Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites, 13368-13401 [E8-4596]

Agencies

• Federal Highway Administration
• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 49 (Wednesday, March 12, 2008)]
[Rules and Regulations]
[Pages 13368-13401]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-4596]



[[Page 13367]]

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Part III





Department of Transportation





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Federal Highway Administration



Federal Transit Administration



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23 CFR Parts 771 and 774

49 CFR Part 622



Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic 
Sites; Final Rule

Federal Register / Vol. 73, No. 49 / Wednesday, March 12, 2008 / 
Rules and Regulations

[[Page 13368]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Federal Transit Administration

23 CFR Parts 771 and 774

49 CFR Part 622

[Docket No. FHWA-2005-22884]
RIN 2125-AF14 and 2132-AA83


Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and 
Historic Sites

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

ACTION: Final rule.

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SUMMARY: This final rule modifies the procedures for granting Section 
4(f) approvals in several ways. First, the final rule clarifies the 
factors to be considered and the standards to be applied when 
determining if an alternative for avoiding the use of Section 4(f) 
property is feasible and prudent. Second, the final rule clarifies the 
factors to be considered when selecting a project alternative in 
situations where all alternatives would use some Section 4(f) property. 
Third, the final rule establishes procedures for determining that the 
use of a Section 4(f) property has a de minimis impact on the property. 
Fourth, the final rule updates the regulation to recognize statutory 
and common-sense exceptions for uses that advance Section 4(f)'s 
preservation purpose, as well as the option of applying a programmatic 
Section 4(f) evaluation. Fifth, the final rule moves the Section 4(f) 
regulation out of the agencies' National Environmental Policy Act 
regulation, ``Environmental Impact and Related Procedures,'' into its 
own part with a reorganized structure that is easier to use.

DATES: Effective Date: April 11, 2008.

FOR FURTHER INFORMATION CONTACT: For FHWA: Diane Mobley, Office of the 
Chief Counsel, 202-366-1366, or Lamar Smith, Office of Project 
Development and Environmental Review, 202-366-8994. For FTA: Joseph 
Ossi, Office of Planning and Environment, 202-366-1613, or Christopher 
VanWyk, Office of Chief Counsel, 202-366-1733. Both agencies are 
located at 1200 New Jersey Avenue, SE., Washington, DC 20590. Office 
hours are from 7:45 a.m. to 4:15 p.m., e.t., for FHWA, and 9 a.m. to 
5:30 p.m., e.t., for FTA, Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This document, the notice of proposed rulemaking (NPRM) of July 27, 
2006, at 71 FR 42611, and all comments received by the U.S. DOT Docket 
Facility may be viewed through the Federal Docket Management System 
(FDMS) at https://www.regulations.gov. The FDMS is available 24 hours 
each day, 365 days each year. Electronic submission and retrieval help 
and guidelines are available under the help section of this Web site.
    An electronic copy of this document may be downloaded by using a 
computer, modem, and suitable communications software, from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may reach the Office of the Federal Register's 
home page at: https://www.archives.gov and the Government Printing 
Office's Web site at: https://www.access.gpo.gov/nara.

Statutory Authority

    The principal statutory authority for this rulemaking action is 
Section 6009 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 
109-59, Aug. 10, 2005, 118 Stat. 1144).

Background

    Section 4(f) of the Department of Transportation Act of 1966 (Pub. 
L. 89-670, 80 Stat. 931) \1\ prohibits the use of land of significant 
publicly owned public parks, recreation areas, wildlife and waterfowl 
refuges, and land of a historic site for transportation projects unless 
the Administration (as defined in section 774.17 of this part) \2\ 
determines that there is no feasible and prudent avoidance alternative 
and that all possible planning to minimize harm has occurred. Early 
case law strictly interpreted Section 4(f), beginning with the Supreme 
Court's decision in Citizens to Preserve Overton Park v. Volpe, 401 
U.S. 402 (1971) (Overton Park). In Overton Park, the Court articulated 
a very high standard for compliance with Section 4(f), stating that 
Congress intended the protection of parkland to be of paramount 
importance. The Court also made clear that an avoidance alternative 
must be selected unless it would present ``uniquely difficult 
problems'' or require ``costs or community disruption of extraordinary 
magnitude.'' Id. at 411-21, 416.
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    \1\ Section 4(f) of the Department of Transportation Act of 1966 
was technically repealed in 1983 when it was codified without 
substantive change at 49 U.S.C. 303. A provision with the same 
meaning is found at 23 U.S.C. 138 and applies only to FHWA actions. 
This regulation continues to refer to Section 4(f) as such because 
it would create needless confusion to do otherwise; the policies 
Section 4(f) engendered are widely referred to as ``Section 4(f)'' 
matters.
    \2\ Section 774.14 of this final rule defines ``Administration'' 
as ``The FHWA or FTA, whichever is making the approval for the 
transportation program or project at issue. A reference herein to 
the Administration means the State when the State is functioning as 
the FHWA 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.'' All references to the ``Administration'' in 
the preamble to this final rule are consistent with this definition.
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    Courts around the country have applied the Overton Park decision, 
reaching different conclusions as to how various factors may be 
considered and what weight may be attached to the factors an agency 
uses to determine whether an avoidance alternative is or is not 
feasible and prudent. Some courts have interpreted Overton Park to 
mandate the avoidance of Section 4(f) properties at the expense of 
other important environmental and social resources. Congress amended 
Section 4(f) in 2005 to address the uncertainty surrounding its 
application. Section 6009(b) of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 
(Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144) directed the Secretary 
of Transportation to promulgate regulations clarifying ``the factors to 
be considered and the standards to be applied'' in determining the 
prudence and feasibility of alternatives that avoid the use of Section 
4(f) property by transportation projects. The FHWA and FTA published a 
NPRM on July 27, 2006, at 71 FR 42611. The NPRM requested comments on 
the factors proposed to be considered and standards proposed to be 
applied when determining whether an avoidance alternative is feasible 
and prudent. The NPRM also solicited comments on a new, alternative 
method of compliance created by SAFETEA-LU section 6009(a) for uses 
that result in a de minimis impact to a Section 4(f) property and on 
other proposed changes to the Section 4(f) regulation. The comment 
period remained open until September 25, 2006. All comments, including 
several comments submitted late, have been fully considered in this 
final rule.

