Environmental Impact and Related Procedures, 2107-2119 [2014-00370]

Agencies

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

[Federal Register Volume 79, Number 8 (Monday, January 13, 2014)]
[Rules and Regulations]
[Pages 2107-2119]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00370]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 771

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2013-0007]
RIN 2125-AF48
RIN 2132-AB05


Environmental Impact and Related Procedures

AGENCY: Federal Highway Administration, Federal Transit Administration, 
DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends the Federal Highway Administration 
(FHWA) and Federal Transit Administration (FTA) joint procedures that 
implement the National Environmental Policy Act (NEPA) by adding new 
categorical exclusions (CE) for projects within an existing operational 
right-of-way and projects receiving limited Federal funding, as 
described in sections 1316 and 1317, respectively, of the Moving Ahead 
for Progress in the 21st Century Act (MAP-21).

DATES: Effective on February 12, 2014.

FOR FURTHER INFORMATION CONTACT: For the Federal Highway 
Administration: Kreig Larson, Office of Project Delivery and 
Environmental Review, HEPE, (202) 366-2056, or Jomar Maldonado, Office 
of the Chief Counsel, (202) 366-1373, Federal Highway Administration, 
1200 New Jersey Ave. SE., Washington, DC 20590-0001. For the Federal 
Transit Administration: Megan Blum at (202) 366-0463, Office of 
Planning and Environment (TPE), (202) 366-0463; or Dana Nifosi at (202) 
366-4011, Office of Chief Counsel (TCC). Office hours are from 8:00 
a.m. to 4:30 p.m. E.T., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Background

    On July 6, 2012, President Obama signed into law MAP-21, Public Law 
112-141, 126 Stat. 405, which contains new requirements that the FHWA 
and the FTA, hereafter referred to as the ``Agencies,'' must meet in 
complying with NEPA (42 U.S.C. 4321 et seq.). Sections 1316 and 1317 of 
MAP-21 require the Secretary of Transportation to promulgate 
regulations designating two types of actions as categorical exclusions 
in 23 CFR part 771: (1) Any project (as defined in 23 U.S.C. 101(a)) 
within an existing operational right-of-way; and (2) any project that 
receives less than $5,000,000 of Federal funds or with a total 
estimated cost of not more than $30,000,000 and Federal funds 
comprising less than 15 percent of the total estimated project cost, 
respectively. The Agencies are carrying out this rulemaking on behalf 
of the Secretary.
    The Agencies' joint procedures at 23 CFR part 771 describe how the 
Agencies comply with NEPA and the Council on Environmental Quality 
(CEQ) regulations implementing NEPA, and include categorical exclusions 
that identify actions the Agencies have determined do not normally have 
the potential for significant environmental impacts and therefore do 
not require the preparation of an environmental assessment (EA) or 
environmental impact statement (EIS), pursuant to 40 CFR 1508.4. 
Section 771.117 applies to FHWA actions and section 771.118 applies to 
FTA actions. Sections 771.117(c) and 771.118(c) establish specific 
lists of categories of actions, or (c)-list CEs, that the Agencies have 
determined normally do not individually or cumulatively have a 
significant effect on the human environment, and do not require an EA 
or EIS. Sections 771.117(d) and 771.118(d) establish example lists of 
categorical exclusions, or (d)-list CEs, that the Agencies also have 
determined are normally categorically excluded from further NEPA review 
but require Agency approval based on additional documentation 
demonstrating that the specific criteria for the CE are satisfied and 
that no significant environmental impacts will result from the action. 
Additionally, sections 771.117 and 771.118 include the requirement for 
considering unusual circumstances, which is how the Agencies consider 
extraordinary circumstances in accordance with the CEQ regulations. 
These refer to circumstances in which a normally excluded action may 
have a significant environmental effect and, therefore, requires an EA 
or EIS. Examples of unusual circumstances include substantial 
controversy on environmental grounds, significant impacts on properties 
protected by section 4(f) of the Department of Transportation (DOT) Act 
(23 U.S.C. 138; 49 U.S.C. 303) or section 106 of the National Historic 
Preservation Act (NHPA), or inconsistencies with any Federal, State, or 
local law, requirement, or administrative determination relating to the 
environmental aspects of the action (23 CFR 771.117(b); 23 CFR 
771.118(b)). This rulemaking does not change the procedural 
requirements for the Agencies' approval of projects as CEs, either for 
(c)-list CEs or for (d)-list CEs.
    In order to qualify for either of the new CEs, the action must 
comply with NEPA requirements relating to connected actions and 
segmentation (see, e.g., 40 CFR 1508.25, and 23 CFR 771.111(f)). To 
avoid impermissible segmentation, the action must have independent 
utility, connect logical termini when applicable (i.e., linear 
facilities), and not restrict consideration of alternatives for other 
reasonably foreseeable transportation improvements. In addition, even 
though a CE may apply to a proposed action, thereby satisfying NEPA 
requirements, all other requirements applicable to the activity under 
other Federal and State statutes and regulations still apply, such as 
the Clean Water Act (CWA), Clean Air Act, General Bridge Act of 1946, 
section 4(f) of the DOT Act, NHPA, and the Endangered Species Act 
(ESA). Some of these requirements may require the collection and 
analysis of information, or coordination and consultation efforts that 
are independent of the Agencies' NEPA CE determination. Also, some of 
these requirements may involve actions by other Federal agencies (such 
as approvals or issuance of permits) that could inform the Agency 
determination regarding unusual circumstances and potentially trigger a 
different level of NEPA review for those Federal agencies. These 
requirements must be met before the action proceeds, regardless of the 
availability of a CE for the

[[Page 2108]]

transportation project under 23 CFR part 771.
    This final rule contains a description of the notice of proposed 
rulemaking (NPRM) issued on February 28, 2013 (78 FR 13609), a summary 
of public comments received on that NPRM and responses to those 
comments, as well as a description of the final regulatory text at the 
end of this rule. Those changes to the regulatory text not described in 
the summary and response to comments are described in the Section-by-
Section Analysis. Following the Section-by-Section Analysis, this rule 
explains the various rulemaking requirements that apply and how they 
have been met. Finally, this rule provides the regulatory text.

Notice of Proposed Rulemaking

    On February 28, 2013, the Agencies published an NPRM, in which the 
Agencies proposed 2 new CEs to be listed in 23 CFR 771.117(c) and 23 
CFR 771.118(c) as mandated by sections 1316 and 1317 of MAP-21. The 
Agencies proposed CEs based on the statutory language provided under 
sections 1316 and 1317, as well as clarifying language the Agencies 
proposed to achieve the overall purposes of sections 1316 and 1317 or 
avoid confusion in program administration. The NPRM sought comments on 
how the Agencies proposed to interpret and implement the provisions.
    The public comment period closed on April 29, 2013. The Agencies 
considered all comments received when developing this final rule.

Summary of Comments and Responses

    The Agencies received comments from a total of 40 entities, which 
included 12 State DOTs and agencies, 4 transit agencies, 8 State/local 
transportation entities, ten transportation interest groups, 3 
national/regional environmental interest groups, one Federal agency, 
and 2 individuals. The submitted comments have been organized by 
section (1316 or 1317) and by theme or topic.
    All of the 40 parties commenting on the NRPM generally supported 
the proposed CEs contained in MAP-21 sections 1316 and 1317. Thirty-
five reviewers commented on the proposed CE language at sections 
771.117(c)(22) and 771.118(c)(12) for projects within the ``operational 
right-of-way.'' Thirty-two parties commented on the Agencies' proposed 
CE language at sections 771.117(c)(23) and 771.118(c)(13) for projects 
receiving limited Federal assistance. Eleven parties commented on the 
need to review or document ``unusual circumstances'' for projects 
seeking to use either of the proposed CEs. Nine of the commenting 
parties supported the proposed rule as it was written in the NPRM. The 
majority of commenters suggested additional clarifications on the use 
of the CEs, including expanding or limiting their scope.

