[Federal Register Volume 79, Number 8 (Monday, January 13, 2014)]
[Rules and Regulations]
[Pages 2107-2119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00370]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 771
Federal Transit Administration
49 CFR Part 622
[Docket No. FHWA-2013-0007]
RIN 2125-AF48
RIN 2132-AB05
Environmental Impact and Related Procedures
AGENCY: Federal Highway Administration, Federal Transit Administration,
DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the Federal Highway Administration
(FHWA) and Federal Transit Administration (FTA) joint procedures that
implement the National Environmental Policy Act (NEPA) by adding new
categorical exclusions (CE) for projects within an existing operational
right-of-way and projects receiving limited Federal funding, as
described in sections 1316 and 1317, respectively, of the Moving Ahead
for Progress in the 21st Century Act (MAP-21).
DATES: Effective on February 12, 2014.
FOR FURTHER INFORMATION CONTACT: For the Federal Highway
Administration: Kreig Larson, Office of Project Delivery and
Environmental Review, HEPE, (202) 366-2056, or Jomar Maldonado, Office
of the Chief Counsel, (202) 366-1373, Federal Highway Administration,
1200 New Jersey Ave. SE., Washington, DC 20590-0001. For the Federal
Transit Administration: Megan Blum at (202) 366-0463, Office of
Planning and Environment (TPE), (202) 366-0463; or Dana Nifosi at (202)
366-4011, Office of Chief Counsel (TCC). 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 July 6, 2012, President Obama signed into law MAP-21, Public Law
112-141, 126 Stat. 405, which contains new requirements that the FHWA
and the FTA, hereafter referred to as the ``Agencies,'' must meet in
complying with NEPA (42 U.S.C. 4321 et seq.). Sections 1316 and 1317 of
MAP-21 require the Secretary of Transportation to promulgate
regulations designating two types of actions as categorical exclusions
in 23 CFR part 771: (1) Any project (as defined in 23 U.S.C. 101(a))
within an existing operational right-of-way; and (2) any project that
receives less than $5,000,000 of Federal funds or with a total
estimated cost of not more than $30,000,000 and Federal funds
comprising less than 15 percent of the total estimated project cost,
respectively. The Agencies are carrying out this rulemaking on behalf
of the Secretary.
The Agencies' joint procedures at 23 CFR part 771 describe how the
Agencies comply with NEPA and the Council on Environmental Quality
(CEQ) regulations implementing NEPA, and include categorical exclusions
that identify actions the Agencies have determined do not normally have
the potential for significant environmental impacts and therefore do
not require the preparation of an environmental assessment (EA) or
environmental impact statement (EIS), pursuant to 40 CFR 1508.4.
Section 771.117 applies to FHWA actions and section 771.118 applies to
FTA actions. Sections 771.117(c) and 771.118(c) establish specific
lists of categories of actions, or (c)-list CEs, that the Agencies have
determined normally do not individually or cumulatively have a
significant effect on the human environment, and do not require an EA
or EIS. Sections 771.117(d) and 771.118(d) establish example lists of
categorical exclusions, or (d)-list CEs, that the Agencies also have
determined are normally categorically excluded from further NEPA review
but require Agency approval based on additional documentation
demonstrating that the specific criteria for the CE are satisfied and
that no significant environmental impacts will result from the action.
Additionally, sections 771.117 and 771.118 include the requirement for
considering unusual circumstances, which is how the Agencies consider
extraordinary circumstances in accordance with the CEQ regulations.
These refer to circumstances in which a normally excluded action may
have a significant environmental effect and, therefore, requires an EA
or EIS. Examples of unusual circumstances include substantial
controversy on environmental grounds, significant impacts on properties
protected by section 4(f) of the Department of Transportation (DOT) Act
(23 U.S.C. 138; 49 U.S.C. 303) or section 106 of the National Historic
Preservation Act (NHPA), or inconsistencies with any Federal, State, or
local law, requirement, or administrative determination relating to the
environmental aspects of the action (23 CFR 771.117(b); 23 CFR
771.118(b)). This rulemaking does not change the procedural
requirements for the Agencies' approval of projects as CEs, either for
(c)-list CEs or for (d)-list CEs.
In order to qualify for either of the new CEs, the action must
comply with NEPA requirements relating to connected actions and
segmentation (see, e.g., 40 CFR 1508.25, and 23 CFR 771.111(f)). To
avoid impermissible segmentation, the action must have independent
utility, connect logical termini when applicable (i.e., linear
facilities), and not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements. In addition, even
though a CE may apply to a proposed action, thereby satisfying NEPA
requirements, all other requirements applicable to the activity under
other Federal and State statutes and regulations still apply, such as
the Clean Water Act (CWA), Clean Air Act, General Bridge Act of 1946,
section 4(f) of the DOT Act, NHPA, and the Endangered Species Act
(ESA). Some of these requirements may require the collection and
analysis of information, or coordination and consultation efforts that
are independent of the Agencies' NEPA CE determination. Also, some of
these requirements may involve actions by other Federal agencies (such
as approvals or issuance of permits) that could inform the Agency
determination regarding unusual circumstances and potentially trigger a
different level of NEPA review for those Federal agencies. These
requirements must be met before the action proceeds, regardless of the
availability of a CE for the
[[Page 2108]]
transportation project under 23 CFR part 771.
This final rule contains a description of the notice of proposed
rulemaking (NPRM) issued on February 28, 2013 (78 FR 13609), a summary
of public comments received on that NPRM and responses to those
comments, as well as a description of the final regulatory text at the
end of this rule. Those changes to the regulatory text not described in
the summary and response to comments are described in the Section-by-
Section Analysis. Following the Section-by-Section Analysis, this rule
explains the various rulemaking requirements that apply and how they
have been met. Finally, this rule provides the regulatory text.
Notice of Proposed Rulemaking
On February 28, 2013, the Agencies published an NPRM, in which the
Agencies proposed 2 new CEs to be listed in 23 CFR 771.117(c) and 23
CFR 771.118(c) as mandated by sections 1316 and 1317 of MAP-21. The
Agencies proposed CEs based on the statutory language provided under
sections 1316 and 1317, as well as clarifying language the Agencies
proposed to achieve the overall purposes of sections 1316 and 1317 or
avoid confusion in program administration. The NPRM sought comments on
how the Agencies proposed to interpret and implement the provisions.
The public comment period closed on April 29, 2013. The Agencies
considered all comments received when developing this final rule.
Summary of Comments and Responses
The Agencies received comments from a total of 40 entities, which
included 12 State DOTs and agencies, 4 transit agencies, 8 State/local
transportation entities, ten transportation interest groups, 3
national/regional environmental interest groups, one Federal agency,
and 2 individuals. The submitted comments have been organized by
section (1316 or 1317) and by theme or topic.
All of the 40 parties commenting on the NRPM generally supported
the proposed CEs contained in MAP-21 sections 1316 and 1317. Thirty-
five reviewers commented on the proposed CE language at sections
771.117(c)(22) and 771.118(c)(12) for projects within the ``operational
right-of-way.'' Thirty-two parties commented on the Agencies' proposed
CE language at sections 771.117(c)(23) and 771.118(c)(13) for projects
receiving limited Federal assistance. Eleven parties commented on the
need to review or document ``unusual circumstances'' for projects
seeking to use either of the proposed CEs. Nine of the commenting
parties supported the proposed rule as it was written in the NPRM. The
majority of commenters suggested additional clarifications on the use
of the CEs, including expanding or limiting their scope.
General
Five State DOTs, two transportation interest groups, three
national/regional environmental interest groups, and one Federal agency
submitted comments regarding the requirements for the CEs to address
unusual circumstances or to document the absence of such circumstances.
Seven commenters expressed the opinion that requiring additional
documentation is inconsistent with the statutory direction to include
these CEs in 23 CFR 771.117(c). Four commenters expressed the opinion
that requiring evaluation and documentation for the consideration of
unusual circumstances is appropriate and consistent with the statute.
