[Federal Register Volume 83, Number 209 (Monday, October 29, 2018)]
[Rules and Regulations]
[Pages 54480-54508]
[FR Doc No: 2018-23286]

Vol. 83

Monday,

No. 209

October 29, 2018

Part III

 Department of Transportation

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Federal Highway Administration

Federal Railroad Administration

Federal Transit Administration

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23 CFR Parts 771 and 774

49 CFR Parts 264 and 622

 Environmental Impacts and Related Procedures; Final Rule

Federal Register / Vol. 83 , No. 209 / Monday, October 29, 2018 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 771 and 774

Federal Railroad Administration

49 CFR Part 264

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2015-0011]
RIN 2125-AF60; 2130-AC64; 2132-AB26

Environmental Impacts and Related Procedures

AGENCY: Federal Highway Administration (FHWA), Federal Railroad
Administration (FRA), Federal Transit Administration (FTA), Department
of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This final rule amends FHWA and FTA regulations implementing
the National Environmental Policy Act (NEPA) and Section 4(f)
requirements. In addition, through this final rule, FRA is joining
those regulations, making them FRA's NEPA and Section 4(f) implementing
regulations. The FHWA, FRA and FTA (hereafter collectively referred to
as ``the Agencies'') modified the NEPA and Section 4(f) regulations to
reflect various provisions of the Moving Ahead for Progress in the 21st
Century Act (MAP-21) and the Fixing America's Surface Transportation
(FAST) Act. The Agencies have also revised the Environmental Impact and
Related Procedures regulations to reflect various procedural changes,
such as including a new section on combined final environmental impact
statement/record of decision documents, and to improve readability and
reflect current practice. This final rule also amends the Parks,
Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites
regulations to reflect new exceptions created by the FAST Act.

DATES: Effective on November 28, 2018.

FOR FURTHER INFORMATION CONTACT: For the Federal Highway
Administration: Emily Biondi, Office of Project Delivery and
Environmental Review, HEPE,<PHONE_NUMBER>, [email protected], or
Diane Mobley, Office of the Chief Counsel,<PHONE_NUMBER>,
[email protected]. For FRA: Michael Johnsen, Office of Program
Delivery,<PHONE_NUMBER>, [email protected], or Christopher Van
Nostrand, Office of Chief Counsel,<PHONE_NUMBER>,
[email protected]. For FTA: Megan Blum, Office of
Planning and Environment,<PHONE_NUMBER>, [email protected], or Nancy-
Ellen Zusman, Office of Chief Counsel,<PHONE_NUMBER>,
[email protected]. The Agencies are located at 1200 New Jersey
Ave. SE, Washington, DC 20590-0001. Office hours are from 8:00 a.m. to
4:30 p.m. E.T., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    The MAP-21 (Pub. L. 112-141, 126 Stat. 405) and the FAST Act (Pub.
L. 114-94, 129 Stat. 1312) contained new requirements that the Agencies
must meet in complying with NEPA (42 U.S.C. 4321 et seq.) and Section
4(f) (23 U.S.C. 138 and 49 U.S.C. 303). Through this final rule, the
Agencies are revising the regulations that implement NEPA at 23 CFR
part 771--Environmental Impact and Related Procedures, and Section
4(f)[thinsp]at 23 CFR part 774--Parks, Recreation Areas, Wildlife and
Waterfowl Refuges, and Historic Sites. The final rule modifies 23 CFR
part 771 to implement MAP-21 (sections 1302, 1305, 1315, 1319, 1320(d),
20003, 20016, and 20017) and the FAST Act (sections 1304 and 11503).
This final rule also modifies 23 CFR part 774 to reflect MAP-21
(sections 1119(c)(2) and 1122) and the FAST Act (section 1303 and
11502).
    In addition, the final rule establishes 23 CFR parts 771 and 774 as
FRA's NEPA implementing procedures and FRA's Section 4(f) implementing
regulations, respectively. As described in the supplemental notice of
proposed rulemaking, discussed later in this document, the procedures
outlined in these regulations will apply to all environmental reviews
where FRA is the lead agency and initiated after the effective date of
the final rule. The FRA will continue to apply its FRA's Procedures for
Considering Environmental Impacts \1\ (FRA Procedures) to projects
initiated before the effective date of this final rule.
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    \1\ FRA's Procedures for Considering Environmental Impacts, 64
FR 28545 (May 26, 1999), as modified by 78 FR 2713 (Jan. 14, 2013).
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    As appropriate, FRA intends to issue further direction for its
practitioners and project sponsors clarifying what information should
be included in FRA's environmental documents. However, until that time,
FRA will rely on certain sections of FRA Procedures as guidance. In
particular, FRA will continue to look to Section 10, Environmental
Assessment Process, Section 11, Finding of No Significant Impact, and
Section 14, Contents of an Environmental Impact Statement of the FRA
Procedures. Project sponsors should contact FRA headquarters with any
questions about FRA's expectations for the content of environmental
documents.
    Once FRA has completed the environmental review of projects
initiated before the date of this final rule, FRA plans to rescind the
FRA Procedures.
    Lastly, the Agencies are modifying the NEPA implementing procedures
through this final rule to reflect current Agency practice, as well as
to improve readability consistent with Executive Order 13563,
``Improving Regulation and Regulatory Review'' (2011).

Notices of Proposed Rulemaking (MAP-21 and FAST Act)

    On November 20, 2015, at 80 FR 72624, FHWA and FTA published a
notice of proposed rulemaking (NPRM) proposing amendments to 23 CFR
parts 771 and 774 to account for the changes made by MAP-21 and to
reflect various readability changes (MAP-21 NPRM). The FAST Act was
signed on December 4, 2015. Certain FAST Act provisions affected
portions of the regulatory provisions addressed in the MAP-21 NPRM, and
other FAST Act provisions required rulemaking. On September 29, 2017,
at 82 FR 45530, the Agencies proposed additional amendments to reflect
FAST Act provisions in a supplemental notice of proposed rulemaking
(FAST Act SNPRM). The FAST Act SNPRM also proposed to add FRA to parts
771 and 774.
    All substantive comments received on the MAP-21 NPRM and the FAST
Act SNPRM were considered when developing this final rule. The docket
contains a redline of parts 771 and 774 showing all changes.

Summary of Comments and Responses

    The Agencies received 14 comment letters in response to the MAP-21
NPRM. Comment letters were submitted by six State departments of
transportation (State DOTs); three transit agencies; three surface
transportation interest groups (trade associations); one regional
transportation agency; and three citizens.
    In response to the FAST Act SNPRM, the Agencies received 12 comment
letters from the following groups: 1 citizen; 4 trade associations; 1
public transportation agency; 3 resource/regulatory agencies; 2 State
DOTs; and 1 Indian Tribe. The Agencies received 33 other comment
letters that were deemed to be outside of scope of this

rulemaking and therefore are not addressed further.
    The following comment summaries reflect the significant comments
received on both the MAP-21 NPRM and FAST Act SNPRM, the Agencies'
responses to those comments, and any additional minor clarifications
made by the Agencies after further consideration. The summaries are
organized by regulatory section number. Any MAP-21 NPRM or FAST Act
SNPRM proposals not specifically addressed below are being finalized as
previously proposed.

General

    The Agencies made various nonsubstantive changes to their NEPA
implementing regulations. The Agencies changed many instances of
``will'' or ``shall'' to ``must'' unless it did not make sense to do
so. The Agencies also changed all document references to lowercase
(e.g., ``notice of intent,'' ``record of decision,'' ``environmental
impact statement'').

MAP-21 NPRM--General Comments

    Two transit agencies supported the Agencies' efforts to improve and
streamline environmental review regulations. One trade association
supported the Agencies' efforts to ensure the joint environmental
regulations provide guidance to project sponsors without imposing rigid
requirements. One State DOT provided a general statement of support for
the proposed revisions to the NEPA and Section 4(f) regulations. The
Agencies appreciate the support and input provided by all commenters
regarding the MAP-21-related proposals.
    One transit agency sought clarification on how joint lead agencies
are applied to the NEPA process. The transit agency asked if it would
become a joint lead agency when it prepares an environmental assessment
on behalf of FTA and when and how determinations would be made on which
entity would serve as the joint lead agency. They also inquired if
there would be instances when a non-Federal agency applicant would
serve as a joint lead agency. Typically, the applicant (e.g., State
DOTs, public transportation agencies, and local governments) serves as
a joint lead agency with the Federal lead agency. Lead agency
determinations are made early in the environmental review process.
Generally, the applicant will inform the Federal lead agency of its
intent to conduct an environmental review for a proposed project that
it anticipates will require an approval from that Federal lead agency
(i.e., is requesting financial assistance for construction). The
applicant should contact the Federal lead agency prior to making any
project decisions, such as finalizing the project's purpose and need.
The Agencies plan to provide more information regarding joint lead
agencies in a forthcoming update to the ``SAFETEA-LU Environmental
Review Process Final Guidance.''
    One trade association encouraged FHWA and FTA to expedite review of
projects in finalizing the proposed rule. A regional transportation
agency similarly encouraged the Agencies to use the rulemaking in a way
that seeks to maximize opportunities for environmental streamlining.
Five State DOTs also provided a general statement of support for
efforts to streamline the project delivery and environmental review
process. One trade association provided a letter of support for the
proposed MAP-21 updates, specifically stating that ``all of the
revisions . . . will have a positive impact on the project review and
approval process'' and noting support for the combined final
environmental impact statement/record of decision (FEIS/ROD) and errata
sheet approaches and identification of a single lead modal agency. The
Agencies appreciate the commenters' support as we continue to focus on
expedited review of projects.

FAST Act SNPRM--General Comments

    Three trade associations provided comments that generally supported
the proposed rulemaking, and noted that the proposed changes to part
771 are consistent with the FAST Act and MAP-21, and will improve the
efficiency of the NEPA process. The Agencies appreciate the commenters'
support as we continue to focus on expedited review of projects.
    Two trade associations generally supported the proposal to add FRA
to 23 CFR parts 771 and 774. These commenters noted that one common set
of procedures, modified, as appropriate, to reflect the differences in
each Agency's program, will result in a more efficient and timely
review process. One trade association suggested applying part 771 to
railroad projects will facilitate preparing single documents to support
decisions from the operating administrations (OAs). Another trade
association supported FRA's proposal to apply part 771 to its actions,
stating that it will be especially helpful for multimodal projects that
require preparation of a single NEPA document to support multiple
decisions. The Agencies appreciate the commenter's support of FRA's
proposal to join part 771. As described in the FAST Act SNPRM, FRA is
joining the FHWA and FTA NEPA implementing regulations to comply with
section 11503 of the FAST Act (49 U.S.C. 24201). In addition, applying
the same procedures as the two other OAs responsible for surface
transportation will result in a more efficient and predictable review
for project sponsors.
    However, to clarify the timing of this final rule's applicability
to FRA's actions, the Agencies are adding a new Sec.  771.109(a)(4),
which, consistent with the SNPRM preamble, states that FRA will apply
the procedures described in this final rule to actions inititated after
its effective date. The Agencies have also modified Sec.  771.109(a)(3)
to add a reference to FHWA and FTA.
    One trade association commented that the Agencies failed to respond
to the comments it submitted on FRA's June 9, 2016, Federal Register
notice (81 FR 37237) in which FRA requested the public's views on
applying part 771 to railroad projects. The commenter repeated its
suggestion that FRA develop its own regulations, rather than join part
771, because of the unique needs of railroads. The Agencies addressed
the trade association's comment in the ``Applicability of 23 CFR part
771 to FRA Actions'' section of the FAST Act SNPRM. As described in
that section, FRA determined that applying 23 CFR part 771 to railroad
projects is the most efficient way to comply with section 11503 of the
FAST Act. In addition, aligning FRA's procedures with FHWA and FTA will
provide a more consistent and predictable process for potential project
sponsors, especially those that engage in environmental reviews for
more than one mode of surface transportation. As noted in the FAST Act
SNPRM, the Agencies modified part 771 where necessary to reflect the
differences among the three modes of transportation.