General

    Five State DOTs, two transportation interest groups, three 
national/regional environmental interest groups, and one Federal agency 
submitted comments regarding the requirements for the CEs to address 
unusual circumstances or to document the absence of such circumstances. 
Seven commenters expressed the opinion that requiring additional 
documentation is inconsistent with the statutory direction to include 
these CEs in 23 CFR 771.117(c). Four commenters expressed the opinion 
that requiring evaluation and documentation for the consideration of 
unusual circumstances is appropriate and consistent with the statute. 
One commenter recommended a clarification that documentation should be 
retained by the applicant and not require further approval by the 
Agencies. Another commenter indicated that the proposed rule restricted 
the availability of the new CEs by establishing a ``no unusual 
circumstances'' test, and that nowhere in MAP-21 did Congress 
incorporate the ``no unusual circumstances'' test to the proposed CEs.
    The MAP-21 sections 1316 and 1317 require that the new CEs be 
consistent with 40 CFR 1508.4. Section 1508.4 requires Federal agencies 
to take into account ``extraordinary circumstances in which a normally 
excluded action may have a significant environmental effect.'' The 
Agencies use the term ``unusual circumstances'' when defining 
extraordinary circumstances. The Agencies addressed the need for 
considering unusual circumstances in the NPRM preamble and noted that 
actions falling under the new CEs are not exempt from meeting this 
requirement. Consideration of unusual circumstances applies to all CEs 
addressed in sections 771.117(c) and (d), and 771.118(c) and (d); the 
Agencies are not creating a new standard for assessing actions through 
this rulemaking. The potential for unusual circumstances for a project 
does not automatically trigger an EA or EIS. The regulations require 
the Agencies to conduct appropriate environmental studies to determine 
if the CE classification is proper (23 CFR 771.117(b) and 771.118(b)). 
This means that documentation is expected to demonstrate that there are 
no unusual circumstances that warrant a higher level of NEPA review 
even when the project does not require detailed documentation and 
Agency review. The Agencies have not created a new ``no unusual 
circumstances'' requirement because that requirement is long-standing. 
Instead, in the NPRM, the Agencies re-emphasized the need to consider 
unusual circumstances for all CEs as required by 40 CFR 1508.4 and the 
Agencies' NEPA implementing procedures at 23 CFR part 771.
    One commenter expressed appreciation for the reference to unusual 
circumstances, but indicated that some of the criteria were not 
necessarily adequate safeguards. The commenter indicated that reviews 
under section 4(f) of the DOT Act and section 106 of the NHPA were 
examples when thresholds in an environmental law would not determine 
whether or not the impact of an action is significant for NEPA 
purposes. Another commenter indicated that regulatory requirements 
protecting wetlands, endangered species, and historic properties would 
continue to apply and would ensure that unusual circumstances 
applicable to these resources are identified and addressed.
    The Agencies consider unusual circumstances in determining whether 
an action that would normally be classified as a CE deserves another 
level of NEPA review. Sections 771.117(b) and 771.118(b) provide non-
inclusive lists of examples for consideration. ``Significant impact on 
properties protected by section 4(f) of the DOT Act and Section 106 of 
the [NHPA]'' is included in the list of examples. In the Agencies' 
experience these examples have been appropriate for identifying when an 
action that would otherwise be classified as a CE merits an EA or EIS 
for the consideration of environmental impacts. It is important to note 
that unusual circumstances may require the consideration of factors, 
impacts, or resources that do not fall under an established regulatory 
framework (for example, substantial controversy on environmental 
grounds). The Agencies do not believe that compliance with legal 
requirements should be the only unusual circumstance considered for 
projects.
    One commenter indicated that language in the NPRM requiring actions 
under the proposed CE to meet applicable requirements under other 
Federal and State laws should be deleted from the final rule. Two 
commenters expressed appreciation for the inclusion of the NPRM 
preamble

[[Page 2109]]

reference that other laws may require collection and analysis of 
information independent of the Agencies' NEPA determination, and the 
discussion that these other laws may trigger a different level of NEPA 
review for another Federal agency. The commenters indicated that this 
was the intent of Congress because these provisions in MAP-21 did not 
apply to or require rulemaking from any other Federal agency. One 
commenter questioned whether it was possible for FHWA to implement 
sections 1316 and 1317 without running afoul of environmental statutes 
such as ESA and section 404 of the CWA. The commenter expressed that 
accompanying complementary changes to those statutes should be made in 
conjunction to the changes in part 771 to realize congressional intent 
to streamline the project delivery process.
    A determination that an action qualifies for a CE under the 
Agencies' NEPA procedures is not an exemption from the environmental 
laws that apply to that project. A project may not require the higher 
level of NEPA analysis associated with an EA or EIS and still require 
analysis under section 106 of the NHPA, section 404 of the CWA, section 
7 of the ESA, or section 4(f) of the DOT Act. Applicants need to apply 
and obtain applicable environmental permits and approvals even for 
projects that qualify for CEs. The MAP-21 neither amended nor exempted 
these laws, and they continue to apply.
    Two commenters indicated that the two proposed CEs could cover 
actions that already qualify for other CEs in part 771. One commenter 
was having difficulty in identifying examples where a project would 
qualify for the proposed CEs but not for an existing CE and requested 
specific examples of projects where these CEs would apply that are not 
currently addressed by other existing CE categories. One commenter 
indicated that the NPRM failed to streamline the NEPA process as it had 
hoped. Another commenter indicated that the NPRM limited the 
availability of the CEs to such an extent that the relevant provisions 
of MAP-21 appear meaningless or redundant with existing law. Two 
commenters noted that the statutory language for the CEs should be read 
in the context of the overarching policy of accelerating project 
delivery. In this context, the commenters observed, the rule should 
provide maximum flexibility to limit redundant and lengthy process 
driven environmental reviews, and new flexibility to expand the 
universe of projects that can be approved as CEs. One commenter stated 
that expansion of the CE list would save time and costs for project 
sponsors without compromising protection of the environment. One 
commenter indicated that the new CE for operational right-of-way would 
benefit the State by allowing some additional projects to be classified 
as CEs. The commenter also provided numbers, but no specific details of 
planned projects that would meet the Federal fund threshold that would 
benefit from the CE. Another commenter noted that increased use of CEs 
along with the streamlined approval process associated with simpler 
Federal-aid projects is appropriate. The commenter indicated this 
strategy will ultimately deliver public benefits from Federal-aid 
transportation improvements more rapidly and also improve environmental 
protection by enabling Federal resource agencies to focus their efforts 
on more complicated projects that warrant significant environmental 
review. One commenter indicated that MAP-21's goal of increasing the 
use of CEs will help reduce delay in the current review and approval 
process for transportation projects by clarifying the type of projects 
that appropriately qualify for less intensive environmental reviews.
    The Agencies agree there may be actions that qualify for the CEs 
subject to this rule that could qualify for other CEs in part 771. The 
regulation does not compel the use of the new CEs in these instances. 
The Agencies and applicants can continue to rely on other available CEs 
if their use is appropriate. The Agencies agree that the appropriate 
use of CEs can result in time and cost savings.
    Three commenters indicated that small and low-cost bicycle and 
pedestrian projects (including sidewalks, cross walks, pathways, etc.) 
within an existing built environment should not require detailed 
documentation to qualify for a CE unless special circumstances exist. 
The commenters recommended modifying the rule to encourage the use of a 
CE where a project qualifies for two or more CEs and there are no 
unusual circumstances.
    Many bicycle and pedestrian projects qualify for CEs that do not 
require detailed review by the Agencies (see e.g., section 
771.117(c)(3) (construction of bicycle and pedestrian lanes, paths, and 
facilities)). Applicability of a (c)-list CE, however, does not mean 
that additional information is not needed from project applicants on 
environmental considerations to demonstrate the applicability of a CE. 
In some circumstances this documentation is needed to address unusual 
circumstances or for meeting other environmental considerations and 
requirements.
    The Agencies are not modifying the rule to encourage the use of a 
CE when a project qualifies for two or more CEs. The use of a CE when 
it applies is encouraged regardless of whether the action would also 
qualify for another CE. One CE should be used per FHWA or FTA action.
    One commenter recommended adding the two new CEs as examples in the 
(d)-list CE rather than adding them as (c)-list CEs. Another commenter 
indicated that it is possible to have projects that meet the new CEs 
but require a great deal of analysis to determine if there are any 
significant impacts. The commenter suggested that for projects 
qualifying for the new CEs, the NEPA documentation would be minor, but 
the analysis would in many circumstances be the same as currently 
required for projects in the (d)-list. Another commenter indicated that 
these new CEs were different from the other CEs in part 771 because 
they were not based on the scope of a project, but rather on the 
project's location or level of Federal funding involved. The commenter 
indicated that the proposed CEs appeared to be screening criteria for 
projects where a specific scope is cited.
    The statute requires the new CEs be located in section 771.117(c) 
for FHWA actions and, in the Agencies interpretation, in section 
771.118(c) for FTA actions (given the addition of this parallel section 
after the enactment of MAP-21). The Agencies do not have the discretion 
to place these new CEs in sections 771.117(d) and 771.118(d). The 
Agencies recognize that these two statutorily mandated CEs are 
different than other CEs in that they are unrelated to a project's 
scope and its potential level of environmental impacts. Projects 
receiving less than the Federal funding threshold established in the 
statute may have the potential to cause significant impacts depending 
on the context of what is proposed and its surrounding environment. 
Similarly, the location of a project within an existing operational 
right-of-way may have the potential to cause significant impacts 
depending on the context of what is proposed and its surrounding 
environment. The Agencies agree with the commenters that without 
information on the scope of the project and its context (such as 
timing, surrounding environment, context and intensity of impacts) it 
would be difficult to determine if the project can be appropriately 
classified as a CE or if another level of NEPA review is needed even if 
the project meets the conditions of the CE. The Agencies believe that 
the consideration of unusual circumstances

