Environmental Impact and Related Procedures, 12518-12530 [E9-6144]

Agencies

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

[Federal Register Volume 74, Number 55 (Tuesday, March 24, 2009)]
[Rules and Regulations]
[Pages 12518-12530]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-6144]



[[Page 12517]]

-----------------------------------------------------------------------

Part III





Department of Transportation





-----------------------------------------------------------------------



 Federal Highway Administration



-----------------------------------------------------------------------



23 CFR Part 771



Federal Transit Administration



-----------------------------------------------------------------------

49 CFR Part 622



Environmental Impact and Related Procedures; Final Rule

Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules 
and Regulations

[[Page 12518]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 771

Federal Transit Administration

49 CFR Part 622

[Docket No. FTA-2006-26604]
RIN 2132-AA87


Environmental Impact and Related Procedures

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Highway Administration (FHWA) and Federal Transit 
Administration (FTA) issue this final rule that modifies our 
regulations to make certain changes mandated by the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU). SAFETEA-LU prescribes additional requirements for 
environmental review and project decisionmaking that are not 
appropriately reflected in the existing FHWA-FTA joint National 
Environmental Policy Act (NEPA) procedures. Additionally, this final 
rule creates certain new categorical exclusions (CE) allowing proposed 
actions to proceed without an environmental assessment (EA) or 
environmental impact statement (EIS), and makes other minor changes to 
the joint procedures in order to improve the description of the 
procedures or to provide clarification with respect to the 
interpretation of certain provisions.

DATES: Effective Date: April 23, 2009.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Carol Braegelmann, 
Office of Project Development and Environmental Review (HEPE), (202) 
366-1701, or Janet Myers, Office of Chief Counsel (HCC), (202) 366-
2019. For FTA: Joseph Ossi, Office of Planning and Environment (TPE), 
(202) 366-1613, or Christopher Van Wyk, Office of Chief Counsel, (202) 
366-1733. Both the FHWA and FTA are located at 1200 New Jersey Avenue, 
SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 
p.m., EST, for the FHWA, and 9 a.m. to 5:30 p.m., EST, for FTA, Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    On August 10, 2005, President Bush signed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144). Section 6002 of SAFETEA-
LU created 23 U.S.C. 139, which contains new requirements that the FHWA 
and FTA must meet in complying with NEPA (42 U.S.C. 4321-4347). In 
addition to these new requirements, section 6010 of SAFETEA-LU requires 
the FHWA and FTA to initiate rulemaking to establish, to the extent 
appropriate, CEs for activities that support the deployment of 
intelligent transportation infrastructure and systems.
    The FHWA and FTA published a notice of proposed rulemaking (NPRM) 
on August 7, 2007, at 72 FR 44038. The NPRM requested comments on 
certain changes proposed to codify changes mandated by 23 U.S.C. 139 in 
the joint NEPA procedures and to eliminate confusion or inconsistencies 
that could otherwise result. The NPRM also proposed several new CEs for 
projects that meet the criteria for categorical exclusion from NEPA 
review. Interested parties were invited to submit comments. The FHWA 
and FTA also invited interested parties to submit written evidence 
about particular congestion management activities that they believe 
qualify as CEs and specific regulatory language that might be used in 
one or more CEs for these types of projects. That input is being used 
to develop proposed CEs that will be published for public review and 
comment. The NPRM also proposed other minor changes to the joint 
procedures in order to improve the description of the procedures or to 
provide clarification with respect to the interpretation of certain 
provisions.

Profile of Respondents

    The docket received a total of 15 responses to the NPRM. Out of the 
15 responses, 5 were submitted by State Departments of Transportation 
(DOT), 6 by transit agencies, 3 by trade associations, and 1 by a 
metropolitan planning organization.

General Comments

    Two commenters suggested that the FHWA and FTA replace the terms 
``Urban Mass Transportation Administration'' and ``UMTA'' with the 
terms ``Federal Transit Administration'' and ``FTA'' throughout the 
entire rule, including the sections where no revisions were proposed. 
By final rule published on May 9, 2005, the FHWA and FTA already 
corrected the name of the FTA from its former name, the Urban Mass 
Transportation Administration (UMTA), in 23 CFR part 771 and 49 CFR 
part 622. See, Environmental Impact and Related Procedures, 70 FR 24468 
(May 9, 2005) (codified at 23 CFR part 771 and 49 CFR part 622). The 
current Code of Federal Regulations and the Federal Register are 
available online from GPO Access, a service of the U.S. Government 
Printing Office, at https://www.gpoaccess.gov/.
    Numerous commenters expressed general support for the NPRM, 
although one commenter expressed concern that a substantial rewrite of 
the NEPA regulation may be delayed due to this rulemaking, which has a 
more limited scope. Along those same lines, two commenters suggested 
that the FHWA and FTA incorporate all mandatory elements of the new 
review process under 23 U.S.C. 139, but another commenter disagreed and 
supported the decision not to incorporate all elements as part of this 
rulemaking. Finally, one commenter suggested that this rulemaking is 
unnecessary, and that, when the FHWA and FTA decide to propose more 
significant revisions to 23 CFR part 771, the focus be on eliminating 
regulation and substituting guidance in its place. The commenter also 
suggested that inconsistencies between 23 U.S.C. 139 and 23 CFR part 
771 would best be remedied by eliminating the regulation.
    The FHWA and FTA note the positive comments received and agree with 
the other commenters that a more substantial revision to the NEPA 
regulation is desirable. A more limited rulemaking was first necessary 
to avoid extending any confusion that would arise from conflicts 
between the NEPA regulation and the new requirements of 23 U.S.C. 139. 
The FHWA and FTA also believe that eliminating 23 CFR part 771 would 
take away the regulatory basis for many of the provisions that both 
agencies use as part of the NEPA process. Substituting guidance in 
place of these regulations would eliminate a major factor in providing 
the needed consistency among FHWA and FTA field locations and among 
applicants. Further, the FHWA and FTA would no longer have the benefit 
of NEPA provisions with the force of law if guidance were substituted. 
This would likely hamper efforts to defend environmental litigation 
claims.
    Note that the FHWA and FTA made one change with respect to the 
phrase ``environmental document,'' which was used in the NPRM but 
replaced with ``environmental review document(s)'' in the preamble 
discussion and regulatory text of this final rule. The FHWA and FTA use 
``environmental review document(s)'' to include documents such as 
Section 4(f) evaluations and other documents that would not be

[[Page 12519]]

covered by the definition of ``environmental document'' in the Council 
on Environmental Quality (CEQ) NEPA regulations at 40 CFR 1508.10. In 
two places in the existing regulation, the term ``NEPA document'' was 
replaced with ``environmental review document'' for consistency with 
the other references.