Profile of Respondents

    The docket received a total of 37 responses to the NPRM. Out of the 
37 responses, 17 were submitted by 20 State and regional transportation 
agencies; 6 responses were submitted by trade associations; 9 responses 
were submitted by 11 national and local

[[Page 13369]]

environmental advocacy groups; 2 responses were from Federal agencies; 
1 response was from a State Historic Preservation Officer; and 2 
responses were from private individuals. The trade associations 
submitting comments were: The American Association of State Highway and 
Transportation Officials, the American Council of Engineering 
Companies, the American Cultural Resources Association, the American 
Highway Users Alliance, the American Public Transportation Association, 
and the American Road and Transportation Builders Association. The 
Federal agencies submitting comments were the United States Department 
of the Interior and the Advisory Council on Historic Preservation. The 
national environmental advocacy organizations submitting comments 
included the National Recreation and Park Association, The Nature 
Conservancy, and the National Trust for Historic Preservation, the 
Rails to Trails Conservancy, the Surface Transportation Policy Project, 
the Natural Resources Defense Council, and Environmental Defense.

Overall Position of Respondents

    The majority of comments received in response to the NPRM were 
generally supportive of the proposed changes. Most comments agreed with 
the decision to clarify the feasible and prudent test in a manner that 
will continue a high level of protection of Section 4(f) properties 
from the impacts of transportation projects. Respondents from all 
across the board, including State Departments of Transportation (SDOTs) 
and the private sector, commented positively on the rule's specificity 
and the flexibility allowed in dealing with various aspects of Section 
4(f). Moreover, there was substantial support for the idea that 
implementation of the proposed regulations would improve transportation 
decisionmaking and expedite environmental reviews, while continuing to 
protect Section 4(f) properties.
    On the other hand, several respondents had a generally negative 
reaction to the proposed regulation. Concerns included that the 
proposed regulations do not track the actual process the Administration 
and applicant would follow in writing a Section 4(f) evaluation; that 
the rule exceeds the requirements of SAFETEA-LU by addressing de 
minimis requirements; that the proposed rule's writing, structure, and 
organization are very confusing and will cause more litigation; and 
that the proposed rule will not streamline environmental analysis or 
adequately protect Section 4(f) properties.

General Comments

    A general comment noted that the regulation often refers simply to 
``refuges'' while the statute refers to ``wildlife and waterfowl 
refuges.'' For consistency, we have replaced ``refuges'' with the 
statutory terminology throughout the final rule.
    Another general comment expressed concern that the final 
decisionmaking responsibility under the proposed rule rests with the 
U.S. DOT. We considered this view but concluded that the statute 
entrusts final decisionmaking responsibility for approving the use of 
Section 4(f) property with the Secretary of Transportation, who has 
delegated that responsibility to the modal Administrations within the 
U.S. DOT.
    Another comment asked if this rule would apply to the Federal 
Aviation Administration (FAA) and the Federal Railroad Administration 
(FRA). The final rule will apply only to the FHWA and FTA. However, 
section 6009 of SAFETEA-LU amended 49 U.S.C. 303, which applies to all 
U.S. DOT agencies including FAA and FRA. The FAA and FRA may choose to 
adopt or use this rule and other FHWA and FTA guidance on Section 4(f).
    Finally, one commenter suggested that ``inside metropolitan areas, 
any 4(f) related activities, analysis, and decisions should be carried 
out in the context of the region-wide environmental mitigation element 
of the metropolitan transportation plan.'' Reference is made to the 
transportation planning regulation (23 CFR part 450) published in 
February 2007. The FHWA and FTA do not agree with this comment. The 
environmental mitigation discussed in the metropolitan plan generally 
would not delve into the site-specific impacts of individual projects 
and the mitigation thereof. That impact assessment will continue to be 
performed at the project level generally as part of the documentation 
prepared under the National Environmental Policy Act (NEPA). The 
discussion in the transportation plan would identify broader 
environmental mitigation needs and opportunities that individual 
transportation projects might later take advantage of. For example, as 
a result of consultation with resource agencies, the plan might 
identify an expanse of degraded wetlands associated with a troubled 
body of water that represents a good candidate for establishing a 
wetlands bank or habitat bank for wildlife and waterfowl. The plan 
might identify locations where the purchase of development rights would 
assist in preserving a historic battlefield or historic farmstead. 
Assessments of each individual project would still be needed to 
determine the appropriateness of devoting project funds to one of the 
mitigation activities identified in the plan, to a mitigation bank 
discussed in the plan, or to new mitigation developed during the NEPA/
Section 4(f) process and not mentioned in the plan. We therefore did 
not make changes in response to this comment.

Section-by-Section Analysis of NPRM Comments and the Administration's 
Response

    For ease of reference, the following table is provided which maps 
the former sections of the rule into the corresponding new sections:

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          Former section in part 771                                 New section in part 774
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None..........................................  774.1 Purpose.
771.135(a)(1).................................  774.3 Section 4(f) approvals.
771.135(i) [in part]..........................  774.5 Coordination.
771.135(a)(2), (i) [in part], (j), (k), and     774.7 Documentation.
 (o).
771.135(b) [in part], (g)(1) [in part], (l),    774.9 Timing.
 (m) [in part] and (n).
771.135(b) [in part], (c), (d), (e), (g)(1)     774.11 Applicability.
 [in part], (m)(4) and (p) (5)(v).
771.135(f), (g)(2), (h), (p)(5) [in part], and  774.13 Exceptions.
 (p)(7).
771.135(p)(3), (p)(4), (p)(5) [in part] and     774.15 Constructive use determinations.
 (p)(6).
771.107(d) and 771.135(p)(1) and (p)(2).......  774.17 Definitions.
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    In this preamble, all references to provisions of 23 CFR part 774 
refer to the final rule as presented herein. Several provisions 
proposed in the NPRM were moved to new sections in response to comments 
on the NPRM. A reference to an NPRM section will be explicitly labeled 
as such.

Section 771.127 Record of Decision

    One comment objected to the provision for signing a Record of 
Decision ``no sooner than 30 days after publication of the final 
environmental impact statement (EIS) notice in the Federal Register or 
90 days after publication of a notice for the draft EIS, whichever is 
later.'' This sentence was incorporated verbatim from the FHWA and 
FTA's existing regulation implementing the National Environmental 
Policy Act (NEPA), and it is consistent with the NEPA regulations of 
the Council on Environmental Quality (CEQ), 40 CFR 1506.10(b). 
Substantive modifications to the FHWA and FTA joint NEPA regulation are 
outside the scope of this rulemaking. Thus, we have retained the 
language as proposed in the NPRM.

Section 774.1 Purpose

    This section clarifies the purpose of the regulations, which is to 
implement 49 U.S.C. 303 and 23 U.S.C. 138 (Section 4(f)). There were no 
major comments in response to this section. Therefore, we have retained 
the language as proposed in the NPRM.