[[Page 2110]]

will identify when the project may need more documentation or another 
level of NEPA review.
    Three commenters encouraged DOT to disseminate clear guidance on 
when a CE is appropriate--especially in cases where more than one CE 
could apply. One commenter suggested the Agencies develop training and 
guidance materials for State DOT and Federal staff to ensure that those 
responsible for implementation can administer the CE process with 
confidence and uniformity. One commenter recommended the development of 
training, guidance, and frequently asked questions to ensure consistent 
implementation of the CEs. The commenter recommended a training goal of 
preparing State DOTs to make CE determinations in place of the 
Agencies. One commenter urged the Agencies to actively monitor and 
audit the use of these new CEs for the first few years in order to 
evaluate whether additional guidance is necessary.
    The Agencies interpreted the comments and their reference to DOT to 
apply to the Agencies engaged in this rulemaking. The Agencies have 
training institutes, the National Highway Institute and the National 
Transit Institute, that conduct NEPA courses across the nation for 
employees of the Agencies, State DOTs, transit agencies, consultants, 
and other Federal, State, and local entities involved in transportation 
NEPA processes. The Agencies also have guidance on their NEPA 
processes, including CEs. The Agencies will provide information on the 
availability of the new CEs to their environmental and field staff. The 
FTA will update its Guidance for Implementation of FTA's Categorical 
Exclusions (23 CFR 771.118) to reflect the new CEs and post it on FTA's 
public Web site (www.fta.dot.gov), as well. The FHWA will provide any 
additional guidance and assistance, as necessary. In addition, section 
1323 of MAP-21 requires a report to Congress ``on the types and 
justification for the additional categorical exclusions granted under 
the authority provided under sections 1316 and 1317'' not later than 
October 1, 2014. This report will provide information and help 
determine if any additional guidance is needed.
    One commenter suggested the Agencies consider further modifications 
to create predictable expectations for the completion of CEs such as 
guidelines, time limits, or deadlines for the completion of CEs.
    The Agencies encourage timely review of environmental documents. 
However, the Agencies recognize that individual projects and their 
impacts are unique and subject to other requirements, which makes 
establishing standard review times problematic. Projects approved 
through the new CEs subject to this rule normally would not require 
further NEPA approvals, though the Agencies expect documentation 
exhibiting that the project fits the CE and that no unusual 
circumstances are present. This may be achieved with a complete project 
description. However, if the project has the potential to result in 
impacts to resources protected under other environmental laws, 
additional documentation and review time could be needed for that 
project. For example, the consultation required under Section 106 of 
the NHPA already has regulatory timeframes in 36 CFR part 800 
associated with consultation between Federal agencies and the State 
Historic Preservation Officer. The Agencies cannot shorten that 
consultation process through review times mandated by their regulation.
    One commenter stated that less restrictive rulemaking and 
subsequent agency guidance would allow agencies to make CE 
determinations and documentation to the project record earlier in the 
process such as in the long range planning and multiyear project 
programming. The commenter indicated that making this determination 
earlier in the process without further and broad based staff engagement 
would allow for a more reliable project delivery process, streamlined 
project delivery, and ensure program continuity necessary to better 
deliver transportation improvements.
    Consideration of environmental impacts of a project during the 
transportation planning process is encouraged by the Agencies (see 23 
CFR part 771 and part 450; 23 U.S.C. 168; and the Agencies' Planning 
and Environmental Linkages guidance at https://www.environment.fhwa.dot.gov/integ/). This consideration early in the 
process can expedite environmental review, especially if actions are 
planned in a way that allows them to meet the criteria for the CEs 
listed in Sections 771.117 or 771.118. The NEPA review may be conducted 
in parallel with the planning process. However, it is important to note 
that the Agencies cannot make a determination that a project qualifies 
for a CE until there is sufficient project information to determine the 
likely project impacts and the project is contained in the applicable 
transportation improvement program(s) under 23 U.S.C. 134-135. As a 
result, a CE determination normally does not occur until the planning 
process is finished.
    One commenter stated the statute required that regulations for both 
new CEs be promulgated within 150 days of July 6, 2012, the date MAP-21 
was signed into law, and that this deadline was exceeded by several 
months.
    Sections 1316 and 1317 require the Secretary to designate the new 
CEs ``not later than 180 days'' after MAP-21's enactment and to 
promulgate regulations to carry out this requirement no later than 150 
days from its enactment. Section 3 establishes that ``any reference to 
date of enactment shall be deemed to be a reference to the effective 
date'' of MAP-21, which is October 1, 2012. Sections 1316 and 1317 do 
not automatically create new CEs; their designation requires 
administrative action by the Agencies in the form of rulemaking. On 
February 28, 2013, the Agencies, acting on behalf of the Secretary, 
issued proposed regulations to ``designate'' the new CEs. The Agencies 
issued the proposal 150 days from the effective date of MAP-21.

Section 771.117(c)(22) and 771.118(c)(12)

    In the NPRM the Agencies proposed identical language for an 
operational right-of-way CE in sections 771.117(c)(22) and 
771.118(c)(12): ``Projects, as defined in 23 U.S.C. 101, that would 
take place entirely within the existing operational right-of-way. The 
operational right-of-way includes those portions of the right-of-way 
that have been disturbed for an existing transportation facility or are 
regularly maintained for transportation purposes. This area includes 
the features associated with the physical footprint of the 
transportation facility (including the roadway, bridges, interchanges, 
culverts, drainage, fixed guideways, substations, etc.) and other areas 
regularly maintained for transportation purposes such as clear zone, 
traffic control signage, landscaping, any rest areas with direct access 
to a controlled access highway, or park and ride lots with direct 
access to an existing transit facility. It does not include portions of 
the existing right-of-way that are not currently being used or not 
regularly maintained for transportation purposes.''
    The Agencies are adopting operational right-of-way CEs that are 
slightly different from the proposed language. The final CE language is 
identical for both FHWA and FTA and would cover ``[p]rojects, as 
defined in 23 U.S.C. 101, that would take place entirely within the 
existing operational right-of-way. Existing operational right-of-way 
refers to right-of-way that has been disturbed for an existing 
transportation facility or is maintained for a transportation purpose. 
This area includes the features associated with the

[[Page 2111]]

physical footprint of the transportation facility (including the 
roadway, bridges, interchanges, culverts, drainage, fixed guideways, 
mitigation areas, etc.) and other areas maintained for transportation 
purposes such as clear zone, traffic control signage, landscaping, any 
rest areas with direct access to a controlled access highway, areas 
maintained for safety and security of a transportation facility, 
parking facilities with direct access to an existing transportation 
facility, transit power substations, transit venting structures, and 
transit maintenance facilities. Portions of the right-of-way that have 
not been disturbed or that are not maintained for transportation 
purposes are not in the existing operational right-of-way.''
    The discussion of comments below describes the rationale for these 
changes and differences.

