82 FR 45220 - Program for Eliminating Duplication of Environmental Reviews
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration Federal Register Volume 82, Issue 187 (September 28, 2017)
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
Federal Register Volume 82, Issue 187 (September 28, 2017)
| Page Range | 45220-45228 | |
| FR Document | 2017-20561 |
[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)] [Proposed Rules] [Pages 45220-45228] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-20561] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Parts 778 and 773 Federal Railroad Administration 49 CFR Part 264 Federal Transit Administration 49 CFR Part 622 [Docket No. FHWA-2016-0037] FHWA RIN 2125-AF73: FRA RIN 2130-AC66: FTA RIN 2132-AB32 Program for Eliminating Duplication of Environmental Reviews AGENCY: Federal Highway Administration (FHWA), Federal Railroad Administration (FRA), Federal Transit Administration (FTA), DOT. ACTION: Notice of proposed rulemaking (NPRM); request for comments. ----------------------------------------------------------------------- SUMMARY: This NPRM provides interested parties with the opportunity to comment on proposed regulations governing the U.S. Department of Transportation's (DOT) Program for Eliminating Duplication of Environmental Reviews (Program) established by Section 1309 of the Fixing America's Surface Transportation Act (FAST Act). Section 1309 directed the U.S. Secretary of Transportation (Secretary) to establish a pilot program authorizing up to five States to conduct environmental reviews and make approvals for projects under State environmental laws and regulations instead of the National Environmental Policy Act (NEPA). The FAST Act requires the Secretary, in consultation with the Chair of the Council on Environmental Quality (CEQ), to promulgate regulations to implement the requirements of the Program, including application requirements and criteria necessary to determine whether State laws and regulations are at least as stringent as the applicable Federal law. The FHWA, FRA, and FTA, hereinafter referred to as ``the Agencies,'' are proposing these regulations on behalf of the Secretary and seek comments on the proposals contained in this NPRM. This rule would also implement a provision in Section 1308 of the FAST Act that amends the corrective action period that the Agencies must provide to a State participating in the Surface Transportation Project Delivery Program (Section 327 Program). DATES: Comments must be received on or before November 27, 2017. ADDRESSES: You may submit comments, identified by the document number at the top of this document, by any of the following methods:Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor Room W12-140, Washington, DC 20590. Hand Delivery/Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Ave. SE., between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329. Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to www.regulations.gov, including any personal information provided. Docket: For access to the docket to read background documents or comments received, go to www.regulations.gov. FOR FURTHER INFORMATION CONTACT: For FHWA, James Gavin, Office of Project Development and Environmental Review, (202) 366-1473, or Diane Mobley, Office of Chief Counsel, (202) 366-1366. For FRA, Michael Johnsen, Office of Railroad Policy and Development, (202) 493-1310, or Chris Van Nostrand, Office of Chief Counsel, (202) 493-6058. For FTA, Megan Blum, Office of Planning and Environment, (202) 366-0463, or Helen Serassio, Office of Chief Counsel, (202) 366-1974. The Agencies are located at 1200 New Jersey Ave. SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:00 p.m. ET, Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Background On December 4, 2015, President Obama signed into law the FAST Act (Pub. L. 114-94, 129 Stat. 1312), which contains new requirements related to the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). Section 1309 of the FAST Act, codified at 23 U.S.C. 330, established a pilot program that allows the Secretary to approve up to five States to use one or more State environmental laws instead of NEPA for environmental review of surface transportation projects. In order to be eligible to participate in the Program, a State must have assumed the Secretary's responsibilities for environmental [[Page 45221]] reviews under 23 U.S.C. 327. To participate in the Program, a State must submit an application and enter into an agreement with DOT. Section 1308(5) of the FAST Act amended the 23 U.S.C. 327(j) termination procedures for the Section 327 Program by: (1) Changing the number of days for corrective action the Agencies must provide to the State from 30 days to not less than 120 calendar days, and 2) upon the request of the Governor of the State, requiring the Agencies provide a detailed description of each responsibility in need of corrective action. Under Section 1309 of the FAST Act (23 U.S.C. 330), DOT, in consultation with the Chair of CEQ, must promulgate regulations implementing the requirements of that provision. The proposed regulations would establish the Program, specify the information that applicants must submit to participate in the Program, and define the criteria the Agencies, in consultation with the Office of the Secretary and with the concurrence of the Chair of CEQ, will use to determine whether a State law or regulation is as stringent as the Federal requirements under NEPA, the procedures implementing NEPA, and NEPA- related regulations and Executive Orders. This NPRM proposes regulations establishing the Program and requests the public's comments. Section-by-Section Discussion of the Proposals 23 CFR Part 778--Pilot Program for Eliminating Duplication of Environmental Reviews The Agencies propose a title to this part that clearly describes the Program's scope. Section 778.101 Purpose The Agencies propose a section to explain the purpose of the Program. Section 778.103 Eligibility and Certain Limitations The Agencies propose a section describing the Program's eligibility requirements and the limitations of a State's participation. This section proposes four requirements necessary for a State to participate in the Program. First, a State must act through the Governor or top-ranking State transportation official who is charged with responsibility for highway construction. Second, a State must expressly consent to the exclusive jurisdiction of the U.S. District Courts for compliance, discharge, and enforcement of any responsibility under this Program. Third, a State must have assumed the responsibilities of the Secretary under 23 U.S.C. 327. Fourth, a State must have laws in effect authorizing the State to take the actions necessary to carry out the alternative environmental review and approval procedures under State laws and regulations. Section 778.103 identifies two conditions governing a State's participation in the Program. First, State environmental laws and regulations may only be substituted as a means for complying with NEPA, procedures governing the implementation of NEPA, and related regulations and Executive Orders. Second, compliance with State environmental laws and regulations does not substitute for compliance with any other applicable Federal environmental requirements. Section 778.105 Application Requirements for Participation in the Program The Agencies propose a section describing the required content of an eligible State's application to participate in the Program. To participate in the Program, any eligible State would submit an application that includes: (1) A full and complete description of the alternative environmental review and approval procedures the State proposes to use, including (i) the procedures the State uses to engage the public and consider alternatives to the proposed action; and (ii) the extent to which the State considers environmental consequences or impacts on resources potentially impacted by the proposed actions (40 CFR 1508.7 and 1508.8). (2) Identification of each Federal environmental requirement the State is seeking to substitute, within the limitations of this section; (3) Identification of each State environmental law and regulation that the State intends to substitute for a Federal environmental requirement, within the limitations of this section; (4) A detailed explanation of how the State environmental law and regulation intended to substitute for a Federal environmental requirement is at least as stringent as the Federal requirement; (5) A detailed description of the projects or classes of transportation projects for which the State anticipates exercising the authority that may be granted under the Program; (6) Verification that the State has the financial and personnel resources necessary to carry out the Program; (7) Evidence that the State has sought public comments on its application prior to its submittal and the State's response to any comments it received; (8) A point of contact for questions regarding the application and a point of contact regarding potential implementation of the Program (if different); (9) Certification and explanation by the State's Attorney General or other State official legally empowered by State law to issue legal opinions that bind the State that the State has legal authority to enter into the Program, and that the State consents to exclusive