23 CFR 771 - Preamble to the Regulation
FR 32646 (August 28, 1987) RULES and REGULATIONS
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 635,
640, 650, 712, 771, and 790, and 49 CFR Part 622
[FHWA Docket Nos. 85-12 and 83-20]
and Related Procedures
Highway Administration (FHWA) and Urban Mass Transportation Administration
(UMTA), Department of Transportation (DOT).
ACTION: Final rule.
SUMMARY: The FHWA
and the UMTA are issuing a joint final regulation governing the preparation
of environmental impact statements (EISs) and related documents under
grant programs administered by FHWA and UMTA. The amendments contained
in this final rule will streamline the project-development process and
provide increased decisionmaking authority to agency field offices. The
amendments are consistent with the directives of the National Environmental
Policy Act (NEPA), the Council on Environmental Quality (CEQ) regulations,
and other Federal statutes and incorporate the requirements of DOT Order
5610.1C, "Procedures for Considering Environmental Impacts." The documents
and actions to which this regulation applies are described more fully
in 771.109 of the regulation. By this final rule, the FHWA is also eliminating
duplication in its public involvement regulations by rescinding 23 Code
of Federal Regulations (CFR) Part 790 and amending a section of 23 CFR
Part 771 to make it the agency's single public involvement regulation.
This action will contribute to the establishment of a streamlined, one-stop
environmental process in which public involvement is fully integrated
with the other project development and environmental procedures.
EFFECTIVE DATES: The
amendments to 23 CFR Parts 640, 712 (see the amendatory instruction number
4), and 771 are effective on November 27, 1987. The amendment to Subpart
A of Part 622 of 49 CFR is effective on November 27, 1987. The amendments
to 23 CFR Parts 635, 650, 712 (see the amendatory instruction number 8),
and 790 are effective August 29, 1988, in order to allow States which
conduct public hearings under Part 790 to adopt public involvement/public
hearing procedures that satisfy the requirements of Part 771.
of comments received, together with the regulatory evaluation required
by DOT policies and procedures, are available for public inspection in
the public docket room of FHWA, Room 4205, HCC-10, 400 Seventh Street
SW., Washington, DC 20590, between the hours of 8:30 a.m. and 3:30 p.m.
EST, Monday through Friday. These materials are filed under FHWA Docket
Nos. 83-20 and 85- 12.
FOR FURTHER INFORMATION
CONTACT:(1) For FHWA: Mr. Frederick Skaer, Office of Environmental Policy
(HEV-10), (202) 366-0106, or Mr. Edward Kussy, Office of the Chief Counsel
(HCC-40), (202) 366-0791, FHWA, 400 Seventh Street SW., Washington, DC
20590, between the hours of 7:45 a.m. and 4:15 p.m., EST, Monday through
Friday; (2) For UMTA: Mr. A. Joseph Ossi, Office of Planning Assistance
(UGM-22), (202) 366-0096, or Mr. Scott A. Biehl, Office of the Chief Counsel
(UCC-5), (202) 366-4063, UMTA, 400 Seventh Street SW., Washington, DC
20590, between the hours of 8:30 a.m. and 5:00 p.m., EST, Monday through
The regulation being issued today applies to both FHWA and UMTA actions.
Thus, it will amend Part 771 of Title 23 of the CFR with a cross reference
at Part 622 of Title 49 of the CFR.
This final rule amends
the regulations utilized by FHWA and UMTA to comply with the CEQ's regulations
and other environmental requirements. The FHWA and the UMTA first published
regulations implementing CEQ requirements in 1980. (See 45 FR 71968; October
30, 1980.) On August 1, 1983, FHWA and UMTA published changes to their
joint environmental regulation (48 FR 34894) as a part of the departmental
effort to streamline regulations and reduce red tape. In response to that
Notice of Proposed Rulemaking (NPRM), Docket 83-20, 51 comments were received
from various Federal, State, and local agencies. Twenty-six of these comments
were from State highway agencies (SHAs) or State DOTs. Eleven comments
were received from transit or planning agencies. Seven comments were received
from interested cities or counties. Two comments were received from State
Historic Preservation Officers (SHPOs). The National Trust for Historic
Preservation provided comments as did the following Federal agencies:
The Environmental Protection Agency, the Department of the Interior, the
Advisory Council on Historic Preservation, and the U.S. Coast Guard. On
January 31, 1985, the FHWA published another NPRM to rescind 23 CFR 790
and to amend 23 CFR 771.111(h). (See 50 FR 4526, Docket No. 85-12). This
final notice combines both rulemakings. Comments on Docket No. 85-12 are
discussed below as the last item under the heading "Section-by-Section
The majority of comments
received in Docket No. 83-20 were generally supportive of the streamlining
proposals made in the NPRM. This is especially true of the greater flexibility
built into the categorical exclusion (CE) process. Many of the comments
requested more flexibility, but, as will be discussed below, we were unable
to make major changes given current statutory constraints. Another major
source of comments was a proposal in the NPRM to require written reevaluations
before each major project step. Substantial changes to that proposal have
been made here. These are addressed in greater detail below.
It should be noted
that most sections of the regulation have been renumbered from the NPRM,
although the section headings have been retained. Section 771.127 of the
NPRM has been subdivided into two sections (771.129, Reevaluations, and
771.130, Supplemental Environmental Impact Statements).
As with the 1980 regulation,
this regulation has been approved by the Office of the Secretary of Transportation
as being consistent with DOT Order 5610.1C. Applicants and Administration
field offices should not normally need to consult DOT Order 5610.1C.
There were a number
of editorial changes made throughout the document to make it more readable.
Only the major changes made to each section of the regulation are discussed
in this preamble.
Purpose. This section has been amended to include a reference to 23
U.S.C. 128. Section 128 contains the FHWA public hearing requirements
and describes the environmental report needed as a part of the public
Policy. This section sets forth basic Administration policy regarding
the consideration of environmental impacts of Administration actions.
Sections 109 and 128 of Title 23 and sections 3, 5, and 14 of the Urban
Mass Transportation Act (UMT Act), 49 U.S.C. 1602, 1604, and 1610 require
both FHWA and UMTA to consider social, economic, and environmental impacts
of proposed projects. The documentation developed pursuant to this regulation
is intended to satisfy both NEPA and the above sections.
It is the policy of
FHWA and UMTA to make the process set forth in the regulation the primary
vehicle for all environmental approvals of Administration actions by all
Federal agencies. This can only be accomplished if both applicants and
Federal agencies are committed to the development of procedures and cooperative
arrangements which take advantage of the opportunities presented here
to create as complete an environmental record as possible.
on the funding of efforts to mitigate the impacts of Administration actions
remains the same. The intent is that Federal funds be available to assist
in complying with Federal requirements, as well as State and local requirements
which do not conflict with Federal requirements. However, in those situations
where State or local requirements differ from Federal requirements, the
decision to use Federal funds will be made on a case- by-case basic, after
considering the reasonableness of the applicant's request and the costs
and benefits of Federal participation in the request.
questioned the "status" of FHWA's Technical Advisory T6640.8 and requested
clarification. The Technical Advisory was developed by FHWA for the purpose
of providing the best available guidance to its field offices and applicants
regarding the types of information needed to comply with NEPA, section
4(f) of the DOT Act of 1966, and other environmental requirements, such
as Executive Order 11990, "Protection of Wetlands." The Technical Advisory
is available for inspection and copying as prescribed in 49 CFR Part 7,
Appendix D. The FHWA expects the Technical Advisory to be used to the
fullest extent possible. However, FHWA also recognizes that each project
must be evaluated on its individual issues and merits. When circumstances
dictate, there is sufficient flexibility to tailor the content of the
environmental document to the needs of the individual situation. A revised
Technical Advisory has been prepared and will be issued as T6640.8A on
October 30, 1987.
The UMTA also has
developed supplementary guidance on the NEPA process for applicants. UMTA
Circular C5620.1, "Guidelines for the Environmental Protection Process",
provides information on the assessment of environmental impacts for major
transit projects, and the preparation and processing of environmental
documents. This circular is available from UMTA Headquarters and field
Definitions. In the 1980 regulation, the term "action" was defined
as the Federal approval of construction of highway and transit projects.
The CEQ regulations use the term "proposed action" in a broader context.
There, actions include projects and programs that are proposed for Federal
assistance as well as proposed plans, policies, and legislation. For consistency
with the CEQ regulations, a new definition for "action" has been added.
As used throughout the regulation, actions are highway or transit projects
proposed for Federal funding or activities such as joint and multiple
use permits which require Federal approvals. The actual Federal approval
of the construction of a highway or transit project or of a permit is
now covered in the new definition of "Administration action." The difference
between an "action" and an "Administration action" as defined under the
regulation is the difference between a proposed project and an actual
Federal commitment to fund construction of the project.
The DOT Act of 1966
included specific provisions providing special protection to publicly
owned parks, recreational areas, wildlife and waterfowl refuges, and all
historic sites. This provision was set forth at section 4(f) of the DOT
Act, and printed in the United States Code (U.S.C.) at 49 U.S.C. 1653(f).
A similar provision is found at 23 U.S.C. 138. In 1983, as part of a general
codification of the DOT Act, 49 U.S.C., 1653(f), was formally repealed
and recodified with slightly different language in 49 U.S.C. 303. However,
the substantive requirements remain unchanged. Given that over the years,
the whole body of provisions, policies, case law, etc., has been collectively
referenced as "section 4(f)" matters, we have continued this reference
in this regulation, even though section 4(f) of the 1966 DOT Act has been
technically amended. To change the popular reference to "section 4(f)"
would confuse needlessly the public and the Federal, State, and local
agencies that participate in "section 4(f)" matters on a recurring basis.
The only other changes
to this section were minor editorial changes to make it more readable.
Applicability and responsibilities. This section deals with the documents
and actions to which this regulation applies, the status of prior approvals,
and the responsibilities of both the Administration and grant applicants
for the preparation of the documents required by this regulation.