Description of Operational Right-of-Way

    Nine State DOTs, 3 regional transit agencies, 10 national 
transportation interest groups, 7 State/local transportation groups, 3 
national/regional environmental interest groups, 1 Federal agency, and 
1 individual commented on the description of ``operational right-of-
way'' used in the NPRM. Eighteen commenters noted the NPRM's 
description of operational right-of-way was inconsistent with that used 
in MAP-21, and that any final language should be consistent with the 
statute. Ten commenters specifically noted that describing operational 
right-of-way as property that is ``needed,'' ``used,'' ``disturbed,'' 
and ``regularly maintained'' limits the universe of actions that would 
otherwise qualify for the CE. Three commenters indicated that a CE for 
projects within a right-of-way is appropriate because environmental 
reviews have already occurred prior to the acquisition and additional 
reviews would be duplicative. Three commenters noted that the NPRM's 
use of terms such as ``disturbed'' in the description of right-of-way 
could result in destruction of buffer zones or other areas that are not 
regularly maintained. Three commenters stated that undisturbed and 
unmaintained land along a right-of-way in current use may have been 
obtained to keep the public away in order to make operations in the 
right-of-way safer. The commenters indicated that projects in these 
areas would qualify for the CE under the statutory language, but they 
would not qualify under the regulatory language. One commenter 
indicated that the use of the term ``disturbed'' would result in the 
requirement of archeological investigations to determine if the area 
had been disturbed. Another commenter suggested placing safeguards, 
such as a documentation requirement, to confirm the timing of the 
disturbance. One commenter objected to the exclusion of areas where the 
transportation facility has fallen into disuse. One commenter requested 
a clarification of whether operations and maintenance included trash 
pick-up, weed control, snow storage, maintenance of cut slopes, and 
rockfall mitigation. The commenter requested a clarification that the 
determination that an area was ``previously disturbed'' could be based 
on observation and did not require actual construction plans for 
verification. The commenter also requested that separated bike and 
pedestrian facilities be considered transportation facilities under the 
rule. Eight commenters supported the NPRM's limitation of operational 
right-of-way to existing transportation facilities. One commenter 
provided a comment that section 1316 was intended to apply only to 
projects where there is an existing right-of-way. The commenter opposed 
an interpretation that would allow State DOT's to acquire right-of-way 
for a future project and then use the CE for a project once it has been 
identified for the corridor.
    Due to the number of comments received regarding the NPRM's 
proposed description of ``operational right-of-way'' and upon further 
consideration, the Agencies have made various modifications. The 
Agencies are not redefining ``operational right-of-way.'' The Agencies 
are interpreting the phrase ``existing operational right-of-way'' by 
providing that this ``refers to right-of-way that has been disturbed 
for an existing transportation facility or is maintained for a 
transportation purpose.'' The purpose for including the phrase 
``disturbed for an existing transportation facility'' is to clarify 
that a transportation facility must already exist at the time of the 
review of the proposed project being considered for the CE. The 
Agencies are using ``disturbed'' as defined in the New Oxford American 
Dictionary ``having its normal pattern or function disrupted'' or 
``interfere with the normal arrangement or function of'' (New Oxford 
American Dictionary 497 (Elizabeth J. Jewell & Frank R. Abate ed., 1st 
ed., Oxford Press 2001)). Evidence that the area was disturbed for a 
transportation facility should be provided (such as photographs, visual 
inspection), but this does not mean that archeology surveys or 
construction plans for the original facility are required to 
demonstrate that the area has been disturbed. As explained in the NPRM, 
the term ``transportation facility'' is used in this CE to establish 
that the existing facility or structure must be related to surface 
transportation. The phrase is intended to be used in its plain meaning, 
and is specifically not intended to be limited to the term 
``transportation facilities'' as defined under 23 CFR 973.104, which is 
applicable to the Indian Reservation Roads Program. The term in this CE 
includes bicycle and pedestrian facilities.
    The purpose for including the phrase ``maintained for a 
transportation purpose'' is to include areas that may not be 
traditionally considered a transportation facility but are maintained 
to serve a transportation purpose for an existing transportation 
facility such as clear zones and areas for safety and security of the 
transportation facility. A transportation facility that has fallen in 
disuse may require an assessment to determine if it is still being 
maintained for a transportation purpose and, therefore, qualifies as an 
operational right-of-way. The term ``maintained'' is used as defined in 
the New Oxford American Dictionary ``cause or enable [a condition or 
state of affairs] to continue'' (New Oxford American Dictionary at 
1030). Applicants do not need to develop or engage in regular 
maintenance actions within these areas to ensure they become part of 
the existing operational right-of-way in the future. Natural methods of 
managing roadside vegetation, clear zones, and areas necessary for 
maintaining the safety and security of a transportation facility are 
covered as requested by the commenters. The term, as used in the CE, 
does not cover areas outside those areas necessary for existing 
transportation facilities, such as uneconomic remnants or excess right-
of-way that is secured by a fence to prevent trespassing, or that are 
acquired and held for a future transportation project. Lastly, the 
Agencies included ``mitigation areas'' and ``areas maintained for 
safety and security of a transportation facility'' in the list of 
examples of features that comprise the existing operational right-of-
way. The concept of ``mitigation areas'' is included in the statutory 
definition of ``operational right-of-way'' in section 1316 of MAP-21 
and is being added to the final rule for consistency.
    The Agencies found that section 1316's phrase ``existing 
operational right-of-way'' was subject to various interpretations. One 
interpretation would allow the use of the CE for the

[[Page 2112]]

construction of a project in an undeveloped area as long as real 
property interests were previously acquired for its future 
construction. This interpretation would ignore the use of the modifier 
``existing'' before ``operational right-of-way'' in the statutory 
language in section 1316. The Agencies interpret the addition of that 
modifier to mean that proposed projects on property interests acquired 
for a future project but simply held in perpetuity with no associated 
transportation use cannot be covered by this CE. In addition, the 
Agencies interpret the reference to a ``project'' in the statutory 
definition of operational right-of-way to be different from the 
proposed project being evaluated for the CE. The Agencies interpret the 
statute to refer to a past transportation project when defining the 
footprint of the operational right-of-way.
    The Agencies concluded that restating the statute in the regulation 
would not facilitate its implementation because it could allow an 
unreasonable interpretation. The meaning of the phrase ``existing 
operational right-of-way'' in the statute required the Agencies' 
interpretation to ensure consistent and legally defensible use of the 
CE. The Agencies interpret the addition of that modifier by Congress to 
mean that property interests acquired and held for a future project are 
not covered by this CE if there is no existing transportation facility 
or the area is not maintained for a transportation purpose for an 
existing transportation facility. This interpretation is supported by 
the statute's use of the adjective ``existing'' to modify ``operational 
right-of-way;'' the reference in the statutory definition to a project 
that is different from the proposed project being considered for the 
CE; and the particular examples used in the statute to describe the 
operational right-of-way (such as roadway, bridges, interchanges, 
landscaping, clear zones, etc.).
    One commenter expressed concern that the proposed CE limited the 
ability of the States to shift roadway alignments and straighten 
dangerous curves.
    The text of the CE would not affect a project sponsor's ability to 
shift roadway alignments, straighten dangerous curves, or engage in 
other eligible project activities for safety purposes. Rather, the CE 
text only affects the level of NEPA review that would be required for 
the eligible project. A number of safety projects, such as those 
shifting roadway alignments and straightening curves, may be 
accommodated within an existing operational right-of-way. Other CEs may 
be available for those projects that extend beyond the existing 
operational right-of-way limits (such as construction beyond the clear 
zone area).
    One commenter expressed concerns with a potential expansion of the 
CE to allow its use for projects in buffer zones or undeveloped areas, 
indicating that many historic parkways and other roads include wooded 
areas that serve as crucial character-defining features of historic 
roadways or an important mitigation role in shielding historic 
districts and other neighborhoods from adjacent highways.
    The Agencies note that the statutory definition of operational 
right-of-way includes ``mitigation'' and ``clear zones'' areas. 
Mitigation sites, such as wooded areas mitigating impacts of highways 
on historic districts, noise walls, and buffer zones used for 
transportation safety purposes are part of the operational right-of-
way. However, the Agencies and the applicants must consider unusual 
circumstances to determine if the CE is the appropriate NEPA 
classification. In addition, the applicability of a NEPA CE for a 
transportation project does not exempt compliance with other 
environmental requirements. In the case of a buffer area that is a 
character defining feature of a historic property, the Agencies and the 
applicants must comply with the requirements of section 106 of NHPA and 
section 4(f) of the DOT Act. Consideration of unusual circumstances and 
compliance with other environmental laws may trigger the need to 
identify substitute mitigation or compensatory measures, as 
appropriate. The Agencies note that the inclusion of ``mitigation'' as 
a component of the operational right-of-way is in the statute and 
regulation does not override, waive, or alter the mitigation 
commitments that were established for the original transportation 
facility. The use of mitigation areas for a new project may trigger 
other actions to meet the original mitigation commitments.

