Update to NEPA Implementing Procedures, 2713-2718 [2013-00561]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 78, Number 9 (Monday, January 14, 2013)]
[Notices]
[Pages 2713-2718]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00561]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Update to NEPA Implementing Procedures

AGENCY: Federal Railroad Administration (FRA), United States Department 
of Transportation (DOT).

ACTION: Notice of Updated Procedures for Considering Environmental 
Impacts by adding categorical exclusions.

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SUMMARY: FRA announces that it has revised its Procedures for 
Considering Environmental Impacts to add seven new additions to the 
list of categorical exclusions (CE). Categorical exclusions are actions 
that FRA has determined do not individually or cumulatively have 
significant effects on the human environment and thus, do not require 
the preparation of an Environmental Assessment (EA) or Environmental 
Impact Statement (EIS) under the National Environmental Policy Act 
(NEPA). To consolidate the location of all of FRA's CEs, this notice 
reproduces all 20 original CEs and adds the seven new CEs starting with 
number 21.

DATES: The new CEs are effective on January 14, 2013.

FOR FURTHER INFORMATION CONTACT: Christopher Van Nostrand, Attorney 
Advisor, Office of the Chief Counsel, Federal Railroad Administration, 
1200 New Jersey Ave SE., W31-208, Washington, DC 20590, telephone: 
(202) 493-6058.

SUPPLEMENTARY INFORMATION:

I. Background

    FRA's Procedures for Considering Environmental Impacts (FRA 
Environmental Procedures), 64 FR 28545 (May 26, 1999), which are 
available on the agency's Web site at https://www.fra.dot.gov/eLib/details/L02561, establish the process for the assessment of 
environmental impacts of actions and legislation proposed by FRA and 
for the preparation and processing of documents based upon such 
assessments. The FRA Environmental Procedures supplement the Council on 
Environmental Quality (CEQ) NEPA implementing regulations (40 CFR Parts 
1500-1508). Currently, section 4(c) of FRA's Environmental Procedures 
identifies twenty classes of action that FRA has determined to be 
categorically excluded from the EIS or EA preparation requirements of 
NEPA and the Procedures because they do not individually or 
cumulatively have a significant effect on the human environment. This 
update adds seven new CEs to section 4(c). Sections 4(c) and (e) of 
FRA's Environmental Procedures contain a process for identifying 
``extraordinary circumstances'' where FRA determines a particular 
action normally included within one of these categories has the 
potential for significant environmental impacts and an EA or EIS is 
prepared.
    FRA has determined that additions to the existing list of CEs are 
necessary to facilitate FRA's administration of laws relating to 
railroad safety, development, rehabilitation, and railroad financial 
assistance programs, particularly the High-Speed Intercity Passenger 
Rail (HSIPR) grant program and the Railroad Rehabilitation and 
Improvement Financing (RRIF) loan/loan guarantee program. After careful 
consideration, FRA has determined that the actions included in the 
proposed seven new CEs are not of the type or character as to 
individually or cumulatively cause significant effects on the human or 
natural environment.
    Recent statutory initiatives have greatly expanded FRA's ability to 
provide financial assistance to intercity passenger railroad projects 
and contributed to the need for these proposed CEs. The Passenger Rail 
Investment and Improvement Act (PRIIA) of 2008 (Division B of Pub. L. 
110-432, 122 Stat. 4907, (2008)) created three new passenger rail 
capital assistance programs, the intercity passenger rail corridor 
capital assistance program, high-speed rail corridor development, and a 
congestion relief program. Additionally, in an effort to stimulate the 
economy, create jobs and jumpstart a new era of high-speed rail in this 
county, Congress provided $8 billion in grant funding for projects that 
support the High-Speed Intercity Passenger Rail (HSIPR) Program in the 
American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 
111-5, 123 Stat. 115(2009)). Congress also appropriated additional 
funds for HSIPR projects in the Transportation, Housing and Urban 
Development and Related Agencies Appropriations Act for 2010 (Div. A of 
Pub. L. 111-117, 123 Stat. 3034 (2009)).
    PRIIA, the Recovery Act, and other appropriations greatly expanded 
FRA's capacity to fund rail projects in order to achieve world class 
high-speed and intercity passenger rail in the United States. The 
purpose of the HSIPR Program is to address the nation's transportation 
challenges by investing in efficient high-speed and intercity passenger 
rail networks connecting communities across America.\1\ Many of these 
investments involve large scale projects for which FRA and project 
sponsors (typically State Departments of Transportation) will be 
preparing EISs and EAs. However, other investments and components of 
multi-year programs are smaller projects that FRA has concluded do not 
require either an EIS or an EA and justify the creation of a CE since 
they would not have a significant effect on the environment. Preparing 
EISs or EAs for projects that do not have the potential for a 
significant effect on the environment is not an efficient use of 
resources of either FRA or State partners in the various Departments of 
Transportation. Accordingly, the added CEs will facilitate the 
responsible and efficient implementation of the HSIPR, RRIF, and other 
FRA programs.
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    \1\ See Federal Railroad Administration, Vision for High-Speed 
Rail in America (April 2009) (describing the general approach to 
revitalizing high-speed and intercity passenger rail in the United 
States) available at https://www.fra.dot.gov/downloads/Research/FinalFRA_HSR_Strat_Plan.pdf.
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    Some of the proposed CEs were chosen from the list of categorical 
exclusions currently employed by both the Federal Highway 
Administration (FHWA) and the Federal Transit Administration (FTA) (see 
23 CFR Part 771). FRA identified these specific actions for categorical 
exclusion because they have direct applicability for many FRA programs 
and a limited potential for environmental impacts. All of the actions 
identified in this notice have been subject to extensive environmental 
review by FRA, FHWA and FTA, are comparable to activities categorically 
excluded by other Federal agencies, and were identified through FRA's

