Update to U.S. Department of Transportation's NEPA Implementing Procedures, 92966-92974 [2016-30660]

Agencies

• DEPARTMENT OF TRANSPORTATION
• Office of the Secretary

[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Notices]
[Pages 92966-92974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30660]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[No. DOT-OST-2016-0239]


Update to U.S. Department of Transportation's NEPA Implementing 
Procedures

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of availability and request for comment.

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SUMMARY: The United States Department of Transportation (Department) is 
issuing a proposed update to its National Environmental Policy Act 
(NEPA) implementing procedures, DOT Order 5610.1D, Procedures for 
Considering Environmental Impacts. Consistent with the Council on 
Environmental Quality's regulations implementing NEPA, the Department 
is proposing this update and seeking public review and comment on the 
proposals.

DATES: Submit comments on or before January 10, 2017.

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

FOR FURTHER INFORMATION CONTACT: Amy Coyle, Senior Attorney Advisor, 
U.S. Department of Transportation, Office of the General Counsel, 1200 
New Jersey Avenue SE., Washington, DC 20590, 202-366-0691, 
amy.coyle@dot.gov; or Camille Mittelholtz, Environmental Policies Team 
Leader, U.S. Department of Transportation, Office of the Assistant 
Secretary for Transportation Policy, 1200 New Jersey Avenue SE., 
Washington, DC 20590, 202-366-4861, camille.mittelholtz@dot.gov.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The U.S. Department of Transportation (Department or DOT) is 
proposing to update its National Environmental Policy Act (NEPA) 
implementing procedures. The Department last updated its current 
procedures, DOT Order 5610.1C, Procedures for Considering Environmental 
Impacts, in 1985 (5610.1C).\1\ The proposed Order, DOT Order 5610.1D, 
Procedures for Considering Environmental Impacts (updated NEPA Order) 
seeks to achieve the following objectives: (1) Ensure a full and fair 
NEPA process that includes meaningful public involvement throughout, 
and the balanced consideration of a reasonable range of alternatives 
and their impacts on the human environment; (2) improve efficiency and 
expedite project delivery; (3) provide good customer service to 
stakeholders through consistent implementation of NEPA across the 
Department; (4) provide the requisite flexibility for the Department's 
Operating Administrations (OAs) to apply their NEPA implementing 
procedures to their specific programs; and (5) balance the needs of all 
OAs, from those with well-established NEPA programs to those seeking 
more guidance.
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    \1\ 44 FR 56420, Oct. 1, 1979, available at https://www.transportation.gov/office-policy/transportation-policy/procedures-considering-environmental-impacts-dot-order-56101c.
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    Additionally, the updated NEPA Order addresses relevant project 
delivery provisions of the Fixing America's Surface Transportation Act 
(FAST Act) that apply Department-wide, including the following:
    [ssquf] Section 1301 directs the Secretary to align, to the maximum 
extent practicable, the requirements of Section 4(f) (23 U.S.C. 138/49 
U.S.C. 303), Section 106 of the Historic Preservation Act (54 U.S.C. 
306108), and NEPA.

[[Page 92967]]

Section 23 of the updated NEPA Order addresses section 1301.
    [ssquf] Section 1310 amends 49 U.S.C. 304, which was created by 
section 1314 of the Moving Ahead for Progress in the 21st Century Act 
(MAP-21). Under 49 U.S.C. 304 provision, one OA may apply the 
categorical exclusion established in the procedures of another OA for 
multimodal projects as defined in 23 U.S.C. 139(a)(5). Section 10(d) of 
the updated NEPA Order addresses section 1310.
    [ssquf] Section 1311 creates 49 U.S.C. 304a, which provides for use 
of errata sheets for final environmental impact statements (FEISs), 
directs the Department to issue a combined FEIS and record of decision 
(ROD) (FEIS/ROD) to the maximum extent practicable, and provides 
discretionary processes for incorporation by reference and for one OA 
to adopt environmental assessments (EAs) and EISs prepared by another 
OA. Paragraphs 14(b) and 15(c) of the updated NEPA Order address the 
combined FEIS/ROD. Paragraph 20(g) of the updated NEPA Order addresses 
adoption. Paragraph 15(b) of the updated NEPA Order addresses errata 
sheets. The Department does not address incorporation by reference in 
the updated NEPA Order. However, the Department welcomes comments on 
whether to add a paragraph to address it.
    [ssquf] Section 1313 creates 49 U.S.C. 310, Aligning Federal 
Environmental Reviews, which directs the Department to perform several 
activities: Develop a coordinated and concurrent environmental review 
and permitting process for transportation projects as well as a program 
to measure and report on progress towards alignment of Federal reviews 
and reducing permitting and project delivery timelines; develop a 
checklist to help project sponsors identify potential natural, 
cultural, and historic resources in the area of a proposed project; and 
facilitate annual interagency collaboration sessions. While the 
Department has undertaken efforts to implement this provision, 
including developing a checklist \2\ and engaging in several 
interagency collaboration sessions, the Department has not addressed 
this provision in the updated NEPA Order. In light of the savings 
provision in 49 U.S.C. 310(g), which makes this section inapplicable to 
projects subject to 23 U.S.C. 139 (most highway, transit, and railroad 
projects requiring an EIS), the Department is requesting comment on how 
it might further implement the provisions of 49 U.S.C. 310 in the 
updated NEPA Order.
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    \2\ Available at https://www.transportation.gov/administrations/office-policy/checklist-environmental-requirements-and-resources-1313-and-appendix.
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    [ssquf] Section 1432 provides for exemptions and expedited 
procedures for certain environmental review processes during 
emergencies. Section 19 of the updated NEPA Order references the 
availability of this provision.
    [ssquf] Section 9001 establishes the National Surface 
Transportation and Innovative Finance Bureau, known as the Build 
America Bureau (Bureau). The Bureau streamlines credit opportunities 
and grants and provides access to the credit and grant programs with 
more speed and transparency, while also providing technical assistance 
and encouraging innovative best practices in project planning, 
financing, delivery, and monitoring. It also administers several 
transportation financial assistance programs, including the 
Transportation Infrastructure Finance and Innovation Act (TIFIA) and 
Railroad Rehabilitation and Improvement Financing (RRIF) credit 
programs. The Bureau is a Secretarial Office. As the proposed Order 
explains, a Secretarial Office may in some situations rely on the OA 
with the most expertise on the potential environmental impacts of a 
project to conduct the environmental review process on the Secretarial 
Office's behalf.
    Consistent with the Council on Environmental Quality's (CEQ's) 
Regulations for Implementing the Procedural Provisions of NEPA, 40 CFR 
parts 1500-1508 (CEQ regulations), the Department consulted with CEQ on 
the preparation of the updated NEPA Order. See 40 CFR 1507.3(a). In 
accordance with 40 CFR 1507.3(a), the Department is proposing this 
updated NEPA Order and seeking public review and comment on the 
proposals. To facilitate this process, the following section summarizes 
the general updates made throughout the updated NEPA Order and then the 
changes or additions by section.
    The Department requests comments on the updated NEPA Order, which 
is available in the docket (DOT-OST-2016-0239) at www.regulations.gov. 
The docket also contains the ``Administrative Record to Update Existing 
and Support New Categorical Exclusions under the National Environmental 
Policy Act'' file (supporting information). DOT will respond to 
comments received on the proposed NEPA Order revisions in a future 
Federal Register notice, to be published after the close of the comment 
period. That notice will also announce the availability of the final 
NEPA Order, reflecting any changes implemented as a result of comments 
received, should a final NEPA Order be issued.

