[Federal Register Volume 82, Number 188 (Friday, September 29, 2017)]
[Proposed Rules]
[Pages 45530-45547]
[FR Doc No: 2017-20565]

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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]
FHWA RIN 2125-AF60
FRA RIN 2130-AC64
FTA RIN 2132-AB26

Environmental Impacts and Related Procedures

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

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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SUMMARY: This SNPRM provides interested parties the opportunity to
comment on the proposed revisions to the FHWA and FTA joint regulations
implementing the National Environmental Policy Act (NEPA) and Section
4(f) requirements. The FHWA, FRA, and FTA (hereafter referred to as
``the Agencies'') propose these revisions after the enactment of the
Fixing America's Surface Transportation (FAST) Act, which requires a
rulemaking to address programmatic approaches in environmental reviews
and makes other changes to existing law that should be addressed in a
rulemaking. In this SNPRM the Agencies also propose to add FRA to
regulations governing environmental impact and related procedures and
the parks, recreation areas, wildlife and waterfowl refuges, and
historic site, making those regulations FRA's NEPA implementing
procedures and FRA's Section 4(f) implementing regulations,
respectively. This SNPRM proposes to modify the FHWA/FTA Environmental
Impact and Related Procedures due to changes to the environmental
review process made by the FAST Act and to modify the Parks, Recreation
Areas, Wildlife and Waterfowl Refuges, and Historic Sites regulations
due to new exceptions created by the FAST Act. Lastly, the Agencies
request comments regarding the current FHWA and FTA definition of
``existing operational right-of-way'' in their respective categorical
exclusion sections. The Agencies seek comments on the proposals in this
document.

DATES: The Agencies must receive comments on or before November 28,
2017.

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

FOR FURTHER INFORMATION CONTACT: For FHWA: Neel Vanikar, Office of
Project Delivery and Environmental Review, HEPE,<PHONE_NUMBER>,
<EMAIL_ADDRESS>or Diane Mobley, Office of the Chief Counsel,
(202) 366-1366<EMAIL_ADDRESS>For FRA: Michael Johnsen, Office
of Program Delivery,<PHONE_NUMBER><EMAIL_ADDRESS>or
Christopher Van Nostrand, Office of Chief Counsel,<PHONE_NUMBER>,
<EMAIL_ADDRESS>For FTA: Megan Blum, Office of
Planning and Environment,<PHONE_NUMBER><EMAIL_ADDRESS>or Helen
Serassio, Office of Chief Counsel,<PHONE_NUMBER>,
<EMAIL_ADDRESS>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

    On December 4, 2015, President Obama signed into law the FAST Act
(Pub. L. 114-94, 129 Stat. 1312). The FAST Act contains new
requirements the Agencies must follow to comply with NEPA (42 U.S.C.
4321 et seq.) and Section 4(f) (23 U.S.C. 138 and 49 U.S.C. 303). This
SNPRM includes proposed changes to 23 CFR part 771 to address the
following issues: (1) Section 1304(k) which requires a rulemaking
regarding programmatic approaches; (2) certain amendments to 23 U.S.C.
139 made by section 1304; and (3) the section 11503 requirement that
the Secretary of Transportation (Secretary) apply, to the greatest
extent feasible, the project development procedures described in 23
U.S.C. 139 to railroad projects requiring the Secretary's approval
under NEPA (49 U.S.C. 24201(a)). With respect to 23 CFR part 774, the
SNPRM includes proposed changes to the Agencies' Section 4(f)
procedures to reflect the two new Section 4(f) exceptions created in
the FAST Act (sections 1303 and 11502). In addition, FRA also proposes
joining 23 CFR part 774.

General Discussion of the Proposals

    The following sections of the FAST Act affect 23 CFR parts 771 and
774, and are addressed in this SNPRM:
     Section 1303 amends Section 4(f) to create an exception
for certain common post-1945 concrete or steel bridges and culverts;
     Section 1304 revises certain elements of the Agencies'
environmental review process at 23 U.S.C. 139;
     Section 1304(k) replaces a rulemaking requirement created
by the Moving Ahead for Progress in the 21st Century Act (MAP-21),
Public Law 112-141, 126 Stat. 405, with a new rulemaking requirement to
implement the programmatic approaches provision in 23 U.S.C. 139(b)(3);
     Section 11502 amends Section 4(f) to create a railroad or
rail transit line exception when certain conditions are met; and,
     Section 11503 requires the Secretary apply, to the
greatest extent feasible, the project development procedures described
in 23 U.S.C. 139 to railroad projects requiring the Secretary's
approval under NEPA.

SNPRM Rationale

    This SNPRM supplements the notice of proposed rulemaking (NPRM)
FHWA and FTA issued on November 20, 2015 (November 2015 NPRM) (80 FR
72624, Docket No. FHWA-2015-0011). The November 2015 NPRM proposed
changes to the FHWA/FTA Environmental Impact and Related Procedures
regulations (23 CFR part 771) and the Parks, Recreation Areas, Wildlife
and Waterfowl Refuges, and Historic Site regulations (23 CFR part 774).
Primarily, FHWA and FTA issued the November 2015 NPRM to address
certain changes to the environmental review process imposed by MAP-21.
    The comment period for the November 2015 NPRM closed on January 19,
2016. The FHWA and FTA received 14 comment letters for consideration.
During the November 2015 NPRM comment period, President Obama signed
the FAST Act into law. The FHWA and FTA did not pursue a final rule
following the November 2015 NPRM because certain FAST Act provisions
affected portions of the regulatory provisions addressed in the
November 2015 NPRM and because certain other FAST Act provisions are
appropriately addressed in a rulemaking. The Agencies now propose
addressing those changes to parts 771 and 774 in this SNPRM.
    The Agencies used the proposals in the November 2015 NPRM as the
baseline for this SNPRM (e.g., section/paragraph organization and
language). All substantive comments received on the November 2015 NPRM
and this SNPRM, as well as the appropriate responses to both sets of
comments, will be addressed in a final rule should a final rule be
issued. The docket contains a redline that captures both the November
2015 NPRM and this SNPRM's changes.
    This SNPRM contains proposals satisfying the rulemaking
requirements in FAST Act sections 1304(k) and 11503, and addresses
changes to 23 U.S.C. 139 (Efficient Environmental Reviews for Project
Decisionmaking), 23 U.S.C. 138 (Preservation of Parklands), and 49
U.S.C. 303 (Policy on Lands, Wildlife and Waterfowl Refuges, and
Historic Sites) FAST Act sections 1304, 1303, and 11502 made,
respectively. The SNPRM also proposes to add FRA to parts 771 and 774.

Applicability of 23 CFR Part 771 to FRA Actions

    Section 11503 of the FAST Act requires the Secretary, among other
things, to apply, to the greatest extent feasible, the project
development procedures described in 23 U.S.C. 139 (Efficient
Environmental Reviews for Project Decisionmaking) to railroad projects
requiring the Secretary's approval under NEPA. The Secretary must
incorporate into FRA regulations and procedures for railroad projects
aspects of the 23 U.S.C. 139 project development procedures, or
portions thereof, that increase the efficiency of the review of
railroad projects consistent with section 11503.
    The FRA has determined that applying 23 CFR part 771 to railroad
actions is the most efficient way to comply with section 11503. By
joining part 771, FRA would not need to develop entirely new NEPA
regulations for railroads projects. On June 9, 2016, FRA published a
notice in the Federal Register requesting public comment on the
application of part 771 to FRA's

railroad projects (81 FR 37237, June 9, 2016). The comment period ended
on July 11, 2016. The FRA received one comment on this notice from the
Association of American Railroads (AAR). The commenter suggested that
FRA develop its own regulations rather than adopt 23 CFR part 771
because of perceived difficulties applying certain requirements to
freight railroad projects on privately owned infrastructure. While many
of the FHWA and FTA actions are sponsored by government entities (e.g.,
State DOTs), the regulations can be applied to the actions on privately
owned railroad infrastructure. This SNPRM proposes certain
modifications to 23 CFR part 771 to accommodate railroad projects.
    Section 11503 of the FAST Act also required FRA to survey its use
of NEPA categorical exclusions (CE) in railroad projects since 2005. On
June 2, 2016, FRA published a notice in the Federal Register providing
the public with a review of FRA's survey, requesting comments on two
new classes of actions that might be appropriate for categorical
exclusion, and requesting suggestions for additional categories of
activities appropriate for exclusion (81 FR 35437, June 2, 2016) (June
Notice). The comment period ended on July 5, 2016. The FRA received
comments from the AAR, the Michigan Department of Transportation and
the Oregon Department of Transportation which are addressed in the
section-by-section analysis below. This SNPRM satisfies the FAST Act
section 11503 requirement that the Secretary publish an NPRM proposing
new and existing CEs for railroad projects requiring the Secretary's
approval.
    The FRA proposes to join the 23 CFR part 774 regulations
implementing Section 4(f). FRA determined joining 23 CFR part 774 would
further align its environmental review processes with the FHWA and FTA
processes. This would create consistency implementing Section 4(f) and
provide clarity to FRA's applicants and project sponsors. Additionally,
it eliminates FRA's need to update the Section 4(f) sections of its
existing Environmental Procedures; if FRA only joined 23 CFR part 771,
the part 771 regulations would supersede most, if not all, of FRA's
Environmental Procedures, and FRA would still need to revise the
Section 4(f) sections. In addition, FRA currently follows 23 CFR part
774 and associated FHWA and FTA guidance as guidance when it applies
Section 4(f) to railroad projects and officially joining the
regulations would not significantly change FRA's current practice. In
the future, DOT may consider proposing a Department-wide rule or
updating Department-wide guidance on the implementation of Section
4(f).
    This SNPRM would also amend part 264 in title 49 to add a cross
reference 23 CFR part 771 and 23 CFR part 774, and the Agencies propose
changing the heading to ``Environmental Impact and Related
Procedures.''

