Procedures for Considering Environmental Impacts

CourtThe Secretary Of Transportation Office
Citation85 FR 74640
Published date23 November 2020
SectionProposed rules
Record Number2020-25030
Federal Register, Volume 85 Issue 226 (Monday, November 23, 2020)
[Federal Register Volume 85, Number 226 (Monday, November 23, 2020)]
                [Proposed Rules]
                [Pages 74640-74663]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-25030]
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                DEPARTMENT OF TRANSPORTATION
                Office of the Secretary of Transportation
                49 CFR Part 13
                [Docket No. DOT-OST-2020-0229]
                RIN 2105-AE97
                Procedures for Considering Environmental Impacts
                AGENCY: Office of the Secretary (OST), DOT.
                ACTION: Notice of proposed rulemaking (NPRM).
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                SUMMARY: The U.S. Department of Transportation (DOT) proposes to update
                and codify its internal order establishing the responsibilities and
                procedures for complying with the National Environmental Policy Act
                (NEPA), currently found in DOT Order 5610.1C, ``Procedures for
                Considering Environmental Impacts,'' which was issued in 1979 and last
                updated in 1985. This proposal would update the DOT NEPA procedures in
                response to the Council on Environmental Quality's (CEQ's) final rule
                updating its NEPA procedures and also incorporate provisions of the
                Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
                Legacy for Users (SAFETEA-LU); Moving Ahead for Progress in the 21st
                Century Act (MAP-21); and the Fixing America's Surface Transportation
                (FAST) Act related to the Department's environmental review process.
                This proposed rule would modernize the Department's procedures and
                promote collaboration and efficiency in the implementation of NEPA.
                Finally, this proposal would also update the list of the Department's
                categorical exclusions consistent with the CEQ's regulations
                implementing NEPA.
                DATES: Persons interested in submitting written comments on this NPRM
                must do so by December 23, 2020. The Department will consider late
                comments to the extent practicable.
                ADDRESSES: To ensure you do not duplicate your docket submissions,
                please submit comments by only one of the following means:
                 Federal eRulemaking Portal: Go to 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 or Courier: U.S. Department of
                Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
                Room W12-140, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET,
                Monday through Friday, except Federal holidays.
                 Fax: (202) 493-2251.
                 Instructions: All comment submissions must include the agency name,
                docket name, and docket number (DOT-OST-2020-0229) or Regulation
                Identifier Number (RIN) for this rulemaking (2105-AE97). Note that all
                comments received will be posted without change to www.regulations.gov,
                including any personal information provided. Physical access to the
                Docket is available at the Hand Delivery address noted above.
                 This document may be viewed online under the docket number noted
                above through the Federal eRulemaking portal, www.regulations.gov. An
                electronic copy of this document may also be downloaded from the Office
                of the Federal Register's website, www.federalregister.gov, and the
                Government Publishing Office's website, www.govinfo.gov/app/collection/fr. In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
                public to better inform its rulemaking process. The DOT posts these
                comments, without edit, including any personal information the
                commenter provides, to www.regulations.gov, as described in
                [[Page 74641]]
                the system of records notice (DOT/ALL-14 FDMS), which can be viewed at
                www.transportation.gov/privacy.
                FOR FURTHER INFORMATION CONTACT: April Marchese, Director,
                Infrastructure Permitting Improvement Center, 202-366-4416,
                [email protected] or Krystyna Bednarczyk, Office of the General
                Counsel, 202-366-5283, [email protected].
                SUPPLEMENTARY INFORMATION:
                I. Introduction
                A. Statutory Authority
                 The National Environmental Policy Act, as amended, 42 U.S.C. 4321-
                4347 (NEPA), requires all Federal agencies to assess the environmental
                impact of their actions. 42 U.S.C. 4332(2)(C). The Council on
                Environmental Quality (CEQ) has issued regulations at 40 CFR parts
                1500-1508 (CEQ regulations) implementing NEPA that are binding on
                Federal agencies. On July 16, 2020, CEQ issued a final rule
                comprehensively updating those regulations. 85 FR 43304 (July 16,
                2020). The CEQ regulations require Federal agencies to develop or
                revise their procedures for implementing NEPA, as necessary, for
                consistency with CEQ's regulations or for efficiency. 40 CFR 1507.3(b),
                (c). The CEQ regulations require agencies to consult with CEQ during
                the development of their implementing procedures and prior to their
                publication in the Federal Register. 40 CFR 1507.3. The U.S. Department
                of Transportation (Department or DOT) has accordingly reviewed its
                current implementing procedures and undertakes this revision pursuant
                to 40 CFR 1507.3. The Department developed the proposed rule in
                consultation with CEQ. In accordance with 40 CFR 1507.3(a), the
                Department is proposing this rule and providing an opportunity for
                public review and comment on the proposal.
                B. Background
                 NEPA establishes a national environmental policy of the Federal
                Government to use all practicable means and measures to foster and
                promote the general welfare, create and maintain conditions under which
                man and nature can exist in productive harmony, and fulfill the social,
                economic, and other requirements of present and future generations of
                Americans. 42 U.S.C. 4331(a). Section 102(2) of NEPA establishes the
                procedural requirements to carry out the policy stated in section 101
                of NEPA. It requires Federal agencies to consider the environmental
                effects of proposed actions in their decisionmaking and prepare
                detailed environmental statements on recommendations or reports and
                other major Federal actions significantly affecting the quality of the
                human environment. 42 U.S.C. 4332(2)(C). In 2005, Congress enacted 23
                U.S.C. 139, ``Efficient environmental reviews for project
                decisionmaking,'' a streamlined environmental review process for
                highway, transit, and multimodal transportation projects through the
                Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
                Legacy for Users (SAFETEA-LU), Public Law 109-59, sec. 6002 (2005). In
                2012, Congress declared it in the national interest to accelerate
                transportation project delivery and reduce costs, and ensure that
                transportation planning, design, and construction are completed in an
                efficient and effective manner. Moving Ahead for Progress in the 21st
                Century Act (MAP-21), Public Law 112-141, sec. 1301 (2012) (set out at
                23 U.S.C. 101 note). In 2015, Congress also directed the Department to
                implement a variety of reforms to streamline and accelerate its
                environmental review process. See Fixing America's Surface
                Transportation Act (FAST) Act, Public Law 114-94 (2015).
                 The Department proposes to revise its current procedures, DOT Order
                5610.1C, ``Procedures for Considering Environmental Impacts,''
                originally published in 1979, 44 FR 56420 (Oct. 1, 1979), and codify
                them in the Code of Federal Regulations. DOT Order 5610.1C, which is
                now in effect, was updated in 1982 and 1985 (1985 procedures).\1\ This
                proposed rule would update and modernize the 1985 procedures and
                reflect current departmental NEPA practice. As reflected in the
                proposed rule, the Department also considered comments it received in
                response to its publication of proposed Order 5610.1D in the Federal
                Register on December 20, 2016. 81 FR 92966.
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                 \1\ Available at https://www.transportation.gov/sites/dot.gov/files/docs/Procedures_Considering_Environmental_Impacts_5610_1C.pdf.
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                 The Department is issuing this proposed rule to enhance and
                modernize the Department's environmental review processes, bring
                consistency to the documentation of environmental analyses under these
                processes, and incorporate strategies to complete environmental review
                more efficiently in accordance with streamlining efforts developed by
                the Department at the direction of Congress. This proposed rule would
                update the procedures to be consistent with CEQ's updated regulations
                and promote agency efficiency. This proposed rule would also update the
                1985 procedures to account for relevant project delivery provisions and
                other streamlining efforts included in SAFETEA-LU, MAP-21 and the FAST
                Act, that apply departmentwide. Accordingly, the proposed rule would
                reflect the Department's modern NEPA practices and unique project
                delivery statutory authorities by providing direction on analyzing
                multimodal projects in an expedited and streamlined manner, enhancing
                early coordination, and incorporating a multimodal categorical
                exclusion (CE) process that allows the Department's Operating
                Administrations (OAs) to utilize each other's CEs. The proposed rule
                would also incorporate agency practice, including environmental review
                tracking requirements, and would provide for accountability for agency
                NEPA compliance to senior agency officials, consistent with the updated
                CEQ regulations. See 40 CFR 1508.1(dd).
                 The proposed rule seeks to ensure a full and fair environmental
                review process that includes meaningful public involvement throughout,
                and balanced consideration of alternatives and potential impacts on the
                human environment. The proposed rule would modernize the 1985
                procedures to improve efficiency and expedite project delivery; provide
                enhanced customer service to stakeholders through consistent
                implementation of NEPA across the Department, where possible; provide
                support for the Department's OAs to apply OAs specific NEPA
                implementing procedures to their specific programs; and balance the
                needs of all OAs. These reforms are intended to ensure that NEPA
                documents inform and involve the public, focus on the significant
                issues that require analysis, and foster informed decisionmaking based
                on an understanding of the potential action's environmental
                consequences.
                C. Expected Impact of the Proposed Rule
                 This proposed rule would revise the internal procedures of the
                Department, promoting consistent implementation across the Department
                of its responsibilities under NEPA while still allowing flexibility for
                each OA to carry out its own mission. Facilitating the appropriate use
                of departmental CEs would reduce the expenditure of government
                resources on the preparation of environmental assessments (EAs) or
                environmental impact statements (EISs) and would shorten approval
                timelines for activities or projects that, based on the
                [[Page 74642]]
                Department's experience, normally do not have the potential to have a
                significant effect on the human environment and therefore normally do
                not require the preparation of an EA or EIS. 40 CFR 1501.4.
                Promulgating CEs for the entire Department also promotes consistency,
                reduces inefficiency, and allows OA procedures to focus on the unique
                issues in their programs. Codifying all these policies and procedures
                would provide consistency, aid efficiency, reduce duplication, and
                refocus agency practice on fostering informed decisionmaking, rather
                than generating paperwork. The Department expects that this would
                reduce unnecessary delays. The Department also expects the proposed
                changes to increase the availability and use of CEs, early
                collaboration, and dispute resolution and coordination techniques, and
                to improve timely completion of the environmental review process.
                II. Proposed Revisions Generally
                 The proposed rule would comprehensively update the 1985 procedures.
                This proposal would update the organization of the 1985 procedures to
                align with current Department organization, practice, and policies to
                more effectively and efficiently implement the DOT NEPA policies and
                the new revisions of the CEQ regulations published on July 16, 2020 (85
                FR 43304). The proposal would update the existing Departmentwide CEs,
                including adding 11 new CEs and modifying the existing CEs. The
                proposal would also improve clarity and reduce ambiguity regarding the
                entities responsible for taking the actions specified in the rule. To
                improve readability, this proposal would designate ``OA'' as the entity
                responsible for conducting NEPA analyses, and would define ``OA'' to
                include a Secretarial Office that carries out its own NEPA
                responsibilities (as opposed to an office that relies on an OA's
                expertise to prepare the NEPA document). This proposal also would
                update the names of the relevant offices that have responsibilities,
                including the Office of Policy and Office of the General Counsel (and
                relevant subdivisions thereof). The proposal would apply to the
                Department's diverse programs and actions, and, to the extent possible,
                would avoid creating conflicts with existing OA programs and actions.
                To that end, the Department does not propose to include the more
                detailed policy concerning the format and content of EISs that was
                contained in Attachment 2 of the 1985 procedures. DOT also does not
                propose to include Attachment 1 of the 1985 procedures, which provided
                a list of the States and localities with EIS requirements. Finally,
                this proposal would update terminology for consistency with modern NEPA
                practice and the Department's current operations. The proposed
                revisions to the 1985 procedures are provided in Table 1.
                 Table 1--Crosswalk of Proposed Revisions to 1985 Procedures
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                 1985 Procedures Section Proposed subpart Proposed section
                ----------------------------------------------------------------------------------------------------------------
                Introduction......................... 1. Purpose............. A...................... 13.1.
                 2. Cancellation........ Removed................ Removed.
                 3. Authority........... B; Appendix C of part 13.7(d); Appendix C of
                 13. part 13.
                1. Background........................ ....................... Removed................ Removed.
                2. Policy and Intent................. ....................... A; B................... 13.5; 13.13.
                3. Planning and Early Coordination... ....................... B...................... 13.9.
                4. Environmental Processing Choice... a. Action Covered...... A...................... 13.3.
                 b. Environmental Impact B...................... 13.23.
                 Statements.
                 c. Categorical B; Appendix A of part 13.17; Appendix A of
                 Exclusions. 13. part 13.
                 d. Environmental B...................... 13.19.
                 Assessment. Removed................ Removed.
                 e. Exemptions..........
                5. Finding of No Significant Impact ....................... B...................... 13.21.
                 (FONSI).
                6. Lead Agencies and Cooperating ....................... B...................... 13.11.
                 Agencies.
                7. Preparation and Processing of a. Scope of Statement.. B...................... 13.23(c).
                 Draft Environmental Impact b. Timing of B...................... 13.25(a).
                 Statements (DEISs). Preparation of Draft
                 Statements.
                 c. Interdisciplinary B...................... 13.13(d).
                 Approach and
                 Responsibility for EIS
                 Preparation.
                 d. Preparation of Draft Removed................ 13.13(a); Appendix C.
                 e. Format and Content.. B...................... 13.23(e).
                 f. Circulation of the B...................... 13.25(c).
                 Draft Environmental
                 Impact Statement.
                 g. Tiering............. B...................... 13.13(f).
                 B...................... 13.25(b).
                 B...................... 13.23(f).
                 13.23(g).
                8. Inviting Comments on the DEIS..... a. State and Local B...................... 13.25(c).
                 Review. B...................... 13.23(d).
                 b. Review of EISs
                 Prepared Pursuant to
                 Section 102(2)(D) of
                 NEPA.
                9. Review of Environmental Impact ....................... Removed................ Removed.
                 Statements Prepared by Other
                 Agencies.
                10. Predecision Referrals to the a. DOT Lead Agency B...................... 13.13(e)(2)(i).
                 Council on Environmental Quality. Proposals. B...................... 13.13(e)(2)(ii).
                 b. DOT Referrals to CEQ
                 on Other Agencies'
                 Proposals.
                [[Page 74643]]
                
                11. Final Environmental Impact a. Preparation......... ....................... 13.27(a).
                 Statements. b. Compliance with A; B; Appendix C of 13.5;
                 Other Requirements. part 13. 13.13(a);13.27(b);
                 Appendix C of part 13.
                 c. Legal Review........ B...................... 13.7.
                 d. Approval............ B...................... 13.27(e).
                 e. Availability Pending Removed................ Removed.
                 Approval.
                 f. Availability of B...................... 13.25(h)-(i); 13.27(g).
                 Statements to EPA and
                 the Public.
                 g. Implementation of B...................... 13.13(g).
                 Representations in
                 Environmental
                 Statements.
                 h. Supplemental B...................... 13.33(b).
                 Statements. B...................... 13.27(b).
                12. Determinations under Section 4(f) ....................... Removed................ Removed.
                 of the DOT Act.
                13. Responsibility................... ....................... B...................... 13.7.
                14. Citizen Involvement Procedures... ....................... B...................... 13.13(h).
                15. Proposals for Legislation........ a. Preparation......... B...................... 13.37(a).
                 b. Processing.......... B...................... 13.37(b).
                16. International Actions............ ....................... B...................... 13.39.
                17. Timing of Agency Action.......... ....................... B...................... 13.23(j).
                18. Effective Date................... ....................... Removed................ Removed.
                19. Time in Effect of Statements..... ....................... B...................... 13.33(a).
                20. Implementing Instructions........ ....................... B...................... 13.7(e).
                21. Responsible Official for Office ....................... B...................... 13.7.
                 of the Secretary Actions.
                Attachment 1. State and Localities ....................... Removed................ Removed.
                 with EIS Requirements.
                Attachment 2. Format and Content of ....................... Removed................ Removed.
                 Environmental Impact Statements.
                 B...................... 13.29.
                 B...................... 13.31.
                 B...................... 13.35.
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                III. Section-by Section Description of Changes in the Proposed Rule
                 This proposal would rearrange the 1985 procedures and would
                separate them into two subparts to divide the generally applicable
                provisions in subpart A from the provisions addressing the NEPA review
                process and compliance responsibilities in subpart B. In addition,
                subpart B would reorder sections from the 1985 procedures to align with
                the Department's environmental review process and the levels of NEPA
                documentation.
                A. Subpart A--General
                 This proposal would remove the Introduction and Background sections
                of the 1985 procedures and would transfer content addressing the
                purpose of the Department's NEPA implementing procedures to proposed
                Sec. Sec. 13.1 and 13.5. Proposed subpart A would significantly
                reorganize and update section 2 of the 1985 procedures, ``Policy and
                Intent,'' in proposed Sec. 13.5 to reflect current policy and intent
                of the DOT NEPA procedures. As discussed more specifically in the
                section-by-section summaries of proposed Sec. Sec. 13.1 through 13.5,
                this proposed subpart would emphasize the Department's goals to: (1)
                Achieve the Department's mission and ensure consistency with national
                transportation policy (Sec. 13.5(a)); (2) use the NEPA process as an
                umbrella to achieve a single, integrated environmental review process
                \2\ (Sec. 13.5(b)); (3) use sound science and reliable data (Sec.
                13.5(c)); (4) facilitate a collaborative process to achieve optimal
                outcomes while protecting and enhancing the environment (Sec.
                13.5(d)); and (5) ensure meaningful public participation and
                collaboration (Sec. 13.5(e)).
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                 \2\ For the purpose of this NPRM, ``environmental review''
                encompasses both the NEPA process and authorizations, including
                reviews or actions taken to comply with relevant substantive
                environmental requirements.
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                 This proposed subpart would set forth the Department's overarching
                environmental policy in the context of its agency mission, which is to
                ensure the safest, most efficient and modern transportation system in
                the world, which improves the quality of life for all American people
                and communities, from rural to urban, and increases the productivity
                and competitiveness of American workers and businesses. The proposed
                subpart would provide consistency between the Department's NEPA
                procedures and congressional declarations of policy, which provide that
                it is in the national interest to ``accelerate project delivery and
                reduce costs'' and to ensure that transportation project delivery is
                completed in ``an efficient and effective manner, promoting
                accountability for public investments and encouraging greater private
                sector involvement . . . while enhancing safety and protecting the
                environment.'' MAP-21 sec. 1301 (set out at 23 U.S.C. 101 note).
