred 
alternative and before the lead agency makes its decision. This does 
not create additional requirements as the public review must still 
occur; consistent with DOT guidance on combined FEIS/ROD documents,\8\ 
the public review can occur as part of the DEIS review (preferred) or 
as a separate step between the DEIS and FEIS.
---------------------------------------------------------------------------

    \8\ Interim Guidance on MAP-21 Section 1319 Accelerated 
Decisionmaking in Environmental Reviews, January 14, 2013, available 
at: https://www.fhwa.dot.gov/map21/guidance/guideaccdecer.cfm.
---------------------------------------------------------------------------

    A regional transportation agency commented on Sec.  771.123(e) and 
suggested clarifying that the opportunity to review impacts of a 
preferred alternative, where the DEIS did not identify any preferred 
alternative, does not constitute a second comment period on the entire 
DEIS. Rather, this comment period should be solely for evaluating the 
impacts of the preferred alternative. In addition, the commenter 
requested the Agencies limit any comment period to 30 days. Similarly, 
in regard to Sec.  771.123(e), a citizen asserted that the second 
sentence is wrong and should be deleted. The commenter noted that other 
agencies and the public must be given an opportunity to review the 
impacts presented in the DEIS without regard to whether the DEIS 
identifies the preferred alternative.
    The Agencies are revising Sec.  771.123(e) by adding ``of the 
preferred alternative'' to the end of the paragraph to clarify that the 
review pertains to the preferred alternative's impacts. In addition, 
the Agencies highlight that the statutory default comment period for a 
preferred alternative issued post-DEIS is 30 days per 23 U.S.C. 
139(g)(2)(B). The Agencies agree that other agencies and the public may 
comment on a DEIS regardless of whether it identifies a preferred 
alternative, but decline the suggested deletion. To clarify, as 
drafted, the paragraph's intent is not to describe the DEIS public 
comment period, but rather, the process for commenting on a preferred 
alternative identified after publication of the DEIS.
    Regarding Sec.  771.123(f), a transit agency sought clarification 
on whether there would be a specified level of detail that corresponds 
to some progression beyond 30 percent design and preliminary 
engineering, and how that specificity should be determined on a 
project. In addition, a regional transportation agency suggested 
revising Sec.  771.123(f) to allow for developing a preferred 
alternative to a higher level of detail to comply with other legal 
requirements including permitting. The Agencies accept the changes to 
include the phrase ``with other legal requirements, including 
permitting'' into the regulation as recommended by the commenters. To 
address concerns regarding developing a preferred alternative to a 
higher level of detail, the Agencies will revise Sec.  771.123(f) by 
adding a footnote referencing the FHWA preliminary design order (FHWA 
Order 6640.1A).
    One citizen commenter suggested that the encouragement to post 
draft EISs on the web in Sec.  771.111(i)(3) should be repeated at the 
end of Sec.  771.123(h). A regional transportation agency also 
recommended that the final regulations recognize opportunities for 
electronic document transmission and posting documents on a project 
website, particularly when a statute does not expressly require paper 
copies. The Agencies accept this recommendation.
    A regional transportation agency recommended revising Sec.  
771.123(j) by replacing the descriptor of an action as ``proposed for 
FHWA funding'' and instead suggested referring to this as an 
Administration action to encompass approvals by the Agencies that are 
not federally funded. The Agencies decline the recommended change. 
Under 23 U.S.C. 128, FHWA is required to conduct public hearings, and 
this specifically applies to State DOTs.

771.124 Final Environmental Impact Statement/Record of Decision 
Document

    A regional transportation agency expressed support for the use of 
combined FEIS/RODs. It also requested the Agencies provide 
clarification regarding the circumstances where it is not practicable 
to use a combined FEIS/ROD, including confirmation that lead agencies 
can use a combined FEIS/ROD for controversial projects and projects 
where an EIS evaluates more than one alternative. The Agencies decline 
any change to regulatory text. Previous guidance has been issued on the 
use of a combined FEIS/ROD.\9\ Forthcoming, updated ``SAFETEA-LU 
Environmental Review Process Final Guidance'' incorporating the FAST 
Act changes to 23 U.S.C. 139 will also provide additional guidance on 
this matter.
---------------------------------------------------------------------------

    \9\ Interim Guidance on MAP-21 Section 1319 Accelerated 
Decisionmaking in Environmental Reviews, January 14, 2013, available 
at: https://www.fhwa.dot.gov/map21/guidance/guideaccdecer.cfm. 
Question 17 of the FAST Act: Questions and Answers on the procedural 
changes to 23 U.S.C. 139 as they relate to FHWA, FRA & FTA projects 
guidance, issued June 2017, available at: https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/regulations-and-guidance/environmental-programs/61226/fasts1304qsas.pdf.
---------------------------------------------------------------------------

    In keeping with its comment on Sec.  771.123(c), a Federal agency 
commenter similarly recommended revising Sec.  771.124(a)(1) to read 
``in cooperation with the applicant (if not a lead agency), cooperating 
and participating agency(s).'' The Agencies decline the suggested 
change consistent with their response to the same comment under Sec.  
771.123(c).

[[Page 54490]]

    A citizen noted the combined FEIS/ROD process makes no provision 
for pre-decision referrals to CEQ as envisioned by 40 CFR 1504.3 and 
proposed language to explicitly direct this. The Agencies decline to 
make the proposed change. Referrals to CEQ would be made at the DEIS 
stage when the lead agencies anticipate issuing a combined FEIS/ROD. 
Any additional wait times are not consistent with statutory language.
    The Agencies are modifying Sec.  771.124(b) to capture the 
requirement included in Sec.  771.125(f), but with modifications. The 
Agencies are requiring that the combined FEIS/ROD be publicly available 
after filing the document with EPA, but unlike the FEIS section, are 
not referring to a formal public review because there is no pre-
decision waiting period associated with a combined FEIS/ROD.

771.125 Final Environmental Impact Statements

    For Sec.  771.125(e) and (f), a citizen asserted that the proposed 
language regarding publication and public availability of final EISs 
retains its pre-internet tone and requirements, and ignores the current 
widespread use of the internet and electronic devices for reading 
documents. The commenter noted that revisions should encourage use of 
the internet and electronic devices to facilitate public and 
interagency availability of the document, but should also acknowledge 
the need for hardcopy distribution for those without access to the 
internet and electronic devices or who prefer hard copies. The same 
comment applies to Sec.  771.124 on combined FEIS/RODs and to Sec.  
771.127 on RODs. The Agencies agree with the citizen's suggestion and 
have included this in Sec. Sec.  771.125(f) and 771.127(a)

771.127 Record of Decision

    A regional transportation agency suggested revising Sec.  
771.127(b) to recognize that the Agencies can issue a revised or 
amended ROD to approve an alternative that was not identified as the 
preferred alternative when it was fully evaluated in the draft EIS or 
final EIS. The Agencies recognize that under a combined FEIS/ROD 
process, the draft EIS will have identified the preferred alternative 
and other alternatives, allowing for adequate public comment. The 
Agencies have revised the language in Sec.  771.127(b) to allow for the 
selection of an alternative fully evaluated in a draft EIS or combined 
FEIS/ROD in addition to the other conditions described in regulation. A 
revised or amended ROD can now include the selection of an alternative 
fully evaluated in the draft EIS or combined FEIS/ROD circumstances.

771.139 Limitations on Actions

    One State DOT supported the proposal to amend Sec.  771.139 to 
reflect the 2-year statute of limitations applicable to railroad 
projects approved by the FRA, but recommended that it be revised to be 
tied to project type, as indicated in the statute, rather than by 
agency alone. A trade association similarly expressed support for 
amending part 771 to include the statute of limitations period 
applicable to railroad projects approved by FRA, but recommended 
editing the rule text to clarify which projects are subject to the 150-
day limitations period and which projects are subject to the 2-year 
limitations period.
    Additionally, the trade association opined that the language in 23 
U.S.C. 139(l) applies to all Federal agency actions for the highway, 
transit or railroad projects, and that this is not clear from the 
proposed rule text. The commenter recommended language changes to 
clarify the applicability of the limitations on claims and proposed 
additional definitions. The Agencies are revising the language for 
clarity, but decline to define the terms highway project, transit 
project, and railroad project. Section 771.139 implements the 
limitations on claims language from 23 U.S.C. 139(l) for approvals or 
decisions for an Administration action, which may include decisions and 
approvals issued by other agencies relating to the project. These time 
periods do not lengthen any shorter time period for seeking judicial 
review that otherwise is established by the Federal law under which 
judicial review is allowed.

23 CFR Part 774

General

    One trade association supported reducing Section 4(f) requirements 
for common post-1945 bridge types and historic railroad and rail 
transit lines. The commenter also acknowledged that steps to preserve 
portions of historic bridges will be necessary in certain instances, 
but the majority of bridge improvements in this class will not affect 
anything of historical significance. The Agencies appreciate the 
support.

774.11 Applicability

    One public transit agency supported expanding Sec.  774.11(i) to 
provide more direction to applicants regarding adequate documentation, 
but noted concern that the proposed use of ``government document'' and 
``government map'' may invite dispute on what constitutes 
``government'' and the extent to which the property-owning 
jurisdiction's documents qualify. The commenter noted that even though 
it is a government agency, its documents and maps are not commonly 
referred to or understood as government maps or government documents, 
and that the title ``government'' would be reserved for city or county 
governments. The commenter proposed replacing ``government document'' 
with ``a document of public record'' and replacing ``government map'' 
with ``a map of public record.'' The Agencies agreed with the proposed 
edits and have incorporated changes at Sec.  774.11(i)(1), (i)(1)(i), 
(i)(2), (i)(2)(i), and (i)(2)(ii).

