Procedures for Considering Environmental Impacts, 74640-74663 [2020-25030]

Agencies

• DEPARTMENT OF TRANSPORTATION
• Office of the Secretary of Transportation

[Federal Register Volume 85, Number 226 (Monday, November 23, 2020)]
[Proposed Rules]
[Pages 74640-74663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25030]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary of Transportation

49 CFR Part 13

[Docket No. DOT-OST-2020-0229]
RIN 2105-AE97


Procedures for Considering Environmental Impacts

AGENCY: Office of the Secretary (OST), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The U.S. Department of Transportation (DOT) proposes to update 
and codify its internal order establishing the responsibilities and 
procedures for complying with the National Environmental Policy Act 
(NEPA), currently found in DOT Order 5610.1C, ``Procedures for 
Considering Environmental Impacts,'' which was issued in 1979 and last 
updated in 1985. This proposal would update the DOT NEPA procedures in 
response to the Council on Environmental Quality's (CEQ's) final rule 
updating its NEPA procedures and also incorporate provisions of the 
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU); Moving Ahead for Progress in the 21st 
Century Act (MAP-21); and the Fixing America's Surface Transportation 
(FAST) Act related to the Department's environmental review process. 
This proposed rule would modernize the Department's procedures and 
promote collaboration and efficiency in the implementation of NEPA. 
Finally, this proposal would also update the list of the Department's 
categorical exclusions consistent with the CEQ's regulations 
implementing NEPA.

DATES: Persons interested in submitting written comments on this NPRM 
must do so by December 23, 2020. The Department will consider late 
comments to the extent practicable.

ADDRESSES: To ensure you do not duplicate your docket submissions, 
please submit comments 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 or Courier: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    Instructions: All comment submissions must include the agency name, 
docket name, and docket number (DOT-OST-2020-0229) or Regulation 
Identifier Number (RIN) for this rulemaking (2105-AE97). Note that all 
comments received will be posted without change to www.regulations.gov, 
including any personal information provided. Physical access to the 
Docket is available at the Hand Delivery address noted above.
    This document may be viewed online under the docket number noted 
above through the Federal eRulemaking portal, www.regulations.gov. An 
electronic copy of this document may also be downloaded from the Office 
of the Federal Register's website, www.federalregister.gov, and the 
Government Publishing Office's website, www.govinfo.gov/app/collection/fr. In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. The DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in

[[Page 74641]]

the system of records notice (DOT/ALL-14 FDMS), which can be viewed at 
www.transportation.gov/privacy.

FOR FURTHER INFORMATION CONTACT: April Marchese, Director, 
Infrastructure Permitting Improvement Center, 202-366-4416, 
[email protected] or Krystyna Bednarczyk, Office of the General 
Counsel, 202-366-5283, [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Statutory Authority

    The National Environmental Policy Act, as amended, 42 U.S.C. 4321-
4347 (NEPA), requires all Federal agencies to assess the environmental 
impact of their actions. 42 U.S.C. 4332(2)(C). The Council on 
Environmental Quality (CEQ) has issued regulations at 40 CFR parts 
1500-1508 (CEQ regulations) implementing NEPA that are binding on 
Federal agencies. On July 16, 2020, CEQ issued a final rule 
comprehensively updating those regulations. 85 FR 43304 (July 16, 
2020). The CEQ regulations require Federal agencies to develop or 
revise their procedures for implementing NEPA, as necessary, for 
consistency with CEQ's regulations or for efficiency. 40 CFR 1507.3(b), 
(c). The CEQ regulations require agencies to consult with CEQ during 
the development of their implementing procedures and prior to their 
publication in the Federal Register. 40 CFR 1507.3. The U.S. Department 
of Transportation (Department or DOT) has accordingly reviewed its 
current implementing procedures and undertakes this revision pursuant 
to 40 CFR 1507.3. The Department developed the proposed rule in 
consultation with CEQ. In accordance with 40 CFR 1507.3(a), the 
Department is proposing this rule and providing an opportunity for 
public review and comment on the proposal.

B. Background

    NEPA establishes a national environmental policy of the Federal 
Government to use all practicable means and measures to foster and 
promote the general welfare, create and maintain conditions under which 
man and nature can exist in productive harmony, and fulfill the social, 
economic, and other requirements of present and future generations of 
Americans. 42 U.S.C. 4331(a). Section 102(2) of NEPA establishes the 
procedural requirements to carry out the policy stated in section 101 
of NEPA. It requires Federal agencies to consider the environmental 
effects of proposed actions in their decisionmaking and prepare 
detailed environmental statements on recommendations or reports and 
other major Federal actions significantly affecting the quality of the 
human environment. 42 U.S.C. 4332(2)(C). In 2005, Congress enacted 23 
U.S.C. 139, ``Efficient environmental reviews for project 
decisionmaking,'' a streamlined environmental review process for 
highway, transit, and multimodal transportation projects through the 
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU), Public Law 109-59, sec. 6002 (2005). In 
2012, Congress declared it in the national interest to accelerate 
transportation project delivery and reduce costs, and ensure that 
transportation planning, design, and construction are completed in an 
efficient and effective manner. Moving Ahead for Progress in the 21st 
Century Act (MAP-21), Public Law 112-141, sec. 1301 (2012) (set out at 
23 U.S.C. 101 note). In 2015, Congress also directed the Department to 
implement a variety of reforms to streamline and accelerate its 
environmental review process. See Fixing America's Surface 
Transportation Act (FAST) Act, Public Law 114-94 (2015).
    The Department proposes to revise its current procedures, DOT Order 
5610.1C, ``Procedures for Considering Environmental Impacts,'' 
originally published in 1979, 44 FR 56420 (Oct. 1, 1979), and codify 
them in the Code of Federal Regulations. DOT Order 5610.1C, which is 
now in effect, was updated in 1982 and 1985 (1985 procedures).\1\ This 
proposed rule would update and modernize the 1985 procedures and 
reflect current departmental NEPA practice. As reflected in the 
proposed rule, the Department also considered comments it received in 
response to its publication of proposed Order 5610.1D in the Federal 
Register on December 20, 2016. 81 FR 92966.
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    \1\ Available at https://www.transportation.gov/sites/dot.gov/files/docs/Procedures_Considering_Environmental_Impacts_5610_1C.pdf.
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    The Department is issuing this proposed rule to enhance and 
modernize the Department's environmental review processes, bring 
consistency to the documentation of environmental analyses under these 
processes, and incorporate strategies to complete environmental review 
more efficiently in accordance with streamlining efforts developed by 
the Department at the direction of Congress. This proposed rule would 
update the procedures to be consistent with CEQ's updated regulations 
and promote agency efficiency. This proposed rule would also update the 
1985 procedures to account for relevant project delivery provisions and 
other streamlining efforts included in SAFETEA-LU, MAP-21 and the FAST 
Act, that apply departmentwide. Accordingly, the proposed rule would 
reflect the Department's modern NEPA practices and unique project 
delivery statutory authorities by providing direction on analyzing 
multimodal projects in an expedited and streamlined manner, enhancing 
early coordination, and incorporating a multimodal categorical 
exclusion (CE) process that allows the Department's Operating 
Administrations (OAs) to utilize each other's CEs. The proposed rule 
would also incorporate agency practice, including environmental review 
tracking requirements, and would provide for accountability for agency 
NEPA compliance to senior agency officials, consistent with the updated 
CEQ regulations. See 40 CFR 1508.1(dd).
    The proposed rule seeks to ensure a full and fair environmental 
review process that includes meaningful public involvement throughout, 
and balanced consideration of alternatives and potential impacts on the 
human environment. The proposed rule would modernize the 1985 
procedures to improve efficiency and expedite project delivery; provide 
enhanced customer service to stakeholders through consistent 
implementation of NEPA across the Department, where possible; provide 
support for the Department's OAs to apply OAs specific NEPA 
implementing procedures to their specific programs; and balance the 
needs of all OAs. These reforms are intended to ensure that NEPA 
documents inform and involve the public, focus on the significant 
issues that require analysis, and foster informed decisionmaking based 
on an understanding of the potential action's environmental 
consequences.

C. Expected Impact of the Proposed Rule

    This proposed rule would revise the internal procedures of the 
Department, promoting consistent implementation across the Department 
of its responsibilities under NEPA while still allowing flexibility for 
each OA to carry out its own mission. Facilitating the appropriate use 
of departmental CEs would reduce the expenditure of government 
resources on the preparation of environmental assessments (EAs) or 
environmental impact statements (EISs) and would shorten approval 
timelines for activities or projects that, based on the

[[Page 74642]]

Department's experience, normally do not have the potential to have a 
significant effect on the human environment and therefore normally do 
not require the preparation of an EA or EIS. 40 CFR 1501.4. 
Promulgating CEs for the entire Department also promotes consistency, 
reduces inefficiency, and allows OA procedures to focus on the unique 
issues in their programs. Codifying all these policies and procedures 
would provide consistency, aid efficiency, reduce duplication, and 
refocus agency practice on fostering informed decisionmaking, rather 
than generating paperwork. The Department expects that this would 
reduce unnecessary delays. The Department also expects the proposed 
changes to increase the availability and use of CEs, early 
collaboration, and dispute resolution and coordination techniques, and 
to improve timely completion of the environmental review process.

II. Proposed Revisions Generally

    The proposed rule would comprehensively update the 1985 procedures. 
This proposal would update the organization of the 1985 procedures to 
align with current Department organization, practice, and policies to 
more effectively and efficiently implement the DOT NEPA policies and 
the new revisions of the CEQ regulations published on July 16, 2020 (85 
FR 43304). The proposal would update the existing Departmentwide CEs, 
including adding 11 new CEs and modifying the existing CEs. The 
proposal would also improve clarity and reduce ambiguity regarding the 
entities responsible for taking the actions specified in the rule. To 
improve readability, this proposal would designate ``OA'' as the entity 
responsible for conducting NEPA analyses, and would define ``OA'' to 
include a Secretarial Office that carries out its own NEPA 
responsibilities (as opposed to an office that relies on an OA's 
expertise to prepare the NEPA document). This proposal also would 
update the names of the relevant offices that have responsibilities, 
including the Office of Policy and Office of the General Counsel (and 
relevant subdivisions thereof). The proposal would apply to the 
Department's diverse programs and actions, and, to the extent possible, 
would avoid creating conflicts with existing OA programs and actions. 
To that end, the Department does not propose to include the more 
detailed policy concerning the format and content of EISs that was 
contained in Attachment 2 of the 1985 procedures. DOT also does not 
propose to include Attachment 1 of the 1985 procedures, which provided 
a list of the States and localities with EIS requirements. Finally, 
this proposal would update terminology for consistency with modern NEPA 
practice and the Department's current operations. The proposed 
revisions to the 1985 procedures are provided in Table 1.

                           Table 1--Crosswalk of Proposed Revisions to 1985 Procedures
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           1985 Procedures                     Section              Proposed subpart         Proposed section
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Introduction.........................  1. Purpose.............  A......................  13.1.
                                       2. Cancellation........  Removed................  Removed.
                                       3. Authority...........  B; Appendix C of part    13.7(d); Appendix C of
                                                                 13.                      part 13.
1. Background........................  .......................  Removed................  Removed.
2. Policy and Intent.................  .......................  A; B...................  13.5; 13.13.
3. Planning and Early Coordination...  .......................  B......................  13.9.
4. Environmental Processing Choice...  a. Action Covered......  A......................  13.3.
                                       b. Environmental Impact  B......................  13.23.
                                        Statements.
                                       c. Categorical           B; Appendix A of part    13.17; Appendix A of
                                        Exclusions.              13.                      part 13.
                                       d. Environmental         B......................  13.19.
                                        Assessment.             Removed................  Removed.
                                       e. Exemptions..........
5. Finding of No Significant Impact    .......................  B......................  13.21.
 (FONSI).
6. Lead Agencies and Cooperating       .......................  B......................  13.11.
 Agencies.
7. Preparation and Processing of       a. Scope of Statement..  B......................  13.23(c).
 Draft Environmental Impact            b. Timing of             B......................  13.25(a).
 Statements (DEISs).                    Preparation of Draft
                                        Statements.
                                       c. Interdisciplinary     B......................  13.13(d).
                                        Approach and
                                        Responsibility for EIS
                                        Preparation.
                                       d. Preparation of Draft  Removed................  13.13(a); Appendix C.
                                       e. Format and Content..  B......................  13.23(e).
                                       f. Circulation of the    B......................  13.25(c).
                                        Draft Environmental
                                        Impact Statement.
                                       g. Tiering.............  B......................  13.13(f).
                                                                B......................  13.25(b).
                                                                B......................  13.23(f).
                                                                                         13.23(g).
8. Inviting Comments on the DEIS.....  a. State and Local       B......................  13.25(c).
                                        Review.                 B......................  13.23(d).
                                       b. Review of EISs
                                        Prepared Pursuant to
                                        Section 102(2)(D) of
                                        NEPA.
9. Review of Environmental Impact      .......................  Removed................  Removed.
 Statements Prepared by Other
 Agencies.
10. Predecision Referrals to the       a. DOT Lead Agency       B......................  13.13(e)(2)(i).
 Council on Environmental Quality.      Proposals.              B......................  13.13(e)(2)(ii).
                                       b. DOT Referrals to CEQ
                                        on Other Agencies'
                                        Proposals.

[[Page 74643]]

 
11. Final Environmental Impact         a. Preparation.........  .......................  13.27(a).
 Statements.                           b. Compliance with       A; B; Appendix C of      13.5;
                                        Other Requirements.      part 13.                 13.13(a);13.27(b);
                                                                                          Appendix C of part 13.
                                       c. Legal Review........  B......................  13.7.
                                       d. Approval............  B......................  13.27(e).
                                       e. Availability Pending  Removed................  Removed.
                                        Approval.
                                       f. Availability of       B......................  13.25(h)-(i); 13.27(g).
                                        Statements to EPA and
                                        the Public.
                                       g. Implementation of     B......................  13.13(g).
                                        Representations in
                                        Environmental
                                        Statements.
                                       h. Supplemental          B......................  13.33(b).
                                        Statements.             B......................  13.27(b).
12. Determinations under Section 4(f)  .......................  Removed................  Removed.
 of the DOT Act.
13. Responsibility...................  .......................  B......................  13.7.
14. Citizen Involvement Procedures...  .......................  B......................  13.13(h).
15. Proposals for Legislation........  a. Preparation.........  B......................  13.37(a).
                                       b. Processing..........  B......................  13.37(b).
16. International Actions............  .......................  B......................  13.39.
17. Timing of Agency Action..........  .......................  B......................  13.23(j).
18. Effective Date...................  .......................  Removed................  Removed.
19. Time in Effect of Statements.....  .......................  B......................  13.33(a).
20. Implementing Instructions........  .......................  B......................  13.7(e).
21. Responsible Official for Office    .......................  B......................  13.7.
 of the Secretary Actions.
Attachment 1. State and Localities     .......................  Removed................  Removed.
 with EIS Requirements.
Attachment 2. Format and Content of    .......................  Removed................  Removed.
 Environmental Impact Statements.
                                                                B......................  13.29.
                                                                B......................  13.31.
                                                                B......................  13.35.
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III. Section-by Section Description of Changes in the Proposed Rule

    This proposal would rearrange the 1985 procedures and would 
separate them into two subparts to divide the generally applicable 
provisions in subpart A from the provisions addressing the NEPA review 
process and compliance responsibilities in subpart B. In addition, 
subpart B would reorder sections from the 1985 procedures to align with 
the Department's environmental review process and the levels of NEPA 
documentation.

