82_FR_45718 82 FR 45530 - Environmental Impacts and Related Procedures

82 FR 45530 - Environmental Impacts and Related Procedures

DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration

Federal Register Volume 82, Issue 188 (September 29, 2017)

Page Range45530-45547
FR Document2017-20565

This SNPRM provides interested parties the opportunity to comment on the proposed revisions to the FHWA and FTA joint regulations implementing the National Environmental Policy Act (NEPA) and Section 4(f) requirements. The FHWA, FRA, and FTA (hereafter referred to as ``the Agencies'') propose these revisions after the enactment of the Fixing America's Surface Transportation (FAST) Act, which requires a rulemaking to address programmatic approaches in environmental reviews and makes other changes to existing law that should be addressed in a rulemaking. In this SNPRM the Agencies also propose to add FRA to regulations governing environmental impact and related procedures and the parks, recreation areas, wildlife and waterfowl refuges, and historic site, making those regulations FRA's NEPA implementing procedures and FRA's Section 4(f) implementing regulations, respectively. This SNPRM proposes to modify the FHWA/FTA Environmental Impact and Related Procedures due to changes to the environmental review process made by the FAST Act and to modify the Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites regulations due to new exceptions created by the FAST Act. Lastly, the Agencies request comments regarding the current FHWA and FTA definition of ``existing operational right-of-way'' in their respective categorical exclusion sections. The Agencies seek comments on the proposals in this document.

Federal Register, Volume 82 Issue 188 (Friday, September 29, 2017)
[Federal Register Volume 82, Number 188 (Friday, September 29, 2017)]
[Proposed Rules]
[Pages 45530-45547]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-20565]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 771 and 774

Federal Railroad Administration

49 CFR Part 264

Federal Transit Administration

49 CFR Part 622

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


Environmental Impacts and Related Procedures

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

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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SUMMARY: This SNPRM provides interested parties the opportunity to 
comment on the proposed revisions to the FHWA and FTA joint regulations 
implementing the National Environmental Policy Act (NEPA) and Section 
4(f) requirements. The FHWA, FRA, and FTA (hereafter referred to as 
``the Agencies'') propose these revisions after the enactment of the 
Fixing America's Surface Transportation (FAST) Act, which requires a 
rulemaking to address programmatic approaches in environmental reviews 
and makes other changes to existing law that should be addressed in a 
rulemaking. In this SNPRM the Agencies also propose to add FRA to 
regulations governing environmental impact and related procedures and 
the parks, recreation areas, wildlife and waterfowl refuges, and 
historic site, making those regulations FRA's NEPA implementing 
procedures and FRA's Section 4(f) implementing regulations, 
respectively. This SNPRM proposes to modify the FHWA/FTA Environmental 
Impact and Related Procedures due to changes to the environmental 
review process made by the FAST Act and to modify the Parks, Recreation 
Areas, Wildlife and Waterfowl Refuges, and Historic Sites regulations 
due to new exceptions created by the FAST Act. Lastly, the Agencies 
request comments regarding the current FHWA and FTA definition of 
``existing operational right-of-way'' in their respective categorical 
exclusion sections. The Agencies seek comments on the proposals in this 
document.

[[Page 45531]]


DATES: The Agencies must receive comments on or before November 28, 
2017.

ADDRESSES: To ensure you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Ave. SE., between 9 a.m.-5 p.m., Monday through Friday, 
except Federal holidays. The telephone number is (202) 366-9329.
    Instructions: You must include the agency name and docket number or 
the Regulatory Identification Number (RIN) for the rulemaking at the 
beginning of your comments. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: For FHWA: Neel Vanikar, Office of 
Project Delivery and Environmental Review, HEPE, (202) 366-2068, 
Neel.Vanikar@dot.gov, or Diane Mobley, Office of the Chief Counsel, 
(202) 366-1366, Diane.Mobley@dot.gov. For FRA: Michael Johnsen, Office 
of Program Delivery, (202) 493-1310, michael.johnsen@dot.gov, or 
Christopher Van Nostrand, Office of Chief Counsel, (202) 493-6058, 
Christopher.Vannostrand@dot.gov. For FTA: Megan Blum, Office of 
Planning and Environment, (202) 366-0463, Megan.Blum@dot.gov, or Helen 
Serassio, Office of Chief Counsel, (202) 366-1974, 
Helen.Serassio@dot.gov. The Agencies are located at 1200 New Jersey 
Ave. SE., Washington, DC 20590-0001. Office hours are from 8:00 a.m. to 
4:30 p.m. E.T., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Background

    On December 4, 2015, President Obama signed into law the FAST Act 
(Pub. L. 114-94, 129 Stat. 1312). The FAST Act contains new 
requirements the Agencies must follow to comply with NEPA (42 U.S.C. 
4321 et seq.) and Section 4(f) (23 U.S.C. 138 and 49 U.S.C. 303). This 
SNPRM includes proposed changes to 23 CFR part 771 to address the 
following issues: (1) Section 1304(k) which requires a rulemaking 
regarding programmatic approaches; (2) certain amendments to 23 U.S.C. 
139 made by section 1304; and (3) the section 11503 requirement that 
the Secretary of Transportation (Secretary) apply, to the greatest 
extent feasible, the project development procedures described in 23 
U.S.C. 139 to railroad projects requiring the Secretary's approval 
under NEPA (49 U.S.C. 24201(a)). With respect to 23 CFR part 774, the 
SNPRM includes proposed changes to the Agencies' Section 4(f) 
procedures to reflect the two new Section 4(f) exceptions created in 
the FAST Act (sections 1303 and 11502). In addition, FRA also proposes 
joining 23 CFR part 774.

General Discussion of the Proposals

    The following sections of the FAST Act affect 23 CFR parts 771 and 
774, and are addressed in this SNPRM:
     Section 1303 amends Section 4(f) to create an exception 
for certain common post-1945 concrete or steel bridges and culverts;
     Section 1304 revises certain elements of the Agencies' 
environmental review process at 23 U.S.C. 139;
     Section 1304(k) replaces a rulemaking requirement created 
by the Moving Ahead for Progress in the 21st Century Act (MAP-21), 
Public Law 112-141, 126 Stat. 405, with a new rulemaking requirement to 
implement the programmatic approaches provision in 23 U.S.C. 139(b)(3);
     Section 11502 amends Section 4(f) to create a railroad or 
rail transit line exception when certain conditions are met; and,
     Section 11503 requires the Secretary apply, to the 
greatest extent feasible, the project development procedures described 
in 23 U.S.C. 139 to railroad projects requiring the Secretary's 
approval under NEPA.

SNPRM Rationale

    This SNPRM supplements the notice of proposed rulemaking (NPRM) 
FHWA and FTA issued on November 20, 2015 (November 2015 NPRM) (80 FR 
72624, Docket No. FHWA-2015-0011). The November 2015 NPRM proposed 
changes to the FHWA/FTA Environmental Impact and Related Procedures 
regulations (23 CFR part 771) and the Parks, Recreation Areas, Wildlife 
and Waterfowl Refuges, and Historic Site regulations (23 CFR part 774). 
Primarily, FHWA and FTA issued the November 2015 NPRM to address 
certain changes to the environmental review process imposed by MAP-21.
    The comment period for the November 2015 NPRM closed on January 19, 
2016. The FHWA and FTA received 14 comment letters for consideration. 
During the November 2015 NPRM comment period, President Obama signed 
the FAST Act into law. The FHWA and FTA did not pursue a final rule 
following the November 2015 NPRM because certain FAST Act provisions 
affected portions of the regulatory provisions addressed in the 
November 2015 NPRM and because certain other FAST Act provisions are 
appropriately addressed in a rulemaking. The Agencies now propose 
addressing those changes to parts 771 and 774 in this SNPRM.
    The Agencies used the proposals in the November 2015 NPRM as the 
baseline for this SNPRM (e.g., section/paragraph organization and 
language). All substantive comments received on the November 2015 NPRM 
and this SNPRM, as well as the appropriate responses to both sets of 
comments, will be addressed in a final rule should a final rule be 
issued. The docket contains a redline that captures both the November 
2015 NPRM and this SNPRM's changes.
    This SNPRM contains proposals satisfying the rulemaking 
requirements in FAST Act sections 1304(k) and 11503, and addresses 
changes to 23 U.S.C. 139 (Efficient Environmental Reviews for Project 
Decisionmaking), 23 U.S.C. 138 (Preservation of Parklands), and 49 
U.S.C. 303 (Policy on Lands, Wildlife and Waterfowl Refuges, and 
Historic Sites) FAST Act sections 1304, 1303, and 11502 made, 
respectively. The SNPRM also proposes to add FRA to parts 771 and 774.

Applicability of 23 CFR Part 771 to FRA Actions

    Section 11503 of the FAST Act requires the Secretary, among other 
things, to apply, to the greatest extent feasible, the project 
development procedures described in 23 U.S.C. 139 (Efficient 
Environmental Reviews for Project Decisionmaking) to railroad projects 
requiring the Secretary's approval under NEPA. The Secretary must 
incorporate into FRA regulations and procedures for railroad projects 
aspects of the 23 U.S.C. 139 project development procedures, or 
portions thereof, that increase the efficiency of the review of 
railroad projects consistent with section 11503.
    The FRA has determined that applying 23 CFR part 771 to railroad 
actions is the most efficient way to comply with section 11503. By 
joining part 771, FRA would not need to develop entirely new NEPA 
regulations for railroads projects. On June 9, 2016, FRA published a 
notice in the Federal Register requesting public comment on the 
application of part 771 to FRA's

[[Page 45532]]

railroad projects (81 FR 37237, June 9, 2016). The comment period ended 
on July 11, 2016. The FRA received one comment on this notice from the 
Association of American Railroads (AAR). The commenter suggested that 
FRA develop its own regulations rather than adopt 23 CFR part 771 
because of perceived difficulties applying certain requirements to 
freight railroad projects on privately owned infrastructure. While many 
of the FHWA and FTA actions are sponsored by government entities (e.g., 
State DOTs), the regulations can be applied to the actions on privately 
owned railroad infrastructure. This SNPRM proposes certain 
modifications to 23 CFR part 771 to accommodate railroad projects.
    Section 11503 of the FAST Act also required FRA to survey its use 
of NEPA categorical exclusions (CE) in railroad projects since 2005. On 
June 2, 2016, FRA published a notice in the Federal Register providing 
the public with a review of FRA's survey, requesting comments on two 
new classes of actions that might be appropriate for categorical 
exclusion, and requesting suggestions for additional categories of 
activities appropriate for exclusion (81 FR 35437, June 2, 2016) (June 
Notice). The comment period ended on July 5, 2016. The FRA received 
comments from the AAR, the Michigan Department of Transportation and 
the Oregon Department of Transportation which are addressed in the 
section-by-section analysis below. This SNPRM satisfies the FAST Act 
section 11503 requirement that the Secretary publish an NPRM proposing 
new and existing CEs for railroad projects requiring the Secretary's 
approval.
    The FRA proposes to join the 23 CFR part 774 regulations 
implementing Section 4(f). FRA determined joining 23 CFR part 774 would 
further align its environmental review processes with the FHWA and FTA 
processes. This would create consistency implementing Section 4(f) and 
provide clarity to FRA's applicants and project sponsors. Additionally, 
it eliminates FRA's need to update the Section 4(f) sections of its 
existing Environmental Procedures; if FRA only joined 23 CFR part 771, 
the part 771 regulations would supersede most, if not all, of FRA's 
Environmental Procedures, and FRA would still need to revise the 
Section 4(f) sections. In addition, FRA currently follows 23 CFR part 
774 and associated FHWA and FTA guidance as guidance when it applies 
Section 4(f) to railroad projects and officially joining the 
regulations would not significantly change FRA's current practice. In 
the future, DOT may consider proposing a Department-wide rule or 
updating Department-wide guidance on the implementation of Section 
4(f).
    This SNPRM would also amend part 264 in title 49 to add a cross 
reference 23 CFR part 771 and 23 CFR part 774, and the Agencies propose 
changing the heading to ``Environmental Impact and Related 
Procedures.''

Section-by-Section Discussion of the Proposals

NEPA Regulation Changes (Part 771)

General
    There are two general proposals to note. First, the Agencies 
propose to list the Agencies in alphabetical order (e.g., ``FHWA, FRA, 
and FTA'') whenever it is necessary to list all three agencies. This 
change would apply throughout the regulation. Second, the Agencies 
propose ``final EIS'' as the acronym for ``final environmental impact 
statement'' (instead of ``FEIS'') throughout 23 CFR part 771 to provide 
consistency.
Section 771.101 Purpose
    The Agencies propose to modify this section to add the appropriate 
references to FRA and railroad projects, which would allow FRA to use 
part 771 as its procedures for implementing NEPA. The Agencies also 
propose updating the list of references in the last sentence to remove 
MAP-21 section 1319 because it was codified at 23 U.S.C. 139(n) and 49 
U.S.C. 304a, and to add FAST Act section 1304.
Section 771.105 Policy
    Through the November 2015 NPRM, FHWA and FTA proposed several 
revisions to 23 CFR part 771 to satisfy the programmatic approaches 
rulemaking requirement created by MAP-21, section 1305. To satisfy the 
programmatic approaches rulemaking requirement created by FAST Act, 
section 1304(k), the Agencies propose revising paragraph (b), 
originally proposed in the November 2015 NPRM, by including the 
parenthetical ``(including the requirements found at 23 U.S.C. 
139(b))'' after the words ``environmental requirements.''
    The Agencies also propose a non-substantive change to paragraph 
(e)(2) in the first sentence to correct a typo (``fo'' to ``of'').
    The Agencies are proposing to revise Sec.  771.105 to directly 
address 23 U.S.C. 139(d)(8)-Single NEPA Document, which requires the 
Agencies develop a single NEPA document that can be used for all 
Federal permits and reviews for a project to the maximum extent 
practicable and consistent with Federal law. The Agencies propose 
revising paragraph (a) by replacing ``to the fullest extent possible'' 
with ``to the maximum extent practicable and consistent with Federal 
law'' to reflect 23 U.S.C. 139(d)(8) language. The policy statement 
applies broadly to the environmental review process and specifically 
encourages all environmental reviews and requirements (including 
permits) be addressed in a single process and environmental review 
document.
Section 771.107 Definitions
    The Agencies propose to modify three definitions to add FRA's 
railroad projects. Specifically, the Agencies propose adding 
``railroad'' projects, ``FRA,'' and ``rulemakings'' to the list of 
examples of major Federal actions in the definition of ``Action,'' and 
the Agencies propose adding ``FRA'' in all locations where FHWA and FTA 
are listed in the definition of ``Administration.'' The Agencies also 
propose similar changes to the definition of ``Administration action'' 
by adding ``FRA'' approval, and ``rulemakings'' to the list of 
activities needing Agency approval.
Section 771.109 Applicability and Responsibilities
    In paragraph (a)(1), the Agencies propose to clarify that the part 
771 regulations and the Council on Environmental Quality (CEQ) 
regulations (40 CFR parts 1500-1508) apply where one of the Agencies 
exercises sufficient control to condition an approval, not just a 
``permit or project approval,'' by including ``other'' prior to 
``approvals'' (i.e., ``. . . condition the permit, project, or other 
approvals''). The Agencies are proposing this change to accommodate 
FRA's potential actions related to its safety programs.
    The Agencies are not proposing to modify paragraph (a)(3) to 
specifically address when the regulations would apply to FRA projects. 
The FRA would apply these regulations to projects initiated (through 
publishing a notice of intent for an environmental impact statement or 
determining to initiate an environmental assessment) after the Agencies 
issue a final rule, if one is issued. Until such time, FRA will 
continue to follow its Procedures for Considering Environmental Impacts 
(Environmental Procedures) (64 FR 28545, May 26, 1999, updated 78 FR 
2713, Jan. 14, 2013). However, as required by the FAST Act, FRA will 
also follow the project development procedures described in 23 U.S.C. 
139 for its railroad projects initiated after December 4, 2015 unless 
the project is subject to a funding arrangement under

[[Page 45533]]

title 49, U.S.C. the Secretary approved before December 4, 2015.
    In paragraph (b)(1), the Agencies propose to add ``FRA'' as an 
agency that will assure implementation of committed mitigation measures 
by including the mitigation measures by reference in the grant 
agreement, followed by reviews of design and construction inspections.
    In paragraph (c)(2), FRA added reference to FRA's financial 
assistance programs.
    In paragraph (c)(7), the Agencies propose several revisions to 
reflect changes to participating agencies' responsibilities under 
section 1304 of the FAST Act, codified at 23 U.S.C. 139(c)(6), (d)(9), 
(f)(4), and (g)(1). Section 139(c)(6)(C) requires the lead agency 
consider and respond to comments within a participating agency's 
special expertise or jurisdiction. Similarly, section 139(d)(9) 
requires participating agencies to provide comments, responses, 
studies, or methodologies within the agency's special expertise or 
jurisdiction, and to use the process to address its environmental 
issues of concern. Section 139(f)(4)(A)(ii) mandates participating 
agencies limit their agency's comments to the subject matter areas 
within their agency's special expertise or jurisdiction, to the maximum 
extent practicable and consistent with Federal law. Lastly, section 
139(g)(1)(B) now requires the coordination plan that the lead agency 
develops under 23 U.S.C. 139 include a schedule, which must receive 
participating agency concurrence.
    In response to these changes to 23 U.S.C. 139, the Agencies propose 
adding that participating agencies are responsible for providing input 
within their agency's special expertise or jurisdiction and providing 
concurrence on the schedule that now must be included in the 
coordination plan. The Agencies propose paragraph (c)(7) reads as set 
out in the regulatory text below. The Agencies interpret the proposed 
language ``providing input, as appropriate'' to include the requirement 
at 23 U.S.C. 139(d)(9) that participating agencies' input include 
``comments, responses, studies, or methodologies on those areas within 
the special expertise or jurisdiction of the agency'' and, therefore, 
did not specifically list those activities in this paragraph or 
elsewhere in the regulation. The Agencies determined that listing those 
four specific activities is unnecessarily limiting and could lead a 
project sponsor to believe an unlisted method of providing input is not 
permitted.
    The Agencies further propose adding a new paragraph (e), which 
describes FRA's requirements for third party contracting where the 
project sponsor is a private entity and there is no qualified applicant 
as defined in Sec.  771.107. In that situation, FRA proposes to require 
third party contracting for all EISs and may also require them for EAs. 
When using a third party contract, the project sponsor retains a 
contractor to assist FRA in conducting the environmental review, and 
the contractor works under the direction, supervision and control of 
FRA. A third party contracting structure would be memorialized in a 
memorandum of understanding among FRA, the contractor, and the project 
sponsor. This paragraph is intended to ensure compliance with FRA's 
responsibilities for EIS preparation in the CEQ implementing 
regulations at 40 CFR 1506.5(c).
    The Agencies propose an associated change to the beginning of 
paragraph (b)(6), which addresses the role of a project sponsor that is 
a private entity. The proposed change reads, ``Subject to paragraph 
(e).''
Section 771.111 Early Coordination, Public Involvement, and Project 
Development
    The Agencies propose several additions to Sec.  771.111 to reflect 
various FAST Act changes to 23 U.S.C. 139. To reflect planning and 
environmental tools not previously listed, the Agencies propose adding 
references to 23 U.S.C. 139(f) (Purpose and need; alternatives 
analysis) and 23 U.S.C. 169 (Development of programmatic mitigation 
plans) to the list in paragraph (a)(2)(i). Section 139(f)(4)(E) of 
title 23 U.S.C. establishes a new process for reducing duplication 
between the planning and NEPA evaluation of alternatives processes by 
eliminating planning alternatives from detailed consideration under 
NEPA when certain conditions are met. Section 169 of title 23 U.S.C. 
includes an optional framework for creating programmatic mitigation 
plans during the transportation planning process, and gives substantial 
weight to programmatic mitigation plans in the environmental review 
process. Note that a recent final rule (81 FR 34049, May 27, 2016; 
Docket No. FHWA-2013-0037) modified 23 CFR part 450, which implements 
23 U.S.C. 168 and 169. Please visit the docket for more information 
regarding specific changes to the planning and environmental linkages 
processes. The Agencies also added ``as applicable'' to paragraph 
(a)(2)(i) to acknowledge the three Agencies may have different 
processes or requirements authorized by statute among themselves. For 
example, 23 U.S.C. 139 applies to FRA, but 23 U.S.C. 168 does not.
    The Agencies propose adding the requirement that a lead agency, in 
consultation with participating agencies, will develop an environmental 
checklist, as appropriate, to assist in resource and agency 
identification to the end of paragraph (a)(3) to reflect the new 
environmental checklist language found at 23 U.S.C. 139(e)(5). The 
Agencies interpret the statutory language in 23 U.S.C. 139(e)(5)(A) 
(``The lead agency for a project . . . shall develop, as appropriate, a 
checklist to help project sponsors identify potential natural, 
cultural, and historic resources . . . .'') as providing flexibility 
through the phrase ``as appropriate.'' The Agencies are, therefore, 
proposing ``will develop an environmental checklist, as appropriate'' 
to reflect the statutory flexibility that allows lead agencies, 
including project sponsors, to develop environmental checklists when 
needed to facilitate the environmental process.
    The Agencies propose renumbering existing paragraph (b) as (b)(1) 
and adding a new paragraph (b)(2). Proposed paragraph (b)(2) would 
state that for projects to be evaluated with an EIS, the Administration 
will respond in writing to a project sponsor's formal project 
notification within 45 days of receipt. This to respond to the new 
``review of application'' paragraph at 23 U.S.C. 139(e)(3), which 
builds off the existing project notification process established under 
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy of Users (SAFETEA-LU). The Agencies identify EISs in the 
proposed language because the procedures outlined in 23 U.S.C. 139 are 
``applicable to all projects for which an [EIS] is prepared under 
[NEPA]'' (23 U.S.C. 139(b)(1)). The Agencies may apply the section 139 
procedures to other classes of projects on a case-by-case basis but 
section 139 is only required for EISs, and the Agencies want to 
underscore that fact.
    In paragraph (c), the Agencies propose adding that a project 
sponsor may request the Secretary to designate the lead Federal agency 
when project elements fall within multiple DOT agencies' expertise. 
This addition responds to 23 U.S.C. 139(e)(4), but adds clarity 
regarding the provision's applicability. In most instances, the 
Agencies expect project sponsors will continue to contact FHWA, FRA, or 
FTA to determine the Federal lead agency, as is current practice.
    The Agencies propose building on the existing language regarding 
cooperating

[[Page 45534]]

and participating agency invitations in paragraph (d) by adding timing 
language for those agencies' identification. The Agencies would require 
that the lead agencies identify participating agencies within 45 days 
from publication of the notice of intent at the end of paragraph (d) to 
address the new requirement to identify participating agencies within 
45 days at 23 U.S.C. 139(d)(2).
    The Agencies propose adding a reference to FRA programs to 
paragraph (i) and its subordinate paragraphs, clarifying that FRA is 
adopting the approach that applicants in FTA's capital assistance 
programs use to engage the public. The Agencies also propose to add a 
reference to ``the scope of the NEPA analysis'' as an issue that the 
public or agencies might comment on during the 30-day period following 
the publication of a Notice of Intent.
    Additionally, the Agencies propose replacing ``NEPA documents'' 
with ``environmental documents'' in paragraph (i)(3) to be consistent 
with 40 CFR 1508.10. CEQ uses the term ``environmental document'' to 
refer to EIS, EA, finding of no significant impact, and record of 
decision documents broadly, which also is the Agencies' intent in 
paragraph (i)(3).
    The Agencies propose to add FRA's contact information to paragraph 
(j).
Section 771.113 Timing of Administration Activities
    In paragraph (a), the Agencies propose to add the word 
``environmental'' before the word ``studies'' for consistency with the 
term's use in the regulation.
    The Agencies propose to add paragraph (d)(4), which would create an 
FRA-specific exemption to the paragraph (a)(1) prohibition on 
proceeding with final design activities, property acquisition, purchase 
of construction materials or rolling stock, or project construction 
until the NEPA process is complete. The proposal is consistent with FRA 
policy and allows FRA to makes certain case-by-case exceptions for the 
purchase of railroad components or materials that can be used in other 
projects or resold. This is not a blanket exemption, and FRA would make 
case-by-case determinations based on the information available at the 
time to ensure such activities would not improperly influence the 
outcome of the NEPA process.
Section 771.115 Classes of Actions
    In paragraph (a)(4), the Agencies propose to change ``highway 
facility'' to ``transportation right-of-way'' for consistency in this 
section and across modes. This change is not meant to change the 
meaning of the term.
    The Agencies propose to add paragraph (a)(6), which would provide 
examples of FRA actions it finds normally require an EIS. Under this 
proposal, FRA would typically prepare an EIS for ``new construction of 
major railroad lines or facilities (e.g., terminal passenger stations, 
freight transfer yards, or railroad equipment maintenance facilities) 
that will not be located within an existing transportation right-of-
way.'' These examples are generally consistent with FRA's existing NEPA 
procedures and also the examples of FHWA and FTA actions normally 
requiring an EIS.
    In paragraph (b), the Agencies propose to add a reference to FRA's 
CEs in section 771.116.
Section 771.116 FRA Categorical Exclusions
    The Agencies propose to add a new Sec.  771.116. Although the 
Agencies collectively propose to add this section, the development of 
the proposed CEs for each Agency is based on each Agency's particular 
mission and programs, unique experiences, and existing lists of CEs. As 
a result, this section focuses on FRA's proposed CEs. One commenter 
suggests that DOT have one uniform set of CEs and identified specific 
FHWA CEs that FRA should adopt for its railroad projects. Typically, 
DOT operating administrations (OA) identify categories of actions 
appropriate for categorical exclusion based on the individual OA's 
experience. The FRA has identified and substantiated this proposed list 
of CEs based on its experience with these categories of actions. 
However, since many of the FHWA, FRA, and FTA actions are often 
similar, the actions may be covered in each OA's CE list but with 
appropriate differences reflecting the experiences of the OAs. 
Additionally, 49 U.S.C. 304 authorizes the use by one OA of another 
OA's CE in certain multimodal situations.
    Paragraph (a) of this section proposes to adopt the current text of 
Sec. Sec.  771.117(a) and 771.118(a), as modified to apply to FRA. This 
proposed paragraph would define a CE as an action meeting the 
definition in the CEQ regulation and, based on FRA's past experience, 
does not involve significant environmental impacts. Paragraph (b) of 
this section proposes to describe the circumstances FRA would use to 
determine whether an activity, normally meeting the requirements of a 
CE, would require further environmental study. The FRA's proposal to 
adopt the FTA and FHWA list of unusual circumstances addresses a 
comment recommending FRA redraft its existing list of circumstances 
requiring further environmental study (Environmental Procedures, 
section 4(e)). Proposed paragraph (b) clearly articulates the 
circumstances requiring further environmental study for FRA's railroad 
projects and provides consistency with FHWA and FTA.
    One commenter suggests FRA identify a subset of CEs that require 
documentation and those that do not need ``further NEPA approvals by 
FRA.'' The FRA understands this comment as a suggestion to adopt a 
``(c)'' and ``(d)'' list similar to those used by FHWA and FTA. The FRA 
considered this approach but does not propose to distinguish between 
different classes of CEs and will instead continue to use one 
comprehensive list and decide the appropriate standards for 
documentation on a project-by-project basis.
    Paragraph (c) of this section proposes to include the activities 
for categorical exclusion. The proposed list of activities in paragraph 
(c) is based on the CEs identified in FRA's Environmental Procedures, 
including those CEs added in 2013. Since 2013, FRA has conducted an 
internal review of its CEs to ensure their continued appropriate use 
and usefulness. Based on FRA's internal review and the comments 
received on the June Notice, paragraph (c) of this section proposes to 
make minor edits to several of the existing CEs; to eliminate 
unnecessary or duplicative CEs; and to add two new CEs.
    Support for FRA's proposals is included in a CE substantiation 
document. The CE substantiation document relies on internal FRA expert 
opinion, FRA's experience managing projects and other activities 
related to railroad safety and infrastructure development, and FRA's 
review of similar CEs used by other DOT OAs and other Federal agencies 
(often referred to as ``comparative benchmarking''). For additional 
information, including a description of the CEs FRA proposes to 
eliminate, please see the CE substantiation document, which FRA has 
included in the docket for public review. The following discussion 
focuses on the proposed new CEs and those FRA proposes to modify.
    Paragraph (c) proposes no changes to the following CEs (as compared 
to FRA's current Procedures for Considering Environmental Impacts): 
Paragraph (c)(2) covering personnel actions; paragraph (c)(6) covering 
rulemakings issued under section 17 of the Noise Control Act of 1972; 
paragraph (c)(8) covering hearings, meetings, or public affairs 
activities;