Section 774.13 Exceptions

    One trade association and one State DOT provided comments on the 
proposed changes to Sec.  774.13. Regarding Sec.  774.13(a)(1), the 
trade association supported the language proposed, noting that it 
appropriately reflects the statute's objective.
    For Sec.  774.13(a)(2), the trade association commenter supported 
the text of the proposed rule regarding improvements. In this same 
section, the State DOT commenter suggested that the term ``railroad or 
rail transit lines or elements thereof'' be defined in the statute, not 
just this rulemaking. The trade association commenter supported the 
broad interpretation the Agencies provide in the preamble for this same 
term (i.e., including all elements related to the historic or current 
transportation function such as railroad or rail transit track, 
elevated support structure, rights-of-way, substations, communication 
devices and maintenance facilities) but requested that this 
interpretation be included in the regulatory text. In response to these 
comments, the Agencies have defined the term railroad or rail transit 
line elements in Sec.  774.17 by providing a non-exclusive list of such 
elements. The Agencies included bridges and tunnels in the definition 
because Congress, by excluding certain bridges and tunnels from the 
FAST Act section 11502 (23 U.S.C. 138(f)/49 U.S.C. 303(h)) exemption, 
clearly intended that other bridges and tunnels should be considered 
elements of the railroad or transit line and therefore subject to the 
exemption (the Agencies incorporated this exclusion from the exception 
in paragraph (a)(2)(ii)). The Agencies also added railway-highway 
crossings to the railroad or rail transit line elements definition to 
clarify, as discussed in the FAST Act SNPRM preamble, the Agencies' 
intent to include projects for the elimination of

[[Page 54491]]

hazards at railway-highway crossings--whether at-grade or grade-
separated--within this exception. Such safety projects are funded by 
FHWA under 23 U.S.C. 130.
    The State DOT commenter recommended that the stations referred to 
in Sec.  774.13(a)(2)(i) be further defined to specify whether it means 
the building itself or can include other associated elements and 
facilities. The trade association commenter also requested 
clarification on the definition of stations, recommending that the term 
be defined to include the station building and not the associated 
tracks, yards, electrification and communication infrastructure, or 
other ancillary facilities. The Agencies are including a definition of 
a station in Sec.  774.17. The new definition only applies to Section 
4(f) analyses and not for other purposes.
    Both commenters suggested that the Agencies misinterpreted 49 
U.S.C. 303(h) in the proposed regulation regarding exceptions detailed 
in 49 U.S.C. 303(h)(2). These commenters noted that the proposed 
language excludes bridges or tunnels on railroad lines that have been 
abandoned or transit lines not in use, over which regular service has 
never operated, and that have not been railbanked or otherwise reserved 
for the transportation of goods or passengers. The commenters stated 
that the statute uses the term ``or'' rather than ``and'' in this 
context--implying that the facility is excluded if either condition is 
met, whereas the proposed text implies that both conditions need to be 
met in order for the facility to be excluded. The Agencies have 
determined that the proposed regulatory text accurately reflects the 
exceptions language in 49 U.S.C. 303(h)(2). The exceptions in 49 U.S.C. 
303(h)(2)(a) applies to stations, or bridges or tunnels located on 
railroad lines that have been abandoned or transit lines not in use. In 
addition, 49 U.S.C. 303(h)(2)(B) clarifies that the exception in 49 
U.S.C. 303(h)(2)(A)(ii) does not apply to all bridges and tunnels, 
specifically bridges or tunnels located on railroad or transit lines 
over which service has been discontinued, or that have been railbanked 
or otherwise reserved for the transportation of goods or passengers. 
Therefore, for the exception to apply, the bridge or tunnel must meet 
the requirements in 49 U.S.C. 303(h)(2)(A)(ii) and not be the type of 
bridge or tunnel detailed in 49 U.S.C. 303(h)(2)(B). Using ``and'' in 
Sec.  774.13(a)(2)(ii) captures the clarification in 49 U.S.C. 
303(h)(2)(B) that the exception does not apply to all bridges and 
tunnels.
    In addition, the State DOT supported expanding the list of 
activities in Sec.  774.13(a)(3) to mirror the activities included in 
Sec.  774.13(a)(2). For this same section, the public transit commenter 
suggested expanding this list to include maintenance, preservation, 
rehabilitation, operation, modernization, reconstruction, and 
replacement. The trade association commenter also supported changing 
the list of activities in this exemption to mirror those in Sec.  
774.13(a)(2) because it would provide consistency in the application of 
the exemption to different types of historic transportation facilities 
and help to avoid confusion. The Agencies agree with the commenters and 
revised Sec.  774.13(a)(3) to match the activities found in Sec.  
774.13(a)(2).
    In response to the Agencies' request in the FAST Act SNPRM, the 
State DOT commented on whether the two conditions specified in this 
exemption under Sec.  774.13(a)(3)(i) and (ii) would adequately protect 
significant historic transportation facilities in the case of projects 
to operate, modernize, reconstruct or replace the transportation 
facility. The commenter supported keeping the two existing conditions. 
The trade association commenter similarly supported these existing 
conditions and noted that the SHPO concurrence in a no adverse effect 
finding gives substantial assurance that historic facilities will be 
protected. Based on that feedback and upon further consideration, the 
Agencies decided to keep the two conditions and have added new text to 
allow the Agencies to apply this exemption where an activity is covered 
by a Section 106 program alternative. Section 774.13(a)(3)(ii) was also 
revised to accommodate Section 106 program alternatives. These proposed 
changes create the necessary consistency between Sec.  774.13(a)(3)(i) 
and (a)(3)(ii) as SHPOs are not always given a role in determining 
whether an activity is subject to a program alternative. Rather, that 
determination is appropriately made by the lead agency.
    A citizen objected to a phrase used in Sec. Sec.  774.13(g)(1), 
774.15(a), (d) and (f), and 774.17 that the Agencies did not propose 
changing (i.e., an activity, feature, or attribute that qualifies the 
property for Section 4(f) protection) on grounds that the phrase is 
confusing and conflicts with the statute. The commenter did not propose 
any alternative language. The Agencies reviewed the phrase (as well as 
substantially similar phrasing found in Sec. Sec.  774.3(c) and 
774.5(b)) and decline to change it in any of the instances because 
identifying the important activities, features, and attributes of 
Section 4(f) properties is central to the procedures the Agencies 
created to implement the statute's preservation mandate. The phrase has 
been in use for many years and, in the Agencies' experience, it 
provides clarity, not confusion, to focus on the specific activities, 
features, and attributes that are to be protected.

49 CFR Part 264

    The Agencies are adding an additional citation to the list of 
authorities and modifying the heading of 49 CFR 264.101. These changes 
are administrative in nature and address oversights in the FAST Act 
SNPRM. They do not change the substance of the section.

Rulemaking Analyses and Notices

Statutory/Legal Authority for This Rulemaking

    The Agencies derive explicit authority for this rulemaking action 
from 49 U.S.C. 322(a). The Secretary delegated this authority to 
prescribe regulations in 49 U.S.C. 322(a) to the Agencies' 
Administrators under 49 CFR 1.81(a)(3). The Secretary also delegated 
authority to the Agencies' Administrators to implement NEPA and Section 
4(f), the statutes implemented by this rule, in 49 CFR 1.81(a)(4) and 
(a)(5). Moreover, the CEQ regulations that implement NEPA provide at 40 
CFR 1507.3 that Federal agencies shall continue to review their 
policies and NEPA implementing procedures and revise them as necessary 
to ensure full compliance with the purposes and provisions of NEPA.

Rulemaking Analyses and Notices

    The Agencies considered all comments received before the close of 
business on the comment closing date indicated above. The comments are 
available for examination in the docket (FHWA-2015-0011) at 
www.regulations.gov. The Agencies also considered commenters received 
after the comment closing date to the extent practicable.

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

[[Page 54492]]

equity). The Agencies have determined 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 U.S. 
Department of Transportation Regulatory Policies and Procedures. 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules, and promoting 
flexibility. This action complies with E.O.s 12866, 13563, and 13771 to 
improve regulation.
    The Agencies determined this rule is not an Executive Order 13771 
regulatory action because this rule is not significant under Executive 
Order 12866. This final rule is considered an Exective Order 13771 
deregulatory action. The Agencies expect minor cost savings that cannot 
be quantified. The Agencies do not have specific data to assess the 
economic impact of this final rule because such data does not exist and 
would be difficult to develop. This final rule modifies 23 CFR parts 
771 and 774 in order to be consistent with changes introduced by MAP-21 
and the FAST Act, to make the regulation more consistent with the FHWA 
and FTA practices, and to add FRA to parts 771 and 774. The Agencies 
anticipate that the changes in this final rule would enable projects to 
move more expeditiously through the Federal environmental review 
process. It 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 and consistent with Federal law.

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 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 revisions to 23 CFR parts 771 and 774 are 
expected to expedite environmental review and thus are anticipated to 
be less burdensome than any current impact on small business entities.
    We hereby certify that this regulatory action would not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This final rule will not result in the expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of $151 
million or more in any one year (2 U.S.C. 1532). In addition, 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 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 final rule would not preempt 
any State law or State regulation or affect the States' ability to 
discharge traditional State governmental functions.

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 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. The Agencies solicited comments on 
this issue with the proposed rulemakings but did not receive any 
comments pertaining to Executive Order 12372.

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 final rule does not contain collection of information 
requirements for the purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 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

[[Page 54493]]

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 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 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 771

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

23 CFR Part 774

    Environmental protection, Grant programs--transportation, Highways 
and roads, Historic preservation, Public transportation, Public lands, 
Railroads, Recreation areas, Reporting and recordkeeping requirements, 
Wildlife Refuges.

49 CFR Part 264

    Environmental impact statements, Environmental review process, 
Environmental protection, Grant programs--transportation, Programmatic 
approaches, Railroads, Reporting and recordkeeping requirements.

49 CFR Part 622

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

    Issued in Washington, DC on October 19, 2018, under authority 
delegated in 49 CFR 1.85 and 1.91:
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.

Ronald L. Batory,
Administrator, Federal Railroad Administration.

K. Jane Williams,
Acting Administrator, Federal Transit Administration.
    In consideration of the foregoing, the Agencies amend title 23, 
Code of Federal Regulations parts 771 and 774, and title 49, Code of 
Federal Regulations parts 264 and 622, as follows:

Title 23--Highways

0
1. Revise part 771 to read as follows:

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

Sec.
771.101 Purpose.
771.103 [Reserved]
771.105 Policy.
771.107 Definitions.
771.109 Applicability and responsibilities.
771.111 Early coordination, public involvement, and project 
development.
771.113 Timing of Administration activities.
771.115 Classes of actions.
771.116 FRA categorical exclusions.
771.117 FHWA categorical exclusions.
771.118 FTA categorical exclusions.
771.119 Environmental assessments.
771.121 Findings of no significant impact.
771.123 Draft environmental impact statements.
771.124 Final environmental impact statement/record of decision 
document.
771.125 Final environmental impact statements.
771.127 Record of decision.
771.129 Re-evaluations.
771.130 Supplemental environmental impact statements.
771.131 Emergency action procedures.
771.133 Compliance with other requirements.
771.137 International actions.
771.139 Limitations on actions.