Section 774.3 Section 4(f) Approvals

    This section sets forth the determination required by the 
Administration prior to approving a project that uses Section 4(f) 
property. Paragraph 774.3(a) is the traditional Section 4(f) approval, 
similar to the previous rule at paragraph 771.135(a)(1). Paragraph 
774.3(b) implements the new provision in section 6009(a) of SAFETEA-LU 
for making de minimis impact determinations in lieu of the traditional 
analysis. Section 774.3 includes cross-references to the definitions 
for ``use,'' ``feasible and prudent avoidance alternative,'' ``de 
minimis impact,'' and ``all possible planning,'' which are located in 
the definitions section, 774.17.
    Paragraph 774.3(c) provides new regulatory direction for how to 
analyze and select an alternative when it has been determined that no 
feasible and prudent avoidance alternatives exist and all viable 
alternatives use some Section 4(f) property. The paragraph provides a 
list of factors that should be considered in the analysis and selection 
of an alternative. The factors were drawn from case law experience and 
the FHWA ``Section 4(f) Policy Paper.'' \3\ It should be noted that the 
weight given each factor would necessarily depend on the facts in each 
particular case, and not every factor would be relevant to every 
decision. Our intent is to provide the tools that will allow wise 
transportation decisions that minimize overall harm in these 
situations, while still providing the special protection afforded by 
Section 4(f) by requiring the other weighed factors to be severe and 
not easily mitigated.
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    \3\ The FHWA ``Section 4(f) Policy Paper,'' issued March 1, 
2005, is available for review online at https://
environment.fhwa.dot.gov/projdev/4fpolicy.htm. A copy was also 
placed in the docket for this rulemaking.
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    Paragraph 774.3(d) provides a clear regulatory basis for 
programmatic Section 4(f) evaluations, and it distinguishes between the 
promulgation of new programmatic Section 4(f) evaluations and the 
application of an existing programmatic Section 4(f) evaluation to a 
particular project. Paragraph 774.3(e) provides cross-references to the 
sections of the regulation governing the coordination, documentation, 
and timing of approvals as a road map for the practitioner.
    Many comments were received in response to this section. The 
majority of comments were generally supportive of the approach proposed 
in the NPRM, although many offered minor re-wording for clarity. Those 
suggestions are discussed below for each paragraph. Several comments 
were strongly opposed to the proposed procedural structure. The NPRM 
proposed different processes for approving uses with de minimis and 
non-de minimis impacts to Section 4(f) property, and the proposed rule 
requires an additional step when approving projects for which all 
alternatives use some Section 4(f) property. A use with more than de 
minimis impacts would be processed with the traditional two-step 
inquiry pursuant to paragraph 774.3(a) (a determination that there is 
no feasible and prudent avoidance alternative, followed by a 
determination that the action includes all possible planning to 
minimize harm to the property). A use with de minimis impacts would be 
processed in a single step pursuant to paragraph 774.3(b) (without the 
need for the development and analysis of avoidance alternatives, and 
with the planning to minimize harm folded into the development of 
measures needed to reduce the impacts of the Section 4(f) use to a de 
minimis level). Projects for which all viable alternatives use some 
Section 4(f) property would be processed in two steps pursuant to 
paragraph 774.3(c) (a determination that there is no feasible and 
prudent avoidance alternative, followed by the selection of an 
alternative by weighing the factors in paragraph 774.3(c) and a 
determination, with documentation, that the action includes all 
possible planning to minimize harm).
    The commenters opposed to the structure proposed in the NPRM 
indicated that the regulation in all situations should first require a 
determination of which alternative minimizes harm to the Section 4(f) 
resource(s), followed by a determination of whether that alternative is 
feasible and prudent and may therefore be selected. Comments stated 
that in Overton Park, the Supreme Court required such a structure for 
Section 4(f) decisionmaking. We disagree. We have re-read Overton Park 
and considered this concern very carefully, but we do not agree that 
Overton Park stands for the process favored by these commenters or that 
the process proposed in the NPRM should be restructured. First, the 
NPRM structure follows the order of the requirements as they appear in 
the statute. Second, the statute does not require a determination of 
which alternative minimizes harm, it requires ``all possible planning'' 
to minimize harm. It is much more efficient to conduct all possible 
planning to minimize harm as the last step for the selected alternative 
than to undertake all possible planning repeatedly for each 
alternative, including those that are not feasible and prudent, and for 
a variety of reasons, cannot be selected. Such a process would be very 
inefficient. Finally, the structure and processes in the final rule are 
consistent with longstanding FHWA and FTA procedures, with the 
exception of the procedures for approving the new concept of de minimis 
impacts. For these reasons, we retained the structure proposed in the 
NPRM.
    Another comment strongly recommended the separation of the 
analysis, coordination, documentation, and timing requirements for de 
minimis impacts and the traditional Section 4(f) evaluation into 
discrete sections of the regulation. We decided not to make this 
proposed change because we do not agree that re-structuring the 
regulation in this manner would make it easier to use. In addition, for 
those who prefer the suggested structure, the existing joint FHWA/FTA 
``Guidance for Determining De Minimis Impacts to Section 4(f) 
Resources,'' December 13, 2005,\4\ already provides a complete

[[Page 13371]]