Paragraph (b) deals
with the responsibility for carrying out mitigation measures that have
been described in the Administration's environmental documents. One commenter
suggested that language be added to the regulation to specify that the
Administration monitor projects during and after construction to ensure
that mitigation measures that have been described in the Administration's
environmental documents are implemented. The Administration meets its
responsibility set forth in paragraph 1505.2(c) of the CEQ regulations
(40 CFR Parts 1500-1508), and the regulation has been modified to make
this clear. Paragraph (b) now states that mitigation measures will be
incorporated by reference in the grant document and UMTA will follow up
with reviews of designs and on-site inspections to ensure that mitigation
measures are implemented as called for in environmental documents and
grant agreements. It should be noted that the mitigation measures referenced
in an executed grant agreement become contractual obligations on the part
of the applicant and cannot be changed without the express written approval
of UMTA. FHWA assures that mitigation measures are implemented by reviewing
and approving the plans and specifications for the project and by conducting
periodic construction inspections. On projects processed under an approved
certification in accordance with 23 CFR 640, FHWA ensures the implementation
of mitigation measures by conducting program management reviews and a
final construction inspection.
In paragraph (c),
different levels of responsibility for applicants preparing EISs are defined
depending on whether section 102(2)(D) of NEPA or a State law comparable
to NEPA applies. Several local transit agencies asked what role they would
assume if a State requirement comparable to NEPA applies. In such cases,
the transit agencies will have a joint lead responsibility with UMTA and
will take a substantial role in preparing the environmental document.
It is intended that a single document satisfy all Federal and State requirements.
Early coordination, public involvement and project development. The
FHWA and the UMTA regard early coordination and public involvement as
critical to the successful completion of the processes required by this
regulation. Scoping, a major innovation of the CEQ regulations, is accomplished
in this phase. Many potential difficulties confronting particular actions
can be most conveniently identified and, in many instances, resolved at
as discussed in this regulation, may mean not only public hearings, but
a series of less formal informational meetings which begin after the planning
phase and help affected persons and local governments learn about agency
actions and identify potential difficulties at the earliest possible time.
Very often, the persons most affected are those who must be relocated
from their homes or businesses by the agency action. Appropriate relocation
planning and studies should be done as part of initial project planning,
usually during the course of preparing documents required by this regulation,
to ensure that the rights and concerns of potentially affected residents
and businesses are fully addressed and considered in the development and
timing of agency actions. Very often, project location, design, and right-of-way
problems are particularly sensitive where certain ethnic, social, or economic
groups are affected to unusual or disproportionate degrees. Where this
might be the case, these issues should be considered very early in the
process. Notification of any project related hearings, meetings, or opportunities
for public involvement should be placed in newspapers or publications
most likely to be read by affected groups. This would include minority
or foreign language newspapers where appropriate.
One commenter asked
that paragraph (b) be dropped. This paragraph identifies an early point
in project development, the Transportation Improvement Program (TIP) review,
where the Administration will consult with an applicant on environmental
requirements. This was done in response to paragraph 1505.1(b) of the
CEQ regulations which requires Federal agencies to designate major decision
points in their programs and ensure that the NEPA process corresponds
with them. The TIP is a local planning document identifying projects to
be implemented over a 3-5 year time frame. Not all listed projects are
subsequently constructed, but inclusion in the TIP is an early indication
that Federal funding may be pursued. It is expected that applicants will
initiate environmental impact work first on the high-priority projects
in the TIP. When adequate site-specific information is available at the
TIP review stage, FHWA and UMTA will determine whether an EIS, EA, or
CE is appropriate and whether other environmental requirements apply.
The 3-5 year time frame of the TIP will allow ample lead time for document
preparation, public involvement, and agency review. This provision has
been retained because it supports early consultation in the environmental
review process without placing unnecessary burden on prospective applicants.
However, this paragraph was modified to indicate that FHWA would, where
appropriate, to indicate the possible class of action at the later, formal
105 program approval stage. This technical change was necessary since
FHWA reviews, but does not approve, the TIP.
Paragraph (d) adopts
the suggestion to change the word "should" to "must" in the second sentence.
Paragraph (g) describes
the tiering of EISs as an optional approach which may have benefits when
considering large, complex transportation projects. This paragraph stimulated
a mix of comments. Several commenters expressed the concern that two sets
of EISs do not lead to improved decisionmaking regarding major projects
and are not justified considering the additional cost and time involved.
Others supported the tiering concept and noted that it had been used successfully
when incorporated with early planning at the local level. Tiering of EISs
may be beneficial under certain limited circumstances, but a tiered approach
can only be effective if the initial EIS is prepared very early in the
planning process. The focus would be on a broad comparison of key environmental
factors which may have a bearing on early decisions concerning, for example,
the type of project, the general location, and major design features.
This approach is consistent with the CEQ regulations which encourage agencies
to consider environmental effects at an early stage before decisions on
major alternatives are foreclosed. A second-tier EIS (or EA where no new
significant impacts are expected) would be appropriate at the stage where
a preferred alternative has been identified and project details have been
Commenters asked for
clarification as to how the Administration determines the need for tiered
EISs. The decision to use tiering will be made in consultation with the
applicant and will depend on the scope and complexity of the alternatives
under consideration, the status of planning, and the need to address environmental
considerations at an early stage in the local planning process. Generally,
the Administration would not direct an applicant to prepare tiered EISs
but, instead, would employ tiering to accommodate an applicant's planning
or environmental review requirements.
It should be noted
that this progressively, more focused look at a project embodied in the
concept of tiering may also be accomplished with a supplemental draft
EIS. If project details are developed before a final EIS has been issued
(e.g., during preliminary engineering), site-specific environmental effects
can be addressed in a supplemental draft EIS. In this case, the process
would be concluded with a final EIS responding to comments on both the
general and the site-specific draft EISs. Thus, the process of tiering
EISs is most appropriate where a project concept is still in the formative
stages and the applicant is actively seeking information from agencies
and the public in helping to reach early decisions. Tiering is accomplished
with two complete EISs; however, alternatives and environmental concerns
fully considered in the first-tier statement need not be restudied in
the second-tier EIS.
Paragraph (h), which
discusses the FHWA public hearing requirements, has been addressed in
a separate NPRM (50 FR 4525, January 31, 1985). A discussion of final
revisions as well as comments submitted to the public docket appears later
in this document as the last item in the section-by-section discussion.
A new paragraph (I)
has been added discussing public involvement for UMTA's projects. No new
requirements have been established; however, coordination of any public
hearings with NEPA process is emphasized with special reference to the
preparation of EAs and environmental studies. It should be noted that
although these hearings and the FHWA hearings are coordinated with the
NEPA process, they are not required by NEPA itself; the requirement for
public hearings is found in FHWA and UMTA legislation. Under these statutes,
questions such as the need to hold hearings during the preparation of
a NEPA document and the type and scope of those hearings are within the
Federal agency's discretion. This new paragraph also refers to the scoping
process as a means of inviting public and agency comments on a project
proposal. Providing this opportunity for input at an early stage frequently
helps the applicant and UMTA to focus on important environmental effects
and to determine whether reasonable alternatives exist to avoid or mitigate
those effects. For example, in regard to sections 9 and 9A of the UMT
Act, UMTA intends that the new paragraph (I) will generally apply to the
program of projects proposed for Federal funding. If practicable, EAs
should be prepared, where required by this regulation, before the notice
of an opportunity for a public hearing on the program of projects. At
a minimum, the notice announcing the opportunity for a hearing should
indicate those projects requiring EAs, the timetable for preparing those
documents, and how copies may be obtained. If, after releasing the EA,
UMTA or the applicant becomes aware of strong community concerns or controversy
on environmental grounds, or if UMTA determines that an EIS is necessary,
the applicant will hold a separate hearing on the project to receive public
comment. The UMTA will continue to require early contacts with affected
agencies and the public in defining the scope of environmental documents.
Timing of Administration Activities. This section describes the timing
of various project development activities in relation to the completion
of the environmental process. It places limits on the actions which the
Administration and the applicant may take to develop a project prior to
the completion of the NEPA process.
The language in paragraph
(a) supports, and should be read in conjunction with, section 1506.1 of
the CEQ regulations, "Limitations on actions during NEPA Process." These
provisions ensure that the Administration's decision whether to implement
an alternative under consideration in the environmental document will
not be influenced by a previous commitment to a particular course of action.
As such, the strictures apply not only to the Administration and applicants,
but also third parties acting under a contractual agreement. Furthermore,
the Administration or the applicant cannot prematurely enter into a contract
which irrevocably binds it to the future performance of this work. This
limitation on actions supports one of the primary purposes of NEPA--that
Federal agencies consider environmental effects fully, including alternative
courses of action, before reaching a decision to proceed with major Federal
actions. The wording in this paragraph has been revised to make clear
the kinds of activities that will be allowed prior to the completion of
the NEPA process. This will include any impact studies and engineering
work needed to complete the environmental document. Normally, preliminary
design will provide all the project information needed to satisfy environmental
requirements. In certain cases, more detailed design work will be needed
to satisfy a specific environmental requirement and this additional design
work is allowed. This paragraph has also been changed to expand on the
kinds of activities which may not occur prior to completion of the NEPA
It is important to
note that the limitations on premature commitments in the CEQ regulations
and this regulation apply to projects or activities that may be proposed
entirely for local funding by an applicant or prospective applicant. If
the action in question is an integral part of a larger project which is
the subject of an environmental document, that action cannot be "segmented"
from the overall proposal and funded separately before the environmental
process is completed. Segmentation of a project might involve the early
acquisition of property or the purchasing of rolling stock, construction
materials, or other equipment needed during the construction phase. Segmentation
could also entail separate development by the applicant of an entire portion
of a project, e.g., a segment of highway or transit guideway that should
be considered as part of a larger project for which Federal assistance
is being sought.
A number of commenters
suggested revisions to this section to permit the applicant to proceed
with final design activities after the receipt and evaluation of comments
on the draft EIS and prior to approval of the final EIS. The commenters
contended that the EIS approval process delayed the start of final design
work and, therefore, induced delays in all subsequent phases of the project
development process. They suggested that if no environmental concern were
raised during the draft EIS circulation period, final design of the preferred
alternative should be allowed to proceed. The Administration has carefully
considered these comments and continues to believe the environmental process
must be completed and the EIS approval made before it is in a position
to permit the applicant to proceed with final design activities. We recognize
the need to develop preliminary designs in order to more accurately assess
impacts in the environmental document. However, granting approval to proceed
with final design at this stage would be a premature commitment to one
alternative at a time when other alternatives, including the alternative
of taking no action, are still being actively considered by the Administration
in the environmental process.
