[Federal Register Volume 71, Number 144 (Thursday, July 27, 2006)]
[Proposed Rules]
[Pages 42611-42622]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6496]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 771 and 774

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-05-22884]
RIN 2125-AF14 and 2132-AA83


Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and 
Historic Sites

AGENCIES: Federal Highway Administration (FHWA) and Federal Transit 
Administration (FTA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: This proposal would modify the procedures for granting 
approvals under 23 U.S.C. 138 and 49 U.S.C. 303 (hereafter referred to 
as ``Section 4(f)'' \1\) in several ways. First, this proposal 
clarifies the factors to be considered and the standards to be applied 
when determining if an alternative for avoiding the use of Section 4(f) 
property is feasible and prudent. Second, this NPRM proposes to clarify 
the factors to be considered when selecting a project alternative in 
situations where all alternatives use Section 4(f) property and no 
feasible and prudent avoidance alternative exists. Third, this proposal 
would establish procedures for determining that the use of a Section 
4(f) property has de minimis impacts. Fourth, the proposal updates the 
regulation to recognize statutory and common-sense exceptions for uses 
that advance Section 4(f)'s preservationist goals; as well as the 
option of conducting certain Section 4(f) evaluations on a programmatic 
basis. Fifth, this proposal would move the Section 4(f) regulations out 
of the agencies' National Environmental Policy Act regulations (23 CFR 
part 771, ``Environmental Impact and Related Procedures''), into a 
separate part of 23 CFR, with a reorganized structure that is easier to 
use.
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    \1\ Section 4(f) of the Department of Transportation Act of 1966 
was technically repealed in 1983 when it was codified without 
substantive change at 49 U.S.C. 303. A provision with the same 
meaning is found at 23 U.S.C. 138 and applies only to FHWA actions. 
This regulation continues to refer to Section 4(f) as such because 
it would create needless confusion to do otherwise; the policies 
Section 4(f) engendered are widely referred to as ``Section 4(f)'' 
matters.

DATES: Comments must be received on or before September 25, 2006. Late-
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filed comments will be considered to the extent practicable.

ADDRESSES: Written Comments: Submit written comments to the Dockets 
Management System, U.S. Department of Transportation, Room PL-401, 400 
Seventh Street, SW., Washington, DC 20590-0001.
    Comments. You may submit comments identified by the docket number 
(FHWA-05-22884) by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2478.
     Mail: Docket Management System; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
     Hand Delivery: To the Docket Management System; Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
notice. For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the Public Participation 
heading of the Supplementary Information section of this document. Note 
that all comments received will be posted without change to http://
dms.dot.gov including any personal information provided. Please see the 
Privacy Act heading under Supplementary Information.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to the 
Docket Management System (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: For FHWA, Diane Mobley, Office of the

[[Page 42612]]