Examples of Features or Components of an Operational Right-of-Way

    Two commenters requested that the CE language explicitly apply to 
transportation project areas that are on land acquired to mitigate a 
project. One commenter expressed concerns with including land acquired 
for mitigation as part of the operational right-of-way.
    Mitigation areas are explicitly recognized in the statutory 
definition of operational right-of-way. The Agencies are adding the 
term ``mitigation areas'' to the list of example features associated 
with the physical footprint of a transportation facility to be 
consistent with the statutory definition of ``operational right-of-
way'' in section 1316 of MAP-21. The Agencies note that the inclusion 
of ``mitigation'' as a component of the operational right-of-way in the 
statute and regulation does not override, waive, or alter the 
mitigation commitments that were established for the original 
transportation facility. The use of mitigation areas for a new project 
may trigger other actions to meet the original mitigation commitments.
    One transit agency requested that the rule clarify whether 
operational right-of-way needed to be contiguous with an existing road 
or guideway.
    Public transportation facilities often have non-contiguous features 
that are part of a transportation system and are, therefore, part of 
the operational right-of-way. One example mentioned in the proposed 
rule is substations, which include transit power substations. This 
example has been moved to the list of examples of other areas 
maintained for transportation purposes in the final CE text. Other 
examples in the public transportation context include transit 
maintenance yards and transit venting structures. The Agencies have 
added these examples to their CE text to clarify that these types of 
structures are included in the footprint of the operational right-of-
way.
    One commenter requested the addition of ``parking structures,'' 
(e.g., revise the example of ``park and ride lots'' to read ``park and 
ride lots and structures'') to the list of examples of features that 
comprise the operational right-of-way.
    The Agencies consider ``park and ride lots'' to include both 
surface lots and parking structures. The Agencies changed the term to 
``parking facilities'' in order to provide clarity and maintain 
consistency with other CEs found in part 771 and how those terms are 
used by the Agencies.
    One commenter expressed concerns with the inclusion of clear zones 
as these could entail a large footprint. The commenter indicated that 
clear zones can cover more than 35 feet on both sides of roadway. 
Another commenter stated that operational right-of-way should not 
include the full width of clear zones on either side of a road because 
standards for clear zones have become much wider recently for safety 
purposes. The commenter expressed that the standard should be limited 
to the operation, construction, or mitigation of the original roadway 
at the time it was purchased.
    The Agencies found that the statute was clear in identifying clear 
zones of an existing transportation facility as part

[[Page 2113]]

of the operational right-of-way. This means that construction of a 
transportation facility within already existing clear zones would 
qualify for the CE unless unusual circumstances exist that warrant an 
EA or EIS. However, a project within the operational right-of-way that 
requires the creation of new clear zones or extension of clear zone 
areas beyond what already exists would not qualify for this CE.
    One commenter recommended adding noise walls and fencing to the 
list of examples of elements or components that are part of the 
operational right-of-way. The commenter also requested the addition of 
facilities within the right-of-way, but that are performed by other 
government entities.
    The Agencies did not intend to create an all-inclusive list of 
components or features that comprise the operational right-of-way. Some 
of the additions recommended by the commenters are captured by features 
listed in the final regulatory text. For example, noise walls are a 
form of mitigation, which is included in the text. Some fencing 
structures may be necessary to maintain safety and security of an 
existing transportation facility and would, therefore, be part of the 
operational right-of-way. Other fencing structures may have been 
established to preserve a property, but are not necessary to maintain 
safety and security of an existing transportation facility. These 
features would not be considered part of an existing operational right-
of-way. The identity of the entity that owns, maintains, or operates 
the transportation feature (for example, bridge, road, mitigation, 
clear zone, parking, etc.) is not a factor in determining whether the 
feature is part of the operational right-of-way. The test is whether 
the feature is in use or is maintained for a transportation purpose.

Real Property Interests

    Five commenters noted that the statute refers to ``all real 
property interests'' acquired for the construction, operation, or 
mitigation of a project, and this includes property acquired for 
corridor preservation and future transportation facility capacity 
expansion. One commenter expressed an opinion that the term should 
include prescriptive easements, leases, utility easements, and other 
non-fee simple property interests. Another commenter opposed an 
interpretation that would allow development of transportation projects 
on real property interests that are less than fee simple interests, 
such as utility easements and leases. One commenter proposed regulatory 
language that the CE cover ``all real property interests acquired or 
secured for the construction, operation, or mitigation of a project or 
transportation corridor'' (emphasis added). Seven commenters objected 
to the requests to expand the CE to cover actions occurring within 
areas acquired, but not developed, for corridor preservation and 
facility expansion. One commenter indicated that an expansion of the CE 
to cover projects that would take place in property that has been 
acquired but not developed could be combined with the ``significant 
expansion'' of advanced acquisition allowed under section 1302 of MAP-
21 to create a strong incentive for aggressive land acquisition in an 
effort to insulate potential future transportation projects from a 
higher level of NEPA review (e.g. an EA or EIS). The commenter 
expressed concerns with an interpretation of the CE that would allow 
the development of previously acquired areas owned for decades but that 
had not received final approval from FHWA under NEPA because of 
litigation, new information, lack of funding, or other problems. One 
commenter expressed that right-of-way purchased under section 1302 of 
MAP-21 should not be included in the operational right-of-way 
definition because such land has independent utility, rather than 
utility for construction, operations, or mitigation purposes.
    The Agencies do not interpret the statutory CE provision in a 
manner that would allow construction of a project in an undeveloped 
area simply because the real property interests were previously 
acquired. The use of the modifier ``existing'' to describe the 
operational right-of-way means that a transportation facility must 
already exist at the location where the proposed project will be built. 
Areas acquired and held as a transportation corridor for a future 
project would not constitute an existing operational right-of-way. The 
real property interest in question must be disturbed for an existing 
transportation facility or maintained for a transportation purpose for 
an existing transportation facility. Utility use and occupancy 
agreements, and other real property interests that are not maintained 
for existing transportation purposes would not be part of the existing 
operational right-of-way.
    One commenter noted that the proposed rule does not clearly address 
whether section 1316 CEs apply to project-related work that requires 
temporary construction easements rather than permanent acquisition.
    The Agencies have concluded that the geographic reference in the CE 
is for the final project. The final project must be entirely within the 
operational right-of-way. The method to construct a project within the 
operational right-of-way is accounted for in the CE since it is 
presumed a CE accounts for all connected actions (see CEQ Final 
Guidance on Establishing, Applying, and Revising Categorical Exclusions 
under NEPA, 75 FR 75628, 75632, Dec. 6, 2010). This includes temporary 
work taking place outside an operational right-of-way that is necessary 
for the construction of a project within the operational right-of-way. 
Therefore, this CE also covers temporary easements and temporary work 
needed for the project even if this work is outside an operational 
right-of-way. It is important to note that temporary easements and work 
are subject to review for any unusual circumstances (such as work 
taking place in endangered species habitat) that would trigger the need 
for a higher level of NEPA review for the project. Furthermore, some 
temporary work such as the construction of a detour road or bridge may 
require a higher level of scrutiny to ensure adequate consideration of 
unusual circumstances. Finally, the Agencies do not interpret the CE to 
apply to the construction of a permanent project within an area 
acquired as temporary easements for the construction of past projects. 
Temporary easements end once the original project is completed and, 
therefore, cannot be considered ``existing'' transportation facilities 
when a new project is being considered.
    One commenter indicated that the description of the operational 
right-of-way in the proposal conflicted with the definition of ``right-
of-way'' in 23 CFR 710.105 and the requirements for managing real 
property within the boundaries of a federally assisted facility. The 
commenter's opinion was that using a definition that does not include 
all real property within the right-of-way boundary of a project would 
undermine the State's ability to acquire any real estate beyond the 
proposed ``operational right-of-way'' boundaries and will impede the 
State's ability to manage the entire right-of-way. The commenter 
indicated that the proposed rule would undermine the State's defense 
and necessity for acquisition outside the operational right-of-way 
boundaries.
    Section 710.105 defines the term ``right-of-way'' as ``real 
property and rights therein used for the construction, operation, or 
maintenance of a transportation or related facility funded under title 
23 of the United States Code.'' ``Real property'' is defined in the 
same section as ``land and any

[[Page 2114]]

improvements thereto, including but not limited to, fee interests, 
easements, air or access rights, and the rights to control use, 
leasehold, and leased fee interests.'' These terms are consistent with 
the description of ``existing operational right-of-way'' provided in 
the final rule. The Agencies note that the new CE does not overturn or 
modify applicable State laws and requirements for the acquisition of 
land. Those laws may require agencies to articulate and substantiate 
the necessity for their acquisition.
    One commenter requested a clarification on whether operational 
right-of-way includes easements that are necessary for operations and 
maintenance of existing transportation facilities. The commenter 
provided an example of a situation where a Federal land management 
agency provides an easement through the Federal land for the State's 
construction, operation, and maintenance of a transportation facility.
    The Agencies interpret existing operational right-of-way provision 
to include easements provided by Federal land management agencies for 
the construction, operation, and maintenance of transportation projects 
that use Federal lands. The CE would apply to FHWA or FTA actions 
contained within an easement area already granted by a Federal land 
management agency. However, the Agencies note that the CE only applies 
to FTA and FHWA actions. The decision to grant an easement or other 
approvals in Federal lands may constitute major Federal actions for the 
Federal land management agencies, which could require them to conduct 
their own NEPA reviews for their actions.

