Procedures for Considering Environmental Impacts
| Published date | 23 November 2020 |
| Citation | 85 FR 74640 |
| Record Number | 2020-25030 |
| Section | Proposed rules |
| Court | The Secretary Of Transportation Office |
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
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Introduction......................... 1. Purpose............. A...................... 13.1.
2. Cancellation........ Removed................ Removed.
3. Authority........... B; Appendix C of part 13.7(d); Appendix C of
13. part 13.
1. Background........................ ....................... Removed................ Removed.
2. Policy and Intent................. ....................... A; B................... 13.5; 13.13.
3. Planning and Early Coordination... ....................... B...................... 13.9.
4. Environmental Processing Choice... a. Action Covered...... A...................... 13.3.
b. Environmental Impact B...................... 13.23.
Statements.
c. Categorical B; Appendix A of part 13.17; Appendix A of
Exclusions. 13. part 13.
d. Environmental B...................... 13.19.
Assessment. Removed................ Removed.
e. Exemptions..........
5. Finding of No Significant Impact ....................... B...................... 13.21.
(FONSI).
6. Lead Agencies and Cooperating ....................... B...................... 13.11.
Agencies.
7. Preparation and Processing of a. Scope of Statement.. B...................... 13.23(c).
Draft Environmental Impact b. Timing of B...................... 13.25(a).
Statements (DEISs). Preparation of Draft
Statements.
c. Interdisciplinary B...................... 13.13(d).
Approach and
Responsibility for EIS
Preparation.
d. Preparation of Draft Removed................ 13.13(a); Appendix C.
e. Format and Content.. B...................... 13.23(e).
f. Circulation of the B...................... 13.25(c).
Draft Environmental
Impact Statement.
g. Tiering............. B...................... 13.13(f).
B...................... 13.25(b).
B...................... 13.23(f).
13.23(g).
8. Inviting Comments on the DEIS..... a. State and Local B...................... 13.25(c).
Review. B...................... 13.23(d).
b. Review of EISs
Prepared Pursuant to
Section 102(2)(D) of
NEPA.
9. Review of Environmental Impact ....................... Removed................ Removed.
Statements Prepared by Other
Agencies.
10. Predecision Referrals to the a. DOT Lead Agency B...................... 13.13(e)(2)(i).
Council on Environmental Quality. Proposals. B...................... 13.13(e)(2)(ii).
b. DOT Referrals to CEQ
on Other Agencies'
Proposals.
[[Page 74643]]
11. Final Environmental Impact a. Preparation......... ....................... 13.27(a).
Statements. b. Compliance with A; B; Appendix C of 13.5;
Other Requirements. part 13. 13.13(a);13.27(b);
Appendix C of part 13.
c. Legal Review........ B...................... 13.7.
d. Approval............ B...................... 13.27(e).
e. Availability Pending Removed................ Removed.
Approval.
f. Availability of B...................... 13.25(h)-(i); 13.27(g).
Statements to EPA and
the Public.
g. Implementation of B...................... 13.13(g).
Representations in
Environmental
Statements.
h. Supplemental B...................... 13.33(b).
Statements. B...................... 13.27(b).
12. Determinations under Section 4(f) ....................... Removed................ Removed.
of the DOT Act.
13. Responsibility................... ....................... B...................... 13.7.
14. Citizen Involvement Procedures... ....................... B...................... 13.13(h).
15. Proposals for Legislation........ a. Preparation......... B...................... 13.37(a).
b. Processing.......... B...................... 13.37(b).
16. International Actions............ ....................... B...................... 13.39.
17. Timing of Agency Action.......... ....................... B...................... 13.23(j).
18. Effective Date................... ....................... Removed................ Removed.
19. Time in Effect of Statements..... ....................... B...................... 13.33(a).
20. Implementing Instructions........ ....................... B...................... 13.7(e).
21. Responsible Official for Office ....................... B...................... 13.7.
of the Secretary Actions.
Attachment 1. State and Localities ....................... Removed................ Removed.
with EIS Requirements.
Attachment 2. Format and Content of ....................... Removed................ Removed.
Environmental Impact Statements.
B...................... 13.29.
B...................... 13.31.
B...................... 13.35.
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III. Section-by Section Description of Changes in the Proposed Rule
This proposal would rearrange the 1985 procedures and would
separate them into two subparts to divide the generally applicable
provisions in subpart A from the provisions addressing the NEPA review
process and compliance responsibilities in subpart B. In addition,
subpart B would reorder sections from the 1985 procedures to align with
the Department's environmental review process and the levels of NEPA
documentation.
A. Subpart A--General
This proposal would remove the Introduction and Background sections
of the 1985 procedures and would transfer content addressing the
purpose of the Department's NEPA implementing procedures to proposed
Sec. Sec. 13.1 and 13.5. Proposed subpart A would significantly
reorganize and update section 2 of the 1985 procedures, ``Policy and
Intent,'' in proposed Sec. 13.5 to reflect current policy and intent
of the DOT NEPA procedures. As discussed more specifically in the
section-by-section summaries of proposed Sec. Sec. 13.1 through 13.5,
this proposed subpart would emphasize the Department's goals to: (1)
Achieve the Department's mission and ensure consistency with national
transportation policy (Sec. 13.5(a)); (2) use the NEPA process as an
umbrella to achieve a single, integrated environmental review process
\2\ (Sec. 13.5(b)); (3) use sound science and reliable data (Sec.
13.5(c)); (4) facilitate a collaborative process to achieve optimal
outcomes while protecting and enhancing the environment (Sec.
13.5(d)); and (5) ensure meaningful public participation and
collaboration (Sec. 13.5(e)).
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\2\ For the purpose of this NPRM, ``environmental review''
encompasses both the NEPA process and authorizations, including
reviews or actions taken to comply with relevant substantive
environmental requirements.
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This proposed subpart would set forth the Department's overarching
environmental policy in the context of its agency mission, which is to
ensure the safest, most efficient and modern transportation system in
the world, which improves the quality of life for all American people
and communities, from rural to urban, and increases the productivity
and competitiveness of American workers and businesses. The proposed
subpart would provide consistency between the Department's NEPA
procedures and congressional declarations of policy, which provide that
it is in the national interest to ``accelerate project delivery and
reduce costs'' and to ensure that transportation project delivery is
completed in ``an efficient and effective manner, promoting
accountability for public investments and encouraging greater private
sector involvement . . . while enhancing safety and protecting the
environment.'' MAP-21 sec. 1301 (set out at 23 U.S.C. 101 note).
Finally, this subpart would support the presumptive time limits
established in the updated CEQ regulations to complete environmental
documentation. See 40 CFR 1501.10.
Sec. 13.1 Applicability
The applicability section would focus on the implementation of NEPA
pursuant to the CEQ regulations and include covered actions. Covered
actions would identify categories of Department actions typically
subject to
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NEPA. For consistency with the CEQ regulations at 40 CFR 1508.1(q),
this section would clarify that loans and loan guarantees may be
actions subject to NEPA when the OA exercises sufficient control and
responsibility over the effects of such assistance. This list would
also include ``approvals of policies and plans (including those
submitted to the Department by State, Tribal, or local agencies, or
other public or private applicants, unless otherwise exempted).''
The CEQ regulations at 40 CFR 1501.1 and 1507.3(d) provide that
agencies should identify activities or decisions that are not subject
to NEPA. This section would exclude transportation improvement plans
(TIPs) and statewide improvement plans (STIPs) conducted pursuant to 23
U.S.C. 134 and 135 because TIPs and STIPs are statutorily exempt from
review under NEPA pursuant to 23 U.S.C. 134(q) and 23 U.S.C. 135(k),
respectively. In addition, the section would clarify, consistent with
40 CFR 1501.1(a)(5) and 1507.3(d)(5), and with Department of
Transportation v. Public Citizen, 541 U.S. 752 (2004), that a proposal
is not an action subject to NEPA if the proposal is ministerial in
nature; if the Department lacks discretion to consider the
environmental impacts in making the decision; or if the Department does
not have responsibility for, or cannot control, the outcome. DOT
recommends that OAs identify any specific additional activities or
decisions to which NEPA does not apply, consistent with 40 CFR 1501.1
and 1507.3(d), as appropriate, in their own implementing procedures as
stated in Sec. 13.7(c)(1).
The Department proposed to use ``rulemakings'' rather than the
phrase ``rulemaking and regulatory actions'' as used in DOT Order
5610.1C because the term rulemaking already encompasses regulatory
actions by its definition. In addition, the Department does not include
``research activities'' because most of the Department's research
activities would not have environmental impacts subject to NEPA. To the
extent that a research activity is an action, it may be appropriate to
categorically exclude an action under CE #9. References to other
environmental requirements are updated and reorganized. The Department
therefore proposes to list certain authorities previously listed in
paragraph 3 of the Introduction section of the 1985 procedures in
Appendix C of proposed part 13. In addition, the Department would not
include statutory references that are not broadly applicable to the
Department, are substantively addressed elsewhere in the proposed rule,
or are implemented by OA procedures. As a result, this proposal would
not include the following references: Section 2(b) of the Department of
Transportation Act of 1966 (49 U.S.C. 1653); Section 309 of the Clean
Air Act, as amended (42 U.S.C. 7401 et seq.); Section 303 of the
Coastal Zone Management Act of 1972 (43 U.S.C. 1241); and, where
environmental statements are required, Sections 138 and 109 of Federal
aid highway legislation (Title 23); Sections 16 and 18(a) of the
Airport and Airway Development Act of 1970 (49 U.S.C. 1716, 1718); and
Section 14 of the Urban Mass Transportation Act of 1964 (49 U.S.C. 1601
et seq.).
Sec. 13.3 Definitions
While the 1985 procedures did not contain a definitions section,
the Department determined that it would be helpful to define certain
terms to reduce ambiguity as to certain terminology used in this
proposed rule and by the Department's NEPA practitioners. This proposed
section would incorporate by reference the definitions from the CEQ
regulations set forth in 40 CFR 1508.1, and supplement those
definitions where necessary. This section would define the following
terms:
(a) Applicant. This definition would define ``applicant'' broadly
to reflect the variety of applicants encountered across the Department.
This definition also would recognize that some OA NEPA implementing
procedures (OA Procedures) provide that the applicant will carry out
some of the responsibilities of the OA on its behalf, and therefore
could conduct activities under the Department's NEPA procedures on
behalf of that OA. This definition is intended to provide flexibility
to OAs that administer programs where applicants are responsible for
preparing NEPA documents on behalf of OAs. This includes State DOTs,
transit agencies, and other applicants that prepare NEPA documents or
carry out other responsibilities for the NEPA process pursuant to OA
NEPA procedures. For purposes of this part, the definition of
``applicant'' does not include States that are assigned environmental
review responsibilities pursuant to a memorandum of understanding
executed pursuant to statutory authority under 23 U.S.C. 326 and 327.
States that carry out such assignments are deemed to be OAs for
purposes of this part.
(b) Environmental review process. The Department would include this
term to emphasize that the Department strives to comply not just with
NEPA, but with all applicable environmental requirements in a single
process, so as to ensure efficient project delivery and decisionmaking.
(c) Level of NEPA Review. The Department would include this term to
mean the level of NEPA review required for a particular action (i.e., a
CE, an EA, or an EIS).
(d) NEPA Document. The proposal would use the term ``NEPA
document'' in addition to ``environmental document'' as used in the CEQ
regulations, and would define it more broadly to include an EIS, a
record of decision (ROD), an EA, a finding of no significant impact
(FONSI), or any documentation that may be prepared in the application
of a CE to a proposed action.