[[Page 45535]]

paragraph (c)(16) covering alterations to existing facilities, 
locomotives, stations, and rail cars to make them accessible for the 
elderly and persons with disabilities; paragraph (c)(19) covering the 
installation, repair and replacement of equipment and small structures 
designed to promote transportation safety, security, accessibility, 
communication or operational efficiency; paragraph (c)(22) covering the 
assembly or construction of facilities or stations; and paragraph 
(c)(23) covering track and track structure maintenance and 
improvements.
    Proposed paragraph (c)(1) provides a CE addressing administrative 
procurements, contracts for personal services, and training. Proposed 
paragraph (c)(3) modifies an existing FRA CE by adding ``training'' to 
the list of covered activities.
    Proposed paragraph (c)(3) provides a CE addressing planning or 
design activities that do not commit FRA to a particular course of 
action affecting the environment. Proposed paragraph (c)(3) is a 
modification of an existing FRA CE as it eliminates the limitation that 
the planning or design activity must be funded through FRA's financial 
assistance or FRA's own procurement process.
    Proposed paragraph (c)(4) provides a CE addressing localized 
geotechnical and other investigations that provide information for 
preliminary design and for environmental analyses and permitting 
purposes, such as: Drilling test bores for soil sampling; archeological 
investigations for archeology resources assessment or similar survey; 
and wetland surveys. This proposed CE covers investigations and surveys 
that inform environmental analyses and preliminary engineering for rail 
projects. These activities include geotechnical, geophysical, and other 
subsurface investigations, pedestrian and ground disturbing 
archaeological surveys and testing to determine eligibility for the 
National Register of Historic Places, and wetland surveys for purposes 
of wetland delineation or jurisdictional determinations. In FRA's 
experience, the impacts of these activities are generally minor in 
nature and any impacts are localized to the investigation or survey 
sites. This CE is consistent with existing FHWA and FTA CEs at 23 CFR 
771.117(c)(24) and 23 CFR 771.118(c)(16), respectively. FRA identified 
these activities as potentially appropriate for categorical exclusion 
in the June Notice. The FRA received one comment supporting this CE.
    Proposed paragraph (c)(5) provides a CE addressing internal orders, 
policies, and procedures that FRA is not required to publish in the 
Federal Register under the Administrative Procedure Act, 5 U.S.C. 
552(a)(1). This proposed CE is similar to an existing FRA CE. However, 
proposed paragraph (c)(5) would add ``policies'' to the list of 
activities covered by the CE.
    Proposed paragraph (c)(7) provides a CE addressing the provision of 
financial assistance for a project where the financial assistance would 
fund a completed activity. For example, FRA may be involved in projects 
where an applicant requests financial assistance to refinance a loan. 
In that case, the agency's decision is merely a financial transaction 
that would not itself lead to any environmental impacts. The FRA 
identified these activities as potentially being appropriate for 
categorical exclusion in the June Notice. FRA received one comment 
supporting this CE.
    Proposed paragraph (c)(9) provides a CE addressing maintenance or 
repair of existing railroad equipment. The proposed CE is a modified 
version of an existing FRA CE. Specifically, paragraph (c)(9) would 
move the phrase ``existing railroad facilities'' to the beginning of 
the CE. This clarifies that the list including equipment; track and 
bridge structures; and electrification, communication, signaling or 
security facilities are non-exclusive examples of existing railroad 
facilities. Paragraph (c)(9) would also clarify the scope of the CE to 
include ``repair'' activities. In FRA's experience, the scope of the 
potential impacts resulting from repair activities is generally similar 
to those that might occur during routine maintenance. The primary 
difference between the two is that unlike maintenance, repair 
activities may not occur on a regular or reoccurring basis. Paragraph 
(c)(9) would also remove the definition of maintenance because it is 
unnecessary. One commenter suggests modifying paragraph (c)(9) to add a 
reference to right-of-way in the definition of ``maintenance.'' 
However, this modification is unnecessary since FRA's proposal would 
eliminate the definition of maintenance.
    Proposed paragraph (c)(10) provides a CE addressing the emergency 
repair or replacement of an essential rail facility damaged by a 
natural disaster or catastrophic failure. This proposed CE is similar 
to an existing FRA CE; however, proposed paragraph (c)(10) would 
clarify that repairs following an emergency are also covered by the CE; 
define repair and replacement to include reconstruction, restoration, 
or retrofitting; clarify that when conducting the repair and 
replacement, the rail facility may be upgraded as necessary to meet 
existing codes and standards; remove the unnecessary limitation that 
the CE apply only to ``temporary'' replacements; and remove the 
reference to the immediacy of the repairs in relation to the disaster 
or catastrophic failure. One commenter suggests that FRA adopt the 
``emergency repairs'' CE applied by FHWA and FTA at 23 CFR 
771.117(c)(9) and 23 CFR 771.118(c)(11), respectively. In this SNPRM, 
FRA proposes modifications to its existing emergency repair CE, 
including the incorporation of relevant language and concepts from 23 
CFR 771.117(c)(9) and 23 CFR 771.118(c)(11).
    Proposed paragraph (c)(11) provides a CE addressing operating 
assistance to a railroad to continue existing service or an increase in 
service to meet demand. This proposed CE is similar to an existing FRA 
CE. The existing CE applies if the assistance will not result in a 
change in the impact or effect to the environment whereas proposed 
paragraph (c)(11) would modify the CE to focus on whether the project 
would result in significant changes to traffic density. The FRA finds 
focusing on change in traffic density for a CE covering operating 
assistance is more appropriate than the current imprecise limitation 
that the assistance will not result in a change in the effect on the 
environment.
    One commenter suggests revising proposed paragraph (c)(12) by 
removing the word ``minor'' before ``rail line additions,'' adding the 
phrase ``or within existing right-of-way,'' and modifying the CE's 
limitations by adding the requirement that the project can be 
constructed in less than 6 months and substantially within the existing 
right-of-way, and will not have additional significant environmental 
impacts beyond the existing rail yard or existing right-of-way. The FRA 
will not adopt the suggested change to remove ``minor'' because FRA 
cannot substantiate such an expansion of the CE. However, FRA proposes 
to adopt the suggested phrase ``or within existing right-of-way'' since 
it is consistent with the current scope of the CE and appropriately 
limits construction to within the existing right-of-way. The FRA also 
proposes to keep its existing limitations (i.e., ``[the] additions are 
not inconsistent with existing zoning, do not involve acquisition of a 
significant amount of right-of-way, and do not significantly alter the 
traffic density characteristics of the existing rail lines or rail 
facilities.'') which are consistent with FRA's experience with railroad 
projects rather than adopt the

[[Page 45536]]

commenter's suggestion which unnecessarily narrows the applicability of 
the CE.
    Proposed paragraph (c)(13) provides a CE addressing the 
acquisition, transfer and right to use real property and certain 
railroad infrastructure. The proposed CE would modify an existing 
version of this FRA CE by eliminating the reference to ``existing 
railroad equipment'' because acquisition of equipment would be covered 
by the CE proposed in paragraph (c)(18). Proposed paragraph (c)(13) 
also would allow the acquisition of ``real property.'' The FRA proposes 
this addition because acquisition alone does not impact the 
environment. In addition, the proposed CE would move the phrase 
``existing railroad facilities'' to the beginning of the CE to clarify 
that the list including equipment; track and bridge structures; and 
electrification, communication, signaling or security facilities are 
non-exclusive examples of existing railroad facilities. This is also 
consistent with the proposed structure of paragraph (c)(9). The 
proposed paragraph (c)(13) would also add ``transfer'' to the list of 
covered activities to accommodate potential FRA involvement in the 
transfer of real property or existing railroad facilities. This is 
consistent with an FTA CE at 23 CFR 771.118(c)(6).
    Proposed paragraph (c)(14) provides a CE addressing research, 
development, and demonstration activities. This proposed CE is similar 
to an existing FRA CE. However, proposed paragraph (c)(14) would expand 
the scope of the existing CE to include research, development, and 
demonstration activities beyond the development of signal, 
communication, or train control systems. While in the past this CE was 
almost exclusively used for the testing of train control systems, 
including Positive Train Control, FRA funds other research, 
development, and demonstration activities similar in scope, but 
involving different rail systems or infrastructure, are also 
appropriate for categorical exclusion.
    Proposed paragraph (c)(15) provides a CE addressing the 
promulgation of rules, the issuance of policy statements, the waiver of 
modification of existing regulatory requirements, and discretionary 
approvals. This proposed CE is similar to an existing FRA CE; however, 
proposed paragraph (c)(15) would add the waiver or modification of 
existing regulatory requirements and discretionary approvals, and 
remove the limitation that these activities be related to railroad 
safety. This proposed CE would retain the existing limitation for 
increases in environmental impacts and would not be used if FRA finds 
the activity would significantly increase emissions of air or water 
pollutants or noise. However, FRA proposes striking the clause in the 
existing CE reading ``or increased traffic congestion in any mode of 
transportation.''
    Proposed paragraph (c)(17) provides a CE addressing rehabilitation, 
reconstruction, removal, construction, or replacement of bridges. This 
proposed CE is similar to an existing FRA CE but adds ``removal'' of 
bridges to the scope of covered activities. The FRA finds it is 
sometimes necessary to remove old railroad bridges without 
simultaneously building a new bridge. In those cases, the removal of 
the bridge is not substantially different then construction, 
rehabilitation, or replacement activities and would have similar types 
of impacts. The FRA is also proposing minor edits to the existing FRA 
CE for clarity.
    Proposed paragraph (c)(18) addresses acquisition, rehabilitation, 
transfer, or maintenance of vehicles or equipment. The proposed CE is 
similar to an existing FRA CE but moves the examples of vehicles and 
equipment to precede the CE's proposed limitation. The FRA also 
proposes to focus the CE's limitation on whether the activity 
significantly alters the traffic density characteristics of an existing 
rail line rather than whether the activity causes a substantial 
increase in the use of infrastructure within the existing right-of-way. 
This proposed change will create consistency with other FRA CEs.
    Proposed paragraph (c)(20) provides a CE addressing environmental 
restoration, remediation and pollution prevention activities. This 
proposed CE is similar to an existing FRA CE. However, proposed 
paragraph (c)(20) would remove the limitation that activities occur 
``in or proximate to existing and former railroad track, 
infrastructure, stations, or facilities.'' In many cases, environmental 
restoration and natural resource management activities do not occur in 
close proximity to existing or former railroad track, infrastructure, 
stations, or facilities. Instead, these activities--including 
mitigation--must frequently be located to optimize the ecological value 
or benefit of the activity and are sited in consultation with, or at 
the direction of, various permitting agencies.
    One commenter suggests FRA adopt a number of existing FHWA CEs from 
the ``(c)-list'' with minor modifications to accommodate railroad 
projects. Most of the activities covered by the identified FHWA CEs are 
already included in one or more of FRA's proposed CEs. With respect to 
the FHWA CEs identified by the commenter, the activities described in 
Sec.  771.117(c)(7) (landscaping) and Sec.  771.117(c)(6) (installation 
of noise barriers or alternations to existing publically owned 
buildings to provide for noise reduction) are included in the non-
exclusive list of activities in proposed paragraph (c)(20); the 
activities described in Sec.  771.117(c)(8)) (installation of fencing, 
signs, pavement markings, small passenger shelters, traffic signals, 
and railroad warning devises where no substantial land acquisition or 
traffic disruption will occur) and Sec.  771.117(c)(27) (highway safety 
or traffic operations improvement projects, including the installation 
of ramp metering control devices and lighting, if the project meets the 
constraints in paragraph (e) of the section) are included in proposed 
paragraph (c)(19); the activities described in Sec.  771.117(c)(14)) 
(bus and rail car rehabilitation), Sec.  771.117(c)(17) (the purchase 
of vehicles where the use of the vehicles can be accommodated by 
existing facilities or new facilities which themselves are within a 
CE), and Sec.  771.117(c)(19) (purchase and installation of operating 
or maintenance equipment to be located within the transit facility and 
with no significant impacts off the site) are covered by proposed FRA 
CE paragraph (c)(18); the activities described in Sec.  771.117(c)(18) 
(track and rail bed maintenance and improvements when carried out 
within the existing right-of-way) are covered by proposed paragraph 
(c)(22); and the activities described in Sec.  771.117(c)(28) (bridge 
rehabilitation, reconstruction, or replacement or the construction of 
grade separation to replace existing at-grade railroad crossings, if 
the actions meet the constraints in paragraph (e) of the section) are 
covered by proposed paragraph (c)(17).
    The same commenter also suggests FRA adopt Sec.  771.117(c)(2) 
(approval of utility installations along or across a transportation 
facility). At this time and based on FRA's experience, FRA does not 
have a sufficient need for a CE addressing utility installations. To 
the extent utility work is being completed as part of an FRA action, 
the work is typically incidental to a railroad project and as such is 
generally analyzed in an environmental document (which may be a CE if 
appropriate) for that project. The commenter also suggests FRA adopt 
Sec.  771.117(d)(1) (modernization of a highway by resurfacing, 
restoration, rehabilitation, reconstruction, adding shoulders, or 
adding auxiliary lanes (e.g. parking, weaving, turning, climbing)). The 
FRA is proposing CEs similar in scope but directly applicable to 
railroad

[[Page 45537]]

projects (e.g., proposed paragraphs (c)(9) and (22)).
    One commenter suggests FRA modify paragraph (c)(16) to allow 
alterations to existing facilities, locomotives, stations, and rail 
cars even where the alterations are not for the purpose of making them 
accessible for the elderly and persons with disabilities. This 
modification would change the scope of the CE FRA added in 2013 based 
on FRA's experience with projects intended to improve accessibility. 
However, FRA notes that these same activities may be covered by another 
FRA CE (e.g., proposed paragraph (c)(18)).
    One commenter suggests FRA adopt one FHWA ``(d)-list'' CE modified 
slightly to accommodate railroad projects. Specifically, the commenter 
suggests FRA adopt Sec.  771.117(d)(8) (construction of new bus storage 
and maintenance facilities in areas used predominantly for industrial 
or transportation purposes where such construction is not inconsistent 
with existing zoning and located on or near a street with adequate 
capacity to handle anticipated bus and support vehicle traffic). These 
activities are included in proposed paragraph (c)(21).
    One commenter asks FRA to address the authority provided by MAP-21 
section 1308 and FAST Act section 1315 allowing State DOTs to enter 
into agreements with FHWA to make CE determinations on FHWA's behalf. 
The FRA does not have the legal authority to participate in this 
program and will therefore not include it in this section. The same 
commenter suggests that FRA address 49 U.S.C. 304, Application of 
Categorical Exclusions for Multimodal Projects. That section does not 
create new CEs but rather sets up a process by which OAs can use the 
CEs of another OA under certain multimodal project circumstances. Since 
this process applies to all OAs, not just the Agencies, it is 
appropriately addressed by separate guidance, likely issued by DOT's 
Office of the Secretary, and not in this SNPRM.
    One commenter also asked that FRA apply its CEs less strictly and 
exercise more flexibility in considering which projects qualify as a 
CE. The FRA will continue to review each FRA action on an individual 
basis to ensure the action meets the definition of one or more FRA CEs 
and does not involve circumstances requiring further environmental 
study. Where there are unusual circumstances present, FRA will, in 
cooperation with the applicant, conduct appropriate environmental 
studies to determine whether application of the CE is still proper.
    Two commenters supported the CEs FRA proposed in the June Notice. 
The FRA appreciates the commenters' support.
Section 771.117 FHWA Categorical Exclusions and
Section 771.118 FTA Categorical Exclusions
    The Agencies propose to modify paragraph (a) under Sec. Sec.  
771.117 and 771.118 to begin with ``CEs'' because the Agencies 
introduce the acronym earlier in the regulation. Additionally, the 
Agencies propose clarifying in the first sentence of Sec. Sec.  
771.117(a) and 771.118(a) that the actions are based on FHWA's and 
FTA's past experience, respectively. These are non-substantive changes 
providing clarity to paragraph (a) in both sections.
    Following 3 years of implementation, FHWA and FTA request comments 
regarding the definition of ``operational right-of-way'' for the CEs 
located at 23 CFR 771.117(c)(22) and 771.118(c)(12), respectively. As 
currently defined in the regulation and as discussed in the January 13, 
2014, final rule establishing the CEs (see 79 FR 2111-2112), the 
Agencies attemped to define ``operational right-of-way'' broadly with 
few conditions, thereby allowing flexibility in the application of 
those CEs. The Agencies are soliciting feedback from the public on how 
operational right-of-way is currently defined in the regulation and 
request detailed proposals on ways to further clarify the existing 
definition. Is the scope of ``operational right-of-way'' appropriately 
broad? Should fewer conditions be applied? If so, what conditions? Can 
the definition be revised to allow for greater flexibility in the 
application of the CE? If so, how? Please provide specific examples and 
any data (e.g., cost and benefit information) to help justify your 
proposal.
Section 771.119 Environmental Assessments
    The Agencies propose to add a new paragraph (a)(3) to address, for 
FRA, situations when a private entity proposes a project that can be 
analyzed in an EA and there is no applicant as defined in Sec.  
771.107. In those situations, this paragraph would give FRA the 
discretion to require the project sponsor to procure and use a third 
party contractor, as described in Sec.  771.109(e), to prepare the EA. 
The Agencies also propose to add a requirement for contractors to 
execute a conflict of interest disclosure statement similar to the 
language in paragraph (a)(2) (previously proposed paragraph (a)(ii)), 
applicable to FTA projects and which FHWA and FTA proposed in the 
November 2015 NPRM.
    The Agencies also propose to clarify in paragraph (d) that an EA 
must be made available for public inspection at the applicant's office 
and at the appropriate Administration field office, or for FRA at 
Headquarters offices, for 30 days. This does not change any substantive 
or procedural requirement.
    Lastly, the Agencies propose to fix a typo in paragraph (h) by 
moving the period outside the last parenthesis after ``(See 40 CFR 
1501.4(e)(2)).''
Section 771.123 Draft Environmental Impact Statements
    In paragraphs (a) and existing (b) (proposed paragraph (b)(1), as 
discussed below), the Agencies propose modifying the existing language 
in the last sentence of each paragraph to encourage announcing the 
intent to prepare an EIS by the appropriate means at the State level, 
as well as the local level.
    The Agencies propose renumbering paragraph (b) as paragraph (b)(1) 
and adding a new paragraph (b)(2) regarding timing of the coordination 
plan in relation to notice of intent publication. This proposal 
reflects the changes to 23 U.S.C. 139(g)(1)-coordination plan.
    In paragraph (c), the Agencies propose replacing ``discuss'' with 
``document'' in the second sentence, which more accurately describes 
the action needing to occur. Additionally, in paragraph (c), the 
Agencies propose adding language to reflect the FAST Act changes to 23 
U.S.C. 139(f)(4) regarding the range of alternatives. The proposed 
language would fulfill the statutory intent of mandating use of the 
range of alternatives for all Federal environmental reviews and permit 
processes, to the maximum extent practicable and consistent with 
Federal law, while directing the reader to the statute for the specific 
exception requirements. The Agencies propose inserting after the second 
sentence a statement that the range of alternatives considered for 
further study shall be used for all Federal environmental reviews and 
permit processes, to the maximum extent practicable and consistent with 
Federal law, unless the lead and participating agencies agree to modify 
the alternatives in order to address significant new information and 
circumstances or to fulfill NEPA responsibilities in a timely manner, 
in accordance with 23 U.S.C. 139(f)(4)(B).
Section 771.124 Final Environmental Impact Statement/Record of Decision
    The Agencies propose two non-substantive changes in this section. 
In paragraph (a)(1), the Agencies propose

[[Page 45538]]

to replace ``record of decision'' with ``ROD'' because the term is 
introduced earlier in the regulation. In paragraph (a)(1)(ii), the 
Agencies propose deleting ``and'' after ``environmental concerns'' 
because it is awkward and unnecessary.
    Additionally, the Agencies propose inserting ``pursuant to 40 CFR 
1503.4(c)'' at the end of the clause ``an errata sheet may be attached 
to the draft statement'' in paragraph (a)(3) to provide consistency 
with 23 CFR 771.125(g).
Section 771.125 Final Environmental Impact Statements
    While the Agencies propose to add FRA to part 771, the Agencies are 
not proposing to change the general requirement in paragraph (c) that 
the Agencies submit certain Final EISs to the Administration's 
Headquarters for prior concurrence. The FRA currently administers its 
environmental program from Headquarters. If FRA establishes field 
offices in the future, Headquarters' prior concurrence for the actions 
described in paragraph (c) will still be required.
    In addition, in paragraph (d) the Agencies propose to replace 
``grant request'' with ``request for financial assistance'' to clarify 
that approval of the final EIS does not commit the Administration to 
provide any future financial assistance (not just grant funding) for 
the preferred alternative.
Section 771.129 Re-Evaluations
    In paragraph (c), the Agencies proposed re-inserting the sentence 
regarding consultations being documented when determined necessary by 
the Administration, which is existing language in 23 CFR 771.129(c) but 
was inadvertently deleted when the November 2015 NPRM was published for 
public review and comment. This is a non-substantive change.
Section 771.131 Emergency Action Procedures
    The Agencies propose capitalizing ``headquarters'' in order to be 
consistent with other references to Headquarters in the regulation; 
this is a non-substantive change.
    The Agencies also propose to add a reference to FRA's CE covering 
the response to emergencies and disasters.
Section 771.139 Limitation on Actions
    The Agencies propose modifying the title and text of this section 
by replacing ``actions'' with ``claims'' to address a potential 
inconsistency with the definition of ``Action'' in 23 CFR 771.107(b). 
The Agencies seek to clarify that the limitation is on legal claims 
arising out of an ``Action,'' not on an ``Action'' itself. This is a 
non-substantive change. Additionally, the Agencies propose adding the 
word ``time'' before the word ``barred'' throughout this section to 
clarify that this is a time limitation on claims. This is also a non-
substantive change.
    The Agencies propose modifying this section to clearly describe the 
different limitations on claims. The Agencies propose to clarify the 
150-day limitation is limited to FHWA and FTA. The Agencies also 
propose to add a sentence immediately following addressing FRA's 2-year 
limitation on claims for railroad projects requiring the approval of 
the Secretary under NEPA created by section 11503 of the FAST Act (49 
U.S.C. 24201(a)(4)). Furthermore, the Agencies would revise the second 
reference to 150 days in the existing language to broadly refer to the 
two standards by stating ``These time periods do not lengthen any 
shorter time period . . .''
    The Agencies also propose to delete the footnote in this section to 
be consistent with the November 2015 NPRM. In that NPRM the Agencies 
proposed removing references to specific guidance documents, such as 
the footnote in this section, in order to maximize flexibility of this 
regulation. The Agencies are currently updating the ``SAFETEA-LU 
Environmental Review Process: Final Guidance,'' so the current 
reference is outdated.

Section 4(f) Regulation Changes (Part 774)

Section 774.3 Section (f) Approvals
    As part of the review of regulatory provisions in drafting this 
SNPRM, the Agencies are proposing to modify the footnote in paragraph 
(d) to refer the reader to FHWA's Section 4(f) Programmatic Evaluations 
Web page (www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp) rather 
than listing the Section 4(f) programmatic evaluations in the 
regulation. By providing a Web page, the reader would have access to 
the most recent list of programmatic evaluations available, and the 
regulation would stay current whenever the Agencies revise the list of 
Section 4(f) programmatic evaluations. In addition, the Web site may be 
used to provide guidance on use of the programmatic approaches.
Section 774.13 Exceptions
    This section sets forth a number of exceptions to otherwise 
applicable Section 4(f) requirements. The exceptions are either founded 
in statute or reflect case law and longstanding practices governing 
when to apply Section 4(f).
    Paragraph (a) is an exception from the Section 4(f) process for 
projects involving work on a transportation facility that is itself 
historic. This exception reflects the Agencies' longstanding policy 
that when a project involves a historic facility that is already 
dedicated to a transportation purpose and does not adversely affect the 
historic qualities of that facility, then the project does not ``use'' 
the facility within the meaning of Section 4(f). The exception applies 
to all types of transportation facilities, including elements, 
structures, and features of a highway, transit, or rail facility.
    In the FAST Act, Congress created two new exceptions from Section 
4(f) for historic transportation facilities in certain circumstances. 
The Agencies propose to amend paragraph (a) to incorporate the new 
exceptions. Specifically, the Agencies propose to incorporate the two 
new exceptions from the Section 4(f) process for historic 
transportation facilities by renumbering paragraph (a) as paragraph 
(a)(3) and adding new paragraphs (a)(1) and (2). The Agencies propose 
to add to paragraph (a) the introductory phrase ``the use of historic 
transportation facilities in certain circumstances:'' to match the 
other existing exceptions in section 774.13.
    The Agencies propose new paragraph (a)(1) to incorporate section 
1303 of the FAST Act which exempts from Section 4(f) the use of common 
concrete and steel bridges and culverts, built after 1945, that the 
Advisory Council on Historic Preservation exempted from individual 
Section 106 review under a Program Comment.\1\ The Program Comment 
applies to bridges lacking distinction, not previously listed or 
determined eligible for listing on the National Register, and not 
located in or adjacent to historic districts, and only becomes 
available in a particular State after the State Department of 
Transportation, the State Historic Preservation Officer, and the 
applicable FHWA Division office consult and reach agreement on whether 
the State has any exceptional bridges that the Program Comment will not 
cover. While FHWA proposed the Program Comment, it can be used by any 
Federal agency, including FTA and FRA.
---------------------------------------------------------------------------

    \1\ ``Program Comment Issue for Streamlining Section 106 Review 
for Actions Affecting Post-1945 Concrete and Steel Bridges,'' 77 FR 
68790 (Nov. 16, 2012).
---------------------------------------------------------------------------

    The intent of this new Section 4(f) exception is to eliminate 
unnecessary

[[Page 45539]]

Section 4(f) processes for the hundreds of thousands of common 
``cookie-cutter'' bridges constructed after 1945, which are not 
exceptional, in those States that have reported the results of the 
consultation required by the Program Comment. To date, 35 States and 
Puerto Rico have completed this requirement, as reflected on the Bridge 
Program Comment Excepted Bridges list available at https://www.environment.fhwa.dot.gov/histpres/bridges_list.asp.
    The Agencies propose new paragraph (a)(2) to incorporate section 
11502 of the FAST Act, which exempts improvements to historic railroad 
and transit lines and their elements from Section 4(f).
    The Agencies interpret the words ``improvements to'' in section 
11502 as inclusive of the other activities listed in section 11502: 
Maintenance, rehabilitation, or operation of railroad or rail transit 
lines. For clarity, the Agencies expanded the list of examples of 
activities that may occur on elements of railroad or rail transit lines 
that may improve the transportation function of those railroad and rail 
transit lines. The Agencies believe that preservation, modernization, 
reconstruction, and replacement of an element of a historic 
transportation facility are types of ``improvements'' to railroad and 
rail transit lines and thus propose to include these activities in the 
exception. The Agencies further believe that any type of safety 
improvement to a highway crossing of an active railroad or transit 
line--whether at grade or grade separated--should be considered an 
``improvement to'' the railroad or transit line by virtue of making 
travel safer for the public, and thus would be covered by the new 
exception.
    While the Agencies chose not to further define the terms ``railroad 
or rail transit lines or elements thereof'' within the regulation text, 
they view these terms as including all elements related to the historic 
or current transportation function such as railroad or rail transit 
track, elevated support structures, rights-of-way, substations, 
communication devices, and maintenance facilities. The Agencies do not 
propose to include historic sites unrelated to transportation but 
located within or adjacent to railroads or rail transit lines, or 
elements thereof in this exception. Examples of such exclusions include 
archeological sites unrelated to railroad or rail transit and sites of 
traditional religious and cultural importance to Indian tribes.
    Per section 11502 of the FAST Act, all stations, and certain 
bridges and tunnels, are not included in the proposed paragraph (a)(2) 
exception. Specifically, bridges and tunnels on railroad lines that 
have been abandoned, as determined by the Surface Transportation Board 
through the process described in 49 CFR part 1152, are not included in 
the proposed exception, except for bridges and tunnels on railroads 
that have been railbanked, as defined in 16 U.S.C. 1247(d) or otherwise 
preserved for future transportation use. In addition, the Agencies are 
proposing that bridges and tunnels on rail transit lines that are not 
in use and over which regular service has never operated are not 
included in the exception.
    The proposed new paragraph (a)(3) reads as set out in the 
regulatory text below. This paragraph mirrors existing Sec.  774.13(a). 
The Agencies are not proposing to change the short list of activities: 
``restoration, rehabilitation, or maintenance'' that are included in 
the existing regulatory text now located under paragraph (a)(3), but 
the Agencies specifically request that commenters consider whether the 
list of covered activities should be expanded to mirror the activities 
included in paragraph (a)(2) which is proposed to read: ``maintenance, 
preservation, rehabilitation, operation, modernization, reconstruction, 
and replacement.'' Under this option, there would still be two 
important conditions for the exception to apply under paragraph (a)(3): 
The Agencies must determine through a Section 106 consultation that the 
work would not adversely affect the historic qualities of the historic 
transportation facility that cause it to be listed on or eligible for 
the National Register of Historic Places and the official(s) with 
jurisdiction must not object to that determination. Having the same 
list of activities in both subparagraphs is desirable because it would 
simplify administration of the exception. The Agencies seek comment, 
including examples, regarding whether the two conditions in paragraph 
(a)(3) would adequately protect significant historic transportation 
facilities in the case of projects to operate, modernize, reconstruct 
or replace the transportation facility.
Section 774.15 Constructive Use Determinations
    In paragraph (f)(2), the Agencies propose to reorganize the 
paragraph and to add railroad projects to the sentence referencing the 
FTA guidelines for transit noise and vibration assessments because FRA 
has applied FTA criteria to evaluate noise impacts resulting from 
railroad operations for decades. In addition, the Agencies propose to 
add a new situation in which a constructive use would not occur. 
Specifically, the Agencies are proposing to add a reference to high-
speed ground transportation projects having moderate noise impacts 
according to FRA's established high-speed ground transportation noise 
and vibration guidelines. The FRA first developed these guidelines, 
available at https://www.fra.dot.gov/eLib/Details/L04090, in the late 
1990s and they apply to train operations over 90 miles per hour.
Section 774.17 Definitions
    In the definition of ``Administration'' the Agencies propose to add 
FRA.
    In the definition of ``CE'' the Agencies propose to add a reference 
to FRA's and FTA's CEs in 23 CFR 771.116 and 23 CFR 771.118, 
respectively.