    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; 49 U.S.C. 24201; 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; and Public Law 114-94, 
129 Stat. 1312, Sections 1304 and 1432.


Sec.  771.101   Purpose.

    This part prescribes the policies and procedures of the Federal 
Highway Administration (FHWA), the Federal Railroad Administration 
(FRA), and the Federal Transit Administration (FTA) for implementing 
the National Environmental Policy Act of 1969 as amended (NEPA), and 
supplements the NEPA regulations of the Council on Environmental 
Quality (CEQ), 40 CFR parts 1500 through 1508 (CEQ regulations). 
Together these regulations set forth all FHWA, FRA, FTA, and U.S. 
Department of Transportation (DOT) requirements under NEPA for the 
processing of highway, public transportation, and railroad actions. 
This part 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; 49 U.S.C. 24201; and 
5323(q); Public Law 112-141, 126 Stat. 405, section 1301 as applicable; 
and Public Law 114-94, 129 Stat. 1312, section 1304.


Sec.  771.103   [Reserved]


Sec.  771.105   Policy.

    It is the policy of the Administration that:
    (a) To the maximum extent practicable and consistent with Federal 
law, 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 part.\1\
---------------------------------------------------------------------------

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

    (b) Programmatic approaches be developed for compliance with 
environmental requirements (including the requirements found at 23 
U.S.C. 139(b)(3)), 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:

[[Page 54494]]

    (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 of 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 part.


Sec.  771.107   Definitions.

    The definitions contained in the CEQ regulations and in titles 23 
and 49 of the United States Code are applicable. In addition, the 
following definitions apply to this part.
    Action. A highway, transit, or railroad project proposed for U.S. 
DOT funding. It also can include activities such as joint and multiple 
use permits, changes in access control, or rulemakings, which may or 
may not involve a commitment of Federal funds.
    Administration. The FHWA, FRA, or FTA, whichever is the designated 
Federal lead agency for the proposed action. A reference herein to the 
Administration means the FHWA, FRA, or FTA, or a State when the State 
is functioning as the FHWA, FRA, 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, FRA, or FTA means the State when the State is functioning 
as the FHWA, FRA, 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, FRA, or FTA.
    Administration action. FHWA, FRA, or FTA approval of the 
applicant's request for Federal funds for construction. It also can 
include approval of activities, such as joint and multiple use permits, 
changes in access control, rulemakings, etc., that 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 regulations.
    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 
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, consistent with NEPA and other applicable law.
    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. Where it is not the applicant, the 
project sponsor may conduct some of the activities on the applicant's 
behalf.
    Section 4(f). Refers to 49 U.S.C. 303 and 23 U.S.C. 138 (as 
implemented by 23 CFR part 774).


Sec.  771.109   Applicability and responsibilities.

    (a)(1) The provisions of this part and the CEQ regulations apply to 
actions where the Administration exercises sufficient control to 
condition the permit, project, or other approvals. Steps taken by the 
applicant that do not require Federal approvals, such as preparation of 
a regional transportation plan, are not subject to this part.
    (2) This part does not apply to or alter approvals by the 
Administration made prior to November 28, 2018.
    (3) For FHWA and FTA, environmental documents accepted or prepared 
after November 28, 2018 must be developed in accordance with this part.
    (4) FRA will apply this part to actions initiated after November 
28, 2018.
    (b)(1) The project sponsor, in cooperation with the Administration, 
is responsible for implementing those mitigation measures stated as 
commitments in the environmental documents prepared pursuant to this 
part unless the Administration approves of their deletion or 
modification in writing. The FHWA will ensure that this is accomplished 
as a part of its stewardship and oversight responsibilities. The FRA 
and FTA will ensure 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 must 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) The following roles and responsibilities apply during the 
environmental review process:
    (1) The lead agencies are responsible for managing the 
environmental review process and the preparation of the appropriate 
environmental review documents.
    (2) Any State or local governmental entity applicant that is or is 
expected to be a direct recipient of funds under title 23, U.S. Code or 
chapter 53 of title 49, U.S. Code for the action, or is or is expected 
to be a direct recipient of financial assistance for which FRA is 
responsible (e.g., Subtitle V of Title 49, U.S. Code) must serve as a 
joint lead agency with the Administration in accordance with 23 U.S.C. 
139, and may prepare environmental review documents if the 
Administration furnishes guidance and independently evaluates the 
documents.
    (3) The Administration may invite other Federal, State, local, or 
federally recognized Indian Tribal governmental units to serve as joint 
lead agencies in accordance with the CEQ regulations. If the applicant 
is serving as a joint lead

[[Page 54495]]

agency under 23 U.S.C. 139(c)(3), then the Administration and the 
applicant will decide jointly which other agencies to invite to serve 
as joint lead agencies.
    (4) When the applicant seeks an Administration action other than 
the approval of funds, the Administration will determine the role of 
the applicant in accordance with the CEQ regulations and 23 U.S.C. 139.
    (5) Regardless of its role under paragraphs (c)(2) through (c)(4) 
of this section, a public agency that has statewide jurisdiction (for 
example, a State highway agency or a State department of 
transportation) or a local unit of government acting through a 
statewide agency, that meets the requirements of section 102(2)(D) of 
NEPA, may prepare the EIS and other environmental review documents with 
the Administration furnishing guidance, participating in the 
preparation, and independently evaluating the document. All FHWA 
applicants qualify under this paragraph.
    (6) Subject to paragraph (e) of this section, the role of a project 
sponsor that is a private institution or firm is limited to providing 
technical studies and commenting on environmental review documents.
    (7) A participating agency must provide input during the times 
specified in the coordination plan under 23 U.S.C. 139(g) and within 
the agency's special expertise or jurisdiction. Participating agencies 
provide comments and concurrence on the schedule within the 
coordination plan.
    (d) When entering into Federal-aid project agreements pursuant to 
23 U.S.C. 106, the State highway agency must ensure that the project is 
constructed in accordance with and incorporates all committed 
environmental impact mitigation measures listed in approved 
environmental review documents unless the State requests and receives 
written FHWA approval to modify or delete such mitigation features.
    (e) When FRA is the lead Federal agency, the project sponsor is a 
private entity, and there is no applicant acting as a joint-lead 
agency, FRA and the project sponsor may agree to use a qualified third-
party contractor to prepare an EIS. Under this arrangement, a project 
sponsor retains a contractor to assist FRA in conducting the 
environmental review. FRA selects, oversees, and directs the 
preparation of the EIS and retains ultimate control over the 
contractor's work. To enter into a third-party contract, FRA, the 
project sponsor, and the contractor will enter into a memorandum of 
understanding (MOU) that outlines at a minimum the conditions and 
procedures to be followed in carrying out the MOU and the 
responsibilities of the parties to the MOU. FRA may require use of a 
third-party contractor for preparation of an EA at its discretion.


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 documents 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, 
including 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, 23 CFR part 450 Appendix A, or 23 U.S.C. 139(f), 168, or 
169, as applicable.
    (ii) The planning process described in paragraph (a)(2)(i) of this 
section 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 or request 
Administration action 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 Sec.  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. A 
lead agency, in consultation with participating agencies, must develop 
an environmental checklist, as appropriate, to assist in resource and 
agency identification.
    (b)(1) The Administration will identify the probable class of 
action as soon as sufficient information is available to identify the 
probable impacts of the action.
    (2) For projects to be evaluated with an EIS, the Administration 
must respond in writing to a project sponsor's formal project 
notification within 45 days of receipt.
    (c) When the FHWA, FRA, or FTA are jointly involved in the 
development of an action, or when the FHWA, FRA, or FTA act as a joint 
lead agency with another Federal agency, a mutually acceptable process 
will be established on a case-by-case basis. A project sponsor may 
request the Secretary to designate the lead Federal agency when project 
elements fall within the expertise of multiple U.S. DOT agencies.
    (d) During early coordination, the lead agencies may invite other 
agencies that may have an interest in the action to participate. The 
lead agencies must, however, invite such agencies if the action is 
subject to the project development procedures in 23 U.S.C. 139 within 
45 days from publication of the notice of intent.\2\ Any such agencies 
with special expertise concerning the action may also be invited to 
become cooperating agencies. Any such agencies with jurisdiction by law 
concerning the action must be invited to become cooperating agencies.
---------------------------------------------------------------------------

    \2\ The Administration has guidance on 23 U.S.C. 139 available 
at http://www.fhwa.dot.gov or in hard copy upon request.
---------------------------------------------------------------------------

    (e) Other States and Federal land management entities that may be 
significantly affected by the action or by any of the alternatives must 
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 under NEPA as a categorical exclusion 
(CE), environmental assessment (EA), or environmental impact statement 
(EIS) must:
    (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:

[[Page 54496]]

    (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 regulations.
    (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 that 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 must also provide 
information required 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, and
    (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; and
    (viii) Public notice and an opportunity for public review and 
comment on a Section 4(f) de minimis impact finding, in accordance with 
23 CFR 774.5(b)(2)(i).
    (i) Applicants for FRA programs or the FTA capital assistance 
program:
    (1) Achieve public participation on proposed actions through 
activities that engage the public, including public hearings, town 
meetings, and charrettes, and seek 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 the 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, FRA or 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, alternatives, and the scope of 
the NEPA analysis.
    (3) Are encouraged to post and distribute materials related to the 
environmental review process, including, environmental 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 websites. Applicants should keep 
these materials available to the public electronically until the 
project is constructed and open for operations.
    (4) Should post all findings of no significant impact (FONSIs), 
combined final environmental impact statements (final EISs)/records of 
decision (RODs), and RODs on a project website until the project is 
constructed and open for operation.
    (j) Information on the FHWA environmental process may be obtained 
from: FHWA Director, Office of Project Development and Environmental 
Review, Federal Highway Administration, Washington, DC 20590, or 
www.fhwa.dot.gov. Information on the FRA environmental process may be 
obtained from: FRA Chief, Environmental and Corridor Planning Division, 
Office of Program Delivery, Federal Railroad Administration, 
Washington, DC 20590, or www.fra.dot.gov. Information on the FTA 
environmental process may be obtained from: FTA Director, Office of 
Environmental Programs, Federal Transit Administration, Washington, DC 
20590 or www.fta.dot.gov.