                Finally, this subpart would support the presumptive time limits
                established in the updated CEQ regulations to complete environmental
                documentation. See 40 CFR 1501.10.
                Sec. 13.1 Applicability
                 The applicability section would focus on the implementation of NEPA
                pursuant to the CEQ regulations and include covered actions. Covered
                actions would identify categories of Department actions typically
                subject to
                [[Page 74644]]
                NEPA. For consistency with the CEQ regulations at 40 CFR 1508.1(q),
                this section would clarify that loans and loan guarantees may be
                actions subject to NEPA when the OA exercises sufficient control and
                responsibility over the effects of such assistance. This list would
                also include ``approvals of policies and plans (including those
                submitted to the Department by State, Tribal, or local agencies, or
                other public or private applicants, unless otherwise exempted).''
                 The CEQ regulations at 40 CFR 1501.1 and 1507.3(d) provide that
                agencies should identify activities or decisions that are not subject
                to NEPA. This section would exclude transportation improvement plans
                (TIPs) and statewide improvement plans (STIPs) conducted pursuant to 23
                U.S.C. 134 and 135 because TIPs and STIPs are statutorily exempt from
                review under NEPA pursuant to 23 U.S.C. 134(q) and 23 U.S.C. 135(k),
                respectively. In addition, the section would clarify, consistent with
                40 CFR 1501.1(a)(5) and 1507.3(d)(5), and with Department of
                Transportation v. Public Citizen, 541 U.S. 752 (2004), that a proposal
                is not an action subject to NEPA if the proposal is ministerial in
                nature; if the Department lacks discretion to consider the
                environmental impacts in making the decision; or if the Department does
                not have responsibility for, or cannot control, the outcome. DOT
                recommends that OAs identify any specific additional activities or
                decisions to which NEPA does not apply, consistent with 40 CFR 1501.1
                and 1507.3(d), as appropriate, in their own implementing procedures as
                stated in Sec. 13.7(c)(1).
                 The Department proposed to use ``rulemakings'' rather than the
                phrase ``rulemaking and regulatory actions'' as used in DOT Order
                5610.1C because the term rulemaking already encompasses regulatory
                actions by its definition. In addition, the Department does not include
                ``research activities'' because most of the Department's research
                activities would not have environmental impacts subject to NEPA. To the
                extent that a research activity is an action, it may be appropriate to
                categorically exclude an action under CE #9. References to other
                environmental requirements are updated and reorganized. The Department
                therefore proposes to list certain authorities previously listed in
                paragraph 3 of the Introduction section of the 1985 procedures in
                Appendix C of proposed part 13. In addition, the Department would not
                include statutory references that are not broadly applicable to the
                Department, are substantively addressed elsewhere in the proposed rule,
                or are implemented by OA procedures. As a result, this proposal would
                not include the following references: Section 2(b) of the Department of
                Transportation Act of 1966 (49 U.S.C. 1653); Section 309 of the Clean
                Air Act, as amended (42 U.S.C. 7401 et seq.); Section 303 of the
                Coastal Zone Management Act of 1972 (43 U.S.C. 1241); and, where
                environmental statements are required, Sections 138 and 109 of Federal
                aid highway legislation (Title 23); Sections 16 and 18(a) of the
                Airport and Airway Development Act of 1970 (49 U.S.C. 1716, 1718); and
                Section 14 of the Urban Mass Transportation Act of 1964 (49 U.S.C. 1601
                et seq.).
                Sec. 13.3 Definitions
                 While the 1985 procedures did not contain a definitions section,
                the Department determined that it would be helpful to define certain
                terms to reduce ambiguity as to certain terminology used in this
                proposed rule and by the Department's NEPA practitioners. This proposed
                section would incorporate by reference the definitions from the CEQ
                regulations set forth in 40 CFR 1508.1, and supplement those
                definitions where necessary. This section would define the following
                terms:
                 (a) Applicant. This definition would define ``applicant'' broadly
                to reflect the variety of applicants encountered across the Department.
                This definition also would recognize that some OA NEPA implementing
                procedures (OA Procedures) provide that the applicant will carry out
                some of the responsibilities of the OA on its behalf, and therefore
                could conduct activities under the Department's NEPA procedures on
                behalf of that OA. This definition is intended to provide flexibility
                to OAs that administer programs where applicants are responsible for
                preparing NEPA documents on behalf of OAs. This includes State DOTs,
                transit agencies, and other applicants that prepare NEPA documents or
                carry out other responsibilities for the NEPA process pursuant to OA
                NEPA procedures. For purposes of this part, the definition of
                ``applicant'' does not include States that are assigned environmental
                review responsibilities pursuant to a memorandum of understanding
                executed pursuant to statutory authority under 23 U.S.C. 326 and 327.
                States that carry out such assignments are deemed to be OAs for
                purposes of this part.
                 (b) Environmental review process. The Department would include this
                term to emphasize that the Department strives to comply not just with
                NEPA, but with all applicable environmental requirements in a single
                process, so as to ensure efficient project delivery and decisionmaking.
                 (c) Level of NEPA Review. The Department would include this term to
                mean the level of NEPA review required for a particular action (i.e., a
                CE, an EA, or an EIS).
                 (d) NEPA Document. The proposal would use the term ``NEPA
                document'' in addition to ``environmental document'' as used in the CEQ
                regulations, and would define it more broadly to include an EIS, a
                record of decision (ROD), an EA, a finding of no significant impact
                (FONSI), or any documentation that may be prepared in the application
                of a CE to a proposed action.
                 (e) Operating Administration (OA): The Department would define
                ``OA'' to mean any agency established within the Department, and cross
                reference to the list of the current OAs in 49 CFR 1.3. As noted in
                Section II of this rulemaking, to improve readability of this proposal,
                ``OA'' would also include a Secretarial Office where that office is
                carrying out its own NEPA responsibilities.
                Sec. 13.5 Environmental Review Policy
                 This proposed section would set forth the Department's policies for
                evaluating environmental impacts caused by Department actions. This
                section would modify language previously contained in sections 1 and 2
                of the 1985 procedures and would state in proposed paragraphs (a), (b),
                and (c) that the policy of the Department is to: Integrate Federal
                environmental objectives into Department programs while avoiding or
                minimizing adverse environmental effects wherever practicable;
                synchronize NEPA and other environmental requirements into a single,
                concurrent process; and apply sound science, reliable data, and a
                systematic interdisciplinary approach.
                 The Department's policies further statutory directives set forth in
                section 1313 of the FAST Act to: Develop a coordinated and concurrent
                environmental review and permitting process for transportation projects
                as well as align Federal reviews; reduce permitting and project
                delivery timelines; and facilitate interagency collaboration.
                Accordingly, proposed paragraphs (d) and (e) would include instructions
                to: Maximize the use of proven strategies to complete the environmental
                review process efficiently; and encourage meaningful, proactive, open,
                and transparent public participation and collaboration.
                 In addition, this proposed section would not include certain policy
                language from the 1985 procedures to
                [[Page 74645]]
                update and align the Department's processes with the updated CEQ
                regulations and statutory provisions contained in section 1301 of MAP-
                21 (set out at 23 U.S.C. 101 note) directing the Department to
                accelerate transportation project delivery, reduce costs, and ensure
                that transportation projects are completed in a streamlined manner and
                that environmental reviews are efficient and effective. The Department
                will continue to conduct environmental reviews consistent with 40 CFR
                1501.3 and other authorities, where applicable, including Section 4(f)
                (23 U.S.C. 138 and 49 U.S.C. 303). For purposes of streamlining the
                procedures, the Department would clarify in Appendix C its expectation
                that OAs would integrate into the NEPA process compliance with
                substantive environmental laws. As to this section, the Department is
                of the view that it is not necessary to include specific references
                regarding: Preservation of the natural beauty of the countryside and
                public park and recreation lands, wildlife and waterfowl refuges, and
                historic sites; preservation, restoration, and improvement of wetlands;
                improvement of the urban physical, social, and economic environment;
                and provision of opportunities for disadvantaged persons. These matters
                are otherwise covered in substantive environmental laws.
                 The Department would not include language stating that the EIS,
                FONSI, and determination that a proposed action is categorically
                excluded serve as the record of compliance with the Department's
                environmental review policy, NEPA procedures, and other environmental
                statutes and Executive orders. The proposal recognizes that an EIS
                contains analyses, but is not a decision document like a FONSI or CE
                determination, and an EIS alone is not final agency action. See 40 CFR
                1500.3(c) and 85 FR at 43318.
                B. Subpart B--NEPA Review Process
                Sec. 13.7 Managing NEPA Compliance
                 Proposed Sec. 13.7 would be a new addition to the Department's
                implementing procedures. This section would list the roles and
                responsibilities within the Department for implementing NEPA, the CEQ
                regulations, this proposed rule, OA implementing procedures, and other
                applicable laws.
                 The CEQ regulations introduce the term ``senior agency official''
                to differentiate between an agency decisionmaker for an individual
                action and the agency official who oversees the agency's overall
                compliance with NEPA. 40 CFR 1508.1(dd). CEQ acknowledged that multiple
                individuals may carry out these responsibilities in agencies that have
                subunits with their own agency procedures or NEPA compliance programs.
                85 FR 43304, 43315 (July 16, 2020). Within DOT, OAs carry out their own
                NEPA compliance programs. Accordingly, proposed paragraph (a) would
                identify the Assistant Secretary for Transportation Policy (Assistant
                Secretary) as the senior agency official responsible for implementing
                NEPA, establishing NEPA policy, and identifying the OA that will serve
                as the lead agency for all actions taken by the Department pursuant to
                49 CFR 1.25a(a)(2). For example, to create efficiencies, the senior
                agency official may designate one OA to act as the lead agency and to
                prepare the environmental documentation on behalf of all OAs for
                certain actions, such as when a multimodal project receives funding
                from or requires approval by one or more OAs. In addition, consistent
                with CEQ's direction and to maximize efficiency, these procedures
                would, in certain instances, permit an OA Administrator to carry out
                the responsibilities of a senior agency official at an OA level. For
                example, paragraph (c) of Sec. 13.19 would permit either the Assistant
                Secretary or an OA Administrator to act as the senior agency official
                for purposes of allowing an OA to exceed the presumptive limit of 75
                pages and to establish a new page limit for the EA. Similarly, for
                purposes of setting EA time limits for EAs, paragraph (c) of Sec.
                13.19 would authorize either official to set new time limits. Finally,
                consistent with the Department's Interim Guidance on Page Limits for
                National Environmental Policy Act Documents and Focused Analyses (84 FR
                44351 (August 23, 2019)), the Department would reserve to the Assistant
                Secretary in Sec. 13.23(f) through (g) similar decisionmaking
                authority for EISs.
                 Proposed paragraph (b) would identify the Office of the Secretary
                of Transportation, Office of Policy Development, Strategic Planning,
                and Performance (Office of Policy) as the responsible office for NEPA
                implementation and compliance with related environmental requirements,
                and as the source of additional environmental review process
                information. It would require OAs to consult with the Office of Policy,
                and in turn with the Office of the General Counsel (OGC), in certain
                situations.
                 Proposed paragraph (c) would identify OGC as legal counsel to the
                Office of Policy on topics related to the implementation and
                interpretation of NEPA, the CEQ regulations, this proposed rule, and
                other applicable laws; charge OGC with providing legal sufficiency
                determinations on Department NEPA documents; and charge OGC with
                coordinating with OAs and the Department of Justice on NEPA-related
                litigation.
                 Proposed paragraph (d) would identify this proposal as a supplement
                to CEQ regulations that sets forth procedures specific to Department
                actions, with which all OAs must comply. This provision originally
                appeared in the Introduction section of the 1985 procedures.
                 Proposed paragraphs (e)(1) through (5) would require each OA to
                issue or modify its NEPA implementing procedures through an Order or
                regulations consistent with this proposal, the CEQ regulations, and
                other applicable laws. This section would also outline the minimum
                requirements of each OA's procedures, and the process that OAs may use
                to revise existing or create new provisions. This direction was
                originally found at section 20 of the 1985 procedures and has been
                updated to reflect the updated CEQ regulations (85 FR 43304 (July 16,
                2020)). Finally, this proposed section would authorize OAs, subject to
                40 CFR 1507.3(a), to rely on their existing procedures until their new
                procedures are reviewed and revised, and to use, on a discretionary
                basis, portions of the Department's procedures to the extent such
                direction has not been incorporated into the OA's procedures.
                Sec. 13.9 Planning and Early Coordination
                 Proposed Sec. 13.9 would retain the direction provided in the 1985
                procedures at section 3, ``Planning and Early Coordination,'' and would
                incorporate direction for the early portions of the NEPA process.
                Proposed paragraph (a) is intended to implement MAP-21 sec. 1320, which
                encourages agencies to coordinate with one another ``at the earliest
                practicable time.'' Consistent with 40 CFR 1501.2(a), proposed
                paragraph (a)(1) would encourage early and ongoing coordination, and
                would require early efforts to identify the purpose and need,
                environmental impacts, reasonable alternatives, and measures to avoid,
                minimize, or mitigate adverse environmental impacts, as appropriate.
                Consistent with requirements in 40 CFR 1506.1, the proposed paragraph
                (a)(2) would include a general prohibition against taking actions that
                will have an adverse environmental impact or limit the choice of
                reasonable alternatives until after a final NEPA determination is
                [[Page 74646]]
                made; and it would set forth notification requirements should the OA
                become aware that such an action may have been taken. Proposed
                paragraphs (b) and (c) would build on section 3(b) of the 1985
                procedures. Proposed paragraph (b) would require OAs to ensure that
                applicants are aware of environmental review and analysis requirements.
                Proposed paragraph (c) would require coordination with other OAs;
                Federal, State, Tribal, and local resource and regulatory agencies;
                stakeholders; and the public to comply with NEPA and other relevant
                statutes, regulations, and Executive Orders. Proposed paragraph (d)
                would encourage reliance on information developed during the planning
                process to avoid duplicating efforts in the NEPA process. This proposal
                would encourage consideration of environmental impacts during
                transportation planning; however, this process is explicitly exempted
                from NEPA pursuant to 23 U.S.C. 134(q) and 135(k). Nevertheless, in
                accordance with MAP-21 sec. 1310 and FAST Act sec. 1305, this proposal
                would recognize the statutory framework that permits the products of
                statewide and metropolitan planning processes to be adopted for use in
                the NEPA process. Proposed paragraph (e) would discuss the use of the
                scoping process in early coordination to identify significant issues
                and to ensure early public involvement in the NEPA process. It further
                would instruct OAs to use early coordination tools to accelerate the
                EIS process.
                Sec. 13.11 Lead, Cooperating, and Participating Agencies
                 Proposed Sec. 13.11 would include language, with minor revisions,
                generally consistent with section 6 of the 1985 procedures, ``Lead
                Agencies and Cooperating Agencies.'' This section would outline the
                responsibilities of lead, joint lead, cooperating, and participating
                agencies consistent with the CEQ regulations, the appropriate timing
                for coordination with cooperating agencies, and protocols for
                coordinating with agencies that decline a DOT-requested cooperating
                agency status. This section would align with the update to the CEQ
                regulations, 40 CFR 1501.7 and 1501.8, to highlight the
                responsibilities of the lead agency, including the responsibility to
                issue a single environmental document, single FONSI, or single ROD for
                the lead and cooperating agencies, the responsibility to determine the
                scope and significant issues to be analyzed in depth in the
                environmental impact statement, and the responsibility to determine the
                purpose and need and range of alternatives in consultation with the
                cooperating agency. In addition, the lead agency would be responsible
                for creating and updating the project schedule in coordination with the
                cooperating agencies. Finally, proposed paragraph (d) would recommend
                inviting agencies that may have an interest in the proposed action and
                are not cooperating or lead agencies to participate in the
                environmental review process. This approach is similar to the
                participating agency role set forth in 23 U.S.C. 139(d). Since
                applicants may carry out the responsibilities of the OA on its behalf,
                this proposal would not include the requirement from the 1985
                procedures for applicants to serve as joint lead agencies.
                Sec. 13.13 General Principles for the NEPA Review Process
                 This proposal would include a new proposed Sec. 13.13. This
                proposed addition would build upon several provisions from the 1985
                procedures, including section 2, ``Policy and Intent;'' section 7,
                ``Preparation and Processing of Draft Environmental Statements;''
                section 10, ``Predecision Referrals to the Council on Environmental
                Quality;'' and section 14, ``Citizen Involvement Procedures.''
                 Proposed paragraph (a) would address the integration, to the
                maximum extent possible and at the earliest possible time, of all
                environmental reviews into the NEPA process to create a single
                environmental document.
                 To expedite project delivery, proposed paragraph (b) would instruct
                OAs to incorporate by reference previously prepared and publicly
                available analyses, whenever possible, and to include a brief summary
                of the material in the NEPA document.
                 Proposed paragraph (c) would set forth general requirements for
                NEPA documents, in accordance with 40 CFR 1500.4(d), 1502.2(a) and (c),
                and 1502.8, including that they be written in plain language and that
                they address impacts in proportion to their significance.
                 Proposed paragraph (d) would require OAs to use an
                interdisciplinary approach, consistent with 40 CFR 1502.6, and provide
                that they may use professional services but must have staff with the
                capacity to evaluate these services and must take responsibility for
                the final content of their NEPA documents, consistent with 40 CFR
                1506.5 and 1507.2.
                 Proposed paragraph (e) would promote the use of informal conflict
                resolution as well as environmental collaboration and conflict
                resolution (ECCR), consistent with the applicable requirements related
                to issue elevation and resolution outlined in section 6002 of SAFETEA-
                LU, 40 CFR 1504.2, and 1504.3(d) through (h), Executive Order (E.O.)
                13807, and the September 7, 2012, CEQ/OMB joint ``Memorandum on
                Environmental Collaboration and Conflict Resolution.'' Proposed
                paragraph (e)(2) would include with revisions section 10 of the 1985
                procedures, ``Pre-decision Referrals to the Council on Environmental
                Quality''. This proposed paragraph would address the internal process
                for addressing or making referrals to CEQ. Overall, the process would
                remain the same, with revisions to reflect current practices for
                internal clearance and documentation requirements.
                 Proposed paragraph (f) would provide direction on the use of
                tiering to improve or simplify the environmental analysis of actions
                that are similar or broad in nature, or when future decisions or
                unknown future conditions preclude a complete NEPA analysis, consistent
                with 40 CFR 1501.11 and 1502.4(b)(2). It also would encourage the use
                of programmatic approaches with resource or regulatory agencies, where
                possible. This instruction is consistent with MAP-21 sec. 1305, which
                modified the environmental review process mandated in sec. 6002 of
                SAFETEA-LU by explicitly authorizing the Department to use programmatic
                approaches to conduct environmental reviews. 23 U.S.C. 139(b).