49 CFR Part 264--Environmental Impact and Related Procedures

    The Agencies propose to amend part 264 in 49 CFR to include 
references to 23 CFR part 771 and 23 CFR part 774. A cross reference 
would assist potential FRA applicants, State and Federal agencies, and 
the public.

Rulemaking Analyses and Notices

Statutory/Legal Authority for This Rulemaking

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

Rulemaking Analyses and Notices

    The Agencies will consider all comments received before the close 
of business on the comment closing date indicated above and will make 
such comments available for examination in the docket (FHWA-2015-0011) 
at regulations.gov. Comments received after the comment closing date 
will be filed in the docket and the Agencies will consider them to the 
extent practicable. In addition to late comments, the Agencies will 
also continue to file

[[Page 45540]]

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 U.S. 
Department of Transportation regulatory policies and procedures (44 FR 
11032). 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 rule is not expected to be an Executive Order 
13771 regulatory action because this proposed rule is not significant 
under Executive Order 12866.
    This SNPRM proposes to modify 23 CFR parts 771 and 774 in order to 
be consistent with changes introduced by MAP-21 and the FAST Act, make 
the regulation more consistent with the FHWA and FTA practices, and add 
FRA to parts 771 and 774. These proposed changes would not adversely 
affect, in any material way, any sector of the economy. In addition, 
these changes would not interfere with any action taken or planned by 
another agency and would not materially alter the budgetary impact of 
any entitlements, grants, user fees, or loan programs. Consequently, a 
full regulatory evaluation is not required. The Agencies anticipate 
that the changes in this SNPRM would enable projects to move more 
expeditiously through the Federal review process and would reduce the 
preparation of extraneous environmental documentation and analysis not 
needed for compliance with NEPA or Section 4(f) while still ensuring 
that projects are built in an environmentally responsible manner and 
consistent with Federal law. The Agencies request comment, including 
data and information on the experiences of project sponsors, on the 
likely effects of the changes being proposed.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the Agencies have evaluated the effects of this 
proposed rule on small entities and anticipate that this action would 
not have a significant economic impact on a substantial number of small 
entities. ``Small entities'' include small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000. The proposed revisions are expected to 
expedite environmental review and thus are anticipated to be less 
burdensome than any current impact on small business entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This proposed rule will not result in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$148.1 million or more in any one year (2 U.S.C. 1532). Further, in 
compliance with the Unfunded Mandates Reform Act of 1995, the Agencies 
will evaluate any regulatory action that might be proposed in 
subsequent stages of the proceeding to assess the effects on State, 
local, and tribal governments and the private sector.

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. The Agencies analyzed this proposed 
action in accordance with the principles and criteria contained in 
Executive Order 13132 and determined that it would not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment. The Agencies have also determined that this proposed action 
would not preempt any State law or State regulation or affect the 
States' ability to discharge traditional State governmental functions. 
The Agencies invite State and local governments with an interest in 
this rulemaking to comment on the effect that adoption of specific 
proposals may have on State or local governments.

Executive Order 13175 (Tribal Consultation)

    The Agencies have analyzed this action under Executive Order 13175, 
and determined that it would not have substantial direct effects on one 
or more Indian tribes; would not impose substantial direct compliance 
costs on Indian tribal governments; and would not preempt tribal law. 
Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    The Agencies have analyzed this action under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agencies have determined that this action is 
not a significant energy action under 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

[[Page 45541]]

Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a), 91 FR 27534 (May 10, 2012) (available online at 
www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve environmental 
justice (EJ) as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority 
populations and low-income populations in the United States. The DOT 
Order requires DOT agencies to address compliance with the Executive 
Order and the DOT Order in all rulemaking activities. In addition, FHWA 
and FTA have issued additional documents relating to administration of 
the Executive Order and the DOT Order. On June 14, 2012, FHWA issued an 
update to its EJ order, FHWA Order 6640.23A, FHWA Actions to Address 
Environmental Justice in Minority Populations and Low Income 
Populations (available online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.cfm). The FTA also issued an update to its EJ policy, 
FTA Policy Guidance for Federal Transit Recipients, 77 FR 42077 (July 
17, 2012) (available online at http://www.fta.dot.gov/legislation_law/12349_14740.html).
    The Agencies have evaluated this proposed rule under the Executive 
Order, the DOT Order, the FHWA Order, and the FTA Circular. The 
Agencies have determined that the proposed changes to 23 CFR parts 771 
and 774, if finalized as proposed, would not cause disproportionately 
high and adverse human health and environmental effects on minority or 
low income populations.
    At the time the Agencies apply the NEPA implementing procedures in 
23 CFR part 771, the Agencies would have an independent obligation to 
conduct an evaluation of the proposed action under the applicable EJ 
orders and guidance to determine whether the proposed action has the 
potential for EJ effects. The rule would not affect the scope or 
outcome of that EJ evaluation. In any instance where there are 
potential EJ effects resulting from a proposed Agency action covered 
under any of the NEPA classes of action in 23 CFR part 771, public 
outreach under the applicable EJ orders and guidance would provide 
affected populations with the opportunity to raise any concerns about 
those potential EJ effects. See DOT Order 5610.2(a), FHWA Order 
6640.23A, and FTA Policy Guidance for Transit Recipients (available at 
links above). Indeed, outreach to ensure the effective involvement of 
minority and low income populations where there is potential for EJ 
effects is a core aspect of the EJ orders and guidance. For these 
reasons, the Agencies have determined that no further EJ analysis is 
needed and no mitigation is required in connection with the proposed 
revisions to the Agencies' NEPA and Section 4(f) implementing 
regulations (23 CFR parts 771 and 774).

Executive Order 13045 (Protection of Children)

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

Executive Order 12630 (Taking of Private Property)

    The Agencies do not anticipate that this action would affect a 
taking of private property or otherwise have taking implications under 
Executive Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights.

National Environmental Policy Act

    Agencies are required to adopt implementing procedures for NEPA 
that establish specific criteria for, and identification of, three 
classes of actions: those that normally require preparation of an EIS; 
those that normally require preparation of an EA; and those that are 
categorically excluded from further NEPA review (40 CFR 1507.3(b)). The 
CEQ regulations do not direct agencies to prepare a NEPA analysis or 
document before establishing agency procedures (such as this 
regulation) that supplement the CEQ regulations for implementing NEPA. 
The changes proposed in this rule are part of those agency procedures, 
and therefore establishing the proposed changes does not require 
preparation of a NEPA analysis or document. Agency NEPA procedures are 
generally procedural guidance to assist agencies in the fulfillment of 
agency responsibilities under NEPA, but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular proposed action. The requirements for establishing agency 
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3.

Regulation Identifier Number

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

List of Subjects

23 CFR Part 771

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

23 CFR Part 774

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

49 CFR Part 264

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

49 CFR Part 622

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


[[Page 45542]]


    Issued in Washington, DC, under authority delegated in 49 CFR 
1.85 and 1.91:
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
Heath Hall,
Acting Administrator, Federal Railroad Administration.
Jane Williams,
Acting Administrator, Federal Transit Administration.

    In consideration of the foregoing, the Agencies propose to amend 
title 23, Code of Federal Regulations parts 771 and 774, and title 49, 
Code of Federal Regulations parts 264 and 622, 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 
through 1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119 Stat. 
1144, Sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, 
Sections 1315, 1316, 1317, 1318, and 1319; and Public Law 114-94, 
129 Stat. 1312, Sections 1314 and 1432.

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


Sec.  771.101  Purpose.

    This regulation prescribes the policies and procedures of the 
Federal Highway Administration (FHWA), the Federal Railroad 
Administration (FRA), and the Federal Transit Administration (FTA) for 
implementing the National Environmental Policy Act of 1969 as amended 
(NEPA), and supplements the NEPA regulation of the Council on 
Environmental Quality (CEQ), 40 CFR parts 1500 through 1508 (CEQ 
regulation). Together these regulations set forth all FHWA, FRA, FTA 
and Department of Transportation (DOT) requirements under NEPA for the 
processing of highway, public transportation, and railroad projects. 
This regulation also sets forth procedures to comply with 23 U.S.C. 
109(h), 128, 138, 139, 325, 326, and 327; 49 U.S.C. 303 and 5323(q); 
Public Law 112-141, 126 Stat. 405, section 1301 as applicable; and 
Public Law 114-94, 129 Stat. 1312, section 1304.
0
3. Further amend Sec.  771.105, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by removing the introductory text and 
revising paragraphs (a), (b), and the first sentence in (e)(2) to read 
as follows:


Sec.  771.105  Policy.

    (a) To the maximum extent practicable and consistent with Federal 
law, all environmental investigations, reviews, and consultations be 
coordinated as a single process, and compliance with all applicable 
environmental requirements be reflected in the environmental review 
document required by this regulation.\1\
---------------------------------------------------------------------------

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

    (b) Programmatic approaches be developed for compliance with 
environmental requirements (including the requirements found at 23 
U.S.C. 139(b)), coordination among agencies and/or the public, or to 
otherwise enhance and accelerate project development.
* * * * *
    (e) * * *
    (2) The proposed mitigation represents a reasonable public 
expenditure after considering the impacts of the action and the 
benefits of the proposed mitigation measures. * * *
* * * * *
0
4. Further amend Sec.  771.107, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by revising the defintions for ``Action,'' 
``Administration,'' and ``Administration action'' to read as follows:


Sec.  771.107  Definitions.

* * * * *
    Action. A highway, transit, or railroad project proposed for FHWA, 
FRA, or FTA funding. It also includes activities such as joint and 
multiple use permits, changes in access control, rulemakings, etc., 
which may or may not involve a commitment of Federal funds.
    Administration. The FHWA, FRA, or FTA, whichever is the designated 
Federal lead agency for the proposed action. A reference herein to the 
Administration means the FHWA, FRA, or FTA, or a State when the State 
is functioning as the FHWA, FRA, or FTA in carrying out 
responsibilities delegated or assigned to the State in accordance with 
23 U.S.C. 325, 326, or 327, or other applicable law. A reference herein 
to the FHWA, FRA, or FTA means the State when the State is functioning 
as the FHWA, FRA, or FTA, respectively in carrying out responsibilities 
delegated or assigned to the State in accordance with 23 U.S.C. 325, 
326, or 327, or other applicable law. Nothing in this definition alters 
the scope of any delegation or assignment made by FHWA, FRA, or FTA.
    Administration action. FHWA, FRA, or FTA approval of the 
applicant's request for Federal funds for construction. It also 
includes approval of activities such as joint and multiple use permits, 
changes in access control, rulemakings, etc., which may or may not 
involve a commitment of Federal funds.
* * * * *
0
5. Further amend Sec.  771.109, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by revising paragraphs (a)(1), (b)(1), and 
(c)(2), (6), and (7) and adding paragrpah (e) to read as follows:


Sec.  771.109  Applicability and responsibilities.

    (a)(1) The provisions of this regulation and the CEQ regulation 
apply to actions where the Administration exercises sufficient control 
to condition the permit, project, or other approvals. Actions taken by 
the applicant which do not require Federal approvals, such as 
preparation of a regional transportation plan are not subject to this 
regulation.
* * * * *
    (b)(1) The applicant, in cooperation with the Administration, is 
responsible for implementing those mitigation measures stated as 
commitments in the environmental documents prepared pursuant to this 
regulation unless the Administration approves of their deletion or 
modification in writing. The FHWA will assure that this is accomplished 
as a part of its stewardship and oversight responsibilities. The FRA 
and FTA will assure implementation of committed mitigation measures by 
including the mitigation measures by reference in the grant agreement, 
followed by reviews of designs and construction inspections.
    (c) * * *
    (2) Any applicant that is a State or local governmental entity that 
is, or is expected to be, a direct recipient of funds under title 23, 
U.S. Code or chapter 53 of title 49, U.S. Code for the action or is, or 
is expected to be, a direct recipient of financial assistance for which 
FRA is responsible (e.g., Subtitle V of Title 49, U.S. Code) shall 
serve as a joint lead agency with the Administration in accordance with 
23 U.S.C. 139, and may prepare environmental review documents if the 
Administration furnishes guidance and independently evaluates the 
documents.
* * * * *
    (6) Subject to paragraph (e) of this section, the role of a project 
sponsor that is a private institution or firm is limited

[[Page 45543]]

to providing technical studies and commenting on environmental review 
documents.
    (7) A participating agency is responsible for providing input, as 
appropriate, during the times specified in the coordination plan under 
23 U.S.C. 139(g) and within the agency's special expertise or 
jurisdiction. Participating agencies provide comments, if any, and 
concurrence on the schedule within the coordination plan.
* * * * *
    (e) When FRA is the lead Federal agency, and the project sponsor is 
a private entity, and there is no applicant acting as a joint-lead 
agency, FRA shall use a qualified third-party contractor to prepare an 
EIS. Third-party contracting is a voluntary arrangement whereby the 
project sponsor retains a contractor to assist in conducting the 
environmental review under the direction, supervision, and control of 
the Administration. FRA must oversee the preparation of the EIS and 
retains ultimate control over the third-party contractor's work 
product. FRA may require use of a third-party contractor for 
preparation of an EA at its discretion. FRA, the project sponsor, and 
the contractor will enter into a memorandum of understanding (MOU) that 
outlines at a minimum the conditions and procedures to be followed in 
carrying out the MOU and the responsibilities of the parties to the 
MOU.
0
6. Further amend Sec.  771.111, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by revising paragraphs (a)(2)(i), (a)(3), 
(b), (c), (d), (i), and (j) to read as follows:


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

    (a) * * *
    (2)(i) The information and results produced by, or in support of, 
the transportation planning process may be incorporated into 
environmental review documents in accordance with 40 CFR parts 1500 
through 1508, 23 CFR part 450, or 23 U.S.C. 139(f), 168, or 169, as 
applicable.
* * * * *
    (3) Applicants intending to apply for funds should notify the 
Administration at the time that a project concept is identified. When 
requested, the Administration will advise the applicant, insofar as 
possible, of the probable class of action (see Sec.  771.115) and 
related environmental laws and requirements and of the need for 
specific studies and findings that would normally be developed during 
the environmental review process. A lead agency, in consultation with 
participating agencies, will develop an environmental checklist, as 
appropriate, to assist in resource and agency identification.
    (b)(1) The Administration will identify the probable class of 
action as soon as sufficient information is available to identify the 
probable impacts of the action.
    (2) For projects to be evaluated with an EIS, the Administration 
shall respond to a project sponsor's formal project notification within 
45 days of receipt and in writing.
    (c) When the FHWA, FRA, or FTA are involved in the development of 
an action, or when the FHWA, FRA, or FTA act as a joint lead agency 
with another Federal agency, a mutually acceptable process will be 
established on a case-by-case basis. A project sponsor may request the 
Secretary to designate the lead Federal agency when project elements 
fall within multiple DOT agencies' expertise.
    (d) During the early coordination process, the lead agencies may 
request other agencies having an interest in the action to participate, 
and must invite such agencies if the action is subject to the project 
development procedures in 23 U.S.C. 139. Agencies with special 
expertise may be invited to become cooperating agencies. Agencies with 
jurisdiction by law must be requested to become cooperating agencies. 
The lead agencies identify participating agencies within 45 days from 
publication of the notice of intent.
* * * * *
    (i) Applicants for FRA programs or the FTA capital assistance 
program:
    (1) Achieve public participation on proposed actions through 
activities that engage the public, including public hearings, town 
meetings, and charrettes, and seeking input from the public through 
scoping for the environmental review process. Project milestones may be 
announced to the public using electronic or paper media (e.g., 
newsletters, note cards, or emails) pursuant to 40 CFR 1506.6. For 
actions requiring EISs, an early opportunity for public involvement in 
defining the purpose and need for the action and the range of 
alternatives must be provided, and a public hearing will be held during 
the circulation period of the draft EIS.
    (2) May participate in early scoping as long as enough project 
information is known so the public and other agencies can participate 
effectively. Early scoping constitutes initiation of NEPA scoping while 
local planning efforts to aid in establishing the purpose and need and 
in evaluating alternatives and impacts are underway. Notice of early 
scoping must be made to the public and other agencies. If early scoping 
is the start of the NEPA process, the early scoping notice must include 
language to that effect. After development of the proposed action at 
the conclusion of early scoping, FRA or FTA will publish the Notice of 
Intent if it is determined at that time that the proposed action 
requires an EIS. The Notice of Intent will establish a 30-day period 
for comments on the purpose and need, alternatives, and the scope of 
the NEPA analysis.
    (3) Are encouraged to post and distribute materials related to the 
environmental review process, including but not limited to, 
environmental documents (e.g., EAs and EISs), environmental studies 
(e.g., technical reports), public meeting announcements, and meeting 
minutes, through publicly-accessible electronic means, including 
project Web sites. Applicants are encouraged to keep these materials 
available to the public electronically until the project is constructed 
and open for operations.
    (4) Are encouraged to post all findings of no significant impact 
(FONSI), combined final environmental impact statement (final EIS)/
records of decision (ROD), and RODs on a project Web site until the 
project is constructed and open for operation.
    (j) Information on the FHWA environmental process may be obtained 
from: FHWA Director, Office of Project Development and Environmental 
Review, Federal Highway Administration, Washington, DC 20590, or 
www.fhwa.dot.gov. Information on the FRA environmental process may be 
obtained from: FRA Chief, Environmental and Corridor Planning Division, 
Office of Program Delivery, Federal Railroad Administration, 
Washington, DC 20590, or www.fra.dot.gov. Information on the FTA 
environmental process may be obtained from: FTA Director, Office of 
Environmental Programs, Federal Transit Administration, Washington, DC 
20590, or www.fta.dot.gov.
0
7. Further amend Sec.  771.113, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by revising the second sentence in paragraph 
(a) and adding paragraph (d)(4) to read as follows:


Sec.  771.113  Timing of Administration activities.

    (a) * * * This work includes drafting environmental documents and 
completing environmental studies, related engineering studies, agency

[[Page 45544]]

coordination, and public involvement. * * *
* * * * *
    (d) * * *
    (4) FRA makes exceptions on a case-by-case basis for purchases of 
railroad components or materials that can be used for other projects or 
resold.
0
8. Further amend Sec.  771.115, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by removing the introductory text, revising 
paragraphs (a) introductory text and (a)(4), adding paragraph (a)(6), 
and revising paragraph (b) to read as follows:


Sec.  771.115  Classes of actions.

    (a) EIS (Class I). Actions that significantly affect the 
environment require an EIS (40 CFR 1508.27). The following are examples 
of actions that normally require an EIS:
* * * * *
    (4) For FHWA actions, new construction or extension of a separate 
roadway for buses or high occupancy vehicles not located within an 
existing transportation right-of-way.
* * * * *
    (6) For FRA actions, new construction of major railroad lines or 
facilities (e.g. terminal passenger stations, freight transfer yards, 
or railroad equipment maintenance facilities) that will not be located 
within an existing transportation right-of-way.
    (b) CE (Class II). Actions that do not individually or cumulatively 
have a significant environmental effect are excluded from the 
requirement to prepare an EA or EIS. A specific list of CEs normally 
not requiring NEPA documentation is set forth in Sec.  771.117(c) for 
FHWA actions or pursuant to Sec.  771.118(c) for FTA actions. When 
appropriately documented, additional projects may also qualify as CEs 
pursuant to Sec.  771.117(d) for FHWA actions or pursuant to Sec.  
771.118(d) for FTA actions. FRA's CEs are listed in Sec.  771.116.
* * * * *
0
9. Add Sec.  771.116 to read as follows:


Sec.  771.116  FRA categorical exclusions.

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

[[Page 45545]]

emissions of air or water pollutants or noise.
    (16) Alterations to existing facilities, locomotives, stations, and 
rail cars in order to make them accessible for the elderly and persons 
with disabilities, such as modifying doorways, adding or modifying 
lifts, constructing access ramps and railings, modifying restrooms, and 
constructing accessible platforms.
    (17) The rehabilitation, reconstruction, removal, or replacement of 
bridges, the rehabilitation or maintenance of the rail elements of 
docks or piers for the purposes of intermodal transfers, and the 
construction of bridges, culverts, or grade separation projects that 
are predominantly within existing right-of-way and that do not involve 
extensive in-water construction activities, such as projects replacing 
bridge components including stringers, caps, piles, or decks, the 
construction of roadway overpasses to replace at-grade crossings, 
construction or reconstruction of approaches or embankments to bridges, 
or construction or replacement of short span bridges.
    (18) Acquisition (including purchase or lease), rehabilitation, 
transfer, or maintenance of vehicles or equipment that does not 
significantly alter the traffic density characteristics of an existing 
rail line, including locomotives, passenger coaches, freight cars, 
trainsets, and construction, maintenance or inspection equipment.
    (19) Installation, repair and replacement of equipment and small 
structures designed to promote transportation safety, security, 
accessibility, communication or operational efficiency that take place 
predominantly within the existing right-of-way and do not result in a 
major change in traffic density on the existing rail line or facility, 
such as the installation, repair or replacement of surface treatments 
or pavement markings, small passenger shelters, passenger amenities, 
benches, signage, sidewalks or trails, equipment enclosures, and 
fencing, railroad warning devices, train control systems, 
signalization, electric traction equipment and structures, electronics, 
photonics, and communications systems and equipment, equipment mounts, 
towers and structures, information processing equipment, and security 
equipment, including surveillance and detection cameras.
    (20) Environmental restoration, remediation, pollution prevention, 
and mitigation activities conducted in conformance with applicable 
laws, regulations and permit requirements, including activities such as 
noise mitigation, landscaping, natural resource management activities, 
replacement or improvement to storm water oil/water separators, 
installation of pollution containment systems, slope stabilization, and 
contaminated soil removal or remediation activities.
    (21) Assembly or construction of facilities or stations that are 
consistent with existing land use and zoning requirements, do not 
result in a major change in traffic density on existing rail or highway 
facilities and result in approximately less than ten acres of surface 
disturbance, such as storage and maintenance facilities, freight or 
passenger loading and unloading facilities or stations, parking 
facilities, passenger platforms, canopies, shelters, pedestrian 
overpasses or underpasses, paving, or landscaping.
    (22) Track and track structure maintenance and improvements when 
carried out predominantly within the existing right-of-way that do not 
cause a substantial increase in rail traffic beyond existing or 
historic levels, such as stabilizing embankments, installing or 
reinstalling track, re-grading, replacing rail, ties, slabs and 
ballast, installing, maintaining, or restoring drainage ditches, 
cleaning ballast, constructing minor curve realignments, improving or 
replacing interlockings, and the installation or maintenance of 
ancillary equipment.
0
10. Revise Sec.  771.117(a) to read as follows:


Sec.  771.117  FHWA categorical exclusions.

    (a) CEs are actions which meet the definition contained in 40 CFR 
1508.4, and, based on FHWA's past experience with similar actions, do 
not involve significant environmental impacts. They are actions which: 
Do not induce significant impacts to planned growth or land use for the 
area; do not require the relocation of significant numbers of people; 
do not have a significant impact on any natural, cultural, 
recreational, historic or other resource; do not involve significant 
air, noise, or water quality impacts; do not have significant impacts 
on travel patterns; or do not otherwise, either individually or 
cumulatively, have any significant environmental impacts.
* * * * *
0
11. Revise Sec.  771.118(a) to read as follows:


Sec.  771.118  FTA categorical exclusions.

    (a) CEs are actions which meet the definition contained in 40 CFR 
1508.4, and, based on FTA's past experience with similar actions, do 
not involve significant environmental impacts. They are actions which: 
Do not induce significant impacts to planned growth or land use for the 
area; do not require the relocation of significant numbers of people; 
do not have a significant impact on any natural, cultural, 
recreational, historic or other resource; do not involve significant 
air, noise, or water quality impacts; do not have significant impacts 
on travel patterns; or do not otherwise, either individually or 
cumulatively, have any significant environmental impacts.
* * * * *
0
12. Further amend Sec.  771.119, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by redesignating paragraphs (a)(i) and (ii) 
as paragraphs (a)(1) and (2), adding paragraph (a)(3), and revising 
paragraphs (d) and (h) to read as follows:


Sec.  771.119  Environmental assessments.

    (a) * * *
    (3) For FRA actions: When FRA or the applicant, as joint lead 
agency, select a contractor to prepare the EA, then the contractor must 
execute an FRA conflict of interest disclosure statement. In the 
absence of an applicant, FRA may require private project sponsors to 
provide a third party contractor to prepare the EA as described in 
Sec.  771.109(e).
* * * * *
    (d) The applicant does not need to circulate the EA for comment but 
the document must be made available for public inspection at the 
applicant's office and at the appropriate Administration field offices 
or, for FRA at Headquarters, for 30 days and in accordance with 
paragraphs (e) and (f) of this section. The applicant shall send the 
notice of availability of the EA, which briefly describes the action 
and its impacts, to the affected units of Federal, State and local 
government. The applicant shall also send notice to the State 
intergovernmental review contacts established under Executive Order 
12372.
* * * * *
    (h) When the FHWA expects to issue a FONSI for an action described 
in Sec.  771.115(a), copies of the EA shall be made available for 
public review (including the affected units of government) for a 
minimum of 30 days before the Administration makes its final decision 
(See 40 CFR 1501.4(e)(2)). This public availability shall be announced 
by a notice similar to a public hearing notice.
* * * * *
0
13. Further amend Sec.  771.123, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by revising

[[Page 45546]]

paragraphs (a), (b) and (c) to read as follows:


Sec.  771.123  Draft environmental impact statements.