A. Subpart A--General

    This proposal would remove the Introduction and Background sections 
of the 1985 procedures and would transfer content addressing the 
purpose of the Department's NEPA implementing procedures to proposed 
Sec. Sec.  13.1 and 13.5. Proposed subpart A would significantly 
reorganize and update section 2 of the 1985 procedures, ``Policy and 
Intent,'' in proposed Sec.  13.5 to reflect current policy and intent 
of the DOT NEPA procedures. As discussed more specifically in the 
section-by-section summaries of proposed Sec. Sec.  13.1 through 13.5, 
this proposed subpart would emphasize the Department's goals to: (1) 
Achieve the Department's mission and ensure consistency with national 
transportation policy (Sec.  13.5(a)); (2) use the NEPA process as an 
umbrella to achieve a single, integrated environmental review process 
\2\ (Sec.  13.5(b)); (3) use sound science and reliable data (Sec.  
13.5(c)); (4) facilitate a collaborative process to achieve optimal 
outcomes while protecting and enhancing the environment (Sec.  
13.5(d)); and (5) ensure meaningful public participation and 
collaboration (Sec.  13.5(e)).
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    \2\ For the purpose of this NPRM, ``environmental review'' 
encompasses both the NEPA process and authorizations, including 
reviews or actions taken to comply with relevant substantive 
environmental requirements.
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    This proposed subpart would set forth the Department's overarching 
environmental policy in the context of its agency mission, which is to 
ensure the safest, most efficient and modern transportation system in 
the world, which improves the quality of life for all American people 
and communities, from rural to urban, and increases the productivity 
and competitiveness of American workers and businesses. The proposed 
subpart would provide consistency between the Department's NEPA 
procedures and congressional declarations of policy, which provide that 
it is in the national interest to ``accelerate project delivery and 
reduce costs'' and to ensure that transportation project delivery is 
completed in ``an efficient and effective manner, promoting 
accountability for public investments and encouraging greater private 
sector involvement . . . while enhancing safety and protecting the 
environment.'' MAP-21 sec. 1301 (set out at 23 U.S.C. 101 note). 
Finally, this subpart would support the presumptive time limits 
established in the updated CEQ regulations to complete environmental 
documentation. See 40 CFR 1501.10.
Sec.  13.1 Applicability
    The applicability section would focus on the implementation of NEPA 
pursuant to the CEQ regulations and include covered actions. Covered 
actions would identify categories of Department actions typically 
subject to

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NEPA. For consistency with the CEQ regulations at 40 CFR 1508.1(q), 
this section would clarify that loans and loan guarantees may be 
actions subject to NEPA when the OA exercises sufficient control and 
responsibility over the effects of such assistance. This list would 
also include ``approvals of policies and plans (including those 
submitted to the Department by State, Tribal, or local agencies, or 
other public or private applicants, unless otherwise exempted).''
    The CEQ regulations at 40 CFR 1501.1 and 1507.3(d) provide that 
agencies should identify activities or decisions that are not subject 
to NEPA. This section would exclude transportation improvement plans 
(TIPs) and statewide improvement plans (STIPs) conducted pursuant to 23 
U.S.C. 134 and 135 because TIPs and STIPs are statutorily exempt from 
review under NEPA pursuant to 23 U.S.C. 134(q) and 23 U.S.C. 135(k), 
respectively. In addition, the section would clarify, consistent with 
40 CFR 1501.1(a)(5) and 1507.3(d)(5), and with Department of 
Transportation v. Public Citizen, 541 U.S. 752 (2004), that a proposal 
is not an action subject to NEPA if the proposal is ministerial in 
nature; if the Department lacks discretion to consider the 
environmental impacts in making the decision; or if the Department does 
not have responsibility for, or cannot control, the outcome. DOT 
recommends that OAs identify any specific additional activities or 
decisions to which NEPA does not apply, consistent with 40 CFR 1501.1 
and 1507.3(d), as appropriate, in their own implementing procedures as 
stated in Sec.  13.7(c)(1).
    The Department proposed to use ``rulemakings'' rather than the 
phrase ``rulemaking and regulatory actions'' as used in DOT Order 
5610.1C because the term rulemaking already encompasses regulatory 
actions by its definition. In addition, the Department does not include 
``research activities'' because most of the Department's research 
activities would not have environmental impacts subject to NEPA. To the 
extent that a research activity is an action, it may be appropriate to 
categorically exclude an action under CE #9. References to other 
environmental requirements are updated and reorganized. The Department 
therefore proposes to list certain authorities previously listed in 
paragraph 3 of the Introduction section of the 1985 procedures in 
Appendix C of proposed part 13. In addition, the Department would not 
include statutory references that are not broadly applicable to the 
Department, are substantively addressed elsewhere in the proposed rule, 
or are implemented by OA procedures. As a result, this proposal would 
not include the following references: Section 2(b) of the Department of 
Transportation Act of 1966 (49 U.S.C. 1653); Section 309 of the Clean 
Air Act, as amended (42 U.S.C. 7401 et seq.); Section 303 of the 
Coastal Zone Management Act of 1972 (43 U.S.C. 1241); and, where 
environmental statements are required, Sections 138 and 109 of Federal 
aid highway legislation (Title 23); Sections 16 and 18(a) of the 
Airport and Airway Development Act of 1970 (49 U.S.C. 1716, 1718); and 
Section 14 of the Urban Mass Transportation Act of 1964 (49 U.S.C. 1601 
et seq.).
Sec.  13.3 Definitions
    While the 1985 procedures did not contain a definitions section, 
the Department determined that it would be helpful to define certain 
terms to reduce ambiguity as to certain terminology used in this 
proposed rule and by the Department's NEPA practitioners. This proposed 
section would incorporate by reference the definitions from the CEQ 
regulations set forth in 40 CFR 1508.1, and supplement those 
definitions where necessary. This section would define the following 
terms:
    (a) Applicant. This definition would define ``applicant'' broadly 
to reflect the variety of applicants encountered across the Department. 
This definition also would recognize that some OA NEPA implementing 
procedures (OA Procedures) provide that the applicant will carry out 
some of the responsibilities of the OA on its behalf, and therefore 
could conduct activities under the Department's NEPA procedures on 
behalf of that OA. This definition is intended to provide flexibility 
to OAs that administer programs where applicants are responsible for 
preparing NEPA documents on behalf of OAs. This includes State DOTs, 
transit agencies, and other applicants that prepare NEPA documents or 
carry out other responsibilities for the NEPA process pursuant to OA 
NEPA procedures. For purposes of this part, the definition of 
``applicant'' does not include States that are assigned environmental 
review responsibilities pursuant to a memorandum of understanding 
executed pursuant to statutory authority under 23 U.S.C. 326 and 327. 
States that carry out such assignments are deemed to be OAs for 
purposes of this part.
    (b) Environmental review process. The Department would include this 
term to emphasize that the Department strives to comply not just with 
NEPA, but with all applicable environmental requirements in a single 
process, so as to ensure efficient project delivery and decisionmaking.
    (c) Level of NEPA Review. The Department would include this term to 
mean the level of NEPA review required for a particular action (i.e., a 
CE, an EA, or an EIS).
    (d) NEPA Document. The proposal would use the term ``NEPA 
document'' in addition to ``environmental document'' as used in the CEQ 
regulations, and would define it more broadly to include an EIS, a 
record of decision (ROD), an EA, a finding of no significant impact 
(FONSI), or any documentation that may be prepared in the application 
of a CE to a proposed action.
    (e) Operating Administration (OA): The Department would define 
``OA'' to mean any agency established within the Department, and cross 
reference to the list of the current OAs in 49 CFR 1.3. As noted in 
Section II of this rulemaking, to improve readability of this proposal, 
``OA'' would also include a Secretarial Office where that office is 
carrying out its own NEPA responsibilities.
Sec.  13.5 Environmental Review Policy
    This proposed section would set forth the Department's policies for 
evaluating environmental impacts caused by Department actions. This 
section would modify language previously contained in sections 1 and 2 
of the 1985 procedures and would state in proposed paragraphs (a), (b), 
and (c) that the policy of the Department is to: Integrate Federal 
environmental objectives into Department programs while avoiding or 
minimizing adverse environmental effects wherever practicable; 
synchronize NEPA and other environmental requirements into a single, 
concurrent process; and apply sound science, reliable data, and a 
systematic interdisciplinary approach.
    The Department's policies further statutory directives set forth in 
section 1313 of the FAST Act to: Develop a coordinated and concurrent 
environmental review and permitting process for transportation projects 
as well as align Federal reviews; reduce permitting and project 
delivery timelines; and facilitate interagency collaboration. 
Accordingly, proposed paragraphs (d) and (e) would include instructions 
to: Maximize the use of proven strategies to complete the environmental 
review process efficiently; and encourage meaningful, proactive, open, 
and transparent public participation and collaboration.
    In addition, this proposed section would not include certain policy 
language from the 1985 procedures to

[[Page 74645]]

update and align the Department's processes with the updated CEQ 
regulations and statutory provisions contained in section 1301 of MAP-
21 (set out at 23 U.S.C. 101 note) directing the Department to 
accelerate transportation project delivery, reduce costs, and ensure 
that transportation projects are completed in a streamlined manner and 
that environmental reviews are efficient and effective. The Department 
will continue to conduct environmental reviews consistent with 40 CFR 
1501.3 and other authorities, where applicable, including Section 4(f) 
(23 U.S.C. 138 and 49 U.S.C. 303). For purposes of streamlining the 
procedures, the Department would clarify in Appendix C its expectation 
that OAs would integrate into the NEPA process compliance with 
substantive environmental laws. As to this section, the Department is 
of the view that it is not necessary to include specific references 
regarding: Preservation of the natural beauty of the countryside and 
public park and recreation lands, wildlife and waterfowl refuges, and 
historic sites; preservation, restoration, and improvement of wetlands; 
improvement of the urban physical, social, and economic environment; 
and provision of opportunities for disadvantaged persons. These matters 
are otherwise covered in substantive environmental laws.
    The Department would not include language stating that the EIS, 
FONSI, and determination that a proposed action is categorically 
excluded serve as the record of compliance with the Department's 
environmental review policy, NEPA procedures, and other environmental 
statutes and Executive orders. The proposal recognizes that an EIS 
contains analyses, but is not a decision document like a FONSI or CE 
determination, and an EIS alone is not final agency action. See 40 CFR 
1500.3(c) and 85 FR at 43318.

B. Subpart B--NEPA Review Process

Sec.  13.7 Managing NEPA Compliance
    Proposed Sec.  13.7 would be a new addition to the Department's 
implementing procedures. This section would list the roles and 
responsibilities within the Department for implementing NEPA, the CEQ 
regulations, this proposed rule, OA implementing procedures, and other 
applicable laws.
    The CEQ regulations introduce the term ``senior agency official'' 
to differentiate between an agency decisionmaker for an individual 
action and the agency official who oversees the agency's overall 
compliance with NEPA. 40 CFR 1508.1(dd). CEQ acknowledged that multiple 
individuals may carry out these responsibilities in agencies that have 
subunits with their own agency procedures or NEPA compliance programs. 
85 FR 43304, 43315 (July 16, 2020). Within DOT, OAs carry out their own 
NEPA compliance programs. Accordingly, proposed paragraph (a) would 
identify the Assistant Secretary for Transportation Policy (Assistant 
Secretary) as the senior agency official responsible for implementing 
NEPA, establishing NEPA policy, and identifying the OA that will serve 
as the lead agency for all actions taken by the Department pursuant to 
49 CFR 1.25a(a)(2). For example, to create efficiencies, the senior 
agency official may designate one OA to act as the lead agency and to 
prepare the environmental documentation on behalf of all OAs for 
certain actions, such as when a multimodal project receives funding 
from or requires approval by one or more OAs. In addition, consistent 
with CEQ's direction and to maximize efficiency, these procedures 
would, in certain instances, permit an OA Administrator to carry out 
the responsibilities of a senior agency official at an OA level. For 
example, paragraph (c) of Sec.  13.19 would permit either the Assistant 
Secretary or an OA Administrator to act as the senior agency official 
for purposes of allowing an OA to exceed the presumptive limit of 75 
pages and to establish a new page limit for the EA. Similarly, for 
purposes of setting EA time limits for EAs, paragraph (c) of Sec.  
13.19 would authorize either official to set new time limits. Finally, 
consistent with the Department's Interim Guidance on Page Limits for 
National Environmental Policy Act Documents and Focused Analyses (84 FR 
44351 (August 23, 2019)), the Department would reserve to the Assistant 
Secretary in Sec.  13.23(f) through (g) similar decisionmaking 
authority for EISs.
    Proposed paragraph (b) would identify the Office of the Secretary 
of Transportation, Office of Policy Development, Strategic Planning, 
and Performance (Office of Policy) as the responsible office for NEPA 
implementation and compliance with related environmental requirements, 
and as the source of additional environmental review process 
information. It would require OAs to consult with the Office of Policy, 
and in turn with the Office of the General Counsel (OGC), in certain 
situations.
    Proposed paragraph (c) would identify OGC as legal counsel to the 
Office of Policy on topics related to the implementation and 
interpretation of NEPA, the CEQ regulations, this proposed rule, and 
other applicable laws; charge OGC with providing legal sufficiency 
determinations on Department NEPA documents; and charge OGC with 
coordinating with OAs and the Department of Justice on NEPA-related 
litigation.
    Proposed paragraph (d) would identify this proposal as a supplement 
to CEQ regulations that sets forth procedures specific to Department 
actions, with which all OAs must comply. This provision originally 
appeared in the Introduction section of the 1985 procedures.
    Proposed paragraphs (e)(1) through (5) would require each OA to 
issue or modify its NEPA implementing procedures through an Order or 
regulations consistent with this proposal, the CEQ regulations, and 
other applicable laws. This section would also outline the minimum 
requirements of each OA's procedures, and the process that OAs may use 
to revise existing or create new provisions. This direction was 
originally found at section 20 of the 1985 procedures and has been 
updated to reflect the updated CEQ regulations (85 FR 43304 (July 16, 
2020)). Finally, this proposed section would authorize OAs, subject to 
40 CFR 1507.3(a), to rely on their existing procedures until their new 
procedures are reviewed and revised, and to use, on a discretionary 
basis, portions of the Department's procedures to the extent such 
direction has not been incorporated into the OA's procedures.
Sec.  13.9 Planning and Early Coordination
    Proposed Sec.  13.9 would retain the direction provided in the 1985 
procedures at section 3, ``Planning and Early Coordination,'' and would 
incorporate direction for the early portions of the NEPA process. 
Proposed paragraph (a) is intended to implement MAP-21 sec. 1320, which 
encourages agencies to coordinate with one another ``at the earliest 
practicable time.'' Consistent with 40 CFR 1501.2(a), proposed 
paragraph (a)(1) would encourage early and ongoing coordination, and 
would require early efforts to identify the purpose and need, 
environmental impacts, reasonable alternatives, and measures to avoid, 
minimize, or mitigate adverse environmental impacts, as appropriate. 
Consistent with requirements in 40 CFR 1506.1, the proposed paragraph 
(a)(2) would include a general prohibition against taking actions that 
will have an adverse environmental impact or limit the choice of 
reasonable alternatives until after a final NEPA determination is

[[Page 74646]]

made; and it would set forth notification requirements should the OA 
become aware that such an action may have been taken. Proposed 
paragraphs (b) and (c) would build on section 3(b) of the 1985 
procedures. Proposed paragraph (b) would require OAs to ensure that 
applicants are aware of environmental review and analysis requirements. 
Proposed paragraph (c) would require coordination with other OAs; 
Federal, State, Tribal, and local resource and regulatory agencies; 
stakeholders; and the public to comply with NEPA and other relevant 
statutes, regulations, and Executive Orders. Proposed paragraph (d) 
would encourage reliance on information developed during the planning 
process to avoid duplicating efforts in the NEPA process. This proposal 
would encourage consideration of environmental impacts during 
transportation planning; however, this process is explicitly exempted 
from NEPA pursuant to 23 U.S.C. 134(q) and 135(k). Nevertheless, in 
accordance with MAP-21 sec. 1310 and FAST Act sec. 1305, this proposal 
would recognize the statutory framework that permits the products of 
statewide and metropolitan planning processes to be adopted for use in 
the NEPA process. Proposed paragraph (e) would discuss the use of the 
scoping process in early coordination to identify significant issues 
and to ensure early public involvement in the NEPA process. It further 
would instruct OAs to use early coordination tools to accelerate the 
EIS process.
Sec.  13.11 Lead, Cooperating, and Participating Agencies
    Proposed Sec.  13.11 would include language, with minor revisions, 
generally consistent with section 6 of the 1985 procedures, ``Lead 
Agencies and Cooperating Agencies.'' This section would outline the 
responsibilities of lead, joint lead, cooperating, and participating 
agencies consistent with the CEQ regulations, the appropriate timing 
for coordination with cooperating agencies, and protocols for 
coordinating with agencies that decline a DOT-requested cooperating 
agency status. This section would align with the update to the CEQ 
regulations, 40 CFR 1501.7 and 1501.8, to highlight the 
responsibilities of the lead agency, including the responsibility to 
issue a single environmental document, single FONSI, or single ROD for 
the lead and cooperating agencies, the responsibility to determine the 
scope and significant issues to be analyzed in depth in the 
environmental impact statement, and the responsibility to determine the 
purpose and need and range of alternatives in consultation with the 
cooperating agency. In addition, the lead agency would be responsible 
for creating and updating the project schedule in coordination with the 
cooperating agencies. Finally, proposed paragraph (d) would recommend 
inviting agencies that may have an interest in the proposed action and 
are not cooperating or lead agencies to participate in the 
environmental review process. This approach is similar to the 
participating agency role set forth in 23 U.S.C. 139(d). Since 
applicants may carry out the responsibilities of the OA on its behalf, 
this proposal would not include the requirement from the 1985 
procedures for applicants to serve as joint lead agencies.
Sec.  13.13 General Principles for the NEPA Review Process
    This proposal would include a new proposed Sec.  13.13. This 
proposed addition would build upon several provisions from the 1985 
procedures, including section 2, ``Policy and Intent;'' section 7, 
``Preparation and Processing of Draft Environmental Statements;'' 
section 10, ``Predecision Referrals to the Council on Environmental 
Quality;'' and section 14, ``Citizen Involvement Procedures.''
    Proposed paragraph (a) would address the integration, to the 
maximum extent possible and at the earliest possible time, of all 
environmental reviews into the NEPA process to create a single 
environmental document.
    To expedite project delivery, proposed paragraph (b) would instruct 
OAs to incorporate by reference previously prepared and publicly 
available analyses, whenever possible, and to include a brief summary 
of the material in the NEPA document.
    Proposed paragraph (c) would set forth general requirements for 
NEPA documents, in accordance with 40 CFR 1500.4(d), 1502.2(a) and (c), 
and 1502.8, including that they be written in plain language and that 
they address impacts in proportion to their significance.
    Proposed paragraph (d) would require OAs to use an 
interdisciplinary approach, consistent with 40 CFR 1502.6, and provide 
that they may use professional services but must have staff with the 
capacity to evaluate these services and must take responsibility for 
the final content of their NEPA documents, consistent with 40 CFR 
1506.5 and 1507.2.
    Proposed paragraph (e) would promote the use of informal conflict 
resolution as well as environmental collaboration and conflict 
resolution (ECCR), consistent with the applicable requirements related 
to issue elevation and resolution outlined in section 6002 of SAFETEA-
LU, 40 CFR 1504.2, and 1504.3(d) through (h), Executive Order (E.O.) 
13807, and the September 7, 2012, CEQ/OMB joint ``Memorandum on 
Environmental Collaboration and Conflict Resolution.'' Proposed 
paragraph (e)(2) would include with revisions section 10 of the 1985 
procedures, ``Pre-decision Referrals to the Council on Environmental 
Quality''. This proposed paragraph would address the internal process 
for addressing or making referrals to CEQ. Overall, the process would 
remain the same, with revisions to reflect current practices for 
internal clearance and documentation requirements.
    Proposed paragraph (f) would provide direction on the use of 
tiering to improve or simplify the environmental analysis of actions 
that are similar or broad in nature, or when future decisions or 
unknown future conditions preclude a complete NEPA analysis, consistent 
with 40 CFR 1501.11 and 1502.4(b)(2). It also would encourage the use 
of programmatic approaches with resource or regulatory agencies, where 
possible. This instruction is consistent with MAP-21 sec. 1305, which 
modified the environmental review process mandated in sec. 6002 of 
SAFETEA-LU by explicitly authorizing the Department to use programmatic 
approaches to conduct environmental reviews. 23 U.S.C. 139(b).
    Proposed paragraph (g), which is consistent with 40 CFR 1501.6(c), 
1505.2(a)(3) and 1505.3, would instruct OAs to identify in the FONSI or 
ROD those measures that the lead agency is adopting and committing to 
implement. Due to the importance of ensuring implementation of 
mitigation measures, OAs would be instructed to take appropriate steps 
to ensure that these mitigation measures are implemented, including, 
for third-party actions, by conditioning the agency decision upon the 
performance of the mitigation commitments. Where legal authority 
exists, OAs would be permitted to provide for mitigation monitoring.
    Proposed paragraphs (h)(1) and (2) would identify public 
involvement as an important part of each stage of the development of a 
proposed action that should begin as early as reasonable and should be 
integrated into the NEPA process. The language would remain relatively 
unchanged from the original section 14 of the 1985 procedures, but has 
been updated to include modern technologies, such as using social 
media. Because the CEQ regulations provide flexibility with regard to 
public hearings, the Department does not