[[Page 2714]]

benchmarking effort (described in greater detail below). These 
environmental reviews, mostly in the form of documented CEs and EAs, 
demonstrate that the actions do not individually or cumulatively have a 
significant effect on the human or natural environment. As required 
under FRA's Environmental Procedures, FRA staff evaluates each action 
individually to ensure that the action meets the criteria for 
categorical exclusion, and whether extraordinary circumstances exist 
which require additional environmental review.

II. Process Used To Identify the Categorical Exclusions

    FRA undertook a rigorous process to identify appropriate new CEs. 
This evaluation process followed CEQ's guidance on establishing new CEs 
and included an internal review by FRA's Environment and Systems 
Planning Division as well as FRA's Office of Chief Counsel, independent 
review and comment by experts enlisted by FRA in coordination with FTA 
and the John A. Volpe National Transportation Systems Center in 
Cambridge Massachusetts (Volpe Center), submission to and review by 
CEQ, and publication for public review and opportunity to comment. FRA 
undertook this process to ensure that the types of projects covered by 
the new CEs presented in Section III below comply with CEQs NEPA 
regulations (40 CFR 1507.3, 1508.4) and do not cause significant 
impacts on the human or natural environment. The information assembled 
during the internal and independent reviews are described in a 
Categorical Exclusion Substantiation Documentation (CE Substantiation) 
that is available on the FRA Web site at www.fra.dot.gov/eLib/details/L03010.
    The list of new CEs was generated in close collaboration with FTA. 
FRA and FTA each have responsibility for similar types of rail 
projects. FTA has historically provided funding for commuter rail 
projects, which have many similarities to intercity passenger rail 
projects and to freight railroad projects. In addition to using 
existing FTA CE's as templates, FRA has coordinated the effort to 
develop new CEs with FTA and jointly submitted proposed CEs to NEPA 
experts for independent review.
    FTA and FRA, in coordination with the Volpe Center, called on 
several expert NEPA professionals to provide feedback on FTA's and 
FRA's initial list of actions to be classified as CEs. The expert's 
opinions were very valuable in refining the CEs, including identifying 
appropriate limitations necessary to avoid covering activities that 
have the potential to have significant environmental impacts. The 
experts were asked to draw upon their general knowledge of and 
experience/involvement with NEPA environmental processes. The 
submission to the experts consisted of the proposed CE, a brief 
explanation of the CE, and a list of comparative benchmarks or similar 
CEs currently employed by other Federal agencies. After a period of 
review, the experts submitted comments to FRA, which included suggested 
changes or modifications or, as in most cases, an endorsement of the 
proposed CE.
    After receiving the experts' comments and suggestions, FRA staff 
met to discuss the comments and modified the CE's where appropriate. 
The experts suggested ways in which to narrow the categories of actions 
to ensure that all covered activities would not have significant 
impacts. In addition, using their own professional experience, they 
provided insights into the potential practical application of many of 
the proposed CEs.
    Consistent with the CEQ Regulations and the Memorandum for the 
Heads of Federal Departments and Agencies from Nancy H. Sutley, Chair, 
Council on Environmental Quality on Establishing and Applying 
Categorical Exclusions Under the National Environmental Policy Act 