                 Proposed paragraph (g), which is consistent with 40 CFR 1501.6(c),
                1505.2(a)(3) and 1505.3, would instruct OAs to identify in the FONSI or
                ROD those measures that the lead agency is adopting and committing to
                implement. Due to the importance of ensuring implementation of
                mitigation measures, OAs would be instructed to take appropriate steps
                to ensure that these mitigation measures are implemented, including,
                for third-party actions, by conditioning the agency decision upon the
                performance of the mitigation commitments. Where legal authority
                exists, OAs would be permitted to provide for mitigation monitoring.
                 Proposed paragraphs (h)(1) and (2) would identify public
                involvement as an important part of each stage of the development of a
                proposed action that should begin as early as reasonable and should be
                integrated into the NEPA process. The language would remain relatively
                unchanged from the original section 14 of the 1985 procedures, but has
                been updated to include modern technologies, such as using social
                media. Because the CEQ regulations provide flexibility with regard to
                public hearings, the Department does not
                [[Page 74647]]
                include section 14(e) of the 1985 procedures. The revised provision
                provides flexibility in implementation and recognizes the importance of
                various engagement strategies. In addition, the proposed rule states
                that that methods to solicit the views of the public should be tailored
                to reach those persons who are interested or affected by the action,
                and NEPA documents should be made available online where appropriate
                and practicable. Finally, this provision would incorporate CEQ's
                requirements from 40 CFR 1500.3(b), 1500.4(n), and 1503.3, that public
                comments be solicited as early in the process as possible, that they be
                specific, and that OAs provide notice that comments not submitted shall
                be forfeited as unexhausted.
                 Proposed paragraph (i) would recognize that NEPA decisionmaking may
                not be delegated to third parties, but that many NEPA documents are
                prepared by third parties. Accordingly, this paragraph would address
                the use of contractors in preparing NEPA documents and set forth
                requirements consistent with 40 CFR 1506.5, which require OAs to
                provide guidance, participate in the preparation of, and independently
                review and assume responsibility for the content of all NEPA documents.
                OAs would retain responsibility for the documents' accuracy, scope, and
                contents. The section also would provide guidance for the selection of
                contractors. The Department notes that OA procedures may include
                different requirements regarding the OA's use of contractors. See,
                e.g., 23 U.S.C. 112.
                 Proposed paragraph (j) would incorporate existing NEPA tracking
                requirements at 40 CFR 1501.7(i), 1501.9(d)(5), and 1507.4 under which
                certain OAs must report applicable actions on the Permitting Dashboard,
                www.permits.performance.gov. The DOT Reporting Standards \3\ clarify
                which OAs and which projects must be tracked. Currently the DOT
                Reporting Standards require the Federal Highway Administration, Federal
                Transit Administration, Federal Railroad Administration, and Federal
                Aviation Administration (including Stage agencies with NEPA assignment
                pursuant to 23 U.S.C. 327) to track all EAs and EISs for infrastructure
                projects. In addition, the DOT Reporting Standards reflect the E.O.
                13807 requirement that all OAs must track major infrastructure
                projects, as that term is defined in E.O. 13807. These reporting
                standards have been subject to modification since first established in
                2016 and may be subject to additional revisions in the future.
                Accordingly, the proposed rule would include only a high-level
                reference to the reporting requirements, while the specifics are
                addressed in the Reporting Standards to make it easier to revise as
                necessary.
                ---------------------------------------------------------------------------
                 \3\ The DOT Reporting Standards are available at: http://www.transportation.gov/transportation-policy/permittingcenter/federal-permitting-dashboard-reporting-standard.
                ---------------------------------------------------------------------------
                Sec. 13.15 Determination of the Level of NEPA Review
                 Proposed Sec. 13.15 would include with modifications the 1985
                procedures at section 4, ``Environmental Processing Choice.'' The
                discussions of CEs and EAs in section 4 would be addressed in proposed
                Sec. Sec. 13.17 and 13.19, respectively, and the list of references to
                OA CEs would be addressed in Appendix B. Proposed paragraph (a) would
                require OAs to establish the appropriate scope of the proposed action
                using, as applicable, the criteria in 40 CFR 1501.9(e) to determine the
                appropriate level of NEPA review. Proposed paragraph (b) would instruct
                OAs to ensure that the scope of a proposed action has independent
                utility or significance and does not unreasonably restrict the
                consideration of alternatives for other reasonably foreseeable actions
                to ensure meaningful and objective evaluation of alternatives. Proposed
                paragraph (c) would require analysis of the potentially affected
                environment and the degree of the effects in considering significance,
                consistent with 40 CFR 1501.3(b), which includes consideration of
                short- and long-term effects, beneficial and adverse effects, effects
                on public health and safety, and effects that would violate Federal,
                State, Tribal, or local laws protecting the environment where the
                effects are reasonably foreseeable and have a reasonably close causal
                relationship to the proposed action (see 1508.1(g)). Proposed paragraph
                (d) would reflect the Office of Policy's role as the responsible office
                for NEPA implementation and compliance and provide guidance to OAs to
                notify the Office of Policy for situations involving unresolved
                disagreements between the OA and an applicant regarding the appropriate
                level of NEPA review.
                Sec. 13.17 Categorical Exclusions
                 Section 13.17 would provide an update to the 1985 procedures at
                section 4(c), ``Categorical Exclusions.'' Proposed paragraph (a) would
                provide the definition of CEs, consistent with 40 CFR 1508.1(d) and
                1501.4, and the requirement to consider whether extraordinary
                circumstances are present such that the OA must prepare an EA or EIS.
                Proposed paragraph (b) would provide a list of extraordinary
                circumstances that an OA must consider before applying a CE listed in
                proposed Appendix A of part 13. These represent circumstances in which
                a normally excluded action may have significant environmental effects;
                this updated list would add substantial increases of noise in a noise-
                sensitive area; substantial adverse effects on a species listed or
                proposed to be listed on the List of Endangered or Threatened Species,
                or designated Critical Habitat for these species; a site that involves
                a unique characteristic of the geographic area, such as prime or unique
                agricultural land, a coastal zone, a historic or cultural resource,
                park land, wetland, wild and scenic river, designated wilderness or
                wilderness study area, sole source aquifer (potential sources of
                drinking water), or an ecologically critical area; as well as
                inconsistency with any applicable Federal, State, or local air quality
                standards, including those under the Clean Air Act, as amended;
                substantial short-or long-term increases in traffic congestion or
                traffic volumes on any mode of transportation; or substantial impacts
                on the environment resulting from the reasonably foreseeable,
                reportable release of hazardous or toxic substances. This list only
                would be applicable to the CEs listed in proposed Appendix A of part
                13. However, when updating OA Procedures, OAs would be directed to
                consider whether any of the extraordinary circumstances provided in
                proposed paragraph (b) are appropriate to add to their list.
                 Under section 1314 of MAP-21, Congress first amended 49 U.S.C. 304
                to establish a process by which OAs could apply CEs to multimodal
                projects, as that term is defined in 23 U.S.C. 139(a). Through section
                1310 of the FAST Act, Congress later amended 49 U.S.C. 304 so that one
                OA could apply the CE established in the procedures of another OA for
                multimodal projects, as defined in 23 U.S.C. 139(a)(5). Proposed
                paragraph (c) would implement these authorities departmentwide.
                 The CEQ regulations allow agencies to establish a process to use
                other Federal agencies' CEs for their proposed actions after
                consultation with the other agencies to ensure that use of their CEs is
                appropriate. The regulations require documentation of the consultation
                and identification to the public of those CEs that the OA may use for
                its proposed actions. 40 CFR 1507.3(f)(5). DOT requests comments on
                whether the Department should create such a process and on the design
                of any such process, or whether it is more
                [[Page 74648]]
                appropriate to direct each OA to develop a process in its own OA
                Procedures. If the departmental procedures were to include such a
                process, the provisions could describe the agency process under which
                an agency may borrow another agency's CE, including describing the
                proposed action, identifying potentially applicable CEs, documenting
                the applicability analysis, consulting with the originating agency,
                keeping records, and providing public notice. The Department will
                consider appropriate measures or provisions if it elects to establish
                such a process.
                 The CEQ regulations require agencies to review their existing NEPA
                procedures to ensure that they are consistent with CEQ's revised
                regulations and to adopt, as necessary, agency procedures that improve
                agency efficiency. 40 CFR 1507.3(b), 40 CFR 1501.4(a). The Department
                undertook such a review, and Appendix A would update and maintain a
                list of Departmental CEs. Based on its review, the Department would
                propose to add 11 new CEs, eliminate existing CE 3 and the subpart for
                existing 6b, and modify the remaining five existing CEs. Modifications
                to existing CEs would provide clarity and reflect the Department's
                experience with these activities. The Department provides additional
                information and justification for updating the existing CEs and
                supporting the new CEs in the docket for this rulemaking.
                 The proposed rule would re-order and re-number the Departmentwide
                CEs from the 1985 procedures. In the new proposed CEs, the Department
                has identified routine operational activities, including training and
                educational activities (proposed CE 3); leasing of space in existing
                buildings (proposed CE 6); remodeling existing facilities (proposed CE
                7); landscaping and landscape maintenance that does not cause
                introduction or spread of invasive species (proposed CE 8);
                investigations, research activities, and studies (proposed CE 9);
                hearings and public meetings (proposed CE 12); administrative actions
                and proceedings (proposed CE 13); financial assistance to an applicant
                solely for the purpose of refinancing outstanding debt, where the debt
                funds an action that is already completed as a categorically excluded
                activity (proposed CE 14); and certain agreements concerning foreign
                governments, foreign civil aviation authorities, and international
                organizations and the implementation of such agreements (proposed CE
                15).
                 This rule also would add two new CEs relating to rulemaking and
                policy activities. The first would cover the promulgation,
                modification, or revocation of rules and development of policies,
                notices, and other guidance documents that are strictly administrative,
                organizational, or procedural in nature; or are corrective, technical,
                or minor (proposed CE 10). The second CE would cover the promulgation,
                modification, revocation, or interpretation of safety standards, rules,
                and regulations that do not result in a substantial increase in
                emissions of air or water pollutants, noise, or traffic congestion, or
                increase the risk of reportable release of hazardous materials or toxic
                substances (proposed CE 11).
                 Finally, proposed CE 5 would modify existing CE 5 from the 1985
                procedures, which incorporates by reference CEs identified in OA
                Procedures, and would expressly allow one OA to apply the CE of another
                OA. In order to apply a CE listed in another OAs procedures, the OA
                that has established the CE in its procedures must confirm that the OA
                administering the action is applying the CE appropriately, and that the
                action to which the CE is being applied was contemplated when the CE
                was established. Therefore, the Department would revise the CE to read,
                ``Action categorically excluded in an OA's procedures where the action
                is administered by another OA. The OA with the CE must provide a
                written determination that the CE applies to the action proposed by the
                other OA and must provide expertise in reviewing the action being
                categorically excluded.''
                 Over the last decade, the Department has implemented a number of
                new programs and projects that go beyond the bounds of a particular OA.
                This updated CE would allow the Department the flexibility to
                administer its projects and programs more effectively and efficiently,
                taking advantage of multiple OAs' resources and expertise, while
                ensuring that CEs are appropriately applied to proposed actions. For
                example, the Department may ask one OA to administer a grant because it
                has extensive experience with that type of grantee, but the underlying
                project falls within the environmental expertise of another OA. The
                latter OA would determine whether application of its CEs to the project
                is appropriate because it is contemplated within that category of
                action and whether any extraordinary circumstances are present such
                that preparation of an EA or EIS may be required.
                Sec. 13.19 Environmental Assessments
                 Proposed Sec. 13.19 is a new section to address the preparation of
                EAs; it would update the 1985 procedures at section 4(d),
                ``Environmental Assessment,'' which provided guidance for the
                preparation of EAs. In accordance with 40 CFR 1501.5 and 1508.1(h),
                proposed paragraph (a) would explain when an EA must be prepared.
                Proposed paragraph (b) would provide the required elements for an EA,
                consistent with 40 CFR 1501.5, while proposed paragraph (c) would set
                forth an EA page limit of 75 pages consistent with 40 CFR 1501.5(f)
                unless a senior agency official approves in writing an EA to exceed 75
                pages and establishes a new page limit. It also would outline the
                senior agency official approval required to exceed page limits beyond
                these lengths. This paragraph would require the EA to be concise and to
                correlate to the magnitude of the proposed action and its anticipated
                impacts. Proposed paragraph (d) would provide the requirement that an
                EA should be prepared within one year from the agencies' determination
                to prepare an EA consistent with 40 CFR 1501.10(a)(1). If, during
                development of the EA, the OA concludes that there will be significant
                impacts and therefore would not issue a FONSI, the OA would issue an
                NOI, and the time limits for EISs would apply consistent with 40 CFR
                1501.10(a)(1).
                 Proposed paragraph (e) addresses the alternatives analysis for EAs,
                which may be limited to the proposed action and no action alternative,
                and may be analyzed to a degree commensurate with the nature of the
                proposed action and the OA's experience with the potential
                environmental impacts of similar projects. OAs would be instructed to
                indicate a preferred alternative in the EA, if one has been identified.
                For those alternatives that were considered and eliminated, the OAs
                would be directed to provide a brief justification of these decisions
                in the EA. Proposed paragraph (f) would note that EAs should reflect
                compliance or plans for compliance with other applicable environmental
                requirements, 40 CFR 1501.5(g)(3) and 1502.24, and proposed paragraph
                (g) would require an OA to evaluate the environmental issues
                independently and take responsibility for the accuracy, scope and
                contents of EAs prepared by applicants, 40 CFR 1506.5(b)(2). Proposed
                paragraph (h) would require OAs to involve the public, State, Tribal
                and local governments, relevant agencies, and any applicants to the
                extent practicable, 40 CFR 1501.5(e), and to make EAs available to the
                public, 40 CFR 1506.6(b) and 1501.6(a)(2). It would allow OAs to use
                their discretion to determine if a draft EA should be
                [[Page 74649]]
                released for public comment, though OAs would be required to address
                substantive comments in the final EA or FONSI.
                Sec. 13.21 Findings of No Significant Impact
                 Proposed Sec. 13.21 would incorporate with updates section 5 of
                the 1985 procedures, ``Finding of No Significant Impact,'' continuing
                to focus on the CEQ regulatory requirements for a FONSI set forth in 40
                CFR 1501.6. Consistent with that provision, proposed paragraph (b)
                would set forth the circumstances when an OA may issue a mitigated
                FONSI, including identifying the mitigation measures necessary to
                reduce the potential impacts below a level of significance; ensuring
                the existence of sufficient legal authority and adequate commitment and
                resources to execute the mitigation measures; requiring implementation
                of the mitigation measures in any agreement with an outside party; and
                where appropriate, providing for monitoring and further action when
                there is a failure to implement mitigation measures or a failure in
                their effectiveness.
                 As OAs, must make FONSIs available to the public as specified in 40
                CFR 1501.6, this section would not include the unnecessary instructions
                contained in section 5(c) of the 1985 procedures regarding internal
                coordination of FONSIs and circulation of Notices of Availability to
                State and area-wide clearinghouses. The proposed rule also does not
                include the instruction in section 5(c) that consultation with other
                Federal agencies concerning Section 4(f) (23 U.S.C. 138/49 U.S.C. 303),
                the National Historic Preservation Act, Clean Water Act Section 404
                permits, and other Federal requirements should be accomplished prior to
                or during the 30-day period. This requirement to consult applies to all
                EAs, not just when a 30-day public comment period is required. Rather
                than providing in this proposed rule specific direction on compliance
                with substantive requirements contained in other environmental
                statutes, the Department instead proposes to include in Appendix C a
                non-exhaustive list of relevant environmental reviews, authorizations,
                and consultations that OAs would be expected to integrate into the NEPA
                process.
                Sec. Sec. 13.23-13.27 Environmental Impact Statements
                 Proposed sections 13.23 through 13.27 would address the
                requirements for EISs. To improve clarity, the Department would include
                the requirements that apply to both draft and final EISs in proposed
                Sec. 13.23, and address requirements specific to draft EISs (DEISs) in
                proposed Sec. 13.25, and FEISs in proposed Sec. 13.27. Generally,
                these sections would set forth the requirements from the CEQ
                regulations, including those in 40 CFR part 1502, and update the
                information previously included in the 1985 procedures at section 7,
                ``Preparation and Processing of Draft Environmental Statements,''
                section 8, ``Inviting Comments on the Draft EIS,'' and section 11,
                ``Final Environmental Impact Statements.'' However, generally
                applicable instructions from these provisions in the 1985 procedures
                would be addressed in proposed Sec. 13.9.
                 Proposed paragraph (a) of proposed Sec. 13.23 would set forth when
                NEPA requires an EIS (42 U.S.C. 4332(2)(C)), and for clarity and
                consistency with 40 CFR 1507.3(e)(2), would note that examples of
                typical actions that require an EIS are listed in OA Procedures.
                Proposed paragraph (b) would instruct OAs to prepare a notice of intent
                to prepare an EIS and publish it in the Federal Register, 40 CFR
                1501.9(d) and 1508.1(u). Proposed paragraph (c) would set forth scoping
                requirements pursuant to 40 CFR 1501.9, 1506.3, and 1508.1(cc),
                including the actions, alternatives, and impacts that must be
                considered when determining the appropriate scope of issues to be
                addressed in the EIS. The scoping process must consider the type of
                action and determine the level of NEPA review. (See Section 13.15(c)).
                To determine whether the effects of the proposed action are
                significant, the OA must analyze the degree of the effects of the
                proposed action relative to the affected environment consistent with 40
                CFR 1501.3. Proposed paragraph (d) would instruct OAs to provide early
                notice and solicit the views of any State or Federal land management
                entity that may be significantly affected by an action proposed by a
                State agency or official with statewide jurisdiction (42 U.S.C.