II. Section-by-Section Analysis

General Updates

    As a general principle, the Department strived to draft the updated 
NEPA Order at a high level to apply to the Department's diverse 
programs and actions, and to the extent possible, avoid creating direct 
conflicts with existing OA programs and actions. To that end, the 
Department eliminated the more detailed guidance set forth in 
Attachment 2 of 5610.1C. Instead, the Department will issue a ``Desk 
Reference'' that provides more specific guidance on particular 
provisions of the updated NEPA Order. This will allow the Department to 
update the Desk Reference when appropriate without having to update the 
updated NEPA Order. This approach is consistent with CEQ's 
recommendation that agencies issue ``explanatory guidance'' on their 
implementing procedures. See 40 CFR 1507.3(a).
    Another overall goal of the updated NEPA Order is to improve 
clarity. This includes rephrasing to make clear who is responsible for 
taking the actions specified in the updated NEPA Order. To improve 
readability, the updated NEPA Order uses ``OA'' as the entity 
responsible, and defines ``OA'' to include a Secretarial Office that 
carries out its own NEPA responsibilities (as opposed to that office 
relying on an OA's expertise to prepare the NEPA document). The updated 
NEPA Order also updates the names of the relevant offices that have 
responsibilities, including the Office of Policy and Office of the 
General Counsel (and relevant subdivisions thereof). Finally, the 
updated NEPA Order updates terminology to be consistent with modern 
NEPA practice and the Department's current operations.
Section 1: Introduction
    Section 1 of the updated NEPA Order is a new section added to 
reflect the historical context of how past transportation decisions 
impacted communities. The new text further discusses the role of NEPA 
as a tool to make future transportation decisions that expand 
opportunity, support socio-economic mobility, and are inclusive of, 
responsive to, and reflective of communities they impact. It reflects 
the Department's intent to engage stakeholders earlier in the NEPA

[[Page 92968]]