(Nov. 23, 2010) (CEQ Memorandum), FRA consulted with CEQ prior to 
making the CEs available for public review and comment. CEQ suggested 
modifications to clarify FRA's intended application and scope of the 
proposed CEs, and the CE Substantiation Document reflects the 
consideration of CEQ's comments and suggestions and FRA's final 
determinations.
    On June 13, 2012, FRA published a notice in the Federal Register 
(77 FR 35471) advising the public of FRA's intent to add seven new CEs 
to its Environmental Procedures and solicited public comments on the 
proposal. Concurrent with the June 13 notice, FRA also made the CE 
Substantiation document available on its Web site. The CE 
Substantiation supports FRA's finding that the proposed CEs address 
actions that FRA has determined will not individually or cumulatively 
have a significant effect on the human environment. The comment period 
closed on July 13, 2012. FRA received comments from the American Road 
and Transportation Builders Association, three individuals, the 
National Railroad Passenger Corporation (Amtrak), the American 
Association of State Highway and Transportation Officials, New Jersey 
Transit, the Lone Star Rail District, the Southern Environmental Law 
Center, the Illinois Department of Transportation, the Texas Department 
of Transportation, the American Public Transportation Association, the 
Alaska Railroad Corporation, the American Short Line and Regional 
Railroad Association, the Capital Corridor Joint Powers Authority, the 
Metropolitan Transportation Authority, the Californians for 
Alternatives to Toxics, Florida East Coast Industries, Inc., the 
Washington State Department of Transportation, the Natural Resources 
Defense Council, OneRail Coalition, the National Association of 
Railroad Passengers, Virginia Department of Rail and Public 
Transportation, and the Kanas City Southern Railway Company. The 
comments are addressed in this section. Several commenters submitted 
comments regarding FRA's HSIPR program as well as general comments 
about FRA's Environmental Procedures. Several commenters submitted 
general comments in support of the proposal.
    Several commenters suggest that FTA, FHWA, and FRA consolidate 
their environmental procedures as the commenters believed it would 
minimize project sponsor confusion and the need for separate 
environmental documentation. In the alternative one commenter suggested 
FRA adopt all FTA/FHWA environmental categorical exclusion regulations 
through a new CE.
    FRA agrees that avoiding duplicative environmental reviews is 
desirable. FHWA and FTA share a joint environmental regulation because 
of the close connection between the two agencies' programs and the 
metropolitan and statewide transportation planning processes. Further, 
Congressional authorizing legislation for highway and transit programs 
has resulted in statutory changes to FHWA and FTA's NEPA procedures 
that make them unique. FRA shares only some common activities with FHWA 
and FTA and has not had the close historical connections that would 
have made a joint FHWA/FTA/FRA environmental review regulation 
necessary. CEQ directs Federal agencies to establish CEs based on their 
individual determinations that consider their experience in applying 
NEPA to their actions. With these seven new CEs, FRA will have 
established complementary CEs for the vast majority of actions eligible 
for FRA funding that may also be funded by FTA or FHWA, while 
appropriately relying on environmental procedures that are tailored to 
FRA's Federal actions.
    It is also worth noting that Section 1314 of the Moving Ahead for 
Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141 (2012)) 
allows an operating

[[Page 2715]]