Section-by-Section Discussion of the Proposals

NEPA Regulation Changes (Part 771)

General
    There are two general proposals to note. First, the Agencies
propose to list the Agencies in alphabetical order (e.g., ``FHWA, FRA,
and FTA'') whenever it is necessary to list all three agencies. This
change would apply throughout the regulation. Second, the Agencies
propose ``final EIS'' as the acronym for ``final environmental impact
statement'' (instead of ``FEIS'') throughout 23 CFR part 771 to provide
consistency.
Section 771.101 Purpose
    The Agencies propose to modify this section to add the appropriate
references to FRA and railroad projects, which would allow FRA to use
part 771 as its procedures for implementing NEPA. The Agencies also
propose updating the list of references in the last sentence to remove
MAP-21 section 1319 because it was codified at 23 U.S.C. 139(n) and 49
U.S.C. 304a, and to add FAST Act section 1304.
Section 771.105 Policy
    Through the November 2015 NPRM, FHWA and FTA proposed several
revisions to 23 CFR part 771 to satisfy the programmatic approaches
rulemaking requirement created by MAP-21, section 1305. To satisfy the
programmatic approaches rulemaking requirement created by FAST Act,
section 1304(k), the Agencies propose revising paragraph (b),
originally proposed in the November 2015 NPRM, by including the
parenthetical ``(including the requirements found at 23 U.S.C.
139(b))'' after the words ``environmental requirements.''
    The Agencies also propose a non-substantive change to paragraph
(e)(2) in the first sentence to correct a typo (``fo'' to ``of'').
    The Agencies are proposing to revise Sec.  771.105 to directly
address 23 U.S.C. 139(d)(8)-Single NEPA Document, which requires the
Agencies develop a single NEPA document that can be used for all
Federal permits and reviews for a project to the maximum extent
practicable and consistent with Federal law. The Agencies propose
revising paragraph (a) by replacing ``to the fullest extent possible''
with ``to the maximum extent practicable and consistent with Federal
law'' to reflect 23 U.S.C. 139(d)(8) language. The policy statement
applies broadly to the environmental review process and specifically
encourages all environmental reviews and requirements (including
permits) be addressed in a single process and environmental review
document.
Section 771.107 Definitions
    The Agencies propose to modify three definitions to add FRA's
railroad projects. Specifically, the Agencies propose adding
``railroad'' projects, ``FRA,'' and ``rulemakings'' to the list of
examples of major Federal actions in the definition of ``Action,'' and
the Agencies propose adding ``FRA'' in all locations where FHWA and FTA
are listed in the definition of ``Administration.'' The Agencies also
propose similar changes to the definition of ``Administration action''
by adding ``FRA'' approval, and ``rulemakings'' to the list of
activities needing Agency approval.
Section 771.109 Applicability and Responsibilities
    In paragraph (a)(1), the Agencies propose to clarify that the part
771 regulations and the Council on Environmental Quality (CEQ)
regulations (40 CFR parts 1500-1508) apply where one of the Agencies
exercises sufficient control to condition an approval, not just a
``permit or project approval,'' by including ``other'' prior to
``approvals'' (i.e., ``. . . condition the permit, project, or other
approvals''). The Agencies are proposing this change to accommodate
FRA's potential actions related to its safety programs.
    The Agencies are not proposing to modify paragraph (a)(3) to
specifically address when the regulations would apply to FRA projects.
The FRA would apply these regulations to projects initiated (through
publishing a notice of intent for an environmental impact statement or
determining to initiate an environmental assessment) after the Agencies
issue a final rule, if one is issued. Until such time, FRA will
continue to follow its Procedures for Considering Environmental Impacts
(Environmental Procedures) (64 FR 28545, May 26, 1999, updated 78 FR
2713, Jan. 14, 2013). However, as required by the FAST Act, FRA will
also follow the project development procedures described in 23 U.S.C.
139 for its railroad projects initiated after December 4, 2015 unless
the project is subject to a funding arrangement under

title 49, U.S.C. the Secretary approved before December 4, 2015.
    In paragraph (b)(1), the Agencies propose to add ``FRA'' as an
agency that will assure implementation of committed mitigation measures
by including the mitigation measures by reference in the grant
agreement, followed by reviews of design and construction inspections.
    In paragraph (c)(2), FRA added reference to FRA's financial
assistance programs.
    In paragraph (c)(7), the Agencies propose several revisions to
reflect changes to participating agencies' responsibilities under
section 1304 of the FAST Act, codified at 23 U.S.C. 139(c)(6), (d)(9),
(f)(4), and (g)(1). Section 139(c)(6)(C) requires the lead agency
consider and respond to comments within a participating agency's
special expertise or jurisdiction. Similarly, section 139(d)(9)
requires participating agencies to provide comments, responses,
studies, or methodologies within the agency's special expertise or
jurisdiction, and to use the process to address its environmental
issues of concern. Section 139(f)(4)(A)(ii) mandates participating
agencies limit their agency's comments to the subject matter areas
within their agency's special expertise or jurisdiction, to the maximum
extent practicable and consistent with Federal law. Lastly, section
139(g)(1)(B) now requires the coordination plan that the lead agency
develops under 23 U.S.C. 139 include a schedule, which must receive
participating agency concurrence.
    In response to these changes to 23 U.S.C. 139, the Agencies propose
adding that participating agencies are responsible for providing input
within their agency's special expertise or jurisdiction and providing
concurrence on the schedule that now must be included in the
coordination plan. The Agencies propose paragraph (c)(7) reads as set
out in the regulatory text below. The Agencies interpret the proposed
language ``providing input, as appropriate'' to include the requirement
at 23 U.S.C. 139(d)(9) that participating agencies' input include
``comments, responses, studies, or methodologies on those areas within
the special expertise or jurisdiction of the agency'' and, therefore,
did not specifically list those activities in this paragraph or
elsewhere in the regulation. The Agencies determined that listing those
four specific activities is unnecessarily limiting and could lead a
project sponsor to believe an unlisted method of providing input is not
permitted.
    The Agencies further propose adding a new paragraph (e), which
describes FRA's requirements for third party contracting where the
project sponsor is a private entity and there is no qualified applicant
as defined in Sec.  771.107. In that situation, FRA proposes to require
third party contracting for all EISs and may also require them for EAs.
When using a third party contract, the project sponsor retains a
contractor to assist FRA in conducting the environmental review, and
the contractor works under the direction, supervision and control of
FRA. A third party contracting structure would be memorialized in a
memorandum of understanding among FRA, the contractor, and the project
sponsor. This paragraph is intended to ensure compliance with FRA's
responsibilities for EIS preparation in the CEQ implementing
regulations at 40 CFR 1506.5(c).
    The Agencies propose an associated change to the beginning of
paragraph (b)(6), which addresses the role of a project sponsor that is
a private entity. The proposed change reads, ``Subject to paragraph
(e).''
Section 771.111 Early Coordination, Public Involvement, and Project
Development
    The Agencies propose several additions to Sec.  771.111 to reflect
various FAST Act changes to 23 U.S.C. 139. To reflect planning and
environmental tools not previously listed, the Agencies propose adding
references to 23 U.S.C. 139(f) (Purpose and need; alternatives
analysis) and 23 U.S.C. 169 (Development of programmatic mitigation
plans) to the list in paragraph (a)(2)(i). Section 139(f)(4)(E) of
title 23 U.S.C. establishes a new process for reducing duplication
between the planning and NEPA evaluation of alternatives processes by
eliminating planning alternatives from detailed consideration under
NEPA when certain conditions are met. Section 169 of title 23 U.S.C.
includes an optional framework for creating programmatic mitigation
plans during the transportation planning process, and gives substantial
weight to programmatic mitigation plans in the environmental review
process. Note that a recent final rule (81 FR 34049, May 27, 2016;
Docket No. FHWA-2013-0037) modified 23 CFR part 450, which implements
23 U.S.C. 168 and 169. Please visit the docket for more information
regarding specific changes to the planning and environmental linkages
processes. The Agencies also added ``as applicable'' to paragraph
(a)(2)(i) to acknowledge the three Agencies may have different
processes or requirements authorized by statute among themselves. For
example, 23 U.S.C. 139 applies to FRA, but 23 U.S.C. 168 does not.
    The Agencies propose adding the requirement that a lead agency, in
consultation with participating agencies, will develop an environmental
checklist, as appropriate, to assist in resource and agency
identification to the end of paragraph (a)(3) to reflect the new
environmental checklist language found at 23 U.S.C. 139(e)(5). The
Agencies interpret the statutory language in 23 U.S.C. 139(e)(5)(A)
(``The lead agency for a project . . . shall develop, as appropriate, a
checklist to help project sponsors identify potential natural,
cultural, and historic resources . . . .'') as providing flexibility
through the phrase ``as appropriate.'' The Agencies are, therefore,
proposing ``will develop an environmental checklist, as appropriate''
to reflect the statutory flexibility that allows lead agencies,
including project sponsors, to develop environmental checklists when
needed to facilitate the environmental process.
    The Agencies propose renumbering existing paragraph (b) as (b)(1)
and adding a new paragraph (b)(2). Proposed paragraph (b)(2) would
state that for projects to be evaluated with an EIS, the Administration
will respond in writing to a project sponsor's formal project
notification within 45 days of receipt. This to respond to the new
``review of application'' paragraph at 23 U.S.C. 139(e)(3), which
builds off the existing project notification process established under
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy of Users (SAFETEA-LU). The Agencies identify EISs in the
proposed language because the procedures outlined in 23 U.S.C. 139 are
``applicable to all projects for which an [EIS] is prepared under
[NEPA]'' (23 U.S.C. 139(b)(1)). The Agencies may apply the section 139
procedures to other classes of projects on a case-by-case basis but
section 139 is only required for EISs, and the Agencies want to
underscore that fact.
    In paragraph (c), the Agencies propose adding that a project
sponsor may request the Secretary to designate the lead Federal agency
when project elements fall within multiple DOT agencies' expertise.
This addition responds to 23 U.S.C. 139(e)(4), but adds clarity
regarding the provision's applicability. In most instances, the
Agencies expect project sponsors will continue to contact FHWA, FRA, or
FTA to determine the Federal lead agency, as is current practice.
    The Agencies propose building on the existing language regarding
cooperating