process to achieve better outcomes that serve all users and to improve 
the efficiency of the project delivery process.
Section 2: Policy and Intent
    The Department made significant revisions to 5610.1C section 2, 
Policy and Intent. This section emphasizes the Department's goal to 
achieve an optimal process that equitably considers impacts and 
provides opportunity for meaningful public involvement throughout the 
process. Paragraph (a) emphasizes the goals of the updated NEPA Order 
are to facilitate a collaborative process to achieve optimal outcomes 
while protecting and enhancing the environment, addressing climate 
change, and engaging the public, as well as to use the NEPA process as 
an umbrella to achieve a single environmental review process. Paragraph 
(b) sets forth the Department's overarching environmental policy, 
including the need to connect people to opportunity through a safe, 
efficient, and accessible transportation system. Finally, paragraph (c) 
sets forth the goals the Department seeks to achieve through the NEPA 
process, including meaningful public participation and collaboration 
and consideration of climate change effects.
Section 3: Definitions
    The Department is adding a Definitions section to provide further 
clarity on the meaning of certain terms used in the updated NEPA Order. 
The Definitions section incorporates by reference the CEQ regulatory 
definitions set forth in 40 CFR part 1508, and then supplements those 
definitions where the Department found additional clarity was needed.
    Action: In addition to relying upon the definition of action in 40 
CFR 1508.18, the Department includes a list of examples of typical DOT 
actions. Among these are ``policies and plans (including those 
submitted to DOT by State, tribal, or local agencies, or other public 
or private applicants, unless otherwise exempted).'' This would not 
include, for example, transportation improvement plans (TIPs) and 
statewide improvement plans (STIPs) conducted pursuant to 23 U.S.C. 134 
and 135, respectively; STIPs and TIPs are specifically statutorily 
exempted (23 U.S.C. 134(q) and 23 U.S.C. 135(k), respectively). 
Additionally, the definition clarifies that a proposal is not an action 
subject to NEPA if it does not allow for agency discretion to consider 
environmental impacts in decision making or is not subject to DOT 
control and responsibility.
    Administrator: Recognizing that the responsibilities of the 
Administrator are often delegated, the updated NEPA Order defines the 
Administrator as the head of an OA or his/her designee.
    Applicant: The updated NEPA Order defines applicant broadly to 
reflect the variety of applicants encountered across the Department. 
The updated NEPA Order also recognizes that some OA NEPA implementing 
procedures (OA Procedures) provide that the applicant will carry out 
the responsibilities of the OA on its behalf, and therefore could 
conduct activities under this Order on behalf of that OA.
    Class of action: The Department is adopting this term, consistent 
with its use in 40 CFR 1507.3(b)(2), to mean the level of NEPA review 
required for a particular action (i.e., a categorical exclusion (CE), 
an EA, or an EIS).
    Council on Environmental Quality (CEQ): The updated NEPA Order 
makes reference to CEQ on several occasions so the Department is 
identifying it in the Definitions section.
    Cumulative impact: The updated NEPA Order incorporates the 
definition of cumulative impact from the CEQ regulation with a minor 
edit to correct an error in the original drafting. This edit was made 
at the recommendation of CEQ.
    Environment: The Department included a definition of environment 
consistent with the CEQ definition of ``human environment'' at 40 CFR 
1508.14 to emphasize the holistic nature of the term.
    Environmental review process: The updated NEPA Order includes this 
term to emphasize that the Department strives to comply not just with 
NEPA, but all applicable environmental requirements in a single process 
to ensure efficient project delivery.
    Multimodal project: The updated NEPA Order includes both a broad 
definition of ``multimodal project'' as well as a reference to 
multimodal project as defined in 23 U.S.C. 139, where this term is used 
in that context, because this narrower definition is not appropriate 
for all references to multimodal projects in the updated NEPA Order.
    NEPA: The updated NEPA Order provides the full statutory citation 
for NEPA.
    NEPA Document: The updated NEPA Order uses the term NEPA Document 
in lieu of environmental document as used in the CEQ regulations, and 
defines it more broadly to include an EIS, record of decision (ROD), 
EA, finding of no significant impact (FONSI), or any documentation that 
may be prepared in the application of a CE to a proposed action.
    Operating Administration (OA): The updated NEPA Order defines OA to 
mean any agency established within the Department, and lists the 
current OAs. As noted in General Updates above, to improve readability 
of the updated NEPA Order, OA would also include a Secretarial Office 
where that office is carrying out its own NEPA responsibilities.
    Shared Use Corridor: The updated NEPA Order defines shared use 
corridor to provide clarity on its distinction from a multimodal 
project.
Section 4: Implementation of the Order
    This new section addresses the operations of the updated NEPA 
Order. It updates certain paragraphs from 5610.1C section 1, 
Background, regarding cancellation and authority, and pulls in the 
effective date of the updated NEPA Order, which 5610.1C listed 
separately in section 18.
    Paragraph (a)(1) establishes that the updated NEPA Order serves as 
the overarching procedures for the Department as well as the specific 
procedures for any Secretarial Office carrying out its own NEPA 
responsibilities. For example, if the Office of Facilities, which is a 
Secretarial Office, was constructing a new building, it would rely on 
the updated NEPA Order for its NEPA implementing procedures. In 
contrast, if for example, the Federal Railroad Administration (FRA) 
were delegated or otherwise assigned responsibility to conduct a NEPA 
review on behalf of the Build America Bureau on a project applying for 
a RRIF loan, the FRA's NEPA procedures would guide FRA's work on the 
environmental review for the Bureau.
    Consistent with 40 CFR 1507.3(a), paragraph (a)(2) reminds OAs that 
the updated NEPA Order supplements rather than supplants the CEQ 
regulations, and that they must comply with the CEQ regulations, the 
updated NEPA Order, and their own OA Procedures. Because some OAs have 
unique statutory authorities that govern the environmental review 
process, the paragraph also acknowledges that those statutes and their 
implementing regulations govern any conflicts with the updated NEPA 
Order.
    Paragraph (a)(3) provides that OAs may establish in their own OA 
Procedures more specific processes and standards than those set forth 
in the updated NEPA Order. Further OA Procedures may contain more 
stringent timeframes or standards, but the OA

[[Page 92969]]