    (a) A draft EIS shall be prepared when the Administration 
determines that the action is likely to cause significant impacts on 
the environment. When the applicant, after consultation with any 
project sponsor that is not the applicant, has notified the 
Administration in accordance with 23 U.S.C. 139(e) and the decision has 
been made by the Administration to prepare an EIS, the Administration 
will issue a Notice of Intent (40 CFR 1508.22) for publication in the 
Federal Register. Applicants are encouraged to announce the intent to 
prepare an EIS by appropriate means at the State or local level.
    (b)(1) After publication of the Notice of Intent, the lead 
agencies, in cooperation with the applicant (if not a lead agency), 
will begin a scoping process that may take into account any planning 
work already accomplished, in accordance with 23 CFR 450.212, 450.318, 
or any applicable provisions of the CEQ regulations at 40 CFR parts 
1500 through 1508. The scoping process will be used to identify the 
purpose and need, the range of alternatives and impacts, and the 
significant issues to be addressed in the EIS and to achieve the other 
objectives of 40 CFR 1501.7. Scoping is normally achieved through 
public and agency involvement procedures required by Sec.  771.111. If 
a scoping meeting is to be held, it should be announced in the 
Administration's Notice of Intent and by appropriate means at the State 
or local level.
    (2) The lead agencies must establish a coordination plan, including 
a schedule, within 90 days of notice of intent publication.
    (c) The draft EIS shall be prepared by the lead agencies, in 
cooperation with the applicant (if not a lead agency). The draft EIS 
shall evaluate all reasonable alternatives to the action and document 
the reasons why other alternatives, which may have been considered, 
were eliminated from detailed study. The range of alternatives 
considered for further study shall be used for all Federal 
environmental reviews and permit processes, to the maximum extent 
practicable and consistent with Federal law, unless the lead and 
participating agencies agree to modify the alternatives in order to 
address significant new information and circumstances or to fulfill 
NEPA responsibilities in a timely manner, in accordance with 23 U.S.C. 
139(f)(4)(B). The draft EIS shall also summarize the studies, reviews, 
consultations, and coordination required by environmental laws or 
Executive orders to the extent appropriate at this stage in the 
environmental process.
* * * * *
0
14. Further amend Sec.  771.124, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by revising paragraphs (a)(1) introductory 
text, (a)(1)(ii), and (a)(3) to read as follows:


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

    (a)(1) After circulation of a draft EIS and consideration of 
comments received, the lead agencies, in cooperation with the applicant 
(if not a lead agency), shall combine the final EIS and ROD, to the 
maximum extent practicable, unless:
* * * * *
    (ii) There are significant new circumstances or information 
relevant to environmental concerns that bear on the proposed action or 
the impacts of the proposed action.
* * * * *
    (3) If the comments on the draft EIS are minor and confined to 
factual corrections or explanations that do not warrant additional 
agency response, an errata sheet may be attached to the draft statement 
pursuant to 40 CFR 1503.4(c), which together shall then become the 
combined final EIS/ROD.
* * * * *
0
15. Further amend Sec.  771.125, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by revising paragraph (d) to read as 
follows:


Sec.  771.125  Final environmental impact statements.

* * * * *
    (d) Approval of the final EIS is not an Administration action as 
defined in paragraph (c) of Sec.  771.107 and does not commit the 
Administration to approve any future request for financial assistance 
to fund the preferred alternative.
* * * * *
0
16. Further amend Sec.  771.129, as proposed to be amended at 80 FR 
72624 (November 20, 2015), by revising paragraph (c) to read as 
follows:


Sec.  771.129  Re-evaluations.

* * * * *
    (c) After the Administration issues a combined final EIS/ROD, ROD, 
FONSI, or CE designation, the applicant shall consult with the 
Administration prior to requesting any major approvals or grants to 
establish whether or not the approved environmental document or CE 
designation remains valid for the requested Administration action. 
These consultations will be documented when determined necessary by the 
Administration.
0
17. Revise Sec.  771.131 to read as follows:


Sec.  771.131  Emergency action procedures.

    Responses to some emergencies and disasters are categorically 
excluded under Sec.  771.117 for FHWA, Sec.  771.118 for FTA, or Sec.  
771.116 for FRA. Otherwise, requests for deviations from the procedures 
in this regulation because of emergency circumstances (40 CFR 1506.11) 
shall be referred to the Administration's Headquarters for evaluation 
and decision after consultation with CEQ.
0
18. Revise Sec.  771.139 to read as follows:


Sec.  771.139  Limitations on claims.

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

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

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

    Authority: 23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and 
204(h)(2); 49 U.S.C. 303; Section 6009, Pub. L. 109-59, Aug. 10, 
2005, 119 Stat. 1144; 49 CFR 1.81 and 1.91; and, Pub. L. 114-94, 129 
Stat. 1312, Sections 1303 and 11502.

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


Sec.  774.3  Section 4(f) approvals.

* * * * *
    \1\ FHWA Section 4(f) Programmatic Evaluations can be found at

[[Page 45547]]

www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp.
* * * * *
0
21. Amend Sec.  774.13 by revising paragraph (a) to read as follows:


Sec.  774.13  Exceptions.

* * * * *
    (a) The use of historic transportation facilities in certain 
circumstances:
    (1) Common post-1945 concrete or steel bridges and culverts that 
are exempt from individual review under 54 U.S.C. 306108.
    (2) Improvement of railroad or rail transit lines that are in use 
or were historically used for the transportation of goods or 
passengers, including, but not limited to, maintenance, preservation, 
rehabilitation, operation, modernization, reconstruction, and 
replacement of elements of such railroad or rail transit lines except 
for:
    (i) Stations;
    (ii) Bridges or tunnels on railroad lines that have been abandoned 
or transit lines not in use over which regular service has never 
operated, and that have not been railbanked or otherwise reserved for 
the transportation of goods or passengers; and
    (iii) Historic sites unrelated to the railroad or rail transit 
lines.
    (3) Restoration, rehabilitation, or maintenance of other types of 
historic transportation facilities, if the Administration concludes, as 
a result of the consultation under 36 CFR 800.5, that:
    (i) Such work will not adversely affect the historic qualities of 
the facility that caused it to be on or eligible for the National 
Register; and
    (ii) The official(s) with jurisdiction over the Section 4(f) 
resource have not objected to the Administration conclusion in 
paragraph (a)(3)(i) of this section.
* * * * *
0
22. Amend Sec.  774.15 by revising paragraph (f)(2) to read as follows:


Sec.  774.15  Constructive use determinations.

* * * * *
    (f) * * *
    (2) For projected noise levels:
    (i) The impact of projected traffic noise levels of the proposed 
highway project on a noise-sensitive activity do not exceed the FHWA 
noise abatement criteria as contained in Table 1 in part 772 of this 
chapter; or
    (ii) The projected operational noise levels of the proposed transit 
or railroad project do not exceed the noise impact criteria for a 
Section 4(f) activity in the FTA guidelines for transit noise and 
vibration impact assessment or the moderate impact criteria in the FRA 
guidelines for high-speed transportation noise and vibration impact 
assessment;
* * * * *
0
23. Amend Sec.  774.17 by revising the definitions for 
``Administration'' and ``CE'' to read as follows:


Sec.  774.17  Definitions.

* * * * *
    Administration. The FHWA, FRA, or FTA, whichever is approving the 
transportation program or project at issue. A reference herein to the 
Administration means the State when the State is functioning as the 
FHWA, FRA, or FTA in carrying out responsibilities delegated or 
assigned to the State in accordance with 23 U.S.C. 325, 326, 327, or 
other applicable law.
* * * * *
    CE. Refers to a Categorical Exclusion, which is an action with no 
individual or cumulative significant environmental effect pursuant to 
40 CFR 1508.4 and Sec.  771.116, Sec.  771.117, or Sec.  771.118 of 
this chapter; unusual circumstances are taken into account in making 
categorical exclusion determinations.
* * * * *

Title 49--Transportation

PART 264--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

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

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

0
25. Revise the heading for part 264 to read as set forth above.
0
26. 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.

    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.

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
27. Revise authority citation for part 622 to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 23 
U.S.C. 139 and 326; Pub. L. 109-59, 119 Stat. 1144, Sections 6002 
and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81; Pub. L. 112-141, 126 
Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319; and Pub. L. 
114-94, 129 Stat. 1312, Sections 1314 and 1432.

[FR Doc. 2017-20565 Filed 9-27-17; 11:15 am]
 BILLING CODE 4910-22-P



                                                      45530                     Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules

                                                      List of Subjects in 15 CFR Part 30                            (c) Exports of rough diamonds                       DEPARTMENT OF TRANSPORTATION
                                                         Economic statistics, Exports, Foreign                    classified under HS subheadings
                                                      trade, Reporting and recordkeeping                          7102.10, 7102.21, 7102.31 require the                 Federal Highway Administration
                                                      requirements.                                               proof of filing citation, as stated in
                                                                                                                  paragraph (b) of this section, to be                  23 CFR Parts 771 and 774
                                                         For the reasons set out in the
                                                                                                                  indicated on the Kimberley Process
                                                      preamble, the Census Bureau is                                                                                    Federal Railroad Administration
                                                                                                                  Certificate (KPC). In addition, the KPC
                                                      proposing to amend Title 15, CFR part
                                                                                                                  must be faxed to the Census Bureau on
                                                      30, as follows:                                                                                                   49 CFR Part 264
                                                                                                                  (800) 457–7328, or provided by other
                                                      PART 30—FOREIGN TRADE                                       methods as permitted by the Census
                                                      REGULATIONS                                                 Bureau, immediately after export of the               Federal Transit Administration
                                                                                                                  shipment from the United States.
                                                      ■ 1. The authority citation for 15 CFR                      ■ 5. Amend § 30.50 by revising                        49 CFR Part 622
                                                      part 30 continues to read as follows:                       paragraph (c) to read as follows:                     [Docket No. FHWA–2015–0011]
                                                        Authority: 5 U.S.C. 301; 13 U.S.C. 301–                   § 30.50 General requirements for filing
                                                      307; Reorganization plan No. 5 of 1990 (3                                                                         FHWA RIN 2125–AF60
                                                                                                                  import entries.                                       FRA RIN 2130–AC64
                                                      CFR 1949–1953 Comp., p. 1004); Department
                                                      of Commerce Organization Order No. 35–2A,                   *     *     *    *     *                              FTA RIN 2132–AB26
                                                      July 22, 1987, as amended, and No. 35–2B,                     (c) The Kimberley Process Certificate
                                                      December 20, 1996, as amended; Pub. L. 107–                 (KPC) for all imports of rough diamonds               Environmental Impacts and Related
                                                      228, 116 Stat. 1350.                                        classified under HS subheadings                       Procedures
                                                      ■ 2. Amend § 30.1(c) by adding                              7102.10, 7102.21, 7102.31 must be faxed               AGENCY:  Federal Highway
                                                      definitions for ‘‘Kimberley Process                         by the importer or customs broker to the              Administration (FHWA), Federal
                                                      Certificate (KPC)’’ and ‘‘Voided                            Census Bureau on (800) 457–7328, or                   Railroad Administration (FRA), Federal
                                                      Kimberley Process Certificate’’ to read                     provided by other methods as permitted                Transit Administration (FTA), DOT.
                                                      as follows:                                                 by the Census Bureau, immediately after
                                                                                                                                                                        ACTION: Supplemental notice of
                                                                                                                  entry of the shipment in the United
                                                      § 30.1       Purpose and definitions.                                                                             proposed rulemaking (SNPRM).
                                                                                                                  States.
                                                      *      *    *      *    *                                   ■ 6. Amend § 30.60 by adding a note to                SUMMARY:   This SNPRM provides
                                                         (c) * * *                                                read as follows:                                      interested parties the opportunity to
                                                         Kimberley Process Certificate (KPC). A                                                                         comment on the proposed revisions to
                                                      forgery resistant document used to                          § 30.60 Confidentiality of Electronic Export
                                                                                                                  Information.                                          the FHWA and FTA joint regulations
                                                      certify the origin of rough diamonds                                                                              implementing the National
                                                      from sources which are free of conflict.                    *      *      *      *       *
                                                                                                                                                                        Environmental Policy Act (NEPA) and
                                                      *      *    *      *    *                                     Note to § 30.60: Kimberley Process                  Section 4(f) requirements. The FHWA,
                                                         Voided Kimberley Process Certificate.                    Certificates (KPCs), including voided KPCs,           FRA, and FTA (hereafter referred to as
                                                      A Kimberley Process Certificate                             provided to the Census Bureau pursuant to
                                                                                                                                                                        ‘‘the Agencies’’) propose these revisions
                                                                                                                  the Clean Diamond Trade Act, Executive
                                                      intended to be used for the exportation                     Order 13312, and this Part are not considered         after the enactment of the Fixing
                                                      of rough diamonds from the United                           EEI and are not confidential under Title 13.          America’s Surface Transportation
                                                      States that has been cancelled for                                                                                (FAST) Act, which requires a
                                                      reasons such as loss or error.                              ■ 7. Amend § 30.70 by revising the                    rulemaking to address programmatic
                                                                                                                  introductory text to read as follows:                 approaches in environmental reviews
                                                      *      *    *      *    *
                                                      ■ 3. Amend § 30.4 by adding paragraph                       § 30.70 Violation of the Clean Diamond                and makes other changes to existing law
                                                      (e) to read as follows:                                     Trade Act.                                            that should be addressed in a
                                                                                                                    Section 8(c) of the Clean Diamond                   rulemaking. In this SNPRM the
                                                      § 30.4 Electronic Export Information filing                                                                       Agencies also propose to add FRA to
                                                      procedures, deadlines, and certification                    Trade Act (CDTA) authorizes U.S.
                                                      statements.                                                 Customs and Border Protection (CBP)                   regulations governing environmental
                                                                                                                  and U.S. Immigration and Customs                      impact and related procedures and the
                                                      *      *    *      *    *                                                                                         parks, recreation areas, wildlife and
                                                         (e) Collection of KPCs and voided                        Enforcement (ICE) to enforce the laws
                                                                                                                  and regulations governing exports of                  waterfowl refuges, and historic site,
                                                      KPCs. Any voided KPC must be faxed
                                                                                                                  rough diamonds. The Treasury                          making those regulations FRA’s NEPA
                                                      by the voiding party to the Census
                                                                                                                  Department’s Office of Foreign Assets                 implementing procedures and FRA’s
                                                      Bureau on (800) 457–7328, or provided
                                                                                                                  Control’s (OFAC) also has enforcement                 Section 4(f) implementing regulations,
                                                      by other methods as permitted by the
                                                                                                                  authority pursuant to section 5(a) of the             respectively. This SNPRM proposes to
                                                      Census Bureau immediately upon
                                                                                                                  CDTA, Executive Order 13312, and                      modify the FHWA/FTA Environmental
                                                      voiding. The collection of KPCs,
                                                                                                                  Rough Diamonds Control Regulations                    Impact and Related Procedures due to
                                                      including voided KPCs, is performed                                                                               changes to the environmental review
                                                      pursuant to the Clean Diamond Trade                         (31 CFR 592). CBP, ICE, and the OFAC
                                                                                                                  are authorized to enforce provisions of               process made by the FAST Act and to
                                                      Act, Public Law 108–19, 19 U.S.C.                                                                                 modify the Parks, Recreation Areas,
                                                      Section 3901 et seq. (CDTA) and                             the CDTA that provide for the following
                                                                                                                                                                        Wildlife and Waterfowl Refuges, and
asabaliauskas on DSKBBXCHB2PROD with PROPOSALS




                                                      Executive Order 13312, and not Title 13,                    civil and criminal penalties:
                                                                                                                                                                        Historic Sites regulations due to new
                                                      U.S.C.                                                      *     *     *    *     *                              exceptions created by the FAST Act.
                                                      ■ 4. Amend § 30.7 by revising paragraph                       Dated: September 22, 2017.                          Lastly, the Agencies request comments
                                                      (c) to read as follows:                                     Ron S. Jarmin,                                        regarding the current FHWA and FTA
                                                      § 30.7 Annotating the bill of lading, air                   Associate Director for Economic Programs,             definition of ‘‘existing operational right-
                                                      waybill, or other commercial loading                        Performing the Non-Exclusive Functions and            of-way’’ in their respective categorical
                                                      documents with proof of filing citations,                   Duties of the Director, Bureau of the Census.         exclusion sections. The Agencies seek
                                                      and exemption legends.                                      [FR Doc. 2017–20920 Filed 9–28–17; 8:45 am]           comments on the proposals in this
                                                      *        *       *       *      *                           BILLING CODE 3510–07–P                                document.


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                                                                            Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules                                        45531

                                                      DATES:  The Agencies must receive                       amendments to 23 U.S.C. 139 made by                   consideration. During the November
                                                      comments on or before November 28,                      section 1304; and (3) the section 11503               2015 NPRM comment period, President
                                                      2017.                                                   requirement that the Secretary of                     Obama signed the FAST Act into law.
                                                      ADDRESSES: To ensure you do not                         Transportation (Secretary) apply, to the              The FHWA and FTA did not pursue a
                                                      duplicate your docket submissions,                      greatest extent feasible, the project                 final rule following the November 2015
                                                      please submit them by only one of the                   development procedures described in                   NPRM because certain FAST Act
                                                      following means:                                        23 U.S.C. 139 to railroad projects                    provisions affected portions of the
                                                         • Federal eRulemaking Portal: Go to                  requiring the Secretary’s approval under              regulatory provisions addressed in the
                                                      http://www.regulations.gov and follow                   NEPA (49 U.S.C. 24201(a)). With respect               November 2015 NPRM and because
                                                      the online instructions for submitting                  to 23 CFR part 774, the SNPRM includes                certain other FAST Act provisions are
                                                      comments.                                               proposed changes to the Agencies’                     appropriately addressed in a
                                                         • Mail: Docket Management Facility,                  Section 4(f) procedures to reflect the                rulemaking. The Agencies now propose
                                                      U.S. Department of Transportation, 1200                 two new Section 4(f) exceptions created               addressing those changes to parts 771
                                                      New Jersey Ave. SE., West Building                      in the FAST Act (sections 1303 and                    and 774 in this SNPRM.
                                                      Ground Floor, Room W12–140,                             11502). In addition, FRA also proposes                   The Agencies used the proposals in
                                                      Washington, DC 20590–0001.                              joining 23 CFR part 774.                              the November 2015 NPRM as the
                                                         • Hand Delivery: West Building                                                                             baseline for this SNPRM (e.g., section/
                                                                                                              General Discussion of the Proposals                   paragraph organization and language).
                                                      Ground Floor, Room W12–140, 1200
                                                      New Jersey Ave. SE., between 9 a.m.–5                     The following sections of the FAST                  All substantive comments received on
                                                      p.m., Monday through Friday, except                     Act affect 23 CFR parts 771 and 774,                  the November 2015 NPRM and this
                                                      Federal holidays. The telephone number                  and are addressed in this SNPRM:                      SNPRM, as well as the appropriate
                                                      is (202) 366–9329.                                        • Section 1303 amends Section 4(f) to               responses to both sets of comments, will
                                                         Instructions: You must include the                   create an exception for certain common                be addressed in a final rule should a
                                                      agency name and docket number or the                    post-1945 concrete or steel bridges and               final rule be issued. The docket contains
                                                      Regulatory Identification Number (RIN)                  culverts;                                             a redline that captures both the
                                                      for the rulemaking at the beginning of                    • Section 1304 revises certain                      November 2015 NPRM and this
                                                      your comments. All comments received                    elements of the Agencies’                             SNPRM’s changes.
                                                                                                              environmental review process at 23                       This SNPRM contains proposals
                                                      will be posted without change to http://
                                                                                                              U.S.C. 139;                                           satisfying the rulemaking requirements
                                                      www.regulations.gov, including any
                                                                                                                • Section 1304(k) replaces a                        in FAST Act sections 1304(k) and
                                                      personal information provided.
                                                                                                              rulemaking requirement created by the                 11503, and addresses changes to 23
                                                      FOR FURTHER INFORMATION CONTACT: For                    Moving Ahead for Progress in the 21st                 U.S.C. 139 (Efficient Environmental
                                                      FHWA: Neel Vanikar, Office of Project                   Century Act (MAP–21), Public Law 112–                 Reviews for Project Decisionmaking), 23
                                                      Delivery and Environmental Review,                      141, 126 Stat. 405, with a new                        U.S.C. 138 (Preservation of Parklands),
                                                      HEPE, (202) 366–2068, Neel.Vanikar@                     rulemaking requirement to implement                   and 49 U.S.C. 303 (Policy on Lands,
                                                      dot.gov, or Diane Mobley, Office of the                 the programmatic approaches provision                 Wildlife and Waterfowl Refuges, and
                                                      Chief Counsel, (202) 366–1366,                          in 23 U.S.C. 139(b)(3);                               Historic Sites) FAST Act sections 1304,
                                                      Diane.Mobley@dot.gov. For FRA:                            • Section 11502 amends Section 4(f)                 1303, and 11502 made, respectively.
                                                      Michael Johnsen, Office of Program                      to create a railroad or rail transit line             The SNPRM also proposes to add FRA
                                                      Delivery, (202) 493–1310,                               exception when certain conditions are                 to parts 771 and 774.
                                                      michael.johnsen@dot.gov, or                             met; and,                                             Applicability of 23 CFR Part 771 to
                                                      Christopher Van Nostrand, Office of                       • Section 11503 requires the
                                                      Chief Counsel, (202) 493–6058,                                                                                FRA Actions
                                                                                                              Secretary apply, to the greatest extent
                                                      Christopher.Vannostrand@dot.gov. For                    feasible, the project development                       Section 11503 of the FAST Act
                                                      FTA: Megan Blum, Office of Planning                     procedures described in 23 U.S.C. 139                 requires the Secretary, among other
                                                      and Environment, (202) 366–0463,                        to railroad projects requiring the                    things, to apply, to the greatest extent
                                                      Megan.Blum@dot.gov, or Helen                            Secretary’s approval under NEPA.                      feasible, the project development
                                                      Serassio, Office of Chief Counsel, (202)                                                                      procedures described in 23 U.S.C. 139
                                                      366–1974, Helen.Serassio@dot.gov. The                   SNPRM Rationale                                       (Efficient Environmental Reviews for
                                                      Agencies are located at 1200 New Jersey                   This SNPRM supplements the notice                   Project Decisionmaking) to railroad
                                                      Ave. SE., Washington, DC 20590–0001.                    of proposed rulemaking (NPRM) FHWA                    projects requiring the Secretary’s
                                                      Office hours are from 8:00 a.m. to 4:30                 and FTA issued on November 20, 2015                   approval under NEPA. The Secretary
                                                      p.m. E.T., Monday through Friday,                       (November 2015 NPRM) (80 FR 72624,                    must incorporate into FRA regulations
                                                      except Federal holidays.                                Docket No. FHWA–2015–0011). The                       and procedures for railroad projects
                                                      SUPPLEMENTARY INFORMATION:                              November 2015 NPRM proposed                           aspects of the 23 U.S.C. 139 project
                                                                                                              changes to the FHWA/FTA                               development procedures, or portions
                                                      Background                                              Environmental Impact and Related                      thereof, that increase the efficiency of
                                                        On December 4, 2015, President                        Procedures regulations (23 CFR part                   the review of railroad projects
                                                      Obama signed into law the FAST Act                      771) and the Parks, Recreation Areas,                 consistent with section 11503.
                                                      (Pub. L. 114–94, 129 Stat. 1312). The                   Wildlife and Waterfowl Refuges, and                     The FRA has determined that
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                                                      FAST Act contains new requirements                      Historic Site regulations (23 CFR part                applying 23 CFR part 771 to railroad
                                                      the Agencies must follow to comply                      774). Primarily, FHWA and FTA issued                  actions is the most efficient way to
                                                      with NEPA (42 U.S.C. 4321 et seq.) and                  the November 2015 NPRM to address                     comply with section 11503. By joining
                                                      Section 4(f) (23 U.S.C. 138 and 49 U.S.C.               certain changes to the environmental                  part 771, FRA would not need to
                                                      303). This SNPRM includes proposed                      review process imposed by MAP–21.                     develop entirely new NEPA regulations
                                                      changes to 23 CFR part 771 to address                     The comment period for the                          for railroads projects. On June 9, 2016,
                                                      the following issues: (1) Section 1304(k)               November 2015 NPRM closed on                          FRA published a notice in the Federal
                                                      which requires a rulemaking regarding                   January 19, 2016. The FHWA and FTA                    Register requesting public comment on
                                                      programmatic approaches; (2) certain                    received 14 comment letters for                       the application of part 771 to FRA’s


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                                                      45532                 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules

                                                      railroad projects (81 FR 37237, June 9,                 rule or updating Department-wide                      paragraph (a) by replacing ‘‘to the fullest
                                                      2016). The comment period ended on                      guidance on the implementation of                     extent possible’’ with ‘‘to the maximum
                                                      July 11, 2016. The FRA received one                     Section 4(f).                                         extent practicable and consistent with
                                                      comment on this notice from the                           This SNPRM would also amend part                    Federal law’’ to reflect 23 U.S.C.
                                                      Association of American Railroads                       264 in title 49 to add a cross reference              139(d)(8) language. The policy
                                                      (AAR). The commenter suggested that                     23 CFR part 771 and 23 CFR part 774,                  statement applies broadly to the
                                                      FRA develop its own regulations rather                  and the Agencies propose changing the                 environmental review process and
                                                      than adopt 23 CFR part 771 because of                   heading to ‘‘Environmental Impact and                 specifically encourages all
                                                      perceived difficulties applying certain                 Related Procedures.’’                                 environmental reviews and
                                                      requirements to freight railroad projects                                                                     requirements (including permits) be
                                                                                                              Section-by-Section Discussion of the
                                                      on privately owned infrastructure.                                                                            addressed in a single process and
                                                                                                              Proposals
                                                      While many of the FHWA and FTA                                                                                environmental review document.
                                                      actions are sponsored by government                     NEPA Regulation Changes (Part 771)
                                                                                                                                                                    Section 771.107 Definitions
                                                      entities (e.g., State DOTs), the
                                                                                                              General                                                  The Agencies propose to modify three
                                                      regulations can be applied to the actions
                                                      on privately owned railroad                                There are two general proposals to                 definitions to add FRA’s railroad
                                                      infrastructure. This SNPRM proposes                     note. First, the Agencies propose to list             projects. Specifically, the Agencies
                                                      certain modifications to 23 CFR part 771                the Agencies in alphabetical order (e.g.,             propose adding ‘‘railroad’’ projects,
                                                      to accommodate railroad projects.                       ‘‘FHWA, FRA, and FTA’’) whenever it is                ‘‘FRA,’’ and ‘‘rulemakings’’ to the list of
                                                        Section 11503 of the FAST Act also                    necessary to list all three agencies. This            examples of major Federal actions in the
                                                      required FRA to survey its use of NEPA                  change would apply throughout the                     definition of ‘‘Action,’’ and the Agencies
                                                      categorical exclusions (CE) in railroad                 regulation. Second, the Agencies                      propose adding ‘‘FRA’’ in all locations
                                                      projects since 2005. On June 2, 2016,                   propose ‘‘final EIS’’ as the acronym for              where FHWA and FTA are listed in the
                                                      FRA published a notice in the Federal                   ‘‘final environmental impact statement’’              definition of ‘‘Administration.’’ The
                                                      Register providing the public with a                    (instead of ‘‘FEIS’’) throughout 23 CFR               Agencies also propose similar changes
                                                      review of FRA’s survey, requesting                      part 771 to provide consistency.                      to the definition of ‘‘Administration
                                                      comments on two new classes of actions                                                                        action’’ by adding ‘‘FRA’’ approval, and
                                                      that might be appropriate for categorical               Section 771.101 Purpose                               ‘‘rulemakings’’ to the list of activities
                                                      exclusion, and requesting suggestions                     The Agencies propose to modify this                 needing Agency approval.
                                                      for additional categories of activities                 section to add the appropriate
                                                                                                                                                                    Section 771.109 Applicability and
                                                      appropriate for exclusion (81 FR 35437,                 references to FRA and railroad projects,
                                                                                                                                                                    Responsibilities
                                                      June 2, 2016) (June Notice). The                        which would allow FRA to use part 771
                                                      comment period ended on July 5, 2016.                   as its procedures for implementing                       In paragraph (a)(1), the Agencies
                                                      The FRA received comments from the                      NEPA. The Agencies also propose                       propose to clarify that the part 771
                                                      AAR, the Michigan Department of                         updating the list of references in the last           regulations and the Council on
                                                      Transportation and the Oregon                           sentence to remove MAP–21 section                     Environmental Quality (CEQ)
                                                      Department of Transportation which are                  1319 because it was codified at 23                    regulations (40 CFR parts 1500–1508)
                                                      addressed in the section-by-section                     U.S.C. 139(n) and 49 U.S.C. 304a, and                 apply where one of the Agencies
                                                      analysis below. This SNPRM satisfies                    to add FAST Act section 1304.                         exercises sufficient control to condition
                                                      the FAST Act section 11503                                                                                    an approval, not just a ‘‘permit or
                                                                                                              Section 771.105 Policy                                project approval,’’ by including ‘‘other’’
                                                      requirement that the Secretary publish
                                                      an NPRM proposing new and existing                         Through the November 2015 NPRM,                    prior to ‘‘approvals’’ (i.e., ‘‘. . .
                                                      CEs for railroad projects requiring the                 FHWA and FTA proposed several                         condition the permit, project, or other
                                                      Secretary’s approval.                                   revisions to 23 CFR part 771 to satisfy               approvals’’). The Agencies are
                                                        The FRA proposes to join the 23 CFR                   the programmatic approaches                           proposing this change to accommodate
                                                      part 774 regulations implementing                       rulemaking requirement created by                     FRA’s potential actions related to its
                                                      Section 4(f). FRA determined joining 23                 MAP–21, section 1305. To satisfy the                  safety programs.
                                                      CFR part 774 would further align its                    programmatic approaches rulemaking                       The Agencies are not proposing to
                                                      environmental review processes with                     requirement created by FAST Act,                      modify paragraph (a)(3) to specifically
                                                      the FHWA and FTA processes. This                        section 1304(k), the Agencies propose                 address when the regulations would
                                                      would create consistency implementing                   revising paragraph (b), originally                    apply to FRA projects. The FRA would
                                                      Section 4(f) and provide clarity to FRA’s               proposed in the November 2015 NPRM,                   apply these regulations to projects
                                                      applicants and project sponsors.                        by including the parenthetical                        initiated (through publishing a notice of
                                                      Additionally, it eliminates FRA’s need                  ‘‘(including the requirements found at                intent for an environmental impact
                                                      to update the Section 4(f) sections of its              23 U.S.C. 139(b))’’ after the words                   statement or determining to initiate an
                                                      existing Environmental Procedures; if                   ‘‘environmental requirements.’’                       environmental assessment) after the
                                                      FRA only joined 23 CFR part 771, the                       The Agencies also propose a non-                   Agencies issue a final rule, if one is
                                                      part 771 regulations would supersede                    substantive change to paragraph (e)(2) in             issued. Until such time, FRA will
                                                      most, if not all, of FRA’s Environmental                the first sentence to correct a typo (‘‘fo’’          continue to follow its Procedures for
                                                      Procedures, and FRA would still need to                 to ‘‘of’’).                                           Considering Environmental Impacts
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                                                      revise the Section 4(f) sections. In                       The Agencies are proposing to revise               (Environmental Procedures) (64 FR
                                                      addition, FRA currently follows 23 CFR                  § 771.105 to directly address 23 U.S.C.               28545, May 26, 1999, updated 78 FR
                                                      part 774 and associated FHWA and FTA                    139(d)(8)-Single NEPA Document,                       2713, Jan. 14, 2013). However, as
                                                      guidance as guidance when it applies                    which requires the Agencies develop a                 required by the FAST Act, FRA will also
                                                      Section 4(f) to railroad projects and                   single NEPA document that can be used                 follow the project development
                                                      officially joining the regulations would                for all Federal permits and reviews for               procedures described in 23 U.S.C. 139
                                                      not significantly change FRA’s current                  a project to the maximum extent                       for its railroad projects initiated after
                                                      practice. In the future, DOT may                        practicable and consistent with Federal               December 4, 2015 unless the project is
                                                      consider proposing a Department-wide                    law. The Agencies propose revising                    subject to a funding arrangement under