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 environmental studies, related 
engineering studies, agency coordination, public involvement, and 
identification of mitigation measures. 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 must not proceed until the following 
have been completed:
    (1)(i) The Administration has classified the action 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 FHWA actions, 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

[[Page 54497]]

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).
    (4) FRA may make exceptions on a case-by-case basis for purchases 
of railroad components or materials that can be used for other projects 
or resold.


Sec.  771.115   Classes of actions.

    There are three classes of actions that 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 require 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) New construction or extension of a separate roadway for buses 
or high occupancy vehicles not located within an existing 
transportation right-of-way.
    (5) New construction or extension of a separate roadway for buses 
not located primarily within an existing transportation right-of-way.
    (6) New construction of major railroad lines or facilities (e.g., 
terminal passenger stations, freight transfer yards, or railroad 
equipment maintenance facilities) that will not be located 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. FRA's CEs are listed in Sec.  771.116.
    (c) EA (Class III). Actions for which the Administration has not 
clearly established the significance of the environmental impact. All 
actions that are not EISs or CEs are EAs. All actions in this class 
require the preparation of an EA to determine the appropriate 
environmental document required.


Sec.  771.116   FRA categorical exclusions.

    (a) CEs are actions that meet the definition contained in 40 CFR 
1508.4, and, based on FRA's past experience with similar actions, do 
not involve significant environmental impacts. They are actions that do 
not induce significant impacts to planned growth or land use for the 
area; do not require the relocation of significant numbers of people; 
do not have a significant impact on any natural, cultural, 
recreational, historic or other resource; do not involve significant 
air, noise, or water quality impacts; do not have significant impacts 
on travel patterns; or do not otherwise, either individually or 
cumulatively, have any significant environmental impacts.
    (b) Any action that normally would be classified as a CE but could 
involve unusual circumstances will require FRA, in cooperation with the 
applicant, to conduct appropriate environmental studies to determine if 
the CE classification is proper. Such unusual circumstances include:
    (1) Significant environmental impacts;
    (2) Substantial controversy on environmental grounds;
    (3) Significant impact on properties protected by Section 4(f) 
requirements or Section 106 of the National Historic Preservation Act; 
or
    (4) Inconsistencies with any Federal, State, or local law, 
requirement or administrative determination relating to the 
environmental aspects of the action.
    (c) Actions that FRA determines fall within the following 
categories of FRA CEs and that meet the criteria for CEs in the CEQ 
regulation (40 CFR 1508.4) and paragraph (a) of this section may be 
designated as CEs only after FRA approval. FRA may request the 
applicant or project sponsor submit documentation to demonstrate that 
the specific conditions or criteria for these CEs are satisfied and 
that significant environmental effects will not result.
    (1) Administrative procurements (e.g., for general supplies) and 
contracts for personal services, and training.
    (2) Personnel actions.
    (3) Planning or design activities that do not commit to a 
particular course of action affecting the environment.
    (4) Localized geotechnical and other investigations to provide 
information for preliminary design and for environmental analyses and 
permitting purposes, such as drilling test bores for soil sampling; 
archeological investigations for archeology resources assessment or 
similar survey; and wetland surveys.
    (5) Internal orders, policies, and procedures not required to be 
published in the Federal Register under the Administrative Procedure 
Act, 5 U.S.C. 552(a)(1).
    (6) Rulemakings issued under section 17 of the Noise Control Act of 
1972, 42 U.S.C. 4916.
    (7) Financial assistance to an applicant where the financial 
assistance funds an activity that is already completed, such as 
refinancing outstanding debt.
    (8) Hearings, meetings, or public affairs activities.
    (9) Maintenance or repair of existing railroad facilities, where 
such activities do not change the existing character of the facility, 
including equipment; track and bridge structures; electrification, 
communication, signaling, or security facilities; stations; tunnels; 
maintenance-of-way and maintenance-of-equipment bases.
    (10) Emergency repair or replacement, including reconstruction, 
restoration, or retrofitting, of an essential rail facility damaged by 
the occurrence of a natural disaster or catastrophic failure. Such 
repair or replacement may include upgrades to meet existing codes and 
standards as well as upgrades warranted to address conditions that have 
changed since the rail facility's original construction.
    (11) Operating assistance to a railroad to continue existing 
service or to increase service to meet demand, where the assistance 
will not significantly alter the traffic density characteristics of 
existing rail service.
    (12) Minor rail line additions, including construction of side 
tracks, passing tracks, crossovers, short connections between existing 
rail lines, and new tracks within existing rail yards or right-of-way, 
provided that such additions are not inconsistent with existing zoning, 
do not involve acquisition of a significant amount of right-of-way, and 
do not significantly alter the traffic density characteristics of the 
existing rail lines or rail facilities.

[[Page 54498]]

    (13) Acquisition or transfer of real property or existing railroad 
facilities, including track and bridge structures; electrification, 
communication, signaling or security facilities; stations; and 
maintenance of way and maintenance of equipment bases or the right to 
use such real property and railroad facilities, for the purpose of 
conducting operations of a nature and at a level of use similar to 
those presently or previously existing on the subject properties or 
facilities.
    (14) Research, development, or demonstration activities on existing 
railroad lines or facilities, such as advances in signal communication 
or train control systems, equipment, or track, provided that such 
activities do not require the acquisition of a significant amount of 
right-of-way and do not significantly alter the traffic density 
characteristics of the existing rail line or facility.
    (15) Promulgation of rules, the issuance of policy statements, the 
waiver or modification of existing regulatory requirements, or 
discretionary approvals that do not result in significantly increased 
emissions of air or water pollutants or noise.
    (16) Alterations to existing facilities, locomotives, stations, and 
rail cars in order to make them accessible for the elderly and persons 
with disabilities, such as modifying doorways, adding or modifying 
lifts, constructing access ramps and railings, modifying restrooms, and 
constructing accessible platforms.
    (17) The rehabilitation, reconstruction or replacement of bridges, 
the rehabilitation or maintenance of the rail elements of docks or 
piers for the purposes of intermodal transfers, and the construction of 
bridges, culverts, or grade separation projects that are predominantly 
within existing right-of-way and that do not involve extensive in-water 
construction activities, such as projects replacing bridge components 
including stringers, caps, piles, or decks, the construction of roadway 
overpasses to replace at-grade crossings, construction or 
reconstruction of approaches or embankments to bridges, or construction 
or replacement of short span bridges.
    (18) Acquisition (including purchase or lease), rehabilitation, 
transfer, or maintenance of vehicles or equipment, including 
locomotives, passenger coachers, freight cars, trainsets, and 
construction, maintenance or inspection equipment, that does not 
significantly alter the traffic density characteristics of an existing 
rail line.
    (19) Installation, repair and replacement of equipment and small 
structures designed to promote transportation safety, security, 
accessibility, communication or operational efficiency that take place 
predominantly within the existing right-of-way and do not result in a 
major change in traffic density on the existing rail line or facility, 
such as the installation, repair or replacement of surface treatments 
or pavement markings, small passenger shelters, passenger amenities, 
benches, signage, sidewalks or trails, equipment enclosures, and 
fencing, railroad warning devices, train control systems, 
signalization, electric traction equipment and structures, electronics, 
photonics, and communications systems and equipment, equipment mounts, 
towers and structures, information processing equipment, and security 
equipment, including surveillance and detection cameras.
    (20) Environmental restoration, remediation, pollution prevention, 
and mitigation activities conducted in conformance with applicable 
laws, regulations and permit requirements, including activities such as 
noise mitigation, landscaping, natural resource management activities, 
replacement or improvement to storm water oil/water separators, 
installation of pollution containment systems, slope stabilization, and 
contaminated soil removal or remediation activities.
    (21) Assembly or construction of facilities or stations that are 
consistent with existing land use and zoning requirements, do not 
result in a major change in traffic density on existing rail or highway 
facilities, and result in approximately less than ten acres of surface 
disturbance, such as storage and maintenance facilities, freight or 
passenger loading and unloading facilities or stations, parking 
facilities, passenger platforms, canopies, shelters, pedestrian 
overpasses or underpasses, paving, or landscaping.
    (22) Track and track structure maintenance and improvements when 
carried out predominantly within the existing right-of-way that do not 
cause a substantial increase in rail traffic beyond existing or 
historic levels, such as stabilizing embankments, installing or 
reinstalling track, re-grading, replacing rail, ties, slabs and 
ballast, installing, maintaining, or restoring drainage ditches, 
cleaning ballast, constructing minor curve realignments, improving or 
replacing interlockings, and the installation or maintenance of 
ancillary equipment.
    (d) Any action qualifying as a CE under Sec.  771.117 or Sec.  
771.118 may be approved by FRA when the applicable requirements of 
those sections have been met. FRA may consult with FHWA or FTA to 
ensure the CE is applicable to the proposed action.


Sec.  771.117   FHWA categorical exclusions.

    (a) CEs are actions that meet the definition contained in 40 CFR 
1508.4, and, based on FHWA's past experience with similar actions, do 
not involve significant environmental impacts. They are actions that: 
Do not induce significant impacts to planned growth or land use for the 
area; do not require the relocation of significant numbers of people; 
do not have a significant impact on any natural, cultural, 
recreational, historic or other resource; do not involve significant 
air, noise, or water quality impacts; do not have significant impacts 
on travel patterns; or do not otherwise, either individually or 
cumulatively, have any significant environmental impacts.
    (b) Any action that normally would be classified as a CE but could 
involve unusual circumstances will require the FHWA, in cooperation 
with the applicant, to conduct appropriate environmental studies to 
determine if the CE classification is proper. Such unusual 
circumstances include:
    (1) Significant environmental impacts;
    (2) Substantial controversy on environmental grounds;
    (3) Significant impact on properties protected by Section 4(f) 
requirements or Section 106 of the National Historic Preservation Act; 
or
    (4) Inconsistencies with any Federal, State, or local law, 
requirement or administrative determination relating to the 
environmental aspects of the action.
    (c) The following actions meet the criteria for CEs in the CEQ 
regulations (40 CFR 1508.4) and paragraph (a) of this section and 
normally do not require any further NEPA approvals by the FHWA:
    (1) Activities that do not involve or lead directly to 
construction, such as planning and research activities; grants for 
training; engineering to define the elements of a proposed action or 
alternatives so that social, economic, and environmental effects can be 
assessed; and Federal-aid system revisions that establish classes of 
highways on the Federal-aid highway system.
    (2) Approval of utility installations along or across a 
transportation facility.
    (3) Construction of bicycle and pedestrian lanes, paths, and 
facilities.
    (4) Activities included in the State's highway safety plan under 23 
U.S.C. 402.