must follow the process set forth in paragraph 30(c) to obtain 
concurrence from the Office of Policy and Office of the General 
Counsel.
    Paragraph (a)(4) provides clarity on the use of the terms ``must'' 
and ``should'' in the updated NEPA Order. ``Must'' denotes mandatory 
activities; ``should'' indicates that the OA has discretion to 
determine whether the activity is practicable or appropriate.
    Paragraph (b) explains the intended treatment of the term ``Office 
of Policy'' as used throughout the updated NEPA Order. In particular, 
it specifies that whenever an OA must consult or notify the Office of 
Policy, the Office of Policy must in turn consult or notify the Office 
of the General Counsel. This streamlined approach means the OAs only 
need to make one notification and is consistent with the Department's 
current practice.
    Paragraph (c) provides the authority under which the Department is 
issuing the updated NEPA Order. Paragraph (d) cancels 5610.1C. Finally, 
paragraph (e) makes the updated NEPA Order effective upon final 
publication.
Section 5: General Provisions
    The updated NEPA Order includes a new section 5, General 
Provisions, which provides general direction on the NEPA process, 
irrespective of the class of action. This section updates and builds 
upon several provisions from 5610.1C, including section 2, Policy and 
Intent, paragraphs (b), which addresses the purpose and (c), which 
addresses the administrative record; and section 7, Preparation and 
Processing of Draft Environmental Statements, paragraphs (b) Timing of 
Preparation of Draft Statements and (c) Interdisciplinary Approach and 
Responsibilities of EIS Preparation.
    Paragraph (a) of the updated NEPA Order addresses the timing of the 
environmental review process, encouraging OAs to begin it as early as 
possible in the development of the action. It also includes the CEQ 
regulatory prohibition against taking actions that would have adverse 
impacts or limit alternatives, including notifying applicants, 
consistent 40 CFR 1506.1(a)-(b) and 1502.2(f)-(g). Paragraph (b) 
requires OAs to use an interdisciplinary approach, consistent with 40 
CFR 1502.6, and provides that they may use professional services but 
must have staff with the capacity to evaluate these services and take 
responsibility for the final content of their NEPA documents, 
consistent with 40 CFR 1506.5 and 1507.2. Paragraph (c) directs OAs to 
coordinate all applicable environmental reviews with the NEPA process, 
and lists the most common examples of other applicable environmental 
laws, regulations, and Executive Orders for DOT actions. Paragraph (d) 
sets forth general requirements for NEPA documents including that they 
be written in plain language and address impacts in proportion to their 
significance.
    Paragraph (e) reminds OAs of the requirement to consider 
environmental justice, where appropriate, in their NEPA documents, 
including compliance with Executive Order (E.O.) 12898 and DOT Order 
5610.2(a), Department of Transportation Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations. It specifically notes the requirement's applicability 
regardless of NEPA class of action, noting the need to consider whether 
the proposed action, individually or cumulatively with other past and 
present infrastructure decisions, would have disproportionately high 
and adverse effects on minority or low income populations.
    Paragraph (f) reminds OAs of the differences between NEPA and Title 
VI of the Civil Rights Act, and that fulfilment of the NEPA process 
does not necessarily result in compliance with Title VI. Paragraph (f) 
also notes that compliance with the updated NEPA Order can sometimes 
play a role in supporting compliance with Title VI.
    Paragraph (g) reminds OAs of their responsibility to maintain an 
administrative record. Paragraph (h) addresses use of contractors in 
preparing NEPA documents and sets forth requirements consistent with 40 
CFR 1506.5. This provision expands upon language in 5610.1C section 13, 
Responsibility, to emphasize the responsibility of the OA to use 
flexibilities to ensure contractors are unbiased and produce quality 
work. It also expressly notes the requirement that OAs assess 
contractors' adequacy of performance, taking into account how the work 
product ensures the process adequately considers impacts.
    Paragraph (i) addresses tracking of NEPA documents. Consistent with 
23 U.S.C. 139(o) and current DOT policy guidance, all OAs must post 
information for all infrastructure projects requiring an EA or EIS on 
the Permitting Dashboard, www.permits.performance.gov. Consistent with 
40 CFR 1506.6(e), paragraph (j) identifies where an outside party may 
request additional information about the environmental process.
Section 6: Planning and Early Coordination
    Section 6 of the updated NEPA Order significantly revises 5610.1C 
section 3, Planning and Early Coordination. Paragraph (a) encourages 
early and ongoing coordination with all relevant parties including 
other OAs, Federal, State and local resource and regulatory agencies, 
stakeholders, and the public. Paragraph (b) directs OAs to consider 
impacts of a proposed action as early as reasonably possible, 
preferably during the planning stages of a proposed action. Note that 
while the updated NEPA Order encourages consideration of environmental 
impacts during transportation planning, as noted above, this process is 
explicitly exempted from NEPA pursuant to 23 U.S.C. 134(q) and 135(k). 
Paragraph (c) encourages reliance on information developed during the 
planning process so as to avoid duplicating efforts in the NEPA 
process. Paragraph (d) directs OAs to ensure that their applicants are 
aware of environmental analysis and review requirements.
    Paragraph (e) discusses the scoping process and how it must inform 
the development of reasonable alternatives. New language emphasizes 
that the selection of a range of alternatives for further study, where 
applicable, be thorough and objective, and include reasonable and 
comparable best estimates of cost, as appropriate. Consistent the CEQ 
regulations, paragraph (e) notes the selection of a range of 
alternatives for further study must not predetermine a particular 
outcome. Paragraphs (f) and (g) encourage tools to improve early 
coordination, including Memoranda of Understanding (MOUs) and the use 
of conflict resolution. Finally, paragraph (h) addresses the 
requirement in 42 U.S.C. 4332(2)(D) to provide early notice to and 
solicit the views of State or Federal land management entities when a 
State's proposed action may have significant impacts on another State 
or a Federal land management entity.
Section 7: Operating Administration Coordination
    The Department is adding this new section to specifically address 
and improve coordination within the Department. Paragraph (a) requires 
OAs to coordinate if it is reasonably foreseeable that more than one OA 
may have an action on the same project. Paragraph (b) encourages OAs to 
determine their respective roles, though the Office of Policy may 
resolve any disputes. Finally, paragraph (c)

[[Page 92970]]