However, the Administration
recognizes the need to proceed with detailed design activities where such
work is necessary to permit the full evaluation of environmental impacts
and to permit the consideration of appropriate mitigation measures, e.g.,
impacts to wetlands, section 4(f) areas and resources covered by section
106 of the National Historic Preservation Act (section 106). The regulation
provides for those situations by allowing the applicant to complete all
necessary design work needed to complete the EIS or to comply with other
environmental laws during the NEPA process. This should not be construed
as an authorization to proceed with final design for the entire project,
but only for those aspects of the project necessary to consider specific
The possibility of
acquisition of land for a project before completion of the NEPA process
was raised by several commenters. The UMTA received comments in favor
of both expanding and restricting the scope of advance land acquisition
allowed under the regulation. Several commenters suggested that UMTA expand
the scope of advance land acquisition because the Surface Transportation
Assistance Act of 1982 (STAA) amended section 3(a)(1)(A) of the UMT Act
by adding a provision specifically addressing UMTA's discretion to make
grants or loans for the acquisition of rights-of-way and relocation for
fixed guideway corridor development for projects in advanced stages of
alternatives analysis or preliminary engineering. On the other hand, one
commenter expressed the opinion that "no acquisition should be allowed
prior to completion of the NEPA, process," arguing that hardship or protective
buying cannot be accomplished without influencing or limiting the choice
of reasonable alternatives.
In weighing the arguments,
UMTA considered how to implement the STAA amendment consistently with
the agency's responsibilities under NEPA and with the results of pertinent
case law governing advance land acquisition, National Wildlife Federation
vs. Snow, 561 F.2d 227 (D.C. Cir. 1976). The UMTA has concluded, in light
of these considerations and a review of the pertinent legislative history,
that this amendment was not intended to override the requirements of NEPA.
For UMTA's major fixed
guideway projects, the draft and final EISs are developed during alternatives
analysis and preliminary engineering. Any authorization for advance land
acquisition during alternatives analysis or preliminary engineering would
create a conflict with NEPA if the acquisition could result in a substantial
commitment to a particular course of action before the NEPA process was
completed. In addition, since UMTA's major investment procedures are integrated
with the NEPA process, this would also prejudice the major investment
After careful review,
FHWA and UMTA still believe that some advance land acquisition may take
place on a case-by-case basis without resulting in a substantial commitment
to a particular course of action before completion of the NEPA process.
Therefore, in this regulation, FHWA and UMTA are maintaining the current
practice: that is, the only types of advance land acquisition that FHWA
and UMTA will approve before the completion of the NEPA process are "hardship"
and "protective" acquisitions. These terms are defined in 771.117(d)(12)
of this regulation.
As in the past, this
type of land acquisition is reserved for extraordinary or emergency situations
involving a particular parcel or a limited number of parcels within the
proposed transportation corridor. It has been FHWA's and UMTA's recent
experience that the number of hardship and protective acquisitions on
a given project are so few as to not result in a substantial commitment
to a particular course of action. The purpose of protective acquisition
is to preserve the status quo. Since it serves to protect valuable property
and can be easily undone, such acquisition generally will not tilt the
balance toward a particular alternative.
Another question is
whether acquiring an option to purchase land before completing the environmental
process would be an acceptable alternative to assure the availability
of land for project purposes. It would be less costly and arguably would
constitute a smaller commitment than the actual purchase of land. Generally,
UMTA and FHWA maintain that acquiring options to purchase land for a project
would tend to bias fair consideration of other project alternatives and
violate basic principles of Federal environmental law. Therefore, the
same standards apply to options to purchase as to outright purchase of
land: before completing the environmental process, only acquisitions for
hardship and protective purposes are acceptable.
To obtain approval
for hardship or protective acquisition, the applicant should apply for
a CE under paragraph 771.117(d)(12). In addition, for FHWA actions, hardship
and protective acquisition activities must be processed in accordance
with 23 CFR 712.204(d). It should be noted that a CE for advance land
acquisition applies only to the purchase of property and does not permit
further project development. The restrictions of paragraph 771.113(a)
will apply until the Administration completes the NEPA process for the
entire proposed action. The FHWA has issued guidelines and UMTA is preparing
similar guidance describing the documentation needed to support requests
for hardship and protective buying. Documentation supporting these claims
will continue to be reviewed in the field offices of FHWA and UMTA.
One commenter suggested
that any advance land acquisition be noted in the subsequent EIS or EA.
The FHWA and the UMTA have no objection to noting this information in
environmental documents, but do not believe it is appropriate to require
it under the regulation.
Paragraph (a)(3) has
been added to emphasize that in addition to environmental requirements,
certain programming requirements must be satisfied prior to the initiation
of FHWA funded final design, acquisition, and construction activities.
This paragraph is a cross reference to 23 CFR Part 450 and 23 CFR Part
630 and does not create any additional requirements.
Paragraph (b) has
been revised to indicate that FHWA approval of the final environmental
document is considered acceptance of the general project location and
project concepts such as type of facility, interchange locations, and
other major features which may be indicated in the environmental document.
This paragraph is an indication that FHWA normally will approve for Federal
funding a project of the type noted in the final environmental document.
However, it does not commit the Administration to fund any specific project
or any features identified therein. Final approval of the EIS does not
constitute a commitment to fund the project, as noted in this paragraph
and in 771.125(e) of this regulation.
Classes of actions. Actions treated under this regulation fall in
one of the classes outlined in this section. Class I actions are those
which typically require an EIS. Class II actions are those which typically
are classified as CEs. If it is uncertain whether a particular action
requires an EIS, and it requires an EA to establish the significance of
the impacts, the action is grouped under Class III. A change in this section
was the shifting of the list of examples of CE activities to 771.117.
This has been done in order to group all activities related to CEs in
One commenter suggested
deleting the list of Class I actions that remains in 771.115(a) and, instead,
focusing on the definition of significance as applied to environmental
impacts in the CEQ regulations. Examples of specific Class I actions are
included in the regulation in accordance with 1507.3(b)(2) of the CEQ
regulations. We have referenced the section of the CEQ regulations that
addresses the significance of impacts rather than repeating it.
One commenter suggested
that the wording be changed in paragraph (a) to indicate that the projects
listed under Class I may not in all cases require EISs. The CEQ regulations
require that Federal agency procedures include specific criteria for and
identification of those typical classes of action which normally require
EISs. While there may be individual projects listed in Class I that because
of unusual circumstances would not require an EIS, such projects are exceptions
to the rule. The wording in paragraph (a) has been changed to parallel
the CEQ regulations (40 CFR 1507.3(b)(2)). The intent of dividing projects
by class is to provide guidance on the environmental review process that
will be followed normally for projects in the class. The FHWA and the
UMTA will continue to review individual cases whenever applicants describe
circumstances which may have a bearing on the choice of environmental
process. The final decision on class of action will be made by the Administration.
In the NPRM, UMTA
proposed eliminating exclusive busways as Class I actions because of the
potential to construct and operate a busway on or within an existing highway
without significant environmental impacts. A number of commenters supported
this change. Busways are frequently established by dedicating an existing
highway lane for exclusive bus and high occupancy vehicle use and the
regulation affords the flexibility to handle such projects with an EA
instead of an EIS. The NPRM noted UMTA's intention to continue to require
an EIS for construction of a new roadway for buses which is not integrated
in an existing highway. This type of project is now listed in the regulation
as a Class I action. Other types of busway projects will be reviewed individually
to determine the appropriate environmental document, e.g., busways on
existing lanes or medians which have off-line facilities such as stations,
park-and-ride lots, transfer points, etc.
The UMTA also proposed
eliminating "major transportation-related developments" as Class I actions.
These were joint public/private urban development projects that were tied
into transit terminals or stations. These types of projects normally required
an EIS. They were dropped from the list of Class I actions because they
are no longer a significant part of the UMTA program.
who supported the proposal to remove busways constructed on existing highways
from the Class I list suggested that rail lines built in highway medians
should be accorded the same treatment. However, the environmental effects
associated with the fixed facilities of a rail line-- stations, parking
lots or structures, storage and maintenance yards--and the changes in
travel patterns and land use associated with such projects are normally
significant and warrant evaluation in an EIS. Greater variability exists
in constructing a busway on an existing highway. Thus, the regulation
provides the flexibility to handle the simpler busway projects with a
simpler environmental process, while mandating an EIS if the EA shows
noting the change proposed for busway projects on existing highway facilities,
argued that the initiation or increase of rail passenger service on rail
lines already in use was analogous and should, therefore, not require
an EIS. Reference was made to an exemption from State environmental requirements
for such projects in California. The UMTA recognizes there may be some
cases where a rail rapid transit project proposed on an existing railroad
right-of-way can be built and operated with minimal environmental impact.
In such cases, the fact that displacement of residences and businesses
is avoided or minimized alleviates one potentially significant concern.
However, these projects
are exceptions which would not warrant a change in emphasis in the regulation.
Sometimes rail projects are proposed on railroad rights-of-way that are
abandoned or lightly used for freight. In these situations, the rapid
transit project may intensify some effects associated with existing railroad
operations, e.g., wayside noise, and could introduce new impacts at proposed
station locations, such as traffic congestion and parking demand. It should
be noted that listing as a Class I action does not preclude the handling
of specific cases with EAs. The FHWA and the UMTA will continue to review
individual project proposals to establish the appropriate environmental
document and level of environmental analysis.
Categorical Exclusions. CEs are types of actions which in the Administration's
experience have normally been found not to have significant environmental
effects. Designation as a CE speeds the Administration's approval process
by eliminating the need for an EIS or EA on an activity proposed for Federal
funding. The FHWA and the UMTA proposed several important changes to the
process of classifying and approving CEs in the NPRM and many comments
were made on the changes. It is important to note that these changes have
been made in response to the CEQ's latest guidance to Federal agencies
on this subject (48 FR 34263, July 28, 1983). Agencies were encouraged
to add the flexibility to their implementing procedures to allow new types
of actions to be classified as CEs with minimal documentation required.