and participating agency invitations in paragraph (d) by adding timing
language for those agencies' identification. The Agencies would require
that the lead agencies identify participating agencies within 45 days
from publication of the notice of intent at the end of paragraph (d) to
address the new requirement to identify participating agencies within
45 days at 23 U.S.C. 139(d)(2).
    The Agencies propose adding a reference to FRA programs to
paragraph (i) and its subordinate paragraphs, clarifying that FRA is
adopting the approach that applicants in FTA's capital assistance
programs use to engage the public. The Agencies also propose to add a
reference to ``the scope of the NEPA analysis'' as an issue that the
public or agencies might comment on during the 30-day period following
the publication of a Notice of Intent.
    Additionally, the Agencies propose replacing ``NEPA documents''
with ``environmental documents'' in paragraph (i)(3) to be consistent
with 40 CFR 1508.10. CEQ uses the term ``environmental document'' to
refer to EIS, EA, finding of no significant impact, and record of
decision documents broadly, which also is the Agencies' intent in
paragraph (i)(3).
    The Agencies propose to add FRA's contact information to paragraph
(j).
Section 771.113 Timing of Administration Activities
    In paragraph (a), the Agencies propose to add the word
``environmental'' before the word ``studies'' for consistency with the
term's use in the regulation.
    The Agencies propose to add paragraph (d)(4), which would create an
FRA-specific exemption to the paragraph (a)(1) prohibition on
proceeding with final design activities, property acquisition, purchase
of construction materials or rolling stock, or project construction
until the NEPA process is complete. The proposal is consistent with FRA
policy and allows FRA to makes certain case-by-case exceptions for the
purchase of railroad components or materials that can be used in other
projects or resold. This is not a blanket exemption, and FRA would make
case-by-case determinations based on the information available at the
time to ensure such activities would not improperly influence the
outcome of the NEPA process.
Section 771.115 Classes of Actions
    In paragraph (a)(4), the Agencies propose to change ``highway
facility'' to ``transportation right-of-way'' for consistency in this
section and across modes. This change is not meant to change the
meaning of the term.
    The Agencies propose to add paragraph (a)(6), which would provide
examples of FRA actions it finds normally require an EIS. Under this
proposal, FRA would typically prepare an EIS for ``new construction of
major railroad lines or facilities (e.g., terminal passenger stations,
freight transfer yards, or railroad equipment maintenance facilities)
that will not be located within an existing transportation right-of-
way.'' These examples are generally consistent with FRA's existing NEPA
procedures and also the examples of FHWA and FTA actions normally
requiring an EIS.
    In paragraph (b), the Agencies propose to add a reference to FRA's
CEs in section 771.116.
Section 771.116 FRA Categorical Exclusions
    The Agencies propose to add a new Sec.  771.116. Although the
Agencies collectively propose to add this section, the development of
the proposed CEs for each Agency is based on each Agency's particular
mission and programs, unique experiences, and existing lists of CEs. As
a result, this section focuses on FRA's proposed CEs. One commenter
suggests that DOT have one uniform set of CEs and identified specific
FHWA CEs that FRA should adopt for its railroad projects. Typically,
DOT operating administrations (OA) identify categories of actions
appropriate for categorical exclusion based on the individual OA's
experience. The FRA has identified and substantiated this proposed list
of CEs based on its experience with these categories of actions.
However, since many of the FHWA, FRA, and FTA actions are often
similar, the actions may be covered in each OA's CE list but with
appropriate differences reflecting the experiences of the OAs.
Additionally, 49 U.S.C. 304 authorizes the use by one OA of another
OA's CE in certain multimodal situations.
    Paragraph (a) of this section proposes to adopt the current text of
Sec. Sec.  771.117(a) and 771.118(a), as modified to apply to FRA. This
proposed paragraph would define a CE as an action meeting the
definition in the CEQ regulation and, based on FRA's past experience,
does not involve significant environmental impacts. Paragraph (b) of
this section proposes to describe the circumstances FRA would use to
determine whether an activity, normally meeting the requirements of a
CE, would require further environmental study. The FRA's proposal to
adopt the FTA and FHWA list of unusual circumstances addresses a
comment recommending FRA redraft its existing list of circumstances
requiring further environmental study (Environmental Procedures,
section 4(e)). Proposed paragraph (b) clearly articulates the
circumstances requiring further environmental study for FRA's railroad
projects and provides consistency with FHWA and FTA.
    One commenter suggests FRA identify a subset of CEs that require
documentation and those that do not need ``further NEPA approvals by
FRA.'' The FRA understands this comment as a suggestion to adopt a
``(c)'' and ``(d)'' list similar to those used by FHWA and FTA. The FRA
considered this approach but does not propose to distinguish between
different classes of CEs and will instead continue to use one
comprehensive list and decide the appropriate standards for
documentation on a project-by-project basis.
    Paragraph (c) of this section proposes to include the activities
for categorical exclusion. The proposed list of activities in paragraph
(c) is based on the CEs identified in FRA's Environmental Procedures,
including those CEs added in 2013. Since 2013, FRA has conducted an
internal review of its CEs to ensure their continued appropriate use
and usefulness. Based on FRA's internal review and the comments
received on the June Notice, paragraph (c) of this section proposes to
make minor edits to several of the existing CEs; to eliminate
unnecessary or duplicative CEs; and to add two new CEs.
    Support for FRA's proposals is included in a CE substantiation
document. The CE substantiation document relies on internal FRA expert
opinion, FRA's experience managing projects and other activities
related to railroad safety and infrastructure development, and FRA's
review of similar CEs used by other DOT OAs and other Federal agencies
(often referred to as ``comparative benchmarking''). For additional
information, including a description of the CEs FRA proposes to
eliminate, please see the CE substantiation document, which FRA has
included in the docket for public review. The following discussion
focuses on the proposed new CEs and those FRA proposes to modify.
    Paragraph (c) proposes no changes to the following CEs (as compared
to FRA's current Procedures for Considering Environmental Impacts):
Paragraph (c)(2) covering personnel actions; paragraph (c)(6) covering
rulemakings issued under section 17 of the Noise Control Act of 1972;
paragraph (c)(8) covering hearings, meetings, or public affairs
activities;

paragraph (c)(16) covering alterations to existing facilities,
locomotives, stations, and rail cars to make them accessible for the
elderly and persons with disabilities; paragraph (c)(19) covering the
installation, repair and replacement of equipment and small structures
designed to promote transportation safety, security, accessibility,
communication or operational efficiency; paragraph (c)(22) covering the
assembly or construction of facilities or stations; and paragraph
(c)(23) covering track and track structure maintenance and
improvements.
    Proposed paragraph (c)(1) provides a CE addressing administrative
procurements, contracts for personal services, and training. Proposed
paragraph (c)(3) modifies an existing FRA CE by adding ``training'' to
the list of covered activities.
    Proposed paragraph (c)(3) provides a CE addressing planning or
design activities that do not commit FRA to a particular course of
action affecting the environment. Proposed paragraph (c)(3) is a
modification of an existing FRA CE as it eliminates the limitation that
the planning or design activity must be funded through FRA's financial
assistance or FRA's own procurement process.
    Proposed paragraph (c)(4) provides a CE addressing localized
geotechnical and other investigations that provide information for
preliminary design and for environmental analyses and permitting
purposes, such as: Drilling test bores for soil sampling; archeological
investigations for archeology resources assessment or similar survey;
and wetland surveys. This proposed CE covers investigations and surveys
that inform environmental analyses and preliminary engineering for rail
projects. These activities include geotechnical, geophysical, and other
subsurface investigations, pedestrian and ground disturbing
archaeological surveys and testing to determine eligibility for the
National Register of Historic Places, and wetland surveys for purposes
of wetland delineation or jurisdictional determinations. In FRA's
experience, the impacts of these activities are generally minor in
nature and any impacts are localized to the investigation or survey
sites. This CE is consistent with existing FHWA and FTA CEs at 23 CFR
771.117(c)(24) and 23 CFR 771.118(c)(16), respectively. FRA identified
these activities as potentially appropriate for categorical exclusion
in the June Notice. The FRA received one comment supporting this CE.
    Proposed paragraph (c)(5) provides a CE addressing internal orders,
policies, and procedures that FRA is not required to publish in the
Federal Register under the Administrative Procedure Act, 5 U.S.C.
552(a)(1). This proposed CE is similar to an existing FRA CE. However,
proposed paragraph (c)(5) would add ``policies'' to the list of
activities covered by the CE.
    Proposed paragraph (c)(7) provides a CE addressing the provision of
financial assistance for a project where the financial assistance would
fund a completed activity. For example, FRA may be involved in projects
where an applicant requests financial assistance to refinance a loan.
In that case, the agency's decision is merely a financial transaction
that would not itself lead to any environmental impacts. The FRA
identified these activities as potentially being appropriate for
categorical exclusion in the June Notice. FRA received one comment
supporting this CE.
    Proposed paragraph (c)(9) provides a CE addressing maintenance or
repair of existing railroad equipment. The proposed CE is a modified
version of an existing FRA CE. Specifically, paragraph (c)(9) would
move the phrase ``existing railroad facilities'' to the beginning of
the CE. This clarifies that the list including equipment; track and
bridge structures; and electrification, communication, signaling or
security facilities are non-exclusive examples of existing railroad
facilities. Paragraph (c)(9) would also clarify the scope of the CE to
include ``repair'' activities. In FRA's experience, the scope of the
potential impacts resulting from repair activities is generally similar
to those that might occur during routine maintenance. The primary
difference between the two is that unlike maintenance, repair
activities may not occur on a regular or reoccurring basis. Paragraph
(c)(9) would also remove the definition of maintenance because it is
unnecessary. One commenter suggests modifying paragraph (c)(9) to add a
reference to right-of-way in the definition of ``maintenance.''
However, this modification is unnecessary since FRA's proposal would
eliminate the definition of maintenance.
    Proposed paragraph (c)(10) provides a CE addressing the emergency
repair or replacement of an essential rail facility damaged by a
natural disaster or catastrophic failure. This proposed CE is similar
to an existing FRA CE; however, proposed paragraph (c)(10) would
clarify that repairs following an emergency are also covered by the CE;
define repair and replacement to include reconstruction, restoration,
or retrofitting; clarify that when conducting the repair and
replacement, the rail facility may be upgraded as necessary to meet
existing codes and standards; remove the unnecessary limitation that
the CE apply only to ``temporary'' replacements; and remove the
reference to the immediacy of the repairs in relation to the disaster
or catastrophic failure. One commenter suggests that FRA adopt the
``emergency repairs'' CE applied by FHWA and FTA at 23 CFR
771.117(c)(9) and 23 CFR 771.118(c)(11), respectively. In this SNPRM,
FRA proposes modifications to its existing emergency repair CE,
including the incorporation of relevant language and concepts from 23
CFR 771.117(c)(9) and 23 CFR 771.118(c)(11).
    Proposed paragraph (c)(11) provides a CE addressing operating
assistance to a railroad to continue existing service or an increase in
service to meet demand. This proposed CE is similar to an existing FRA
CE. The existing CE applies if the assistance will not result in a
change in the impact or effect to the environment whereas proposed
paragraph (c)(11) would modify the CE to focus on whether the project
would result in significant changes to traffic density. The FRA finds
focusing on change in traffic density for a CE covering operating
assistance is more appropriate than the current imprecise limitation
that the assistance will not result in a change in the effect on the
environment.
    One commenter suggests revising proposed paragraph (c)(12) by
removing the word ``minor'' before ``rail line additions,'' adding the
phrase ``or within existing right-of-way,'' and modifying the CE's
limitations by adding the requirement that the project can be
constructed in less than 6 months and substantially within the existing
right-of-way, and will not have additional significant environmental
impacts beyond the existing rail yard or existing right-of-way. The FRA
will not adopt the suggested change to remove ``minor'' because FRA
cannot substantiate such an expansion of the CE. However, FRA proposes
to adopt the suggested phrase ``or within existing right-of-way'' since
it is consistent with the current scope of the CE and appropriately
limits construction to within the existing right-of-way. The FRA also
proposes to keep its existing limitations (i.e., ``[the] additions are
not inconsistent with existing zoning, do not involve acquisition of a
significant amount of right-of-way, and do not significantly alter the
traffic density characteristics of the existing rail lines or rail
facilities.'') which are consistent with FRA's experience with railroad
projects rather than adopt the

