Procedures for Considering Environmental Impacts

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[FRA Docket No. EP-1, Notice 5]

Procedures for Considering Environmental Impacts

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Notice of Updated Environmental Assessment Procedures.

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SUMMARY: The FRA announces that it has revised its Procedures for

Considering Environmental Impacts to update or eliminate outdated

references to programs or statutory authorities that have been revised

or that no longer exist, to correct inconsistencies with the Council on

Environmental Quality's (CEQ) National Environmental Policy Act

implementing regulations, and to improve public access to the process

that governs FRA's compliance with the National Environmental Policy

Act (NEPA) and related environmental and historic preservation laws and

regulations.

DATES: These revised Environmental Procedures are effective on May 26,

1999.

FOR FURTHER INFORMATION CONTACT: William R. Fashouer, Office of the

Chief Counsel, FRA, 1120 Vermont Avenue, N.W., Stop-10, Washington,

D.C. 20590 (telephone: 202-493-6033).

[[Page 28546]]

SUPPLEMENTARY INFORMATION: On June 16, 1980, the FRA published its

final ``Procedures For Considering Environmental Impacts''

(Environmental Procedures), 45 FR 40854 (1980). These Environmental

Procedures established a process for assessing the environmental impact

of actions and legislation proposed by the FRA and for the preparation

and processing of documents based on such assessments. As a part of a

larger DOT effort to increase intermodal planning and coordination, FRA

is currently participating with the Federal Highway Administration

(FHWA), the Federal Transit Administration (FTA), and the United States

Coast Guard bridge permit program in evaluating a proposal for new

joint environmental regulations that would cover all four DOT operating

administrations in one regulation. In advance of this effort, which is

still in the very early planning stage, FRA has decided to update its

existing Environmental Procedures in several minor respects and to

republish them in the Federal Register to facilitate public access to

the Procedures.

The revised Environmental Procedures have not been substantively

altered. FRA has sought to achieve four principal objectives in

updating the Environmental Procedures. First, obsolete statutory

references have been removed or updated and references to programs for

which FRA no longer has authority and program offices that no longer

exist have been eliminated. As an example, FRA transferred ownership of

the Alaska Railroad to the State of Alaska in 1985. In the revised

procedures, all references to the Alaska Railroad have been removed.

Second, the list of categorical exclusions in section 4(c) of the

Procedures has been updated to reflect additions that FRA has made over

the years pursuant to section 4(e) of the Procedures. Section 4(e)

authorizes FRA to adopt additional categorical exclusions when the

agency determines that particular classes of action do not have a

significant environmental impact. The revised Procedures afford FRA

with the opportunity to publish these additional categorical exclusions

for the first time.

Third, inconsistencies with the CEQ NEPA Implementing Regulations

(40 CFR part 1500) have been corrected. FRA's implementing procedures

are required to be consistent with the CEQ Regulations.

Fourth, improved public access to the procedures will be achieved

through a new publication in the Federal Register. Since the original

procedures were published in the Federal Register in 1980, they are

difficult for the public to access. By republishing the Procedures, FRA

achieves much wider public availability, especially through the Federal

Register Internet Access, which is not available for the original 1980

procedures.

Final Procedures Revisions

FRA has published these revised Environmental Procedures without

notice and an opportunity for public comment because the agency's

action simply makes updating and conforming revisions to FRA's existing

procedures and does not substantively alter the process FRA follows for

considering the environmental impact of its actions. The agency

concluded that more detailed revisions to the agency's Environmental

Procedures were not needed at this time in light of the effort

described above to consider a joint surface transportation

environmental regulations that would address the environmental process

for several DOT Operating Administrations. The public will have an

opportunity to participate in the formulation of this regulation if it

goes forward.

In accordance with the above, FRA revises its Procedures for

Considering Environmental Impacts as follows:

FEDERAL RAILROAD ADMINISTRATION

PROCEDURES FOR CONSIDERING ENVIRONMENTAL IMPACTS

TABLE OF CONTENTS

Sec.

1. Purpose.

2. Authority.

3. Definitions.

4. Actions Covered.

5. Timing.

6. Actions.

7. Applications.

8. Consultants.

9. Citizen Involvement.

10. Environmental Assessment Process.

11. Finding of No Significant Impact.

12. 4(f) Determinations.

13. Environmental Impact Statement.

14. Contents of an Environmental Impact Statement.

15. Record of Decision.

16. Effective Date.

1. Purpose

This document establishes procedures for the assessment of

environmental impacts of actions and legislation proposed by the

Federal Railroad Administration (FRA), and for the preparation and

processing of documents based on such assessments. These Procedures

supplement the Council on Environmental Quality (CEQ) Regulations (40

CFR parts 1500 et seq., hereinafter ``CEQ 1500'') and Department of

Transportation (DOT) Order 5610.1C. Although only certain portions of

the CEQ regulations or DOT Order are specifically referenced in these

Procedures, the unreferenced portions also apply.

2. Authority

These Procedures implement the requirements of section 20 of DOT

Order 5610.1C. This document establishes procedures for compliance by

the FRA with the National Environmental Policy Act (42 U.S.C. 4321 et

seq., hereinafter NEPA), especially NEPA section 102 (2)(C) (42 U.S.C.

4332(2)(C)); section 4(f) of the Department of Transportation Act (49

U.S.C. 303(c)); section 106 of the National Historic Preservation Act

(16 U.S.C. 470(f)); section 309(a) of the Clean Air Act (42 U.S.C.

7609(a)); section 307(c)(2) of the Coastal Zone Management Act (16

U.S.C. 1456(c)(2)); section 2(a) of the Fish and Wildlife Coordination

Act (16 U.S.C. 662(a)); section 7 of the Endangered Species Act (16

U.S.C. 1536); the Noise Control Act of 1972 (42 U.S.C. 4901 et seq.);

and certain Executive Orders, regulations, and guidelines cited in this

document which relate to environmental assessment and environmental

documentation.

3. Definitions

The definitions contained within CEQ 1508 apply to these

Procedures. Additional or expanded definitions are as follows:

(a) ``Administrator'' means the Federal Railroad Administrator.

(b) ``CEQ'' means the Council on Environmental Quality.

(c) ``EIS'' means an Environmental Impact Statement.

(d) ``EPA'' means the U.S. Environmental Protection Agency.

(e) ``FONSI'' means a Finding of No Significant Impact.

(f) ``4(f)-Protected Properties'' are any publicly-owned land of a

public park, recreation area, or wildlife and waterfowl refuge of

national, State or local significance or any land of an historic site

of national, State, or local significance (as determined by the

Federal, State, or local officials having jurisdiction over the park,

area, refuge, or site) within the meaning of section 4(f) of the DOT

Act (49 U.S.C. 303(c)).

(g) ``4(f)Determination'' is a report which must be prepared prior

to the Administrator's approval of any FRA action which requires the

use of any 4(f)-protected properties. This report documents both the

supporting analysis and the finding required by section 4(f) of the DOT

Act (49 U.S.C. 303(c)), that (1) there is no prudent and feasible

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alternative to the use of such land, and (2) the proposed FRA action

includes all possible planning to minimize harm to the park,

recreational area, wildlife and waterfowl refuge, or historic site

resulting from the use.

(h) ``FRA Action'' is an action taken by the Administrator or his

or her delegate. FRA actions include grants, loans, financing through

redeemable preference shares and loan guarantees, contracts, purchases,

leases, construction, research activities, rulemaking, regulatory

actions, approvals, certifications, and licensing. FRA actions also

include actions only partially funded by FRA. FRA actions include FRA-

sponsored proposals for legislation and favorable reports on proposed

rail-related legislation, but do not include responses to Congressional

requests for reports on pending legislation or appropriation requests.

(i) ``Program Office'' is an office within FRA which has been

delegated the authority to administer a particular FRA action or

program and which therefore bears primary responsibility for performing

environmental assessments and preparing environmental documents in

compliance with these Procedures.

(j) ``P-10'' refers to the Office of Environment, Energy, and

Safety within the Department of Transportation.