They were to do this by developing more broadly defined criteria as well
as providing examples of typical CEs, rather than a comprehensive list,
so that specific actions not previously listed by an agency could be considered
for CE status on a case-by- case basis. This regulation generally adopts
We have amended 771.115
and 771.117 to classify FHWA's and UMTA's role in reviewing CE designations
for proposed projects. These amendments are designed to speed the approval
of many smaller projects while focusing attention on projects with particular
environmental concerns. This change in procedures is one of the several
steps taken by FHWA to comply with the requirements of section 129 of
the STAA of 1982.
The FHWA and the UMTA
have examined the existing list of categorically excluded actions and
separated it into two groups. The first group includes actions which experience
has shown almost never involve significant impacts. The second group contains
examples of projects which usually have been found appropriate for CE
classification but may, depending upon the circumstances, have significant
adverse effects (e.g., increased noise, wetlands encroachment, historic
site impacts) which would preclude the use of the CE classification. Site
location and the surrounding land use are often key factors. Thus, the
Administration will require all appropriate information on the area immediately
surrounding the proposed project site and any specific impact studies
which may be needed to determine whether CE status is appropriate.
It should be noted
that projects approved on an individual basis will not be added to the
list or examples in the regulation. Reviews of individual projects for
CE status on a case-by-case basis will be at the field office level, although
there will be coordination with Headquarters. Where a pattern emerges
of granting CE status for a new type of project, rulemaking will be initiated
to determine whether to add such projects to the list of CE examples in
the regulation. Section 771.117(e) has been added to the regulation to
describe these procedures.
Some commenters objected
to the intent of splitting the original CE list into two groups and suggested
that the Administration give a one-time designation to all CEs with no
further review. This view contrasts sharply with the comments of others
who felt the one-time designation for certain CEs would allow some projects
with adverse consequences to escape scrutiny. The FHWA and the UMTA believe
that this regulation strikes the proper balance. Only those actions which
normally have no effect or minimal effect on the environment are included
in the first group of CEs. Furthermore, in unusual circumstances, even
these actions must undergo an environmental review if an EIS could be
required, as provided in 771.117(b).
expressed the concern that specific environmental laws and administrative
requirements might be overlooked if a project qualified as a CE in the
NEPA compliance process, particularly in the first group of CE projects,
which do not require individual Administration approval. One commenter
noted that many of the actions listed in the second group of CEs could
have significant effects depending on the location of the activity, thus,
they should be subject to the more thorough analysis of an EA.
The final regulation
is an effort to strike a reasonable balance between environmental concerns
and the reduction of excessive procedures and paperwork. In adopting this
approach, it is not the intention to exempt the first group of actions
from any appropriate Administration review. Experience has shown that
the actions placed in the first group almost never cause significant impacts
to the environment and, from the standpoint of NEPA, are properly classified
This prior approval
with respect to NEPA compliance in no way implies that a project is exempt
from the requirements of other laws. All other laws and procedures still
apply. For example, minor modifications to a historic building may require
a review pursuant to section 106 or the proposed use of a minimal amount
of land protected by section 4(f) may require review under that statute.
We believe that these cases will be identified from information in the
grant application and in other pertinent planning and programming documents
available to the Administration. If there is any doubt over the applicability
of a related environmental law or regulation, the Administration will
request additional information to help determine whether such requirements
apply. These determinations can usually be made with only a brief description
of the area immediately surrounding the proposed project site. The
second group of CEs
is composed of projects which normally do not involve significant environmental
effects when carried out under the conditions or criteria set forth. They
generally involve more construction than projects in the first CE group,
and their designation as CEs is more dependent on proper siting. Projects
in the second group will require documentation from the applicant to clearly
establish that there are no significant impacts.
expressed concern that the documentation required for the second group
of categorically excluded projects defeats the purpose of the CE concept.
We believe that this documentation, focused on particular areas of concern,
is the only way to proceed while ensuring that federally assisted projects
do not cause environmental harm. We expect that the documentation will
be briefer than an EA since it will be focused on a limited number of
environmental concerns and usually will not include and evaluation of
alternatives as is often contained in an EA. Under this approach, projects
which appear to meet the general criteria for CEs in paragraph (a) but
are not specifically mentioned in the regulation may be approved on a
case-by-case basis as provided in 771.117(d).
Also with respect
to CEs, there were numerous suggestions to: (1) Delete certain actions
from the CE lists altogether, thus requiring preparation of EAs at a minimum,
and (2) move certain CEs from the first group to the second group, requiring
some level of supporting documentation, and move some from the second
group to the first group. As a result, FHWA and UMTA reassessed all the
CEs to determine if their present status was appropriate. Certain refinements
are reflected in this final regulation.
One commenter requested
that CE status be given to all projects funded under sections 16 and 18
of the UMT Act which deal with elderly and handicapped access to transportation
facilities and assistance for non-urban areas, respectively. A new CE
has been added to cover modifications to facilities or vehicles for the
express purpose of elderly and handicapped accessibility. Many of the
projects funded with grants under section 18 are covered by existing CEs,
e.g., new bus maintenance facilities, reconstruction of existing buildings,
and vehicle purchases. However, a blanket CE for any project that might
be proposed under section 18 is inappropriate.
A number of commenters
asked for changes to clarify the description of certain CEs. One suggestion
dealt with the CE for rehabilitation of rail or bus buildings in which
"only minor amounts of additional land are required." We agree with the
commenter that the ultimate concern is not the amount of additional land
but whether significant environmental effects are involved. However, limiting
this CE to situations where only minor amounts of additional land are
needed draws a distinction between a rehabilitation or renovation-type
project and a major expansion of an existing facility generally requiring
more land. We have retained the existing language because there is greater
confidence that the project as described would qualify as a CE.
A number of commenters
suggested that weigh-station and rest-area construction should be in the
first group of CEs. After considering these comments, it was decided to
divide weigh-station and rest-area activities into two groups. The reconstruction
and/or rehabilitation of existing facilities were added to the first group
of CEs. However, because of the issues likely to be involved in the case
of new rest areas or weigh stations, it was decided to leave these types
of activities in the second group of CEs which requires approval on a
case-by- case basis.
A number of commenters
also suggested that traffic control devices be moved to the first group
of CEs. Because of the wide range of activities that may take place under
the broad category of "traffic control devices," the Administration has
decided to divide those activities into two groups: (1) Traffic signals
in the first group of CEs and (2) ramp metering controls in the second
group (which requires Administration approval).
One commenter questioned
whether the proposal to categorically exclude the promulgation of rules,
regulations and directives which require a regulatory impact analysis
was properly conceived, since the need for regulatory impact analysis
seems to have little bearing on the possible environmental effects of
the rule, regulation, or directive. The Administration agrees and has
removed the phrase that refers to an regulatory impact analysis. Furthermore,
because the vast majority of Administrative rules, regulations, and directives
have not had significant environmental impacts, this action was moved
from the second group to the first group of CEs. However, in unusual cases
an environmental review will be conducted as required by 771.117(b).
One commenter objected
to removing the prohibition, that is in the 1980 regulation, against categorically
excluding bridges on or eligible for the National Register of Historic
Places and bridges providing access to barriers islands. This prohibition
was removed because it is too general. Projects involving historic bridges
or bridges to barrier islands may be properly categorically excluded or
may require the preparation of an environmental assessment or an environmental
impact statement depending on the severity of the anticipated impacts.
The criteria for categorical exclusions presented in 771.117(b) and the
procedure for evaluating "unusual circumstances" in 771.117(b) provide
a suitable mechanism for determining whether, based on specific information
regarding project impacts, a categorical exclusion in proper. In addition,
since bridges are in the second CE category, historic bridges would always
require some documentation that should reveal whether further environmental
review is needed. The commenter's concern that historic bridges be adequately
protected is addressed by 771.117(b)(3), that relates to properties protected
by section 4(f) or section 106. The barrier island issue is addressed
by 771.117(b)(4), that focuses on inconsistencies with environmental laws
and requirements, such as the statutes that protect barrier islands.
In the proposed rule,
771.117(b) limited the need for further environmental review to "extraordinary"
cases. The historic bridge example illustrates that actions on the CE
list may sometimes require a full environmental review, depending upon
the circumstances. Such cases are unusual, but are not necessarily extraordinary.
The indicate the need for environmental review in these and other similar
cases, 771.117(b) has been revised to describe them as "unusual," rather
Several comments concerned
advance land acquisitions. We believe advance land acquisitions require
more documentation than a project description. Therefore, this CE has
been included under the second group of CEs in paragraph (d).
requested as to whether construction could occur after the land was acquired.
This CE is intended to cover the very limited cases where advance land
acquisition as set forth in 771.113(a) is appropriate. The CE does not
cover the entire project. Thus, in these cases, even though the land is
acquired early, project development cannot occur until the NEPA process
is completed and the Administration reaches a decision on whether to implement
the proposed project. The CE for advance land acquisition has been modified
to clarify this point.
In the 1980 regulation,
the CE for advance land acquisition covered hardship and protective acquisitions,
as defined in 23 CFR 712.204(d), and acquisitions under section 3(b) of
the UMT Act. However, because hardship and protective acquisitions were
not specifically referenced in the CE, some applicants have interpreted
it as establishing a category of advance land acquisition in addition
to hardship and protective acquisitions. The CE has been modified to clarify
this point. Thus, the CE for advance land acquisition in the final regulation
continues the Administration's existing practice for advance land acquisition.
A definition of these terms has been added to the regulation.
It should be noted
that the number of acquisitions under section 3(b) of the Urban Mass Transportation
Act to date has been very limited and is expected to remain so. The purpose
of section 3(b) is to allow the acquisition of land that may or may not
be used for mass transit in order to preserve that land before land speculation
caused by transit development inflates the price of the land. The UMTA
will approve loans under section 3(b) only for unique circumstances, such
as acquisition of abandoned rail right-of-way and only where there are
no immediate plans for a project. UMTA will review each case separately
to determine whether the action requires and environmental review. Where
the grantee has definitely planned a mass transit project, section 3(a)
is the appropriate section of the UMT Act under which to proceed. Under
section 3(a), any major land acquisition requires full compliance with
asked UMTA to distinguish more clearly the difference between small passenger
shelters and bus transfer facilities. The CE for bus shelters covers the
separate small shelters typically found throughout a transit system. The
bus transfer facility CE refers to focal points of bus activity where
several bus routes connect. It includes construction of passenger shelters,
loading bays, layover areas, and related street improvements. The primary
environmental concerns are the noise, traffic, and safety consequences
of frequent bus movements in a new area. However, this CE does not apply
to the construction of new bus terminal buildings.