Federal court jurisdiction for the compliance, discharge, and enforcement of any responsibility under this Program; (10) Certification by the State's Attorney General or other State official legally empowered by State law to issue legal opinions that bind the State that the State has laws that are comparable to the Freedom of Information Act (FOIA), 5 U.S.C. 552, including providing that any decision regarding the public availability of a document under those laws is reviewable by a court of competent jurisdiction; and (11) The State Governor's (or in the case of the District of Columbia, the Mayor's) or the State's top ranking transportation official's signature approving the application. Section 778.107 Application Review and Approval The Agencies propose a section establishing the review and approval process for a State's application to the Program. To begin the review and approval process, the applicable Operating Administration also would solicit public comments on a State's complete application and would consider comments before making a decision on the application. In addition to the State's application, the Operating Administration may provide other documents for public review such as a draft of the proposed agreement. After receiving a complete application, the Operating Administration would have 120 calendar days to make a decision on the State's application. The Operating Administration would transmit the decision to the applicant, with an explanation in writing. In making the decision, the Operating Administration would approve a State's application only if: (1) That State is party to an agreement with the Operating Administration under 23 U.S.C. 327; (2) The Operating Administration has determined, after considering any public comments received, the State has the capacity, including financial and [[Page 45222]] personnel, to undertake the alternative environmental review and approval procedures; and (3) The Operating Administration, in consultation with the Office of the Secretary, with the concurrence of the Chair of CEQ, and after considering public comments received, has determined the State laws or regulations described in the State's application are at least as stringent as the Federal requirements they substitute. Before the Operating Administration approves the application, the State must enter into a written agreement with the Operating Administration. At a minimum the written agreement must: (1) Be executed by the Governor or top-ranking transportation official in the State charged with responsibility for highway construction; (2) Provide that the State agrees to assume the responsibilities of the Program, as identified by the Operating Administration; (3) Provide that the State expressly consents to accept Federal court jurisdiction for the compliance, discharge, or enforcement of any responsibility it undertakes for the Program; (4) Certify that State laws or regulations exist that authorize the State to carry out the responsibilities of the Program; (5) Certify that State laws or regulations exist that are comparable to FOIA (5 U.S.C. 552), including a provision that any decision regarding the public availability of a document under the State laws or regulations is reviewable by a Court of competent jurisdiction; (6) Commit the State to maintain the personnel and financial resources necessary to carry out its responsibilities under the Program; (7) Have a term of not more than 5 years, the term of a State's agreement with the Operating Administration in accordance with 23 U.S.C. 327, or a term ending on December 4, 2027, whichever is sooner; and (8) Be renewable. The Operating Administration's execution of the Agreement would constitute approval of the application. A State approved to participate in the Program may further apply the approved alternative environmental review and approval procedures to locally administered projects for up to 25 local governments at the request of those local governments. For such locally administered projects, the State would be responsible for ensuring that the requirements of the approved alternative State procedures are met. Section 778.109 Criteria for Determining Stringency After consultation with the Agencies, CEQ identified criteria the Agencies would use to determine whether the State laws or regulations are at least as stringent as the Federal NEPA requirements. These criteria provide for protection of the environment, provide opportunity for public participation and comment (including access to the documentation necessary to review the potential impact of a project), and ensure consistent review of projects that would otherwise have been covered under NEPA. The legislative and regulatory citations noted are intended to indicate, in general, the basis for the criteria. Based on CEQ's criteria, the Agencies and CEQ propose that to be considered at least as stringent as the Federal NEPA requirements, a State environmental law or regulation, at a minimum, must: (a) Define the types of actions that normally require an environmental impact assessment, including government-sponsored projects such as those receiving Federal financial assistance or permit approvals. (42 U.S.C. 4332(2)(C); 40 CFR 1508.18); (b) Ensure an early process for determining the scope of the action and issues that need to be addressed, identifying the significant issues, and for the classification of the appropriate environmental impact assessment in accordance with the significance of the likely impacts. For actions that may result in significant impacts on the human environment the scoping process should be an open and public process. (23 U.S.C. 139(e); 40 CFR 1501.3, 1501.4, 1501.7, 1507.3(b), 1508.14, and 1508.25); (c) Prohibit agencies and non-governmental proponents from taking action concerning the proposal until the environmental impact evaluation is complete when such action would (1) have adverse environmental impacts or (2) limit the choice of reasonable alternatives. (40 CFR 1506.1 and 1506.10(b)). (d) Protect the integrity and objectivity of the analysis by requiring the agency to take responsibility for the scope and content of the analysis and by preventing conflicts of interest among the parties developing the analysis and the parties with financial or other interest in the outcome of the project. (42 U.S.C. 4332(2)(D); 40 CFR 1506.5); (e) Based on a proposed action's purpose and need, require objective evaluation of reasonable alternatives to the proposed action (including the alternative of not taking the action) if it may result in significant impacts to the human environment or, for those actions that may not result in significant impacts, consideration of alternatives if they will involve unresolved conflicts concerning alternative uses of available resources (42 U.S.C. 4332(2)(C)(iii); 42 U.S.C. 4332(2)(E); 23 U.S.C. 330(b)(1)(A); 40 CFR 1502.13, 1502.14, and 1508.9); (f) Require an assessment of the reasonably foreseeable direct, indirect, and cumulative impacts of a proposed action (and any reasonable alternatives) on the human environment, and a comparison of those potential impacts with existing environmental conditions (42 U.S.C. 4332(2)(C); 23 U.S.C. 330(b)(1)(B); 40 CFR 1502.16, 1508.9(b), and 1508.4); (g) Require the consideration of appropriate mitigation for the impacts associated with a proposal and reasonable alternatives (including avoiding, minimizing, rectifying, reducing or eliminating the impact over time, and compensating for the impact) (40 CFR 1502.14(f), 1502.16(h), and 1508.20); (h) Provide for adequate interagency participation, including appropriate coordination and consultation with State, Federal, tribal, and local agencies with jurisdiction by law, special expertise, or an interest with respect to any environmental impact associated with the proposal, and for collaboration that would eliminate duplication of reviews. For actions that may result in significant impacts to the human environment, the process should allow for the development of plans for interagency coordination and public involvement, and the setting of timetables for the review process (42 U.S.C. 4332(2)(C); 23 U.S.C. 139(d) and 139(g); 40 CFR 1500.5(e), 1501.6, 1502.25, and part 1503); (i) Provide an opportunity for public participation and comment that is commensurate with the significance of the proposal's impacts on the human environment, and require public access to the documentation developed during the environmental review and a process to respond to public comments. (42 U.S.C. 4332(2)(C); 23 U.S.C. 330(b)(1)(A); FAST Act, Sec. 1309(c)(2)(B)(ii); 40 CFR 1502.19, part 1503, and 1506.6; and E.O. 11514, Sec. 1(b)); (j) Include procedures for the elevation and resolution of interagency disputes prior to a final decision on the proposed project. (23 U.S.C. 139(h); 40 CFR part 1504); (k) Require, for the conclusion of the process, a concise documentation of findings (for actions that would not [[Page 45223]] likely result in significant impacts to the human environment) or, for actions that may result in significant impacts, a concise record that states the decision that: (i) Identifies all alternatives considered (specifying which were environmentally preferable); (ii) identifies and discusses all factors that were balanced by the agency in making its decision, and states how those considerations entered into the decision; (iii) states whether