[[Page 74647]]

include section 14(e) of the 1985 procedures. The revised provision 
provides flexibility in implementation and recognizes the importance of 
various engagement strategies. In addition, the proposed rule states 
that that methods to solicit the views of the public should be tailored 
to reach those persons who are interested or affected by the action, 
and NEPA documents should be made available online where appropriate 
and practicable. Finally, this provision would incorporate CEQ's 
requirements from 40 CFR 1500.3(b), 1500.4(n), and 1503.3, that public 
comments be solicited as early in the process as possible, that they be 
specific, and that OAs provide notice that comments not submitted shall 
be forfeited as unexhausted.
    Proposed paragraph (i) would recognize that NEPA decisionmaking may 
not be delegated to third parties, but that many NEPA documents are 
prepared by third parties. Accordingly, this paragraph would address 
the use of contractors in preparing NEPA documents and set forth 
requirements consistent with 40 CFR 1506.5, which require OAs to 
provide guidance, participate in the preparation of, and independently 
review and assume responsibility for the content of all NEPA documents. 
OAs would retain responsibility for the documents' accuracy, scope, and 
contents. The section also would provide guidance for the selection of 
contractors. The Department notes that OA procedures may include 
different requirements regarding the OA's use of contractors. See, 
e.g., 23 U.S.C. 112.
    Proposed paragraph (j) would incorporate existing NEPA tracking 
requirements at 40 CFR 1501.7(i), 1501.9(d)(5), and 1507.4 under which 
certain OAs must report applicable actions on the Permitting Dashboard, 
www.permits.performance.gov. The DOT Reporting Standards \3\ clarify 
which OAs and which projects must be tracked. Currently the DOT 
Reporting Standards require the Federal Highway Administration, Federal 
Transit Administration, Federal Railroad Administration, and Federal 
Aviation Administration (including Stage agencies with NEPA assignment 
pursuant to 23 U.S.C. 327) to track all EAs and EISs for infrastructure 
projects. In addition, the DOT Reporting Standards reflect the E.O. 
13807 requirement that all OAs must track major infrastructure 
projects, as that term is defined in E.O. 13807. These reporting 
standards have been subject to modification since first established in 
2016 and may be subject to additional revisions in the future. 
Accordingly, the proposed rule would include only a high-level 
reference to the reporting requirements, while the specifics are 
addressed in the Reporting Standards to make it easier to revise as 
necessary.
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    \3\ The DOT Reporting Standards are available at: https://www.transportation.gov/transportation-policy/permittingcenter/federal-permitting-dashboard-reporting-standard.
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Sec.  13.15 Determination of the Level of NEPA Review
    Proposed Sec.  13.15 would include with modifications the 1985 
procedures at section 4, ``Environmental Processing Choice.'' The 
discussions of CEs and EAs in section 4 would be addressed in proposed 
Sec. Sec.  13.17 and 13.19, respectively, and the list of references to 
OA CEs would be addressed in Appendix B. Proposed paragraph (a) would 
require OAs to establish the appropriate scope of the proposed action 
using, as applicable, the criteria in 40 CFR 1501.9(e) to determine the 
appropriate level of NEPA review. Proposed paragraph (b) would instruct 
OAs to ensure that the scope of a proposed action has independent 
utility or significance and does not unreasonably restrict the 
consideration of alternatives for other reasonably foreseeable actions 
to ensure meaningful and objective evaluation of alternatives. Proposed 
paragraph (c) would require analysis of the potentially affected 
environment and the degree of the effects in considering significance, 
consistent with 40 CFR 1501.3(b), which includes consideration of 
short- and long-term effects, beneficial and adverse effects, effects 
on public health and safety, and effects that would violate Federal, 
State, Tribal, or local laws protecting the environment where the 
effects are reasonably foreseeable and have a reasonably close causal 
relationship to the proposed action (see 1508.1(g)). Proposed paragraph 
(d) would reflect the Office of Policy's role as the responsible office 
for NEPA implementation and compliance and provide guidance to OAs to 
notify the Office of Policy for situations involving unresolved 
disagreements between the OA and an applicant regarding the appropriate 
level of NEPA review.
Sec.  13.17 Categorical Exclusions
    Section 13.17 would provide an update to the 1985 procedures at 
section 4(c), ``Categorical Exclusions.'' Proposed paragraph (a) would 
provide the definition of CEs, consistent with 40 CFR 1508.1(d) and 
1501.4, and the requirement to consider whether extraordinary 
circumstances are present such that the OA must prepare an EA or EIS. 
Proposed paragraph (b) would provide a list of extraordinary 
circumstances that an OA must consider before applying a CE listed in 
proposed Appendix A of part 13. These represent circumstances in which 
a normally excluded action may have significant environmental effects; 
this updated list would add substantial increases of noise in a noise-
sensitive area; substantial adverse effects on a species listed or 
proposed to be listed on the List of Endangered or Threatened Species, 
or designated Critical Habitat for these species; a site that involves 
a unique characteristic of the geographic area, such as prime or unique 
agricultural land, a coastal zone, a historic or cultural resource, 
park land, wetland, wild and scenic river, designated wilderness or 
wilderness study area, sole source aquifer (potential sources of 
drinking water), or an ecologically critical area; as well as 
inconsistency with any applicable Federal, State, or local air quality 
standards, including those under the Clean Air Act, as amended; 
substantial short-or long-term increases in traffic congestion or 
traffic volumes on any mode of transportation; or substantial impacts 
on the environment resulting from the reasonably foreseeable, 
reportable release of hazardous or toxic substances. This list only 
would be applicable to the CEs listed in proposed Appendix A of part 
13. However, when updating OA Procedures, OAs would be directed to 
consider whether any of the extraordinary circumstances provided in 
proposed paragraph (b) are appropriate to add to their list.
    Under section 1314 of MAP-21, Congress first amended 49 U.S.C. 304 
to establish a process by which OAs could apply CEs to multimodal 
projects, as that term is defined in 23 U.S.C. 139(a). Through section 
1310 of the FAST Act, Congress later amended 49 U.S.C. 304 so that one 
OA could apply the CE established in the procedures of another OA for 
multimodal projects, as defined in 23 U.S.C. 139(a)(5). Proposed 
paragraph (c) would implement these authorities departmentwide.
    The CEQ regulations allow agencies to establish a process to use 
other Federal agencies' CEs for their proposed actions after 
consultation with the other agencies to ensure that use of their CEs is 
appropriate. The regulations require documentation of the consultation 
and identification to the public of those CEs that the OA may use for 
its proposed actions. 40 CFR 1507.3(f)(5). DOT requests comments on 
whether the Department should create such a process and on the design 
of any such process, or whether it is more

[[Page 74648]]

appropriate to direct each OA to develop a process in its own OA 
Procedures. If the departmental procedures were to include such a 
process, the provisions could describe the agency process under which 
an agency may borrow another agency's CE, including describing the 
proposed action, identifying potentially applicable CEs, documenting 
the applicability analysis, consulting with the originating agency, 
keeping records, and providing public notice. The Department will 
consider appropriate measures or provisions if it elects to establish 
such a process.
    The CEQ regulations require agencies to review their existing NEPA 
procedures to ensure that they are consistent with CEQ's revised 
regulations and to adopt, as necessary, agency procedures that improve 
agency efficiency. 40 CFR 1507.3(b), 40 CFR 1501.4(a). The Department 
undertook such a review, and Appendix A would update and maintain a 
list of Departmental CEs. Based on its review, the Department would 
propose to add 11 new CEs, eliminate existing CE 3 and the subpart for 
existing 6b, and modify the remaining five existing CEs. Modifications 
to existing CEs would provide clarity and reflect the Department's 
experience with these activities. The Department provides additional 
information and justification for updating the existing CEs and 
supporting the new CEs in the docket for this rulemaking.
    The proposed rule would re-order and re-number the Departmentwide 
CEs from the 1985 procedures. In the new proposed CEs, the Department 
has identified routine operational activities, including training and 
educational activities (proposed CE 3); leasing of space in existing 
buildings (proposed CE 6); remodeling existing facilities (proposed CE 
7); landscaping and landscape maintenance that does not cause 
introduction or spread of invasive species (proposed CE 8); 
investigations, research activities, and studies (proposed CE 9); 
hearings and public meetings (proposed CE 12); administrative actions 
and proceedings (proposed CE 13); 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 (proposed CE 14); and certain agreements concerning foreign 
governments, foreign civil aviation authorities, and international 
organizations and the implementation of such agreements (proposed CE 
15).
    This rule also would add two new CEs relating to rulemaking and 
policy activities. The first would cover 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 (proposed CE 10). The second CE would cover 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 (proposed CE 11).
    Finally, proposed CE 5 would modify existing CE 5 from the 1985 
procedures, which incorporates by reference CEs identified in OA 
Procedures, and would expressly allow one OA to apply the CE of another 
OA. In order to apply a CE listed in another OAs procedures, the OA 
that has established the CE in its procedures must confirm that the OA 
administering the action is applying the CE appropriately, and that the 
action to which the CE is being applied was contemplated when the CE 
was established. Therefore, the Department would revise 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 must provide expertise in reviewing the action being 
categorically excluded.''
    Over the last decade, the Department has implemented a number of 
new programs and projects that go beyond the bounds of a particular OA. 
This updated CE would 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 CEs to the project 
is appropriate because it is contemplated within that category of 
action and whether any extraordinary circumstances are present such 
that preparation of an EA or EIS may be required.
Sec.  13.19 Environmental Assessments
    Proposed Sec.  13.19 is a new section to address the preparation of 
EAs; it would update the 1985 procedures at section 4(d), 
``Environmental Assessment,'' which provided guidance for the 
preparation of EAs. In accordance with 40 CFR 1501.5 and 1508.1(h), 
proposed paragraph (a) would explain when an EA must be prepared. 
Proposed paragraph (b) would provide the required elements for an EA, 
consistent with 40 CFR 1501.5, while proposed paragraph (c) would set 
forth an EA page limit of 75 pages consistent with 40 CFR 1501.5(f) 
unless a senior agency official approves in writing an EA to exceed 75 
pages and establishes a new page limit. It also would outline the 
senior agency official approval required to exceed page limits beyond 
these lengths. This paragraph would require the EA to be concise and to 
correlate to the magnitude of the proposed action and its anticipated 
impacts. Proposed paragraph (d) would provide the requirement that an 
EA should be prepared within one year from the agencies' determination 
to prepare an EA consistent with 40 CFR 1501.10(a)(1). If, during 
development of the EA, the OA concludes that there will be significant 
impacts and therefore would not issue a FONSI, the OA would issue an 
NOI, and the time limits for EISs would apply consistent with 40 CFR 
1501.10(a)(1).
    Proposed paragraph (e) addresses the alternatives analysis for EAs, 
which may be limited to the proposed action and no action alternative, 
and may be analyzed to a degree commensurate with the nature of the 
proposed action and the OA's experience with the potential 
environmental impacts of similar projects. OAs would be instructed to 
indicate a preferred alternative in the EA, if one has been identified. 
For those alternatives that were considered and eliminated, the OAs 
would be directed to provide a brief justification of these decisions 
in the EA. Proposed paragraph (f) would note that EAs should reflect 
compliance or plans for compliance with other applicable environmental 
requirements, 40 CFR 1501.5(g)(3) and 1502.24, and proposed paragraph 
(g) would require an OA to evaluate the environmental issues 
independently and take responsibility for the accuracy, scope and 
contents of EAs prepared by applicants, 40 CFR 1506.5(b)(2). Proposed 
paragraph (h) would require OAs to involve the public, State, Tribal 
and local governments, relevant agencies, and any applicants to the 
extent practicable, 40 CFR 1501.5(e), and to make EAs available to the 
public, 40 CFR 1506.6(b) and 1501.6(a)(2). It would allow OAs to use 
their discretion to determine if a draft EA should be

[[Page 74649]]

released for public comment, though OAs would be required to address 
substantive comments in the final EA or FONSI.
Sec.  13.21 Findings of No Significant Impact
    Proposed Sec.  13.21 would incorporate with updates section 5 of 
the 1985 procedures, ``Finding of No Significant Impact,'' continuing 
to focus on the CEQ regulatory requirements for a FONSI set forth in 40 
CFR 1501.6. Consistent with that provision, proposed paragraph (b) 
would set forth the circumstances when an OA may issue a mitigated 
FONSI, including identifying the mitigation measures necessary to 
reduce the potential impacts below a level of 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.
    As OAs, must make FONSIs available to the public as specified in 40 
CFR 1501.6, this section would not include the unnecessary instructions 
contained in section 5(c) of the 1985 procedures regarding internal 
coordination of FONSIs and circulation of Notices of Availability to 
State and area-wide clearinghouses. The proposed rule also does not 
include the instruction in section 5(c) that consultation with other 
Federal agencies concerning Section 4(f) (23 U.S.C. 138/49 U.S.C. 303), 
the National Historic Preservation Act, Clean Water Act Section 404 
permits, and other Federal requirements should be accomplished prior to 
or during the 30-day period. This requirement to consult applies to all 
EAs, not just when a 30-day public comment period is required. Rather 
than providing in this proposed rule specific direction on compliance 
with substantive requirements contained in other environmental 
statutes, the Department instead proposes to include in Appendix C a 
non-exhaustive list of relevant environmental reviews, authorizations, 
and consultations that OAs would be expected to integrate into the NEPA 
process.
Sec. Sec.  13.23-13.27 Environmental Impact Statements
    Proposed sections 13.23 through 13.27 would address the 
requirements for EISs. To improve clarity, the Department would include 
the requirements that apply to both draft and final EISs in proposed 
Sec.  13.23, and address requirements specific to draft EISs (DEISs) in 
proposed Sec.  13.25, and FEISs in proposed Sec.  13.27. Generally, 
these sections would set forth the requirements from the CEQ 
regulations, including those in 40 CFR part 1502, and update the 
information previously included in the 1985 procedures at 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, generally 
applicable instructions from these provisions in the 1985 procedures 
would be addressed in proposed Sec.  13.9.
    Proposed paragraph (a) of proposed Sec.  13.23 would set forth when 
NEPA requires an EIS (42 U.S.C. 4332(2)(C)), and for clarity and 
consistency with 40 CFR 1507.3(e)(2), would note that examples of 
typical actions that require an EIS are listed in OA Procedures. 
Proposed paragraph (b) would instruct OAs to prepare a notice of intent 
to prepare an EIS and publish it in the Federal Register, 40 CFR 
1501.9(d) and 1508.1(u). Proposed paragraph (c) would set forth scoping 
requirements pursuant to 40 CFR 1501.9, 1506.3, and 1508.1(cc), 
including the actions, alternatives, and impacts that must be 
considered when determining the appropriate scope of issues to be 
addressed in the EIS. The scoping process must consider the type of 
action and determine the level of NEPA review. (See Section 13.15(c)). 
To determine whether the effects of the proposed action are 
significant, the OA must analyze the degree of the effects of the 
proposed action relative to the affected environment consistent with 40 
CFR 1501.3. Proposed paragraph (d) would instruct OAs to provide early 
notice and solicit the views of any State or Federal land management 
entity that may be significantly affected by an action proposed by a 
State agency or official with statewide jurisdiction (42 U.S.C. 
4332(2)(d)). Proposed paragraphs (e)(1) through (6) would, consistent 
with 40 CFR part 1502, address the format and content of EISs, 
including purpose and need, alternatives, affected environment, 
environmental consequences, mitigation, and the summary of submitted 
alternatives, information, and analyses. The detailed discussion of the 
contents of an EIS that is in Attachment 2 to the 1985 procedures, as 
well as discussions regarding documenting impacts to specific 
resources, is not included in the proposed rule. Specifically, proposed 
paragraph (e)(2) would emphasize that the draft EIS should identify the 
OA's preferred alternative(s), if one or more exists, unless in 
conflict with other laws; otherwise the OA should provide agencies and 
the public with the opportunity to assess the environmental 
consequences of the preferred alternative prior to issuing a combined 
FEIS/ROD, or the OA should provide the public with an opportunity to 
evaluate the preferred alternative during a waiting period after the 
publication of the notice of availability of the FEIS. Proposed 
paragraph (f) would require OAs to comply with document page limits in 
accordance with 40 CFR 1502.7. Proposed paragraph (g) would require 
that EISs be completed within two years from NOI to ROD. OAs must 
obtain approval from the Assistant Secretary to exceed this time frame, 
consistent with 40 CFR 1501.10(b)(2). Proposed paragraph (h) would 
reflect Departmental policy and CEQ regulations at 40 CFR 1502.11(g) to 
require OAs to include the total cost of the EIS on the cover page of 
an FEIS and a supplemental EIS. The amount reported would include the 
entire cost of the environmental review. Proposed paragraph (i) would 
set forth the requirement to file EISs with the Environmental 
Protection Agency (EPA) pursuant to 40 CFR 1506.10 and would note EPA's 
guidance on filing. Proposed paragraph (j) would address public notice 
and notice of availability requirements consistent with 40 CFR 1506.6. 
This proposed rule would remove from Attachment A of Order 5610.1C 
additional guidance not required under the CEQ regulations. Finally, 
proposed paragraph (k) would set forth the timing requirements for the 
OA's final decision, including the ability to reduce or extend time 
periods.
Sec.  13.25 Draft Environmental Impact Statements
    As noted in the discussion of proposed Sec.  13.23, proposed Sec.  
13.25 would address requirements specific to the preparation of DEISs. 
Proposed paragraph (a) would encourage early preparation of the DEIS to 
ensure that the decisionmaker can meaningfully consider the analysis in 
the decisionmaking process. 40 CFR 1502.5. Proposed paragraph (b) would 
encourage OAs to indicate in the DEIS when they intend to issue a 
combined FEIS/ROD pursuant to 49 U.S.C. 304a(b) or 23 U.S.C. 139(n). To 
ensure meaningful participation in the environmental review process, 
proposed paragraph (c) would set forth the specific circulation and 
request for comment requirements for DEISs. Pursuant to the updated CEQ