FAST Act SNPRM--Cross-Agency CE

    One trade association suggested that DOT OAs should be able to use
another OA's categorical exclusions (CEs). In addition, one State DOT
and one trade association requested that the Agencies issue guidance
regarding the application of CEs for multimodal projects referenced in
title 49 U.S.C. 304. The U.S. Department of Transportation previously
issued guidance on the application of 49 U.S.C. 304; \2\ the Agencies
have not supplemented this guidance. After considering the public

comments regarding the use of another mode's CEs, the Agencies decided
to include a new paragraph at Sec. Sec.  771.116(d), 771.117(h), and
771.118(e) that allows FHWA, FTA, and FRA to use each other's CEs. The
Agencies currently share environmental review process regulations and
their actions are, in many cases, very similar (e.g., approving
construction of new surface transportation projects). As such, the
Agencies have determined it is appropriate to have the option to use
each other's CE lists where the CE approved for an OA is applicable to
the proposed action. This approach would allow for increased
efficiencies while not functionally expanding the type of projects for
which the CE was originally established. This option includes the
opportunity for consultation as necessary to ensure the appropriate
application of the CE. It should be noted that the analysis of unusual
circumstances would still be considered in the application of the CE as
defined in Sec.  771.116(b), Sec.  771.117(b), and Sec.  771.118(b). To
accommodate the new language, Sec.  771.118(e) is now redesignated
Sec.  771.118(f). The FHWA and FRA language is the same as the FTA
language, modified only by changing FTA to FHWA or FRA, as applicable.
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    \2\ Guidance on the Application of Categorical Exclusions for
Multimodal Projects under 49 U.S.C. 304, available at: https://www.transportation.gov/transportation-policy/permittingcenter/section-1310-guidance-application-categorical-exclusions.
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771.105 Policy

    One regional transportation agency suggested revising Sec.
771.105(f) to include a reference to all of the other laws considered
during the NEPA review by adding the phrase ``or required by law.'' The
Agencies decline to include the proposed language because it is the
Agencies' policy, which is consistent with the Council on Environmental
Quality's (CEQ) NEPA implementing regulations, that compliance with all
of the Federal environmental requirements (e.g., laws, regulations, and
Executive Orders) be included in the NEPA review and documentation. See
40 CFR 1500.2(c). As a result, costs incurred by an applicant preparing
an environmental document requested by the Administration would be
eligible for financial assistance.

771.107 Definitions

Administration Action
    One citizen commented that the definition for Administration Action
is too narrow because it does not include acquisition of rolling stock,
and requested that the word construction be replaced with final design
activities, property acquisition, purchase of construction materials or
rolling stock, or project construction. This commenter also stated the
exceptions in Sec.  771.113(d) do not need to be mentioned in this
definition because allowing one of the excepted activities is an
Administration action that is permitted prior to completion of the NEPA
process. In addition, one regional transportation agency proposed
inserting a statement regarding NEPA compliance at the end of the
definition. The Agencies do not intend for the definition of
Administration Action to be read so narrowly as to preclude additional
activities. However, the Agencies do not believe it is necessary to add
the proposed expansive list to the definition itself; those activities
could be Administration actions but the Agencies are opting to present
a non-exclusive list in order to maintain flexibility. The Agencies
also decline to include the recommendation to refer to NEPA compliance
because the activities listed in the paragraph require compliance with
NEPA, and the paragraph would become circular in rationale. The only
substantive changes to this definition that the Agencies are including
are those proposed in the FAST Act SNPRM.
Programmatic Approaches
    Five State DOTs and a trade association suggested revisions to the
programmatic approaches definition that they assert would more closely
match the language in 23 U.S.C. 139(b)(3)(A)(iii), which refers to
programmatic approaches being consistent with NEPA. The Agencies agree
that the definition of programmatic approaches should reflect the
statutory language and have modified the definition accordingly.
Project Sponsor
    A regional transportation agency commented that the project sponsor
definition is vague and requested the Agencies clarify the activities
the project sponsor is authorized to undertake on behalf of the
applicant. The Agencies agree that the definition of project sponsor
should be further clarified to acknowledge that the project sponsor may
undertake some activities for the applicant and are therefore modifying
the definition. However, the Agencies also note that when the project
sponsor is a private institution or firm, Sec.  771.109(c)(6) limits
those activities to providing technical studies and commenting on
environmental review documents.

771.109 Applicability and Responsibilities

    Regarding Sec.  771.109(b)(1), one public commenter asked whether
FHWA/FTA staff can realistically ensure mitigation commitments are
implemented. The FHWA and FTA, in collaboration with project sponsors,
strive to have sufficient staff to ensure mitigation commitments are
implemented and to effectively administer the Federal-aid highway
program and the environmental review process for federally funded
transit projects.
    The Agencies are modifying Sec.  771.109(b)(1) by changing
``applicant'' in the first sentence to ``project sponsor.'' The
Agencies are engaging more frequently on projects advanced by private
entities so it is appropriate to use the broader ``project sponsor'' to
clarify that a private entity seeking funding or another approval from
one of the Agencies may be required to carry out mitigation commitments
identified during the environmental review process.
    One transit agency requested that a timeframe be specified for
participating agencies to provide their comments in Sec.
771.109(c)(7). The commenter suggested that the Agencies specify that
the coordination plan contain timeframes that participating agencies
are obligated to follow, and that failure to adhere to those timeframes
would result in an agency's concurrence. One State DOT similarly
commented that the language in this section does not address assumption
of concurrence for participating agencies that do not concur on the
schedule as part of the coordination plan. This commenter recommended
that the final rule include clarification regarding how the lead
agencies will satisfy their responsibilities under 23 U.S.C. 139(g)
when the circumstance arises that one or more participating agencies do
not concur or respond to the request for concurrence on a schedule for
completion of the environmental review process. Two trade associations
also expressed concern for a lead agency's responsibility in this
scenario and provided recommendations to remedy this concern.
    In response to the requests for clarifications regarding comment
periods and timeframes, the Agencies note that 23 U.S.C. 139(g)(2)(B)
clearly states the lead agency will provide no more than a 60-day
comment period for the draft EIS review and no more than a 30-day
comment period for all other comment periods in the environmental
review process. Lead agencies can rely on the statutory reference to
support

their comment deadlines in their requests for comments and in the
development of the timeframes contained in the coordination plan.
    The Agencies appreciate the comments regarding participating agency
concurrence and how to proceed when there is no response or concurrence
from the participating agency. The Agencies previously determined that
these scenarios should be addressed in guidance.\3\ The Agencies'
existing guidance specifically addresses this, providing that the
Agencies will assume a participating agency's concurrence if the
participating agency fails to provide a written response on the
proposed project schedule within the deadline established by the lead
agency. In the absence of specific statutory authority for the Agencies
to mandate concurrence from a participating agency, the Agencies will
continue to address participating agency concurrence/non-concurrence in
guidance.
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    \3\ Question 12 of the Fixing America's Surface Transportation
Act (FAST): Questions and Answers on the procedural changes to 23
U.S.C. 139 as they relate to Federal Highway Administration (FHWA),
Federal Railroad Administration (FRA), & Federal Transit
Administration (FTA) projects guidance, issued June 2017, available
at: https://www.environment.fhwa.dot.gov/legislation/authorizations/fastact/qa_23USC_changes_1304.aspx.
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    Also within Sec.  771.109(c)(7), one citizen suggested replacing
the phrase ``as appropriate'' because this language may cause agencies
to expect a prompt from a lead agency when feedback is necessary. The
commenter suggested language for rewording that would alert agencies as
to what is available to them for comment. A trade association stated
that language in the section should be stronger because the clear
intent of the amendments to section 139 in the FAST Act was to direct,
or at least encourage, participating agencies to focus their comments
on the areas within the expertise and that language, in some form,
should be included in the actual text of the section. The Agencies
removed ``as appropriate'' to strengthen the paragraph so that it is
clear that participating agencies are expected to comment within their
area of special expertise or jurisdiction. The Agencies are also
deleting ``if any'' from the second sentence to make the sentence more
concise. The Agencies decline to insert the citizen's proposed language
in order to preserve the flexibility in the section. The lead agencies
will specifically identify what input they are seeking (e.g., comment
responses, methodology feedback) from participating agencies.
    Regarding Sec.  771.109(e), specifically FRA's use of a qualified
third-party contractor to prepare an EIS in certain circumstances
(i.e., when FRA is the lead Federal agency, there is no applicant
acting as a joint-lead agency, and the project sponsor is a private
entity), one transit agency sought additional assurance that this
paragraph would not limit a public applicant's choice to prepare an EA
or EIS using its in-house resources because of a precedent set for a
private entity under this paragraph. The third-party contracting
arrangement described in Sec.  771.109(e) would not prohibit a public
agency from preparing environmental documents using in-house expertise
instead of consultant support. As described in the FAST Act SNPRM,
third-party contracting is intended to address situations where a
project sponsor is a private entity, and there is no other applicant
acting as a lead agency. Consistent with FRA practice and the 40 Most
Asked Questions Concerning CEQ's National Environmental Policy Act
memorandum,\4\ third-party contracting is a mechanism allowing FRA to
satisfy its obligations under 40 CFR 1506.5(c). To address the
commenter's concerns, the Agencies are making minor edits to this
section to clarify the third-party contracting process.
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    \4\ 46 FR 18026 (March 23, 1981).
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771.111 Early Coordination, Public Involvement, and Project Development

    In Sec.  771.111(a)(1), five State DOTs and one trade association
recommended revising the second sentence to reflect that there are
multiple ways that early coordination reduces delays and conflicts. In
this same section, one regional transportation agency suggested adding
``reducing costs'' as one of the activities that contribute to
minimizing or eliminating delay. The Agencies accept the proposed
recommendation to the second sentence to recognize the multiple avenues
available to reduce delay and conflict. The Agencies decline to add
``reducing costs'' as a way to minimize or eliminate delay because it
is more an indirect factor.
    For Sec.  771.111(a)(2), five State DOTs and a trade association
requested that Sec.  771.111(a)(2) be clearer regarding the ability to
adopt or rely on planning process products in the environmental review
process. Specifically, the commenters suggested that deleting the
reference to 23 CFR part 450, Appendix A would be contrary to FHWA and
FTA's intent to be more encompassing. One trade association commented
on Sec.  771.111(a)(2)(i), expressing support for the characterization
of the new statutory authority for adopting planning-level decisions in
the NEPA process and agreed with the text of the proposed rule in this
section. That trade association also noted that FRA could, in some
circumstances, rely on planning-level decisions as the basis for
eliminating alternatives. The Agencies accept the suggestion to clarify
and are including the citation to 23 CFR part 450 Appendix A. The
Agencies agree with the need to call attention to Appendix A. With
respect to FRA's use of planning-level decisions in its alternatives
analysis, FRA will rely on such decisions when defining the reasonable
range of alternatives for analysis under NEPA where appropriate and
allowed by law. Applicants seeking to eliminate alternatives based on
past planning processes should contact FRA headquarters for further
direction.
    In Sec.  771.111(a)(3), one regional transportation agency proposed
revising the language to add a reference to other approvals. One State
agency expressed support for the proposed addition of the environmental
checklist to Sec.  771.111(a)(3) as a means to promote consistency
among FHWA, FRA, and FTA and identify potential issues early in the
environmental review process. The Agencies appreciate the support and
accept the regional transportation agency's recommendation with
modifications. It is important that the applicant notify the
Administration as early as possible when a Federal action may be
undertaken so the Administration can inform the applicant of likely
requirements early in the environmental review process, as well as the
class of action.
    One regional transportation agency proposed revising Sec.
771.111(b) to add a requirement to inform the project sponsor or
applicant of the probable class of action to maximize early
coordination. The Agencies decline the recommendation because a
project's class of action is identified in consultation with the
project sponsor, though the Agencies are responsible for the final
decision regarding the class of action. The project initiation process
will be discussed in further detail in the Agencies' forthcoming update
to the ``SAFETEA-LU Environmental Review Process Final Guidance.''
    One State agency commented on Sec.  771.111(d), stating that State
wildlife agencies should be identified as cooperating agencies because
of their regulatory authority and special expertise on wildlife and
wildlife resources. The commenter further noted that a State DOT
authorized to act as a lead agency for NEPA should similarly

