# 85 FR 74640: Procedures for Considering Environmental Impacts

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-25030

## Section

- **Citation:** 85 FR 74640
- **Heading:** Procedures for Considering Environmental Impacts
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 85 / 85 FR 74640

## Text

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).

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
t 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 www.transportation.gov/privacy.
FOR FURTHER INFORMATION CONTACT:
April Marchese, Director, Infrastructure Permitting Improvement Center, 202-366-4416, april.marchese@dot.gov or Krystyna Bednarczyk, Office of the General Counsel, 202-366-5283, Krystyna.bednarczyk@dot.gov.

SUPPLEMENTARY INFORMATION:
I. Introduction
A
ation the commenter provides, to www.regulations.gov, as described in www.transportation.gov/privacy.
FOR FURTHER INFORMATION CONTACT:
April Marchese, Director, Infrastructure Permitting Improvement Center, 202-366-4416, april.marchese@dot.gov or Krystyna Bednarczyk, Office of the General Counsel, 202-366-5283, Krystyna.bednarczyk@dot.gov.

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
nd 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
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.
1 Available at https://www.transportation.gov/sites/dot.gov/files/docs/Procedures_Considering_Environmental_Impacts_5610_1C.pdf.
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
s 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
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
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)
educe 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 1985 Procedures Section Proposed subpart Proposed section Introduction 1. Purpose 2. Cancellation A Removed 13.1. Removed. 3. Authority B; Appendix C of part 13 13.7(d); Appendix C of 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 b. Environmental Impact Statements A B 13.3. 13.23. c. Categorical Exclusions B; Appendix A of part 13 13.17; Appendix A of part 13. d. Environmental Assessment e. Exemptions B Removed 13.19. Removed. 5. Finding of No Significant Impact (FONSI) B 13.21. 6. Lead Agencies and Cooperating Agencies B 13.11. 7
Planning and Early Coordination B 13.9. 4. Environmental Processing Choice a. Action Covered b. Environmental Impact Statements A B 13.3. 13.23. c. Categorical Exclusions B; Appendix A of part 13 13.17; Appendix A of part 13. d. Environmental Assessment e. Exemptions B Removed 13.19. Removed. 5. Finding of No Significant Impact (FONSI) B 13.21. 6. Lead Agencies and Cooperating Agencies B 13.11. 7. Preparation and Processing of Draft Environmental Impact Statements (DEISs) a. Scope of Statement b. Timing of Preparation of Draft Statements B B 13.23(c). 13.25(a). c. Interdisciplinary Approach and Responsibility for EIS Preparation B 13.13(d). d. Preparation of Draft e. Format and Content Removed B 13.13(a); Appendix C. 13.23(e). f. Circulation of the Draft Environmental Impact Statement B 13.25(c). g. Tiering B 13.13(f). B B 13.25(b). 13.23(f). 13.23(g). 8. Inviting Comments on the DEIS a. State and Local Review b. Review of EISs Prepared Pursuant to Section 102(2)(D) of NEPA B B 13.25(c). 13.23(d). 9. Review of Environmental Impact Statements Prepared by Other Agencies Removed Removed. 10. Predecision Referrals to the Council on Environmental Quality a. DOT Lead Agency Proposals b. DOT Referrals to CEQ on Other Agencies' Proposals B B 13.13(e)(2)(i). 13.13(e)(2)(ii). 11. Final Environmental Impact Statements a. Preparation b. Compliance with Other Requirements A; B; Appendix C of part 13 13.27(a). 13.5; 13.13(a);13.27(b); Appendix C of part 13. c. Legal Review d. Approval B B 13.7. 13.27(e). e. Availability Pending Approval Removed Removed. f. Availability of Statements to EPA and the Public B 13.25(h)-(i); 13.27(g). g. Implementation of Representations in Environmental Statements B 13.13(g). h. Supplemental Statements B B 13.33(b). 13.27(b). 12. Determinations under Section 4(f) of the DOT Act Removed Removed. 13. Responsibility B 13.7. 14. Citizen Involvement Procedures B 13.13(h). 15. Proposals for Legislation a. Preparation b. Processing B B 13.37(a). 13.37(b). 16. International Actions B 13.39. 17
.27(g). g. Implementation of Representations in Environmental Statements B 13.13(g). h. Supplemental Statements B B 13.33(b). 13.27(b). 12. Determinations under Section 4(f) of the DOT Act Removed Removed. 13. Responsibility B 13.7. 14. Citizen Involvement Procedures B 13.13(h). 15. Proposals for Legislation a. Preparation b. Processing B B 13.37(a). 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 of the Secretary Actions B 13.7. Attachment 1. State and Localities with EIS Requirements Removed Removed. Attachment 2. Format and Content of Environmental Impact Statements Removed Removed. B B B 13.29. 13.31. 13.35. 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 §§ 13.1 and 13.5. Proposed subpart A would significantly reorganize and update section 2 of the 1985 procedures, “Policy and Intent,” in proposed § 13.5 to reflect current policy and intent of the DOT NEPA procedures
d 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 §§ 13.1 and 13.5. Proposed subpart A would significantly reorganize and update section 2 of the 1985 procedures, “Policy and Intent,” in proposed § 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 §§ 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 (§ 13.5(a)); (2) use the NEPA process as an umbrella to achieve a single, integrated environmental review process 2 (§ 13.5(b)); (3) use sound science and reliable data (§ 13.5(c)); (4) facilitate a collaborative process to achieve optimal outcomes while protecting and enhancing the environment (§ 13.5(d)); and (5) ensure meaningful public participation and collaboration (§ 13.5(e)).
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.
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
his 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.
§ 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
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
mprovement 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 § 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
ized. 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. ).
§ 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:
ent 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).
ent 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.
§ 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
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
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
§ 13.7 Managing NEPA Compliance
Proposed § 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
action. See 40 CFR 1500.3(c) and 85 FR at 43318.
B. Subpart B—NEPA Review Process
§ 13.7 Managing NEPA Compliance
Proposed § 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 § 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
ures 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 § 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 § 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 § 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
ions 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.
§ 13.9 Planning and Early Coordination
Proposed § 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
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
§ 13.11 Lead, Cooperating, and Participating Agencies