One commenter recommended a clarification that documentation should be
retained by the applicant and not require further approval by the
Agencies. Another commenter indicated that the proposed rule restricted
the availability of the new CEs by establishing a ``no unusual
circumstances'' test, and that nowhere in MAP-21 did Congress
incorporate the ``no unusual circumstances'' test to the proposed CEs.
The MAP-21 sections 1316 and 1317 require that the new CEs be
consistent with 40 CFR 1508.4. Section 1508.4 requires Federal agencies
to take into account ``extraordinary circumstances in which a normally
excluded action may have a significant environmental effect.'' The
Agencies use the term ``unusual circumstances'' when defining
extraordinary circumstances. The Agencies addressed the need for
considering unusual circumstances in the NPRM preamble and noted that
actions falling under the new CEs are not exempt from meeting this
requirement. Consideration of unusual circumstances applies to all CEs
addressed in sections 771.117(c) and (d), and 771.118(c) and (d); the
Agencies are not creating a new standard for assessing actions through
this rulemaking. The potential for unusual circumstances for a project
does not automatically trigger an EA or EIS. The regulations require
the Agencies to conduct appropriate environmental studies to determine
if the CE classification is proper (23 CFR 771.117(b) and 771.118(b)).
This means that documentation is expected to demonstrate that there are
no unusual circumstances that warrant a higher level of NEPA review
even when the project does not require detailed documentation and
Agency review. The Agencies have not created a new ``no unusual
circumstances'' requirement because that requirement is long-standing.
Instead, in the NPRM, the Agencies re-emphasized the need to consider
unusual circumstances for all CEs as required by 40 CFR 1508.4 and the
Agencies' NEPA implementing procedures at 23 CFR part 771.
One commenter expressed appreciation for the reference to unusual
circumstances, but indicated that some of the criteria were not
necessarily adequate safeguards. The commenter indicated that reviews
under section 4(f) of the DOT Act and section 106 of the NHPA were
examples when thresholds in an environmental law would not determine
whether or not the impact of an action is significant for NEPA
purposes. Another commenter indicated that regulatory requirements
protecting wetlands, endangered species, and historic properties would
continue to apply and would ensure that unusual circumstances
applicable to these resources are identified and addressed.
The Agencies consider unusual circumstances in determining whether
an action that would normally be classified as a CE deserves another
level of NEPA review. Sections 771.117(b) and 771.118(b) provide non-
inclusive lists of examples for consideration. ``Significant impact on
properties protected by section 4(f) of the DOT Act and Section 106 of
the [NHPA]'' is included in the list of examples. In the Agencies'
experience these examples have been appropriate for identifying when an
action that would otherwise be classified as a CE merits an EA or EIS
for the consideration of environmental impacts. It is important to note
that unusual circumstances may require the consideration of factors,
impacts, or resources that do not fall under an established regulatory
framework (for example, substantial controversy on environmental
grounds). The Agencies do not believe that compliance with legal
requirements should be the only unusual circumstance considered for
projects.
One commenter indicated that language in the NPRM requiring actions
under the proposed CE to meet applicable requirements under other
Federal and State laws should be deleted from the final rule. Two
commenters expressed appreciation for the inclusion of the NPRM
preamble
[[Page 2109]]
reference that other laws may require collection and analysis of
information independent of the Agencies' NEPA determination, and the
discussion that these other laws may trigger a different level of NEPA
review for another Federal agency. The commenters indicated that this
was the intent of Congress because these provisions in MAP-21 did not
apply to or require rulemaking from any other Federal agency. One
commenter questioned whether it was possible for FHWA to implement
sections 1316 and 1317 without running afoul of environmental statutes
such as ESA and section 404 of the CWA. The commenter expressed that
accompanying complementary changes to those statutes should be made in
conjunction to the changes in part 771 to realize congressional intent
to streamline the project delivery process.
A determination that an action qualifies for a CE under the
Agencies' NEPA procedures is not an exemption from the environmental
laws that apply to that project. A project may not require the higher
level of NEPA analysis associated with an EA or EIS and still require
analysis under section 106 of the NHPA, section 404 of the CWA, section
7 of the ESA, or section 4(f) of the DOT Act. Applicants need to apply
and obtain applicable environmental permits and approvals even for
projects that qualify for CEs. The MAP-21 neither amended nor exempted
these laws, and they continue to apply.
Two commenters indicated that the two proposed CEs could cover
actions that already qualify for other CEs in part 771. One commenter
was having difficulty in identifying examples where a project would
qualify for the proposed CEs but not for an existing CE and requested
specific examples of projects where these CEs would apply that are not
currently addressed by other existing CE categories. One commenter
indicated that the NPRM failed to streamline the NEPA process as it had
hoped. Another commenter indicated that the NPRM limited the
availability of the CEs to such an extent that the relevant provisions
of MAP-21 appear meaningless or redundant with existing law. Two
commenters noted that the statutory language for the CEs should be read
in the context of the overarching policy of accelerating project
delivery. In this context, the commenters observed, the rule should
provide maximum flexibility to limit redundant and lengthy process
driven environmental reviews, and new flexibility to expand the
universe of projects that can be approved as CEs. One commenter stated
that expansion of the CE list would save time and costs for project
sponsors without compromising protection of the environment. One
commenter indicated that the new CE for operational right-of-way would
benefit the State by allowing some additional projects to be classified
as CEs. The commenter also provided numbers, but no specific details of
planned projects that would meet the Federal fund threshold that would
benefit from the CE. Another commenter noted that increased use of CEs
along with the streamlined approval process associated with simpler
Federal-aid projects is appropriate. The commenter indicated this
strategy will ultimately deliver public benefits from Federal-aid
transportation improvements more rapidly and also improve environmental
protection by enabling Federal resource agencies to focus their efforts
on more complicated projects that warrant significant environmental
review. One commenter indicated that MAP-21's goal of increasing the
use of CEs will help reduce delay in the current review and approval
process for transportation projects by clarifying the type of projects
that appropriately qualify for less intensive environmental reviews.
The Agencies agree there may be actions that qualify for the CEs
subject to this rule that could qualify for other CEs in part 771. The
regulation does not compel the use of the new CEs in these instances.
The Agencies and applicants can continue to rely on other available CEs
if their use is appropriate. The Agencies agree that the appropriate
use of CEs can result in time and cost savings.
Three commenters indicated that small and low-cost bicycle and
pedestrian projects (including sidewalks, cross walks, pathways, etc.)
within an existing built environment should not require detailed
documentation to qualify for a CE unless special circumstances exist.
The commenters recommended modifying the rule to encourage the use of a
CE where a project qualifies for two or more CEs and there are no
unusual circumstances.
Many bicycle and pedestrian projects qualify for CEs that do not
require detailed review by the Agencies (see e.g., section
771.117(c)(3) (construction of bicycle and pedestrian lanes, paths, and
facilities)). Applicability of a (c)-list CE, however, does not mean
that additional information is not needed from project applicants on
environmental considerations to demonstrate the applicability of a CE.
In some circumstances this documentation is needed to address unusual
circumstances or for meeting other environmental considerations and
requirements.
The Agencies are not modifying the rule to encourage the use of a
CE when a project qualifies for two or more CEs. The use of a CE when
it applies is encouraged regardless of whether the action would also
qualify for another CE. One CE should be used per FHWA or FTA action.
One commenter recommended adding the two new CEs as examples in the
(d)-list CE rather than adding them as (c)-list CEs. Another commenter
indicated that it is possible to have projects that meet the new CEs
but require a great deal of analysis to determine if there are any
significant impacts. The commenter suggested that for projects
qualifying for the new CEs, the NEPA documentation would be minor, but
the analysis would in many circumstances be the same as currently
required for projects in the (d)-list. Another commenter indicated that
these new CEs were different from the other CEs in part 771 because
they were not based on the scope of a project, but rather on the
project's location or level of Federal funding involved. The commenter
indicated that the proposed CEs appeared to be screening criteria for
projects where a specific scope is cited.
