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Rule2026-17904

National Environmental Policy Act Regulations

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Published

September 1, 2026

Effective

September 1, 2026

Issuing agencies

Transportation DepartmentFederal Highway AdministrationFederal Railroad AdministrationFederal Transit Administration

Abstract

FHWA, FRA, and FTA (collectively referred to as the "Agencies") are finalizing the interim final rule (IFR) published on July 3, 2025, which revised the Agencies' National Environmental Policy Act (NEPA) of 1969 implementing regulations in light of the removal of the Council on Environmental Quality (CEQ) regulations, the amendments to NEPA included in the section of the Fiscal Responsibility Act (FR Act) of 2023, known as the Building United States Infrastructure through Limited Delays and Efficient Reviews (BUILDER) Act of 2023, amendments regarding efficient environmental reviews included in the Infrastructure Investment and Jobs Act (IIJA) of 2021, and the Supreme Court decision in Seven County Infrastructure Coalition. The Agencies provided a 30-day comment period for the public to review and comment on the IFR. This final rule addresses public comments received and finalizes the IFR with minor technical changes.

Full Text

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<title>Federal Register, Volume 91 Issue 168 (Tuesday, September 1, 2026)</title>
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[Federal Register Volume 91, Number 168 (Tuesday, September 1, 2026)]
[Rules and Regulations]
[Pages 56029-56049]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-17904]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 771

Federal Railroad Administration

49 CFR Part 264

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2025-0007]
RIN 2125-AF80; 2130-AD05; 2132-AB51

National Environmental Policy Act Regulations

ACTION: Final rule.

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AGENCY: Federal Highway Administration (FHWA), Federal Railroad
Administration (FRA), Federal Transit Administration (FTA), U.S.
Department of Transportation (DOT).

SUMMARY: FHWA, FRA, and FTA (collectively referred to as the
``Agencies'') are finalizing the interim final rule (IFR) published on
July 3, 2025, which revised the Agencies' National Environmental Policy
Act (NEPA) of 1969 implementing regulations in light of the removal of
the Council on Environmental Quality (CEQ) regulations, the amendments
to NEPA included in the section of the Fiscal Responsibility Act (FR
Act) of 2023, known as the Building United States Infrastructure
through Limited Delays and Efficient Reviews (BUILDER) Act of 2023,
amendments regarding efficient environmental reviews included in the
Infrastructure Investment and Jobs Act (IIJA) of 2021, and the Supreme
Court decision in Seven County Infrastructure Coalition. The Agencies
provided a 30-day comment period for the public to review and comment
on the IFR. This final rule addresses public comments received and
finalizes the IFR with minor technical changes.

DATES: Effective on September 1, 2026.

FOR FURTHER INFORMATION CONTACT: For FHWA: Megan Cogburn, Office of
Planning, Environment, and Realty, (202) 893-5850, or via email at
<a href="/cdn-cgi/l/email-protection#44092123252a6a072b232631362a04202b306a232b32">[email&#160;protected]</a>; Diane Mobley, Office of the Chief Counsel, (202)
366-1366, or via email at <a href="/cdn-cgi/l/email-protection#b4f0ddd5dad19af9dbd6d8d1cdf4d0dbc09ad3dbc2">[email&#160;protected]</a>; For FRA: Lana Lau,
Office of Environmental Program Management, (202) 923-5314, or via
email at <a href="/cdn-cgi/l/email-protection#8fc3eee1eea1c3eefacfebe0fba1e8e0f9">[email&#160;protected]</a>; Faris Mohammed, Office of the Chief Counsel,
(202) 763-3230, or via email at <a href="/cdn-cgi/l/email-protection#0147607368722f4c6e69606c6c646541656e752f666e77">[email&#160;protected]</a>; For FTA: Megan
Blum, Office of

[[Page 56030]]

Environmental Policy and Programs, (202) 809-4701, or via email at
<a href="/cdn-cgi/l/email-protection#430e2624222d6d012f362e03272c376d242c35">[email&#160;protected]</a>; Mark Montgomery, Office of the Chief Counsel, (505)
820-2061, or via email at <a href="/cdn-cgi/l/email-protection#f2bf938099dcbf9d9c86959d9f97808bb2969d86dc959d84">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

I. Background

The Agencies are finalizing the IFR published on July 3, 2025 (90
FR 29426), which revised their regulations at 23 CFR part 771 (Part
771) implementing NEPA (42 U.S.C. 4321-4347, as amended). The
regulations at Part 771 were promulgated in 1974 based upon FHWA's
guidelines for implementing NEPA, first issued on November 30, 1970
(see 36 FR 23666, 23696; December 11, 1971, and 39 FR 41804; December
2, 1974) and subsequently amended several times. After the CEQ issued
NEPA implementing regulations (CEQ regulations) in 1978 (43 FR 55978;
November 29, 1978), Part 771 was considered a supplement to the CEQ
regulations.
In 2025, Executive Order (E.O.) 14154, Unleashing American Energy
(90 FR 8353; January 29, 2025), rescinded E.O. 11991, Relating to
Protection and Enhancement of Environmental Quality (42 FR 26967; May
24, 1977), which directed CEQ to issue regulations implementing NEPA
and required Federal agencies to comply with those rules. CEQ's
regulations were removed, effective April 11, 2025. See Removal of
National Environmental Policy Act Implementing Regulations (90 FR
10610; February 25, 2025). CEQ finalized the withdrawal of its
regulations by adopting its IFR in a Final Rule issued January 8, 2026
(91 FR 618).
As a result of the foregoing, the Agencies removed cross-references
to the removed CEQ regulations in Part 771 through the IFR. The
Agencies previously followed the procedures contained in the removed
CEQ regulations for any topics not addressed by Part 771. The Part 771
regulations stand on their own.
In addition to removing cross-references to the CEQ regulations,
the Agencies revised Part 771 to reflect the amendments to NEPA
included in the section of the FR Act of 2023 known as the BUILDER Act
of 2023, Public Law 118-5, Div. C, Tit. III, Section 321 (June 3, 2023)
(NEPA Amendments), which streamlined the environmental review process
for all Federal Agencies. Part 771 also reflects amendments to 23
U.S.C. 139 and 203(e), regarding efficient environmental reviews, and
applicable to the Agencies only, included in the IIJA, Public Law 117-
58 (November 15, 2021).
This final rule makes further minor technical changes to Part 771
based on comments received in response to the IFR and following
additional consideration by the Agencies regarding necessary changes to
the regulations. Technical changes made in response to public comments
are discussed in Section II (Comments).
The additional technical changes the Agencies determined were
necessary include adding and revising relevant authorities in 23 CFR
771.123(b)(1) to read ``23 U.S.C. 139(f), 168, 169, 23 CFR 450.212, 23
CFR 450.318, or 23 CFR 450 Appendix A, as applicable.'' The Agencies
also updated FHWA and FTA categorical exclusions (CE) found at 23 CFR
771.117(c)(23) and 23 CFR.771.118(c)(13) to incorporate the monetary
threshold for projects receiving limited Federal assistance in
accordance with Section 11317 of IIJA, which amended Section 1317(1) of
the Moving Ahead for Progress in the 21st Century Act (MAP-21), 23
U.S.C. 109 note; Public Law 112-141. Effective in the fiscal year of
October 1, 2021, the monetary limits for the CE for projects of limited
Federal assistance are defined as (1) Projects receiving less than
``$6,000,000'' of Federal funds, or (2) Projects with a total estimated
cost less than ``$35,000,000'' and Federal funding of less than 15
percent of total estimated project cost. Accordingly, the limited
Federal assistance CEs were amended by striking ``$5,000,000'' and
``$30,000,000'' from clauses 771.117(c)(23)(i) and (ii), and
771.118(c)(13)(i) and (ii), respectively, and inserting ``$6,000,000''
and ``$35,000,000.'' Finally, the Agencies made nonsubstantive
grammatical changes or changes for clarity in 23 CFR 771.101, 23 CFR
771.138, and 23 CFR 771.113.
The Agencies may seek future changes to Part 771 through a
deregulatory rulemaking effort to further expedite the environmental
review process and reduce additional burdens on regulated parties.

II. Comments

The Agencies received 1,991 comments in the docket in response to
the IFR but only 244 unique comments. The Agencies considered the
comments and respond to the issues raised by the comments in this final
rule. Summaries of and responses to these comments, including minor
technical changes to the regulation text, are provided in this section.
Many of the comments proposed various substantive edits and changes
to Part 771. The Agencies appreciate and acknowledge these comments but
decline to make the suggested substantive changes at this time because
they are outside the scope of this rulemaking effort, which is limited
to technical changes. However, such comments will be retained and
considered for future rulemaking efforts.

General Comments on the Interim Final Rule

Comment: Several commenters expressed general support for the IFR.
These commenters praised the Agencies' effort to clarify the Agencies'
NEPA procedures and requirements given the removal of the CEQ
regulations, as well as to reflect amendments to NEPA included in the
FR Act, and amendments to 23 U.S.C. 139 and 203(e) included in IIJA.
Response: The Agencies acknowledge and appreciate these supportive
comments.
Comment: A number of commenters opposed the IFR changes, broadly
noting their concerns over diminishing NEPA's intended purpose,
reducing public input, increasing risks to wildlife habitats, and
impacting Tribal and treaty rights.
Response: The Agencies are committed to complying with NEPA by
analyzing alternatives to a proposed Agency action, ensuring meaningful
public participation, and identifying the range of impacts to the
environment as a result of the proposed alternatives, in line with
statutory requirements. The Agencies made only technical changes to
reflect the removal of the CEQ regulations as well as the amendments to
NEPA included in the FR Act, and amendments to 23 U.S.C. 139 and 203(e)
included in IIJA. Part 771 retains procedures for public involvement
and thorough environmental analysis proportional to project impacts.
Respect for Tribal sovereignty and treaty rights will be upheld
consistent with applicable law, including NEPA.

Comments on the Agencies' Rationale for Issuing an IFR

Comment: Several commenters disagreed that the Agencies had good
cause under 5 U.S.C. 553(b)(B) to waive the Administrative Procedure
Act (APA) notice and comment requirements or waive the 30-day delay of
the effective date to make the rule effective immediately under 5
U.S.C. 553(d)(3). These comments asserted that the Agencies failed to
demonstrate that an emergency or other exceptional circumstances
existed or that the application of the APA's notice and comment
requirements were

[[Page 56031]]

``impractical, unnecessary, or contrary to the public interest.''
Several commenters also requested additional time to review and comment
on the Part 771 updates.
Response: As stated in the IFR, the technical, non-discretionary
nature of the changes and expeditious need to update Part 771 to
conform with statutory changes warranted application of the good cause
exception to bypass notice and the opportunity for public comment and
make the rule effective immediately. The Agencies made only technical
changes to reflect the removal of the CEQ regulations, as well as the
amendments to NEPA included in the FR Act, and amendments to 23 U.S.C.
139 and 203(e) included in IIJA. Under the APA, the requirement for
prior notice and opportunity for public comment does not apply when the
Agency, for good cause, finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest,'' 5
U.S.C. 553(b)(B). The Agencies determined that notice and opportunity
for public comment were unnecessary due to the technical, non-
discretionary nature of the changes and the urgent need to update Part
771 to reflect the removal of the CEQ regulations, which the Agencies
had previously relied upon when they drafted Part 771. In addition, the
Agencies found Part 771 contained elements that were no longer
substantively supported and thus notice and opportunity for public
comment would have been contrary to the public interest given the
number of environmental reviews underway across the Agencies' programs.
In order to remedy the unpredictability and regulatory inconsistency
created by the removal of the CEQ regulations and the other statutory
changes quickly, the Agencies made only necessary technical changes in
this rulemaking effort. By limiting the changes to technical changes,
the changes could be implemented immediately, and environmental reviews
could continue without delay.
Nevertheless, the Agencies elected to solicit comments out of an
abundance of caution and for reasons of good government. The Agencies
considered all comments received, including the comments received after
the deadline.
Comment: Several commenters opposed the IFR changes based on
perceived reliance on the 2020 CEQ regulations, describing those
regulations as legally flawed and insufficient in scope. Commenters
urged alignment with CEQ's 2023 final rule, which restored broader
environmental review elements such as cumulative and indirect impact
analyses.
Response: The Agencies did not rely on any version of the CEQ
regulations. The Agencies made only technical changes to the Agencies'
NEPA procedures to reflect the removal of the CEQ regulations, as well
as the amendments to NEPA, the FR Act, and amendments to 23 U.S.C. 139
and 203(e) included in IIJA. The Agencies will continue to coordinate
with the CEQ and other agencies to promote best practices in NEPA
reviews.
Comment: Some commenters raised concerns over the Supreme Court's
decision in Seven County Infrastructure Coalition v. Eagle County,
Colorado, 605 U.S. 168, 145 S. Ct. 1497 (2025) (Seven County), and
revisions to Part 771 based on the ruling.
Response: On May 29, 2025, the Supreme Court issued its decision in
Seven County. The Agencies reflected the outcome of the decision in the
IFR by noting that NEPA is a ``purely procedural statute.'' (90 FR
29429; Seven County, 145 S. Ct. at 1507, 1511). CEQ has issued
guidance, Implementation of the National Environmental Policy Act
(September 29, 2025), superseding guidance of the same name it had
issued on February 19, 2025, that addressed amendments to NEPA and
discussed aspects of the Seven County decision, including that NEPA is
``purely procedural.'' This covers the extent the Seven County decision
was included in the Agencies' technical changes to Part 771, which were
made primarily to reflect the removal of the CEQ regulations, as well
as statutory changes from the amendments to NEPA, the FR Act, and
amendments to 23 U.S.C. 139 and 203(e) included in IIJA.