                4332(2)(d)). Proposed paragraphs (e)(1) through (6) would, consistent
                with 40 CFR part 1502, address the format and content of EISs,
                including purpose and need, alternatives, affected environment,
                environmental consequences, mitigation, and the summary of submitted
                alternatives, information, and analyses. The detailed discussion of the
                contents of an EIS that is in Attachment 2 to the 1985 procedures, as
                well as discussions regarding documenting impacts to specific
                resources, is not included in the proposed rule. Specifically, proposed
                paragraph (e)(2) would emphasize that the draft EIS should identify the
                OA's preferred alternative(s), if one or more exists, unless in
                conflict with other laws; otherwise the OA should provide agencies and
                the public with the opportunity to assess the environmental
                consequences of the preferred alternative prior to issuing a combined
                FEIS/ROD, or the OA should provide the public with an opportunity to
                evaluate the preferred alternative during a waiting period after the
                publication of the notice of availability of the FEIS. Proposed
                paragraph (f) would require OAs to comply with document page limits in
                accordance with 40 CFR 1502.7. Proposed paragraph (g) would require
                that EISs be completed within two years from NOI to ROD. OAs must
                obtain approval from the Assistant Secretary to exceed this time frame,
                consistent with 40 CFR 1501.10(b)(2). Proposed paragraph (h) would
                reflect Departmental policy and CEQ regulations at 40 CFR 1502.11(g) to
                require OAs to include the total cost of the EIS on the cover page of
                an FEIS and a supplemental EIS. The amount reported would include the
                entire cost of the environmental review. Proposed paragraph (i) would
                set forth the requirement to file EISs with the Environmental
                Protection Agency (EPA) pursuant to 40 CFR 1506.10 and would note EPA's
                guidance on filing. Proposed paragraph (j) would address public notice
                and notice of availability requirements consistent with 40 CFR 1506.6.
                This proposed rule would remove from Attachment A of Order 5610.1C
                additional guidance not required under the CEQ regulations. Finally,
                proposed paragraph (k) would set forth the timing requirements for the
                OA's final decision, including the ability to reduce or extend time
                periods.
                Sec. 13.25 Draft Environmental Impact Statements
                 As noted in the discussion of proposed Sec. 13.23, proposed Sec.
                13.25 would address requirements specific to the preparation of DEISs.
                Proposed paragraph (a) would encourage early preparation of the DEIS to
                ensure that the decisionmaker can meaningfully consider the analysis in
                the decisionmaking process. 40 CFR 1502.5. Proposed paragraph (b) would
                encourage OAs to indicate in the DEIS when they intend to issue a
                combined FEIS/ROD pursuant to 49 U.S.C. 304a(b) or 23 U.S.C. 139(n). To
                ensure meaningful participation in the environmental review process,
                proposed paragraph (c) would set forth the specific circulation and
                request for comment requirements for DEISs. Pursuant to the updated CEQ
                [[Page 74650]]
                regulations, an OA must provide for electronic submission of public
                comments as well as ensure that the comment process is accessible to
                affected persons. See 40 CFR 1503.1(c).
                Sec. 13.27 Final Environmental Impact Statements
                 As noted in proposed Sec. 13.23, proposed Sec. 13.27 would
                address requirements specific to the preparation of FEISs and the
                Department's unique statutory authorities. For example, section 1319(a)
                of MAP-21 clarified that the lead agency can issue an FEIS that
                consists of ``errata pages''--rather than a complete, stand-alone
                document--if the agency received only ``minor comments'' on the DEIS.
                This flexibility existed under the CEQ regulations even before the
                enactment of MAP-21; however, section 1319(a) confirmed that this
                format is acceptable. It also required that errata pages ``(1) cite the
                sources, authorities, or reasons that support the position of the
                agency'' and ``(2) if appropriate, indicate the circumstances that
                would trigger agency reappraisal or further response.''
                 In addition, section 1319(b) of MAP-21 provided authority to issue
                a combined FEIS/ROD. The FAST Act repealed this provision and codified
                identical provisions at 49 U.S.C. 304a and 23 U.S.C. 139. These
                provisions direct the Department, when it acts as the lead agency, to
                issue the FEIS and ROD as a single document ``to the maximum extent
                practicable,'' unless (1) the FEIS makes substantial changes to the
                proposed action that are relevant to environmental or safety concerns;
                or (2) there are significant new circumstances or information relevant
                to environmental concerns and the circumstances or information bears on
                the proposed action or the impacts of the proposed action.
                 Proposed paragraphs (a) and (b) address resolution of comments on
                the DEIS in the FEIS. Consistent with 40 CFR 1503.4, proposed paragraph
                (a) would provide direction on responding to comments on the DEIS in
                the FEIS. Proposed paragraph (b) would provide for the use of errata
                sheets consistent with 49 U.S.C. 304a(a), 23 U.S.C. 139(n), and 40 CFR
                1503.4(c).
                 Proposed paragraph (c) would implement the requirements of 49
                U.S.C. 304a(b) and 23 U.S.C. 139(n) to issue a combined FEIS/ROD to the
                maximum extent practicable, unless the FEIS makes substantial changes
                to the proposed action that are relevant to environmental or safety
                concerns; or there is a significant new circumstance or information
                relevant to environmental concerns that bears on the proposed action or
                the impacts of the proposed action. When an OA is the lead agency and
                there are cooperating agencies, the cooperating agencies must, to the
                extent practicable, issue the FEIS/ROD jointly with the OA pursuant to
                40 CFR 1501.8(b)(8).
                 To ensure the integration of all environmental reviews into the
                NEPA process, proposed paragraph (d) would direct the FEIS to reflect
                compliance or plans for compliance with other environmental
                requirements; should such compliance not be possible by the time the
                FEIS is prepared, proposed paragraph (d) would direct OAs that the
                document should reflect consultation with the appropriate agencies and
                provide reasonable assurance that the OA can meet the requirements.
                This rule would not include section 12 of the 1985 procedures,
                ``Determinations Under Section 4(f) of the DOT Act,'' as discussion of
                determinations under Section 4(f) is outside the scope of the
                Department's NEPA implementing procedures. Proposed paragraph (e) would
                reiterate existing delegations for approval of FEISs. Proposed
                paragraph (f) would set forth the Department's policy to notify the
                Office of Policy for certain FEISs. Finally, to ensure meaningful
                participation in the environmental review process, proposed paragraph
                (g) would address circulation requirements for the FEIS.
                Sec. 13.29 Records of Decision
                 This new section would reference requirements for an OA record of
                decision (ROD). Proposed paragraph (a) would implement the requirements
                of 49 U.S.C. 304a(b) and 23 U.S.C. 139(n) to develop a combined FEIS/
                ROD. This paragraph would set forth the 30-day waiting period required
                by 40 CFR 1506.11(b)(2) in those instances where the OA determines it
                is not practicable within the meaning of 49 U.S.C. 304a(b) and 23
                U.S.C. 139(n) to issue a combined FEIS/ROD. In general, if a combined
                FEIS/ROD will not be prepared, and when the proposal requires action by
                multiple Federal agencies, proposed Sec. 13.29 clarifies that the OA
                should issue a single ROD with the other Federal agencies. Furthermore,
                for expediency, proposed Sec. 13.29 would allow the OA to integrate
                the ROD into another record or decision document, such as a final rule.
                Proposed paragraph (b) would set forth the topics to be addressed in
                the ROD, including alternatives, factors balanced in decisionmaking,
                and mitigation measures. Proposed paragraph (c) includes a requirement
                that the ROD provide a certification by the decisionmaker that the
                agency has considered all the alternatives, information, and analyses,
                and objections submitted for consideration by the lead and cooperating
                agencies in developing the EIS. FEISs certified in accordance with 40
                CFR 1505.2(b) are entitled to a presumption that the agency has
                considered the submitted alternatives, information, and analyses
                including the summary in the FEIS. Proposed paragraph (d) would clarify
                that the ROD should not repeat the analysis in the EIS, but should
                document the OA's decision and briefly discuss compliance with
                environmental laws applicable to the action or procedures, and expected
                timeframe for completion of such compliance. Finally, to reflect the
                Department's policy of using an interdisciplinary approach, proposed
                paragraph (e) would allow OAs to discuss preferences among alternatives
                based on relevant economic, technical, or other factors, and OA mission
                and authority.
                Sec. 13.31 Adoption
                 Proposed Sec. 13.31 would introduce a new section that is not in
                the 1985 procedures. This section would address adoption of NEPA
                documents pursuant to the CEQ regulation, 40 CFR 1506.3, and the
                Department's discretionary adoption authority under 49 U.S.C.
                304a(c)(2). Proposed paragraph (a) would discuss the adoption by OAs of
                EISs prepared by a lead agency on an action for which the OA is a
                cooperating agency, in accordance with 40 CFR 1506.3(b)(2)), while
                proposed paragraph (b) would provide information on adoption when the
                OA is not a cooperating agency but the action covered by the original
                EIS and the proposed action are substantially the same, including
                circulation requirements, in accordance with 40 CFR 1506.3(b)(1).
                Proposed paragraph (c) would cover the full or partial adoption of EISs
                when the OA is not a cooperating agency and the actions covered are not
                substantially the same, in accordance with 40 CFR 1506.3(b). Where the
                OA was not a cooperating agency, proposed paragraphs (b) and (c) direct
                the OA to issue a combined FEIS/ROD consistent with the directive in 49
                U.S.C. 304a and 23 U.S.C. 139(n). Proposed paragraph (d) provides for
                the full or partial adoption of an EA. Proposed paragraph (e) provides
                for adoption of a CE determination by another Federal agency when the
                action in the original CE determination and the proposed action are
                substantially the same. When doing so, the OA must document the
                adoption consistent with 40 CFR 1506.3(d) and proposed section
                13.25(b). Proposed paragraph (f) would
                [[Page 74651]]
                require re-evaluation of an EIS or EA that is more than 5 years old
                prior to its full or partial adoption, in accordance with proposed
                Sec. 13.33 and 40 CFR 1502.9(d)(4). Proposed paragraph (g) would
                require filing with the EPA when an OA adopts and publish an EIS, and
                finally, proposed paragraph (h) would allow an OA to adopt an EA, DEIS,
                or FEIS of another OA under 49 U.S.C. 304a(c)(2).
                Sec. 13.33 Re-Evaluation and Supplementation
                 Consistent with 40 CFR 1502.9(d)(4), re-evaluation is a
                longstanding practice of the Department to determine whether new
                information triggers the requirement to supplement an EIS pursuant to
                40 CFR 1502.9(d). A re-evaluation is a continuation of the project
                development process, and it does not necessarily re-open the NEPA
                decision. Proposed Sec. 13.33 would update and clarify the existing
                practice for re-evaluation outlined in section 19 of the 1985
                procedures, ``Time in Effect of Statements.'' In addition, the
                Department would revise the interval for re-evaluation from three to
                five years. Proposed paragraph (a)(1) would encourage the use of re-
                evaluation when there are changes to the proposed action or new
                circumstances or information relevant to environmental concerns.
                Additionally, proposed paragraph (a)(2) would require OAs to re-
                evaluate in writing DEISs if the OA has not issued an FEIS within five
                years of circulation of the DEIS, and FEISs if major steps toward
                implementation have not commenced within five years of FEIS approval.
                Proposed paragraph (b) would address the CEQ regulatory criteria for a
                supplemental EIS, as well as the discretion to supplement, circulation
                requirements for supplemental EISs, and the process for the approval of
                an alternative circulation procedure. 40 CFR 1502.9(d)(1).
                Sec. 13.35 Emergency Actions
                 Section 1432 of the FAST Act provided for exemptions and expedited
                procedures for certain environmental review processes during
                emergencies. Specifically, section 1432(b)(1) references alternative
                arrangements under 40 CFR 1506.12. Proposed Sec. 13.35 concerns such
                alternative arrangements. This new section would also address the CEQ
                regulation on emergencies, 40 CFR 1506.12, and related CEQ guidance.
                Finally, this section would build on section 17(c) of the 1985
                procedures, ``Timing of Agency Action,'', which details the internal
                process for consulting with CEQ concerning emergencies.
                 Proposed Sec. 13.35 would address emergency situations in proposed
                paragraph (a) and would provide mechanisms for NEPA compliance where
                the OA anticipates significant impacts in proposed paragraph (b) or
                non-significant impacts in proposed paragraph (c). In both instances,
                this section would provide the internal coordination process for such
                compliance.
                Sec. 13.37 Environmental Impact Statements for Legislative Proposals
                 Proposed Sec. 13.37 would address the requirements for legislative
                EISs consistent with 40 CFR 1506.8(c)(2). Consistent with the general
                updates set forth in Section II of this rulemaking, this proposed
                section would also incorporate and revise for clarity the substance of
                section 15 of the 1985 procedures, ``Proposals for Legislation,''
                Sec. 13.39 International Actions
                 Proposed Sec. 13.39 would address implementation of Executive
                Order 12114, Environmental Effects Abroad of Major Federal Actions
                addressed in section 16 of the 1985 procedures, ``International
                Actions.'' \4\ This section would streamline the provision by cross-
                referencing to the E.O., rather than repeating its applicability
                criteria. It also would direct OAs to prepare any required EIS
                consistent with this rule and OA procedures. Finally, this section
                would reflect minor edits for clarity consistent with the general
                updates set forth in Section II of this NPRM.
                ---------------------------------------------------------------------------
                 \4\ This section addresses compliance with the Executive Order
                rather than NEPA. The Executive Order's requirements were not
                altered by CEQ's revisions to its NEPA regulations. See CEQ, Update
                of the Regulations Implementing the Procedural Provisions of the
                National Environmental Policy Act: Final Rule Response to Comments
                at 551-52 (July 30, 2020).
                ---------------------------------------------------------------------------
                Appendix A--Appendix A to Part 13--List of Departmental Categorical
                Exclusions
                 Appendix A would list the existing, revised, and new departmentwide
                CEs. Consistent with the CEQ regulations, agencies or their subunits
                may determine that certain categories of actions normally do not have
                significant environmental impacts and therefore do not require further
                review under NEPA. As discussed in the analysis of proposed Sec. 13.17
                in Section III of this rulemaking, this proposed rule would clarify
                which categories of activities are categorically excluded and normally
                would not require additional NEPA analysis. The Department
                substantiated the proposed new and revised CEs by reviewing EA and EIS
                analyses to identify the environmental effects of previously
                implemented actions, benchmarking other Federal agencies' experience
                implementing similar categories of actions, and relying on the judgment
                and expertise of the Department's NEPA practitioners. The Department
                notes that other Federal agencies have established CEs for activities
                that are similar in nature, scope, and effect on the human environment.
                The Department provided for CEQ review the proposed draft changes and
                justification for each proposed change to the list in this appendix.
                Appendix B to Part 13--List of Categorical Exclusions in Operating
                Administration Procedures
                 Appendix B would provide cross-references to the OA CEs. The
                proposal would incorporate by reference all current CEs established and
                maintained by the OAs for use pursuant to CE #5.
                Appendix C to Part 13--Environmental Requirements for Integration With
                the NEPA Process
                 This rule would direct OAs to coordinate and integrate all relevant
                environmental and planning studies, reviews, and consultations into
                their environmental review process. This instruction is consistent with
                MAP-21 sec. 1305, and FAST Act sec. 1304, which requires the Department
                to align the environmental review process and substantive environmental
                legal compliance. To assist the Department's NEPA practitioners in
                harmonizing these reviews, Appendix C would provide a non-exhaustive
                list of the environmental requirements that should be integrated with
                the NEPA process.
                IV. Rulemaking Analyses and Notices
                (a) Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
                13563 (Improving Regulation and Regulatory Review), and DOT Regulations
                (49 CFR Part 5)
                 The Office of Information and Regulatory Affairs determined that
                this rule is a significant regulatory action under E.O. 12866, as
                supplemented by E.O. 13563, because it is related to the agency's
                implementation of the CEQ regulations implementing the procedural
                requirements of NEPA.
                 E.O. 12866 and E.O. 13563 require agencies to regulate in the
                ``most cost-effective manner,'' to make a ``reasoned determination that
                the benefits of the intended regulation justify its costs,'' and to
                develop regulations that ``impose the least burden on society.''. The
                rule would implement several changes to Department policies,
                procedures, and
                [[Page 74652]]
                internal coordination to streamline project delivery.
                 Several provisions are expected to create one-time de minimis
                administrative costs for the Department, including the requirement that
                OAs update their regulations and revise Department policies and
                processes to comply with the provisions in the regulation. The
                Department would also incur ongoing de minimis administrative costs due
                to staff time required by additional internal reporting and
                coordination.
                 The Department expects that the rule would yield administrative
                cost savings as a result of better intra- and interagency coordination
                and more efficient program management within the Department. The
                Department expects that these potential cost savings from the proposed
                rule would outweigh any one-time or ongoing de minimis administrative
                costs.
                 Several provisions could result in savings:
                 Requiring the use, where appropriate, of coordination
                tools including programmatic approaches and interagency agreements
                would decrease required staff time and resources by shortening review
                times and by reducing the duplication of efforts by the Department and
                by State and Federal resource agencies.
                 Establishing Departmentwide internal reporting and
                coordination requirements would allow the Department to allocate
                resources better to ensure that the environmental review process
                remains on schedule while also improving the identification of
                potential issues earlier in the environmental review process.
                 Setting presumptive NEPA document page limit provisions
                and increasing the timeframe that NEPA documents remain valid from
                three to five years would reduce the Departmental time and resources
                required to develop, issue, or review NEPA documents.
                 Allowing OAs to share CEs would save Department resources
                and staff time by reducing the number of EAs prepared for categories of
                projects that another OA has previously determined would not normally
                have a significant impact on the environment.
                 Introducing Departmentwide CEs that include research
                activities and rulemakings would reduce the administrative costs of
                conducting those activities.
                 Removing prescriptive EIS contents that were included in
                Attachment 2 of the 1985 procedures would allow documents to be
                tailored to use a more effective format for communication, thereby
                saving the Department and project sponsors time and resources in
                document preparation.
                 Project sponsors may also incur de minimis costs from the rule,
                such as staff time to calculate and provide the total cost of the
                environmental review process on the final environmental impact
                statement cover page. However, the Department expects that project
                sponsors would also achieve cost and time savings in the environmental
                review process which would outweigh these costs. An emphasis on
                programmatic approaches and interagency agreements in this regulation
                would save project sponsors staff time and resources by reducing
                environmental impact review times and by limiting duplicative
                submissions to multiple State and Federal agencies. Additional internal
                coordination and reporting requirements would increase the
                accountability and transparency of the environmental review process for
                project sponsors, and will allow for earlier identification and
                mitigation of risks that could otherwise slow down the overall
                environmental review process. The Department also expects that the
                provisions on page limits and an increase in the timeframe that NEPA
                documents remain valid would allow for savings in environmental
                document preparation.