In the NPRM, comments
were invited on the specific conditions or criteria which should apply
to a CE for rail car storage and maintenance facilities. One commenter
recommended against establishing specific criteria for new rail yards
since they are typically constructed in areas with compatible land uses
and zoning. It was suggested that a project-by-project review would be
satisfactory to identify those infrequent cases where a CE may not be
appropriate. We agree that rail yards are usually located in areas characterized
by industrial or transportation use. However, land-use compatibility,
increased traffic, and noise have been issues where non- conforming residential
land use is close by. These concerns have arisen with new facilities as
well as the expansion of established rail yards. The existing wording
has, therefore, been retained to describe the conditions under which approval
as a CE is most likely.
There were other suggestions
for new types of projects that should be categorically excluded. If, in
the Administration's view, the proposal would have insignificant effects
on the environment in the great majority of cases, the proposal was adopted.
For this reason, as noted earlier, a CE has been added for alterations
to make buildings and vehicles accessible to elderly and handicapped patrons.
Other suggestions for CEs were not added as examples in the regulation
because it was difficult to describe specific conditions or criteria which
would provide assurance of no significant environmental effects. However,
applicants may still submit new projects that they believe meet the criteria
of 771.117(a) accompanied by documentation supporting the CE designation.
If the applicant's proposal for a CE involves new technology or presents
environmental impacts with which the Administration has little or no experience,
it is likely that an EA will be required to examine the full range of
environmental effects from such an action. In introducing flexibility
in the CE process, the goal has been to speed the process for projects
where there is the greatest confidence as to the insignificance of the
impacts. However, this approach also requires a careful look, in the form
of an EA, where greater uncertainty exists concerning environmental effects.
Under paragraph (d), the Administration has the discretion to review all
proposals for categorical exclusions on a case-by-case basis.
A number of comments
were also received on paragraph (b) which sets forth the instances when
unusual circumstances make it appropriate to require further studies to
determine if the CE classification is appropriate. The level of additional
study required by this paragraph will vary. In the occasional or rare
case where significant impacts are caused by a normally excluded action,
an EIS is required. In some cases, only a minor environmental review would
be necessary and, in other cases, a full EA may be needed.
One commenter objected
to the statement that "substantial controversy on environmental grounds"
should trigger the requirement for an environmental study. Both the CEQ
regulations and DOT Order 5610.1c list "substantial controversy" as a
circumstance when a CE may not be appropriate for a normally excluded
action. Substantial environmental controversy over a minor project may
indeed indicate the presence of problems requiring further study.
objected to the inclusion of significant impacts on properties protected
by section 4(f) and section 106 as an example of "unusual circumstances."
The point was made that some projects do not involve significant environmental
impacts but may still cause effects which must be considered under section
4(f) and section 106. The commenter felt that the applicability of those
laws should not automatically trigger a requirement for further NEPA documentation.
The proposed language has been retained. Significant impacts on these
statutorily protected sites are a clear indication of impacts not appropriately
considered as a CE. This mandates a review of impacts better accomplished
in an EIS or an EA rather than a separate section 4(f) evaluation. The
requirement for an environmental document also underscores the importance
the DOT places on the protection of section 4(f) lands. A provision similar
to paragraph (b) is contained in the DOT Order 5610.1c.
Environmental Assessments. An EA must be prepared for all actions
which do not qualify as a CE and do not clearly require an EIS. Studies
undertaken solely to determine whether a project qualifies as a CE are
not EAs. The purpose of an EA is two-fold. First, an EA should resolve
any uncertainty as to whether an EIS is needed. Should the need become
evident at any time in the course of the EA process, an EIS should be
started. If no EIS is required, the EA process is completed with a finding
of no significant impact (FONSI) ( 771.121). Secondly, to the extent practicable,
the EA should contain sufficient information to serve as the record for
all environmental approvals and consultations required by law for the
action and should include approvals by and consultations with other agencies,
as well as those of the Administration. The EA must be made available
to the public, although circulation requirements are considerably simpler
than those required for an EIS.
One commenter suggested
that the notification/distribution requirements for EAs be modified so
that interested Federal agencies can be notified directly of the availability
of EAs. Our aim is to streamline the environmental review process, particularly
for those highway and transit projects that typically do not involve significant
environmental impacts and are processed with EAs or as CEs. The EA is
a public document, available on request from the applicant or Administration
field offices. The applicant must publish a notice of its availability
to ensure proper notification to the public. Notice of availability of
the EA shall also be sent by the applicant to affected units of Federal,
State and local government. The State agency responsible for intergovernmental
coordination pursuant to Executive Order 12372 will also be notified.
Beyond such notification, we do not intend to require a formal distribution
process for EAs. Those agencies and interested parties participating in
the early coordination/scoping process should be notified of the availability
of an EA and a subsequent FONSI, should either be approved. Projects normally
requiring EISs which are processed with EAs will be subject to the full,
early coordination and public involvement requirements described in 771.119.
One commenter raised
a question about 771.117(e) of the NPRM under which the Administration
encouraged applicants to prepare the EA and make it available prior to
any public hearing that was required to be held on a proposed project.
The concern was that the applicant must shoulder the cost of preparing
an EA to satisfy a Federal requirement and would not be reimbursed for
the cost of preparing the document if the grant application was subsequently
disapproved. Environmental analysis is frequently funded in grants for
planning or preliminary engineering which precede any Federal decision
on construction funding. Thus, the possibility exists that an applicant
may receive Federal funding for environmental analysis on a proposed project
which, for a variety of reasons, does not advance to construction. Acceptance
or approval of an EA by the Administration should not be construed as
a conditional approval of the project. Lacking an earlier grant for planning
or design, the applicant may have to bear the cost of preparing an EA.
In most cases, however, preparation of an EA, in contrast to an EIS, does
not entail a major investment of staff time and money.
When a public hearing
is to be held, the EA should be prepared and made available for a reasonable
period of time prior to the hearing. We will continue to encourage applicants
to coordinate the EA and public hearing requirements in order to meet
our responsibilities under section 1506.6 of the CEQ regulations. The
preamble discussion for paragraph 771.111(I) treats the coordination of
public hearings and EA preparation for transit projects funded under Sections
9 and 9A of the UMT Act.
One commenter suggested
that the regulation be amended to give the Administration the option to
hold a public hearing upon request. This comment has not been adopted
because making this decision optional would fall short of the requirements
of FHWA and UMTA statutes which mandate that an opportunity for a public
hearing be afforded (see paragraphs 771.111 (h) and (I) of this regulation).
In paragraph (f),
the former reference to a "shorter" time period than 30 days for comments
has been changed to a "different" time period. This change was made to
cover the situations where the State or local applicant or the Administration
may feel a longer time period is appropriate.
The NPRM required
that after any public review period for an EA, the applicant provide the
Administration with a summary of any comments received. The final rule
provides, instead, that the actual comments be transmitted. This change
eliminates the need to prepare a summary and avoids any possibility of
Paragraph (g) also
states that an EA, like an EIS, should be the vehicle for compliance with
all applicable environmental laws and regulations. This addition merely
restates in the EA section the long-standing DOT policy of a "one-stop"
Findings of no significant impact. This section remains unchanged
from the NPRM except for some minor editing to improve the readability
of the section.
Draft environmental impact statements. Paragraph (a) of this section
and 771.119(I) have been clarified to underscore the fact that an environmental
impact statement need only be prepared when significant impacts on the
environment will be or are likely to be caused by the proposed action.
The environmental studies defined in 771.107(a) or the EA discussed in
771.119 would provide the basis for an informed judgment if there is any
doubt about the magnitude of the environmental impact.
Paragraph (d) has
been revised to clarify the requirements when a consultant is involved
in the EIS process. This paragraph is now consistent with the definitions
contained in paragraph 771.109(c) of this regulation. The FHWA deals only
with SHAs and State Departments of Transportation. Accordingly, all FHWA
applicants qualify as "Statewide agencies." The FHWA approval of consultants
is needed only when Federal funds will be used to reimburse the consultant.
In those situations, other FHWA regulations govern the consultant selection
process. In the case of UMTA-funded activities, UMTA should be apprised
of the possible use of consultants before work is undertaken. Although
UMTA will not normally participate in the consultant selection, staff
will advise applicants if there is a need for interdisciplinary capability
in preparing an environmental document and will, when necessary, jointly
evaluate consultants' qualifications. The UMTA will apprise applicants
of paragraph 1506.5(c) of the CEQ regulations, governing work by consultants
and possible conflict of interest.
Paragraph (h) has
been amended to indicate that the draft EIS shall be available at the
public hearing as well as a minimum of 15 days in advance of the public
hearing. As expected, there were comments favoring the shortening of the
minimum period to 15 days and comments objecting that this is unreasonably
short. The statutes governing FHWA and UMTA programs require only that
adequate notice of any public hearings be given. The change was made to
be consistent with the CEQ regulations (section 1506.6(c)). We recognize,
however, that the typical EIS with a 45-day circulation period would allow
a 30-day notice for a public hearing with no delay in the environmental
review process. We will encourage applicants to give greater than 15-day
notice whenever possible in order to foster public involvement in the
One commenter asked
that FHWA and UMTA specify in the regulation their time for reviewing
EISs. Setting time limits for the major steps in the EIS process is a
task accomplished in the scoping process. The time periods will vary from
project-to-project depending on the size and complexity of the project
and other factors set forth in section 1501.8 of the CEQ regulations dealing
with time limits.
Final environmental impact statements. As with the section dealing
with draft EISs, few changes were proposed to our final EIS procedures.
There was support for the proposed change in paragraph (a) eliminating
the requirement to describe in the final EIS the procedures to be followed
to assure that all environmental mitigation measures are implemented.
The FHWA and the UMTA's general approach to ensure that mitigation is
carried out has been outlined in paragraph 771.109(b). Any further details
would be developed on an individual project basis by the applicant and
Administration. This does not represent a change in the Administration's
commitment to take all practicable steps to mitigate any adverse environmental
consequences caused by transportation projects.