[[Page 74650]]

regulations, an OA must provide for electronic submission of public 
comments as well as ensure that the comment process is accessible to 
affected persons. See 40 CFR 1503.1(c).
Sec.  13.27 Final Environmental Impact Statements
    As noted in proposed Sec.  13.23, proposed Sec.  13.27 would 
address requirements specific to the preparation of FEISs and the 
Department's unique statutory authorities. For example, section 1319(a) 
of MAP-21 clarified that the lead agency can issue an FEIS that 
consists of ``errata pages''--rather than a complete, stand-alone 
document--if the agency received only ``minor comments'' on the DEIS. 
This flexibility existed under the CEQ regulations even before the 
enactment of MAP-21; however, section 1319(a) confirmed that this 
format is acceptable. It also required that errata pages ``(1) cite the 
sources, authorities, or reasons that support the position of the 
agency'' and ``(2) if appropriate, indicate the circumstances that 
would trigger agency reappraisal or further response.''
    In addition, section 1319(b) of MAP-21 provided authority to issue 
a combined FEIS/ROD. The FAST Act repealed this provision and codified 
identical provisions at 49 U.S.C. 304a and 23 U.S.C. 139. These 
provisions direct the Department, when it acts as the lead agency, to 
issue the FEIS and ROD as a single document ``to the maximum extent 
practicable,'' unless (1) the FEIS makes substantial changes to the 
proposed action that are relevant to environmental or safety concerns; 
or (2) there are significant new circumstances or information relevant 
to environmental concerns and the circumstances or information bears on 
the proposed action or the impacts of the proposed action.
    Proposed paragraphs (a) and (b) address resolution of comments on 
the DEIS in the FEIS. Consistent with 40 CFR 1503.4, proposed paragraph 
(a) would provide direction on responding to comments on the DEIS in 
the FEIS. Proposed paragraph (b) would provide 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).
    Proposed paragraph (c) would implement the requirements of 49 
U.S.C. 304a(b) and 23 U.S.C. 139(n) 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. When an OA is the lead agency and 
there are cooperating agencies, the cooperating agencies must, to the 
extent practicable, issue the FEIS/ROD jointly with the OA pursuant to 
40 CFR 1501.8(b)(8).
    To ensure the integration of all environmental reviews into the 
NEPA process, proposed paragraph (d) would direct the FEIS to reflect 
compliance or plans for compliance with other environmental 
requirements; should such compliance not be possible by the time the 
FEIS is prepared, proposed paragraph (d) would direct OAs that the 
document should reflect consultation with the appropriate agencies and 
provide reasonable assurance that the OA can meet the requirements. 
This rule would not include section 12 of the 1985 procedures, 
``Determinations Under Section 4(f) of the DOT Act,'' as discussion of 
determinations under Section 4(f) is outside the scope of the 
Department's NEPA implementing procedures. Proposed paragraph (e) would 
reiterate existing delegations for approval of FEISs. Proposed 
paragraph (f) would set forth the Department's policy to notify the 
Office of Policy for certain FEISs. Finally, to ensure meaningful 
participation in the environmental review process, proposed paragraph 
(g) would address circulation requirements for the FEIS.
Sec.  13.29 Records of Decision
    This new section would reference requirements for an OA record of 
decision (ROD). Proposed paragraph (a) would implement the requirements 
of 49 U.S.C. 304a(b) and 23 U.S.C. 139(n) to develop a combined FEIS/
ROD. This paragraph would set forth the 30-day waiting period required 
by 40 CFR 1506.11(b)(2) in those instances where the OA determines it 
is not practicable within the meaning of 49 U.S.C. 304a(b) and 23 
U.S.C. 139(n) to issue a combined FEIS/ROD. In general, if a combined 
FEIS/ROD will not be prepared, and when the proposal requires action by 
multiple Federal agencies, proposed Sec.  13.29 clarifies that the OA 
should issue a single ROD with the other Federal agencies. Furthermore, 
for expediency, proposed Sec.  13.29 would allow the OA to integrate 
the ROD into another record or decision document, such as a final rule. 
Proposed paragraph (b) would set forth the topics to be addressed in 
the ROD, including alternatives, factors balanced in decisionmaking, 
and mitigation measures. Proposed paragraph (c) includes a requirement 
that the ROD provide a certification by the decisionmaker that the 
agency has considered all the alternatives, information, and analyses, 
and objections submitted for consideration by the lead and cooperating 
agencies in developing the EIS. FEISs certified in accordance with 40 
CFR 1505.2(b) are entitled to a presumption that the agency has 
considered the submitted alternatives, information, and analyses 
including the summary in the FEIS. Proposed paragraph (d) would clarify 
that the ROD should not repeat the analysis in the EIS, but should 
document the OA's decision and briefly discuss compliance with 
environmental laws applicable to the action or procedures, and expected 
timeframe for completion of such compliance. Finally, to reflect the 
Department's policy of using an interdisciplinary approach, proposed 
paragraph (e) would allow OAs to discuss preferences among alternatives 
based on relevant economic, technical, or other factors, and OA mission 
and authority.
Sec.  13.31 Adoption
    Proposed Sec.  13.31 would introduce a new section that is not in 
the 1985 procedures. This section would 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). Proposed paragraph (a) would discuss the adoption by OAs of 
EISs prepared by a lead agency on an action for which the OA is a 
cooperating agency, in accordance with 40 CFR 1506.3(b)(2)), while 
proposed paragraph (b) would provide information on adoption when the 
OA is not a cooperating agency but the action covered by the original 
EIS and the proposed action are substantially the same, including 
circulation requirements, in accordance with 40 CFR 1506.3(b)(1). 
Proposed paragraph (c) would cover the full or partial adoption of EISs 
when the OA is not a cooperating agency and the actions covered are not 
substantially the same, in accordance with 40 CFR 1506.3(b). Where the 
OA was not a cooperating agency, proposed paragraphs (b) and (c) direct 
the OA to issue a combined FEIS/ROD consistent with the directive in 49 
U.S.C. 304a and 23 U.S.C. 139(n). Proposed paragraph (d) provides for 
the full or partial adoption of an EA. Proposed paragraph (e) provides 
for adoption of a CE determination by another Federal agency when the 
action in the original CE determination and the proposed action are 
substantially the same. When doing so, the OA must document the 
adoption consistent with 40 CFR 1506.3(d) and proposed section 
13.25(b). Proposed paragraph (f) would

[[Page 74651]]

require re-evaluation of an EIS or EA that is more than 5 years old 
prior to its full or partial adoption, in accordance with proposed 
Sec.  13.33 and 40 CFR 1502.9(d)(4). Proposed paragraph (g) would 
require filing with the EPA when an OA adopts and publish an EIS, and 
finally, proposed paragraph (h) would allow an OA to adopt an EA, DEIS, 
or FEIS of another OA under 49 U.S.C. 304a(c)(2).
Sec.  13.33 Re-Evaluation and Supplementation
    Consistent with 40 CFR 1502.9(d)(4), 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(d). A re-evaluation is a continuation of the project 
development process, and it does not necessarily re-open the NEPA 
decision. Proposed Sec.  13.33 would update and clarify the existing 
practice for re-evaluation outlined in section 19 of the 1985 
procedures, ``Time in Effect of Statements.'' In addition, the 
Department would revise the interval for re-evaluation from three to 
five years. Proposed paragraph (a)(1) would encourage the use of re-
evaluation when there are changes to the proposed action or new 
circumstances or information relevant to environmental concerns. 
Additionally, proposed paragraph (a)(2) would require OAs to re-
evaluate in writing DEISs if the OA has not issued an FEIS within five 
years of circulation of the DEIS, and FEISs if major steps toward 
implementation have not commenced within five years of FEIS approval. 
Proposed paragraph (b) would address the CEQ regulatory criteria for a 
supplemental EIS, as well as the discretion to supplement, circulation 
requirements for supplemental EISs, and the process for the approval of 
an alternative circulation procedure. 40 CFR 1502.9(d)(1).
Sec.  13.35 Emergency Actions
    Section 1432 of the FAST Act provided for exemptions and expedited 
procedures for certain environmental review processes during 
emergencies. Specifically, section 1432(b)(1) references alternative 
arrangements under 40 CFR 1506.12. Proposed Sec.  13.35 concerns such 
alternative arrangements. This new section would also address the CEQ 
regulation on emergencies, 40 CFR 1506.12, and related CEQ guidance. 
Finally, this section would build on section 17(c) of the 1985 
procedures, ``Timing of Agency Action,'', which details the internal 
process for consulting with CEQ concerning emergencies.
    Proposed Sec.  13.35 would address emergency situations in proposed 
paragraph (a) and would provide mechanisms for NEPA compliance where 
the OA anticipates significant impacts in proposed paragraph (b) or 
non-significant impacts in proposed paragraph (c). In both instances, 
this section would provide the internal coordination process for such 
compliance.
Sec.  13.37 Environmental Impact Statements for Legislative Proposals
    Proposed Sec.  13.37 would address the requirements for legislative 
EISs consistent with 40 CFR 1506.8(c)(2). Consistent with the general 
updates set forth in Section II of this rulemaking, this proposed 
section would also incorporate and revise for clarity the substance of 
section 15 of the 1985 procedures, ``Proposals for Legislation,''
Sec.  13.39 International Actions
    Proposed Sec.  13.39 would address implementation of Executive 
Order 12114, Environmental Effects Abroad of Major Federal Actions 
addressed in section 16 of the 1985 procedures, ``International 
Actions.'' \4\ This section would streamline the provision by cross-
referencing to the E.O., rather than repeating its applicability 
criteria. It also would direct OAs to prepare any required EIS 
consistent with this rule and OA procedures. Finally, this section 
would reflect minor edits for clarity consistent with the general 
updates set forth in Section II of this NPRM.
---------------------------------------------------------------------------

    \4\ This section addresses compliance with the Executive Order 
rather than NEPA. The Executive Order's requirements were not 
altered by CEQ's revisions to its NEPA regulations. See CEQ, Update 
of the Regulations Implementing the Procedural Provisions of the 
National Environmental Policy Act: Final Rule Response to Comments 
at 551-52 (July 30, 2020).
---------------------------------------------------------------------------

Appendix A--Appendix A to Part 13--List of Departmental Categorical 
Exclusions
    Appendix A would list the existing, revised, and new departmentwide 
CEs. Consistent with the CEQ regulations, agencies or their subunits 
may determine that certain categories of actions normally do not have 
significant environmental impacts and therefore do not require further 
review under NEPA. As discussed in the analysis of proposed Sec.  13.17 
in Section III of this rulemaking, this proposed rule would clarify 
which categories of activities are categorically excluded and normally 
would not require additional NEPA analysis. The Department 
substantiated the proposed new and revised CEs by reviewing EA and EIS 
analyses to identify the environmental effects of previously 
implemented actions, benchmarking other Federal agencies' experience 
implementing similar categories of actions, and relying on the judgment 
and expertise of the Department's NEPA practitioners. The Department 
notes that other Federal agencies have established CEs for activities 
that are similar in nature, scope, and effect on the human environment. 
The Department provided for CEQ review the proposed draft changes and 
justification for each proposed change to the list in this appendix.
Appendix B to Part 13--List of Categorical Exclusions in Operating 
Administration Procedures
    Appendix B would provide cross-references to the OA CEs. The 
proposal would incorporate by reference all current CEs established and 
maintained by the OAs for use pursuant to CE #5.
Appendix C to Part 13--Environmental Requirements for Integration With 
the NEPA Process
    This rule would direct OAs to coordinate and integrate all relevant 
environmental and planning studies, reviews, and consultations into 
their environmental review process. This instruction is consistent with 
MAP-21 sec. 1305, and FAST Act sec. 1304, which requires the Department 
to align the environmental review process and substantive environmental 
legal compliance. To assist the Department's NEPA practitioners in 
harmonizing these reviews, Appendix C would provide a non-exhaustive 
list of the environmental requirements that should be integrated with 
the NEPA process.

IV. Rulemaking Analyses and Notices

(a) Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), and DOT Regulations 
(49 CFR Part 5)

    The Office of Information and Regulatory Affairs determined that 
this rule is a significant regulatory action under E.O. 12866, as 
supplemented by E.O. 13563, because it is related to the agency's 
implementation of the CEQ regulations implementing the procedural 
requirements of NEPA.
    E.O. 12866 and E.O. 13563 require agencies to regulate in the 
``most cost-effective manner,'' to make a ``reasoned determination that 
the benefits of the intended regulation justify its costs,'' and to 
develop regulations that ``impose the least burden on society.''. The 
rule would implement several changes to Department policies, 
procedures, and

[[Page 74652]]

internal coordination to streamline project delivery.
    Several provisions are expected to create one-time de minimis 
administrative costs for the Department, including the requirement that 
OAs update their regulations and revise Department policies and 
processes to comply with the provisions in the regulation. The 
Department would also incur ongoing de minimis administrative costs due 
to staff time required by additional internal reporting and 
coordination.
    The Department expects that the rule would yield administrative 
cost savings as a result of better intra- and interagency coordination 
and more efficient program management within the Department. The 
Department expects that these potential cost savings from the proposed 
rule would outweigh any one-time or ongoing de minimis administrative 
costs.
    Several provisions could result in savings:
     Requiring the use, where appropriate, of coordination 
tools including programmatic approaches and interagency agreements 
would decrease required staff time and resources by shortening review 
times and by reducing the duplication of efforts by the Department and 
by State and Federal resource agencies.
     Establishing Departmentwide internal reporting and 
coordination requirements would allow the Department to allocate 
resources better to ensure that the environmental review process 
remains on schedule while also improving the identification of 
potential issues earlier in the environmental review process.
     Setting presumptive NEPA document page limit provisions 
and increasing the timeframe that NEPA documents remain valid from 
three to five years would reduce the Departmental time and resources 
required to develop, issue, or review NEPA documents.
     Allowing OAs to share CEs would save Department resources 
and staff time by reducing the number of EAs prepared for categories of 
projects that another OA has previously determined would not normally 
have a significant impact on the environment.
     Introducing Departmentwide CEs that include research 
activities and rulemakings would reduce the administrative costs of 
conducting those activities.
     Removing prescriptive EIS contents that were included in 
Attachment 2 of the 1985 procedures would allow documents to be 
tailored to use a more effective format for communication, thereby 
saving the Department and project sponsors time and resources in 
document preparation.
    Project sponsors may also incur de minimis costs from the rule, 
such as staff time to calculate and provide the total cost of the 
environmental review process on the final environmental impact 
statement cover page. However, the Department expects that project 
sponsors would also achieve cost and time savings in the environmental 
review process which would outweigh these costs. An emphasis on 
programmatic approaches and interagency agreements in this regulation 
would save project sponsors staff time and resources by reducing 
environmental impact review times and by limiting duplicative 
submissions to multiple State and Federal agencies. Additional internal 
coordination and reporting requirements would increase the 
accountability and transparency of the environmental review process for 
project sponsors, and will allow for earlier identification and 
mitigation of risks that could otherwise slow down the overall 
environmental review process. The Department also expects that the 
provisions on page limits and an increase in the timeframe that NEPA 
documents remain valid would allow for savings in environmental 
document preparation.
    The Department also expects that these changes would reduce the 
time required for projects to move through the environmental review 
process. As a result, projects may be completed earlier, and the 
benefits of transportation infrastructure improvements or research 
would accrue to the public sooner than they otherwise would have. The 
Department expects that codifying the required online posting of 
environmental documents would also improve the transparency of the 
environmental review process for the public. Finally, shorter 
environmental documents would facilitate reviews by decisionmakers and 
the public. The Department has issued a page limits policy memorandum, 
which would support this proposal, and which encourages using a clear 
and concise writing style to meet the page limits. Such environmental 
documents would be easier to read and may make it easier for the public 
to understand the potential environmental impacts of proposed 
transportation projects.

