81 FR 34271 - Categorical Exclusions

DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Federal Transit Administration

Federal Register Volume 81, Issue 104 (May 31, 2016)

Page Range		34271-34274
FR Document		2016-12577
This final rule amends FHWA and FTA categorical exclusions (CE) for projects receiving limited Federal assistance to reflect a requirement in the Fixing America's Surface Transportation (FAST) Act to index for inflation the monetary thresholds for these CEs. This final rule also implements a provision in the FAST Act that directs FHWA to amend its rules on programmatic agreements for CEs. The amendments contained in this rule reflect statutory language in the FAST Act.
Federal Register, Volume 81 Issue 104 (Tuesday, May 31, 2016)
[Federal Register Volume 81, Number 104 (Tuesday, May 31, 2016)]
[Rules and Regulations]
[Pages 34271-34274]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-12577]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 771

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2016-0008]
RIN 2125-AF69; 2132-AB29


Categorical Exclusions

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

ACTION: Final rule.

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SUMMARY: This final rule amends FHWA and FTA categorical exclusions 
(CE) for projects receiving limited Federal assistance to reflect a 
requirement in the Fixing America's Surface Transportation (FAST) Act 
to index for inflation the monetary thresholds for these CEs. This 
final rule also implements a provision in the FAST Act that directs 
FHWA to amend its rules on programmatic agreements for CEs. The 
amendments contained in this rule reflect statutory language in the 
FAST Act.

DATES:  Effective on June 30, 2016.

FOR FURTHER INFORMATION CONTACT: For the Federal Highway 
Administration: Owen Lindauer, Ph.D., Office of Project Delivery and 
Environmental Review, HEPE, (202) 366-2655, [email protected], or 
Jennifer Mayo, Office of the Chief Counsel, (202) 366-1523, 
[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 
FHWA and FTA are both 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: 

Electronic Access and Filing

    This document may be viewed online through the Federal eRulemaking 
portal at http://www.regulations.gov. Retrieval help and guidelines are 
available on the Web site. It is available 24 hours each day, 365 days 
a year. An electronic copy of this document may also be downloaded from 
the Office of the Federal Register home page at: http://www.ofr.gov and 
the Government Printing Office Web page at: http://www.thefederalregister.org.

Background

    On December 4, 2015, President Obama signed into law the FAST Act, 
Public Law 114-94, 129 Stat. 1312, which contains new requirements that 
FHWA and FTA (hereafter referred to as ``the Agencies'') must meet in 
complying with the National Environmental Policy Act (NEPA) (42 U.S.C. 
4321 et seq.). Section 1314(a) of the FAST Act amends section 1317 of 
the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public 
Law 112-141, 126 Stat. 405, by inserting ``(as adjusted annually by the 
Secretary to reflect any increases in the Consumer Price Index prepared 
by the Department of Labor)'' after ``$5,000,000'' in paragraph (1)(A) 
and after ``$30,000,000'' in paragraph (1)(B) of the CE for projects 
receiving limited Federal financial assistance. The Agencies relied on 
the authority in MAP-21, section 1317 to establish limited Federal 
financial assistance CEs for FHWA at 23 CFR 771.117(c)(23) and for FTA 
at 23 CFR 771.118(c)(13). Those CEs were published in a final rule in 
the Federal Register on January 13, 2014 (79 FR 2107). With this final 
rule, the Agencies are amending the limited Federal financial 
assistance CEs to incorporate the adjustment for inflation requirement 
created by the FAST Act.
    The Agencies included a reference to their respective Web sites 
(www.fhwa.dot.gov and www.fta.dot.gov) in the CE language in order to 
provide a source for locating the consumer price index (CPI), as 
adjusted annually. Per the FAST Act, section 1314(b), the first 
adjustment made pursuant to section 1314(a) must reflect the increase 
in the CPI since July 1, 2012. The Agencies divided the November 2015 
CPI figure (237.336)--the latest data from the Department of Labor--by 
the July 2012 CPI figure (229.104), and multiplied the product (1.0359) 
by $5,000,000. The resulting value is $5,179,656.40, which is the $5 
million limit found in sections 771.117(c)(23)(i) and 771.118(c)(13)(i) 
after adjusting for inflation, and should be considered when applying 
the limited Federal financial assistance CE to projects during the 2016 
calendar year. Similarly, to determine the inflation figure for 
subparagraph (ii) under sections 771.117(c)(23) and 771.118(c)(13), the 
Agencies multiplied 1.0359 by $30,000,000 with the following result: 
$31,077,938.44. These figures ($5,179,656.40 and $31,077,938.44) are 
posted on the Agencies' Web sites and will be updated annually in 
January of subsequent years. Posting these figures also complies with