all practicable means to avoid or minimize environmental harm have been adopted, and if not, why they were not; and (iv) describes the monitoring and enforcement program that will be adopted where applicable for any mitigation (40 CFR 1501.4 and 1505.2); (l) Require the agency to supplement environmental impacts assessments if there are substantial changes in the proposal that are relevant to environmental concerns or significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts (23 U.S.C. 330(e)(3); 40 CFR 1502.9); and (m) Allow for the use of procedures that facilitate process efficiency such as the identification of categories of actions that do not individually or cumulatively have a significant impact on the human environment and which have been found to not have such effect with procedures that require the consideration of extraordinary circumstances that would warrant a higher level of analysis, the use of tiering, programmatic approaches, adoption, incorporation by reference, approaches to eliminate duplication with other Federal requirements, and special procedures to address emergency situations (23 U.S.C. 139(b)(3); 40 CFR 1502.20, 1502.21, 1502.25, 1506.2, 1506.3, 1506.4, 1507.3(b)(ii), and 1508.4). Section 778.111 Review and Termination The Agencies propose a section describing the termination date of the Program, the Operating Administration's responsibilities to review each approved State's performance implementing the Program, and the Operating Administration's right to terminate a State's participation in the Program early. Under FAST Act Section 1309, the Program will terminate 12 years after enactment (December 4, 2027). Until then, the Operating Administration would review each participating State's performance, at least once every 5 years. The Operating Administration would provide public notice and an opportunity for public comment on the review. At the conclusion of the Operating Administration's last review before the expiration of the term, the Operating Administration may extend a State's participation in the Program for an additional term not to exceed 5 years (if this extension ends before December 4, 2027) or it may terminate the State's participation in the Program. Finally, the Operating Administration could terminate a State's participation in the Program if the Operating Administration, in consultation with the Office of the Secretary and the Chair of CEQ, determines a participating State's performance fails to meet the terms of the written agreement, the requirements of 23 CFR part 778, or 23 U.S.C. 330. Before terminating the State's participation, the Operating Administration would first notify the State and allow 90 days for the State to take corrective action. If the State fails to take corrective action during this time, the Operating Administration may then terminate that State's participation in the Program. 23 CFR Part 773--Surface Transportation Project Delivery Program Application Requirements and Termination The Agencies propose to revise section 773.117(a)(2) by modifying the current termination time period language to state that the Operating Administration(s) must provide the State no less than 120 days to take corrective actions. The Agencies propose to add a new section 773.117(a)(3) to include that on the request of the Governor of the State, the Operating Administration(s) shall provide a detailed description of each responsibility in need of corrective action regarding an inadequacy identified by the Operating Administration. 49 CFR Part 264--Program for Eliminating Duplication of Environmental Reviews and the Surface Transportation Project Delivery Program The Agencies propose to revise the heading for 49 CFR part 264 and add a reference to 23 U.S.C. 330 and the Program application procedures in 23 CFR part 778 as applicable to rail projects. This cross-reference would assist potential FRA applicants, State and Federal agencies, and the public. 49 CFR Part 622--Environmental Impact and Related Procedures The Agencies propose to revise the authorities in subpart A-- Environmental Procedures to include a reference to 23 U.S.C. 330 and the application procedures in 23 CFR part 778 as applicable to transit projects. This cross-reference would assist potential FTA applicants, State and Federal agencies, and the public. Statutory/Legal Authority for This Rulemaking The Agencies have the authority for this rulemaking action under 49 U.S.C. 322(a), which provides authority to ``[a]n officer of the Department of Transportation [to] prescribe regulations to carry out the duties and powers of the officer.'' The Secretary delegated this authority to the Agencies' Administrators in 49 CFR 1.81(a)(3), which provides that the authority to prescribe regulations contained in 49 U.S.C. 322(a) is delegated to each Administrator ``with respect to statutory provisions for which authority is delegated by other sections in [49 CFR part 1].'' Rulemaking Analyses and Notices The Agencies will consider all comments received before the close of business on the comment closing date indicated above and will make such comments available for examination in the docket at the above regulations.gov address. The Agencies will file comments received after the comment closing date and consider them to the extent practicable. In addition to late comments, the Agencies will also continue to file relevant information in the docket as it becomes available after the comment period closing date. Interested persons should continue to examine the docket for new material. The Agencies may publish a final rule at any time after close of the comment period. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs), and DOT Regulatory Policies and Procedures Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The Agencies have determined preliminarily that this action would not be a significant regulatory action under section 3(f) of Executive Order 12866 and would not be significant within the meaning of DOT's regulatory policies and procedures (44 FR 11032). This [[Page 45224]] proposed rule is not expected to be an Executive Order 13771 regulatory action because this proposed rule is not significant under Executive Order 12866. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Agencies anticipate that the economic impact of this rulemaking would be minimal. The Agencies do not have specific data to assess the monetary value of the benefits from the proposed changes because such data does not exist and would be difficult to develop. This proposed rulemaking would not adversely affect, in any material way, any sector of the economy. This proposed rulemaking sets forth application requirements for the Program, which will result in only minimal costs to Program applicants. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the Agencies have evaluated the effects of this proposed rule on small entities and anticipate that this action would not have a significant economic impact on a substantial number of small entities. ``Small entities'' include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. The proposed rule addresses application requirements for States wishing to participate in the Program. As such, it affects only States, and States are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the Regulatory Flexibility Act does not apply, and the Agencies certify that this action would not have significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $155 million or more in any one year (2 U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform Act of 1995, the Agencies will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and tribal governments and the private sector. Additionally, the definition of ``Federal Mandate'' in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the Program in accordance with changes made in the Program by the Federal Government. Executive Order 13132 (Federalism Assessment) Executive Order 13132 requires agencies to ensure meaningful and timely input by State and local officials in the development of regulatory policies that may have a substantial, direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The Agencies analyzed this proposed action in accordance with the principles and criteria contained in Executive Order 13132 and determined that it would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The Agencies have also determined that this proposed action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions. The Agencies invite State and local governments with an interest in this rulemaking to comment on the effect that adoption of specific proposals may have on State or local governments. Executive Order 13175 (Tribal Consultation) The Agencies have analyzed this action under Executive Order 13175, and believe that it would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal law. Therefore, a tribal summary impact statement is not required. Executive Order 13211 (Energy Effects) The Agencies have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agencies have determined that this action is not a significant energy action under Executive Order 13211 because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required. Executive Order 12372 (Intergovernmental Review) The DOT's regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities (49 CFR part 17) apply to this program. Accordingly, the Agencies solicit comments on this issue. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The Agencies have determined that this proposal does not contain collection of information requirements for the purposes of the PRA. Executive Order 12988 (Civil Justice Reform) This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Executive Order 12898 (Environmental Justice) Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a), 77 FR 27534 (May 10, 2012), require DOT agencies to achieve environmental justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations in the United States. The DOT Order requires DOT agencies to address compliance with the Executive Order and the DOT Order in all rulemaking activities. In addition, FHWA and FTA have issued additional documents relating to administration of the Executive Order and the DOT Order. On June 14, 2012, the FHWA issued an update to its EJ order, FHWA Order 6640.23A, FHWA Actions to Address [[Page 45225]] Environmental Justice in Minority Populations and Low-Income Populations. FTA also issued an update to its EJ policy, FTA Policy Guidance for Federal Transit Recipients, 77 FR 42077 (July 17, 2012). The Agencies have evaluated this proposed rule under the Executive Order, the DOT Order, the FHWA Order, and the FTA Policy Guidance. The Agencies have determined that the proposed application regulations, if finalized, would not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations. States participating in the Program must comply with DOT's and the appropriate Agency guidance and policies on environmental justice. Executive Order 13045 (Protection of Children) The Agencies have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agencies certify that this action would not be an economically significant rule and would not cause an environmental risk to health or safety that may disproportionately affect children. Executive Order 12630 (Taking of Private Property) The Agencies do not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. National Environmental Policy Act Agencies are required to adopt implementing procedures for NEPA that establish specific criteria for, and identification of, three classes of actions: those that normally require preparation of an EIS; those that normally require preparation of an EA; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). This proposed action qualifies for categorical exclusions under 23 CFR 771.117(c)(20) (promulgation of rules, regulations, and directives) and 771.117(c)(1) (activities that do not lead directly to construction) for FHWA, and 23 CFR 771.118(c)(4) (planning and administrative activities which do not involve or lead directly to construction) for FTA. In addition, FRA has determined that this proposed action is not a major FRA action requiring the preparation of an environmental impact statement or environmental assessment under FRA's Procedures for Considering Environmental Impacts (64 FR 28545, May 26, 1999, as amended by 78 FR 2713, Jan. 14, 2013). The Agencies have evaluated whether the proposed action would involve unusual or extraordinary circumstances and have determined that this proposed action would not involve such circumstances. Under the Program, a selected State may conduct environmental reviews and make approvals for projects under State environmental laws and regulations instead of NEPA. These State environmental laws and regulations must be at least as stringent as the Federal requirements. As a result, the Agencies find that this proposed rulemaking would not result in significant impacts on the human environment. Regulation Identifier Number A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda. List of Subjects 23 CFR Part 778 Environmental protection, Eliminating duplication of environmental reviews pilot program, Highways and roads. 23 CFR Part 773 Environmental protection, Surface transportation project delivery program application requirements and termination, Highways and roads. 49 CFR Part 264 Environmental protection, Eliminating duplication of environmental reviews pilot program, Railroads. 49 CFR Part 622 Environmental protection, Environmental impact and related procedures, Public transportation, Transit. Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration. Heath Hall, Acting Administrator, Federal Railroad Administration. Jane Williams, Acting Administrator, Federal Transit Administration. For the reasons discussed in the preamble, the Agencies propose to amend 23 CFR chapter I and 49 CFR chapters II and VI as follows: Title 23--Highways PART 773--SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM APPLICATION REQUIREMENTS AND TERMINATION 0 1. The authority citation for part 773 continues to read as follows: Authority: 23 U.S.C. 315 and 327; 49 CFR 1.81(a)(4)-(6); 49 CFR 1.85. 0 2. Amend Sec. 773.117 by revising paragraph (a)(2) and adding paragraph (a)(3) to read as follows: (a) * * * (2) The Operating Administration(s) may not terminate a State's participation without providing the State with notification of the noncompliance issue that could give rise to the termination, and without affording the State an opportunity to take corrective action to address the noncompliance issue. The Operating Administration(s) must provide the State a period of no less than 120 days to take corrective actions. The Operating Administration(s) is responsible for making the final decision on whether the corrective action is satisfactory. (3) On the request of the Governor of the State, the Operating Administration(s) shall provide a detailed description of each responsibility in need of corrective action regarding an inadequacy identified by the Operating Administration(s). * * * * * 0 3. Add part 778 to read as follows: PART 778--PILOT PROGRAM FOR ELIMINATING DUPLICATION OF ENVIRONMENTAL REVIEWS Sec. 778.101 Purpose. 778.103 Eligibility and Certain Limitations. 778.105 Application requirements for participation in the program. 778.107 Application review and approval. 778.109 Criteria for Determining Stringency. 778.111 Review and Termination. Authority: 23 U.S.C. 330; 49 CFR 1.81. Sec. 778.101 Purpose. The purpose of this part is to establish the requirements for a State to participate in the pilot program for eliminating duplication of environmental reviews (``Program'') under 23 U.S.C. 330. This Program allows States to conduct environmental reviews and make approvals for projects [[Page 45226]] under State environmental laws and regulations instead of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Sec. 778.103 Eligibility and Certain Limitations. (a) Applicants. To be eligible for the Program, a State must: (1) Act by and through the Governor or top-ranking State transportation official who is charged with responsibility for highway construction; (2) Expressly consent to the exclusive jurisdiction of U.S. District Courts for compliance, discharge, and enforcement of any responsibility under this Program; (3) Have previously assumed the responsibilities of the Secretary under 23 U.S.C. 327 related to environmental review, consultation, or other actions required under certain Federal environmental laws; and (4) Identify laws authorizing the State to take the actions necessary to carry out the equivalent environmental review and approval procedures under State laws and regulations. (b) Certain Limitations. (1) State environmental laws and regulations may only be substituted as a means of complying with: (i) NEPA; (ii) Procedures governing the implementation of NEPA and related procedural laws under the authority of the Secretary, including 23 U.S.C. 109, 128, and 139; and (iii) Related regulations and Executive Orders. (2) Compliance with State environmental laws and regulations may not serve as a substitute for the Secretary's responsibilities regarding compliance with any other Federal environmental laws. Sec. 778.105 Application requirements for participation in the Program. (a) To apply to participate in the Program, a State must submit an application to the Federal Highway Administration, Federal Railroad Administration, or Federal Transit Administration, as appropriate. (b) Each application submitted must contain the following information: (1) A full and complete description of the alternative environmental review and approval procedures the State proposes, including: (i) The procedures the State uses to engage the public and consider alternatives to the proposed action; and (ii) The extent to which the State considers environmental consequences or impacts on resources potentially impacted by the proposed actions (such as air, water, or species). (2) Each Federal environmental requirement the State is seeking to substitute, within the limitations of Sec. 778.103(b); (3) Each State environmental law and regulation the State intends to substitute for a Federal environmental requirement, within the limitations of Sec. 778.103(b); (4) A detailed explanation (with supporting documentation incorporated by reference) of the basis for concluding the State environmental law or regulation intended to substitute for a Federal environmental requirement is at least as stringent as that Federal requirement; (5) A description of the projects or classes of projects for which the State anticipates exercising the authority that may be granted under the Program; (6) Verification that the State has the financial and personnel resources necessary to fulfill its obligations under