The statute requires the new CEs be located in section 771.117(c)
for FHWA actions and, in the Agencies interpretation, in section
771.118(c) for FTA actions (given the addition of this parallel section
after the enactment of MAP-21). The Agencies do not have the discretion
to place these new CEs in sections 771.117(d) and 771.118(d). The
Agencies recognize that these two statutorily mandated CEs are
different than other CEs in that they are unrelated to a project's
scope and its potential level of environmental impacts. Projects
receiving less than the Federal funding threshold established in the
statute may have the potential to cause significant impacts depending
on the context of what is proposed and its surrounding environment.
Similarly, the location of a project within an existing operational
right-of-way may have the potential to cause significant impacts
depending on the context of what is proposed and its surrounding
environment. The Agencies agree with the commenters that without
information on the scope of the project and its context (such as
timing, surrounding environment, context and intensity of impacts) it
would be difficult to determine if the project can be appropriately
classified as a CE or if another level of NEPA review is needed even if
the project meets the conditions of the CE. The Agencies believe that
the consideration of unusual circumstances
[[Page 2110]]
will identify when the project may need more documentation or another
level of NEPA review.
Three commenters encouraged DOT to disseminate clear guidance on
when a CE is appropriate--especially in cases where more than one CE
could apply. One commenter suggested the Agencies develop training and
guidance materials for State DOT and Federal staff to ensure that those
responsible for implementation can administer the CE process with
confidence and uniformity. One commenter recommended the development of
training, guidance, and frequently asked questions to ensure consistent
implementation of the CEs. The commenter recommended a training goal of
preparing State DOTs to make CE determinations in place of the
Agencies. One commenter urged the Agencies to actively monitor and
audit the use of these new CEs for the first few years in order to
evaluate whether additional guidance is necessary.
The Agencies interpreted the comments and their reference to DOT to
apply to the Agencies engaged in this rulemaking. The Agencies have
training institutes, the National Highway Institute and the National
Transit Institute, that conduct NEPA courses across the nation for
employees of the Agencies, State DOTs, transit agencies, consultants,
and other Federal, State, and local entities involved in transportation
NEPA processes. The Agencies also have guidance on their NEPA
processes, including CEs. The Agencies will provide information on the
availability of the new CEs to their environmental and field staff. The
FTA will update its Guidance for Implementation of FTA's Categorical
Exclusions (23 CFR 771.118) to reflect the new CEs and post it on FTA's
public Web site (www.fta.dot.gov), as well. The FHWA will provide any
additional guidance and assistance, as necessary. In addition, section
1323 of MAP-21 requires a report to Congress ``on the types and
justification for the additional categorical exclusions granted under
the authority provided under sections 1316 and 1317'' not later than
October 1, 2014. This report will provide information and help
determine if any additional guidance is needed.
One commenter suggested the Agencies consider further modifications
to create predictable expectations for the completion of CEs such as
guidelines, time limits, or deadlines for the completion of CEs.
The Agencies encourage timely review of environmental documents.
However, the Agencies recognize that individual projects and their
impacts are unique and subject to other requirements, which makes
establishing standard review times problematic. Projects approved
through the new CEs subject to this rule normally would not require
further NEPA approvals, though the Agencies expect documentation
exhibiting that the project fits the CE and that no unusual
circumstances are present. This may be achieved with a complete project
description. However, if the project has the potential to result in
impacts to resources protected under other environmental laws,
additional documentation and review time could be needed for that
project. For example, the consultation required under Section 106 of
the NHPA already has regulatory timeframes in 36 CFR part 800
associated with consultation between Federal agencies and the State
Historic Preservation Officer. The Agencies cannot shorten that
consultation process through review times mandated by their regulation.
One commenter stated that less restrictive rulemaking and
subsequent agency guidance would allow agencies to make CE
determinations and documentation to the project record earlier in the
process such as in the long range planning and multiyear project
programming. The commenter indicated that making this determination
earlier in the process without further and broad based staff engagement
would allow for a more reliable project delivery process, streamlined
project delivery, and ensure program continuity necessary to better
deliver transportation improvements.
Consideration of environmental impacts of a project during the
transportation planning process is encouraged by the Agencies (see 23
CFR part 771 and part 450; 23 U.S.C. 168; and the Agencies' Planning
and Environmental Linkages guidance at http://www.environment.fhwa.dot.gov/integ/). This consideration early in the
process can expedite environmental review, especially if actions are
planned in a way that allows them to meet the criteria for the CEs
listed in Sections 771.117 or 771.118. The NEPA review may be conducted
in parallel with the planning process. However, it is important to note
that the Agencies cannot make a determination that a project qualifies
for a CE until there is sufficient project information to determine the
likely project impacts and the project is contained in the applicable
transportation improvement program(s) under 23 U.S.C. 134-135. As a
result, a CE determination normally does not occur until the planning
process is finished.
One commenter stated the statute required that regulations for both
new CEs be promulgated within 150 days of July 6, 2012, the date MAP-21
was signed into law, and that this deadline was exceeded by several
months.
Sections 1316 and 1317 require the Secretary to designate the new
CEs ``not later than 180 days'' after MAP-21's enactment and to
promulgate regulations to carry out this requirement no later than 150
days from its enactment. Section 3 establishes that ``any reference to
date of enactment shall be deemed to be a reference to the effective
date'' of MAP-21, which is October 1, 2012. Sections 1316 and 1317 do
not automatically create new CEs; their designation requires
administrative action by the Agencies in the form of rulemaking. On
February 28, 2013, the Agencies, acting on behalf of the Secretary,
issued proposed regulations to ``designate'' the new CEs. The Agencies
issued the proposal 150 days from the effective date of MAP-21.
Section 771.117(c)(22) and 771.118(c)(12)
In the NPRM the Agencies proposed identical language for an
operational right-of-way CE in sections 771.117(c)(22) and
771.118(c)(12): ``Projects, as defined in 23 U.S.C. 101, that would
take place entirely within the existing operational right-of-way. The
operational right-of-way includes those portions of the right-of-way
that have been disturbed for an existing transportation facility or are
regularly maintained for transportation purposes. This area includes
the features associated with the physical footprint of the
transportation facility (including the roadway, bridges, interchanges,
culverts, drainage, fixed guideways, substations, etc.) and other areas
regularly maintained for transportation purposes such as clear zone,
traffic control signage, landscaping, any rest areas with direct access
to a controlled access highway, or park and ride lots with direct
access to an existing transit facility. It does not include portions of
the existing right-of-way that are not currently being used or not
regularly maintained for transportation purposes.''
The Agencies are adopting operational right-of-way CEs that are
slightly different from the proposed language. The final CE language is
identical for both FHWA and FTA and would cover ``[p]rojects, as
defined in 23 U.S.C. 101, that would take place entirely within the
existing operational right-of-way. Existing operational right-of-way
refers to right-of-way that has been disturbed for an existing
transportation facility or is maintained for a transportation purpose.
This area includes the features associated with the
[[Page 2111]]
physical footprint of the transportation facility (including the
roadway, bridges, interchanges, culverts, drainage, fixed guideways,
mitigation areas, etc.) and other areas maintained for transportation
purposes such as clear zone, traffic control signage, landscaping, any
rest areas with direct access to a controlled access highway, areas
maintained for safety and security of a transportation facility,
parking facilities with direct access to an existing transportation
facility, transit power substations, transit venting structures, and
transit maintenance facilities. Portions of the right-of-way that have
not been disturbed or that are not maintained for transportation
purposes are not in the existing operational right-of-way.''
The discussion of comments below describes the rationale for these
changes and differences.