Section-by-Section Analysis of Specific Comments

    In this preamble, all references to the provisions of 23 CFR part 
771 refer to the final rule as presented herein, unless this notice 
specifically indicates otherwise. No comments were received with 
respect to 23 CFR 771.101, 771.105, 771.131, and 771.133. The FHWA and 
FTA have previously removed section 771.135 through the issuance of a 
final rule on March 12, 2008, creating a new 23 CFR part 774 that deals 
with Section 4(f) matters.

Section 771.107 Definitions

    Several commenters suggested that the terms ``participating 
agency,'' ``project sponsor,'' and ``cooperating agency'' be defined in 
part 771. They argue that the terms are used throughout part 771, and a 
person should not have to go to SAFETEA-LU or elsewhere to look up the 
definitions. The FHWA and FTA agree that ``participating agency'' and 
``project sponsor'' should be defined and have provided the 
definitions. However, ``cooperating agency'' is defined in the CEQ NEPA 
regulations at 40 CFR 1508.5 and 1501.6. Because part 771 is 
supplemental to the CEQ regulation and the FHWA and FTA expect the two 
regulations to be used together, the FHWA and FTA have not repeated the 
definition of ``cooperating agency'' in part 771.
    One commenter asserted that the stipulation that a lead agency be a 
direct recipient of Federal funds originated in guidance, not 
legislation. The commenter specifically notes that FHWA guidance, 
rather than legislation, requires direct recipients, not sub-
recipients, be joint lead agencies with the Administration.\1\ The FHWA 
believes that its interpretation of the intent of the lead agency 
provision in 23 U.S.C. 139 is appropriate in light of the need to give 
effect to other statutes, regulations, and policies applicable to the 
Federal-aid highway program.
---------------------------------------------------------------------------

    \1\ Section 774.14 of this final rule defines ``Administration'' 
as ``FHWA or FTA, whichever is the designated Federal lead agency 
for the proposed action. 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, or 327, or other applicable 
law''. All references to the ``Administration'' in the preamble to 
this final rule are consistent with this definition.
---------------------------------------------------------------------------

    One commenter expressed concern regarding the definition of 
``Administration.'' The concern is that, if FTA were to assign 
responsibility for CE determinations to a State in accordance with 
SAFETEA-LU section 6004 (codified at 23 U.S.C. 326), then a transit 
agency in that State would be forced to obtain project approvals not 
from FTA but from a State agency, probably the State DOT, that may be 
unfamiliar with the transit agency's programs. FTA agrees and will 
continue to provide CE determinations for any transit agency that 
prefers to continue working with FTA. FTA will provide affected transit 
agencies an opportunity to comment on this issue during the development 
of any section 6004 Memorandum of Understanding (MOU) to which FTA is 
party. If FTA were to sign a section 6004 MOU, that MOU would 
explicitly exclude the projects of any transit agency that prefers to 
work with FTA. However, the State DOT is the grant recipient for 
several FTA programs, the largest of which is the Non-Urbanized Area 
Formula Program, and these State-administered transit programs would be 
the primary candidates for assignment of CE approvals by FTA to the 
State. The definition of ``Administration'' is consistent with FTA's 
position on its assignment of CE responsibilities to States, as 
outlined above. Section 8 of the FHWA's ``Questions and Answers on the 
Implementation of SAFETEA-LU Section 6004 (State Assumption of 
Responsibility for Categorical Exclusions),'' which is located at 
https://www.fhwa.dot.gov/hep/6004qa.htm, addresses transit-related 
considerations in more detail.
    The regulation refers to ``federally-recognized Indian tribal 
governmental units'' in paragraphs (f), (h), and (i) of section 
771.107, and in paragraph (c)(3) of section 771.109. This terminology 
is being used because it is consistent with the definition of 
``agency'' in 23 U.S.C. 139(a)(1). The change is intended to provide 
internal consistency within part 771 in the references to Native 
American tribes and consistency between part 771 and 23 U.S.C. 139. It 
is not intended to differentiate the references to Native American 
tribes in part 771 from other references to Native American tribes in 
other regulations or executive orders.

Section 771.109 Applicability and Responsibilities

    Several commenters stated that when a State DOT passes FHWA funds 
through to a turnpike authority or to a local or tribal governmental 
unit, the sub-recipient of the FHWA funds should be the joint lead 
agency with the FHWA and should be responsible for, among other things, 
the environmental review documents and mitigation commitments. As 
explained above, the FHWA and FTA believe that it is appropriate to 
require the direct recipients of Federal funds to be responsible for 
adherence to Federal requirements. For the FHWA, the direct recipient 
typically is the State DOT. This interpretation is consistent with FHWA 
statutes, regulations, and policy. The local or tribal governmental 
unit or turnpike authority may also be a joint lead agency, but is not 
required to be. The FHWA and FTA have issued ``SAFETEA-LU Environmental 
Review Process: Final Guidance,'' November 15, 2006, which discusses 
the provisions regarding lead agencies in greater detail.\2\ The FHWA 
expects the role of the State DOT, as a funding agency, to be similar 
to the oversight role played by the FHWA. The State DOT would be 
responsible for the content of the environmental review documents and 
for fulfilling mitigation commitments in the same way that the FHWA is 
responsible, but the State DOT may not have the same day-to-day role 
that it has when the project is one that the State DOT has planned and 
is developing.
---------------------------------------------------------------------------

    \2\ The final guidance is available at https://www.fhwa.dot.gov 
or in hard copy upon request.
---------------------------------------------------------------------------

    One commenter asserted that the FHWA and FTA should define ``lead 
agency'' so that the lead agency maintains maximum control over 
participating and cooperating agencies. The commenter said that the 
lead agency should have the authority to set deadlines and schedules 
and to decide which agencies to include in the review process. The FHWA 
and FTA have not changed the regulatory language in response to this 
comment. The lead agencies have the authority to set schedules and 
deadlines in accordance with 23 U.S.C. 139 and other applicable laws. 
When 23 U.S.C. 139 applies, the law clearly requires that all agencies 
with an interest be invited to participate. However, the lead agencies 
are responsible for the coordination plan, which can specify the nature 
and timing of the interaction with the participating agencies 
(including any cooperating agencies) and can provide the vehicle by 
which the lead agencies exercise control over the interaction with 
other agencies. As the coordination plan is being developed, the lead 
agencies should consult with the participating agencies on the

[[Page 12520]]

identification of milestones in the NEPA process at which agency 
interaction would occur, and on the nature of that interaction. Such 
consultation is appropriate because key elements of the coordination 
plan may set expectations that require a commitment of resources by the 
participating agencies. The previously referenced FHWA and FTA 
guidance, ``SAFETEA-LU Environmental Review Process: Final Guidance,'' 
November 15, 2006, discusses participating agencies and coordination 
plans in greater detail.