Chief Counsel, 202-366-1372, or Lamar Smith, Office of Project 
Development and Environmental Review, 202-366-8994. For FTA, Joseph 
Ossi, Office of Planning and Environment, 202-366-1613, or Christopher 
VanWyk, Office of Chief Counsel, 202-366-1733. Both agencies are 
located at 400 Seventh Street, SW., Washington, DC 20590-0001. Office 
hours are from 7:45 a.m. to 4:15 p.m. for FHWA, and 9 a.m. to 5:30 p.m. 
for FTA, Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    SAFETEA-LU. Section 6009 of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 
(Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144) is the impetus for this 
rulemaking action. Section 6009(b) directs the Secretary of 
Transportation (Secretary) to promulgate regulations within 1 year 
(i.e., by August 10, 2006). The rulemaking must clarify ``the factors 
to be considered and the standards to be applied in determining the 
prudence and feasibility of alternatives, to using Section 4(f) 
properties for transportation projects. Section 4(f) properties are 
significant parks, recreation areas, refuges, and historic sites 
described in section 4(f) of the Department of Transportation Act of 
1966, (Pub. L. 89-670, 80 Stat. 931) currently codified at 23 U.S.C. 
138 and 49 U.S.C. 303. A joint FHWA-FTA regulation implementing Section 
4(f) is currently located at 23 CFR 771.135. The regulation does not 
currently address what factors should be considered and what standards 
should be applied when determining if an avoidance alternative is 
feasible and prudent. This rulemaking proposes to establish those 
factors and standards as directed by SAFETEA-LU.
    The rulemaking also includes a new, alternative method of 
compliance for uses with de minimis impacts to a Section 4(f) property. 
Prior to SAFETEA-LU, Section 4(f) prohibited all uses of Section 4(f) 
properties for transportation projects unless the agency determined 
there was no feasible and prudent avoidance alternative and all 
possible planning to minimize harm had occurred. Section 6009(a) of 
SAFETEA-LU amended the statute such that uses with de minimis impacts 
can be approved without an analysis of avoidance alternatives. This 
section does not need regulations to become effective. However, we 
propose to incorporate the procedures implementing this provision into 
this rule. These procedures reflect the statutory provisions, and 
guidance issued on December 13, 2005 and provided to the public via 
FHWA's Web site at http://www.fhwa.dot.gov/hep/legreg.htm.
    History. Section 4(f) was enacted during the peak of the Interstate 
Highway construction program. At that time, many proposed Interstate 
Highways threatened major urban parks and historic districts. Much of 
the early case law on Section 4(f) was decided prior to the 
establishment of implementing regulations on cases involving these 
major new highways, prompting some courts to issue strict 
interpretations of Section 4(f). This began with the Supreme Court's 
seminal decision in Citizens to Preserve Overton Park v. Volpe, 401 
U.S. 402 (1971) (``Overton Park'').
    In Overton Park, the Supreme Court considered a challenge to the 
Secretary's approval for the construction of a six-lane highway, mostly 
at-grade through Memphis, Tennessee's centerpiece, inner-city Overton 
Park. Much of the planning for the highway location occurred prior to 
the enactment of Section 4(f), and the reasons for FHWA's rejection of 
avoidance alternatives were not documented. The Court remanded the case 
to the district court on other grounds to answer several questions that 
could not be determined from the sparse administrative record. However, 
in its opinion, the Court articulated a high standard for compliance 
with Section 4(f), stating that Congress intended the protection of 
parkland to be of paramount importance. The Court further opined that 
an avoidance alternative to using Section 4(f) property must always be 
selected unless it would present ``uniquely difficult problems'' or 
require ``costs or community disruption of extraordinary magnitude.'' 
Id., at 411-12, 416. The Court remanded the case back to the district 
court. This very stringent reading of Section 4(f) has guided courts 
ever since in applying Section 4(f) to specific decisions made by 
transportation agencies.
    In the years following Overton Park, courts around the country 
applied the decision differently to essentially similar situations, 
reaching different conclusions as to how various factors may be 
considered and what weight may be attached to those factors when the 
agency determines if an avoidance alternative is or is not feasible and 
prudent. Some court decisions produced relatively strict and 
inflexible, almost mechanical, interpretations of Section 4(f) and 
resulted in an even more stringent interpretation of what is feasible 
and prudent than did Overton Park. Those decisions severely restricted 
the agencies' ability to make tradeoffs among societally important 
resources and forced the selection of alternatives that had other 
significant adverse economic, social, and environmental costs, even if 
the impact to the Section 4(f) property was minor or the property 
itself relatively unimportant. One early decision, for example, held 
that any harm to 4(f) property, no matter how small, would trigger the 
application of Section 4(f). Louisiana Environmental Society v. 
Coleman, 537 F.2d 79 (5th Cir. 1976). Further, an avoidance alternative 
with significant residential displacements (more than 1500 homes taken) 
could not be rejected as imprudent, regardless of the scale or degree 
of corresponding harm to the Section 4(f) property. Id.
    Other later cases struggled to apply Overton Park to more factually 
complex projects, such as projects with multiple Section 4(f) 
properties and for which no total avoidance alternative is possible. At 
the same time, the highway program evolved from an emphasis on 
constructing the vast Interstate System to today's primary concerns of 
system preservation, congestion relief, and modernization of existing 
facilities. Regulations were implemented for Section 4(f) establishing 
a process for making and documenting decisions, including documenting 
the reasons for rejecting avoidance alternatives. See 23 CFR 771.135, 
52 FR 32660, Aug. 28, 1987.
    Planning rules evolved to require early attention to avoiding major 
Section 4(f) properties. Each State is now required to have a continual 
process for evaluating and updating its long range plan for 
transportation improvements. One element of the planning process is to 
``consider, analyze as appropriate and reflect in the planning process 
products * * * access to * * * national parks, recreation and scenic 
areas, monuments and historic sites.'' 23 CFR 450.208(a)(4), 58 FR 
58064, Oct. 28, 1993.\2\ Innumerable new mitigation options and 
techniques have also been developed since Section 4(f) was enacted, 
including context sensitive design principles, new methods for 
mitigating noise and reducing adverse effects to historic properties, 
and new stormwater treatment options. The result of these developments 
is that the rigid interpretations from the early court decisions are 
often an awkward fit with the consequences to the Section 4(f)