(e) Operating Administration (OA): The Department would define
``OA'' to mean any agency established within the Department, and cross
reference to the list of the current OAs in 49 CFR 1.3. As noted in
Section II of this rulemaking, to improve readability of this proposal,
``OA'' would also include a Secretarial Office where that office is
carrying out its own NEPA responsibilities.
Sec. 13.5 Environmental Review Policy
This proposed section would set forth the Department's policies for
evaluating environmental impacts caused by Department actions. This
section would modify language previously contained in sections 1 and 2
of the 1985 procedures and would state in proposed paragraphs (a), (b),
and (c) that the policy of the Department is to: Integrate Federal
environmental objectives into Department programs while avoiding or
minimizing adverse environmental effects wherever practicable;
synchronize NEPA and other environmental requirements into a single,
concurrent process; and apply sound science, reliable data, and a
systematic interdisciplinary approach.
The Department's policies further statutory directives set forth in
section 1313 of the FAST Act to: Develop a coordinated and concurrent
environmental review and permitting process for transportation projects
as well as align Federal reviews; reduce permitting and project
delivery timelines; and facilitate interagency collaboration.
Accordingly, proposed paragraphs (d) and (e) would include instructions
to: Maximize the use of proven strategies to complete the environmental
review process efficiently; and encourage meaningful, proactive, open,
and transparent public participation and collaboration.
In addition, this proposed section would not include certain policy
language from the 1985 procedures to
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update and align the Department's processes with the updated CEQ
regulations and statutory provisions contained in section 1301 of MAP-
21 (set out at 23 U.S.C. 101 note) directing the Department to
accelerate transportation project delivery, reduce costs, and ensure
that transportation projects are completed in a streamlined manner and
that environmental reviews are efficient and effective. The Department
will continue to conduct environmental reviews consistent with 40 CFR
1501.3 and other authorities, where applicable, including Section 4(f)
(23 U.S.C. 138 and 49 U.S.C. 303). For purposes of streamlining the
procedures, the Department would clarify in Appendix C its expectation
that OAs would integrate into the NEPA process compliance with
substantive environmental laws. As to this section, the Department is
of the view that it is not necessary to include specific references
regarding: Preservation of the natural beauty of the countryside and
public park and recreation lands, wildlife and waterfowl refuges, and
historic sites; preservation, restoration, and improvement of wetlands;
improvement of the urban physical, social, and economic environment;
and provision of opportunities for disadvantaged persons. These matters
are otherwise covered in substantive environmental laws.
The Department would not include language stating that the EIS,
FONSI, and determination that a proposed action is categorically
excluded serve as the record of compliance with the Department's
environmental review policy, NEPA procedures, and other environmental
statutes and Executive orders. The proposal recognizes that an EIS
contains analyses, but is not a decision document like a FONSI or CE
determination, and an EIS alone is not final agency action. See 40 CFR
1500.3(c) and 85 FR at 43318.
B. Subpart B--NEPA Review Process
Sec. 13.7 Managing NEPA Compliance
Proposed Sec. 13.7 would be a new addition to the Department's
implementing procedures. This section would list the roles and
responsibilities within the Department for implementing NEPA, the CEQ
regulations, this proposed rule, OA implementing procedures, and other
applicable laws.
The CEQ regulations introduce the term ``senior agency official''
to differentiate between an agency decisionmaker for an individual
action and the agency official who oversees the agency's overall
compliance with NEPA. 40 CFR 1508.1(dd). CEQ acknowledged that multiple
individuals may carry out these responsibilities in agencies that have
subunits with their own agency procedures or NEPA compliance programs.
85 FR 43304, 43315 (July 16, 2020). Within DOT, OAs carry out their own
NEPA compliance programs. Accordingly, proposed paragraph (a) would
identify the Assistant Secretary for Transportation Policy (Assistant
Secretary) as the senior agency official responsible for implementing
NEPA, establishing NEPA policy, and identifying the OA that will serve
as the lead agency for all actions taken by the Department pursuant to
49 CFR 1.25a(a)(2). For example, to create efficiencies, the senior
agency official may designate one OA to act as the lead agency and to
prepare the environmental documentation on behalf of all OAs for
certain actions, such as when a multimodal project receives funding
from or requires approval by one or more OAs. In addition, consistent
with CEQ's direction and to maximize efficiency, these procedures
would, in certain instances, permit an OA Administrator to carry out
the responsibilities of a senior agency official at an OA level. For
example, paragraph (c) of Sec. 13.19 would permit either the Assistant
Secretary or an OA Administrator to act as the senior agency official
for purposes of allowing an OA to exceed the presumptive limit of 75
pages and to establish a new page limit for the EA. Similarly, for
purposes of setting EA time limits for EAs, paragraph (c) of Sec.
13.19 would authorize either official to set new time limits. Finally,
consistent with the Department's Interim Guidance on Page Limits for
National Environmental Policy Act Documents and Focused Analyses (84 FR
44351 (August 23, 2019)), the Department would reserve to the Assistant
Secretary in Sec. 13.23(f) through (g) similar decisionmaking
authority for EISs.
Proposed paragraph (b) would identify the Office of the Secretary
of Transportation, Office of Policy Development, Strategic Planning,
and Performance (Office of Policy) as the responsible office for NEPA
implementation and compliance with related environmental requirements,
and as the source of additional environmental review process
information. It would require OAs to consult with the Office of Policy,
and in turn with the Office of the General Counsel (OGC), in certain
situations.
Proposed paragraph (c) would identify OGC as legal counsel to the
Office of Policy on topics related to the implementation and
interpretation of NEPA, the CEQ regulations, this proposed rule, and
other applicable laws; charge OGC with providing legal sufficiency
determinations on Department NEPA documents; and charge OGC with
coordinating with OAs and the Department of Justice on NEPA-related
litigation.
Proposed paragraph (d) would identify this proposal as a supplement
to CEQ regulations that sets forth procedures specific to Department
actions, with which all OAs must comply. This provision originally
appeared in the Introduction section of the 1985 procedures.
Proposed paragraphs (e)(1) through (5) would require each OA to
issue or modify its NEPA implementing procedures through an Order or
regulations consistent with this proposal, the CEQ regulations, and
other applicable laws. This section would also outline the minimum
requirements of each OA's procedures, and the process that OAs may use
to revise existing or create new provisions. This direction was
originally found at section 20 of the 1985 procedures and has been
updated to reflect the updated CEQ regulations (85 FR 43304 (July 16,
2020)). Finally, this proposed section would authorize OAs, subject to
40 CFR 1507.3(a), to rely on their existing procedures until their new
procedures are reviewed and revised, and to use, on a discretionary
basis, portions of the Department's procedures to the extent such
direction has not been incorporated into the OA's procedures.
Sec. 13.9 Planning and Early Coordination
Proposed Sec. 13.9 would retain the direction provided in the 1985
procedures at section 3, ``Planning and Early Coordination,'' and would
incorporate direction for the early portions of the NEPA process.
Proposed paragraph (a) is intended to implement MAP-21 sec. 1320, which
encourages agencies to coordinate with one another ``at the earliest
practicable time.'' Consistent with 40 CFR 1501.2(a), proposed
paragraph (a)(1) would encourage early and ongoing coordination, and
would require early efforts to identify the purpose and need,
environmental impacts, reasonable alternatives, and measures to avoid,
minimize, or mitigate adverse environmental impacts, as appropriate.
Consistent with requirements in 40 CFR 1506.1, the proposed paragraph
(a)(2) would include a general prohibition against taking actions that
will have an adverse environmental impact or limit the choice of
reasonable alternatives until after a final NEPA determination is
[[Page 74646]]
made; and it would set forth notification requirements should the OA
become aware that such an action may have been taken. Proposed
paragraphs (b) and (c) would build on section 3(b) of the 1985
procedures. Proposed paragraph (b) would require OAs to ensure that
applicants are aware of environmental review and analysis requirements.
Proposed paragraph (c) would require coordination with other OAs;
Federal, State, Tribal, and local resource and regulatory agencies;
stakeholders; and the public to comply with NEPA and other relevant
statutes, regulations, and Executive Orders. Proposed paragraph (d)
would encourage reliance on information developed during the planning
process to avoid duplicating efforts in the NEPA process. This proposal
would encourage consideration of environmental impacts during
transportation planning; however, this process is explicitly exempted
from NEPA pursuant to 23 U.S.C. 134(q) and 135(k). Nevertheless, in
accordance with MAP-21 sec. 1310 and FAST Act sec. 1305, this proposal
would recognize the statutory framework that permits the products of
statewide and metropolitan planning processes to be adopted for use in
the NEPA process. Proposed paragraph (e) would discuss the use of the
scoping process in early coordination to identify significant issues
and to ensure early public involvement in the NEPA process. It further
would instruct OAs to use early coordination tools to accelerate the
EIS process.
Sec. 13.11 Lead, Cooperating, and Participating Agencies
Proposed Sec. 13.11 would include language, with minor revisions,
generally consistent with section 6 of the 1985 procedures, ``Lead
Agencies and Cooperating Agencies.'' This section would outline the
responsibilities of lead, joint lead, cooperating, and participating
agencies consistent with the CEQ regulations, the appropriate timing
for coordination with cooperating agencies, and protocols for
coordinating with agencies that decline a DOT-requested cooperating
agency status. This section would align with the update to the CEQ
regulations, 40 CFR 1501.7 and 1501.8, to highlight the
responsibilities of the lead agency, including the responsibility to
issue a single environmental document, single FONSI, or single ROD for
the lead and cooperating agencies, the responsibility to determine the
scope and significant issues to be analyzed in depth in the
environmental impact statement, and the responsibility to determine the
purpose and need and range of alternatives in consultation with the
cooperating agency. In addition, the lead agency would be responsible
for creating and updating the project schedule in coordination with the
cooperating agencies. Finally, proposed paragraph (d) would recommend
inviting agencies that may have an interest in the proposed action and
are not cooperating or lead agencies to participate in the
environmental review process. This approach is similar to the
participating agency role set forth in 23 U.S.C. 139(d). Since
applicants may carry out the responsibilities of the OA on its behalf,
this proposal would not include the requirement from the 1985
procedures for applicants to serve as joint lead agencies.
Sec. 13.13 General Principles for the NEPA Review Process
This proposal would include a new proposed Sec. 13.13. This
proposed addition would build upon several provisions from the 1985
procedures, including section 2, ``Policy and Intent;'' section 7,
``Preparation and Processing of Draft Environmental Statements;''
section 10, ``Predecision Referrals to the Council on Environmental
Quality;'' and section 14, ``Citizen Involvement Procedures.''
Proposed paragraph (a) would address the integration, to the
maximum extent possible and at the earliest possible time, of all
environmental reviews into the NEPA process to create a single
environmental document.
To expedite project delivery, proposed paragraph (b) would instruct
OAs to incorporate by reference previously prepared and publicly
available analyses, whenever possible, and to include a brief summary
of the material in the NEPA document.
Proposed paragraph (c) would set forth general requirements for
NEPA documents, in accordance with 40 CFR 1500.4(d), 1502.2(a) and (c),
and 1502.8, including that they be written in plain language and that
they address impacts in proportion to their significance.
Proposed paragraph (d) would require OAs to use an
interdisciplinary approach, consistent with 40 CFR 1502.6, and provide
that they may use professional services but must have staff with the
capacity to evaluate these services and must take responsibility for
the final content of their NEPA documents, consistent with 40 CFR
1506.5 and 1507.2.