                 The Department also expects that these changes would reduce the
                time required for projects to move through the environmental review
                process. As a result, projects may be completed earlier, and the
                benefits of transportation infrastructure improvements or research
                would accrue to the public sooner than they otherwise would have. The
                Department expects that codifying the required online posting of
                environmental documents would also improve the transparency of the
                environmental review process for the public. Finally, shorter
                environmental documents would facilitate reviews by decisionmakers and
                the public. The Department has issued a page limits policy memorandum,
                which would support this proposal, and which encourages using a clear
                and concise writing style to meet the page limits. Such environmental
                documents would be easier to read and may make it easier for the public
                to understand the potential environmental impacts of proposed
                transportation projects.
                (b) E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)
                 This proposed rule is expected to be an E.O. 13771 deregulatory
                action. Details on the estimated cost savings of this proposed rule can
                be found in the rule's economic analysis in section IV(a).
                (c) Regulatory Flexibility Act
                 The Regulatory Flexibility Act (RFA), (Pub. L. 96-354, 5 U.S.C.
                601-612) requires an agency to assess the impacts of proposed and final
                rules on small entities unless the agency determines that a rule is not
                expected to have a significant economic impact on a substantial number
                of small entities. DOT has evaluated the effects of this proposed rule
                on small entities such as small businesses, small organizations, and
                small governmental jurisdictions. Based on the evaluation, the
                Department anticipates that this action would not have a significant
                economic impact on small entities. The proposed rule would not directly
                regulate small entities, as the proposed rule applies to the Department
                and sets for its procedures for implementing the provisions of NEPA.
                Accordingly, the Department certifies that this proposed rule would not
                have a significant economic impact on a substantial number of small
                entities.
                (d) E.O. 13132 (Federalism)
                 E.O. 13132 requires agencies to ensure meaningful and timely input
                by State and local officials in the development of regulatory policies
                that may have a substantial, direct effect on the States, on the
                relationship between the national government and the States, or on the
                distribution of power and responsibilities among the various levels of
                government. DOT analyzed this action in accordance with the principles
                and criteria contained in E.O. 13132. This NPRM would establish
                internal administrative procedures for the DOT to comply with NEPA.
                This action will not have a substantial direct effect or federalism
                implications on the States and would not preempt any State law or
                regulation or affect the States' ability to discharge traditional State
                governmental functions because this proposed rule applies to the
                Department, not States. This action contains no Federal mandates for
                State and local governments and does not impose any enforceable duties
                on State and local governments. Because this action addresses only
                internal Department procedures for implementing NEPA, consultation with
                State or local governments is not necessary. The Department notes that
                some states have voluntarily assumed NEPA responsibility pursuant to 23
                U.S.C. 327.
                [[Page 74653]]
                (e) E.O. 13175 (Consultation and Coordination With Indian Tribal
                Governments)
                 Pursuant to E.O. 13175, ``Consultation and Coordination with Indian
                Tribal Governments,'' the Department has assessed the impact of this
                proposed rule on Indian tribal governments and has determined that the
                proposed rule would not significantly or uniquely affect communities of
                Indian tribal governments. The proposed rule deals with administrative
                procedures for complying with the requirements of the NEPA and, as
                such, has no direct effect on Indian Tribal governments. Because the
                proposed rule does not mandate Tribal participation in the Department's
                environmental review process, it does not impose substantial direct
                compliance costs on Indian tribal governments. The proposed rule will
                recognize the obligation to and benefit of including Indian tribes in
                public engagement strategies to fulfill relevant environmental review
                responsibilities. Accordingly, the funding and consultation
                requirements of Executive Order 13175 do not apply.
                (f) Paperwork Reduction Act
                 The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
                requires that DOT consider the impact of paperwork and other
                information collection burdens imposed on the public and, under the
                provisions of PRA section 3507(d), obtain approval from OMB for each
                collection of information it conducts, sponsors, or requires through
                regulations. The DOT has determined that the proposed rule does not
                contain a collection-of-information requirement subject to review and
                approval by the OMB under the PRA.
                (g) Unfunded Mandates Reform Act
                 The Department has determined that the proposed rule would not
                impose unfunded mandates as defined by the Unfunded Mandates Reform Act
                of 1995 (UMRA) (Pub. L. 104-4, 2 U.S.C. 1531-1538). The actions
                proposed in this NPRM do not contain any unfunded mandates as described
                in the UMRA, and does not significantly or uniquely affect small
                governments. This proposed rule does not impose any mandates on small
                entities. It addresses the Department's procedures for implementing the
                procedural requirements of NEPA.
                (h) National Environmental Policy Act
                 The CEQ regulations do not direct agencies to prepare a NEPA
                analysis before establishing agency procedures to supplement the CEQ
                regulations to implement NEPA. See 1507.3; Heartwood, Inc. v. U.S.
                Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd, 230
                F.3d 947, 954-55 (7th Cir. 2000) (holding that a decision to issue
                agency NEPA procedures does not require analysis and documentation
                under NEPA). The Department's NEPA procedures assist the Department in
                fulfilling its responsibilities under NEPA and the CEQ regulations, but
                are not themselves final determinations of the level of environmental
                review required for particular actions. The Department also anticipates
                that this rulemaking would be categorically excluded pursuant to the
                1985 procedures. Accordingly, the Department does not anticipate any
                environmental impacts from this proposal, and there are no
                extraordinary circumstances present in connection with this rulemaking.
                (i) Regulation Identifier Number
                 A regulation identifier number (RIN) is assigned to each regulatory
                action listed in the Unified Agenda of Federal Regulations. The
                Regulatory Information Service Center publishes the Unified Agenda in
                the spring and fall of each year. The RIN contained in the heading of
                this document can be used to cross reference this action with the
                Unified Agenda.
                List of Subjects in 49 CFR Part 13
                 Administrative practice and procedure, Environmental impact
                statements, Environmental protection, Natural resources.
                 Issued in Washington, DC, on November 6, 2020.
                Elaine L. Chao,
                Secretary.
                 In consideration of the foregoing, the Office of the Secretary of
                Transportation proposes to amend Title 49 of the Code of Federal
                Regulations by adding part 13 to read as follows:
                Title 49--Transportation
                PART 13--ENVIRONMENT REVIEW PROCESS
                Subpart A--General
                Sec.
                13.1 Applicability.
                13.3 Definitions.
                13.5 Environmental review policy.
                Subpart B--Nepa Review Process
                13.7 Managing NEPA compliance.
                13.9 Planning and early coordination.
                13.11 Lead, cooperating, and participating agencies.
                13.13 General principles for the NEPA review process.
                13.15 Determination of the level of NEPA review.
                13.17 Categorical Exclusions.
                13.19 Environmental Assessments.
                13.21 Findings of No Significant Impact.
                13.23 Environmental Impact Statements.
                13.25 Draft Environmental Impact Statements.
                13.27 Final Environmental Impact Statements.
                13.29 Records of Decision.
                13.31 Adoption.
                13.33 Re-evaluation and supplementation.
                13.35 Emergency actions.
                13.37 Environmental Impact Statements for legislative proposals.
                13.39 International actions.
                Appendix A to Part 13--List of Departmental Categorical Exclusions
                Appendix B to Part 13--List of Categorical Exclusions in Operating
                Administration Procedures
                Appendix C to Part 13--Environmental Requirements for Integration
                with the NEPA Process
                 Authority: 42 U.S.C. 4321-4347; 40 CFR parts 1500-1508; 49
                U.S.C. 304; 49 U.S.C. 304a; 49 U.S.C. 310; and E.O. 12114, 44 FR
                1957, Jan. 9, 1979, 3 CFR, 1979 Comp.
                Subpart A--General
                Sec. 13.1 Applicability.
                 (a) Pursuant to the National Environmental Policy Act, 42 U.S.C.
                4321-4347 (NEPA) and the Council on Environmental Quality (CEQ)
                regulations implementing NEPA, 40 CFR 1500 through 1508, this part
                establishes procedures for the consideration of environmental impacts
                by officials of the Department of Transportation (Department or DOT) as
                part of the decisionmaking process for DOT actions.
                 (b) Typical DOT actions may include grants; construction;
                regulatory actions; certifications; licenses; permits; waivers;
                approval of policies and plans (including those submitted to DOT by
                State, Tribal, or local agencies, or other public or private
                applicants, unless otherwise exempted); adoption or implementation of
                programs; legislation proposed by DOT; and any renewals or re-approvals
                of the foregoing. Consistent with 40 CFR 1508.1(q), an action is not
                subject to NEPA if, for example, it either does not allow for agency
                discretion to consider environmental impacts in decisionmaking or is
                not subject to DOT control and responsibility. Loans, loan guarantees,
                or other forms of financial assistance may be actions subject to NEPA
                when the OA exercises sufficient control and responsibility over the
                effects of such assistance.
                 (c) Consistent with 40 CFR 1501.1, proposed activities or decisions
                expressly exempt from NEPA under another statute are not actions. For
                example, decisions concerning plans, Transportation Improvement
                Programs
                [[Page 74654]]
                (TIPs), and Statewide Improvement Programs (STIPs) are not actions
                pursuant to the express exemptions in 23 U.S.C. 134 and 135,
                respectively.
                Sec. 13.3 Definitions.
                 The definitions in 40 CFR part 1508 apply to this part. The
                following definitions supplement these for the purposes of this part:
                 (a) Applicant means an individual; Federal agency, State, Tribal or
                local government; corporation; company; or any other party seeking an
                approval, financial assistance, special permit, waiver, certification,
                or other action from an OA.
                 (b) Environmental review process means the integrated process for
                compliance with NEPA and any other applicable environmental statutes,
                regulations, or Executive Orders (E.O.), including those that require a
                permit, approval, consultation, or authorization to proceed with an
                action.
                 (c) Level of NEPA review means the appropriate type of analysis
                required for a particular action (i.e., a categorical exclusion (CE),
                an environmental assessment (EA), or an environmental impact statement
                (EIS)).
                 (d) NEPA document means an EIS, record of decision (ROD), EA,
                finding of no significant impact (FONSI), or any documentation prepared
                to support the application of a CE to a proposed action.
                 (e) Operating Administration (OA) means any agency established
                within the Department, as listed in Sec. 1.3(b) of this subtitle, or
                an office within the Office of the Secretary of Transportation (OST).
                Sec. 13.5 Environmental review policy.
                 The policies in paragraphs (a) through (e) of this section govern
                the consideration of environmental impacts at DOT:
                 (a) Consistent with NEPA, the Department will integrate Federal
                environmental objectives into the programs of DOT to ensure the safest,
                most efficient and modern transportation system in the world, while
                considering measures to avoid, minimize, or compensate for adverse
                environmental effects wherever practicable, consistent with other
                essential considerations of national policy.
                 (b) The Department will strive to synchronize NEPA and other
                Federal environmental requirements and authorizations into a single,
                concurrent environmental review process that satisfies the requirements
                of all agencies with a role in a proposed action, expedites project
                delivery, and is completed within presumptive time limits.
                 (c) The Department will apply sound science, reliable data, and a
                systematic interdisciplinary approach to the environmental review
                process, including the use of geographic information systems, as
                appropriate.
                 (d) The Department will maximize the use of proven strategies to
                complete the environmental review process efficiently, including the
                use of electronic collaboration tools; programmatic agreements and
                approaches; and planning processes and products to inform NEPA
                requirements pursuant to applicable laws and regulations.
                 (e) The Department encourages meaningful, proactive, open, and
                transparent public participation and collaboration with affected and
                interested stakeholders, including Federal agencies, States, Tribes,
                localities, and the public in its environmental decision-making process
                to avoid, minimize, and compensate for impacts.
                Subpart B--Nepa Review Process
                Sec. 13.7 Managing NEPA compliance.
                 (a) Responsibility. Pursuant to Sec. 1.25a(a)(2) of this subtitle,
                the Assistant Secretary for Transportation Policy (Assistant Secretary)
                is the senior agency official who establishes policy and oversees the
                implementation of the NEPA process for the Department. The Assistant
                Secretary may determine which OA will serve as the lead agency to
                prepare the NEPA document for all actions taken by the Department for a
                proposed activity or project.
                 (b) Office of Policy. The OST Office of Policy Development,
                Strategic Planning, and Performance (Office of Policy) oversees NEPA
                implementation and compliance with related environmental requirements,
                and OAs must consult with or notify the Office of Policy as set forth
                in this part. The Office of Policy in turn will coordinate with the
                Office of the General Counsel to ensure compliance with legal
                requirements. Additional information on the environmental review
                process may be obtained from the Office of Policy.
                 (c) Office of the General Counsel. The Office of the General
                Counsel (OGC) provides counsel to the Department concerning the
                interpretation of and compliance with NEPA, the CEQ regulations, this
                part, and other applicable laws. Where appropriate, OGC determines the
                legal sufficiency of the Department's NEPA documents and coordinates
                with the OAs and the Department of Justice on NEPA-related litigation.
                 (d) Applicability. This part supplements the regulations at 40 CFR
                parts 1500 through 1508, setting forth procedures specific to DOT
                actions. The OAs must comply with the regulations at 40 CFR parts 1500
                through 1508, this part, and their own NEPA implementing procedures, as
                applicable.
                 (e) OA Procedures. Each OA must issue or modify NEPA implementing
                procedures (OA Procedures), consistent with this part, 40 CFR parts
                1500 through 1508, and any other applicable laws or regulations, that
                establish requirements for and provide guidance on integrating the
                environmental review process into the OA's programs and actions. To the
                extent applicants carry out the OA's responsibilities under OA
                Procedures (where appropriate and in compliance with 42 U.S.C.
                4332(2)(D) and 40 CFR 1506.5), the OA must require the applicants to
                comply with the OA Procedures.
                 (1) OA procedures should include a list of actions that are not
                subject to NEPA. (See 40 CFR 1507.3(d));
                 (2) OA procedures must include lists of actions that normally
                require the preparation of an EIS or EA (40 CFR 1507.3(e)(2)(i) and
                (iii)); include lists of categorically excluded actions and
                extraordinary circumstances (40 CFR 1507.3(e)(2)(ii)) and note which
                categorical exclusions require documentation 40 CFR 1507.3(e)(2)(ii));
                identify when it might be appropriate to use tiering and programmatic
                approaches to facilitate an efficient environmental review (40 CFR
                1501.11 and 1508.1(ff)); ensure that decisions are made in accordance
                with NEPA's policy and procedures (40 CFR 1507.3(c)); describe the
                public participation process; describe the process to ensure early
                involvement of interested parties (40 CFR 1501.2(b)(4)); identify where
                interested parties can find information about the NEPA process,
                including NEPA documents (40 CFR 1506.6(e)); and describe the
                procedures for ensuring implementation of mitigation measures committed
                to in NEPA documents (40 CFR 1501.6(c), 1505.3, and 1508.1(s)).
                 (3) OAs must submit proposals for new or revised implementing
                procedures to the Office of Policy and the OGC for review and
                concurrence prior to CEQ consultation and publication in the Federal
                Register. These offices will assist with CEQ consultation. The Office
                of Policy and the OGC will provide written concurrence on the final new
                or revised implementing procedures. OAs must provide notice of proposed
                new or
                [[Page 74655]]
                revised implementing procedures in the Federal Register for public
                comment and provide notice of final new or revised implementing
                procedures.
                 (4) No later than 30 days of the effective date of this part, OAs
                must evaluate their OA procedures to develop a plan and schedule to
                make revisions necessary to achieve consistency with 40 CFR parts 1500
                through 1508 and this part. OAs must submit this determination or plan
                to the Office of Policy and the OGC for concurrence. Consistent with 40
                CFR 1507.3(b), OAs must, as necessary, develop or revise proposed
                procedures no later than September 14, 2021.
                 (5) Subject to 40 CFR 1507.3(a), to the extent an OA's existing
                procedures are inconsistent with 40 CFR parts 1500 through 1508, the
                regulations in 40 CFR parts 1500 through 1508 apply, consistent with 40
                CFR 1506.13, unless there is a clear and fundamental conflict with the
                requirements of another statute. An OA may choose to apply 40 CFR parts
                1500 through 1508 or the procedures of this part to a review begun
                before September 14, 2020, or the effective date of this part,
                respectively.
                Sec. 13.9 Planning and early coordination.
                 (a) Timing. OAs should begin the environmental review process at
                the earliest practicable time in the planning or development of an
                action.
                 (1) OAs should integrate the NEPA process with other processes at
                the earliest reasonable time to ensure that planning and decisions
                reflect environmental values and avoid potential conflicts that may
                delay the process. (40 CFR 1501.2). For actions, likely to require an
                EA or EIS, OAs must engage in early identification and evaluation of
                the purpose and need; the environmental impacts; reasonable
                alternatives (as further described in Sec. 13.19(b) for EAs and Sec.
                13.23(a)(2) for EISs); and measures to avoid, minimize, or compensate
                for adverse environmental impacts, as appropriate.
                 (2) Unless otherwise provided by law, prior to making a final NEPA
                determination on a proposed action, OAs must not take any action
                concerning the proposal that would have an adverse environmental impact
                or limit the choice of reasonable alternatives. (40 CFR 1506.1(a),
                1502.2(f) and (g)). If an OA becomes aware an applicant is about to
                take an action that would have an adverse environmental impact or limit
                the choice of reasonable alternatives, the OA must promptly notify the
                applicant and the Assistant Secretary, and take appropriate action to
                ensure that the objectives and procedures of NEPA are achieved. (40 CFR
                1506.1(b)).
                 (b) Coordination with applicants. OAs must ensure that applicants
                are aware of the environmental analysis and review requirements in this
                part.
                 (c) Coordination with other agencies. OAs must coordinate with
                other OAs, Federal, State, Tribal, and local resource and regulatory
                agencies, stakeholders, and the public, as appropriate, to satisfy
                their responsibilities under NEPA and other relevant statutes,
                regulations, and Executive Orders, such as those listed in Appendix C
                of this part. OAs should communicate early and continually, and
                coordinate to identify and resolve issues. OAs may prioritize actions
                and improve early coordination with regulatory and resource agencies by
                executing interagency agreements such as Memoranda of Understanding
                (MOUs), Memoranda of Agreement (MOAs), or Programmatic Agreements, and
                using other tools at their disposal.