Comments Related to Impacts on the NEPA Process

Comment: Several commenters expressed concern over the technical
changes to Part 771 and suggested that these changes would make it more
difficult to coordinate compliance with other applicable laws and
statutes outside of NEPA.
Response: The Agencies made no substantive changes with respect to
the coordination required to comply with other environmental laws or
requirements, nor the Agencies' obligations under other statutory
coordination requirements.
Comment: Several commenters pointed to risks of inconsistent NEPA
procedures across Federal Agencies and other agency partners
complicating multimodal projects, causing delays, or generating
conflicting requirements because of the IFR changes.
Response: Part 771 outlines joint NEPA procedures for Federal
railroad, transit, and highway projects and is intended to increase
coordination and consistency for multimodal projects and across
programs. As applicable, Part 771 continues to require or recommend
coordination with Federal Agencies and other agency partners, including
those outside of the DOT:
<bullet> Sections 771.109(c) and 771.111 discusses coordination
with Federal Agencies and facilitation of early communication between
agency partners. For environmental impact statements (EIS), a
coordination plan is required in section 771.123(b)(2).
<bullet> Section 771.141, Reliance and Adoption Efficiencies,
outlines the circumstances under which any other Federal Agency may
rely on the Agencies' NEPA documents as if they were their own, thereby
reducing delay. Section 771.105(a) declares that all environmental
investigations, reviews, and consultations should be coordinated as a
single environmental review process and in a single environmental
document to the maximum extent practicable.
Comment: Several commenters expressed concern regarding public
involvement, with some commenters suggesting that the Agencies made
substantive changes to the Agencies' public involvement procedures and
requirements.
Response: The Agencies made no substantive changes to public
involvement requirements or procedures. Public involvement remains an
essential part of the Agencies' NEPA process in accordance with 23 CFR
771.105(d), and early coordination and public involvement remain a
requirement in 23 CFR 771.111. Project sponsors may, at their
discretion, supplement these requirements commensurate with project
complexity, controversy, or public interest.
Comment: Several commenters expressed concern over the removal of
considerations for environmental justice (EJ) impacts in the
environmental review process.
Response: On January 20, 2025, President Trump signed E.O. 14148,
Initial Rescissions of Harmful Executive Orders and Actions, and E.O.
14154, Unleashing American Energy. These E.O.s revoked E.O. 14096,
Revitalizing Our Nation's Commitment to Environmental Justice for All
(April 21, 2023). On January 21, 2025, President Trump signed E.O.
14173, Ending Illegal Discrimination and Restoring Merit-Based
Opportunity. This E.O. revoked

[[Page 56032]]

E.O. 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations (February 11, 1994).
The Agencies made technical corrections to Part 771 to reflect the
removal of the CEQ regulations, as well as to incorporate amendments to
NEPA as part of the FR Act, and amendments to 23 U.S.C. 139 and 203(e)
included in IIJA. Per 23 CFR 771.105(c), the Agencies will evaluate
alternatives and make decisions that consider the reasonably
foreseeable social, economic, and environmental impacts of the proposed
transportation improvement, consistent with applicable law.
Comment: Several commenters expressed concern over the removal of
consideration for impacts related to greenhouse gas emissions and
climate change in the environmental review process.
Response: On January 20, 2025, President Trump signed E.O. 14148,
Initial Rescissions of Harmful Executive Orders and Actions, and E.O.
14154, Unleashing American Energy. These E.O.s revoked E.O. 13990,
Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis (January 20, 2021) and E.O. 14008, Tackling
the Climate Crisis at Home and Abroad (January 27, 2021). Subsequently
on January 29, 2025, Secretary Duffy signed a memorandum for
Secretarial Officers and Heads of Operating Administrations,
Implementation of Executive Orders Addressing Energy, Climate Change,
Diversity, and Gender.
The Agencies made technical corrections to Part 771 to reflect the
removal of the CEQ regulations, as well as to incorporate amendments to
NEPA as part of the FR Act, and amendments to 23 U.S.C. 139 and 203(e)
included in IIJA. Per 23 CFR 771.105(c), the Agencies will evaluate
alternatives and make decisions that consider the reasonably
foreseeable social, economic, and environmental impacts of the proposed
transportation improvement, consistent with applicable law.
Comment: Several commenters raised concerns over the lack of
requirements to analyze cumulative and indirect environmental impacts.
Commenters emphasized that such analyses are critical for evaluating
climate change impacts, EJ considerations, and protection of cultural
and historic resources.
Response: The terms direct, indirect, and cumulative effects were
defined in the CEQ regulations, which have been removed. The Agencies
made only technical changes to Part 771 to reflect the removal of the
CEQ regulations, as well as to incorporate amendments to NEPA as part
of the FR Act, and amendments to 23 U.S.C. 139 and 203(e) included in
IIJA. For consistency with the NEPA statute, which does not use the
terms direct, indirect, or cumulative effect, the final rule uses the
term ``reasonably foreseeable'' to refer to the statutory NEPA standard
for evaluating the social, economic, and environmental impacts of
proposed transportation improvements. The Agencies will evaluate
alternatives and make decisions that consider all effects that are
reasonably foreseeable, including the social, economic, and
environmental impacts of a proposed transportation improvement.
Comment: Several commenters raised concern with the ``reasonably
foreseeable'' standard for assessing environmental impacts and
requested that the Agencies define the term for clarity.
Response: For consistency with the NEPA statute, the final rule
uses the term ``reasonably foreseeable'' to refer to the standard for
evaluating the social, economic, and environmental impacts of proposed
transportation improvements. This term applies across the Federal
Government and is being added to Part 771 in this final rule to ensure
consistency between the Agencies and other Federal Agencies.
Since publication of the IFR, CEQ has defined the term ``reasonably
foreseeable'' via an appendix to guidance \1\ issued on September 29,
2025. The Agencies decline to define ``reasonably foreseeable effects''
in Part 771 because substantive changes are outside the scope of this
rulemaking. However, the Agencies may consider defining this term in a
future rulemaking.
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\1\ CEQ's guidance is posted at <a href="https://www.whitehouse.gov/articles/2025/09/ceq-releases-guidance-to-streamline-nepa-reviews/">https://www.whitehouse.gov/articles/2025/09/ceq-releases-guidance-to-streamline-nepa-reviews/</a>.
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Comments Requesting Further Changes and Flexibilities in the NEPA
Process

Comment: Some commenters proposed including non-major Federal
actions in Part 771 in response to the request for suggestions from the
Agencies in the IFR. Additional comments requested that the Agencies
define ``non-major Federal actions.''
Response: The Agencies appreciate and acknowledge the comments and
will reserve and consider them for a future rulemaking. The Agencies
decline the proposed substantive changes at this time because they are
outside the limited scope of this rulemaking effort. The Agencies made
only technical changes to Part 771 to reflect the removal of the CEQ
regulations, FR Act amendments to NEPA, and amendments to 23 U.S.C. 139
and 203(e) included in IIJA. NEPA defines a ``major Federal action'' by
reference to the degree of Federal control and responsibility, 42
U.S.C. 4336e. The Agencies will continue to distinguish major Federal
actions and non-major Federal actions consistent with applicable law.
Comment: Several commenters requested the Agencies update their CEs
and implement efficiencies more broadly with respect to CE
determinations.
Response: The Agencies appreciate and acknowledge comments
requesting updated CEs and broader CE efficiencies but decline the
suggested changes because they are outside the scope of this rulemaking
effort, which is focused on technical changes. The Agencies will
reserve and consider the comments regarding CE efficiencies for a
future rulemaking but continue to support efficient processing of
routine projects that qualify for CEs and will assess potential
flexibilities to promote efficiency in the NEPA process.
Comment: Some commenters requested flexibilities in the public
involvement process, such as removing the requirement to provide public
notice through local newspapers and instead providing alternative means
to provide notice.
Response: The Agencies appreciate and acknowledge comments
requesting changes to public involvement requirements and procedures
but decline to make such changes in this final rule because substantive
changes are beyond the scope of this rulemaking effort. The Agencies
will reserve and consider the removal of newspaper requirement for a
future rulemaking. Regardless of the newspaper requirement, several
sections throughout Part 771 already encourage the use of project
websites or other publicly accessible electronic means to make the
environmental document available while minimizing hardcopy requests and
printing costs.
Comment: Several commenters recommended that DOT set a timeline of
less than the one year for CE determinations and implement reporting
procedures for delays.
Response: The Agencies recognize the value of timely environmental
reviews to promote efficient project delivery. The relevant statutory
authorities are silent on timelines for completing CE determinations,
and the Agencies decline to set a timeline for CE determinations
because substantive changes are outside the scope of this

[[Page 56033]]

rulemaking effort. In addition, compliance with other statutory
requirements may require additional time and documentation but the
Agencies will continue to evaluate process improvements.
Comment: Several commenters recommended tracking and reporting
milestones such as the time from award notification for discretionary
grant program projects to environmental clearance completion to provide
transparency to grantees and congressional oversight committees.
Response: The Agencies value transparency and recognize
congressional interest in project delivery metrics, and the Agencies
will continue to provide tracking information and reports as required
by law. This includes providing environmental assessment (EA) and EIS
project information on the Permitting Dashboard for Federal
Infrastructure Projects, available at <a href="https://www.permits.performance.gov">https://www.permits.performance.gov</a>. However, the Agencies decline to make
further changes in this final rule because substantive changes are
outside the scope of this rulemaking. The Agencies appreciate and
acknowledge the comments and will reserve and consider them for a
future rulemaking.
Comment: One commenter requested that the Agencies provide more
detail in 23 CFR 771.115(b)-(c) to differentiate between the EA and CE
classes of action. The current language in paragraph (b) provides that
a CE applies to actions that normally do not have a significant
environmental effect and is excluded from the requirement to prepare an
EA or EIS. The current language in paragraph (c) provides that an EA
applies to actions that do not have reasonably foreseeable significant
effects on the quality of the human environment or for which the
significance of an environmental impact is unknown. Per the commenter,
it is difficult to distinguish between the two classes of actions
because the language in 23 CFR 771.115(b)-(c) suggests that both the EA
and CE classes of action apply to actions that do not have a
``reasonably foreseeable significant effect.''
Response: After careful examination of the language in 23 CFR
771.115(b)-(c), the Agencies agree the language should be revised to
distinguish the difference between EAs and CEs as classes of action
more clearly. Accordingly, the Agencies are revising the language in 23
CFR 771.115(c) to make clear that an EA applies to ``[a]ctions that do
not have reasonably foreseeable significant effects on the quality of
the human environment but that cannot be categorically excluded or
actions for which the significance of the environmental impact is
unknown'' to be consistent with NEPA, 42 U.S.C. 4336(b)(2) (emphasis
added). For consistency, the language in 23 CFR 771.119(a) has been
revised to read, ``The applicant must prepare an EA in consultation
with the Administration for each action that does not have a reasonably
foreseeable significant effect on the quality of the human environment
but that cannot be categorically excluded or actions for which if the
significance of the environmental impact such effect is unknown, unless
the agency finds that the proposed action is a CE and does not clearly
require the preparation of an EIS.''
Comment: A commenter proposed removing the certification
requirement at 23 CFR 771.138(c)(1) for the Draft Environmental Impact
Statement (DEIS). The commenter noted that the certification
requirement means that, for a DEIS, the lead agency is required to
certify the timeline requirements are met under 23 CFR 771.138 prior to
completing the NEPA process through the final EIS or combined final
EIS/Record of Decision (ROD).
Response: The Agencies agree with the commenter and have removed
the certification requirement for a DEIS in 23 CFR 771.138(c) in the
final rule. This change should address any prior confusion by clearly
stating that the lead agency must certify the EIS timeline requirement
has been met at the completion of the NEPA process. The certification
requirement remains with respect to timeline and page limit
requirements for final EISs and combined final EIS/RODs.
Comment: Several commenters requested new flexibilities in the re-
evaluation process, clarification on when a re-evaluation is needed,
and that the timeframe for triggering the written re-evaluation
requirement for an EIS be aligned with the 5-year threshold provided in
DOT's NEPA Order.
Response: The Agencies appreciate and acknowledge the comment but
decline to make the suggested changes because substantive changes are
outside the scope of this rulemaking. In the final rule, the Agencies
made only technical changes to Part 771 to reflect the removal of the
CEQ regulations, amendments to NEPA in the FR Act, and amendments to 23
U.S.C. 139 and 203(e) included in IIJA.
Comment: Several commenters suggested delegating NEPA or related
Federal requirements, such as routine consultations under the
Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq., to
non-Federal entities.
Response: The Agencies appreciate and acknowledge the comments, but
decline to make these changes as NEPA and other Federal delegation
programs are outside the scope of this rulemaking effort. The Agencies
continue to encourage project sponsors to use environmental data and
analyses prepared for compliance with State environmental review
requirements in preparing the Federal NEPA document when it is relevant
and contemporary to avoid duplication of effort and promote efficient
environmental reviews. State documents and analyses related to
compliance with State environmental requirements may be used to inform
the NEPA process to the extent consistent with applicable law.
Comment: Some commenters expressed opposition to CEQ's recission of
its regulations and other Governmentwide efforts and related policies,
and expressed opinions not directly related to IFR and technical
changes to Part 771.
Response: Comments related to NEPA implementation outside the
context of Part 771, or actions taken by other Federal Agencies or
entities, are outside the scope of this rulemaking effort.