encourages use of conflict resolution to resolve any disputes between 
OAs.
Section 8: Lead and Cooperating Agencies
    Section 8 of the updated NEPA Order revises, but is generally 
consistent with 5610.1C section 6, Lead Agencies and Cooperating 
Agencies. This section outlines the responsibilities of lead, joint 
lead, and cooperating agencies consistent with the CEQ regulations and 
provides best practices for OAs with respect to working with or serving 
as a cooperating agency. Finally, paragraph (d) recommends engaging 
other agencies that do not otherwise meet the definition of a joint 
lead or cooperating agency to participate in the environmental review 
process. This is similar to the participating agency role as provided 
in 23 U.S.C. 139(d).
Section 9: Class of Action Determination
    Section 9 of the updated NEPA Order builds upon section 4, 
Environmental Processing Choice, while moving and expanding the 
paragraphs on CEs and EAs to their own sections. Paragraph (a) sets 
forth the standard for determining the appropriate class of action, 
which is the significance of the impacts on the human environment, 
including consideration of their context and intensity. See 40 CFR 
1508.27. Paragraph (b) requires OAs to establish the scope of the 
action, consistent with 40 CFR 1508.25, in order to determine the 
appropriate class of action. Paragraph (c) expands on the issue of 
scope to ensure that the proposed action has independent utility or 
significance; does not restrict consideration of alternatives for other 
reasonably foreseeable actions; and where applicable, connects logical 
termini or is of sufficient length to address environmental impacts on 
a broad scope. Paragraph (d) requires OAs to consider potential impacts 
of the proposed action on the human and natural environment. This 
includes consideration of the potential for the proposed action, either 
individually or cumulatively with other actions, including the impacts 
of other past or present Federal, State or local actions, to 
significantly affect communities protected by E.O. 12898 and DOT Order 
5610.2(a). Paragraph (d) also reminds OAs that they may engage the 
public to help identify potential impacts. Finally, paragraph (d) 
reiterates the requirement to consider extraordinary circumstances 
before determining a CE is the appropriate class of action.
Section 10: Categorical Exclusions (CEs)
    Section 10 is a new section that updates 5610.1C paragraph (c), 
Categorical Exclusions, within section 4, Environmental Processing 
Choice. CEQ's guidance, Establishing, Applying, and Revising 
Categorical Exclusions Under the National Environmental Policy Act,\3\ 
recommends that agencies periodically review their existing CEs to 
ensure they remain current and appropriate. The Department undertook 
such a review. Paragraph 10(c) provides the results of this review of 
the list of categories of actions that DOT has determined do not 
normally individually or cumulatively have a significant effect on the 
human environment, and therefore normally do not require the 
preparation of an EA or EIS. Consistent with CEQ's guidance, the 
Department also developed an Administrative Record to document its 
conclusions to remove, revise, or establish new CEs. This document is 
available for public review in the docket.
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    \3\ 75 FR 8045, Apr. 9, 2010, available at https://ceq.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
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    Paragraph (a) provides the definition of CEs, consistent with 40 
CFR 1508.4, as well as the requirement to consider whether 
extraordinary circumstances are present requiring the preparation of an 
EA or EIS. Paragraph (a) instructs OAs to conduct environmental studies 
to determine whether application of the CE is appropriate or whether 
the OA must prepare an EA or EIS when significant environmental effects 
could exist.
    Paragraph (b) provides a list of extraordinary circumstances that 
OAs must consider before applying a CE listed in this Order. Among such 
circumstances are the potential for the action to be inconsistent with 
applicable Federal, State, Tribal, or local requirements relating to 
protection of the environment; the potential to have impacts on 
protected species, lands or other resources; and the potential to have 
disproportionately high and adverse impacts on minority and low-income 
populations. This list is only applicable to the CEs listed in the 
updated NEPA Order. However, when updating OA Procedures, OAs must 
consider whether any of the extraordinary circumstances provided in 
paragraph (b) are appropriate to add to their list.
    Paragraph (c) provides the list of CEs. Based on its review, the 
Department proposes to add 10 new CEs, modify five of the existing CEs, 
and eliminate one CE and part of a CE no longer deemed useful or 
appropriate. Modifications to existing CEs provide clarity and reflect 
DOT experience with these activities.
    Of the new proposed new CEs, DOT has identified routine operational 
activities including training and educational activities (c)(3); 
leasing of space in existing buildings (c)(6); remodeling existing 
facilities (c)(7); landscaping and landscape maintenance that does not 
cause introduction or spread of invasive species (c)(8); hearings and 
public meetings (c)(12); and Administrative actions and proceedings 
(c)(13).
    Paragraph (c)(5) updates existing CE 5 in 5610.1C, which 
incorporates by reference CEs identified in OA Procedures, and would 
now allow one OA to apply the CE of another OA. In order to effectively 
apply the CE of an OA to an action being administered by another OA, 
the OA making the CE determination must ensure the application of the 
CE is appropriate and that the action to which the CE is being applied 
was contemplated when the CE was established. Therefore, the Department 
has revised the CE to read, ``Action categorically excluded in an OA's 
Procedures where the action is administered by another OA. The OA with 
the CE must provide a written determination that the CE applies to the 
action proposed by the other OA and provide expertise in reviewing the 
action being categorically excluded.''
    Over the last decade, the Department has seen a number of new 
programs and projects that go beyond the bounds of a particular OA. 
This updated CE will allow the Department the flexibility to administer 
its projects and programs more effectively and efficiently, taking 
advantage of multiple OAs' resources and expertise, while ensuring that 
CEs are appropriately applied to proposed actions. For example, the 
Department may ask one OA to administer a grant because it has 
extensive experience with that type of grantee, but the underlying 
project falls within the environmental expertise of another OA. The 
latter OA would determine whether application of its CE to the project 
is appropriate because it is contemplated within that category of 
action and no extraordinary circumstances are present such that 
preparation of an EA or EIS is required. The Department does not intend 
for this CE to be used to apply a CE to an action that the OA never 
contemplated when establishing the CE. The Department plans to issue 
guidance to the OAs to ensure efficient and effective use of this CE.
    DOT proposes two new CEs relating to rulemaking and policy 
activities. The

[[Page 92971]]