Description of Operational Right-of-Way
Nine State DOTs, 3 regional transit agencies, 10 national
transportation interest groups, 7 State/local transportation groups, 3
national/regional environmental interest groups, 1 Federal agency, and
1 individual commented on the description of ``operational right-of-
way'' used in the NPRM. Eighteen commenters noted the NPRM's
description of operational right-of-way was inconsistent with that used
in MAP-21, and that any final language should be consistent with the
statute. Ten commenters specifically noted that describing operational
right-of-way as property that is ``needed,'' ``used,'' ``disturbed,''
and ``regularly maintained'' limits the universe of actions that would
otherwise qualify for the CE. Three commenters indicated that a CE for
projects within a right-of-way is appropriate because environmental
reviews have already occurred prior to the acquisition and additional
reviews would be duplicative. Three commenters noted that the NPRM's
use of terms such as ``disturbed'' in the description of right-of-way
could result in destruction of buffer zones or other areas that are not
regularly maintained. Three commenters stated that undisturbed and
unmaintained land along a right-of-way in current use may have been
obtained to keep the public away in order to make operations in the
right-of-way safer. The commenters indicated that projects in these
areas would qualify for the CE under the statutory language, but they
would not qualify under the regulatory language. One commenter
indicated that the use of the term ``disturbed'' would result in the
requirement of archeological investigations to determine if the area
had been disturbed. Another commenter suggested placing safeguards,
such as a documentation requirement, to confirm the timing of the
disturbance. One commenter objected to the exclusion of areas where the
transportation facility has fallen into disuse. One commenter requested
a clarification of whether operations and maintenance included trash
pick-up, weed control, snow storage, maintenance of cut slopes, and
rockfall mitigation. The commenter requested a clarification that the
determination that an area was ``previously disturbed'' could be based
on observation and did not require actual construction plans for
verification. The commenter also requested that separated bike and
pedestrian facilities be considered transportation facilities under the
rule. Eight commenters supported the NPRM's limitation of operational
right-of-way to existing transportation facilities. One commenter
provided a comment that section 1316 was intended to apply only to
projects where there is an existing right-of-way. The commenter opposed
an interpretation that would allow State DOT's to acquire right-of-way
for a future project and then use the CE for a project once it has been
identified for the corridor.
Due to the number of comments received regarding the NPRM's
proposed description of ``operational right-of-way'' and upon further
consideration, the Agencies have made various modifications. The
Agencies are not redefining ``operational right-of-way.'' The Agencies
are interpreting the phrase ``existing operational right-of-way'' by
providing that this ``refers to right-of-way that has been disturbed
for an existing transportation facility or is maintained for a
transportation purpose.'' The purpose for including the phrase
``disturbed for an existing transportation facility'' is to clarify
that a transportation facility must already exist at the time of the
review of the proposed project being considered for the CE. The
Agencies are using ``disturbed'' as defined in the New Oxford American
Dictionary ``having its normal pattern or function disrupted'' or
``interfere with the normal arrangement or function of'' (New Oxford
American Dictionary 497 (Elizabeth J. Jewell & Frank R. Abate ed., 1st
ed., Oxford Press 2001)). Evidence that the area was disturbed for a
transportation facility should be provided (such as photographs, visual
inspection), but this does not mean that archeology surveys or
construction plans for the original facility are required to
demonstrate that the area has been disturbed. As explained in the NPRM,
the term ``transportation facility'' is used in this CE to establish
that the existing facility or structure must be related to surface
transportation. The phrase is intended to be used in its plain meaning,
and is specifically not intended to be limited to the term
``transportation facilities'' as defined under 23 CFR 973.104, which is
applicable to the Indian Reservation Roads Program. The term in this CE
includes bicycle and pedestrian facilities.
The purpose for including the phrase ``maintained for a
transportation purpose'' is to include areas that may not be
traditionally considered a transportation facility but are maintained
to serve a transportation purpose for an existing transportation
facility such as clear zones and areas for safety and security of the
transportation facility. A transportation facility that has fallen in
disuse may require an assessment to determine if it is still being
maintained for a transportation purpose and, therefore, qualifies as an
operational right-of-way. The term ``maintained'' is used as defined in
the New Oxford American Dictionary ``cause or enable [a condition or
state of affairs] to continue'' (New Oxford American Dictionary at
1030). Applicants do not need to develop or engage in regular
maintenance actions within these areas to ensure they become part of
the existing operational right-of-way in the future. Natural methods of
managing roadside vegetation, clear zones, and areas necessary for
maintaining the safety and security of a transportation facility are
covered as requested by the commenters. The term, as used in the CE,
does not cover areas outside those areas necessary for existing
transportation facilities, such as uneconomic remnants or excess right-
of-way that is secured by a fence to prevent trespassing, or that are
acquired and held for a future transportation project. Lastly, the
Agencies included ``mitigation areas'' and ``areas maintained for
safety and security of a transportation facility'' in the list of
examples of features that comprise the existing operational right-of-
way. The concept of ``mitigation areas'' is included in the statutory
definition of ``operational right-of-way'' in section 1316 of MAP-21
and is being added to the final rule for consistency.
The Agencies found that section 1316's phrase ``existing
operational right-of-way'' was subject to various interpretations. One
interpretation would allow the use of the CE for the
[[Page 2112]]
construction of a project in an undeveloped area as long as real
property interests were previously acquired for its future
construction. This interpretation would ignore the use of the modifier
``existing'' before ``operational right-of-way'' in the statutory
language in section 1316. The Agencies interpret the addition of that
modifier to mean that proposed projects on property interests acquired
for a future project but simply held in perpetuity with no associated
transportation use cannot be covered by this CE. In addition, the
Agencies interpret the reference to a ``project'' in the statutory
definition of operational right-of-way to be different from the
proposed project being evaluated for the CE. The Agencies interpret the
statute to refer to a past transportation project when defining the
footprint of the operational right-of-way.
The Agencies concluded that restating the statute in the regulation
would not facilitate its implementation because it could allow an
unreasonable interpretation. The meaning of the phrase ``existing
operational right-of-way'' in the statute required the Agencies'
interpretation to ensure consistent and legally defensible use of the
CE. The Agencies interpret the addition of that modifier by Congress to
mean that property interests acquired and held for a future project are
not covered by this CE if there is no existing transportation facility
or the area is not maintained for a transportation purpose for an
existing transportation facility. This interpretation is supported by
the statute's use of the adjective ``existing'' to modify ``operational
right-of-way;'' the reference in the statutory definition to a project
that is different from the proposed project being considered for the
CE; and the particular examples used in the statute to describe the
operational right-of-way (such as roadway, bridges, interchanges,
landscaping, clear zones, etc.).
One commenter expressed concern that the proposed CE limited the
ability of the States to shift roadway alignments and straighten
dangerous curves.
The text of the CE would not affect a project sponsor's ability to
shift roadway alignments, straighten dangerous curves, or engage in
other eligible project activities for safety purposes. Rather, the CE
text only affects the level of NEPA review that would be required for
the eligible project. A number of safety projects, such as those
shifting roadway alignments and straightening curves, may be
accommodated within an existing operational right-of-way. Other CEs may
be available for those projects that extend beyond the existing
operational right-of-way limits (such as construction beyond the clear
zone area).
One commenter expressed concerns with a potential expansion of the
CE to allow its use for projects in buffer zones or undeveloped areas,
indicating that many historic parkways and other roads include wooded
areas that serve as crucial character-defining features of historic
roadways or an important mitigation role in shielding historic
districts and other neighborhoods from adjacent highways.
The Agencies note that the statutory definition of operational
right-of-way includes ``mitigation'' and ``clear zones'' areas.
Mitigation sites, such as wooded areas mitigating impacts of highways
on historic districts, noise walls, and buffer zones used for
transportation safety purposes are part of the operational right-of-
way. However, the Agencies and the applicants must consider unusual
circumstances to determine if the CE is the appropriate NEPA
classification. In addition, the applicability of a NEPA CE for a
transportation project does not exempt compliance with other
environmental requirements. In the case of a buffer area that is a
character defining feature of a historic property, the Agencies and the
applicants must comply with the requirements of section 106 of NHPA and
section 4(f) of the DOT Act. Consideration of unusual circumstances and
compliance with other environmental laws may trigger the need to
identify substitute mitigation or compensatory measures, as
appropriate. The Agencies note that the inclusion of ``mitigation'' as
a component of the operational right-of-way is in the statute and
regulation does not override, waive, or alter the mitigation
commitments that were established for the original transportation
facility. The use of mitigation areas for a new project may trigger
other actions to meet the original mitigation commitments.
Examples of Features or Components of an Operational Right-of-Way
Two commenters requested that the CE language explicitly apply to
transportation project areas that are on land acquired to mitigate a
project. One commenter expressed concerns with including land acquired
for mitigation as part of the operational right-of-way.