4. Actions Covered

(a) General Rule. The requirements of sections 5 through 15 of

these Procedures shall apply to all FRA actions which are determined to

be major FRA actions in accordance with this section.

(b) Major FRA Actions. A major FRA action for purposes of these

Procedures is any FRA action which does not come within one of the

classes of actions categorically or otherwise excluded in subsections

(c), (d) or (e) of this section. The Program Office shall consult with

the FRA Office of Chief Counsel before determining that an FRA action

is not a major FRA action under subsection (c). Any determination that

an FRA action is not a major FRA action based on the application of the

criteria in subsection (e) of this section shall be made in writing by

the Program Office and reviewed for legal sufficiency by the FRA Office

of Chief Counsel. The FRA Office of Chief Counsel will, in coordination

with other FRA offices, annually review actions taken under this

subsection to determine whether additions should be made to the classes

of action excluded in subsection (c).

(c) Actions Categorically Excluded. Certain classes of FRA actions

have been determined to be categorically excluded from the requirements

of these Procedures as they do not individually or cumulatively have a

significant effect on the human environment. In extraordinary

circumstances, a normally excluded action may have a potentially

significant environmental effect because it does not satisfy one or

more of the criteria in subsection (e) of this section. In such case,

the Program Office shall prepare the necessary environmental assessment

and follow the appropriate FONSI or EIS process for that action. The

following classes of FRA actions are categorically excluded:

(1) Administrative procurements (e.g. for general supplies) and

contracts for personal services;

(2) Personnel actions;

(3) Financial assistance or procurements for planning or design

activities which do not commit the FRA or its applicants to a

particular course of action affecting the environment;

(4) Technical or other minor amendments to existing FRA

regulations;

(5) Internal orders and procedures not required to be published in

the Federal Register under the Administrative Procedure Act, 5 U.S.C.

552(a)(1);

(6) Changes in plans for an FRA action for which an environmental

document has been prepared, where the changes would not alter the

environmental impacts of the action;

(7) Rulemakings issued under section 17 of the Noise Control Act of

1972, 42 U.S.C. 4916;

(8) State rail assistance grants under 49 U.S.C. 22101 et seq. for

rail service continuation payments and acquisition, as defined in 49

CFR 266;

(9) Guarantees of certificates for working capital under the

Emergency Rail Services Act (45 U.S.C. 661 et seq.);

(10) Hearings, meetings, or public affairs activities;

(11) Maintenance of: existing railroad equipment; track and bridge

structures; electrification, communication, signaling, or security

facilities; stations; maintenance-of-way and maintenance-of-equipment

bases; and other existing railroad-related facilities. For purposes of

this exemption ``maintenance'' means work, normally provided on a

periodic basis, which does not change the existing character of the

facility, and may include work characterized by other terms under

specific FRA programs;

(12) Temporary replacement of an essential rail facility if repairs

are commenced immediately after the occurrence of a natural disaster or

catastrophic failure;

(13) Operating assistance to a railroad to continue existing

service or to increase service to meet demand, where the assistance

will not result in a change in the effect on the environment;

(14) State rail assistance grants under 49 U.S.C. 22101 et seq. for

relocation costs as that term is defined in 49 C.F.R. Part 266, where

the relocation involves transfer of a shipper to a site zoned for the

relocated activity. This categorical exclusion shall not apply to the

relocation of a shipper involved in the transportation of any material

classified as a hazardous material by DOT in 49 CFR Part 172;

(15) Financial assistance for the construction of minor loading and

unloading facilities, provided that projects included in this category

are consistent with local zoning, do not involve the acquisition of a

significant amount of land, and do not significantly alter the traffic

density characteristics of existing rail or highway facilities;

(16) Minor rail line additions including construction of side

tracks, passing tracks, crossovers, short connections between existing

rail lines, and new tracks within existing rail yards provided that

such additions are not inconsistent with existing zoning, do not

involve acquisition of a significant amount of right of way, and do not

significantly alter the traffic density characteristics of the existing

rail lines or rail facilities;

(17) Acquisition of existing railroad equipment, track and bridge

structures, electrification, communication, signaling or security

facilities, stations, maintenance of way and maintenance of equipment

bases, and other existing railroad facilities or the right to use such

facilities, for the purpose of conducting operations of a nature and at

a level of use similar to those presently or previously existing on the

subject properties;

(18) Research, development and/or demonstration of advances in

signal, communication and/or train control systems on existing rail

lines provided that such research, development and/or demonstrations do

not require the acquisition of a significant amount of right-of-way,

and do not significantly alter the traffic density characteristics of

the existing rail line;

(19) Improvements to existing facilities to service, inspect, or

maintain rail passenger equipment, including expansion of existing

buildings, the construction of new buildings and outdoor facilities,

and the reconfiguration of yard tracks; and

(20) Promulgation of railroad safety rules and policy statements

that do not result in significantly increased emissions of air or water

pollutants or

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noise or increased traffic congestion in any mode of transportation.

(d) Other Actions-Excluded in Accordance with CEQ Regulations. The

following classes of actions have been determined to be actions not

covered by NEPA as defined in CEQ 1500.6 and 1508.18(a):

(1) Operating and capital grants to Amtrak. These grants are

excluded because NEPA does not apply to requests for appropriations and

FRA has no discretion to withhold these grants at the funding stage if

they are in accordance with the spending plan approved by Congress.

Furthermore, FRA has no control over the use of such funds by Amtrak;

(2) Enforcement of safety regulations; and

(3) Issuance of emergency orders.

(e) Criteria for Exclusion of Actions. A class of FRA action not

excluded under subsections (c) and (d) of this section may nevertheless

be excluded from the requirements for ``major FRA actions'' in these

Procedures if it satisfies all of the following criteria:

(1) The action is not judged to be environmentally controversial

from the point of view of people living within the environment affected

by the action or controversial with respect to the availability of

adequate relocation housing;

(2) The action is not inconsistent with any Federal, State, or

local law, regulation, ordinance, or judicial or administrative

determination relating to environmental protection;

(3) The action will not have any significant adverse impact on any

natural, cultural, recreational, or scenic environment(s) in which the

action takes place, or on the air or water quality or ambient noise

levels of such environment(s);

(4) The action will not: use 4(f)-protected properties; adversely

affect properties under section 106 of the National Historic

Preservation Act; involve new construction located in a wetlands area;

or affect a base floodplain;

(5) The action will not cause a significant short-or long-term

increase in traffic congestion, or other significant adverse

environmental impact on any mode of transportation;

(6) The action is not an integral part of a program of actions

which, when considered separately, would not be classified as major FRA

actions, but when considered together would be so classified; and

(7) Environmental assessment or documentation is not required by

any Federal law, regulation, guideline, order, or judicial or

administrative determination other than these Procedures.

(f) Class of Actions. A general class of major FRA actions, or a

general class of Federally-related actions at least one of which is a

major FRA action, may be covered by a single environmental assessment

and subsequent documentation where the environmental impacts of all the

actions (and their alternatives) are substantially similar.

(g) Programmatic Actions.

(1) A programmatic FRA action, consisting of a group of FRA actions

or a broad action composed of elements which are themselves FRA actions

but where no single action would be taken except in conjunction with

the other related actions, shall be treated as a separate major FRA

action for purposes of these Procedures. Decisions on related rail

facilities, e.g. connecting lines of a railroad or consolidations,

should normally be considered a programmatic action.

(2) A programmatic environmental document should identify program

level alternatives and assess the program-wide environmental impacts.

To the extent information is available, it should also identify the

alternatives to and impacts of component FRA actions within the

program, and the implications on alternative transportation systems.

(3) Where a programmatic environmental document has been prepared,

the FRA program office shall examine each component FRA action making

up the program to determine, in accordance with subsection (b) of this

section, whether the component action is a major FRA action, which has

not been assessed in the programmatic document.