[[Page 42613]]

property. In most instances, those consequences are not as extreme as 
what was considered in Overton Park and other early cases.
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    \2\ The statewide transportation planning process was also 
amended by SAFETEA-LU (sections 3006 and 6001); the agencies will 
likely implement these changes in a separate rulemaking.
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    Over time, some courts reconciled these changes by interpreting the 
language of Section 4(f) and Overton Park in a way that balances the 
harm to the property with impacts to other resources. While those 
courts continued to insist on a heightened standard for protecting 
Section 4(f) sites, they did allow for consideration of mitigation 
opportunities, harm to other important resources, and the magnitude of 
impact to the Section 4(f) property. This balancing approach became the 
new case law standard in several areas of the country. An example of 
the balancing approach is a 1993 case involving the construction of a 
replacement road for one that had formerly traversed the top of a dam. 
The proposed road replacement alternative would travel through a 347 
acre park, taking a total of 5.7 acres of the park. The FHWA found that 
there was no feasible and prudent alternative to this alignment. 
Committee to Preserve Boomer Lake Park v. Skinner, 4 F.3d 1543 (10th 
Cir. 1993).
    In its review of FHWA's decision, the Boomer Lake court described 
the term ``prudent'' as involving a ``common sense balancing of 
practical concerns,'' although cautioning that the problems encountered 
by proposed avoidance alternatives must be ``truly unusual'' or reach 
``extraordinary magnitude'' before parkland can be taken. The court 
found that the avoidance alternative had several problems when compared 
to the proposed route, including higher road user costs, substandard 
curves raising safety concerns, more traffic congestion due to failure 
to accommodate east-west traffic, more relocations, more intersection 
modifications, and higher construction costs. Additionally, the court 
found that the proposed alignment had beneficial impacts by providing 
better fishing access, improving water quality, and connecting the east 
and west sides of the park. The court concluded that, although none of 
these factors alone would be a basis for rejecting the avoidance 
alternative, their cumulative weight was sufficient to support FHWA's 
decision. Id.