[[Page 54499]]

    (5) Transfer of Federal lands pursuant to 23 U.S.C. 107(d) and/or 
23 U.S.C. 317 when the land transfer is in support of an action that is 
not otherwise subject to FHWA review under NEPA.
    (6) The installation of noise barriers or alterations to existing 
publicly owned buildings to provide for noise reduction.
    (7) Landscaping.
    (8) Installation of fencing, signs, pavement markings, small 
passenger shelters, traffic signals, and railroad warning devices where 
no substantial land acquisition or traffic disruption will occur.
    (9) The following actions for transportation facilities damaged by 
an incident resulting in an emergency declared by the Governor of the 
State and concurred in by the Secretary, or a disaster or emergency 
declared by the President pursuant to the Robert T. Stafford Act (42 
U.S.C. 5121):
    (i) Emergency repairs under 23 U.S.C. 125; and
    (ii) The repair, reconstruction, restoration, retrofitting, or 
replacement of any road, highway, bridge, tunnel, or transit facility 
(such as a ferry dock or bus transfer station), including ancillary 
transportation facilities (such as pedestrian/bicycle paths and bike 
lanes), that is in operation or under construction when damaged and the 
action:
    (A) Occurs within the existing right-of-way and in a manner that 
substantially conforms to the preexisting design, function, and 
location as the original (which may include upgrades to meet existing 
codes and standards as well as upgrades warranted to address conditions 
that have changed since the original construction); and
    (B) Is commenced within a 2-year period beginning on the date of 
the declaration.
    (10) Acquisition of scenic easements.
    (11) Determination of payback under 23 U.S.C. 156 for property 
previously acquired with Federal-aid participation.
    (12) Improvements to existing rest areas and truck weigh stations.
    (13) Ridesharing activities.
    (14) Bus and rail car rehabilitation.
    (15) Alterations to facilities or vehicles in order to make them 
accessible for elderly and handicapped persons.
    (16) Program administration, technical assistance activities, and 
operating assistance to transit authorities to continue existing 
service or increase service to meet routine changes in demand.
    (17) The purchase of vehicles by the applicant where the use of 
these vehicles can be accommodated by existing facilities or by new 
facilities that themselves are within a CE.
    (18) Track and railbed maintenance and improvements when carried 
out within the existing right-of-way.
    (19) Purchase and installation of operating or maintenance 
equipment to be located within the transit facility and with no 
significant impacts off the site.
    (20) Promulgation of rules, regulations, and directives.
    (21) Deployment of electronics, photonics, communications, or 
information processing used singly or in combination, or as components 
of a fully integrated system, to improve the efficiency or safety of a 
surface transportation system or to enhance security or passenger 
convenience. Examples include, but are not limited to, traffic control 
and detector devices, lane management systems, electronic payment 
equipment, automatic vehicle locaters, automated passenger counters, 
computer-aided dispatching systems, radio communications systems, 
dynamic message signs, and security equipment including surveillance 
and detection cameras on roadways and in transit facilities and on 
buses.
    (22) Projects, as defined in 23 U.S.C. 101, that would take place 
entirely within the existing operational right-of-way. Existing 
operational right-of-way means all real property interests acquired for 
the construction, operation, or mitigation of a project. This area 
includes the features associated with the physical footprint of the 
project including but not limited to the roadway, bridges, 
interchanges, culverts, drainage, clear zone, traffic control signage, 
landscaping, and any rest areas with direct access to a controlled 
access highway. This also includes fixed guideways, mitigation areas, 
areas maintained or used for safety and security of a transportation 
facility, parking facilities with direct access to an existing 
transportation facility, transportation power substations, 
transportation venting structures, and transportation maintenance 
facilities.
    (23) Federally funded projects:
    (i) That receive less than $5,000,000 (as adjusted annually by the 
Secretary to reflect any increases in the Consumer Price Index prepared 
by the Department of Labor, see www.fhwa.dot.gov or www.fta.dot.gov) of 
Federal funds; or
    (ii) With a total estimated cost of not more than $30,000,000 (as 
adjusted annually by the Secretary to reflect any increases in the 
Consumer Price Index prepared by the Department of Labor, see 
www.fhwa.dot.gov or www.fta.dot.gov) and Federal funds comprising less 
than 15 percent of the total estimated project cost.
    (24) Localized geotechnical and other investigation to provide 
information for preliminary design and for environmental analyses and 
permitting purposes, such as drilling test bores for soil sampling; 
archeological investigations for archeology resources assessment or 
similar survey; and wetland surveys.
    (25) Environmental restoration and pollution abatement actions to 
minimize or mitigate the impacts of any existing transportation 
facility (including retrofitting and construction of stormwater 
treatment systems to meet Federal and State requirements under sections 
401 and 402 of the Federal Water Pollution Control Act (33 U.S.C. 1341; 
1342)) carried out to address water pollution or environmental 
degradation.
    (26) Modernization of a highway by resurfacing, restoration, 
rehabilitation, reconstruction, adding shoulders, or adding auxiliary 
lanes (including parking, weaving, turning, and climbing lanes), if the 
action meets the constraints in paragraph (e) of this section.
    (27) Highway safety or traffic operations improvement projects, 
including the installation of ramp metering control devices and 
lighting, if the project meets the constraints in paragraph (e) of this 
section.
    (28) Bridge rehabilitation, reconstruction, or replacement or the 
construction of grade separation to replace existing at-grade railroad 
crossings, if the actions meet the constraints in paragraph (e) of this 
section.
    (29) Purchase, construction, replacement, or rehabilitation of 
ferry vessels (including improvements to ferry vessel safety, 
navigation, and security systems) that would not require a change in 
the function of the ferry terminals and can be accommodated by existing 
facilities or by new facilities that themselves are within a CE.
    (30) Rehabilitation or reconstruction of existing ferry facilities 
that occupy substantially the same geographic footprint, do not result 
in a change in their functional use, and do not result in a substantial 
increase in the existing facility's capacity. Example actions include 
work on pedestrian and vehicle transfer structures and associated 
utilities, buildings, and terminals.
    (d) Additional actions that meet the criteria for a CE in the CEQ 
regulations (40 CFR 1508.4) and paragraph (a) of this section may be 
designated as CEs only after Administration approval unless otherwise 
authorized under an

[[Page 54500]]

executed agreement pursuant to paragraph (g) of this section. The 
applicant must submit documentation that demonstrates that the specific 
conditions or criteria for these CEs are satisfied, and that 
significant environmental effects will not result. Examples of such 
actions include but are not limited to:
    (1)-(3) [Reserved]
    (4) Transportation corridor fringe parking facilities.
    (5) Construction of new truck weigh stations or rest areas.
    (6) Approvals for disposal of excess right-of-way or for joint or 
limited use of right-of-way, where the proposed use does not have 
significant adverse impacts.
    (7) Approvals for changes in access control.
    (8) Construction of new bus storage and maintenance facilities in 
areas used predominantly for industrial or transportation purposes 
where such construction is not inconsistent with existing zoning and 
located on or near a street with adequate capacity to handle 
anticipated bus and support vehicle traffic.
    (9) Rehabilitation or reconstruction of existing rail and bus 
buildings and ancillary facilities where only minor amounts of 
additional land are required, and there is not a substantial increase 
in the number of users.
    (10) Construction of bus transfer facilities (an open area 
consisting of passenger shelters, boarding areas, kiosks and related 
street improvements) when located in a commercial area or other high 
activity center in which there is adequate street capacity for 
projected bus traffic.
    (11) Construction of rail storage and maintenance facilities in 
areas used predominantly for industrial or transportation purposes 
where such construction is not inconsistent with existing zoning, and 
where there is no significant noise impact on the surrounding 
community.
    (12) Acquisition of land for hardship or protective purposes. 
Hardship and protective buying will be permitted only for a particular 
parcel or a limited number of parcels. These types of land acquisition 
qualify for a CE only where the acquisition will not limit the 
evaluation of alternatives, including shifts in alignment for planned 
construction projects, which may be required in the NEPA process. No 
project development on such land may proceed until the NEPA process has 
been completed.
    (i) Hardship acquisition is early acquisition of property by the 
applicant at the property owner's request to alleviate particular 
hardship to the owner, in contrast to others, because of an inability 
to sell his property. This is justified when the property owner can 
document on the basis of health, safety or financial reasons that 
remaining in the property poses an undue hardship compared to others.
    (ii) Protective acquisition is done to prevent imminent development 
of a parcel that may be needed for a proposed transportation corridor 
or site. Documentation must clearly demonstrate that development of the 
land would preclude future transportation use and that such development 
is imminent. Advance acquisition is not permitted for the sole purpose 
of reducing the cost of property for a proposed project.
    (13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) 
of this section that do not meet the constraints in paragraph (e) of 
this section.
    (e) Actions described in (c)(26), (c)(27), and (c)(28) of this 
section may not be processed as CEs under paragraph (c) if they 
involve:
    (1) An acquisition of more than a minor amount of right-of-way or 
that would result in any residential or non-residential displacements;
    (2) An action that needs a bridge permit from the U.S. Coast Guard, 
or an action that does not meet the terms and conditions of a U.S. Army 
Corps of Engineers nationwide or general permit under section 404 of 
the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 
1899;
    (3) A finding of ``adverse effect'' to historic properties under 
the National Historic Preservation Act, the use of a resource protected 
under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions 
resulting in de minimis impacts, or a finding of ``may affect, likely 
to adversely affect'' threatened or endangered species or critical 
habitat under the Endangered Species Act;
    (4) Construction of temporary access or the closure of existing 
road, bridge, or ramps that would result in major traffic disruptions;
    (5) Changes in access control;
    (6) A floodplain encroachment other than functionally dependent 
uses (e.g., bridges, wetlands) or actions that facilitate open space 
use (e.g., recreational trails, bicycle and pedestrian paths); or 
construction activities in, across or adjacent to a river component 
designated or proposed for inclusion in the National System of Wild and 
Scenic Rivers.
    (f) Where a pattern emerges of granting CE status for a particular 
type of action, the FHWA will initiate rulemaking proposing to add this 
type of action to the list of categorical exclusions in paragraph (c) 
or (d) of this section, as appropriate.
    (g) FHWA may enter into programmatic agreements with a State to 
allow a State DOT to make a NEPA CE certification or determination and 
approval on FHWA's behalf, for CEs specifically listed in paragraphs 
(c) and (d) of this section and that meet the criteria for a CE under 
40 CFR 1508.4, and are identified in the programmatic agreement. Such 
agreements must be subject to the following conditions:
    (1) The agreement must set forth the State DOT's responsibilities 
for making CE determinations, documenting the determinations, and 
achieving acceptable quality control and quality assurance;
    (2) The agreement may not have a term of more than five years, but 
may be renewed;
    (3) The agreement must provide for FHWA's monitoring of the State 
DOT's compliance with the terms of the agreement and for the State 
DOT's execution of any needed corrective action. FHWA must take into 
account the State DOT's performance when considering renewal of the 
programmatic CE agreement; and
    (4) The agreement must include stipulations for amendment, 
termination, and public availability of the agreement once it has been 
executed.
    (h) Any action qualifying as a CE under Sec.  771.116 or Sec.  
771.118 may be approved by FHWA when the applicable requirements of 
those sections have been met. FHWA may consult with FRA or FTA to 
ensure the CE is applicable to the proposed action.