recognize wildlife agencies as cooperating agencies during the
environmental review process. The Agencies decline to specifically
identify State wildlife agencies in paragraph (d) as such a reference
would be too narrow and would not capture all the agencies that might
be a cooperating agency. The Agencies revisited the paragraph, however,
and made non-substantive clarification revisions; the changes do not
affect the content or intent of the previously proposed language.
    One trade association expressed concerns with the proposal that FRA
apply the factors listed in Sec.  771.111(f) to its railroad projects.
The commenter is concerned that these factors were developed to apply
to public transportation projects and are ill-suited to projects on
private railroad infrastructure. The commenter further stated that
freight railroad projects are governed by the individual priorities and
needs of each railroad, and are not subject to the State and local
planning provisions that apply to transit and highway projects. With
respect to the commenter's concerns with FRA's application of the
factors described in Sec.  771.111(f) to railroad projects, the
Agencies disagree that these factors cannot be applied to projects on
private railroad infrastructure. While these factors are specific to
part 771, the obligation to appropriately define the scope of an
environmental review is a general NEPA principle. For past projects,
FRA has considered factors similar to Sec.  771.111(f) when defining
the scope of its environmental reviews and has determined that the
Sec.  771.111(f) factors are appropriate for future railroad projects,
regardless of who owns the railroad infrastructure. Although freight
railroad projects are not governed by State and local planning
processes, in most cases, such a railroad project requiring an FRA
action may still be subject to NEPA, and therefore part 771 would apply
(e.g., there is an FRA action where FRA is providing Federal financial
assistance for improvements to the freight railroad infrastructure).
    To improve readability, the Agencies removed the statutory
reference and footnote in Sec.  771.111(h)(2)(viii) and replaced it
with a direct citation to the Agencies Section 4(f) implementing
regulations that specifically address the requirements for public
notice and an opportunity for public review and comment on a Section
4(f) de minimis impact finding. This change does not affect the content
or intent of the previous language; however, it does reduce the number
of footnotes within the current regulation while also linking the
Agencies implementing regulations more clearly. One Federal agency
recommended acknowledging in this footnote that FRA intends to use FHWA
and FTA Section 4(f) policy guidance, as stated in the preamble, to
provide further clarity to its applicants and projects sponsors and
highlight current practice. The Agencies proposed deleting this
outdated footnote in the MAP-21 NPRM because the de minimis guidance is
now included in the Section 4(f) Policy Paper.\5\ The FHWA developed
the Section 4(f) Policy Paper. The FTA applies the Section 4(f) Policy
Paper to public transportation projects \6\ and FRA intends to continue
using the Section 4(f) Policy Paper for its railroad projects. In
addition, FRA is evaluating whether to adopt, in whole or in part, any
of the existing FHWA Programmatic 4(f) Evaluations, described in
footnote 1 to 23 CFR 774.3.
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    \5\ Section 4(f) Policy Paper (Policy Paper), available at:
http://www.environment.fhwa.dot.gov/4f/4fpolicy.pdf
    \6\ FTA Use of the FHWA Section 4(f) Policy Paper memorandum,
Nov. 9, 2012, available at: https://www.transit.dot.gov/regulations-and-guidance/environmental-programs/november-9-2012-memorandum.
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    One trade association expressed concerns with the proposal that FRA
apply the public involvement procedures in Sec.  771.111(i) that apply
to FTA's capital projects. The commenter distinguished between public
transportation systems (i.e., highway and transit projects) and
projects on infrastructure owned by freight railroads. The commenter
stated that railroads would be constrained in their ability to solicit
full public participation because the reason a railroad proposes a
project often involves confidential business information about
customers. The commenter proposed striking the reference to ``FRA
programs'' from this section. The Agencies decline to make the proposed
change. Section 771.111(i) describes the activities Applicants should
engage in as part of the NEPA process. Because Applicants are limited
to Federal, State, local or federally recognized Indian Tribal
governmental units in the definition of Applicant under Sec.  771.107,
a privately owned freight railroad would not be subject to these
requirements. The FRA is always responsible for ensuring the
appropriate level of public involvement during the NEPA process. Where
a freight railroad is a project sponsor, as defined by in Sec.
771.107, FRA will coordinate with the railroad as appropriate,
including on the railroad's participation in the public involvement
process.

771.113 Timing of Administration Activities

    One trade association supported the proposed language with the
understanding that the environmental review process definition is broad
enough to capture early planning activities and activities that could
be covered under a CE. The Agencies interpret this comment as
pertaining to language changes made in Sec.  771.113(a). The Agencies
confirm that the environmental review process covers early scoping
activities and CEs. The environmental review process does not include
early planning activities, but the Agencies encourage such activities
to support future NEPA reviews.
    One regional transportation agency suggested adding identification
of mitigation required by law to the second sentence of Sec.
771.113(a) to recognize mitigation that may be required under other
environmental laws such as the Clean Water Act or the Endangered
Species Act. The Agencies partially accept the commenter's suggestion
and revised the language to include the identification of mitigation
measures. However, the Agencies determined referencing only mitigation
required by law is too narrow.
    For Sec.  771.113(d), one citizen requested another exception to
meet changes to FTA's small capital project grants (i.e., section 5307
and 5309 grant programs) under MAP-21 because projects receiving those
grants may include final design activities that would be conducted
concurrently with the environmental review process. MAP-21 eliminated
the former distinction between preliminary engineering and final design
for these projects. This commenter proposed new exception language to
reflect those grants, but FTA declines to accept the suggestion. How a
particular discretionary funding program is structured is irrelevant to
FTA's prohibition of final design-like activities because they tend to
prejudice the consideration of alternatives. There is an exception to
that rule in 23 U.S.C. 139(f)(4)(D) for taking the preferred
alternative to a higher level of design for purposes of mitigation when
the proper circumstances exist.
    One citizen provided support for the FRA-specific exception added
in Sec.  771.113(d)(4) because of the explanation that it will be not
be applied broadly, but rather, on a case-by-case basis to be efficient
with the resources acquired by FRA. One trade association also
commented on this section, and recommended adding a similar exception
for FHWA and FTA to

make case-by-case determinations allowing activities (including
purchases) that would not improperly influence the outcome of the NEPA
process, such as the acquisition of long-lead time construction
materials or equipment. The FHWA and FTA decline to extend the Sec.
771.113(d)(4) exemption covering limited advanced purchases of railroad
components or materials to their programs. Such purchases are not
allowed under FHWA procurement practices. In certain circumstances, FTA
may allow limited advance purchase of railroad components or materials
where the acquisitions would have independent utility from the overall
action. Because FTA can already allow the action, FTA determined it
does not need to revise regulation text to reflect the practice. The
FRA is making a minor modification to this paragraph for clarity,
however.

771.115 Classes of Actions

    One regional transportation agency noted that programmatic
approaches provide significant cost and time savings, and as such, the
Agencies should encourage and, where appropriate, require them.
Accordingly, the commenter recommended revising Sec.  771.115 to state
that programmatic approaches ``shall be used where practicable for any
class of action.'' The Agencies decline to make the recommended edit
because there is no statutory language that authorizes the mandatory
language. The Agencies encourage the use of programmatic actions, where
appropriate.
    The Agencies are modifying Sec.  771.115(c)(4) by deleting ``FHWA
action,'' Sec.  771.115(c)(5) by deleting ``FTA action,'' and Sec.
771.115(c)(6) by deleting ``FRA action'' because the actions listed in
those sections are appropriately analyzed in an environmental impact
statement regardless of which of the Agencies is conducting the
environmental review.
    For Sec.  771.115(c), one citizen noted that the need for public
involvement remains on certain transit projects that are known upfront
to have no significant environmental impacts but may affect the lives
of people who use transit in ways they need to know. Although a CE does
not include any formal public involvement requirements, in certain
situations, public involvement can accompany a CE, if appropriate.
Alternatively, when public involvement seems prudent due to potential
impacts or environmental controversy, FTA may choose to consider an EA,
particularly if those impacts affect an environmental justice
community. The FTA's Standard Operating Procedure No. 2, Project
Initiation and Determining NEPA Class of Action, further explains FTA's
approach to this topic.\7\
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    \7\ Project Initiation and Determining NEPA Class of Action,
issued Aug. 2016, available at: https://www.transit.dot.gov/regulations-and-guidance/environmental-programs/environmental-standard-operating-procedures.
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    One regional transportation agency suggested striking the phrase
``the appropriate environmental document'' and adding a reference to
FONSIs and EISs in Sec.  771.115(c). The regional transportation agency
suggested this substituted language because the EA is an environmental
document. The Agencies decline the proposed revision based on the
definition of an EA. The Agencies do not want to preclude the use of a
CE in scenarios where there is a change in project scope.

771.116 FRA Categorical Exclusions

    One State DOT and three trade associations expressed general
support for the proposed addition of FRA's newly expanded CE list into
this part as Sec.  771.116. One trade association also supported the
proposed FRA CEs, specifically identifying the proposed CEs covering
geotechnical investigations and property acquisitions as being useful.
The commenter noted that consistency among FHWA, FRA, and FTA will help
streamline the environmental review process.
    The Agencies are proposing a minor modification to Sec.  771.116(c)
to prevent any appearance of a conflict with the limitations on a
project sponsor's participation described in Sec.  771.109(c)(6).
    One trade association opposed the proposed elimination of FRA's CE
(previously in section 4(c)(6) of the FRA Procedures) covering,
``Changes in plans for an FRA action for which an environmental
document has been prepared, where the changes would not alter the
environmental impacts of the action.'' The commenter disagreed that
Sec.  771.129(c) addresses the types of activities previously covered
by the FRA CE and requested that the Agencies add the original CE to
the final rule. The CE at section (4)(c)(6) of the FRA Procedures
served much the same function as the re-evaluation process outlined in
Sec.  771.129. The underlying purpose is to determine whether project
changes or new information require FRA to undertake additional
environmental review. By joining part 771, FRA is aligning its NEPA
practice with FHWA and FTA, including the process for re-evaluating
environmental documents consistent with Sec.  771.129. This consistency
should help streamline environmental reviews and provide certainty for
FRA's project sponsors and applicants. Keeping the CE at section
4(c)(6) of the FRA Procedures and applying Sec.  771.129 could create
unnecessary confusion, undermining FRA's goal of creating consistency
with FHWA and FTA practice.
    One Tribal historic preservation office objected to FRA's CEs
covering activities within railroad rights-of-way. The commenter stated
that the CEs will lead to ``abuse or misuse'' and expressed concerns
that they could result in adverse effects to archaeological sites and
properties of religious and cultural significance. The FRA has
significant experience applying CEs to proposed actions within railroad
rights-of-way and believes that the CEs are appropriately limited to
avoid misapplication. In addition, the decision to apply a CE is one
FRA makes on a project-by-project basis. In making that project-
specific decision, FRA will consider the unusual circumstances listed
in Sec.  771.116(b), which includes Sec.  771.116(b)(3) covering
significant impact to properties protected by Section 4(f) requirements
or Section 106 of the National Historic Preservation Act (Section 106).
This would include a consideration of potential effects to
archaeological sites and properties of religious and cultural
significance to Tribes.
    The Tribal historic preservation office requested that the Agencies
define the terms improvements and upgrade because the terms may include
different types of activities, some of which might result in adverse
effects under the National Historic Preservation Act or significant
impacts under NEPA. The FRA declines to add definitions of the terms
improvements and upgrades in the final rule. In the CE in Sec.
771.116(c)(22), the term improvements is already described. When
developing this CE in 2013, FRA drafted the proposed CEs to clearly
describe each eligible category of action, including necessary spatial,
temporal, or geographic limitations, and provided demonstrative
examples of the types of actions that would typically be covered under
the text of the CE. With respect to the term upgrades, FRA intended for
it to read as part of the repair or replacement activity. In some
cases, the railroad infrastructure damaged by a natural disaster or
catastrophic failure was constructed before the development of modern
safety and design standards. Therefore, FRA determined that allowing
applicants to use new codes and standards when repairing or replacing
damaged infrastructure would