discussion of the process for determining de minimis impacts, separate 
from any discussion of the requirements for traditional Section 4(f) 
approvals.
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    \4\ https://www.fhwa.dot.gov/hep/guidedeminimus.htm.
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    Another comment requested definitions of numerous phrases used in 
section 774.3; for example, ``relative severity of the harm,'' 
``relative significance,'' and ``the ability to mitigate.'' We did not 
include the requested definitions in the final rule because these words 
are all used with their common English meanings. The provisions of 
section 774.3 will be applied to an extensive variety of fact 
situations, and regulatory definitions would unduly limit the 
applicability of the provisions to the particular fact situations 
anticipated in those definitions.
     Section 774.3--One comment suggested that section 774.3, 
which prohibits the use of Section 4(f) property unless certain 
determinations are made, should simply refer to ``section 4(f) 
property'' instead of ``public park, recreation area, or wildlife and 
waterfowl refuge, or any significant historic site.'' We agree that 
this suggested change improves the readability of the regulation, so we 
substituted the phrase ``Section 4(f) property'' and moved the 
terminology proposed in the NPRM into a new definition of ``Section 
4(f) property'' in section 774.17. The defined term is now used 
throughout the regulation.
     Paragraph 774.3(a)(1)--Another comment asked that we 
confirm ``that an alternative with a net benefit 4(f) use can be chosen 
over an alternative with no Section 4(f) use.'' If avoidance 
alternatives are determined not to be feasible and prudent then the use 
may be approved, whether or not it is a ``net benefit.'' For FHWA 
projects, the ``Nationwide Programmatic Section 4(f) Evaluation and 
Determination for Federal-Aid Transportation Projects That Have a Net 
Benefit to a Section 4(f) Property,'' 70 FR 20618, April 20, 2005, 
would generally apply to situations envisioned by the commenter. This 
programmatic Section 4(f) evaluation remains in effect. In cases where 
application of this programmatic evaluation is appropriate, the 
criteria for evaluating the existence of a feasible and prudent 
avoidance alternative is specified in the Findings section of the 
programmatic evaluation. If, through the application of this 
programmatic Section 4(f) evaluation, the FHWA determines that there 
are no feasible and prudent avoidance alternatives, then the 
alternative with a net benefit to Section 4(f) property can be 
selected. This programmatic Section 4(f) evaluation is applicable only 
to FHWA actions.
     Paragraph 774.3(b)--One comment requested clarification 
whether an analysis of avoidance alternatives must be conducted when 
determining that a de minimis impact occurs to a Section 4(f) property. 
An analysis of avoidance alternatives is not necessary for a de minimis 
impact determination, and the NPRM did not propose to require one. 
Using words taken directly from section 6009(a) of SAFETEA-LU, the NPRM 
would have allowed a Section 4(f) de minimis impact approval when ``the 
use of the property, including any avoidance, minimization, mitigation, 
or enhancement measures committed to by the applicant, will have a de 
minimis impact * * *.'' We agree with the commenter that the term 
``avoidance'' as used in this sentence could cause confusion. The final 
rule was reworded to clarify that the term ``avoidance,'' along with 
other mitigation or enhancement measures, is used in the context of 
project features or designs that minimize harm to the individual 
Section 4(f) property and not meant to imply that the applicant must 
search for alternatives avoiding the Section 4(f) property altogether. 
In this context, the term ``avoidance'' could mean a partial change to 
the alignment to avoid a portion of the Section 4(f) property. The 
sentence now reads ``* * * the use of the property, including any 
measure(s) to minimize harm (such as any avoidance, minimization, 
mitigation, or enhancement measures) committed to by the applicant, 
will have a de minimis impact, as defined in Sec.  774.17, on the 
property.'' The development and evaluation of alternatives that 
completely avoid the use of the Section 4(f) property is not required 
when the Administration intends to make a finding of de minimis impact 
determination. Indeed, to require such an analysis would defeat the 
purpose of the de minimis provision in the statute. However, if the 
Administration's intention of making a de minimis impact finding is not 
realized, then a traditional Section 4(f) evaluation, including the 
development and evaluation of alternatives that completely avoid the 
use of Section 4(f) property, would be necessary.
     Paragraph 774.3(c)--Two comments criticized the choice of 
the word ``may'' referencing the portion of the rule which allows the 
Administration to approve an alternative that ``minimizes overall 
harm'' in light of the enumerated factors. They explain that this 
articulation leaves the FHWA and FTA with too much discretion. We are 
concerned that if the words ``may select'' were replaced with the 
suggested ``shall select'' or ``must select,'' the provision would 
require the agencies to actually fund the project, which is not an 
obligation imposed by Section 4(f). In response to the comments, after 
``may approve'' we added the word ``only.'' This change clarifies our 
intent that the FHWA and FTA may only select the alternative that 
causes the least overall harm.
    When there is no feasible and prudent avoidance alternative, many 
comments suggested various replacements for the phrase ``most prudent'' 
as a criterion for choosing among several project alternatives and 
determining which would cause the least overall harm. After considering 
the range of proposals and their rationales, we have decided to remove 
the words ``most prudent'' from the analysis of overall harm. It 
appears to cause confusion and it detracts from the purpose of this 
portion of the rule, which is to provide clear criteria for choosing a 
course of action when all available alternatives use Section 4(f) 
property. Deleting the modifier ``most prudent'' appropriately shifts 
the focus of the multi-factor inquiry to the requirement of minimizing 
overall harm.
    Several commenters suggested that the proposed weighing of factors 
in determining the alternative with the least overall harm would not 
place a ``thumb on the scale'' in favor of the preservation of the 
Section 4(f) properties, as required by the statute. The FHWA and FTA 
agree that a reminder about the preservation purpose of the statute in 
the balancing of various factors is appropriate. Accordingly, paragraph 
774.3(c)(1) now states that the Administration may approve the 
alternative that causes the least overall harm ``in light of the 
statute's preservation purpose.'' The preservation purpose of Section 
4(f) is described in 49 U.S.C. 303(a), which states: ``It is the policy 
of the United States Government that special effort should be made to 
preserve the natural beauty of the countryside and public park and 
recreation lands, wildlife and waterfowl refuges, and historic sites.'' 
Virtually identical language appears in 23 U.S.C. 138. This addition 
does not change the settled principle that where there is no feasible 
and prudent avoidance alternative, Section 4(f) does not preclude the 
Administration from selecting any alternative from among those with 
substantially equal harm. In such instances, the selection will be 
based primarily on the relative performance of those alternatives with 
respect to factors (v) ``the degree to which each alternative meets the

[[Page 13372]]