Sec.  771.118   FTA categorical exclusions.

    (a) CEs are actions that meet the definition contained in 40 CFR 
1508.4, and, based on FTA's past experience with similar actions, do 
not involve significant environmental impacts. They are actions that: 
Do not induce significant impacts to planned growth or land use for the 
area; do not require the relocation of significant numbers of people; 
do not have a significant impact on any natural, cultural, 
recreational, historic or other resource; do not involve significant 
air, noise, or water quality impacts; do not have significant impacts 
on travel patterns; or do not otherwise, either individually or 
cumulatively, have any significant environmental impacts.
    (b) Any action that normally would be classified as a CE but could 
involve unusual circumstances will require FTA, in cooperation with the 
applicant, to conduct appropriate environmental

[[Page 54501]]

studies to determine if the CE classification is proper. Such unusual 
circumstances include:
    (1) Significant environmental impacts;
    (2) Substantial controversy on environmental grounds;
    (3) Significant impact on properties protected by Section 4(f) 
requirements or Section 106 of the National Historic Preservation Act; 
or
    (4) Inconsistencies with any Federal, State, or local law, 
requirement or administrative determination relating to the 
environmental aspects of the action.
    (c) Actions that FTA determines fall within the following 
categories of FTA CEs and that meet the criteria for CEs in the CEQ 
regulation (40 CFR 1508.4) and paragraph (a) of this section normally 
do not require any further NEPA approvals by FTA.
    (1) Acquisition, installation, operation, evaluation, replacement, 
and improvement of discrete utilities and similar appurtenances 
(existing and new) within or adjacent to existing transportation right-
of-way, such as: Utility poles, underground wiring, cables, and 
information systems; and power substations and utility transfer 
stations.
    (2) Acquisition, construction, maintenance, rehabilitation, and 
improvement or limited expansion of stand-alone recreation, pedestrian, 
or bicycle facilities, such as: A multiuse pathway, lane, trail, or 
pedestrian bridge; and transit plaza amenities.
    (3) Activities designed to mitigate environmental harm that cause 
no harm themselves or to maintain and enhance environmental quality and 
site aesthetics, and employ construction best management practices, 
such as: Noise mitigation activities; rehabilitation of public 
transportation buildings, structures, or facilities; retrofitting for 
energy or other resource conservation; and landscaping or re-
vegetation.
    (4) Planning and administrative activities that do not involve or 
lead directly to construction, such as: Training, technical assistance 
and research; promulgation of rules, regulations, directives, or 
program guidance; approval of project concepts; engineering; and 
operating assistance to transit authorities to continue existing 
service or increase service to meet routine demand.
    (5) Activities, including repairs, replacements, and 
rehabilitations, designed to promote transportation safety, security, 
accessibility and effective communication within or adjacent to 
existing right-of-way, such as: The deployment of Intelligent 
Transportation Systems and components; installation and improvement of 
safety and communications equipment, including hazard elimination and 
mitigation; installation of passenger amenities and traffic signals; 
and retrofitting existing transportation vehicles, facilities or 
structures, or upgrading to current standards.
    (6) Acquisition or transfer of an interest in real property that is 
not within or adjacent to recognized environmentally sensitive areas 
(e.g., wetlands, non-urban parks, wildlife management areas) and does 
not result in a substantial change in the functional use of the 
property or in substantial displacements, such as: Acquisition for 
scenic easements or historic sites for the purpose of preserving the 
site. This CE extends only to acquisitions and transfers that will not 
limit the evaluation of alternatives for future FTA-assisted projects 
that make use of the acquired or transferred property.
    (7) Acquisition, installation, rehabilitation, replacement, and 
maintenance of vehicles or equipment, within or accommodated by 
existing facilities, that does not result in a change in functional use 
of the facilities, such as: equipment to be located within existing 
facilities and with no substantial off-site impacts; and vehicles, 
including buses, rail cars, trolley cars, ferry boats and people movers 
that can be accommodated by existing facilities or by new facilities 
that qualify for a categorical exclusion.
    (8) Maintenance, rehabilitation, and reconstruction of facilities 
that occupy substantially the same geographic footprint and do not 
result in a change in functional use, such as: Improvements to bridges, 
tunnels, storage yards, buildings, stations, and terminals; 
construction of platform extensions, passing track, and retaining 
walls; and improvements to tracks and railbeds.
    (9) Assembly or construction of facilities that is consistent with 
existing land use and zoning requirements (including floodplain 
regulations) and uses primarily land disturbed for transportation use, 
such as: Buildings and associated structures; bus transfer stations or 
intermodal centers; busways and streetcar lines or other transit 
investments within areas of the right-of-way occupied by the physical 
footprint of the existing facility or otherwise maintained or used for 
transportation operations; and parking facilities.
    (10) Development of facilities for transit and non-transit 
purposes, located on, above, or adjacent to existing transit 
facilities, that are not part of a larger transportation project and do 
not substantially enlarge such facilities, such as: Police facilities, 
daycare facilities, public service facilities, amenities, and 
commercial, retail, and residential development.
    (11) The following actions for transportation facilities damaged by 
an incident resulting in an emergency declared by the Governor of the 
State and concurred in by the Secretary, or a disaster or emergency 
declared by the President pursuant to the Robert T. Stafford Act (42 
U.S.C. 5121):
    (i) Emergency repairs under 49 U.S.C. 5324; and
    (ii) The repair, reconstruction, restoration, retrofitting, or 
replacement of any road, highway, bridge, tunnel, or transit facility 
(such as a ferry dock or bus transfer station), including ancillary 
transportation facilities (such as pedestrian/bicycle paths and bike 
lanes), that is in operation or under construction when damaged and the 
action:
    (A) Occurs within the existing right-of-way and in a manner that 
substantially conforms to the preexisting design, function, and 
location as the original (which may include upgrades to meet existing 
codes and standards as well as upgrades warranted to address conditions 
that have changed since the original construction); and
    (B) Is commenced within a 2-year period beginning on the date of 
the declaration.
    (12) Projects, as defined in 23 U.S.C. 101, that would take place 
entirely within the existing operational right-of-way. Existing 
operational right-of-way means all real property interests acquired for 
the construction, operation, or mitigation of a project. This area 
includes the features associated with the physical footprint of the 
project including but not limited to the roadway, bridges, 
interchanges, culverts, drainage, clear zone, traffic control signage, 
landscaping, and any rest areas with direct access to a controlled 
access highway. This also includes fixed guideways, mitigation areas, 
areas maintained or used for safety and security of a transportation 
facility, parking facilities with direct access to an existing 
transportation facility, transportation power substations, 
transportation venting structures, and transportation maintenance 
facilities.
    (13) Federally funded projects:
    (i) That receive less than $5,000,000 (as adjusted annually by the 
Secretary to reflect any increases in the Consumer Price Index prepared 
by the Department of Labor, see www.fhwa.dot.gov or www.fta.dot.gov) of 
Federal funds; or

[[Page 54502]]