Proposed paragraph (e) would promote the use of informal conflict
resolution as well as environmental collaboration and conflict
resolution (ECCR), consistent with the applicable requirements related
to issue elevation and resolution outlined in section 6002 of SAFETEA-
LU, 40 CFR 1504.2, and 1504.3(d) through (h), Executive Order (E.O.)
13807, and the September 7, 2012, CEQ/OMB joint ``Memorandum on
Environmental Collaboration and Conflict Resolution.'' Proposed
paragraph (e)(2) would include with revisions section 10 of the 1985
procedures, ``Pre-decision Referrals to the Council on Environmental
Quality''. This proposed paragraph would address the internal process
for addressing or making referrals to CEQ. Overall, the process would
remain the same, with revisions to reflect current practices for
internal clearance and documentation requirements.
Proposed paragraph (f) would provide direction on the use of
tiering to improve or simplify the environmental analysis of actions
that are similar or broad in nature, or when future decisions or
unknown future conditions preclude a complete NEPA analysis, consistent
with 40 CFR 1501.11 and 1502.4(b)(2). It also would encourage the use
of programmatic approaches with resource or regulatory agencies, where
possible. This instruction is consistent with MAP-21 sec. 1305, which
modified the environmental review process mandated in sec. 6002 of
SAFETEA-LU by explicitly authorizing the Department to use programmatic
approaches to conduct environmental reviews. 23 U.S.C. 139(b).
Proposed paragraph (g), which is consistent with 40 CFR 1501.6(c),
1505.2(a)(3) and 1505.3, would instruct OAs to identify in the FONSI or
ROD those measures that the lead agency is adopting and committing to
implement. Due to the importance of ensuring implementation of
mitigation measures, OAs would be instructed to take appropriate steps
to ensure that these mitigation measures are implemented, including,
for third-party actions, by conditioning the agency decision upon the
performance of the mitigation commitments. Where legal authority
exists, OAs would be permitted to provide for mitigation monitoring.
Proposed paragraphs (h)(1) and (2) would identify public
involvement as an important part of each stage of the development of a
proposed action that should begin as early as reasonable and should be
integrated into the NEPA process. The language would remain relatively
unchanged from the original section 14 of the 1985 procedures, but has
been updated to include modern technologies, such as using social
media. Because the CEQ regulations provide flexibility with regard to
public hearings, the Department does not
[[Page 74647]]
include section 14(e) of the 1985 procedures. The revised provision
provides flexibility in implementation and recognizes the importance of
various engagement strategies. In addition, the proposed rule states
that that methods to solicit the views of the public should be tailored
to reach those persons who are interested or affected by the action,
and NEPA documents should be made available online where appropriate
and practicable. Finally, this provision would incorporate CEQ's
requirements from 40 CFR 1500.3(b), 1500.4(n), and 1503.3, that public
comments be solicited as early in the process as possible, that they be
specific, and that OAs provide notice that comments not submitted shall
be forfeited as unexhausted.
Proposed paragraph (i) would recognize that NEPA decisionmaking may
not be delegated to third parties, but that many NEPA documents are
prepared by third parties. Accordingly, this paragraph would address
the use of contractors in preparing NEPA documents and set forth
requirements consistent with 40 CFR 1506.5, which require OAs to
provide guidance, participate in the preparation of, and independently
review and assume responsibility for the content of all NEPA documents.
OAs would retain responsibility for the documents' accuracy, scope, and
contents. The section also would provide guidance for the selection of
contractors. The Department notes that OA procedures may include
different requirements regarding the OA's use of contractors. See,
e.g., 23 U.S.C. 112.
Proposed paragraph (j) would incorporate existing NEPA tracking
requirements at 40 CFR 1501.7(i), 1501.9(d)(5), and 1507.4 under which
certain OAs must report applicable actions on the Permitting Dashboard,
www.permits.performance.gov. The DOT Reporting Standards \3\ clarify
which OAs and which projects must be tracked. Currently the DOT
Reporting Standards require the Federal Highway Administration, Federal
Transit Administration, Federal Railroad Administration, and Federal
Aviation Administration (including Stage agencies with NEPA assignment
pursuant to 23 U.S.C. 327) to track all EAs and EISs for infrastructure
projects. In addition, the DOT Reporting Standards reflect the E.O.
13807 requirement that all OAs must track major infrastructure
projects, as that term is defined in E.O. 13807. These reporting
standards have been subject to modification since first established in
2016 and may be subject to additional revisions in the future.
Accordingly, the proposed rule would include only a high-level
reference to the reporting requirements, while the specifics are
addressed in the Reporting Standards to make it easier to revise as
necessary.
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\3\ The DOT Reporting Standards are available at: http://www.transportation.gov/transportation-policy/permittingcenter/federal-permitting-dashboard-reporting-standard.
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Sec. 13.15 Determination of the Level of NEPA Review
Proposed Sec. 13.15 would include with modifications the 1985
procedures at section 4, ``Environmental Processing Choice.'' The
discussions of CEs and EAs in section 4 would be addressed in proposed
Sec. Sec. 13.17 and 13.19, respectively, and the list of references to
OA CEs would be addressed in Appendix B. Proposed paragraph (a) would
require OAs to establish the appropriate scope of the proposed action
using, as applicable, the criteria in 40 CFR 1501.9(e) to determine the
appropriate level of NEPA review. Proposed paragraph (b) would instruct
OAs to ensure that the scope of a proposed action has independent
utility or significance and does not unreasonably restrict the
consideration of alternatives for other reasonably foreseeable actions
to ensure meaningful and objective evaluation of alternatives. Proposed
paragraph (c) would require analysis of the potentially affected
environment and the degree of the effects in considering significance,
consistent with 40 CFR 1501.3(b), which includes consideration of
short- and long-term effects, beneficial and adverse effects, effects
on public health and safety, and effects that would violate Federal,
State, Tribal, or local laws protecting the environment where the
effects are reasonably foreseeable and have a reasonably close causal
relationship to the proposed action (see 1508.1(g)). Proposed paragraph
(d) would reflect the Office of Policy's role as the responsible office
for NEPA implementation and compliance and provide guidance to OAs to
notify the Office of Policy for situations involving unresolved
disagreements between the OA and an applicant regarding the appropriate
level of NEPA review.
Sec. 13.17 Categorical Exclusions
Section 13.17 would provide an update to the 1985 procedures at
section 4(c), ``Categorical Exclusions.'' Proposed paragraph (a) would
provide the definition of CEs, consistent with 40 CFR 1508.1(d) and
1501.4, and the requirement to consider whether extraordinary
circumstances are present such that the OA must prepare an EA or EIS.
Proposed paragraph (b) would provide a list of extraordinary
circumstances that an OA must consider before applying a CE listed in
proposed Appendix A of part 13. These represent circumstances in which
a normally excluded action may have significant environmental effects;
this updated list would add substantial increases of noise in a noise-
sensitive area; substantial adverse effects on a species listed or
proposed to be listed on the List of Endangered or Threatened Species,
or designated Critical Habitat for these species; a site that involves
a unique characteristic of the geographic area, such as prime or unique
agricultural land, a coastal zone, a historic or cultural resource,
park land, wetland, wild and scenic river, designated wilderness or
wilderness study area, sole source aquifer (potential sources of
drinking water), or an ecologically critical area; as well as
inconsistency with any applicable Federal, State, or local air quality
standards, including those under the Clean Air Act, as amended;
substantial short-or long-term increases in traffic congestion or
traffic volumes on any mode of transportation; or substantial impacts
on the environment resulting from the reasonably foreseeable,
reportable release of hazardous or toxic substances. This list only
would be applicable to the CEs listed in proposed Appendix A of part
13. However, when updating OA Procedures, OAs would be directed to
consider whether any of the extraordinary circumstances provided in
proposed paragraph (b) are appropriate to add to their list.
Under section 1314 of MAP-21, Congress first amended 49 U.S.C. 304
to establish a process by which OAs could apply CEs to multimodal
projects, as that term is defined in 23 U.S.C. 139(a). Through section
1310 of the FAST Act, Congress later amended 49 U.S.C. 304 so that one
OA could apply the CE established in the procedures of another OA for
multimodal projects, as defined in 23 U.S.C. 139(a)(5). Proposed
paragraph (c) would implement these authorities departmentwide.
The CEQ regulations allow agencies to establish a process to use
other Federal agencies' CEs for their proposed actions after
consultation with the other agencies to ensure that use of their CEs is
appropriate. The regulations require documentation of the consultation
and identification to the public of those CEs that the OA may use for
its proposed actions. 40 CFR 1507.3(f)(5). DOT requests comments on
whether the Department should create such a process and on the design
of any such process, or whether it is more
[[Page 74648]]
appropriate to direct each OA to develop a process in its own OA
Procedures. If the departmental procedures were to include such a
process, the provisions could describe the agency process under which
an agency may borrow another agency's CE, including describing the
proposed action, identifying potentially applicable CEs, documenting
the applicability analysis, consulting with the originating agency,
keeping records, and providing public notice. The Department will
consider appropriate measures or provisions if it elects to establish
such a process.
The CEQ regulations require agencies to review their existing NEPA
procedures to ensure that they are consistent with CEQ's revised
regulations and to adopt, as necessary, agency procedures that improve
agency efficiency. 40 CFR 1507.3(b), 40 CFR 1501.4(a). The Department
undertook such a review, and Appendix A would update and maintain a
list of Departmental CEs. Based on its review, the Department would
propose to add 11 new CEs, eliminate existing CE 3 and the subpart for
existing 6b, and modify the remaining five existing CEs. Modifications
to existing CEs would provide clarity and reflect the Department's
experience with these activities. The Department provides additional
information and justification for updating the existing CEs and
supporting the new CEs in the docket for this rulemaking.
The proposed rule would re-order and re-number the Departmentwide
CEs from the 1985 procedures. In the new proposed CEs, the Department
has identified routine operational activities, including training and
educational activities (proposed CE 3); leasing of space in existing
buildings (proposed CE 6); remodeling existing facilities (proposed CE
7); landscaping and landscape maintenance that does not cause
introduction or spread of invasive species (proposed CE 8);
investigations, research activities, and studies (proposed CE 9);
hearings and public meetings (proposed CE 12); administrative actions
and proceedings (proposed CE 13); financial assistance to an applicant
solely for the purpose of refinancing outstanding debt, where the debt
funds an action that is already completed as a categorically excluded
activity (proposed CE 14); and certain agreements concerning foreign
governments, foreign civil aviation authorities, and international
organizations and the implementation of such agreements (proposed CE
15).
This rule also would add two new CEs relating to rulemaking and
policy activities. The first would cover the promulgation,
modification, or revocation of rules and development of policies,
notices, and other guidance documents that are strictly administrative,
organizational, or procedural in nature; or are corrective, technical,
or minor (proposed CE 10). The second CE would cover the promulgation,
modification, revocation, or interpretation of safety standards, rules,
and regulations that do not result in a substantial increase in
emissions of air or water pollutants, noise, or traffic congestion, or
increase the risk of reportable release of hazardous materials or toxic
substances (proposed CE 11).