purpose and need for the project,'' (vi) ``after reasonable mitigation, 
the magnitude of any adverse impacts to resources not protected by 
Section 4(f),'' and (vii) ``substantial differences in costs among the 
alternatives.''
    Two comments proposed incorporating by reference the NPRM 
definition of ``feasible and prudent alternative'' into paragraph 
774.3(c), explaining that this change would ensure consistency in the 
use of the term, especially in the meaning of ``prudent.'' We decline 
to adopt this proposal because the term ``feasible and prudent 
alternative'' as used in the definitions and paragraph 774.3(a) 
signifies an alternative to the use of Section 4(f) property, whereas 
in paragraph 774.3(c) all alternatives under consideration use some 
Section 4(f) property and use of the term in this context would be 
confusing.
    Several comments proposed substituting the word ``balancing'' for 
the term ``considering,'' as a more precise way to describe the 
analytical process described in the NPRM. We have adopted the 
suggestion to replace the term ``considering'' with the term 
``balancing'' as a better way to articulate the intent of paragraph 
774.3(c). We agree that such an inquiry will necessarily involve a 
balancing of competing and conflicting considerations given that some 
of the factors may weigh in favor of one alternative, yet other factors 
may weigh against it. Mere ``consideration'' of the factors does not 
capture this idea--the factors must be weighed against each other. How 
the various factors listed in paragraph 774.3(c)(1) are balanced and 
weighed in a given instance is within the discretion of FHWA and FTA, 
and is subject to the facts and circumstances of the particular project 
and Section 4(f) properties involved. As previously noted, the FHWA and 
FTA have inserted a reminder that the preservation purpose of the 
statute in the balancing of the various factors must be given its 
proper weight.
    Several comments interpreted the balancing test of paragraph 
774.3(b) as satisfying the statutory requirement to undertake ``all 
possible planning to minimize harm'' to the Section 4(f) property. One 
comment proposed that we add a statement that performing the analysis 
pursuant to paragraph 774.3(c) satisfies FHWA's obligation to undertake 
all possible planning to minimize harm to Section 4(f) properties. 
Other comments suggested that paragraph 774.3(c) should expressly state 
that any alternative selected based on the enumerated factors should 
include all possible planning to minimize harm to Section 4(f) property 
resulting from the use.
    Contrary to the interpretation suggested in some comments, we did 
not intend that engaging in the balancing test alone would fulfill the 
requirement to undertake ``all possible planning to minimize harm'' to 
the Section 4(f) property. The selection of an alternative pursuant to 
paragraph 774.3(c) is not in itself a Section 4(f) approval and does 
not complete the evaluation process. After the alternative is selected, 
the additional step of identifying, adopting, and committing to 
measures that will minimize the harm to the Section 4(f) property must 
be documented before Section 4(f) approval can be granted. The extent 
of effort needed to satisfy the requirement to undertake all possible 
planning to minimize harm is included in the definitions section, 
774.17. When the characteristics of a Section 4(f) property lend 
themselves to mitigation, and with mitigation the alternative that uses 
that property would have a lower net impact, the balancing test would 
weigh these facts and may result in the alternative being selected. We 
addressed the confusion on this topic by dividing the NPRM paragraphs 
774.3(a)(1) and 774.3(b) each into two paragraphs and stating 
separately in each the requirement to undertake all possible planning 
to minimize harm. We also slightly reworded the paragraph for 
additional clarity.
    We received a variety of comments regarding the list of factors in 
paragraph 774.3(c)(1) which the Administration would balance in making 
the decision on which alternative causes the least overall harm. It is 
important to keep in mind the situations in which the factors will 
apply--these factors will only apply after a determination has already 
been made that there is no feasible and prudent alternative to avoid 
the use of Section 4(f) property. The point of the analysis is a 
comprehensive inquiry that balances the net harm to Section 4(f) 
properties caused by each alternative with all other relevant concerns. 
One comment provided examples of how the balancing of factors in 
paragraph 774.3(c) will help transportation agencies arrive at better 
overall decisions.
    We reiterate here the point made above and in the NPRM that this 
balancing must be done with a ``thumb on the scale'' in favor of 
protecting Section 4(f) properties. A scale that takes into account the 
preservation purpose of the statute must be used to compare the net 
harm to Section 4(f) properties (factors in paragraphs 774.3(c)(1)(i)-
(iv)) with other relevant concerns (the remaining factors). One 
commenter asked if this means ``an alternative with somewhat more harm 
to Section 4(f) properties could be selected over one with somewhat 
lesser harm if the one with lesser harm to Section 4(f) properties 
would result in more adverse effects to non-Section 4(f) properties/
higher costs/lesser ability to satisfy needs, or some combination 
thereof?'' The answer is yes, so long as the difference in overall harm 
is substantial. Where the factors favoring the selection of the 
alternative with greater harm to Section 4(f) property do not clearly 
and substantially outweigh the factors favoring the alternative with 
less harm to Section 4(f) property, the alternative with less harm to 
Section 4(f) property must be selected. As the significance of the 
Section 4(f) property or the degree of harm to the Section 4(f) 
property increases, another alternative must entail correspondingly 
greater harm to non-Section 4(f) properties to outweigh the harm to the 
Section 4(f) property and be selected. Because there is necessarily a 
degree of judgment involved in these decisions, the Administration must 
be mindful to carefully document its reasoning.
    With respect to the factors in paragraphs 774.3(c)(1)(ii) and 
(iii), one comment suggested that the determinations of the relative 
severity of the harm and relative significance of the Section 4(f) 
properties should be made solely by the officials with jurisdiction 
over the resource. We did not adopt this suggestion because, in 
practice, competing views are often expressed when multiple Section 
4(f) properties are being evaluated. The park may seem more important 
to the park official than the historic building beside the park, 
whereas the SHPO may feel just the opposite. The Administration, after 
listening to these competing points of view, must ultimately decide. In 
the statute, Congress chose to entrust the Secretary of Transportation 
with the final decision.
    With respect to the factor in paragraph 774.3(c)(1)(i), ``The 
ability to mitigate adverse impacts to each Section 4(f) property 
(including any measures that result in benefits to the property),'' one 
comment suggested that only ``legally binding'' mitigation (i.e., 
mitigation committed to in the ROD) should be considered. We do not 
agree because the purpose of the balancing test is to select an 
alternative, so there is no legally binding mitigation at that point in 
the process. However, we expect that mitigation used to offset harm 
would be a matter of record and the appropriate commitments should be 
included in the project decision.

[[Page 13373]]