the Program; (7) Evidence that the State has sought public comments on its application prior to the submittal and the State's response to any comments it received; (8) A point of contact for questions regarding the application and a point of contact regarding potential implementation of the Program (if different); (9) Certification and explanation by the State's Attorney General or other State official legally empowered by State law to issue legal opinions that bind the State that the State has legal authority to enter into the Program, and that the State consents to exclusive Federal court jurisdiction for the compliance, discharge, and enforcement of any responsibility under this Program; (10) Certification by the State's Attorney General or other State official legally empowered by State law to issue legal opinions that bind the State that the State has laws that are comparable to the Freedom of Information Act, 5 U.S.C. 552 (FOIA), including laws that allow for any decision regarding the public availability of a document under those laws to be reviewed by a court of competent jurisdiction; and (11) The State Governor's (or in the case of the District of Columbia, the Mayor's) or the State's top ranking transportation official's signature approving the application. Sec. 778.107 Application review and approval. (a) The Operating Administration must solicit public comments on the application and must consider comments received before making a decision to approve or disapprove the application. Materials made available for this public review must include the State's application and may include additional supporting materials. (b) After receiving an application Operating Administration deems complete, the Operating Administration must make a decision on whether to approve or disapprove the application within 120 calendar days. The Operating Administration must transmit the decision in writing to the State with a statement explaining the decision. (c) The Operating Administration will approve an application only if it determines the following conditions are satisfied: (1) The State is party to an agreement with the Operating Administration under 23 U.S.C. 327; (2) The Operating Administration has determined, after considering any public comments received, the State has the capacity, including financial and personnel, to undertake the alternative environmental review and approval procedures; and (3) The Operating Administration, in consultation with the Office of the Secretary with the concurrence of the Chair of CEQ, and after considering public comments received, has determined that the State environmental laws and regulations described in the State's application are at least as stringent as the Federal requirements for which they substitute. (d) The State must enter into a written agreement with the Operating Administration. (e) The written agreement must: (1) Be executed by the Governor or top-ranking transportation official in the State charged with responsibility for highway construction; (2) Provide that the State agrees to assume the responsibilities of the Program, as identified by the Operating Administration; (3) Provide that the State expressly consents to accept Federal court jurisdiction for the compliance, discharge, or enforcement of any responsibility undertaken as part of the Program; (4) Certify that State laws and regulations exist that authorize the State to carry out the responsibilities of the Program; (5) Certify that State laws and regulations exist that are comparable to FOIA (5 U.S.C. 552), including a provision that any decision regarding the public availability of a document under the State laws and regulations is reviewable by a court of competent jurisdiction; (6) Contain a commitment that the State will maintain the personnel and financial resources necessary to carry [[Page 45227]] out its responsibilities under the Program; (7) Have a term of not more than 5 years, the term of a State's agreement with the Operating Administration in accordance with 23 U.S.C. 327, or a term ending on December 4, 2027, whichever is sooner; and (8) Be renewable. (f) The State must execute the agreement before the Operating Administration executes the agreement and approves the application. The Operating Administration's execution of the agreement will constitute approval of the application. (g) The agreement may be renewed at the end of its term, but may not extend beyond December 4, 2027. (h) A State approved to participate in the Program may further apply the approved alternative environmental review and approval procedures to locally administered projects, for up to 25 local governments at the request of those local governments. For such locally administered projects, the State shall be responsible for ensuring that the requirements of the approved alternative State procedures are met. Sec. 778.109 Criteria for Determining Stringency To be considered at least as stringent as a Federal requirement under this Program, the State laws and regulations, must, at a minimum: (a) Define the types of actions that normally require an environmental impact assessment, including government-sponsored projects such as those receiving Federal financial assistance or permit approvals. (42 U.S.C. 4332(2)(C); 40 CFR 1508.18); (b) Ensure an early process for determining the scope of the action and issues that need to be addressed, identifying the significant issues, and for the classification of the appropriate environmental impact assessment in accordance with the significance of the likely impacts. For actions that may result in significant impacts on the human environment the scoping process should be an open and public process. (23 U.S.C. 139(e); 40 CFR 1501.3, 1501.4, 1501.7, 1507.3(b), 1508.14, and 1508.25); (c) Prohibit agencies and non-governmental proponents from taking action concerning the proposal until the environmental impact evaluation is complete when such action would: (1) Have adverse environmental impacts or (2) Limit the choice of reasonable alternatives. (40 CFR 1506.1 and 1506.10(b)). (d) Protect the integrity and objectivity of the analysis by requiring the agency to take responsibility for the scope and content of the analysis and by preventing conflicts of interest among the parties developing the analysis and the parties with financial or other interest in the outcome of the project. (42 U.S.C. 4332(2)(D); 40 CFR 1506.5); (e) Based on a proposed action's purpose and need, require objective evaluation of reasonable alternatives to the proposed action (including the alternative of not taking the action) if it may result in significant impacts to the human environment or, for those actions that may not result in significant impacts, consideration of alternatives if they will involve unresolved conflicts concerning alternative uses of available resources (42 U.S.C. 4332(2)(C)(iii); 42 U.S.C. 4332(2)(E); 23 U.S.C. 330(b)(1)(A); 40 CFR 1502.13, 1502.14, and 1508.9); (f) Require an assessment of the reasonably foreseeable direct, indirect, and cumulative impacts of a proposed action (and any reasonable alternatives) on the human environment, and a comparison of those potential impacts with existing environmental conditions (42 U.S.C. 4332(2)(C); 23 U.S.C. 330(b)(1)(B); 40 CFR 1502.16, 1508.9(b), and 1508.4); (g) Require the consideration of appropriate mitigation for the impacts associated with a proposal and reasonable alternatives (including avoiding, minimizing, rectifying, reducing or eliminating the impact over time, and compensating for the impact) (40 CFR 1502.14(f), 1502.16(h), and 1508.20); (h) Provide for adequate interagency participation, including appropriate coordination and consultation with State, Federal, tribal, and local agencies with jurisdiction by law, special expertise, or an interest with respect to any environmental impact associated with the proposal, and for collaboration that would eliminate duplication of reviews For actions that may result in significant impacts to the human environment, the process should allow for the development of plans for interagency coordination and public involvement, and the setting of timetables for the review process (42 U.S.C. 4332(2)(C); 23 U.S.C. 139(d) and 139(g); 40 CFR 1500.5(e), 1501.6, 1502.25, and part 1503); (i) Provide an opportunity for public participation and comment that is commensurate with the significance of the proposal's impacts on the human environment, and require public access to the documentation developed during the environmental review and a process to respond to public comments (42 U.S.C. 4332(2)(C); 23 U.S.C. 330(b)(1)(A); FAST Act, Sec. 1309(c)(2)(B)(ii); 40 CFR 1502.19, part 1503, and 1506.6; and E.O. 11514, Sec. 1(b)); (j) Include procedures for the elevation and resolution of interagency disputes prior to a final decision on the proposed project (23 U.S.C. 139(h); 40 CFR part 1504); (k) Require, for the conclusion of the process, a concise documentation of findings (for actions that would not likely result in significant impacts to the human environment) or, for actions that may result in significant impacts, a concise record that states the agency decision that: (i) Identifies all alternatives considered (specifying which were environmentally preferable), (ii) Identifies and discusses all factors that were balanced by the agency in making its decision and states how those considerations