General Discussion of the Proposed Rule

    Feasible and Prudent Test. As directed by Congress, this NPRM 
proposes to clarify the factors to be considered and the standards to 
be applied in determining the feasibility and prudence of alternatives 
avoiding the use of Section 4(f) properties by transportation projects. 
In the SAFETEA-LU conference report, Congress noted that ``the 
fundamental legal standard contained in the Overton Park decision for 
evaluating the prudence and feasibility of avoidance alternatives will 
remain as the legal authority for these regulations, however, the 
Secretary will be able to provide more detailed guidance on applying 
these standards on a case-by-case basis.'' H.R. Rep. No. 109-203, at 
pp. 1057-1058 (2005).
    This NPRM proposes a standard that is consistent with the 
fundamental legal standard of Overton Park. It would recognize the 
importance of protecting Section 4(f) properties and, when the impacts 
are more than de minimis, it would require the consideration and 
documentation of the severe problems associated with avoidance 
alternatives before the use of a Section 4(f) property could be 
approved. The agencies intend to adopt the reasoning of several U.S. 
Circuit Courts of Appeal that safety concerns, adverse impacts to non-
Section 4(f) resources such as communities and natural environmental 
resources, and the costs of constructing and operating an alternative 
must be compared to the harm that would result to the features, 
activities, and attributes that qualify the Section 4(f) property for 
protection.
    This balancing must be done with a ``thumb on the scale'' in favor 
of the Section 4(f) property because of the paramount importance 
Section 4(f) places on those properties. Thus, to support a finding 
that an avoidance alternative is not feasible and prudent, the problems 
associated with avoiding the Section 4(f) property would always have to 
be severe in nature and not easily mitigated. However, a sliding scale 
approach to the magnitude of harm is proposed, because it is 
appropriate to consider the value of the individual Section 4(f) 
property in context. For example, some historic sites are significant 
beyond doubt and are permanently protected. Such properties should be 
protected absent extraordinary problems with the avoidance 
alternatives. Other historic sites of less significance, or which are 
likely to be legally destroyed or developed by their owner in the near 
future, may be outweighed by relatively less severe problems with the 
avoidance alternatives.
    A number of examples exist of a strict and inflexible 
interpretation of Section 4(f) causing the re-routing of a proposed 
transportation project at great cost in terms of money and other 
environmental impacts, only to see the historic property torn down soon 
after construction. The holistic approach proposed will provide the 
flexibility needed to make wise transportation decisions while still 
protecting Section 4(f) properties as well as other important 
resources. When Section 4(f) is applied without regard to other 
resources or without flexibility, it undermines support for Section 
4(f).
    This proposal does not require a finding that every factor 
mitigating against an avoidance alternative is ``unique,'' despite that 
term appearing several times in Overton Park's dicta. The Seventh 
Circuit has explained that the Overton Park Court ``was being emphatic, 
not substituting `unique' for `prudent' in the text of Sec.  4(f).'' 
Eagle Foundation v. Dole, 813 F.2d 798, 804-05 (7th Cir. 1987). We 
agree that severe difficulties may justify the use of a Section 4(f) 
property even if the type of problem is not uncommonly encountered when 
constructing a transportation project. Therefore, we do not propose to 
require a finding in every instance that the problem rendering an 
avoidance alternative not feasible and prudent is a ``unique'' problem. 
Rather, in determining whether there are ``extraordinary 
circumstances'' that would lead to a conclusion that it is not feasible 
and prudent to avoid a Section 4(f) property, it is appropriate to 
consider the situation as a whole, taking into account the cumulative 
effects of avoiding the Section 4(f) property and the net harm to the 
property after incorporating available mitigation.
    Standard for De Minimis Impacts. Section 6009(a) of SAFETEA-LU 
modified Section 4(f) to allow the agencies to approve a transportation 
use of Section 4(f) property with ``de minimis'' impacts, without an 
alternatives analysis and determination that no feasible and prudent 
avoidance alternative exists. The FHWA and the FTA issued guidance for 
implementing the de minimis impact provision on December 13, 2005. A 
copy of the guidance was placed in the docket for this NPRM and it is 
also available for review online at http://www.fhwa.dot.gov/hep/
legreg.htm. This rulemaking includes a definition of de minimis 
impacts, and also proposes to include general standards and procedures 
for making findings of de minimis impacts.
    Establishment of a New Part 774. This NPRM proposes to separate 
Section 4(f) from the agencies' National Environmental Policy Act 
(NEPA) regulations in 23 CFR 771. Years of applying Section 4(f) to new 
and unprecedented situations have led to a history of case experience 
that is reflected in the regulation. As a result,

[[Page 42614]]

the rules governing Section 4(f) have grown in length and complexity to 
the point that they warrant their own part in the CFR for ease of 
reference and citation. The new part was reorganized to make it more 
user-friendly, and consistent terminology was adopted where the current 
regulation uses inconsistent terms with the same meaning. For example, 
Section 4(f) properties would no longer be called Section 4(f) 
``resources'' in some sections.
    It should be noted that the proposed separation of the Section 4(f) 
and NEPA regulations is not intended to fragment compliance with 
Section 4(f) and NEPA. Our intent is to continue a fully integrated 
implementation under the unified and coordinated process provided by 
the NEPA procedures for compliance with the requirements of all 
applicable environmental laws. Placing the two regulations in close 
proximity within the Code of Federal Regulations, with cross-references 
between them, is intended to communicate the continued integration of 
Section 4(f) approvals with the NEPA process.