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                                                                            Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules                                          45533

                                                      title 49, U.S.C. the Secretary approved                   The Agencies further propose adding                 or requirements authorized by statute
                                                      before December 4, 2015.                                a new paragraph (e), which describes                  among themselves. For example, 23
                                                         In paragraph (b)(1), the Agencies                    FRA’s requirements for third party                    U.S.C. 139 applies to FRA, but 23 U.S.C.
                                                      propose to add ‘‘FRA’’ as an agency that                contracting where the project sponsor is              168 does not.
                                                      will assure implementation of                           a private entity and there is no qualified               The Agencies propose adding the
                                                      committed mitigation measures by                        applicant as defined in § 771.107. In                 requirement that a lead agency, in
                                                      including the mitigation measures by                    that situation, FRA proposes to require               consultation with participating
                                                      reference in the grant agreement,                       third party contracting for all EISs and              agencies, will develop an environmental
                                                      followed by reviews of design and                       may also require them for EAs. When                   checklist, as appropriate, to assist in
                                                      construction inspections.                               using a third party contract, the project             resource and agency identification to
                                                         In paragraph (c)(2), FRA added                       sponsor retains a contractor to assist                the end of paragraph (a)(3) to reflect the
                                                      reference to FRA’s financial assistance                 FRA in conducting the environmental                   new environmental checklist language
                                                      programs.                                               review, and the contractor works under                found at 23 U.S.C. 139(e)(5). The
                                                         In paragraph (c)(7), the Agencies                    the direction, supervision and control of             Agencies interpret the statutory
                                                      propose several revisions to reflect                    FRA. A third party contracting structure              language in 23 U.S.C. 139(e)(5)(A) (‘‘The
                                                      changes to participating agencies’                      would be memorialized in a                            lead agency for a project . . . shall
                                                      responsibilities under section 1304 of                  memorandum of understanding among                     develop, as appropriate, a checklist to
                                                      the FAST Act, codified at 23 U.S.C.                     FRA, the contractor, and the project                  help project sponsors identify potential
                                                      139(c)(6), (d)(9), (f)(4), and (g)(1).                  sponsor. This paragraph is intended to                natural, cultural, and historic resources
                                                      Section 139(c)(6)(C) requires the lead                  ensure compliance with FRA’s                          . . . .’’) as providing flexibility through
                                                      agency consider and respond to                          responsibilities for EIS preparation in               the phrase ‘‘as appropriate.’’ The
                                                      comments within a participating                         the CEQ implementing regulations at 40                Agencies are, therefore, proposing ‘‘will
                                                      agency’s special expertise or                           CFR 1506.5(c).                                        develop an environmental checklist, as
                                                                                                                The Agencies propose an associated                  appropriate’’ to reflect the statutory
                                                      jurisdiction. Similarly, section 139(d)(9)
                                                                                                              change to the beginning of paragraph                  flexibility that allows lead agencies,
                                                      requires participating agencies to
                                                                                                              (b)(6), which addresses the role of a                 including project sponsors, to develop
                                                      provide comments, responses, studies,
                                                                                                              project sponsor that is a private entity.             environmental checklists when needed
                                                      or methodologies within the agency’s
                                                                                                              The proposed change reads, ‘‘Subject to               to facilitate the environmental process.
                                                      special expertise or jurisdiction, and to                                                                        The Agencies propose renumbering
                                                                                                              paragraph (e).’’
                                                      use the process to address its                                                                                existing paragraph (b) as (b)(1) and
                                                      environmental issues of concern.                        Section 771.111 Early Coordination,                   adding a new paragraph (b)(2). Proposed
                                                      Section 139(f)(4)(A)(ii) mandates                       Public Involvement, and Project                       paragraph (b)(2) would state that for
                                                      participating agencies limit their                      Development                                           projects to be evaluated with an EIS, the
                                                      agency’s comments to the subject matter                    The Agencies propose several                       Administration will respond in writing
                                                      areas within their agency’s special                     additions to § 771.111 to reflect various             to a project sponsor’s formal project
                                                      expertise or jurisdiction, to the                       FAST Act changes to 23 U.S.C. 139. To                 notification within 45 days of receipt.
                                                      maximum extent practicable and                          reflect planning and environmental                    This to respond to the new ‘‘review of
                                                      consistent with Federal law. Lastly,                    tools not previously listed, the Agencies             application’’ paragraph at 23 U.S.C.
                                                      section 139(g)(1)(B) now requires the                   propose adding references to 23 U.S.C.                139(e)(3), which builds off the existing
                                                      coordination plan that the lead agency                  139(f) (Purpose and need; alternatives                project notification process established
                                                      develops under 23 U.S.C. 139 include a                  analysis) and 23 U.S.C. 169                           under the Safe, Accountable, Flexible,
                                                      schedule, which must receive                            (Development of programmatic                          Efficient Transportation Equity Act: A
                                                      participating agency concurrence.                       mitigation plans) to the list in paragraph            Legacy of Users (SAFETEA–LU). The
                                                         In response to these changes to 23                   (a)(2)(i). Section 139(f)(4)(E) of title 23           Agencies identify EISs in the proposed
                                                      U.S.C. 139, the Agencies propose adding                 U.S.C. establishes a new process for                  language because the procedures
                                                      that participating agencies are                         reducing duplication between the                      outlined in 23 U.S.C. 139 are
                                                      responsible for providing input within                  planning and NEPA evaluation of                       ‘‘applicable to all projects for which an
                                                      their agency’s special expertise or                     alternatives processes by eliminating                 [EIS] is prepared under [NEPA]’’ (23
                                                      jurisdiction and providing concurrence                  planning alternatives from detailed                   U.S.C. 139(b)(1)). The Agencies may
                                                      on the schedule that now must be                        consideration under NEPA when certain                 apply the section 139 procedures to
                                                      included in the coordination plan. The                  conditions are met. Section 169 of title              other classes of projects on a case-by-
                                                      Agencies propose paragraph (c)(7) reads                 23 U.S.C. includes an optional                        case basis but section 139 is only
                                                      as set out in the regulatory text below.                framework for creating programmatic                   required for EISs, and the Agencies
                                                      The Agencies interpret the proposed                     mitigation plans during the                           want to underscore that fact.
                                                      language ‘‘providing input, as                          transportation planning process, and                     In paragraph (c), the Agencies propose
                                                      appropriate’’ to include the requirement                gives substantial weight to                           adding that a project sponsor may
                                                      at 23 U.S.C. 139(d)(9) that participating               programmatic mitigation plans in the                  request the Secretary to designate the
                                                      agencies’ input include ‘‘comments,                     environmental review process. Note that               lead Federal agency when project
                                                      responses, studies, or methodologies on                 a recent final rule (81 FR 34049, May 27,             elements fall within multiple DOT
                                                      those areas within the special expertise                2016; Docket No. FHWA–2013–0037)                      agencies’ expertise. This addition
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                                                      or jurisdiction of the agency’’ and,                    modified 23 CFR part 450, which                       responds to 23 U.S.C. 139(e)(4), but
                                                      therefore, did not specifically list those              implements 23 U.S.C. 168 and 169.                     adds clarity regarding the provision’s
                                                      activities in this paragraph or elsewhere               Please visit the docket for more                      applicability. In most instances, the
                                                      in the regulation. The Agencies                         information regarding specific changes                Agencies expect project sponsors will
                                                      determined that listing those four                      to the planning and environmental                     continue to contact FHWA, FRA, or
                                                      specific activities is unnecessarily                    linkages processes. The Agencies also                 FTA to determine the Federal lead
                                                      limiting and could lead a project                       added ‘‘as applicable’’ to paragraph                  agency, as is current practice.
                                                      sponsor to believe an unlisted method                   (a)(2)(i) to acknowledge the three                       The Agencies propose building on the
                                                      of providing input is not permitted.                    Agencies may have different processes                 existing language regarding cooperating


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                                                      45534                 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules

                                                      and participating agency invitations in                 modes. This change is not meant to                    a comment recommending FRA redraft
                                                      paragraph (d) by adding timing language                 change the meaning of the term.                       its existing list of circumstances
                                                      for those agencies’ identification. The                    The Agencies propose to add                        requiring further environmental study
                                                      Agencies would require that the lead                    paragraph (a)(6), which would provide                 (Environmental Procedures, section
                                                      agencies identify participating agencies                examples of FRA actions it finds                      4(e)). Proposed paragraph (b) clearly
                                                      within 45 days from publication of the                  normally require an EIS. Under this                   articulates the circumstances requiring
                                                      notice of intent at the end of paragraph                proposal, FRA would typically prepare                 further environmental study for FRA’s
                                                      (d) to address the new requirement to                   an EIS for ‘‘new construction of major                railroad projects and provides
                                                      identify participating agencies within 45               railroad lines or facilities (e.g., terminal          consistency with FHWA and FTA.
                                                      days at 23 U.S.C. 139(d)(2).                            passenger stations, freight transfer                     One commenter suggests FRA identify
                                                         The Agencies propose adding a                        yards, or railroad equipment                          a subset of CEs that require
                                                      reference to FRA programs to paragraph                  maintenance facilities) that will not be              documentation and those that do not
                                                      (i) and its subordinate paragraphs,                     located within an existing                            need ‘‘further NEPA approvals by FRA.’’
                                                      clarifying that FRA is adopting the                     transportation right-of-way.’’ These                  The FRA understands this comment as
                                                      approach that applicants in FTA’s                       examples are generally consistent with                a suggestion to adopt a ‘‘(c)’’ and ‘‘(d)’’
                                                      capital assistance programs use to                      FRA’s existing NEPA procedures and                    list similar to those used by FHWA and
                                                      engage the public. The Agencies also                    also the examples of FHWA and FTA                     FTA. The FRA considered this approach
                                                      propose to add a reference to ‘‘the scope               actions normally requiring an EIS.                    but does not propose to distinguish
                                                      of the NEPA analysis’’ as an issue that                    In paragraph (b), the Agencies                     between different classes of CEs and
                                                      the public or agencies might comment                    propose to add a reference to FRA’s CEs               will instead continue to use one
                                                      on during the 30-day period following                   in section 771.116.                                   comprehensive list and decide the
                                                      the publication of a Notice of Intent.                  Section 771.116 FRA Categorical                       appropriate standards for
                                                         Additionally, the Agencies propose                   Exclusions                                            documentation on a project-by-project
                                                      replacing ‘‘NEPA documents’’ with                                                                             basis.
                                                                                                                 The Agencies propose to add a new                     Paragraph (c) of this section proposes
                                                      ‘‘environmental documents’’ in                          § 771.116. Although the Agencies                      to include the activities for categorical
                                                      paragraph (i)(3) to be consistent with 40               collectively propose to add this section,             exclusion. The proposed list of activities
                                                      CFR 1508.10. CEQ uses the term                          the development of the proposed CEs                   in paragraph (c) is based on the CEs
                                                      ‘‘environmental document’’ to refer to                  for each Agency is based on each                      identified in FRA’s Environmental
                                                      EIS, EA, finding of no significant                      Agency’s particular mission and                       Procedures, including those CEs added
                                                      impact, and record of decision                          programs, unique experiences, and                     in 2013. Since 2013, FRA has conducted
                                                      documents broadly, which also is the                    existing lists of CEs. As a result, this              an internal review of its CEs to ensure
                                                      Agencies’ intent in paragraph (i)(3).                   section focuses on FRA’s proposed CEs.                their continued appropriate use and
                                                         The Agencies propose to add FRA’s                    One commenter suggests that DOT have                  usefulness. Based on FRA’s internal
                                                      contact information to paragraph (j).                   one uniform set of CEs and identified                 review and the comments received on
                                                      Section 771.113 Timing of                               specific FHWA CEs that FRA should                     the June Notice, paragraph (c) of this
                                                      Administration Activities                               adopt for its railroad projects. Typically,           section proposes to make minor edits to
                                                                                                              DOT operating administrations (OA)                    several of the existing CEs; to eliminate
                                                        In paragraph (a), the Agencies propose                identify categories of actions                        unnecessary or duplicative CEs; and to
                                                      to add the word ‘‘environmental’’ before                appropriate for categorical exclusion                 add two new CEs.
                                                      the word ‘‘studies’’ for consistency with               based on the individual OA’s                             Support for FRA’s proposals is
                                                      the term’s use in the regulation.                       experience. The FRA has identified and                included in a CE substantiation
                                                        The Agencies propose to add                           substantiated this proposed list of CEs               document. The CE substantiation
                                                      paragraph (d)(4), which would create an                 based on its experience with these                    document relies on internal FRA expert
                                                      FRA-specific exemption to the                           categories of actions. However, since                 opinion, FRA’s experience managing
                                                      paragraph (a)(1) prohibition on                         many of the FHWA, FRA, and FTA                        projects and other activities related to
                                                      proceeding with final design activities,                actions are often similar, the actions                railroad safety and infrastructure
                                                      property acquisition, purchase of                       may be covered in each OA’s CE list but               development, and FRA’s review of
                                                      construction materials or rolling stock,                with appropriate differences reflecting               similar CEs used by other DOT OAs and
                                                      or project construction until the NEPA                  the experiences of the OAs.                           other Federal agencies (often referred to
                                                      process is complete. The proposal is                    Additionally, 49 U.S.C. 304 authorizes                as ‘‘comparative benchmarking’’). For
                                                      consistent with FRA policy and allows                   the use by one OA of another OA’s CE                  additional information, including a
                                                      FRA to makes certain case-by-case                       in certain multimodal situations.                     description of the CEs FRA proposes to
                                                      exceptions for the purchase of railroad                    Paragraph (a) of this section proposes             eliminate, please see the CE
                                                      components or materials that can be                     to adopt the current text of §§ 771.117(a)            substantiation document, which FRA
                                                      used in other projects or resold. This is               and 771.118(a), as modified to apply to               has included in the docket for public
                                                      not a blanket exemption, and FRA                        FRA. This proposed paragraph would                    review. The following discussion
                                                      would make case-by-case                                 define a CE as an action meeting the                  focuses on the proposed new CEs and
                                                      determinations based on the                             definition in the CEQ regulation and,                 those FRA proposes to modify.
                                                      information available at the time to                    based on FRA’s past experience, does                     Paragraph (c) proposes no changes to
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                                                      ensure such activities would not                        not involve significant environmental                 the following CEs (as compared to
                                                      improperly influence the outcome of the                 impacts. Paragraph (b) of this section                FRA’s current Procedures for
                                                      NEPA process.                                           proposes to describe the circumstances                Considering Environmental Impacts):
                                                                                                              FRA would use to determine whether an                 Paragraph (c)(2) covering personnel
                                                      Section 771.115        Classes of Actions
                                                                                                              activity, normally meeting the                        actions; paragraph (c)(6) covering
                                                         In paragraph (a)(4), the Agencies                    requirements of a CE, would require                   rulemakings issued under section 17 of
                                                      propose to change ‘‘highway facility’’ to               further environmental study. The FRA’s                the Noise Control Act of 1972;
                                                      ‘‘transportation right-of-way’’ for                     proposal to adopt the FTA and FHWA                    paragraph (c)(8) covering hearings,
                                                      consistency in this section and across                  list of unusual circumstances addresses               meetings, or public affairs activities;


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                                                                            Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules                                           45535

                                                      paragraph (c)(16) covering alterations to               and procedures that FRA is not required               the rail facility may be upgraded as
                                                      existing facilities, locomotives, stations,             to publish in the Federal Register under              necessary to meet existing codes and
                                                      and rail cars to make them accessible for               the Administrative Procedure Act, 5                   standards; remove the unnecessary
                                                      the elderly and persons with                            U.S.C. 552(a)(1). This proposed CE is                 limitation that the CE apply only to
                                                      disabilities; paragraph (c)(19) covering                similar to an existing FRA CE. However,               ‘‘temporary’’ replacements; and remove
                                                      the installation, repair and replacement                proposed paragraph (c)(5) would add                   the reference to the immediacy of the
                                                      of equipment and small structures                       ‘‘policies’’ to the list of activities                repairs in relation to the disaster or
                                                      designed to promote transportation                      covered by the CE.                                    catastrophic failure. One commenter
                                                      safety, security, accessibility,                           Proposed paragraph (c)(7) provides a               suggests that FRA adopt the ‘‘emergency
                                                      communication or operational                            CE addressing the provision of financial              repairs’’ CE applied by FHWA and FTA
                                                      efficiency; paragraph (c)(22) covering                  assistance for a project where the                    at 23 CFR 771.117(c)(9) and 23 CFR
                                                      the assembly or construction of facilities              financial assistance would fund a                     771.118(c)(11), respectively. In this
                                                      or stations; and paragraph (c)(23)                      completed activity. For example, FRA                  SNPRM, FRA proposes modifications to
                                                      covering track and track structure                      may be involved in projects where an                  its existing emergency repair CE,
                                                      maintenance and improvements.                           applicant requests financial assistance               including the incorporation of relevant
                                                         Proposed paragraph (c)(1) provides a                 to refinance a loan. In that case, the                language and concepts from 23 CFR
                                                      CE addressing administrative                            agency’s decision is merely a financial               771.117(c)(9) and 23 CFR
                                                      procurements, contracts for personal                    transaction that would not itself lead to             771.118(c)(11).
                                                      services, and training. Proposed                        any environmental impacts. The FRA                       Proposed paragraph (c)(11) provides a
                                                      paragraph (c)(3) modifies an existing                   identified these activities as potentially            CE addressing operating assistance to a
                                                      FRA CE by adding ‘‘training’’ to the list               being appropriate for categorical                     railroad to continue existing service or
                                                      of covered activities.                                  exclusion in the June Notice. FRA                     an increase in service to meet demand.
                                                         Proposed paragraph (c)(3) provides a                 received one comment supporting this                  This proposed CE is similar to an
                                                      CE addressing planning or design                        CE.                                                   existing FRA CE. The existing CE
                                                      activities that do not commit FRA to a                     Proposed paragraph (c)(9) provides a               applies if the assistance will not result
                                                      particular course of action affecting the               CE addressing maintenance or repair of                in a change in the impact or effect to the
                                                      environment. Proposed paragraph (c)(3)                  existing railroad equipment. The                      environment whereas proposed
                                                      is a modification of an existing FRA CE                 proposed CE is a modified version of an               paragraph (c)(11) would modify the CE
                                                      as it eliminates the limitation that the                existing FRA CE. Specifically, paragraph              to focus on whether the project would
                                                      planning or design activity must be                     (c)(9) would move the phrase ‘‘existing               result in significant changes to traffic
                                                      funded through FRA’s financial                          railroad facilities’’ to the beginning of             density. The FRA finds focusing on
                                                      assistance or FRA’s own procurement                     the CE. This clarifies that the list                  change in traffic density for a CE
                                                      process.                                                including equipment; track and bridge                 covering operating assistance is more
                                                         Proposed paragraph (c)(4) provides a                 structures; and electrification,                      appropriate than the current imprecise
                                                      CE addressing localized geotechnical                    communication, signaling or security                  limitation that the assistance will not
                                                      and other investigations that provide                   facilities are non-exclusive examples of              result in a change in the effect on the
                                                      information for preliminary design and                  existing railroad facilities. Paragraph               environment.
                                                      for environmental analyses and                          (c)(9) would also clarify the scope of the               One commenter suggests revising
                                                      permitting purposes, such as: Drilling                  CE to include ‘‘repair’’ activities. In               proposed paragraph (c)(12) by removing
                                                      test bores for soil sampling;                           FRA’s experience, the scope of the                    the word ‘‘minor’’ before ‘‘rail line
                                                      archeological investigations for                        potential impacts resulting from repair               additions,’’ adding the phrase ‘‘or
                                                      archeology resources assessment or                      activities is generally similar to those              within existing right-of-way,’’ and
                                                      similar survey; and wetland surveys.                    that might occur during routine                       modifying the CE’s limitations by
                                                      This proposed CE covers investigations                  maintenance. The primary difference                   adding the requirement that the project
                                                      and surveys that inform environmental                   between the two is that unlike                        can be constructed in less than 6
                                                      analyses and preliminary engineering                    maintenance, repair activities may not                months and substantially within the
                                                      for rail projects. These activities include             occur on a regular or reoccurring basis.              existing right-of-way, and will not have
                                                      geotechnical, geophysical, and other                    Paragraph (c)(9) would also remove the                additional significant environmental
                                                      subsurface investigations, pedestrian                   definition of maintenance because it is               impacts beyond the existing rail yard or
                                                      and ground disturbing archaeological                    unnecessary. One commenter suggests                   existing right-of-way. The FRA will not
                                                      surveys and testing to determine                        modifying paragraph (c)(9) to add a                   adopt the suggested change to remove
                                                      eligibility for the National Register of                reference to right-of-way in the                      ‘‘minor’’ because FRA cannot
                                                      Historic Places, and wetland surveys for                definition of ‘‘maintenance.’’ However,               substantiate such an expansion of the
                                                      purposes of wetland delineation or                      this modification is unnecessary since                CE. However, FRA proposes to adopt
                                                      jurisdictional determinations. In FRA’s                 FRA’s proposal would eliminate the                    the suggested phrase ‘‘or within existing
                                                      experience, the impacts of these                        definition of maintenance.                            right-of-way’’ since it is consistent with
                                                      activities are generally minor in nature                   Proposed paragraph (c)(10) provides a              the current scope of the CE and
                                                      and any impacts are localized to the                    CE addressing the emergency repair or                 appropriately limits construction to
                                                      investigation or survey sites. This CE is               replacement of an essential rail facility             within the existing right-of-way. The
                                                      consistent with existing FHWA and                       damaged by a natural disaster or                      FRA also proposes to keep its existing
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                                                      FTA CEs at 23 CFR 771.117(c)(24) and                    catastrophic failure. This proposed CE is             limitations (i.e., ‘‘[the] additions are not
                                                      23 CFR 771.118(c)(16), respectively.                    similar to an existing FRA CE; however,               inconsistent with existing zoning, do
                                                      FRA identified these activities as                      proposed paragraph (c)(10) would                      not involve acquisition of a significant
                                                      potentially appropriate for categorical                 clarify that repairs following an                     amount of right-of-way, and do not
                                                      exclusion in the June Notice. The FRA                   emergency are also covered by the CE;                 significantly alter the traffic density
                                                      received one comment supporting this                    define repair and replacement to                      characteristics of the existing rail lines
                                                      CE.                                                     include reconstruction, restoration, or               or rail facilities.’’) which are consistent
                                                         Proposed paragraph (c)(5) provides a                 retrofitting; clarify that when                       with FRA’s experience with railroad
                                                      CE addressing internal orders, policies,                conducting the repair and replacement,                projects rather than adopt the


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                                                      45536                 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules

                                                      commenter’s suggestion which                            activity would significantly increase                 the commenter, the activities described
                                                      unnecessarily narrows the applicability                 emissions of air or water pollutants or               in § 771.117(c)(7) (landscaping) and
                                                      of the CE.                                              noise. However, FRA proposes striking                 § 771.117(c)(6) (installation of noise
                                                         Proposed paragraph (c)(13) provides a                the clause in the existing CE reading ‘‘or            barriers or alternations to existing
                                                      CE addressing the acquisition, transfer                 increased traffic congestion in any mode              publically owned buildings to provide
                                                      and right to use real property and                      of transportation.’’                                  for noise reduction) are included in the
                                                      certain railroad infrastructure. The                       Proposed paragraph (c)(17) provides a              non-exclusive list of activities in
                                                      proposed CE would modify an existing                    CE addressing rehabilitation,                         proposed paragraph (c)(20); the
                                                      version of this FRA CE by eliminating                   reconstruction, removal, construction,                activities described in § 771.117(c)(8))
                                                      the reference to ‘‘existing railroad                    or replacement of bridges. This                       (installation of fencing, signs, pavement
                                                      equipment’’ because acquisition of                      proposed CE is similar to an existing                 markings, small passenger shelters,
                                                      equipment would be covered by the CE                    FRA CE but adds ‘‘removal’’ of bridges                traffic signals, and railroad warning
                                                      proposed in paragraph (c)(18). Proposed                 to the scope of covered activities. The               devises where no substantial land
                                                      paragraph (c)(13) also would allow the                  FRA finds it is sometimes necessary to                acquisition or traffic disruption will
                                                      acquisition of ‘‘real property.’’ The FRA               remove old railroad bridges without                   occur) and § 771.117(c)(27) (highway
                                                      proposes this addition because                          simultaneously building a new bridge.                 safety or traffic operations improvement
                                                      acquisition alone does not impact the                   In those cases, the removal of the bridge             projects, including the installation of
                                                      environment. In addition, the proposed                  is not substantially different then                   ramp metering control devices and
                                                      CE would move the phrase ‘‘existing                     construction, rehabilitation, or                      lighting, if the project meets the
                                                      railroad facilities’’ to the beginning of               replacement activities and would have                 constraints in paragraph (e) of the
                                                      the CE to clarify that the list including               similar types of impacts. The FRA is                  section) are included in proposed
                                                      equipment; track and bridge structures;                 also proposing minor edits to the                     paragraph (c)(19); the activities
                                                      and electrification, communication,                     existing FRA CE for clarity.                          described in § 771.117(c)(14)) (bus and
                                                      signaling or security facilities are non-                  Proposed paragraph (c)(18) addresses               rail car rehabilitation), § 771.117(c)(17)
                                                      exclusive examples of existing railroad                 acquisition, rehabilitation, transfer, or             (the purchase of vehicles where the use
                                                      facilities. This is also consistent with                maintenance of vehicles or equipment.                 of the vehicles can be accommodated by
                                                      the proposed structure of paragraph                     The proposed CE is similar to an                      existing facilities or new facilities which
                                                      (c)(9). The proposed paragraph (c)(13)                  existing FRA CE but moves the                         themselves are within a CE), and
                                                      would also add ‘‘transfer’’ to the list of              examples of vehicles and equipment to                 § 771.117(c)(19) (purchase and
                                                      covered activities to accommodate                       precede the CE’s proposed limitation.                 installation of operating or maintenance
                                                      potential FRA involvement in the                        The FRA also proposes to focus the CE’s               equipment to be located within the
                                                      transfer of real property or existing                   limitation on whether the activity                    transit facility and with no significant
                                                      railroad facilities. This is consistent                 significantly alters the traffic density
                                                                                                                                                                    impacts off the site) are covered by
                                                      with an FTA CE at 23 CFR 771.118(c)(6).                 characteristics of an existing rail line
                                                                                                                                                                    proposed FRA CE paragraph (c)(18); the
                                                         Proposed paragraph (c)(14) provides a                rather than whether the activity causes
                                                                                                                                                                    activities described in § 771.117(c)(18)
                                                      CE addressing research, development,                    a substantial increase in the use of
                                                                                                                                                                    (track and rail bed maintenance and
                                                      and demonstration activities. This                      infrastructure within the existing right-
                                                                                                                                                                    improvements when carried out within
                                                      proposed CE is similar to an existing                   of-way. This proposed change will
                                                                                                                                                                    the existing right-of-way) are covered by
                                                      FRA CE. However, proposed paragraph                     create consistency with other FRA CEs.
                                                                                                                 Proposed paragraph (c)(20) provides a              proposed paragraph (c)(22); and the
                                                      (c)(14) would expand the scope of the
                                                                                                              CE addressing environmental                           activities described in § 771.117(c)(28)
                                                      existing CE to include research,
                                                                                                              restoration, remediation and pollution                (bridge rehabilitation, reconstruction, or
                                                      development, and demonstration
                                                      activities beyond the development of                    prevention activities. This proposed CE               replacement or the construction of grade
                                                      signal, communication, or train control                 is similar to an existing FRA CE.                     separation to replace existing at-grade
                                                      systems. While in the past this CE was                  However, proposed paragraph (c)(20)                   railroad crossings, if the actions meet
                                                      almost exclusively used for the testing                 would remove the limitation that                      the constraints in paragraph (e) of the
                                                      of train control systems, including                     activities occur ‘‘in or proximate to                 section) are covered by proposed
                                                      Positive Train Control, FRA funds other                 existing and former railroad track,                   paragraph (c)(17).
                                                      research, development, and                              infrastructure, stations, or facilities.’’ In            The same commenter also suggests
                                                      demonstration activities similar in                     many cases, environmental restoration                 FRA adopt § 771.117(c)(2) (approval of
                                                      scope, but involving different rail                     and natural resource management                       utility installations along or across a
                                                      systems or infrastructure, are also                     activities do not occur in close                      transportation facility). At this time and
                                                      appropriate for categorical exclusion.                  proximity to existing or former railroad              based on FRA’s experience, FRA does
                                                         Proposed paragraph (c)(15) provides a                track, infrastructure, stations, or                   not have a sufficient need for a CE
                                                      CE addressing the promulgation of                       facilities. Instead, these activities—                addressing utility installations. To the
                                                      rules, the issuance of policy statements,               including mitigation—must frequently                  extent utility work is being completed
                                                      the waiver of modification of existing                  be located to optimize the ecological                 as part of an FRA action, the work is
                                                      regulatory requirements, and                            value or benefit of the activity and are              typically incidental to a railroad project
                                                      discretionary approvals. This proposed                  sited in consultation with, or at the                 and as such is generally analyzed in an
                                                      CE is similar to an existing FRA CE;                    direction of, various permitting                      environmental document (which may be
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                                                      however, proposed paragraph (c)(15)                     agencies.                                             a CE if appropriate) for that project. The
                                                      would add the waiver or modification of                    One commenter suggests FRA adopt a                 commenter also suggests FRA adopt
                                                      existing regulatory requirements and                    number of existing FHWA CEs from the                  § 771.117(d)(1) (modernization of a
                                                      discretionary approvals, and remove the                 ‘‘(c)-list’’ with minor modifications to              highway by resurfacing, restoration,
                                                      limitation that these activities be related             accommodate railroad projects. Most of                rehabilitation, reconstruction, adding
                                                      to railroad safety. This proposed CE                    the activities covered by the identified              shoulders, or adding auxiliary lanes (e.g.
                                                      would retain the existing limitation for                FHWA CEs are already included in one                  parking, weaving, turning, climbing)).
                                                      increases in environmental impacts and                  or more of FRA’s proposed CEs. With                   The FRA is proposing CEs similar in
                                                      would not be used if FRA finds the                      respect to the FHWA CEs identified by                 scope but directly applicable to railroad


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                                                                            Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules                                         45537

                                                      projects (e.g., proposed paragraphs (c)(9)              FRA appreciates the commenters’                       FHWA and FTA proposed in the
                                                      and (22)).                                              support.                                              November 2015 NPRM.
                                                         One commenter suggests FRA modify                                                                             The Agencies also propose to clarify
                                                      paragraph (c)(16) to allow alterations to               Section 771.117        FHWA Categorical               in paragraph (d) that an EA must be
                                                      existing facilities, locomotives, stations,             Exclusions and                                        made available for public inspection at
                                                      and rail cars even where the alterations                Section 771.118        FTA Categorical                the applicant’s office and at the
                                                      are not for the purpose of making them                  Exclusions                                            appropriate Administration field office,
                                                      accessible for the elderly and persons                     The Agencies propose to modify                     or for FRA at Headquarters offices, for
                                                      with disabilities. This modification                                                                          30 days. This does not change any
                                                                                                              paragraph (a) under §§ 771.117 and
                                                      would change the scope of the CE FRA                                                                          substantive or procedural requirement.
                                                                                                              771.118 to begin with ‘‘CEs’’ because the
                                                      added in 2013 based on FRA’s                                                                                     Lastly, the Agencies propose to fix a
                                                                                                              Agencies introduce the acronym earlier
                                                      experience with projects intended to                                                                          typo in paragraph (h) by moving the
                                                                                                              in the regulation. Additionally, the
                                                      improve accessibility. However, FRA                                                                           period outside the last parenthesis after
                                                                                                              Agencies propose clarifying in the first
                                                      notes that these same activities may be                                                                       ‘‘(See 40 CFR 1501.4(e)(2)).’’
                                                                                                              sentence of §§ 771.117(a) and 771.118(a)
                                                      covered by another FRA CE (e.g.,                                                                              Section 771.123 Draft Environmental
                                                                                                              that the actions are based on FHWA’s
                                                      proposed paragraph (c)(18)).
                                                                                                              and FTA’s past experience, respectively.              Impact Statements
                                                         One commenter suggests FRA adopt
                                                      one FHWA ‘‘(d)-list’’ CE modified                       These are non-substantive changes                        In paragraphs (a) and existing (b)
                                                      slightly to accommodate railroad                        providing clarity to paragraph (a) in                 (proposed paragraph (b)(1), as discussed
                                                      projects. Specifically, the commenter                   both sections.                                        below), the Agencies propose modifying
                                                      suggests FRA adopt § 771.117(d)(8)                         Following 3 years of implementation,               the existing language in the last
                                                      (construction of new bus storage and                    FHWA and FTA request comments                         sentence of each paragraph to encourage
                                                      maintenance facilities in areas used                    regarding the definition of ‘‘operational             announcing the intent to prepare an EIS
                                                      predominantly for industrial or                         right-of-way’’ for the CEs located at 23              by the appropriate means at the State
                                                      transportation purposes where such                      CFR 771.117(c)(22) and 771.118(c)(12),                level, as well as the local level.
                                                      construction is not inconsistent with                   respectively. As currently defined in the                The Agencies propose renumbering
                                                      existing zoning and located on or near                  regulation and as discussed in the                    paragraph (b) as paragraph (b)(1) and
                                                      a street with adequate capacity to                      January 13, 2014, final rule establishing             adding a new paragraph (b)(2) regarding
                                                      handle anticipated bus and support                      the CEs (see 79 FR 2111–2112), the                    timing of the coordination plan in
                                                      vehicle traffic). These activities are                  Agencies attemped to define                           relation to notice of intent publication.
                                                      included in proposed paragraph (c)(21).                 ‘‘operational right-of-way’’ broadly with             This proposal reflects the changes to 23
                                                         One commenter asks FRA to address                    few conditions, thereby allowing                      U.S.C. 139(g)(1)-coordination plan.
                                                      the authority provided by MAP–21                        flexibility in the application of those                  In paragraph (c), the Agencies propose
                                                      section 1308 and FAST Act section 1315                  CEs. The Agencies are soliciting                      replacing ‘‘discuss’’ with ‘‘document’’ in
                                                      allowing State DOTs to enter into                       feedback from the public on how                       the second sentence, which more
                                                      agreements with FHWA to make CE                         operational right-of-way is currently                 accurately describes the action needing
                                                      determinations on FHWA’s behalf. The                    defined in the regulation and request                 to occur. Additionally, in paragraph (c),
                                                      FRA does not have the legal authority to                detailed proposals on ways to further                 the Agencies propose adding language
                                                      participate in this program and will                    clarify the existing definition. Is the               to reflect the FAST Act changes to 23
                                                      therefore not include it in this section.               scope of ‘‘operational right-of-way’’                 U.S.C. 139(f)(4) regarding the range of
                                                      The same commenter suggests that FRA                    appropriately broad? Should fewer                     alternatives. The proposed language
                                                      address 49 U.S.C. 304, Application of                   conditions be applied? If so, what                    would fulfill the statutory intent of
                                                      Categorical Exclusions for Multimodal                   conditions? Can the definition be                     mandating use of the range of
                                                      Projects. That section does not create                  revised to allow for greater flexibility in           alternatives for all Federal
                                                      new CEs but rather sets up a process by                 the application of the CE? If so, how?                environmental reviews and permit
                                                      which OAs can use the CEs of another                    Please provide specific examples and                  processes, to the maximum extent
                                                      OA under certain multimodal project                     any data (e.g., cost and benefit                      practicable and consistent with Federal
                                                      circumstances. Since this process                       information) to help justify your                     law, while directing the reader to the
                                                      applies to all OAs, not just the Agencies,              proposal.                                             statute for the specific exception
                                                      it is appropriately addressed by separate               Section 771.119        Environmental                  requirements. The Agencies propose
                                                      guidance, likely issued by DOT’s Office                 Assessments                                           inserting after the second sentence a
                                                      of the Secretary, and not in this SNPRM.                                                                      statement that the range of alternatives
                                                         One commenter also asked that FRA                       The Agencies propose to add a new                  considered for further study shall be
                                                      apply its CEs less strictly and exercise                paragraph (a)(3) to address, for FRA,                 used for all Federal environmental
                                                      more flexibility in considering which                   situations when a private entity                      reviews and permit processes, to the
                                                      projects qualify as a CE. The FRA will                  proposes a project that can be analyzed               maximum extent practicable and
                                                      continue to review each FRA action on                   in an EA and there is no applicant as                 consistent with Federal law, unless the
                                                      an individual basis to ensure the action                defined in § 771.107. In those situations,            lead and participating agencies agree to
                                                      meets the definition of one or more FRA                 this paragraph would give FRA the                     modify the alternatives in order to
                                                      CEs and does not involve circumstances                  discretion to require the project sponsor
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                                                                                                                                                                    address significant new information and
                                                      requiring further environmental study.                  to procure and use a third party                      circumstances or to fulfill NEPA
                                                      Where there are unusual circumstances                   contractor, as described in § 771.109(e),             responsibilities in a timely manner, in
                                                      present, FRA will, in cooperation with                  to prepare the EA. The Agencies also                  accordance with 23 U.S.C. 139(f)(4)(B).
                                                      the applicant, conduct appropriate                      propose to add a requirement for
                                                      environmental studies to determine                      contractors to execute a conflict of                  Section 771.124 Final Environmental
                                                      whether application of the CE is still                  interest disclosure statement similar to              Impact Statement/Record of Decision
                                                      proper.                                                 the language in paragraph (a)(2)                        The Agencies propose two non-
                                                         Two commenters supported the CEs                     (previously proposed paragraph (a)(ii)),              substantive changes in this section. In
                                                      FRA proposed in the June Notice. The                    applicable to FTA projects and which                  paragraph (a)(1), the Agencies propose


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                                                      45538                 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules

                                                      to replace ‘‘record of decision’’ with                  that the limitation is on legal claims                or reflect case law and longstanding
                                                      ‘‘ROD’’ because the term is introduced                  arising out of an ‘‘Action,’’ not on an               practices governing when to apply
                                                      earlier in the regulation. In paragraph                 ‘‘Action’’ itself. This is a non-                     Section 4(f).
                                                      (a)(1)(ii), the Agencies propose deleting               substantive change. Additionally, the                    Paragraph (a) is an exception from the
                                                      ‘‘and’’ after ‘‘environmental concerns’’                Agencies propose adding the word                      Section 4(f) process for projects
                                                      because it is awkward and unnecessary.                  ‘‘time’’ before the word ‘‘barred’’                   involving work on a transportation
                                                         Additionally, the Agencies propose                   throughout this section to clarify that               facility that is itself historic. This
                                                      inserting ‘‘pursuant to 40 CFR                          this is a time limitation on claims. This             exception reflects the Agencies’
                                                      1503.4(c)’’ at the end of the clause ‘‘an               is also a non-substantive change.                     longstanding policy that when a project
                                                      errata sheet may be attached to the draft                  The Agencies propose modifying this                involves a historic facility that is
                                                      statement’’ in paragraph (a)(3) to                      section to clearly describe the different             already dedicated to a transportation
                                                      provide consistency with 23 CFR                         limitations on claims. The Agencies                   purpose and does not adversely affect
                                                      771.125(g).                                             propose to clarify the 150-day limitation             the historic qualities of that facility,
                                                                                                              is limited to FHWA and FTA. The                       then the project does not ‘‘use’’ the
                                                      Section 771.125 Final Environmental
                                                                                                              Agencies also propose to add a sentence               facility within the meaning of Section
                                                      Impact Statements
                                                                                                              immediately following addressing                      4(f). The exception applies to all types
                                                         While the Agencies propose to add                    FRA’s 2-year limitation on claims for                 of transportation facilities, including
                                                      FRA to part 771, the Agencies are not                   railroad projects requiring the approval              elements, structures, and features of a
                                                      proposing to change the general                         of the Secretary under NEPA created by                highway, transit, or rail facility.
                                                      requirement in paragraph (c) that the                   section 11503 of the FAST Act (49                        In the FAST Act, Congress created
                                                      Agencies submit certain Final EISs to                   U.S.C. 24201(a)(4)). Furthermore, the                 two new exceptions from Section 4(f)
                                                      the Administration’s Headquarters for                   Agencies would revise the second                      for historic transportation facilities in
                                                      prior concurrence. The FRA currently                    reference to 150 days in the existing                 certain circumstances. The Agencies
                                                      administers its environmental program                   language to broadly refer to the two                  propose to amend paragraph (a) to
                                                      from Headquarters. If FRA establishes                   standards by stating ‘‘These time                     incorporate the new exceptions.
                                                      field offices in the future, Headquarters’              periods do not lengthen any shorter                   Specifically, the Agencies propose to
                                                      prior concurrence for the actions                       time period . . .’’                                   incorporate the two new exceptions
                                                      described in paragraph (c) will still be                   The Agencies also propose to delete                from the Section 4(f) process for historic
                                                      required.                                               the footnote in this section to be                    transportation facilities by renumbering
                                                         In addition, in paragraph (d) the                    consistent with the November 2015                     paragraph (a) as paragraph (a)(3) and
                                                      Agencies propose to replace ‘‘grant                     NPRM. In that NPRM the Agencies                       adding new paragraphs (a)(1) and (2).
                                                      request’’ with ‘‘request for financial                  proposed removing references to                       The Agencies propose to add to
                                                      assistance’’ to clarify that approval of                specific guidance documents, such as                  paragraph (a) the introductory phrase
                                                      the final EIS does not commit the                       the footnote in this section, in order to             ‘‘the use of historic transportation
                                                      Administration to provide any future                    maximize flexibility of this regulation.              facilities in certain circumstances:’’ to
                                                      financial assistance (not just grant                    The Agencies are currently updating the               match the other existing exceptions in
                                                      funding) for the preferred alternative.                 ‘‘SAFETEA–LU Environmental Review                     section 774.13.
                                                      Section 771.129 Re-Evaluations                          Process: Final Guidance,’’ so the current                The Agencies propose new paragraph
                                                                                                              reference is outdated.                                (a)(1) to incorporate section 1303 of the
                                                         In paragraph (c), the Agencies                                                                             FAST Act which exempts from Section
                                                      proposed re-inserting the sentence                      Section 4(f) Regulation Changes                       4(f) the use of common concrete and
                                                      regarding consultations being                           (Part 774)                                            steel bridges and culverts, built after
                                                      documented when determined                              Section 774.3       Section (f) Approvals             1945, that the Advisory Council on
                                                      necessary by the Administration, which                                                                        Historic Preservation exempted from
                                                      is existing language in 23 CFR                             As part of the review of regulatory
                                                                                                              provisions in drafting this SNPRM, the                individual Section 106 review under a
                                                      771.129(c) but was inadvertently                                                                              Program Comment.1 The Program
                                                      deleted when the November 2015                          Agencies are proposing to modify the
                                                                                                              footnote in paragraph (d) to refer the                Comment applies to bridges lacking
                                                      NPRM was published for public review                                                                          distinction, not previously listed or
                                                      and comment. This is a non-substantive                  reader to FHWA’s Section 4(f)
                                                                                                              Programmatic Evaluations Web page                     determined eligible for listing on the
                                                      change.                                                                                                       National Register, and not located in or
                                                                                                              (www.environment.fhwa.dot.gov/4f/
                                                      Section 771.131 Emergency Action                        4fnationwideevals.asp) rather than                    adjacent to historic districts, and only
                                                      Procedures                                              listing the Section 4(f) programmatic                 becomes available in a particular State
                                                                                                              evaluations in the regulation. By                     after the State Department of
                                                         The Agencies propose capitalizing
                                                                                                              providing a Web page, the reader would                Transportation, the State Historic
                                                      ‘‘headquarters’’ in order to be consistent
                                                                                                              have access to the most recent list of                Preservation Officer, and the applicable
                                                      with other references to Headquarters in
                                                                                                              programmatic evaluations available, and               FHWA Division office consult and reach
                                                      the regulation; this is a non-substantive
                                                                                                              the regulation would stay current                     agreement on whether the State has any
                                                      change.
                                                                                                              whenever the Agencies revise the list of              exceptional bridges that the Program
                                                         The Agencies also propose to add a
                                                                                                                                                                    Comment will not cover. While FHWA
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                                                      reference to FRA’s CE covering the                      Section 4(f) programmatic evaluations.
                                                                                                              In addition, the Web site may be used                 proposed the Program Comment, it can
                                                      response to emergencies and disasters.
                                                                                                              to provide guidance on use of the                     be used by any Federal agency,
                                                      Section 771.139 Limitation on Actions                                                                         including FTA and FRA.
                                                                                                              programmatic approaches.
                                                         The Agencies propose modifying the                                                                            The intent of this new Section 4(f)
                                                      title and text of this section by replacing             Section 774.13        Exceptions                      exception is to eliminate unnecessary
                                                      ‘‘actions’’ with ‘‘claims’’ to address a                  This section sets forth a number of                   1 ‘‘Program Comment Issue for Streamlining
                                                      potential inconsistency with the                        exceptions to otherwise applicable                    Section 106 Review for Actions Affecting Post-1945
                                                      definition of ‘‘Action’’ in 23 CFR                      Section 4(f) requirements. The                        Concrete and Steel Bridges,’’ 77 FR 68790 (Nov. 16,
                                                      771.107(b). The Agencies seek to clarify                exceptions are either founded in statute              2012).



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                                                                            Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules                                         45539

                                                      Section 4(f) processes for the hundreds                 Specifically, bridges and tunnels on                  use would not occur. Specifically, the
                                                      of thousands of common ‘‘cookie-                        railroad lines that have been abandoned,              Agencies are proposing to add a
                                                      cutter’’ bridges constructed after 1945,                as determined by the Surface                          reference to high-speed ground
                                                      which are not exceptional, in those                     Transportation Board through the                      transportation projects having moderate
                                                      States that have reported the results of                process described in 49 CFR part 1152,                noise impacts according to FRA’s
                                                      the consultation required by the                        are not included in the proposed                      established high-speed ground
                                                      Program Comment. To date, 35 States                     exception, except for bridges and                     transportation noise and vibration
                                                      and Puerto Rico have completed this                     tunnels on railroads that have been                   guidelines. The FRA first developed
                                                      requirement, as reflected on the Bridge                 railbanked, as defined in 16 U.S.C.                   these guidelines, available at https://
                                                      Program Comment Excepted Bridges list                   1247(d) or otherwise preserved for                    www.fra.dot.gov/eLib/Details/L04090, in
                                                      available at https://www.environment.                   future transportation use. In addition,               the late 1990s and they apply to train
                                                      fhwa.dot.gov/histpres/bridges_list.asp.                 the Agencies are proposing that bridges               operations over 90 miles per hour.
                                                         The Agencies propose new paragraph                   and tunnels on rail transit lines that are
                                                      (a)(2) to incorporate section 11502 of the                                                                    Section 774.17 Definitions
                                                                                                              not in use and over which regular
                                                      FAST Act, which exempts                                 service has never operated are not                      In the definition of ‘‘Administration’’
                                                      improvements to historic railroad and                   included in the exception.                            the Agencies propose to add FRA.
                                                      transit lines and their elements from                      The proposed new paragraph (a)(3)                    In the definition of ‘‘CE’’ the Agencies
                                                      Section 4(f).                                           reads as set out in the regulatory text               propose to add a reference to FRA’s and
                                                         The Agencies interpret the words                     below. This paragraph mirrors existing                FTA’s CEs in 23 CFR 771.116 and 23
                                                      ‘‘improvements to’’ in section 11502 as                 § 774.13(a). The Agencies are not                     CFR 771.118, respectively.
                                                      inclusive of the other activities listed in             proposing to change the short list of                 49 CFR Part 264—Environmental
                                                      section 11502: Maintenance,                             activities: ‘‘restoration, rehabilitation, or         Impact and Related Procedures
                                                      rehabilitation, or operation of railroad or             maintenance’’ that are included in the
                                                      rail transit lines. For clarity, the                    existing regulatory text now located                    The Agencies propose to amend part
                                                      Agencies expanded the list of examples                  under paragraph (a)(3), but the Agencies              264 in 49 CFR to include references to
                                                      of activities that may occur on elements                specifically request that commenters                  23 CFR part 771 and 23 CFR part 774.
                                                      of railroad or rail transit lines that may              consider whether the list of covered                  A cross reference would assist potential
                                                      improve the transportation function of                  activities should be expanded to mirror               FRA applicants, State and Federal
                                                      those railroad and rail transit lines. The              the activities included in paragraph                  agencies, and the public.
                                                      Agencies believe that preservation,                     (a)(2) which is proposed to read:                     Rulemaking Analyses and Notices
                                                      modernization, reconstruction, and                      ‘‘maintenance, preservation,
                                                      replacement of an element of a historic                 rehabilitation, operation,                            Statutory/Legal Authority for This
                                                      transportation facility are types of                    modernization, reconstruction, and                    Rulemaking
                                                      ‘‘improvements’’ to railroad and rail                   replacement.’’ Under this option, there                 The Agencies derive explicit authority
                                                      transit lines and thus propose to include               would still be two important conditions               for this rulemaking action from 49
                                                      these activities in the exception. The                  for the exception to apply under                      U.S.C. 322(a), which provides authority
                                                      Agencies further believe that any type of               paragraph (a)(3): The Agencies must                   to ‘‘[a]n officer of the Department of
                                                      safety improvement to a highway                         determine through a Section 106                       Transportation [to] prescribe regulations
                                                      crossing of an active railroad or transit               consultation that the work would not                  to carry out the duties and powers of the
                                                      line—whether at grade or grade                          adversely affect the historic qualities of            officer.’’ The Secretary delegated this
                                                      separated—should be considered an                       the historic transportation facility that             authority to prescribe regulations in 49
                                                      ‘‘improvement to’’ the railroad or transit              cause it to be listed on or eligible for the          U.S.C. 322(a) to the Agencies’
                                                      line by virtue of making travel safer for               National Register of Historic Places and              Administrators under 49 CFR 1.81(a)(3),
                                                      the public, and thus would be covered                   the official(s) with jurisdiction must not            The Secretary also delegated authority
                                                      by the new exception.                                   object to that determination. Having the              to the Agencies’ Administrators to
                                                         While the Agencies chose not to                      same list of activities in both                       implement NEPA and Section 4(f), the
                                                      further define the terms ‘‘railroad or rail             subparagraphs is desirable because it                 statutes implemented by this rule, in 49
                                                      transit lines or elements thereof’’ within              would simplify administration of the                  CFR 1.81(a)(4) and (5). Moreover, the
                                                      the regulation text, they view these                    exception. The Agencies seek comment,                 CEQ regulations that implement NEPA
                                                      terms as including all elements related                 including examples, regarding whether                 provide at 40 CFR 1507.3 that agencies
                                                      to the historic or current transportation               the two conditions in paragraph (a)(3)                shall continue to review their policies
                                                      function such as railroad or rail transit               would adequately protect significant                  and NEPA implementing procedures
                                                      track, elevated support structures,                     historic transportation facilities in the             and revise them as necessary to ensure
                                                      rights-of-way, substations,                             case of projects to operate, modernize,               full compliance with the purposes and
                                                      communication devices, and                              reconstruct or replace the transportation             provisions of NEPA.
                                                      maintenance facilities. The Agencies do                 facility.
                                                      not propose to include historic sites                                                                         Rulemaking Analyses and Notices
                                                      unrelated to transportation but located                 Section 774.15 Constructive Use                          The Agencies will consider all
                                                      within or adjacent to railroads or rail                 Determinations                                        comments received before the close of
                                                      transit lines, or elements thereof in this                 In paragraph (f)(2), the Agencies                  business on the comment closing date
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                                                      exception. Examples of such exclusions                  propose to reorganize the paragraph and               indicated above and will make such
                                                      include archeological sites unrelated to                to add railroad projects to the sentence              comments available for examination in
                                                      railroad or rail transit and sites of                   referencing the FTA guidelines for                    the docket (FHWA–2015–0011) at
                                                      traditional religious and cultural                      transit noise and vibration assessments               regulations.gov. Comments received
                                                      importance to Indian tribes.                            because FRA has applied FTA criteria to               after the comment closing date will be
                                                         Per section 11502 of the FAST Act, all               evaluate noise impacts resulting from                 filed in the docket and the Agencies will
                                                      stations, and certain bridges and                       railroad operations for decades. In                   consider them to the extent practicable.
                                                      tunnels, are not included in the                        addition, the Agencies propose to add a               In addition to late comments, the
                                                      proposed paragraph (a)(2) exception.                    new situation in which a constructive                 Agencies will also continue to file


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                                                      45540                 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules

                                                      relevant information in the docket as it                environmental documentation and                       to warrant the preparation of a
                                                      becomes available after the comment                     analysis not needed for compliance with               federalism assessment. The Agencies
                                                      period closing date. Interested persons                 NEPA or Section 4(f) while still                      have also determined that this proposed
                                                      should continue to examine the docket                   ensuring that projects are built in an                action would not preempt any State law
                                                      for new material. The Agencies may                      environmentally responsible manner                    or State regulation or affect the States’
                                                      publish a final rule at any time after                  and consistent with Federal law. The                  ability to discharge traditional State
                                                      close of the comment period.                            Agencies request comment, including                   governmental functions. The Agencies
                                                                                                              data and information on the experiences               invite State and local governments with
                                                      Executive Order 12866 (Regulatory
                                                                                                              of project sponsors, on the likely effects            an interest in this rulemaking to
                                                      Planning and Review), Executive Order
                                                                                                              of the changes being proposed.                        comment on the effect that adoption of
                                                      13563 (Improving Regulation and
                                                      Regulatory Review), Executive Order                     Regulatory Flexibility Act                            specific proposals may have on State or
                                                      13771 (Reducing Regulation and                                                                                local governments.
                                                                                                                In compliance with the Regulatory
                                                      Controlling Regulatory Costs), and DOT                  Flexibility Act (Pub. L. 96–354, 5 U.S.C.             Executive Order 13175 (Tribal
                                                      Regulatory Policies and Procedures                      601–612), the Agencies have evaluated                 Consultation)
                                                         Executive Orders 12866 and 13563                     the effects of this proposed rule on                     The Agencies have analyzed this
                                                      direct agencies to assess all costs and                 small entities and anticipate that this               action under Executive Order 13175,
                                                      benefits of available regulatory                        action would not have a significant                   and determined that it would not have
                                                      alternatives and, if regulation is                      economic impact on a substantial                      substantial direct effects on one or more
                                                      necessary, to select regulatory                         number of small entities. ‘‘Small                     Indian tribes; would not impose
                                                      approaches that maximize net benefits                   entities’’ include small businesses, not-             substantial direct compliance costs on
                                                      (including potential economic,                          for-profit organizations that are                     Indian tribal governments; and would
                                                      environmental, public health and safety                 independently owned and operated and                  not preempt tribal law. Therefore, a
                                                      effects, distributive impacts, and                      are not dominant in their fields, and                 tribal summary impact statement is not
                                                      equity). The Agencies have determined                   governmental jurisdictions with                       required.
                                                      preliminarily that this action would not                populations under 50,000. The
                                                      be a significant regulatory action under                proposed revisions are expected to                    Executive Order 13211 (Energy Effects)
                                                      section 3(f) of Executive Order 12866                   expedite environmental review and thus                   The Agencies have analyzed this
                                                      and would not be significant within the                 are anticipated to be less burdensome                 action under Executive Order 13211,
                                                      meaning of U.S. Department of                           than any current impact on small                      Actions Concerning Regulations That
                                                      Transportation regulatory policies and                  business entities.                                    Significantly Affect Energy Supply,
                                                      procedures (44 FR 11032). Executive                                                                           Distribution, or Use. The Agencies have
                                                      Order 13563 emphasizes the importance                   Unfunded Mandates Reform Act of 1995
                                                                                                                                                                    determined that this action is not a
                                                      of quantifying both costs and benefits,                    This proposed rule would not impose                significant energy action under
                                                      reducing costs, harmonizing rules, and                  unfunded mandates as defined by the                   Executive Order 13211 because it is not
                                                      promoting flexibility. The Agencies                     Unfunded Mandates Reform Act of 1995                  likely to have a significant adverse effect
                                                      anticipate that the economic impact of                  (Pub. L. 104–4, 109 Stat. 48). This                   on the supply, distribution, or use of
                                                      this rulemaking would be minimal. The                   proposed rule will not result in the                  energy. Therefore, a Statement of Energy
                                                      Agencies do not have specific data to                   expenditure by State, local, and tribal               Effects under Executive Order 13211 is
                                                      assess the monetary value of the benefits               governments, in the aggregate, or by the              not required.
                                                      from the proposed changes because                       private sector, of $148.1 million or more
                                                      such data does not exist and would be                   in any one year (2 U.S.C. 1532). Further,             Executive Order 12372
                                                      difficult to develop. This proposed rule                in compliance with the Unfunded                       (Intergovernmental Review)
                                                      is not expected to be an Executive Order                Mandates Reform Act of 1995, the                         The DOT’s regulations implementing
                                                      13771 regulatory action because this                    Agencies will evaluate any regulatory                 Executive Order 12372 regarding
                                                      proposed rule is not significant under                  action that might be proposed in                      intergovernmental consultation on
                                                      Executive Order 12866.                                  subsequent stages of the proceeding to                Federal programs and activities (49 CFR
                                                         This SNPRM proposes to modify 23                     assess the effects on State, local, and               part 17) apply to this program.
                                                      CFR parts 771 and 774 in order to be                    tribal governments and the private                    Accordingly, the Agencies solicit
                                                      consistent with changes introduced by                   sector.                                               comments on this issue.
                                                      MAP–21 and the FAST Act, make the
                                                      regulation more consistent with the                     Executive Order 13132 (Federalism                     Paperwork Reduction Act
                                                      FHWA and FTA practices, and add FRA                     Assessment)
                                                                                                                                                                       Under the Paperwork Reduction Act
                                                      to parts 771 and 774. These proposed                      Executive Order 13132 requires                      of 1995 (PRA) (44 U.S.C. 3501, et seq.),
                                                      changes would not adversely affect, in                  agencies to ensure meaningful and                     Federal agencies must obtain approval
                                                      any material way, any sector of the                     timely input by State and local officials             from the Office of Management and
                                                      economy. In addition, these changes                     in the development of regulatory                      Budget for each collection of
                                                      would not interfere with any action                     policies that may have a substantial,                 information they conduct, sponsor, or
                                                      taken or planned by another agency and                  direct effect on the States, on the                   require through regulations. The
                                                      would not materially alter the budgetary                relationship between the national
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                                                                                                                                                                    Agencies have determined that this
                                                      impact of any entitlements, grants, user                government and the States, or on the                  proposal does not contain collection of
                                                      fees, or loan programs. Consequently, a                 distribution of power and                             information requirements for the
                                                      full regulatory evaluation is not                       responsibilities among the various                    purposes of the PRA.
                                                      required. The Agencies anticipate that                  levels of government. The Agencies
                                                      the changes in this SNPRM would                         analyzed this proposed action in                      Executive Order 12988 (Civil Justice
                                                      enable projects to move more                            accordance with the principles and                    Reform)
                                                      expeditiously through the Federal                       criteria contained in Executive Order                   This action meets applicable
                                                      review process and would reduce the                     13132 and determined that it would not                standards in sections 3(a) and 3(b)(2) of
                                                      preparation of extraneous                               have sufficient federalism implications               Executive Order 12988, Civil Justice


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                                                                            Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules                                        45541

                                                      Reform, to minimize litigation,                         covered under any of the NEPA classes                 in the fulfillment of agency
                                                      eliminate ambiguity, and reduce                         of action in 23 CFR part 771, public                  responsibilities under NEPA, but are not
                                                      burden.                                                 outreach under the applicable EJ orders               the agency’s final determination of what
                                                                                                              and guidance would provide affected                   level of NEPA analysis is required for a
                                                      Executive Order 12898 (Environmental
                                                                                                              populations with the opportunity to                   particular proposed action. The
                                                      Justice)
                                                                                                              raise any concerns about those potential              requirements for establishing agency
                                                         Executive Order 12898, Federal                       EJ effects. See DOT Order 5610.2(a),                  NEPA procedures are set forth at 40 CFR
                                                      Actions to Address Environmental                        FHWA Order 6640.23A, and FTA Policy                   1505.1 and 1507.3.
                                                      Justice in Minority Populations and                     Guidance for Transit Recipients
                                                      Low-Income Populations, and DOT                         (available at links above). Indeed,                   Regulation Identifier Number
                                                      Order 5610.2(a), 91 FR 27534 (May 10,                   outreach to ensure the effective
                                                      2012) (available online at                              involvement of minority and low                          A regulation identifier number (RIN)
                                                      www.fhwa.dot.gov/environment/                           income populations where there is                     is assigned to each regulatory action
                                                      environmental_justice/ej_at_dot/order_                  potential for EJ effects is a core aspect             listed in the Unified Agenda of Federal
                                                      56102a/index.cfm), require DOT                          of the EJ orders and guidance. For these              Regulations. The Regulatory Information
                                                      agencies to achieve environmental                       reasons, the Agencies have determined                 Service Center publishes the Unified
                                                      justice (EJ) as part of their mission by                that no further EJ analysis is needed and             Agenda in April and October of each
                                                      identifying and addressing, as                          no mitigation is required in connection               year. The RIN contained in the heading
                                                      appropriate, disproportionately high                    with the proposed revisions to the                    of this document can be used to cross
                                                      and adverse human health or                             Agencies’ NEPA and Section 4(f)                       reference this action with the Unified
                                                      environmental effects, including                        implementing regulations (23 CFR parts                Agenda.
                                                      interrelated social and economic effects,               771 and 774).
                                                      of their programs, policies, and                                                                              List of Subjects
                                                      activities on minority populations and                  Executive Order 13045 (Protection of
                                                                                                              Children)                                             23 CFR Part 771
                                                      low-income populations in the United
                                                      States. The DOT Order requires DOT                        The Agencies have analyzed this                       Environmental review process,
                                                      agencies to address compliance with the                 action under Executive Order 13045,                   Environmental protection, Grant
                                                      Executive Order and the DOT Order in                    Protection of Children from                           programs—transportation, Highways
                                                      all rulemaking activities. In addition,                 Environmental Health Risks and Safety                 and roads, Historic preservation,
                                                      FHWA and FTA have issued additional                     Risks. The Agencies certify that this                 Programmatic approaches, Public lands,
                                                      documents relating to administration of                 action would not be an economically                   Railroads, Recreation areas, Reporting
                                                      the Executive Order and the DOT Order.                  significant rule and would not cause an
                                                                                                                                                                    and recordkeeping requirements.
                                                      On June 14, 2012, FHWA issued an                        environmental risk to health or safety
                                                      update to its EJ order, FHWA Order                      that may disproportionately affect                    23 CFR Part 774
                                                      6640.23A, FHWA Actions to Address                       children.
                                                      Environmental Justice in Minority                                                                                Environmental protection, Grant
                                                      Populations and Low Income                              Executive Order 12630 (Taking of                      programs—transportation, Highways
                                                      Populations (available online at                        Private Property)                                     and roads, Historic preservation, Mass
                                                      www.fhwa.dot.gov/legsregs/directives/                     The Agencies do not anticipate that                 transportation, Public lands, Railroads
                                                      orders/664023a.cfm). The FTA also                       this action would affect a taking of                  recreation areas, Reporting and
                                                      issued an update to its EJ policy, FTA                  private property or otherwise have                    recordkeeping requirements, Wildlife
                                                      Policy Guidance for Federal Transit                     taking implications under Executive                   refuges.
                                                      Recipients, 77 FR 42077 (July 17, 2012)                 Order 12630, Governmental Actions and
                                                      (available online at http://                            Interference with Constitutionally                    49 CFR Part 264
                                                      www.fta.dot.gov/legislation_law/12349_                  Protected Property Rights.
                                                                                                                                                                      Environmental impact statements,
                                                      14740.html).
                                                         The Agencies have evaluated this                     National Environmental Policy Act                     Environmental review process,
                                                      proposed rule under the Executive                         Agencies are required to adopt                      Environmental protection, Grant
                                                      Order, the DOT Order, the FHWA                          implementing procedures for NEPA that                 programs—transportation,
                                                      Order, and the FTA Circular. The                        establish specific criteria for, and                  Programmatic approaches, Railroads,
                                                      Agencies have determined that the                       identification of, three classes of                   Reporting and recordkeeping
                                                      proposed changes to 23 CFR parts 771                    actions: those that normally require                  requirements.
                                                      and 774, if finalized as proposed, would                preparation of an EIS; those that
                                                                                                                                                                    49 CFR Part 622
                                                      not cause disproportionately high and                   normally require preparation of an EA;
                                                      adverse human health and                                and those that are categorically                        Environmental impact statements,
                                                      environmental effects on minority or                    excluded from further NEPA review (40                 Environmental review process, Grant
                                                      low income populations.                                 CFR 1507.3(b)). The CEQ regulations do                programs—transportation, Historic
                                                         At the time the Agencies apply the                   not direct agencies to prepare a NEPA                 preservation, Programmatic approaches,
                                                      NEPA implementing procedures in 23                      analysis or document before                           Public lands, Public transportation,
                                                      CFR part 771, the Agencies would have                   establishing agency procedures (such as
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                                                                                                                                                                    Recreation areas, Reporting and
                                                      an independent obligation to conduct an                 this regulation) that supplement the
                                                                                                                                                                    recordkeeping requirements, Transit.
                                                      evaluation of the proposed action under                 CEQ regulations for implementing
                                                      the applicable EJ orders and guidance to                NEPA. The changes proposed in this
                                                      determine whether the proposed action                   rule are part of those agency procedures,
                                                      has the potential for EJ effects. The rule              and therefore establishing the proposed
                                                      would not affect the scope or outcome                   changes does not require preparation of
                                                      of that EJ evaluation. In any instance                  a NEPA analysis or document. Agency
                                                      where there are potential EJ effects                    NEPA procedures are generally
                                                      resulting from a proposed Agency action                 procedural guidance to assist agencies


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                                                      45542                 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules

                                                        Issued in Washington, DC, under authority             § 771.105    Policy.                                  scope of any delegation or assignment
                                                      delegated in 49 CFR 1.85 and 1.91:                         (a) To the maximum extent                          made by FHWA, FRA, or FTA.
                                                      Brandye L. Hendrickson,                                 practicable and consistent with Federal                 Administration action. FHWA, FRA,
                                                      Acting Administrator, Federal Highway                   law, all environmental investigations,                or FTA approval of the applicant’s
                                                      Administration.                                         reviews, and consultations be                         request for Federal funds for
                                                      Heath Hall,                                             coordinated as a single process, and                  construction. It also includes approval
                                                      Acting Administrator, Federal Railroad                  compliance with all applicable                        of activities such as joint and multiple
                                                      Administration.                                         environmental requirements be reflected               use permits, changes in access control,
                                                      Jane Williams,                                          in the environmental review document                  rulemakings, etc., which may or may
                                                      Acting Administrator, Federal Transit                   required by this regulation.1                         not involve a commitment of Federal
                                                      Administration.                                            (b) Programmatic approaches be                     funds.
                                                                                                              developed for compliance with                         *     *     *     *     *
                                                        In consideration of the foregoing, the                environmental requirements (including                 ■ 5. Further amend § 771.109, as
                                                      Agencies propose to amend title 23,                     the requirements found at 23 U.S.C.                   proposed to be amended at 80 FR 72624
                                                      Code of Federal Regulations parts 771                   139(b)), coordination among agencies                  (November 20, 2015), by revising
                                                      and 774, and title 49, Code of Federal                  and/or the public, or to otherwise                    paragraphs (a)(1), (b)(1), and (c)(2), (6),
                                                      Regulations parts 264 and 622, as                       enhance and accelerate project                        and (7) and adding paragrpah (e) to read
                                                      follows:                                                development.                                          as follows:
                                                      Title 23—Highways                                       *      *     *    *     *
                                                                                                                                                                    § 771.109 Applicability and
                                                                                                                 (e) * * *                                          responsibilities.
                                                      PART 771—ENVIRONMENTAL IMPACT                              (2) The proposed mitigation
                                                                                                                                                                       (a)(1) The provisions of this regulation
                                                      AND RELATED PROCEDURES                                  represents a reasonable public
                                                                                                                                                                    and the CEQ regulation apply to actions
                                                                                                              expenditure after considering the
                                                                                                                                                                    where the Administration exercises
                                                      ■ 1. Revise the authority citation for part             impacts of the action and the benefits of
                                                                                                                                                                    sufficient control to condition the
                                                      771 to read as follows:                                 the proposed mitigation measures.
                                                                                                                                                                    permit, project, or other approvals.
                                                        Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C.
                                                                                                              * * *
                                                                                                                                                                    Actions taken by the applicant which do
                                                      106, 109, 128, 138, 139, 315, 325, 326, and             *      *     *    *     *                             not require Federal approvals, such as
                                                      327; 49 U.S.C. 303; 40 CFR parts 1500                   ■ 4. Further amend § 771.107, as                      preparation of a regional transportation
                                                      through 1508; 49 CFR 1.81, 1.85, and 1.91;              proposed to be amended at 80 FR 72624                 plan are not subject to this regulation.
                                                      Pub. L. 109–59, 119 Stat. 1144, Sections 6002           (November 20, 2015), by revising the
                                                      and 6010; Pub. L. 112–141, 126 Stat. 405,                                                                     *      *    *      *    *
                                                                                                              defintions for ‘‘Action,’’
                                                      Sections 1315, 1316, 1317, 1318, and 1319;                                                                       (b)(1) The applicant, in cooperation
                                                                                                              ‘‘Administration,’’ and ‘‘Administration
                                                      and Public Law 114–94, 129 Stat. 1312,                                                                        with the Administration, is responsible
                                                                                                              action’’ to read as follows:
                                                      Sections 1314 and 1432.                                                                                       for implementing those mitigation
                                                                                                              § 771.107    Definitions.                             measures stated as commitments in the
                                                      ■   2. Revise § 771.101 to read as follows:                                                                   environmental documents prepared
                                                                                                              *     *     *    *     *
                                                      § 771.101   Purpose.                                      Action. A highway, transit, or railroad             pursuant to this regulation unless the
                                                                                                              project proposed for FHWA, FRA, or                    Administration approves of their
                                                         This regulation prescribes the policies              FTA funding. It also includes activities              deletion or modification in writing. The
                                                      and procedures of the Federal Highway                   such as joint and multiple use permits,               FHWA will assure that this is
                                                      Administration (FHWA), the Federal                      changes in access control, rulemakings,               accomplished as a part of its
                                                      Railroad Administration (FRA), and the                  etc., which may or may not involve a                  stewardship and oversight
                                                      Federal Transit Administration (FTA)                    commitment of Federal funds.                          responsibilities. The FRA and FTA will
                                                      for implementing the National                             Administration. The FHWA, FRA, or                   assure implementation of committed
                                                      Environmental Policy Act of 1969 as                     FTA, whichever is the designated                      mitigation measures by including the
                                                      amended (NEPA), and supplements the                     Federal lead agency for the proposed                  mitigation measures by reference in the
                                                      NEPA regulation of the Council on                       action. A reference herein to the                     grant agreement, followed by reviews of
                                                      Environmental Quality (CEQ), 40 CFR                     Administration means the FHWA, FRA,                   designs and construction inspections.
                                                      parts 1500 through 1508 (CEQ                            or FTA, or a State when the State is                     (c) * * *
                                                      regulation). Together these regulations                 functioning as the FHWA, FRA, or FTA                     (2) Any applicant that is a State or
                                                      set forth all FHWA, FRA, FTA and                        in carrying out responsibilities                      local governmental entity that is, or is
                                                      Department of Transportation (DOT)                      delegated or assigned to the State in                 expected to be, a direct recipient of
                                                      requirements under NEPA for the                         accordance with 23 U.S.C. 325, 326, or                funds under title 23, U.S. Code or
                                                      processing of highway, public                           327, or other applicable law. A reference             chapter 53 of title 49, U.S. Code for the
                                                      transportation, and railroad projects.                  herein to the FHWA, FRA, or FTA                       action or is, or is expected to be, a direct
                                                      This regulation also sets forth                         means the State when the State is                     recipient of financial assistance for
                                                      procedures to comply with 23 U.S.C.                     functioning as the FHWA, FRA, or FTA,                 which FRA is responsible (e.g., Subtitle
                                                      109(h), 128, 138, 139, 325, 326, and 327;               respectively in carrying out                          V of Title 49, U.S. Code) shall serve as
                                                      49 U.S.C. 303 and 5323(q); Public Law                   responsibilities delegated or assigned to             a joint lead agency with the
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                                                      112–141, 126 Stat. 405, section 1301 as                 the State in accordance with 23 U.S.C.                Administration in accordance with 23
                                                      applicable; and Public Law 114–94, 129                  325, 326, or 327, or other applicable                 U.S.C. 139, and may prepare
                                                      Stat. 1312, section 1304.                               law. Nothing in this definition alters the            environmental review documents if the
                                                      ■ 3. Further amend § 771.105, as                                                                              Administration furnishes guidance and
                                                      proposed to be amended at 80 FR 72624                     1 FHWA, FRA, and FTA have supplementary             independently evaluates the documents.
                                                      (November 20, 2015), by removing the                    guidance on environmental documents and               *      *    *      *    *
                                                                                                              procedures for their programs available on the
                                                      introductory text and revising                          Internet at http://www.fhwa.dot.gov, http://
                                                                                                                                                                       (6) Subject to paragraph (e) of this
                                                      paragraphs (a), (b), and the first sentence             www.fra.dot.gov, and http://www.fta.dot.gov, or in    section, the role of a project sponsor that
                                                      in (e)(2) to read as follows:                           hardcopy by request.                                  is a private institution or firm is limited


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                                                                            Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules                                            45543

                                                      to providing technical studies and                      participating agencies, will develop an               must be made to the public and other
                                                      commenting on environmental review                      environmental checklist, as appropriate,              agencies. If early scoping is the start of
                                                      documents.                                              to assist in resource and agency                      the NEPA process, the early scoping
                                                         (7) A participating agency is                        identification.                                       notice must include language to that
                                                      responsible for providing input, as                       (b)(1) The Administration will                      effect. After development of the
                                                      appropriate, during the times specified                 identify the probable class of action as              proposed action at the conclusion of
                                                      in the coordination plan under 23                       soon as sufficient information is                     early scoping, FRA or FTA will publish
                                                      U.S.C. 139(g) and within the agency’s                   available to identify the probable                    the Notice of Intent if it is determined
                                                      special expertise or jurisdiction.                      impacts of the action.                                at that time that the proposed action
                                                      Participating agencies provide                            (2) For projects to be evaluated with               requires an EIS. The Notice of Intent
                                                      comments, if any, and concurrence on                    an EIS, the Administration shall                      will establish a 30-day period for
                                                      the schedule within the coordination                    respond to a project sponsor’s formal                 comments on the purpose and need,
                                                      plan.                                                   project notification within 45 days of                alternatives, and the scope of the NEPA
                                                      *      *      *    *      *                             receipt and in writing.                               analysis.
                                                         (e) When FRA is the lead Federal                       (c) When the FHWA, FRA, or FTA are                     (3) Are encouraged to post and
                                                      agency, and the project sponsor is a                    involved in the development of an                     distribute materials related to the
                                                      private entity, and there is no applicant               action, or when the FHWA, FRA, or                     environmental review process,
                                                      acting as a joint-lead agency, FRA shall                FTA act as a joint lead agency with                   including but not limited to,
                                                      use a qualified third-party contractor to               another Federal agency, a mutually                    environmental documents (e.g., EAs and
                                                      prepare an EIS. Third-party contracting                 acceptable process will be established                EISs), environmental studies (e.g.,
                                                      is a voluntary arrangement whereby the                  on a case-by-case basis. A project                    technical reports), public meeting
                                                      project sponsor retains a contractor to                 sponsor may request the Secretary to                  announcements, and meeting minutes,
                                                      assist in conducting the environmental                  designate the lead Federal agency when                through publicly-accessible electronic
                                                      review under the direction, supervision,                project elements fall within multiple                 means, including project Web sites.
                                                      and control of the Administration. FRA                  DOT agencies’ expertise.                              Applicants are encouraged to keep these
                                                      must oversee the preparation of the EIS                   (d) During the early coordination                   materials available to the public
                                                      and retains ultimate control over the                   process, the lead agencies may request                electronically until the project is
                                                      third-party contractor’s work product.                  other agencies having an interest in the              constructed and open for operations.
                                                      FRA may require use of a third-party                    action to participate, and must invite
                                                      contractor for preparation of an EA at its              such agencies if the action is subject to                (4) Are encouraged to post all findings
                                                      discretion. FRA, the project sponsor,                   the project development procedures in                 of no significant impact (FONSI),
                                                      and the contractor will enter into a                    23 U.S.C. 139. Agencies with special                  combined final environmental impact
                                                      memorandum of understanding (MOU)                       expertise may be invited to become                    statement (final EIS)/records of decision
                                                      that outlines at a minimum the                          cooperating agencies. Agencies with                   (ROD), and RODs on a project Web site
                                                      conditions and procedures to be                         jurisdiction by law must be requested to              until the project is constructed and open
                                                      followed in carrying out the MOU and                    become cooperating agencies. The lead                 for operation.
                                                      the responsibilities of the parties to the              agencies identify participating agencies                 (j) Information on the FHWA
                                                      MOU.                                                    within 45 days from publication of the                environmental process may be obtained
                                                      ■ 6. Further amend § 771.111, as                                                                              from: FHWA Director, Office of Project
                                                                                                              notice of intent.
                                                      proposed to be amended at 80 FR 72624                                                                         Development and Environmental
                                                      (November 20, 2015), by revising                        *     *      *    *     *
                                                                                                                (i) Applicants for FRA programs or                  Review, Federal Highway
                                                      paragraphs (a)(2)(i), (a)(3), (b), (c), (d),                                                                  Administration, Washington, DC 20590,
                                                      (i), and (j) to read as follows:                        the FTA capital assistance program:
                                                                                                                (1) Achieve public participation on                 or www.fhwa.dot.gov. Information on
                                                      § 771.111 Early coordination, public                    proposed actions through activities that              the FRA environmental process may be
                                                      involvement, and project development.                   engage the public, including public                   obtained from: FRA Chief,
                                                         (a) * * *                                            hearings, town meetings, and charrettes,              Environmental and Corridor Planning
                                                         (2)(i) The information and results                   and seeking input from the public                     Division, Office of Program Delivery,
                                                      produced by, or in support of, the                      through scoping for the environmental                 Federal Railroad Administration,
                                                      transportation planning process may be                  review process. Project milestones may                Washington, DC 20590, or
                                                      incorporated into environmental review                  be announced to the public using                      www.fra.dot.gov. Information on the
                                                      documents in accordance with 40 CFR                     electronic or paper media (e.g.,                      FTA environmental process may be
                                                      parts 1500 through 1508, 23 CFR part                    newsletters, note cards, or emails)                   obtained from: FTA Director, Office of
                                                      450, or 23 U.S.C. 139(f), 168, or 169, as               pursuant to 40 CFR 1506.6. For actions                Environmental Programs, Federal
                                                      applicable.                                             requiring EISs, an early opportunity for              Transit Administration, Washington, DC
                                                      *      *     *     *    *                               public involvement in defining the                    20590, or www.fta.dot.gov.
                                                         (3) Applicants intending to apply for                purpose and need for the action and the               ■ 7. Further amend § 771.113, as
                                                      funds should notify the Administration                  range of alternatives must be provided,               proposed to be amended at 80 FR 72624
                                                      at the time that a project concept is                   and a public hearing will be held during              (November 20, 2015), by revising the
                                                      identified. When requested, the                         the circulation period of the draft EIS.              second sentence in paragraph (a) and
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                                                      Administration will advise the                            (2) May participate in early scoping as             adding paragraph (d)(4) to read as
                                                      applicant, insofar as possible, of the                  long as enough project information is                 follows:
                                                      probable class of action (see § 771.115)                known so the public and other agencies
                                                      and related environmental laws and                      can participate effectively. Early scoping            § 771.113 Timing of Administration
                                                                                                                                                                    activities.
                                                      requirements and of the need for                        constitutes initiation of NEPA scoping
                                                      specific studies and findings that would                while local planning efforts to aid in                  (a) * * * This work includes drafting
                                                      normally be developed during the                        establishing the purpose and need and                 environmental documents and
                                                      environmental review process. A lead                    in evaluating alternatives and impacts                completing environmental studies,
                                                      agency, in consultation with                            are underway. Notice of early scoping                 related engineering studies, agency


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                                                      45544                 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules

                                                      coordination, and public involvement.                   involve significant air, noise, or water                 (9) Maintenance or repair of existing
                                                      * * *                                                   quality impacts; do not have significant              railroad facilities where the
                                                      *      *    *      *    *                               impacts on travel patterns; or do not                 maintenance or repair activities do not
                                                         (d) * * *                                            otherwise, either individually or                     change the existing character of the
                                                         (4) FRA makes exceptions on a case-                  cumulatively, have any significant                    facility, including equipment; track and
                                                      by-case basis for purchases of railroad                 environmental impacts.                                bridge structures; electrification,
                                                      components or materials that can be                        (b) Any action which normally would                communication, signaling, or security
                                                      used for other projects or resold.                      be classified as a CE but could involve               facilities; stations; tunnels;
                                                      ■ 8. Further amend § 771.115, as                        unusual circumstances will require                    maintenance-of-way and maintenance-
                                                      proposed to be amended at 80 FR 72624                   FRA, in cooperation with the applicant,               of-equipment bases.
                                                      (November 20, 2015), by removing the                    to conduct appropriate environmental                     (10) Emergency repair or replacement,
                                                      introductory text, revising paragraphs                  studies to determine if the CE                        including reconstruction, restoration, or
                                                      (a) introductory text and (a)(4), adding                classification is proper. Such unusual                retrofitting of an essential rail facility
                                                      paragraph (a)(6), and revising paragraph                circumstances include:                                damaged by the occurrence of a natural
                                                      (b) to read as follows:                                    (1) Significant environmental impacts;             disaster or catastrophic failure. Such
                                                                                                                 (2) Substantial controversy on                     repair or replacement may include
                                                      § 771.115   Classes of actions.                         environmental grounds;                                upgrades to meet existing codes and
                                                         (a) EIS (Class I). Actions that                         (3) Significant impact on properties               standards as well as upgrades warranted
                                                      significantly affect the environment                    protected by Section 4(f) of the DOT Act              to address conditions that have changed
                                                      require an EIS (40 CFR 1508.27). The                    or Section 106 of the National Historic               since the rail facility’s original
                                                      following are examples of actions that                  Preservation Act; or                                  construction.
                                                      normally require an EIS:                                   (4) Inconsistencies with any Federal,                 (11) Operating assistance to a railroad
                                                                                                              State, or local law, requirement or                   to continue existing service or to
                                                      *      *     *     *     *
                                                                                                              administrative determination relating to              increase service to meet demand, where
                                                         (4) For FHWA actions, new
                                                                                                              the environmental aspects of the action.              the assistance will not significantly alter
                                                      construction or extension of a separate
                                                                                                                 (c) Actions that FRA determines fall               the traffic density characteristics of
                                                      roadway for buses or high occupancy
                                                                                                              within the following categories of FRA                existing rail service.
                                                      vehicles not located within an existing                                                                          (12) Minor rail line additions,
                                                      transportation right-of-way.                            CEs and that meet the criteria for CEs in
                                                                                                              the CEQ regulation (40 CFR 1508.4) and                including construction of side tracks,
                                                      *      *     *     *     *                              paragraph (a) of this section may be                  passing tracks, crossovers, short
                                                         (6) For FRA actions, new construction                designated as CEs only after FRA                      connections between existing rail lines,
                                                      of major railroad lines or facilities (e.g.             approval. Where there is a project                    and new tracks within existing rail
                                                      terminal passenger stations, freight                    applicant or sponsor, it must submit                  yards or right-of-way, provided that
                                                      transfer yards, or railroad equipment                   documentation which demonstrates that                 such additions are not inconsistent with
                                                      maintenance facilities) that will not be                the specific conditions or criteria for               existing zoning, do not involve
                                                      located within an existing                              these CEs are satisfied and that                      acquisition of a significant amount of
                                                      transportation right-of-way.                            significant environmental effects will                right of way, and do not significantly
                                                         (b) CE (Class II). Actions that do not               not result.                                           alter the traffic density characteristics of
                                                      individually or cumulatively have a                        (1) Administrative procurements (e.g.,             the existing rail lines or rail facilities.
                                                      significant environmental effect are                    for general supplies), contracts for                     (13) Acquisition or transfer of real
                                                      excluded from the requirement to                        personal services, and training.                      property or existing railroad facilities
                                                      prepare an EA or EIS. A specific list of                   (2) Personnel actions.                             including: Track and bridge structures;
                                                      CEs normally not requiring NEPA                            (3) Planning or design activities that             electrification, communication,
                                                      documentation is set forth in                           do not commit to a particular course of               signaling or security facilities; stations;
                                                      § 771.117(c) for FHWA actions or                        action affecting the environment.                     and maintenance of way and
                                                      pursuant to § 771.118(c) for FTA                           (4) Localized geotechnical and other               maintenance of equipment bases or the
                                                      actions. When appropriately                             investigations to provide information for             right to use such real property and
                                                      documented, additional projects may                     preliminary design and for                            railroad facilities, for the purpose of
                                                      also qualify as CEs pursuant to                         environmental analyses and permitting                 conducting operations of a nature and at
                                                      § 771.117(d) for FHWA actions or                        purposes, such as drilling test bores for             a level of use similar to those presently
                                                      pursuant to § 771.118(d) for FTA                        soil sampling; archeological                          or previously existing on the subject
                                                      actions. FRA’s CEs are listed in                        investigations for archeology resources               properties or facilities.
                                                      § 771.116.                                              assessment or similar survey; and                        (14) Research, development, or
                                                      *      *     *     *     *                              wetland surveys.                                      demonstration activities on existing
                                                      ■ 9. Add § 771.116 to read as follows:                     (5) Internal orders, policies, and                 railroad lines or at existing facilities,
                                                                                                              procedures not required to be published               where such activities do not require the
                                                      § 771.116   FRA categorical exclusions.                 in the Federal Register under the                     acquisition of a significant amount of
                                                        (a) CEs are actions which meet the                    Administrative Procedure Act, 5 U.S.C.                right-of-way, and do not significantly
                                                      definition contained in 40 CFR 1508.4,                  552(a)(1).                                            alter the traffic density characteristics of
                                                      and, based on FRA’s past experience                        (6) Rulemakings issued under section               the existing rail line or facility, such as
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                                                      with similar actions, do not involve                    17 of the Noise Control Act of 1972, 42               advances in signal communication or
                                                      significant environmental impacts. They                 U.S.C. 4916.                                          train control sytems, equipment, track,
                                                      are actions which: Do not induce                           (7) Financial assistance to an                     or track structures.
                                                      significant impacts to planned growth or                applicant where the financial assistance                 (15) Promulgation of rules, the
                                                      land use for the area; do not require the               funds an action that is already                       issuance of policy statements, the
                                                      relocation of significant numbers of                    completed, such as refinancing                        waiver or modification of existing
                                                      people; do not have a significant impact                outstanding debt.                                     regulatory requirements, or
                                                      on any natural, cultural, recreational,                    (8) Hearings, meetings, or public                  discretionary approvals that do not
                                                      historic or other resource; do not                      affairs activities.                                   result in significantly increased


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                                                                            Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules                                          45545

                                                      emissions of air or water pollutants or                 including activities such as noise                    are actions which: Do not induce
                                                      noise.                                                  mitigation, landscaping, natural                      significant impacts to planned growth or
                                                         (16) Alterations to existing facilities,             resource management activities,                       land use for the area; do not require the
                                                      locomotives, stations, and rail cars in                 replacement or improvement to storm                   relocation of significant numbers of
                                                      order to make them accessible for the                   water oil/water separators, installation              people; do not have a significant impact
                                                      elderly and persons with disabilities,                  of pollution containment systems, slope               on any natural, cultural, recreational,
                                                      such as modifying doorways, adding or                   stabilization, and contaminated soil                  historic or other resource; do not
                                                      modifying lifts, constructing access                    removal or remediation activities.                    involve significant air, noise, or water
                                                      ramps and railings, modifying                              (21) Assembly or construction of                   quality impacts; do not have significant
                                                      restrooms, and constructing accessible                  facilities or stations that are consistent            impacts on travel patterns; or do not
                                                      platforms.                                              with existing land use and zoning                     otherwise, either individually or
                                                         (17) The rehabilitation,                             requirements, do not result in a major                cumulatively, have any significant
                                                      reconstruction, removal, or replacement                 change in traffic density on existing rail            environmental impacts.
                                                      of bridges, the rehabilitation or                       or highway facilities and result in                   *      *    *     *    *
                                                      maintenance of the rail elements of                     approximately less than ten acres of                  ■ 12. Further amend § 771.119, as
                                                      docks or piers for the purposes of                      surface disturbance, such as storage and              proposed to be amended at 80 FR 72624
                                                      intermodal transfers, and the                           maintenance facilities, freight or                    (November 20, 2015), by redesignating
                                                      construction of bridges, culverts, or                   passenger loading and unloading                       paragraphs (a)(i) and (ii) as paragraphs
                                                      grade separation projects that are                      facilities or stations, parking facilities,           (a)(1) and (2), adding paragraph (a)(3),
                                                      predominantly within existing right-of-                 passenger platforms, canopies, shelters,              and revising paragraphs (d) and (h) to
                                                      way and that do not involve extensive                   pedestrian overpasses or underpasses,                 read as follows:
                                                      in-water construction activities, such as               paving, or landscaping.
                                                      projects replacing bridge components                       (22) Track and track structure                     § 771.119    Environmental assessments.
                                                      including stringers, caps, piles, or                    maintenance and improvements when                        (a) * * *
                                                      decks, the construction of roadway                      carried out predominantly within the                     (3) For FRA actions: When FRA or the
                                                      overpasses to replace at-grade crossings,               existing right-of-way that do not cause               applicant, as joint lead agency, select a
                                                      construction or reconstruction of                       a substantial increase in rail traffic                contractor to prepare the EA, then the
                                                      approaches or embankments to bridges,                   beyond existing or historic levels, such              contractor must execute an FRA conflict
                                                      or construction or replacement of short                 as stabilizing embankments, installing                of interest disclosure statement. In the
                                                      span bridges.                                           or reinstalling track, re-grading,                    absence of an applicant, FRA may
                                                         (18) Acquisition (including purchase                 replacing rail, ties, slabs and ballast,              require private project sponsors to
                                                      or lease), rehabilitation, transfer, or                 installing, maintaining, or restoring                 provide a third party contractor to
                                                      maintenance of vehicles or equipment                    drainage ditches, cleaning ballast,                   prepare the EA as described in
                                                      that does not significantly alter the                   constructing minor curve realignments,                § 771.109(e).
                                                      traffic density characteristics of an                   improving or replacing interlockings,                 *      *    *     *     *
                                                      existing rail line, including locomotives,              and the installation or maintenance of                   (d) The applicant does not need to
                                                      passenger coaches, freight cars,                        ancillary equipment.                                  circulate the EA for comment but the
                                                      trainsets, and construction, maintenance                ■ 10. Revise § 771.117(a) to read as                  document must be made available for
                                                      or inspection equipment.                                follows:
                                                         (19) Installation, repair and                                                                              public inspection at the applicant’s
                                                      replacement of equipment and small                      § 771.117    FHWA categorical exclusions.             office and at the appropriate
                                                      structures designed to promote                                                                                Administration field offices or, for FRA
                                                                                                                (a) CEs are actions which meet the
                                                      transportation safety, security,                                                                              at Headquarters, for 30 days and in
                                                                                                              definition contained in 40 CFR 1508.4,
                                                      accessibility, communication or                                                                               accordance with paragraphs (e) and (f)
                                                                                                              and, based on FHWA’s past experience
                                                      operational efficiency that take place                                                                        of this section. The applicant shall send
                                                                                                              with similar actions, do not involve
                                                      predominantly within the existing right-                                                                      the notice of availability of the EA,
                                                                                                              significant environmental impacts. They
                                                      of-way and do not result in a major                                                                           which briefly describes the action and
                                                                                                              are actions which: Do not induce
                                                      change in traffic density on the existing                                                                     its impacts, to the affected units of
                                                                                                              significant impacts to planned growth or
                                                      rail line or facility, such as the                                                                            Federal, State and local government.
                                                                                                              land use for the area; do not require the
                                                      installation, repair or replacement of                                                                        The applicant shall also send notice to
                                                                                                              relocation of significant numbers of
                                                      surface treatments or pavement                                                                                the State intergovernmental review
                                                                                                              people; do not have a significant impact
                                                      markings, small passenger shelters,                                                                           contacts established under Executive
                                                                                                              on any natural, cultural, recreational,
                                                      passenger amenities, benches, signage,                                                                        Order 12372.
                                                                                                              historic or other resource; do not
                                                      sidewalks or trails, equipment                          involve significant air, noise, or water              *      *    *     *     *
                                                      enclosures, and fencing, railroad                       quality impacts; do not have significant                 (h) When the FHWA expects to issue
                                                      warning devices, train control systems,                 impacts on travel patterns; or do not                 a FONSI for an action described in
                                                      signalization, electric traction                        otherwise, either individually or                     § 771.115(a), copies of the EA shall be
                                                      equipment and structures, electronics,                  cumulatively, have any significant                    made available for public review
                                                      photonics, and communications systems                   environmental impacts.                                (including the affected units of
                                                      and equipment, equipment mounts,                                                                              government) for a minimum of 30 days
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                                                                                                              *     *     *     *    *
                                                      towers and structures, information                      ■ 11. Revise § 771.118(a) to read as
                                                                                                                                                                    before the Administration makes its
                                                      processing equipment, and security                      follows:                                              final decision (See 40 CFR 1501.4(e)(2)).
                                                      equipment, including surveillance and                                                                         This public availability shall be
                                                      detection cameras.                                      § 771.118    FTA categorical exclusions.              announced by a notice similar to a
                                                         (20) Environmental restoration,                        (a) CEs are actions which meet the                  public hearing notice.
                                                      remediation, pollution prevention, and                  definition contained in 40 CFR 1508.4,                *      *    *     *     *
                                                      mitigation activities conducted in                      and, based on FTA’s past experience                   ■ 13. Further amend § 771.123, as
                                                      conformance with applicable laws,                       with similar actions, do not involve                  proposed to be amended at 80 FR 72624
                                                      regulations and permit requirements,                    significant environmental impacts. They               (November 20, 2015), by revising


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                                                      45546                 Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules

                                                      paragraphs (a), (b) and (c) to read as                  coordination required by environmental                consultations will be documented when
                                                      follows:                                                laws or Executive orders to the extent                determined necessary by the
                                                                                                              appropriate at this stage in the                      Administration.
                                                      § 771.123 Draft environmental impact
                                                                                                              environmental process.                                ■ 17. Revise § 771.131 to read as
                                                      statements.
                                                                                                              *     *      *      *     *                           follows:
                                                         (a) A draft EIS shall be prepared when
                                                                                                              ■ 14. Further amend § 771.124, as
                                                      the Administration determines that the                                                                        § 771.131      Emergency action procedures.
                                                      action is likely to cause significant                   proposed to be amended at 80 FR 72624
                                                                                                              (November 20, 2015), by revising                        Responses to some emergencies and
                                                      impacts on the environment. When the                                                                          disasters are categorically excluded
                                                      applicant, after consultation with any                  paragraphs (a)(1) introductory text,
                                                                                                              (a)(1)(ii), and (a)(3) to read as follows:            under § 771.117 for FHWA, § 771.118
                                                      project sponsor that is not the applicant,                                                                    for FTA, or § 771.116 for FRA.
                                                      has notified the Administration in                      § 771.124 Final environmental impact                  Otherwise, requests for deviations from
                                                      accordance with 23 U.S.C. 139(e) and                    statement/record of decision document.                the procedures in this regulation
                                                      the decision has been made by the                         (a)(1) After circulation of a draft EIS             because of emergency circumstances (40
                                                      Administration to prepare an EIS, the                   and consideration of comments                         CFR 1506.11) shall be referred to the
                                                      Administration will issue a Notice of                   received, the lead agencies, in                       Administration’s Headquarters for
                                                      Intent (40 CFR 1508.22) for publication                 cooperation with the applicant (if not a              evaluation and decision after
                                                      in the Federal Register. Applicants are                 lead agency), shall combine the final EIS             consultation with CEQ.
                                                      encouraged to announce the intent to                    and ROD, to the maximum extent                        ■ 18. Revise § 771.139 to read as
                                                      prepare an EIS by appropriate means at
                                                                                                              practicable, unless:                                  follows:
                                                      the State or local level.
                                                         (b)(1) After publication of the Notice               *      *     *    *     *
                                                                                                                                                                    § 771.139      Limitations on claims.
                                                      of Intent, the lead agencies, in                          (ii) There are significant new
                                                                                                              circumstances or information relevant to                 Notices announcing decisions by the
                                                      cooperation with the applicant (if not a
                                                                                                              environmental concerns that bear on the               Administration or by other Federal
                                                      lead agency), will begin a scoping
                                                                                                              proposed action or the impacts of the                 agencies on a transportation project may
                                                      process that may take into account any
                                                                                                              proposed action.                                      be published in the Federal Register
                                                      planning work already accomplished, in
                                                                                                              *      *     *    *     *                             indicating that such decisions are final
                                                      accordance with 23 CFR 450.212,
                                                                                                                (3) If the comments on the draft EIS                within the meaning of 23 U.S.C. 139(l).
                                                      450.318, or any applicable provisions of
                                                                                                              are minor and confined to factual                     Claims arising under Federal law
                                                      the CEQ regulations at 40 CFR parts
                                                                                                              corrections or explanations that do not               seeking judicial review of any such
                                                      1500 through 1508. The scoping process
                                                                                                              warrant additional agency response, an                decisions by FHWA or FTA are time
                                                      will be used to identify the purpose and
                                                                                                              errata sheet may be attached to the draft             barred unless filed within 150 days after
                                                      need, the range of alternatives and
                                                                                                              statement pursuant to 40 CFR 1503.4(c),               the date of publication of the limitations
                                                      impacts, and the significant issues to be
                                                                                                              which together shall then become the                  on claims notice. Claims arising under
                                                      addressed in the EIS and to achieve the
                                                                                                              combined final EIS/ROD.                               Federal law seeking judicial review of
                                                      other objectives of 40 CFR 1501.7.
                                                                                                                                                                    any such decisions by FRA are time
                                                      Scoping is normally achieved through                    *      *     *    *     *                             barred unless filed within 2 years after
                                                      public and agency involvement                           ■ 15. Further amend § 771.125, as
                                                                                                                                                                    the date of publication of the limitations
                                                      procedures required by § 771.111. If a                  proposed to be amended at 80 FR 72624                 on claims notice. These time periods do
                                                      scoping meeting is to be held, it should                (November 20, 2015), by revising                      not lengthen any shorter time period for
                                                      be announced in the Administration’s                    paragraph (d) to read as follows:                     seeking judicial review that otherwise is
                                                      Notice of Intent and by appropriate
                                                                                                              § 771.125 Final environmental impact                  established by the Federal law under
                                                      means at the State or local level.
                                                         (2) The lead agencies must establish a               statements.                                           which judicial review is allowed. This
                                                      coordination plan, including a schedule,                *      *    *    *     *                              provision does not create any right of
                                                      within 90 days of notice of intent                         (d) Approval of the final EIS is not an            judicial review or place any limit on
                                                      publication.                                            Administration action as defined in                   filing a claim that a person has violated
                                                         (c) The draft EIS shall be prepared by               paragraph (c) of § 771.107 and does not               the terms of a permit, license, or
                                                      the lead agencies, in cooperation with                  commit the Administration to approve                  approval.
                                                      the applicant (if not a lead agency). The               any future request for financial
                                                                                                                                                                    PART 774—PARKS, RECREATION
                                                      draft EIS shall evaluate all reasonable                 assistance to fund the preferred
                                                                                                                                                                    AREAS, WILDLIFE AND WATERFOWL
                                                      alternatives to the action and document                 alternative.
                                                                                                                                                                    REFUGES, AND HISTORIC SITES
                                                      the reasons why other alternatives,                     *      *    *    *     *                              (SECTION 4(f))
                                                      which may have been considered, were                    ■ 16. Further amend § 771.129, as
                                                      eliminated from detailed study. The                     proposed to be amended at 80 FR 72624                 ■ 19. Revise the authority citation for
                                                      range of alternatives considered for                    (November 20, 2015), by revising                      part 774 to read as follows:
                                                      further study shall be used for all                     paragraph (c) to read as follows:                       Authority: 23 U.S.C. 103(c), 109(h), 138,
                                                      Federal environmental reviews and                                                                             325, 326, 327 and 204(h)(2); 49 U.S.C. 303;
                                                      permit processes, to the maximum                        § 771.129    Re-evaluations.
                                                                                                                                                                    Section 6009, Pub. L. 109–59, Aug. 10, 2005,
                                                      extent practicable and consistent with                  *     *     *    *    *
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                                                                                                                                                                    119 Stat. 1144; 49 CFR 1.81 and 1.91; and,
                                                      Federal law, unless the lead and                          (c) After the Administration issues a               Pub. L. 114–94, 129 Stat. 1312, Sections 1303
                                                      participating agencies agree to modify                  combined final EIS/ROD, ROD, FONSI,                   and 11502.
                                                      the alternatives in order to address                    or CE designation, the applicant shall                ■ 20. Amend § 774.3 by revising
                                                      significant new information and                         consult with the Administration prior to              footnote 1 to read as follows:
                                                      circumstances or to fulfill NEPA                        requesting any major approvals or grants
                                                      responsibilities in a timely manner, in                 to establish whether or not the approved              § 774.3      Section 4(f) approvals.
                                                      accordance with 23 U.S.C. 139(f)(4)(B).                 environmental document or CE                          *        *      *     *     *
                                                      The draft EIS shall also summarize the                  designation remains valid for the                         1 FHWASection 4(f) Programmatic
                                                      studies, reviews, consultations, and                    requested Administration action. These                Evaluations can be found at



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                                                                            Federal Register / Vol. 82, No. 188 / Friday, September 29, 2017 / Proposed Rules                                              45547

                                                      www.environment.fhwa.dot.gov/4f/                        moderate impact criteria in the FRA                   PART 622—ENVIRONMENTAL IMPACT
                                                      4fnationwideevals.asp.                                  guidelines for high-speed transportation              AND RELATED PROCEDURES
                                                      *     *    *     *     *                                noise and vibration impact assessment;
                                                      ■ 21. Amend § 774.13 by revising                                                                              ■ 27. Revise authority citation for part
                                                                                                              *      *     *     *    *
                                                      paragraph (a) to read as follows:                                                                             622 to read as follows:
                                                                                                              ■ 23. Amend § 774.17 by revising the
                                                                                                              definitions for ‘‘Administration’’ and                  Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C.
                                                      § 774.13   Exceptions.                                                                                        303 and 5323(q); 23 U.S.C. 139 and 326; Pub.
                                                                                                              ‘‘CE’’ to read as follows:
                                                      *       *    *      *     *                                                                                   L. 109–59, 119 Stat. 1144, Sections 6002 and
                                                         (a) The use of historic transportation               § 774.17    Definitions.                              6010; 40 CFR parts 1500–1508; 49 CFR 1.81;
                                                      facilities in certain circumstances:                                                                          Pub. L. 112–141, 126 Stat. 405, Sections
                                                                                                              *     *     *     *     *
                                                         (1) Common post-1945 concrete or                                                                           1315, 1316, 1317, 1318, and 1319; and Pub.
                                                                                                                 Administration. The FHWA, FRA, or                  L. 114–94, 129 Stat. 1312, Sections 1314 and
                                                      steel bridges and culverts that are                     FTA, whichever is approving the
                                                      exempt from individual review under                                                                           1432.
                                                                                                              transportation program or project at
                                                      54 U.S.C. 306108.                                                                                             [FR Doc. 2017–20565 Filed 9–27–17; 11:15 am]
                                                                                                              issue. A reference herein to the
                                                         (2) Improvement of railroad or rail                  Administration means the State when                   BILLING CODE 4910–22–P
                                                      transit lines that are in use or were                   the State is functioning as the FHWA,
                                                      historically used for the transportation                FRA, or FTA in carrying out
                                                      of goods or passengers, including, but                  responsibilities delegated or assigned to             ENVIRONMENTAL PROTECTION
                                                      not limited to, maintenance,                            the State in accordance with 23 U.S.C.                AGENCY
                                                      preservation, rehabilitation, operation,                325, 326, 327, or other applicable law.
                                                      modernization, reconstruction, and                                                                            40 CFR Part 52
                                                      replacement of elements of such                         *     *     *     *     *
                                                                                                                 CE. Refers to a Categorical Exclusion,             [EPA–R03–OAR–2017–0398; FRL–9968–50–
                                                      railroad or rail transit lines except for:                                                                    Region 3]
                                                         (i) Stations;                                        which is an action with no individual
                                                         (ii) Bridges or tunnels on railroad                  or cumulative significant environmental               Approval and Promulgation of Air
                                                      lines that have been abandoned or                       effect pursuant to 40 CFR 1508.4 and                  Quality Implementation Plans;
                                                      transit lines not in use over which                     § 771.116, § 771.117, or § 771.118 of this            Maryland; Nonattainment New Source
                                                      regular service has never operated, and                 chapter; unusual circumstances are                    Review Requirements for the 2008
                                                      that have not been railbanked or                        taken into account in making categorical              8-Hour Ozone Standard
                                                      otherwise reserved for the                              exclusion determinations.
                                                      transportation of goods or passengers;                  *     *     *     *     *                             AGENCY:  Environmental Protection
                                                      and                                                                                                           Agency (EPA).
                                                                                                              Title 49—Transportation
                                                         (iii) Historic sites unrelated to the                                                                      ACTION: Proposed rule.
                                                      railroad or rail transit lines.                         PART 264—ENVIRONMENTAL IMPACT
                                                         (3) Restoration, rehabilitation, or                                                                        SUMMARY:    The Environmental Protection
                                                                                                              AND RELATED PROCEDURES                                Agency (EPA) proposes to approve the
                                                      maintenance of other types of historic
                                                      transportation facilities, if the                       ■ 24. Revise the authority citation for               state implementation plan (SIP) revision
                                                      Administration concludes, as a result of                part 264 to read as follows:                          submitted by the Maryland Department
                                                      the consultation under 36 CFR 800.5,                                                                          of the Environment (MDE) on behalf of
                                                                                                                Authority: 42 U.S.C. 4321 et seq.; 49
                                                      that:                                                   U.S.C. 303; 23 U.S.C. 139; 40 CFR parts 1500          the State of Maryland in response to
                                                         (i) Such work will not adversely affect              through 1508; 49 CFR 1.81; Pub. L. 112–141,           EPA’s February 3, 2017 Findings of
                                                      the historic qualities of the facility that             126 Stat. 405, Section 1319; and Pub. L. 114–         Failure to Submit for various
                                                      caused it to be on or eligible for the                  94, 129 Stat. 1312, Sections 1432 and 11502.          requirements relating to the 2008 8-hour
                                                      National Register; and                                                                                        ozone national ambient air quality
                                                                                                              ■ 25. Revise the heading for part 264 to
                                                         (ii) The official(s) with jurisdiction                                                                     standards (NAAQS). This SIP revision is
                                                                                                              read as set forth above.
                                                      over the Section 4(f) resource have not                                                                       specific to nonattainment new source
                                                                                                              ■ 26. Revise § 264.101 to read as
                                                      objected to the Administration                                                                                review (NNSR) requirements. In the
                                                                                                              follows:
                                                      conclusion in paragraph (a)(3)(i) of this                                                                     Final Rules section of this Federal
                                                      section.                                                § 264.101 Procedures for complying with               Register, EPA is approving the State’s
                                                      *       *    *      *     *                             the surface transportation project delivery           SIP submittal as a direct final rule
                                                                                                              program application requirements and                  without prior proposal because the
                                                      ■ 22. Amend § 774.15 by revising
                                                                                                              termination.                                          Agency views this as a noncontroversial
                                                      paragraph (f)(2) to read as follows:
                                                                                                                 The procedures for complying with                  submittal and anticipates no adverse
                                                      § 774.15   Constructive use determinations.             the National Environmental Policy Act                 comments. A detailed description of the
                                                      *      *     *    *     *                               of 1969, as amended (42 U.S.C. 4321 et                state submittal and EPA’s evaluation is
                                                        (f) * * *                                             seq.), and related statutes, regulations,             included in a technical support
                                                        (2) For projected noise levels:                       and orders are set forth in part 771 of               document (TSD) prepared in support of
                                                        (i) The impact of projected traffic                   title 23 of the Code of Federal                       this rulemaking action. A copy of the
                                                      noise levels of the proposed highway                    Regulations. The procedures for                       TSD is available, upon request, from the
                                                      project on a noise-sensitive activity do                complying with 49 U.S.C. 303,                         EPA Regional Office listed in the
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                                                      not exceed the FHWA noise abatement                     commonly known as ‘‘Section 4(f),’’ are               ADDRESSES section of this document or
                                                      criteria as contained in Table 1 in part                set forth in part 774 of title 23 of the              is also available electronically within
                                                      772 of this chapter; or                                 Code of Federal Regulations. The                      the Docket for this rulemaking action. If
                                                        (ii) The projected operational noise                  procedures for complying with the                     no adverse comments are received in
                                                      levels of the proposed transit or railroad              surface transportation project delivery               response to this action, no further
                                                      project do not exceed the noise impact                  program application requirements and                  activity is contemplated. If EPA receives
                                                      criteria for a Section 4(f) activity in the             termination are set forth in part 773 of              adverse comments, the direct final rule
                                                      FTA guidelines for transit noise and                    title 23 of the Code of Federal                       will be withdrawn and all public
                                                      vibration impact assessment or the                      Regulations.                                          comments received will be addressed in


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Document Created: 2017-09-29 03:26:52
Document Modified: 2017-09-29 03:26:52
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionSupplemental notice of proposed rulemaking (SNPRM).
DatesThe Agencies must receive comments on or before November 28, 2017.
ContactFor FHWA: Neel Vanikar, Office of Project Delivery and Environmental Review, HEPE, (202) 366-2068, [email protected], or Diane Mobley, Office of the Chief Counsel, (202) 366-1366, [email protected] For FRA: Michael Johnsen, Office of Program Delivery, (202) 493-1310, [email protected], or Christopher Van Nostrand, Office of Chief Counsel, (202) 493-6058, [email protected] For FTA: Megan Blum, Office of Planning and Environment, (202) 366-0463, [email protected], or Helen Serassio, Office of Chief Counsel, (202) 366-1974, [email protected] The Agencies are located at 1200 New Jersey Ave. SE., Washington, DC 20590-0001. Office hours are from 8:00 a.m. to 4:30 p.m. E.T., Monday through Friday, except Federal holidays.
FR Citation82 FR 45530 
CFR Citation23 CFR 771
23 CFR 774
49 CFR 264
49 CFR 622
CFR AssociatedEnvironmental Review Process; Environmental Protection; Grant Programs-Transportation; Highways and Roads; Historic Preservation; Programmatic Approaches; Public Lands; Railroads; Recreation Areas; Reporting and Recordkeeping Requirements; Mass Transportation; Railroads Recreation Areas; Wildlife Refuges; Environmental Impact Statements; Public Transportation and Transit

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