commenter's suggestion which unnecessarily narrows the applicability of
the CE.
    Proposed paragraph (c)(13) provides a CE addressing the
acquisition, transfer and right to use real property and certain
railroad infrastructure. The proposed CE would modify an existing
version of this FRA CE by eliminating the reference to ``existing
railroad equipment'' because acquisition of equipment would be covered
by the CE proposed in paragraph (c)(18). Proposed paragraph (c)(13)
also would allow the acquisition of ``real property.'' The FRA proposes
this addition because acquisition alone does not impact the
environment. In addition, the proposed CE would move the phrase
``existing railroad facilities'' to the beginning of the CE to clarify
that the list including equipment; track and bridge structures; and
electrification, communication, signaling or security facilities are
non-exclusive examples of existing railroad facilities. This is also
consistent with the proposed structure of paragraph (c)(9). The
proposed paragraph (c)(13) would also add ``transfer'' to the list of
covered activities to accommodate potential FRA involvement in the
transfer of real property or existing railroad facilities. This is
consistent with an FTA CE at 23 CFR 771.118(c)(6).
    Proposed paragraph (c)(14) provides a CE addressing research,
development, and demonstration activities. This proposed CE is similar
to an existing FRA CE. However, proposed paragraph (c)(14) would expand
the scope of the existing CE to include research, development, and
demonstration activities beyond the development of signal,
communication, or train control systems. While in the past this CE was
almost exclusively used for the testing of train control systems,
including Positive Train Control, FRA funds other research,
development, and demonstration activities similar in scope, but
involving different rail systems or infrastructure, are also
appropriate for categorical exclusion.
    Proposed paragraph (c)(15) provides a CE addressing the
promulgation of rules, the issuance of policy statements, the waiver of
modification of existing regulatory requirements, and discretionary
approvals. This proposed CE is similar to an existing FRA CE; however,
proposed paragraph (c)(15) would add the waiver or modification of
existing regulatory requirements and discretionary approvals, and
remove the limitation that these activities be related to railroad
safety. This proposed CE would retain the existing limitation for
increases in environmental impacts and would not be used if FRA finds
the activity would significantly increase emissions of air or water
pollutants or noise. However, FRA proposes striking the clause in the
existing CE reading ``or increased traffic congestion in any mode of
transportation.''
    Proposed paragraph (c)(17) provides a CE addressing rehabilitation,
reconstruction, removal, construction, or replacement of bridges. This
proposed CE is similar to an existing FRA CE but adds ``removal'' of
bridges to the scope of covered activities. The FRA finds it is
sometimes necessary to remove old railroad bridges without
simultaneously building a new bridge. In those cases, the removal of
the bridge is not substantially different then construction,
rehabilitation, or replacement activities and would have similar types
of impacts. The FRA is also proposing minor edits to the existing FRA
CE for clarity.
    Proposed paragraph (c)(18) addresses acquisition, rehabilitation,
transfer, or maintenance of vehicles or equipment. The proposed CE is
similar to an existing FRA CE but moves the examples of vehicles and
equipment to precede the CE's proposed limitation. The FRA also
proposes to focus the CE's limitation on whether the activity
significantly alters the traffic density characteristics of an existing
rail line rather than whether the activity causes a substantial
increase in the use of infrastructure within the existing right-of-way.
This proposed change will create consistency with other FRA CEs.
    Proposed paragraph (c)(20) provides a CE addressing environmental
restoration, remediation and pollution prevention activities. This
proposed CE is similar to an existing FRA CE. However, proposed
paragraph (c)(20) would remove the limitation that activities occur
``in or proximate to existing and former railroad track,
infrastructure, stations, or facilities.'' In many cases, environmental
restoration and natural resource management activities do not occur in
close proximity to existing or former railroad track, infrastructure,
stations, or facilities. Instead, these activities--including
mitigation--must frequently be located to optimize the ecological value
or benefit of the activity and are sited in consultation with, or at
the direction of, various permitting agencies.
    One commenter suggests FRA adopt a number of existing FHWA CEs from
the ``(c)-list'' with minor modifications to accommodate railroad
projects. Most of the activities covered by the identified FHWA CEs are
already included in one or more of FRA's proposed CEs. With respect to
the FHWA CEs identified by the commenter, the activities described in
Sec.  771.117(c)(7) (landscaping) and Sec.  771.117(c)(6) (installation
of noise barriers or alternations to existing publically owned
buildings to provide for noise reduction) are included in the non-
exclusive list of activities in proposed paragraph (c)(20); the
activities described in Sec.  771.117(c)(8)) (installation of fencing,
signs, pavement markings, small passenger shelters, traffic signals,
and railroad warning devises where no substantial land acquisition or
traffic disruption will occur) and Sec.  771.117(c)(27) (highway safety
or traffic operations improvement projects, including the installation
of ramp metering control devices and lighting, if the project meets the
constraints in paragraph (e) of the section) are included in proposed
paragraph (c)(19); the activities described in Sec.  771.117(c)(14))
(bus and rail car rehabilitation), Sec.  771.117(c)(17) (the purchase
of vehicles where the use of the vehicles can be accommodated by
existing facilities or new facilities which themselves are within a
CE), and Sec.  771.117(c)(19) (purchase and installation of operating
or maintenance equipment to be located within the transit facility and
with no significant impacts off the site) are covered by proposed FRA
CE paragraph (c)(18); the activities described in Sec.  771.117(c)(18)
(track and rail bed maintenance and improvements when carried out
within the existing right-of-way) are covered by proposed paragraph
(c)(22); and the activities described in Sec.  771.117(c)(28) (bridge
rehabilitation, reconstruction, or replacement or the construction of
grade separation to replace existing at-grade railroad crossings, if
the actions meet the constraints in paragraph (e) of the section) are
covered by proposed paragraph (c)(17).
    The same commenter also suggests FRA adopt Sec.  771.117(c)(2)
(approval of utility installations along or across a transportation
facility). At this time and based on FRA's experience, FRA does not
have a sufficient need for a CE addressing utility installations. To
the extent utility work is being completed as part of an FRA action,
the work is typically incidental to a railroad project and as such is
generally analyzed in an environmental document (which may be a CE if
appropriate) for that project. The commenter also suggests FRA adopt
Sec.  771.117(d)(1) (modernization of a highway by resurfacing,
restoration, rehabilitation, reconstruction, adding shoulders, or
adding auxiliary lanes (e.g. parking, weaving, turning, climbing)). The
FRA is proposing CEs similar in scope but directly applicable to
railroad

projects (e.g., proposed paragraphs (c)(9) and (22)).
    One commenter suggests FRA modify paragraph (c)(16) to allow
alterations to existing facilities, locomotives, stations, and rail
cars even where the alterations are not for the purpose of making them
accessible for the elderly and persons with disabilities. This
modification would change the scope of the CE FRA added in 2013 based
on FRA's experience with projects intended to improve accessibility.
However, FRA notes that these same activities may be covered by another
FRA CE (e.g., proposed paragraph (c)(18)).
    One commenter suggests FRA adopt one FHWA ``(d)-list'' CE modified
slightly to accommodate railroad projects. Specifically, the commenter
suggests FRA adopt Sec.  771.117(d)(8) (construction of new bus storage
and maintenance facilities in areas used predominantly for industrial
or transportation purposes where such construction is not inconsistent
with existing zoning and located on or near a street with adequate
capacity to handle anticipated bus and support vehicle traffic). These
activities are included in proposed paragraph (c)(21).
    One commenter asks FRA to address the authority provided by MAP-21
section 1308 and FAST Act section 1315 allowing State DOTs to enter
into agreements with FHWA to make CE determinations on FHWA's behalf.
The FRA does not have the legal authority to participate in this
program and will therefore not include it in this section. The same
commenter suggests that FRA address 49 U.S.C. 304, Application of
Categorical Exclusions for Multimodal Projects. That section does not
create new CEs but rather sets up a process by which OAs can use the
CEs of another OA under certain multimodal project circumstances. Since
this process applies to all OAs, not just the Agencies, it is
appropriately addressed by separate guidance, likely issued by DOT's
Office of the Secretary, and not in this SNPRM.
    One commenter also asked that FRA apply its CEs less strictly and
exercise more flexibility in considering which projects qualify as a
CE. The FRA will continue to review each FRA action on an individual
basis to ensure the action meets the definition of one or more FRA CEs
and does not involve circumstances requiring further environmental
study. Where there are unusual circumstances present, FRA will, in
cooperation with the applicant, conduct appropriate environmental
studies to determine whether application of the CE is still proper.
    Two commenters supported the CEs FRA proposed in the June Notice.
The FRA appreciates the commenters' support.
Section 771.117 FHWA Categorical Exclusions and
Section 771.118 FTA Categorical Exclusions
    The Agencies propose to modify paragraph (a) under Sec. Sec.
771.117 and 771.118 to begin with ``CEs'' because the Agencies
introduce the acronym earlier in the regulation. Additionally, the
Agencies propose clarifying in the first sentence of Sec. Sec.
771.117(a) and 771.118(a) that the actions are based on FHWA's and
FTA's past experience, respectively. These are non-substantive changes
providing clarity to paragraph (a) in both sections.
    Following 3 years of implementation, FHWA and FTA request comments
regarding the definition of ``operational right-of-way'' for the CEs
located at 23 CFR 771.117(c)(22) and 771.118(c)(12), respectively. As
currently defined in the regulation and as discussed in the January 13,
2014, final rule establishing the CEs (see 79 FR 2111-2112), the
Agencies attemped to define ``operational right-of-way'' broadly with
few conditions, thereby allowing flexibility in the application of
those CEs. The Agencies are soliciting feedback from the public on how
operational right-of-way is currently defined in the regulation and
request detailed proposals on ways to further clarify the existing
definition. Is the scope of ``operational right-of-way'' appropriately
broad? Should fewer conditions be applied? If so, what conditions? Can
the definition be revised to allow for greater flexibility in the
application of the CE? If so, how? Please provide specific examples and
any data (e.g., cost and benefit information) to help justify your
proposal.
Section 771.119 Environmental Assessments
    The Agencies propose to add a new paragraph (a)(3) to address, for
FRA, situations when a private entity proposes a project that can be
analyzed in an EA and there is no applicant as defined in Sec.
771.107. In those situations, this paragraph would give FRA the
discretion to require the project sponsor to procure and use a third
party contractor, as described in Sec.  771.109(e), to prepare the EA.
The Agencies also propose to add a requirement for contractors to
execute a conflict of interest disclosure statement similar to the
language in paragraph (a)(2) (previously proposed paragraph (a)(ii)),
applicable to FTA projects and which FHWA and FTA proposed in the
November 2015 NPRM.
    The Agencies also propose to clarify in paragraph (d) that an EA
must be made available for public inspection at the applicant's office
and at the appropriate Administration field office, or for FRA at
Headquarters offices, for 30 days. This does not change any substantive
or procedural requirement.
    Lastly, the Agencies propose to fix a typo in paragraph (h) by
moving the period outside the last parenthesis after ``(See 40 CFR
1501.4(e)(2)).''
Section 771.123 Draft Environmental Impact Statements
    In paragraphs (a) and existing (b) (proposed paragraph (b)(1), as
discussed below), the Agencies propose modifying the existing language
in the last sentence of each paragraph to encourage announcing the
intent to prepare an EIS by the appropriate means at the State level,
as well as the local level.
    The Agencies propose renumbering paragraph (b) as paragraph (b)(1)
and adding a new paragraph (b)(2) regarding timing of the coordination
plan in relation to notice of intent publication. This proposal
reflects the changes to 23 U.S.C. 139(g)(1)-coordination plan.
    In paragraph (c), the Agencies propose replacing ``discuss'' with
``document'' in the second sentence, which more accurately describes
the action needing to occur. Additionally, in paragraph (c), the
Agencies propose adding language to reflect the FAST Act changes to 23
U.S.C. 139(f)(4) regarding the range of alternatives. The proposed
language would fulfill the statutory intent of mandating use of the
range of alternatives for all Federal environmental reviews and permit
processes, to the maximum extent practicable and consistent with
Federal law, while directing the reader to the statute for the specific
exception requirements. The Agencies propose inserting after the second
sentence a statement that the range of alternatives considered for
further study shall be used for all Federal environmental reviews and
permit processes, to the maximum extent practicable and consistent with
Federal law, unless the lead and participating agencies agree to modify
the alternatives in order to address significant new information and
circumstances or to fulfill NEPA responsibilities in a timely manner,
in accordance with 23 U.S.C. 139(f)(4)(B).
Section 771.124 Final Environmental Impact Statement/Record of Decision
    The Agencies propose two non-substantive changes in this section.
In paragraph (a)(1), the Agencies propose