(4) For any component action which constitutes a major FRA action,

the Program Office shall prepare such additional environmental

documentation as may be required by these Procedures, unless the

documentation prepared for the programmatic action satisfies the

requirements of these Procedures for the component FRA action. In

preparing the site specific or component action documentation, the

Program Office shall reference and summarize the programmatic document

and shall limit the discussion to the unique alternatives to and

impacts of the site specific or component action.

5. Timing

(a) General. In general, the possible environmental effects of an

FRA action must be considered at the earliest possible time along with

technical and economic studies. For purposes of designating major

decision points, FRA actions can be broken into three broad categories:

(1) ``Applications for Funding'' which include grants, cooperative

agreements, loan guarantees, and financing through redeemable

preference shares;

(2) ``FRA Initiated Actions'' which include proposed legislation,

rulemakings, and R&D activities; and

(3) ``Direct FRA Projects'' which include the planning and building

of Federal works such as the Northeast Corridor Improvement Project, or

the acquisition, use and disposal of Federal land and real property.

(b) Applications For Funding. Appropriate environmental

documentation shall be commenced no later than immediately after the

application is received. (CEQ 1502.5(b)). The FONSI, EIS, or

categorical exclusion determination, as appropriate, shall be completed

prior to a decision by the Administrator on the approval of the

application and shall accompany the application through the decision-

making process. In the event the Administrator disapproves of an

application prior to the completion of the FONSI or EIS, the FONSI or

EIS need only be completed if the disapproval is based on environmental

grounds.

(c) FRA Initiated Actions. Appropriate environmental documentation

shall be commenced concurrently with any planning for the action. The

FONSI, EIS, or categorical exclusion determination, as appropriate,

shall be completed prior to a decision by the Administrator to

implement an action and shall accompany the proposed legislation,

rulemaking or R&D package through the decision-making process.

Implementation includes submission of proposed legislation to the

Office of Management and Budget, or procurement of an outside

consultant or in-house start up of the R&D project. For informal

rulemaking activities, the draft EIS should normally accompany the

proposed rule.

(d) Direct FRA Projects. Appropriate environmental documentation

shall be commenced at the feasibility analysis stage. (CEQ 1502.5(a)).

Where a programmatic document has been prepared, the environmental

document for each component action not adequately addressed in the

programmatic document will be prepared along with design studies. The

FONSI, EIS or categorical exclusion determination shall be completed

prior to a construction decision and circulated to the Administrator as

part of the decision-making process.

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6. Joint Actions

(a) Joint Effort. Where one or more Federal agencies together with

FRA either co-sponsor an action, or are directly involved in an action

through funding, licenses, or permits, or are involved in a group of

actions directly related because of functional interdependence or

geographical proximity or both, or are involved in a single program,

the Program Office shall seek to join all such agencies in performing a

single joint environmental assessment and in preparing necessary

environmental documentation. Consistent with the requirements of CEQ

1506.2 and 1506.5 an applicant shall, to the fullest extent possible,

serve as a joint lead agency if the applicant is a State agency or

local agency, and the proposed action is subject to State or local

requirements comparable to NEPA.

(b) Lead Agency. Where the FRA joins with one or more other Federal

agencies in the performance of an environmental assessment and in the

preparation of environmental documentation, all agencies should agree

to designate a single ``lead agency'' to supervise the effort. Any

request by FRA for CEQ resolution of lead agency designation (CEQ

1501.5(e)) shall be made only after consultation with the FRA Office of

Chief Counsel and notification to P-10. Where FRA has the primary

Federal responsibility, the Program Office will act as the lead agency

in accordance with CEQ 1501.6(a). The lead agency should consult with

the other participating agencies to ensure that the joint effort makes

the best use of areas of jurisdiction and of special expertise of the

participating agencies, that the views of participating agencies are

considered in the course of the environmental assessment and

documentation process, and that the substantive and procedural

requirements of all participating agencies are met. Requests for lead

agency designation by other parties should be made to the FRA Office of

Policy and Program Development, which will advise the appropriate

Program Office and the FRA Office of Chief Counsel.

(c) Cooperating Agency. The FRA is responsible for substantive and

procedural compliance with environmental laws, orders, and regulations.

Where the FRA is a cooperating agency on a joint effort of

environmental assessment and documentation, the Program Office shall

perform the functions stated in CEQ 1501.6(b) and review the work of

the lead agency to ensure that its work product will satisfy the

requirements of the FRA under these Procedures. The Program Office may

enter into a memorandum of understanding with the lead agency

substituting the lead agency's content requirements for those in

sections ll(h) and 14(a)-(u). If the lead agency is another component

of DOT, the 4(f) content requirements in section 12(d) may also be

substituted. For every major FRA action, however, the review and

approval responsibilities of these Procedures must be met for any final

environmental document.

7. Applicants

(a) General. Each applicant for FRA financial assistance or other

major FRA action may be requested to perform an environmental

assessment of the proposed FRA action and to submit documentation of

that assessment with the application. An applicant may also be

requested to submit a proposed draft EIS or proposed FONSI in

connection with the application, or to act as a joint lead agency if

the applicant is a State agency with state-wide jurisdiction or is a

State or local agency, and the proposed action is subject to a State

requirement comparable to NEPA.

(b) Information Required. Where an applicant is required to submit

environmental documentation, the Program Office shall assist the

applicant by specifying the types and amounts of information,

consistent with these Procedures and the published regulations, if any,

under which the application is being made. The Program Office shall

work with potential applicants early in the process to assist in the

development of information responsive to sections 10 through 14 of

these Procedures.

(c) Premature Act by Applicant. The Program Office shall inform an

applicant that the applicant may not take any major action, in

expectation of approval of the application, prior to completion of the

environmental documentation process by the FRA, as required by these

Procedures.

(d) Applicant's Use of Consultants. An applicant may use

consultants in the performance of an environmental assessment and in

the preparation of proposed environmental documents, subject to

approval of the selected consultant by the Program Office.

(e) FRA Responsibility. The FRA is responsible for substantive and

procedural compliance with environmental laws, orders, and regulations,

and cannot delegate this responsibility to applicants. The Program

Office shall solicit comments from state and local governments and the

public on the environmental consequences of any grant application. The

Program Office that processes an application shall make its own

evaluation of the environmental issues raised by the application. The

Program Office shall review environmental documentation submitted in

connection with an application to insure that it satisfies the

requirements of these Procedures. An environmental document may be

accepted by a Program Office after such review and shall then be

considered to have been prepared by that office for purposes of

sections 10 through 15 of these Procedures. When necessary to perform

such review, the Program Office shall seek the advice of the FRA Office

of Policy and Program Development and the FRA Office of Chief Counsel.

8. Consultants

(a) General. A Program Office may use consultants in the

performance of environmental assessments and in the preparation of

environmental documents.

(b) Conflicts of Interest. A Program Office shall exercise care in

selecting consultants, and in reviewing their work, to ensure that

their analysis is complete and objective. Contractors shall execute a

disclosure statement prepared by the Program Office, specifying that

they have no financial or other interest in the outcome of the project.

(c) FRA Responsibility. The FRA is responsible for substantive and

procedural compliance with environmental laws, orders, and regulations,

and cannot delegate this responsibility to consultants. The Program

Office that contracts with a consultant shall make its own evaluation

of the environmental issues raised by the proposed action. The Program

Office shall review any assessments performed and any documents

prepared by a consultant to ensure that they satisfy the requirements

of these Procedures. When necessary to the performance of its review,

the Program Office shall seek the advice of the FRA Office of Policy

and Program Development and of the FRA Office of Chief Counsel. An

environmental document accepted by a Program Office pursuant to this

section shall be considered to have been prepared by that office for

purposes of sections 10 through 15 of these Procedures.

9. Citizen Involvement

(a) Policy. Citizen involvement is encouraged at every stage of the

environmental assessment of a proposed FRA action.