There also was support
for the proposed change to identify, rather than describe, mitigation
measures. However, UMTA and FHWA have decided that the requirement of
describing mitigation measures should be retained. Accordingly, the final
regulation continues the existing practice of a full description of mitigation
measures in the final environmental document, to the extent permitted
by the level of design. When details on mitigation measures have not been
developed at the time the final EIS is being prepared, the final EIS should
describe the measures in as much detail as possible and give an assessment
of the effectiveness of such measures in reducing environmental harm.
When there is uncertainty over the choice of mitigation measures, the
range of measures under consideration should be fully described, and the
final EIS should address mitigation in terms of the results that will
be achieved, e.g., conforming to governmental standards or plans or meeting
criteria developed for specific projects. These measures will be summarized
in the Record of Decision (ROD) for projects requiring EISs.
Many commenters supported
the change eliminating the need for prior concurrence by the Administration
Headquarters on certain EISs. There was a dissenting view that Headquarters
oversight was needed to ensure that DOT environmental protection responsibilities
were being fully met. The delegation of greater EIS responsibility to
field offices is an important change from the standpoint of streamlining
the environmental review process. This provision allows routine EISs to
be completed more quickly. Internal procedures in the FHWA and the UMTA
will ensure that EISs for projects with major unresolved issues are reviewed
by Headquarters. The regulation specifies those circumstances in which
Headquarters' concurrence will normally be required.
The provision for
legal review of final EISs has been retained. Experience has shown this
to be an important requirement.
of the NPRM which deals with FHWA actions on programmatic documents has
been dropped from the final rule. The FHWA has issued internal operating
instructions that all programmatic environmental documents will be sent
to the Administration Headquarters for action. Since this is an internal
Administration practice, not a requirement imposed by the Administration
on its applicants, it was decided to eliminate that provision from the
Paragraph (e) concerning
the significance of the Administration's approval of the final EIS has
also been modified to better emphasize that approval does not constitute
a present or future commitment of funds to the preferred alternative.
Record of decision. The basic mechanism for the ROD remains unchanged.
The ROD lays out the basis for the decision as specified in 40 CFR 1505.2
and summarizes the mitigation measures that will be incorporated in the
project. The last sentence of paragraph (a) of the NPRM has been eliminated.
That sentence indicated a ROD was not required for projects where the
draft EIS was filed with EPA prior to July 30, 1979. We believe that this
"grandfather" clause is no longer appropriate and have eliminated it in
response to comments.
The ROD is a public
document and will be made available to the public on request. However,
FHWA and UMTA will not routinely distribute RODs to all those who received
the final EIS, nor will we distribute Rods on all projects to an individual
agency. One commenter asked that we seek outside consultation and review
whenever the Administration changes the proposed action and a revised
ROD has to be prepared. If the proposed action changes to an alternative
fully evaluated in the final EIS, but not identified as the preferred
alternative in that document, the Administration will issue a new ROD
and distribute it to everyone who received the final EIS. The regulation
states that this distribution will be made to the extent practicable,
meaning that documents will be sent to the addresses of record, but the
Administration cannot ensure that people who have changed addresses will
Reevaluations. This section directs the applicant to consult with
the Administration prior to proceeding with major project activities,
such as land acquisition and construction, to assess any changes that
have occurred and their effect on the validity of the environmental document.
After the environmental
process has been completed, the Administration is free to make a funding
decision and proceed with construction of a project. The decision to implement
a project may occur soon after the final environmental document is approved
and circulated or it may be deferred for various reasons. Where a substantial
period of time has elapsed since the initial environmental review process,
the Administration needs to determine whether existing environmental documents
and findings remain valid before moving ahead with construction. The Administration
must also ensure that mitigation measures stated as commitments in environmental
documents have been incorporated in appropriate contract documents, plans,
specifications, and estimates.
Many commenters objected
to the proposal in the NPRM for a written evaluation, required in all
cases, to assess whether the final EIS was still current. Based on these
comments, the Administration has agreed that a written evaluation of the
final EIS should not be required before every major project approval or
filing for a Federal permit. Instead, the Administration has substituted
two paragraphs. One of these requires a written evaluation of the final
EIS if major steps to advance a project have not been taken within 3 years
of final EIS approval or the last major Administration approval or grant.
The purpose of this paragraph is to require a careful look at proposed
projects which have not gone to construction and have been inactive for
a relatively long time since the final EIS or last major step in project
development. A similar paragraph appeared in the 1980 regulation but was
deleted in the NPRM.
The second paragraph,
paragraph (c) in the final regulation, requires consultation in all cases
not covered by paragraphs (a) and (b), but leaves discretion to determine
on a case-by-case basis whether a written report is required. The Administration
will determine whether the changes are significant enough to warrant a
supplemental EIS (as outlined in 771.130). The Administration believes
the fixed time period of paragraph (b) and the flexibility of paragraph
(c) would accomplish the purpose of the NPRM, without imposing the burdens
objected to by the commenters.
Normally, the reevaluation
requirements apply at the right-of-way authorization stage and at the
construction stage. However, on the more complex projects, the Administration
may identify additional points at which it would be appropriate to reevaluate
the status of the previously approved environmental document. The regulation
is structured to ensure that the Administration has a current and valid
environmental document on file prior to permitting the applicant to proceed
with any subsequent phase of the pending project.
Supplemental environmental impact statements. Paragraph (a) retains
the provisions in the 1980 regulation that a draft or final EIS may be
supplemented at any time. This provision had been included in 771.127(a)
of the NPRM. In addition, it makes clear that a supplemental EIS may be
supplemented at any time.
Paragraph (a) also
identifies those situations in which a supplemental EIS must be prepared.
A supplemental EIS is required where changes in the proposed action or
new information or circumstances relevant to environmental concerns and
bearing on the proposed action would result in significant environmental
impacts not already evaluated in the EIS. The language in paragraph (a)
was changed to more closely parallel the CEO regulations. It replaces
771.129(b) of the 1980 regulation which required a supplemental EIS when
there had been "significant changes in the proposed action, the affected
environment, the anticipated impacts, or the proposed mitigation measures."
The word "change" in the regulation is no longer limited to the four categories
set forth in the 1980 regulation. Instead, this paragraph focuses the
determination of whether a change or new information is "significant"
to the anticipated impacts of the proposed action. The regulation is intended
to distinguish, for example, between new information that may be very
important or interesting, and thus, significant in one context, such as
to the scientific community, and yet should not be considered "significant"
so as to trigger preparation of a supplemental EIS because the information
does not result in a significant change in the anticipated environmental
impacts of the proposed action.
Paragraph (b) identifies
two circumstances in which a supplemental EIS is not required. Paragraph
(b)(1) provides that no supplemental EIS is required where changes or
new information would mitigate or lessen adverse impacts that have already
been evaluated in the EIS and do not cause any other environmental impacts
that are significant and which were not evaluated in the EIS. This provision
is intended to cover primarily the situation where a proposed action is
down scaled or additional mitigation measures are incorporated in a project.
Changes or new information that only reduce impacts and are of the same
character as those discussed in the EIS could include, for example, less
right-of-way taken, fewer relocations, or reduced noise levels as a result
of additional noise walls. This section only applies where the change
or new information does not cause any other impacts that are significant.
If the change or new information results in impacts that were not evaluated,
a supplemental EIS would be required if the new impacts are significant.
Thus, in response to comments on the NPRM, the regulation recognizes that
even beneficial changes may be significant and require a supplement if
they result in a type of impact that was not evaluated in the original
EIS. Further, if previously evaluated impacts become significantly worse,
so that the environmental impacts of the action are greater than thought
initially, a supplemental EIS would also be required. For example, a supplemental
EIS would continue to be required where mitigation measures, presented
as commitments in the final EIS, are changed or withdrawn, thereby creating
new and significant environmental effects.
Paragraph (b)(2) indicates
that a supplemental EIS will not be necessary if a decision is made to
fund an alternative fully evaluated in a previous EIS but not identified
therein as the preferred alternative. In those situations, a revised ROD
must be prepared and provided to all parties that received a copy of the
final EIS. A supplemental EIS would be required if the impacts from the
alternative now designed as the preferred alternative were not fully evaluated
and appropriate mitigation measures included in the original EIS. After
a revised ROD is prepared, public and agency notification of the change
in the recommended alternative is essential. The specific methods used
to notify the public of the change will be determined by the Administration
on a case-by-case basis.
Paragraph (c) is new
paragraph that expresses in slightly different terms a provision contained
both in the 1980 rule and the NPRM. If the Administration is uncertain
whether the proposed changes to the project would result in significant
environmental impacts, it may require the applicant to prepare an EA or
environmental studies to aid in determining the significance of the effects.
An EA would be appropriate where a number of different environmental effects
need to be assessed and, in the Administration's view, there is uncertainty
as to the significance of these effects. Also, an EA is warranted if the
Administration feels that an examination of alternative routes, sites,
or designs (beyond the normal consideration of design options as the project
is being refined) might identify ways to avoid or mitigate probable adverse
effects. If these effective are found to be not significant, the Administration
will document its decision with a notation to the files for projects where
environmental studies were prepared and with a FONSI for projects where
an EA was prepared.
objected to the paragraph in the NPRM which described circumstances under
which supplemental EISs may be needed for UMTA's major investment projects.
The concern was that this would add to an already lengthy EIS process.
This provision has been modified and retained as paragraph (e). It does
not require that supplements be prepared in all cases; it gives UMTA the
discretion to prepare such a document in those cases where a substantial
body of new information relevant to environmental concerns has been developed.
Although it is similar
to tiering in that the environmental focus is sharpened as project details
are developed, a supplement eliminates the need to prepare two separate
draft and final EISs as in tiering. The UMTA will continue to require
a draft EIS at an early stage of project planning for major investments
(i.e., alternative analyses); thus, we want to preserve the option of
preparing a supplemental draft EIS when circumstances dictate.
of the 1980 regulation stated that a decision to prepare a supplemental
EIS does not require withdrawal of the previous approvals for those aspects
of the proposed action not directly affected by the changed condition
or new information. While the 1980 regulation was silent on whether activities
already in progress under the prior approval should be suspended, it has
generally been held that such activities need not be suspended. In addition,
it has been held that new approvals of activities outside the scope of
the supplemental EIS may be granted while a supplemental EIS is being
processed. Provisions have been added to paragraph (f) specifically to
permit these practices. These provisions apply only to supplemental EISs
of limited scope. Where the supplemental EIS requires a comprehensive
reexamination of the entire project or more than a limited portion of
the project, then the Administration would suspend any activities that
may have an adverse environmental impact or prejudice the selection of
Emergency action procedures. This section is unchanged from the NPRM.