to replace ``record of decision'' with ``ROD'' because the term is
introduced earlier in the regulation. In paragraph (a)(1)(ii), the
Agencies propose deleting ``and'' after ``environmental concerns''
because it is awkward and unnecessary.
    Additionally, the Agencies propose inserting ``pursuant to 40 CFR
1503.4(c)'' at the end of the clause ``an errata sheet may be attached
to the draft statement'' in paragraph (a)(3) to provide consistency
with 23 CFR 771.125(g).
Section 771.125 Final Environmental Impact Statements
    While the Agencies propose to add FRA to part 771, the Agencies are
not proposing to change the general requirement in paragraph (c) that
the Agencies submit certain Final EISs to the Administration's
Headquarters for prior concurrence. The FRA currently administers its
environmental program from Headquarters. If FRA establishes field
offices in the future, Headquarters' prior concurrence for the actions
described in paragraph (c) will still be required.
    In addition, in paragraph (d) the Agencies propose to replace
``grant request'' with ``request for financial assistance'' to clarify
that approval of the final EIS does not commit the Administration to
provide any future financial assistance (not just grant funding) for
the preferred alternative.
Section 771.129 Re-Evaluations
    In paragraph (c), the Agencies proposed re-inserting the sentence
regarding consultations being documented when determined necessary by
the Administration, which is existing language in 23 CFR 771.129(c) but
was inadvertently deleted when the November 2015 NPRM was published for
public review and comment. This is a non-substantive change.
Section 771.131 Emergency Action Procedures
    The Agencies propose capitalizing ``headquarters'' in order to be
consistent with other references to Headquarters in the regulation;
this is a non-substantive change.
    The Agencies also propose to add a reference to FRA's CE covering
the response to emergencies and disasters.
Section 771.139 Limitation on Actions
    The Agencies propose modifying the title and text of this section
by replacing ``actions'' with ``claims'' to address a potential
inconsistency with the definition of ``Action'' in 23 CFR 771.107(b).
The Agencies seek to clarify that the limitation is on legal claims
arising out of an ``Action,'' not on an ``Action'' itself. This is a
non-substantive change. Additionally, the Agencies propose adding the
word ``time'' before the word ``barred'' throughout this section to
clarify that this is a time limitation on claims. This is also a non-
substantive change.
    The Agencies propose modifying this section to clearly describe the
different limitations on claims. The Agencies propose to clarify the
150-day limitation is limited to FHWA and FTA. The Agencies also
propose to add a sentence immediately following addressing FRA's 2-year
limitation on claims for railroad projects requiring the approval of
the Secretary under NEPA created by section 11503 of the FAST Act (49
U.S.C. 24201(a)(4)). Furthermore, the Agencies would revise the second
reference to 150 days in the existing language to broadly refer to the
two standards by stating ``These time periods do not lengthen any
shorter time period . . .''
    The Agencies also propose to delete the footnote in this section to
be consistent with the November 2015 NPRM. In that NPRM the Agencies
proposed removing references to specific guidance documents, such as
the footnote in this section, in order to maximize flexibility of this
regulation. The Agencies are currently updating the ``SAFETEA-LU
Environmental Review Process: Final Guidance,'' so the current
reference is outdated.

Section 4(f) Regulation Changes (Part 774)

Section 774.3 Section (f) Approvals
    As part of the review of regulatory provisions in drafting this
SNPRM, the Agencies are proposing to modify the footnote in paragraph
(d) to refer the reader to FHWA's Section 4(f) Programmatic Evaluations
Web page (www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp) rather
than listing the Section 4(f) programmatic evaluations in the
regulation. By providing a Web page, the reader would have access to
the most recent list of programmatic evaluations available, and the
regulation would stay current whenever the Agencies revise the list of
Section 4(f) programmatic evaluations. In addition, the Web site may be
used to provide guidance on use of the programmatic approaches.
Section 774.13 Exceptions
    This section sets forth a number of exceptions to otherwise
applicable Section 4(f) requirements. The exceptions are either founded
in statute or reflect case law and longstanding practices governing
when to apply Section 4(f).
    Paragraph (a) is an exception from the Section 4(f) process for
projects involving work on a transportation facility that is itself
historic. This exception reflects the Agencies' longstanding policy
that when a project involves a historic facility that is already
dedicated to a transportation purpose and does not adversely affect the
historic qualities of that facility, then the project does not ``use''
the facility within the meaning of Section 4(f). The exception applies
to all types of transportation facilities, including elements,
structures, and features of a highway, transit, or rail facility.
    In the FAST Act, Congress created two new exceptions from Section
4(f) for historic transportation facilities in certain circumstances.
The Agencies propose to amend paragraph (a) to incorporate the new
exceptions. Specifically, the Agencies propose to incorporate the two
new exceptions from the Section 4(f) process for historic
transportation facilities by renumbering paragraph (a) as paragraph
(a)(3) and adding new paragraphs (a)(1) and (2). The Agencies propose
to add to paragraph (a) the introductory phrase ``the use of historic
transportation facilities in certain circumstances:'' to match the
other existing exceptions in section 774.13.
    The Agencies propose new paragraph (a)(1) to incorporate section
1303 of the FAST Act which exempts from Section 4(f) the use of common
concrete and steel bridges and culverts, built after 1945, that the
Advisory Council on Historic Preservation exempted from individual
Section 106 review under a Program Comment.\1\ The Program Comment
applies to bridges lacking distinction, not previously listed or
determined eligible for listing on the National Register, and not
located in or adjacent to historic districts, and only becomes
available in a particular State after the State Department of
Transportation, the State Historic Preservation Officer, and the
applicable FHWA Division office consult and reach agreement on whether
the State has any exceptional bridges that the Program Comment will not
cover. While FHWA proposed the Program Comment, it can be used by any
Federal agency, including FTA and FRA.
---------------------------------------------------------------------------

    \1\ ``Program Comment Issue for Streamlining Section 106 Review
for Actions Affecting Post-1945 Concrete and Steel Bridges,'' 77 FR
68790 (Nov. 16, 2012).
---------------------------------------------------------------------------

    The intent of this new Section 4(f) exception is to eliminate
unnecessary

Section 4(f) processes for the hundreds of thousands of common
``cookie-cutter'' bridges constructed after 1945, which are not
exceptional, in those States that have reported the results of the
consultation required by the Program Comment. To date, 35 States and
Puerto Rico have completed this requirement, as reflected on the Bridge
Program Comment Excepted Bridges list available at https://www.environment.fhwa.dot.gov/histpres/bridges_list.asp.
    The Agencies propose new paragraph (a)(2) to incorporate section
11502 of the FAST Act, which exempts improvements to historic railroad
and transit lines and their elements from Section 4(f).
    The Agencies interpret the words ``improvements to'' in section
11502 as inclusive of the other activities listed in section 11502:
Maintenance, rehabilitation, or operation of railroad or rail transit
lines. For clarity, the Agencies expanded the list of examples of
activities that may occur on elements of railroad or rail transit lines
that may improve the transportation function of those railroad and rail
transit lines. The Agencies believe that preservation, modernization,
reconstruction, and replacement of an element of a historic
transportation facility are types of ``improvements'' to railroad and
rail transit lines and thus propose to include these activities in the
exception. The Agencies further believe that any type of safety
improvement to a highway crossing of an active railroad or transit
line--whether at grade or grade separated--should be considered an
``improvement to'' the railroad or transit line by virtue of making
travel safer for the public, and thus would be covered by the new
exception.
    While the Agencies chose not to further define the terms ``railroad
or rail transit lines or elements thereof'' within the regulation text,
they view these terms as including all elements related to the historic
or current transportation function such as railroad or rail transit
track, elevated support structures, rights-of-way, substations,
communication devices, and maintenance facilities. The Agencies do not
propose to include historic sites unrelated to transportation but
located within or adjacent to railroads or rail transit lines, or
elements thereof in this exception. Examples of such exclusions include
archeological sites unrelated to railroad or rail transit and sites of
traditional religious and cultural importance to Indian tribes.
    Per section 11502 of the FAST Act, all stations, and certain
bridges and tunnels, are not included in the proposed paragraph (a)(2)
exception. Specifically, bridges and tunnels on railroad lines that
have been abandoned, as determined by the Surface Transportation Board
through the process described in 49 CFR part 1152, are not included in
the proposed exception, except for bridges and tunnels on railroads
that have been railbanked, as defined in 16 U.S.C. 1247(d) or otherwise
preserved for future transportation use. In addition, the Agencies are
proposing that bridges and tunnels on rail transit lines that are not
in use and over which regular service has never operated are not
included in the exception.
    The proposed new paragraph (a)(3) reads as set out in the
regulatory text below. This paragraph mirrors existing Sec.  774.13(a).
The Agencies are not proposing to change the short list of activities:
``restoration, rehabilitation, or maintenance'' that are included in
the existing regulatory text now located under paragraph (a)(3), but
the Agencies specifically request that commenters consider whether the
list of covered activities should be expanded to mirror the activities
included in paragraph (a)(2) which is proposed to read: ``maintenance,
preservation, rehabilitation, operation, modernization, reconstruction,
and replacement.'' Under this option, there would still be two
important conditions for the exception to apply under paragraph (a)(3):
The Agencies must determine through a Section 106 consultation that the
work would not adversely affect the historic qualities of the historic
transportation facility that cause it to be listed on or eligible for
the National Register of Historic Places and the official(s) with
jurisdiction must not object to that determination. Having the same
list of activities in both subparagraphs is desirable because it would
simplify administration of the exception. The Agencies seek comment,
including examples, regarding whether the two conditions in paragraph
(a)(3) would adequately protect significant historic transportation
facilities in the case of projects to operate, modernize, reconstruct
or replace the transportation facility.
Section 774.15 Constructive Use Determinations
    In paragraph (f)(2), the Agencies propose to reorganize the
paragraph and to add railroad projects to the sentence referencing the
FTA guidelines for transit noise and vibration assessments because FRA
has applied FTA criteria to evaluate noise impacts resulting from
railroad operations for decades. In addition, the Agencies propose to
add a new situation in which a constructive use would not occur.
Specifically, the Agencies are proposing to add a reference to high-
speed ground transportation projects having moderate noise impacts
according to FRA's established high-speed ground transportation noise
and vibration guidelines. The FRA first developed these guidelines,
available at https://www.fra.dot.gov/eLib/Details/L04090, in the late
1990s and they apply to train operations over 90 miles per hour.
Section 774.17 Definitions
    In the definition of ``Administration'' the Agencies propose to add
FRA.
    In the definition of ``CE'' the Agencies propose to add a reference
to FRA's and FTA's CEs in 23 CFR 771.116 and 23 CFR 771.118,
respectively.