(b) E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

    This proposed rule is expected to be an E.O. 13771 deregulatory 
action. Details on the estimated cost savings of this proposed rule can 
be found in the rule's economic analysis in section IV(a).

(c) Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), (Pub. L. 96-354, 5 U.S.C. 
601-612) requires an agency to assess the impacts of proposed and final 
rules on small entities unless the agency determines that a rule is not 
expected to have a significant economic impact on a substantial number 
of small entities. DOT has evaluated the effects of this proposed rule 
on small entities such as small businesses, small organizations, and 
small governmental jurisdictions. Based on the evaluation, the 
Department anticipates that this action would not have a significant 
economic impact on small entities. The proposed rule would not directly 
regulate small entities, as the proposed rule applies to the Department 
and sets for its procedures for implementing the provisions of NEPA. 
Accordingly, the Department certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities.

(d) E.O. 13132 (Federalism)

    E.O. 13132 requires agencies to ensure 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. DOT analyzed this action in accordance with the principles 
and criteria contained in E.O. 13132. This NPRM would establish 
internal administrative procedures for the DOT to comply with NEPA. 
This action will not have a substantial direct effect or federalism 
implications on the States and would not preempt any State law or 
regulation or affect the States' ability to discharge traditional State 
governmental functions because this proposed rule applies to the 
Department, not States. This action contains no Federal mandates for 
State and local governments and does not impose any enforceable duties 
on State and local governments. Because this action addresses only 
internal Department procedures for implementing NEPA, consultation with 
State or local governments is not necessary. The Department notes that 
some states have voluntarily assumed NEPA responsibility pursuant to 23 
U.S.C. 327.

[[Page 74653]]

(e) E.O. 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    Pursuant to E.O. 13175, ``Consultation and Coordination with Indian 
Tribal Governments,'' the Department has assessed the impact of this 
proposed rule on Indian tribal governments and has determined that the 
proposed rule would not significantly or uniquely affect communities of 
Indian tribal governments. The proposed rule deals with administrative 
procedures for complying with the requirements of the NEPA and, as 
such, has no direct effect on Indian Tribal governments. Because the 
proposed rule does not mandate Tribal participation in the Department's 
environmental review process, it does not impose substantial direct 
compliance costs on Indian tribal governments. The proposed rule will 
recognize the obligation to and benefit of including Indian tribes in 
public engagement strategies to fulfill relevant environmental review 
responsibilities. Accordingly, the funding and consultation 
requirements of Executive Order 13175 do not apply.

(f) Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that DOT consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from OMB for each 
collection of information it conducts, sponsors, or requires through 
regulations. The DOT has determined that the proposed rule does not 
contain a collection-of-information requirement subject to review and 
approval by the OMB under the PRA.

(g) Unfunded Mandates Reform Act

    The Department has determined that the proposed rule would not 
impose unfunded mandates as defined by the Unfunded Mandates Reform Act 
of 1995 (UMRA) (Pub. L. 104-4, 2 U.S.C. 1531-1538). The actions 
proposed in this NPRM do not contain any unfunded mandates as described 
in the UMRA, and does not significantly or uniquely affect small 
governments. This proposed rule does not impose any mandates on small 
entities. It addresses the Department's procedures for implementing the 
procedural requirements of NEPA.

(h) National Environmental Policy Act

    The CEQ regulations do not direct agencies to prepare a NEPA 
analysis before establishing agency procedures to supplement the CEQ 
regulations to implement NEPA. See 1507.3; Heartwood, Inc. v. U.S. 
Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd, 230 
F.3d 947, 954-55 (7th Cir. 2000) (holding that a decision to issue 
agency NEPA procedures does not require analysis and documentation 
under NEPA). The Department's NEPA procedures assist the Department in 
fulfilling its responsibilities under NEPA and the CEQ regulations, but 
are not themselves final determinations of the level of environmental 
review required for particular actions. The Department also anticipates 
that this rulemaking would be categorically excluded pursuant to the 
1985 procedures. Accordingly, the Department does not anticipate any 
environmental impacts from this proposal, and there are no 
extraordinary circumstances present in connection with this rulemaking.

(i) Regulation Identifier Number

    A regulation identifier 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 
the spring and fall 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 in 49 CFR Part 13

    Administrative practice and procedure, Environmental impact 
statements, Environmental protection, Natural resources.

    Issued in Washington, DC, on November 6, 2020.
Elaine L. Chao,
Secretary.

    In consideration of the foregoing, the Office of the Secretary of 
Transportation proposes to amend Title 49 of the Code of Federal 
Regulations by adding part 13 to read as follows:

Title 49--Transportation

PART 13--ENVIRONMENT REVIEW PROCESS

Subpart A--General

Sec.
13.1 Applicability.
13.3 Definitions.
13.5 Environmental review policy.
Subpart B--Nepa Review Process
13.7 Managing NEPA compliance.
13.9 Planning and early coordination.
13.11 Lead, cooperating, and participating agencies.
13.13 General principles for the NEPA review process.
13.15 Determination of the level of NEPA review.
13.17 Categorical Exclusions.
13.19 Environmental Assessments.
13.21 Findings of No Significant Impact.
13.23 Environmental Impact Statements.
13.25 Draft Environmental Impact Statements.
13.27 Final Environmental Impact Statements.
13.29 Records of Decision.
13.31 Adoption.
13.33 Re-evaluation and supplementation.
13.35 Emergency actions.
13.37 Environmental Impact Statements for legislative proposals.
13.39 International actions.
Appendix A to Part 13--List of Departmental Categorical Exclusions
Appendix B to Part 13--List of Categorical Exclusions in Operating 
Administration Procedures
Appendix C to Part 13--Environmental Requirements for Integration 
with the NEPA Process

    Authority: 42 U.S.C. 4321-4347; 40 CFR parts 1500-1508; 49 
U.S.C. 304; 49 U.S.C. 304a; 49 U.S.C. 310; and E.O. 12114, 44 FR 
1957, Jan. 9, 1979, 3 CFR, 1979 Comp.

Subpart A--General


Sec.  13.1   Applicability.

    (a) Pursuant to the National Environmental Policy Act, 42 U.S.C. 
4321-4347 (NEPA) and the Council on Environmental Quality (CEQ) 
regulations implementing NEPA, 40 CFR 1500 through 1508, this part 
establishes procedures for the consideration of environmental impacts 
by officials of the Department of Transportation (Department or DOT) as 
part of the decisionmaking process for DOT actions.
    (b) Typical DOT actions may include grants; construction; 
regulatory actions; certifications; licenses; permits; waivers; 
approval of policies and plans (including those submitted to DOT by 
State, Tribal, or local agencies, or other public or private 
applicants, unless otherwise exempted); adoption or implementation of 
programs; legislation proposed by DOT; and any renewals or re-approvals 
of the foregoing. Consistent with 40 CFR 1508.1(q), an action is not 
subject to NEPA if, for example, it either does not allow for agency 
discretion to consider environmental impacts in decisionmaking or is 
not subject to DOT control and responsibility. Loans, loan guarantees, 
or other forms of financial assistance may be actions subject to NEPA 
when the OA exercises sufficient control and responsibility over the 
effects of such assistance.
    (c) Consistent with 40 CFR 1501.1, proposed activities or decisions 
expressly exempt from NEPA under another statute are not actions. For 
example, decisions concerning plans, Transportation Improvement 
Programs

[[Page 74654]]

(TIPs), and Statewide Improvement Programs (STIPs) are not actions 
pursuant to the express exemptions in 23 U.S.C. 134 and 135, 
respectively.


Sec.  13.3   Definitions.

    The definitions in 40 CFR part 1508 apply to this part. The 
following definitions supplement these for the purposes of this part:
    (a) Applicant means an individual; Federal agency, State, Tribal or 
local government; corporation; company; or any other party seeking an 
approval, financial assistance, special permit, waiver, certification, 
or other action from an OA.
    (b) Environmental review process means the integrated process for 
compliance with NEPA and any other applicable environmental statutes, 
regulations, or Executive Orders (E.O.), including those that require a 
permit, approval, consultation, or authorization to proceed with an 
action.
    (c) Level of NEPA review means the appropriate type of analysis 
required for a particular action (i.e., a categorical exclusion (CE), 
an environmental assessment (EA), or an environmental impact statement 
(EIS)).
    (d) NEPA document means an EIS, record of decision (ROD), EA, 
finding of no significant impact (FONSI), or any documentation prepared 
to support the application of a CE to a proposed action.
    (e) Operating Administration (OA) means any agency established 
within the Department, as listed in Sec.  1.3(b) of this subtitle, or 
an office within the Office of the Secretary of Transportation (OST).


Sec.  13.5   Environmental review policy.

    The policies in paragraphs (a) through (e) of this section govern 
the consideration of environmental impacts at DOT:
    (a) Consistent with NEPA, the Department will integrate Federal 
environmental objectives into the programs of DOT to ensure the safest, 
most efficient and modern transportation system in the world, while 
considering measures to avoid, minimize, or compensate for adverse 
environmental effects wherever practicable, consistent with other 
essential considerations of national policy.
    (b) The Department will strive to synchronize NEPA and other 
Federal environmental requirements and authorizations into a single, 
concurrent environmental review process that satisfies the requirements 
of all agencies with a role in a proposed action, expedites project 
delivery, and is completed within presumptive time limits.
    (c) The Department will apply sound science, reliable data, and a 
systematic interdisciplinary approach to the environmental review 
process, including the use of geographic information systems, as 
appropriate.
    (d) The Department will maximize the use of proven strategies to 
complete the environmental review process efficiently, including the 
use of electronic collaboration tools; programmatic agreements and 
approaches; and planning processes and products to inform NEPA 
requirements pursuant to applicable laws and regulations.
    (e) The Department encourages meaningful, proactive, open, and 
transparent public participation and collaboration with affected and 
interested stakeholders, including Federal agencies, States, Tribes, 
localities, and the public in its environmental decision-making process 
to avoid, minimize, and compensate for impacts.

Subpart B--Nepa Review Process


Sec.  13.7  Managing NEPA compliance.

    (a) Responsibility. Pursuant to Sec.  1.25a(a)(2) of this subtitle, 
the Assistant Secretary for Transportation Policy (Assistant Secretary) 
is the senior agency official who establishes policy and oversees the 
implementation of the NEPA process for the Department. The Assistant 
Secretary may determine which OA will serve as the lead agency to 
prepare the NEPA document for all actions taken by the Department for a 
proposed activity or project.
    (b) Office of Policy. The OST Office of Policy Development, 
Strategic Planning, and Performance (Office of Policy) oversees NEPA 
implementation and compliance with related environmental requirements, 
and OAs must consult with or notify the Office of Policy as set forth 
in this part. The Office of Policy in turn will coordinate with the 
Office of the General Counsel to ensure compliance with legal 
requirements. Additional information on the environmental review 
process may be obtained from the Office of Policy.
    (c) Office of the General Counsel. The Office of the General 
Counsel (OGC) provides counsel to the Department concerning the 
interpretation of and compliance with NEPA, the CEQ regulations, this 
part, and other applicable laws. Where appropriate, OGC determines the 
legal sufficiency of the Department's NEPA documents and coordinates 
with the OAs and the Department of Justice on NEPA-related litigation.
    (d) Applicability. This part supplements the regulations at 40 CFR 
parts 1500 through 1508, setting forth procedures specific to DOT 
actions. The OAs must comply with the regulations at 40 CFR parts 1500 
through 1508, this part, and their own NEPA implementing procedures, as 
applicable.
    (e) OA Procedures. Each OA must issue or modify NEPA implementing 
procedures (OA Procedures), consistent with this part, 40 CFR parts 
1500 through 1508, and any other applicable laws or regulations, that 
establish requirements for and provide guidance on integrating the 
environmental review process into the OA's programs and actions. To the 
extent applicants carry out the OA's responsibilities under OA 
Procedures (where appropriate and in compliance with 42 U.S.C. 
4332(2)(D) and 40 CFR 1506.5), the OA must require the applicants to 
comply with the OA Procedures.
    (1) OA procedures should include a list of actions that are not 
subject to NEPA. (See 40 CFR 1507.3(d));
    (2) OA procedures must include lists of actions that normally 
require the preparation of an EIS or EA (40 CFR 1507.3(e)(2)(i) and 
(iii)); include lists of categorically excluded actions and 
extraordinary circumstances (40 CFR 1507.3(e)(2)(ii)) and note which 
categorical exclusions require documentation 40 CFR 1507.3(e)(2)(ii)); 
identify when it might be appropriate to use tiering and programmatic 
approaches to facilitate an efficient environmental review (40 CFR 
1501.11 and 1508.1(ff)); ensure that decisions are made in accordance 
with NEPA's policy and procedures (40 CFR 1507.3(c)); describe the 
public participation process; describe the process to ensure early 
involvement of interested parties (40 CFR 1501.2(b)(4)); identify where 
interested parties can find information about the NEPA process, 
including NEPA documents (40 CFR 1506.6(e)); and describe the 
procedures for ensuring implementation of mitigation measures committed 
to in NEPA documents (40 CFR 1501.6(c), 1505.3, and 1508.1(s)).
    (3) OAs must submit proposals for new or revised implementing 
procedures to the Office of Policy and the OGC for review and 
concurrence prior to CEQ consultation and publication in the Federal 
Register. These offices will assist with CEQ consultation. The Office 
of Policy and the OGC will provide written concurrence on the final new 
or revised implementing procedures. OAs must provide notice of proposed 
new or

[[Page 74655]]

revised implementing procedures in the Federal Register for public 
comment and provide notice of final new or revised implementing 
procedures.
    (4) No later than 30 days of the effective date of this part, OAs 
must evaluate their OA procedures to develop a plan and schedule to 
make revisions necessary to achieve consistency with 40 CFR parts 1500 
through 1508 and this part. OAs must submit this determination or plan 
to the Office of Policy and the OGC for concurrence. Consistent with 40 
CFR 1507.3(b), OAs must, as necessary, develop or revise proposed 
procedures no later than September 14, 2021.
    (5) Subject to 40 CFR 1507.3(a), to the extent an OA's existing 
procedures are inconsistent with 40 CFR parts 1500 through 1508, the 
regulations in 40 CFR parts 1500 through 1508 apply, consistent with 40 
CFR 1506.13, unless there is a clear and fundamental conflict with the 
requirements of another statute. An OA may choose to apply 40 CFR parts 
1500 through 1508 or the procedures of this part to a review begun 
before September 14, 2020, or the effective date of this part, 
respectively.


Sec.  13.9   Planning and early coordination.

    (a) Timing. OAs should begin the environmental review process at 
the earliest practicable time in the planning or development of an 
action.
    (1) OAs should integrate the NEPA process with other processes at 
the earliest reasonable time to ensure that planning and decisions 
reflect environmental values and avoid potential conflicts that may 
delay the process. (40 CFR 1501.2). For actions, likely to require an 
EA or EIS, OAs must engage in early identification and evaluation of 
the purpose and need; the environmental impacts; reasonable 
alternatives (as further described in Sec.  13.19(b) for EAs and Sec.  
13.23(a)(2) for EISs); and measures to avoid, minimize, or compensate 
for adverse environmental impacts, as appropriate.
    (2) Unless otherwise provided by law, prior to making a final NEPA 
determination on a proposed action, OAs must not take any action 
concerning the proposal that would have an adverse environmental impact 
or limit the choice of reasonable alternatives. (40 CFR 1506.1(a), 
1502.2(f) and (g)). If an OA becomes aware an applicant is about to 
take an action that would have an adverse environmental impact or limit 
the choice of reasonable alternatives, the OA must promptly notify the 
applicant and the Assistant Secretary, and take appropriate action to 
ensure that the objectives and procedures of NEPA are achieved. (40 CFR 
1506.1(b)).
    (b) Coordination with applicants. OAs must ensure that applicants 
are aware of the environmental analysis and review requirements in this 
part.
    (c) Coordination with other agencies. OAs must coordinate with 
other OAs, Federal, State, Tribal, and local resource and regulatory 
agencies, stakeholders, and the public, as appropriate, to satisfy 
their responsibilities under NEPA and other relevant statutes, 
regulations, and Executive Orders, such as those listed in Appendix C 
of this part. OAs should communicate early and continually, and 
coordinate to identify and resolve issues. OAs may prioritize actions 
and improve early coordination with regulatory and resource agencies by 
executing interagency agreements such as Memoranda of Understanding 
(MOUs), Memoranda of Agreement (MOAs), or Programmatic Agreements, and 
using other tools at their disposal.
    (d) Use of planning analysis and decisions in the NEPA process. OAs 
should, as appropriate, integrate, adopt, and use planning information 
or decisions in the NEPA process.
    (e) Early coordination. The scoping process (40 CFR 1501.9) is a 
tool for early coordination that OAs must use in the preparation of an 
EIS in accordance with Sec.  13.23(c) and may use in the preparation of 
an EA to identify any significant issues and ensure that all interested 
or affected persons have an opportunity to participate early in the 
process. As part of scoping, OAs should use early coordination tools, 
such as planning, interagency working groups or agreements, 
programmatic approaches, coordination plans, and project schedules. OAs 
should use such tools prior to issuing the notice of intent.


Sec.  13.11  Lead, cooperating, and participating agencies.