III. Regulatory Analysis and Notices

Legal Authority for This Rulemaking

This final rule is published under the authority of the Secretary
of Transportation delegated to the Agencies pursuant to 49 CFR 1.81,
1.85, 1.89, and 1.91. Authority for these regulations is as follows: 42
U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138, 139, 203, 315, 326,
and 327; 49 U.S.C. 303 and 24201; 49 U.S.C. 5323(c) and 5323(q); 49 CFR
1.81, 1.85, 1.89, and 1.91; Pub. L. 109-59, 119 Stat. 1144, Sections
6002 and 6010; Pub. L. 112-141, 126 Stat. 405, Sections 1315, 1316,
1317, 1318, and 1319; and Pub. L. 114-94, 129 Stat. 1312, Sections 1304
and 1432.
The Agencies considered all comments received before the close of
business on the comment closing date indicated above, as well as the
comments received after the deadline. The comments are available for
examination in the docket (FHWA-2025-0007) at <a href="http://www.regulations.gov">www.regulations.gov</a>.

Executive Order 12866, Executive Order 14192, and DOT Regulatory
Policies and Procedures

This rule is a nonsignificant regulatory action under E.O. 12866,
Regulatory Planning and Review (58 FR 51735 (October 4, 1993)).
Therefore, the

[[Page 56034]]

Office of Management and Budget (OMB) has not reviewed this rule. E.O.
12866 further directs Agencies to assess all costs and benefits of
available regulatory alternatives and, if a regulation is necessary, to
select regulatory approaches that maximize net benefits.
Implementation guidance for E.O. 14192, Unleashing Prosperity
Through Deregulation, issued by the OMB (Memorandum M-25-20, March 26,
2025), defines an E.O. 14192 deregulatory action as ``an action that
has been finalized and has total costs less than zero.'' This final
rule is considered an E.O. 14192 deregulatory action. The Agencies
expect minor cost savings because this final rule would enable projects
to move more expeditiously through the Federal environmental review
process. It would reduce the preparation of extraneous environmental
documentation and analysis not needed for compliance with NEPA while
still ensuring that projects are built in an environmentally
responsible manner and consistent with Federal law. These cost savings
cannot be quantifiable. The Agencies do not have specific data to
assess the economic impact of this final rule because such data does
not exist and would be difficult to develop.

Regulatory Flexibility Act and Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking

The Regulatory Flexibility Act, as amended, 5 U.S.C. 601 et seq.,
requires preparation of an initial regulatory flexibility analysis for
any rule that by law must be proposed for public comment. As discussed
previously, the Agencies have determined that prior notice and
opportunity for public comment is unnecessary under the APA. Because a
notice of proposed rulemaking is not required for this action pursuant
to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis
has been prepared for this final rule. See 5 U.S.C. 601(2), 603(a).

Environmental Analysis

NEPA does not require any Federal Agency to conduct NEPA analysis
for the development of Agency procedures that implement NEPA. In
addition, the promulgation of this final rule is categorically excluded
from the requirement to prepare an impact statement by 23 CFR
771.116(c)(15), 771.117(c)(20), and 771.118(c)(4) and, therefore, the
Agencies have determined that no environmental analysis is needed. The
Agencies do not anticipate any adverse environmental impacts from this
final rule, and no unusual circumstances are present under 23 CFR
771.117(b).

Executive Order 13132, Federalism

The Agencies have analyzed this final rule in accordance with the
principles and criteria contained in E.O. 13132, Federalism, which
requires Agencies to ensure meaningful and timely input by State and
local officials in the development of regulatory policies that have
federalism implications. The Agencies have determined that this action
does not preempt any State law or State regulation or affect the
States' ability to discharge traditional State governmental functions.

Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments

The Agencies have analyzed this final rule according to the
principles and criteria in E.O. 13175, Consultation and Coordination
with Indian Tribal Governments, and DOT Order 5301.1, Department of
Transportation Programs, Policies, and Procedures Affecting American
Indians, Alaska Natives, and Tribes. The Agencies have determined that
this action will neither significantly nor uniquely affect Tribal
communities or Indian Tribal governments. In addition, this action does
not impose compliance costs on Tribal governments and does not preempt
Tribal law.

Unfunded Mandates Reform Act

Section 201 of the Unfunded Mandates Reform Act, 2 U.S.C. 1531,
requires Agencies to assess the effects of Federal regulatory actions
on State, local, and Tribal governments, and the private sector. For
any final rule that includes a Federal mandate that may result in the
expenditure by State, local, and Tribal governments in the aggregate of
$100 million or more (in 1996 dollars) in any given year, agencies must
prepare, among other things, a written statement that qualitatively and
quantitatively assesses the costs and benefits of the Federal mandate.
This final rule applies to Federal Agencies and would not result in
expenditures of $100 million or more for State, Tribal, and local
governments, in the aggregate, or the private sector in any one year.
This action also does not impose any enforceable duty, contain any
unfunded mandate, or otherwise have any effect on small governments
subject to the requirements of 2 U.S.C. 1531-1538.

Paperwork Reduction Act (PRA)

Under the PRA, 44 U.S.C. 3501, et seq., Federal agencies must
obtain approval from OMB for each collection of information they
conduct, sponsor, or require through regulations. This action does not
impose any new information collection burden that would require
additional review or approval by OMB for the purposes of the PRA.

Executive Order 13211 (Energy Effects)

The Agencies have analyzed this action under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agencies have determined that this is not a
significant energy action under that order and is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, a Statement of Energy Effects is not required.

Regulation Identification Number

A regulation identification 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

23 CFR Part 771

Environmental impact statements; Grant programs--transportation;
Highways and roads; Historical preservation; Public lands; Railroads;
Recreation and recreation areas; Reporting and recordkeeping
requirements.

49 CFR Part 264

Environmental impact statements; Railroads.

49 CFR Part 622

Environmental impact statements; Mass transportation.

Issued in Washington, DC, under the authority delegated in 49
CFR 1.81(a)(5), 1.85, 1.89, and 1.91.
Sean McMaster,
Administrator, Federal Highway Administration.
David A. Fink,
Administrator, Federal Railroad Administration.
Matthew B. Cahill,
Acting Deputy Administrator, Federal Transit Administration.

In consideration of the foregoing, the Agencies revise 23 CFR part
771, and 49 CFR part 264, and part 622, subpart A to read as follows:

Title 23--Highways

0
1. Revise part 771 to read as follows:

[[Page 56035]]

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

Sec.
771.101 Purpose.
771.103 [Reserved]
771.105 Policy.
771.107 Definitions.
771.109 Applicability and responsibilities.
771.111 Early coordination, public involvement, and project
development.
771.113 Timing of Administration activities when NEPA applies.
771.115 Classes of actions.
771.116 FRA categorical exclusions.
771.117 FHWA categorical exclusions.
771.118 FTA categorical exclusions.
771.119 Environmental assessments.
771.121 Findings of no significant impact.
771.123 Draft environmental impact statements.
771.124 Final environmental impact statement/record of decision
document.
771.125 Final environmental impact statements.
771.127 Record of decision.
771.129 Re-evaluations.
771.130 Supplemental environmental impact statements.
771.131 Emergency action procedures.
771.133 Compliance with other requirements.
771.137 International actions.
771.138 Timelines, Page Limits, and Certifications.
771.139 Limitations on actions.
771.141 Reliance and Adoption Efficiencies.

Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138,
139, 203(e), 315, 326, and 327; 49 U.S.C. 303 and 24201; 49 U.S.C.
5323(c) and 5323(q); 49 CFR 1.81, 1.85, 1.89, and 1.91; Pub. L. 109-
59, 119 Stat. 1144, Sections 6002 and 6010; Pub. L. 112-141, 126
Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319; and Pub. L.
114-94, 129 Stat. 1312, Sections 1304 and 1432.

Sec. 771.101 Purpose.

This part prescribes the policies and procedures of the Federal
Highway Administration (FHWA), the Federal Railroad Administration
(FRA), and the Federal Transit Administration (FTA) for implementing
the National Environmental Policy Act of 1969, as amended (NEPA).
Together these regulations set forth all FHWA, FRA, FTA, and U.S.
Department of Transportation (DOT) requirements under NEPA for the
processing of highway, public transportation, and railroad actions.
This part also sets forth procedures to comply with 23 U.S.C. 109(h),
128, 138, 139, 203(e), 326, and 327; 49 U.S.C. 303, 24201, 5323(c) and
5323(q); Public Law 112-141, 126 Stat. 405, section 1301 as applicable;
and Public Law 114-94, 129 Stat. 1312, section 1304.

Sec. 771.103 [Reserved]

Sec. 771.105 Policy.

It is the policy of the Administration that:
(a) To the maximum extent practicable and consistent with Federal
law, all environmental investigations, reviews, and consultations be
coordinated as a single process, and compliance with all applicable
environmental requirements be reflected in a single environmental
document required by this part.
(b) Programmatic approaches be developed for compliance with
environmental requirements (including the requirements found at 23
U.S.C. 139(b)(3)), coordination among agencies and/or the public, or to
otherwise enhance and accelerate project development.
(c) Alternative courses of action be evaluated and decisions be
made in the best overall public interest based upon a balanced
consideration of the need for safe and efficient transportation; of the
reasonably foreseeable social, economic, and environmental impacts of
the proposed transportation improvement; and of national, State, and
local environmental protection goals.
(d) Public involvement and a systematic interdisciplinary approach
be essential parts of the development process for proposed actions.
(e) Measures necessary to mitigate adverse impacts be incorporated
into the action. Measures necessary to mitigate adverse impacts are
eligible for Federal funding when the Administration determines that:
(1) The impacts for which the mitigation is proposed actually
result from the Administration action; and
(2) The proposed mitigation represents a reasonable public
expenditure after considering the impacts of the action and the
benefits of the proposed mitigation measures. In making this
determination, the Administration will consider, among other factors,
the extent to which the proposed measures would assist in complying
with a Federal statute other than NEPA, executive order, or
Administration regulation or policy.
(f) Costs incurred by the applicant for the preparation of
environmental documents requested by the Administration be eligible for
Federal assistance.
(g) No person, because of handicap, age, race, color, sex, or
national origin, be excluded from participating in, or denied the
benefits of, or be subject to discrimination under any Administration
program or procedural activity required by or developed pursuant to
this part.

Sec. 771.107 Definitions.

The definitions contained in 42 U.S.C. 4336e and in titles 23 and
49 of the United States Code are applicable. In addition, the following
definitions apply to this part.
Action. A highway, transit, or railroad project proposed for U.S.
DOT funding. It also can include activities such as joint and multiple
use permits, changes in access control, or rulemakings, which may or
may not involve a commitment of Federal funds.
Administration. FHWA, FRA, or FTA, whichever is the designated
Federal lead agency for the proposed action. A reference herein to the
Administration means FHWA, FRA, or FTA, or a State when the State is
functioning as FHWA, FRA, or FTA in carrying out responsibilities
delegated or assigned to the State in accordance with 23 U.S.C. 326 or
327, or other applicable law. A reference herein to FHWA, FRA, or FTA
means the State when the State is functioning as FHWA, FRA, or FTA
respectively in carrying out responsibilities delegated or assigned to
the State in accordance with 23 U.S.C. 326 or 327, or other applicable
law. Nothing in this definition alters the scope of any delegation or
assignment made by FHWA, FRA, or FTA.
Administration action. FHWA, FRA, or FTA approval of the
applicant's request for Federal funds for construction. It also can
include approval of activities, such as joint and multiple use permits,
changes in access control, rulemakings, etc., that may or may not
involve a commitment of Federal funds.
Applicant. Any Federal, State, local, or federally recognized
Indian Tribal governmental unit that requests funding approval or other
action by the Administration and that the Administration works with to
conduct environmental studies and prepare environmental review
documents. When another Federal agency, or the Administration itself,
is implementing the action, then the lead agencies (as defined in this
section) may assume the responsibilities of the applicant in this part.
If there is no applicant, then the Federal lead agency will assume the
responsibilities of the applicant in this part. The applicant may also
be the project sponsor.
Cooperating agency. Any Federal, State, Tribal, or local agency
that has jurisdiction by law or special expertise with respect to any
environmental impact involved in a proposal and has

[[Page 56036]]

been designated as a cooperating agency by the lead agency.
Environmental document. An environmental assessment, finding of no
significant impact, notice of intent, environmental impact statement,
or record of decision.
Environmental studies. The investigations of potential reasonably
foreseeable environmental impacts to determine the environmental
process to be followed and to assist in the preparation of the
environmental document.
Finding of no significant impact (FONSI). Means a final
determination by the Administration that the proposed action does not
require the issuance of an environmental impact statement.
Lead agency(ies). The Administration and, if applicable, any other
agency designated to serve as a joint lead agency with the
Administration under 23 U.S.C. 139(c)(3) or 42 U.S.C. 4336a(1)(B).
Major Federal action. An action that the Administration determines
is subject to substantial Federal control and responsibility.
Major project. A project subject to the requirements of 23 U.S.C.
139 that (1) requires multiple (two, or more) authorizations, reviews,
or studies under a Federal law other than NEPA; (2) for which the lead
agency has determined an EIS is required (or for which the lead agency
has determined an EA is required and where the project sponsor requests
that the project be treated as a major project); and (3) for which the
project sponsor has identified the reasonable availability of funds
sufficient to complete the project.
Participating agency. A Federal, State, local, or federally
recognized Indian Tribal governmental unit with an interest in the
proposed project and has accepted an invitation to be a participating
agency or, in the case of a Federal agency, has not declined the
invitation in accordance with 23 U.S.C. 139(d)(3).
Programmatic approaches. An approach that reduces the need for
project-by-project reviews, eliminates repetitive discussion of the
same issue, or focuses on the actual issues ripe for analyses at each
level of review, consistent with NEPA and other applicable law.
Project sponsor. The Federal, State, local, or federally recognized
Indian Tribal governmental unit, or other entity, including any private
or public-private entity that seeks Federal funding or an
Administration action for a project. Where it is not the applicant, the
project sponsor may conduct some of the activities on the applicant's
behalf.
Section 4(f). Refers to 49 U.S.C. 303 and 23 U.S.C. 138 (as
implemented by 23 CFR part 774).
Special expertise. Statutory responsibility, agency mission, or
related program experience.