                 (d) Use of planning analysis and decisions in the NEPA process. OAs
                should, as appropriate, integrate, adopt, and use planning information
                or decisions in the NEPA process.
                 (e) Early coordination. The scoping process (40 CFR 1501.9) is a
                tool for early coordination that OAs must use in the preparation of an
                EIS in accordance with Sec. 13.23(c) and may use in the preparation of
                an EA to identify any significant issues and ensure that all interested
                or affected persons have an opportunity to participate early in the
                process. As part of scoping, OAs should use early coordination tools,
                such as planning, interagency working groups or agreements,
                programmatic approaches, coordination plans, and project schedules. OAs
                should use such tools prior to issuing the notice of intent.
                Sec. 13.11 Lead, cooperating, and participating agencies.
                 (a) Lead agency. An OA with primary responsibility for a proposed
                action, including a multimodal transportation project, generally will
                serve as the lead agency for preparing and processing EISs and EAs,
                where appropriate, and is responsible for inviting other agencies to
                serve as cooperating agencies or otherwise participate in the NEPA
                process. (See 40 CFR 1501.7). When an OA serves as lead agency, it is
                responsible for the scope, objectivity, accuracy, and content of the
                NEPA documents and ensuring completion of the environmental review
                process. When more than one OA is involved in an action, the OAs should
                determine together their respective roles (i.e., lead agency, joint
                lead agency, or cooperating agency) early in the process. However, if
                the OAs cannot agree on this determination within 30 days, they must
                consult the Office of Policy, which will resolve the dispute. The lead
                agency must:
                 (1) Request participation of cooperating agencies in the NEPA
                process at the earliest practicable time;
                 (2) Meet with a cooperating agency at the latter's request;
                 (3) To the extent practicable prepare a single environmental
                document and joint FONSI or ROD for the lead and cooperating agencies;
                 (4) Use environmental analysis and proposals from cooperating
                agencies with jurisdiction by law or special expertise to the maximum
                extent practicable;
                 (5) Determine the scope and the significant issues to be analyzed
                in depth in an EIS;
                 (6) Determine the purpose and need and range of alternatives in
                consultation with the cooperating agencies;
                 (7) Create and update as necessary the project schedule in
                consultation with the cooperating agencies; and
                 (8) Notify the Office of Policy if a milestone will be missed and
                elevate issues to the Assistant Secretary for timely resolution. (See
                40 CFR 1501.7).
                 (b) Joint lead agencies. An OA serving as a joint lead agency
                assumes the same roles, responsibilities, and authority as a single
                lead agency.
                 (c) Cooperating agencies. When serving as a lead or joint lead
                agency, OAs should identify and request Federal, State, Tribal, and
                local agencies that have jurisdiction by law or special expertise to be
                cooperating agencies under 40 CFR 1501.8 and 1508.1(e). When an OA
                serves as a cooperating agency, it must fulfill its responsibilities in
                coordination with the lead agency.
                 (1) If another agency declines an OA's invitation to participate as
                a cooperating agency, the OA must still provide the declining agency
                with a copy of the NEPA document and should attempt to coordinate with
                it to avoid potential issues that could delay the action. If that
                agency raises concerns or indicates that it may delay or withhold
                action on some aspect of the proposed action, the OA should initiate a
                conflict resolution process in accordance with Sec. 13.13(e).
                 (2) When an agency requests an OA to serve as a cooperating agency,
                the OA must accept and participate if it has jurisdiction by law, and
                should make every practicable effort to accept and participate if it
                has special expertise.
                 (3) If another agency fails to invite an OA to serve as a
                cooperating agency when it has jurisdiction by law or special
                expertise, the OA should ask the
                [[Page 74656]]
                lead agency to extend an invitation to participate as a cooperating
                agency.
                 (4) The OA must cooperate on schedule development and elevate
                issues that may affect the schedule to the senior agency official for
                resolution consistent with 40 CFR 1501.8(b)(6) and (7).
                 (d) Participating agencies. OAs should invite other agencies
                (including other Federal, State, Tribal, or local agencies) that may
                have an interest in the proposed action to be participating agencies.
                OAs should invite such other agencies as early as possible (before or
                during scoping).
                Sec. 13.13 General principles for the NEPA review process.
                 (a) Integration of all environmental reviews into the NEPA process.
                To the maximum extent practicable and at the earliest possible time,
                OAs should integrate all relevant environmental reviews,
                authorizations, and consultations into the NEPA process. A list of
                authorities under which these may be conducted can be found in Appendix
                C of this part. To the extent practicable, OAs should develop a single
                NEPA document for all Federal agency actions necessary for a proposed
                activity or project. (See 40 CFR 1501.7(g)).
                 (b) Incorporation by reference. OAs should incorporate by reference
                previously prepared and publicly available analyses wherever possible
                and provide a brief summary of the incorporated material in a NEPA
                document. (See 40 CFR 1501.12). Types of documents that may be
                incorporated by reference include previously prepared studies,
                analyses, and, to the extent permitted by law, decisions from prior
                environmental reviews. (See 40 CFR 1501.12).
                 (c) Focused, quality documents. NEPA documents should effectively
                and concisely communicate the environmental effects of a proposed
                action to the public and the decisionmaker. NEPA documents should be
                written in plain language, and be analytic rather than encyclopedic.
                (See 40 CFR 1500.4(d), 1502.2(a) and (c), and 1502.8). The depth and
                scope of analysis and resulting documentation must be meaningful, high-
                quality, relevant, and proportionate to the complexity of the action
                and degree of anticipated environmental effects and the affected
                environment (See 1501.3, 1501.5, 1502.2(b), and 1502.23).
                 (d) Interdisciplinary approach. OAs must use an interdisciplinary
                approach throughout the planning and preparation of EISs and EAs, as
                applicable, and ensure a systematic evaluation of alternatives and
                their potential environmental consequences. (See 40 CFR 1501.5(c) and
                1502.6). Analyses should identify applicable methodology and explain
                the use of best available information. Where appropriate, OAs may use
                professional services from other Federal, State, Tribal, or local
                agencies, universities, consulting firms, or other experts; however, OA
                staff must have the capacity to evaluate the information these entities
                provide, and OAs must take responsibility for the final content of
                their NEPA documents. (See 40 CFR 1506.5 and 1507.2).
                 (e) Conflict resolution.
                 (1) Resolution of disputes. OAs should seek to resolve
                expeditiously all disputes as early as possible in the NEPA process
                consistent with applicable requirements. OAs should communicate and
                collaborate to recognize and resolve disputes as they arise to maintain
                constructive relationships among all parties, including other OAs,
                Federal or State agencies, Tribes, and members of the public in
                accordance with 40 CFR parts 1500 to 1508, DOT Order 5611.1a and
                applicable CEQ/Office of Management and Budget guidance. OAs must
                report on their use of formal environmental conflict resolution in
                annual reports to the Office of Policy and OGC's Office of Operations
                on Environmental Collaboration and Conflict Resolution (ECCR). OAs must
                notify CEQ and obtain CEQ concurrence, as necessary, to use the John S.
                McCain III National Center for Environmental Conflict Resolution (20
                U.S.C. 5607b(c)).
                 (2) Pre-decisional referrals to CEQ. The following procedures apply
                to referrals to CEQ under 40 CFR part 1504:
                 (i) Referrals on DOT actions. If another Federal agency advises an
                OA that it intends to make a referral to CEQ, the OA must coordinate
                with the Office of Policy. The OA should make a concerted, timely
                effort to resolve issues raised by another Federal agency with respect
                to an EIS for a proposed DOT action to avoid a referral to CEQ. The OA
                should document these efforts in the project record.
                 (ii) DOT referrals to CEQ on other agency proposals. Whenever
                possible, OAs should make efforts to resolve issues informally to avoid
                referrals to CEQ. If the issues are not resolved prior to filing the
                final EIS (FEIS) with EPA, the OA Administrator must obtain concurrence
                from the Office of Policy and OGC to make a referral to CEQ. Referrals
                should include all content specified in 40 CFR 1504.3(c). The OA should
                notify the Office of Policy as early as possible that a referral is
                anticipated. OAs must make formal referrals to CEQ no later than 25
                calendar days after EPA publishes the notice of availability of the EIS
                or the lead agency makes an EA available.
                 (f) Tiering and programmatic approaches. OAs should use tiering
                (see 40 CFR 1501.11 and 1508.1(ff)) to improve or simplify the
                environmental analysis of proposed DOT actions that are similar in
                nature, broad in scope, or where future decisions or unknown future
                conditions preclude a complete NEPA analysis. This would eliminate
                repetitive discussions of the same issues, focus on issues ripe for
                decision and exclude from consideration issues already decided or not
                yet ripe at each level. OAs should also use programmatic approaches,
                where appropriate, including resource or regional specific programmatic
                agreements or consultations with resource or regulatory agencies. Where
                possible, OAs should develop programmatic approaches that cover the
                activities of multiple OAs.
                 (g) Mitigation and monitoring. The ROD and FONSI must identify
                those mitigation measures that avoid, minimize, or compensate for
                effects caused by a proposed action or alternatives as described in an
                environmental document and that have a nexus to those effects that the
                lead agency is adopting and committing to implement, including any
                monitoring and enforcement program applicable to such mitigation
                commitments.
                 (1) The OA must take steps to ensure that the mitigation measures
                committed to in the ROD and FONSI are implemented. For third-party
                actions, to the extent practicable, OAs must condition relevant funding
                agreements, permits, licenses, and other approvals on the performance
                of the mitigation commitments. Methods of enforcement of commitments
                may include withdrawal of funding, permit, license, or approval, and
                any other action deemed necessary by the appropriate OA.
                 (2) Where legal authority exists, OAs may provide for monitoring to
                ensure their decisions are carried out and should do so in important
                cases. In determining when monitoring mitigation commitments is
                appropriate, OAs should apply professional judgment and the rule of
                reason. (40 CFR 1505.3).
                 (h) Public involvement. Public involvement provides an opportunity
                for the public to consider, offer input on, and inform proposed
                actions, their potential environmental impacts, and proposed
                mitigation. The level of public
                [[Page 74657]]
                involvement should be commensurate with the type of action proposed and
                its potential to cause significant impacts, and be consistent with 40
                CFR 1501.5(e), 1501.9, 1503.1(a)(2)(v), and 1506.6.
                 (1) Public involvement in environmental analyses is important at
                each appropriate stage of the development of a proposed action, and OAs
                should seek public involvement as early as possible. Consistent with 40
                CFR 1500.3(b), 1500.4(n), and 1503.3, OAs should ensure commenters are
                invited to submit specific comments as early in the process as
                possible, and provide notice that comments not submitted shall be
                forfeited as unexhausted. OAs should integrate public involvement in
                the NEPA process, as applicable, with other public involvement
                processes (e.g., 54 U.S.C. 306108 (Section 106 of the National Historic
                Preservation Act of 1966, as amended), State requirements) to the
                fullest extent practicable. Methods to solicit the views of the public
                include public workshops or meetings; hearings in traditional or non-
                traditional formats and locations; social media; new technologies;
                advertisements or notices in print or electronic media; and other
                appropriate means tailored to reach the relevant audiences. (See 40 CFR
                1506.6). When OAs provide for public comment, they must include
                electronic submission of comments, with reasonable measures to ensure
                the comment process is accessible to affected persons. (See 40 CFR
                1503.1(c)).
                 (2) To allow the public to efficiently and effectively access
                information about NEPA reviews, OAs must make NEPA documents, relevant
                notices and other relevant information for use by interested persons
                available online in a manner consistent with 40 CFR 1506.6(e) and
                1507.4. Appropriate domains for publication may include Department/OA
                operated websites or project-specific websites. When posted on a DOT
                website, NEPA documents must be compliant with the requirements of 29
                U.S.C. 794d (section 508 of the Rehabilitation Act of 1973, as
                amended).
                 (i) Use of contractors. Decisionmaking under NEPA is an inherently
                governmental function. OAs may use contractors to assist in the
                preparation of NEPA documents, but must require contractors to comply
                with this part and OA procedures, and follow relevant guidance. OAs
                must furnish guidance, participate in the preparation of, and
                independently evaluate NEPA documents, taking responsibility for their
                accuracy, scope, and contents. (See 40 CFR 1506.5).
                 (1) When an OA acts as the lead agency and uses a contractor, it
                may select the contractor for preparation of an EIS or EA, consistent
                40 CFR 1506.5. The OA may select the contractor in cooperation with
                cooperating agencies.
                 (2) Prior to entering into a contract for the preparation of an EIS
                or EA, the OA must require the contractor or applicant to execute a
                disclosure statement specifying any financial or other interest if
                applicable, or stating it has no financial or other interests in the
                outcome of the proposed action. (40 CFR 1506.5).
                 (j) Tracking. OAs must track and report environmental review
                milestones in compliance with DOT tracking procedures and other
                applicable requirements. Consistent with 23 U.S.C. 139(o) and all
                reporting standards issued by the Office of Policy, OAs must post
                information for all transportation infrastructure projects requiring an
                EA or EIS, including applicable NEPA and any permitting or
                authorization actions and associated milestones, to the publicly
                accessible Permitting Dashboard. OAs must post and update information
                as necessary within timeframes established by the reporting standards.
                Sec. 13.15 Determination of the level of NEPA review.
                 (a) To determine the appropriate level of NEPA review, OAs must
                establish the appropriate scope (using the criteria for scope in 40 CFR
                1501.9(e)) of the proposed action.
                 (b) To ensure meaningful and objective evaluation of alternatives,
                where applicable, and avoid commitments to proposed actions before they
                are fully evaluated, OAs must ensure that the scope of the proposed
                action evaluated in an EA, EIS, or CE includes connected actions; has
                independent utility or independent significance (e.g., would be a
                usable and reasonable expenditure even if no additional transportation
                improvements in the area are made); does not unreasonably restrict
                consideration of alternatives for other reasonably foreseeable actions;
                and where applicable, connects logical termini.
                 (c) In considering whether the effects of the proposed action are
                significant, agencies must analyze the potentially affected environment
                and degree of the effects of the action. Agencies should consider
                connected actions consistent with Sec. 1501.9(e)(1). In considering
                the degree of the effects, agencies should consider the following, as
                appropriate to the specific action, where the effects are reasonably
                foreseeable and have a reasonably close causal relationship to the
                proposed action:
                 (1) Both short- and long-term effects.
                 (2) Both beneficial and adverse effects.
                 (3) Effects on public health and safety.
                 (4) Effects that would violate Federal, State, Tribal, or local law
                protecting the environment. (See 40 CFR 1501.3(b)).
                 (d) If there is an unresolved disagreement between the OA and an
                applicant regarding the appropriate level of NEPA review, the OA must
                notify the Office of Policy, to assist in making the determination.
                Sec. 13.17 Categorical Exclusions.
                 (a) Application of a Categorical Exclusion (CE). CEs are categories
                of actions that normally do not have a significant effect on the
                environment, and therefore normally do not require the preparation of
                an EA or EIS. (40 CFR 1501.4). Appendix A of this part lists
                Departmentwide CEs. An ``*'' is used to indicate the CEs that would not
                require documentation. OA Procedures may identify additional CEs,
                consistent with Sec. 13.7(d); Appendix B of this part identifies the
                location of CEs established in each of the Department's OA Procedures
                and incorporates those CEs by reference. Paragraph (b) of this section
                lists extraordinary circumstances (40 CFR 1501.4), that OAs must
                consider before determining that a CE listed in Appendix A of this part
                applies to a proposed action. If an OA seeks to apply a CE established
                in another OA's procedures (referenced in Appendix B of this part), it
                must evaluate the action for extraordinary circumstances identified in
                the OA Procedures in which the CE is established \5\ to determine if a
                normally excluded action may have a significant effect. If an
                extraordinary circumstance is present, an OA may nevertheless apply a
                CE listed in Appendix A of this part to an action if the OA determines
                that there are circumstances that lessen the impacts or other
                conditions sufficient to avoid significant effects. If the OA cannot
                apply the CE to the proposed action, it must prepare an EA or EIS, as
                appropriate.
                ---------------------------------------------------------------------------
                 \5\ For the purposes of 23 CFR part 771, ``unusual
                circumstances'' is synonymous with ``extraordinary circumstances.''
                ---------------------------------------------------------------------------
                 (b) Extraordinary circumstances. With respect to the CEs listed in
                Appendix A of this part, extraordinary circumstances include:
                 (1) Inconsistency with any applicable Federal, State, Tribal, or
                local law, requirement, or administrative determination relating to the
                protection of the environment;
                [[Page 74658]]
                 (2) Substantial increases of noise in a noise-sensitive area;
                 (3) Substantial adverse effects that are reasonably foreseeable on
                the following aspects of the environment:
                 (i) Species listed or proposed to be listed on the List of
                Endangered or Threatened Species, or designated Critical Habitat for
                these species, as promulgated under 16 U.S.C. 1533(c)(1);
                 (ii) Properties protected under 54 U.S.C. 306108 (Section 106 of
                the National Historic Preservation Act of 1966, as amended);
                 (iii) Properties protected under 23 U.S.C. 138 or 49 U.S.C. 303
                (Section 4(f));
                 (iv) A site that involves a unique characteristic of the geographic
                area, such as prime or unique agricultural land, a coastal zone, a
                historic or cultural resource, park land, wetland, wild and scenic
                river, designated wilderness or wilderness study area, sole source
                aquifer (potential sources of drinking water), or an ecologically
                critical area; or
                 (v) Applicable Federal, State, or local air quality standards,
                including those under the Clean Air Act, as amended (42 U.S.C. 7401, et
                seq.);
                 (4) Substantial short- or long-term increases in traffic congestion
                or traffic volumes on any mode of transportation that are reasonably
                foreseeable; or
                 (5) Substantial impacts on the environment resulting from the
                reasonably foreseeable, reportable release of hazardous or toxic
                substances.
                 (c) Multimodal projects. For multimodal projects, as defined by 23
                U.S.C. 139(a), an OA may use the process created under 49 U.S.C. 304
                for the application of another OA's CE for that project.
                Sec. 13.19 Environmental Assessments.
                 (a) When to prepare an environmental assessment. An OA must prepare
                an EA when a proposed action is not categorically excluded and a
                determination whether to prepare an EIS has not been made or it is
                required under OA Procedures; or a normally categorically excluded
                action may involve significant environmental impacts, but does not
                clearly require the preparation of an EIS. However, an OA need not
                prepare an EA if it determines that an EIS is necessary or preferable.