result in no or minimal environmental impacts, and therefore the
activities are appropriate for categorical exclusion. The same is true
for upgrades necessary to address existing conditions. It is reasonable
for an applicant to modify or upgrade infrastructure, as necessary, to
accommodate the circumstances at the time of the repair or replacement
activity occurs and not be constrained to the conditions that existed
when the railroad infrastructure was originally constructed.
    The Tribal historic preservation office noted that five of the CEs
listed in FRA's July 5, 2016, notice identified as ``most frequently
used'' cover activities within existing rights-of-way and existing
railroad facilities, and those that are consistent with existing land
use. Those CEs are found in Sec. Sec.  771.116(c)(9) (covering
maintenance or repair of existing railroad facilities), (c)(12)
(covering minor rail line additions), (c)(17) (covering the
rehabilitation, reconstruction, or replacement of bridges), (c)(21)
(covering the assembly or construction of certain facilities or
stations), and (c)(22) (covering track and track structure maintenance
and improvements). The commenter assumed that these types of activities
were appropriate because they occurred in areas that are previously
disturbed or covered in fill. The commenter indicated that even where
right-of-way is in use, there may still be archaeological or cultural
resources present and identified the CE in Sec.  771.116(c)(21) as
presenting a ``significant threat'' to such resources. The commenter
asked how FRA would identify and document what areas have been
previously disturbed, indicating that in its experience, Federal
agencies are unable or unwilling to document the extent of previous
disturbance. The commenter also requested that FRA consider ground
disturbance in terms of both vertical and horizontal dimensions. The
commenter suggested that vertical disturbance is not always considered,
and that categorically excluded projects involving ground disturbance
should not affect undisturbed areas.
    The FRA establishes CEs based on its past experience with railroad
project construction and operation, and after determining the category
of actions do not individually or cumulatively have a significant
effect on a human environment and an opportunity for public review and
comment. The FRA has a long history applying the CEs identified by the
commenter and have not found them to pose a significant threat to
cultural resources. As discussed above, FRA decides whether to apply a
CE on a project-by-project basis and will do so after considering the
factors listed in Sec.  771.116(b). The FRA makes this decision after
reviewing necessary technical information, which may include results of
site visits or archaeological surveys, or documentation that
illustrates past ground disturbance such as photographs, maps, or
construction or engineering plans from previous construction
activities. In doing so, FRA typically considers the extent of existing
ground disturbance in terms of both vertical and horizontal dimensions.
In addition, as the commenter notes in its comment letter, even where
an action is appropriate for a CE, FRA must still demonstrate
compliance with Section 106, which includes a consideration of
potential impacts to archaeological resources that may be present
beneath railroad rights-of-way.
    The Tribal historic preservation office suggested an action would
not be eligible for a CE if archaeological sites or property of
religious or cultural significance to federally recognized Tribes or
Native Hawaiian organizations was present and as such, agencies would
therefore need to know the exact location of such resources before
determining whether a CE was appropriate. The commenter reminded the
Agencies of the importance of consultation with Native American Tribes
and noted that the failure to do so would risk failing to identify
natural, cultural, and historic resource and underestimating the
significance of those sites. The commenter expressed concerns that the
CEs would diminish Native American Tribes' ability to consult and
requested that FRA continue to consult with Tribes for each action to
determine whether a CE is appropriate. The commenter supported FRA's
practice of evaluating projects on a case-by-case when determining
whether to apply a CE. The commenter also reminded the Agencies that
complying with NEPA does not satisfy obligations under Section 106. The
FRA appreciates the commenter's support of FRA's standard practice. The
FRA agrees that complying with NEPA does not automatically satisfy its
Section 106 responsibilities. Where possible and appropriate, FRA
completes the required Section 106 review, including consultation with
appropriate consulting parties, including Tribes, concurrently with its
review of the proposed action under NEPA. The FRA does not approve the
use of a CE until the Section 106 process is complete.
    The Tribal historic preservation office requested that the final
rule or any future guidance address post-review discoveries, require
project sponsors stop construction work if a potential historic
property is discovered, and notify the lead agency, which would then
notify other appropriate parties (e.g., State Historic Preservation
Officer (SHPO) or Tribal Historic Preservation Officer (THPO)). The FRA
does not believe it is appropriate to address the process for post-
review discoveries as part of this rulemaking. The Advisory Council for
Historic Preservation addresses post-review discoveries in its
regulations at 36 CFR 800.13, which FRA follows. However, the steps the
commenter identifies in its comment letter are consistent with FRA
expectations and practice. For example, for construction projects in
areas of known archaeological sensitivity, it is common for FRA to
require the project sponsor to develop and implement an Unanticipated
Discoveries Plan, which includes stop-work and notification protocols,
and measures to secure the discovery. Such plans are developed in
consultation with the relevant SHPO or THPO and other Section 106
consulting parties, including Tribes.
    The Agencies are modifying Sec.  771.116(c)(7) by changing the term
``action'' to ``activity'' in order to correct an oversight in the
SNPRM. This change makes the CE consistent with the FRA's September,
2017 Categorical Exclusion Substantiation, which the Agencies provided
for public review in the SNPRM docket.
    The Agencies are modifying Sec.  771.116(c)(9) by moving the
limitation on the use of the CE (i.e., ``where the maintenance or
repair activities do not change the existing character of the
facility'') to the beginning of the CE for clarity.

771.117 FHWA Categorical Exclusions and 771.118 FTA Categorical
Exclusions

    One State DOT recommended reorganizing Sec.  771.117, noting that
it has become fragmented and increasingly difficult to implement. In
particular, the commenter highlighted difficulty with projects
requiring if-then analyses of the CEs at Sec.  771.118(c)(26), (27),
and (28), which are conditioned on meeting the requirements in Sec.
771.118(e), but would otherwise fall under Sec.  771.118(d)(13).
Finally, the commenter noted that the CE at Sec.  771.118(c)(23) could
overlap with a number of other Sec.  771.118(c) and (d) CEs. The FHWA
appreciates the comments regarding the organization of Sec.  771.117.
The FHWA determined it will consider this change in future rulemaking
efforts, where appropriate.
    One transit agency, three trade associations, and two State DOTs
suggested the current definition of

``operational right-of-way'' in Sec. Sec.  771.17(c)(22) and
771.118(c)(12) should be more broadly construed. The trade associations
highlighted MAP-21 language stating that the CE should apply to any
project within an existing right-of-way. One trade association opined
that as long as a right-of-way was properly obtained for any purpose,
the CE should apply because the environmental review had already been
conducted on existing right-of-way. The transit agency noted that the
final sentence of the existing definition may at times be unclear. The
transit agency opined that though ``disturbance'' or ``maintenance'' of
certain rights-of-way has not occurred for many years, those rights-of-
way should fall within the operational right-of-way definition. One
State DOT noted that the addition of these terms created an additional
burden to make distinctions for land within a transportation right-of-
way in order to be able to apply the CE.
    Two trade associations recommended the Agencies redraft Sec. Sec.
771.117(c)(22) and 771.118(c)(12) to conform with the definition in
Section 1316 of MAP-21 and noted that the addition of the terms
previously disturbed and maintained for have restricted the
availability of the CE. Several commenters proposed text for the CE
designating all rights-of-way acquired for construction, operation, or
mitigation of an existing transportation facility, including the
features associated with the physical footprint of the transportation
facility, such as the roadway, bridges, interchanges, culverts,
drainage, fixed guideways, mitigation areas, clear zone, traffic
control signage, landscaping, any rest areas with direct access to a
controlled access highway, areas maintained for safety and security of
a transportation facility, parking facilities with direct access to an
existing transportation facility, transit power substations, transit
venting structures, and transit maintenance facilities.
    The Agencies agree with the concern in the comments that the
definition of operational right-of-way in the regulation is narrower
than the definition provided in the statute. As a result, this final
rule revises the definition, in both Sec. Sec.  771.117(c)(22) and
771.118(c)(12), to return to the broad statutory language. The revised
definition continues to include examples of features of the right-of-
way, which the Agencies edited slightly to be mode-neutral and to
recognize that there may be other features that are not enumerated in
the regulation. While the revised regulatory text includes a number of
illustrative examples of features in the operational right-of-way, the
Agencies emphasize the defining sentence of the statute, which is now
incorporated in the regulatory text verbatim: Existing operational
right-of-way ``means all real property interests acquired for the
construction, operation, or mitigation of a project'' (emphasis added).
The Agencies specially underscore the word ``all.'' As a clarifying
example, if title 23 (or certain title 49) funds were authorized for
the acquisition of the real property, then that property was acquired
for an eligible purpose, which was construction, operation, or
mitigation, and thus is part of the operational right-of-way. Real
property interests acquired with title 23 funds, or otherwise conveyed
for title 23 purposes, are eligible for this categorical exclusion as
long as those interests continue to be used in accordance with Sec.
710.403(b). This change expands the applicability of the operational
right-of-way CE from the existing regulation and ensures that the
Agencies interpret it consistent with the statute.

771.119 Environmental Assessments

    One trade association and one public transit agency provided
comments in response to FTA's contractor scope of work language in
Sec. Sec.  771.119(a)(2) and 771.123(d). The trade association noted
that the Agencies' proposed approach in ensuring a contractor's scope
of work not be finalized until the early coordination activities or
scoping is completed is well-intended but is likely to be difficult to
implement for many agencies due to contracting process. According to
the commenter, a transportation agency typically enters into a scope of
work for the overall project, including activities supporting early
coordination, and to separate these stages into separate and
consecutive approvals would require contract amendments or change
orders to contracts that may conflict with professional service
contract standards. The public transit agency provided similar comments
regarding the contractor scope of work proposal. The public
transportation agency interprets the provision to mean that transit
authorities would not be able to finalize a statement of work for NEPA
consultants until FTA has concurred. If FTA does not concur, a transit
authority may have to restart its procurement process, which could
cause significant delay. The FTA acknowledges the comments, and that
the timing of this review could be challenging. The FTA will change
``will'' to ``should'' and otherwise maintain the language as
previously proposed. The purpose of adding language regarding
finalizing a contractor's scope of work once early coordination or
scoping is completed was to place a renewed focus on the accuracy and
efficiency of those activities. This will help ensure the scope of the
project accurately reflects the scope of work required. The Agencies do
not intend or envision this language as a hindrance to contracting
practices. Rather, the timing of this approval will improve decision
making during the EA's environmental review process, resulting in a
sounder environmental document.
    For Sec.  771.119(a)(2), one public transit agency sought
clarification on how to determine whether the scope of work is
finalized. The commenter thought this section of the NPRM would result
in multi-stage procurement for consultant services or more difficult
and less specific consultant scope, which would potentially require
multiple change orders. The Agencies clarify what finalized would
typically mean by providing an example. In an ideal scenario for an FTA
funded project, the project sponsor would contact FTA during the
planning process or prior to project initiation in the environmental
review process. The FTA would then work with the project sponsor to
determine the appropriate project scope. Once the project scope is
determined, a project sponsor would contract with a consultant, if it
chooses, to complete activities required for the EA. The FTA would
expect that the contractor would be procured, and the scope of
activities necessary for the EA would be finalized in a scope of work
by the conclusion of early coordination or scoping for the EA.
    One trade association requested the Agencies affirmatively state
that they do not envision reviewing or approving any consultant's scope
of work. The FTA does not envision approving a contractor's scope of
work but may review the contractor's proposed scope of work for the EA
for compliance with NEPA requirements, consistent with their respective
responsibilities for the environmental review process on federally
funded projects.
    One transit agency sought clarification on Sec.  771.119(a)(3)
regarding FRA's conflict of interest disclosure statement requirement.
Specifically, the commenter inquired as to whether there will be a
template for that disclosure statement provided to applicants, or if
the applicants can use a statement they choose. The commenter also
noted that this requirement could exacerbate what it views as a trend
where contractors focus on engineering work rather than responding to
solicitations for planning work. The FRA plans to develop a