Sec. 771.109 Applicability and responsibilities.

(a)(1) The provisions of this part only apply to major Federal
actions. Steps taken by the applicant that do not require Federal
approvals, such as preparation of a regional transportation plan, are
not subject to this part.
(2) The Administration has determined the following additional
actions are not major Federal actions subject to NEPA:
(i) Extraterritorial activities or decisions, which means agency
activities or decisions with effects located entirely outside the
jurisdiction of the United States.
(ii) [Reserved].
(3) This part does not apply to or alter final agency action the
Administration made prior to July 3.
(4) Environmental documents accepted or prepared after July 3, 2025
must be developed in accordance with this part.
(b)(1) The project sponsor, in cooperation with the Administration,
is responsible for implementing those mitigation measures stated as
commitments in the environmental documents prepared pursuant to this
part unless the Administration approves of their deletion or
modification in writing. FHWA will ensure that this is accomplished as
part of its stewardship and oversight responsibilities. FRA and FTA
will ensure implementation of committed mitigation measures through
incorporation by reference in the grant agreement, followed by reviews
of designs and construction inspections.
(2) When entering into Federal-aid project agreements pursuant to
23 U.S.C. 106, FHWA must ensure the State highway agency constructs the
project in accordance with and incorporates all committed environmental
impact mitigation measures listed in approved environmental review
documents.
(c) The following roles and responsibilities apply during the
environmental review process:
(1) The Federal lead agencies are responsible for managing the
environmental review process and the contents of the appropriate
environmental documents.
(2) Any State or local governmental entity applicant that is or is
expected to be a direct recipient of funds under title 23 of the United
States Code or 49 U.S.C. ch. 53 for the action, or is or is expected to
be a direct recipient of financial assistance for which FRA is
responsible (e.g., 49 U.S.C. Subtitle V) must serve as a joint lead
agency with the Administration in accordance with 23 U.S.C. 139, and
may prepare environmental review documents if the Administration
furnishes guidance, and independently evaluates the environmental
documents.
(3) The Administration may invite other Federal, State, local, or
federally recognized Indian Tribal governmental units to serve as joint
lead agencies in accordance with 42 U.S.C. 4336(a)(1)(B). If the
applicant is serving as a joint lead agency under 23 U.S.C. 139(c)(3),
then the Administration and the applicant will decide jointly which
other agencies to invite to serve as joint lead agencies.
(4) When the applicant seeks an Administration action other than
the approval of funds, the Administration will determine the role of
the applicant in accordance with this part and 23 U.S.C. 139.
(5) Regardless of its role under paragraphs (c)(2) through (c)(4)
of this section, a public agency that has statewide jurisdiction (for
example, a State highway agency or a State department of
transportation) or a local unit of government acting through a
statewide agency, that meets the requirements of 42 U.S.C. 4332(G), may
prepare the environmental documents with the Administration furnishing
guidance, participating in the preparation, and independently
evaluating the document. All FHWA applicants qualify under this
paragraph.
(6) A participating agency must provide input during the times
specified in the coordination plan under 23 U.S.C. 139(g) and within
the agency's special expertise or jurisdiction. Participating agencies
provide comments and concurrence on the schedule within the
coordination plan. For projects not subject to 23 U.S.C. 139,
participating agencies will participate in the environmental review
process consistent with 42 U.S.C. 4336a, as appropriate.
(d) When entering into Federal-aid project agreements pursuant to
23 U.S.C. 106, the State highway agency must ensure the project is
constructed in accordance with and incorporates all committed
environmental impact mitigation measures listed in approved
environmental documents unless the State requests and receives written
FHWA approval to modify or delete such mitigation features.

[[Page 56037]]

(e) When FRA is the lead agency, the project sponsor is a private
entity, and there is no applicant acting as a joint-lead agency, FRA
may provide written authorization to the project sponsor to prepare the
environmental document under FRA supervision. FRA's written
authorization will establish the project sponsor's and FRA's respective
responsibilities in preparing the environmental document.

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

(a)(1) Early coordination with appropriate agencies and the public
aids in determining the type of environmental documents an action
requires, the scope of the document, the level of analysis, and related
environmental requirements. These activities contribute to reducing or
eliminating delay, duplicative processes, and conflict, including by
incorporating planning outcomes that have been reviewed by agencies and
Indian Tribal partners in project development.
(2)(i) The information and results produced by or in support of the
transportation planning process may be incorporated into environmental
review documents in accordance with 23 U.S.C. 139(f), 168, 169, 23 CFR
450.212, 23 CFR 450.318, or 23 CFR 450 Appendix A, as applicable.
(ii) The planning process described in paragraph (a)(2)(i) of this
section may include mitigation actions consistent with a programmatic
mitigation plan developed pursuant to 23 U.S.C. 169 or from a
programmatic mitigation plan developed outside of that framework.
(iii) The purpose and need, alternatives development and screening,
and other relevant analyses, studies, and work products developed
pursuant to 49 U.S.C. 25101 or other Administration-approved planning
efforts, may be incorporated into the NEPA process as appropriate.
(3) Applicants intending to apply for funds or request
Administration action should notify the Administration at the time a
project concept is identified. When requested, the Administration will
advise the applicant, insofar as possible, of the probable class of
action (see Sec. 771.115) and related environmental laws and
requirements and of the need for specific studies and findings that
would normally be developed during the environmental review process. A
lead agency, in consultation with participating agencies, must develop
an environmental checklist, as appropriate, to assist in resource and
agency identification.
(b)(1) The Administration will identify the probable class of
action as soon as sufficient information is available to identify the
reasonably foreseeable impacts of the action.
(2) For projects to be evaluated with an EIS, the Administration
must respond in writing to a project sponsor's formal project
notification within 45 days of receipt.
(c) When the FHWA, FRA, or FTA are jointly involved in the
development of an action, or when the FHWA, FRA, or FTA act as a joint
lead agency with another Federal agency, a mutually acceptable process
will be established on a case-by-case basis. A project sponsor may
request the Secretary to designate the lead Federal agency when project
elements fall within the expertise of multiple DOT agencies.
(d) During early coordination, the lead agencies may invite other
agencies with an interest in the action to participate. The lead
agencies must, however, invite such agencies if the action is subject
to the project development procedures in 23 U.S.C. 139 within 45 days
from publication of the notice of intent. Any such agencies with
special expertise concerning the action may also be invited to become
cooperating agencies. Any such agencies with jurisdiction by law
concerning the action must be invited to become cooperating agencies.
(e) Other States and Federal land management entities that may be
significantly affected by the action or by any of the alternatives must
be notified early and their views solicited by the applicant in
cooperation with the Administration. The Administration will provide
direction to the applicant on how to approach any significant
unresolved issues as early as possible during the environmental review
process.
(f) Any action evaluated under NEPA as a categorical exclusion
(CE), environmental assessment (EA), or environmental impact statement
(EIS) must:
(1) Connect logical termini and be of sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or independent significance, i.e., be
usable and be a reasonable expenditure even if no additional
transportation improvements in the area are made; and
(3) Not restrict consideration of alternatives for other reasonably
foreseeable transportation improvements.
(g) For major transportation actions, the tiering (a form of
programmatic environmental documentation) of EISs or EAs may be
appropriate. The first tier EIS or EA would focus on broad issues such
as general location, mode choice, and areawide air quality and land use
implications of the major alternatives. The second tier would address
site-specific details on a project's reasonably foreseeable impacts,
costs, and mitigation measures.
(h) For the Federal-aid highway program:
(1) Each State must have procedures approved by the FHWA to carry
out a public involvement/public hearing program pursuant to 23 U.S.C.
128 and 139.
(2) State public involvement/public hearing procedures must provide
for:
(i) Coordination of public involvement activities and public
hearings with the entire NEPA process;
(ii) Early and continuing opportunities during project development
for the public to be involved in the identification of reasonably
foreseeable social, economic, and environmental impacts, as well as
impacts associated with relocation of individuals, groups, or
institutions;
(iii) One or more public hearings or the opportunity for hearing(s)
to be held by the State highway agency at a convenient time and place
for any Federal-aid project that requires significant amounts of right-
of-way, substantially changes the layout or functions of connecting
roadways or of the facility being improved, has a substantial adverse
impact on abutting property, otherwise has a significant social,
economic, environmental or other effect, or for which the FHWA
determines a public hearing is in the public interest;
(iv) Reasonable notice to the public of either a public hearing or
the opportunity for a public hearing. Such notice will indicate the
availability of explanatory information. The notice must also provide
information required to comply with public involvement requirements of
other laws, executive orders, and regulations;
(v) Explanation at the public hearing of the following information,
as appropriate:
(A) The project's purpose, need, and consistency with the goals and
objectives of any local urban planning,
(B) The project's alternatives and major design features,
(C) The reasonably foreseeable social, economic, environmental, and
other impacts of the project,
(D) The relocation assistance program and the right-of-way
acquisition process, and
(E) The State highway agency's procedures for receiving both oral
and written statements from the public;

[[Page 56038]]

(vi) Submission to the FHWA of a transcript of each public hearing
and a certification that a required hearing or hearing opportunity was
offered. The transcript will be accompanied by copies of all written
statements from the public, both submitted at the public hearing or
during an announced period after the public hearing;
(vii) An opportunity for public involvement in defining the purpose
and need and the reasonable range of alternatives, for any action
subject to the project development procedures in 23 U.S.C. 139; and
(viii) Public notice and an opportunity for public review and
comment on a Section 4(f) de minimis impact finding, in accordance with
23 CFR 774.5(b)(2)(i).
(i) Applicants for FRA programs or the FTA capital assistance
program:
(1) Achieve public participation on proposed actions through
activities that engage the public, including public hearings, town
meetings, and charrettes, and seek input from the public through
scoping for the environmental review process. Project milestones may be
announced to the public using electronic or paper media (e.g.,
newsletters, note cards, or emails). For actions requiring an EIS, an
early opportunity for public involvement in defining the purpose and
need for the action and the range of alternatives must be provided, and
a public hearing will be held during the circulation period of the
draft EIS.
(2) May participate in early scoping as long as enough project
information is known so the public and other agencies can participate
effectively. Early scoping constitutes initiation of NEPA scoping while
local planning efforts to aid in establishing the purpose and need and
in evaluating alternatives and impacts are underway. Notice of early
scoping must be made to the public and other agencies. If early scoping
is the start of the NEPA process, the early scoping notice must include
language to that effect. After development of the proposed action at
the conclusion of early scoping, FRA or FTA will publish the notice of
intent if it is determined at that time the proposed action requires an
EIS. The notice of intent will establish a 30-day period for comments
on the purpose and need, alternatives, impacts, and relevant
information, studies, or analyses with respect to the proposed agency
action.
(3) Are encouraged to post and distribute materials related to the
environmental review process, including, environmental documents (e.g.,
EAs and EISs), environmental studies (e.g., technical reports), public
meeting announcements, and meeting minutes, through publicly accessible
electronic means, including project websites. Applicants should keep
these materials available to the public electronically until the
project is constructed and open for operations.
(4) Should post all FONSIs, combined final EISs/RODs, and RODs on a
project website until the project is constructed and open for
operation.
(j) Information on the FHWA environmental process may be obtained
from: FHWA Director, Office of Project Development and Environmental
Review, Federal Highway Administration, Washington, DC 20590, or
<a href="http://www.environment.fhwa.dot.gov">www.environment.fhwa.dot.gov</a>. Information on the FRA environmental
process may be obtained from: FRA Director, Office of Environmental
Program Management, Federal Railroad Administration, Washington, DC
20590, or <a href="http://railroads.dot.gov">railroads.dot.gov</a>. Information on the FTA environmental
process may be obtained from: FTA Director, Office of Environmental
Policy and Programs, Federal Transit Administration, Washington, DC
20590 or <a href="http://www.transit.dot.gov">www.transit.dot.gov</a>.

Sec. 771.113 Timing of Administration activities when NEPA applies.