                (See 40 CFR 1501.5 and 1508.1(h)). Examples of typical classes of
                actions that normally require an EA but not necessarily an EIS are
                listed in OA Procedures.
                 (b) Contents. An EA must include the purpose and need for the
                proposal; a description of the proposed action and alternative(s) as
                required by 42 U.S.C. 4332(2)(E) (section 102(2)(E) of NEPA), as well
                as the ``no action'' alternative; the environmental impacts of the
                proposed action and alternatives; and the agencies and persons
                consulted.
                 (c) Page limits. EAs must be no more than 75 pages unless a senior
                agency official approves in writing an EA to exceed 75 pages and
                establishes a new page limit. OAs must obtain approval from an OA
                Administrator when the Administrator has been designated as a senior
                agency official for the OA or, for OST actions, the Assistant Secretary
                if an EA is anticipated to exceed the page limits. An EA should be as
                concise as possible while proportional to the magnitude of the proposed
                action and anticipated impacts.
                 (d) Time limits: EAs should be completed within one year from the
                agency's' determination to prepare an EA. If during development of the
                EA, the OA concludes that there will be significant impacts, the OA
                should issue an NOI and the time limits for EISs would apply. OAs must
                obtain approval from an OA Administrator when the Administrator has
                been designated as a senior agency official for the OA or, for OST
                actions, the Assistant Secretary if an EA needs a longer time period
                than one year. This request must be in writing and provide a reasonable
                timeframe for the OA to complete the EA. 40 CFR 1501.10(a)(1).
                 (e) Alternatives. The EA must include the alternatives the OA will
                consider in its decisionmaking, which may be limited to the proposed
                action and no action alternative to the extent consistent with
                applicable authority including NEPA Section 102(2)(E). The EA should
                address alternatives to a degree commensurate with the nature of the
                proposed action and OA experience with the environmental issues
                involved. The EA should indicate a preferred alternative, if the OA
                identified one. For alternatives considered and eliminated from further
                study, an EA should briefly explain why they were eliminated.
                 (f) Compliance with other applicable environmental laws,
                regulations and orders. In accordance with Sec. 13.13(a), the EA
                should reflect compliance or plans for compliance with the requirements
                of other applicable environmental laws, regulations, and orders, such
                as those listed in Appendix C of this part.
                 (g) Independent evaluation. If an applicant prepares an EA, the OA
                must independently evaluate the environmental issues and take
                responsibility for the accuracy, scope, and contents of the EA. (40 CFR
                1506.5(b)(2)).
                 (h) Public comment. An OA must involve the public, State, Tribal
                and local governments, relevant agencies, and any applicants to the
                extent practicable in the development of the EA. (40 CFR 1501.5(e)). At
                its discretion, an OA may prepare a draft EA for public comment. When
                an OA prepares a draft EA for public comment, it must consider
                substantive comments received on a draft EA in the final EA or FONSI.
                An OA must make EAs available to the public. (See 40 CFR 1506.6(b)). In
                the circumstances defined in 40 CFR 1501.6(a)(2), a copy of the EA
                should be made available to the public for a period of not less than 30
                days before the FONSI is made and the action is implemented.
                Sec. 13.21 Findings of No Significant Impact.
                 (a) Contents. A FONSI must briefly explain why a proposed action
                analyzed in an EA will not have a significant impact on the environment
                and therefore does not require the preparation of an EIS. (40 CFR
                1501.6). A FONSI must include the EA or summarize it and incorporate
                the EA by reference, and must note any other related NEPA documents.
                (See 40 CFR 1501.6(b) and 1501.9(f)(3)). An OA must make the FONSI
                available to the public as specified in 40 CFR 1506.6(b) and consistent
                with 40 CFR 1507.4 and OA Procedures.
                 (b) Mitigated FONSIs. In accordance with Sec. 13.13(g), an OA may
                rely on mitigation measures to reduce potentially significant adverse
                impacts below the level of significance that would trigger the
                preparation of an EIS. To use this approach, the OA must:
                 (1) Describe in the FONSI the mitigation measures necessary to
                reduce the potential impacts to a level below significance;
                 (2) Ensure that sufficient legal authority and an adequate
                commitment of resources exist to execute the mitigation measures,
                including funding as necessary;
                 (3) Ensure that the articles of agreement, award or grant
                agreement, permit, license, authorization, or other document reflecting
                the OA's final decision on the action will require implementation of
                the mitigation measures;
                 (4) Ensure that any monitoring strategies described in the FONSI
                will be adopted when the OA deems them appropriate for the particular
                action and set of mitigation measures. This may include making an
                applicant responsible for implementing the monitoring strategies.
                Environmental Management Systems may be used for
                [[Page 74659]]
                tracking and monitoring mitigation commitments; and
                 (5) Provide for corrective action, where appropriate, in the event
                of a failure to implement the mitigation measures or a failure in the
                effectiveness of the mitigation measures.
                Sec. 13.23 Environmental Impact Statements.
                 (a) When to prepare an EIS. An OA must prepare an EIS for any
                proposed major Federal action significantly affecting the quality of
                the human environment (42 U.S.C. 4332(2)(C)). Examples of typical
                actions that normally require an EIS are listed in OA Procedures.
                 (b) Notice of Intent. To initiate an EIS, the OA must publish a
                notice of intent (NOI) to prepare an EIS in the Federal Register (40
                CFR 1501.9(d) and 1508.1(u)).
                 (c) Scoping. The OA must determine the scope of and the significant
                issues to be analyzed in depth in the EIS, and it must identify and
                eliminate from detailed study the issues that are not significant or
                covered by prior environmental review (40 CFR 1501.9(f)(1); see also 40
                CFR 1506.3 and 1508.1(cc)). To determine significance, the OA must
                evaluate the potentially affected environment and the degree of the
                effects of the proposed action. See Section 13.15(c).
                 (d) EISs impacts on another State or a Federal land management
                entity. Pursuant to 42 U.S.C. 4332(2)(D) (NEPA Section 102(2)(D)),
                where a State agency or official with statewide jurisdiction initiates
                a proposed action that may have significant impacts on any other State
                or a Federal land management entity, the OA must provide early notice
                to and solicit the views of those State or Federal land management
                entities.
                 (e) Format and content. The format of the EIS must be consistent
                with the format provided at 40 CFR 1502.10, unless the OA determines
                there is a more effective format for communication that encourages good
                analysis and clear presentation of alternatives, and include the
                following: A cover (40 CFR 1502.11); a summary (40 CFR 1502.12); a
                table of contents (40 CFR 1502.10(a)(3)); a list of preparers (40 CFR
                1502.18); and appendices (40 CFR 1502.19), if the OA prepares any. The
                EIS must include the following:
                 (1) Purpose and need. The EIS must briefly describe the underlying
                purpose and need for the proposed action. (40 CFR 1502.13).
                 (2) Alternatives. Consistent with 40 CFR 1502.14 and 1508.1(z), the
                OA must evaluate reasonable alternatives, including the proposed action
                and the no action alternative, and a reasonable range of alternatives
                that are technically and economically feasible, meet the purpose and
                need for the proposed action, and, where applicable, meet the goals of
                the applicant. The OA should present the environmental impacts of the
                proposal and alternatives in comparative form. The OA should limit
                consideration to a reasonable number and reasonable range of
                alternatives. The EIS must identify alternatives considered but
                eliminated from detailed analysis and briefly discuss the reasons for
                their exclusion. The Draft EIS (DEIS) should identify the OA's
                preferred alternative or alternatives, if one or more exists, unless in
                conflict with other laws. If the DEIS did not identify the preferred
                alternative, the OA should provide agencies and the public with an
                opportunity to assess the environmental consequences of the preferred
                alternative prior to issuing a combined FEIS/ROD, or the OA should
                provide for a waiting period consistent with paragraph (k)(1) of this
                section. The FEIS or combined FEIS/ROD must identify the preferred
                alternative or alternatives unless the requirements of another statute
                provide otherwise.
                 (3) Affected environment. The EIS must succinctly describe the
                environment of the area(s) affected or created by the alternatives
                under consideration, including the reasonably foreseeable environmental
                trends and planned actions in the area(s). Data and analyses must be
                commensurate with the importance of the impact. (40 CFR 1502.15).
                 (4) Environmental consequences. The EIS must discuss the
                environmental consequences of the proposal and the alternatives. The
                EIS must describe both beneficial and adverse environmental impacts of
                the proposed action and reasonable alternatives and the significance of
                those impacts. The EIS also must describe any adverse environmental
                impacts that cannot be avoided if the proposal is adopted, the
                relationship between short-term uses of the environment and long-term
                productivity, any irreversible or irretrievable commitments of
                resources that would occur, and other requirements of 40 CFR
                1502.16(a)(1) through (10).
                 (5) Mitigation. The EIS must discuss appropriate measures for
                mitigating adverse environmental impacts of the proposed action or
                alternatives. (See 40 CFR 1502.14(e), 1502.16(a)(9), and 1508.1(s)).
                 (6) Summary of submitted alternatives, information, and analyses.
                The EIS must include a summary that identifies all alternatives,
                information, and analyses submitted by State, Tribal, and local
                governments and other public commenters during the scoping process for
                consideration by the lead and cooperating agencies in developing the
                EIS. The OA should either append to the EIS or otherwise publish all
                comments that were received during the scoping process that identified
                alternatives, information, and analyses for the OA's consideration. The
                FEIS must include a summary that identifies all alternatives,
                information, and analyses submitted by State, Tribal, and local
                governments and other public commenters for consideration by the lead
                and cooperating agencies in developing the FEIS. (See 40 CFR 1502.17).
                 (f) Page limits. The text of the EIS set forth in paragraphs (e)(1)
                through (5) of this section must be 150 pages or less, and 300 pages or
                less for proposed actions of unusual scope or complexity. OAs must
                obtain approval from the Assistant Secretary if an EIS is anticipated
                to exceed the page limits. (See 40 CFR 1502.7 and 1508.1(v)).
                 (g) Time limits. EISs must be completed within two years from the
                date of publication of the NOI. OAs must obtain approval from the
                Assistant Secretary if an EIS will require a longer time period than
                two years from NOI to ROD. This request must be in writing and provide
                a reasonable timeframe for the OA to complete the EIS. (40 CFR
                1501.10(b)(2)).
                 (h) Document cost. The OA must include the total cost (Federal and
                non-Federal) of the EIS on the cover page of the FEIS and Supplemental
                Environmental Impact Statement (SEIS), which includes the entire cost
                of the environmental review to the extent practicable. (See 40 CFR
                1502.11(g)).
                 (i) Filing with the U.S. Environmental Protection Agency. OAs must
                file EISs with the U.S. Environmental Protection Agency (EPA) when they
                are transmitted to commenting agencies and made available to the
                public, or immediately thereafter. (40 CFR 1506.10). OAs must file EISs
                with EPA in accordance with EPA filing guidance.
                 (j) Public notice and notice of availability. OAs should notify the
                public of the availability of EISs through methods such as online
                notices, social media, direct notification to interested parties, and
                notices in local media so as to inform those persons and agencies who
                may be interested or affected by the proposed action. (See 40 CFR
                1506.6(b)). OAs must consider the ability of affected persons and
                agencies to access electronic media in providing public notice of NEPA-
                related opportunities for public involvement. OAs must notify those
                parties who have requested notice
                [[Page 74660]]
                on an individual action. In the case of an action with impacts of
                national concern, notice must include publication in the Federal
                Register (through EPA's notice of availability of EISs or a separate
                notice) and notice by email, mail, or other reasonable means to
                organizations, agencies, and those persons reasonably expected to be
                interested or affected by the proposed action. Although electronic
                distribution is preferred, the OA should make documents available in
                other formats when reasonably necessary and must make available hard
                copies of the EIS upon request. The OA must make the EIS available to
                the public without charge to the fullest extent practicable or at no
                more than the actual cost of reproduction. (See 40 CFR 1506.6(f)).
                 (k) Timing. An OA may not make a decision on the proposed action
                until 90 days after publication of EPA's notice of availability of the
                DEIS. (40 CFR 1506.11(b)(1)).
                 (1) Waiting period. When an OA determines, it is not practicable to
                issue a combined FEIS/ROD pursuant to Sec. 13.27(c), it may not make a
                decision on the proposed action until 30 days after the publication of
                EPA's notice of availability of the FEIS. (40 CFR 1506.11(b)(2)).
                 (2) Reducing time periods. If an OA believes it is necessary to
                reduce the prescribed time periods for EIS processing, it must request
                the reduction from EPA, which may reduce the prescribed periods based
                upon a showing of compelling reasons of national policy (40 CFR
                1506.11(d)), and notify the Office of Policy of this request.
                 (3) Extending time periods. OAs may grant requests for reasonable
                extensions of the comment period when warranted by the magnitude and
                complexity of the proposed action or extent of public interest. When
                granting an extension, the OA should notify EPA so it may modify its
                notice of availability.
                Sec. 13.25 Draft Environmental Impact Statements.
                 (a) Timing of preparation of the DEIS. Preparation of the DEIS
                should begin as close as possible to the time a proposal is developed
                so that the analysis of the environmental impacts and the exploration
                of alternatives can be meaningfully considered in the decision-making
                process. For rulemakings, the OA should release the DEIS prior to or
                concurrent with the issuance of the proposed rule. (See 40 CFR 1502.5).
                 (b) Combined FEIS/ROD. Consistent with 49 U.S.C. 304a(b) or 23
                U.S.C. 139(n)(2), as applicable, and Sec. 13.27(c), the DEIS should
                include a statement of the OA's intent to issue a combined FEIS/ROD and
                identify a preferred alternative.
                 (c) Circulation and request for comment. The OA must make the DEIS
                available with an invitation to comment to:
                 (1) The public;
                 (2) All cooperating agencies and other Federal agencies with
                jurisdiction by law or special expertise with respect to the
                environmental impacts involved;
                 (3) State, Tribal, or local agencies with authority to develop and
                enforce environmental standards;
                 (4) Any agency that has requested that it receive statements on
                actions of the kind proposed;
                 (5) Interested or affected persons, agencies, and organizations;
                 (6) EPA;
                 (7) Federally Recognized Indian Tribes, Alaska Natives, and Native
                Hawaiians, as appropriate;
                 (8) The applicant, if any; and
                 (9) Other OAs, where appropriate. (See 40 CFR 1502.20, 1503.1, and
                1506.6).
                 (d) Electronic submission. OAs must provide for electronic
                submission of public comments as well as ensure that the comment
                process is accessible to persons who may be affected by the proposed
                action(s). (See 40 CFR 1503.1(c)).
                Sec. 13.27 Final Environmental Impact Statements.
                 (a) Response to comments. In the FEIS, the OA should make every
                practicable effort to resolve major, relevant issues identified in
                comments on the DEIS, the public involvement process, and consultation
                with cooperating agencies. The FEIS should identify any unresolved
                major issues, and the consultation and efforts made to resolve those
                issues. In response to substantive comments on the DEIS, the OA should
                do one or more of the following and state the response in the FEIS:
                Modify alternatives including the proposed action; develop and evaluate
                alternatives not previously given serious consideration by the OA;
                supplement, improve, or modify its analyses; make factual corrections;
                or explain why the comments do not warrant further response, citing the
                sources, authorities, or reasons that support the OA's position, and if
                appropriate, indicate those circumstances that would trigger the OA's
                reappraisal or further response. The OA should attach to the FEIS
                substantive comments received on the DEIS, or summaries of comments
                where comments are particularly voluminous. (40 CFR 1503.4).
                 (b) Errata sheets. In preparing an FEIS, if the OA makes minor
                changes to the DEIS in response to comments, and the changes are
                confined to factual corrections or explanations of why the comments do
                not warrant further response, the OA may write the changes on errata
                sheets attached to the DEIS instead of rewriting the DEIS. (See 49
                U.S.C. 304a(a) or 23 U.S.C. 139(n)(1), as applicable, and 40 CFR
                1503.4(c)). The errata sheets must cite the sources, authorities, and
                reasons that support the OA's position and, if appropriate, indicate
                the circumstances that would trigger the OA's reappraisal or further
                response.
                 (c) Combined FEIS/ROD. Pursuant to 49 U.S.C. 304a(b) or 23 U.S.C.
                139(n)(2), as applicable, to the maximum extent practicable, an OA must
                expeditiously develop a single document that consists of an FEIS and
                ROD, unless the FEIS makes substantial changes to the proposed action
                that are relevant to environmental or safety concerns; or there is a
                significant new circumstance or information relevant to environmental
                concerns that bears on the proposed action or the impacts of the
                proposed action. Cooperating agencies must to the extent practicable
                issue the FEIS/ROD jointly with the lead agency for transportation
                actions. (See 40 CFR 1501.8(b)(8)).
                 (d) Compliance with other requirements. To the fullest extent
                possible, in accordance with 40 CFR 1502.24 and Sec. 13.13(a), the
                FEIS should reflect compliance or plans for compliance with the
                requirements of other applicable environmental laws, regulations, and
                orders, such as those listed in Appendix C of this part. If such
                compliance is not possible by the time of FEIS preparation, the FEIS
                should reflect consultation with the appropriate agencies and provide
                reasonable assurance that the OA can meet the requirements.
                 (e) Internal review and approval. The Administrator or Secretarial
                Officer (or their designee) of the lead agency may approve an FEIS. OAs
                must ensure that EISs are evaluated for technical sufficiency
                consistent with this part and OA Procedures. The Chief Counsel of the
                OA, or designee, must review all FEISs for legal sufficiency. OGC's
                Office of Operations must review FEISs prepared by Secretarial offices
                for legal sufficiency.
                 (f) Office of Policy notification. For FEISs on actions involving
                novel or emerging technology, methodology, or science; actions opposed
                on environmental grounds by a Federal, State, Tribe, or local
                government or agency; or, actions opposed by a
                [[Page 74661]]
                substantial number of the persons affected by such action or actions,
                the OA must notify the Office of Policy that the FEIS is under
                development. OAs should notify the Office of Policy as early as
                possible, and, where practicable, provide at least two weeks' notice
                before approving the FEIS.
                 (g) Circulation. After the FEIS is finalized, the OA must publish
                the FEIS (or combined FEIS/ROD). The OA must furnish the entire FEIS to
                any Federal agency with jurisdiction by law or special expertise with
                respect to any environmental impact involved and any appropriate
                Federal, State, Tribal, or local agency authorized to develop and
                enforce environmental standards; the applicant; and any Federal, State,
                Tribal, and local agencies, and private organizations and individuals
                that commented substantively on the DEIS or requested copies of the
                FEIS, as well as the entities to which the OA was required to
                distribute the DEIS. (See 40 CFR 1502.20, 1503.1, and 1506.6).