first is the promulgation, modification, or revocation of rules and 
development of policies, notices, and other guidance documents that are 
strictly administrative, organizational, or procedural in nature; or 
are corrective, technical, or minor ((c)(10)). A second is the 
promulgation, modification, revocation, or interpretation of safety 
standards, rules, and regulations that do not result in a substantial 
increase in emissions of air or water pollutants, noise, or traffic 
congestion, or increase the risk of reportable release of hazardous 
materials or toxic substances ((c)(11)). Finally, DOT proposes to list 
financial assistance to an applicant solely for the purpose of 
refinancing outstanding debt, where the debt funds an action that is 
already completed as a categorically excluded activity ((c)(14)).
    Paragraph (d) recognizes the process created in 49 U.S.C. 304 for 
the application of another OA's CE for projects that meet the 
``multimodal project'' definition in 23 U.S.C. 139(a). The Department 
is working on an update to its existing guidance on this provision.
    Finally, paragraph (e) reminds OAs that they are responsible for 
complying with all other applicable environmental requirements related 
to a proposed action when processing the action as a CE. It also cross 
references to paragraph 5(c), which lists many of the most common 
requirements.
Section 11: Environmental Assessments (EAs)
    Section 11 is a new section to address the preparation of 
environmental assessments; it updates paragraph (d) of 5610.1C section 
4, Environmental Processing Choice, which sets forth situations where 
the Department must prepare an EA or an EIS. In the updated NEPA Order, 
paragraph (a) provides the definition of an EA and addresses the 
requirement to independently evaluate the EA when an applicant prepares 
it. Paragraph (b) sets forth when an OA must prepare an EA, but 
paragraph (d) notes that an OA need not prepare an EA if it has 
determined to prepare an EIS. Paragraph (c) provides examples of 
typical classes of actions that normally require an EA, consistent with 
40 CFR 1507.3(b)(2)(iii). Paragraph (e) addresses public notice and 
paragraph (f) addresses public involvement for EAs. Paragraph (g) 
provides the required elements for an EA consistent with 40 CFR 1508.9. 
Paragraph (h) addresses the alternatives analysis for EAs. To avoid any 
indication of bias toward a particular alternative where there is more 
than one alternative, paragraph (h) emphasizes the need to objectively 
evaluate each alternative at comparable levels of detail and to 
include, where appropriate, best estimates of costs using consistent 
methodologies. Paragraph (i) notes that EAs should reflect compliance 
or plans for compliance with other applicable environmental 
requirements. Paragraph (j) provides OAs the discretion to solicit 
public comments on an EA, but requires them to address comments 
received. Finally, paragraph (k) cross-references to section 18, which 
addresses re-evaluation and supplemental EAs.
Section 12: Findings of No Significant Impact (FONSIs)
    Section 12 updates 5610.1C section 5, Finding of No Significant 
Impact, continuing to focus on the CEQ regulatory requirements for a 
FONSI set forth in 40 CFR 1508.13, 1501.7(a)(5), 1506.6, and 1501.4(e). 
It also addresses mitigated FONSIs, consistent with CEQ guidance, 
Appropriate Use of Mitigation and Monitoring and Clarifying the 
Appropriate Use of Mitigated Findings of No Significant Impact.\4\ 
Paragraph (c) sets forth the basic requirements for relying on a 
mitigated FONSI, including identifying the mitigation measures 
necessary to reduce the potential impacts below significance; ensuring 
the existence of sufficient legal authority and adequate commitment and 
resources to execute the mitigation measures; requiring implementation 
of the mitigation measures in any agreement with an outside party; and 
where appropriate, providing for monitoring and further action when 
there is a failure to implement mitigation measures or a failure in 
their effectiveness.
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    \4\ 76 FR 3843, Jan. 21, 2011, available at https://ceq.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
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Section 13: Environmental Impact Statements (EISs)
    Sections 13 through 15 address the requirements for EISs. To 
improve clarity, the Department includes the requirements that apply to 
both draft and final EISs in Section 13, and then addresses those 
requirements specific to draft environmental impact statements (DEISs) 
in Section 14, and FEISs in Section 15. Generally, these sections 
articulate the requirements from the CEQ regulations, including those 
in part 1502, as well as those set forth in 5610.1C section 7, 
Preparation and Processing of Draft Environmental Statements, section 
8, Inviting Comments on the Draft EIS, and section 11, Final 
Environmental Impact Statements. However, as noted above, some of these 
paragraphs are now addressed in General Provisions where the concepts 
apply more broadly than to EISs only.
    Section 13, paragraph (a) sets forth when NEPA requires an EIS, as 
well as the requirement to prepare a combined FEIS/ROD pursuant to 49 
U.S.C. 304a(b)/23 U.S.C. 139(n). Consistent with 40 CFR 
1507.3(b)(2)(i), paragraph (b) provides examples of typical classes of 
actions that normally require an EIS. Paragraph (c) sets forth scoping 
requirements pursuant to 40 CFR 1501.7 and emphasizes that project 
scoping includes opportunities to receive input from the public, 
Federal agencies, State and local governments, and tribes on issues, 
including alternatives to be evaluated in the EIS. Paragraph (d) 
addresses the format and content of EISs, including purpose and need, 
alternatives, affected environment, environmental consequences, and 
mitigation. Paragraph (d)(2)(a) emphasizes the requirement that the 
alternatives analysis describe criteria used to identify the range of 
alternatives and how public and agency input was considered to 
determine which alternatives to evaluate and which to eliminate. The 
paragraph also notes that alternatives should be evaluated fully at 
comparable levels of detail, except where legally permitted to develop 
a preferred alternative to a higher level of detail, and, where 
appropriate, include best estimates of cost that are reasonable, 
comparable, and developed using consistent methodologies. Paragraph 
(d)(2)(b) addresses the need for the EIS to include information 
regarding the process used to eliminate alternatives. Paragraph (e) 
addresses public notice and notice of availability requirements 
consistent with 40 CFR 1506.6. Paragraph (f) addresses review of EISs 
prepared pursuant to NEPA Section 102(2)(D). Paragraph (g) sets forth 
the requirement to file EISs with the Environmental Protection Agency 
(EPA) pursuant to 40 CFR 1506.9 and notes EPA's guidance on filing. 
Paragraph (h) sets forth the timing requirements, including the ability 
to reduce or extend time periods.
Section 14: Draft Environmental Impact Statements (DEISs)
    As noted above, Section 14 only addresses those requirements 
specific to the preparation of DEISs. Paragraph (a) encourages early 
preparation of the DEIS to ensure the decision maker can meaningfully 
consider the analysis in the decision-making process. Paragraph (b) 
encourages OAs to indicate in the DEIS when they intend to issue a

[[Page 92972]]