Section 771.111 Early Coordination, Public Involvement, and Project 
Development

    One commenter pointed out that the NPRM would give two sections of 
the regulation the same name. Our intent was not to change any of the 
existing section headings. The error has been corrected in the final 
rule.
    Several commenters pointed out that the regulatory provisions on 
linking the transportation planning and NEPA processes that appear in 
23 CFR 450.212 and 450.318 apply as much to these environmental impact 
procedures in part 771 as to the planning procedures in 23 CFR part 
450. These commenters suggested that section 771.111 directly address 
the use of planning information and results in environmental review 
documents. The FHWA and FTA decline to reiterate the provisions of 
sections 450.212 and 450.318 in this rule. Not only would such 
reiteration be redundant, but it would require the insertion of major, 
new regulatory text that has not been subjected to review and comment. 
The FHWA and FTA have added in paragraph (a)(2) of section 771.111 a 
more explicit reference to the relevant sections of the planning 
regulations. A reference has also been added to paragraph (b) of 
section 771.123.
    One commenter noted that sections 771.109 and 771.111 appear to 
encourage almost any public agency to become a lead agency. The FHWA 
and FTA disagree. The proposed language conforms to 23 U.S.C. 139 and 
the CEQ regulations, which specify which agencies may be joint lead 
agencies.
    One commenter suggested that the sentences dealing with cooperating 
agencies in paragraph (c) of section 771.111 belong more appropriately 
in section 771.109. The FHWA and FTA do not agree. Section 771.109 
deals with the roles and responsibilities of the lead agencies, 
applicants, and project sponsors, i.e., the primary agencies involved 
in advancing the project. Section 771.111 addresses the coordination of 
the lead agencies with other agencies, including participating and 
cooperating agencies, and the public. The sentences in paragraph (c) of 
section 771.111 regarding cooperating agencies are appropriately 
located in the section discussing coordination.
    One commenter suggested that the FHWA and FTA amend paragraph (c) 
of section 771.111, a paragraph to which no changes were proposed in 
the NPRM, to reflect that State, local, and tribal governmental units 
can now be joint lead agencies with the Administration. The commenter 
offered the following proposed language for paragraph (c) of section 
771.111: ``When FHWA and FTA are involved in the development of joint 
projects, or when FHWA or FTA acts as a joint lead agency with another 
Federal agency, any state or local governmental entity, or a federally-
recognized Indian tribe, a mutually acceptable process will be 
established on a case-by-case basis.'' The FHWA and FTA disagree with 
this comment and decline to accept the commenter's proposed language. 
Paragraph (c) of section 771.111 is intended to apply only when both 
the FHWA and FTA are involved in the development of a project or when 
the FHWA or FTA acts as a joint lead agency with another ``Federal 
agency,'' as defined in the CEQ regulation at 40 CFR 1508.12. The 
provisions of paragraph (c) in section 771.111 are intended to provide 
a smooth environmental review process despite programmatic differences 
between the FHWA and FTA or differences between part 771 and another 
Federal agency's NEPA procedures. It is neither necessary nor desirable 
to expand the range of entities covered by paragraph (c) of section 
771.111 to include entities that are not Federal agencies. When the 
FHWA or FTA is the only Federal lead agency, the procedures detailed in 
23 U.S.C. 139 (as applicable) and 23 CFR part 771 apply and 
reconciliation of those procedures with any other agency's NEPA 
procedures is not necessary.
    Also, in order to make clear that paragraph (c) of section 771.111 
applies in any instance in which both the FHWA and FTA are involved in 
the development of a project and not to some more limited range of 
``joint projects,'' the FHWA and FTA have changed paragraph (c) of 
section 771.111 in the final rule to read as follows: ``When both FHWA 
and FTA are involved in the development of a project, or when FHWA or 
FTA acts as a joint lead agency with another Federal agency, a mutually 
acceptable process will be established on a case-by-case basis.''
    One commenter requested that the FHWA and FTA change ``may'' to 
``should'' in paragraph (c)(3) of section 771.109 and paragraph (d) of 
section 771.111, where the rule discusses early agency coordination and 
public involvement activities. The commenter suggested that the FHWA 
and FTA make it clear that EAs and EISs require opportunities for 
agency and public involvement. The FHWA and FTA did not adopt this 
comment and the NPRM wording is retained in the final rule. In 
paragraph (c)(2) of section 771.109, the rule discusses the ability of 
the Administration to extend joint lead agency status to entities that 
do not qualify as mandatory joint lead agencies under 23 U.S.C. 139(c). 
The authority to invite other entities to serve as joint lead agencies 
is derived from the CEQ regulation (40 CFR 1501.5 and 1506.2), and is 
expressed in that regulation as a discretionary action. The FHWA and 
FTA believe that the decision whether to confer joint lead agency 
status on an entity has many potential implications and, thus, it 
should remain discretionary so that the Administration and any 
mandatory joint lead agency can exercise their judgment on a case-by-
case basis. In paragraph (d) of section 771.111, the rule distinguishes 
between those situations where the lead agencies must invite another 
agency to be a participating or cooperating agency and those situations 
where such invitations are discretionary. The distinctions in the rule 
mirror those contained in 23 U.S.C. 139 and in the CEQ regulation (40 
CFR 1501.6 and 1508.5). The FHWA and FTA guidance, ``SAFETEA-LU 
Environmental Review Process: Final Guidance,'' November 15, 2006, 
discusses cooperating and participating agencies in greater detail.
    Two commenters requested that paragraph (d) of section 771.111 
indicate that the requirement to invite interested agencies to 
participate applies only to an EIS for which the Notice of Intent (NOI) 
appeared in the Federal Register after SAFETEA-LU enactment on August 
10, 2005. The FHWA and FTA are not making the requested change because 
such a statement would not be accurate. At the discretion of the FHWA 
and FTA, the environmental review process outlined in 23 U.S.C. 139 may 
be applied to EAs or CEs, or to projects initiated prior to SAFETEA-LU 
enactment under certain circumstances when the project is re-scoped or 
reassessed. The FHWA and FTA carefully chose the language in paragraph 
(d) of section 771.111 to cover those cases as well as the cases 
offered by the commenter. Details are