                Sec. 13.29 Records of Decision.
                 (a) In accordance with Sec. 13.27(c), to the maximum extent
                practicable, an OA must develop a single document consisting of a
                combined FEIS and ROD or issue the FEIS and ROD simultaneously,
                pursuant to 49 U.S.C. 304a(b) or 23 U.S.C. 139(n)(2), as applicable.
                When an OA determines, it is not practicable to issue a combined FEIS
                and ROD, the waiting period set forth in Sec. 13.23(j)(1) applies. In
                such cases, and when the proposal requires action by multiple Federal
                agencies, the OA should issue a single ROD with the other Federal
                agencies. An OA may integrate the ROD into any other record or decision
                document, such as a final rule.
                 (b) The ROD must state the OA's decision, identify all alternatives
                the OA considered in reaching its decision, specifying the
                environmentally preferable alternative(s); identify and discuss all
                factors, including essential considerations of national policy, that
                the OA balanced in making its decision and state how those
                considerations entered into its decision; state whether the OA has
                adopted all practicable means to avoid or minimize environmental harm
                from the selected alternative and, as necessary, explain why not; and
                adopt and summarize any monitoring and enforcement program where
                applicable for any mitigation. (See 40 CFR 1505.2(a)).
                 (c) The ROD must provide a certification by the decisionmaker that
                the agency has considered all the alternatives, information, analysis,
                and objections submitted by State, tribal and local governments and
                public commenters for consideration by the lead and cooperating
                agencies in developing the EIS. This certification establishes a
                presumption that the agency has considered the submitted alternatives,
                information, and analyses including the summary in the FEIS. (See 40
                CFR 1505.2(b)).
                 (d) The ROD should not repeat analysis contained in the EIS but
                rather incorporate it by reference in the OA's decision; and briefly
                document compliance with all environmental laws applicable to the
                action, or the procedures and expected timeframe for completion of such
                compliance. Consistent with 40 CFR 1505.3, the ROD should also include,
                as appropriate, any required mitigation commitments and describe the
                monitoring measures being implemented.
                 (e) The ROD may discuss preferences among alternatives based on
                relevant economic, technical, or other factors, as well as OA mission
                and authority.
                Sec. 13.31 Adoption.
                 (a) If an OA is a cooperating agency for an EIS, it may adopt
                without publishing the lead agency's original EIS after conducting an
                independent review of the statement and concluding that its comments
                and suggestions have been satisfied. (See 40 CFR 1506.3(b)(2)). In the
                case of an FEIS, the OA may issue a ROD simultaneous with the adoption.
                 (b) If an OA is not a cooperating agency, but the action covered by
                the original EIS and the proposed action are substantially the same,
                the OA is not required to publish it except as an FEIS. (See 40 CFR
                1506.3(b)(1)). To the maximum extent practicable, the OA must issue a
                combined FEIS and ROD consistent with 49 U.S.C. 304a(b) or 23 U.S.C.
                139(n), as applicable, and Sec. 13.27(c).
                 (c) If an OA is not a cooperating agency and the OA's proposed
                action and the action covered by the original EIS are not substantially
                the same, the OA may adopt the EIS or a portion thereof as a draft and,
                after making all necessary revisions to the document, publish it. (40
                CFR 1506.3(b)). If the OA intends to issue a combined FEIS/ROD, the
                recirculation should include a statement of the OA's intent to issue a
                combined document.
                 (d) An OA may adopt, in whole or in part, another Federal agency's
                draft or final EA if the OA determines, based on an independent
                evaluation, that the document meets the applicable standards for an EA
                in 40 CFR parts 1500 through 1508, this part, and its OA Procedures.
                The OA must notify the public consistent with 40 CFR 1506.6.
                 (e) An OA may adopt a CE determination of another agency when the
                action in the original CE determination and the proposed action are
                substantially the same. When doing so, the OA must document the
                adoption. (See 40 CFR 1506.3(d)).
                 (f) Before adopting all or a portion of another Federal agency's
                EIS or EA that is more than five years old, an OA must re-evaluate the
                relevant portion of the other agency's EA or EIS in accordance with
                Sec. 13.33.
                 (g) When an OA adopts and publishes an EIS, it must file it with
                EPA in accordance with EPA filing guidance. (40 CFR 1506.10). When an
                OA adopts an EIS without republishing, it must notify EPA.
                 (h) An OA may adopt a DEIS, EA, or FEIS of another OA in accordance
                with 49 U.S.C. 304a(c)(2).
                Sec. 13.33 Re-evaluation and supplementation.
                 (a) Re-evaluation. Consistent with 40 CFR 1502.9(d)(4), when an
                action is not complete and a decision remains to occur, a re-evaluation
                is a process that OAs should use to evaluate an existing CE
                determination, EA, or EIS to determine whether it remains adequate,
                accurate, and valid, or whether a supplemental NEPA analysis is needed.
                 (1) An OA should engage in a re-evaluation, consistent with its OA
                Procedures, where applicable, when, prior to the OA's completion of an
                action, there are changes in the proposed action that are relevant to
                environmental concerns; or there are new circumstances or information
                relevant to environmental concerns and bearing on the proposed action
                or its impacts.
                 (2) An OA must re-evaluate in writing a DEIS if the OA has not
                issued an FEIS within five years from the circulation date of the DEIS.
                An OA must re-evaluate in writing an FEIS if major steps toward
                implementation have not commenced within five years from the date of
                approval of the FEIS or FEIS supplement.
                 (b) Supplemental EAs and EISs. OAs must prepare a supplemental EA
                or EIS when, prior to the OA's completion of an action, there are
                substantial changes in the proposed action that are relevant to
                environmental concerns, or there are significant new circumstances or
                information relevant to environmental concerns and bearing on the
                proposed action or its impacts. (40 CFR 1502.9(d)(1)). In addition, an
                OA may voluntarily prepare a supplemental EA or EIS when the OA
                determines,
                [[Page 74662]]
                consistent with its OA Procedures and 40 CFR 1502.9(d)(2), that the
                purpose of NEPA will be furthered by doing so. An OA must prepare,
                publish, and file a supplemental EA or EIS as an EA or DEIS and FEIS
                unless CEQ approves alternative procedures. (40 CFR 1502.9(d)(3)).
                Where there are compelling reasons to follow alternative procedures,
                the OA must consult CEQ for approval and notify the Office of Policy.
                Sec. 13.35 Emergency actions.
                 (a) Emergency circumstances. Emergency circumstances may require
                immediate actions that prevent following standard NEPA procedures. For
                example, immediate threats to human health or safety, or immediate
                threats to valuable natural resources may make it necessary to take an
                action with significant environmental impact without following standard
                NEPA procedures. OAs (which should consult with CEQ) must limit such
                alternative arrangements to the actions necessary to control the
                immediate impacts of the emergency. When time permits, OAs should
                prepare environmental documentation. Alternative arrangements for NEPA
                compliance are permitted for emergency actions. (See 40 CFR 1506.12 and
                Fixing America's Surface Transportation Act, Pub. L. 114-94, sec.
                1432).
                 (b) Significant impacts. When emergency circumstances make it
                necessary to take an action with significant or potentially significant
                environmental impacts, without observing provisions of this part, OA
                Procedures, or 40 CFR parts 1500 through 1508, the OA should consult
                with CEQ. (See 40 CFR 1506.12). OAs should notify the Office of Policy
                of the consultation and where time allows, provide an opportunity for
                the Office of Policy to review any alternative arrangements. The
                alternative arrangements should be limited to actions necessary to
                control the immediate impacts of the emergency.
                 (c) Non-significant impacts. When the expected environmental
                impacts of the proposed action are not considered significant and the
                action cannot be categorically excluded, to the extent practicable, the
                OA should prepare a focused EA that complies with this part, OA
                Procedures, and 40 CFR parts 1500 through 1508.
                Sec. 13.37 Environmental Impact Statements for legislative
                proposals.
                 (a) Preparation. An OA must prepare and publish a legislative EIS
                (LEIS) for any legislative proposal for which DOT has primary
                responsibility and involves significant environmental impacts.
                Procedures for preparing an LEIS are found at 40 CFR 1506.8. The OA
                originating the legislation must prepare the LEIS. Except as provided
                by 40 CFR 1506.8(c)(2), an OA does not need to prepare both a draft and
                final LEIS.
                 (b) Processing. The Office of Policy and OGC must concur on the
                LEIS. OGC's Office of Legislation will submit the LEIS to the Office of
                Management and Budget for circulation in the normal legislative
                clearance process. The LEIS is part of the formal transmittal of a
                legislative proposal to Congress. However, the LEIS may be transmitted
                up to 30 days after the formal transmittal (40 CFR 1506.8(b)).
                Sec. 13.39 International actions.
                 (a) Executive Order 12114, ``Environmental Effects Abroad of Major
                Federal Actions'' (Jan. 4, 1979), applies to major Federal actions
                having significant environmental impacts outside of the United States
                and its territories and possessions. If an EIS is required under E.O.
                12114, section 2-4(a)(i), the OA must prepare it in compliance with
                this part and the OA Procedures.
                 (b) If an OA anticipates communication with a foreign government
                concerning agreements and other arrangements related to environmental
                studies or documentation, the OA must coordinate such communication
                with the U.S. Department of State, in consultation with the Office of
                Policy and the Office of the Assistant Secretary for Aviation and
                International Affairs (See E.O. 12144, sec. 3-2).
                Appendix A to Part 13--List of Departmental Categorical Exclusions
                 1. Routine procedural, administrative, financial, and management
                actions necessary to support the normal conduct of DOT business.
                Routine procurements and contract actions for goods and services
                including general supplies, equipment, utility services, contractor
                services, and personnel services.*
                 2. Personnel actions including recruiting, hiring, promotions,
                processing, paying, and recordkeeping.*
                 3. Training, technical assistance, and educational and
                informational programs and activities.*
                 4. Operating or maintenance subsidies or agreements, such as
                operating subsidies to transit agencies or air carriers under the
                Essential Air Service program, when the subsidy or agreement will
                not result in a change in the effect on the environment.
                 5. Actions categorically excluded in OA Procedures \6\ where the
                action is administered by another OA. The OA with the CE must
                provide a written determination that the CE applies to the action
                proposed by the other OA and must provide expertise in reviewing the
                action being categorically excluded. The extraordinary circumstances
                provided in the OA Procedures where the CE is listed should be
                considered in lieu of the extraordinary circumstances provided in
                Sec. 13.17(b). This CE is not applicable to actions that meet the
                definition of multimodal project in 23 U.S.C. 139(a); instead, an OA
                may follow the process in Sec. 13.17(c).
                ---------------------------------------------------------------------------
                 \6\ See Appendix B to part 13.
                ---------------------------------------------------------------------------
                 6. Leasing of space in existing buildings or facilities.
                 7. Remodeling existing buildings or facilities including
                maintenance, reconstruction, rehabilitation, retrofit, or upgrades
                of existing buildings, facilities, or systems, such as electrical
                and plumbing systems, replacement of siding, roof rehabilitation,
                resurfacing, or reconstruction of paved areas.
                 8. Gardening, landscaping, and maintenance of existing
                landscaping that does not cause or promote the introduction or
                spread of invasive species that would harm the native ecosystem.
                 9. Investigations, research activities, and studies including
                data collection and analysis, information gathering, document
                preparation, and information dissemination.*
                 10. Promulgation, modification, or revocation of rules, issuance
                of rulings or interpretations, and the development and publication
                of policies, orders, directives, notices, procedures, manuals,
                advisory circulars, and other guidance documents that are
                administrative, organizational, or procedural in nature, or are
                corrective, technical, or minor.*
                 11. Promulgation, modification, revocation, or interpretation of
                safety standards, rules, and regulations that do not result in a
                substantial increase in emissions of air or water pollutants, noise,
                or traffic congestion, or increase the risk of reportable release of
                hazardous materials or toxic substances in any mode of
                transportation.
                 12. Hearings, meetings, and public outreach activities.*
                 13. Administrative actions and proceedings, such as rendering
                decisions on petitions for rulemaking and petitions for
                reconsideration.*
                 14. Financial assistance to an applicant solely for the purpose
                of refinancing outstanding debt, where the debt funds an action that
                is already completed.*
                 15. Agreements with foreign governments, foreign civil aviation
                authorities, international organizations, or U.S. Government
                departments or agencies calling for cooperative activities or the
                provision of technical assistance, advice, equipment, funds, or
                services to those parties, and the implementation of such
                agreements; negotiations and agreements to establish and define
                bilateral safety relationships with foreign governments and the
                implementation of such agreements.*
                 16. The following actions relating to economic regulation of
                airlines:
                 a. Actions approving an agreement between an air carrier and a
                foreign air carrier; acquisition of control, merger, consolidation,
                or interlocking relationship;*
                [[Page 74663]]
                 b. Finding a U.S. or foreign air carrier fit under 49 U.S.C.
                chapters 411 or 413;*
                 c. Approving or setting carrier fares or rates;*
                 d. Making a determination on the reasonableness of a fee imposed
                by an airport proprietor on a U.S. or foreign air carrier;*
                 e. Route awards involving turboprop aircraft having a capacity
                of 60 seats or less and a maximum payload capacity of 18,000 pounds
                or less;
                 f. Route awards that do not involve supersonic service and will
                not result in an increase in commercial aircraft operations of one
                or more percent;
                 g. Determinations on termination of airline employees;*
                 h. Actions relating to consumer protection, including
                regulations;*
                 i. Authorizing carriers to serve airports already receiving the
                type of service authorized, which does not result in significant air
                quality, noise or other adverse environmental consequences;
                 j. Granting temporary or emergency authority;
                 k. Registration of an air taxi operator pursuant to 14 CFR part
                298; and
                 l. Granting of charter authority to a U.S. or foreign air
                carrier under 49 U.S.C. chapters 411 or 413.
                ``*'' indicates an undocumented CE
                Appendix B to Part 13--List of Categorical Exclusions in Operating
                Administration Procedures
                 This list identifies the location of categorical exclusions
                (CEs) currently established in each of the Department's OA
                Procedures. These CEs are incorporated by reference and may require
                additional approval by the relevant OA. These CEs are subject to
                review for the extraordinary circumstances contained in the relevant
                OA procedures. The Department will update the citations contained in
                this list as necessary.
                 (a) CEs for the Federal Aviation Administration (FAA) are
                located in FAA Order 1050.1F, Paragraph 5-6 (80 FR 44208, July 24,
                2015).
                 (b) CEs for the Federal Highway Administration (FHWA) are
                located at 23 CFR 771.117.
                 (c) CEs for the Federal Motor Carrier Safety Administration
                (FMCSA) are located at FMCSA Order 5610.1, Appendix 2 (69 FR 9680,
                March 1, 2004).
                 (d) CEs for the Federal Railroad Administration (FRA) are
                located in 23 CFR 771.116(c).
                 (e) CEs for the Federal Transit Administration (FTA) are located
                in 23 CFR 771.118.
                 (f) CEs for the Maritime Administration (MARAD) are located at
                Maritime Administration Order No. 600-1, Appendix 1 (50 FR 11606,
                March 22, 1985).
                 (g) CEs for the Saint Lawrence Seaway Development Corporation
                (SLSDC) are located at SLSDC Order 10-5610.1C, Paragraph 6b (46 FR
                28795, May 28, 1981).
                Appendix C to Part 13--Environmental Requirements for Integration With
                the NEPA Process
                 As noted in Sec. 13.13(a), Operating Administrations should
                coordinate and integrate all relevant environmental reviews,
                authorizations, and consultations into the NEPA process. The
                following is a non-exhaustive list of authorities under which these
                may be conducted (subject to further amendment, repeal, rescission,
                revocation, or other change):
                 1. Section 4(f), 23 U.S.C. 138 and 49 U.S.C. 303.
                 2. Section 176 of the Clean Air Act, as amended, 42 U.S.C. 7506,
                and its implementing regulations: 40 CFR part 51, subpart T and part
                93, subpart A (Transportation Conformity) or 40 CFR part 51, subpart
                W and part 93, subpart B (General Conformity).
                 3. Section 106 of the National Historic Preservation Act of
                1966, as amended, 54 U.S.C. 306108 (Section 106).
                 4. Section 7 of the Endangered Species Act, as amended, 16
                U.S.C. 1536.
                 5. Section 404 of the Federal Water Pollution Control Act (Clean
                Water Act), as amended, 33 U.S.C. 1344.
                 6. Migratory Bird Treaty Act, as amended, 16 U.S.C. 703-712.
                 7. Bald and Golden Eagle Protection Act, as amended, 16 U.S.C.
                668-668d.
                 8. Section 307 of the Coastal Zone Management Act of 1972, as
                amended, 16 U.S.C. 1456.
                 9. Section 2 of the Fish and Wildlife Coordination Act, as
                amended, 16 U.S.C. 662.
                 10. Section 305 of the Magnuson-Stevens Fishery Conservation and
                Management Act, as amended, 16 U.S.C. 1855.
                 11. Fish and Wildlife Conservation Act, as amended, 16 U.S.C.
                2901-2912.
                 12. Section 9 of the Rivers and Harbors Act of 1899, as amended,
                33 U.S.C. 401.
                 13. The General Bridge Act of 1946, 33 U.S.C. 525(a)-(b), 528,
                530, and 533.
                 14. Executive Order 11988, Floodplain Management (May 24, 1977)
                as implemented by the Department through DOT Order 5650.2.
                 15. Executive Order 11990, Protection of Wetlands (May 24, 1977)
                as implemented by the Department through DOT Order 5660.1A.
                 16. Executive Order 12114, Environmental Effects Abroad of Major
                Federal Actions (Jan. 4, 1979).
                 17. Executive Order 12372, Intergovernmental Review of Federal
                Programs (July 14, 1982).
                 18. Executive Order 12898, Federal Actions to Address
                Environmental Justice in Minority Populations and Low-Income
                Populations (Feb. 11, 1994), as implemented by the Department
                through DOT Order 5610.2(a).
                 19. Executive Order 13175, Consultation and Coordination with
                Indian Tribal Governments (Nov. 6, 2000).
                [FR Doc. 2020-25030 Filed 11-20-20; 8:45 am]
                BILLING CODE 4910-9X-P
                

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