combined FEIS/ROD pursuant to 49 U.S.C. 304a(b)/23 U.S.C. 139(n). 
Finally, paragraph (c) sets forth the specific circulation and request 
for comment requirements for DEISs.
Section 15: Final Environmental Impact Statements (FEISs)
    As noted above, Section 15 only addresses those requirements 
specific to the preparation of FEISs. Consistent with 40 CFR 1503.4, 
paragraph (a) provides guidance on responding to comments on the DEIS 
in the FEIS. Paragraph (b) provides for the use of errata sheets 
consistent with 49 U.S.C. 304a(a)/23 U.S.C. 139(n) and 40 CFR 
1503.4(c). Paragraph (c) sets forth the 49 U.S.C. 304a(b)/23 U.S.C. 
139(n) requirement to issue a combined FEIS/ROD to the maximum extent 
practicable, unless the FEIS makes substantial changes to the proposed 
action that are relevant to environmental or safety concerns; or there 
is a significant new circumstance or information relevant to 
environmental concerns that bears on the proposed action or the impacts 
of the proposed action. Paragraph (d) directs the FEIS to reflect 
compliance or plans for compliance with other environmental 
requirements. Paragraph (e) reiterates existing delegations for 
approval of FEISs. Paragraph (f) sets forth requirements to notify the 
Office of Policy for certain FEISs (e.g., highly controversial 
actions). Finally, paragraph (g) addresses circulation requirements for 
the FEIS.
Section 16: Record of Decision
    This new section sets forth the topics to be addressed in the ROD, 
including alternatives, factors balanced in decision making, and 
mitigation measures. Paragraph (b) sets forth the 30-day waiting period 
required by 40 CFR 1506.10(b)(2) in those instances where the OA 
determines it is not practicable to issue a combined FEIS/ROD pursuant 
to 49 U.S.C. 304a(b)/23 U.S.C. 139(n). Finally, paragraph (c) provides 
that OAs may develop a single ROD for multimodal actions.
Section 17: Tiering and Programmatic Approaches
    While 5610.1C section 7(g) addresses tiering, the Department finds 
tiering and programmatic approaches expedite project delivery, and 
therefore is devoting a separate section of the updated NEPA Order to 
this topic. Paragraph (b) defines tiering and emphasizes when use of 
tiering may be appropriate. Paragraph (c) addresses when programmatic 
EAs or EISs might be helpful. Finally, paragraph (d) encourages the use 
of Programmatic Agreements to streamline routine actions or 
environmental requirements, developing them as broadly as possible to 
cover the actions of multiple OAs.
Section 18: Re-evaluation and Supplementation
    Section 18 updates and clarifies the existing practice for re-
evaluation outlined in 5610.1C section 19, Time in Effect of 
Statements. Re-evaluation is a longstanding practice of the Department 
to determine whether new information triggers the requirement to 
supplement an EIS pursuant to 40 CFR 1502.9. Additionally, the 
Department is revising its dates for re-evaluation from 3 to 5 years to 
be consistent with Question 32 of the Forty Most Asked Questions 
Concerning CEQ's National Environmental Policy Act Regulations (Forty 
Questions).\5\ Paragraph (a) encourages the use of re-evaluation when 
there are changes to the proposed action or new circumstances or 
information relevant to environmental concerns. Additionally, it 
encourages OAs to re-evaluate in writing DEISs if the OA has not issued 
an FEIS within 5 years of circulation of the DEIS, and FEISs if major 
steps toward implementation have not commenced within 5 years of FEIS 
approval. Paragraphs (b)(1) and (b)(2) address the CEQ regulatory 
criteria for a supplemental EIS, as well as the discretion to 
supplement. Paragraph (b)(3) addresses the process for preparing a 
supplemental EA or EIS.
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    \5\ 46 FR 18026, Mar. 23, 1981, available at https://ceq.doe.gov/nepa/regs/40/40p3.htm.
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Section 19: Emergency Actions
    The Department added a separate section regarding emergency actions 
to address the CEQ regulation on emergencies, 40 CFR 1506.11, and 
guidance, Memorandum for Heads of Federal Departments and Agencies 
regarding Emergencies and the National Environmental Policy Act,\6\ as 
well as section 1432 of the FAST Act. This builds on the existing 
paragraph (c) in 5610.1C section 17, Timing of Agency Action, which 
details the internal process for consulting with CEQ. The updated NEPA 
Order addresses generally emergency situations in paragraph (a) and 
then provides mechanisms for NEPA compliance where the OA anticipates 
significant impacts in paragraph (b) or non-significant impacts in 
paragraph (c). In both instances, the updated NEPA Order provides the 
internal coordination process for such compliance.
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    \6\ Available at https://ceq.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf.
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Section 20: Adoption of EISs and EAs
    The Department added this new section to address adoption of NEPA 
documents pursuant to the CEQ regulation, 40 CFR 1506.3, and the 
Department's discretionary adoption authority under 49 U.S.C. 
304a(c)(2). Paragraphs (a) through (c) outline the same requirements 
set forth in 40 CFR 1506.3 for the adoption of EISs. Where the OA was 
not a cooperating agency, paragraphs (b) and (c) direct the OA to issue 
a combined FEIS/ROD consistent with the directive in 49 U.S.C. 304a/23 
U.S.C. 139(n). Paragraph (d) sets forth the adoption process for EAs. 
Consistent with Question 32 of the Forty Questions, paragraph (e) 
requires OAs to reevaluate an EA or EIS that is more than 5 years old 
before adopting another Federal agency's EA or EIS. Paragraph (f) 
addresses the notification process. Finally, paragraph (f) acknowledges 
the discretionary adoption process under 49 U.S.C. 304a(c)(2). The 
Department intends to issue guidance on the application of this 
provision, which it will incorporate into the Desk Reference.
Section 21: Mitigation and Monitoring
    The Department added this new section to address generally 
mitigation and monitoring in the NEPA process. Consistent with the 
approach in 5610.1C, the updated NEPA Order continues to reference 
mitigation in the context of specific NEPA documents (e.g., EAs, 
FONSIs, EISs, RODSs). This section is based on the CEQ regulations and 
guidance, Appropriate Use of Mitigation and Monitoring and Clarifying 
the Appropriate Use of Mitigated Findings of No Significant Impact.\7\ 
Paragraph (a) describes the purpose of mitigation and paragraph (b) 
encourages early development of mitigation measures. Paragraph (c) 
addresses appropriate documentation of mitigation measures and 
paragraph (d) addresses mitigation commitments. The goal of these 
provisions is to document the mitigation that the OA both considered 
and adopted in the NEPA analysis and decision. Due to the importance of 
ensuring implementation of mitigation measures, the Department has 
included provisions on ensuring the implementation of mitigation 
measures, and related monitoring provisions in paragraphs (e) and (f).
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    \7\ 76 FR 3843, Jan. 21, 2011, available at https://ceq.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.