Section-by-Section Analysis

    The following segment of this NPRM provides a section-by-section 
analysis of the proposed changes.

Title 23

Section 771.127 Record of Decision

    Paragraph (a) of this section would be revised to refer to part 774 
in place of 771.135.

Section 771.135 Section 4(f) (49 U.S.C. 303)

    This section would be deleted in its entirety.
Part 774--Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and 
Historic Sites (Section 4(f))
    We propose to move the current Section 4(f) regulations from the 
National Environmental Policy Act regulations (23 CFR part 771) into a 
new 23 CFR part 774. The title of the part is proposed to be revised 
from simply ``Section 4(f)'' to incorporate the descriptive language 
from the title of section 6009 of SAFETEA-LU; ``Parks, Recreation 
Areas, Wildlife and Waterfowl Refuges, and Historic Sites (Section 
4(f)).'' The authority is revised from part 771 to include only the 
citations relevant to Section 4(f) and a reference to SAFETEA-LU was 
added.
    While the agencies propose to move the current Section 4(f) 
regulation from 23 CFR part 771 to 23 CFR part 774 without significant 
substantive changes other than those noted in this preamble, the 
existing provisions have been reorganized to make the requirements 
easier to understand. The proposed structure begins with the general 
framework of the process of Section 4(f) approvals, followed by 
coordination, format, and timing requirements for making approvals, and 
concluding with the many specific requirements applicable to Section 
4(f) decisionmaking. Since a few of the definitions were quite lengthy 
and complex, the agencies propose to include the definitions section at 
the end, rather than the more typical location at the beginning, which 
the agencies believe would make the regulations easier to understand. 
Since most of the practitioners to whom this regulation would be 
directed are responsible for analyses under dozens of different 
environmental laws, the simplified structure will facilitate 
compliance. The proposed structure is:

Sec.
774.1 Purpose.
774.3 Section 4(f) approvals.
774.5 Coordination.
774.7 Format.
774.9 Timing.
774.11 Applicability.
774.13 Exceptions.
774.15 Constructive use determinations.
774.17 Definitions.

    For ease of reference, a distribution table is provided tracking 
the current sections and proposed sections:

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       Current section in part 771               Proposed section
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None....................................  774.1 Purpose.
771.135(a)(1)...........................  774.3 Section 4(f) approvals.
771.135(i) [in part]....................  774.5 Coordination.
771.135(a)(2), (i) [in part], (j), (k),   774.7 Format.
 and (o).
771.135(b) [in part], (g)(1), (l), (m)    774.9 Timing.
 and (n).
771.135(b) [in part], (c), (d), (e),      774.11 Applicability.
 (g)(1) and p(5)(v).
771.135(f), (g)(2), (h), (p)(5) [in       774.13 Exceptions.
 part], and (p)(7).
771.135(p)(3), (p)(4) and (p)(6)........  774.15 Constructive use
                                           determinations.
771.107(d) and (a)(2), and 771.135(p)(1)  774.17 Definitions.
 and (p)(2).
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Section 774.1 Purpose

    This section is new. It was added to clarify the purpose of the 
regulations, which is to implement 49 U.S.C. 303 and 23 U.S.C. 138 
(Section 4(f)).

Section 774.3 Section 4(f) Approvals

    This section describes the general requirements for approving the 
use of Section 4(f) property. Current section 771.135(a)(1) provided 
the basis for the part of this section concerning traditional Section 
4(f) approvals. The new provision in section 6009(a) of SAFETEA-LU for 
making de minimis impact determinations in lieu of the traditional 
analysis is implemented with language that largely follows the statute. 
There are cross-references to the definitions for ``use,'' ``feasible 
and prudent,'' and ``all possible planning,'' and to the sections of 
the regulation governing the coordination, format, and timing of 
approvals as a road map for the practitioner.
    This section would also provide new regulatory direction for how to 
analyze and select an alternative when all feasible and prudent project 
alternatives use some Section 4(f) property, with a list of factors 
that should be considered. The factors were drawn from case law 
experience and FHWA's Section 4(f) Policy Paper.\3\ It should be kept 
in mind that the weight given each factor would necessarily depend on 
the facts in each particular case, and not every factor would be 
relevant to every decision. Our intent is to provide the tools that 
will allow wise transportation decisions that minimize overall harm in 
these situations, while still providing the special protection afforded 
by Section 4(f) by requiring the problems to be severe and not easily 
mitigated. We encourage commenters to provide actual or hypothetical 
project examples of how these factors can help arrive at a better 
overall decision.
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    \3\ The Section 4(f) Policy Paper, issued March 1, 2005, is 
available for review online at http://environment.fhwa.dot.gov/
projdev/4fpolicy.htm. A copy was also placed in the docket for this 
rulemaking.