    (ii) With a total estimated cost of not more than $30,000,000 (as 
adjusted annually by the Secretary to reflect any increases in the 
Consumer Price Index prepared by the Department of Labor, see 
www.fhwa.dot.gov or www.fta.dot.gov) and Federal funds comprising less 
than 15 percent of the total estimated project cost.
    (14) Bridge removal and bridge removal related activities, such as 
in-channel work, disposal of materials and debris in accordance with 
applicable regulations, and transportation facility realignment.
    (15) Preventative maintenance, including safety treatments, to 
culverts and channels within and adjacent to transportation right-of-
way to prevent damage to the transportation facility and adjoining 
property, plus any necessary channel work, such as restoring, 
replacing, reconstructing, and rehabilitating culverts and drainage 
pipes; and, expanding existing culverts and drainage pipes.
    (16) Localized geotechnical and other investigations to provide 
information for preliminary design and for environmental analyses and 
permitting purposes, such as drilling test bores for soil sampling; 
archeological investigations for archeology resources assessment or 
similar survey; and wetland surveys.
    (d) Additional actions that meet the criteria for a CE in the CEQ 
regulations (40 CFR 1508.4) and paragraph (a) of this section may be 
designated as CEs only after FTA approval. The applicant must submit 
documentation that demonstrates that the specific conditions or 
criteria for these CEs are satisfied and that significant environmental 
effects will not result. Examples of such actions include but are not 
limited to:
    (1) Modernization of a highway by resurfacing, restoring, 
rehabilitating, or reconstructing shoulders or auxiliary lanes (e.g., 
lanes for parking, weaving, turning, climbing).
    (2) Bridge replacement or the construction of grade separation to 
replace existing at-grade railroad crossings.
    (3) Acquisition of land for hardship or protective purposes. 
Hardship and protective buying will be permitted only for a particular 
parcel or a limited number of parcels. These types of land acquisition 
qualify for a CE only where the acquisition will not limit the 
evaluation of alternatives, including shifts in alignment for planned 
construction projects, which may be required in the NEPA process. No 
project development on such land may proceed until the NEPA process has 
been completed.
    (i) Hardship acquisition is early acquisition of property by the 
applicant at the property owner's request to alleviate particular 
hardship to the owner, in contrast to others, because of an inability 
to sell his property. This is justified when the property owner can 
document on the basis of health, safety or financial reasons that 
remaining in the property poses an undue hardship compared to others.
    (ii) Protective acquisition is done to prevent imminent development 
of a parcel that may be needed for a proposed transportation corridor 
or site. Documentation must clearly demonstrate that development of the 
land would preclude future transportation use and that such development 
is imminent. Advance acquisition is not permitted for the sole purpose 
of reducing the cost of property for a proposed project.
    (4) Acquisition of right-of-way. No project development on the 
acquired right-of-way may proceed until the NEPA process for such 
project development, including the consideration of alternatives, has 
been completed.
    (5) [Reserved]
    (6) Facility modernization through construction or replacement of 
existing components.
    (7) Minor transportation facility realignment for rail safety 
reasons, such as improving vertical and horizontal alignment of 
railroad crossings, and improving sight distance at railroad crossings.
    (8) Modernization or minor expansions of transit structures and 
facilities outside existing right-of-way, such as bridges, stations, or 
rail yards.
    (e) Any action qualifying as a CE under Sec.  771.116 or Sec.  
771.117 may be approved by FTA when the applicable requirements of 
those sections have been met. FTA may consult with FHWA or FRA to 
ensure the CE is applicable to the proposed action.
    (f) Where a pattern emerges of granting CE status for a particular 
type of action, FTA will initiate rulemaking proposing to add this type 
of action to the appropriate list of categorical exclusions in this 
section.


Sec.  771.119   Environmental assessments.

    (a)(1) The applicant must 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 
concludes an EA would assist in determining the need for an EIS.
    (2) When FTA or the applicant, as joint lead agency, select a 
contractor to prepare the EA, then the contractor must 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 should 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).
    (3) When FRA or the applicant, as joint lead agency, select a 
contractor to prepare the EA, then the contractor must execute an FRA 
conflict of interest disclosure statement. In the absence of an 
applicant, FRA may require private project sponsors to provide a third-
party contractor to prepare the EA as described in 771.109(e).
    (b) For actions that require an EA, the applicant, in consultation 
with the Administration, must, 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 
that might mitigate adverse environmental impacts; and identify other 
environmental review and consultation requirements that should be 
performed concurrently with the EA. The applicant must accomplish this 
through early coordination activities or through a scoping process. The 
applicant must 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 
or, for FRA at Headquarters, for 30 days and in accordance with 
paragraphs (e) and (f) of this section. The applicant must send the 
notice of availability of the EA, which briefly describes the action 
and its impacts, to the affected units of Federal, Tribal, State and 
local government. The applicant must also send notice to the State 
intergovernmental review contacts established under Executive Order 
12372. To minimize hardcopy requests and printing costs, the 
Administration

[[Page 54503]]

encourages the use of project websites or other publicly accessible 
electronic means to make the EA available.
    (e) When a public hearing is held as part of the environmental 
review process for an action, the EA must be available at the public 
hearing and for a minimum of 15 days in advance of the public hearing. 
The applicant must 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 must 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 must 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 must 
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 must be made available for public 
review (including the affected units of government) for a minimum of 30 
days before the FHWA makes its final decision (See 40 CFR 
1501.4(e)(2)). This public availability must 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 must be prepared in accordance with 
the applicable provisions of that statute.


Sec.  771.121   Findings of no significant impact.

    (a) The Administration will review the EA, comments submitted on 
the EA (in writing or at a public hearing or meeting), and other 
supporting documentation, as appropriate. If the Administration agrees 
with the applicant's recommendations pursuant to Sec.  771.119(g), it 
will issue 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 must be sent by the applicant to the affected 
units of Federal, State and local government, and the document must be 
available from the applicant and the Administration upon request by the 
public. Notice must also be sent to the State intergovernmental review 
contacts established under Executive Order 12372. To minimize hardcopy 
requests and printing costs, the Administration encourages the use of 
project websites or other publicly accessible electronic means to make 
the FONSI available.
    (c) If another Federal agency has issued a FONSI on an action that 
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 issues have not been adequately identified and assessed, 
the Administration will require appropriate environmental studies.


Sec.  771.123   Draft environmental impact statements.

    (a) A draft EIS must 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 State or local level.
    (b)(1) 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, 
23 CFR part 450 Appendix A, 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 State or local level.
    (2) The lead agencies must establish a coordination plan, including 
a schedule, within 90 days of notice of intent publication.
    (c) The draft EIS must be prepared by the lead agencies, in 
cooperation with the applicant (if not a lead agency). The draft EIS 
must evaluate all reasonable alternatives to the action and document 
the reasons why other alternatives, which may have been considered, 
were eliminated from detailed study. The range of alternatives 
considered for further study must be used for all Federal environmental 
reviews and permit processes, to the maximum extent practicable and 
consistent with Federal law, unless the lead and participating agencies 
agree to modify the alternatives in order to address significant new 
information and circumstances or to fulfill NEPA responsibilities in a 
timely manner, in accordance with 23 U.S.C. 139(f)(4)(B). The draft EIS 
must 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). When FTA or the applicant, as 
joint lead agency, select a contractor to prepare the EIS, then the 
contractor must 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

[[Page 54504]]

section is completed (including FTA approval, in consultation with the 
applicant, of the scope of the EIS content). When FRA or the applicant, 
as joint lead agency, select a contractor to prepare the EIS, then the 
contractor must execute an FRA conflict of interest disclosure 
statement.
    (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 of the preferred alternative.
    (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 
other legal requirements, including 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.\3\
---------------------------------------------------------------------------

    \3\ FHWA Order 6640.1A clarifies the Federal Highway 
Administration's (FHWA) policy regarding the permissible project 
related activities that may be advanced prior to the conclusion of 
the NEPA 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 must be responsible 
for publication and distribution of the EIS. Normally, copies will be 
furnished free of charge. However, with Administration concurrence, the 
party requesting the draft EIS may be charged a fee that 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. To minimize 
hardcopy requests and printing costs, the Administration encourages the 
use of project websites or other publicly accessible electronic means 
to make the draft EIS available.
    (i) The applicant, on behalf of the Administration, must circulate 
the draft EIS for comment. The draft EIS must 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 must 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. The draft EIS must also 
be transmitted 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 transmittals must 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 
Sec.  771.111), the draft EIS must 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 must 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 must 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) must 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 must 
identify where comments are to be sent.


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), must combine the final EIS and 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
    (ii) There are significant new circumstances or information 
relevant to environmental concerns 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 must 
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 chapter.
    (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 
pursuant to 23 U.S.C. 139(n)(1) and 40 CFR 1503.4(c), which together 
must 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 must 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) will not establish a waiting period or a period of 
time for the return of comments on a combined final EIS/ROD. When filed 
with EPA, the combined final EIS/ROD must be available at the 
applicant's offices and at appropriate Administration offices. A copy 
should also be made available at institutions such as local government 
offices, libraries, and schools, as appropriate. To minimize hardcopy 
requests and printing costs, the Administration encourages the use of 
project websites or other publicly accessible electronic means to make 
the combined final EIS/ROD available.


Sec.  771.125   Final environmental impact statements.

    (a)(1) After circulation of a draft EIS and consideration of 
comments received, a final EIS must be prepared by the lead agencies, 
in cooperation with the applicant (if not a lead agency). The final EIS 
must identify the preferred alternative and evaluate all reasonable 
alternatives considered. It must also discuss substantive comments 
received on the draft EIS and responses thereto, summarize public 
involvement, and

[[Page 54505]]

describe the mitigation measures that are to be incorporated into the 
proposed action. Mitigation measures presented as commitments in the 
final EIS will be incorporated into the project as specified in 
paragraphs (b) and (d) of Sec.  771.109. The final EIS 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.
    (2) Every reasonable effort must be made to resolve interagency 
disagreements on actions before processing the final EIS. If 
significant issues remain unresolved, the final EIS must identify those 
issues and the consultations and other efforts made to resolve them.
    (b) The final EIS will be reviewed for legal sufficiency prior to 
Administration approval.
    (c) The Administration will indicate approval of the EIS for an 
action by signing and dating the cover page. Final EISs prepared for 
actions in the following categories will be submitted to the 
Administration's Headquarters for prior concurrence:
    (1) Any action for which the Administration determines that the 
final EIS should be reviewed at the Headquarters office. This would 
typically occur when the Headquarters office determines that:
    (i) Additional coordination with other Federal, State or local 
governmental agencies is needed;
    (ii) The social, economic, or environmental impacts of the action 
may need to be more fully explored;
    (iii) The impacts of the proposed action are unusually great; (iv) 
major issues remain unresolved; or
    (iv) The action involves national policy issues.
    (2) Any action to which a Federal, State or local government agency 
has indicated opposition on environmental grounds (which has not been 
resolved to the written satisfaction of the objecting agency).
    (d) Approval of the final EIS is not an Administration action as 
defined in Sec.  771.107 and does not commit the Administration to 
approve any future request for financial assistance to fund the 
preferred alternative.
    (e) The initial publication of the final EIS must be in sufficient 
quantity to meet the request for copies that 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 that 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 must 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 must 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 must 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. To minimize hardcopy requests and printing 
costs, the Administration encourages the use of project websites or 
other publicly accessible electronic means to make the final EIS 
available.
    (g) The final EIS may take the form of an errata sheet pursuant to 
23 U.S.C. 139(n)(1) and 40 CFR 1503.4(c).


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 chapter. To minimize 
hardcopy requests and printing costs, the Administration encourages the 
use of project websites or other publicly accessible electronic means 
to make the ROD available.
    (b) If the Administration subsequently wishes to approve an 
alternative that was not identified as the preferred alternative but 
was fully evaluated in the draft EIS, combined FEIS/ROD, or final EIS, 
or proposes to make substantial changes to the mitigation measures or 
findings discussed in the ROD, a revised or amended ROD must be subject 
to review by those Administration offices that reviewed the final EIS 
under Sec.  771.124(a) or Sec.  771.125(c). To the extent practicable, 
the approved revised or amended ROD must be provided to all persons, 
organizations, and agencies that received a copy of the final EIS.