49 CFR Part 264--Environmental Impact and Related Procedures

    The Agencies propose to amend part 264 in 49 CFR to include
references to 23 CFR part 771 and 23 CFR part 774. A cross reference
would assist potential FRA applicants, State and Federal agencies, and
the public.

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), which provides authority to ``[a]n officer of
the Department of Transportation [to] prescribe regulations to carry
out the duties and powers of the officer.'' 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 (5). Moreover, the CEQ regulations that implement NEPA
provide at 40 CFR 1507.3 that agencies shall continue to review their
policies and NEPA implementing procedures and revise them as necessary
to ensure full compliance with the purposes and provisions of NEPA.

Rulemaking Analyses and Notices

    The Agencies will consider all comments received before the close
of business on the comment closing date indicated above and will make
such comments available for examination in the docket (FHWA-2015-0011)
at regulations.gov. Comments received after the comment closing date
will be filed in the docket and the Agencies will consider them to the
extent practicable. In addition to late comments, the Agencies will
also continue to file

relevant information in the docket as it becomes available after the
comment period closing date. Interested persons should continue to
examine the docket for new material. The Agencies may publish a final
rule at any time after close of the comment period.

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 preliminarily 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 (44 FR
11032). Executive Order 13563 emphasizes the importance of quantifying
both costs and benefits, reducing costs, harmonizing rules, and
promoting flexibility. The Agencies anticipate that the economic impact
of this rulemaking would be minimal. The Agencies do not have specific
data to assess the monetary value of the benefits from the proposed
changes because such data does not exist and would be difficult to
develop. This proposed rule is not expected to be an Executive Order
13771 regulatory action because this proposed rule is not significant
under Executive Order 12866.
    This SNPRM proposes to modify 23 CFR parts 771 and 774 in order to
be consistent with changes introduced by MAP-21 and the FAST Act, make
the regulation more consistent with the FHWA and FTA practices, and add
FRA to parts 771 and 774. These proposed changes would not adversely
affect, in any material way, any sector of the economy. In addition,
these changes would not interfere with any action taken or planned by
another agency and would not materially alter the budgetary impact of
any entitlements, grants, user fees, or loan programs. Consequently, a
full regulatory evaluation is not required. The Agencies anticipate
that the changes in this SNPRM would enable projects to move more
expeditiously through the Federal review process and 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. The Agencies request comment, including
data and information on the experiences of project sponsors, on the
likely effects of the changes being proposed.

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
proposed 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 proposed revisions are expected to
expedite environmental review and thus are anticipated to be less
burdensome than any current impact on small business entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This proposed rule will not result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$148.1 million or more in any one year (2 U.S.C. 1532). Further, in
compliance with the Unfunded Mandates Reform Act of 1995, the Agencies
will evaluate any regulatory action that might be proposed in
subsequent stages of the proceeding to assess the effects on State,
local, and tribal governments and the private sector.

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 proposed
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 proposed action
would not preempt any State law or State regulation or affect the
States' ability to discharge traditional State governmental functions.
The Agencies invite State and local governments with an interest in
this rulemaking to comment on the effect that adoption of specific
proposals may have on State or local governments.

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. Accordingly, the Agencies solicit
comments on this issue.

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 proposal does not contain collection of information
requirements for the purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice

Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a), 91 FR 27534 (May 10, 2012) (available online at
www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve environmental
justice (EJ) as part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects, including interrelated social and economic
effects, of their programs, policies, and activities on minority
populations and low-income populations in the United States. The DOT
Order requires DOT agencies to address compliance with the Executive
Order and the DOT Order in all rulemaking activities. In addition, FHWA
and FTA have issued additional documents relating to administration of
the Executive Order and the DOT Order. On June 14, 2012, FHWA issued an
update to its EJ order, FHWA Order 6640.23A, FHWA Actions to Address
Environmental Justice in Minority Populations and Low Income
Populations (available online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.cfm). The FTA also issued an update to its EJ policy,
FTA Policy Guidance for Federal Transit Recipients, 77 FR 42077 (July
17, 2012) (available online at http://www.fta.dot.gov/legislation_law/12349_14740.html).
    The Agencies have evaluated this proposed rule under the Executive
Order, the DOT Order, the FHWA Order, and the FTA Circular. The
Agencies have determined that the proposed changes to 23 CFR parts 771
and 774, if finalized as proposed, would not cause disproportionately
high and adverse human health and environmental effects on minority or
low income populations.
    At the time the Agencies apply the NEPA implementing procedures in
23 CFR part 771, the Agencies would have an independent obligation to
conduct an evaluation of the proposed action under the applicable EJ
orders and guidance to determine whether the proposed action has the
potential for EJ effects. The rule would not affect the scope or
outcome of that EJ evaluation. In any instance where there are
potential EJ effects resulting from a proposed Agency action covered
under any of the NEPA classes of action in 23 CFR part 771, public
outreach under the applicable EJ orders and guidance would provide
affected populations with the opportunity to raise any concerns about
those potential EJ effects. See DOT Order 5610.2(a), FHWA Order
6640.23A, and FTA Policy Guidance for Transit Recipients (available at
links above). Indeed, outreach to ensure the effective involvement of
minority and low income populations where there is potential for EJ
effects is a core aspect of the EJ orders and guidance. For these
reasons, the Agencies have determined that no further EJ analysis is
needed and no mitigation is required in connection with the proposed
revisions to the Agencies' NEPA and Section 4(f) implementing
regulations (23 CFR parts 771 and 774).

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 proposed 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, Mass 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, under authority delegated in 49 CFR
1.85 and 1.91:
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
Heath Hall,
Acting Administrator, Federal Railroad Administration.
Jane Williams,
Acting Administrator, Federal Transit Administration.

    In consideration of the foregoing, the Agencies propose to 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

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
1. Revise the authority citation for part 771 to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138,
139, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR parts 1500
through 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 1314 and 1432.

0
2. Revise Sec.  771.101 to read as follows:

Sec.  771.101  Purpose.

    This regulation 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 regulation of the Council on
Environmental Quality (CEQ), 40 CFR parts 1500 through 1508 (CEQ
regulation). Together these regulations set forth all FHWA, FRA, FTA
and Department of Transportation (DOT) requirements under NEPA for the
processing of highway, public transportation, and railroad projects.
This regulation 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 and 5323(q);
Public Law 112-141, 126 Stat. 405, section 1301 as applicable; and
Public Law 114-94, 129 Stat. 1312, section 1304.
0
3. Further amend Sec.  771.105, as proposed to be amended at 80 FR
72624 (November 20, 2015), by removing the introductory text and
revising paragraphs (a), (b), and the first sentence in (e)(2) to read
as follows:

Sec.  771.105  Policy.

    (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 regulation.\1\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (b) Programmatic approaches be developed for compliance with
environmental requirements (including the requirements found at 23
U.S.C. 139(b)), coordination among agencies and/or the public, or to
otherwise enhance and accelerate project development.
* * * * *
    (e) * * *
    (2) The proposed mitigation represents a reasonable public
expenditure after considering the impacts of the action and the
benefits of the proposed mitigation measures. * * *
* * * * *
0
4. Further amend Sec.  771.107, as proposed to be amended at 80 FR
72624 (November 20, 2015), by revising the defintions for ``Action,''
``Administration,'' and ``Administration action'' to read as follows:

Sec.  771.107  Definitions.

* * * * *
    Action. A highway, transit, or railroad project proposed for FHWA,
FRA, or FTA funding. It also includes activities such as joint and
multiple use permits, changes in access control, rulemakings, etc.,
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
includes approval of activities such as joint and multiple use permits,
changes in access control, rulemakings, etc., which may or may not
involve a commitment of Federal funds.
* * * * *
0
5. Further amend Sec.  771.109, as proposed to be amended at 80 FR
72624 (November 20, 2015), by revising paragraphs (a)(1), (b)(1), and
(c)(2), (6), and (7) and adding paragrpah (e) to read as follows:

Sec.  771.109  Applicability and responsibilities.

    (a)(1) The provisions of this regulation and the CEQ regulation
apply to actions where the Administration exercises sufficient control
to condition the permit, project, or other approvals. Actions taken by
the applicant which do not require Federal approvals, such as
preparation of a regional transportation plan are not subject to this
regulation.
* * * * *
    (b)(1) The applicant, in cooperation with the Administration, is
responsible for implementing those mitigation measures stated as
commitments in the environmental documents prepared pursuant to this
regulation unless the Administration approves of their deletion or
modification in writing. The FHWA will assure that this is accomplished
as a part of its stewardship and oversight responsibilities. The FRA
and FTA will assure implementation of committed mitigation measures by
including the mitigation measures by reference in the grant agreement,
followed by reviews of designs and construction inspections.
    (c) * * *
    (2) Any applicant that is a State or local governmental entity 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) shall
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.
* * * * *
    (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 is responsible for providing input, as
appropriate, 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, if any, and
concurrence on the schedule within the coordination plan.
* * * * *
    (e) When FRA is the lead Federal agency, and the project sponsor is
a private entity, and there is no applicant acting as a joint-lead
agency, FRA shall use a qualified third-party contractor to prepare an
EIS. Third-party contracting is a voluntary arrangement whereby the
project sponsor retains a contractor to assist in conducting the
environmental review under the direction, supervision, and control of
the Administration. FRA must oversee the preparation of the EIS and
retains ultimate control over the third-party contractor's work
product. FRA may require use of a third-party contractor for
preparation of an EA at its discretion. 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.
0
6. Further amend Sec.  771.111, as proposed to be amended at 80 FR
72624 (November 20, 2015), by revising paragraphs (a)(2)(i), (a)(3),
(b), (c), (d), (i), and (j) to read as follows:

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

    (a) * * *
    (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, or 23 U.S.C. 139(f), 168, or 169, as
applicable.
* * * * *
    (3) Applicants intending to apply for funds 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, will 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
shall respond to a project sponsor's formal project notification within
45 days of receipt and in writing.
    (c) When the FHWA, FRA, or FTA are 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 multiple DOT agencies' expertise.
    (d) During the early coordination process, the lead agencies may
request other agencies having an interest in the action to participate,
and must invite such agencies if the action is subject to the project
development procedures in 23 U.S.C. 139. Agencies with special
expertise may be invited to become cooperating agencies. Agencies with
jurisdiction by law must be requested to become cooperating agencies.
The lead agencies identify participating agencies within 45 days from
publication of the notice of intent.
* * * * *
    (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 seeking 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 but not limited to,
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 Web sites. Applicants are encouraged to keep these materials
available to the public electronically until the project is constructed
and open for operations.
    (4) Are encouraged to post all findings of no significant impact
(FONSI), combined final environmental impact statement (final EIS)/
records of decision (ROD), and RODs on a project Web site 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.
0
7. Further amend Sec.  771.113, as proposed to be amended at 80 FR
72624 (November 20, 2015), by revising the second sentence in paragraph
(a) and adding paragraph (d)(4) to read as follows:

Sec.  771.113  Timing of Administration activities.