(a) The lead agencies, in cooperation with the applicant and
project sponsor, as appropriate, will perform the work necessary to
complete the environmental review process. This work includes drafting
environmental documents and completing environmental studies, related
engineering studies, agency coordination, public involvement, and
identification of mitigation measures. Except as otherwise provided in
law or in paragraph (d) of this section, final design activities,
property acquisition, purchase of construction materials or rolling
stock, or project construction must not proceed until the following
have been completed:
(1)(i) The Administration has classified the action as a CE;
(ii) The Administration has issued a FONSI; or
(iii) The Administration has issued a combined final EIS/ROD or a
final EIS and ROD;
(2) For actions proposed for FHWA funding, the Administration has
received and accepted the certifications and any required public
hearing transcripts required by 23 U.S.C. 128;
(3) For activities proposed for FHWA funding, the programming
requirements of 23 CFR part 450, subpart B, and 23 CFR part 630,
subpart A, have been met.
(b) For FHWA actions, completion of the requirements set forth in
paragraphs (a)(1) and (2) of this section is considered acceptance of
the general project location and concepts described in the
environmental review documents unless otherwise specified by the
approving official.
(c) Letters of Intent issued under the authority of 49 U.S.C.
5309(g) are used by FTA to indicate an intention to obligate future
funds for multi-year capital transit projects. Letters of Intent will
not be issued by FTA until the NEPA process is completed. Letters of
Intent issued by FRA under the authority of 49 U.S.C. 24911(g) may be
issued prior to completion of the NEPA process.
(d) The prohibition in paragraph (a)(1) of this section do not
apply to:
(1) Early acquisition, hardship and protective acquisitions of real
property in accordance with 23 CFR part 710, subpart E for FHWA.
Exceptions for the acquisitions of real property are addressed in
paragraphs (c)(6) and (d)(3) of Sec. 771.118 for FTA.
(2) The early acquisition of right-of-way for future transit use in
accordance with 49 U.S.C. 5323(q) and FTA guidance.
(3) A limited exception for rolling stock is provided in 49 U.S.C.
5309(l)(6).
(4) FRA may make exceptions on a case-by-case basis for purchases
of railroad components or materials that can be used for other projects
or resold.

Sec. 771.115 Classes of actions.

There are three classes of actions that prescribe the level of
documentation required in the NEPA process. In selecting the class of
action, the Administration may make use of any reliable data source and
is not required to undertake new scientific or technical research
unless the new scientific or technical research is essential to a
reasoned choice among alternatives, and the overall costs and time
frame of obtaining it are not unreasonable. A programmatic approach may
be used for any class of action.
(a) EIS. Actions that have a reasonably foreseeable significant
effect on the quality of the human environment require an EIS. The
following are examples of actions that normally require an EIS:
(1) A new controlled access freeway.
(2) A highway project of four or more lanes on a new location.
(3) Construction or extension of a fixed transit facility (e.g.,
rapid rail, light rail, commuter rail, bus rapid transit) that will not
be located primarily within an existing transportation right-of-way.
(4) New construction or extension of a separate roadway for buses
or high

[[Page 56039]]

occupancy vehicles not located within an existing transportation right-
of-way.
(5) New construction or extension of a separate roadway for buses
not located primarily within an existing transportation right-of-way.
(6) New construction of major railroad lines or facilities (e.g.,
terminal passenger stations, freight transfer yards, or railroad
equipment maintenance facilities) that will not be located within an
existing transportation right-of-way.
(b) CE. Actions that normally do not have a significant
environmental effect are excluded from the requirement to prepare an EA
or EIS. A specific list of CEs normally not requiring NEPA
documentation is set forth in Sec. 771.117(c) for FHWA actions or
Sec. 771.118(c) for FTA actions. When appropriately documented,
additional projects may also qualify as CEs pursuant to Sec.
771.117(d) for FHWA actions or pursuant to Sec. 771.118(d) for FTA
actions. FRA's CEs are listed in Sec. 771.116.
(c) EA. Actions that do not have reasonably foreseeably significant
effects on the quality of the human environment but that cannot be
categorically excluded or actions for which the significance of the
environmental impact is unknown. All actions that are not EISs or CEs
are EAs. All actions in this class require the preparation of an EA to
determine the appropriate environmental document required.

Sec. 771.116 FRA categorical exclusions.

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

[[Page 56040]]

projects replacing bridge components including stringers, caps, piles,
or decks, the construction of roadway overpasses to replace at-grade
crossings, construction or reconstruction of approaches or embankments
to bridges, or construction or replacement of short span bridges.
(18) Acquisition (including purchase or lease), rehabilitation,
transfer, or maintenance of vehicles or equipment, including
locomotives, passenger coachers, freight cars, trainsets, and
construction, maintenance or inspection equipment, that does not
significantly alter the traffic density characteristics of an existing
rail line.
(19) Installation, repair and replacement of equipment and small
structures designed to promote transportation safety, security,
accessibility, communication or operational efficiency that take place
predominantly within the existing right-of-way and do not result in a
major change in traffic density on the existing rail line or facility,
such as the installation, repair or replacement of surface treatments
or pavement markings, small passenger shelters, passenger amenities,
benches, signage, sidewalks or trails, equipment enclosures, and
fencing, railroad warning devices, train control systems,
signalization, electric traction equipment and structures, electronics,
photonics, and communications systems and equipment, equipment mounts,
towers and structures, information processing equipment, and security
equipment, including surveillance and detection cameras.
(20) Environmental restoration, remediation, pollution prevention,
and mitigation activities conducted in conformance with applicable
laws, regulations and permit requirements, including activities such as
noise mitigation, landscaping, natural resource management activities,
replacement or improvement to storm water oil/water separators,
installation of pollution containment systems, slope stabilization, and
contaminated soil removal or remediation activities.
(21) Assembly or construction of facilities or stations that are
consistent with existing land use and zoning requirements, do not
result in a major change in traffic density on existing rail or highway
facilities, and result in approximately less than ten acres of surface
disturbance, such as storage and maintenance facilities, freight or
passenger loading and unloading facilities or stations, parking
facilities, passenger platforms, canopies, shelters, pedestrian
overpasses or underpasses, paving, or landscaping.
(22) Track and track structure maintenance and improvements when
carried out predominantly within the existing right-of-way that do not
cause a substantial increase in rail traffic beyond existing or
historic levels, such as stabilizing embankments, installing or
reinstalling track, re-grading, replacing rail, ties, slabs and
ballast, installing, maintaining, or restoring drainage ditches,
cleaning ballast, constructing minor curve realignments, improving or
replacing interlockings, and the installation or maintenance of
ancillary equipment.
(d) Any action qualifying as a CE under Sec. 771.117 or Sec.
771.118 may be approved by FRA when the applicable requirements of
those sections have been met. FRA may consult with FHWA or FTA to
ensure the CE is applicable to the proposed action.

Sec. 771.117 FHWA categorical exclusions.

(a) CEs are actions that, based on FHWA's past experience with
similar actions, normally do not involve significant environmental
impacts. They are actions that: Do not induce significant impacts to
planned growth or land use for the area; do not require the relocation
of significant numbers of people; do not have a significant impact on
any natural, cultural, recreational, historic or other resource; do not
involve significant air, noise, or water quality impacts; do not have
significant impacts on travel patterns; or do not otherwise have any
significant environmental impacts.
(b) Any action that normally would be classified as a CE but could
involve unusual circumstances will require the FHWA, in cooperation
with the applicant, to conduct appropriate environmental studies to
determine if the CE classification is proper. Such unusual
circumstances include:
(1) Significant environmental impacts;
(2) Substantial controversy on environmental grounds;
(3) Significant impact on properties protected by Section 4(f)
requirements or Section 106 of the National Historic Preservation Act;
or
(4) Inconsistencies with any Federal, State, or local law,
requirement or administrative determination relating to the
environmental aspects of the action.
(c) The following actions meet the criteria for CEs in paragraph
(a) of this section and normally do not require any further NEPA
approvals by the FHWA:
(1) Activities that do not involve or lead directly to
construction, such as planning and research activities; grants for
training; engineering to define the elements of a proposed action or
alternatives so social, economic, and environmental effects can be
assessed; and Federal-aid system revisions establishing classes of
highways on the Federal-aid highway system.
(2) Approval of utility installations along or across a
transportation facility.
(3) Construction of bicycle and pedestrian lanes, paths, and
facilities.
(4) Activities included in the State's highway safety plan under 23
U.S.C. 402.
(5) Transfer of Federal lands pursuant to 23 U.S.C. 107(d) and/or
23 U.S.C. 317 when the land transfer is in support of an action not
otherwise subject to FHWA review under NEPA.
(6) The installation of noise barriers or alterations to existing
publicly owned buildings to provide for noise reduction.
(7) Landscaping.
(8) Installation of fencing, signs, pavement markings, small
passenger shelters, traffic signals, and railroad warning devices where
no substantial land acquisition or traffic disruption will occur.
(9) The following actions for transportation facilities damaged by
an incident resulting in an emergency declared by the Governor of the
State and concurred in by the Secretary, or a disaster or emergency
declared by the President pursuant to the Robert T. Stafford Act (42
U.S.C. 5121):
(i) Emergency repairs under 23 U.S.C. 125; and
(ii) The repair, reconstruction, restoration, retrofitting, or
replacement of any road, highway, bridge, tunnel, or transit facility
(such as a ferry dock or bus transfer station), including ancillary
transportation facilities (such as pedestrian/bicycle paths and bike
lanes), in operation or under construction when damaged and the action:
(A) Occurs within the existing right-of-way and in a manner that
substantially conforms to the preexisting design, function, and
location as the original (which may include upgrades to meet existing
codes and standards as well as upgrades warranted to address conditions
that have changed since the original construction); and
(B) Is commenced within a 2-year period beginning on the date of
the declaration.
(10) Acquisition of scenic easements.
(11) Determination of payback under 23 U.S.C. 156 for property
previously acquired with Federal-aid participation.
(12) Improvements to existing rest areas and truck weigh stations.
(13) Ridesharing activities.
(14) Bus and rail car rehabilitation.
(15) Alterations to facilities or vehicles in order to make them

[[Page 56041]]

accessible for elderly and handicapped persons.
(16) Program administration, technical assistance activities, and
operating assistance to transit authorities to continue existing
service or increase service to meet routine changes in demand.
(17) The purchase of vehicles by the applicant where the use of
these vehicles can be accommodated by existing facilities or by new
facilities that themselves are within a CE.
(18) Track and railbed maintenance and improvements when carried
out within the existing right-of-way.
(19) Purchase and installation of operating or maintenance
equipment to be located within the transit facility and with no
significant impacts off the site.
(20) Promulgation of rules, regulations, and directives.
(21) Deployment of electronics, photonics, communications, or
information processing used singly or in combination, or as components
of a fully integrated system, to improve the efficiency or safety of a
surface transportation system or to enhance security or passenger
convenience. Examples include, but are not limited to, traffic control
and detector devices, lane management systems, electronic payment
equipment, automatic vehicle locaters, automated passenger counters,
computer-aided dispatching systems, radio communications systems,
dynamic message signs, and security equipment including surveillance
and detection cameras on roadways and in transit facilities and on
buses.
(22) Projects, as defined in 23 U.S.C. 101, that would take place
entirely within the existing operational right-of-way. Existing
operational right-of-way means all real property interests acquired for
the construction, operation, or mitigation of a project. This area
includes the features associated with the physical footprint of the
project including but not limited to the roadway, bridges,
interchanges, culverts, drainage, clear zone, traffic control signage,
landscaping, and any rest areas with direct access to a controlled
access highway. This also includes fixed guideways, mitigation areas,
areas maintained or used for safety and security of a transportation
facility, parking facilities with direct access to an existing
transportation facility, transportation power substations,
transportation venting structures, and transportation maintenance
facilities.
(23) Federally funded projects:
(i) Receiving less than $6,000,000 (as adjusted annually by the
Secretary to reflect any increases in the Consumer Price Index prepared
by the Department of Labor, see <a href="http://www.fhwa.dot.gov">www.fhwa.dot.gov</a> or
<a href="http://www.transit.dot.gov">www.transit.dot.gov</a>) of Federal funds; or
(ii) With a total estimated cost of not more than $35,000,000 (as
adjusted annually by the Secretary to reflect any increases in the
Consumer Price Index prepared by the Department of Labor, see
<a href="http://www.fhwa.dot.gov">www.fhwa.dot.gov</a> or <a href="http://www.fta.dot.gov">www.fta.dot.gov</a>) and Federal funds comprising less
than 15 percent of the total estimated project cost.
(24) Localized geotechnical and other investigation to provide
information for preliminary design and for environmental analyses and
permitting purposes, such as drilling test bores for soil sampling;
archeological investigations for archeology resources assessment or
similar survey; and wetland surveys.
(25) Environmental restoration and pollution abatement actions to
minimize or mitigate the impacts of any existing transportation
facility (including retrofitting and construction of stormwater
treatment systems to meet Federal and State requirements under sections
401 and 402 of the Federal Water Pollution Control Act (33 U.S.C. 1341;
1342)) carried out to address water pollution or environmental
degradation.
(26) Modernization of a highway by resurfacing, restoration,
rehabilitation, reconstruction, adding shoulders, or adding auxiliary
lanes (including parking, weaving, turning, and climbing lanes), if the
action meets the constraints in paragraph (e) of this section.
(27) Highway safety or traffic operations improvement projects,
including the installation of ramp metering control devices and
lighting, if the project meets the constraints in paragraph (e) of this
section.
(28) Bridge rehabilitation, reconstruction, or replacement or the
construction of grade separation to replace existing at-grade railroad
crossings, if the actions meet the constraints in paragraph (e) of this
section.
(29) Purchase, construction, replacement, or rehabilitation of
ferry vessels (including improvements to ferry vessel safety,
navigation, and security systems) not requiring a change in the
function of the ferry terminals and can be accommodated by existing
facilities or by new facilities that themselves are within a CE.
(30) Rehabilitation or reconstruction of existing ferry facilities
that occupy substantially the same geographic footprint, do not result
in a change in their functional use, and do not result in a substantial
increase in the existing facility's capacity. Example actions include
work on pedestrian and vehicle transfer structures and associated
utilities, buildings, and terminals.
(d) Additional actions that meet the criteria for a CE in paragraph
(a) of this section may be designated as CEs only after Administration
approval unless otherwise authorized under an executed agreement
pursuant to paragraph (g) of this section. The applicant must submit
documentation that demonstrates that the specific conditions or
criteria for these CEs are satisfied, and that significant
environmental effects will not result. Examples of such actions include
but are not limited to:
(1)-(3) [Reserved]
(4) Transportation corridor fringe parking facilities.
(5) Construction of new truck weigh stations or rest areas.
(6) Approvals for disposal of excess right-of-way or for joint or
limited use of right-of-way, where the proposed use does not have
significant adverse impacts.
(7) Approvals for changes in access control.
(8) Construction of new bus storage and maintenance facilities in
areas used predominantly for industrial or transportation purposes
where such construction is not inconsistent with existing zoning and
located on or near a street with adequate capacity to handle
anticipated bus and support vehicle traffic.
(9) Rehabilitation or reconstruction of existing rail and bus
buildings and ancillary facilities where only minor amounts of
additional land are required, and there is not a substantial increase
in the number of users.
(10) Construction of bus transfer facilities (an open area
consisting of passenger shelters, boarding areas, kiosks and related
street improvements) when located in a commercial area or other high
activity center in which there is adequate street capacity for
projected bus traffic.
(11) Construction of rail storage and maintenance facilities in
areas used predominantly for industrial or transportation purposes
where such construction is not inconsistent with existing zoning, and
where there is no significant noise impact on the surrounding
community.
(12) Acquisition of land for hardship or protective purposes.
Hardship and protective buying will be permitted only for a particular
parcel or a limited number of parcels. These types of land acquisition
qualify for a CE only where the acquisition will not limit the
evaluation of alternatives, including