(b) Procedures. After a Program Office has made the decision to

prepare a draft

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EIS, the Program Office shall implement the following procedures:

(1) Develop, in cooperation with the FRA Public Affairs Office, a

list of interested parties, including Federal, regional, State, and

local authorities, environmental groups, individuals, and business,

public service, education, labor, and community organizations. The

``List of Federal Agencies and Federal-State Agencies with Jurisdiction

by Law or Special Expertise on Environmental Quality Issues'',

published by CEQ, should be consulted.

(2) Publish a notice of intent in the Federal Register, in

accordance with CEQ 1501.7 and 1508.22, and notify directly those

officials, agencies, organizations, and individuals with particular

interest in the proposal.

(3) Circulate the draft EIS to interested parties and to

depositories, such as public libraries, together with an invitation to

comment on the draft EIS.

(4) Publicize the availability of the draft EIS by press release,

in coordination with the FRA Public Affairs Officer, by advertisement

in local newspapers of general circulation, or by other suitable means.

The Environmental Protection Agency (EPA) will normally publish a

notice of availability in the Federal Register. If one or more

alternative(s) include significant encroachment on a floodplain, the

notice shall make reference to that fact.

(5) If necessary or desirable, as determined in consultation with

the FRA Office of Chief Counsel, using the criteria in CEQ 1506.6(c),

hold a hearing or hearings on the draft EIS. If a hearing is held, the

draft EIS shall be made available at least 30 days prior to the

hearing.

(6) Respond to all responsible comments in the final EIS in

accordance with section 13(c)(11) of these Procedures and provide

copies of the final EIS to all who commented on the draft.

(c) List of Contacts. Interested persons can get information on the

FRA environmental process and on the status of EIS's issued by the FRA

from: Office of Policy and Program Development, Federal Railroad

Administration, 1120 Vermont Avenue, N.W., Stop 15, Washington, D.C.

20590; telephone (202) 493-6400. The FRA Office of Policy and Program

Development will contact the appropriate Program Office if additional

information is required.

10. Environmental Assessment Process

(a) Policy. The process of considering the environmental impacts of

a proposed major FRA action should be begun by or under the supervision

of the Program Office at the earliest practical time in the planning

process for the proposed action and shall be considered along with

technical and economic studies. To the fullest extent possible, steps

to comply with all environmental review laws and regulations shall be

undertaken concurrently.

(b) Scope. The process of considering environmental impacts should

begin by identifying all reasonable alternatives to the proposed

action, including ``no action'' and including mitigation measures not

incorporated into the design of the proposed action. It is entirely

proper that the number of alternatives being considered should decrease

as the environmental consideration process proceeds and as analysis

reveals that certain alternatives would in fact be unreasonable. The

relevant environmental impacts of all alternatives should be identified

and discussed, including both beneficial and adverse impacts; impacts

which are direct, indirect, and cumulative; and impacts of both long

and short-term duration; and mitigation measures that would be included

for each alternative. Consultation with appropriate Federal, State, and

local authorities, and to the extent necessary, with the public, should

be begun at the earliest practicable time. The following aspects of

potential environmental impact should be considered:

(1) Air quality;

(2) Water quality;

(3) Noise and vibration;

(4) Solid waste disposal;

(5) Ecological systems;

(6) Impacts on wetlands areas;

(7) Impacts on endangered species or wildlife:

(8) Flood hazards and floodplain management;

(9) Coastal zone management;

(10) Use of energy resources;

(11) Use of other natural resources, such as water, minerals, or

timber;

(12) Aesthetic and design quality impacts;

(13) Impacts on transportation: of both passengers and freight; by

all modes, including the bicycle and pedestrian modes; in local,

regional, national, and international perspectives; and including

impacts on traffic congestion;

(14) Possible barriers to the elderly and handicapped;

(15) Land use, existing and planned;

(16) Impacts on the socioeconomic environment, including the number

and kinds of available jobs, the potential for community disruption and

demographic shifts, the need for and availability of relocation

housing, impacts on commerce, including existing business districts,

metropolitan areas, and the immediate area of the alternative, and

impacts on local government services and revenues;

(17) Environmental Justice;

(18) Public health;

(19) Public safety, including any impacts due to hazardous

materials;

(20) Recreational opportunities;

(21) Locations of historic, archeological, architectural, or

cultural significance, including, if applicable, consultation with the

appropriate State Historic Preservation Officer(s);

(22) Use of 4(f)-protected properties; and

(23) Construction period impacts.

(c) Depth. The environmental consideration process should seek to

quantify each impact identified as relevant to the proposed action and

to each alternative. Such quantification should properly develop, over

the course of the environmental impact process, from a rough order-of-

magnitude estimate of impact to finer and more precise measurements.

The depth of analysis of each impact should be guided by the following

factors:

(1) The likely significance of the impact;

(2) The magnitude of the proposed action or an alternative action;

(3) Whether the impact is beneficial or adverse; and

(4) Whether and to what extent the impact has been assessed in a

prior environmental document.

(d) Environmental Assessment. An environmental assessment shall be

prepared, in accordance with CEQ 1508.9, prior to all major FRA

actions. The environmental assessment shall be used to determine the

need to prepare either a FONSI or an EIS for the proposed action, in

accordance with subsection (e) of this section. An environmental

assessment need not be prepared as a separate document where the

Program Office or an applicant has already decided to prepare an EIS

for the proposed action. Evidence of consultation with appropriate

Federal, State, and local authorities is especially desirable as a part

of the environmental assessment. The Program Office is encouraged to

seek the advice of the FRA Office of Policy and Program Development and

the FRA Office of Chief Counsel as to the sufficiency of the

environmental assessment.

(e) Determination Based on the Environmental Assessment. On the

basis of the environmental assessment, the Program Office shall

determine: whether the proposed action will or will not have a

foreseeable significant impact on the quality of the human environment;

whether or not the proposed action will use 4(f)-protected

[[Page 28551]]

properties; whether or not the proposed action will occur in a wetlands

area; and whether or not the proposed action will occur in a base flood

plain. In making these four determinations, the Program Office shall

seek the advice of the FRA Office of Chief Counsel and shall inform

this advisory office of the ultimate determinations. Based on these

four determinations, the Program Office shall take action in accordance

with paragraphs (1) through (4) below, as applicable:

(1) If the Program Office determines that the proposed action will

not have a foreseeable significant impact, the Program Office shall

compile that determination and its supporting documentation into a

FONSI and proceed in accordance with section 11 of these Procedures.

(2) If the Program Office determines that there is a foreseeable

significant impact, it shall begin the scoping process (CEQ 1501.7) and

proceed to prepare a draft EIS in accordance with sections 9 and 13 of

these Procedures.

(3) If the Program Office determines that the proposed action

contemplates using 4(f)-protected properties, it shall proceed in

accordance with section 12 of these Procedures.

(4) If the Program Office determines that the proposed action will

occur in a wetlands area or in a base floodplain, the Program Office

shall comply with subsection 14(n)(6) or (8) of these Procedures, as

applicable. If a FONSI is prepared, the reference in 14(n)(6) and (8)

to final EIS should be read as reference to the FONSI.

11. Finding of No Significant Impact

(a) General. A FONSI shall be prepared for all major FRA actions

for which an environmental impact statement is not required, as

determined in accordance with section 10(e) of these Procedures.

(b) Decisionmaking on the Proposed Action. No decision shall be

made at any level of authority of the FRA to commit the FRA or its

resources to a major FRA action for which a FONSI must be prepared

until a FONSI covering the action has been prepared and approved in

accordance with this section.

(c) Staff Responsibilities.

(1) A FONSI, when required, shall be prepared by the Program Office

and shall be signed by the official heading that office. The Program

Office shall forward a copy to the Office of Policy and Program

Development and a copy to the FRA Office of Chief Counsel.

(2) When requested by the Program Office, the FRA Office of Policy

and Program Development shall review the FONSI and shall advise the

Program Office of the consistency of the FONSI with FRA policies and

programs.

(3) The FRA Office of Chief Counsel shall review every FONSI and

shall advise the program office in writing as to the legal sufficiency

of the FONSI.