Compliance with other requirements. This section is unchanged from
Section 4(f) (49 U.S.C. 303). This section sets forth the procedures
for applying section 4(f). There have been few substantive changes made
from the 1980 regulation. Those that have been made are designed to give
the Administration more flexibility in dealing with particular actions
or to clarify existing requirements. We do not believe that any of the
changes diminish the substantive protection provided section 4(f) sites.
were received on this section. To a large extent, these comments urged
the Administration to narrow the situations in which section 4(f) would
apply. For example, some commenters expressed frustration with the application
for section 4(f) requirements to acquisition of minor amounts of land
resulting in little or no impact on the site. The legislative history
of section 4(f) makes clear that the "nibbling away" of section 4(f) lands
by repeated minor acquisition was of primary concern to Congress. As a
result, the DOT and the courts have always taken the position that even
minor takings require the preparation of a section 4(f) document.
Paragraph (c) has
been revised to emphasize that the "entire resource" must be found to
be not significant before the Administration can determine that section
4(f) requirements are not applicable. Furthermore, determination that
an entire area is not significant is subject to review by the Administration
prior to a determination that section 4(f) requirements are not applicable.
This has been a longstanding Administration practice and the change in
the regulation states existing practice.
Paragraph (d) addresses
the application of section 4(f) to publicly owned lands managed for multiple
use. Typically, multiple use management is applied to the natural resources
on large tracts of land where such resources can serve a variety of needs.
Section 4(f) will apply only to those parts designated or being used for
park, recreation, or wildlife refuge purposes. It should be noted that
the multiple-use concept does not apply within areas which have been designated
as parks, recreation areas, or wildlife and waterfowl refuges. Section
4(f) applies throughout such areas. Historic sites were included in this
paragraph in the NPRM but have been eliminated in the final regulation
because it was felt that this was inconsistent with the approach for identifying
historic sites in paragraph (e). In addition, paragraph (d) has been revised
from the NPRM to state more clearly the procedures for applying section
4(f) to multiple use lands.
Paragraph (f) clarifies
existing FHWA and UMTA practices on the application of section 4(f) to
existing transportation facilities. Examples include highway bridges,
railroad stations, and terminal buildings which are on or eligible for
the National Register Historic Places and proposed for improvement with
Federal funds. Most of the commenters on this paragraph favored the proposed
provision. The NPRM indicated that section 4(f) requirements did not apply
to "work" on transportation facilities under certain circumstances. The
final regulation clarifies those circumstances and substitutes for "work"
the term "restoration, rehabilitation or maintenance" of transportation
facilities. The intention of this change is to better define the key concept
The overriding purpose
of section 4(f) was to protect certain publicly owned lands and historic
sites from road building and other projects, except in extraordinary circumstances.
Toward that end, section 4(f) restricts the approval of projects which
require the "use" of certain publicly owned parks and recreation areas
and any historic sites. The applicability of section 4(f) in the first
instance, therefore, turns on whether a project requires "use" of the
land in question. Courts construing the term "use" under section 4(f)
have focused on whether the proposed project actually takes or significantly
adversely affects the site in question. Accordingly, UMTA and FHWA believe
that if a project involves a facility that is already dedicated to transportation
purposes (so there is no taking), and does not adversely affect the historic
qualities of that facility, then the project does not "use" the facility
within the meaning of section 4(f). If there is no use under section 4(f),
its requirements do not apply. This construction is consistent with the
purpose of section 4(f) and with case law on this issue. Accordingly,
the Administration will evaluate any proposed restoration, rehabilitation
or maintenance activities of transportation facilities that are on or
eligible for the National Register to determine if the criteria of paragraph
(f) are met. If those criteria are met, then the work may proceed without
a section 4(f) evaluation.
One commenter described
paragraph (f) as having alternative criteria. This is incorrect. Both
criteria must be met in order for the paragraph to apply.
Some commenters thought
paragraph (f) confused the responsibilities of UMTA and FHWA under section
4(f) with our responsibilities under section 106 of the National Historic
Preservation Act. The UMTA and FHWA are well aware that section 4(f) and
section 106 have distinct requirements. However, in our experience, there
is overlap between the analyses necessary to meet the requirements of
sections 4(f) and 106. The UMTA and the FHWA's objective is to use a coordinated
approach while retaining the distinct requirements of sections 4(f) and
106. If a project will adversely affect the historic qualities of the
transportation facility, then the project will require the use of the
facility under section 4(f), and the requirements of that provision will
apply, i.e. the Administration will evaluate avoidance alternatives and
measures to minimize harm to the degree necessary to make the determinations
required by paragraph (a). At the same time the Administration will also
comply with the separate, consultation requirements of Section 106.
One commenter suggested
that paragraph (f) should apply to all section 4(f) properties, not just
transportation facilities. However, the rationale for paragraph (f) only
applies to transportation facilities. Therefore, the application of paragraph
(f) remains limited to transportation facilities.
Paragraph (g) deals
with the application of section 4(f) to archeological resources. Whether
or not section 4(f) applies to such resources will depend primarily on
whether the value of the resource can best be realized through a data
recovery program. The degree to which the value of the resource is tied
to a particular site must also be considered. These determinations are
always made in consultation with the State Historic Preservation Officer
(SHPO) and the Advisory Council on Historic Preservation (ACHP).
If it is decided,
after consulting the SHPO and the ACHP, that data recovery is appropriate
and there is no need to preserve the resource in place, section 4(f) will
not apply. However, section 4(f) will apply in case where date recovery
is deemed appropriate, and, in addition, there is an overriding concern
to preserve a major portion of the resource in place, e.g., for the purpose
of public interpretation.
If data recovery is
determined to be inappropriate, the application of section 4(f) will depend
on the reason underlying this determination. If preservation in place
is the paramount concern or if it is determined that there are not adequate
techniques to properly recover the resource, section 4(f) will apply.
However, if a data recovery program is deemed inappropriate because the
site has minimal value in terms of scientific research, section 4(f) would
not apply. This latter situation often arises when a proposed transportation
project would affect a number of sites all of which will reveal the same
information. Where an adequate data recovery program focuses on a representative
site or sites, it may be determined that the remaining sites would yield
no further values. Thus section 4(f) would not apply.
In reaching judgments
on the value of the archeological resource, the desirability and feasibility
of a data recovery plan, and the need for preservation in place, the views
of the SHPO and the ACHP will be given substantial deference. The intent
of this provision is not to unnecessarily narrow the application of section
4(f) when dealing with archeological sites, but, rather, to apply the
protection of section 4(f) to the situations for which they were originally
intended. Frequently, the greatest value of the resource can be realized
through data recovery. In those cases the primary mandate of section 4(f)--to
investigate every feasible and prudent alternative to avoid the site--would
serve no useful purpose.
Paragraph (g) on archeological
properties also retains a provision in the 1980 regulation concerning
the discovery of archeological resources during project construction.
Where section 4(f) applies, the section 4(f) process will be expedited.
Noting that late designation of historically significant properties has
posed problems in the past by invoking section 4(f) protection late in
project development, several commenters proposed cutoff points after which
a property newly designated for the National Register of Historic Places
would not be afforded section 4(f) protection. Paragraph (h) deals with
late designations of parks, recreational areas, and historic sites. With
respect to historic and cultural properties, the regulation establishes
an affirmative responsibility of the Administration and the applicant
to identify historic properties on or eligible for the National Register
of Historic Places. This is to be done early in the NEPA compliance process;
thus, it is not expected that there will be late identification of historic
buildings or structures. However, unidentified archeological resources
do pose problems and paragraph (g) sets forth an expedited approach for
found the regulation unclear as to how properties "on or eligible for
the National Register" would be identified, and questioned whether only
those properties known to the SHPO would be considered. Particularly where
large projects are concerned, FHWA and UMTA, in cooperation with the applicant,
will undertake a survey to identify properties which are potentially eligible
for the National Register. The Administration or the applicant will seek
assistance from the SHPO in this identification effort but a State register
or list of historic properties provided by State and local officials does
not relieve FHWA or UMTA from the need to undertake a comprehensive inventory.
If the SHPO indicates that an adequate inventory of the area has already
been completed, this will normally satisfy Federal requirements.
A sentence has been
added to paragraph (i) in recognition of FHWA's use of programmatic section
4(f) evaluations. In such cases, coordination and documentation are usually
accomplished in two phases. The first phase, the development of the programmatic
section 4(f) evaluation, entails coordination with interested agencies
and organizations, and culminates in the issuance of a document (the programmatic
section 4(f) evaluation) which defines the criteria and procedures for
its use and contains requisite legal findings. The second phase, the use
of the programmatic evaluation on a specific project, involves coordination
with the officials with jurisdiction over the section 4(f) resource in
question and documentation sufficient to demonstrate that the procedures
set up by the programmatic evaluation has been followed. The UMTA currently
has no plans to issue any programmatic section 4(f) evaluations.
Paragraph (n) adopts
a provision set forth at 771.133(m) of the NPRM. It emphasizes that the
decision to prepare a supplemental environmental document must be made
pursuant to 771.130 of this regulation, independent of any decision to
prepare new or separate section 4(f) documentation. The mere change in
legal status of an area to which section 4(f) applies does not require
such a supplemental document if the environmental impacts of the action
on the area or the site have already been evaluated. Similarly, changes
in the action which may generate additional section 4(f) requirements
would not also require supplemental environmental documentation if the
changes were not environmentally significant.
Paragraph (n) has
also been modified to clarify that project activities need not be suspended
and that new project approvals may be granted during the preparation of
a separate section 4(f) evaluation when it is prepared late in project
development. The Administration will hold in abeyance those aspects of
the project that may prejudice the consideration of avoidance alternatives
or measures to minimize harm, but may proceed with other elements of the
International actions. This portion of the regulation has been taken
from DOT Order 5610.1C. The Administration did not receive any comments
on this section. However, certain editorial changes were made to clarify
the application of this section to FHWA and UMTA programs.
On January 31, 1985, the FHWA published at 50 FR 4526, Docket No. 85-12,
a NPRM; amendment and rescission of public involvement regulations. The
purpose of this proposal was to eliminate confusing regulatory duplication
as part of FHWA's overall efforts to institute a streamlined environmental
process in which public involvement is fully integrated with other project
development and environmental procedures.