Another comment stated that nothing in the regulation requires the 
adoption of any mitigation relied upon in this factor. This is not 
true. The new definition of ``all possible planning'' to minimize harm 
sets forth specific criteria which will govern whether the identified 
mitigation must be adopted. Where the availability of adequate 
mitigation measures is a factor that is relied upon in selecting an 
alternative, the measures that were identified in the analysis must be 
incorporated into the project through the CE determination, ROD or 
FONSI, or by other means. There is additional discussion of this issue 
in the analysis of section 774.17 below.
    Several commenters felt that the only consideration in alternative 
selection should be minimizing harm to the Section 4(f) properties. 
Consequently, in their view, the factors in NPRM subparagraphs 
774.3(b)(5) through (8), which introduce non-Section 4(f)-related 
concerns into the selection process, should be eliminated. We have 
carefully reviewed those comments but decided to keep the first three 
of these factors, now numbered 774.3(c)(1)(v)-(vii) for the reasons 
discussed below. The final factor in the NPRM, concerning joint 
planning, was dropped for other reasons, as discussed below following 
the discussion of the factors retained.
    The factors in 774.3(c)(1)(v)-(vii) were retained in the final rule 
for several reasons. First, the selection of an alternative in 
instances where all viable alternatives use some Section 4(f) property 
must be distinguished from the selection process where there is a 
viable alternative that avoids using Section 4(f) property. While the 
caselaw is not entirely consistent, there is ample support for the FHWA 
and FTA's approach in the courts. The Supreme Court's Overton Park 
decision did not consider this aspect of Section 4(f), as that case 
turned on the FHWA's failure to document any consideration of feasible 
and prudent alternatives to the use of the park. Second, since Section 
4(f) was enacted in 1966, Congress has identified many other types of 
environmental resources for protection under Federal law besides 
Section 4(f) properties; for example, threatened and endangered 
species, prime farmland, and wetlands of national importance. There is 
nothing in SAFETEA-LU to suggest that Section 4(f) protection should 
trump all other concerns when there is no feasible and prudent 
avoidance alternative. The FHWA and FTA's approach interprets Section 
4(f), as amended by SAFETEA-LU, in a way that gives appropriate weight 
to all of the resources impacted by a proposed transportation project. 
Third, 23 U.S.C. 109(h) directs FHWA to make final project decisions 
``in the best overall public interest, taking into account the need for 
fast, safe and efficient transportation, public services, and the costs 
of eliminating such adverse effects and the following: (1) Air, noise, 
and water pollution; (2) destruction or disruption of man-made and 
natural resources, aesthetic values, community cohesion and the 
availability of public facilities and services; (3) adverse employment 
effects, and tax and property value losses; (4) injurious displacement 
of people, businesses and farms; and (5) disruption of desirable 
community and regional growth.'' FTA law similarly requires that ``the 
preservation and enhancement of the environment and the interest of the 
community in which the project is located'' be considered. (49 U.S.C. 
5324(b)(3)(A)(ii)). These statutes support the FHWA and FTA's 
interpretation of Section 4(f) as allowing the consideration of other 
significant impacts when it is not possible to avoid using Section 4(f) 
property. As described in the NPRM preamble, the balancing approach 
adopted in this rule enables the Administration to take all of these 
concerns into account by allowing serious problems to outweigh 
relatively minor Section 4(f) impacts, as well as Section 4(f) impacts 
that can be satisfactorily mitigated.
    One comment pointed out that the list of factors in paragraph 
774.3(c)(1) is inconsistent with the lists in the proposed definitions 
of ``all possible planning'' and ``feasible and prudent alternative'' 
in 774.17, which includes some similar and some additional factors. 
This disparity, in the commenter's opinion, confused the application of 
the factors in the overall Section 4(f) analysis. This comment proposed 
that we combine the multi-factor lists. We considered this comment, but 
decided not to adopt it. The three lists of factors included in the 
NPRM apply to three distinct situations. The factors enumerated in the 
proposed definition of ``feasible and prudent alternative'' are used to 
determine whether an alternative that avoids using Section 4(f) 
property exists. If the analysis concludes that no such avoidance 
alternative exists, then a different set of factors, those in paragraph 
774.3(c), comes into play to guide the Administration in selecting from 
among the alternatives all of which use some Section 4(f) property. 
Once an alternative is chosen, if it uses Section 4(f) property, then 
the Administration has a further obligation to undertake all possible 
planning to minimize harm to that property. The third set of factors in 
the definition of this term is used to determine the appropriate extent 
of the planning to minimize harm.
    With respect to the factor in paragraph 774.3(c)(1)(vii), 
``[e]xtraordinary differences in costs among the alternatives,'' some 
comments suggested that the word ``extraordinary'' should be deleted, 
thus allowing any difference in costs to be considered and balanced 
with all other factors in determining which of the alternatives 
minimizes overall harm. Since this factor is a comparison of the costs 
of alternatives under consideration, all of which use Section 4(f) 
property, the FHWA and FTA agree that the difference in cost would not 
have to be ``extraordinary,'' but that the magnitude of the difference 
would determine its appropriate weight when balancing it with the other 
factors. Consideration of a minor difference in the cost among 
alternatives in the balancing test would be inappropriate in that there 
must be a measurable and significant degree of difference. For this 
reason we are substituting the word ``substantial'' in place of the 
word ``extraordinary'' in this factor. Requiring a substantial cost 
difference between alternatives emphasizes the importance of devoting 
funds to minimizing harm to the Section 4(f) property and other 
important resources more so than if any difference in cost were allowed 
to influence the choice of alternatives. When deciding whether to 
consider a cost difference ``substantial,'' in addition to considering 
the cost as a number in isolation, the FHWA and FTA may consider 
factors such as the percentage difference in the cost of the 
alternatives; how the cost difference relates to the total cost of 
similar transportation projects in the applicant's annual budget; and 
the extent to which the increased cost for the subject project would 
adversely impact the applicant's ability to fund other transportation 
projects.
    Several comments expressed confusion regarding the factor in NPRM 
paragraph 773.4(b)(8), ``[A]ny history of concurrent planning or 
development of the proposed transportation project and the Section 4(f) 
property.'' Some commenters were concerned about how this factor was 
related to, and would apply in, the balancing of factors and the 
ultimate determination of overall harm. Others suggested that the scope 
of concurrent planning in this context was unclear and others thought 
the term should be defined in section 774.17. In response to these 
comments, we have decided to eliminate concurrent

[[Page 13374]]

planning as a factor in determining overall harm. Concurrent planning, 
in which the ``concurrent or joint planning or development of the 
transportation facility and the Section 4(f) resource occurs,'' more 
appropriately relates to the applicability of Section 4(f) requirements 
to a specific property. Concurrent planning in this context is 
addressed in paragraph 774.11(i).
    Another comment pointed out the lack of reference to the no-action 
alternative in this paragraph, and asked whether that means it need not 
be discussed in the evaluation. The no-action alternative should always 
be considered in a Section 4(f) evaluation and the reasons for not 
selecting it must be identified.
     Paragraph 774.3(d)--Several comments on the NPRM indicated 
that programmatic Section 4(f) evaluations are misunderstood by some. 
In response, we have clarified what is meant by a programmatic Section 
4(f) evaluation in paragraph 774.3(d), and have specified the process 
for the development of a programmatic evaluation as well as the 
application of an existing programmatic evaluation. The paragraph makes 
clear that a programmatic Section 4(f) evaluation does not 
automatically satisfy Section 4(f) for an entire class of projects--
rather it establishes a simpler approach to compliance that is tailored 
to that class of projects. They are not exemptions and individual 
projects must still be reviewed in accordance with the process 
established in the programmatic Section 4(f) evaluation.
     Paragraph 774.3(e)--No substantive comments were received 
on this subsection. We have retained the language as proposed in the 
NPRM.