Proposed § 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
, 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.
§ 13.13 General Principles for the NEPA Review Process
This proposal would include a new proposed § 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
o 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 (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
ing 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
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
actions on the Permitting Dashboard, www.permits.performance.gov. The DOT Reporting Standards 3 clarify which OAs and which projects must be tracked. Currently the DOT Reporting Standards require the Federal Highway Administration, Federal Transit Administration, Federal Railroad Administration, and Federal Aviation Administration (including Stage agencies with NEPA assignment pursuant to 23 U.S.C. 327) to track all EAs and EISs for infrastructure projects. In addition, the DOT Reporting Standards reflect the E.O. 13807 requirement that all OAs must track major infrastructure projects, as that term is defined in E.O. 13807. These reporting standards have been subject to modification since first established in 2016 and may be subject to additional revisions in the future. Accordingly, the proposed rule would include only a high-level reference to the reporting requirements, while the specifics are addressed in the Reporting Standards to make it easier to revise as necessary.
3 The DOT Reporting Standards are available at: http://www.transportation.gov/transportation-policy/permittingcenter/federal-permitting-dashboard-reporting-standard.
§ 13.15 Determination of the Level of NEPA Review
Proposed § 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 §§ 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
, 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.
§ 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
lusions.” 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)
endix 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
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
d 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)
ion 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
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.
§ 13.19 Environmental Assessments
Proposed § 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)
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)
nmental 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
§ 13.21 Findings of No Significant Impact
Proposed § 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
ices 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.
§§ 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 § 13.23, and address requirements specific to draft EISs (DEISs) in proposed § 13.25, and FEISs in proposed § 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 § 13.9.
Proposed paragraph (a) of proposed § 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
Statements.” However, generally applicable instructions from these provisions in the 1985 procedures would be addressed in proposed § 13.9.
Proposed paragraph (a) of proposed § 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
ontent 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
et 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.
§ 13.25 Draft Environmental Impact Statements
As noted in the discussion of proposed § 13.23, proposed § 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 See 40 CFR 1503.1(c).
§ 13.27 Final Environmental Impact Statements
As noted in proposed § 13.23, proposed § 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
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
n 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
f 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.
§ 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 § 13.29 clarifies that the OA should issue a single ROD with the other Federal agencies. Furthermore, for expediency, proposed § 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
he 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.
§ 13.31 Adoption
Proposed § 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)
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
§ 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 § 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
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).
§ 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 § 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 § 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
or consulting with CEQ concerning emergencies.
Proposed § 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.
§ 13.37 Environmental Impact Statements for Legislative Proposals
Proposed § 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,”
§ 13.39 International Actions
Proposed § 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
equirements 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 § 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
o 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
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
al 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
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
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).
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
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.
(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
n 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.
ded 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
ified 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
§ 13.1 Applicability. (a) Pursuant to the National Environmental Policy Act, 42 U.S.C
ns 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
§ 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

§ 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:
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

§ 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 § 1.3(b) of this subtitle, or an office within the Office of the Secretary of Transportation (OST).

§ 13.5 Environmental review policy. The policies in paragraphs (a) through (e) of this section govern the consideration of environmental impacts at DOT:
application of a CE to a proposed action.
(e) Operating Administration (OA) means any agency established within the Department, as listed in § 1.3(b) of this subtitle, or an office within the Office of the Secretary of Transportation (OST).

§ 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.
ocess, 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
§ 13.7 Managing NEPA compliance. (a) Responsibility. Pursuant to § 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.
versees 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));
nmental 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 Federal Register for public comment and provide notice of final new or revised implementing procedures.
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 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.

§ 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.
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.

§ 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 § 13.19(b) for EAs and § 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.
nvironmental 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 inter

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-25030. Check the current official text before relying on it. Not legal advice.