[[Page 56042]]

shifts in alignment for planned construction projects, which may be
required in the NEPA process. No project development on such land may
proceed until the NEPA process has been completed.
(i) Hardship acquisition is early acquisition of property by the
applicant at the property owner's request to alleviate particular
hardship to the owner, in contrast to others, because of an inability
to sell his property. This is justified when the property owner can
document on the basis of health, safety or financial reasons that
remaining in the property poses an undue hardship compared to others.
(ii) Protective acquisition is done to prevent imminent development
of a parcel that may be needed for a proposed transportation corridor
or site. Documentation must clearly demonstrate that development of the
land would preclude future transportation use and such development is
imminent. Advance acquisition is not permitted for the sole purpose of
reducing the cost of property for a proposed project.
(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28)
of this section that do not meet the constraints in paragraph (e) of
this section.
(e) Actions described in (c)(26), (c)(27), and (c)(28) of this
section may not be processed as CEs under paragraph (c) if they
involve:
(1) An acquisition of more than a minor amount of right-of-way or
would result in any residential or non-residential displacements;
(2) An action that needs a bridge permit from the U.S. Coast Guard,
or an action that does not meet the terms and conditions of a U.S. Army
Corps of Engineers nationwide or general permit under section 404 of
the Clean Water Act and/or section 10 of the Rivers and Harbors Act of
1899;
(3) A finding of ``adverse effect'' to historic properties under
the National Historic Preservation Act, the use of a resource protected
under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions
resulting in de minimis impacts, or a finding of ``may affect, likely
to adversely affect'' threatened or endangered species or critical
habitat under the Endangered Species Act;
(4) Construction of temporary access or the closure of existing
road, bridge, or ramps that would result in major traffic disruptions;
(5) Changes in access control;
(6) A floodplain encroachment other than functionally dependent
uses (e.g., bridges, wetlands) or actions facilitating open space use
(e.g., recreational trails, bicycle and pedestrian paths); or
construction activities in, across or adjacent to a river component
designated or proposed for inclusion in the National System of Wild and
Scenic Rivers.
(f) Where a pattern emerges of granting CE status for a particular
type of action, the FHWA will initiate rulemaking proposing to add this
type of action to the list of categorical exclusions in paragraph (c)
or (d) of this section, as appropriate.
(g) FHWA may enter into programmatic agreements with a State to
allow a State DOT to make a NEPA CE certification or determination and
approval on FHWA's behalf, for CEs specifically listed in paragraphs
(c) and (d) of this section and are identified in the programmatic
agreement. Such agreements must be subject to the following conditions:
(1) The agreement must set forth the State DOT's responsibilities
for making CE determinations, documenting the determinations, and
achieving acceptable quality control and quality assurance;
(2) The agreement may not have a term of more than five years, but
may be renewed;
(3) The agreement must provide for FHWA's monitoring of the State
DOT's compliance with the terms of the agreement and for the State
DOT's execution of any needed corrective action. FHWA must take into
account the State DOT's performance when considering renewal of the
programmatic CE agreement; and
(4) The agreement must include stipulations for amendment,
termination, and public availability of the agreement once it has been
executed.
(h) Any action qualifying as a CE under Sec. 771.116 or Sec.
771.118 may be approved by FHWA when the applicable requirements of
those sections have been met. FHWA may consult with FRA or FTA to
ensure the CE is applicable to the proposed action.

Sec. 771.118 FTA categorical exclusions.

(a) CEs are actions that, based on FTA's past experience with
similar actions, do not involve significant environmental impacts. They
are actions that: Do not induce significant impacts to planned growth
or land use for the area; do not require the relocation of significant
numbers of people; do not have a significant impact on any natural,
cultural, recreational, historic or other resource; do not involve
significant air, noise, or water quality impacts; do not have
significant impacts on travel patterns; or do not otherwise have any
significant environmental impacts.
(b) Any action that normally would be classified as a CE but could
involve unusual circumstances will require FTA, in cooperation with the
applicant, to conduct appropriate environmental studies to determine if
the CE classification is proper. Such unusual circumstances include:
(1) Significant environmental impacts;
(2) Substantial controversy on environmental grounds;
(3) Significant impact on properties protected by Section 4(f)
requirements or Section 106 of the National Historic Preservation Act;
or
(4) Inconsistencies with any Federal, State, or local law,
requirement or administrative determination relating to the
environmental aspects of the action.
(c) Actions that FTA determines fall within the following
categories of FTA CEs and that meet the criteria for CEs in paragraph
(a) of this section normally do not require any further NEPA approvals
by FTA.
(1) Acquisition, installation, operation, evaluation, replacement,
and improvement of discrete utilities and similar appurtenances
(existing and new) within or adjacent to existing transportation right-
of-way, such as: Utility poles, underground wiring, cables, and
information systems; and power substations and utility transfer
stations.
(2) Acquisition, construction, maintenance, rehabilitation, and
improvement or limited expansion of stand-alone recreation, pedestrian,
or bicycle facilities, such as: A multiuse pathway, lane, trail, or
pedestrian bridge; and transit plaza amenities.
(3) Activities designed to mitigate environmental harm that cause
no harm themselves or to maintain and enhance environmental quality and
site aesthetics, and employ construction best management practices,
such as: Noise mitigation activities; rehabilitation of public
transportation buildings, structures, or facilities; retrofitting for
energy or other resource conservation; and landscaping or re-
vegetation.
(4) Planning and administrative activities not involving or leading
directly to construction, such as: Training, technical assistance and
research; promulgation of rules, regulations, directives, or program
guidance; approval of project concepts; engineering; and operating
assistance to transit authorities to continue existing service or
increase service to meet routine demand.
(5) Activities, including repairs, replacements, and
rehabilitations, designed to promote transportation

[[Page 56043]]

safety, security, accessibility and effective communication within or
adjacent to existing right-of-way, such as: The deployment of
Intelligent Transportation Systems and components; installation and
improvement of safety and communications equipment, including hazard
elimination and mitigation; installation of passenger amenities and
traffic signals; and retrofitting existing transportation vehicles,
facilities or structures, or upgrading to current standards.
(6) Acquisition or transfer of an interest in real property not
within or adjacent to recognized environmentally sensitive areas (e.g.,
wetlands, non-urban parks, wildlife management areas) and does not
result in a substantial change in the functional use of the property or
in substantial displacements, such as: Acquisition for scenic easements
or historic sites for the purpose of preserving the site. This CE
extends only to acquisitions and transfers that will not limit the
evaluation of alternatives for future FTA-assisted projects making use
of the acquired or transferred property.
(7) Acquisition, installation, rehabilitation, replacement, and
maintenance of vehicles or equipment, within or accommodated by
existing facilities, not resulting in a change in functional use of the
facilities, such as: Equipment to be located within existing facilities
and with no substantial off-site impacts; and vehicles, including
buses, rail cars, trolley cars, ferry boats and people movers that can
be accommodated by existing facilities or by new facilities that
qualify for a categorical exclusion.
(8) Maintenance, rehabilitation, and reconstruction of facilities
occupying substantially the same geographic footprint and not resulting
in a change in functional use, such as: Improvements to bridges,
tunnels, storage yards, buildings, stations, and terminals;
construction of platform extensions, passing track, and retaining
walls; and improvements to tracks and railbeds.
(9) Assembly or construction of facilities that is consistent with
existing land use and zoning requirements (including floodplain
regulations) and uses primarily land disturbed for transportation use,
such as: Buildings and associated structures; bus transfer stations or
intermodal centers; busways and streetcar lines or other transit
investments within areas of the right-of-way occupied by the physical
footprint of the existing facility or otherwise maintained or used for
transportation operations; and parking facilities.
(10) Development of facilities for transit and non-transit
purposes, located on, above, or adjacent to existing transit
facilities, that are not part of a larger transportation project and do
not substantially enlarge such facilities, such as: Police facilities,
daycare facilities, public service facilities, amenities, and
commercial, retail, and residential development.
(11) The following actions for transportation facilities damaged by
an incident resulting in an emergency declared by the Governor of the
State and concurred in by the Secretary, or a disaster or emergency
declared by the President pursuant to the Robert T. Stafford Act (42
U.S.C. 5121):
(i) Emergency repairs under 49 U.S.C. 5324; and
(ii) The repair, reconstruction, restoration, retrofitting, or
replacement of any road, highway, bridge, tunnel, or transit facility
(such as a ferry dock or bus transfer station), including ancillary
transportation facilities (such as pedestrian/bicycle paths and bike
lanes), in operation or under construction when damaged and the action:
(A) Occurs within the existing right-of-way and in a manner that
substantially conforms to the preexisting design, function, and
location as the original (which may include upgrades to meet existing
codes and standards as well as upgrades warranted to address conditions
that have changed since the original construction); and
(B) Is commenced within a 2-year period beginning on the date of
the declaration.
(12) Projects, as defined in 23 U.S.C. 101, taking place entirely
within the existing operational right-of-way. Existing operational
right-of-way means all real property interests acquired for the
construction, operation, or mitigation of a project. This area includes
the features associated with the physical footprint of the project
including but not limited to the roadway, bridges, interchanges,
culverts, drainage, clear zone, traffic control signage, landscaping,
and any rest areas with direct access to a controlled access highway.
This also includes fixed guideways, mitigation areas, areas maintained
or used for safety and security of a transportation facility, parking
facilities with direct access to an existing transportation facility,
transportation power substations, transportation venting structures,
and transportation maintenance facilities.
(13) Federally funded projects:
(i) Receiving less than $6,000,000 (as adjusted annually by the
Secretary to reflect any increases in the Consumer Price Index prepared
by the Department of Labor, see <a href="http://www.fhwa.dot.gov">www.fhwa.dot.gov</a> or
<a href="http://www.transit.dot.gov">www.transit.dot.gov</a>) of Federal funds; or
(ii) With a total estimated cost of not more than $35,000,000 (as
adjusted annually by the Secretary to reflect any increases in the
Consumer Price Index prepared by the Department of Labor, see
<a href="http://www.fhwa.dot.gov">www.fhwa.dot.gov</a> or <a href="http://www.transit.dot.gov">www.transit.dot.gov</a>) and Federal funds comprising
less than 15 percent of the total estimated project cost.
(14) Bridge removal and bridge removal related activities, such as
in-channel work, disposal of materials and debris in accordance with
applicable regulations, and transportation facility realignment.
(15) Preventative maintenance, including safety treatments, to
culverts and channels within and adjacent to transportation right-of-
way to prevent damage to the transportation facility and adjoining
property, plus any necessary channel work, such as restoring,
replacing, reconstructing, and rehabilitating culverts and drainage
pipes; and expanding existing culverts and drainage pipes.
(16) Localized geotechnical and other investigations to provide
information for preliminary design and for environmental analyses and
permitting purposes, such as drilling test bores for soil sampling;
archeological investigations for archeology resources assessment or
similar survey; and wetland surveys.
(d) Additional actions that meet the criteria for a CE in paragraph
(a) of this section may be designated as CEs only after FTA approval.
The applicant must submit documentation demonstrating the specific
conditions or criteria for these CEs are satisfied and that significant
environmental effects will not result. Examples of such actions include
but are not limited to:
(1) Modernization of a highway by resurfacing, restoring,
rehabilitating, or reconstructing shoulders or auxiliary lanes (e.g.,
lanes for parking, weaving, turning, climbing).
(2) Bridge replacement or the construction of grade separation to
replace existing at-grade railroad crossings.
(3) Acquisition of land for hardship or protective purposes.
Hardship and protective buying will be permitted only for a particular
parcel or a limited number of parcels. These types of land acquisition
qualify for a CE only where the acquisition will not limit the
evaluation of alternatives, including

[[Page 56044]]

Sec. 771.119 Environmental assessments.