(4) After complying with subsection (d)(2) of this section, the

Program Office shall submit the FONSI to the Administrator concurrently

with the advice obtained from the Office of Policy and Program

Development, when applicable, and from the FRA Office of Chief Counsel.

(5) A FONSI may become final only upon approval by the

Administrator. Title V program actions do not require a separate

approving endorsement by the Administrator, where his/her signature on

the formal financial assistance agreement approves the entire agreement

package including the FONSI.

(d) Coordination.

(1) Normally an approved FONSI need not be coordinated in advance

outside the FRA. Copies of the FONSI shall be made available to the

public, to a Government agency, or to Congress upon request at any

time.

(2) When the proposed action is, or is closely similar to, one

which normally requires an EIS as identified in section 13(a) of these

Procedures, or when the nature of the proposed action is one without

precedent, the proposed FONSI shall be made available to the public for

a period of not less than 30 days before the FONSI is finally approved

and the action is implemented.

(e) 4(f) Determinations. A 4(f) determination, prepared according

to section 12 of these Procedures, may be required for a proposed FRA

action even though an EIS is not required. If so, the 4(f)

determination shall be prepared concurrently with and integrated with

the FONSI for purposes of the review process.

(f) Representations of Mitigation. Where a FONSI has represented

that certain measures would be taken to mitigate adverse environmental

impacts of an action, the FRA program office shall monitor the action

and, as necessary, take steps to enforce the implementation of such

measures. Where applicable, the Program Office shall include

appropriate mitigation measures as a condition to financial assistance

and as a provision of contracts. The program office shall, upon

request, inform cooperating or commenting agencies on progress in

carrying out mitigation measures they proposed and which were adopted

by FRA, and shall also, upon request, make available to the public the

results of relevant monitoring.

(g) Changes and Supplements. Where, in the development of an FRA

action for which a FONSI was prepared, a significant change is made

which would alter environmental impacts, or where significant new

information becomes available regarding the environmental impacts of

such an FRA action, the Program Office shall prepare an environmental

assessment in order to determine whether, because of the changes or the

new information, the proposed action will or will not have a

foreseeable significant impact on the quality of the human environment.

In making this determination, the Program Office shall seek the advice

of the FRA Office of Chief Counsel. If, because of the change or the

new information, the proposed action will have a foreseeable

significant impact on the quality of the human environment, the Program

Office shall prepare a draft EIS and proceed in accordance with

sections 9 and 13 of these Procedures. If not, the Program Office shall

prepare an appropriate supplement to the original FONSI.

(h) Contents of a FONSI. A FONSI shall include the environmental

assessment in accordance with CEQ 1508.13. There is no prescribed

format for FONSI's. A FONSI shall contain the following:

(1) Identification of the document as a FONSI;

(2) Identification of the FRA;

(3) The title of the action, including, if applicable,

identification of the action as a legislative proposal;

(4) The Program Office which prepared the document;

(5) The month and year of preparation of the document;

(6) The name, title, address, and phone number of the person in the

Program Office who should be contacted to supply further information

about the document;

(7) A list of those persons or organizations assisting the Program

Office in the preparation of the document;

(8) A description of the proposed action;

(9) A description of the alternatives considered;

(10) Environmental effects;

(11) To the extent necessary and practicable, evidence of

compliance with all applicable environmental laws, e.g., a copy of

letters from the State Historic Preservation Officer and the Advisory

Council on Historic Preservation;

(12) A discussion of mitigation measures that will be used;

[[Page 28552]]

(13) A conclusion that the proposed action will have no foreseeable

significant impact on the quality of the human environment; and

(14) Signature and date indicating the approval of the

Administrator required by subsection (c) of this section.

12. 4(f) Determinations

(a) General. The Program Office shall obtain the approval of the

Administrator for a 4(f) determination before any FRA action is taken

which proposes to use 4(f) protected properties. The 4(f) determination

shall be prepared concurrently with and shall be integrated with either

a FONSI or an environmental impact statement, or for those projects

classified as categorical exclusions, in a separate Section 4(f)

determination.

(b) Staff Responsibilities.

(1) The Program Office shall determine whether or not a proposed

action contemplates the use of 4(f)-protected properties. The Program

Office shall seek the advice of the FRA Office of Chief Counsel in

making this determination.

(2) If it is determined that the proposed action would use 4(f)-

protected properties, the Program Office shall initiate consultations

on the proposed action with the Department of the Interior and, if

appropriate, with the Departments of Housing and Urban Development and

of Agriculture. If State or locally-owned property is involved, the

Program Office should also consult with the appropriate State or local

authorities.

(3) The Program Office shall incorporate into its environmental

assessment of the proposed action an analysis of whether or not there

are any feasible and prudent alternatives to the proposed use of 4(f)-

protected properties and of all possible planning measures which could

be taken to minimize harm to such 4(f)-protected properties resulting

from such use.

(4) If the Program Office determines on the basis of its analysis

that there is no feasible and prudent alternative to the use in the

proposed action of 4(f)-protected properties, it shall prepare a 4(f)

determination for the action. The document shall evidence consultation

with the Department of the Interior and, where applicable, with the

Departments of Housing and Urban Development and of Agriculture. The

Program Office shall forward a copy of the 4(f) determination to the

FRA Office of Policy and Program Development and a copy to the office

of Chief Counsel as part of the appropriate FONSI or EIS or as a

separate document for those projects classified as categorical

exclusions.

(5) When requested by the Program Office, the FRA Office of Policy

and Program Development shall review the 4(f) determination and shall

advise the Program Office as to the consistency of the 4(f)

determination with FRA policies and programs.

(6) The FRA Office of Chief Counsel shall review every 4(f)

determination and shall advise the Program Office in writing as to the

legal sufficiency of the 4(f) determination.

(7) The Program Office shall submit the 4(f) determination to the

Administrator concurrently with the advice obtained from the FRA Office

of Policy and Program Development, when applicable, and from the FRA

Office of Chief Counsel.

(8) A 4(f) determination may become final only upon approval by the

Administrator.

(c) Representations of Mitigation. Where a 4(f)determination has

represented that certain measures would be taken to implement the

planning to minimize harm to 4(f)-protected properties, the Program

Office shall monitor the action and, as necessary, take steps to

enforce the implementation of such measures. Where applicable, the

Program Office shall include appropriate mitigation measures as a

condition to financial assistance and as a provision of contracts.

(d) Contents of a 4(f) Determination. There is no prescribed format

for 4(f) determinations. The information required by Section 4(f)

should normally be incorporated as an integral part of the

environmental document rather than as a separate section. To the extent

not already included in the environmental document, a 4(f)

determination shall contain the following:

(1) Identification of the document as containing a 4(f)

determination made pursuant to section 4(f) of the Department of

Transportation Act, 49 U.S.C. 303(c).

(2) Identification of the FRA;

(3) The title of the action;

(4) The Program Office which prepared the document;

(5) The month and year of preparation of the document;

(6) A description of the proposed action in its entirety;

(7) A description of the 4(f)-protected properties proposed to be

affected, including information about their size, uses, patronage,

unique qualities, and relationship to other lands in the vicinity of

the action; and an explanation of the significance of the properties as

determined by the Federal, State, or local officials having

jurisdiction thereof;

(8) A detailed description of the use which the FRA action proposes

to make of the affected 4(f)-protected properties;

(9) A similarly detailed description of every reasonable

alternative location, routing, or design to the one proposed, including

the alternative of ``no action''. Each description should analyze, as

appropriate, the technical feasibility, cost estimates (with figures

showing percentage differences in-total project costs), the possibility

of community or ecosystem disruption, and other significant

environmental impacts of each alternative, so as to evidence that the

financial, social, or ecological costs or adverse environmental impacts

of each alternative other than that proposed would present unique

problems or reach extraordinary magnitudes;

(10) A description of all planning undertaken to minimize harm to

the 4(f)-protected properties from the proposed action. This should

include a description of actions which will be taken to mitigate

adverse environmental impacts, such as beautification measures,

replacement of land or structures or their equivalents on or near their

existing site(s), tunneling, cut and cover, cut and fill, treatment of

embankments, planting, screening, installation of noise barriers, or

establishment of pedestrian or bicycle paths;

(11) Evidence of concurrence or of efforts to obtain concurrence of

the public official or officials having jurisdiction over the 4(f)-

protected properties regarding the proposed action and the planning to

minimize its harm;

(12) In a FONSI or a final EIS, evidence of consultation with the

Department of the Interior and, where appropriate, with the Departments

of Housing and Urban Development and of Agriculture;

(13) In a FONSI or a final EIS, a conclusion that there is no

feasible and prudent alternative to the proposed use of 4(f)-protected

properties and that the proposal includes all possible planning to

minimize harm to such properties resulting from such use; and

(14) In a FONSI or a final EIS, signature and date indicating the

approval of the Administrator as required by subsection (b)(8) of this

section.