administration to use another modal administration's CE for a 
multimodal project, subject to conditions described in the statute. 
However, this provision cannot be used until DOT issues future guidance 
on its application and use.
    One commenter asked why FRA did not reevaluate and substantiate 
FRA's existing CEs in conjunction with the new CE proposal. As 
described in the Substantiation Document, FRA will engage in a 
reevaluation of the FRA Environmental Procedures in the future. As part 
of that effort, FRA will reexamine the existing CEs and may also 
consider adding additional CEs and making other changes to make the 
procedures more efficient for rail projects and projects sponsored by 
multiple agencies.
    One commenter suggested adding a CE that would allow construction 
of critical improvement projects that address reliability problems for 
existing railroads provided that the improvements occur within the 
existing ROW. FRA has a number of existing CEs that in combination with 
the seven new CEs cover all appropriate types of minor railroad 
improvement that could address railroad system reliability. The 
commenter's proposal is too broad and cannot be reasonably expected to 
exclude construction activities that are likely to have significant 
impacts and therefore require additional environmental review and 
analysis.
    One commenter suggests FRA impose a time limit for FRA to complete 
CE review and approval. The process for establishing new CEs does not 
require revisions to FRA's Environmental Procedures. FRA makes every 
effort to review and approve CEs as expeditiously as possible to avoid 
any unnecessary project delay. However, it is incumbent on FRA to 
ensure that the necessary information is available to confirm that the 
project is appropriate for categorical exclusion and does not raise any 
extraordinary circumstances that warrant a higher level of 
environmental review and analysis. Agency practice ensures FRA has the 
appropriate understanding of the nature and extent of the potential 
environmental impacts before FRA approves a project as a categorical 
exclusion and allowing the project proponent to proceed with 
construction activities. Imposing arbitrary time limits may 
unnecessarily limit the ability to set priorities in completing 
environmental reviews for proposed activities.
    One commenter suggests FRA add an additional CE that would cover 
grants, loans, and refinancing for a project already approved and 
funded by another Federal agency if the project has been subject to a 
separate NEPA review and where no changes to the project are involved 
that would result in significant environmental impacts.
    An agency's obligations under NEPA are triggered by the agency's 
consideration of the environmental effects of a proposed action that is 
within the responsibility of the agency. Once such obligation is 
triggered, the agency is required to make an independent assessment of 
the potential environmental impacts that could result from its action 
from the perspective of the agency's mission and experience. CEQ 
regulations provide opportunity for agencies to adopt (in total or in 
part) or to incorporate by reference the analyses provided in another 
agency's EA or EIS. (40 CFR 1506.3). One commenter suggests expanding 
the list of CEs to include the purchase of existing railroad right-of-
way and/or purchase of right-of-way for hardship or protective 
purposes. FRA notes that many acquisition activities typical of FRA 
projects are covered under FRA CE 17. FRA will reexamine CE 
17 as part of the larger effort to reevaluate the FRA 
Environmental Procedures in the future.
    One commenter is concerned of the broader application of future CEs 
because the new high-speed rail infrastructure has a wider right-of-way 
that could increase the potential impacts of future projects. CEs are 
applied to projects that do not have the potential for significant 
environmental impacts and are not applicable to projects that have the 
potential for significant environmental impacts due to expanded rights-
of-way. Wider right-of-way is not clearly related to the severity or 
likelihood of environmental impact, and FRA examines the specifics of 
each proposed application of a CE to determine whether there are any 
extraordinary circumstances that raise the potential for significant 
impacts.
    One commenter suggests FRA clarify its interpretation of the scope 
of the CEs so that all activities within the existing railroad right-
of-way are excluded from further NEPA review, unless extraordinary 
circumstances exist. Put another way under the commenter's proposal, 
any new rail line construction taking place within an existing right-
of-way would be categorically excluded.
    FRA considers every proposal in light of the action's specific 
circumstances. The commenter's suggestion could permit activities 
inappropriate for categorical exclusion because of the likelihood of 
significant impacts. Both the existing and proposed CEs allow for 
construction activities within existing rights-of-way with the 
appropriate limitations to reduce the potential for serious 
environmental impacts.
    One commenter believes there was a lack of public notification 
related to FRA's proposal to add CEs and requests that FRA reopen the 
public comment period.
    The CEQ Regulations and CEQ Memorandum outline procedures for 
establishing new or revised categorical exclusions. These procedures 
call for public involvement and opportunity and comment through a 
notice in the Federal Register. As described above, FRA published a 
notice in the Federal Register on June 13, 2012 and invited public 
comment for 30 days. FRA also made the Substantiation Document 
available on FRA's Web site which also contained instructions for 
submitting comments. FRA received 24 public comments and does not 
believe it is necessary to reopen the public comment period.
    One commenter believes that the proposed CEs will limit the number 
of projects that are subject to public participation and believes 
strong public review is essential for the environmental process. FRA 
supports public involvement in project development; however, the 
commenter assumes that because a project is covered by a CE the public 
is not provided an opportunity to participate. When FRA reviews 
information provided by project proponents in support of a CE, one of 
the elements FRA considers is the extent to which the public has been 
informed of the proposed project and whether any environmental issues 
were raised by the public. This information helps FRA determine whether 
due to public concerns, the action while normally categorically 
excluded, raises to the level of extraordinary circumstances requiring 
a more extensive environmental review.
    One commenter suggests FRA expand the scope of CE 22 to 
include activities related to historic bridges if the activity will not 
have an adverse effect on the historic bridge, and where FRA has 
received concurrence from the State Historic Preservation Officer. FRA 
does not agree that this change is necessary. CE 22 can be 
used for actions involving activities on historic bridges, particularly 
when compliance with Section 106 concludes that there is no adverse 
effect from the activity.
    Several commenters suggested that CE 22 covering bridge 
work should be modified to include bridge approaches. Commenters 
suggested adding the following language to CE 22, 
``construction or reconstruction of approaches and/or embankments to