[[Page 34272]]

section 1314(b)(1) which requires providing the first adjustment ``not 
later than 60 days after the date of enactment of [the FAST] Act.''
    Section 1315(b) requires FHWA to revise its CE regulation on 
programmatic agreements. Specifically, FHWA must revise 23 CFR 
771.117(g) to allow a State Department of Transportation (State DOT) to 
make a CE determination on behalf of FHWA. The revision must clarify 
that the authority under such agreements may include the responsibility 
to make CE determinations for actions described in 23 CFR 771.117(c)-
(d) that meet the criteria for a CE under 40 CFR 1508.4 (the 
President's Council on Environmental Quality's Regulations for 
Implementing the Procedural Provisions of NEPA) and are identified in 
the programmatic agreement.
    This rulemaking adopts the language used in FAST Act section 
1315(b) with two minor changes to retain the style used throughout the 
regulation: FHWA uses the abbreviation ``CE'' instead of ``categorical 
exclusion'' and ``40 CFR 1508.4'' instead of the statutory language of 
``section 1508.4 of title 40, Code of Federal Regulations.'' The rule 
set forth below incorporates the new phrase ``and that meet the 
criteria for a CE under 40 CFR 1508.4, and are identified in the 
programmatic agreement'' into the otherwise existing regulatory 
language in 23 CFR 771.117(g). The FHWA reprints below the paragraph 
771.117(g) to show how the statutory language is incorporated into the 
paragraph as a whole.
    The Agencies have determined that a final rule is appropriate in 
this instance because the language in the FAST Act is clear and does 
not require interpretive text. Therefore the amendments to 23 CFR 
771.117(c)(23), 23 CFR 771.118(c)(13), and 23 CFR 771.117(g) follow the 
statutory language without substantive modification.
    Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency 
may waive the normal notice and comment procedure if it finds, for good 
cause, that it would be impracticable, unnecessary, or contrary to the 
public interest. The Agencies find good cause as notice and comment for 
this rule would be unnecessary due to the nature of the revisions 
(i.e., the rule simply incorporates the statutory language found in 
sections 1315(b) and 1314 of FAST without interpretation). The 
statutory language does not require regulatory interpretation to carry 
out its intent. The regulatory amendments in this final rule 
incorporate the statutory language, and comments cannot alter the 
regulation given the explicit mandate. Accordingly, the Agencies find 
good cause under 5 U.S.C. 553(b)(3)(B) to waive notice and opportunity 
for comment.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    The Agencies have determined this action is not a significant 
regulatory action within the meaning of Executive Order 12866, and 
within the meaning of the U.S. Department of Transportation's 
regulatory policies and procedures. Since this rulemaking implements a 
congressional mandate to allow States to make a CE determination on 
behalf of FHWA in specific instances and to adjust existing monetary-
based CEs for inflation, the Agencies anticipate that the economic 
impact of this rulemaking would be minimal. This final rule will not 
adversely affect, in a material way, any sector of the economy. 
Additionally, this action complies with the principles of Executive 
Order 13563. In addition, these changes will not interfere with any 
action taken or planned by another agency and would not materially 
alter the budgetary impact of any entitlements, grants, user fees, or 
loan programs. Consequently, a full regulatory evaluation is not 
required.