The FHWA has had two
major regulations which pertain to public involvement. Detailed requirements
for public hearings and location and design approval appear in 23 CFR
Part 790. Beginning in 1974, the FHWA provided an alternative process
for public involvement/public hearings and project location approval.
This alternative process has given the States more flexibility in developing
public involvement programs which are better integrated into the States'
project development processes.
In order to avoid
the confusion and inefficiency of two separate, but duplicative public
involvement regulations, this final rule rescinds 23 CFR Part 790 and
consolidates in 23 CFR 771.111(h) all regulatory requirements for public
involvement in the development of Federal-aid highway projects. To allow
the fewer than 10 States still conducting public hearings under 23 CFR
Part 790 time to adopt new public involvement/public hearing procedures
which satisfy the requirements of 23 CFR 771.111(h), the effective date
of the rescission of Part 790 has been delayed 1 year after the publication
of this notice in the Federal Register.
In addition, individual
public involvement requirements appear at 23 CFR 650.109. The FHWA is
consolidating all public involvement requirements in 23 CFR 771.111(h).
Thus, 650.109 is rescinded as a technical amendment in this final notice.
This will remove the specific requirement by FHWA that significant floodplain
encroachments be identified in public hearing notices. Section 771.111(h)(2)(iv)
has been modified to require that public hearing notices provide information
required to comply with public involvement requirements of other laws,
Executive Orders and regulations. This would cover the requirement for
a public notice of encroachments as required by Executive Order 11988,
"Floodplain Management." In addition, FHWA plans to issue technical guidance
to ensure that notice of encroachment is provided as part of the public
The FHWA believes
that 23 CFR 771.111(h), as amended in this final rule, will result in
better public involvement. It more clearly encourages early identification
of issues, early consultation and continuing coordination with concerned
members of the public, and early resolution of issues.
No major changes are
being made in existing programs, policies, and procedures with respect
to public involvement or design approval. The rescission of 23 CFR Part
790 does not in any manner eliminate the requirements for design approvals
under 23 U.S.C. 106, 109, and 112. Design submissions and approvals to
meet these requirements are carried out according to procedures developed
by the FHWA and the State highway agencies. These procedures have been
tailored to fit the specific project-development processes of each State
Eight comments, all
from State highway agencies, were received on the NPRM. The FHWA has given
the following consideration to these comments.
Three commenters supported
the rescission of 23 CFR Part 790 and the simplification of FHWA's regulations
concerning public involvement.
In the NPRM, the FHWA
proposed linking the conditions triggering a required public hearing to
the classification of projects according to their environmental documentation.
However, two commenters correctly pointed out that one of the proposed
public hearing criteria (Class II and III projects with significant environmental
effects) in 23 CFR 771.111(h)(2) was inconsistent with the definitions
of Class II and Class III projects found in 23 CFR 771.115. The FHWA had
decided to return the wording of the criteria triggering a required public
hearing to the four criteria previously found in 23 CFR 771.111(h). This
will assure that there is no change in the opportunities for a public
hearing as a result of the present rulemaking.
Two SHAs observed
that the criteria for public hearings on Class III projects are less stringent
than their current procedures which require a public hearing for all Class
III projects. This final rule states minimum Federal criteria for public
involvement on Federal-aid highway projects. If, in its public involvement/public
hearing procedures, a State chooses to exceed these Federal requirements,
that is the State's prerogative. Thus, in their public involvement/public
hearing procedures States may require public hearings for all Class III
One western State
highway agency expressed concern that public hearings for Class II and
III projects requiring substantial amounts of right-of-way resulted in
some hearings of little or no public interest, since the projects involved
only one or two landowners. The commenter asked that "substantial" right-of-way
acquisition be replaced by "sensitive" right-of-way acquisition. The FHWA
believes the regulation provides for this situation through the public
hearing opportunity. The State highway agency may advertise an opportunity
for a public hearing. Except to the extent required by 23 U.S.C. 128,
if a project does not arouse public interest, a public hearing need not
It was suggested by
two commenters that requiring submission to the FHWA of a written, verbatim
transcript is unnecessary for some public hearings. The revised regulation
simply retains and repeats the statutory requirements of 23 U.S.C. 128
One commenter expressed
concern that the reevaluation of a project's public involvement activities
not become a separate procedural reevaluation in addition to the substantive
reevaluation of the project's environmental document under 23 CFR 771.129.
The NPRM may not have been clear that the reevaluation of public involvement
is intended to be based on the project reevaluation. The wording of the
regulation has been changed to make this relationship clearer.
In addition, the FHWA
has clarified wording at several points and deleted reference to the inclusion
of other agencies and governmental jurisdictions in public involvement/public
hearing procedures and to other agencies receiving notices of public hearings
(23 CFR 771.111(h)(2) (ii) and (iv)). Coordination with other agencies
and governmental jurisdictions is addressed in 23 CFR 771.111(a), 771.119,
and 771.123 (c) and (g). Written statements from the public to accompany
the public hearing transcript have been more clearly defined in 23 CFR
771.111(h)(2)(vi). Publication in the Federal Register of notices of availability
of new public involvement/public hearing procedures has been eliminated
as not being an effective way to reach residents of specific States. The
FHWA encourages States to use appropriate ways of communicating the provisions
of their public involvement/public hearing procedures to residents. Separate
reference to mitigation measures as an element of the public hearing presentation
has also been deleted (23 CFR 771.111(h)(2)(v)(D)) because the beneficial
impacts of mitigation measures are included in the required discussion
As a result of the
rescission of 23 CFR Part 790 and amendments to 23 CFR 771.111(h), those
few States currently under 23 CFR 790 must submit procedures for approval
under Section 771.111(h); however, these States will at the same time
have the opportunity to gain flexibility to conduct public hearings in
a way which is compatible with the State's own project development process.
The remaining States for which alternate public involvement/public hearing
procedures already have been approved pursuant to 23 CFR 771 are not required
to adopt new public involvement/public hearing procedures.
The public involvement
procedures developed pursuant to this section must be sufficient to meet
the public hearing and other public involvement requirements imposed by
law or regulation on FHWA. Furthermore, in implementing this section,
the FHWA urges the States, including States with procedures already approved
by FHWA, to consider the public involvement needs of other State and Federal
agencies with approval, permitting or consultation responsibilities for
highway actions. The FHWA has engaged in extensive discussion with Federal
agencies having such responsibilities in an effort to find ways to expedite
the highway approval process. One of the most effective ways of accomplishing
this goal is to avoid multiple and other duplicative public hearings or
other public meetings. Section 771.111(h)(2)(I) should be read broadly
to encourage the States to adopt public involvement procedures which accommodate
the needs of as many other involved State and Federal agencies as practicable.
Other Federal agencies
are often involved in reviewing the environmental effects of UMTA and
FHWA actions. It is important that these agencies have an opportunity
to provide feedback on how well they perceive that interagency coordination
is working under the new regulation. To give them this opportunity, FHWA
will sponsor a series of meetings, region by region, to air issues of
mutual concern pertaining to this regulation. FHWA plans to hold these
meetings about a year to a year and a half after this regulation becomes
of FHWA and UMTA have determined that this document does not contain a
major rule as defined by Executive Order 12291. However, it is a significant
rulemaking action under Department of Transportation regulatory policies
and procedures because important departmental policy as implemented by
FHWA and UMTA is involved.
A regulatory evaluation
has been prepared and is available for inspection in the FHWA docket room.
A copy may be obtained from Mr. Frederick Skaer or Mr. A. Joseph Ossi
at the addresses provided under the heading "For Further Information Contact."
The amendments impose
no additional requirements. The anticipated impacts include the elimination
of duplicative requirements and the increase in decisionmaking authority
for the Administration's field offices. By streamlining the project development
process, the amendments should reduce project development time and costs.
Economic savings will be realized through changes which permit more efficient
processing of legally required documentation.
With regard to the
public involvement requirements which were the subject of a separate NPRM
(50 FR 4526), since there will be no substantial change in the approach
FHWA has traditionally employed in dealing with public involvement, it
is anticipated that this action will not have a significant economic impact.
The economic impacts, if any, would result in administrative savings caused
by the elimination of procedural duplication.
The impact of the
other amendments will fall primarily on Federal and State and local governments.
It is possible that application of this rule could have an adverse economic
impact on small governmental jurisdictions that must prepare environmental
documents. However, the potential impacts derive primarily from NEPA and
not from the procedures contained in this rule. For these reasons and
under the criteria of the Regulatory Flexibility Act, FHWA and UMTA hereby
certify that this document will not have a significant economic impact
on a substantial number of small entities.
In accordance with
the Paperwork Reduction Act of 1980 (Pub. L. 96-511), the information
collection requirements contained in this document are being submitted
for approval to the Office of Management and Budget (OMB).
List of Subjects
in 23 CFR 771 and 790 and 49 CFR 622
statements, Grant programs--transportation, Highways and roads, Highway
location and design, Public hearings, Reporting and recordkeeping requirements,
Mass transportation, Historic Preservation, Parks, Public lands--multiple
use, Recreation areas, Wildlife refuges.
(Catalog of Federal
Domestic Assistance Program Numbers: 20.205, Highway Research, Planning
and Construction; 20.500, Urban Mass Transportation Capital Grants; 20.501,
Urban Mass Transportation Capital Improvement Loans; 20.504, Urban Mass
Transportation Technology; 20.505, Urban Mass Transportation Technical
Studies Grants; 20.506, Urban Mass Transportation Demonstration Grants;
20.507, Urban Mass Transportation Capital and Operating Assistance Formula
Grants; 20.509, Public Transportation for Rural and Small Urban Areas;
20.510, Urban Mass Transportation Planning Methods, Research and Development;
23.003, Appalachian Development Highway Systems; 23.008, Appalachian Local
Access Roads. The regulation implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities apply
to this program.)
In consideration of
the foregoing, Chapter VI of Title 49 and Chapter I of Title 23, Code
of Federal Regulations, are amended as set forth below.
Issued on August
Robert E. Farris,
Deputy Federal Highway Administrator.
Alfred A. DelliBovi,
Deputy Administrator, Urban Mass Transportation, Administration.