[[Page 2716]]

bridges''. FRA finds that these activities are substantially similar to 
those already included as part of the illustrative list for CE 
22 which are unlikely to have significant environmental 
impacts with the limitations contained in the CE (i.e. no extensive in-
water work). Therefore, because approaches and/or embankments are 
consistent and integral to the category of activities intended to be 
excluded under this CE, the proposed activities were added to the 
illustrative list for CE 22.
    Several commenters suggest FRA include rehabilitating and 
maintaining existing docks and piers to accommodate maintenance 
activities within existing ports connecting to rail facilities to CE 
22.
    FRA agrees that it is appropriate to adopt a modified version of 
the commenters' proposal. FRA finds that these activities are 
substantially similar to those already included as part of the 
illustrative list for CE 22 which are unlikely to have 
significant environmental impacts with the limitations contained in the 
CE (i.e. no extensive in-water work). In addition, FRA encounters these 
types of activities when involved in funding rail activities within 
ports. These projects are mostly related to improvements to the rail 
facilities in a port facility but also contain certain modest 
improvements to existing docks and/or piers to accommodate intermodal 
transfers. At present, even if FRA provides funding and the work is 
minor, because the activities are not covered by a CE, an EA is 
required even if the activities are otherwise appropriate for 
categorical exclusion.
    The CE also limits the potential impacts by imposing a spatial 
limitation (``predominantly within the existing right-of-way'') and an 
activity scope limitation (``do[es] not involve extensive in-water 
construction activities''). The limitation on in-water work coincides 
with the type of limitations on the extent of water impacts imposed 
through the use of nationwide permits issued by the U.S. Army Corps of 
Engineers. Should a project require an individual permit, the degree of 
impact to waters would be reviewed to determine if the project was 
consistent with the CE, or if an EA or EIS would be required. For these 
reasons, FRA has added ``the rehabilitation or maintenance of the rail 
elements of docks or piers for the purposes of intermodal transfers'' 
to permit limited work to rehabilitate or maintain the rail elements of 
docks and piers necessary to facilitate intermodal transfers.
    Several commenters are concerned that the illustrative lists of 
activities covered under the CEs are too narrow and suggest various 
additions to avoid excluding activities otherwise appropriate for 
categorical exclusion. Similarly, to clarify the purpose of the 
illustrative list, one commenter suggested FRA replace the phrase 
``such as'' with ``examples may include by are not limited to'' for all 
of the CEs.
    The purpose of the list of illustrative activities is to provide 
project proponents and FRA with examples of the types of activities 
that should be covered by the CE not to exclude others that are not 
specifically mentioned. FRA does not believe the phrase ``such as'' in 
any way limits the range of potential activities covered by the CE to 
the list of illustrative activities. The CEQ Memorandum encourages 
agencies to structure CEs to ``offer several examples of activities 
frequently performed by that agency's personnel.''
    Several commenters recommend FRA add, ``other passenger amenities/
improvements'' to CE 24.'' These activities would include 
``benches, signage, sidewalks or trails, equipment enclosures, and 
fencing.'' FRA agrees these activities are appropriate for categorical 
exclusion and has added ``passenger amenities, benches, signage, 
sidewalks or trails, equipment enclosures, and fencing'' to the 
illustrative list for CE 24 because they are unlikely to have 
significant environmental impacts with the limitations contained in the 
CE and are consistent with the category of activities intended to be 
excluded under this CE.
    One commenter is concerned with the potential hazardous materials 
associated with CE 24, installation of electronic and 
communication systems. It is unclear from the comment how electronics 
and communication systems could cause impacts related to hazardous 
materials. In general, FRA considers the project's potential for impact 
on a variety of resource areas, including hazardous materials, when 
deciding if it can apply a CE. Consistent with FRA practice, the 
project proponent is required to provide information on the potential 
impacts related to hazardous materials where relevant. FRA believes 
that this level of screening is appropriate and sufficient to protect 
against potential release of hazardous substances associated with the 
installation of electronic and communication systems. Additionally, 
project proponents are required to comply with all State and Federal 
requirements for the handling, transportation and disposal of hazardous 
materials.
    Several commenters recommend that FRA add ``wastewater treatment 
systems'' to the illustrative list of activities in CE 25. FRA 
agrees that water pollution abatement systems reduce the potential for 
environmental impacts and finds that some types of waste water 
treatment systems may be appropriate for exclusion under this CE. Oil/
water separators are commonly installed to mitigate storm water 
pollution from locomotive fueling and maintenance activities and FRA 
has determined that the installation, improvement, and operation of 
such separators are unlikely to result in significant environmental 
impacts. While FRA will include ``storm water oil/water separators'' in 
the illustrative list, FRA finds that ``wastewater treatment 
facilities'' can be broadly interpreted and is not appropriate as an 
example in the illustrative list.
    One commenter suggested clarifying or defining the term ``right-of-
way'' and also suggested that FRA consider whether use of the term 
``railroad track'' in CE 25 should actually be ``railroad 
right-of-way''. While FRA does not believe it would be appropriate to 
define the term right-of-way in the context of establishing new CEs 
alone, we will consider this suggestion as we conduct a more 
comprehensive review of the FRA Environmental Procedures as a whole. 
With respect to the second comment, CE 25 associates 
remediation or prevention actions proximate to existing and former 
railroad track, infrastructure, stations, and facilities. This approach 
ties the actions to railroad features and activities rather than a 
property boundary that may or may not consistently relate to the 
railroad use that relates to the pollution in question.
    Several commenters suggest that the scope of CE 25 is too 
limited since additional remediation activities related to soils might 
be otherwise appropriate, but might be restricted as the CE is 
currently drafted. These commenters suggest adding the following 
language ``any removal or remediation activity undertaken pursuant to 
an order, law, regulation, program, or policy''.
    As a matter of clarity, the illustrative list is not intended to 
restrict the range of remediation activities. To address the concern 
with the drafting of this CE, the limitation was moved to the CE 
definition to clarify that any applicable project should conform to 
applicable laws, regulations, and permits. This CE covers activities 
specifically undertaken to remediate past environmental degradation, to 
restore environmental conditions, or to prevent ongoing or potential 
pollution. As such, most covered actions have environmental benefits, 
and FRA believes the