Finally, proposed CE 5 would modify existing CE 5 from the 1985
procedures, which incorporates by reference CEs identified in OA
Procedures, and would expressly allow one OA to apply the CE of another
OA. In order to apply a CE listed in another OAs procedures, the OA
that has established the CE in its procedures must confirm that the OA
administering the action is applying the CE appropriately, and that the
action to which the CE is being applied was contemplated when the CE
was established. Therefore, the Department would revise the CE to read,
``Action categorically excluded in an OA's procedures where the action
is administered by another OA. The OA with the CE must provide a
written determination that the CE applies to the action proposed by the
other OA and must provide expertise in reviewing the action being
categorically excluded.''
Over the last decade, the Department has implemented a number of
new programs and projects that go beyond the bounds of a particular OA.
This updated CE would allow the Department the flexibility to
administer its projects and programs more effectively and efficiently,
taking advantage of multiple OAs' resources and expertise, while
ensuring that CEs are appropriately applied to proposed actions. For
example, the Department may ask one OA to administer a grant because it
has extensive experience with that type of grantee, but the underlying
project falls within the environmental expertise of another OA. The
latter OA would determine whether application of its CEs to the project
is appropriate because it is contemplated within that category of
action and whether any extraordinary circumstances are present such
that preparation of an EA or EIS may be required.
Sec. 13.19 Environmental Assessments
Proposed Sec. 13.19 is a new section to address the preparation of
EAs; it would update the 1985 procedures at section 4(d),
``Environmental Assessment,'' which provided guidance for the
preparation of EAs. In accordance with 40 CFR 1501.5 and 1508.1(h),
proposed paragraph (a) would explain when an EA must be prepared.
Proposed paragraph (b) would provide the required elements for an EA,
consistent with 40 CFR 1501.5, while proposed paragraph (c) would set
forth an EA page limit of 75 pages consistent with 40 CFR 1501.5(f)
unless a senior agency official approves in writing an EA to exceed 75
pages and establishes a new page limit. It also would outline the
senior agency official approval required to exceed page limits beyond
these lengths. This paragraph would require the EA to be concise and to
correlate to the magnitude of the proposed action and its anticipated
impacts. Proposed paragraph (d) would provide the requirement that an
EA should be prepared within one year from the agencies' determination
to prepare an EA consistent with 40 CFR 1501.10(a)(1). If, during
development of the EA, the OA concludes that there will be significant
impacts and therefore would not issue a FONSI, the OA would issue an
NOI, and the time limits for EISs would apply consistent with 40 CFR
1501.10(a)(1).
Proposed paragraph (e) addresses the alternatives analysis for EAs,
which may be limited to the proposed action and no action alternative,
and may be analyzed to a degree commensurate with the nature of the
proposed action and the OA's experience with the potential
environmental impacts of similar projects. OAs would be instructed to
indicate a preferred alternative in the EA, if one has been identified.
For those alternatives that were considered and eliminated, the OAs
would be directed to provide a brief justification of these decisions
in the EA. Proposed paragraph (f) would note that EAs should reflect
compliance or plans for compliance with other applicable environmental
requirements, 40 CFR 1501.5(g)(3) and 1502.24, and proposed paragraph
(g) would require an OA to evaluate the environmental issues
independently and take responsibility for the accuracy, scope and
contents of EAs prepared by applicants, 40 CFR 1506.5(b)(2). Proposed
paragraph (h) would require OAs to involve the public, State, Tribal
and local governments, relevant agencies, and any applicants to the
extent practicable, 40 CFR 1501.5(e), and to make EAs available to the
public, 40 CFR 1506.6(b) and 1501.6(a)(2). It would allow OAs to use
their discretion to determine if a draft EA should be
[[Page 74649]]
released for public comment, though OAs would be required to address
substantive comments in the final EA or FONSI.
Sec. 13.21 Findings of No Significant Impact
Proposed Sec. 13.21 would incorporate with updates section 5 of
the 1985 procedures, ``Finding of No Significant Impact,'' continuing
to focus on the CEQ regulatory requirements for a FONSI set forth in 40
CFR 1501.6. Consistent with that provision, proposed paragraph (b)
would set forth the circumstances when an OA may issue a mitigated
FONSI, including identifying the mitigation measures necessary to
reduce the potential impacts below a level of significance; ensuring
the existence of sufficient legal authority and adequate commitment and
resources to execute the mitigation measures; requiring implementation
of the mitigation measures in any agreement with an outside party; and
where appropriate, providing for monitoring and further action when
there is a failure to implement mitigation measures or a failure in
their effectiveness.
As OAs, must make FONSIs available to the public as specified in 40
CFR 1501.6, this section would not include the unnecessary instructions
contained in section 5(c) of the 1985 procedures regarding internal
coordination of FONSIs and circulation of Notices of Availability to
State and area-wide clearinghouses. The proposed rule also does not
include the instruction in section 5(c) that consultation with other
Federal agencies concerning Section 4(f) (23 U.S.C. 138/49 U.S.C. 303),
the National Historic Preservation Act, Clean Water Act Section 404
permits, and other Federal requirements should be accomplished prior to
or during the 30-day period. This requirement to consult applies to all
EAs, not just when a 30-day public comment period is required. Rather
than providing in this proposed rule specific direction on compliance
with substantive requirements contained in other environmental
statutes, the Department instead proposes to include in Appendix C a
non-exhaustive list of relevant environmental reviews, authorizations,
and consultations that OAs would be expected to integrate into the NEPA
process.
Sec. Sec. 13.23-13.27 Environmental Impact Statements
Proposed sections 13.23 through 13.27 would address the
requirements for EISs. To improve clarity, the Department would include
the requirements that apply to both draft and final EISs in proposed
Sec. 13.23, and address requirements specific to draft EISs (DEISs) in
proposed Sec. 13.25, and FEISs in proposed Sec. 13.27. Generally,
these sections would set forth the requirements from the CEQ
regulations, including those in 40 CFR part 1502, and update the
information previously included in the 1985 procedures at section 7,
``Preparation and Processing of Draft Environmental Statements,''
section 8, ``Inviting Comments on the Draft EIS,'' and section 11,
``Final Environmental Impact Statements.'' However, generally
applicable instructions from these provisions in the 1985 procedures
would be addressed in proposed Sec. 13.9.
Proposed paragraph (a) of proposed Sec. 13.23 would set forth when
NEPA requires an EIS (42 U.S.C. 4332(2)(C)), and for clarity and
consistency with 40 CFR 1507.3(e)(2), would note that examples of
typical actions that require an EIS are listed in OA Procedures.
Proposed paragraph (b) would instruct OAs to prepare a notice of intent
to prepare an EIS and publish it in the Federal Register, 40 CFR
1501.9(d) and 1508.1(u). Proposed paragraph (c) would set forth scoping
requirements pursuant to 40 CFR 1501.9, 1506.3, and 1508.1(cc),
including the actions, alternatives, and impacts that must be
considered when determining the appropriate scope of issues to be
addressed in the EIS. The scoping process must consider the type of
action and determine the level of NEPA review. (See Section 13.15(c)).
To determine whether the effects of the proposed action are
significant, the OA must analyze the degree of the effects of the
proposed action relative to the affected environment consistent with 40
CFR 1501.3. Proposed paragraph (d) would instruct OAs to provide early
notice and solicit the views of any State or Federal land management
entity that may be significantly affected by an action proposed by a
State agency or official with statewide jurisdiction (42 U.S.C.
4332(2)(d)). Proposed paragraphs (e)(1) through (6) would, consistent
with 40 CFR part 1502, address the format and content of EISs,
including purpose and need, alternatives, affected environment,
environmental consequences, mitigation, and the summary of submitted
alternatives, information, and analyses. The detailed discussion of the
contents of an EIS that is in Attachment 2 to the 1985 procedures, as
well as discussions regarding documenting impacts to specific
resources, is not included in the proposed rule. Specifically, proposed
paragraph (e)(2) would emphasize that the draft EIS should identify the
OA's preferred alternative(s), if one or more exists, unless in
conflict with other laws; otherwise the OA should provide agencies and
the public with the opportunity to assess the environmental
consequences of the preferred alternative prior to issuing a combined
FEIS/ROD, or the OA should provide the public with an opportunity to
evaluate the preferred alternative during a waiting period after the
publication of the notice of availability of the FEIS. Proposed
paragraph (f) would require OAs to comply with document page limits in
accordance with 40 CFR 1502.7. Proposed paragraph (g) would require
that EISs be completed within two years from NOI to ROD. OAs must
obtain approval from the Assistant Secretary to exceed this time frame,
consistent with 40 CFR 1501.10(b)(2). Proposed paragraph (h) would
reflect Departmental policy and CEQ regulations at 40 CFR 1502.11(g) to
require OAs to include the total cost of the EIS on the cover page of
an FEIS and a supplemental EIS. The amount reported would include the
entire cost of the environmental review. Proposed paragraph (i) would
set forth the requirement to file EISs with the Environmental
Protection Agency (EPA) pursuant to 40 CFR 1506.10 and would note EPA's
guidance on filing. Proposed paragraph (j) would address public notice
and notice of availability requirements consistent with 40 CFR 1506.6.
This proposed rule would remove from Attachment A of Order 5610.1C
additional guidance not required under the CEQ regulations. Finally,
proposed paragraph (k) would set forth the timing requirements for the
OA's final decision, including the ability to reduce or extend time
periods.
Sec. 13.25 Draft Environmental Impact Statements
As noted in the discussion of proposed Sec. 13.23, proposed Sec.
13.25 would address requirements specific to the preparation of DEISs.
Proposed paragraph (a) would encourage early preparation of the DEIS to
ensure that the decisionmaker can meaningfully consider the analysis in
the decisionmaking process. 40 CFR 1502.5. Proposed paragraph (b) would
encourage OAs to indicate in the DEIS when they intend to issue a
combined FEIS/ROD pursuant to 49 U.S.C. 304a(b) or 23 U.S.C. 139(n). To
ensure meaningful participation in the environmental review process,
proposed paragraph (c) would set forth the specific circulation and
request for comment requirements for DEISs. Pursuant to the updated CEQ
[[Page 74650]]
regulations, an OA must provide for electronic submission of public
comments as well as ensure that the comment process is accessible to
affected persons. See 40 CFR 1503.1(c).
Sec. 13.27 Final Environmental Impact Statements
As noted in proposed Sec. 13.23, proposed Sec. 13.27 would
address requirements specific to the preparation of FEISs and the
Department's unique statutory authorities. For example, section 1319(a)
of MAP-21 clarified that the lead agency can issue an FEIS that
consists of ``errata pages''--rather than a complete, stand-alone
document--if the agency received only ``minor comments'' on the DEIS.
This flexibility existed under the CEQ regulations even before the
enactment of MAP-21; however, section 1319(a) confirmed that this
format is acceptable. It also required that errata pages ``(1) cite the
sources, authorities, or reasons that support the position of the
agency'' and ``(2) if appropriate, indicate the circumstances that
would trigger agency reappraisal or further response.''
In addition, section 1319(b) of MAP-21 provided authority to issue
a combined FEIS/ROD. The FAST Act repealed this provision and codified
identical provisions at 49 U.S.C. 304a and 23 U.S.C. 139. These
provisions direct the Department, when it acts as the lead agency, to
issue the FEIS and ROD as a single document ``to the maximum extent
practicable,'' unless (1) the FEIS makes substantial changes to the
proposed action that are relevant to environmental or safety concerns;
or (2) there are significant new circumstances or information relevant
to environmental concerns and the circumstances or information bears on
the proposed action or the impacts of the proposed action.