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[[Page 42615]]

Section 774.5 Coordination

    This section would set forth the coordination required prior to 
making Section 4(f) approvals. With respect to the coordination for 
traditional Section 4(f) evaluations, part of current section 
771.135(i) was included without significant substantive change. For de 
minimis impact determinations, section 6009(a) of SAFETEA-LU includes 
several specific coordination requirements, and those were included as 
well.

Section 774.7 Format

    This section would contain the requirements related to the format 
for the various types of Section 4(f) analyses and approvals. Current 
sections 771.135(j), (k), (o), and part of (i) were the basis for this 
section, without significant substantive change except as discussed 
below. New text was added describing the format for making the de 
minimis impact determinations and for making approvals when all 
feasible and prudent project alternatives use some Section 4(f) 
property. The section also provides a clear regulatory basis for 
programmatic Section 4(f) evaluations and approvals, a practice which 
the FHWA uses from time to time,\4\ and which FTA may also use in the 
future. Finally, we propose to clarify that a preliminary Section 4(f) 
determination made as part of the Administration's approval of a first-
tier Environmental Impact Statement (EIS) is final with respect to 
those issues addressed in the preliminary determination and are not to 
be revisited after a final section 4(f) approval is granted during the 
second-tier NEPA study, which may or may not be an EIS.
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    \4\ FHWA has issued the following five programmatic Section 4(f) 
Evaluations: (1) Final Nationwide Programmatic Section 4(f) 
Evaluation and Determination for Federal-Aid Transportation Projects 
That Have a Net Benefit to a Section 4(f) Property, 70 Fed. Reg. 
20618 (April 20, 2005); (2) Final Nationwide Section 4(f) Evaluation 
and Approval for Federally-Aided Highway Projects With Minor 
Involvements With Public Parks, Recreational Lands, and Wildlife and 
Waterfowl Refuges, 52 Fed. Reg. 31111 (August 19, 1987); (3) Final 
Nationwide Section 4(f) Evaluation and Approval for Federally-Aided 
Highway Projects With Minor Involvements With Historic Sites, 52 
Fed. Reg. 31118 (August 19, 1987); (4) Department of Transportation, 
Federal Highway Administration-Programmatic Section 4(f) Evaluation 
and Approval for FHWA Projects that Necessitate the Use of Historic 
Bridges, 48 Fed. Reg. 38135 (August 22, 1983); and (5) Negative 
Declaration/Section 4(f) Statement for Independent Bikeway or 
Walkway Construction Projects, FHWA Memorandum, May 23, 1977, can be 
found at http://www.environment.fhwa.dot.gov/projdev/4fbikeways.htm.
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Section 774.9 Timing

    This section would contain the requirements for the timing of 
Section 4(f) approvals. Current sections 771.135(l), and part of (b), 
and (g)(1) were incorporated into this section without significant 
substantive change. Current sections 771.135(m) and (n) were simplified 
and incorporated.

Section 774.11 Applicability

    This section answers many common questions about when Section 4(f) 
is applicable (additional guidance for certain resource situations can 
be found in FHWA's Section 4(f) Policy Paper). The section incorporates 
current sections 771.135(c), (d), (e), and parts of (b) and (g)(1) 
without significant substantive change. New text was added clarifying 
that when recreational activities are permitted on rights-of-way 
formally reserved for future transportation use, Section 4(f) does not 
apply to the property. The purpose of this clarification is to 
encourage State and local transportation agencies to permit public 
recreation on reserved transportation corridors. Current text from 
section 771.135(p)(5)(v), regarding constructive use of parks adjacent 
to reserved corridors where the transportation use and the park were 
jointly planned, was also incorporated here without significant 
substantive change.