[[Page 2717]]

installation and operation of remediation equipment associated with 
such remediation activities are unlikely to result in significant 
adverse environmental impacts. However, like all activities that might 
be categorically excluded, it is FRA's practice to require the project 
proponent to provide sufficient information to demonstrate that the 
proposed action is appropriate for categorical exclusion and is 
consistent with regulatory requirements that might apply to 
environmental remediation activities.
    One commenter is concerned with soil remediation elements of CE 
25 because of the potential impacts from contaminated soil. 
The commenter also notes that public participation is essential in 
ensuring remediation activities are fully implemented and is concerned 
that such participation is absent from FRA's CE process.
    As discussed above, FRA's process for evaluating CEs requires 
project proponents to describe both the potential impacts of the 
project because of hazardous materials and to provide FRA with some 
information on the level of public involvement. FRA may ask for 
additional information with respect to both the level of public 
participation and the potential impacts related to hazardous material 
so that FRA staff have sufficient information to determine whether the 
project is appropriate for categorical exclusion or whether 
extraordinary circumstances exist requiring a more detailed 
environmental review.
    One commenter is concerned with CE 26 because it would 
allow the construction/installation of potentially large rail 
facilities without input from local communities. As discussed above, it 
is FRA's practice to review the scope of each project before deciding 
the project meets the requirements for one of the CEs. As part of this 
process, FRA considers the potential community and land use impacts of 
the project. If there is substantial public concern or other 
extraordinary circumstances, FRA will require the development of 
additional environmental analysis.
    Several commenters raised concerns with the reference to ``existing 
land use and zoning'' in CE 26 because in some cases railroads 
are exempt from local land use and zoning requirements. An example 
provided by a commenter is Amtrak's exemption under 49 U.S.C. 24902(j). 
While the commenters are correct that, in certain circumstances, 
railroads are exempt from certain local land use and zoning 
requirements, this comment overlooks the purpose of the limiting 
factors in all of the new CEs. The purpose of the factors is to limit 
the activities permitted under each CE based on FRA's experience to 
reduce the likelihood of environmental effects, including those to 
local communities. Such limitations are encouraged by the CEQ 
Memorandum where activities might be variable in their environmental 
effects resulting in some situations where the activity is appropriate 
for a CE and others where it is not.
    CE 26 does not require a project proponent to comply with 
local land use and zoning where it would be otherwise exempt, but 
rather places a limitation on the application of the CE because of 
potential for community impacts related to the construction of 
facilities that are not consistent with local land use and zoning.
    One commenter is concerned with CE 27 because of the 
potential for the release of hazardous substances associated with 
replacing rail, ties, and other wood infrastructure. As discussed 
above, it is FRA's practice to determine the potential project impacts 
related to hazardous materials prior to approving a CE. In addition, 
during project implementation, the project proponents are expected to 
comply with all applicable State and Federal laws regarding the 
handling, transportation, and disposal of hazardous materials.
    Two commenters suggest FRA add to the illustrative example list in 
CE 27, ``installing, maintaining, or restoring drainage 
ditches; ballast cleaning, and; constructing minor curve 
realignments''. FRA agrees these activities are appropriate for 
categorical exclusion and therefore added ``installing, maintaining, or 
restoring drainage ditches, cleaning ballast, constructing minor curve 
realignments'' to the illustrative list because they are unlikely to 
have significant environmental impacts with the limitations contained 
in the CE and are consistent with the category of activities intended 
to be included under this CE.
    One commenter is concerned with the use of the term 
``predominantly'' in CE 27 if the term would permit the 
installation of new tracks or other infrastructure improvements beyond 
the existing right-of-way. FRA intentionally included the term 
predominantly because in certain circumstances minor construction 
related activities (i.e. staging areas) may occur outside the railroad 
right-of-way due to spatial and safety constraints related to 
construction activities and equipment use near active rail corridors.
    Several commenters requested clarification of the term 
``substantial'' in CE 27. Some commenters sought assurances 
that the term would not be interpreted restrictively so the CE could 
apply to more potential projects, while another wanted some assurance 
that the term would be read so that any new operations resulting from 
new infrastructure improvements would not interfere with existing 
operations.
    The reason for including ``substantial'' as a limiting factor is 
because additional train service beyond current levels resulting from a 
project might also have additional and potentially unanalyzed indirect 
environmental impacts.
    With respect to the request for assurance that the CEs would not be 
used to increase service interfering with existing operations, in light 
of the discussion above regarding the term ``substantial'', there is no 
need for any clarification in the CE itself.