Proposed paragraphs (a) and (b) address resolution of comments on
the DEIS in the FEIS. Consistent with 40 CFR 1503.4, proposed paragraph
(a) would provide direction on responding to comments on the DEIS in
the FEIS. Proposed paragraph (b) would provide for the use of errata
sheets consistent with 49 U.S.C. 304a(a), 23 U.S.C. 139(n), and 40 CFR
1503.4(c).
Proposed paragraph (c) would implement the requirements of 49
U.S.C. 304a(b) and 23 U.S.C. 139(n) to issue a combined FEIS/ROD to the
maximum extent practicable, unless the FEIS makes substantial changes
to the proposed action that are relevant to environmental or safety
concerns; or there is a significant new circumstance or information
relevant to environmental concerns that bears on the proposed action or
the impacts of the proposed action. When an OA is the lead agency and
there are cooperating agencies, the cooperating agencies must, to the
extent practicable, issue the FEIS/ROD jointly with the OA pursuant to
40 CFR 1501.8(b)(8).
To ensure the integration of all environmental reviews into the
NEPA process, proposed paragraph (d) would direct the FEIS to reflect
compliance or plans for compliance with other environmental
requirements; should such compliance not be possible by the time the
FEIS is prepared, proposed paragraph (d) would direct OAs that the
document should reflect consultation with the appropriate agencies and
provide reasonable assurance that the OA can meet the requirements.
This rule would not include section 12 of the 1985 procedures,
``Determinations Under Section 4(f) of the DOT Act,'' as discussion of
determinations under Section 4(f) is outside the scope of the
Department's NEPA implementing procedures. Proposed paragraph (e) would
reiterate existing delegations for approval of FEISs. Proposed
paragraph (f) would set forth the Department's policy to notify the
Office of Policy for certain FEISs. Finally, to ensure meaningful
participation in the environmental review process, proposed paragraph
(g) would address circulation requirements for the FEIS.
Sec. 13.29 Records of Decision
This new section would reference requirements for an OA record of
decision (ROD). Proposed paragraph (a) would implement the requirements
of 49 U.S.C. 304a(b) and 23 U.S.C. 139(n) to develop a combined FEIS/
ROD. This paragraph would set forth the 30-day waiting period required
by 40 CFR 1506.11(b)(2) in those instances where the OA determines it
is not practicable within the meaning of 49 U.S.C. 304a(b) and 23
U.S.C. 139(n) to issue a combined FEIS/ROD. In general, if a combined
FEIS/ROD will not be prepared, and when the proposal requires action by
multiple Federal agencies, proposed Sec. 13.29 clarifies that the OA
should issue a single ROD with the other Federal agencies. Furthermore,
for expediency, proposed Sec. 13.29 would allow the OA to integrate
the ROD into another record or decision document, such as a final rule.
Proposed paragraph (b) would set forth the topics to be addressed in
the ROD, including alternatives, factors balanced in decisionmaking,
and mitigation measures. Proposed paragraph (c) includes a requirement
that the ROD provide a certification by the decisionmaker that the
agency has considered all the alternatives, information, and analyses,
and objections submitted for consideration by the lead and cooperating
agencies in developing the EIS. FEISs certified in accordance with 40
CFR 1505.2(b) are entitled to a presumption that the agency has
considered the submitted alternatives, information, and analyses
including the summary in the FEIS. Proposed paragraph (d) would clarify
that the ROD should not repeat the analysis in the EIS, but should
document the OA's decision and briefly discuss compliance with
environmental laws applicable to the action or procedures, and expected
timeframe for completion of such compliance. Finally, to reflect the
Department's policy of using an interdisciplinary approach, proposed
paragraph (e) would allow OAs to discuss preferences among alternatives
based on relevant economic, technical, or other factors, and OA mission
and authority.
Sec. 13.31 Adoption
Proposed Sec. 13.31 would introduce a new section that is not in
the 1985 procedures. This section would address adoption of NEPA
documents pursuant to the CEQ regulation, 40 CFR 1506.3, and the
Department's discretionary adoption authority under 49 U.S.C.
304a(c)(2). Proposed paragraph (a) would discuss the adoption by OAs of
EISs prepared by a lead agency on an action for which the OA is a
cooperating agency, in accordance with 40 CFR 1506.3(b)(2)), while
proposed paragraph (b) would provide information on adoption when the
OA is not a cooperating agency but the action covered by the original
EIS and the proposed action are substantially the same, including
circulation requirements, in accordance with 40 CFR 1506.3(b)(1).
Proposed paragraph (c) would cover the full or partial adoption of EISs
when the OA is not a cooperating agency and the actions covered are not
substantially the same, in accordance with 40 CFR 1506.3(b). Where the
OA was not a cooperating agency, proposed paragraphs (b) and (c) direct
the OA to issue a combined FEIS/ROD consistent with the directive in 49
U.S.C. 304a and 23 U.S.C. 139(n). Proposed paragraph (d) provides for
the full or partial adoption of an EA. Proposed paragraph (e) provides
for adoption of a CE determination by another Federal agency when the
action in the original CE determination and the proposed action are
substantially the same. When doing so, the OA must document the
adoption consistent with 40 CFR 1506.3(d) and proposed section
13.25(b). Proposed paragraph (f) would
[[Page 74651]]
require re-evaluation of an EIS or EA that is more than 5 years old
prior to its full or partial adoption, in accordance with proposed
Sec. 13.33 and 40 CFR 1502.9(d)(4). Proposed paragraph (g) would
require filing with the EPA when an OA adopts and publish an EIS, and
finally, proposed paragraph (h) would allow an OA to adopt an EA, DEIS,
or FEIS of another OA under 49 U.S.C. 304a(c)(2).
Sec. 13.33 Re-Evaluation and Supplementation
Consistent with 40 CFR 1502.9(d)(4), re-evaluation is a
longstanding practice of the Department to determine whether new
information triggers the requirement to supplement an EIS pursuant to
40 CFR 1502.9(d). A re-evaluation is a continuation of the project
development process, and it does not necessarily re-open the NEPA
decision. Proposed Sec. 13.33 would update and clarify the existing
practice for re-evaluation outlined in section 19 of the 1985
procedures, ``Time in Effect of Statements.'' In addition, the
Department would revise the interval for re-evaluation from three to
five years. Proposed paragraph (a)(1) would encourage the use of re-
evaluation when there are changes to the proposed action or new
circumstances or information relevant to environmental concerns.
Additionally, proposed paragraph (a)(2) would require OAs to re-
evaluate in writing DEISs if the OA has not issued an FEIS within five
years of circulation of the DEIS, and FEISs if major steps toward
implementation have not commenced within five years of FEIS approval.
Proposed paragraph (b) would address the CEQ regulatory criteria for a
supplemental EIS, as well as the discretion to supplement, circulation
requirements for supplemental EISs, and the process for the approval of
an alternative circulation procedure. 40 CFR 1502.9(d)(1).
Sec. 13.35 Emergency Actions
Section 1432 of the FAST Act provided for exemptions and expedited
procedures for certain environmental review processes during
emergencies. Specifically, section 1432(b)(1) references alternative
arrangements under 40 CFR 1506.12. Proposed Sec. 13.35 concerns such
alternative arrangements. This new section would also address the CEQ
regulation on emergencies, 40 CFR 1506.12, and related CEQ guidance.
Finally, this section would build on section 17(c) of the 1985
procedures, ``Timing of Agency Action,'', which details the internal
process for consulting with CEQ concerning emergencies.
Proposed Sec. 13.35 would address emergency situations in proposed
paragraph (a) and would provide mechanisms for NEPA compliance where
the OA anticipates significant impacts in proposed paragraph (b) or
non-significant impacts in proposed paragraph (c). In both instances,
this section would provide the internal coordination process for such
compliance.
Sec. 13.37 Environmental Impact Statements for Legislative Proposals
Proposed Sec. 13.37 would address the requirements for legislative
EISs consistent with 40 CFR 1506.8(c)(2). Consistent with the general
updates set forth in Section II of this rulemaking, this proposed
section would also incorporate and revise for clarity the substance of
section 15 of the 1985 procedures, ``Proposals for Legislation,''
Sec. 13.39 International Actions
Proposed Sec. 13.39 would address implementation of Executive
Order 12114, Environmental Effects Abroad of Major Federal Actions
addressed in section 16 of the 1985 procedures, ``International
Actions.'' \4\ This section would streamline the provision by cross-
referencing to the E.O., rather than repeating its applicability
criteria. It also would direct OAs to prepare any required EIS
consistent with this rule and OA procedures. Finally, this section
would reflect minor edits for clarity consistent with the general
updates set forth in Section II of this NPRM.
---------------------------------------------------------------------------
\4\ This section addresses compliance with the Executive Order
rather than NEPA. The Executive Order's requirements were not
altered by CEQ's revisions to its NEPA regulations. See CEQ, Update
of the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Act: Final Rule Response to Comments
at 551-52 (July 30, 2020).
---------------------------------------------------------------------------
Appendix A--Appendix A to Part 13--List of Departmental Categorical
Exclusions
Appendix A would list the existing, revised, and new departmentwide
CEs. Consistent with the CEQ regulations, agencies or their subunits
may determine that certain categories of actions normally do not have
significant environmental impacts and therefore do not require further
review under NEPA. As discussed in the analysis of proposed Sec. 13.17
in Section III of this rulemaking, this proposed rule would clarify
which categories of activities are categorically excluded and normally
would not require additional NEPA analysis. The Department
substantiated the proposed new and revised CEs by reviewing EA and EIS
analyses to identify the environmental effects of previously
implemented actions, benchmarking other Federal agencies' experience
implementing similar categories of actions, and relying on the judgment
and expertise of the Department's NEPA practitioners. The Department
notes that other Federal agencies have established CEs for activities
that are similar in nature, scope, and effect on the human environment.
The Department provided for CEQ review the proposed draft changes and
justification for each proposed change to the list in this appendix.
Appendix B to Part 13--List of Categorical Exclusions in Operating
Administration Procedures
Appendix B would provide cross-references to the OA CEs. The
proposal would incorporate by reference all current CEs established and
maintained by the OAs for use pursuant to CE #5.
Appendix C to Part 13--Environmental Requirements for Integration With
the NEPA Process
This rule would direct OAs to coordinate and integrate all relevant
environmental and planning studies, reviews, and consultations into
their environmental review process. This instruction is consistent with
MAP-21 sec. 1305, and FAST Act sec. 1304, which requires the Department
to align the environmental review process and substantive environmental
legal compliance. To assist the Department's NEPA practitioners in
harmonizing these reviews, Appendix C would provide a non-exhaustive
list of the environmental requirements that should be integrated with
the NEPA process.
IV. Rulemaking Analyses and Notices
(a) Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulations
(49 CFR Part 5)
The Office of Information and Regulatory Affairs determined that
this rule is a significant regulatory action under E.O. 12866, as
supplemented by E.O. 13563, because it is related to the agency's
implementation of the CEQ regulations implementing the procedural
requirements of NEPA.
E.O. 12866 and E.O. 13563 require agencies to regulate in the
``most cost-effective manner,'' to make a ``reasoned determination that
the benefits of the intended regulation justify its costs,'' and to
develop regulations that ``impose the least burden on society.''. The
rule would implement several changes to Department policies,
procedures, and
[[Page 74652]]
internal coordination to streamline project delivery.
Several provisions are expected to create one-time de minimis
administrative costs for the Department, including the requirement that
OAs update their regulations and revise Department policies and
processes to comply with the provisions in the regulation. The
Department would also incur ongoing de minimis administrative costs due
to staff time required by additional internal reporting and
coordination.