Sections 771.117(c)(23) and 771.118(c)(13)

    In the NPRM, the Agencies proposed identical language for a limited 
Federal assistance CE in sections 771.117(c)(23) and 771.118(c)(13). 
The proposed CE language was for ``[f]ederally funded projects that do 
not require Administration actions other than funding, and: (i) That 
receive less than $5,000,000 of Federal funds; or (ii) with a total 
estimated cost of not more than $30,000,000 and Federal funds 
comprising less than 15 percent of the total estimated project cost.''
    The Agencies are adopting final CE language that is different from 
the proposed language. The final CE language is identical for both FHWA 
and FTA and would cover ``Federally-funded projects: (i) That receive 
less than $5,000,000 of Federal funds; or (ii) with a total estimated 
cost of not more than $30,000,000 and Federal funds comprising less 
than 15 percent of the total estimated project cost.'' The discussion 
of comments below describes the rationale for these changes and 
differences.

Federally-Funded Projects and Administration Actions Other Than Funding

    Twenty-five entities commented on the NPRM language limiting the 
application of the CE to situations in which the only Agency action 
involved is funding. Eighteen commenters expressed the position that 
such a limitation to the scope of the CE is inconsistent with the 
statutory language that provides that the CE is available to ``any'' 
project. One commenter indicated that the NPRM's preamble statement 
that the CE would apply to projects that only involve Agency funding 
decisions and actions was unclear. One commenter stated that funding 
approval and approval of construction could be considered two separate 
actions under the CEQ definition of ``major Federal action'' in 40 CFR 
1508.18, and this would prevent the use of the CE for any construction 
project. The commenter also indicated that other approvals would be 
considered separately from funding, such as approvals of right-of-way 
or design approvals. One commenter expressed his belief that the 
congressional intent was to utilize this CE on Interstate projects even 
if an Interstate Access Justification report was needed. Another 
commenter stated that other Administration actions such as Interstate 
access approvals or nationwide permits from the U.S. Army Corps of 
Engineers do not have the potential on their own or collectively to 
create significant environmental impacts. Six commenters supported the 
exclusion of Administration actions other than funding such as 
approvals for Interstate access. One commenter discussed two examples 
of major highway projects that did not receive Federal-aid but still 
required detailed NEPA reviews because of FHWA's involvement in the 
approval of a request for an Interstate System access change under 23 
U.S.C. 111(a). Another commenter recommended including Interstate 
access in the regulatory text if it was going to be excluded from the 
CE's applicability. The commenter also recommended including in the 
preamble and the regulatory text the example of right-of-way disposals 
as another type of action that does not require Federal aid but that 
should not automatically qualify for a CE in this category.
    The Agencies have revised the text of the CE in response to the 
commenters, which recommended expanding the CE to all projects that 
fall within the monetary thresholds established by Congress (that is, 
no more than $5 million or no more than 15 percent in Federal funding 
for a project with total estimated cost of no more than $30 million). 
As noted in the NPRM, the action has to have some level of Federal 
assistance in order to qualify for the CE. This is based on the 
Agencies' understanding that the title of section 1317, the use of the 
term ``funds'' in section 1317(1)(A)-(B), and the Conference Report 
articulated a congressional intent to limit the CE to federally funded 
projects. Projects not funded with Federal funds but requiring other 
forms of approvals from the Agencies do not qualify for this CE. The 
Agencies note that other CEs continue to be available for projects that 
do not meet this condition. For example, a project not funded with 
Federal funds that require an Interstate System access change approval 
from FHWA may qualify for a CE under FHWA's (d)-list CEs (for example 
section 771.117(d)(7) (approvals for changes in access control)).
    The proposal set forth in the NPRM would have prevented the use of 
the CE for projects that receive Federal-aid within the established 
thresholds but that required other Agency approvals (such as approvals 
for changes in access control). However, the commenters highlighted 
ambiguities in the proposed rule that would have led to confusion in 
its application. For example, one commenter indicated that approval of 
construction could be interpreted to be a separate approval from the 
decision to fund the project and this would render the CE meaningless. 
In addition, interpreting the statutory provision in this manner would 
be inconsistent with the principle that the scope of a CE must include 
all connected actions (see CEQ Final Guidance on Establishing, 
Applying, and Revising Categorical Exclusions under NEPA, 75 FR 75628, 
75632, Dec. 6, 2010). The language in section 1317 does not exclude a 
subgroup of projects that require other Agency approvals. A project 
receiving Federal funds within the statutory thresholds and that also 
requires other Agency approvals qualifies for the CE under the 
statutory provision in section 1317. As a result, the Agencies are 
deleting the phrase ``that do not require Administration actions other 
than funding'' in the final rule.
    The Agencies understand that Federal funding alone is not a 
reliable indicator of the significance of the environmental

[[Page 2115]]

impacts associated with a project. However, the Agencies find that the 
statute clearly conveys the congressional direction that FHWA or FTA 
projects receiving Federal funding below the thresholds should be 
presumed to not trigger EA and EIS requirements. This presumption 
applies unless the project involves unusual circumstances that make its 
application improper. The uniqueness of this CE (that is, a CE 
determination based on dollar thresholds instead of a particular scope 
or description of the action) makes the consideration of unusual 
circumstances particularly important to ensure that projects that 
receive Federal funds below the established thresholds are not 
processed as CEs when the unusual circumstances warrant another level 
of NEPA review.

Funding Criterion

    Nine entities commented specifically on the second statutory 
funding criterion for projects with a total estimated to cost of not 
more than $30,000,000 and Federal funds of less than 15 percent of the 
total estimated project cost. Four commenters recommended the deletion 
of this criterion to avoid confusion since projects meeting this 
threshold would also meet the threshold in the first criterion for 
projects receiving less than $5,000,000 in Federal funds. One commenter 
suggested that Congress intended to apply the CE to projects that cost 
more than $30,000,000 and receive Federal funds of less than 15 percent 
($4,500,000) of the project's estimated cost. Four commenters submitted 
general comments on section 1317 indicating that the statutory language 
for this CE was clear and did not need revisions.
    The Agencies will retain the two criteria. Although $4,500,000 is 
15 percent of the total estimated project cost for a project with total 
estimated project cost of $30,000,000, and this is below the $5,000,000 
threshold in the first criterion, the Agencies decided to retain the 
provision because it is explicitly stated in the law.

Re-Evaluation

    Four commenters commented on the Agencies' statement in the NPRM 
that re-evaluations could be triggered under 23 CFR 771.129 if, after 
the limited Federal assistance CE was used, there was a change to the 
project that raised the level of Federal funding beyond the funding 
thresholds, and there was still an FHWA and/or FTA action to be taken. 
Two of those commenters indicated that the final rule should clarify 
that when the State relies upon the second criterion, the only changes 
that could trigger re-evaluation would be an increase in the percentage 
of Federal funds above the 15 percent threshold or a change in the 
project's scope to include activities not included by the original CE. 
Another of the commenters indicated that requiring re-evaluation for 
changes in the funding thresholds appeared to be contrary to the intent 
of MAP-21 that specifies ``estimated'' project costs. The fourth 
commenter stated that the Agencies' statement on re-evaluation was in 
direct conflict with section 1317 of MAP-21 because it states that the 
CE applies to the estimated project cost and not final project costs.
    Re-evaluation would be triggered if there is an increase in the 
amount of Federal funds for the project beyond the established 
thresholds, and there is still an FHWA and/or FTA action that needs to 
be taken when these changes occur. The need for re-evaluation is not 
unique to this CE. This CE, however, highlights the importance of 
obtaining accurate cost estimates and the need for careful deliberation 
before applying this CE to a project that is close to the established 
thresholds. The applicant and the Agency(s) would consult prior to any 
request for further approvals or grants (including approval of project 
plans, specifications, or estimates) to ascertain whether the CE 
designation remains valid. Even when a change occurs, the project may 
continue to qualify for a CE under other CEs designated in part 771, if 
it meets the requirements of the CE. An interpretation that the only 
basis for determining the applicability of the CE should be the 
applicant's estimate without opportunity to re-evaluate would not 
promote good project cost estimates and would be inconsistent with the 
Agencies' re-evaluation process that applies to all NEPA reviews.