[[Page 12521]]

provided in the FHWA/FTA guidance on 23 U.S.C. 139 titled ``SAFETEA-LU 
Environmental Review Process Final Guidance,'' November 15, 2006, which 
is available at https://www.fhwa.dot.gov or in hard copy upon request.
    Two commenters suggest that the word ``entitled'' in footnote 4 to 
the proposed paragraph (d) of section 771.111 be corrected to 
``titled,'' reflecting the use of ``titled'' elsewhere in the proposed 
regulatory text. No difference in meaning was intended, and the 
suggested change has been made for stylistic consistency.
    Although the NPRM did not propose to change the last sentence of 
paragraph (d) of section 711.111, two commenters requested that the 
FHWA and FTA define or reference the definition of the phrase 
``agencies with jurisdiction by law.'' The phrase ``jurisdiction by 
law'' is defined in the CEQ regulation at 40 CFR 1508.15. Because 23 
CFR part 771 supplements the CEQ regulation and because the FHWA and 
FTA expect 23 CFR part 771 to be used together with the CEQ regulation, 
the definition of ``jurisdiction by law'' is not repeated here. 
Additional guidance can be found in the ``Forty Most Frequently Asked 
Questions Concerning CEQ's National Environmental Policy Act 
Regulations'' (March 23, 1981); the memorandum for the heads of Federal 
agencies entitled ``Cooperating Agencies in Implementing the Procedural 
Requirements of the National Environmental Policy Act'' and its 
Attachment I, ``Factors for Determining Whether to Invite, Decline or 
End Cooperating Agency Status'' (January 30, 2002); and the memorandum 
for heads of Federal agencies entitled ``Designation of Non-Federal 
Agencies to be Cooperating Agencies in Implementing the Procedural 
Requirements of the National Environmental Policy Act'' (July 28, 
1999). These documents can be obtained from the CEQ Web site at https://www.nepa.gov/regs/guidance.html.
    Two commenters requested that the FHWA and FTA add a footnote 
referencing the FHWA/FTA ``Guidance for Determining De Minimis Impacts 
to Section 4(f) Resources,'' dated December 13, 2005, to section 
771.111. The FHWA and FTA issued a Section 4(f) final rule (23 CFR part 
774) on March 12, 2008, at 73 FR 13367, that also addresses de minimis 
impact determinations and should be included in the footnote. The 
logical location for the footnote that the commenters requested is 
paragraph (h)(2)(viii) of section 771.111. The FHWA and FTA have added 
a new footnote 5 to the regulatory text of paragraph (h)(2)(viii) of 
section 771.111 in response to these comments.

Section 771.113 Timing of Administration Activities

    One commenter requested the FHWA and FTA consider further revisions 
to paragraph (a) of section 771.113 to increase flexibility on actions 
that can be taken during the NEPA process. Because the scope of this 
rulemaking is limited to making required changes resulting from law and 
making minor clarifications to the existing regulations, the FHWA and 
FTA decline to deliberate the more substantive changes requested by 
this comment at this time. The FHWA and FTA will consider requests for 
additional, substantive changes in a future rulemaking.
    Commenters suggested that the first sentence of paragraph (a) of 
section 771.113 should, for internal consistency, refer to the ``work 
necessary to complete a FONSI [Finding of No Significant Impact] or ROD 
[Record of Decision]'' rather than a ``FONSI or EIS.'' The suggested 
change has been made and the regulation now references the decision 
documents in both cases.
    The list of exceptions to the limitation on actions presented in 
paragraph (a) of section 771.113 has grown so that the paragraph is no 
longer understandable. FHWA and FTA concluded that the provision should 
be reorganized for clarity and to accommodate the addition of new 
exceptions pursuant to SAFETEA-LU. Accordingly, FHWA and FTA have added 
a new paragraph (d) to section 771.113 to list the exceptions, and to 
reference related FHWA regulations that apply only to the FHWA program. 
The new exceptions are the acquisition of railroad right-of-way in 
accordance with 49 U.S.C. 5324(c) and the acquisition of transit 
rolling stock in accordance with 49 U.S.C. 5309(h)(6), which provisions 
were added or modified by SAFETEA-LU. The exceptions for hardship and 
protective acquisition of right-of-way remain and are also listed in 
paragraph (d) of section 771.113.

Section 771.115 Classes of Actions

    The only revision made by the final rule is to replace the word 
``cumulative'' with the word ``cumulatively'' in order to fix a 
grammatical error.

Section 771.117 Categorical Exclusions

    The FHWA and FTA received some general support for adding a CE for 
Intelligent Transportation Systems (ITS) activities. One commenter 
expressed support for adding activities that support the deployment of 
ITS to the list of CEs in paragraph 771.117(c)(21) but expressed 
concern that the proposed CE was written too narrowly. The commenter 
specifically mentioned transit passenger information technology and 
transit security systems as possibly not covered by the new CE. In 
accordance with section 6010 of SAFETEA-LU, the FHWA and FTA worded the 
proposed CE for ITS to conform as closely as possible to the statutory 
definitions in SAFETEA-LU section 5310. Nevertheless, the FHWA and FTA 
agree that the description of ITS purposes mentioned in the proposed CE 
in the NPRM, i.e., to improve efficiency or safety, is not intended to 
exclude ITS activities that have security purposes or that provide 
passenger convenience. Therefore, to avoid potential misinterpretation, 
the FHWA and FTA have added the security and passenger convenience to 
the purposes that may be served by an ITS system that qualifies as a 
CE.
    The same commenter also proposed that additional security projects, 
that cannot be characterized as ITS projects, such as the construction 
of a communications center, should also be categorically excluded if it 
is located on existing transportation right-of-way. The FHWA and FTA 
have not acted on this suggestion because many security projects, if 
appropriately sited, would be covered by existing CEs, and a future 
rulemaking that considers this proposal would have the benefit of more 
experience with such projects.
    The commenter also suggested that the Department of Homeland 
Security (DHS) and the U.S. Department of Transportation (U.S. DOT) 
should have a single list of CEs for transportation security projects. 
The FHWA and FTA have not acted on this suggestion. The NEPA 
regulations of the CEQ require each Federal agency to have its own 
implementing procedures specific to its program. As a result, DHS and 
the two U.S. DOT agencies [FTA and FHWA] have their own separate NEPA 
procedures.
    One commenter suggested the specific mention of ``radio 
communications systems'' in the CE for ITS activities. In response, 
FHWA and FTA have added ``radio communications systems'' to the ITS 
examples included in the regulatory text.
    One commenter suggested that the new CE for ITS equipment should 
provide specific examples of transit-related ITS projects. The list 
might include items such as automatic vehicle locators, automated 
passenger counters, computer-aided dispatching systems, radio 
communication equipment, and