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[[Page 92973]]

Section 22: Responsible Official for Secretarial Office Actions
    Because the updated NEPA Order serves as the NEPA implementing 
procedures for Secretarial Offices that may undertake their own NEPA 
review for actions where they are not relying on the NEPA expertise of 
an OA, Section 22 provides that the office director serves as the 
responsible official for approving NEPA documents. Section 22 also 
provides that the Office of Policy, in conjunction with the Assistant 
General Counsel for Operations within the Office of the General 
Counsel, is responsible for general oversight and advice on 
environmental matters. This section maintains the responsible official 
set forth in 5610.1C section 21, Responsible Office for Office of the 
Secretary Actions, but provides clarity that this only applies when the 
Secretarial Office is serving as the lead agency.
Section 23: Determinations Under Section 4(f) and Integration With NEPA
    Section 23 updates 5610.1C's guidance in section 12, Determinations 
Under Section 4(f) of the DOT Act. This section reflects the current 
statutory language for protection of certain parklands, refuges, 
recreation areas, and historic sites under Section 4(f) (49 U.S.C. 303/
23 U.S.C 138). Because the Department intends to issue separate DOT-
wide guidance or regulations for implementation of Section 4(f) to 
further reflect current policy and practice in implementing Section 
4(f), and because Attachment 2 of 5610.1C would be eliminated, some of 
the detailed guidance would no longer be part of the updated NEPA 
Order.
    Paragraph 23(a) revises the discussion of findings required by 
Section 4(f) previously provided in 5610.1C section 12. It no longer 
provides that an action having more than a minimal effect on lands 
protected under Section 4(f) normally requires an EIS because DOT 
experience has shown that use of Section 4(f) lands is not necessarily 
a significant impact.
    Paragraph 23(b) provides that an OA may approve the use of Section 
4(f) property if it determines that the proposed action, including any 
measures to minimize harm, would have a de minimis impact on the 
property. In addition, pursuant to section 1301 of the FAST Act, the 
revisions in paragraph 23(c) note opportunities to integrate 
requirements for Section 4(f) with those for NEPA and Section 106 of 
the National Historic Preservation Act. DOT seeks public comment on the 
opportunities identified in paragraph 23(c) and also seeks comment on 
additional opportunities for integration of Section 4(f), NEPA, and 
Section 106.
Section 24: Review of NEPA Documents Prepared by Other Agencies
    Section 24 revises 5610.1C section 9, Review of Environmental 
Statements Prepared by Other Agencies. The level of detail provided in 
5610.1C is no longer necessary because the OAs have decades of 
experience with these reviews. Therefore, the Department streamlined 
this section to summarize its general responsibilities and internal 
coordination process.
Section 25: Public Involvement
    Section 25 greatly expands upon 5610.1C section 14, Citizen 
Involvement Procedures, to give the Department additional guidance on 
the purpose of public involvement in the NEPA process (paragraph (a)) 
and provide a variety of mechanisms (paragraph (b)) to achieve the goal 
of promoting meaningful public involvement early in the process to 
ensure an efficient project delivery process that meets the needs of 
stakeholders. Paragraph (c) states the OAs' obligation to comply with 
E.O. 12372, Intergovernmental Review of Federal Programs, and the 
implementing regulations in 49 CFR part 17, when applicable. Paragraph 
(d) updates 5610.1C section 14(e) regarding the requirements for public 
hearings and public meetings consistent with 40 CFR 1506.6(c). Finally, 
paragraph (e) requires posting of NEPA documents online where 
appropriate and practicable.
Section 26: Conflict Resolution
    This new section promotes the use of both informal conflict 
resolution as well as environmental collaboration and conflict 
resolution (ECCR) consistent with the September 7, 2012 CEQ/OMB joint 
Memorandum on Environmental Collaboration and Conflict Resolution.\8\ 
Because the Department has a separate, more detailed Order on conflict 
resolution, DOT Order 5611.1a, U.S. Department of Transportation 
National Procedures for Elevating Highway and Transit Environmental 
Disputes,\9\ the updated NEPA Order only provides a high-level overview 
of informal conflict resolution and ECCR, with a cross-reference to 
that Order.
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    \8\ Available at https://www.udall.gov/documents/Institute/OMB_CEQ_Memorandum_2012.pdf.
    \9\ Available at https://www.environment.fhwa.dot.gov/strmlng/dot5611_order.asp.
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Section 27: Pre-Decision Referrals to the Council on Environmental 
Quality
    Section 27 of the updated NEPA Order revises 5610.1C section 10, 
Pre-decision Referrals to the Council on Environmental Quality. This 
section addresses the internal process for addressing or making 
referrals to CEQ. Overall, the process remains the same, but the 
Department revised this section to provide clarity consistent with the 
general updates discussed above.
Section 28: Proposal for Legislation
    Section 28 of the updated NEPA Order addresses the requirements for 
legislative EISs consistent with 40 CFR 1506.8. The updated NEPA Order 
revises 5610.1C section 15, Proposal for Legislation, for clarity 
consistent with the general updates discussed above.
Section 29: International Actions
    Section 29 of the updated NEPA Order addresses the implementation 
of E.O. 12114, Environmental Effects Abroad of Major Federal Actions. 
Section 29 streamlines 5610.1C section 16, International Actions, by 
cross referencing to the E.O. rather than repeating the E.O.'s 
applicability criteria. It also provides that OAs must prepare any 
required EIS consistent with the updated NEPA Order and OA Procedures. 
Finally, this section reflects edits for clarity consistent with the 
general updates discussed above.
Section 30: Operating Administration Implementing Procedures
    Section 30 updates and supplements 5610.1C section 20, Implementing 
Instructions. Consistent with the Department's existing procedures, 
Section 30(a) of the updated NEPA Order requires OAs to either issue 
their own implementing procedures (OA Procedures) or rely upon the NEPA 
Order, but issue supplemental guidance. In addition to setting forth 
the basic requirements for OA Procedures, consistent with 40 CFR 1505.1 
and 1507.3, Section 30 also details the relationship between the 
updated NEPA Order and existing OA Procedures. Consistent with 
paragraph (d), once the Department finalizes the updated NEPA Order, 
OAs must evaluate their existing procedures to determine whether they 
are consistent with the updated NEPA Order. If not, the OAs must 
develop a plan and schedule to make revisions and obtain concurrence 
from the Office of Policy and Office of the General Counsel on the plan 
and schedule. In the interim period, paragraph (e) provides that OAs 
may continue to follow their existing OA Procedures, but have the 
discretion to rely on new

[[Page 92974]]

provisions in the updated NEPA Order. Finally, paragraph (f) sets forth 
the internal review and concurrence process for establishing or 
updating OA Procedures, and paragraph (g) directs the Office of Policy 
to maintain them on a DOT Web site.

    Issued in Washington, DC, on December 15, 2016.
Anthony Foxx,
Secretary of Transportation.
[FR Doc. 2016-30660 Filed 12-19-16; 8:45 am]
 BILLING CODE 4910-9X-P