Inflation and Small Cost Increases

    One commenter indicated that the funding thresholds should be 
indexed for inflation. The commenter stated that the funding thresholds 
will become outdated with inflation, and Congress likely did not intend 
for the value of the thresholds to be eroded over time. Another 
commenter recommended building some flexibility into the process to 
accommodate small cost increases or changes in the Federal 
participation rate. The commenter stated that planning level costs 
estimates and anticipated Federal participation rates available at the 
project development stage where NEPA review occurs are likely to change 
as the project advances to construction.
    The Agencies find that the statutory language regarding the funding 
thresholds is clear. Therefore, the Agencies do not provide for 
inflation considerations or for small cost increases beyond the 
thresholds provided, and do not make the suggested changes.

Independent Utility, Logical Termini, and Restriction of Consideration 
Alternatives

    Three commenters supported the requirement that the projects 
demonstrate independent utility, connect logical termini, and not 
restrict consideration of alternatives, but recommended a clarification 
that projects can qualify for the CE even if they are built in 
segments. They indicated that pedestrian, bicycle, and shared use 
pathway projects are often built in phases even though the overall 
project meets the funding threshold. One commenter stated that the 
limited Federal assistance CE, by its very nature, creates an incentive 
to divide transportation projects into smaller components if doing so 
would enable the project to come within the scope of the CE. The 
commenter recommended documentation demonstrating that the project has 
independent utility, connects logical termini, and does not restrict 
consideration of alternatives for other reasonably foreseeable 
transportation improvements.
    The Agencies agree with the commenters. A CE must capture the 
entire proposed action, which includes all connected actions (see CEQ 
``Final Guidance on Establishing, Applying, and Revising Categorical 
Exclusions under NEPA,'' 75 FR 75628, 75632, Dec. 6, 2010). The 
requirement that the projects demonstrate independent utility, connect 
logical termini, and not restrict consideration of alternatives 
reflects the Agencies' test for determining the full scope of a project 
for NEPA review purposes and avoiding impermissible segmentation. This 
does not prohibit the construction of a transportation facility in 
phases so long as the full project scope receives NEPA review before 
the first phase begins construction. Typically, the documentation for 
the project will be sufficient to demonstrate that the proposal has 
independent utility, connects logical termini (for linear projects), 
and does not restrict consideration of alternatives for other 
reasonably foreseeable transportation improvements. In some instances, 
additional information may be needed to establish that these criteria 
will be met.

[[Page 2116]]

Use of CE by Multiple Federal Agencies

    One commenter recommended the use of the CE for multiple Agency 
funding decisions and actions. The commenter mentioned the Partnership 
for Sustainable Communities among the U.S. Department of Housing and 
Urban Development, U.S. Environmental Protection Agency, and DOT as an 
initiative that allows for multiagency collaboration that should extend 
to this CE's use. Two commenters indicated that the proposed CEs appear 
to apply to all types of Federal funds used for transportation facility 
projects and should not be limited to only FHWA's rules.
    Although the CE takes into account to all sources of Federal 
funding for a transportation project, the statute is very specific in 
limiting the CE to the FHWA and FTA joint NEPA procedures. A CE 
determination for FHWA or FTA does not satisfy the NEPA procedural 
requirements for other Federal agencies that also have actions for the 
same project (such as permits or other approvals). The CE is only 
available for FHWA and FTA actions.

Section-by-Section Analysis

    The Agencies provide guidance throughout the Summary and Response 
to Comments section above on their interpretation of the CEs as 
modified in response to public comment. A minor additional change is 
made to remove section 771.118(d)(5) due to the availability of the new 
section 771.118(c)(12). The changes are described in this section.

Section 771.117

    The FHWA is adding paragraph (c)(22) to this section for 
``[p]rojects, as defined in 23 U.S.C. 101, that would take place 
entirely within the existing operational right-of-way. Existing 
operational right-of-way refers to right-of-way that has been disturbed 
for an existing transportation facility or is maintained for a 
transportation purpose. This area includes the features associated with 
the physical footprint of the transportation facility (including the 
roadway, bridges, interchanges, culverts, drainage, fixed guideways, 
mitigation areas, etc.) and other areas maintained for transportation 
purposes such as clear zone, traffic control signage, landscaping, any 
rest areas with direct access to a controlled access highway, areas 
maintained for safety and security of a facility, parking facilities 
with direct access to an existing transportation facility, transit 
power substations, transit venting structures, and transit maintenance 
facilities. Portions of the right-of-way that have not been disturbed 
or that are not maintained for transportation purposes are not in the 
existing operational right-of-way.''
    The FHWA is also adding paragraph (c)(23) to this section for 
``Federally funded projects (i) that receive less than $5,000,000 of 
Federal funds; or (ii) with a total estimated cost of not more than 
$30,000,000 and Federal funds comprising less than 15 percent of the 
total estimated project cost.''

Section 771.118

    FTA is adding paragraph (c)(12) to this section with the same text 
as the new paragraph (22) in section 771.117(c). FTA is also adding 
paragraph (c)(13) to this section with the same text as the new 
paragraph (23) in section 771.117(c).
    FTA reviewed its existing list of CEs at section 771.118, and 
determined that paragraph (d)(5) (``[c]onstruction of bicycle 
facilities within existing transportation right-of-way'') is subsumed 
by paragraph (c)(12). Therefore, FTA is removing paragraph 
771.118(d)(5) to reduce CE application confusion, and is reserving it 
for a future section 771.118(d) example.

Statutory/Legal Authority for This Rulemaking

    The Agencies derive explicit authority for this rulemaking action 
from 49 U.S.C. 322, which provides authority to ``[a]n officer of the 
Department of Transportation [to] prescribe regulations to carry out 
the duties and powers of the officer.'' That authority is delegated to 
the Agencies in 49 CFR 1.81(a)(3), which provides that the authority to 
prescribe regulations contained in 49 U.S.C. 322 is delegated to each 
Administrator ``with respect to statutory provisions for which 
authority is delegated by other sections in [49 CFR Part 1].'' Included 
in 49 CFR Part 1, specifically 49 CFR 1.81(a)(5), is the delegation of 
authority with respect to NEPA, the statute implemented by this final 
rule. Moreover, the CEQ regulations that implement NEPA provide at 40 
CFR 1507.3 that agencies shall continue to review their policies and 
NEPA implementing procedures and revise them as necessary to insure 
full compliance with the purposes and provisions of NEPA.

Rulemaking Analyses and Notices

    The Agencies considered all comments received before the close of 
business on the comment closing date indicated above, and the comments 
are available for examination in the docket at Regulations.gov. The 
Agencies also considered comments received after the comment closing 
date and filed in the docket prior to this final rule.

Executive Orders 12866 and 13563 (Regulatory Planning and Review) and 
DOT Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). The 
Agencies determined that this action is not a significant regulatory 
action under section 3(f) of Executive Order 12866 nor is it 
significant within the meaning of DOT regulatory policies and 
procedures (44 FR 11032). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. It is anticipated 
that the economic impact of this rulemaking are minimal. The changes to 
this rule are requirements mandated by MAP-21 to increase efficiencies 
in environmental review by making changes in the Agencies' 
environmental review procedures.
    The activities in this final rule are inherently limited in their 
potential to cause significant environmental impacts because the use of 
the CEs is subject to the unusual circumstances provision in 23 CFR 
771.117(b) and 23 CFR 771.118(b), respectively. These provisions 
require appropriate environmental studies, and may result in the 
reclassification of the NEPA evaluation of the project to an EA or EIS, 
if the Agencies determine that the proposal involves potentially 
significant or significant environmental impacts. These changes will 
not adversely affect, in any material way, any sector of the economy. 
In addition, these changes will not interfere with any action taken or 
planned by another agency and will not materially alter the budgetary 
impact of any entitlements, grants, user fees, or loan programs. 
Consequently, a full regulatory evaluation is not required.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.), the Agencies must consider whether this final rule would have a 
significant economic impact on a substantial number of small entities. 
``Small entities'' include small businesses, not for-profit 
organizations that are

[[Page 2117]]

independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations under 50,000. The 
Agencies do not believe this final rule will have a significant 
economic impact on entities of any size, and the Agencies received no 
comment in response to our request for any such information in the 
NPRM. These revisions could expedite environmental review and thus 
would be less than any current impact on small business entities. Thus, 
the Agencies determine that this final rule will not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This final rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$148.8 million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. The Agencies have analyzed this final 
rule in accordance with the principles and criteria contained in 
Executive Order 13132 and determined that this action will not have a 
substantial direct effect on the States, the relationship between the 
Federal Government and the States, or the distribution of power and 
responsibilities among the various levels of government, and, 
therefore, does not have federalism implications. The Agencies have 
also determined that this action will not preempt any State law or 
State regulation or affect the States' ability to discharge traditional 
State governmental functions. The NPRM invited State and local 
governments with an interest in this rulemaking to comment on the 
effect that adoption of specific proposals may have on State or local 
governments. No State or local governments provided comments on this 
issue.