template conflict of interest form, which it would make available to
applicants on a project-by-project basis. While the Agencies understand
that contractors may decide to choose engineering over planning work,
the Agencies cannot control the business decisions of private
companies. In addition, the conflict of interest disclosure requirement
does not necessarily prohibit all post-environmental review work on a
project. Applicants with questions about what activities a contractor
can engage in after executing a NEPA conflict of interest disclosure
should contact FRA or FTA headquarters, as applicable.
    One Federal agency submitted an informal comment regarding Sec.
771.119(b). This commenter noted that while Sec.  771.119(d) requires
the applicant to send notices of availability for EAs to affected parts
of Federal, State, and local governments, Sec.  771.119(b) only
requires applicants to complete early consultation with interested
agencies. The commenter cited examples of projects where the first
opportunity for review was when it received a notice of availability
for an EA, which can create permitting complications in certain
instances. The commenters recommended modifying Sec.  771.119(b) to
mirror Sec.  771.119(d). The Agencies decline to make the recommended
change because Sec.  771.119(b) pertains only to the scope of an EA.
Scope of work for an EA is addressed in Sec.  771.119(a)(2).
    One citizen expressed support for requiring consultation prior to
finalizing any EA scope of work in Sec.  771.119(b) and asked whether
the proposed revision allows the consultant, acting on behalf of the
applicant, to complete the consultation. Consistent with this part, a
consultant may act on behalf of an applicant, but the applicant retains
full responsibility for the consultant's action.
    One regional transportation agency described programmatic
approaches as an important streamlining tool. For that reason, the
commenter suggested revising Sec.  771.119(b), regarding actions that
require an EA, by adding a clear reference to programmatic approaches.
The Agencies decline to make the recommended revision. An EA
encompasses an evaluation on whether significant impacts may result
from the project. As each project may involve different potential
impacts, an EA does not readily lend itself to a programmatic approach.
    One public transit agency provided a comment expressing concern
about the timing of making a document publicly available but did not
provide a citation. The Agencies believe this comment was made in
regard to the proposed changes in Sec.  771.119(c). The commenter
expressed concern that the requirement could convert a parallel
document approval process into a sequential one, which could delay
projects for those agencies that need authorization from FTA as well as
the transit agency board. In the commenter's case, the board approval
process is a public process. The commenter requested (1) the final
regulatory language acknowledge that the board approval process
simultaneously satisfies the prerequisite for public release, and (2)
assurance that the public board approval process can be conducted at
the same time that the FTA approval process is completed. The Agencies
acknowledge that where local approval of an EA is required (e.g., a
board action), the local approval process can occur concurrently with
the Federal agency review and approval (e.g., FTA's review and approval
of an EA before it is posted for public comment). However, consistent
with this section, the EA may not be made available to the public until
after the Federal agency has approved the EA. Because the proposed
changes in Sec.  771.119(c) do not affect that practice, the Agencies
will not further revise the language.
    One citizen proposed that the encouragement in Sec.  771.111(i)(3)
that EAs be posted on the web should be repeated in Sec.  771.119(d).
The Agencies appreciate the comment, and accepted the commenter's
proposed revisions with modifications.
    One citizen proposed clarifying Sec.  771.119(g). The Agencies
acknowledge the comment, but because some of the proposed changes may
affect the text's meaning, they decline the suggested changes.
Additionally, the section is existing regulatory language not affected
by MAP-21 or the FAST Act.

771.121 Findings of No Significant Impact

    For Sec.  771.121(b), a citizen suggested that the encouragement in
Sec.  771.111(i)(4) that FONSIs be posted on the web should be repeated
here. The Agencies added a reference to this section. The language is
consistent with other paragraphs within 23 CFR part 771.

771.123 Draft Environmental Impact Statements

    Regarding Sec.  771.123(b), five State DOTs and a trade association
recommended this section expressly recognize Appendix A to 23 CFR part
450 as a means by which planning process products can be adopted or
relied upon in the environmental review process and add a reference to
Appendix A in this section. The Agencies are accepting the recommended
additions. Similar to the accepted revision in Sec.  771.111(a)(2), the
revised Sec.  771.123(b) will cite to 23 CFR part 450 Appendix A.
    A regional transportation agency proposed a revision to the
language in the final sentence of Sec.  771.123(b), to add the
feasibility of using a programmatic approach as part of the list of
things the scoping process will be used to identify. The Agencies
decline to accept the suggested edit because programmatic approaches
are not identified in statute as a mandatory requirement.
    A Federal agency commenter suggested adding cooperating and
participating agency(s) to the end of the first sentence of Sec.
771.123(c) because it believes the intent of 23 U.S.C. 139(c)(6)(C) is
that the lead agency consider and respond to comments within a
participating or a cooperating agency's special expertise or
jurisdiction. The commenter concluded that this is best achieved by
ensuring EIS preparation describes participating agency involvement.
The Agencies recognize the important role that cooperating and
participating agencies have in developing a draft EIS, but decline to
make the proposed change, as the draft EIS itself is usually drafted by
the lead agency and/or the applicant. Participating and cooperating
agency roles, including providing comments on draft documents, are
described in Sec.  771.109(c)(7).
    A regional transportation agency commented on Sec. Sec.  771.123(c)
and (d) and expressed concern that, when read together, these sections
could prevent environmental consultant procurement by a project sponsor
or applicant to prepare an EIS. The commenters recommended the Agencies
clarify that applicants or project sponsors, aside from the lead
agency, can directly contract with environmental consultants to prepare
a draft EIS. The Agencies agree that applicants and certain project
sponsors can directly contract with environmental consultants to
prepare a draft EIS. However, the Agencies disagree that the language
should be revised. The sections do not prevent applicants who choose to
contract with environmental consultants to prepare a draft EIS from
being considered joint lead agencies. However, it is important to note
that project sponsors that are private institutions or firms cannot be
lead agencies or contract directly with consultants to prepare a draft
EIS.
    A transit agency sought clarification in Sec.  771.123(d) on
whether there will be a uniform conflict of interest statement or a
template of such a statement

provided to applicants. There is not a uniform conflict of interest
statement that applies to all the Agencies. For FTA projects, there is
a conflict of interest statement template for projects requiring an EIS
or an EA. The project sponsor should work with the FTA Regional Office
to execute the appropriate conflict of interest statement for the
project at issue. As discussed in response to the transit agency's
comments on Sec.  771.119(a)(3), FRA plans to develop a conflict of
interest template. The FHWA does not use a template conflict of
interest form. The Agencies are modifying Sec.  771.123(d) to address
FRA's conflict of interest disclosure statements for a contractor
preparing an EIS. This requirement will mirror FRA's requirements for
an EA in Sec.  771.119.
    A Federal agency supported the language in Sec.  771.123(e) that
provides a comment opportunity on a preferred alternative before
issuing a record of decision (ROD) or a combined FEIS/ROD. To provide
additional clarity, the commenter suggested adding the phrase ``of the
preferred alternative'' to the end of this paragraph. The Agencies
agree with the suggestion and accept the proposal.
    A transit agency expressed concern with the language in proposed
Sec.  771.123(e) that recommends agencies provide the public with an
opportunity after issuance of the DEIS to review the impacts, if a
preferred alternative is not identified in the DEIS. The commenter
stated the proposal creates additional procedural and circulation
requirements, and noted the reason for such additional procedural
requirements is unclear because impacts for all alternatives, including
the preferred alternative, are identified in the DEIS. The commenter
suggested keeping the language encouraging identification of a
preferred alternative in the DEIS without reference to additional
public review and circulation periods beyond what is already required.
The Agencies decline to make the suggested change. While the Agencies
encourage identifying the preferred alternative in the DEIS, sometimes
this is not possible. Regardless, the public should have an opportunity
to review an alternative's impacts after its selection as the preferred
alternative and before the lead agency makes its decision. This does
not create additional requirements as the public review must still
occur; consistent with DOT guidance on combined FEIS/ROD documents,\8\
the public review can occur as part of the DEIS review (preferred) or
as a separate step between the DEIS and FEIS.
---------------------------------------------------------------------------

    \8\ Interim Guidance on MAP-21 Section 1319 Accelerated
Decisionmaking in Environmental Reviews, January 14, 2013, available
at: https://www.fhwa.dot.gov/map21/guidance/guideaccdecer.cfm.
---------------------------------------------------------------------------

    A regional transportation agency commented on Sec.  771.123(e) and
suggested clarifying that the opportunity to review impacts of a
preferred alternative, where the DEIS did not identify any preferred
alternative, does not constitute a second comment period on the entire
DEIS. Rather, this comment period should be solely for evaluating the
impacts of the preferred alternative. In addition, the commenter
requested the Agencies limit any comment period to 30 days. Similarly,
in regard to Sec.  771.123(e), a citizen asserted that the second
sentence is wrong and should be deleted. The commenter noted that other
agencies and the public must be given an opportunity to review the
impacts presented in the DEIS without regard to whether the DEIS
identifies the preferred alternative.
    The Agencies are revising Sec.  771.123(e) by adding ``of the
preferred alternative'' to the end of the paragraph to clarify that the
review pertains to the preferred alternative's impacts. In addition,
the Agencies highlight that the statutory default comment period for a
preferred alternative issued post-DEIS is 30 days per 23 U.S.C.
139(g)(2)(B). The Agencies agree that other agencies and the public may
comment on a DEIS regardless of whether it identifies a preferred
alternative, but decline the suggested deletion. To clarify, as
drafted, the paragraph's intent is not to describe the DEIS public
comment period, but rather, the process for commenting on a preferred
alternative identified after publication of the DEIS.
    Regarding Sec.  771.123(f), a transit agency sought clarification
on whether there would be a specified level of detail that corresponds
to some progression beyond 30 percent design and preliminary
engineering, and how that specificity should be determined on a
project. In addition, a regional transportation agency suggested
revising Sec.  771.123(f) to allow for developing a preferred
alternative to a higher level of detail to comply with other legal
requirements including permitting. The Agencies accept the changes to
include the phrase ``with other legal requirements, including
permitting'' into the regulation as recommended by the commenters. To
address concerns regarding developing a preferred alternative to a
higher level of detail, the Agencies will revise Sec.  771.123(f) by
adding a footnote referencing the FHWA preliminary design order (FHWA
Order 6640.1A).
    One citizen commenter suggested that the encouragement to post
draft EISs on the web in Sec.  771.111(i)(3) should be repeated at the
end of Sec.  771.123(h). A regional transportation agency also
recommended that the final regulations recognize opportunities for
electronic document transmission and posting documents on a project
website, particularly when a statute does not expressly require paper
copies. The Agencies accept this recommendation.
    A regional transportation agency recommended revising Sec.
771.123(j) by replacing the descriptor of an action as ``proposed for
FHWA funding'' and instead suggested referring to this as an
Administration action to encompass approvals by the Agencies that are
not federally funded. The Agencies decline the recommended change.
Under 23 U.S.C. 128, FHWA is required to conduct public hearings, and
this specifically applies to State DOTs.

771.124 Final Environmental Impact Statement/Record of Decision
Document

    A regional transportation agency expressed support for the use of
combined FEIS/RODs. It also requested the Agencies provide
clarification regarding the circumstances where it is not practicable
to use a combined FEIS/ROD, including confirmation that lead agencies
can use a combined FEIS/ROD for controversial projects and projects
where an EIS evaluates more than one alternative. The Agencies decline
any change to regulatory text. Previous guidance has been issued on the
use of a combined FEIS/ROD.\9\ Forthcoming, updated ``SAFETEA-LU
Environmental Review Process Final Guidance'' incorporating the FAST
Act changes to 23 U.S.C. 139 will also provide additional guidance on
this matter.
---------------------------------------------------------------------------

    \9\ Interim Guidance on MAP-21 Section 1319 Accelerated
Decisionmaking in Environmental Reviews, January 14, 2013, available
at: https://www.fhwa.dot.gov/map21/guidance/guideaccdecer.cfm.
Question 17 of the FAST Act: Questions and Answers on the procedural
changes to 23 U.S.C. 139 as they relate to FHWA, FRA & FTA projects
guidance, issued June 2017, available at: https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/regulations-and-guidance/environmental-programs/61226/fasts1304qsas.pdf.
---------------------------------------------------------------------------

    In keeping with its comment on Sec.  771.123(c), a Federal agency
commenter similarly recommended revising Sec.  771.124(a)(1) to read
``in cooperation with the applicant (if not a lead agency), cooperating
and participating agency(s).'' The Agencies decline the suggested
change consistent with their response to the same comment under Sec.
771.123(c).