    (a) Lead agency. An OA with primary responsibility for a proposed 
action, including a multimodal transportation project, generally will 
serve as the lead agency for preparing and processing EISs and EAs, 
where appropriate, and is responsible for inviting other agencies to 
serve as cooperating agencies or otherwise participate in the NEPA 
process. (See 40 CFR 1501.7). When an OA serves as lead agency, it is 
responsible for the scope, objectivity, accuracy, and content of the 
NEPA documents and ensuring completion of the environmental review 
process. When more than one OA is involved in an action, the OAs should 
determine together their respective roles (i.e., lead agency, joint 
lead agency, or cooperating agency) early in the process. However, if 
the OAs cannot agree on this determination within 30 days, they must 
consult the Office of Policy, which will resolve the dispute. The lead 
agency must:
    (1) Request participation of cooperating agencies in the NEPA 
process at the earliest practicable time;
    (2) Meet with a cooperating agency at the latter's request;
    (3) To the extent practicable prepare a single environmental 
document and joint FONSI or ROD for the lead and cooperating agencies;
    (4) Use environmental analysis and proposals from cooperating 
agencies with jurisdiction by law or special expertise to the maximum 
extent practicable;
    (5) Determine the scope and the significant issues to be analyzed 
in depth in an EIS;
    (6) Determine the purpose and need and range of alternatives in 
consultation with the cooperating agencies;
    (7) Create and update as necessary the project schedule in 
consultation with the cooperating agencies; and
    (8) Notify the Office of Policy if a milestone will be missed and 
elevate issues to the Assistant Secretary for timely resolution. (See 
40 CFR 1501.7).
    (b) Joint lead agencies. An OA serving as a joint lead agency 
assumes the same roles, responsibilities, and authority as a single 
lead agency.
    (c) Cooperating agencies. When serving as a lead or joint lead 
agency, OAs should identify and request Federal, State, Tribal, and 
local agencies that have jurisdiction by law or special expertise to be 
cooperating agencies under 40 CFR 1501.8 and 1508.1(e). When an OA 
serves as a cooperating agency, it must fulfill its responsibilities in 
coordination with the lead agency.
    (1) If another agency declines an OA's invitation to participate as 
a cooperating agency, the OA must still provide the declining agency 
with a copy of the NEPA document and should attempt to coordinate with 
it to avoid potential issues that could delay the action. If that 
agency raises concerns or indicates that it may delay or withhold 
action on some aspect of the proposed action, the OA should initiate a 
conflict resolution process in accordance with Sec.  13.13(e).
    (2) When an agency requests an OA to serve as a cooperating agency, 
the OA must accept and participate if it has jurisdiction by law, and 
should make every practicable effort to accept and participate if it 
has special expertise.
    (3) If another agency fails to invite an OA to serve as a 
cooperating agency when it has jurisdiction by law or special 
expertise, the OA should ask the

[[Page 74656]]

lead agency to extend an invitation to participate as a cooperating 
agency.
    (4) The OA must cooperate on schedule development and elevate 
issues that may affect the schedule to the senior agency official for 
resolution consistent with 40 CFR 1501.8(b)(6) and (7).
    (d) Participating agencies. OAs should invite other agencies 
(including other Federal, State, Tribal, or local agencies) that may 
have an interest in the proposed action to be participating agencies. 
OAs should invite such other agencies as early as possible (before or 
during scoping).


Sec.  13.13   General principles for the NEPA review process.

    (a) Integration of all environmental reviews into the NEPA process. 
To the maximum extent practicable and at the earliest possible time, 
OAs should integrate all relevant environmental reviews, 
authorizations, and consultations into the NEPA process. A list of 
authorities under which these may be conducted can be found in Appendix 
C of this part. To the extent practicable, OAs should develop a single 
NEPA document for all Federal agency actions necessary for a proposed 
activity or project. (See 40 CFR 1501.7(g)).
    (b) Incorporation by reference. OAs should incorporate by reference 
previously prepared and publicly available analyses wherever possible 
and provide a brief summary of the incorporated material in a NEPA 
document. (See 40 CFR 1501.12). Types of documents that may be 
incorporated by reference include previously prepared studies, 
analyses, and, to the extent permitted by law, decisions from prior 
environmental reviews. (See 40 CFR 1501.12).
    (c) Focused, quality documents. NEPA documents should effectively 
and concisely communicate the environmental effects of a proposed 
action to the public and the decisionmaker. NEPA documents should be 
written in plain language, and be analytic rather than encyclopedic. 
(See 40 CFR 1500.4(d), 1502.2(a) and (c), and 1502.8). The depth and 
scope of analysis and resulting documentation must be meaningful, high-
quality, relevant, and proportionate to the complexity of the action 
and degree of anticipated environmental effects and the affected 
environment (See 1501.3, 1501.5, 1502.2(b), and 1502.23).
    (d) Interdisciplinary approach. OAs must use an interdisciplinary 
approach throughout the planning and preparation of EISs and EAs, as 
applicable, and ensure a systematic evaluation of alternatives and 
their potential environmental consequences. (See 40 CFR 1501.5(c) and 
1502.6). Analyses should identify applicable methodology and explain 
the use of best available information. Where appropriate, OAs may use 
professional services from other Federal, State, Tribal, or local 
agencies, universities, consulting firms, or other experts; however, OA 
staff must have the capacity to evaluate the information these entities 
provide, and OAs must take responsibility for the final content of 
their NEPA documents. (See 40 CFR 1506.5 and 1507.2).
    (e) Conflict resolution.
    (1) Resolution of disputes. OAs should seek to resolve 
expeditiously all disputes as early as possible in the NEPA process 
consistent with applicable requirements. OAs should communicate and 
collaborate to recognize and resolve disputes as they arise to maintain 
constructive relationships among all parties, including other OAs, 
Federal or State agencies, Tribes, and members of the public in 
accordance with 40 CFR parts 1500 to 1508, DOT Order 5611.1a and 
applicable CEQ/Office of Management and Budget guidance. OAs must 
report on their use of formal environmental conflict resolution in 
annual reports to the Office of Policy and OGC's Office of Operations 
on Environmental Collaboration and Conflict Resolution (ECCR). OAs must 
notify CEQ and obtain CEQ concurrence, as necessary, to use the John S. 
McCain III National Center for Environmental Conflict Resolution (20 
U.S.C. 5607b(c)).
    (2) Pre-decisional referrals to CEQ. The following procedures apply 
to referrals to CEQ under 40 CFR part 1504:
    (i) Referrals on DOT actions. If another Federal agency advises an 
OA that it intends to make a referral to CEQ, the OA must coordinate 
with the Office of Policy. The OA should make a concerted, timely 
effort to resolve issues raised by another Federal agency with respect 
to an EIS for a proposed DOT action to avoid a referral to CEQ. The OA 
should document these efforts in the project record.
    (ii) DOT referrals to CEQ on other agency proposals. Whenever 
possible, OAs should make efforts to resolve issues informally to avoid 
referrals to CEQ. If the issues are not resolved prior to filing the 
final EIS (FEIS) with EPA, the OA Administrator must obtain concurrence 
from the Office of Policy and OGC to make a referral to CEQ. Referrals 
should include all content specified in 40 CFR 1504.3(c). The OA should 
notify the Office of Policy as early as possible that a referral is 
anticipated. OAs must make formal referrals to CEQ no later than 25 
calendar days after EPA publishes the notice of availability of the EIS 
or the lead agency makes an EA available.
    (f) Tiering and programmatic approaches. OAs should use tiering 
(see 40 CFR 1501.11 and 1508.1(ff)) to improve or simplify the 
environmental analysis of proposed DOT actions that are similar in 
nature, broad in scope, or where future decisions or unknown future 
conditions preclude a complete NEPA analysis. This would eliminate 
repetitive discussions of the same issues, focus on issues ripe for 
decision and exclude from consideration issues already decided or not 
yet ripe at each level. OAs should also use programmatic approaches, 
where appropriate, including resource or regional specific programmatic 
agreements or consultations with resource or regulatory agencies. Where 
possible, OAs should develop programmatic approaches that cover the 
activities of multiple OAs.
    (g) Mitigation and monitoring. The ROD and FONSI must identify 
those mitigation measures that avoid, minimize, or compensate for 
effects caused by a proposed action or alternatives as described in an 
environmental document and that have a nexus to those effects that the 
lead agency is adopting and committing to implement, including any 
monitoring and enforcement program applicable to such mitigation 
commitments.
    (1) The OA must take steps to ensure that the mitigation measures 
committed to in the ROD and FONSI are implemented. For third-party 
actions, to the extent practicable, OAs must condition relevant funding 
agreements, permits, licenses, and other approvals on the performance 
of the mitigation commitments. Methods of enforcement of commitments 
may include withdrawal of funding, permit, license, or approval, and 
any other action deemed necessary by the appropriate OA.
    (2) Where legal authority exists, OAs may provide for monitoring to 
ensure their decisions are carried out and should do so in important 
cases. In determining when monitoring mitigation commitments is 
appropriate, OAs should apply professional judgment and the rule of 
reason. (40 CFR 1505.3).
    (h) Public involvement. Public involvement provides an opportunity 
for the public to consider, offer input on, and inform proposed 
actions, their potential environmental impacts, and proposed 
mitigation. The level of public

[[Page 74657]]

involvement should be commensurate with the type of action proposed and 
its potential to cause significant impacts, and be consistent with 40 
CFR 1501.5(e), 1501.9, 1503.1(a)(2)(v), and 1506.6.
    (1) Public involvement in environmental analyses is important at 
each appropriate stage of the development of a proposed action, and OAs 
should seek public involvement as early as possible. Consistent with 40 
CFR 1500.3(b), 1500.4(n), and 1503.3, OAs should ensure commenters are 
invited to submit specific comments as early in the process as 
possible, and provide notice that comments not submitted shall be 
forfeited as unexhausted. OAs should integrate public involvement in 
the NEPA process, as applicable, with other public involvement 
processes (e.g., 54 U.S.C. 306108 (Section 106 of the National Historic 
Preservation Act of 1966, as amended), State requirements) to the 
fullest extent practicable. Methods to solicit the views of the public 
include public workshops or meetings; hearings in traditional or non-
traditional formats and locations; social media; new technologies; 
advertisements or notices in print or electronic media; and other 
appropriate means tailored to reach the relevant audiences. (See 40 CFR 
1506.6). When OAs provide for public comment, they must include 
electronic submission of comments, with reasonable measures to ensure 
the comment process is accessible to affected persons. (See 40 CFR 
1503.1(c)).
    (2) To allow the public to efficiently and effectively access 
information about NEPA reviews, OAs must make NEPA documents, relevant 
notices and other relevant information for use by interested persons 
available online in a manner consistent with 40 CFR 1506.6(e) and 
1507.4. Appropriate domains for publication may include Department/OA 
operated websites or project-specific websites. When posted on a DOT 
website, NEPA documents must be compliant with the requirements of 29 
U.S.C. 794d (section 508 of the Rehabilitation Act of 1973, as 
amended).
    (i) Use of contractors. Decisionmaking under NEPA is an inherently 
governmental function. OAs may use contractors to assist in the 
preparation of NEPA documents, but must require contractors to comply 
with this part and OA procedures, and follow relevant guidance. OAs 
must furnish guidance, participate in the preparation of, and 
independently evaluate NEPA documents, taking responsibility for their 
accuracy, scope, and contents. (See 40 CFR 1506.5).
    (1) When an OA acts as the lead agency and uses a contractor, it 
may select the contractor for preparation of an EIS or EA, consistent 
40 CFR 1506.5. The OA may select the contractor in cooperation with 
cooperating agencies.
    (2) Prior to entering into a contract for the preparation of an EIS 
or EA, the OA must require the contractor or applicant to execute a 
disclosure statement specifying any financial or other interest if 
applicable, or stating it has no financial or other interests in the 
outcome of the proposed action. (40 CFR 1506.5).
    (j) Tracking. OAs must track and report environmental review 
milestones in compliance with DOT tracking procedures and other 
applicable requirements. Consistent with 23 U.S.C. 139(o) and all 
reporting standards issued by the Office of Policy, OAs must post 
information for all transportation infrastructure projects requiring an 
EA or EIS, including applicable NEPA and any permitting or 
authorization actions and associated milestones, to the publicly 
accessible Permitting Dashboard. OAs must post and update information 
as necessary within timeframes established by the reporting standards.


Sec.  13.15  Determination of the level of NEPA review.

    (a) To determine the appropriate level of NEPA review, OAs must 
establish the appropriate scope (using the criteria for scope in 40 CFR 
1501.9(e)) of the proposed action.
    (b) To ensure meaningful and objective evaluation of alternatives, 
where applicable, and avoid commitments to proposed actions before they 
are fully evaluated, OAs must ensure that the scope of the proposed 
action evaluated in an EA, EIS, or CE includes connected actions; has 
independent utility or independent significance (e.g., would be a 
usable and reasonable expenditure even if no additional transportation 
improvements in the area are made); does not unreasonably restrict 
consideration of alternatives for other reasonably foreseeable actions; 
and where applicable, connects logical termini.
    (c) In considering whether the effects of the proposed action are 
significant, agencies must analyze the potentially affected environment 
and degree of the effects of the action. Agencies should consider 
connected actions consistent with Sec.  1501.9(e)(1). In considering 
the degree of the effects, agencies should consider the following, as 
appropriate to the specific action, where the effects are reasonably 
foreseeable and have a reasonably close causal relationship to the 
proposed action:
    (1) Both short- and long-term effects.
    (2) Both beneficial and adverse effects.
    (3) Effects on public health and safety.
    (4) Effects that would violate Federal, State, Tribal, or local law 
protecting the environment. (See 40 CFR 1501.3(b)).
    (d) If there is an unresolved disagreement between the OA and an 
applicant regarding the appropriate level of NEPA review, the OA must 
notify the Office of Policy, to assist in making the determination.


Sec.  13.17   Categorical Exclusions.

    (a) Application of a Categorical Exclusion (CE). CEs are categories 
of actions that normally do not have a significant effect on the 
environment, and therefore normally do not require the preparation of 
an EA or EIS. (40 CFR 1501.4). Appendix A of this part lists 
Departmentwide CEs. An ``*'' is used to indicate the CEs that would not 
require documentation. OA Procedures may identify additional CEs, 
consistent with Sec.  13.7(d); Appendix B of this part identifies the 
location of CEs established in each of the Department's OA Procedures 
and incorporates those CEs by reference. Paragraph (b) of this section 
lists extraordinary circumstances (40 CFR 1501.4), that OAs must 
consider before determining that a CE listed in Appendix A of this part 
applies to a proposed action. If an OA seeks to apply a CE established 
in another OA's procedures (referenced in Appendix B of this part), it 
must evaluate the action for extraordinary circumstances identified in 
the OA Procedures in which the CE is established \5\ to determine if a 
normally excluded action may have a significant effect. If an 
extraordinary circumstance is present, an OA may nevertheless apply a 
CE listed in Appendix A of this part to an action if the OA determines 
that there are circumstances that lessen the impacts or other 
conditions sufficient to avoid significant effects. If the OA cannot 
apply the CE to the proposed action, it must prepare an EA or EIS, as 
appropriate.
---------------------------------------------------------------------------

    \5\ For the purposes of 23 CFR part 771, ``unusual 
circumstances'' is synonymous with ``extraordinary circumstances.''
---------------------------------------------------------------------------

    (b) Extraordinary circumstances. With respect to the CEs listed in 
Appendix A of this part, extraordinary circumstances include:
    (1) Inconsistency with any applicable Federal, State, Tribal, or 
local law, requirement, or administrative determination relating to the 
protection of the environment;

[[Page 74658]]

    (2) Substantial increases of noise in a noise-sensitive area;
    (3) Substantial adverse effects that are reasonably foreseeable on 
the following aspects of the environment:
    (i) Species listed or proposed to be listed on the List of 
Endangered or Threatened Species, or designated Critical Habitat for 
these species, as promulgated under 16 U.S.C. 1533(c)(1);
    (ii) Properties protected under 54 U.S.C. 306108 (Section 106 of 
the National Historic Preservation Act of 1966, as amended);
    (iii) Properties protected under 23 U.S.C. 138 or 49 U.S.C. 303 
(Section 4(f));
    (iv) A site that involves a unique characteristic of the geographic 
area, such as prime or unique agricultural land, a coastal zone, a 
historic or cultural resource, park land, wetland, wild and scenic 
river, designated wilderness or wilderness study area, sole source 
aquifer (potential sources of drinking water), or an ecologically 
critical area; or
    (v) Applicable Federal, State, or local air quality standards, 
including those under the Clean Air Act, as amended (42 U.S.C. 7401, et 
seq.);
    (4) Substantial short- or long-term increases in traffic congestion 
or traffic volumes on any mode of transportation that are reasonably 
foreseeable; or
    (5) Substantial impacts on the environment resulting from the 
reasonably foreseeable, reportable release of hazardous or toxic 
substances.
    (c) Multimodal projects. For multimodal projects, as defined by 23 
U.S.C. 139(a), an OA may use the process created under 49 U.S.C. 304 
for the application of another OA's CE for that project.


Sec.  13.19  Environmental Assessments.