Regulatory Flexibility Act

    Since the Agencies find good cause under 5 U.S.C. 553(b)(3)(B) to 
waive notice and opportunity for comment for this rule, the provisions 
of the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) do 
not apply. However, the Agencies evaluated the effects of this action 
on small entities and determined the action would not have a 
significant economic impact on a substantial number of small entities. 
This final rule will not make any substantive changes to the Agencies' 
regulations or in the way that the Agencies' regulations affect small 
entities; it merely incorporates statutory text. For this reason, the 
Agencies certify that this action will not have a significant economic 
impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, 
March 22, 1995) as it will not result in the expenditure by State, 
local, tribal governments, in the aggregate, or by the private sector, 
of $155 million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. This action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132 dated August 4, 1999, and the Agencies determined this 
action will not have a substantial direct effect or sufficient 
federalism implications on the States. The Agencies also determined 
this action will not preempt any State law or regulation or affect the 
States' ability to discharge traditional State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities apply 
to this program.

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 analyzed this 
final rule under the PRA and determined this rule does not contain 
collection of information requirements for the purposes of the PRA.

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 
Environmental Impact Statement; those that normally require preparation 
of an Environmental Assessment; and those that are categorically 
excluded from further NEPA review (40 CFR 1507.3(b)). The CEQ 
regulations do not direct agencies to prepare a NEPA analysis or 
document before establishing Agency procedures (such as this 
regulation) that supplement the CEQ regulations for implementing NEPA. 
The changes

[[Page 34273]]

proposed in this rule are part of those agency procedures, and 
therefore establishing the proposed changes does not require 
preparation of a NEPA analysis or document. Agency NEPA procedures are 
generally procedural guidance to assist agencies in the fulfillment of 
agency responsibilities under NEPA, but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular proposed action. The requirements for establishing agency 
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a), 77 FR 27534 (May 10, 2012) (available online at 
www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve environmental 
justice (EJ) as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority 
populations and low-income populations in the United States. The DOT 
Order requires DOT agencies to address compliance with the Executive 
Order and the DOT Order in all rulemaking activities. In addition, the 
Agencies have issued additional documents relating to administration of 
the Executive Order and the DOT Order. On June 14, 2012, FHWA issued an 
update to its EJ order, FHWA Order 6640.23A, FHWA Actions to Address 
Environmental Justice in Minority Populations and Low Income 
Populations (available online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.cfm). The FTA also issued an update to its EJ policy, 
FTA Policy Guidance for Federal Transit Recipients, 77 FR 42077 (July 
17, 2012) (available online at http://www.fta.dot.gov/legislation_law/12349_14740.html).
    The Agencies have evaluated this final rule under the Executive 
Order, the DOT Order, the FHWA Order, and FTA Policy Guidance. They 
determined that the amendment would not cause disproportionately high 
and adverse human health and environmental effects on minority or low 
income populations.
    At the time the Agencies apply the NEPA implementing procedures in 
23 CFR part 771, they would have an independent obligation to conduct 
an evaluation of the proposed action under the applicable EJ orders and 
guidance to determine whether the proposed action has the potential for 
EJ effects. The rule would not affect the scope or outcome of that EJ 
evaluation. In any instance where there are potential EJ effects 
resulting from a proposed Agency action covered under any of the NEPA 
classes of action in 23 CFR part 771, public outreach under the 
applicable EJ orders and guidance would provide affected populations 
with the opportunity to raise any concerns about those potential EJ 
effects. See DOT Order 5610.2(a), FHWA Order 6640.23A, and FTA Policy 
Guidance for Transit Recipients (available at links above). Indeed, 
outreach to ensure the effective involvement of minority and low income 
populations where there is potential for EJ effects is a core aspect of 
the EJ orders and guidance. For these reasons, the Agencies have 
determined that no further EJ analysis is needed and no mitigation is 
required in connection with the proposed revisions to the Agencies' 
NEPA regulations (23 CFR parts 771).

Executive Order 12630 (Taking of Private Property)

    The Agencies have analyzed this final rule under Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights. The Agencies found this final rule will not 
affect a taking of private property or otherwise have taking 
implications under Executive Order 12630.

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 analyzed this rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. The Agencies certify that this action would not cause an 
environmental risk to health or safety that might disproportionately 
affect children.