entered into the decision, (iii) States whether all practicable means to avoid or minimize environmental harm have been adopted, and if not, why they were not; and (iv) Describes the monitoring and enforcement program that will be adopted where applicable for any mitigation (40 CFR 1501.4 and 1505.2). (l) Require the agency to supplement environmental impact assessments if there are substantial changes in the proposal that are relevant to environmental concerns or significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. (23 U.S.C. 330(e)(3); 40 CFR 1502.9); and (m) Allow for the use of procedures that facilitate process efficiency such as the identification of categories of actions that do not individually or cumulatively have a significant impact on the human environment and which have been found to not have such effect with procedures that require the consideration of extraordinary circumstances that would warrant a higher level of analysis, the use of tiering, programmatic approaches, adoption, incorporation by reference, approaches to eliminate duplication with other Federal requirements, and special procedures to address emergency situations (23 U.S.C. 139(b)(3); 40 CFR 1502.20, 1502.21, 1502.25, 1506.2, 1506.3, 1506.4, 1507.3(b)(ii), and 1508.4). Sec. 778.111 Review and Termination (a) In General. The Program shall terminate December 4, 2027. (b) Review. The Operating Administration must review each [[Page 45228]] participating State's performance in implementing the requirements of the Program at least once every 5 years. (1) The Operating Administration must provide notice and an opportunity for public comment during the review. (2) At the conclusion of its last review prior to the expiration of the term, the Operating Administration may extend a State's participation in the Program for an additional term of not more than 5 years (as long as such term does not extend beyond the termination date of the Program) or terminate the State's participation in the Program. (c) Early Termination. (1) If the Operating Administration, in consultation with the Office of the Secretary and the Chair of CEQ, determines that a State is not administering the Program consistent with the terms of its written agreement, or the requirements of this part or 23 U.S.C. 330, the Operating Administration must provide the State notification of that determination. (2) After notifying the State of its determination under paragraph (c)(1), the Operating Administration must provide the State a maximum of 90 days to take the appropriate corrective action. If the State fails to take such corrective action, the Operating Administration may terminate the State's participation in the Program. Title 49--Transportation PART 264--PROGRAM FOR ELIMINATING DUPLICATION OF ENVIRONMENTAL REVIEWS AND THE SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM 0 4. The authority citation for part 264 is revised to read as follows: Authority: 23 U.S.C. 327; 49 CFR 1.81; 23 U.S.C. 330. 0 5. Revise the heading for part 264 to read as set forth above. 0 6. Revise Sec. 264.101 to read as follows: Sec. 264.101 Procedures for complying with the surface transportation project delivery program application requirements and termination and the procedures for participating in and complying with the program for eliminating duplication of environmental reviews. The procedures for complying with the surface transportation project delivery program application requirements and termination are set forth in part 773 of title 23 of the Code of Federal Regulations. The procedures for participating in and complying with the program for eliminating duplication of environmental reviews are set forth in part 778 of title 23 of the Code of Federal Regulations. PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES 0 7. The authority citation for part 622 is revised to read as follows: Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 23 U.S.C. 139, 326, 327, and 330; Pub. L. 109-59, 119 Stat. 1144, sections 6002 and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81; Pub. L. 112-141, 126 Stat. 405, sections 1315, 1316, 1317, and 1318; and Pub. L. 114-94, section 1309. 0 8. Revise Sec. 622.101 to read as follows: Sec. 622.101 Cross-reference to procedures. The procedures for complying with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes, regulations, and orders are set forth in part 771 of title 23 of the Code of Federal Regulations. The procedures for complying with 49 U.S.C. 303, commonly known as ``Section 4(f),'' are set forth in part 774 of title 23 of the Code of Federal Regulations. The procedures for complying with the surface transportation project delivery program application requirements and termination are set forth in part 773 of title 23 of the Code of Federal Regulations. The procedures for participating and complying with the program for eliminating duplication of environmental reviews are set forth in part 778 of title 23 of the Code of Federal Regulations. [FR Doc. 2017-20561 Filed 9-27-17; 8:45 am] BILLING CODE 4910-22-P
![45220 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules
(3) An engine shop visit is when the engine DEPARTMENT OF TRANSPORTATION ADDRESSES: You may submit comments,
is subject to a serviceability check and repair, identified by the document number at
rebuild, or overhaul. Federal Highway Administration the top of this document, by any of the
(j) Alternative Methods of Compliance following methods:
(AMOCs) 23 CFR Parts 778 and 773 • Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
(1) The Manager, ECO Branch, FAA, has Federal Railroad Administration instructions for submitting comments.
the authority to approve AMOCs for this AD, • Fax: 1–202–493–2251.
if requested using the procedures found in 14 49 CFR Part 264 • Mail: Docket Management Facility,
CFR 39.19. In accordance with 14 CFR 39.19, U.S. Department of Transportation, 1200
send your request to your principal inspector
Federal Transit Administration New Jersey Ave. SE., West Building
or local Flight Standards District Office, as
Ground Floor Room W12–140,
appropriate. If sending information directly
49 CFR Part 622 Washington, DC 20590.
to the manager of the ECO Branch, send it to
• Hand Delivery/Courier: West
the attention of the person identified in [Docket No. FHWA–2016–0037]
Building Ground Floor, Room W12–140,
paragraph (k)(1) of this AD. You may email FHWA RIN 2125–AF73: FRA RIN 2130– 1200 New Jersey Ave. SE., between 9:00
your request to: ANE-AD-AMOC@faa.gov. AC66: FTA RIN 2132–AB32 a.m. and 5:00 p.m., Monday through
(2) Before using any approved AMOC,
Friday, except Federal holidays. The
notify your appropriate principal inspector, Program for Eliminating Duplication of telephone number is (202) 366–9329.
or lacking a principal inspector, the manager Environmental Reviews Instructions: All submissions received
of the local flight standards district office/
certificate holding district office. AGENCY: Federal Highway must include the agency name and
Administration (FHWA), Federal docket number or Regulatory
(k) Related Information Railroad Administration (FRA), Federal Information Number (RIN) for this
(1) For more information about this AD, Transit Administration (FTA), DOT. rulemaking. All comments received will
contact Robert Green, Aerospace Engineer, be posted without change to
ACTION: Notice of proposed rulemaking
ECO Branch, FAA, 1200 District Avenue, www.regulations.gov, including any
(NPRM); request for comments.
Burlington, MA 01803; phone: 781–238– personal information provided.
7754; fax: 781–238–7199; email: SUMMARY: This NPRM provides Docket: For access to the docket to
robert.green@faa.gov. interested parties with the opportunity read background documents or
(2) Refer to MCAI European Aviation to comment on proposed regulations comments received, go to
Safety Agency AD 2017–0096, dated June 1, governing the U.S. Department of www.regulations.gov.
2017, for more information. You may Transportation’s (DOT) Program for FOR FURTHER INFORMATION CONTACT: For
examine the MCAI in the AD docket on the Eliminating Duplication of FHWA, James Gavin, Office of Project
Internet at http://www.regulations.gov by Environmental Reviews (Program) Development and Environmental
searching for and locating it in Docket No. established by Section 1309 of the Review, (202) 366–1473, or Diane
FAA–2017–0650. Fixing America’s Surface Transportation Mobley, Office of Chief Counsel, (202)
(3) Rolls-Royce plc Alert Non Modification Act (FAST Act). Section 1309 directed 366–1366. For FRA, Michael Johnsen,
Service Bulletin RB.211–72–AJ463, Revision the U.S. Secretary of Transportation Office of Railroad Policy and
2, dated June 28, 2017, can be obtained from (Secretary) to establish a pilot program Development, (202) 493–1310, or Chris
RR plc, using the contact information in authorizing up to five States to conduct Van Nostrand, Office of Chief Counsel,
paragraph (k)(4) of this proposed AD. environmental reviews and make (202) 493–6058. For FTA, Megan Blum,
(4) For service information identified in approvals for projects under State Office of Planning and Environment,
this proposed AD, contact Rolls-Royce plc, environmental laws and regulations (202) 366–0463, or Helen Serassio,
Corporate Communications, P.O. Box 31, instead of the National Environmental
Derby, England, DE24 8BJ; phone: 011–44–
Office of Chief Counsel, (202) 366–1974.