[[Page 12522]]

security equipment including cameras in facilities and on buses. The 
FHWA and FTA agree that the commenter's list gives prime examples of 
ITS projects that would be covered by the new CE and have added the 
examples to the regulatory language of this new CE.
    The NPRM announced that the FHWA and FTA might designate one or 
more new CEs for projects that reduce transportation system congestion. 
The NPRM invited comments on this proposed designation. The FHWA and 
FTA received eight comments, some supporting the designation of a CE, 
and some expressing concerns. As noted below, the FHWA and FTA plan to 
publish a Supplemental Notice of Proposed Rulemaking (SNPRM) so that 
the public has the benefit of commenting on the actual proposed 
language for such a CE before the agencies decide whether to finalize 
it in regulation.
    Several commenters expressed support for a new CE. Some indicated 
that the conversion of existing high occupancy vehicle (HOV) or 
general-purpose highway lanes into high occupancy/toll (HOT) lanes \3\ 
or standard toll lanes can be accomplished with minimal construction 
activity beyond the existing highway facility and should qualify as a 
CE. Two commenters proposed wording for a new CE that would read: 
``Conversion of an existing general use lane to an HOV/HOT [High 
Occupancy Vehicle/High Occupancy Toll] or other toll lane and/or other 
value pricing concept, along with supporting improvements which require 
no or minimal right-of-way (less than 1 acre) and result in less than 1 
acre of impact to aquatic resource.''
---------------------------------------------------------------------------

    \3\ An HOV lane, sometimes called a carpool lane, is a lane 
reserved for the use of carpools, vanpools and buses. HOV lanes 
usually are located next to the regular, unrestricted (``general 
purpose'') lanes. HOV lanes enable those who carpool or ride the bus 
to bypass the traffic in the adjacent, unrestricted lanes. HOT lanes 
are limited-access, normally barrier-separated highway lanes that 
provide free or reduced cost access to qualifying HOVs and also 
provide access to other paying vehicles not meeting passenger 
occupancy requirements. By using price and occupancy restrictions to 
manage the number of vehicles traveling on them, HOT lanes maintain 
volumes consistent with non-congested levels of service during peak 
travel periods. HOT lanes utilize sophisticated electronic toll 
collection and traffic information systems that also make variable, 
real-time toll pricing of non-HOV vehicles possible. For more 
detailed information on HOV lanes, see https://ops.fhwa.dot.gov/freewaymgmt/hov.htm and on HOT lanes, see https://www.itsdocs.fhwa.dot.gov//JPODOCS/REPTS_TE//13668.html.
---------------------------------------------------------------------------

    A few commenters expressed concerns regarding the potential some 
congestion reduction projects might have for adverse environmental 
impacts that might not meet CE criteria, especially where congestion 
reduction elements are part of a larger project. Some of those 
commenters viewed this risk as a basis for limiting the scope of a 
designated CE. Several commenters correctly noted that where congestion 
management measures are component parts of larger projects, the 
characteristics of the larger project often drive the appropriate class 
of action under NEPA. Two commenters expressed equity concerns about 
the impact of toll charges on low-income drivers.
    After carefully considering all of the comments on this topic, the 
FHWA and FTA have decided that public comment on the actual language of 
a CE would be beneficial prior to finalizing it. Thus, the FHWA and FTA 
will publish an SNPRM that includes language for a specific CE on 
projects that reduce congestion on the nation's highways. After 
receiving public comment, the FHWA and FTA would then finalize a CE, if 
appropriate, with another final rule at that time.
    This decision to defer action on this CE until after further public 
comment in no way limits the ability of the FHWA or FTA to use their 
authority under 23 CFR 771.117(c) and (d) to determine that congestion 
management projects meet CE criteria. The FHWA and FTA will continue to 
utilize that authority for appropriate congestion management 
projects.\4\
---------------------------------------------------------------------------

    \4\ Not all congestion relief projects authorized under Federal 
law involve a discretionary decision or approval by the FHWA or FTA. 
If there is no discretionary decision, then NEPA does not apply. For 
example, the conversion of an HOV lane to a HOT lane pursuant to 23 
U.S.C. 166(b)(4) does not, in and of itself, require approval by the 
FHWA. However, if the project also involves Federal-aid highway 
funding, the modification of prior FHWA-State agreements affecting 
the facility, or some other type of action that does require a 
discretionary FHWA action, then NEPA would apply. For further 
information on the role of the FHWA in HOV-to-HOT conversion 
projects, see Federal-aid Highway Program Guidance on High Occupancy 
Vehicle (HOV) Lanes, June 2008, Federal Highway Administration at 
https://www.fhwa.dot.gov/operations/hovguide01.htm.
---------------------------------------------------------------------------

    One commenter appears to have misinterpreted the revised CE at 
paragraph (c)(5) of section 771.117, which has to do with the transfer 
of Federal lands. The misunderstanding may result from the term 
``Federal lands pursuant to 23 U.S.C. 107(d) or 317.'' The cited 
statutory provisions refer to lands ``owned by the United States.'' The 
term does not include real property owned by a State or transit agency 
in which there is Federal financial interest resulting from the use of 
FHWA or FTA financial assistance to purchase the land. These lands are 
not ``Federal lands'' within the meaning of this CE.
    Two commenters requested a wording change in paragraph (d)(12)(ii) 
of section 771.117. One commenter wished to emphasize that, at the time 
of a protective acquisition, it usually is not known whether a property 
actually will be required for a project. The second commenter stated 
that the proposed change would provide funding recipients with 
flexibility. Specifically, both commenters requested a word change in 
the first sentence from ``is'' to ``may be.'' The FHWA and FTA agree 
that the change would be helpful and have changed the first sentence of 
paragraph (d)(12)(ii) of section 771.117 to ``Protective acquisition is 
done to prevent imminent development of a parcel which may be needed 
for a proposed transportation corridor or site.''
    Three commenters proposed removing the last sentence of the 
description of a protective acquisition that would qualify as a CE. The 
proposal would allow protective acquisitions solely to avoid increases 
in the cost of real estate. Another commenter proposed that land 
acquisition solely to control the cost of right-of-way be allowed under 
the following conditions: (1) That the use of the acquired property not 
be changed prior to completion of the NEPA review of the project that 
would use the property; (2) that the acquisition not prejudice the 
consideration of alternatives to the project that would use the 
property; and (3) that the requirements of the Uniform Relocation Act 
be followed in acquiring the property. The suggested revisions would 
permit protective acquisitions based on economic reasons alone. The 
regulation presently permits consideration of cost as an element of 
justification, but not as the sole reason for a protective acquisition. 
The proposed changes, which would substantially alter existing 
limitations in the FHWA and FTA acquisition programs, have not been 
subjected to review and comment. For that reason, the FHWA and FTA 
decline to make the suggested revisions. Another commenter opposed the 
CEs for protective and hardship acquisitions. This commenter said that 
the project sponsor should be working with the local governmental 
entity that regulates land use to preserve the transportation corridor 
through overlay zoning or other land use controls under State or local 
jurisdiction. The commenter felt that no land should be purchased prior 
to completion of the NEPA review of the project that would use the 
land. The FHWA and FTA disagree. These exceptions are allowed under the