    (a) When to prepare an environmental assessment. An OA must prepare 
an EA when a proposed action is not categorically excluded and a 
determination whether to prepare an EIS has not been made or it is 
required under OA Procedures; or a normally categorically excluded 
action may involve significant environmental impacts, but does not 
clearly require the preparation of an EIS. However, an OA need not 
prepare an EA if it determines that an EIS is necessary or preferable. 
(See 40 CFR 1501.5 and 1508.1(h)). Examples of typical classes of 
actions that normally require an EA but not necessarily an EIS are 
listed in OA Procedures.
    (b) Contents. An EA must include the purpose and need for the 
proposal; a description of the proposed action and alternative(s) as 
required by 42 U.S.C. 4332(2)(E) (section 102(2)(E) of NEPA), as well 
as the ``no action'' alternative; the environmental impacts of the 
proposed action and alternatives; and the agencies and persons 
consulted.
    (c) Page limits. EAs must be no more than 75 pages unless a senior 
agency official approves in writing an EA to exceed 75 pages and 
establishes a new page limit. OAs must obtain approval from an OA 
Administrator when the Administrator has been designated as a senior 
agency official for the OA or, for OST actions, the Assistant Secretary 
if an EA is anticipated to exceed the page limits. An EA should be as 
concise as possible while proportional to the magnitude of the proposed 
action and anticipated impacts.
    (d) Time limits: EAs should be completed within one year from the 
agency's' determination to prepare an EA. If during development of the 
EA, the OA concludes that there will be significant impacts, the OA 
should issue an NOI and the time limits for EISs would apply. OAs must 
obtain approval from an OA Administrator when the Administrator has 
been designated as a senior agency official for the OA or, for OST 
actions, the Assistant Secretary if an EA needs a longer time period 
than one year. This request must be in writing and provide a reasonable 
timeframe for the OA to complete the EA. 40 CFR 1501.10(a)(1).
    (e) Alternatives. The EA must include the alternatives the OA will 
consider in its decisionmaking, which may be limited to the proposed 
action and no action alternative to the extent consistent with 
applicable authority including NEPA Section 102(2)(E). The EA should 
address alternatives to a degree commensurate with the nature of the 
proposed action and OA experience with the environmental issues 
involved. The EA should indicate a preferred alternative, if the OA 
identified one. For alternatives considered and eliminated from further 
study, an EA should briefly explain why they were eliminated.
    (f) Compliance with other applicable environmental laws, 
regulations and orders. In accordance with Sec.  13.13(a), the EA 
should reflect compliance or plans for compliance with the requirements 
of other applicable environmental laws, regulations, and orders, such 
as those listed in Appendix C of this part.
    (g) Independent evaluation. If an applicant prepares an EA, the OA 
must independently evaluate the environmental issues and take 
responsibility for the accuracy, scope, and contents of the EA. (40 CFR 
1506.5(b)(2)).
    (h) Public comment. An OA must involve the public, State, Tribal 
and local governments, relevant agencies, and any applicants to the 
extent practicable in the development of the EA. (40 CFR 1501.5(e)). At 
its discretion, an OA may prepare a draft EA for public comment. When 
an OA prepares a draft EA for public comment, it must consider 
substantive comments received on a draft EA in the final EA or FONSI. 
An OA must make EAs available to the public. (See 40 CFR 1506.6(b)). In 
the circumstances defined in 40 CFR 1501.6(a)(2), a copy of the EA 
should be made available to the public for a period of not less than 30 
days before the FONSI is made and the action is implemented.


Sec.  13.21  Findings of No Significant Impact.

    (a) Contents. A FONSI must briefly explain why a proposed action 
analyzed in an EA will not have a significant impact on the environment 
and therefore does not require the preparation of an EIS. (40 CFR 
1501.6). A FONSI must include the EA or summarize it and incorporate 
the EA by reference, and must note any other related NEPA documents. 
(See 40 CFR 1501.6(b) and 1501.9(f)(3)). An OA must make the FONSI 
available to the public as specified in 40 CFR 1506.6(b) and consistent 
with 40 CFR 1507.4 and OA Procedures.
    (b) Mitigated FONSIs. In accordance with Sec.  13.13(g), an OA may 
rely on mitigation measures to reduce potentially significant adverse 
impacts below the level of significance that would trigger the 
preparation of an EIS. To use this approach, the OA must:
    (1) Describe in the FONSI the mitigation measures necessary to 
reduce the potential impacts to a level below significance;
    (2) Ensure that sufficient legal authority and an adequate 
commitment of resources exist to execute the mitigation measures, 
including funding as necessary;
    (3) Ensure that the articles of agreement, award or grant 
agreement, permit, license, authorization, or other document reflecting 
the OA's final decision on the action will require implementation of 
the mitigation measures;
    (4) Ensure that any monitoring strategies described in the FONSI 
will be adopted when the OA deems them appropriate for the particular 
action and set of mitigation measures. This may include making an 
applicant responsible for implementing the monitoring strategies. 
Environmental Management Systems may be used for

[[Page 74659]]

tracking and monitoring mitigation commitments; and
    (5) Provide for corrective action, where appropriate, in the event 
of a failure to implement the mitigation measures or a failure in the 
effectiveness of the mitigation measures.


Sec.  13.23  Environmental Impact Statements.

    (a) When to prepare an EIS. An OA must prepare an EIS for any 
proposed major Federal action significantly affecting the quality of 
the human environment (42 U.S.C. 4332(2)(C)). Examples of typical 
actions that normally require an EIS are listed in OA Procedures.
    (b) Notice of Intent. To initiate an EIS, the OA must publish a 
notice of intent (NOI) to prepare an EIS in the Federal Register (40 
CFR 1501.9(d) and 1508.1(u)).
    (c) Scoping. The OA must determine the scope of and the significant 
issues to be analyzed in depth in the EIS, and it must identify and 
eliminate from detailed study the issues that are not significant or 
covered by prior environmental review (40 CFR 1501.9(f)(1); see also 40 
CFR 1506.3 and 1508.1(cc)). To determine significance, the OA must 
evaluate the potentially affected environment and the degree of the 
effects of the proposed action. See Section 13.15(c).
    (d) EISs impacts on another State or a Federal land management 
entity. Pursuant to 42 U.S.C. 4332(2)(D) (NEPA Section 102(2)(D)), 
where a State agency or official with statewide jurisdiction initiates 
a proposed action that may have significant impacts on any other State 
or a Federal land management entity, the OA must provide early notice 
to and solicit the views of those State or Federal land management 
entities.
    (e) Format and content. The format of the EIS must be consistent 
with the format provided at 40 CFR 1502.10, unless the OA determines 
there is a more effective format for communication that encourages good 
analysis and clear presentation of alternatives, and include the 
following: A cover (40 CFR 1502.11); a summary (40 CFR 1502.12); a 
table of contents (40 CFR 1502.10(a)(3)); a list of preparers (40 CFR 
1502.18); and appendices (40 CFR 1502.19), if the OA prepares any. The 
EIS must include the following:
    (1) Purpose and need. The EIS must briefly describe the underlying 
purpose and need for the proposed action. (40 CFR 1502.13).
    (2) Alternatives. Consistent with 40 CFR 1502.14 and 1508.1(z), the 
OA must evaluate reasonable alternatives, including the proposed action 
and the no action alternative, and a reasonable range of alternatives 
that are technically and economically feasible, meet the purpose and 
need for the proposed action, and, where applicable, meet the goals of 
the applicant. The OA should present the environmental impacts of the 
proposal and alternatives in comparative form. The OA should limit 
consideration to a reasonable number and reasonable range of 
alternatives. The EIS must identify alternatives considered but 
eliminated from detailed analysis and briefly discuss the reasons for 
their exclusion. The Draft EIS (DEIS) should identify the OA's 
preferred alternative or alternatives, if one or more exists, unless in 
conflict with other laws. If the DEIS did not identify the preferred 
alternative, the OA should provide agencies and the public with an 
opportunity to assess the environmental consequences of the preferred 
alternative prior to issuing a combined FEIS/ROD, or the OA should 
provide for a waiting period consistent with paragraph (k)(1) of this 
section. The FEIS or combined FEIS/ROD must identify the preferred 
alternative or alternatives unless the requirements of another statute 
provide otherwise.
    (3) Affected environment. The EIS must succinctly describe the 
environment of the area(s) affected or created by the alternatives 
under consideration, including the reasonably foreseeable environmental 
trends and planned actions in the area(s). Data and analyses must be 
commensurate with the importance of the impact. (40 CFR 1502.15).
    (4) Environmental consequences. The EIS must discuss the 
environmental consequences of the proposal and the alternatives. The 
EIS must describe both beneficial and adverse environmental impacts of 
the proposed action and reasonable alternatives and the significance of 
those impacts. The EIS also must describe any adverse environmental 
impacts that cannot be avoided if the proposal is adopted, the 
relationship between short-term uses of the environment and long-term 
productivity, any irreversible or irretrievable commitments of 
resources that would occur, and other requirements of 40 CFR 
1502.16(a)(1) through (10).
    (5) Mitigation. The EIS must discuss appropriate measures for 
mitigating adverse environmental impacts of the proposed action or 
alternatives. (See 40 CFR 1502.14(e), 1502.16(a)(9), and 1508.1(s)).
    (6) Summary of submitted alternatives, information, and analyses. 
The EIS must include a summary that identifies all alternatives, 
information, and analyses submitted by State, Tribal, and local 
governments and other public commenters during the scoping process for 
consideration by the lead and cooperating agencies in developing the 
EIS. The OA should either append to the EIS or otherwise publish all 
comments that were received during the scoping process that identified 
alternatives, information, and analyses for the OA's consideration. The 
FEIS must include a summary that identifies all alternatives, 
information, and analyses submitted by State, Tribal, and local 
governments and other public commenters for consideration by the lead 
and cooperating agencies in developing the FEIS. (See 40 CFR 1502.17).
    (f) Page limits. The text of the EIS set forth in paragraphs (e)(1) 
through (5) of this section must be 150 pages or less, and 300 pages or 
less for proposed actions of unusual scope or complexity. OAs must 
obtain approval from the Assistant Secretary if an EIS is anticipated 
to exceed the page limits. (See 40 CFR 1502.7 and 1508.1(v)).
    (g) Time limits. EISs must be completed within two years from the 
date of publication of the NOI. OAs must obtain approval from the 
Assistant Secretary if an EIS will require a longer time period than 
two years from NOI to ROD. This request must be in writing and provide 
a reasonable timeframe for the OA to complete the EIS. (40 CFR 
1501.10(b)(2)).
    (h) Document cost. The OA must include the total cost (Federal and 
non-Federal) of the EIS on the cover page of the FEIS and Supplemental 
Environmental Impact Statement (SEIS), which includes the entire cost 
of the environmental review to the extent practicable. (See 40 CFR 
1502.11(g)).
    (i) Filing with the U.S. Environmental Protection Agency. OAs must 
file EISs with the U.S. Environmental Protection Agency (EPA) when they 
are transmitted to commenting agencies and made available to the 
public, or immediately thereafter. (40 CFR 1506.10). OAs must file EISs 
with EPA in accordance with EPA filing guidance.
    (j) Public notice and notice of availability. OAs should notify the 
public of the availability of EISs through methods such as online 
notices, social media, direct notification to interested parties, and 
notices in local media so as to inform those persons and agencies who 
may be interested or affected by the proposed action. (See 40 CFR 
1506.6(b)). OAs must consider the ability of affected persons and 
agencies to access electronic media in providing public notice of NEPA-
related opportunities for public involvement. OAs must notify those 
parties who have requested notice

[[Page 74660]]

on an individual action. In the case of an action with impacts of 
national concern, notice must include publication in the Federal 
Register (through EPA's notice of availability of EISs or a separate 
notice) and notice by email, mail, or other reasonable means to 
organizations, agencies, and those persons reasonably expected to be 
interested or affected by the proposed action. Although electronic 
distribution is preferred, the OA should make documents available in 
other formats when reasonably necessary and must make available hard 
copies of the EIS upon request. The OA must make the EIS available to 
the public without charge to the fullest extent practicable or at no 
more than the actual cost of reproduction. (See 40 CFR 1506.6(f)).
    (k) Timing. An OA may not make a decision on the proposed action 
until 90 days after publication of EPA's notice of availability of the 
DEIS. (40 CFR 1506.11(b)(1)).
    (1) Waiting period. When an OA determines, it is not practicable to 
issue a combined FEIS/ROD pursuant to Sec.  13.27(c), it may not make a 
decision on the proposed action until 30 days after the publication of 
EPA's notice of availability of the FEIS. (40 CFR 1506.11(b)(2)).
    (2) Reducing time periods. If an OA believes it is necessary to 
reduce the prescribed time periods for EIS processing, it must request 
the reduction from EPA, which may reduce the prescribed periods based 
upon a showing of compelling reasons of national policy (40 CFR 
1506.11(d)), and notify the Office of Policy of this request.
    (3) Extending time periods. OAs may grant requests for reasonable 
extensions of the comment period when warranted by the magnitude and 
complexity of the proposed action or extent of public interest. When 
granting an extension, the OA should notify EPA so it may modify its 
notice of availability.


Sec.  13.25   Draft Environmental Impact Statements.

    (a) Timing of preparation of the DEIS. Preparation of the DEIS 
should begin as close as possible to the time a proposal is developed 
so that the analysis of the environmental impacts and the exploration 
of alternatives can be meaningfully considered in the decision-making 
process. For rulemakings, the OA should release the DEIS prior to or 
concurrent with the issuance of the proposed rule. (See 40 CFR 1502.5).
    (b) Combined FEIS/ROD. Consistent with 49 U.S.C. 304a(b) or 23 
U.S.C. 139(n)(2), as applicable, and Sec.  13.27(c), the DEIS should 
include a statement of the OA's intent to issue a combined FEIS/ROD and 
identify a preferred alternative.
    (c) Circulation and request for comment. The OA must make the DEIS 
available with an invitation to comment to:
    (1) The public;
    (2) All cooperating agencies and other Federal agencies with 
jurisdiction by law or special expertise with respect to the 
environmental impacts involved;
    (3) State, Tribal, or local agencies with authority to develop and 
enforce environmental standards;
    (4) Any agency that has requested that it receive statements on 
actions of the kind proposed;
    (5) Interested or affected persons, agencies, and organizations;
    (6) EPA;
    (7) Federally Recognized Indian Tribes, Alaska Natives, and Native 
Hawaiians, as appropriate;
    (8) The applicant, if any; and
    (9) Other OAs, where appropriate. (See 40 CFR 1502.20, 1503.1, and 
1506.6).
    (d) Electronic submission. OAs must provide for electronic 
submission of public comments as well as ensure that the comment 
process is accessible to persons who may be affected by the proposed 
action(s). (See 40 CFR 1503.1(c)).


Sec.  13.27   Final Environmental Impact Statements.

    (a) Response to comments. In the FEIS, the OA should make every 
practicable effort to resolve major, relevant issues identified in 
comments on the DEIS, the public involvement process, and consultation 
with cooperating agencies. The FEIS should identify any unresolved 
major issues, and the consultation and efforts made to resolve those 
issues. In response to substantive comments on the DEIS, the OA should 
do one or more of the following and state the response in the FEIS: 
Modify alternatives including the proposed action; develop and evaluate 
alternatives not previously given serious consideration by the OA; 
supplement, improve, or modify its analyses; make factual corrections; 
or explain why the comments do not warrant further response, citing the 
sources, authorities, or reasons that support the OA's position, and if 
appropriate, indicate those circumstances that would trigger the OA's 
reappraisal or further response. The OA should attach to the FEIS 
substantive comments received on the DEIS, or summaries of comments 
where comments are particularly voluminous. (40 CFR 1503.4).
    (b) Errata sheets. In preparing an FEIS, if the OA makes minor 
changes to the DEIS in response to comments, and the changes are 
confined to factual corrections or explanations of why the comments do 
not warrant further response, the OA may write the changes on errata 
sheets attached to the DEIS instead of rewriting the DEIS. (See 49 
U.S.C. 304a(a) or 23 U.S.C. 139(n)(1), as applicable, and 40 CFR 
1503.4(c)). The errata sheets must cite the sources, authorities, and 
reasons that support the OA's position and, if appropriate, indicate 
the circumstances that would trigger the OA's reappraisal or further 
response.
    (c) Combined FEIS/ROD. Pursuant to 49 U.S.C. 304a(b) or 23 U.S.C. 
139(n)(2), as applicable, to the maximum extent practicable, an OA must 
expeditiously develop a single document that consists of an FEIS and 
ROD, 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. Cooperating agencies must to the extent practicable 
issue the FEIS/ROD jointly with the lead agency for transportation 
actions. (See 40 CFR 1501.8(b)(8)).
    (d) Compliance with other requirements. To the fullest extent 
possible, in accordance with 40 CFR 1502.24 and Sec.  13.13(a), the 
FEIS should reflect compliance or plans for compliance with the 
requirements of other applicable environmental laws, regulations, and 
orders, such as those listed in Appendix C of this part. If such 
compliance is not possible by the time of FEIS preparation, the FEIS 
should reflect consultation with the appropriate agencies and provide 
reasonable assurance that the OA can meet the requirements.
    (e) Internal review and approval. The Administrator or Secretarial 
Officer (or their designee) of the lead agency may approve an FEIS. OAs 
must ensure that EISs are evaluated for technical sufficiency 
consistent with this part and OA Procedures. The Chief Counsel of the 
OA, or designee, must review all FEISs for legal sufficiency. OGC's 
Office of Operations must review FEISs prepared by Secretarial offices 
for legal sufficiency.
    (f) Office of Policy notification. For FEISs on actions involving 
novel or emerging technology, methodology, or science; actions opposed 
on environmental grounds by a Federal, State, Tribe, or local 
government or agency; or, actions opposed by a

[[Page 74661]]

substantial number of the persons affected by such action or actions, 
the OA must notify the Office of Policy that the FEIS is under 
development. OAs should notify the Office of Policy as early as 
possible, and, where practicable, provide at least two weeks' notice 
before approving the FEIS.
    (g) Circulation. After the FEIS is finalized, the OA must publish 
the FEIS (or combined FEIS/ROD). The OA must furnish the entire FEIS to 
any Federal agency with jurisdiction by law or special expertise with 
respect to any environmental impact involved and any appropriate 
Federal, State, Tribal, or local agency authorized to develop and 
enforce environmental standards; the applicant; and any Federal, State, 
Tribal, and local agencies, and private organizations and individuals 
that commented substantively on the DEIS or requested copies of the 
FEIS, as well as the entities to which the OA was required to 
distribute the DEIS. (See 40 CFR 1502.20, 1503.1, and 1506.6).