Mitigation areas are explicitly recognized in the statutory
definition of operational right-of-way. The Agencies are adding the
term ``mitigation areas'' to the list of example features associated
with the physical footprint of a transportation facility to be
consistent with the statutory definition of ``operational right-of-
way'' in section 1316 of MAP-21. The Agencies note that the inclusion
of ``mitigation'' as a component of the operational right-of-way in the
statute and regulation does not override, waive, or alter the
mitigation commitments that were established for the original
transportation facility. The use of mitigation areas for a new project
may trigger other actions to meet the original mitigation commitments.
One transit agency requested that the rule clarify whether
operational right-of-way needed to be contiguous with an existing road
or guideway.
Public transportation facilities often have non-contiguous features
that are part of a transportation system and are, therefore, part of
the operational right-of-way. One example mentioned in the proposed
rule is substations, which include transit power substations. This
example has been moved to the list of examples of other areas
maintained for transportation purposes in the final CE text. Other
examples in the public transportation context include transit
maintenance yards and transit venting structures. The Agencies have
added these examples to their CE text to clarify that these types of
structures are included in the footprint of the operational right-of-
way.
One commenter requested the addition of ``parking structures,''
(e.g., revise the example of ``park and ride lots'' to read ``park and
ride lots and structures'') to the list of examples of features that
comprise the operational right-of-way.
The Agencies consider ``park and ride lots'' to include both
surface lots and parking structures. The Agencies changed the term to
``parking facilities'' in order to provide clarity and maintain
consistency with other CEs found in part 771 and how those terms are
used by the Agencies.
One commenter expressed concerns with the inclusion of clear zones
as these could entail a large footprint. The commenter indicated that
clear zones can cover more than 35 feet on both sides of roadway.
Another commenter stated that operational right-of-way should not
include the full width of clear zones on either side of a road because
standards for clear zones have become much wider recently for safety
purposes. The commenter expressed that the standard should be limited
to the operation, construction, or mitigation of the original roadway
at the time it was purchased.
The Agencies found that the statute was clear in identifying clear
zones of an existing transportation facility as part
[[Page 2113]]
of the operational right-of-way. This means that construction of a
transportation facility within already existing clear zones would
qualify for the CE unless unusual circumstances exist that warrant an
EA or EIS. However, a project within the operational right-of-way that
requires the creation of new clear zones or extension of clear zone
areas beyond what already exists would not qualify for this CE.
One commenter recommended adding noise walls and fencing to the
list of examples of elements or components that are part of the
operational right-of-way. The commenter also requested the addition of
facilities within the right-of-way, but that are performed by other
government entities.
The Agencies did not intend to create an all-inclusive list of
components or features that comprise the operational right-of-way. Some
of the additions recommended by the commenters are captured by features
listed in the final regulatory text. For example, noise walls are a
form of mitigation, which is included in the text. Some fencing
structures may be necessary to maintain safety and security of an
existing transportation facility and would, therefore, be part of the
operational right-of-way. Other fencing structures may have been
established to preserve a property, but are not necessary to maintain
safety and security of an existing transportation facility. These
features would not be considered part of an existing operational right-
of-way. The identity of the entity that owns, maintains, or operates
the transportation feature (for example, bridge, road, mitigation,
clear zone, parking, etc.) is not a factor in determining whether the
feature is part of the operational right-of-way. The test is whether
the feature is in use or is maintained for a transportation purpose.
Real Property Interests
Five commenters noted that the statute refers to ``all real
property interests'' acquired for the construction, operation, or
mitigation of a project, and this includes property acquired for
corridor preservation and future transportation facility capacity
expansion. One commenter expressed an opinion that the term should
include prescriptive easements, leases, utility easements, and other
non-fee simple property interests. Another commenter opposed an
interpretation that would allow development of transportation projects
on real property interests that are less than fee simple interests,
such as utility easements and leases. One commenter proposed regulatory
language that the CE cover ``all real property interests acquired or
secured for the construction, operation, or mitigation of a project or
transportation corridor'' (emphasis added). Seven commenters objected
to the requests to expand the CE to cover actions occurring within
areas acquired, but not developed, for corridor preservation and
facility expansion. One commenter indicated that an expansion of the CE
to cover projects that would take place in property that has been
acquired but not developed could be combined with the ``significant
expansion'' of advanced acquisition allowed under section 1302 of MAP-
21 to create a strong incentive for aggressive land acquisition in an
effort to insulate potential future transportation projects from a
higher level of NEPA review (e.g. an EA or EIS). The commenter
expressed concerns with an interpretation of the CE that would allow
the development of previously acquired areas owned for decades but that
had not received final approval from FHWA under NEPA because of
litigation, new information, lack of funding, or other problems. One
commenter expressed that right-of-way purchased under section 1302 of
MAP-21 should not be included in the operational right-of-way
definition because such land has independent utility, rather than
utility for construction, operations, or mitigation purposes.
The Agencies do not interpret the statutory CE provision in a
manner that would allow construction of a project in an undeveloped
area simply because the real property interests were previously
acquired. The use of the modifier ``existing'' to describe the
operational right-of-way means that a transportation facility must
already exist at the location where the proposed project will be built.
Areas acquired and held as a transportation corridor for a future
project would not constitute an existing operational right-of-way. The
real property interest in question must be disturbed for an existing
transportation facility or maintained for a transportation purpose for
an existing transportation facility. Utility use and occupancy
agreements, and other real property interests that are not maintained
for existing transportation purposes would not be part of the existing
operational right-of-way.
One commenter noted that the proposed rule does not clearly address
whether section 1316 CEs apply to project-related work that requires
temporary construction easements rather than permanent acquisition.
The Agencies have concluded that the geographic reference in the CE
is for the final project. The final project must be entirely within the
operational right-of-way. The method to construct a project within the
operational right-of-way is accounted for in the CE since it is
presumed a CE accounts for all connected actions (see CEQ Final
Guidance on Establishing, Applying, and Revising Categorical Exclusions
under NEPA, 75 FR 75628, 75632, Dec. 6, 2010). This includes temporary
work taking place outside an operational right-of-way that is necessary
for the construction of a project within the operational right-of-way.
Therefore, this CE also covers temporary easements and temporary work
needed for the project even if this work is outside an operational
right-of-way. It is important to note that temporary easements and work
are subject to review for any unusual circumstances (such as work
taking place in endangered species habitat) that would trigger the need
for a higher level of NEPA review for the project. Furthermore, some
temporary work such as the construction of a detour road or bridge may
require a higher level of scrutiny to ensure adequate consideration of
unusual circumstances. Finally, the Agencies do not interpret the CE to
apply to the construction of a permanent project within an area
acquired as temporary easements for the construction of past projects.
Temporary easements end once the original project is completed and,
therefore, cannot be considered ``existing'' transportation facilities
when a new project is being considered.
One commenter indicated that the description of the operational
right-of-way in the proposal conflicted with the definition of ``right-
of-way'' in 23 CFR 710.105 and the requirements for managing real
property within the boundaries of a federally assisted facility. The
commenter's opinion was that using a definition that does not include
all real property within the right-of-way boundary of a project would
undermine the State's ability to acquire any real estate beyond the
proposed ``operational right-of-way'' boundaries and will impede the
State's ability to manage the entire right-of-way. The commenter
indicated that the proposed rule would undermine the State's defense
and necessity for acquisition outside the operational right-of-way
boundaries.
Section 710.105 defines the term ``right-of-way'' as ``real
property and rights therein used for the construction, operation, or
maintenance of a transportation or related facility funded under title
23 of the United States Code.'' ``Real property'' is defined in the
same section as ``land and any
[[Page 2114]]
improvements thereto, including but not limited to, fee interests,
easements, air or access rights, and the rights to control use,
leasehold, and leased fee interests.'' These terms are consistent with
the description of ``existing operational right-of-way'' provided in
the final rule. The Agencies note that the new CE does not overturn or
modify applicable State laws and requirements for the acquisition of
land. Those laws may require agencies to articulate and substantiate
the necessity for their acquisition.