Executive Order 13175 (Tribal Consultation)

    The Agencies have analyzed this action under Executive Order 13175, 
dated November 6, 2000, and determined the action will not have 
substantial direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal laws. This final rule 
addresses obligations of Federal funds to States for Federal-aid 
highway projects and Federal funds to transit agencies for Federal 
public transportation projects and will not impose any direct 
compliance requirements on Indian tribal governments. 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 determined this rule is not a 
significant energy action under that order since it is not a 
significant regulatory action under Executive Order 12866 and is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects is not required.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN number 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

    Categorical exclusions, Environmental review process, Environmental 
protection, Grant programs--transportation, Highways and roads, 
Programmatic approaches, Reporting and recordkeeping requirements.

49 CFR Part 622

    Categorical exclusions, Environmental review process, Environmental 
protection, Grant programs--transportation, Public transportation, 
Transit.

    Issued on: May 20, 2016.
Gregory G. Nadeau,
Federal Highway Administrator.
Carolyn Flowers,
Acting Administrator, Federal Transit Administration.

    In consideration of the foregoing, the Agencies amend title 23, 
Code of

[[Page 34274]]

Federal Regulations part 771, and title 49, Code of Federal Regulations 
part 662, as follows:

TITLE 23--Highways

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
1. Revise the authority citation for part 771 to read as follows:

    Authority:  42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 
138, 139, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR parts 1500-
1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119 Stat. 1144, 
Sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, Sections 
1315, 1316, 1317, 1318, and 1319; Pub. L. 114-94, 129 Stat. 1312, 
Sections 1314 and 1315.


0
2. Revise Sec.  771.117(c)(23) and (g) introductory text to read as 
follows:


Sec.  771.117  FHWA categorical exclusions.

* * * * *
    (c) * * *
    (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.
* * * * *
    (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:
* * * * *

0
3. Revise Sec.  771.118(c)(13) to read as follows:


Sec.  771.118  FTA categorical exclusions.

* * * * *
    (c) * * *
    (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
    (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.
* * * * *

TITLE 49--Transportation

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
4. 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, Section 1314.

[FR Doc. 2016-12577 Filed 5-27-16; 8:45 am]
 BILLING CODE 4910-22-P
34272 Federal Register / Vol. 81, No. 104 / Tuesday, May 31, 2016 / Rules and Regulations