[[Page 12523]]

existing regulation and are intended for limited use when an 
extenuating circumstance exists, such as imminent development or 
hardship on the existing owner. The land-use methods proposed by the 
commenter would not accomplish the purposes served by the present 
regulation.
    Many commenters proposed additional changes to the CE for, and 
description of, hardship and protective acquisition. The FHWA and FTA 
did not propose, and are not making, any additional changes to the CE 
for hardship and protective acquisition. The description of the terms 
hardship and protective acquisition formerly appeared in footnotes and 
now have been moved, verbatim, into the regulatory text, with the one 
very minor exception discussed above. This change in the placement of 
the text on these CEs was made at the request of the Office of the 
Federal Register to conform with current standards for the format of 
regulations.
    Several commenters expressed support for the proposal to add a CE 
for the acquisition of pre-existing railroad right-of-way pursuant to 
49 U.S.C. 5324(c). Since the time that FTA proposed this provision in 
the NPRM, FTA has become aware of the need to review a project 
sponsor's plans to purchase right-of-way under this CE to ensure that 
the statutory provision is implemented properly. Further, the CE 
concerns early purchase of right-of-way and is therefore similar to the 
CE for a hardship or protective purchase. The railroad right-of-way CE 
logically belongs in the same part of the CE regulation as the other 
early purchase CE. As a result, FTA has decided to list the CE for the 
acquisition of pre-existing railroad right-of-way in paragraph (d) of 
section 771.117.
    One commenter suggested that the FHWA and FTA consider a new CE for 
transit projects that alleviate urban congestion, such as bus rapid 
transit (BRT) operating on current bus routes or on new routes that are 
well-integrated into the transit network and have minimal negative 
impacts. The FHWA and FTA are not adding the proposed CE because BRT 
projects located on existing streets with stations on sidewalks or 
other public right-of-way would be covered by existing CEs which take 
into account that there are no unusual circumstances indicating that a 
significant impact could ensue. Once the FHWA and FTA have a larger 
body of experience with a greater variety of BRT projects, we will 
consider updating our regulations as necessary.
    One commenter suggested that rehabilitation of an existing transit 
station should be moved from the list of examples in paragraph (d) of 
section 771.117 that require documentation to show that the project's 
design or siting is proper and that no unusual circumstances exist, to 
the list of automatic CEs in paragraph (c) of section 771.117 that 
require no documentation other than a project description to show that 
the CE applies. The FHWA and FTA note that many such transit stations 
in older subway systems are on or are eligible for the National 
Register of Historic Places, or have elements such as antique tile 
walls that so qualify. Therefore, the FHWA and FTA believe that it is 
appropriate to require documentation that addresses not only the CE 
requirements but also any Section 106 or Section 4(f) implications of 
the rehabilitation. Therefore, transit station rehabilitation will 
remain in the list of CE examples in paragraph (d) of section 771.117. 
The FHWA and FTA may reconsider this decision in a future rulemaking 
when the suggested revision, which may be of high public interest, will 
be subject to an opportunity for public comment.
    One commenter proposed that the CE lists be expanded to include 
transit activities that became eligible for FTA funding after 1987, 
when the last major revision of 23 CFR part 771 occurred. The CEs 
suggested include preventive maintenance, as defined in Federal transit 
law, ADA-required transit services, and park-and-ride lots not located 
on the fringe of a transportation corridor. The comment also 
recommended moving certain CEs in the list of examples in paragraph (d) 
of section 771.117 requiring documentation to show that the CE 
conditions are met, to the list of automatic CEs in paragraph (c) of 
section 771.117. FTA agrees with this comment in concept, but has not 
acted on it in this rulemaking. Although the regulation would be 
cleaner if it explicitly listed all of the activities that FTA commonly 
funds that qualify as CEs, the commenter correctly points out that 
these activities are generally covered by paragraph (d) of section 
771.117. FTA did not provide substantiation of the proposed CEs in the 
NPRM, and as a result, the proposed CEs have not been subjected to 
public review and comment. The FHWA and FTA believe another, more 
comprehensive rulemaking would be necessary to address the proposed 
changes.
    One commenter suggested a number of changes to section 771.117, 
which governs categorical exclusions. One suggestion was that the FHWA 
and FTA abandon the creation of new categories of CEs in favor of 
allowing recipients to determine whether a project qualifies for CE 
status. The law places responsibility for NEPA compliance on the 
Secretary of Transportation and the agencies under the Secretary. The 
change requested by the commenter exceeds the two agencies' [FHWA and 
FTA] legal authority.
    One commenter suggested that the FHWA and FTA add a CE for a 
situation where a project affects an isolated wetland that is not 
within the regulatory jurisdiction of the U.S. Army Corps of Engineers. 
The applicability of other Federal laws, such as the Clean Water Act, 
is a consideration in determining the NEPA class of action, but it is 
only one of many considerations. Thus, the FHWA and FTA believe that 
establishing criteria under only one Federal law would not be 
appropriate and would not elicit consideration of the full magnitude 
and context of an action in accordance with NEPA.
    The same commenter suggested that the FHWA and FTA require the 
agencies to establish a deadline for CE completion. The FHWA and FTA 
believe that good project management practices include having and 
working towards a project schedule. However, the FHWA and FTA do not 
believe that embedding a deadline requirement in the regulation 
governing CEs is an appropriate mechanism to achieve that goal. A 
deadline could not be set without considering all of the individual 
project situations that factor into developing an appropriate schedule. 
Agencies are currently free to set and work towards a deadline. 
Further, any establishment of a deadline that would be binding on other 
Federal agencies must be accomplished through congressional action.
    Finally, the commenter indicated that the FHWA and FTA should 
create a preference for CEs over EAs and provide other clarifications 
concerning when a CE should be used instead of an EA. The FHWA and FTA 
disagree with the commenter. The present regulations in section 771.117 
provide an appropriate definition of what constitutes a CE and the 
standards for determining whether a project qualifies as a CE. Sections 
771.117 and 771.119, when read together with the CEQ regulation, define 
when an EA should be performed. The determination of the NEPA class of 
action applicable to a project is made based on the facts of the 
project, not the preference for one process or the other.
    Through an oversight, the NPRM failed to include asterisks at the 
end of the amendatory language for section 771.117. The FHWA and FTA 
did not, however, intend to delete paragraph (e)

[[Page 12524]]

of section 771.117, and the paragraph will remain unchanged by this 
final rule. The asterisks have been added to the amendatory language of 
this final rule to denote this.