One commenter requested a clarification on whether operational
right-of-way includes easements that are necessary for operations and
maintenance of existing transportation facilities. The commenter
provided an example of a situation where a Federal land management
agency provides an easement through the Federal land for the State's
construction, operation, and maintenance of a transportation facility.
The Agencies interpret existing operational right-of-way provision
to include easements provided by Federal land management agencies for
the construction, operation, and maintenance of transportation projects
that use Federal lands. The CE would apply to FHWA or FTA actions
contained within an easement area already granted by a Federal land
management agency. However, the Agencies note that the CE only applies
to FTA and FHWA actions. The decision to grant an easement or other
approvals in Federal lands may constitute major Federal actions for the
Federal land management agencies, which could require them to conduct
their own NEPA reviews for their actions.
Sections 771.117(c)(23) and 771.118(c)(13)
In the NPRM, the Agencies proposed identical language for a limited
Federal assistance CE in sections 771.117(c)(23) and 771.118(c)(13).
The proposed CE language was for ``[f]ederally funded projects that do
not require Administration actions other than funding, and: (i) That
receive less than $5,000,000 of Federal funds; or (ii) with a total
estimated cost of not more than $30,000,000 and Federal funds
comprising less than 15 percent of the total estimated project cost.''
The Agencies are adopting final CE language that is different from
the proposed language. The final CE language is identical for both FHWA
and FTA and would cover ``Federally-funded projects: (i) That receive
less than $5,000,000 of Federal funds; or (ii) with a total estimated
cost of not more than $30,000,000 and Federal funds comprising less
than 15 percent of the total estimated project cost.'' The discussion
of comments below describes the rationale for these changes and
differences.
Federally-Funded Projects and Administration Actions Other Than Funding
Twenty-five entities commented on the NPRM language limiting the
application of the CE to situations in which the only Agency action
involved is funding. Eighteen commenters expressed the position that
such a limitation to the scope of the CE is inconsistent with the
statutory language that provides that the CE is available to ``any''
project. One commenter indicated that the NPRM's preamble statement
that the CE would apply to projects that only involve Agency funding
decisions and actions was unclear. One commenter stated that funding
approval and approval of construction could be considered two separate
actions under the CEQ definition of ``major Federal action'' in 40 CFR
1508.18, and this would prevent the use of the CE for any construction
project. The commenter also indicated that other approvals would be
considered separately from funding, such as approvals of right-of-way
or design approvals. One commenter expressed his belief that the
congressional intent was to utilize this CE on Interstate projects even
if an Interstate Access Justification report was needed. Another
commenter stated that other Administration actions such as Interstate
access approvals or nationwide permits from the U.S. Army Corps of
Engineers do not have the potential on their own or collectively to
create significant environmental impacts. Six commenters supported the
exclusion of Administration actions other than funding such as
approvals for Interstate access. One commenter discussed two examples
of major highway projects that did not receive Federal-aid but still
required detailed NEPA reviews because of FHWA's involvement in the
approval of a request for an Interstate System access change under 23
U.S.C. 111(a). Another commenter recommended including Interstate
access in the regulatory text if it was going to be excluded from the
CE's applicability. The commenter also recommended including in the
preamble and the regulatory text the example of right-of-way disposals
as another type of action that does not require Federal aid but that
should not automatically qualify for a CE in this category.
The Agencies have revised the text of the CE in response to the
commenters, which recommended expanding the CE to all projects that
fall within the monetary thresholds established by Congress (that is,
no more than $5 million or no more than 15 percent in Federal funding
for a project with total estimated cost of no more than $30 million).
As noted in the NPRM, the action has to have some level of Federal
assistance in order to qualify for the CE. This is based on the
Agencies' understanding that the title of section 1317, the use of the
term ``funds'' in section 1317(1)(A)-(B), and the Conference Report
articulated a congressional intent to limit the CE to federally funded
projects. Projects not funded with Federal funds but requiring other
forms of approvals from the Agencies do not qualify for this CE. The
Agencies note that other CEs continue to be available for projects that
do not meet this condition. For example, a project not funded with
Federal funds that require an Interstate System access change approval
from FHWA may qualify for a CE under FHWA's (d)-list CEs (for example
section 771.117(d)(7) (approvals for changes in access control)).
The proposal set forth in the NPRM would have prevented the use of
the CE for projects that receive Federal-aid within the established
thresholds but that required other Agency approvals (such as approvals
for changes in access control). However, the commenters highlighted
ambiguities in the proposed rule that would have led to confusion in
its application. For example, one commenter indicated that approval of
construction could be interpreted to be a separate approval from the
decision to fund the project and this would render the CE meaningless.
In addition, interpreting the statutory provision in this manner would
be inconsistent with the principle that the scope of a CE must include
all connected actions (see CEQ Final Guidance on Establishing,
Applying, and Revising Categorical Exclusions under NEPA, 75 FR 75628,
75632, Dec. 6, 2010). The language in section 1317 does not exclude a
subgroup of projects that require other Agency approvals. A project
receiving Federal funds within the statutory thresholds and that also
requires other Agency approvals qualifies for the CE under the
statutory provision in section 1317. As a result, the Agencies are
deleting the phrase ``that do not require Administration actions other
than funding'' in the final rule.
The Agencies understand that Federal funding alone is not a
reliable indicator of the significance of the environmental
[[Page 2115]]
impacts associated with a project. However, the Agencies find that the
statute clearly conveys the congressional direction that FHWA or FTA
projects receiving Federal funding below the thresholds should be
presumed to not trigger EA and EIS requirements. This presumption
applies unless the project involves unusual circumstances that make its
application improper. The uniqueness of this CE (that is, a CE
determination based on dollar thresholds instead of a particular scope
or description of the action) makes the consideration of unusual
circumstances particularly important to ensure that projects that
receive Federal funds below the established thresholds are not
processed as CEs when the unusual circumstances warrant another level
of NEPA review.
Funding Criterion
Nine entities commented specifically on the second statutory
funding criterion for projects with a total estimated to cost of not
more than $30,000,000 and Federal funds of less than 15 percent of the
total estimated project cost. Four commenters recommended the deletion
of this criterion to avoid confusion since projects meeting this
threshold would also meet the threshold in the first criterion for
projects receiving less than $5,000,000 in Federal funds. One commenter
suggested that Congress intended to apply the CE to projects that cost
more than $30,000,000 and receive Federal funds of less than 15 percent
($4,500,000) of the project's estimated cost. Four commenters submitted
general comments on section 1317 indicating that the statutory language
for this CE was clear and did not need revisions.
The Agencies will retain the two criteria. Although $4,500,000 is
15 percent of the total estimated project cost for a project with total
estimated project cost of $30,000,000, and this is below the $5,000,000
threshold in the first criterion, the Agencies decided to retain the
provision because it is explicitly stated in the law.
Re-Evaluation
Four commenters commented on the Agencies' statement in the NPRM
that re-evaluations could be triggered under 23 CFR 771.129 if, after
the limited Federal assistance CE was used, there was a change to the
project that raised the level of Federal funding beyond the funding
thresholds, and there was still an FHWA and/or FTA action to be taken.
Two of those commenters indicated that the final rule should clarify
that when the State relies upon the second criterion, the only changes
that could trigger re-evaluation would be an increase in the percentage
of Federal funds above the 15 percent threshold or a change in the
project's scope to include activities not included by the original CE.
Another of the commenters indicated that requiring re-evaluation for
changes in the funding thresholds appeared to be contrary to the intent
of MAP-21 that specifies ``estimated'' project costs. The fourth
commenter stated that the Agencies' statement on re-evaluation was in
direct conflict with section 1317 of MAP-21 because it states that the
CE applies to the estimated project cost and not final project costs.