The Department expects that the rule would yield administrative
cost savings as a result of better intra- and interagency coordination
and more efficient program management within the Department. The
Department expects that these potential cost savings from the proposed
rule would outweigh any one-time or ongoing de minimis administrative
costs.
Several provisions could result in savings:
Requiring the use, where appropriate, of coordination
tools including programmatic approaches and interagency agreements
would decrease required staff time and resources by shortening review
times and by reducing the duplication of efforts by the Department and
by State and Federal resource agencies.
Establishing Departmentwide internal reporting and
coordination requirements would allow the Department to allocate
resources better to ensure that the environmental review process
remains on schedule while also improving the identification of
potential issues earlier in the environmental review process.
Setting presumptive NEPA document page limit provisions
and increasing the timeframe that NEPA documents remain valid from
three to five years would reduce the Departmental time and resources
required to develop, issue, or review NEPA documents.
Allowing OAs to share CEs would save Department resources
and staff time by reducing the number of EAs prepared for categories of
projects that another OA has previously determined would not normally
have a significant impact on the environment.
Introducing Departmentwide CEs that include research
activities and rulemakings would reduce the administrative costs of
conducting those activities.
Removing prescriptive EIS contents that were included in
Attachment 2 of the 1985 procedures would allow documents to be
tailored to use a more effective format for communication, thereby
saving the Department and project sponsors time and resources in
document preparation.
Project sponsors may also incur de minimis costs from the rule,
such as staff time to calculate and provide the total cost of the
environmental review process on the final environmental impact
statement cover page. However, the Department expects that project
sponsors would also achieve cost and time savings in the environmental
review process which would outweigh these costs. An emphasis on
programmatic approaches and interagency agreements in this regulation
would save project sponsors staff time and resources by reducing
environmental impact review times and by limiting duplicative
submissions to multiple State and Federal agencies. Additional internal
coordination and reporting requirements would increase the
accountability and transparency of the environmental review process for
project sponsors, and will allow for earlier identification and
mitigation of risks that could otherwise slow down the overall
environmental review process. The Department also expects that the
provisions on page limits and an increase in the timeframe that NEPA
documents remain valid would allow for savings in environmental
document preparation.
The Department also expects that these changes would reduce the
time required for projects to move through the environmental review
process. As a result, projects may be completed earlier, and the
benefits of transportation infrastructure improvements or research
would accrue to the public sooner than they otherwise would have. The
Department expects that codifying the required online posting of
environmental documents would also improve the transparency of the
environmental review process for the public. Finally, shorter
environmental documents would facilitate reviews by decisionmakers and
the public. The Department has issued a page limits policy memorandum,
which would support this proposal, and which encourages using a clear
and concise writing style to meet the page limits. Such environmental
documents would be easier to read and may make it easier for the public
to understand the potential environmental impacts of proposed
transportation projects.
(b) E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)
This proposed rule is expected to be an E.O. 13771 deregulatory
action. Details on the estimated cost savings of this proposed rule can
be found in the rule's economic analysis in section IV(a).
(c) Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), (Pub. L. 96-354, 5 U.S.C.
601-612) requires an agency to assess the impacts of proposed and final
rules on small entities unless the agency determines that a rule is not
expected to have a significant economic impact on a substantial number
of small entities. DOT has evaluated the effects of this proposed rule
on small entities such as small businesses, small organizations, and
small governmental jurisdictions. Based on the evaluation, the
Department anticipates that this action would not have a significant
economic impact on small entities. The proposed rule would not directly
regulate small entities, as the proposed rule applies to the Department
and sets for its procedures for implementing the provisions of NEPA.
Accordingly, the Department certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities.
(d) E.O. 13132 (Federalism)
E.O. 13132 requires agencies to ensure meaningful and timely input
by State and local officials in the development of regulatory policies
that may have a substantial, direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. DOT analyzed this action in accordance with the principles
and criteria contained in E.O. 13132. This NPRM would establish
internal administrative procedures for the DOT to comply with NEPA.
This action will not have a substantial direct effect or federalism
implications on the States and would not preempt any State law or
regulation or affect the States' ability to discharge traditional State
governmental functions because this proposed rule applies to the
Department, not States. This action contains no Federal mandates for
State and local governments and does not impose any enforceable duties
on State and local governments. Because this action addresses only
internal Department procedures for implementing NEPA, consultation with
State or local governments is not necessary. The Department notes that
some states have voluntarily assumed NEPA responsibility pursuant to 23
U.S.C. 327.
[[Page 74653]]
(e) E.O. 13175 (Consultation and Coordination With Indian Tribal
Governments)
Pursuant to E.O. 13175, ``Consultation and Coordination with Indian
Tribal Governments,'' the Department has assessed the impact of this
proposed rule on Indian tribal governments and has determined that the
proposed rule would not significantly or uniquely affect communities of
Indian tribal governments. The proposed rule deals with administrative
procedures for complying with the requirements of the NEPA and, as
such, has no direct effect on Indian Tribal governments. Because the
proposed rule does not mandate Tribal participation in the Department's
environmental review process, it does not impose substantial direct
compliance costs on Indian tribal governments. The proposed rule will
recognize the obligation to and benefit of including Indian tribes in
public engagement strategies to fulfill relevant environmental review
responsibilities. Accordingly, the funding and consultation
requirements of Executive Order 13175 do not apply.
(f) Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DOT consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from OMB for each
collection of information it conducts, sponsors, or requires through
regulations. The DOT has determined that the proposed rule does not
contain a collection-of-information requirement subject to review and
approval by the OMB under the PRA.
(g) Unfunded Mandates Reform Act
The Department has determined that the proposed rule would not
impose unfunded mandates as defined by the Unfunded Mandates Reform Act
of 1995 (UMRA) (Pub. L. 104-4, 2 U.S.C. 1531-1538). The actions
proposed in this NPRM do not contain any unfunded mandates as described
in the UMRA, and does not significantly or uniquely affect small
governments. This proposed rule does not impose any mandates on small
entities. It addresses the Department's procedures for implementing the
procedural requirements of NEPA.
(h) National Environmental Policy Act
The CEQ regulations do not direct agencies to prepare a NEPA
analysis before establishing agency procedures to supplement the CEQ
regulations to implement NEPA. See 1507.3; Heartwood, Inc. v. U.S.
Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd, 230
F.3d 947, 954-55 (7th Cir. 2000) (holding that a decision to issue
agency NEPA procedures does not require analysis and documentation
under NEPA). The Department's NEPA procedures assist the Department in
fulfilling its responsibilities under NEPA and the CEQ regulations, but
are not themselves final determinations of the level of environmental
review required for particular actions. The Department also anticipates
that this rulemaking would be categorically excluded pursuant to the
1985 procedures. Accordingly, the Department does not anticipate any
environmental impacts from this proposal, and there are no
extraordinary circumstances present in connection with this rulemaking.
(i) Regulation Identifier Number
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
the spring and fall of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 13
Administrative practice and procedure, Environmental impact
statements, Environmental protection, Natural resources.
Issued in Washington, DC, on November 6, 2020.
Elaine L. Chao,
Secretary.
In consideration of the foregoing, the Office of the Secretary of
Transportation proposes to amend Title 49 of the Code of Federal
Regulations by adding part 13 to read as follows:
Title 49--Transportation
PART 13--ENVIRONMENT REVIEW PROCESS
Subpart A--General
Sec.
13.1 Applicability.
13.3 Definitions.
13.5 Environmental review policy.
Subpart B--Nepa Review Process
13.7 Managing NEPA compliance.
13.9 Planning and early coordination.
13.11 Lead, cooperating, and participating agencies.
13.13 General principles for the NEPA review process.
13.15 Determination of the level of NEPA review.
13.17 Categorical Exclusions.
13.19 Environmental Assessments.
13.21 Findings of No Significant Impact.
13.23 Environmental Impact Statements.
13.25 Draft Environmental Impact Statements.
13.27 Final Environmental Impact Statements.
13.29 Records of Decision.
13.31 Adoption.
13.33 Re-evaluation and supplementation.
13.35 Emergency actions.
13.37 Environmental Impact Statements for legislative proposals.
13.39 International actions.
Appendix A to Part 13--List of Departmental Categorical Exclusions
Appendix B to Part 13--List of Categorical Exclusions in Operating
Administration Procedures
Appendix C to Part 13--Environmental Requirements for Integration
with the NEPA Process
Authority: 42 U.S.C. 4321-4347; 40 CFR parts 1500-1508; 49
U.S.C. 304; 49 U.S.C. 304a; 49 U.S.C. 310; and E.O. 12114, 44 FR
1957, Jan. 9, 1979, 3 CFR, 1979 Comp.
Subpart A--General
Sec. 13.1 Applicability.
(a) Pursuant to the National Environmental Policy Act, 42 U.S.C.
4321-4347 (NEPA) and the Council on Environmental Quality (CEQ)
regulations implementing NEPA, 40 CFR 1500 through 1508, this part
establishes procedures for the consideration of environmental impacts
by officials of the Department of Transportation (Department or DOT) as
part of the decisionmaking process for DOT actions.
(b) Typical DOT actions may include grants; construction;
regulatory actions; certifications; licenses; permits; waivers;
approval of policies and plans (including those submitted to DOT by
State, Tribal, or local agencies, or other public or private
applicants, unless otherwise exempted); adoption or implementation of
programs; legislation proposed by DOT; and any renewals or re-approvals
of the foregoing. Consistent with 40 CFR 1508.1(q), an action is not
subject to NEPA if, for example, it either does not allow for agency
discretion to consider environmental impacts in decisionmaking or is
not subject to DOT control and responsibility. Loans, loan guarantees,
or other forms of financial assistance may be actions subject to NEPA
when the OA exercises sufficient control and responsibility over the
effects of such assistance.
(c) Consistent with 40 CFR 1501.1, proposed activities or decisions
expressly exempt from NEPA under another statute are not actions. For
example, decisions concerning plans, Transportation Improvement
Programs
[[Page 74654]]
(TIPs), and Statewide Improvement Programs (STIPs) are not actions
pursuant to the express exemptions in 23 U.S.C. 134 and 135,
respectively.
Sec. 13.3 Definitions.
The definitions in 40 CFR part 1508 apply to this part. The
following definitions supplement these for the purposes of this part:
(a) Applicant means an individual; Federal agency, State, Tribal or
local government; corporation; company; or any other party seeking an
approval, financial assistance, special permit, waiver, certification,
or other action from an OA.
(b) Environmental review process means the integrated process for
compliance with NEPA and any other applicable environmental statutes,
regulations, or Executive Orders (E.O.), including those that require a
permit, approval, consultation, or authorization to proceed with an
action.
(c) Level of NEPA review means the appropriate type of analysis
required for a particular action (i.e., a categorical exclusion (CE),
an environmental assessment (EA), or an environmental impact statement
(EIS)).
(d) NEPA document means an EIS, record of decision (ROD), EA,
finding of no significant impact (FONSI), or any documentation prepared
to support the application of a CE to a proposed action.
(e) Operating Administration (OA) means any agency established
within the Department, as listed in Sec. 1.3(b) of this subtitle, or
an office within the Office of the Secretary of Transportation (OST).
Sec. 13.5 Environmental review policy.