(a)(1) The applicant must prepare an EA in consultation with the
Administration for each action that does not have a reasonably
foreseeable significant effect on the quality of the human environment
but that cannot be categorically excluded or actions for which the
significance of the environmental impact is unknown, unless the agency
finds that the proposed action is a CE and does not clearly require the
preparation of an EIS.
(2) For FTA, the contractor's scope of work for the preparation of
the EA should not be finalized until the early coordination activities
or scoping process found in paragraph (b) of this section is completed
(including FTA approval, in consultation with the applicant, of the
scope of the EA content).
(b) For actions that require an EA, the applicant, in consultation
with the Administration, must, at the earliest appropriate time, begin
consultation with interested agencies and others to advise them of the
scope of the project, including project's purpose and need, and
alternatives to achieve the following objectives: Determine which
aspects of the proposed action have potential for reasonably
foreseeable social, economic, or environmental impacts; identify
alternatives and measures that might mitigate adverse environmental
impacts; and identify other environmental review and consultation
requirements that should be performed concurrently with the EA. The
applicant must accomplish this through early coordination activities or
through a scoping process. The applicant must summarize the public
involvement process and include the results of agency coordination in
the EA.
(c) The Administration must approve the EA before it is made
available to the public as an Administration document.
(d) The applicant does not need to circulate the EA for comment,
but the document must be made available for public inspection at the
applicant's office and at the appropriate Administration field offices
or, for FRA at Headquarters, for 30 days and in accordance with
paragraphs (e) and (f) of this section. The applicant must send the
notice of availability of the EA, which briefly describes the action
and its impacts, to the affected units of Federal, Tribal, State and
local government. The applicant must also send notice to the State
intergovernmental review contacts established under Executive Order
12372. To minimize hardcopy requests and printing costs, the
Administration encourages the use of project websites or other publicly
accessible electronic means to make the EA available.
(e) When a public hearing is held as part of the environmental
review process for an action, the EA must be available at the public
hearing and for a minimum of 15 days in advance of the public hearing.
The applicant must publish a notice of the public hearing in local
newspapers announcing the availability of the EA and where it may be
obtained or reviewed. Any comments must be submitted in writing to the
applicant or the Administration during the 30-day availability period
of the EA unless the Administration determines, for good cause, a
different period is warranted. Public hearing requirements are as
described in Sec. 771.111.
(f) When a public hearing is not held, the applicant must place a
notice in a newspaper(s) similar to a public hearing notice and at a
similar stage of development of the action, advising the public of the
availability of the EA and where information concerning the action may
be obtained. The notice must invite comments from all interested
parties. Any comments must be submitted in writing to the applicant or
the Administration during the 30-day availability period of the EA
unless the Administration determines, for good cause, a different
period is warranted.
(g) If no significant impacts are identified, the applicant must
furnish the Administration a copy of the revised EA, as appropriate;
the public hearing transcript, where applicable; copies of any comments
received and responses thereto; and recommend a FONSI. The EA should
also document compliance, to the extent possible, with all applicable
environmental laws and executive orders, or provide reasonable
assurance that their requirements can be met.
(h) When the FHWA expects to issue a FONSI for an action described
in Sec. 771.115(a), copies of the EA must be made available for public
review (including the affected units of government) for a minimum of 30
days before the FHWA makes its final decision. This public availability
must be announced by a notice similar to a public hearing notice.
(i) If, at any point in the EA process, the Administration
determines the action is likely to have a significant impact on the
environment, the preparation of an EIS will be required, unless the
Administration imposes mitigation measures or modifies the action to
avoid the significant effects.
(j) If the Administration decides to apply 23 U.S.C. 139 to an
action involving an EA, then the EA must be prepared in accordance with
the applicable provisions of that statute.

Sec. 771.121 Findings of no significant impact.

(a) The Administration will review the EA, comments submitted on
the EA

[[Page 56045]]

(in writing or at a public hearing or meeting), and other supporting
documentation, as appropriate. If the Administration agrees with the
applicant's recommendations pursuant to Sec. 771.119(g), the
Administration will issue a written FONSI incorporating by reference
the EA and any other appropriate supporting documentation.
(b) After the Administration issues a FONSI, a notice of
availability of the FONSI must be sent by the applicant to the affected
units of Federal, State, and local government, and the document must be
available from the applicant and the Administration upon request by the
public. Notice must also be sent to the State intergovernmental review
contacts established under Executive Order 12372. To minimize hardcopy
requests and printing costs, the Administration encourages the use of
project websites or other publicly accessible electronic means to make
the FONSI available.

Sec. 771.123 Draft environmental impact statements.

(a) A draft EIS must be prepared when the Administration determines
that the action is likely to cause significant impacts on the quality
of the human environment. When the applicant, after consultation with
any project sponsor that is not the applicant, has notified the
Administration in accordance with 23 U.S.C. 139(e), and the decision
has been made by the Administration to prepare an EIS, the
Administration will issue a notice of intent for publication in the
Federal Register. Applicants are encouraged to announce the intent to
prepare an EIS by appropriate means at the State or local level.
(b)(1) Prior to the notice of intent, the lead agencies, in
cooperation with the applicant (if not a lead agency), will begin a
scoping process that may take into account any planning work already
accomplished, in accordance with 23 U.S.C. 139(f), 168, 169, 23 CFR
450.212, 23 CFR 450.318, or 23 CFR 450 Appendix A, as applicable. The
scoping process will be used to identify the purpose and need, the
range of alternatives and reasonably foreseeable impacts, and the
significant issues to be addressed in the EIS. Scoping is normally
achieved through public and agency involvement procedures required by
Sec. 771.111. If a scoping meeting is to be held, it should be
announced in the Administration's notice of intent and by appropriate
means at the State or local level.
(2) For projects subject to 23 U.S.C. 139, the lead agencies must
establish a coordination plan, including a schedule, within 90 days of
notice of intent publication.
(c) The draft EIS must be prepared by the lead agencies, in
cooperation with the applicant (if not a lead agency) or prepared by
the project sponsor in accordance with Sec. 771.109(e). The draft EIS
must evaluate a reasonable range of alternatives to the action and
document the reasons why other alternatives, which may have been
considered, were eliminated from detailed study. The range of
alternatives considered for further study must be used for all Federal
environmental reviews and permit processes, to the maximum extent
practicable and consistent with Federal law, unless the lead and
participating agencies agree to modify the alternatives in order to
address significant new information and circumstances or to fulfill
NEPA responsibilities in a timely manner, in accordance with 23 U.S.C.
139(f)(4)(B). The draft EIS must also summarize the studies, reviews,
consultations, and coordination required by environmental laws or
executive orders to the extent appropriate at this stage in the
environmental process.
(d) Any of the lead agencies or the applicant may select a
consultant to assist in the preparation of an EIS in accordance with
applicable contracting procedures. For FTA, the contractor's scope of
work for the preparation of the EIS will not be finalized until the
early coordination activities or scoping process found in paragraph (b)
of this section is completed (including FTA approval, in consultation
with the applicant, of the scope of the EIS content).
(e) The draft EIS should identify the preferred alternative to the
extent practicable. If the draft EIS does not identify the preferred
alternative, the Administration should provide agencies and the public
with an opportunity after issuance of the draft EIS to review the
reasonably foreseeable impacts of the preferred alternative.
(f) At the discretion of the lead agency, the preferred alternative
(or portion thereof) for a project, after being identified, may be
developed to a higher level of detail than other alternatives in order
to facilitate the development of mitigation measures or compliance with
other legal requirements, including permitting. The development of such
higher level of detail must not prevent the lead agency from making an
impartial decision as to whether to accept another alternative being
considered in the environmental review process.
(g) The Administration, when satisfied that the draft EIS complies
with NEPA requirements, will approve the draft EIS for circulation by
signing and dating the cover sheet. The cover sheet should include a
notice that after circulation of the draft EIS and consideration of the
comments received, the Administration will issue a combined final EIS/
ROD document unless statutory criteria or practicability considerations
preclude issuance of the combined document.
(h) A lead, joint lead, or cooperating agency must be responsible
for publication and distribution of the EIS. Normally, copies will be
furnished free of charge. However, with Administration concurrence, the
party requesting the draft EIS may be charged a fee not more than the
actual cost of reproducing the copy or may be directed to the nearest
location where the statement may be reviewed. To minimize hardcopy
requests and printing costs, the Administration encourages the use of
project websites or other publicly accessible electronic means to make
the draft EIS available.
(i) The applicant, on behalf of the Administration, must circulate
the draft EIS for comment. The draft EIS must be made available to the
public and transmitted to agencies for comment no later than the time
the document is filed with the Environmental Protection Agency. The
draft EIS must be transmitted to:
(1) Public officials, interest groups, and members of the public
known to have an interest in the proposed action or the draft EIS;
(2) Cooperating and participating agencies. The draft EIS must also
be transmitted directly to appropriate State and local agencies, and to
the State intergovernmental review contacts established under Executive
Order 12372; and
(3) States and Federal land management entities that may be
significantly affected by the proposed action or any of the
alternatives. These transmittals must be accompanied by a request that
such State or entity advise the Administration in writing of any
disagreement with the evaluation of impacts in the statement. The
Administration will furnish the comments received to the applicant
along with a written assessment of any disagreements for incorporation
into the final EIS.
(j) When a public hearing on the draft EIS is held (if required by
Sec. 771.111), the draft EIS must be available at the public hearing
and for a minimum of 15 days in advance of the public hearing. The
availability of the draft EIS must be mentioned, and public comments
requested, in any public hearing notice

[[Page 56046]]

and at any public hearing presentation. If a public hearing on an
action proposed for FHWA funding is not held, a notice must be made
similar to a public hearing notice advising where the draft EIS is
available for review, how copies may be obtained, and where the
comments should be sent.
(k) The Federal Register public availability notice must establish
a period of not fewer than 45 days nor more than 60 days for the return
of comments on the draft EIS unless a different period is established
in accordance with 23 U.S.C. 139(g)(2)(A). The notice and the draft EIS
transmittal letter must identify where comments are to be sent.

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

(a)(1) After circulation of a draft EIS and consideration of
comments received, the lead agency, in cooperation with the applicant
(if not a lead agency), must combine the final EIS and ROD, to the
maximum extent practicable, unless:
(i) The final EIS makes substantial changes to the proposed action
relevant to environmental or safety concerns; or
(ii) There are significant new circumstances or information
relevant to environmental concerns that bear on the proposed action or
the reasonably foreseeable impacts of the proposed action.
(2) When the combined final EIS/ROD is a single document, it must
include the content of a final EIS presented in Sec. 771.125 and
present the basis for the decision, summarize any mitigation measures
that will be incorporated in the project, and document any required
Section 4(f) approval in accordance with part 774 of this chapter.
(3) If the comments on the draft EIS are minor and confined to
factual corrections or explanations that do not warrant additional
agency response, an errata sheet may be attached to the draft statement
pursuant to 23 U.S.C. 139(n)(1), which together must then become the
combined final EIS/ROD.
(4) A combined final EIS/ROD will be reviewed for legal sufficiency
prior to issuance by the Administration.
(5) The Administration must indicate approval of the combined final
EIS/ROD by signing the document. The provision on Administration's
Headquarters prior concurrence in Sec. 771.125(c) applies to the
combined final EIS/ROD.
(b) The Federal Register public availability notice published by
EPA will not establish a waiting period or a period of time for the
return of comments on a combined final EIS/ROD. When filed with EPA,
the combined final EIS/ROD must be available at the applicant's offices
and at appropriate Administration offices. A copy should also be made
available at institutions such as local government offices, libraries,
and schools, as appropriate. To minimize hardcopy requests and printing
costs, the Administration encourages the use of project websites or
other publicly accessible electronic means to make the combined final
EIS/ROD available.

Sec. 771.125 Final environmental impact statements.

(a)(1) After circulation of a draft EIS and consideration of
comments received, a final EIS must be prepared by the lead agencies,
in cooperation with the applicant (if not a lead agency). The final EIS
must identify the preferred alternative and evaluate all reasonable
alternatives considered. It must also discuss substantive comments
received on the draft EIS and responses thereto, summarize public
involvement, and describe the mitigation measures to be incorporated
into the proposed action. Mitigation measures presented as commitments
in the final EIS will be incorporated into the project as specified in
paragraphs (b) and (d) of Sec. 771.109. The final EIS should also
document compliance, to the extent possible, with all applicable
environmental laws and executive orders, or provide reasonable
assurance their requirements can be met.
(2) Every reasonable effort must be made to resolve interagency
disagreements on actions before processing the final EIS. If
significant issues remain unresolved, the final EIS must identify those
issues and the consultations and other efforts made to resolve them.
(b) The final EIS will be reviewed for legal sufficiency prior to
Administration approval.
(c) The Administration will indicate approval of the EIS for an
action by signing and dating the cover page. Final EISs prepared for
actions in the following categories will be submitted to the
Administration's Headquarters for prior concurrence:
(1) Any action for which the Administration determines that the
final EIS should be reviewed at the Headquarters office. This would
typically occur when the Headquarters office determines:
(i) Additional coordination with other Federal, State or local
governmental agencies is needed;
(ii) The social, economic, or environmental impacts of the action
may need to be more fully explored;
(iii) The impacts of the proposed action are unusually great; (iv)
major issues remain unresolved; or
(iv) The action involves national policy issues.
(2) Any action to which a Federal, State, or local government
agency has indicated opposition on environmental grounds (which has not
been resolved to the written satisfaction of the objecting agency).
(d) Approval of the final EIS is not an Administration action as
defined in Sec. 771.107 and does not commit the Administration to
approve any future request for financial assistance to fund the
preferred alternative.
(e) The initial publication of the final EIS must be in sufficient
quantity to meet the request for copies reasonably expected from
agencies, organizations, and individuals. Normally, copies will be
furnished free of charge. However, with Administration concurrence, the
party requesting the final EIS may be charged a fee not more than the
actual cost of reproducing the copy or may be directed to the nearest
location where the statement may be reviewed.
(f) The final EIS must be transmitted to any persons,
organizations, or agencies that made substantive comments on the draft
EIS or requested a copy, no later than the time the document is filed
with EPA. In the case of lengthy documents, the agency may provide
alternative circulation processes. The applicant must also publish a
notice of availability in local newspapers and make the final EIS
available through the mechanism established pursuant to DOT Order
4600.13, which implements Executive Order 12372. When filed with EPA,
the final EIS must be available for public review at the applicant's
offices and at appropriate Administration offices. A copy should also
be made available for public review at institutions such as local
government offices, libraries, and schools, as appropriate. To minimize
hardcopy requests and printing costs, the Administration encourages the
use of project websites or other publicly accessible electronic means
to make the final EIS available.
(g) The final EIS may take the form of an errata sheet pursuant to
23 U.S.C. 139(n)(1).