section 1314(b)(1) which requires mandate. Accordingly, the Agencies private sector, of $155 million or more
providing the first adjustment ‘‘not later find good cause under 5 U.S.C. in any one year (2 U.S.C. 1532).
than 60 days after the date of enactment 553(b)(3)(B) to waive notice and
Executive Order 13132 (Federalism
of [the FAST] Act.’’ opportunity for comment.
Section 1315(b) requires FHWA to Assessment)
revise its CE regulation on Rulemaking Analyses and Notices Executive Order 13132 requires
programmatic agreements. Specifically, Executive Order 12866 (Regulatory agencies to assure meaningful and
FHWA must revise 23 CFR 771.117(g) to Planning and Review), Executive Order timely input by State and local officials
allow a State Department of 13563 (Improving Regulation and in the development of regulatory
Transportation (State DOT) to make a Regulatory Review), and DOT policies that may have a substantial,
CE determination on behalf of FHWA. Regulatory Policies and Procedures direct effect on the States, on the
The revision must clarify that the relationship between the national
authority under such agreements may The Agencies have determined this government and the States, or on the
include the responsibility to make CE action is not a significant regulatory distribution of power and
determinations for actions described in action within the meaning of Executive responsibilities among the various
23 CFR 771.117(c)–(d) that meet the Order 12866, and within the meaning of levels of government. This action has
criteria for a CE under 40 CFR 1508.4 the U.S. Department of Transportation’s been analyzed in accordance with the
(the President’s Council on regulatory policies and procedures. principles and criteria contained in
Environmental Quality’s Regulations for Since this rulemaking implements a Executive Order 13132 dated August 4,
Implementing the Procedural Provisions congressional mandate to allow States to 1999, and the Agencies determined this
of NEPA) and are identified in the make a CE determination on behalf of action will not have a substantial direct
programmatic agreement. FHWA in specific instances and to effect or sufficient federalism
This rulemaking adopts the language adjust existing monetary-based CEs for implications on the States. The
used in FAST Act section 1315(b) with inflation, the Agencies anticipate that Agencies also determined this action
two minor changes to retain the style the economic impact of this rulemaking will not preempt any State law or
used throughout the regulation: FHWA would be minimal. This final rule will regulation or affect the States’ ability to
uses the abbreviation ‘‘CE’’ instead of not adversely affect, in a material way, discharge traditional State governmental
‘‘categorical exclusion’’ and ‘‘40 CFR any sector of the economy. functions.
1508.4’’ instead of the statutory Additionally, this action complies with
language of ‘‘section 1508.4 of title 40, the principles of Executive Order 13563. Executive Order 12372
Code of Federal Regulations.’’ The rule In addition, these changes will not (Intergovernmental Review)
set forth below incorporates the new interfere with any action taken or The regulations implementing
phrase ‘‘and that meet the criteria for a planned by another agency and would Executive Order 12372 regarding
CE under 40 CFR 1508.4, and are not materially alter the budgetary intergovernmental consultation on
identified in the programmatic impact of any entitlements, grants, user Federal programs and activities apply to
agreement’’ into the otherwise existing fees, or loan programs. Consequently, a this program.
regulatory language in 23 CFR full regulatory evaluation is not
771.117(g). The FHWA reprints below required. Paperwork Reduction Act
the paragraph 771.117(g) to show how Under the Paperwork Reduction Act
Regulatory Flexibility Act
the statutory language is incorporated of 1995 (PRA) (44 U.S.C. 3501, et seq.),
into the paragraph as a whole. Since the Agencies find good cause Federal agencies must obtain approval
The Agencies have determined that a under 5 U.S.C. 553(b)(3)(B) to waive from the Office of Management and
final rule is appropriate in this instance notice and opportunity for comment for Budget for each collection of
because the language in the FAST Act this rule, the provisions of the information they conduct, sponsor, or
is clear and does not require interpretive Regulatory Flexibility Act (Pub. L. 96– require through regulations. The
text. Therefore the amendments to 23 354, 5 U.S.C. 601–612) do not apply. Agencies analyzed this final rule under
CFR 771.117(c)(23), 23 CFR However, the Agencies evaluated the the PRA and determined this rule does
771.118(c)(13), and 23 CFR 771.117(g) effects of this action on small entities not contain collection of information
follow the statutory language without and determined the action would not requirements for the purposes of the
substantive modification. have a significant economic impact on PRA.
Under the Administrative Procedure a substantial number of small entities.
Act (5 U.S.C. 553(b)), an agency may This final rule will not make any National Environmental Policy Act
waive the normal notice and comment substantive changes to the Agencies’ Agencies are required to adopt
procedure if it finds, for good cause, that regulations or in the way that the implementing procedures for NEPA that
it would be impracticable, unnecessary, Agencies’ regulations affect small establish specific criteria for, and
or contrary to the public interest. The entities; it merely incorporates statutory identification of, three classes of
Agencies find good cause as notice and text. For this reason, the Agencies actions: Those that normally require
comment for this rule would be certify that this action will not have a preparation of an Environmental Impact
unnecessary due to the nature of the significant economic impact on a Statement; those that normally require
revisions (i.e., the rule simply substantial number of small entities. preparation of an Environmental
incorporates the statutory language Assessment; and those that are
Unfunded Mandates Reform Act of 1995
asabaliauskas on DSK3SPTVN1PROD with RULES

found in sections 1315(b) and 1314 of categorically excluded from further
FAST without interpretation). The This final rule does not impose NEPA review (40 CFR 1507.3(b)). The
statutory language does not require unfunded mandates as defined by the CEQ regulations do not direct agencies
regulatory interpretation to carry out its Unfunded Mandates Reform Act of 1995 to prepare a NEPA analysis or document
intent. The regulatory amendments in (Pub. L. 104–4, 109 Stat. 48, March 22, before establishing Agency procedures
this final rule incorporate the statutory 1995) as it will not result in the (such as this regulation) that
language, and comments cannot alter expenditure by State, local, tribal supplement the CEQ regulations for
the regulation given the explicit governments, in the aggregate, or by the implementing NEPA. The changes