Section 771.119 Environmental Assessments

    One commenter suggested that the FHWA and FTA explicitly encourage 
the use of the environmental review procedures detailed in 23 U.S.C. 
139 for EA projects. The FHWA and FTA agree that many of the procedures 
contained in 23 U.S.C. 139 could be beneficial to a project. Funding 
recipients may request the use of participating agency designations, 
scheduling, and other procedures similar to those established in 23 
U.S.C. 139 on any project. Consequently, the FHWA and FTA continue to 
believe that the application of the 23 U.S.C. 139 procedures to non-EIS 
projects is best determined on a case-by-case basis.
    Two commenters objected to the proposed deletion of the sentence in 
the existing regulation that applies only to FTA projects and that 
allows an applicant to make an EA available for public review and 
comment before FTA has reviewed and approved the EA for public 
inspection. The commenters suggested that the required FTA approval 
would delay projects unnecessarily. FTA disagrees. In FTA's experience, 
the release of an EA without an FTA review often results in an 
incomplete or insufficient document that fails to elicit meaningful 
public and interagency comment for NEPA purposes and cannot support a 
FONSI by FTA. This situation causes delays and duplication of effort 
when the EA must be corrected, re-advertised, and re-released for 
public comment. For an adequate EA, the time required for an FTA 
approval would generally be the same whether that review precedes the 
release of the EA or precedes the issuance of a FONSI. As proposed in 
the NPRM, FTA is deleting the sentence that formerly permitted an 
applicant to release an EA without FTA approval.

Section 771.123 Draft Environmental Impact Statements

    Several commenters suggested that paragraph (b) of section 771.123 
include ``purpose and need'' among the issues to be addressed during 
the scoping process. The FHWA and FTA agree and have made the suggested 
change. One of these commenters suggested that this paragraph also 
assert the primacy of the lead agencies in crafting the purpose and 
need and in determining the range of alternatives. The FHWA and FTA 
have not acted on this recommendation because it is appropriately dealt 
with in guidance. In 2003, CEQ issued a guidance letter, available at: 
https://www.nepa.gov/nepa/regs/CEQPurpose2.pdf, which states: ``In the 
case of a proposal intended to address transportation needs, joint lead 
or cooperating agencies should afford substantial deference to the DOT 
agency's articulation of purpose and need. 49 U.S.C. 101(b)(5).'' The 
letter recognizes that Federal agencies acting under their own 
authorizing legislation separate from NEPA may have independent 
responsibilities and concerns. Section 139 of Title 23, U.S. Code, 
states that the lead agencies determine the purpose and need and range 
of alternatives for any environmental document whose preparation is 
their responsibility. It does not override the statutory 
responsibilities of other Federal agencies, though it does establish a 
process that is intended to surface and resolve differences early. The 
regulatory assertion of primacy suggested by the commenter would not 
override other Federal laws.
    One commenter requested more flexibility or clarification regarding 
the role of a local agency in the development of an EIS. The FHWA and 
FTA look to the agencies that are the direct recipients of Federal 
funding to prepare environmental review documents under the oversight 
and supervision of the FHWA or FTA, as applicable. For the FHWA, this 
typically is the State DOT. For FTA, the direct recipient of funding 
typically is a metropolitan transit agency. In the case of the FHWA, 
the State DOT may work with local government agencies that are project 
sponsors, but the State DOT remains responsible to the FHWA for the 
environmental review documents. The relationship between the State DOT 
and the local agency in such cases is similar to the relationship 
between the FHWA and the State DOT. The State DOT must supervise, 
oversee, and independently evaluate the local agency's preparation of 
the environmental review documents. A local agency that is not a direct 
recipient of Federal funds may be a joint lead agency at the discretion 
of the required lead agencies in accordance with the provisions of 23 
U.S.C. 139(c)(2) and the CEQ regulation, and, as a joint lead agency, 
may prepare the EIS and other environmental review documents in 
accordance with those provisions.
    One commenter suggested that an applicant be required to file a 
declaration of its intention to build a project with the chief 
executive of all political subdivisions in which the action is located. 
The FHWA and FTA believe that the requirements of scoping and of 
identifying participating agencies and inviting their involvement are 
adequate in this regard and have not made the suggested change.
    FTA received one comment that supported the NPRM's proposal to 
delete the requirement for a locally preferred alternative report 
following the draft EIS. The final rule omits that requirement, as it 
is more appropriately addressed in the regulation that implements FTA's 
New Starts program at 49 CFR part 611.
    FTA also changed the terminology in paragraph (j) of section 
771.123 to ``major fixed guideway capital project'' to conform to 
current law. The new term is defined in Federal transit law at 49 
U.S.C. 5309(a)(3).

Section 771.125 Final Environmental Impact Statements

    The FHWA and FTA revised paragraph (a) of section 771.125 for 
consistency with SAFETEA-LU section 6002. In preparing a Final EIS, the 
responsibilities of the Administration under the former rule are now 
the responsibility of the lead agencies. The paragraph was revised to 
reflect this change.
    Two commenters suggested that paragraph (c)(1)(vi) of section 
771.125 in the NPRM, which provided that issues other than those listed 
could warrant review of an EIS by the FHWA or FTA headquarters, be 
deleted because it would lead to more Final EISs being reviewed in the 
FHWA or FTA headquarters office, resulting in unnecessary delays. The 
FHWA and FTA have removed the subject paragraph from the final rule, as 
requested, but for a different reason. The paragraph was redundant 
because the first sentence of paragraph (c)(1) of section 771.125 
accomplishes the same purpose, that of stating the ultimate authority 
of the FHWA and FTA headquarters offices over the NEPA process. The 
delegations of the authority to make NEPA decisions to the FHWA and FTA 
field offices does not absolve the FHWA and FTA Administrators of their 
responsibilities under NEPA and other environmental laws. The FHWA and 
FTA headquarters offices, under the direction of each respective 
Administrator, must retain the authority to review a Final EIS in 
headquarters before it is signed, whenever the Administrator deems it 
appropriate. Without the addition of paragraph (c)(1)(vi) of section 
771.125, as was proposed in the NPRM, paragraph (c)(1) of section 
771.125 remains unchanged.

[[Page 12525]]

    FTA proposed in the NPRM to delete paragraph (c)(3) of section 
771.125 because the requirement was considered perfunctory due to the 
increase in size of the New Starts program and because the list of 
reasons in paragraph (c)(1) of section 771.125 already accomplishes 
this purpose. No comment was received on this proposed change, so the 
paragraph is deleted in this final rule as proposed in the NPRM.
    One commenter suggested that the FHWA and FTA revise the regulation 
at section 771.125 on Final EISs to require that a Final EIS provide 
specific permit status information, including the record of 
coordination and interaction with resource agencies. The FHWA and FTA 
do not believe such change is warranted. Part 771 supplements the CEQ 
regulation, which already describes similar requirements. The CEQ 
requirements include the circulation of the documents (see, e.g., 40 
CFR 1502.19), documented responses to comments received (40 CFR 
1503.4), and a listing of required Federal permits (40 CFR 1502.25(b)). 
The FHWA and FTA believe that the CEQ requirements are sufficient and 
there is no need to replicate them in part 771. To the extent that the 
commenter calls for more detailed documentation of interactions with 
resource agencies than presently is required, the FHWA and FTA believe 
that decision is best made on a case-by-case basis because the 
usefulness of such detailed information varies by project.