13. Environmental Impact Statement

(a) General. The FRA shall prepare and include a final EIS in every

recommendation on proposals for major FRA actions significantly

affecting the quality of the human environment, as determined in

accordance with section 10 of these Procedures. There are no

[[Page 28553]]

actions which FRA has determined always require an EIS; however, an EIS

shall be prepared for all major FRA actions significantly affecting the

quality of the environment. This normally includes any construction of

new major railroad lines or new major facilities or any change which

will result in a significant increase in traffic.

(b) Decisionmaking on the Proposed Action. No decision shall be

made at any level of FRA to commit the FRA or its resources to a major

FRA action for which an EIS must be prepared until the later of the

following dates:

(1) Thirty (30) days after a final EIS covering the action has been

submitted to the EPA, as measured from the date the EPA publishes a

notice of the final EIS's availability in the Federal Register; or

(2) Ninety (90) days after a draft EIS has been made available to

the public, as measured from the date the EPA publishes a notice of the

draft EIS's availability in the Federal Register. The Program Office

may seek a waiver from the EPA to shorten these time limits for

compelling reasons of national policy. In emergency circumstances,

alternative arrangements can be made through CEQ. Any proposed waiver

of time limits should be requested only after consultation with the FRA

Office of Chief Counsel which will submit the request through P-10 to

EPA or CEQ as appropriate.

(c) Staff Responsibilities and Timing.

(1) The Program Office shall begin the preparation of a draft EIS

as soon as it determines, or the environmental assessment performed in

accordance with section 10 of these Procedures discloses, that the

proposed action will significantly affect the quality of the human

environment.

(2) As soon as a decision to prepare a draft EIS has been made, if

FRA is the lead or only agency, the Program Office, in consultation

with the FRA Office of Chief Counsel, shall undertake the scoping

process identified in CEQ 1501.7.

(3) In preparing a draft EIS, the Program Office shall perform such

research and consultation as may be required in accordance with section

14 of these Procedures or as may be considered desirable as a result of

the scoping process. The completed draft EIS shall be signed by the

head of the Program Office. The Program Office shall forward a copy to

the FRA Office of Policy and Program Development and a copy to the FRA

Office of Chief Counsel.

(4) When requested by the Program Office, the FRA Office of Policy

and Program Development shall review the draft EIS and shall advise the

Program Office in writing as to the consistency of the draft EIS with

FRA policies and programs.

(5) The FRA Office of Chief Counsel shall review every draft EIS

and shall advise the program office in writing as to the legal

sufficiency of the draft EIS.

(6) The Program Office shall submit the draft EIS to the

Administrator concurrently with the advice obtained from the FRA Office

of Policy and Program Development, when applicable, and from the FRA

Office of Chief Counsel.

(7) A draft EIS may be formally released outside the FRA only after

approval by the Administrator.

(8) The Program Office shall direct distribution of the draft EIS

as follows: EPA (five copies); the Office of the Assistant Secretary of

Transportation for Policy and International Affairs (two copies); all

interested FRA regional offices; appropriate DOT Regional

Representatives; the FRA Office of Policy and Program Development; the

FRA Office of Chief Counsel; all Federal agencies which have

jurisdiction by law or special expertise with respect to the

environmental impacts of the proposed action; State and local

government authorities and public libraries in the area to be affected

by the proposed action; and all other interested parties identified

during the preparation of the draft EIS pursuant to section 9(b)(1) of

these Procedures.

(9) The draft EIS shall be made available for public and agency

comment for at least 45 days from the Friday following the week the

draft EIS was received by EPA. The time period for comments on the

draft EIS shall be specified in a prominent place in the document, but

comments received after the stated time period expires should be

considered to the extent possible.

(10) Where a public hearing is to be held on the draft EIS, as

determined in accordance with section 9(b)(5) of these Procedures, the

draft EIS shall be made available to the public at least 30 days prior

to the hearing.

(11) The Program Office shall consider all comments received on the

draft EIS, issues raised through the citizen involvement process, and

new information, and shall revise the text into a final EIS

accordingly. (See CEQ 1503.4). If the proposed final EIS is not

submitted to the Administrator within three years from the date of the

draft EIS circulation, a written reevaluation of the draft shall be

prepared to determine if the draft EIS remains applicable, accurate,

and valid. If not, a supplement to the draft EIS or a new draft EIS

shall be prepared and circulated as required by paragraphs (1) through

(9) of this subsection. If the draft EIS remains applicable, accurate,

and valid, the final EIS shall be signed by the head of the Program

Office and copies forwarded to the FRA Office of Policy and Program

Development and the FRA Office of Chief Counsel.

(12) When requested by the Program Office, the FRA Office of Policy

and Program Development shall review the final EIS and shall advise the

Program Office in writing as to the consistency of the final EIS with

FRA policies and programs.

(13) The FRA Office of Chief Counsel shall review every final EIS

and shall advise the Program Office in writing as to its legal

sufficiency.

(14) The Program Office shall submit the final EIS to the

Administrator concurrently with the advice obtained from the FRA Office

of Policy and Program Development, when applicable, and the FRA Office

of Chief Counsel.

(15) The final EIS may become final only upon approval by the

Administrator.

(16) After approval by the Administrator, the Program Office shall

direct distribution of the final EIS as follows: EPA (five copies);

appropriate DOT Regional Representatives; all interested FRA regional

offices; the FRA Office of Policy and Program Development; the FRA

Office of Chief Counsel; State and local authorities and public

libraries in the area affected by the proposed action; Federal agencies

and other parties who commented substantively on the draft EIS in

writing or at a public hearing; and all agencies, organizations, or

individuals requesting copies.

(17) If major steps toward implementation of the proposed action

have not commenced, or a major decision point for actions implemented

in stages has not occurred within three years from the date of approval

of the final EIS, a written reevaluation of the adequacy, accuracy, and

validity of the final EIS shall be prepared, and a new or supplemental

EIS prepared, if necessary. If major steps toward implementation of the

proposed action have not occurred within the time frame, if any, set

forth in the final EIS, or within five years from the date of approval

of the final EIS, a written reevaluation of the adequacy, accuracy, and

validity of the final EIS shall be prepared, and a new or supplemental

EIS prepared, if necessary. A decision that a new or supplemental EIS

is not necessary must be processed in accordance with paragraph (14) of

this subsection (c).

[[Page 28554]]

(d) Legislative EIS. An approved draft legislative EIS may be

forwarded to the appropriate Congressional committee(s) up to 30 days

later than the proposed legislation. If a final EIS is prepared as

required by CEQ 1506.8(b)(2), it shall be forwarded to the appropriate

Congressional committee as soon as it becomes available. Comments on

the draft EIS and FRA's responses thereto shall be forwarded to the

appropriate Congressional committee(s).