Executive Order 13175 (Tribal Consultation)

    Executive Order 13175 requires agencies to assure meaningful and 
timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. The Agencies have analyzed this action under 
Executive Order 13175, dated November 6, 2000, and believe that it will 
not have substantial direct effects on one or more Indian tribes; will 
not impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. Therefore, a tribal 
summary impact statement is not required. The Agencies received no 
comment in response to our request in the NPRM for comments from Indian 
tribal governments on the effect that adoption of specific proposals 
might have on Indian communities.

Executive Order 13211 (Energy Effects)

    The Agencies have analyzed this action under Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use,'' dated May 18, 2001. The Agencies 
determined that this action is not a significant energy action under 
that order because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, a 
Statement of Energy Effects under Executive Order 13211 is not 
required.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities apply 
to these programs and were carried out in the development of this rule.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), no Federal agency shall conduct or sponsor a collection of 
information unless in advance the agency has obtained approval by and a 
control number from the Office of Management and Budget (OMB), and no 
person is required to respond to a collection of information unless it 
displays a valid OMB control number.. The Agencies determined that the 
final rule does not contain collection of information requirements for 
the purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a), 91 FR 27534, May 10, 2012, require DOT agencies to 
achieve environmental justice (EJ) as part of their mission by 
identifying and addressing, as appropriate, disproportionately high and 
adverse human health or environmental effects, including interrelated 
social and economic effects, of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. The DOT Order requires DOT agencies to address 
compliance with the Executive Order and the DOT Order in all rulemaking 
activities. In addition, both Agencies have issued additional documents 
relating to administration of the Executive Order and the DOT Order. On 
June 14, 2012, the FHWA issued an update to its EJ order, FHWA Order 
6640.23A, ``FHWA Actions to Address Environmental Justice in Minority 
Populations and Low Income Populations'' (available online at 
www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). The FTA also 
issued an update to its EJ policy, ``FTA Policy Guidance for Federal 
Transit Recipients,'' 77 FR 42077, July 17, 2012 (available online at 
www.fta.dot.gov/legislation_law/12349_14740.html).
    The Agencies evaluated the CE under the Executive Order, the DOT 
Order, the FHWA Order, and the FTA Circular. The Agencies determined 
that designation of the new CEs for actions within the operational 
right-of-way and for actions with limited Federal assistance through 
this rulemaking will not cause disproportionately high and adverse 
effects on minority or low income populations. The rule simply adds a 
provision to the Agencies' NEPA procedures under which they may decide 
in the future that a project or program does not require the 
preparation of an EA or EIS. The rule itself has no potential for 
effects until it is applied to a proposed action requiring approval by 
the FHWA or FTA.
    At the time the Agencies apply a CE established by this rulemaking, 
the

[[Page 2118]]

Agencies have an independent obligation to conduct an evaluation of the 
proposed action under the applicable EJ orders and guidance. The 
adoption of this rule does not affect the scope or outcome of that EJ 
evaluation. Nor does the new rule affect the ability of affected 
populations to raise any concerns about potential EJ effects at the 
time the Agencies consider applying a new CE. Indeed, outreach to 
ensure the effective involvement of minority and low income populations 
in the environmental review process is a core aspect of the EJ orders 
and guidance. For these reasons, the Agencies also determined no 
further EJ analysis is needed and no mitigation is required in 
connection with the designation of the CEs for actions within the 
operational right-of-way and for actions with limited Federal 
assistance.

Executive Order 13045 (Protection of Children)

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

Executive Order 12630 (Taking of Private Property)

    The Agencies analyzed this final rule under Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights'' and determined the rule will not affect a taking of 
private property or otherwise have taking implications under Executive 
Order 12630.

National Environmental Policy Act

    This action will not have any effect on the quality of the 
environment under NEPA. Agencies are required to adopt implementing 
procedures for NEPA that establish specific criteria for, and 
identification of, three classes of actions: those that normally 
require preparation of an EIS; those that normally require preparation 
of an EA; and those that are categorically excluded from further NEPA 
review (40 CFR 1507.3(b)). The CEQ regulations do not direct agencies 
to prepare a NEPA analysis or document before establishing Agency 
procedures (such as this regulation) that supplement the CEQ 
regulations for implementing NEPA. The CEs are one part of those agency 
procedures, and therefore establishing CEs does not require preparation 
of a NEPA analysis or document. Agency NEPA procedures are generally 
procedural guidance to assist agencies in the fulfillment of agency 
responsibilities under NEPA, but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular proposed action. The requirements for establishing agency 
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The 
determination that establishing CEs does not require NEPA analysis and 
documentation was upheld in Heartwood, Inc. v. U.S. Forest Service, 73 
F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 
(7th Cir. 2000).

Regulation Identification Number

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

List of Subjects

23 CFR Part 771

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

49 CFR Part 622

    Environmental impact statements, Grant programs--transportation, 
Public transit, Recreation areas, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, the Agencies are amending 23 CFR 
part 771 and 49 CFR part 622 as follows:

Title 23--Highways

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
1. The authority citation for part 771 is revised to read as follows:

    Authority:  42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 
138, 139, 315, 325, 326, and 327; 49 U.S.C. 303 and 5323(q); 40 CFR 
Parts 1500-1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119 
Stat. 1144, sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, 
sections 1315, 1316 and 1317.


Sec.  771.117  [Amended]

0
2. Amend Sec.  771.117 by adding paragraphs (c)(22) and (c)(23) to read 
as follows:


Sec.  771.117  FHWA categorical exclusions.

* * * * *
    (c) * * *
    (22) Projects, as defined in 23 U.S.C. 101, that would take place 
entirely within the existing operational right-of-way. Existing 
operational right-of-way refers to right-of-way that has been disturbed 
for an existing transportation facility or is maintained for a 
transportation purpose. This area includes the features associated with 
the physical footprint of the transportation facility (including the 
roadway, bridges, interchanges, culverts, drainage, fixed guideways, 
mitigation areas, etc.) and other areas maintained for transportation 
purposes such as clear zone, traffic control signage, landscaping, any 
rest areas with direct access to a controlled access highway, areas 
maintained for safety and security of a transportation facility, 
parking facilities with direct access to an existing transportation 
facility, transit power substations, transit venting structures, and 
transit maintenance facilities. Portions of the right-of-way that have 
not been disturbed or that are not maintained for transportation 
purposes are not in the existing operational right-of-way.
    (23) Federally-funded projects:
    (i) That receive less than $5,000,000 of Federal funds; or
    (ii) With a total estimated cost of not more than $30,000,000 and 
Federal funds comprising less than 15 percent of the total estimated 
project cost.
* * * * *


Sec.  771.118  [Amended]

0
3. Amend Sec.  771.118 by adding paragraphs (c)(12) and (c)(13) and 
removing and reserving paragraph (d)(5) to read as follows:


Sec.  771.118  FTA categorical exclusions.

* * * * *
    (c) * * *
    (12) Projects, as defined in 23 U.S.C. 101, that would take place 
entirely within the existing operational right-of-way. Existing 
operational right-of-way refers to right-of-way that has been disturbed 
for an existing transportation facility or is maintained for a 
transportation purpose. This area includes the features associated with 
the physical footprint of the transportation facility (including the 
roadway, bridges, interchanges, culverts, drainage, fixed guideways, 
mitigation areas, etc.) and other areas maintained for transportation 
purposes such as clear zone, traffic control signage, landscaping, any 
rest areas with direct access to a controlled access highway, areas 
maintained for safety and security of a transportation facility, 
parking facilities with direct access to an

[[Page 2119]]

existing transportation facility, transit power substations, transit 
venting structures, and transit maintenance facilities. Portions of the 
right-of-way that have not been disturbed or that are not maintained 
for transportation purposes are not in the existing operational right-
of-way.
    (13) Federally-funded projects:
    (i) That receive less than $5,000,000 of Federal funds; or
    (ii) With a total estimated cost of not more than $30,000,000 and 
Federal funds comprising less than 15 percent of the total estimated 
project cost.
* * * * *
    (d) * * *
    (5) [Reserved]
* * * * *

Title 49--Transportation

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
4. The authority citation for part 622 is revised to read as follows:

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

Gregory G. Nadeau,
Deputy Administrator, Federal Highway Administration.
Peter Rogoff,
Administrator, Federal Transit Administration.
[FR Doc. 2014-00370 Filed 1-10-14; 8:45 am]
BILLING CODE 4910-22-P