The policies in paragraphs (a) through (e) of this section govern
the consideration of environmental impacts at DOT:
(a) Consistent with NEPA, the Department will integrate Federal
environmental objectives into the programs of DOT to ensure the safest,
most efficient and modern transportation system in the world, while
considering measures to avoid, minimize, or compensate for adverse
environmental effects wherever practicable, consistent with other
essential considerations of national policy.
(b) The Department will strive to synchronize NEPA and other
Federal environmental requirements and authorizations into a single,
concurrent environmental review process that satisfies the requirements
of all agencies with a role in a proposed action, expedites project
delivery, and is completed within presumptive time limits.
(c) The Department will apply sound science, reliable data, and a
systematic interdisciplinary approach to the environmental review
process, including the use of geographic information systems, as
appropriate.
(d) The Department will maximize the use of proven strategies to
complete the environmental review process efficiently, including the
use of electronic collaboration tools; programmatic agreements and
approaches; and planning processes and products to inform NEPA
requirements pursuant to applicable laws and regulations.
(e) The Department encourages meaningful, proactive, open, and
transparent public participation and collaboration with affected and
interested stakeholders, including Federal agencies, States, Tribes,
localities, and the public in its environmental decision-making process
to avoid, minimize, and compensate for impacts.
Subpart B--Nepa Review Process
Sec. 13.7 Managing NEPA compliance.
(a) Responsibility. Pursuant to Sec. 1.25a(a)(2) of this subtitle,
the Assistant Secretary for Transportation Policy (Assistant Secretary)
is the senior agency official who establishes policy and oversees the
implementation of the NEPA process for the Department. The Assistant
Secretary may determine which OA will serve as the lead agency to
prepare the NEPA document for all actions taken by the Department for a
proposed activity or project.
(b) Office of Policy. The OST Office of Policy Development,
Strategic Planning, and Performance (Office of Policy) oversees NEPA
implementation and compliance with related environmental requirements,
and OAs must consult with or notify the Office of Policy as set forth
in this part. The Office of Policy in turn will coordinate with the
Office of the General Counsel to ensure compliance with legal
requirements. Additional information on the environmental review
process may be obtained from the Office of Policy.
(c) Office of the General Counsel. The Office of the General
Counsel (OGC) provides counsel to the Department concerning the
interpretation of and compliance with NEPA, the CEQ regulations, this
part, and other applicable laws. Where appropriate, OGC determines the
legal sufficiency of the Department's NEPA documents and coordinates
with the OAs and the Department of Justice on NEPA-related litigation.
(d) Applicability. This part supplements the regulations at 40 CFR
parts 1500 through 1508, setting forth procedures specific to DOT
actions. The OAs must comply with the regulations at 40 CFR parts 1500
through 1508, this part, and their own NEPA implementing procedures, as
applicable.
(e) OA Procedures. Each OA must issue or modify NEPA implementing
procedures (OA Procedures), consistent with this part, 40 CFR parts
1500 through 1508, and any other applicable laws or regulations, that
establish requirements for and provide guidance on integrating the
environmental review process into the OA's programs and actions. To the
extent applicants carry out the OA's responsibilities under OA
Procedures (where appropriate and in compliance with 42 U.S.C.
4332(2)(D) and 40 CFR 1506.5), the OA must require the applicants to
comply with the OA Procedures.
(1) OA procedures should include a list of actions that are not
subject to NEPA. (See 40 CFR 1507.3(d));
(2) OA procedures must include lists of actions that normally
require the preparation of an EIS or EA (40 CFR 1507.3(e)(2)(i) and
(iii)); include lists of categorically excluded actions and
extraordinary circumstances (40 CFR 1507.3(e)(2)(ii)) and note which
categorical exclusions require documentation 40 CFR 1507.3(e)(2)(ii));
identify when it might be appropriate to use tiering and programmatic
approaches to facilitate an efficient environmental review (40 CFR
1501.11 and 1508.1(ff)); ensure that decisions are made in accordance
with NEPA's policy and procedures (40 CFR 1507.3(c)); describe the
public participation process; describe the process to ensure early
involvement of interested parties (40 CFR 1501.2(b)(4)); identify where
interested parties can find information about the NEPA process,
including NEPA documents (40 CFR 1506.6(e)); and describe the
procedures for ensuring implementation of mitigation measures committed
to in NEPA documents (40 CFR 1501.6(c), 1505.3, and 1508.1(s)).
(3) OAs must submit proposals for new or revised implementing
procedures to the Office of Policy and the OGC for review and
concurrence prior to CEQ consultation and publication in the Federal
Register. These offices will assist with CEQ consultation. The Office
of Policy and the OGC will provide written concurrence on the final new
or revised implementing procedures. OAs must provide notice of proposed
new or
[[Page 74655]]
revised implementing procedures in the Federal Register for public
comment and provide notice of final new or revised implementing
procedures.
(4) No later than 30 days of the effective date of this part, OAs
must evaluate their OA procedures to develop a plan and schedule to
make revisions necessary to achieve consistency with 40 CFR parts 1500
through 1508 and this part. OAs must submit this determination or plan
to the Office of Policy and the OGC for concurrence. Consistent with 40
CFR 1507.3(b), OAs must, as necessary, develop or revise proposed
procedures no later than September 14, 2021.
(5) Subject to 40 CFR 1507.3(a), to the extent an OA's existing
procedures are inconsistent with 40 CFR parts 1500 through 1508, the
regulations in 40 CFR parts 1500 through 1508 apply, consistent with 40
CFR 1506.13, unless there is a clear and fundamental conflict with the
requirements of another statute. An OA may choose to apply 40 CFR parts
1500 through 1508 or the procedures of this part to a review begun
before September 14, 2020, or the effective date of this part,
respectively.
Sec. 13.9 Planning and early coordination.
(a) Timing. OAs should begin the environmental review process at
the earliest practicable time in the planning or development of an
action.
(1) OAs should integrate the NEPA process with other processes at
the earliest reasonable time to ensure that planning and decisions
reflect environmental values and avoid potential conflicts that may
delay the process. (40 CFR 1501.2). For actions, likely to require an
EA or EIS, OAs must engage in early identification and evaluation of
the purpose and need; the environmental impacts; reasonable
alternatives (as further described in Sec. 13.19(b) for EAs and Sec.
13.23(a)(2) for EISs); and measures to avoid, minimize, or compensate
for adverse environmental impacts, as appropriate.
(2) Unless otherwise provided by law, prior to making a final NEPA
determination on a proposed action, OAs must not take any action
concerning the proposal that would have an adverse environmental impact
or limit the choice of reasonable alternatives. (40 CFR 1506.1(a),
1502.2(f) and (g)). If an OA becomes aware an applicant is about to
take an action that would have an adverse environmental impact or limit
the choice of reasonable alternatives, the OA must promptly notify the
applicant and the Assistant Secretary, and take appropriate action to
ensure that the objectives and procedures of NEPA are achieved. (40 CFR
1506.1(b)).
(b) Coordination with applicants. OAs must ensure that applicants
are aware of the environmental analysis and review requirements in this
part.
(c) Coordination with other agencies. OAs must coordinate with
other OAs, Federal, State, Tribal, and local resource and regulatory
agencies, stakeholders, and the public, as appropriate, to satisfy
their responsibilities under NEPA and other relevant statutes,
regulations, and Executive Orders, such as those listed in Appendix C
of this part. OAs should communicate early and continually, and
coordinate to identify and resolve issues. OAs may prioritize actions
and improve early coordination with regulatory and resource agencies by
executing interagency agreements such as Memoranda of Understanding
(MOUs), Memoranda of Agreement (MOAs), or Programmatic Agreements, and
using other tools at their disposal.
(d) Use of planning analysis and decisions in the NEPA process. OAs
should, as appropriate, integrate, adopt, and use planning information
or decisions in the NEPA process.
(e) Early coordination. The scoping process (40 CFR 1501.9) is a
tool for early coordination that OAs must use in the preparation of an
EIS in accordance with Sec. 13.23(c) and may use in the preparation of
an EA to identify any significant issues and ensure that all interested
or affected persons have an opportunity to participate early in the
process. As part of scoping, OAs should use early coordination tools,
such as planning, interagency working groups or agreements,
programmatic approaches, coordination plans, and project schedules. OAs
should use such tools prior to issuing the notice of intent.
Sec. 13.11 Lead, cooperating, and participating agencies.
(a) Lead agency. An OA with primary responsibility for a proposed
action, including a multimodal transportation project, generally will
serve as the lead agency for preparing and processing EISs and EAs,
where appropriate, and is responsible for inviting other agencies to
serve as cooperating agencies or otherwise participate in the NEPA
process. (See 40 CFR 1501.7). When an OA serves as lead agency, it is
responsible for the scope, objectivity, accuracy, and content of the
NEPA documents and ensuring completion of the environmental review
process. When more than one OA is involved in an action, the OAs should
determine together their respective roles (i.e., lead agency, joint
lead agency, or cooperating agency) early in the process. However, if
the OAs cannot agree on this determination within 30 days, they must
consult the Office of Policy, which will resolve the dispute. The lead
agency must:
(1) Request participation of cooperating agencies in the NEPA
process at the earliest practicable time;
(2) Meet with a cooperating agency at the latter's request;
(3) To the extent practicable prepare a single environmental
document and joint FONSI or ROD for the lead and cooperating agencies;
(4) Use environmental analysis and proposals from cooperating
agencies with jurisdiction by law or special expertise to the maximum
extent practicable;
(5) Determine the scope and the significant issues to be analyzed
in depth in an EIS;
(6) Determine the purpose and need and range of alternatives in
consultation with the cooperating agencies;
(7) Create and update as necessary the project schedule in
consultation with the cooperating agencies; and
(8) Notify the Office of Policy if a milestone will be missed and
elevate issues to the Assistant Secretary for timely resolution. (See
40 CFR 1501.7).
(b) Joint lead agencies. An OA serving as a joint lead agency
assumes the same roles, responsibilities, and authority as a single
lead agency.
(c) Cooperating agencies. When serving as a lead or joint lead
agency, OAs should identify and request Federal, State, Tribal, and
local agencies that have jurisdiction by law or special expertise to be
cooperating agencies under 40 CFR 1501.8 and 1508.1(e). When an OA
serves as a cooperating agency, it must fulfill its responsibilities in
coordination with the lead agency.
(1) If another agency declines an OA's invitation to participate as
a cooperating agency, the OA must still provide the declining agency
with a copy of the NEPA document and should attempt to coordinate with
it to avoid potential issues that could delay the action. If that
agency raises concerns or indicates that it may delay or withhold
action on some aspect of the proposed action, the OA should initiate a
conflict resolution process in accordance with Sec. 13.13(e).
(2) When an agency requests an OA to serve as a cooperating agency,
the OA must accept and participate if it has jurisdiction by law, and
should make every practicable effort to accept and participate if it
has special expertise.
(3) If another agency fails to invite an OA to serve as a
cooperating agency when it has jurisdiction by law or special
expertise, the OA should ask the
[[Page 74656]]
lead agency to extend an invitation to participate as a cooperating
agency.
(4) The OA must cooperate on schedule development and elevate
issues that may affect the schedule to the senior agency official for
resolution consistent with 40 CFR 1501.8(b)(6) and (7).
(d) Participating agencies. OAs should invite other agencies
(including other Federal, State, Tribal, or local agencies) that may
have an interest in the proposed action to be participating agencies.
OAs should invite such other agencies as early as possible (before or
during scoping).
Sec. 13.13 General principles for the NEPA review process.
(a) Integration of all environmental reviews into the NEPA process.