    A citizen noted the combined FEIS/ROD process makes no provision
for pre-decision referrals to CEQ as envisioned by 40 CFR 1504.3 and
proposed language to explicitly direct this. The Agencies decline to
make the proposed change. Referrals to CEQ would be made at the DEIS
stage when the lead agencies anticipate issuing a combined FEIS/ROD.
Any additional wait times are not consistent with statutory language.
    The Agencies are modifying Sec.  771.124(b) to capture the
requirement included in Sec.  771.125(f), but with modifications. The
Agencies are requiring that the combined FEIS/ROD be publicly available
after filing the document with EPA, but unlike the FEIS section, are
not referring to a formal public review because there is no pre-
decision waiting period associated with a combined FEIS/ROD.

771.125 Final Environmental Impact Statements

    For Sec.  771.125(e) and (f), a citizen asserted that the proposed
language regarding publication and public availability of final EISs
retains its pre-internet tone and requirements, and ignores the current
widespread use of the internet and electronic devices for reading
documents. The commenter noted that revisions should encourage use of
the internet and electronic devices to facilitate public and
interagency availability of the document, but should also acknowledge
the need for hardcopy distribution for those without access to the
internet and electronic devices or who prefer hard copies. The same
comment applies to Sec.  771.124 on combined FEIS/RODs and to Sec.
771.127 on RODs. The Agencies agree with the citizen's suggestion and
have included this in Sec. Sec.  771.125(f) and 771.127(a)

771.127 Record of Decision

    A regional transportation agency suggested revising Sec.
771.127(b) to recognize that the Agencies can issue a revised or
amended ROD to approve an alternative that was not identified as the
preferred alternative when it was fully evaluated in the draft EIS or
final EIS. The Agencies recognize that under a combined FEIS/ROD
process, the draft EIS will have identified the preferred alternative
and other alternatives, allowing for adequate public comment. The
Agencies have revised the language in Sec.  771.127(b) to allow for the
selection of an alternative fully evaluated in a draft EIS or combined
FEIS/ROD in addition to the other conditions described in regulation. A
revised or amended ROD can now include the selection of an alternative
fully evaluated in the draft EIS or combined FEIS/ROD circumstances.

771.139 Limitations on Actions

    One State DOT supported the proposal to amend Sec.  771.139 to
reflect the 2-year statute of limitations applicable to railroad
projects approved by the FRA, but recommended that it be revised to be
tied to project type, as indicated in the statute, rather than by
agency alone. A trade association similarly expressed support for
amending part 771 to include the statute of limitations period
applicable to railroad projects approved by FRA, but recommended
editing the rule text to clarify which projects are subject to the 150-
day limitations period and which projects are subject to the 2-year
limitations period.
    Additionally, the trade association opined that the language in 23
U.S.C. 139(l) applies to all Federal agency actions for the highway,
transit or railroad projects, and that this is not clear from the
proposed rule text. The commenter recommended language changes to
clarify the applicability of the limitations on claims and proposed
additional definitions. The Agencies are revising the language for
clarity, but decline to define the terms highway project, transit
project, and railroad project. Section 771.139 implements the
limitations on claims language from 23 U.S.C. 139(l) for approvals or
decisions for an Administration action, which may include decisions and
approvals issued by other agencies relating to the project. These time
periods do not lengthen any shorter time period for seeking judicial
review that otherwise is established by the Federal law under which
judicial review is allowed.

23 CFR Part 774

General

    One trade association supported reducing Section 4(f) requirements
for common post-1945 bridge types and historic railroad and rail
transit lines. The commenter also acknowledged that steps to preserve
portions of historic bridges will be necessary in certain instances,
but the majority of bridge improvements in this class will not affect
anything of historical significance. The Agencies appreciate the
support.

774.11 Applicability

    One public transit agency supported expanding Sec.  774.11(i) to
provide more direction to applicants regarding adequate documentation,
but noted concern that the proposed use of ``government document'' and
``government map'' may invite dispute on what constitutes
``government'' and the extent to which the property-owning
jurisdiction's documents qualify. The commenter noted that even though
it is a government agency, its documents and maps are not commonly
referred to or understood as government maps or government documents,
and that the title ``government'' would be reserved for city or county
governments. The commenter proposed replacing ``government document''
with ``a document of public record'' and replacing ``government map''
with ``a map of public record.'' The Agencies agreed with the proposed
edits and have incorporated changes at Sec.  774.11(i)(1), (i)(1)(i),
(i)(2), (i)(2)(i), and (i)(2)(ii).

Section 774.13 Exceptions

    One trade association and one State DOT provided comments on the
proposed changes to Sec.  774.13. Regarding Sec.  774.13(a)(1), the
trade association supported the language proposed, noting that it
appropriately reflects the statute's objective.
    For Sec.  774.13(a)(2), the trade association commenter supported
the text of the proposed rule regarding improvements. In this same
section, the State DOT commenter suggested that the term ``railroad or
rail transit lines or elements thereof'' be defined in the statute, not
just this rulemaking. The trade association commenter supported the
broad interpretation the Agencies provide in the preamble for this same
term (i.e., including all elements related to the historic or current
transportation function such as railroad or rail transit track,
elevated support structure, rights-of-way, substations, communication
devices and maintenance facilities) but requested that this
interpretation be included in the regulatory text. In response to these
comments, the Agencies have defined the term railroad or rail transit
line elements in Sec.  774.17 by providing a non-exclusive list of such
elements. The Agencies included bridges and tunnels in the definition
because Congress, by excluding certain bridges and tunnels from the
FAST Act section 11502 (23 U.S.C. 138(f)/49 U.S.C. 303(h)) exemption,
clearly intended that other bridges and tunnels should be considered
elements of the railroad or transit line and therefore subject to the
exemption (the Agencies incorporated this exclusion from the exception
in paragraph (a)(2)(ii)). The Agencies also added railway-highway
crossings to the railroad or rail transit line elements definition to
clarify, as discussed in the FAST Act SNPRM preamble, the Agencies'
intent to include projects for the elimination of

hazards at railway-highway crossings--whether at-grade or grade-
separated--within this exception. Such safety projects are funded by
FHWA under 23 U.S.C. 130.
    The State DOT commenter recommended that the stations referred to
in Sec.  774.13(a)(2)(i) be further defined to specify whether it means
the building itself or can include other associated elements and
facilities. The trade association commenter also requested
clarification on the definition of stations, recommending that the term
be defined to include the station building and not the associated
tracks, yards, electrification and communication infrastructure, or
other ancillary facilities. The Agencies are including a definition of
a station in Sec.  774.17. The new definition only applies to Section
4(f) analyses and not for other purposes.
    Both commenters suggested that the Agencies misinterpreted 49
U.S.C. 303(h) in the proposed regulation regarding exceptions detailed
in 49 U.S.C. 303(h)(2). These commenters noted that the proposed
language excludes bridges or tunnels on railroad lines that have been
abandoned or transit lines not in use, over which regular service has
never operated, and that have not been railbanked or otherwise reserved
for the transportation of goods or passengers. The commenters stated
that the statute uses the term ``or'' rather than ``and'' in this
context--implying that the facility is excluded if either condition is
met, whereas the proposed text implies that both conditions need to be
met in order for the facility to be excluded. The Agencies have
determined that the proposed regulatory text accurately reflects the
exceptions language in 49 U.S.C. 303(h)(2). The exceptions in 49 U.S.C.
303(h)(2)(a) applies to stations, or bridges or tunnels located on
railroad lines that have been abandoned or transit lines not in use. In
addition, 49 U.S.C. 303(h)(2)(B) clarifies that the exception in 49
U.S.C. 303(h)(2)(A)(ii) does not apply to all bridges and tunnels,
specifically bridges or tunnels located on railroad or transit lines
over which service has been discontinued, or that have been railbanked
or otherwise reserved for the transportation of goods or passengers.
Therefore, for the exception to apply, the bridge or tunnel must meet
the requirements in 49 U.S.C. 303(h)(2)(A)(ii) and not be the type of
bridge or tunnel detailed in 49 U.S.C. 303(h)(2)(B). Using ``and'' in
Sec.  774.13(a)(2)(ii) captures the clarification in 49 U.S.C.
303(h)(2)(B) that the exception does not apply to all bridges and
tunnels.
    In addition, the State DOT supported expanding the list of
activities in Sec.  774.13(a)(3) to mirror the activities included in
Sec.  774.13(a)(2). For this same section, the public transit commenter
suggested expanding this list to include maintenance, preservation,
rehabilitation, operation, modernization, reconstruction, and
replacement. The trade association commenter also supported changing
the list of activities in this exemption to mirror those in Sec.
774.13(a)(2) because it would provide consistency in the application of
the exemption to different types of historic transportation facilities
and help to avoid confusion. The Agencies agree with the commenters and
revised Sec.  774.13(a)(3) to match the activities found in Sec.
774.13(a)(2).
    In response to the Agencies' request in the FAST Act SNPRM, the
State DOT commented on whether the two conditions specified in this
exemption under Sec.  774.13(a)(3)(i) and (ii) would adequately protect
significant historic transportation facilities in the case of projects
to operate, modernize, reconstruct or replace the transportation
facility. The commenter supported keeping the two existing conditions.
The trade association commenter similarly supported these existing
conditions and noted that the SHPO concurrence in a no adverse effect
finding gives substantial assurance that historic facilities will be
protected. Based on that feedback and upon further consideration, the
Agencies decided to keep the two conditions and have added new text to
allow the Agencies to apply this exemption where an activity is covered
by a Section 106 program alternative. Section 774.13(a)(3)(ii) was also
revised to accommodate Section 106 program alternatives. These proposed
changes create the necessary consistency between Sec.  774.13(a)(3)(i)
and (a)(3)(ii) as SHPOs are not always given a role in determining
whether an activity is subject to a program alternative. Rather, that
determination is appropriately made by the lead agency.
    A citizen objected to a phrase used in Sec. Sec.  774.13(g)(1),
774.15(a), (d) and (f), and 774.17 that the Agencies did not propose
changing (i.e., an activity, feature, or attribute that qualifies the
property for Section 4(f) protection) on grounds that the phrase is
confusing and conflicts with the statute. The commenter did not propose
any alternative language. The Agencies reviewed the phrase (as well as
substantially similar phrasing found in Sec. Sec.  774.3(c) and
774.5(b)) and decline to change it in any of the instances because
identifying the important activities, features, and attributes of
Section 4(f) properties is central to the procedures the Agencies
created to implement the statute's preservation mandate. The phrase has
been in use for many years and, in the Agencies' experience, it
provides clarity, not confusion, to focus on the specific activities,
features, and attributes that are to be protected.

49 CFR Part 264

    The Agencies are adding an additional citation to the list of
authorities and modifying the heading of 49 CFR 264.101. These changes
are administrative in nature and address oversights in the FAST Act
SNPRM. They do not change the substance of the section.

Rulemaking Analyses and Notices

Statutory/Legal Authority for This Rulemaking

    The Agencies derive explicit authority for this rulemaking action
from 49 U.S.C. 322(a). The Secretary delegated this authority to
prescribe regulations in 49 U.S.C. 322(a) to the Agencies'
Administrators under 49 CFR 1.81(a)(3). The Secretary also delegated
authority to the Agencies' Administrators to implement NEPA and Section
4(f), the statutes implemented by this rule, in 49 CFR 1.81(a)(4) and
(a)(5). Moreover, the CEQ regulations that implement NEPA provide at 40
CFR 1507.3 that Federal agencies shall continue to review their
policies and NEPA implementing procedures and revise them as necessary
to ensure full compliance with the purposes and provisions of NEPA.

Rulemaking Analyses and Notices

    The Agencies considered all comments received before the close of
business on the comment closing date indicated above. The comments are
available for examination in the docket (FHWA-2015-0011) at
www.regulations.gov. The Agencies also considered commenters received
after the comment closing date to the extent practicable.

Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), Executive Order
13771 (Reducing Regulation and Controlling Regulatory Costs), and DOT
Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and

equity). The Agencies have determined that this action would not be a
significant regulatory action under section 3(f) of Executive Order
12866 and would not be significant within the meaning of U.S.
Department of Transportation Regulatory Policies and Procedures.
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, reducing costs, harmonizing rules, and promoting
flexibility. This action complies with E.O.s 12866, 13563, and 13771 to
improve regulation.
    The Agencies determined this rule is not an Executive Order 13771
regulatory action because this rule is not significant under Executive
Order 12866. This final rule is considered an Exective Order 13771
deregulatory action. The Agencies expect minor cost savings that cannot
be quantified. The Agencies do not have specific data to assess the
economic impact of this final rule because such data does not exist and
would be difficult to develop. This final rule modifies 23 CFR parts
771 and 774 in order to be consistent with changes introduced by MAP-21
and the FAST Act, to make the regulation more consistent with the FHWA
and FTA practices, and to add FRA to parts 771 and 774. The Agencies
anticipate that the changes in this final rule would enable projects to
move more expeditiously through the Federal environmental review
process. It would reduce the preparation of extraneous environmental
documentation and analysis not needed for compliance with NEPA or
Section 4(f) while still ensuring that projects are built in an
environmentally responsible manner and consistent with Federal law.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), the Agencies have evaluated the effects of this rule
on small entities and anticipate that this action would not have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. The revisions to 23 CFR parts 771 and 774 are
expected to expedite environmental review and thus are anticipated to
be less burdensome than any current impact on small business entities.
    We hereby certify that this regulatory action would not have a
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This final rule will not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $151
million or more in any one year (2 U.S.C. 1532). In addition, the
definition of ``Federal mandate'' in the Unfunded Mandates Reform Act
excludes financial assistance of the type in which State, local, or
Tribal governments have authority to adjust their participation in the
program in accordance with changes made in the program by the Federal
Government.

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to ensure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The Agencies analyzed this action in
accordance with the principles and criteria contained in Executive
Order 13132 and determined that it would not have sufficient federalism
implications to warrant the preparation of a federalism assessment. The
Agencies have also determined that this final rule would not preempt
any State law or State regulation or affect the States' ability to
discharge traditional State governmental functions.

Executive Order 13175 (Tribal Consultation)

    The Agencies have analyzed this action under Executive Order 13175,
and determined that it would not have substantial direct effects on one
or more Indian Tribes; would not impose substantial direct compliance
costs on Indian Tribal governments; and would not preempt Tribal law.
Therefore, a Tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

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

Executive Order 12372 (Intergovernmental Review)

    The DOT's regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities (49
CFR part 17) apply to this program. The Agencies solicited comments on
this issue with the proposed rulemakings but did not receive any
comments pertaining to Executive Order 12372.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The Agencies have determined
that this final rule does not contain collection of information
requirements for the purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

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

Executive Order 12630 (Taking of Private Property)

    The Agencies do not anticipate that this action would affect a
taking of private property or otherwise have taking implications under
Executive Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights.

National Environmental Policy Act

    Agencies are required to adopt implementing procedures for NEPA
that establish specific criteria for, and identification of, three
classes of actions: Those that normally require preparation of an EIS;
those that normally require preparation of an EA; and those that are
categorically

excluded from further NEPA review (40 CFR 1507.3(b)). The CEQ
regulations do not direct agencies to prepare a NEPA analysis or
document before establishing agency procedures (such as this
regulation) that supplement the CEQ regulations for implementing NEPA.
The changes in this rule are part of those agency procedures, and
therefore establishing the proposed changes does not require
preparation of a NEPA analysis or document. Agency NEPA procedures are
generally procedural guidance to assist agencies in the fulfillment of
agency responsibilities under NEPA, but are not the agency's final
determination of what level of NEPA analysis is required for a
particular proposed action. The requirements for establishing agency
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3.

Regulation Identifier Number

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

List of Subjects

23 CFR Part 771

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

23 CFR Part 774

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

49 CFR Part 264

    Environmental impact statements, Environmental review process,
Environmental protection, Grant programs--transportation, Programmatic
approaches, Railroads, Reporting and recordkeeping requirements.

49 CFR Part 622

    Environmental impact statements, Environmental review process,
Grant programs--transportation, Historic preservation, Programmatic
approaches, Public lands, Public transportation, Recreation areas,
Reporting and recordkeeping requirements, Transit.

    Issued in Washington, DC on October 19, 2018, under authority
delegated in 49 CFR 1.85 and 1.91:
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.

Ronald L. Batory,
Administrator, Federal Railroad Administration.

K. Jane Williams,
Acting Administrator, Federal Transit Administration.
    In consideration of the foregoing, the Agencies amend title 23,
Code of Federal Regulations parts 771 and 774, and title 49, Code of
Federal Regulations parts 264 and 622, as follows:

Title 23--Highways

0
1. Revise part 771 to read as follows:

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

Sec.
771.101 Purpose.
771.103 [Reserved]
771.105 Policy.
771.107 Definitions.
771.109 Applicability and responsibilities.
771.111 Early coordination, public involvement, and project
development.
771.113 Timing of Administration activities.
771.115 Classes of actions.
771.116 FRA categorical exclusions.
771.117 FHWA categorical exclusions.
771.118 FTA categorical exclusions.
771.119 Environmental assessments.
771.121 Findings of no significant impact.
771.123 Draft environmental impact statements.
771.124 Final environmental impact statement/record of decision
document.
771.125 Final environmental impact statements.
771.127 Record of decision.
771.129 Re-evaluations.
771.130 Supplemental environmental impact statements.
771.131 Emergency action procedures.
771.133 Compliance with other requirements.
771.137 International actions.
771.139 Limitations on actions.

    Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138,
139, 315, 325, 326, and 327; 49 U.S.C. 303; 49 U.S.C. 24201; 40 CFR
parts 1500-1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119
Stat. 1144, Sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405,
Sections 1315, 1316, 1317, 1318, and 1319; and Public Law 114-94,
129 Stat. 1312, Sections 1304 and 1432.

Sec.  771.101   Purpose.

    This part prescribes the policies and procedures of the Federal
Highway Administration (FHWA), the Federal Railroad Administration
(FRA), and the Federal Transit Administration (FTA) for implementing
the National Environmental Policy Act of 1969 as amended (NEPA), and
supplements the NEPA regulations of the Council on Environmental
Quality (CEQ), 40 CFR parts 1500 through 1508 (CEQ regulations).
Together these regulations set forth all FHWA, FRA, FTA, and U.S.
Department of Transportation (DOT) requirements under NEPA for the
processing of highway, public transportation, and railroad actions.
This part also sets forth procedures to comply with 23 U.S.C. 109(h),
128, 138, 139, 325, 326, and 327; 49 U.S.C. 303; 49 U.S.C. 24201; and
5323(q); Public Law 112-141, 126 Stat. 405, section 1301 as applicable;
and Public Law 114-94, 129 Stat. 1312, section 1304.

Sec.  771.103   [Reserved]

Sec.  771.105   Policy.

    It is the policy of the Administration that:
    (a) To the maximum extent practicable and consistent with Federal
law, all environmental investigations, reviews, and consultations be
coordinated as a single process, and compliance with all applicable
environmental requirements be reflected in the environmental review
document required by this part.\1\
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    \1\ FHWA, FRA, and FTA have supplementary guidance on
environmental documents and procedures for their programs available
on the internet at http://www.fhwa.dot.gov, http://www.fra.dot.gov,
and http://www.fta.dot.gov, or in hardcopy by request.
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    (b) Programmatic approaches be developed for compliance with
environmental requirements (including the requirements found at 23
U.S.C. 139(b)(3)), coordination among agencies and/or the public, or to
otherwise enhance and accelerate project development.
    (c) Alternative courses of action be evaluated and decisions be
made in the best overall public interest based upon a balanced
consideration of the need for safe and efficient transportation; of the
social, economic, and environmental impacts of the proposed
transportation improvement; and of national, State, and local
environmental protection goals.
    (d) Public involvement and a systematic interdisciplinary approach
be essential parts of the development process for proposed actions.
    (e) Measures necessary to mitigate adverse impacts be incorporated
into the action. Measures necessary to mitigate adverse impacts are
eligible for Federal funding when the Administration determines that:

    (1) The impacts for which the mitigation is proposed actually
result from the Administration action; and
    (2) The proposed mitigation represents a reasonable public
expenditure after considering the impacts of the action and the
benefits of the proposed mitigation measures. In making this
determination, the Administration will consider, among other factors,
the extent to which the proposed measures would assist in complying
with a Federal statute, executive order, or Administration regulation
or policy.
    (f) Costs incurred by the applicant for the preparation of
environmental documents requested by the Administration be eligible for
Federal assistance.
    (g) No person, because of handicap, age, race, color, sex, or
national origin, be excluded from participating in, or denied benefits
of, or be subject to discrimination under any Administration program or
procedural activity required by or developed pursuant to this part.

Sec.  771.107   Definitions.

    The definitions contained in the CEQ regulations and in titles 23
and 49 of the United States Code are applicable. In addition, the
following definitions apply to this part.
    Action. A highway, transit, or railroad project proposed for U.S.
DOT funding. It also can include activities such as joint and multiple
use permits, changes in access control, or rulemakings, which may or
may not involve a commitment of Federal funds.
    Administration. The FHWA, FRA, or FTA, whichever is the designated
Federal lead agency for the proposed action. A reference herein to the
Administration means the FHWA, FRA, or FTA, or a State when the State
is functioning as the FHWA, FRA, or FTA in carrying out
responsibilities delegated or assigned to the State in accordance with
23 U.S.C. 325, 326, or 327, or other applicable law. A reference herein
to the FHWA, FRA, or FTA means the State when the State is functioning
as the FHWA, FRA, or FTA respectively in carrying out responsibilities
delegated or assigned to the State in accordance with 23 U.S.C. 325,
326, or 327, or other applicable law. Nothing in this definition alters
the scope of any delegation or assignment made by FHWA, FRA, or FTA.
    Administration action. FHWA, FRA, or FTA approval of the
applicant's request for Federal funds for construction. It also can
include approval of activities, such as joint and multiple use permits,
changes in access control, rulemakings, etc., that may or may not
involve a commitment of Federal funds.
    Applicant. Any Federal, State, local, or federally recognized
Indian Tribal governmental unit that requests funding approval or other
action by the Administration and that the Administration works with to
conduct environmental studies and prepare environmental review
documents. When another Federal agency, or the Administration itself,
is implementing the action, then the lead agencies (as defined in this
section) may assume the responsibilities of the applicant in this part.
If there is no applicant, then the Federal lead agency will assume the
responsibilities of the applicant in this part.
    Environmental studies. The investigations of potential
environmental impacts to determine the environmental process to be
followed and to assist in the preparation of the environmental
document.
    Lead agencies. The Administration and any other agency designated
to serve as a joint lead agency with the Administration under 23 U.S.C.
139(c)(3) or under the CEQ regulations.
    Participating agency. A Federal, State, local, or federally
recognized Indian Tribal governmental unit that may have an interest in
the proposed project and has accepted an invitation to be a
participating agency or, in the case of a Federal agency, has not
declined the invitation in accordance with 23 U.S.C. 139(d)(3).
    Programmatic approaches. An approach that reduces the need for
project-by-project reviews, eliminates repetitive discussion of the
same issue, or focuses on the actual issues ripe for analyses at each
level of review, consistent with NEPA and other applicable law.
    Project sponsor. The Federal, State, local, or federally recognized
Indian Tribal governmental unit, or other entity, including any private
or public-private entity that seeks Federal funding or an
Administration action for a project. Where it is not the applicant, the
project sponsor may conduct some of the activities on the applicant's
behalf.
    Section 4(f). Refers to 49 U.S.C. 303 and 23 U.S.C. 138 (as
implemented by 23 CFR part 774).

Sec.  771.109   Applicability and responsibilities.