(e) Changes and Supplements. Where, in the development of an FRA

action for which a draft or final EIS has been prepared, a significant

change is made which would alter environmental impacts, or where

significant new information becomes available regarding the

environmental impacts of such an FRA action, the Program Office shall

prepare an appropriate supplement to the original draft or final EIS

for that portion of the FRA action affected. Such a supplement shall be

processed in accordance with paragraphs (3) through (17) of subsection

(c) of this section. If a formal administrative record is required for

any FRA action for which a supplemental EIS is prepared, the

supplemental EIS shall be introduced into the formal administrative

record. The Program Office, in consultation with the FRA Office of

Chief Counsel, shall determine whether and to what extent any portion

of the proposed action is unaffected by the planning change or new

information. FRA decisionmaking on portions of the proposed action

having utility independent of the affected portion may go forward

regardless of the concurrent processing of the supplement.

(f) Representations of Mitigation. Where a final EIS has

represented that certain measures would be taken to mitigate the

adverse environmental impacts of an action, the FRA program office

shall monitor the action and, as necessary, take steps to enforce the

implementation of such measures. Where applicable, the Program Office

shall include appropriate mitigation measures as a condition to

financial assistance and as a provision of contracts. The program

office shall, upon request, inform cooperating and commenting agencies

on progress in carrying out mitigation measures they proposed and which

were adopted by FRA and shall also, upon request, make available to the

public the results of relevant monitoring.

(g) 4(f) Determinations. Where a 4(f) determination as well as an

EIS is required for a proposed FRA action, it shall be prepared in

accordance with section 12 of these Procedures and shall be integrated

with the draft and final EIS.

(h) Contents of an EIS. The specific contents of both a draft and

final EIS are prescribed by section 14 of these Procedures. Prescribed

format for or page limitations on EIS's shall be those set out in CEQ

1502.7 and 1502.10. An EIS shall be prepared so as to focus on the

significant issues, as identified by the environmental assessment and

the process of public comment, and so as to avoid extraneous data and

discussion. The text of an EIS should be written in plain language

comprehensible to a lay person, with technical material gathered into

appendices. Graphics and drawings, maps and photographs shall be used

as necessary to clarify the proposal and its alternatives. The sources

of all data used in an EIS shall be noted or referenced in the EIS.

14. Contents of an Environmental Impact Statement

To the fullest extent possible, the Program Office shall prepare

draft environmental impact statements concurrently with and integrated

with environmental impact analyses and related studies required by the

various environmental review laws and Executive Orders listed in

subsection (n) below.

In addition to the requirements of CEQ 1502.11 through 1502.18, and

subject to the general provisions of section 13(h) of these Procedures,

a draft or final EIS shall contain the following:

(a) If appropriate, identification of the document as containing a

4(f) determination made pursuant to section 4(f) of the Department of

Transportation Act, 49 U.S.C. 303(c).

(b) If appropriate, a citation to section 106 of the National

Historic Preservation Act, 16 U.S.C. 470(f).

(c) Identification of the FRA.

(d) The Program Office that prepared the document.

(e) The month and year of preparation of the document.

(f) In a draft EIS, the name and address of the person in the FRA

to whom comments on the document should be addressed, and the date by

which comments must be received to be considered.

(g) A list of those persons, organizations, or agencies assisting

the FRA in the preparation of the document.

(h) In a draft EIS, a list of agencies, organizations, and persons

to whom copies of the document are being sent.

(i) In a final EIS, a list of all agencies, organizations, or

persons from whom comments were received on the draft EIS.

(j) A table of contents.

(k) A brief statement of the purpose and need to which the

alternatives described in subsection (l) respond, including, where

applicable, the legislative authority on which it is based; and the

extent to which other Federal, State, or local agencies are funding or

otherwise participating in or regulating the alternatives.

(l) A description of all reasonable alternative courses of action

which could satisfy the purpose and need identified in subsection (k).

The description should include the ``no action'' alternative and

alternatives not currently within the authority of the FRA, as well as

a description of feasible mitigation measures which have not been

incorporated into the proposed action. The draft EIS may and the final

EIS shall identify which alternative is the proposed action.

(m) A short description of the environment likely to be affected by

the proposed action, by way of introduction to the environmental impact

analysis, including a list of all States, counties, and metropolitan

areas likely to be so affected.

(n) An analysis of the environmental impacts of the alternatives,

including the proposed action, if identified. The discussion under each

area of impact should cover the proposed action and all alternatives,

even if only to point out that one or more alternatives would have no

impact of that kind. Under each area of impact, the discussion should

focus on alternatives which might enhance environmental quality or

avoid some or all adverse impacts of the proposed action. Attachment 2

to DOT Order 5610.1C provides guidance on the contents of this section.

Analysis should be focused on areas of significant impact: beneficial

and adverse; direct, indirect, and cumulative; and both long-and short-

term. There should be evidence of consultation with appropriate

Federal, State and local officials. At a minimum, the following areas

should be considered in the environmental analysis, although their

discussion in the EIS is dependent on their relevance.

(1) Air quality. There should be an assessment of the consistency

of the alternatives with Federal and State plans for the attainment and

maintenance of air quality standards.

(2) Water quality. There should be an assessment of the consistency

of the alternatives with Federal and State standards concerning

drinking water, storm sewer drainage, sedimentation control, and non-

point source discharges such as runoff from construction operations.

The need for any permits under sections 402 and 404

[[Page 28555]]

of the Federal Water Pollution Control Act (33 U.S.C. 1342, 1344) for

the discharge of dredged or fill material shall be discussed.

(3) Noise and vibration. The alternatives should be assessed with

respect to applicable Federal, State, and local noise standards,

especially those enforced by the FRA for railroad equipment, yards and

facilities including 49 CFR Part 210 ``Railroad Noise Emission

Compliance Regulations.''

(4) Solid waste disposal. The alternatives should be assessed with

respect to State and local standards for sanitary landfill and solid

waste disposal.

(5) Natural ecological systems. The EIS should assess both

construction period and long-term impacts of the alternatives on

wildlife and vegetation in the affected environment. Where an

alternative proposes to control or modify a stream or other body of

water in some way, it shall contain evidence of consultation with the

U.S. Fish and Wildlife Service of the Department of the Interior and

with the agencies exercising administration over the wildlife resources

of affected States, as required by section 2(a) of the Fish and

Wildlife Coordination Act, 16 U.S.C. 662(a).

(6) Wetlands. In accordance with E.O. 11990 (May 24, 1977), and DOT

Order 5660.1A, the Program Office shall determine whether any of the

alternatives will be located in a wetland area. If so, the procedures

in DOT Order 5660.1A should be followed including consultation with the

appropriate representative of the Department of the Interior, and with

responsible Federal, State or local officials with special expertise,

concerning the impacts of the proposal on the wetland areas affected.

If the proposed action is located in a wetland area, the final EIS

shall document a determination that there is no practicable alternative

to such location, and that the proposed action includes all practicable

measures to minimize harm to wetlands which may result from such use.

(7) Endangered species. If applicable, the EIS shall discuss the

impacts of the alternatives on endangered or threatened species of

wildlife. The Department of the Interior lists such species in 50 CFR

Part 17. There should be evidence of consultation with the Department

of the Interior as required by section 7 of the Endangered Species Act,

16 U.S.C. 1536.

(8) Flood hazard evaluation and floodplain management. In

accordance with E.O. 11988 (May 24, 1977), and DOT Order 5650.2, the

Program Office shall determine whether any of the alternatives will

affect a base floodplain. Base floodplain limits shall be determined by

using Department of Housing and Urban Development floodplain maps, or,

if one or more are not available for a particular area, on the best

available information. If one or more alternatives will affect a base

floodplain, the draft EIS shall discuss: any risk associated with each

such alternative; the impacts on natural and beneficial floodplain

values; the degree to which the alternative supports incompatible

development in the base floodplain; and the adequacy of the methods

proposed to minimize harm. In the final EIS, this discussion should

concentrate on the proposed action. If the proposed action involves a

significant encroachment on a base floodplain, the final EIS shall

contain a finding, made in writing by the Administrator, that the

proposed significant encroachment is the only practicable alternative.

This finding shall be supported by a description of why the proposed

action must be located in the floodplain, including the alternatives

considered and why they were not practicable and accompanied by a

statement that the action conforms to applicable State and/or local

floodplain protection standards. This finding shall be provided to

interested parties. Guidance on the definition of significant

encroachment and other matters is provided in DOT Order 5650.2.

