
[Federal Register Volume 82, Number 188 (Friday, September 29, 2017)]
[Proposed Rules]
[Pages 45530-45547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20565]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 771 and 774

Federal Railroad Administration

49 CFR Part 264

Federal Transit Administration

49 CFR Part 622

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


Environmental Impacts and Related Procedures

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

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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

[[Page 45531]]


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

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

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

SUPPLEMENTARY INFORMATION: 

Background

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

General Discussion of the Proposals

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

SNPRM Rationale

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

Applicability of 23 CFR Part 771 to FRA Actions

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

[[Page 45532]]

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

Section-by-Section Discussion of the Proposals

NEPA Regulation Changes (Part 771)

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

[[Page 45533]]

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

[[Page 45534]]

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

[[Page 45535]]

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

[[Page 45536]]

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

[[Page 45537]]

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

[[Page 45538]]

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

Section 4(f) Regulation Changes (Part 774)

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

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

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

[[Page 45539]]

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

49 CFR Part 264--Environmental Impact and Related Procedures

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

Rulemaking Analyses and Notices

Statutory/Legal Authority for This Rulemaking

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

Rulemaking Analyses and Notices

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

[[Page 45540]]

relevant information in the docket as it becomes available after the 
comment period closing date. Interested persons should continue to 
examine the docket for new material. The Agencies may publish a final 
rule at any time after close of the comment period.

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), Executive Order 
13771 (Reducing Regulation and Controlling Regulatory Costs), and DOT 
Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). The 
Agencies have determined preliminarily that this action would not be a 
significant regulatory action under section 3(f) of Executive Order 
12866 and would not be significant within the meaning of U.S. 
Department of Transportation regulatory policies and procedures (44 FR 
11032). Executive Order 13563 emphasizes the importance of quantifying 
both costs and benefits, reducing costs, harmonizing rules, and 
promoting flexibility. The Agencies anticipate that the economic impact 
of this rulemaking would be minimal. The Agencies do not have specific 
data to assess the monetary value of the benefits from the proposed 
changes because such data does not exist and would be difficult to 
develop. This proposed rule is not expected to be an Executive Order 
13771 regulatory action because this proposed rule is not significant 
under Executive Order 12866.
    This SNPRM proposes to modify 23 CFR parts 771 and 774 in order to 
be consistent with changes introduced by MAP-21 and the FAST Act, make 
the regulation more consistent with the FHWA and FTA practices, and add 
FRA to parts 771 and 774. These proposed changes would not adversely 
affect, in any material way, any sector of the economy. In addition, 
these changes would not interfere with any action taken or planned by 
another agency and would not materially alter the budgetary impact of 
any entitlements, grants, user fees, or loan programs. Consequently, a 
full regulatory evaluation is not required. The Agencies anticipate 
that the changes in this SNPRM would enable projects to move more 
expeditiously through the Federal review process and would reduce the 
preparation of extraneous environmental documentation and analysis not 
needed for compliance with NEPA or Section 4(f) while still ensuring 
that projects are built in an environmentally responsible manner and 
consistent with Federal law. The Agencies request comment, including 
data and information on the experiences of project sponsors, on the 
likely effects of the changes being proposed.

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

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

Executive Order 13132 (Federalism Assessment)

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

Executive Order 13175 (Tribal Consultation)

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

Executive Order 13211 (Energy Effects)

    The Agencies have analyzed this action under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agencies have determined that this action is 
not a significant energy action under Executive Order 13211 because it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects under Executive Order 13211 is not required.

Executive Order 12372 (Intergovernmental Review)

    The DOT's regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities (49 
CFR part 17) apply to this program. Accordingly, the Agencies solicit 
comments on this issue.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or require through regulations. The Agencies have determined 
that this proposal does not contain collection of information 
requirements for the purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice

[[Page 45541]]

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

Executive Order 12898 (Environmental Justice)

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

Executive Order 13045 (Protection of Children)

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

Executive Order 12630 (Taking of Private Property)

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

National Environmental Policy Act

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

Regulation Identifier Number

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

List of Subjects

23 CFR Part 771

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

23 CFR Part 774

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

49 CFR Part 264

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

49 CFR Part 622

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


[[Page 45542]]


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

    In consideration of the foregoing, the Agencies propose to amend 
title 23, Code of Federal Regulations parts 771 and 774, and title 49, 
Code of Federal Regulations parts 264 and 622, as follows:

Title 23--Highways

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

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

    Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138, 
139, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR parts 1500 
through 1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119 Stat. 
1144, Sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, 
Sections 1315, 1316, 1317, 1318, and 1319; and Public Law 114-94, 
129 Stat. 1312, Sections 1314 and 1432.

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


Sec.  771.101  Purpose.

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


Sec.  771.105  Policy.

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

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

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


Sec.  771.107  Definitions.

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


Sec.  771.109  Applicability and responsibilities.

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

[[Page 45543]]

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


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

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


Sec.  771.113  Timing of Administration activities.

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

[[Page 45544]]

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


Sec.  771.115  Classes of actions.

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


Sec.  771.116  FRA categorical exclusions.

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

[[Page 45545]]

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


Sec.  771.117  FHWA categorical exclusions.

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


Sec.  771.118  FTA categorical exclusions.

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


Sec.  771.119  Environmental assessments.

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

[[Page 45546]]

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


Sec.  771.123  Draft environmental impact statements.

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


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

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


Sec.  771.125  Final environmental impact statements.

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


Sec.  771.129  Re-evaluations.

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


Sec.  771.131  Emergency action procedures.

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


Sec.  771.139  Limitations on claims.

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

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

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

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

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


Sec.  774.3  Section 4(f) approvals.

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

[[Page 45547]]

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


Sec.  774.13  Exceptions.

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


Sec.  774.15  Constructive use determinations.

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


Sec.  774.17  Definitions.

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

Title 49--Transportation

PART 264--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

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

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

0
25. Revise the heading for part 264 to read as set forth above.
0
26. Revise Sec.  264.101 to read as follows:


Sec.  264.101  Procedures for complying with the surface transportation 
project delivery program application requirements and termination.

    The procedures for complying with the National Environmental Policy 
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes, 
regulations, and orders are set forth in part 771 of title 23 of the 
Code of Federal Regulations. The procedures for complying with 49 
U.S.C. 303, commonly known as ``Section 4(f),'' are set forth in part 
774 of title 23 of the Code of Federal Regulations. The procedures for 
complying with the surface transportation project delivery program 
application requirements and termination are set forth in part 773 of 
title 23 of the Code of Federal Regulations.

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

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

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

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