VerDate Sep<11>2014 16:39 May 27, 2016 Jkt 238001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\31MYR1.SGM 31MYR1
34274 Federal Register / Vol. 81, No. 104 / Tuesday, May 31, 2016 / Rules and Regulations

Federal Regulations part 771, and title annually by the Secretary to reflect any from acquiring a lease or an interest in
49, Code of Federal Regulations part increases in the Consumer Price Index a lease on the Outer Continental Shelf
662, as follows: prepared by the Department of Labor, (OCS). The title, as well as the verbiage,
see www.fhwa.dot.gov or of § 556.403 in the final Leasing Rule,
TITLE 23—Highways
www.fta.dot.gov) and Federal funds states that BOEM may disqualify entities
PART 771—ENVIRONMENTAL IMPACT comprising less than 15 percent of the from ‘‘holding,’’ a lease or lease interest
AND RELATED PROCEDURES total estimated project cost. on the OCS. This could be interpreted
* * * * * to imply that BOEM would not allow a
■ 1. Revise the authority citation for part disqualified party to retain a pre-
771 to read as follows: TITLE 49—Transportation existing OCS lease interest. That
Authority: 42 U.S.C. 4321 et seq.; 23 interpretation is incorrect. Disqualified
PART 622—ENVIRONMENTAL IMPACT entities may not acquire new leases or
U.S.C. 106, 109, 128, 138, 139, 315, 325, 326, AND RELATED PROCEDURES
and 327; 49 U.S.C. 303; 40 CFR parts 1500– lease interests, but they may continue to
1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. ■ 4. Revise the authority citation for part hold existing leases or lease interests.
109–59, 119 Stat. 1144, Sections 6002 and
622 to read as follows: BOEM is correcting the wording of
6010; Pub. L. 112–141, 126 Stat. 405, § 556.403 to avoid the implication that
Sections 1315, 1316, 1317, 1318, and 1319; Authority: 42 U.S.C. 4321 et seq.; 49 the use of the word ‘‘hold’’ might
Pub. L. 114–94, 129 Stat. 1312, Sections 1314 U.S.C. 303 and 5323(q); 23 U.S.C. 139 and authorize BOEM, under the conditions
and 1315. 326; Pub. L. 109–59, 119 Stat. 1144, Sections
stated in § 556.403, to require forfeiture
6002 and 6010; 40 CFR parts 1500–1508; 49
■ 2. Revise § 771.117(c)(23) and (g) CFR 1.81; Pub. L. 112–141, 126 Stat. 405, of leases already acquired. The final rule
introductory text to read as follows: Sections 1315, 1316, 1317, 1318, and 1319; was issued under Docket ID: MMS–
and Pub. L. 114–94, 129 Stat. 1312, Section 2007–OMM–0069, which has expired
§ 771.117 FHWA categorical exclusions. and is no longer accessible. Therefore,
1314.
* * * * * BOEM is utilizing a new Docket ID for
[FR Doc. 2016–12577 Filed 5–27–16; 8:45 am]
(c) * * * this correction (BOEM–2016–0031).
(23) Federally-funded projects: BILLING CODE 4910–22–P
(i) That receive less than $5,000,000 Procedural Requirements
(as adjusted annually by the Secretary to Section V, Legal and Regulatory
reflect any increases in the Consumer DEPARTMENT OF THE INTERIOR Analyses, of the final rule issued on
Price Index prepared by the Department March 30, 2016 (81 FR 18145),
of Labor, see www.fhwa.dot.gov or Bureau of Ocean Energy Management summarizes BOEM’s analyses of that
www.fta.dot.gov) of Federal funds; or rule pursuant to applicable statutes and
(ii) With a total estimated cost of not 30 CFR Part 556 executive orders. This amendment does
more than $30,000,000 (as adjusted [Docket ID: BOEM–2016–0031] not change the conclusions described in
annually by the Secretary to reflect any that section because the amendment
increases in the Consumer Price Index RIN 1010–AD06 conforms the regulatory text to BOEM’s
prepared by the Department of Labor, intent in the final rule, as then analyzed.
see www.fhwa.dot.gov or Leasing of Sulfur or Oil and Gas in the
Therefore, no additional analysis is
www.fta.dot.gov) and Federal funds Outer Continental Shelf; Correction
necessary.
comprising less than 15 percent of the MMAA104000 The Administrative Procedure Act, 5
total estimated project cost. AGENCY: Bureau of Ocean Energy U.S.C. 553(b), provides that, when an
* * * * * Management (BOEM), Interior. agency for good cause finds that ‘‘notice
(g) FHWA may enter into ACTION: Final rule; correction.
and public procedure . . . are
programmatic agreements with a State impracticable, unnecessary, or contrary
to allow a State DOT to make a NEPA SUMMARY: On March 30, 2016, the to the public interest,’’ the agency may
CE certification or determination and Bureau of Ocean Energy Management issue a rule without providing notice
approval on FHWA’s behalf, for CEs (BOEM) published in the Federal and an opportunity for prior public
specifically listed in paragraphs (c) and Register a final rule that updates and comment. To the extent this rule has
(d) of this section and that meet the streamlines the Outer Continental Shelf substantive effects, it is to relieve
criteria for a CE under 40 CFR 1508.4, (OCS) oil and gas and sulfur leasing regulated parties from sanctions. It does
and are identified in the programmatic regulations, which will become effective not require any party to change its
agreement. Such agreements must be on May 31, 2016 (81 FR 18111) conduct, and it does not change the
subject to the following conditions: (‘‘Leasing Rule’’). One of the regulations rights of any party affected by the final
* * * * * contained in the final rule was rule. Therefore, BOEM believes that the
incorrectly stated. This document public would not be interested in
■ 3. Revise § 771.118(c)(13) to read as
corrects that error commenting on this correction, and thus
follows:
notice and comment are unnecessary.
DATES: This correction is effective on
§ 771.118 FTA categorical exclusions. Moreover, if BOEM were to first publish
May 31, 2016.
* * * * * a proposed rule, allow the public
FOR FURTHER INFORMATION CONTACT: sufficient time to submit comments,
(c) * * *
Robert Sebastian, Office of Policy, analyze the comments, and then publish
(13) Federally-funded projects:
asabaliauskas on DSK3SPTVN1PROD with RULES