(9) Coastal zone management. If applicable, the EIS should discuss

to what extent the alternatives are consistent with approved coastal

zone management programs in affected States, as required by section

307(c)(2) of the Coastal Zone Management Act. 16 U.S.C. 1456(c)(2).

(10) Production and consumption of energy. The EIS shall assess in

detail any irreversible or irretrievable commitments of energy

resources likely to be involved in each alternative and any potential

energy conservation, especially those alternatives likely to reduce the

use of petroleum or natural gas, consistent with the policy outlined in

Executive Order 12185.

(11) Use of natural resources other than energy, such as water,

minerals, or timber. The EIS shall assess in detail any irreversible or

irretrievable commitments of these resources likely to be involved in

each alternative.

(12) Aesthetic environment and scenic resources. The EIS should

identify any significant changes likely to occur in the natural

landscape and in the developed environment. The EIS should also discuss

the consideration given to design quality, art, and architecture in

project planning and development as required by DOT Order 5610.4.

(13) Transportation. The EIS should assess the impacts on both

passenger and freight transportation, by all modes, from local,

regional, national, and international perspectives. The EIS should

include a discussion of both construction period and long-term impacts

on vehicular traffic congestion.

(14) Elderly and handicapped. The EIS shall assess impacts of the

alternatives on the transportation and general mobility of the elderly

and handicapped.

(15) Land use. The EIS should assess the impacts of each

alternative on local land use controls and comprehensive regional

planning as well as on development within the affected environment,

including, where applicable, other proposed Federal actions in the

area. Where inconsistencies or conflicts exist, this section should

describe the extent of reconciliation and the reason for proceeding

notwithstanding the absence of full reconciliation. As required by 42

U.S.C. 4332(2)(D)(iv), the Program Office shall provide early

notification to, and solicit the views of, any State or Federal land

management entity with respect to any alternative which may have

significant impacts upon such entity and, if there is any disagreement

on such impacts, prepare a written assessment of such impacts and views

for incorporation into the final EIS.

(16) Socioeconomic environment. The EIS should assess the number

and kinds of available jobs likely to be affected by the alternatives.

Also discussed should be the potential for community disruption or

cohesion, the possibility of demographic shifts, and impacts on local

government services and revenues. The need for and availability and

adequacy of relocation housing should be assessed, using as a guide

section 6 of Attachment 2 to DOT Order 5610.1C. The positive and

negative consequences of each alternative on commerce in the community

and its surrounding metropolitan area, specifically on existing

business districts and the immediate project areas should be analyzed.

(17) Public health.

(18) Public safety. The EIS should assess the transportation or use

of any hazardous materials which may be involved in the alternatives,

and the level of protection afforded residents of the affected

environment from construction period and long-term operations

associated with the alternatives.

[[Page 28556]]

(19) Recreation areas and opportunities. Impacts of the

alternatives on sites devoted to recreational activities should be

assessed, including impacts on non-site-specific activities, such as

hiking and bicycling, and impacts on non-activity-specific sites such

as designated ``open space''. Where land acquired with Federal grant

money such as Department of Housing and Urban Development ``open

space'' funds or Bureau of Outdoor Recreation ``land and water

conservation'' funds is involved, there should be evidence of

consultation with the grantor agency concerning the proposed action,

and of any approvals required by Section 6(f) of the Land and Water

Conservation Fund Act (16 U.S.C. 460l-8(f)).

(20) Environmental Justice. The EIS should address environmental

justice considerations as required by Executive Order 12898, ``Federal

Actions to Address Environmental Justice in Minority Populations and

Low-Income Populations'' and the DOT Order on Environmental Justice.

(21) Sites of historical, archeological, architectural, or cultural

significance. In accordance with section 106 of the National Historic

Preservation Act, 16 U.S.C. 470(f), the EIS shall identify all

properties which may be affected by the alternatives that are included

in or eligible for inclusion in the National Register of Historic

Places. For a property not included in the National Register, the

criteria for inclusion may be found in 36 CFR Part 60. There should be

evidence of consultation with the appropriate State Historic

Preservation Officer and in case of disagreement with the Department of

the Interior as to whether a property is eligible for the National

Register. The criteria of effect on historic properties found in 36 CFR

Part 800 should be discussed with regard to each alternative. In the

final EIS, there should be evidence of consultation, concerning the

impacts of the proposed action on historic properties, with the

appropriate State Historic Preservation Officer(s), and with State or

local historical societies, museums, or academic institutions having

special expertise. In the event that the FRA in consultation with the

State Historic Preservation Officer finds that a proposed action will

have an adverse effect on such property, there should also be evidence

in the final EIS of subsequent consultation with the Advisory Council

on Historic Preservation. A 4(f) determination may also be required in

the EIS, as provided in section 12 of these Procedures.

(22) Construction impacts. The EIS should identify and assess the

impacts associated with the construction period of each alternative, if

any.

(o) A summary of unavoidable adverse impacts of the alternatives

and a description of mitigation measures planned to minimize each

adverse impact. Impacts and mitigation measures should be identified in

this table as either long-term, short-term, or construction-period. If

a proposed action will have an adverse effect on a property included in

or eligible for inclusion in the National Register of Historic Places,

this part of the final EIS shall include a copy of any Memorandum of

Agreement with, or other response to comments by, the Advisory Council

on Historic Preservation, in accordance with 36 CFR Part 800. This part

of the EIS should also include a summary of any irreversible or

irretrievable commitments of resources and any foreclosures of future

options that would be likely to result from the alternatives.

(p) A brief discussion of the relationship between local short-term

uses of the environment affected by the alternatives, and the

maintenance and enhancement of long-term productivity in that

environment.

(q) Any 4(f) determination covering the same proposed action as the

EIS.

(r) A compilation of all applicable Federal, State and local

permits, licenses, and approvals which are required before the proposed

action may commence. The final EIS should reflect that there has been

compliance with the requirements of all applicable environmental laws

and orders. If such compliance is not possible by the time of final EIS

preparation, the EIS should reflect consultation with the appropriate

agencies and provide reasonable assurance that the requirements can be

met.

(s) In a final EIS, a compilation of all responsible comments

received on the draft EIS, whether made in writing or at a public

hearing, and responses to each comment. Comments may be collected and

summarized except for comments by Federal agencies and where otherwise

required by Federal law or regulation. Every effort should be made to

resolve significant issues before the EIS is put into final form. The

final EIS should reflect such issues, consultation and efforts to

resolve such issues, including an explanation of why any remaining

issues have not been resolved.

(t) An index, if possible and useful.

(u) Signature and date indicating the approval of the Administrator

as required by section 13(c) of these Procedures.

15. Record of Decision

(a) General. The Program Office shall prepare a draft record of

decision at the point in which the FRA is prepared to make a final

decision on the proposed action. The timing of the agency's decision

shall follow the requirements of CEQ 1506.10. The record of decision

shall follow the same approval process as the final EIS, as described

in section 13(c)(12) through (16) of these Procedures.

(b) Contents. The draft record of decision shall include a

description of the proposed action and the environmental information

specified in CEQ 1505.2 as well as proposed findings pursuant to

section 4(f), the DOT Wetlands Order (DOT 5660.1A), and the DOT

Floodplains Order (DOT 5650.2), as appropriate.

(c) Changes. If the Administrator, or his or her designee, wishes

to take an action which was not identified as the preferred action in

the final EIS, or proposes to make substantial changes in the

mitigation measures or findings discussed in the draft record of

decision, the revised record of decision shall be processed internally

in the same manner as EIS approval, in accordance with section 13(c) of

these Procedures.

16. Effective Date

These Procedures were effective as of July 30, 1979 and apply to

all FRA actions undertaken after that date.

Dated: May 18, 1999.

Jolene M. Molitoris,

Administrator.

[FR Doc. 99-13262 Filed 5-25-99; 8:45 am]

BILLING CODE 4910-62-U