III. Categorical Exclusions

    Through this notice, FRA adds seven CEs to section 4(c) of FRA's 
Environmental Procedures. As discussed in the SUMMARY section above, to 
consolidate the location of all FRA's CEs, the entire list of CEs is 
reproduced here, including the seven new CEs starting with number 21 
and ending at number 27. This notice does not otherwise amend or modify 
the requirements described in FRA's Environmental Procedures.
    The following classes of FRA actions are categorically excluded:
    (1) Administrative procurements (e.g. for general supplies) and 
contracts for personal services;
    (2) Personnel actions;
    (3) Financial assistance or procurements for planning or design 
activities which do not commit the FRA or its applicants to a 
particular course of action affecting the environment;
    (4) Technical or other minor amendments to existing FRA 
regulations;
    (5) Internal orders and procedures not required to be published in 
the Federal Register under the Administrative Procedure Act, 5 U.S.C. 
552(a)(1);
    (6) Changes in plans for an FRA action for which an environmental 
document has been prepared, where the changes would not alter the 
environmental impacts of the action;
    (7) Rulemakings issued under section 17 of the Noise Control Act of 
1972, 42 U.S.C. 4916;
    (8) State rail assistance grants under 49 U.S.C. 22101 et seq. for 
rail service continuation payments and acquisition, as defined in 49 
CFR 266;
    (9) Guarantees of certificates for working capital under the 
Emergency Rail Services Act (45 U.S.C. 661 et seq.);
    (10) Hearings, meetings, or public affairs activities;

[[Page 2718]]