Sec.  771.129  Re-evaluations.

    The Administration must 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 in this 
section.
    (a) The applicant must 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 must 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 must 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. 
These consultations will be documented when determined necessary by the 
Administration.


Sec.  771.130  Supplemental environmental impact statements.

    (a) A draft EIS, final EIS, or supplemental EIS may be supplemented 
at any time. An EIS must be supplemented whenever the Administration 
determines that:
    (1) Changes to the proposed action would result in significant 
environmental impacts that were not evaluated in the EIS; or
    (2) New information or circumstances relevant to environmental 
concerns and bearing on the proposed action or its impacts would result 
in significant environmental impacts not evaluated in the EIS.
    (b) However, a supplemental EIS will not be necessary where:
    (1) The changes to the proposed action, new information, or new

[[Page 54506]]

circumstances result in a lessening of adverse environmental impacts 
evaluated in the EIS without causing other environmental impacts that 
are significant and were not evaluated in the EIS; or
    (2) The Administration decides to approve an alternative fully 
evaluated in an approved final EIS but not identified as the preferred 
alternative. In such a case, a revised ROD must be prepared and 
circulated in accordance with Sec.  771.127(b).
    (c) Where the Administration is uncertain of the significance of 
the new impacts, the applicant will develop appropriate environmental 
studies or, if the Administration deems appropriate, an EA to assess 
the impacts of the changes, new information, or new circumstances. If, 
based upon the studies, the Administration determines that a 
supplemental EIS is not necessary, the Administration must so indicate 
in the project file.
    (d) A supplement is to be developed using the same process and 
format (i.e., draft EIS, final EIS, and ROD) as an original EIS, except 
that scoping is not required.
    (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 must 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 
must suspend any activities that would have an adverse environmental 
impact or limit the choice of reasonable alternatives, until the 
supplemental document is completed.


Sec.  771.131   Emergency action procedures.

    Responses to some emergencies and disasters are categorically 
excluded under Sec.  771.117 for FHWA, Sec.  771.118 for FTA, or Sec.  
771.116 for FRA. Otherwise, requests for deviations from the procedures 
in this part because of emergency circumstances (40 CFR 1506.11) must 
be referred to the Administration's Headquarters for evaluation and 
decision after consultation with CEQ.


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.  771.137   International actions.

    (a) The requirements of this part apply to:
    (1) Administration actions significantly affecting the environment 
of a foreign nation not participating in the action or not otherwise 
involved in the action.
    (2) Administration actions outside the U.S., its territories, and 
possessions that significantly affect natural resources of global 
importance designated for protection by the President or by 
international agreement.
    (b) If communication with a foreign government concerning 
environmental studies or documentation is anticipated, the 
Administration must coordinate such communication with the Department 
of State through the Office of the Secretary of Transportation.


Sec.  771.139   Limitations on actions.

    Notices announcing decisions by the Administration or by other 
Federal agencies on a transportation project may be published in the 
Federal Register indicating that such decisions are final within the 
meaning of 23 U.S.C. 139(l). Claims arising under Federal law seeking 
judicial review of any such decisions are time barred unless filed 
within 150 days after the date of publication of the limitations on 
claims notice by FHWA or FTA. Claims arising under Federal law seeking 
judicial review of any such decisions are time barred unless filed 
within 2 years after the date of publication of the limitations on 
claims notice by FRA. These time periods do not lengthen any shorter 
time period for seeking judicial review that otherwise is established 
by the Federal law under which judicial review is allowed.\4\ This 
provision does not create any right of judicial review or place any 
limit on filing a claim that a person has violated the terms of a 
permit, license, or approval.
---------------------------------------------------------------------------

    \4\ The FHWA published a detailed discussion of the Department's 
interpretation of 23 U.S.C. 139(l), together with information 
applicable to FHWA projects about implementation procedures for 23 
U.S.C. 139(l), in appendix E to the ``SAFETEA-LU Environmental 
Review Process: Final Guidance,'' dated November 15, 2006. The 
implementation procedures in appendix E apply only to FHWA projects. 
The section 6002 guidance, including appendix E, is available at 
http://www.fhwa.dot.gov/, or in hard copy by request.
---------------------------------------------------------------------------

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

0
2. 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; and, Pub. L. 114-94, 129 Stat. 1312, Sections 1303 and 11502.

0
3. Amend Sec.  774.3 by revising footnote 1 to read as follows:


Sec.  774.3  Section 4(f) approvals.

* * * * *
    \1\ FHWA Section 4(f) Programmatic Evaluations can be found at 
www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp.
* * * * *

0
4. Amend Sec.  774.11 by revising paragraph (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 document of public record created prior to 
or contemporaneously with the establishment of the park, recreation

[[Page 54507]]

area, or wildlife and waterfowl refuge. Examples of an adequate 
document to formally reserve a future transportation use include:
    (i) A map of public record 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 document of public record 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 document of public record 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 map of public record, 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
5. Amend Sec.  774.13 by revising paragraphs (a) and (e), and the 
introductory text of paragraph (g), to read as follows:


Sec.  774.13   Exceptions.

* * * * *
    (a) The use of historic transportation facilities in certain 
circumstances:
    (1) Common post-1945 concrete or steel bridges and culverts that 
are exempt from individual review under 54 U.S.C. 306108.
    (2) Improvement of railroad or rail transit lines that are in use 
or were historically used for the transportation of goods or 
passengers, including, but not limited to, maintenance, preservation, 
rehabilitation, operation, modernization, reconstruction, and 
replacement of railroad or rail transit line elements, except for:
    (i) Stations;
    (ii) Bridges or tunnels on railroad lines that have been abandoned, 
or transit lines not in use, over which regular service has never 
operated, and that have not been railbanked or otherwise reserved for 
the transportation of goods or passengers; and
    (iii) Historic sites unrelated to the railroad or rail transit 
lines.
    (3) Maintenance, preservation, rehabilitation, operation, 
modernization, reconstruction, or replacement of historic 
transportation facilities, if the Administration concludes, as a result 
of the consultation under 36 CFR 800.5, that:
    (i) Such work will not adversely affect the historic qualities of 
the facility that caused it to be on or eligible for the National 
Register, or this work achieves compliance with Section 106 through a 
program alternative under 36 CFR 800.14; and
    (ii) The official(s) with jurisdiction over the Section 4(f) 
resource have not objected to the Administration conclusion that the 
proposed work does not adversely affect the historic qualities of the 
facility that caused it to be on or eligible for the National Register, 
or the Administration concludes this work achieves compliance with 54 
U.S.C. 306108 (Section 106) through a program alternative under 36 CFR 
800.14.
* * * * *
    (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:
* * * * *

0
6. Amend Sec.  774.15 by revising paragraph (f)(2) to read as follows:


Sec.  774.15   Constructive use determinations.

* * * * *
    (f) * * *
    (2) For projected noise levels:
    (i) The impact of projected traffic noise levels of the proposed 
highway project on a noise-sensitive activity do not exceed the FHWA 
noise abatement criteria as contained in Table 1 in part 772 of this 
chapter; or
    (ii) The projected operational noise levels of the proposed transit 
or railroad project do not exceed the noise impact criteria for a 
Section 4(f) activity in the FTA guidelines for transit noise and 
vibration impact assessment or the moderate impact criteria in the FRA 
guidelines for high-speed transportation noise and vibration impact 
assessment;
* * * * *

0
7. Amend Sec.  774.17 by revising the definitions for 
``Administration,'' ``CE,'' and ``ROD,'' and adding definitions for 
``Railroad or Rail Transit Line Elements'' and ``Stations'' to read as 
follows:


Sec.  774.17   Definitions.

* * * * *
    Administration. The FHWA, FRA, or FTA, whichever is approving the 
transportation program or project at issue. A reference herein to the 
Administration means the State when the State is functioning as the 
FHWA, FRA, or FTA in carrying out responsibilities delegated or 
assigned to the State in accordance with 23 U.S.C. 325, 326, 327, or 
other applicable law.
* * * * *
    CE. Refers to a categorical exclusion, which is an action with no 
individual or cumulative significant environmental effect pursuant to 
40 CFR 1508.4 and Sec.  771.116, Sec.  771.117, or Sec.  771.118 of 
this chapter; unusual circumstances are taken into account in making 
categorical exclusion determinations.
* * * * *
    Railroad or rail transit line elements. Railroad or rail transit 
line elements include the elements related to the operation of the 
railroad or rail transit line, such as the railbed, rails, and track; 
tunnels; elevated support structures and bridges; substations; signal 
and communication devices; maintenance facilities; and railway-highway 
crossings.
    ROD. Refers to a record of decision prepared pursuant to 40 CFR 
1505.2 and Sec. Sec.  771.124 or 771.127 of this chapter.
* * * * *
    Station. A station is a platform and the associated building or 
structure such as a depot, shelter, or canopy used by intercity or 
commuter rail transportation passengers for the purpose of boarding and 
alighting a train. A station does not include tracks, railyards, or 
electrification, communications or signal systems, or equipment. A 
platform alone is not considered a station.
* * * * *

Title 49--Transportation

PART 264--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
8. Revise the authority citation for part 264 to read as follows:

     Authority:  42 U.S.C. 4321 et seq.; 49 U.S.C. 303; 23 U.S.C. 
139; 40 CFR parts 1500-1508; 49 CFR 1.81; Pub. L. 112-141, 126 Stat. 
405, Section 1319; and Pub. L. 114-94, 129 Stat. 1312, Sections 
1432, 11502, and 11503.

0
9. Revise the heading for part 264 to read as set forth above.

0
10. Revise Sec.  264.101 to read as follows:


Sec.  264.101  Cross reference to environmental impact and related 
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,

[[Page 54508]]

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.

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
11. Revise the 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; Pub. L. 112-141, 126 
Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319; and Pub. L. 
114-94, 129 Stat. 1312, Sections 1314 and 1432.

[FR Doc. 2018-23286 Filed 10-26-18; 8:45 am]
 BILLING CODE 4910-22-P