Policy Act (NEPA). The FAST Act The Agencies are located at 1200 New
1332–242424; fax: 011–44–1332–249936;
requires the Secretary, in consultation Jersey Ave. SE., Washington, DC 20590.
email: http://www.rolls-royce.com/contact/
with the Chair of the Council on Office hours are from 9:00 a.m. to 5:00
civil_team.jsp; Internet: https://
Environmental Quality (CEQ), to p.m. ET, Monday through Friday, except
customers.rolls-royce.com/public/
promulgate regulations to implement Federal holidays.
rollsroycecare.
the requirements of the Program, SUPPLEMENTARY INFORMATION:
(5) You may view this service information
including application requirements and
at the FAA, Engine & Propeller Standards Background
Branch, Policy and Innovation Division, 1200
criteria necessary to determine whether
District Avenue, Burlington, MA. For
State laws and regulations are at least as On December 4, 2015, President
information on the availability of this
stringent as the applicable Federal law. Obama signed into law the FAST Act
material at the FAA, call 781–238–7125. The FHWA, FRA, and FTA, hereinafter (Pub. L. 114–94, 129 Stat. 1312), which
referred to as ‘‘the Agencies,’’ are contains new requirements related to
Issued in Burlington, Massachusetts, on proposing these regulations on behalf of the National Environmental Policy Act
September 22, 2017. the Secretary and seek comments on the (NEPA) (42 U.S.C. 4321 et seq.). Section
Robert J. Ganley, proposals contained in this NPRM. This 1309 of the FAST Act, codified at 23
Manager, Engine and Propeller Standards rule would also implement a provision U.S.C. 330, established a pilot program
jstallworth on DSKBBY8HB2PROD with PROPOSALS
Branch, Aircraft Certification Service. in Section 1308 of the FAST Act that that allows the Secretary to approve up
[FR Doc. 2017–20718 Filed 9–27–17; 8:45 am] amends the corrective action period that to five States to use one or more State
BILLING CODE 4910–13–P
the Agencies must provide to a State environmental laws instead of NEPA for
participating in the Surface environmental review of surface
Transportation Project Delivery Program transportation projects. In order to be
(Section 327 Program). eligible to participate in the Program, a
DATES: Comments must be received on State must have assumed the Secretary’s
or before November 27, 2017. responsibilities for environmental
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![Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules 45223
likely result in significant impacts to the opportunity for public comment on the application procedures in 23 CFR part
human environment) or, for actions that review. At the conclusion of the 778 as applicable to transit projects.
may result in significant impacts, a Operating Administration’s last review This cross-reference would assist
concise record that states the decision before the expiration of the term, the potential FTA applicants, State and
that: (i) Identifies all alternatives Operating Administration may extend a Federal agencies, and the public.
considered (specifying which were State’s participation in the Program for
Statutory/Legal Authority for This
environmentally preferable); (ii) an additional term not to exceed 5 years
Rulemaking
identifies and discusses all factors that (if this extension ends before December
were balanced by the agency in making 4, 2027) or it may terminate the State’s The Agencies have the authority for
its decision, and states how those participation in the Program. this rulemaking action under 49 U.S.C.
considerations entered into the Finally, the Operating Administration 322(a), which provides authority to
decision; (iii) states whether all could terminate a State’s participation ‘‘[a]n officer of the Department of
practicable means to avoid or minimize in the Program if the Operating Transportation [to] prescribe regulations
environmental harm have been adopted, Administration, in consultation with the to carry out the duties and powers of the
and if not, why they were not; and (iv) Office of the Secretary and the Chair of officer.’’ The Secretary delegated this
describes the monitoring and CEQ, determines a participating State’s authority to the Agencies’
enforcement program that will be performance fails to meet the terms of Administrators in 49 CFR 1.81(a)(3),
adopted where applicable for any the written agreement, the requirements which provides that the authority to
mitigation (40 CFR 1501.4 and 1505.2); of 23 CFR part 778, or 23 U.S.C. 330. prescribe regulations contained in 49
(l) Require the agency to supplement Before terminating the State’s U.S.C. 322(a) is delegated to each
environmental impacts assessments if participation, the Operating Administrator ‘‘with respect to statutory
there are substantial changes in the Administration would first notify the provisions for which authority is
proposal that are relevant to State and allow 90 days for the State to delegated by other sections in [49 CFR
environmental concerns or significant take corrective action. If the State fails part 1].’’
new circumstances or information to take corrective action during this Rulemaking Analyses and Notices
relevant to environmental concerns and time, the Operating Administration may
bearing on the proposed action or its The Agencies will consider all
then terminate that State’s participation
impacts (23 U.S.C. 330(e)(3); 40 CFR comments received before the close of
in the Program.
1502.9); and business on the comment closing date
(m) Allow for the use of procedures 23 CFR Part 773—Surface indicated above and will make such
that facilitate process efficiency such as Transportation Project Delivery Program comments available for examination in
the identification of categories of actions Application Requirements and the docket at the above regulations.gov
that do not individually or cumulatively Termination address. The Agencies will file
have a significant impact on the human The Agencies propose to revise comments received after the comment
environment and which have been section 773.117(a)(2) by modifying the closing date and consider them to the
found to not have such effect with current termination time period extent practicable. In addition to late
procedures that require the language to state that the Operating comments, the Agencies will also
consideration of extraordinary Administration(s) must provide the continue to file relevant information in
circumstances that would warrant a State no less than 120 days to take the docket as it becomes available after
higher level of analysis, the use of corrective actions. the comment period closing date.
tiering, programmatic approaches, The Agencies propose to add a new Interested persons should continue to
adoption, incorporation by reference, section 773.117(a)(3) to include that on examine the docket for new material.
approaches to eliminate duplication the request of the Governor of the State, The Agencies may publish a final rule
with other Federal requirements, and the Operating Administration(s) shall at any time after close of the comment
special procedures to address provide a detailed description of each period.
emergency situations (23 U.S.C. responsibility in need of corrective Executive Order 12866 (Regulatory
139(b)(3); 40 CFR 1502.20, 1502.21, action regarding an inadequacy Planning and Review), Executive Order
1502.25, 1506.2, 1506.3, 1506.4, identified by the Operating 13563 (Improving Regulation and
1507.3(b)(ii), and 1508.4). Administration. Regulatory Review), Executive Order
Section 778.111 Review and 49 CFR Part 264—Program for 13771 (Reducing Regulation and
Termination Eliminating Duplication of Controlling Regulatory Costs), and DOT
The Agencies propose a section Environmental Reviews and the Surface Regulatory Policies and Procedures
describing the termination date of the Transportation Project Delivery Program Executive Orders 12866 and 13563
Program, the Operating The Agencies propose to revise the direct agencies to assess all costs and
Administration’s responsibilities to heading for 49 CFR part 264 and add a benefits of available regulatory
review each approved State’s reference to 23 U.S.C. 330 and the alternatives and, if regulation is
performance implementing the Program, Program application procedures in 23 necessary, to select regulatory
and the Operating Administration’s CFR part 778 as applicable to rail approaches that maximize net benefits
right to terminate a State’s participation projects. This cross-reference would (including potential economic,
in the Program early. environmental, public health and safety
jstallworth on DSKBBY8HB2PROD with PROPOSALS
assist potential FRA applicants, State
Under FAST Act Section 1309, the and Federal agencies, and the public. effects, distributive impacts, and
Program will terminate 12 years after equity). The Agencies have determined
enactment (December 4, 2027). Until 49 CFR Part 622—Environmental preliminarily that this action would not
then, the Operating Administration Impact and Related Procedures be a significant regulatory action under
would review each participating State’s The Agencies propose to revise the section 3(f) of Executive Order 12866
performance, at least once every 5 years. authorities in subpart A— and would not be significant within the
The Operating Administration would Environmental Procedures to include a meaning of DOT’s regulatory policies
provide public notice and an reference to 23 U.S.C. 330 and the and procedures (44 FR 11032). This
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![45228 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules
participating State’s performance in PART 622—ENVIRONMENTAL IMPACT floor by November 10, 2018. The
implementing the requirements of the AND RELATED PROCEDURES Commission proposes this action to
Program at least once every 5 years. assist tribal governments, tribal gaming
(1) The Operating Administration ■ 7. The authority citation for part 622 regulatory authorities, and operations in
must provide notice and an opportunity is revised to read as follows: ensuring the integrity and security of
for public comment during the review. Authority: 42 U.S.C. 4321 et seq.; 49 Class II games and gaming revenue
(2) At the conclusion of its last review U.S.C. 303 and 5323(q); 23 U.S.C. 139, 326, through minimum technical standards
prior to the expiration of the term, the 327, and 330; Pub. L. 109–59, 119 Stat. 1144, for Class II gaming systems and
Operating Administration may extend a sections 6002 and 6010; 40 CFR parts 1500– equipment.