(i) That receive less than $5,000,000 Regulation and Analysis at (504) 736– a final rule, it would not be possible to
(as adjusted annually by the Secretary to 2761 or email at robert.sebastian@ correct this error and make it effective
reflect any increases in the Consumer boem.gov. on the same day as the earlier final rule,
Price Index prepared by the Department SUPPLEMENTARY INFORMATION: May 31, 2016. Accordingly, notice and
of Labor, see www.fhwa.dot.gov or comment is impracticable. For these
Need for Correction reasons, BOEM finds that soliciting
www.fta.dot.gov) of Federal funds; or
(ii) With a total estimated cost of not BOEM has the authority, under public comment is unnecessary and
more than $30,000,000 (as adjusted certain conditions, to disqualify a party impracticable and that there is good

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Document Created: 2016-05-28 03:58:00
Document Modified: 2016-05-28 03:58:00
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective on June 30, 2016.
Contact		For the Federal Highway Administration: Owen Lindauer, Ph.D., Office of Project Delivery and Environmental Review, HEPE, (202) 366-2655, [email protected], or Jennifer Mayo, Office of the Chief Counsel, (202) 366-1523, [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 FHWA and FTA are both 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.
FR Citation		81 FR 34271
RIN Number		2125-AF69 and 2132-AB29
CFR Citation		23 CFR 771 49 CFR 622
CFR Associated		Categorical Exclusions; Environmental Review Process; Environmental Protection; Grant Programs-Transportation; Highways and Roads; Programmatic Approaches; Reporting and Recordkeeping Requirements; Public Transportation and Transit
81 FR 34271 - Categorical Exclusions

DEPARTMENT OF TRANSPORTATIONFederal Highway AdministrationFederal Transit Administration

Federal Register Volume 81, Issue 104 (May 31, 2016)

DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Federal Transit Administration