Sec. 771.127 Record of decision.

(a) When the final EIS is not combined with the ROD, the
Administration will complete and sign a ROD no sooner than 30 days
after publication of the final EIS notice in the Federal Register or 90
days after publication of a notice for the draft EIS, whichever is
later. The ROD will

[[Page 56047]]

present the basis for the decision, summarize any mitigation measures
to be incorporated in the project, and document any required Section
4(f) approval in accordance with part 774 of this chapter. To minimize
hardcopy requests and printing costs, the Administration encourages the
use of project websites or other publicly accessible electronic means
to make the ROD available.
(b) If the Administration subsequently wishes to approve an
alternative not identified as the preferred alternative but fully
evaluated in the draft EIS, combined FEIS/ROD, or final EIS, or
proposes to make substantial changes to the mitigation measures or
findings discussed in the ROD, a revised or amended ROD must be subject
to review by those Administration offices that reviewed the final EIS
under Sec. 771.124(a) or Sec. 771.125(c). To the extent practicable,
the approved revised or amended ROD must be provided to all persons,
organizations, and agencies that received a copy of the final EIS.

Sec. 771.129 Re-evaluations.

The Administration must determine, prior to granting any new
approval related to an action or amending any previously approved
aspect of an action, including mitigation commitments, whether an
approved environmental document remains valid as described in this
section.
(a) The applicant must prepare a written evaluation of the draft
EIS, in cooperation with the Administration, if an acceptable final EIS
is not submitted to the Administration within three years from the date
of the draft EIS circulation. The purpose of this evaluation is to
determine whether or not a supplement to the draft EIS or a new draft
EIS is needed.
(b) The applicant must prepare a written evaluation of the final
EIS before the Administration may grant further approvals if major
steps to advance the action (e.g., authority to undertake final design,
authority to acquire a significant portion of the right-of-way, or
approval of the plans, specifications and estimates) have not occurred
within three years after the approval of the final EIS, final EIS
supplement, or the last major Administration approval or grant.
(c) After the Administration issues a combined final EIS/ROD, ROD,
FONSI, or CE designation, the applicant must consult with the
Administration prior to requesting any major approvals or grants to
establish whether or not the approved environmental document or CE
designation remains valid for the requested Administration action.
These consultations will be documented when determined necessary by the
Administration.
(d) For tiered EAs or EISs, if the second tier occurs 5 or more
years after the first tier document, the applicant in consultation with
the Administration, must re-evaluate the analysis and any underlying
assumptions of the first tier EIS or EA to ensure reliance on the
analysis remains valid.

Sec. 771.130 Supplemental environmental impact statements.

(a) A draft EIS, final EIS, or supplemental EIS may be supplemented
at any time. An EIS must be supplemented whenever the Administration
determines:
(1) Changes to the proposed action would result in significant
environmental impacts not evaluated in the EIS; or
(2) New information or circumstances relevant to environmental
concerns and bearing on the proposed action or its impacts would result
in significant environmental impacts not evaluated in the EIS.
(b) However, a supplemental EIS will not be necessary where:
(1) The changes to the proposed action, new information, or new
circumstances result in a lessening of adverse environmental impacts
evaluated in the EIS without causing other reasonably foreseeable
environmental impacts that are significant and were not evaluated in
the EIS; or
(2) The Administration decides to approve an alternative fully
evaluated in an approved final EIS but not identified as the preferred
alternative. In such a case, a revised ROD must be prepared and
circulated in accordance with Sec. 771.127(b).
(c) Where the Administration is uncertain of the significance of
the new impacts, the applicant will develop appropriate environmental
studies or, if the Administration deems appropriate, an EA to assess
the reasonably foreseeable impacts of the changes, new information, or
new circumstances. If, based upon the studies, the Administration
determines that a supplemental EIS is not necessary, the Administration
must so indicate in the project file.
(d) A supplement is to be developed using the same process and
format (i.e., draft EIS, final EIS, and ROD) as an original EIS, except
scoping is not required.
(e) In some cases, an EA or supplemental EIS may be required to
address issues of limited scope, such as the extent of proposed
mitigation or the evaluation of location or design variations for a
limited portion of the overall project. Where this is the case, the
preparation of a supplemental document must not necessarily:
(1) Prevent the granting of new approvals;
(2) Require the withdrawal of previous approvals; or
(3) Require the suspension of project activities, for any activity
not directly affected by the supplement. If the changes in question are
of such magnitude to require a reassessment of the entire action, or
more than a limited portion of the overall action, the Administration
must suspend any activities that would have an adverse environmental
impact or limit the choice of reasonable alternatives, until the
supplemental document is completed.

Sec. 771.131 Emergency action procedures.

Responses to some emergencies and disasters are categorically
excluded under Sec. 771.117 for FHWA, Sec. 771.118 for FTA, or Sec.
771.116 for FRA. Otherwise, requests for deviations from the procedures
in this part because of emergency circumstances must be referred to the
Administration's Headquarters for evaluation and decision after
consultation with the CEQ.

Sec. 771.133 Compliance with other requirements.

(a) The combined final EIS/ROD, final EIS or FONSI should document
compliance with requirements of all applicable environmental laws,
executive orders, and other related requirements. If full compliance is
not possible by the time the combined final EIS/ROD, final EIS or FONSI
is prepared, the combined final EIS/ROD, final EIS or FONSI should
reflect consultation with the appropriate agencies and provide
reasonable assurance that the requirements will be met. Approval of the
environmental document constitutes adoption of any Administration
findings and determinations that are contained therein. FHWA's approval
of an environmental document constitutes its finding of compliance with
the report requirements of 23 U.S.C. 128.
(b) In consultation with the Administration and subject to
Administration approval, an applicant may develop a programmatic
approach for compliance with the requirements of any law, regulation,
or executive order applicable to the project development process.

[[Page 56048]]

Sec. 771.137 International actions.

(a) If the Administration determines a major Federal action is
proposed, the requirements of this part apply to:
(1) Administration actions significantly affecting the environment
of a foreign nation not participating in the action or not otherwise
involved in the action.
(2) Administration actions outside the U.S., its territories, and
possessions that significantly affect natural resources of global
importance designated for protection by the President or by
international agreement.
(b) If communication with a foreign government concerning
environmental studies or documentation is anticipated, the
Administration must coordinate such communication with the Department
of State through the Office of the Secretary of Transportation.

Sec. 771.138 Timelines, Page Limits, and Certifications

(a)(1) Timelines for completion of EISs. (i) The Administration
must complete the EIS no later than 2 years from publication of the
notice of intent to the signature date of the ROD or combined final
EIS/ROD (as applicable).
(ii) For EISs that are major projects, the Administration must, to
the maximum extent practicable, complete the EIS within a schedule
consistent with an agency average of not more than 2 years from
publication of the notice of intent to the signature date of the ROD or
combined final EIS/ROD.
(2) Timelines for completion of EAs.
(i) The Administration must complete the EA no later than 1 year
from the date the Administration determined the class of action to the
signature date of the EA. If a notice of intent is published for an EA,
then the start date shall be the publication date.
(ii) For EAs that are major projects, the Administration must, to
the maximum extent practicable, complete the EA within a schedule
consistent with an agency average of not more than two years from the
date the Administration determined the EA was required to the signature
date of the FONSI. If a notice of intent is published for an EA, then
the start date shall be the publication date.
(3) The Administration, in consultation with the applicant, may
extend the timelines described in paragraphs (a)(1)(i) and (a)(2)(i) to
provide only so much additional time as necessary to complete the EIS
or EA, as applicable.
(b) Page Limits. (1) EIS--
(i) The text of an EIS must not exceed 200 pages, not including
citations or appendices, to the maximum extent practicable, unless the
Administration establishes a new page limit;
(ii) When a project does not follow the 23 U.S.C. 139 process, the
EIS must not exceed 150 pages, not including citations or appendices.
An EIS for a proposed action of extraordinary complexity must not
exceed 300 pages, not including any citations or appendices.
(2) The text of an EA must not exceed 75 pages, not including any
citations or appendices.
(c) Certifications. (1) The lead agency(ies) signature on the EA,
final EIS, or combined final EIS/ROD (as applicable) will certify that
the Administration has considered the factors mandated by this part;
that the EA, final EIS, or combined final EIS/ROD (as applicable),
reflects the Administration's expert judgment and documents the most
important considerations required by the statute and within the
applicable timeline and page limits; and that any considerations
addressed briefly or left unaddressed were, in the Administration's
judgment, comparatively unimportant.

Sec. 771.139 Limitations on actions.

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

Sec. 771.141 Reliance and Adoption Efficiencies

(a) When a single environmental document is not prepared for a
proposed major Federal action, an agency may rely upon an existing
environmental document, or element thereof, to document compliance with
NEPA as follows:
(1) Any Federal agency may rely upon an environmental document
prepared in accordance with 23 U.S.C. 139 to the same extent such
Federal agency could adopt or use a document prepared by another
Federal agency.
(2) The Administration may rely upon an existing environmental
document not prepared in accordance with 23 U.S.C. 139 if the
Administration determines that the proposed action is substantially the
same as the action covered in the existing environmental document and
that the environmental issues were adequately identified and addressed.
(3) The Administration may rely upon an existing categorical
exclusion decision by another Federal agency if the Administration
determines that a proposed major Federal action is substantially the
same as the action that another Federal agency determined is
categorically excluded from NEPA.
(4) A Federal land management agency may rely upon an existing
environmental document or categorical exclusion decision prepared by
FHWA for a project addressing substantially the same major Federal
action proposed for approval by the Federal land management agency.
(b) Adoption of Categorical Exclusions under 42 U.S.C. 4336c:
(1) FHWA, FRA, or FTA may establish a new categorical exclusion by
adopting a category of action listed as a categorical exclusion in
another agency's NEPA procedures.
(2) A State functioning as FHWA, FRA, or FTA in carrying out
responsibilities delegated or assigned to the State in accordance with
23 U.S.C. 326 or 327 may not establish a new categorical exclusion
through adoption.
(3) To establish the new categorical exclusion, the Administration
will:
(i) identify the categorical exclusion listed in another agency's
NEPA procedures that covers a category of proposed actions or related
actions;
(ii) consult with the agency that established this categorical
exclusion to ensure that the proposed adoption of the categorical
exclusion to a category of Administration actions is appropriate; and
(iii) Provide public notification that the Administration plans to
use the categorical exclusion for its proposed actions by documenting
its adoption.
(4) The Administration may begin to apply the newly adopted
categorical exclusion to proposed major Federal actions upon completion
of sub-paragraphs (b)(3)(i)-(iii).

[[Page 56049]]

Title 49--Transportation

PART 264--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

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

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 24201; 23
U.S.C. 139, 327, 330; 49 CFR 1.81; Pub. L. 112-141, 126 Stat. 405,
Section 1319; and Pub. L. 114-94, 129 Stat. 1312, Sections 1309,
1432, 11502, and 11503.

0
3. Revise part 622, Subpart A to read as follows:

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

Subpart A--Environmental Procedures

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303, 5323(c), and
5323(q); 23 U.S.C. 139, 326, 327, and 330; Pub. L. 109-59, 119 Stat.
1144, Sections 6002 and 6010; 49 CFR 1.81; Pub. L. 112-141, 126
Stat. 405, Sections 1315, 1316, 1317, and 1318; and Pub. L. 114-94,
Section 1309.

Sec. 622.101 Cross-reference to procedures.

The procedures for complying with the National Environmental Policy
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes,
regulations, and Executive Orders are set forth in 23 CFR part 771,
including compliance with FTA's environmental review statute located at
49 U.S.C. 5323(c). The procedures for complying with 49 U.S.C. 303,
commonly known as ``Section 4(f),'' are set forth in 23 CFR part 774.
The procedures for complying with the Surface Transportation Project
Delivery Program application requirements and termination are set forth
in 23 CFR part 773. The procedures for participating and complying with
the program for eliminating duplication of environmental reviews are
set forth in 23 CFR part 778.

[FR Doc. 2026-17904 Filed 8-31-26; 8:45 am]
BILLING CODE 4910-22-P

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