Section 774.5 Coordination

    One general comment recommended the separation of the analysis, 
coordination, format, and timing requirements for de minimis impacts 
into discrete sections of the regulation. We decided not to make this 
proposed change because we believe that grouping all of the 
requirements for coordination, all of the requirements for timing, and 
all of the requirements for documentation together is a reasonable 
structure for the regulation and is more consistent with the familiar, 
former regulation. For practitioners who need more guidance on the de 
minimis impact requirements, the joint FHWA/FTA ``Guidance for 
Determining De Minimis Impacts,'' December 13, 2005, discusses all of 
the de minimis impact requirements together in one document.
    Another general comment suggested that this section should be 
revised to explain the coordination of reviews performed under NEPA, 
Section 4(f), and Section 106 of the National Historic Preservation 
Act. We did not adopt this suggestion because it is already stated in 
23 CFR 771.105(a), which explains that it is the policy of the FHWA and 
FTA that ``[t]o the fullest extent possible, all environmental 
investigations, reviews, and consultations be coordinated as a single 
process, and compliance with all applicable environmental requirements 
be reflected in the environmental document required by this 
regulation.'' A similar statement with regard to the content of 
environmental documents is found at 23 CFR 771.133.
    We received a general comment that clear guidance is needed on the 
coordination process for Section 4(f) uses with impacts greater than de 
minimis, to ensure that the officials with jurisdiction are fully 
engaged in the development of avoidance alternatives and the 
determination of appropriate measures to minimize harm. We agree that 
coordination with the officials with jurisdiction is important and 
integral to Section 4(f) compliance, and note that the regulation 
already includes explicit coordination requirements in paragraph 
774.5(a). Additional guidance is included in the FHWA ``Section 4(f) 
Policy Paper,'' March 2, 2005, so we did not make any changes in 
response to this comment.
    One general comment requested that we clarify in the preamble to 
this regulation that the existing Section 4(f) de minimis impact 
guidance, issued on December 13, 2005, remains in effect and is not 
superseded by these regulations. We agree that the inclusion of 
requirements for de minimis impacts in these regulations was not 
intended to supersede or replace the existing guidance, but to ensure 
that the current Section 4(f) regulation is consistent with the Section 
4(f) statute, as amended by SAFETEA-LU. The joint FHWA/FTA ``Guidance 
for Determining De Minimis Impacts to Section 4(f) Resources,'' 
December 13, 2005, remains in effect, but the Administration may review 
it and make clarifying revisions some time in the future. The FHWA 
``Section 4(f) Policy Paper,'' March 2, 2005, which was written prior 
to enactment of the SAFETEA-LU amendment to the Section 4(f) statute, 
remains in effect except where it could be interpreted to conflict with 
this regulation, in which case the regulation takes precedence. The 
FHWA plans to update the ``Section 4(f) Policy Paper'' to reflect 
SAFETEA-LU and this final rule.
    One comment requested that the regulation address the additional 
coordination that is needed when the impacted Section 4(f) property was 
created or was improved with funds from various programs administered 
by the U.S. Department of the Interior. Guidance for such coordination 
is already addressed in the FHWA ``Section 4(f) Policy Paper'' and in 
the ``Guidance for Determining De Minimis Impacts to Section 4(f) 
Resources.'' However, because we agree that this coordination is 
important, we addressed the comment by adding a new paragraph (d) to 
section 774.5: ``When Federal encumbrances on Section 4(f) property are 
identified, coordination with the appropriate Federal agency is 
required to ascertain the agency's position on the proposed impact, as 
well as to determine if any other Federal requirements may apply to 
converting the Section 4(f) land to a different function. Any such 
requirements must be satisfied, independent of the Section 4(f) 
approval.''
     Paragraph 774.5(a)--A number of comments focused on the 
length of the notice and comment period. The NPRM proposed to continue 
the current 45-day comment period. The comments urged a period ranging 
from as short as 15 days, up to a maximum of 60 days. Specifically, one 
comment urged a maximum of 60 days with presumed concurrence if no 
comment was received within 15 days after the deadline. One comment 
urged a period of 60 days, but suggested that comments be open to the 
public and other Federal agencies, and not just to those with 
jurisdiction over the Section 4(f) property. One comment urged a period 
of at least 45 days, not to exceed 60 days.
    Several commenters reasoned that a period with a maximum of 60 days 
would be harmonious with the streamlining provisions of section 6002 of 
SAFETEA-LU and the comment period provided by Section 106 of the 
National Historic Preservation Act for consultation with State Historic 
Preservation Officers and the Advisory Council on Historic 
Preservation. Those urging a provision for presuming concurrence if the 
comments are not received by various deadlines stated that such a 
provision is needed because, in the experience of many applicants, 
comments are routinely submitted many months late. Another commenter 
thought the requirement for the U.S. Department of the Interior (DOI) 
to review Section 4(f) evaluations added minimal value to the process 
and suggested that DOI's role should be eliminated altogether.
    After considering all of the views submitted, we decided to keep 
the 45-day comment period in the final rule.

[[Page 13375]]