Re-evaluation would be triggered if there is an increase in the
amount of Federal funds for the project beyond the established
thresholds, and there is still an FHWA and/or FTA action that needs to
be taken when these changes occur. The need for re-evaluation is not
unique to this CE. This CE, however, highlights the importance of
obtaining accurate cost estimates and the need for careful deliberation
before applying this CE to a project that is close to the established
thresholds. The applicant and the Agency(s) would consult prior to any
request for further approvals or grants (including approval of project
plans, specifications, or estimates) to ascertain whether the CE
designation remains valid. Even when a change occurs, the project may
continue to qualify for a CE under other CEs designated in part 771, if
it meets the requirements of the CE. An interpretation that the only
basis for determining the applicability of the CE should be the
applicant's estimate without opportunity to re-evaluate would not
promote good project cost estimates and would be inconsistent with the
Agencies' re-evaluation process that applies to all NEPA reviews.
Inflation and Small Cost Increases
One commenter indicated that the funding thresholds should be
indexed for inflation. The commenter stated that the funding thresholds
will become outdated with inflation, and Congress likely did not intend
for the value of the thresholds to be eroded over time. Another
commenter recommended building some flexibility into the process to
accommodate small cost increases or changes in the Federal
participation rate. The commenter stated that planning level costs
estimates and anticipated Federal participation rates available at the
project development stage where NEPA review occurs are likely to change
as the project advances to construction.
The Agencies find that the statutory language regarding the funding
thresholds is clear. Therefore, the Agencies do not provide for
inflation considerations or for small cost increases beyond the
thresholds provided, and do not make the suggested changes.
Independent Utility, Logical Termini, and Restriction of Consideration
Alternatives
Three commenters supported the requirement that the projects
demonstrate independent utility, connect logical termini, and not
restrict consideration of alternatives, but recommended a clarification
that projects can qualify for the CE even if they are built in
segments. They indicated that pedestrian, bicycle, and shared use
pathway projects are often built in phases even though the overall
project meets the funding threshold. One commenter stated that the
limited Federal assistance CE, by its very nature, creates an incentive
to divide transportation projects into smaller components if doing so
would enable the project to come within the scope of the CE. The
commenter recommended documentation demonstrating that the project has
independent utility, connects logical termini, and does not restrict
consideration of alternatives for other reasonably foreseeable
transportation improvements.
The Agencies agree with the commenters. A CE must capture the
entire proposed action, which includes all connected actions (see CEQ
``Final Guidance on Establishing, Applying, and Revising Categorical
Exclusions under NEPA,'' 75 FR 75628, 75632, Dec. 6, 2010). The
requirement that the projects demonstrate independent utility, connect
logical termini, and not restrict consideration of alternatives
reflects the Agencies' test for determining the full scope of a project
for NEPA review purposes and avoiding impermissible segmentation. This
does not prohibit the construction of a transportation facility in
phases so long as the full project scope receives NEPA review before
the first phase begins construction. Typically, the documentation for
the project will be sufficient to demonstrate that the proposal has
independent utility, connects logical termini (for linear projects),
and does not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements. In some instances,
additional information may be needed to establish that these criteria
will be met.
[[Page 2116]]
Use of CE by Multiple Federal Agencies
One commenter recommended the use of the CE for multiple Agency
funding decisions and actions. The commenter mentioned the Partnership
for Sustainable Communities among the U.S. Department of Housing and
Urban Development, U.S. Environmental Protection Agency, and DOT as an
initiative that allows for multiagency collaboration that should extend
to this CE's use. Two commenters indicated that the proposed CEs appear
to apply to all types of Federal funds used for transportation facility
projects and should not be limited to only FHWA's rules.
Although the CE takes into account to all sources of Federal
funding for a transportation project, the statute is very specific in
limiting the CE to the FHWA and FTA joint NEPA procedures. A CE
determination for FHWA or FTA does not satisfy the NEPA procedural
requirements for other Federal agencies that also have actions for the
same project (such as permits or other approvals). The CE is only
available for FHWA and FTA actions.
Section-by-Section Analysis
The Agencies provide guidance throughout the Summary and Response
to Comments section above on their interpretation of the CEs as
modified in response to public comment. A minor additional change is
made to remove section 771.118(d)(5) due to the availability of the new
section 771.118(c)(12). The changes are described in this section.
Section 771.117
The FHWA is adding paragraph (c)(22) to this section for
``[p]rojects, as defined in 23 U.S.C. 101, that would take place
entirely within the existing operational right-of-way. Existing
operational right-of-way refers to right-of-way that has been disturbed
for an existing transportation facility or is maintained for a
transportation purpose. This area includes the features associated with
the physical footprint of the transportation facility (including the
roadway, bridges, interchanges, culverts, drainage, fixed guideways,
mitigation areas, etc.) and other areas maintained for transportation
purposes such as clear zone, traffic control signage, landscaping, any
rest areas with direct access to a controlled access highway, areas
maintained for safety and security of a facility, parking facilities
with direct access to an existing transportation facility, transit
power substations, transit venting structures, and transit maintenance
facilities. Portions of the right-of-way that have not been disturbed
or that are not maintained for transportation purposes are not in the
existing operational right-of-way.''
The FHWA is also adding paragraph (c)(23) to this section for
``Federally funded projects (i) that receive less than $5,000,000 of
Federal funds; or (ii) with a total estimated cost of not more than
$30,000,000 and Federal funds comprising less than 15 percent of the
total estimated project cost.''
Section 771.118
FTA is adding paragraph (c)(12) to this section with the same text
as the new paragraph (22) in section 771.117(c). FTA is also adding
paragraph (c)(13) to this section with the same text as the new
paragraph (23) in section 771.117(c).
FTA reviewed its existing list of CEs at section 771.118, and
determined that paragraph (d)(5) (``[c]onstruction of bicycle
facilities within existing transportation right-of-way'') is subsumed
by paragraph (c)(12). Therefore, FTA is removing paragraph
771.118(d)(5) to reduce CE application confusion, and is reserving it
for a future section 771.118(d) example.
Statutory/Legal Authority for This Rulemaking
The Agencies derive explicit authority for this rulemaking action
from 49 U.S.C. 322, 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.'' That authority is delegated to
the Agencies in 49 CFR 1.81(a)(3), which provides that the authority to
prescribe regulations contained in 49 U.S.C. 322 is delegated to each
Administrator ``with respect to statutory provisions for which
authority is delegated by other sections in [49 CFR Part 1].'' Included
in 49 CFR Part 1, specifically 49 CFR 1.81(a)(5), is the delegation of
authority with respect to NEPA, the statute implemented by this final
rule. 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 insure
full compliance with the purposes and provisions of NEPA.
Rulemaking Analyses and Notices
The Agencies considered all comments received before the close of
business on the comment closing date indicated above, and the comments
are available for examination in the docket at Regulations.gov. The
Agencies also considered comments received after the comment closing
date and filed in the docket prior to this final rule.
Executive Orders 12866 and 13563 (Regulatory Planning and Review) 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 determined that this action is not a significant regulatory
action under section 3(f) of Executive Order 12866 nor is it
significant within the meaning of DOT regulatory policies and
procedures (44 FR 11032). Executive Order 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. It is anticipated
that the economic impact of this rulemaking are minimal. The changes to
this rule are requirements mandated by MAP-21 to increase efficiencies
in environmental review by making changes in the Agencies'
environmental review procedures.
The activities in this final rule are inherently limited in their
potential to cause significant environmental impacts because the use of
the CEs is subject to the unusual circumstances provision in 23 CFR
771.117(b) and 23 CFR 771.118(b), respectively. These provisions
require appropriate environmental studies, and may result in the
reclassification of the NEPA evaluation of the project to an EA or EIS,
if the Agencies determine that the proposal involves potentially
significant or significant environmental impacts. These changes will
not adversely affect, in any material way, any sector of the economy.
In addition, these changes will not interfere with any action taken or
planned by another agency and will not materially alter the budgetary
impact of any entitlements, grants, user fees, or loan programs.
Consequently, a full regulatory evaluation is not required.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), the Agencies must consider whether this final rule would have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not for-profit
organizations that are
[[Page 2117]]
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations under 50,000. The
Agencies do not believe this final rule will have a significant
economic impact on entities of any size, and the Agencies received no
comment in response to our request for any such information in the
NPRM. These revisions could expedite environmental review and thus
would be less than any current impact on small business entities. Thus,
the Agencies determine that this final rule will not have a significant
economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This final rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This final rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$148.8 million or more in any one year (2 U.S.C. 1532).