    (11) Maintenance of: existing railroad equipment; track and bridge 
structures; electrification, communication, signaling, or security 
facilities; stations; maintenance-of-way and maintenance-of-equipment 
bases; and other existing railroad-related facilities. For purposes of 
this exemption ``maintenance'' means work, normally provided on a 
periodic basis including the changing of component parts, which does 
not change the existing character of the facility, and may include work 
characterized by other terms under specific FRA programs;
    (12) Temporary replacement of an essential rail facility if repairs 
are commenced immediately after the occurrence of a natural disaster or 
catastrophic failure;
    (13) Operating assistance to a railroad to continue existing 
service or to increase service to meet demand, where the assistance 
will not result in a change in the effect on the environment;
    (14) State rail assistance grants under 49 U.S.C. 22101 et seq. for 
relocation costs as that term is defined in 49 CFR Part 266, where the 
relocation involves transfer of a shipper to a site zoned for the 
relocated activity. This categorical exclusion shall not apply to the 
relocation of a shipper involved in the transportation of any material 
classified as a hazardous material by DOT in 49 CFR Part 172;
    (15) Financial assistance for the construction of minor loading and 
unloading facilities, provided that projects included in this category 
are consistent with local zoning, do not involve the acquisition of a 
significant amount of land, and do not significantly alter the traffic 
density characteristics of existing rail or highway facilities;
    (16) Minor rail line additions including construction of side 
tracks, passing tracks, crossovers, short connections between existing 
rail lines, and new tracks within existing rail yards provided that 
such additions are not inconsistent with existing zoning, do not 
involve acquisition of a significant amount of right-of-way, and do not 
significantly alter the traffic density characteristics of the existing 
rail lines or rail facilities;
    (17) Acquisition of track and bridge structures, electrification, 
communication, signaling or security facilities, stations, maintenance-
of-way or maintenance-of-equipment bases, and other existing railroad 
facilities or the right to use such facilities, for the purpose of 
conducting operations of a nature and at a level of use similar to 
those presently or previously existing on the subject properties;
    (18) Research, development and/or demonstration of advances in 
signal, communication and/or train control systems on existing rail 
lines provided that such research, development and/or demonstrations do 
not require the acquisition of a significant amount of right-of-way, 
and do not significantly alter the traffic density characteristics of 
the existing rail line;
    (19) Improvements to existing facilities to service, inspect, or 
maintain rail passenger equipment, including expansion of existing 
buildings, the construction of new buildings and outdoor facilities, 
and the reconfiguration of yard tracks;
    (20) Promulgation of railroad safety rules and policy statements 
that do not result in significantly increased emissions of air or water 
pollutants or noise or increased traffic congestion in any mode of 
transportation;
    (21) Alterations to existing facilities, locomotives, stations and 
rail cars in order to make them accessible for the elderly and persons 
with disabilities, such as modifying doorways, adding or modifying 
lifts, constructing access ramps and railings, modifying restrooms, and 
constructing accessible platforms.
    (22) Bridge rehabilitation, reconstruction or replacement, the 
rehabilitation or maintenance of the rail elements of docks or piers 
for the purposes of intermodal transfers, and the construction of 
bridges, culverts, or grade separation projects, predominantly within 
existing right-of-way, that do not involve extensive in-water 
construction activities, such as projects replacing bridge components 
including stringers, caps, piles, or decks, the construction of roadway 
overpasses to replace at-grade crossings, construction or 
reconstruction of approaches and/or embankments to bridges, or 
construction or replacement of short span bridges.
    (23) Acquisition (including purchase or lease), rehabilitation, or 
maintenance of vehicles or equipment that does not cause a substantial 
increase in the use of infrastructure within the existing right-of-way 
or other previously disturbed locations, including locomotives, 
passenger coaches, freight cars, trainsets, and construction, 
maintenance or inspection equipment.
    (24) Installation, repair and replacement of equipment and small 
structures designed to promote transportation safety, security, 
accessibility, communication or operational efficiency that take place 
predominantly within the existing right-of-way and do not result in a 
major change in traffic density on the existing rail line or facility, 
such as the installation, repair or replacement of surface treatments 
or pavement markings, small passenger shelters, passenger amenities, 
benches, signage, sidewalks or trails, equipment enclosures, and 
fencing, railroad warning devices, train control systems, 
signalization, electric traction equipment and structures, electronics, 
photonics, and communications systems and equipment, equipment mounts, 
towers and structures, information processing equipment, and security 
equipment, including surveillance and detection cameras.
    (25) Environmental restoration, remediation and pollution 
prevention activities in or proximate to existing and former railroad 
track, infrastructure, stations and facilities conducted in conformance 
with applicable laws, regulations and permit requirements, including 
activities such as noise mitigation, landscaping, natural resource 
management activities, replacement or improvement to storm water oil/
water separators, installation of pollution containment systems, slope 
stabilization, and contaminated soil removal or remediation activities.
    (26) Assembly or construction of facilities or stations that are 
consistent with existing land use and zoning requirements, do not 
result in a major change in traffic density on existing rail or highway 
facilities and result in approximately less than ten acres of surface 
disturbance, such as storage and maintenance facilities, freight or 
passenger loading and unloading facilities or stations, parking 
facilities, passenger platforms, canopies, shelters, pedestrian 
overpasses or underpasses, paving, or landscaping.
    (27) Track and track structure maintenance and improvements when 
carried out predominantly within the existing right-of-way that do not 
cause a substantial increase in rail traffic beyond existing or 
historic levels, such as stabilizing embankments, installing or 
reinstalling track, re-grading, replacing rail, ties, slabs and 
ballast, installing, maintaining, or restoring drainage ditches, 
cleaning ballast, constructing minor curve realignments, improving or 
replacing interlockings, and the installation or maintenance of 
ancillary equipment.

    Issued in Washington, DC on January 4, 2013.
Karen J. Hedlund,
Deputy Administrator.
[FR Doc. 2013-00561 Filed 1-11-13; 8:45 am]
BILLING CODE 4910-06-P