This period appears to be a reasonable length of time, in light of the 
current practice with which all are familiar. We did not eliminate the 
requirement for a comment period because the statute itself requires 
coordination with certain agencies, including DOI. However, we decided 
to adopt a deadline for the receipt of comments by adding the following 
at the end of paragraph 774.5(a): ``If comments are not received within 
15 days after the comment deadline, the Administration may assume a 
lack of objection and proceed with the action.'' This change addresses 
the concern that comments are routinely sent late, but it allows 
flexibility for the Administration to extend the comment period in 
individual cases upon request.
     Paragraph 774.5(b)--Several comments requested additional 
requirements for public notice, review, and comment related to de 
minimis impacts to historic properties. In response, the FHWA and FTA 
decided to accept the wording suggested by one of the commenters. 
Paragraph 774.5(b)(1)(iii) now says: ``Public notice and comment, 
beyond that required by 36 CFR Part 800, is not required.'' The 
regulation is consistent with the provisions of SAFETEA-LU that allow 
the de minimis impact determination to be made based on the process 
required under section 106 of the National Historic Preservation Act.
    Other comments requested additional guidance on public notice, 
review, and comment related to de minimis impacts to parks, recreation 
areas, and wildlife/waterfowl refuges. One commenter believes that 
public notice, review, and comment are adequately covered by NEPA and 
its implementing regulations, and any additional opportunities are 
unnecessary. We decided to retain the proposed regulatory text on 
public notice and comment, but to add: ``This requirement can be 
satisfied in conjunction with other public involvement procedures, such 
as a comment period provided on a NEPA document.'' SAFETEA-LU requires 
public notice and the opportunity for public review and comment before 
the Administration can make a de minimis impact determination. Where 
the NEPA process already provides opportunities for public notice, 
review, and comment [i.e., for environmental assessments (EAs) and 
EISs], the same opportunities can be used for projects where the 
Administration is considering a de minimis impact determination. For 
those actions that do not routinely require public review and comment 
under NEPA [e.g., categorical exclusions (CEs) and certain 
reevaluations] a separate public notice and opportunity for review and 
comment will be necessary for a de minimis impact determination. In 
these situations, the public notice and opportunity for review and 
comment should be based on the specifics of the situation and 
commensurate with the type and location of the Section 4(f) property, 
impacts, and public interest.
     Paragraph 774.5(b)(1)--Several comments suggested that the 
concurrence of the State Historic Preservation Officer (SHPO) or Tribal 
Historic Preservation Officer (THPO) in a proposed de minimis impact 
determination should be assumed if 30 days pass without written 
concurrence. We did not adopt this change because the statute 
explicitly requires written concurrence in the Section 106 
determination to support a de minimis impact determination. The joint 
FHWA/FTA ``Guidance for Determining De Minimis Impacts to Section 4(f) 
Resources,'' December 13, 2005, explains the use of Section 106 
programmatic agreements (PA) in making de minimis impact 
determinations. It says that when a Section 106 PA explicitly states 
that an individual Section 106 determination of ``no historic property 
affected'' or ``no adverse effect,'' is made in accordance with the PA, 
it may be relied upon as the basis for de minimis impact determination. 
If the PA specifies that the SHPO or THPO's concurrence in such a 
determination may be assumed after a specified timeframe, then the SHPO 
or THPO's signature on the PA itself constitutes the required written 
concurrence in the Section 106 determination that is necessary for a de 
minimis impact determination. With such a PA, a SHPO or THPO is within 
its rights asking for a side agreement that would specify conditions 
under which a nonresponse would not be used as the basis for a de 
minimis impact determination. In any case it is expected that the SHPO 
or THPO will be apprised of the agency's intention to make a de minimis 
determination under the PA approach and afforded an opportunity to 
engage in the process on a project-by-project basis, if desirable by 
either party.
    Several comments stated that paragraph 774.5(b)(1) should spell out 
the written concurrences necessary to support a de minimis impact 
determination for a historic property in order to clarify which 
concurrences are required. We agree, and the final rule explicitly 
states which parties must concur, consistent with 49 U.S.C. 
303(d)(2)(B) and 23 U.S.C. 138(b)(2)(B).
    A number of comments objected to the statement in paragraph 
774.5(b)(1) that public notice and comment other than the Section 106 
consultation is not required. These commenters pointed out that the 
Section 106 regulation (36 CFR part 800) has its own public involvement 
requirements, which may apply in a particular case. One commenter 
suggested alternative language to recognize that pertinent requirements 
of the Section 106 regulation must be met. We adopted the suggested 
language, and the sentence now says that ``public notice and comment, 
beyond that required by 36 CFR part 800, is not required.''
     Paragraph 774.5(b)(2)--Several commenters requested 
clarification of the sequence of events for coordinating with the 
official(s) with jurisdiction over parks, recreation areas, and refuges 
prior to making de minimis impact determinations. These commenters 
proposed revising the regulation to enable the Administration to notify 
the official(s) with jurisdiction of its intent to make a de minimis 
impact determination at any time during the coordination process, 
instead of postponing notification until the conclusion of the public 
review and comment period. The FHWA and FTA decided to adopt this 
proposed change by moving the clause ``following an opportunity for 
public review and comment'' from the beginning of the second sentence 
and inserting it directly before the concurrence requirement: 
``Following an opportunity for public review and comment as described 
in paragraph (b)(2)(i) of this section, the official(s) with 
jurisdiction over the property must concur in writing * * *. '' The 
regulation would still require the Administration to wait until after 
the public comment process before making a formal request for 
concurrence, but no specific timeframe is provided for notifying the 
officials with jurisdiction. The revised paragraph will begin with 
``The Administration shall inform the official(s) with jurisdiction of 
its intent * * *. '' The FHWA and FTA reasoned that it would be 
beneficial to have the flexibility to notify the official(s) with 
jurisdiction early in the coordination process to ascertain the 
position of the officials and so that the preliminary views of such 
official(s), if available, can be included in the notice provided to 
the public.
    One commenter suggested eliminating the provision that requires the 
Administration to inform the official(s) with jurisdiction of the 
intent to make a de minimis impact determination based on those 
officials' concurrence that the project will not adversely affect the 
Section 4(f) property. The FHWA and FTA decided not to make this

[[Page 13376]]

change. The sequence of events leading to the Administration's finding 
is important and will ensure that the official(s) with jurisdiction 
understand that their written concurrence is required for the 
Administration's de minimis impact determination and that they agree 
with any proposed mitigation necessary to the de minimis impact 
determination.
    One commenter suggested that the FHWA and FTA add a further 
provision to the coordination process in paragraph 774.5(b)(2) that 
would expressly allow the concurrence in the de minimis impact 
determination to be combined with other comments provided by the 
official(s) on the project. The FHWA and FTA decided to follow this 
recommendation and incorporated the proposed language: ``This 
concurrence may be combined with other comments on the project provided 
by the official(s).'' Another comment asked for clarification whether 
the coordination can be accomplished in conjunction with other public 
involvement procedures, such as a comment period provided on a NEPA 
document. The FHWA and FTA's NEPA regulation provides for integrated 
procedures in 23 CFR 771.105 and 771.133, so this point was clarified 
as suggested. With the clarifications described above, the new 
provision will help streamline the environmental review process because 
it will allow the official(s) with jurisdiction to combine comments on 
the de minimis impact proposal with comments submitted on other 
environmental issues related to the project.
     Paragraph 774.5(c)--One commenter believed that the 
coordination requirements discussed in section 774.5 did not 
differentiate between individual and programmatic Section 4(f) 
evaluations and requested clarification. Programmatic evaluations are 
differentiated by virtue of being addressed in a separate paragraph, 
774.5(c). We have now clarified what is meant by a programmatic 
evaluation in paragraph 774.3(d), as previously discussed.
    Another comment suggested a 60-day comment period be required when 
there is a use of land from a Section 4(f) property that is covered by 
a programmatic Section 4(f) evaluation. The comment also suggested that 
the coordination during the use of a programmatic Section 4(f) 
evaluation should ``be open to the public and not just the official(s) 
with jurisdiction.'' Programmatic Section 4(f) evaluations provide 
procedural options for demonstrating compliance with the statutory 
requirements of Section 4(f). The FHWA has issued five nationwide 
programmatic Section 4(f) evaluations. (FTA has not issued any, but has 
plans to do so.) Before being adopted, all of the FHWA programmatic 
evaluations were published in draft form in the Federal Register for 
public review and comment. They were also provided to appropriate 
Federal agencies for review. Each programmatic evaluation contains 
specific criteria, consultation requirements, and findings that must be 
met before the programmatic evaluation may be applied on any given 
project. A primary benefit to using this prescribed step-by-step 
approach is a reduction of the time it takes to achieve Section 4(f) 
approval.
    The NPRM did not stipulate any specific comment period or 
coordination process when programmatic Section 4(f) evaluations are 
used. When applied to individual projects each of the five approved 
programmatic ev