Sec.  13.29   Records of Decision.

    (a) In accordance with Sec.  13.27(c), to the maximum extent 
practicable, an OA must develop a single document consisting of a 
combined FEIS and ROD or issue the FEIS and ROD simultaneously, 
pursuant to 49 U.S.C. 304a(b) or 23 U.S.C. 139(n)(2), as applicable. 
When an OA determines, it is not practicable to issue a combined FEIS 
and ROD, the waiting period set forth in Sec.  13.23(j)(1) applies. In 
such cases, and when the proposal requires action by multiple Federal 
agencies, the OA should issue a single ROD with the other Federal 
agencies. An OA may integrate the ROD into any other record or decision 
document, such as a final rule.
    (b) The ROD must state the OA's decision, identify all alternatives 
the OA considered in reaching its decision, specifying the 
environmentally preferable alternative(s); identify and discuss all 
factors, including essential considerations of national policy, that 
the OA balanced in making its decision and state how those 
considerations entered into its decision; state whether the OA has 
adopted all practicable means to avoid or minimize environmental harm 
from the selected alternative and, as necessary, explain why not; and 
adopt and summarize any monitoring and enforcement program where 
applicable for any mitigation. (See 40 CFR 1505.2(a)).
    (c) The ROD must provide a certification by the decisionmaker that 
the agency has considered all the alternatives, information, analysis, 
and objections submitted by State, tribal and local governments and 
public commenters for consideration by the lead and cooperating 
agencies in developing the EIS. This certification establishes a 
presumption that the agency has considered the submitted alternatives, 
information, and analyses including the summary in the FEIS. (See 40 
CFR 1505.2(b)).
    (d) The ROD should not repeat analysis contained in the EIS but 
rather incorporate it by reference in the OA's decision; and briefly 
document compliance with all environmental laws applicable to the 
action, or the procedures and expected timeframe for completion of such 
compliance. Consistent with 40 CFR 1505.3, the ROD should also include, 
as appropriate, any required mitigation commitments and describe the 
monitoring measures being implemented.
    (e) The ROD may discuss preferences among alternatives based on 
relevant economic, technical, or other factors, as well as OA mission 
and authority.


Sec.  13.31   Adoption.

    (a) If an OA is a cooperating agency for an EIS, it may adopt 
without publishing the lead agency's original EIS after conducting an 
independent review of the statement and concluding that its comments 
and suggestions have been satisfied. (See 40 CFR 1506.3(b)(2)). In the 
case of an FEIS, the OA may issue a ROD simultaneous with the adoption.
    (b) If an OA is not a cooperating agency, but the action covered by 
the original EIS and the proposed action are substantially the same, 
the OA is not required to publish it except as an FEIS. (See 40 CFR 
1506.3(b)(1)). To the maximum extent practicable, the OA must issue a 
combined FEIS and ROD consistent with 49 U.S.C. 304a(b) or 23 U.S.C. 
139(n), as applicable, and Sec.  13.27(c).
    (c) If an OA is not a cooperating agency and the OA's proposed 
action and the action covered by the original EIS are not substantially 
the same, the OA may adopt the EIS or a portion thereof as a draft and, 
after making all necessary revisions to the document, publish it. (40 
CFR 1506.3(b)). If the OA intends to issue a combined FEIS/ROD, the 
recirculation should include a statement of the OA's intent to issue a 
combined document.
    (d) An OA may adopt, in whole or in part, another Federal agency's 
draft or final EA if the OA determines, based on an independent 
evaluation, that the document meets the applicable standards for an EA 
in 40 CFR parts 1500 through 1508, this part, and its OA Procedures. 
The OA must notify the public consistent with 40 CFR 1506.6.
    (e) An OA may adopt a CE determination of another agency when the 
action in the original CE determination and the proposed action are 
substantially the same. When doing so, the OA must document the 
adoption. (See 40 CFR 1506.3(d)).
    (f) Before adopting all or a portion of another Federal agency's 
EIS or EA that is more than five years old, an OA must re-evaluate the 
relevant portion of the other agency's EA or EIS in accordance with 
Sec.  13.33.
    (g) When an OA adopts and publishes an EIS, it must file it with 
EPA in accordance with EPA filing guidance. (40 CFR 1506.10). When an 
OA adopts an EIS without republishing, it must notify EPA.
    (h) An OA may adopt a DEIS, EA, or FEIS of another OA in accordance 
with 49 U.S.C. 304a(c)(2).


Sec.  13.33   Re-evaluation and supplementation.

    (a) Re-evaluation. Consistent with 40 CFR 1502.9(d)(4), when an 
action is not complete and a decision remains to occur, a re-evaluation 
is a process that OAs should use to evaluate an existing CE 
determination, EA, or EIS to determine whether it remains adequate, 
accurate, and valid, or whether a supplemental NEPA analysis is needed.
    (1) An OA should engage in a re-evaluation, consistent with its OA 
Procedures, where applicable, when, prior to the OA's completion of an 
action, there are changes in the proposed action that are relevant to 
environmental concerns; or there are new circumstances or information 
relevant to environmental concerns and bearing on the proposed action 
or its impacts.
    (2) An OA must re-evaluate in writing a DEIS if the OA has not 
issued an FEIS within five years from the circulation date of the DEIS. 
An OA must re-evaluate in writing an FEIS if major steps toward 
implementation have not commenced within five years from the date of 
approval of the FEIS or FEIS supplement.
    (b) Supplemental EAs and EISs. OAs must prepare a supplemental EA 
or EIS when, prior to the OA's completion of an action, there are 
substantial changes in the proposed action that are relevant to 
environmental concerns, or there are significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts. (40 CFR 1502.9(d)(1)). In addition, an 
OA may voluntarily prepare a supplemental EA or EIS when the OA 
determines,

[[Page 74662]]

consistent with its OA Procedures and 40 CFR 1502.9(d)(2), that the 
purpose of NEPA will be furthered by doing so. An OA must prepare, 
publish, and file a supplemental EA or EIS as an EA or DEIS and FEIS 
unless CEQ approves alternative procedures. (40 CFR 1502.9(d)(3)). 
Where there are compelling reasons to follow alternative procedures, 
the OA must consult CEQ for approval and notify the Office of Policy.


Sec.  13.35   Emergency actions.

    (a) Emergency circumstances. Emergency circumstances may require 
immediate actions that prevent following standard NEPA procedures. For 
example, immediate threats to human health or safety, or immediate 
threats to valuable natural resources may make it necessary to take an 
action with significant environmental impact without following standard 
NEPA procedures. OAs (which should consult with CEQ) must limit such 
alternative arrangements to the actions necessary to control the 
immediate impacts of the emergency. When time permits, OAs should 
prepare environmental documentation. Alternative arrangements for NEPA 
compliance are permitted for emergency actions. (See 40 CFR 1506.12 and 
Fixing America's Surface Transportation Act, Pub. L. 114-94, sec. 
1432).
    (b) Significant impacts. When emergency circumstances make it 
necessary to take an action with significant or potentially significant 
environmental impacts, without observing provisions of this part, OA 
Procedures, or 40 CFR parts 1500 through 1508, the OA should consult 
with CEQ. (See 40 CFR 1506.12). OAs should notify the Office of Policy 
of the consultation and where time allows, provide an opportunity for 
the Office of Policy to review any alternative arrangements. The 
alternative arrangements should be limited to actions necessary to 
control the immediate impacts of the emergency.
    (c) Non-significant impacts. When the expected environmental 
impacts of the proposed action are not considered significant and the 
action cannot be categorically excluded, to the extent practicable, the 
OA should prepare a focused EA that complies with this part, OA 
Procedures, and 40 CFR parts 1500 through 1508.


Sec.  13.37   Environmental Impact Statements for legislative 
proposals.

    (a) Preparation. An OA must prepare and publish a legislative EIS 
(LEIS) for any legislative proposal for which DOT has primary 
responsibility and involves significant environmental impacts. 
Procedures for preparing an LEIS are found at 40 CFR 1506.8. The OA 
originating the legislation must prepare the LEIS. Except as provided 
by 40 CFR 1506.8(c)(2), an OA does not need to prepare both a draft and 
final LEIS.
    (b) Processing. The Office of Policy and OGC must concur on the 
LEIS. OGC's Office of Legislation will submit the LEIS to the Office of 
Management and Budget for circulation in the normal legislative 
clearance process. The LEIS is part of the formal transmittal of a 
legislative proposal to Congress. However, the LEIS may be transmitted 
up to 30 days after the formal transmittal (40 CFR 1506.8(b)).


Sec.  13.39  International actions.

    (a) Executive Order 12114, ``Environmental Effects Abroad of Major 
Federal Actions'' (Jan. 4, 1979), applies to major Federal actions 
having significant environmental impacts outside of the United States 
and its territories and possessions. If an EIS is required under E.O. 
12114, section 2-4(a)(i), the OA must prepare it in compliance with 
this part and the OA Procedures.
    (b) If an OA anticipates communication with a foreign government 
concerning agreements and other arrangements related to environmental 
studies or documentation, the OA must coordinate such communication 
with the U.S. Department of State, in consultation with the Office of 
Policy and the Office of the Assistant Secretary for Aviation and 
International Affairs (See E.O. 12144, sec. 3-2).

Appendix A to Part 13--List of Departmental Categorical Exclusions

    1. Routine procedural, administrative, financial, and management 
actions necessary to support the normal conduct of DOT business. 
Routine procurements and contract actions for goods and services 
including general supplies, equipment, utility services, contractor 
services, and personnel services.*
    2. Personnel actions including recruiting, hiring, promotions, 
processing, paying, and recordkeeping.*
    3. Training, technical assistance, and educational and 
informational programs and activities.*
    4. Operating or maintenance subsidies or agreements, such as 
operating subsidies to transit agencies or air carriers under the 
Essential Air Service program, when the subsidy or agreement will 
not result in a change in the effect on the environment.
    5. Actions categorically excluded in OA Procedures \6\ 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 must provide expertise in reviewing the 
action being categorically excluded. The extraordinary circumstances 
provided in the OA Procedures where the CE is listed should be 
considered in lieu of the extraordinary circumstances provided in 
Sec.  13.17(b). This CE is not applicable to actions that meet the 
definition of multimodal project in 23 U.S.C. 139(a); instead, an OA 
may follow the process in Sec.  13.17(c).
---------------------------------------------------------------------------

    \6\ See Appendix B to part 13.
---------------------------------------------------------------------------

    6. Leasing of space in existing buildings or facilities.
    7. Remodeling existing buildings or facilities including 
maintenance, reconstruction, rehabilitation, retrofit, or upgrades 
of existing buildings, facilities, or systems, such as electrical 
and plumbing systems, replacement of siding, roof rehabilitation, 
resurfacing, or reconstruction of paved areas.
    8. Gardening, landscaping, and maintenance of existing 
landscaping that does not cause or promote the introduction or 
spread of invasive species that would harm the native ecosystem.
    9. Investigations, research activities, and studies including 
data collection and analysis, information gathering, document 
preparation, and information dissemination.*
    10. Promulgation, modification, or revocation of rules, issuance 
of rulings or interpretations, and the development and publication 
of policies, orders, directives, notices, procedures, manuals, 
advisory circulars, and other guidance documents that are 
administrative, organizational, or procedural in nature, or are 
corrective, technical, or minor.*
    11. 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 in any mode of 
transportation.
    12. Hearings, meetings, and public outreach activities.*
    13. Administrative actions and proceedings, such as rendering 
decisions on petitions for rulemaking and petitions for 
reconsideration.*
    14. Financial assistance to an applicant solely for the purpose 
of refinancing outstanding debt, where the debt funds an action that 
is already completed.*
    15. Agreements with foreign governments, foreign civil aviation 
authorities, international organizations, or U.S. Government 
departments or agencies calling for cooperative activities or the 
provision of technical assistance, advice, equipment, funds, or 
services to those parties, and the implementation of such 
agreements; negotiations and agreements to establish and define 
bilateral safety relationships with foreign governments and the 
implementation of such agreements.*
    16. The following actions relating to economic regulation of 
airlines:
    a. Actions approving an agreement between an air carrier and a 
foreign air carrier; acquisition of control, merger, consolidation, 
or interlocking relationship;*

[[Page 74663]]

    b. Finding a U.S. or foreign air carrier fit under 49 U.S.C. 
chapters 411 or 413;*
    c. Approving or setting carrier fares or rates;*
    d. Making a determination on the reasonableness of a fee imposed 
by an airport proprietor on a U.S. or foreign air carrier;*
    e. Route awards involving turboprop aircraft having a capacity 
of 60 seats or less and a maximum payload capacity of 18,000 pounds 
or less;
    f. Route awards that do not involve supersonic service and will 
not result in an increase in commercial aircraft operations of one 
or more percent;
    g. Determinations on termination of airline employees;*
    h. Actions relating to consumer protection, including 
regulations;*
    i. Authorizing carriers to serve airports already receiving the 
type of service authorized, which does not result in significant air 
quality, noise or other adverse environmental consequences;
    j. Granting temporary or emergency authority;
    k. Registration of an air taxi operator pursuant to 14 CFR part 
298; and
    l. Granting of charter authority to a U.S. or foreign air 
carrier under 49 U.S.C. chapters 411 or 413.

``*'' indicates an undocumented CE

Appendix B to Part 13--List of Categorical Exclusions in Operating 
Administration Procedures

    This list identifies the location of categorical exclusions 
(CEs) currently established in each of the Department's OA 
Procedures. These CEs are incorporated by reference and may require 
additional approval by the relevant OA. These CEs are subject to 
review for the extraordinary circumstances contained in the relevant 
OA procedures. The Department will update the citations contained in 
this list as necessary.
    (a) CEs for the Federal Aviation Administration (FAA) are 
located in FAA Order 1050.1F, Paragraph 5-6 (80 FR 44208, July 24, 
2015).
    (b) CEs for the Federal Highway Administration (FHWA) are 
located at 23 CFR 771.117.
    (c) CEs for the Federal Motor Carrier Safety Administration 
(FMCSA) are located at FMCSA Order 5610.1, Appendix 2 (69 FR 9680, 
March 1, 2004).
    (d) CEs for the Federal Railroad Administration (FRA) are 
located in 23 CFR 771.116(c).
    (e) CEs for the Federal Transit Administration (FTA) are located 
in 23 CFR 771.118.
    (f) CEs for the Maritime Administration (MARAD) are located at 
Maritime Administration Order No. 600-1, Appendix 1 (50 FR 11606, 
March 22, 1985).
    (g) CEs for the Saint Lawrence Seaway Development Corporation 
(SLSDC) are located at SLSDC Order 10-5610.1C, Paragraph 6b (46 FR 
28795, May 28, 1981).

Appendix C to Part 13--Environmental Requirements for Integration With 
the NEPA Process

    As noted in Sec.  13.13(a), Operating Administrations should 
coordinate and integrate all relevant environmental reviews, 
authorizations, and consultations into the NEPA process. The 
following is a non-exhaustive list of authorities under which these 
may be conducted (subject to further amendment, repeal, rescission, 
revocation, or other change):
    1. Section 4(f), 23 U.S.C. 138 and 49 U.S.C. 303.
    2. Section 176 of the Clean Air Act, as amended, 42 U.S.C. 7506, 
and its implementing regulations: 40 CFR part 51, subpart T and part 
93, subpart A (Transportation Conformity) or 40 CFR part 51, subpart 
W and part 93, subpart B (General Conformity).
    3. Section 106 of the National Historic Preservation Act of 
1966, as amended, 54 U.S.C. 306108 (Section 106).
    4. Section 7 of the Endangered Species Act, as amended, 16 
U.S.C. 1536.
    5. Section 404 of the Federal Water Pollution Control Act (Clean 
Water Act), as amended, 33 U.S.C. 1344.
    6. Migratory Bird Treaty Act, as amended, 16 U.S.C. 703-712.
    7. Bald and Golden Eagle Protection Act, as amended, 16 U.S.C. 
668-668d.
    8. Section 307 of the Coastal Zone Management Act of 1972, as 
amended, 16 U.S.C. 1456.
    9. Section 2 of the Fish and Wildlife Coordination Act, as 
amended, 16 U.S.C. 662.
    10. Section 305 of the Magnuson-Stevens Fishery Conservation and 
Management Act, as amended, 16 U.S.C. 1855.
    11. Fish and Wildlife Conservation Act, as amended, 16 U.S.C. 
2901-2912.
    12. Section 9 of the Rivers and Harbors Act of 1899, as amended, 
33 U.S.C. 401.
    13. The General Bridge Act of 1946, 33 U.S.C. 525(a)-(b), 528, 
530, and 533.
    14. Executive Order 11988, Floodplain Management (May 24, 1977) 
as implemented by the Department through DOT Order 5650.2.
    15. Executive Order 11990, Protection of Wetlands (May 24, 1977) 
as implemented by the Department through DOT Order 5660.1A.
    16. Executive Order 12114, Environmental Effects Abroad of Major 
Federal Actions (Jan. 4, 1979).
    17. Executive Order 12372, Intergovernmental Review of Federal 
Programs (July 14, 1982).
    18. Executive Order 12898, Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (Feb. 11, 1994), as implemented by the Department 
through DOT Order 5610.2(a).
    19. Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments (Nov. 6, 2000).

[FR Doc. 2020-25030 Filed 11-20-20; 8:45 am]
BILLING CODE 4910-9X-P