    (a)(1) The provisions of this part and the CEQ regulations apply to
actions where the Administration exercises sufficient control to
condition the permit, project, or other approvals. Steps taken by the
applicant that do not require Federal approvals, such as preparation of
a regional transportation plan, are not subject to this part.
    (2) This part does not apply to or alter approvals by the
Administration made prior to November 28, 2018.
    (3) For FHWA and FTA, environmental documents accepted or prepared
after November 28, 2018 must be developed in accordance with this part.
    (4) FRA will apply this part to actions initiated after November
28, 2018.
    (b)(1) The project sponsor, in cooperation with the Administration,
is responsible for implementing those mitigation measures stated as
commitments in the environmental documents prepared pursuant to this
part unless the Administration approves of their deletion or
modification in writing. The FHWA will ensure that this is accomplished
as a part of its stewardship and oversight responsibilities. The FRA
and FTA will ensure implementation of committed mitigation measures
through incorporation by reference in the grant agreement, followed by
reviews of designs and construction inspections.
    (2) When entering into Federal-aid project agreements pursuant to
23 U.S.C. 106, FHWA must ensure that the State highway agency
constructs the project in accordance with and incorporates all
committed environmental impact mitigation measures listed in approved
environmental review documents.
    (c) The following roles and responsibilities apply during the
environmental review process:
    (1) The lead agencies are responsible for managing the
environmental review process and the preparation of the appropriate
environmental review documents.
    (2) Any State or local governmental entity applicant that is or is
expected to be a direct recipient of funds under title 23, U.S. Code or
chapter 53 of title 49, U.S. Code for the action, or is or is expected
to be a direct recipient of financial assistance for which FRA is
responsible (e.g., Subtitle V of Title 49, U.S. Code) must serve as a
joint lead agency with the Administration in accordance with 23 U.S.C.
139, and may prepare environmental review documents if the
Administration furnishes guidance and independently evaluates the
documents.
    (3) The Administration may invite other Federal, State, local, or
federally recognized Indian Tribal governmental units to serve as joint
lead agencies in accordance with the CEQ regulations. If the applicant
is serving as a joint lead

agency under 23 U.S.C. 139(c)(3), then the Administration and the
applicant will decide jointly which other agencies to invite to serve
as joint lead agencies.
    (4) When the applicant seeks an Administration action other than
the approval of funds, the Administration will determine the role of
the applicant in accordance with the CEQ regulations and 23 U.S.C. 139.
    (5) Regardless of its role under paragraphs (c)(2) through (c)(4)
of this section, a public agency that has statewide jurisdiction (for
example, a State highway agency or a State department of
transportation) or a local unit of government acting through a
statewide agency, that meets the requirements of section 102(2)(D) of
NEPA, may prepare the EIS and other environmental review documents with
the Administration furnishing guidance, participating in the
preparation, and independently evaluating the document. All FHWA
applicants qualify under this paragraph.
    (6) Subject to paragraph (e) of this section, the role of a project
sponsor that is a private institution or firm is limited to providing
technical studies and commenting on environmental review documents.
    (7) A participating agency must provide input during the times
specified in the coordination plan under 23 U.S.C. 139(g) and within
the agency's special expertise or jurisdiction. Participating agencies
provide comments and concurrence on the schedule within the
coordination plan.
    (d) When entering into Federal-aid project agreements pursuant to
23 U.S.C. 106, the State highway agency must ensure that the project is
constructed in accordance with and incorporates all committed
environmental impact mitigation measures listed in approved
environmental review documents unless the State requests and receives
written FHWA approval to modify or delete such mitigation features.
    (e) When FRA is the lead Federal agency, the project sponsor is a
private entity, and there is no applicant acting as a joint-lead
agency, FRA and the project sponsor may agree to use a qualified third-
party contractor to prepare an EIS. Under this arrangement, a project
sponsor retains a contractor to assist FRA in conducting the
environmental review. FRA selects, oversees, and directs the
preparation of the EIS and retains ultimate control over the
contractor's work. To enter into a third-party contract, FRA, the
project sponsor, and the contractor will enter into a memorandum of
understanding (MOU) that outlines at a minimum the conditions and
procedures to be followed in carrying out the MOU and the
responsibilities of the parties to the MOU. FRA may require use of a
third-party contractor for preparation of an EA at its discretion.

Sec.  771.111   Early coordination, public involvement, and project
development.

    (a)(1) Early coordination with appropriate agencies and the public
aids in determining the type of environmental review documents an
action requires, the scope of the document, the level of analysis, and
related environmental requirements. These activities contribute to
reducing or eliminating delay, duplicative processes, and conflict,
including by incorporating planning outcomes that have been reviewed by
agencies and Indian Tribal partners in project development.
    (2)(i) The information and results produced by or in support of the
transportation planning process may be incorporated into environmental
review documents in accordance with 40 CFR parts 1500 through 1508, 23
CFR part 450, 23 CFR part 450 Appendix A, or 23 U.S.C. 139(f), 168, or
169, as applicable.
    (ii) The planning process described in paragraph (a)(2)(i) of this
section may include mitigation actions consistent with a programmatic
mitigation plan developed pursuant to 23 U.S.C. 169 or from a
programmatic mitigation plan developed outside of that framework.
    (3) Applicants intending to apply for funds or request
Administration action should notify the Administration at the time that
a project concept is identified. When requested, the Administration
will advise the applicant, insofar as possible, of the probable class
of action (see Sec.  771.115) and related environmental laws and
requirements and of the need for specific studies and findings that
would normally be developed during the environmental review process. A
lead agency, in consultation with participating agencies, must develop
an environmental checklist, as appropriate, to assist in resource and
agency identification.
    (b)(1) The Administration will identify the probable class of
action as soon as sufficient information is available to identify the
probable impacts of the action.
    (2) For projects to be evaluated with an EIS, the Administration
must respond in writing to a project sponsor's formal project
notification within 45 days of receipt.
    (c) When the FHWA, FRA, or FTA are jointly involved in the
development of an action, or when the FHWA, FRA, or FTA act as a joint
lead agency with another Federal agency, a mutually acceptable process
will be established on a case-by-case basis. A project sponsor may
request the Secretary to designate the lead Federal agency when project
elements fall within the expertise of multiple U.S. DOT agencies.
    (d) During early coordination, the lead agencies may invite other
agencies that may have an interest in the action to participate. The
lead agencies must, however, invite such agencies if the action is
subject to the project development procedures in 23 U.S.C. 139 within
45 days from publication of the notice of intent.\2\ Any such agencies
with special expertise concerning the action may also be invited to
become cooperating agencies. Any such agencies with jurisdiction by law
concerning the action must be invited to become cooperating agencies.
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    \2\ The Administration has guidance on 23 U.S.C. 139 available
at http://www.fhwa.dot.gov or in hard copy upon request.
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    (e) Other States and Federal land management entities that may be
significantly affected by the action or by any of the alternatives must
be notified early and their views solicited by the applicant in
cooperation with the Administration. The Administration will provide
direction to the applicant on how to approach any significant
unresolved issues as early as possible during the environmental review
process.
    (f) Any action evaluated under NEPA as a categorical exclusion
(CE), environmental assessment (EA), or environmental impact statement
(EIS) must:
    (1) Connect logical termini and be of sufficient length to address
environmental matters on a broad scope;
    (2) Have independent utility or independent significance, i.e., be
usable and be a reasonable expenditure even if no additional
transportation improvements in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably
foreseeable transportation improvements.
    (g) For major transportation actions, the tiering of EISs as
discussed in the CEQ regulation (40 CFR 1502.20) may be appropriate.
The first tier EIS would focus on broad issues such as general
location, mode choice, and areawide air quality and land use
implications of the major alternatives. The second tier would address
site-specific details on project impacts, costs, and mitigation
measures.
    (h) For the Federal-aid highway program:

    (1) Each State must have procedures approved by the FHWA to carry
out a public involvement/public hearing program pursuant to 23 U.S.C.
128 and 139 and CEQ regulations.
    (2) State public involvement/public hearing procedures must provide
for:
    (i) Coordination of public involvement activities and public
hearings with the entire NEPA process;
    (ii) Early and continuing opportunities during project development
for the public to be involved in the identification of social,
economic, and environmental impacts, as well as impacts associated with
relocation of individuals, groups, or institutions;
    (iii) One or more public hearings or the opportunity for hearing(s)
to be held by the State highway agency at a convenient time and place
for any Federal-aid project that requires significant amounts of right-
of-way, substantially changes the layout or functions of connecting
roadways or of the facility being improved, has a substantial adverse
impact on abutting property, otherwise has a significant social,
economic, environmental or other effect, or for which the FHWA
determines that a public hearing is in the public interest;
    (iv) Reasonable notice to the public of either a public hearing or
the opportunity for a public hearing. Such notice will indicate the
availability of explanatory information. The notice must also provide
information required to comply with public involvement requirements of
other laws, executive orders, and regulations;
    (v) Explanation at the public hearing of the following information,
as appropriate:
    (A) The project's purpose, need, and consistency with the goals and
objectives of any local urban planning,
    (B) The project's alternatives and major design features,
    (C) The social, economic, environmental, and other impacts of the
project,
    (D) The relocation assistance program and the right-of-way
acquisition process, and
    (E) The State highway agency's procedures for receiving both oral
and written statements from the public;
    (vi) Submission to the FHWA of a transcript of each public hearing
and a certification that a required hearing or hearing opportunity was
offered. The transcript will be accompanied by copies of all written
statements from the public, both submitted at the public hearing or
during an announced period after the public hearing;
    (vii) An opportunity for public involvement in defining the purpose
and need and the range of alternatives, for any action subject to the
project development procedures in 23 U.S.C. 139; and
    (viii) Public notice and an opportunity for public review and
comment on a Section 4(f) de minimis impact finding, in accordance with
23 CFR 774.5(b)(2)(i).
    (i) Applicants for FRA programs or the FTA capital assistance
program:
    (1) Achieve public participation on proposed actions through
activities that engage the public, including public hearings, town
meetings, and charrettes, and seek input from the public through
scoping for the environmental review process. Project milestones may be
announced to the public using electronic or paper media (e.g.,
newsletters, note cards, or emails) pursuant to 40 CFR 1506.6. For
actions requiring EISs, an early opportunity for public involvement in
defining the purpose and need for the action and the range of
alternatives must be provided, and a public hearing will be held during
the circulation period of the draft EIS.
    (2) May participate in early scoping as long as enough project
information is known so the public and other agencies can participate
effectively. Early scoping constitutes initiation of NEPA scoping while
local planning efforts to aid in establishing the purpose and need and
in evaluating alternatives and impacts are underway. Notice of early
scoping must be made to the public and other agencies. If early scoping
is the start of the NEPA process, the early scoping notice must include
language to that effect. After development of the proposed action at
the conclusion of early scoping, FRA or FTA will publish the notice of
intent if it is determined at that time that the proposed action
requires an EIS. The notice of intent will establish a 30-day period
for comments on the purpose and need, alternatives, and the scope of
the NEPA analysis.
    (3) Are encouraged to post and distribute materials related to the
environmental review process, including, environmental documents (e.g.,
EAs and EISs), environmental studies (e.g., technical reports), public
meeting announcements, and meeting minutes, through publicly-accessible
electronic means, including project websites. Applicants should keep
these materials available to the public electronically until the
project is constructed and open for operations.
    (4) Should post all findings of no significant impact (FONSIs),
combined final environmental impact statements (final EISs)/records of
decision (RODs), and RODs on a project website until the project is
constructed and open for operation.
    (j) Information on the FHWA environmental process may be obtained
from: FHWA Director, Office of Project Development and Environmental
Review, Federal Highway Administration, Washington, DC 20590, or
www.fhwa.dot.gov. Information on the FRA environmental process may be
obtained from: FRA Chief, Environmental and Corridor Planning Division,
Office of Program Delivery, Federal Railroad Administration,
Washington, DC 20590, or www.fra.dot.gov. Information on the FTA
environmental process may be obtained from: FTA Director, Office of
Environmental Programs, Federal Transit Administration, Washington, DC
20590 or www.fta.dot.gov.

Sec.  771.113   Timing of Administration activities.

    (a) The lead agencies, in cooperation with the applicant and
project sponsor, as appropriate, will perform the work necessary to
complete the environmental review process. This work includes drafting
environmental documents and completing environmental studies, related
engineering studies, agency coordination, public involvement, and
identification of mitigation measures. Except as otherwise provided in
law or in paragraph (d) of this section, final design activities,
property acquisition, purchase of construction materials or rolling
stock, or project construction must not proceed until the following
have been completed:
    (1)(i) The Administration has classified the action as a CE;
    (ii) The Administration has issued a FONSI; or
    (iii) The Administration has issued a combined final EIS/ROD or a
final EIS and ROD;
    (2) For actions proposed for FHWA funding, the Administration has
received and accepted the certifications and any required public
hearing transcripts required by 23 U.S.C. 128;
    (3) For activities proposed for FHWA funding, the programming
requirements of 23 CFR part 450, subpart B, and 23 CFR part 630,
subpart A, have been met.