State’s participation in the Program for 1508; 49 CFR 1.81; Pub. L. 112–141, 126 Stat.
405, sections 1315, 1316, 1317, and 1318; DATES: The agency must receive
an additional term of not more than 5
and Pub. L. 114–94, section 1309. comments on or before November 13,
years (as long as such term does not
■ 8. Revise § 622.101 to read as follows: 2017.
extend beyond the termination date of
the Program) or terminate the State’s ADDRESSES: You may send comments by
§ 622.101 Cross-reference to procedures. any of the following methods:
participation in the Program.
(c) Early Termination. (1) If the The procedures for complying with • Federal eRulemaking Portal: Go to
Operating Administration, in the National Environmental Policy Act http://www.regulations.gov. Follow the
consultation with the Office of the of 1969, as amended (42 U.S.C. 4321 et instructions for submitting comments.
Secretary and the Chair of CEQ, seq.), and related statutes, regulations, • Email: 547.5_Comments@nigc.gov.
determines that a State is not and orders are set forth in part 771 of • Fax: 202–632–7066.
administering the Program consistent title 23 of the Code of Federal • Mail: National Indian Gaming
with the terms of its written agreement, Regulations. The procedures for Commission, 1849 C Street NW., MS
or the requirements of this part or 23 complying with 49 U.S.C. 303, 1621, Washington, DC 20240.
commonly known as ‘‘Section 4(f),’’ are • Hand Delivery: National Indian
U.S.C. 330, the Operating
set forth in part 774 of title 23 of the Gaming Commission, 90 K Street NE.,
Administration must provide the State
Code of Federal Regulations. The Suite 200, Washington, DC 20002,
notification of that determination.
procedures for complying with the between 9 a.m. and 5 p.m., Monday
(2) After notifying the State of its
surface transportation project delivery through Friday, except Federal holidays.
determination under paragraph (c)(1),
the Operating Administration must program application requirements and FOR FURTHER INFORMATION CONTACT:
provide the State a maximum of 90 days termination are set forth in part 773 of Austin Badger, National Indian Gaming
to take the appropriate corrective action. title 23 of the Code of Federal Commission; Telephone: 202–632–7003.
If the State fails to take such corrective Regulations. The procedures for SUPPLEMENTARY INFORMATION:
action, the Operating Administration participating and complying with the
program for eliminating duplication of I. Comments Invited
may terminate the State’s participation
in the Program. environmental reviews are set forth in Interested parties are invited to
part 778 of title 23 of the Code of participate in this proposed rulemaking
Title 49—Transportation Federal Regulations. by submitting such written data, views,
[FR Doc. 2017–20561 Filed 9–27–17; 8:45 am] or arguments as they may desire.
PART 264—PROGRAM FOR Comments that provide the factual basis
BILLING CODE 4910–22–P
ELIMINATING DUPLICATION OF supporting the views and suggestions
ENVIRONMENTAL REVIEWS AND THE presented are particularly helpful in
SURFACE TRANSPORTATION developing reasoned regulatory
PROJECT DELIVERY PROGRAM NATIONAL INDIAN GAMING
COMMISSION decisions on the proposal.
■ 4. The authority citation for part 264 II. Background
is revised to read as follows: 25 CFR Part 547
The Indian Gaming Regulatory Act
Authority: 23 U.S.C. 327; 49 CFR 1.81; 23 RIN 3141–AA64 (IGRA or Act), Public Law 100–497, 25
U.S.C. 330.
U.S.C. 2701 et seq., was signed into law
■ 5. Revise the heading for part 264 to Technical Standards on October 17, 1988. The Act
read as set forth above. AGENCY: National Indian Gaming establishes the National Indian Gaming
■ 6. Revise § 264.101 to read as follows: Commission. Commission (NIGC or Commission) and
ACTION: Proposed rule. sets out a comprehensive framework for
§ 264.101 Procedures for complying with
the surface transportation project delivery the regulation of gaming on Indian
program application requirements and SUMMARY: The National Indian Gaming lands. On October 8, 2008, the NIGC
termination and the procedures for Commission proposes to amend the published a final rule in the Federal
participating in and complying with the minimum technical standards for Class Register called Technical Standards for
program for eliminating duplication of II gaming systems and equipment. The Electronic, Computer, or Other
environmental reviews. proposed rule would amend regulations Technologic Aids Used in the Play of
The procedures for complying with that describe how tribal governments, Class II Games. 73 FR 60508. The rule
the surface transportation project tribal gaming regulatory authorities, and added a new part to the NIGC’s
delivery program application tribal gaming operations comply with regulations establishing a process for
jstallworth on DSKBBY8HB2PROD with PROPOSALS
requirements and termination are set the technical standards. In particular, ensuring the integrity of electronic Class
forth in part 773 of title 23 of the Code the proposed rule amends the II games and aids. The standards were
of Federal Regulations. The procedures requirement that gaming systems designed to assist tribal gaming
for participating in and complying with manufactured before November 10, regulatory authorities and operators
the program for eliminating duplication 2008, be modified to meet standards with ensuring the integrity and security
of environmental reviews are set forth in applicable to gaming systems of Class II gaming, the accountability of
part 778 of title 23 of the Code of manufactured on or after November 10, Class II gaming revenue, and provide
Federal Regulations. 2008, or be removed from the gaming guidance to equipment manufacturers
VerDate Sep<11>2014 15:00 Sep 27, 2017 Jkt 241001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1](https://thefederalregister.org/doc/82_FR_45407/page/9.svg)
Document Created: 2017-09-28 01:32:36
Document Modified: 2017-09-28 01:32:36
| 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 | Proposed Rules | |
| Action | Notice of proposed rulemaking (NPRM); request for comments. | |
| Dates | Comments must be received on or before November 27, 2017. | |
| Contact | For FHWA, James Gavin, Office of Project Development and Environmental Review, (202) 366-1473, or Diane Mobley, Office of Chief Counsel, (202) 366-1366. For FRA, Michael Johnsen, Office of Railroad Policy and Development, (202) 493-1310, or Chris Van Nostrand, Office of Chief Counsel, (202) 493-6058. For FTA, Megan Blum, Office of Planning and Environment, (202) 366-0463, or Helen Serassio, Office of Chief Counsel, (202) 366-1974. The Agencies are located at 1200 New Jersey Ave. SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:00 p.m. ET, Monday through Friday, except Federal holidays. | |
| FR Citation | 82 FR 45220 | |
| CFR Citation | 23
CFR
773 23 CFR 778 49 CFR 264 49 CFR 622 | |
| CFR Associated | Surface Transportation Project Delivery Program Application Requirements and Termination; Environmental Protection; Eliminating Duplication of Environmental Reviews Pilot Program; Highways and Roads; Railroads; Environmental Impact and Related Procedures; Public Transportation and Transit |
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