    (a) * * * This work includes drafting environmental documents and
completing environmental studies, related engineering studies, agency

coordination, and public involvement. * * *
* * * * *
    (d) * * *
    (4) FRA makes exceptions on a case-by-case basis for purchases of
railroad components or materials that can be used for other projects or
resold.
0
8. Further amend Sec.  771.115, as proposed to be amended at 80 FR
72624 (November 20, 2015), by removing the introductory text, revising
paragraphs (a) introductory text and (a)(4), adding paragraph (a)(6),
and revising paragraph (b) to read as follows:

Sec.  771.115  Classes of actions.

    (a) EIS (Class I). Actions that significantly affect the
environment require an EIS (40 CFR 1508.27). The following are examples
of actions that normally require an EIS:
* * * * *
    (4) For FHWA actions, new construction or extension of a separate
roadway for buses or high occupancy vehicles not located within an
existing transportation right-of-way.
* * * * *
    (6) For FRA actions, new construction of major railroad lines or
facilities (e.g. terminal passenger stations, freight transfer yards,
or railroad equipment maintenance facilities) that will not be located
within an existing transportation right-of-way.
    (b) CE (Class II). Actions that do not individually or cumulatively
have a significant environmental effect are excluded from the
requirement to prepare an EA or EIS. A specific list of CEs normally
not requiring NEPA documentation is set forth in Sec.  771.117(c) for
FHWA actions or pursuant to Sec.  771.118(c) for FTA actions. When
appropriately documented, additional projects may also qualify as CEs
pursuant to Sec.  771.117(d) for FHWA actions or pursuant to Sec.
771.118(d) for FTA actions. FRA's CEs are listed in Sec.  771.116.
* * * * *
0
9. Add Sec.  771.116 to read as follows:

Sec.  771.116  FRA categorical exclusions.

    (a) CEs are actions which meet the definition contained in 40 CFR
1508.4, and, based on FRA's past experience with similar actions, do
not involve significant environmental impacts. They are actions which:
Do not induce significant impacts to planned growth or land use for the
area; do not require the relocation of significant numbers of people;
do not have a significant impact on any natural, cultural,
recreational, historic or other resource; do not involve significant
air, noise, or water quality impacts; do not have significant impacts
on travel patterns; or do not otherwise, either individually or
cumulatively, have any significant environmental impacts.
    (b) Any action which normally would be classified as a CE but could
involve unusual circumstances will require FRA, in cooperation with the
applicant, to conduct appropriate environmental studies to determine if
the CE classification is proper. Such unusual circumstances include:
    (1) Significant environmental impacts;
    (2) Substantial controversy on environmental grounds;
    (3) Significant impact on properties protected by Section 4(f) of
the DOT Act or Section 106 of the National Historic Preservation Act;
or
    (4) Inconsistencies with any Federal, State, or local law,
requirement or administrative determination relating to the
environmental aspects of the action.
    (c) Actions that FRA determines fall within the following
categories of FRA CEs and that meet the criteria for CEs in the CEQ
regulation (40 CFR 1508.4) and paragraph (a) of this section may be
designated as CEs only after FRA approval. Where there is a project
applicant or sponsor, it must submit documentation which demonstrates
that the specific conditions or criteria for these CEs are satisfied
and that significant environmental effects will not result.
    (1) Administrative procurements (e.g., for general supplies),
contracts for personal services, and training.
    (2) Personnel actions.
    (3) Planning or design activities that do not commit to a
particular course of action affecting the environment.
    (4) Localized geotechnical and other investigations to provide
information for preliminary design and for environmental analyses and
permitting purposes, such as drilling test bores for soil sampling;
archeological investigations for archeology resources assessment or
similar survey; and wetland surveys.
    (5) Internal orders, policies, and procedures not required to be
published in the Federal Register under the Administrative Procedure
Act, 5 U.S.C. 552(a)(1).
    (6) Rulemakings issued under section 17 of the Noise Control Act of
1972, 42 U.S.C. 4916.
    (7) Financial assistance to an applicant where the financial
assistance funds an action that is already completed, such as
refinancing outstanding debt.
    (8) Hearings, meetings, or public affairs activities.
    (9) Maintenance or repair of existing railroad facilities where the
maintenance or repair activities do not change the existing character
of the facility, including equipment; track and bridge structures;
electrification, communication, signaling, or security facilities;
stations; tunnels; maintenance-of-way and maintenance-of-equipment
bases.
    (10) Emergency repair or replacement, including reconstruction,
restoration, or retrofitting of an essential rail facility damaged by
the occurrence of a natural disaster or catastrophic failure. Such
repair or replacement may include upgrades to meet existing codes and
standards as well as upgrades warranted to address conditions that have
changed since the rail facility's original construction.
    (11) Operating assistance to a railroad to continue existing
service or to increase service to meet demand, where the assistance
will not significantly alter the traffic density characteristics of
existing rail service.
    (12) Minor rail line additions, including construction of side
tracks, passing tracks, crossovers, short connections between existing
rail lines, and new tracks within existing rail yards or right-of-way,
provided that such additions are not inconsistent with existing zoning,
do not involve acquisition of a significant amount of right of way, and
do not significantly alter the traffic density characteristics of the
existing rail lines or rail facilities.
    (13) Acquisition or transfer of real property or existing railroad
facilities including: Track and bridge structures; electrification,
communication, signaling or security facilities; stations; and
maintenance of way and maintenance of equipment bases or the right to
use such real property and railroad facilities, for the purpose of
conducting operations of a nature and at a level of use similar to
those presently or previously existing on the subject properties or
facilities.
    (14) Research, development, or demonstration activities on existing
railroad lines or at existing facilities, where such activities do not
require the acquisition of a significant amount of right-of-way, and do
not significantly alter the traffic density characteristics of the
existing rail line or facility, such as advances in signal
communication or train control sytems, equipment, track, or track
structures.
    (15) Promulgation of rules, the issuance of policy statements, the
waiver or modification of existing regulatory requirements, or
discretionary approvals that do not result in significantly increased

emissions of air or water pollutants or noise.
    (16) Alterations to existing facilities, locomotives, stations, and
rail cars in order to make them accessible for the elderly and persons
with disabilities, such as modifying doorways, adding or modifying
lifts, constructing access ramps and railings, modifying restrooms, and
constructing accessible platforms.
    (17) The rehabilitation, reconstruction, removal, or replacement of
bridges, the rehabilitation or maintenance of the rail elements of
docks or piers for the purposes of intermodal transfers, and the
construction of bridges, culverts, or grade separation projects that
are predominantly within existing right-of-way and that do not involve
extensive in-water construction activities, such as projects replacing
bridge components including stringers, caps, piles, or decks, the
construction of roadway overpasses to replace at-grade crossings,
construction or reconstruction of approaches or embankments to bridges,
or construction or replacement of short span bridges.
    (18) Acquisition (including purchase or lease), rehabilitation,
transfer, or maintenance of vehicles or equipment that does not
significantly alter the traffic density characteristics of an existing
rail line, including locomotives, passenger coaches, freight cars,
trainsets, and construction, maintenance or inspection equipment.
    (19) Installation, repair and replacement of equipment and small
structures designed to promote transportation safety, security,
accessibility, communication or operational efficiency that take place
predominantly within the existing right-of-way and do not result in a
major change in traffic density on the existing rail line or facility,
such as the installation, repair or replacement of surface treatments
or pavement markings, small passenger shelters, passenger amenities,
benches, signage, sidewalks or trails, equipment enclosures, and
fencing, railroad warning devices, train control systems,
signalization, electric traction equipment and structures, electronics,
photonics, and communications systems and equipment, equipment mounts,
towers and structures, information processing equipment, and security
equipment, including surveillance and detection cameras.
    (20) Environmental restoration, remediation, pollution prevention,
and mitigation activities conducted in conformance with applicable
laws, regulations and permit requirements, including activities such as
noise mitigation, landscaping, natural resource management activities,
replacement or improvement to storm water oil/water separators,
installation of pollution containment systems, slope stabilization, and
contaminated soil removal or remediation activities.
    (21) Assembly or construction of facilities or stations that are
consistent with existing land use and zoning requirements, do not
result in a major change in traffic density on existing rail or highway
facilities and result in approximately less than ten acres of surface
disturbance, such as storage and maintenance facilities, freight or
passenger loading and unloading facilities or stations, parking
facilities, passenger platforms, canopies, shelters, pedestrian
overpasses or underpasses, paving, or landscaping.
    (22) Track and track structure maintenance and improvements when
carried out predominantly within the existing right-of-way that do not
cause a substantial increase in rail traffic beyond existing or
historic levels, such as stabilizing embankments, installing or
reinstalling track, re-grading, replacing rail, ties, slabs and
ballast, installing, maintaining, or restoring drainage ditches,
cleaning ballast, constructing minor curve realignments, improving or
replacing interlockings, and the installation or maintenance of
ancillary equipment.
0
10. Revise Sec.  771.117(a) to read as follows:

Sec.  771.117  FHWA categorical exclusions.

    (a) CEs are actions which meet the definition contained in 40 CFR
1508.4, and, based on FHWA's past experience with similar actions, do
not involve significant environmental impacts. They are actions which:
Do not induce significant impacts to planned growth or land use for the
area; do not require the relocation of significant numbers of people;
do not have a significant impact on any natural, cultural,
recreational, historic or other resource; do not involve significant
air, noise, or water quality impacts; do not have significant impacts
on travel patterns; or do not otherwise, either individually or
cumulatively, have any significant environmental impacts.
* * * * *
0
11. Revise Sec.  771.118(a) to read as follows:

Sec.  771.118  FTA categorical exclusions.

    (a) CEs are actions which meet the definition contained in 40 CFR
1508.4, and, based on FTA's past experience with similar actions, do
not involve significant environmental impacts. They are actions which:
Do not induce significant impacts to planned growth or land use for the
area; do not require the relocation of significant numbers of people;
do not have a significant impact on any natural, cultural,
recreational, historic or other resource; do not involve significant
air, noise, or water quality impacts; do not have significant impacts
on travel patterns; or do not otherwise, either individually or
cumulatively, have any significant environmental impacts.
* * * * *
0
12. Further amend Sec.  771.119, as proposed to be amended at 80 FR
72624 (November 20, 2015), by redesignating paragraphs (a)(i) and (ii)
as paragraphs (a)(1) and (2), adding paragraph (a)(3), and revising
paragraphs (d) and (h) to read as follows:

Sec.  771.119  Environmental assessments.

