SUPPLEMENTARY INFORMATION:

Electronic Access

A copy of the Interim Final Guidance is available for download and public inspection through www.regulations.gov using the docket number listed above, and on the FHWA, FRA and FTA websites, respectively: www.fhwa.dot.gov, www.railroads.dot.gov, and www.transit.dot.gov. Electronic retrieval assistance and guidelines are also available at www.regulations.gov. An electronic copy of this document also may be downloaded from the Office of the Federal Register's website at: www.FederalRegister.gov and the U.S. Government Publishing Office's website at: www.GovInfo.gov.

Background

Section 6002 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), (Pub. L. 109-59), codified at 23 U.S.C. 139, prescribed changes to: FHWA and FTA procedures for implementing the National Environmental Policy Act of 1969 (NEPA), as amended; the Council on Environmental Quality's (CEQ) implementing regulations, 40 CFR parts 1500-1508; and FHWA's and FTA's NEPA procedures, 23 CFR part 771. Section 6002 was intended to make the FHWA and FTA environmental review processes more efficient and to protect environmental and community resources.

On November 16, 2006, FHWA and FTA jointly issued guidance (71 FR 66576), titled SAFETEA-LU Environmental Review Process Final Guidance (2006 Guidance). Since the 2006 Guidance, there have been statutory amendments to the Section 139 environmental review process as a result of the following: subtitle c of the Moving Ahead for Progress in the 21st Century Act (MAP-21), (Pub. L. 112-141); section 1304 of the Fixing America's Surface Transportation Act (FAST Act) (Pub. L. 114-94); section 11301 of the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58, also known as the “Bipartisan Infrastructure Law” (BIL)); and amendments to NEPA in section 321 of the Fiscal Responsibility Act (Pub. L. 118-5).

The MAP-21 amended the Section 139 environmental review process by promoting accelerated project delivery through the increased use of categorical exclusions, programmatic approaches and planning and environment linkages.^[1] The FAST Act further amended the Section 139 environmental review process by institutionalizing best practices for accelerating complex infrastructure projects without undermining critical environmental laws or opportunities for public engagement. In addition, section 11503 of the FAST Act required FRA to apply the Section 139 environmental review process to railroad projects to the greatest extent feasible. 49 U.S.C. 24201. The BIL further amended the Section 139 environmental review process by codifying the One Federal Decision process for major projects.^[2]

In 2023, section 321 of the Fiscal Responsibility Act amended NEPA. However, the Fiscal Responsibility Act did not amend the Sec. 139 environmental review process. The Agencies have harmonized the NEPA amendments and the Sec. 139 environmental review process to the maximum extent possible in the Interim Final Guidance. In a few instances, the Sec. 139 environmental review process provides specific procedural instructions that control for certain types of projects, and these are pointed out in the guidance.

The Agencies are jointly issuing interim final guidance on the Section 139 environmental review process that reflects amendments to 23 U.S.C. 139, including the addition of FRA and applicability to railroad projects, and NEPA, as amended by the Fiscal Responsibility Act. This Interim Final Guidance, currently effective, supersedes and replaces the 2006 Guidance. This Interim Final Guidance will remain in effect until final guidance is issued or this interim final guidance is rescinded. This Interim Final Guidance does not supersede guidance and regulations promulgated by the Agencies under NEPA, including 23 CFR part 771.

Summary of Previous Comments Received

The FHWA and FTA published a proposed revised guidance following enactment of MAP-21 for public comment on March 13, 2015 (80 FR 13458). While the 2015 proposed guidance was never finalized, the Agencies considered all comments in developing this Interim Final Guidance. The Agencies received 11 comments from: one Federal agency (U.S. Department of the Interior), three State departments of transportation (New York, Texas, and Wisconsin), three transit authorities (San Francisco Bay Area Rapid Transit District, San Francisco Municipal Transportation Agency, and Tri-County Metropolitan Transportation District of Oregon), one State agency (State of Arizona Game and Fish Department), and three professional associations (American Public Transportation Association, American Association of State Highway and Transportation Officials, and the American Road & Transportation Builders Association). Seven of the 11 commenters offered general support for the draft guidance, but all 11 commenters suggested revisions to specific questions or answers found in the draft guidance. The Agencies considered all comments in developing this Interim Final Guidance but note that some comments were superseded by the enactment of the FAST Act or other statutory amendments. All comments can be found at: https://www.regulations.gov/​docket/​FHWA-2015-0001/​comments.

Request for Comments

The Agencies request comments on this Interim Final Guidance, which is ( printed page 102248) available in the docket for this notice and on FHWA's, FTA's and FRA's websites. The Agencies will consider any substantive comments received on the Interim Final Guidance and will either revise this interim guidance based on comments received or will finalize this interim guidance.

Authority:23 U.S.C. 139; Pub. L. 112-141, 126 Stat. 405; Pub. L. 114-94, 129 Stat. 1312; Pub. L. 117-58, 135 Stat. 429; Pub. L. 118-5, 137 Stat. 10; 23 CFR part 771; 40 CFR parts 1500-1508.

89 FR 102246