Executive Order 13132 (Federalism Assessment)
Executive Order 13132 requires agencies to assure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The Agencies have analyzed this final
rule in accordance with the principles and criteria contained in
Executive Order 13132 and determined that this action will not have a
substantial direct effect on the States, the relationship between the
Federal Government and the States, or the distribution of power and
responsibilities among the various levels of government, and,
therefore, does not have federalism implications. The Agencies have
also determined that this action will not preempt any State law or
State regulation or affect the States' ability to discharge traditional
State governmental functions. The NPRM invited 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. No State or local governments provided comments on this
issue.
Executive Order 13175 (Tribal Consultation)
Executive Order 13175 requires agencies to assure meaningful and
timely input from Indian tribal government representatives in the
development of rules that ``significantly or uniquely affect'' Indian
communities and that impose ``substantial and direct compliance costs''
on such communities. The Agencies have analyzed this action under
Executive Order 13175, dated November 6, 2000, and believe that it will
not have substantial direct effects on one or more Indian tribes; will
not impose substantial direct compliance costs on Indian tribal
governments; and will not preempt tribal law. Therefore, a tribal
summary impact statement is not required. The Agencies received no
comment in response to our request in the NPRM for comments from Indian
tribal governments on the effect that adoption of specific proposals
might have on Indian communities.
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,'' dated May 18, 2001. The Agencies
determined that this action is not a significant energy action under
that order 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 regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities apply
to these programs and were carried out in the development of this rule.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), no Federal agency shall conduct or sponsor a collection of
information unless in advance the agency has obtained approval by and a
control number from the Office of Management and Budget (OMB), and no
person is required to respond to a collection of information unless it
displays a valid OMB control number.. The Agencies determined that the
final rule does not contain collection of information requirements for
the purposes of the PRA.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 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, 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, both Agencies have issued additional documents
relating to administration of the Executive Order and the DOT Order. On
June 14, 2012, the FHWA issued an update to its EJ order, FHWA Order
6640.23A, ``FHWA Actions to Address Environmental Justice in Minority
Populations and Low Income Populations'' (available online at
www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). 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
www.fta.dot.gov/legislation_law/12349_14740.html).
The Agencies evaluated the CE under the Executive Order, the DOT
Order, the FHWA Order, and the FTA Circular. The Agencies determined
that designation of the new CEs for actions within the operational
right-of-way and for actions with limited Federal assistance through
this rulemaking will not cause disproportionately high and adverse
effects on minority or low income populations. The rule simply adds a
provision to the Agencies' NEPA procedures under which they may decide
in the future that a project or program does not require the
preparation of an EA or EIS. The rule itself has no potential for
effects until it is applied to a proposed action requiring approval by
the FHWA or FTA.
At the time the Agencies apply a CE established by this rulemaking,
the
[[Page 2118]]
Agencies have an independent obligation to conduct an evaluation of the
proposed action under the applicable EJ orders and guidance. The
adoption of this rule does not affect the scope or outcome of that EJ
evaluation. Nor does the new rule affect the ability of affected
populations to raise any concerns about potential EJ effects at the
time the Agencies consider applying a new CE. Indeed, outreach to
ensure the effective involvement of minority and low income populations
in the environmental review process is a core aspect of the EJ orders
and guidance. For these reasons, the Agencies also determined no
further EJ analysis is needed and no mitigation is required in
connection with the designation of the CEs for actions within the
operational right-of-way and for actions with limited Federal
assistance.
Executive Order 13045 (Protection of Children)
The Agencies analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The Agencies certify that this action is not economically
significant rule and will not cause an environmental risk to health or
safety that may disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
The Agencies analyzed this final rule under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights'' and determined the rule will not affect a taking of
private property or otherwise have taking implications under Executive
Order 12630.
National Environmental Policy Act
This action will not have any effect on the quality of the
environment under NEPA. 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 CEs are one part of those agency
procedures, and therefore establishing CEs 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. The
determination that establishing CEs does not require NEPA analysis and
documentation was upheld in Heartwood, Inc. v. U.S. Forest Service, 73
F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55
(7th Cir. 2000).
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN 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 protection, Grant programs--transportation, Highways
and roads, Historic preservation, Public lands, Recreation areas,
Reporting and recordkeeping requirements.
49 CFR Part 622
Environmental impact statements, Grant programs--transportation,
Public transit, Recreation areas, Reporting and recordkeeping
requirements.
In consideration of the foregoing, the Agencies are amending 23 CFR
part 771 and 49 CFR part 622 as follows:
Title 23--Highways
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
0
1. The authority citation for part 771 is revised 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 and 5323(q); 40 CFR
Parts 1500-1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119
Stat. 1144, sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405,
sections 1315, 1316 and 1317.
Sec. 771.117 [Amended]
0
2. Amend Sec. 771.117 by adding paragraphs (c)(22) and (c)(23) to read
as follows:
Sec. 771.117 FHWA categorical exclusions.
* * * * *
(c) * * *
(22) Projects, as defined in 23 U.S.C. 101, that would take place
entirely within the existing operational right-of-way. Existing
operational right-of-way refers to right-of-way that has been disturbed
for an existing transportation facility or is maintained for a
transportation purpose. This area includes the features associated with
the physical footprint of the transportation facility (including the
roadway, bridges, interchanges, culverts, drainage, fixed guideways,
mitigation areas, etc.) and other areas maintained for transportation
purposes such as clear zone, traffic control signage, landscaping, any
rest areas with direct access to a controlled access highway, areas
maintained for safety and security of a transportation facility,
parking facilities with direct access to an existing transportation
facility, transit power substations, transit venting structures, and
transit maintenance facilities. Portions of the right-of-way that have
not been disturbed or that are not maintained for transportation
purposes are not in the existing operational right-of-way.
(23) Federally-funded projects:
(i) That receive less than $5,000,000 of Federal funds; or
(ii) With a total estimated cost of not more than $30,000,000 and
Federal funds comprising less than 15 percent of the total estimated
project cost.
* * * * *
Sec. 771.118 [Amended]
0
3. Amend Sec. 771.118 by adding paragraphs (c)(12) and (c)(13) and
removing and reserving paragraph (d)(5) to read as follows:
Sec. 771.118 FTA categorical exclusions.
* * * * *
(c) * * *
(12) Projects, as defined in 23 U.S.C. 101, that would take place
entirely within the existing operational right-of-way. Existing
operational right-of-way refers to right-of-way that has been disturbed
for an existing transportation facility or is maintained for a
transportation purpose. This area includes the features associated with
the physical footprint of the transportation facility (including the
roadway, bridges, interchanges, culverts, drainage, fixed guideways,
mitigation areas, etc.) and other areas maintained for transportation
purposes such as clear zone, traffic control signage, landscaping, any
rest areas with direct access to a controlled access highway, areas
maintained for safety and security of a transportation facility,
parking facilities with direct access to an
[[Page 2119]]
existing transportation facility, transit power substations, transit
venting structures, and transit maintenance facilities. Portions of the
right-of-way that have not been disturbed or that are not maintained
for transportation purposes are not in the existing operational right-
of-way.
(13) Federally-funded projects:
(i) That receive less than $5,000,000 of Federal funds; or
(ii) With a total estimated cost of not more than $30,000,000 and
Federal funds comprising less than 15 percent of the total estimated
project cost.
* * * * *
(d) * * *
(5) [Reserved]
* * * * *
Title 49--Transportation
PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
0
4. The authority citation for part 622 is revised to read as follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q);
23 U.S.C. 139 and 326; Pub. L. 109-59, 119 Stat. 1144, sections 6002
and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81; and Pub. L. 112-141,
126 Stat. 405, sections 1315, 1316 and 1317.
Gregory G. Nadeau,
Deputy Administrator, Federal Highway Administration.
Peter Rogoff,
Administrator, Federal Transit Administration.
[FR Doc. 2014-00370 Filed 1-10-14; 8:45 am]
BILLING CODE 4910-22-P