To the maximum extent practicable and at the earliest possible time,
OAs should integrate all relevant environmental reviews,
authorizations, and consultations into the NEPA process. A list of
authorities under which these may be conducted can be found in Appendix
C of this part. To the extent practicable, OAs should develop a single
NEPA document for all Federal agency actions necessary for a proposed
activity or project. (See 40 CFR 1501.7(g)).
(b) Incorporation by reference. OAs should incorporate by reference
previously prepared and publicly available analyses wherever possible
and provide a brief summary of the incorporated material in a NEPA
document. (See 40 CFR 1501.12). Types of documents that may be
incorporated by reference include previously prepared studies,
analyses, and, to the extent permitted by law, decisions from prior
environmental reviews. (See 40 CFR 1501.12).
(c) Focused, quality documents. NEPA documents should effectively
and concisely communicate the environmental effects of a proposed
action to the public and the decisionmaker. NEPA documents should be
written in plain language, and be analytic rather than encyclopedic.
(See 40 CFR 1500.4(d), 1502.2(a) and (c), and 1502.8). The depth and
scope of analysis and resulting documentation must be meaningful, high-
quality, relevant, and proportionate to the complexity of the action
and degree of anticipated environmental effects and the affected
environment (See 1501.3, 1501.5, 1502.2(b), and 1502.23).
(d) Interdisciplinary approach. OAs must use an interdisciplinary
approach throughout the planning and preparation of EISs and EAs, as
applicable, and ensure a systematic evaluation of alternatives and
their potential environmental consequences. (See 40 CFR 1501.5(c) and
1502.6). Analyses should identify applicable methodology and explain
the use of best available information. Where appropriate, OAs may use
professional services from other Federal, State, Tribal, or local
agencies, universities, consulting firms, or other experts; however, OA
staff must have the capacity to evaluate the information these entities
provide, and OAs must take responsibility for the final content of
their NEPA documents. (See 40 CFR 1506.5 and 1507.2).
(e) Conflict resolution.
(1) Resolution of disputes. OAs should seek to resolve
expeditiously all disputes as early as possible in the NEPA process
consistent with applicable requirements. OAs should communicate and
collaborate to recognize and resolve disputes as they arise to maintain
constructive relationships among all parties, including other OAs,
Federal or State agencies, Tribes, and members of the public in
accordance with 40 CFR parts 1500 to 1508, DOT Order 5611.1a and
applicable CEQ/Office of Management and Budget guidance. OAs must
report on their use of formal environmental conflict resolution in
annual reports to the Office of Policy and OGC's Office of Operations
on Environmental Collaboration and Conflict Resolution (ECCR). OAs must
notify CEQ and obtain CEQ concurrence, as necessary, to use the John S.
McCain III National Center for Environmental Conflict Resolution (20
U.S.C. 5607b(c)).
(2) Pre-decisional referrals to CEQ. The following procedures apply
to referrals to CEQ under 40 CFR part 1504:
(i) Referrals on DOT actions. If another Federal agency advises an
OA that it intends to make a referral to CEQ, the OA must coordinate
with the Office of Policy. The OA should make a concerted, timely
effort to resolve issues raised by another Federal agency with respect
to an EIS for a proposed DOT action to avoid a referral to CEQ. The OA
should document these efforts in the project record.
(ii) DOT referrals to CEQ on other agency proposals. Whenever
possible, OAs should make efforts to resolve issues informally to avoid
referrals to CEQ. If the issues are not resolved prior to filing the
final EIS (FEIS) with EPA, the OA Administrator must obtain concurrence
from the Office of Policy and OGC to make a referral to CEQ. Referrals
should include all content specified in 40 CFR 1504.3(c). The OA should
notify the Office of Policy as early as possible that a referral is
anticipated. OAs must make formal referrals to CEQ no later than 25
calendar days after EPA publishes the notice of availability of the EIS
or the lead agency makes an EA available.
(f) Tiering and programmatic approaches. OAs should use tiering
(see 40 CFR 1501.11 and 1508.1(ff)) to improve or simplify the
environmental analysis of proposed DOT actions that are similar in
nature, broad in scope, or where future decisions or unknown future
conditions preclude a complete NEPA analysis. This would eliminate
repetitive discussions of the same issues, focus on issues ripe for
decision and exclude from consideration issues already decided or not
yet ripe at each level. OAs should also use programmatic approaches,
where appropriate, including resource or regional specific programmatic
agreements or consultations with resource or regulatory agencies. Where
possible, OAs should develop programmatic approaches that cover the
activities of multiple OAs.
(g) Mitigation and monitoring. The ROD and FONSI must identify
those mitigation measures that avoid, minimize, or compensate for
effects caused by a proposed action or alternatives as described in an
environmental document and that have a nexus to those effects that the
lead agency is adopting and committing to implement, including any
monitoring and enforcement program applicable to such mitigation
commitments.
(1) The OA must take steps to ensure that the mitigation measures
committed to in the ROD and FONSI are implemented. For third-party
actions, to the extent practicable, OAs must condition relevant funding
agreements, permits, licenses, and other approvals on the performance
of the mitigation commitments. Methods of enforcement of commitments
may include withdrawal of funding, permit, license, or approval, and
any other action deemed necessary by the appropriate OA.
(2) Where legal authority exists, OAs may provide for monitoring to
ensure their decisions are carried out and should do so in important
cases. In determining when monitoring mitigation commitments is
appropriate, OAs should apply professional judgment and the rule of
reason. (40 CFR 1505.3).
(h) Public involvement. Public involvement provides an opportunity
for the public to consider, offer input on, and inform proposed
actions, their potential environmental impacts, and proposed
mitigation. The level of public
[[Page 74657]]
involvement should be commensurate with the type of action proposed and
its potential to cause significant impacts, and be consistent with 40
CFR 1501.5(e), 1501.9, 1503.1(a)(2)(v), and 1506.6.
(1) Public involvement in environmental analyses is important at
each appropriate stage of the development of a proposed action, and OAs
should seek public involvement as early as possible. Consistent with 40
CFR 1500.3(b), 1500.4(n), and 1503.3, OAs should ensure commenters are
invited to submit specific comments as early in the process as
possible, and provide notice that comments not submitted shall be
forfeited as unexhausted. OAs should integrate public involvement in
the NEPA process, as applicable, with other public involvement
processes (e.g., 54 U.S.C. 306108 (Section 106 of the National Historic
Preservation Act of 1966, as amended), State requirements) to the
fullest extent practicable. Methods to solicit the views of the public
include public workshops or meetings; hearings in traditional or non-
traditional formats and locations; social media; new technologies;
advertisements or notices in print or electronic media; and other
appropriate means tailored to reach the relevant audiences. (See 40 CFR
1506.6). When OAs provide for public comment, they must include
electronic submission of comments, with reasonable measures to ensure
the comment process is accessible to affected persons. (See 40 CFR
1503.1(c)).
(2) To allow the public to efficiently and effectively access
information about NEPA reviews, OAs must make NEPA documents, relevant
notices and other relevant information for use by interested persons
available online in a manner consistent with 40 CFR 1506.6(e) and
1507.4. Appropriate domains for publication may include Department/OA
operated websites or project-specific websites. When posted on a DOT
website, NEPA documents must be compliant with the requirements of 29
U.S.C. 794d (section 508 of the Rehabilitation Act of 1973, as
amended).
(i) Use of contractors. Decisionmaking under NEPA is an inherently
governmental function. OAs may use contractors to assist in the
preparation of NEPA documents, but must require contractors to comply
with this part and OA procedures, and follow relevant guidance. OAs
must furnish guidance, participate in the preparation of, and
independently evaluate NEPA documents, taking responsibility for their
accuracy, scope, and contents. (See 40 CFR 1506.5).
(1) When an OA acts as the lead agency and uses a contractor, it
may select the contractor for preparation of an EIS or EA, consistent
40 CFR 1506.5. The OA may select the contractor in cooperation with
cooperating agencies.
(2) Prior to entering into a contract for the preparation of an EIS
or EA, the OA must require the contractor or applicant to execute a
disclosure statement specifying any financial or other interest if
applicable, or stating it has no financial or other interests in the
outcome of the proposed action. (40 CFR 1506.5).
(j) Tracking. OAs must track and report environmental review
milestones in compliance with DOT tracking procedures and other
applicable requirements. Consistent with 23 U.S.C. 139(o) and all
reporting standards issued by the Office of Policy, OAs must post
information for all transportation infrastructure projects requiring an
EA or EIS, including applicable NEPA and any permitting or
authorization actions and associated milestones, to the publicly
accessible Permitting Dashboard. OAs must post and update information
as necessary within timeframes established by the reporting standards.
Sec. 13.15 Determination of the level of NEPA review.
(a) To determine the appropriate level of NEPA review, OAs must
establish the appropriate scope (using the criteria for scope in 40 CFR
1501.9(e)) of the proposed action.
(b) To ensure meaningful and objective evaluation of alternatives,
where applicable, and avoid commitments to proposed actions before they
are fully evaluated, OAs must ensure that the scope of the proposed
action evaluated in an EA, EIS, or CE includes connected actions; has
independent utility or independent significance (e.g., would be a
usable and reasonable expenditure even if no additional transportation
improvements in the area are made); does not unreasonably restrict
consideration of alternatives for other reasonably foreseeable actions;
and where applicable, connects logical termini.
(c) In considering whether the effects of the proposed action are
significant, agencies must analyze the potentially affected environment
and degree of the effects of the action. Agencies should consider
connected actions consistent with Sec. 1501.9(e)(1). In considering
the degree of the effects, agencies should consider the following, as
appropriate to the specific action, where the effects are reasonably
foreseeable and have a reasonably close causal relationship to the
proposed action:
(1) Both short- and long-term effects.
(2) Both beneficial and adverse effects.
(3) Effects on public health and safety.
(4) Effects that would violate Federal, State, Tribal, or local law
protecting the environment. (See 40 CFR 1501.3(b)).
(d) If there is an unresolved disagreement between the OA and an
applicant regarding the appropriate level of NEPA review, the OA must
notify the Office of Policy, to assist in making the determination.
Sec. 13.17 Categorical Exclusions.
(a) Application of a Categorical Exclusion (CE). CEs are categories
of actions that normally do not have a significant effect on the
environment, and therefore normally do not require the preparation of
an EA or EIS. (40 CFR 1501.4). Appendix A of this part lists
Departmentwide CEs. An ``*'' is used to indicate the CEs that would not
require documentation. OA Procedures may identify additional CEs,
consistent with Sec. 13.7(d); Appendix B of this part identifies the
location of CEs established in each of the Department's OA Procedures
and incorporates those CEs by reference. Paragraph (b) of this section
lists extraordinary circumstances (40 CFR 1501.4), that OAs must
consider before determining that a CE listed in Appendix A of this part
applies to a proposed action. If an OA seeks to apply a CE established
in another OA's procedures (referenced in Appendix B of this part), it
must evaluate the action for extraordinary circumstances identified in
the OA Procedures in which the CE is established \5\ to determine if a
normally excluded action may have a significant effect. If an
extraordinary circumstance is present, an OA may nevertheless apply a
CE listed in Appendix A of this part to an action if the OA determines
that there are circumstances that lessen the impacts or other
conditions sufficient to avoid significant effects. If the OA cannot
apply the CE to the proposed action, it must prepare an EA or EIS, as
appropriate.
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\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).
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\6\ See Appendix B to part 13.
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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 11, 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.
668-6668d.
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