    (a) * * *
    (3) For FRA actions: When FRA or the applicant, as joint lead
agency, select a contractor to prepare the EA, then the contractor must
execute an FRA conflict of interest disclosure statement. In the
absence of an applicant, FRA may require private project sponsors to
provide a third party contractor to prepare the EA as described in
Sec.  771.109(e).
* * * * *
    (d) The applicant does not need to circulate the EA for comment but
the document must be made available for public inspection at the
applicant's office and at the appropriate Administration field offices
or, for FRA at Headquarters, for 30 days and in accordance with
paragraphs (e) and (f) of this section. The applicant shall send the
notice of availability of the EA, which briefly describes the action
and its impacts, to the affected units of Federal, State and local
government. The applicant shall also send notice to the State
intergovernmental review contacts established under Executive Order
12372.
* * * * *
    (h) When the FHWA expects to issue a FONSI for an action described
in Sec.  771.115(a), copies of the EA shall be made available for
public review (including the affected units of government) for a
minimum of 30 days before the Administration makes its final decision
(See 40 CFR 1501.4(e)(2)). This public availability shall be announced
by a notice similar to a public hearing notice.
* * * * *
0
13. Further amend Sec.  771.123, as proposed to be amended at 80 FR
72624 (November 20, 2015), by revising

paragraphs (a), (b) and (c) to read as follows:

Sec.  771.123  Draft environmental impact statements.

    (a) A draft EIS shall be prepared when the Administration
determines that the action is likely to cause significant impacts on
the environment. When the applicant, after consultation with any
project sponsor that is not the applicant, has notified the
Administration in accordance with 23 U.S.C. 139(e) and the decision has
been made by the Administration to prepare an EIS, the Administration
will issue a Notice of Intent (40 CFR 1508.22) for publication in the
Federal Register. Applicants are encouraged to announce the intent to
prepare an EIS by appropriate means at the State or local level.
    (b)(1) After publication of the Notice of Intent, the lead
agencies, in cooperation with the applicant (if not a lead agency),
will begin a scoping process that may take into account any planning
work already accomplished, in accordance with 23 CFR 450.212, 450.318,
or any applicable provisions of the CEQ regulations at 40 CFR parts
1500 through 1508. The scoping process will be used to identify the
purpose and need, the range of alternatives and impacts, and the
significant issues to be addressed in the EIS and to achieve the other
objectives of 40 CFR 1501.7. Scoping is normally achieved through
public and agency involvement procedures required by Sec.  771.111. If
a scoping meeting is to be held, it should be announced in the
Administration's Notice of Intent and by appropriate means at the State
or local level.
    (2) The lead agencies must establish a coordination plan, including
a schedule, within 90 days of notice of intent publication.
    (c) The draft EIS shall be prepared by the lead agencies, in
cooperation with the applicant (if not a lead agency). The draft EIS
shall evaluate all reasonable alternatives to the action and document
the reasons why other alternatives, which may have been considered,
were eliminated from detailed study. The range of alternatives
considered for further study shall be used for all Federal
environmental reviews and permit processes, to the maximum extent
practicable and consistent with Federal law, unless the lead and
participating agencies agree to modify the alternatives in order to
address significant new information and circumstances or to fulfill
NEPA responsibilities in a timely manner, in accordance with 23 U.S.C.
139(f)(4)(B). The draft EIS shall also summarize the studies, reviews,
consultations, and coordination required by environmental laws or
Executive orders to the extent appropriate at this stage in the
environmental process.
* * * * *
0
14. Further amend Sec.  771.124, as proposed to be amended at 80 FR
72624 (November 20, 2015), by revising paragraphs (a)(1) introductory
text, (a)(1)(ii), and (a)(3) to read as follows:

Sec.  771.124  Final environmental impact statement/record of decision
document.

    (a)(1) After circulation of a draft EIS and consideration of
comments received, the lead agencies, in cooperation with the applicant
(if not a lead agency), shall combine the final EIS and ROD, to the
maximum extent practicable, unless:
* * * * *
    (ii) There are significant new circumstances or information
relevant to environmental concerns that bear on the proposed action or
the impacts of the proposed action.
* * * * *
    (3) If the comments on the draft EIS are minor and confined to
factual corrections or explanations that do not warrant additional
agency response, an errata sheet may be attached to the draft statement
pursuant to 40 CFR 1503.4(c), which together shall then become the
combined final EIS/ROD.
* * * * *
0
15. Further amend Sec.  771.125, as proposed to be amended at 80 FR
72624 (November 20, 2015), by revising paragraph (d) to read as
follows:

Sec.  771.125  Final environmental impact statements.

* * * * *
    (d) Approval of the final EIS is not an Administration action as
defined in paragraph (c) of Sec.  771.107 and does not commit the
Administration to approve any future request for financial assistance
to fund the preferred alternative.
* * * * *
0
16. Further amend Sec.  771.129, as proposed to be amended at 80 FR
72624 (November 20, 2015), by revising paragraph (c) to read as
follows:

Sec.  771.129  Re-evaluations.

* * * * *
    (c) After the Administration issues a combined final EIS/ROD, ROD,
FONSI, or CE designation, the applicant shall consult with the
Administration prior to requesting any major approvals or grants to
establish whether or not the approved environmental document or CE
designation remains valid for the requested Administration action.
These consultations will be documented when determined necessary by the
Administration.
0
17. Revise Sec.  771.131 to read as follows:

Sec.  771.131  Emergency action procedures.

    Responses to some emergencies and disasters are categorically
excluded under Sec.  771.117 for FHWA, Sec.  771.118 for FTA, or Sec.
771.116 for FRA. Otherwise, requests for deviations from the procedures
in this regulation because of emergency circumstances (40 CFR 1506.11)
shall be referred to the Administration's Headquarters for evaluation
and decision after consultation with CEQ.
0
18. Revise Sec.  771.139 to read as follows:

Sec.  771.139  Limitations on claims.

    Notices announcing decisions by the Administration or by other
Federal agencies on a transportation project may be published in the
Federal Register indicating that such decisions are final within the
meaning of 23 U.S.C. 139(l). Claims arising under Federal law seeking
judicial review of any such decisions by FHWA or FTA are time barred
unless filed within 150 days after the date of publication of the
limitations on claims notice. Claims arising under Federal law seeking
judicial review of any such decisions by FRA are time barred unless
filed within 2 years after the date of publication of the limitations
on claims notice. 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. This provision does
not create any right of judicial review or place any limit on filing a
claim that a person has violated the terms of a permit, license, or
approval.

PART 774--PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES,
AND HISTORIC SITES (SECTION 4(f))

0
19. Revise the authority citation for part 774 to read as follows:

    Authority: 23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and
204(h)(2); 49 U.S.C. 303; Section 6009, Pub. L. 109-59, Aug. 10,
2005, 119 Stat. 1144; 49 CFR 1.81 and 1.91; and, Pub. L. 114-94, 129
Stat. 1312, Sections 1303 and 11502.

0
20. Amend Sec.  774.3 by revising footnote 1 to read as follows:

Sec.  774.3  Section 4(f) approvals.

* * * * *
    \1\ FHWA Section 4(f) Programmatic Evaluations can be found at

www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp.
* * * * *
0
21. Amend Sec.  774.13 by revising paragraph (a) to read as follows:

Sec.  774.13  Exceptions.

* * * * *
    (a) The use of historic transportation facilities in certain
circumstances:
    (1) Common post-1945 concrete or steel bridges and culverts that
are exempt from individual review under 54 U.S.C. 306108.
    (2) Improvement of railroad or rail transit lines that are in use
or were historically used for the transportation of goods or
passengers, including, but not limited to, maintenance, preservation,
rehabilitation, operation, modernization, reconstruction, and
replacement of elements of such railroad or rail transit lines except
for:
    (i) Stations;
    (ii) 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; and
    (iii) Historic sites unrelated to the railroad or rail transit
lines.
    (3) Restoration, rehabilitation, or maintenance of other types of
historic transportation facilities, if the Administration concludes, as
a result of the consultation under 36 CFR 800.5, that:
    (i) Such work will not adversely affect the historic qualities of
the facility that caused it to be on or eligible for the National
Register; and
    (ii) The official(s) with jurisdiction over the Section 4(f)
resource have not objected to the Administration conclusion in
paragraph (a)(3)(i) of this section.
* * * * *
0
22. Amend Sec.  774.15 by revising paragraph (f)(2) to read as follows:

Sec.  774.15  Constructive use determinations.

* * * * *
    (f) * * *
    (2) For projected noise levels:
    (i) The impact of projected traffic noise levels of the proposed
highway project on a noise-sensitive activity do not exceed the FHWA
noise abatement criteria as contained in Table 1 in part 772 of this
chapter; or
    (ii) The projected operational noise levels of the proposed transit
or railroad project do not exceed the noise impact criteria for a
Section 4(f) activity in the FTA guidelines for transit noise and
vibration impact assessment or the moderate impact criteria in the FRA
guidelines for high-speed transportation noise and vibration impact
assessment;
* * * * *
0
23. Amend Sec.  774.17 by revising the definitions for
``Administration'' and ``CE'' to read as follows:

Sec.  774.17  Definitions.

* * * * *
    Administration. The FHWA, FRA, or FTA, whichever is approving the
transportation program or project at issue. A reference herein to the
Administration means the 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, 327, or
other applicable law.
* * * * *
    CE. Refers to a Categorical Exclusion, which is an action with no
individual or cumulative significant environmental effect pursuant to
40 CFR 1508.4 and Sec.  771.116, Sec.  771.117, or Sec.  771.118 of
this chapter; unusual circumstances are taken into account in making
categorical exclusion determinations.
* * * * *

Title 49--Transportation

PART 264--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
24. Revise the authority citation for part 264 to read as follows:

    Authority:  42 U.S.C. 4321 et seq.; 49 U.S.C. 303; 23 U.S.C.
139; 40 CFR parts 1500 through 1508; 49 CFR 1.81; Pub. L. 112-141,
126 Stat. 405, Section 1319; and Pub. L. 114-94, 129 Stat. 1312,
Sections 1432 and 11502.

0
25. Revise the heading for part 264 to read as set forth above.
0
26. Revise Sec.  264.101 to read as follows:

Sec.  264.101  Procedures for complying with the surface transportation
project delivery program application requirements and termination.

    The procedures for complying with the National Environmental Policy
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes,
regulations, and orders are set forth in part 771 of title 23 of the
Code of Federal Regulations. The procedures for complying with 49
U.S.C. 303, commonly known as ``Section 4(f),'' are set forth in part
774 of title 23 of the Code of Federal Regulations. The procedures for
complying with the surface transportation project delivery program
application requirements and termination are set forth in part 773 of
title 23 of the Code of Federal Regulations.

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
27. Revise authority citation for part 622 to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 23
U.S.C. 139 and 326; Pub. L. 109-59, 119 Stat. 1144, Sections 6002
and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81; Pub. L. 112-141, 126
Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319; and Pub. L.
114-94, 129 Stat. 1312, Sections 1314 and 1432.

[FR Doc. 2017-20565 Filed 9-27-17; 11:15 am]
 BILLING CODE 4910-22-P