Section 771.127 Record of Decision

    The FHWA and FTA made minor stylistic changes in this section.

Section 771.129 Re-evaluations

    The FHWA and FTA had proposed to re-order the paragraphs in this 
section without modification. Upon further reflection, the original 
order seems preferable because the original regulation addressed the 
three situations in the sequential order that they occur in the project 
development process. In responding to the comment on paragraph (a) of 
section 771.113 discussed above, the FHWA and FTA noticed that the same 
comment would apply to the original paragraph (c) of section 771.129 
(paragraph (a) of section 771.129 in the NPRM). That paragraph referred 
to ``approval of the EIS, FONSI, or CE designation'' as the completion 
of the NEPA process, when it should have referred to ``approval of the 
ROD, FONSI, or CE designation.'' The FHWA and FTA have accordingly 
changed ``EIS'' to ``ROD'' here as well.
    One commenter requested that section 771.129 be further revised to 
clarify what happens if the CE or FONSI needs updating but the changes 
do not cause the need for a new or supplemental document. The FHWA and 
FTA believe paragraph (c) of section 771.129 of the final rule 
adequately covers this situation and does not need further revision. 
Under this provision an applicant will contact the Administration to 
determine if the ROD, CE or FONSI needs updating and the Administration 
shall decide when the consultations should be documented.

Section 771.130 Supplemental Environmental Impact Statements

    In paragraph (a)(2) of section 771.130, the FHWA and FTA corrected 
a typographical error in the former regulation.
    In paragraph (e) of section 771.130, the terminology was changed to 
conform with current Federal transit law as discussed previously for 
paragraph (j) of section 771.123.

Section 771.139 Limitations on Claims

    Three commenters asked for clarification about the applicability of 
the new limitations on claims provision (23 U.S.C. 139(l); amplified in 
section 771.139 in the NPRM). Specifically, the commenters asked (1) 
whether the limitations provision applies to all classes of action 
(EISs, EAs, and CEs) without regard to whether the projects had used 
the environmental review process procedures in 23 U.S.C. 139; (2) 
whether the limitations provision applies to reevaluations (section 
771.129) and tiered EISs (paragraph (g) of section 771.111); and (3) 
whether clarifications could be added to part 771 to foreclose a 
possible interpretation of section 23 U.S.C. 139 (l)(2) as requiring a 
supplemental environmental review document each time new information 
arises. The FHWA and FTA do not believe that any of the three 
commenters raised issues that require regulatory action at this time. 
As the FHWA and FTA previously have indicated in guidance (see Question 
11 in Appendix E of ``SAFETEA-LU Environmental Review Process: Final 
Guidance,'' issued November 15, 2006, available at https://www.fhwa.dot.gov/hep/section6002/index.htm), the agencies believe that 
Congress' intent in adopting the limitations on claims provision was to 
permit it to be applied to any Federal agency decision that is 
necessary in order for any highway or public transportation capital 
project to move forward to implementation. This means it can be applied 
to any project, regardless of its NEPA class of action. In all cases, 
the decision whether to publish a limitations notice should be made on 
a case-by-case basis as discussed in Appendix E to the above-referenced 
final guidance on the implementation of 23 U.S.C. 139.
    As described in the above discussion on section 771.129, 
reevaluations are used to address a variety of circumstances. The 
limitations provision may be applied to a reevaluation decision, but it 
would not be needed for the vast majority of reevaluations which simply 
confirm that there is neither any change in the project nor any new 
information that requires additional analysis that could affect a prior 
project decision. The FHWA and FTA also note that when legal challenges 
to a project otherwise are foreclosed by law, such as by the expiration 
of a previous limitations notice, the agencies' view is that only the 
issues specifically addressed in the reevaluation may be challenged. 
Neither the mere fact a reevaluation is done, nor the act of publishing 
a limitations notice for the reevaluation, would serve to reopen other 
issues to judicial review. See Highland Village Parents Group v. U.S. 
Federal Highway Admin., No. 4:07-CV-548, 2008 WL 2462944 (E.D. Tex. 
June 13, 2008).
    In the case of decisions based on a tier 1 EIS, a limitations 
notice may be issued for those decisions that the agency considers to 
be final and that the agency does not expect to revisit in tier 2 
proceedings, such as elimination of modal alternatives or project 
corridors, absent significant new information. Particular care is 
required when making a determination as to which decisions are final 
and subject to a limitations notice for a tier 1 document. For FHWA 
notices, pre-publication consultation with headquarters staff is 
encouraged. (FTA notices are always prepared and reviewed by FTA 
headquarters staff.)
    Finally, the FHWA and FTA agree that SAFETEA-LU did not alter the 
standards for deciding when a supplemental EA or EIS is required. 
Section 139(l)(2) of Title 23, U.S. Code, addresses the consideration 
of new information received after the close of a comment period. That 
section also makes it clear that a decision based on a supplemental EA 
or EIS is a separate final agency action and can be the subject of a 
180-day notice.

Regulatory Notices

    All comments received are available for examination in the docket 
at  https://www.regulations.gov. All comments, including a number of 
comments received after the comment closing date of October 9, 2007, 
have been fully considered in this final rule.

[[Page 12526]]

Executive Order 13132: Federalism

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. This final action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132, and the FHWA and the FTA have determined that this final 
action will not have sufficient federalism implications to warrant 
additional consultation.. The agencies have also determined that this 
final action will not preempt any State law or State regulation or 
affect the States' ability to discharge traditional government 
functions.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    Executive Order 13175 requires agencies to assure meaningful and 
timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. The FHWA and FTA have analyzed this final rule 
under Executive Order 13175 and believe that this final action will not 
have substantial, direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal laws. Therefore, a tribal 
impact statement is not required. The FHWA and FTA received no comments 
on the NPRM from Indian tribal governments.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.), the FHWA and FTA must consider whether a proposed rule would 
have a significant economic impact on a substantial number of small 
entities. ``Small entities'' include small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000. The FHWA and FTA certify that this final rule 
will not have a significant economic impact on substantial number of 
small entities.

National Environmental Policy Act

    The Council on Environmental Quality does not direct agencies to 
prepare a NEPA analysis or document before establishing Agency 
regulations that supplement the CEQ regulations for implementing NEPA. 
Agencies are required to adopt NEPA procedures that establish specific 
criteria for, and identification of, three classes of actions: those 
that require preparation of an EIS; those that require preparation of 
an EA; and those that are categorically excluded from further NEPA 
review (40 CFR 1507.3(b)). Categorical exclusions are one part of those 
agency procedures, and therefore establishing categorical exclusions 
does not require preparation of a NEPA analysis or document. Agency 
NEPA regulati