Section 774.13 Exceptions

    This section would list exceptions to Section 4(f). Many of these 
situations are exceptions because the application of Section 4(f) would 
be contrary to the preservationist goals of the statute. Others are 
exceptions created by Congress in various statutes. Five of the 
exceptions, sections 771.135(f), (g)(2), (h), part of (p)(5), and 
(p)(7), are incorporated from the current regulations without 
significant substantive change. Five of the exceptions are new: (1) 
Park road and parkway projects constructed under the Federal Lands 
Highway Program; \5\ (2) trail projects under the Recreational Trails 
Program; \6\ (3) enhancement and mitigation projects solely for the 
purpose of enhancing the activities, features, or attributes of a 
Section 4(f) property; \7\ (4) alternative transportation projects in 
parks and public lands; \8\ and (5) the Interstate System and certain 
elements of the Interstate System.\9\
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    \5\ 23 U.S.C. 204. Projects under this program are expressly 
excepted from Section 4(f) requirements within the Section 4(f) 
statute itself.
    \6\ These projects are expressly excepted from Section 4(f) 
requirements by 23 U.S.C. 206(h)(2).
    \7\ This exception is proposed as a common-sense addition to the 
regulations.
    \8\ This is a new transit program that was created by Congress 
in section 3021 of SAFETEA-LU ``to enhance the protection of 
national parks and public lands and increase the enjoyment of those 
visiting the parks and public lands.'' It is proposed as a common-
sense addition to the regulations.
    \9\ These projects were expressly excepted from Section 4(f) 
requirements by section 6007 of SAFETEA-LU.
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Section 774.15 Constructive Use Determinations

    This section would set forth the standards and procedures for 
deciding if a proximity impact caused by a project would be so severe 
as to constitute a use under Section 4(f) where there is no physical 
taking of property. This section incorporates current sections 
771.135(p)(3), (p)(4), and (p)(6) without significant substantive 
change. It also includes two new examples of constructive use of 
wildlife and waterfowl refuges.

Section 774.17 Definitions

    This section incorporates the definitions contained in 23 U.S.C. 
101(a), and also provides definitions for: Administration; All Possible 
Planning; Applicant; Constructive Use; De Minimis Impact; Environmental 
Assessment (EA); Environmental Impact Statement (EIS); Feasible and 
Prudent Alternative; Finding of No Significant Impact (FONSI); 
Official(s) with Jurisdiction; Record of Decision; and Use. The 
definitions of ``use'' and ``constructive use'' were incorporated from 
current sections 771.135(p)(1) and (2) without significant substantive 
change. The definition of ``Administration'' was incorporated from 
section 771.107(d) without substantive change. The other definitions 
are new.
    The definition of ``Feasible and Prudent Alternative'' was required 
by section 6009(b) of SAFETEA-LU. The proposal includes the factors to 
consider when deciding if an avoidance alternative is a feasible and 
prudent alternative to the use of a Section 4(f) property. The list of 
factors would promote consistent decisionmaking nationwide. The factors 
are based on case law and the agencies' experience assessing the 
environmental impacts of transportation projects. An avoidance 
alternative may be found not feasible and prudent based on a single 
factor or a combination of factors; however, we intend that these 
factors would only render the alternative imprudent if the problem is 
severe in nature and not easily mitigated.
    The feasible and prudent determination should include a comparison 
of the problems associated

[[Page 42616]]

with the avoidance alternative and the magnitude of harm that would 
befall the activities, features, and attributes qualifying the property 
for protection under Section 4(f). As the magnitude of harm to the 
Section 4(f) property increases, the severity of the problems that 
would have to exist before the alternative could be deemed not feasible 
and prudent would also increase. For example, where the avoidance 
alternative being evaluated would cause only minor harm to an important 
feature of a Section 4(f) property, but would divide an established, 
cohesive community and relocate a substantial percent of the homes, the 
community impact might be considered severe enough to render the 
alternative not feasible and prudent. However, if the alternative would 
devastate the Section 4(f) property, the alternative might be deemed 
feasible and prudent despite the community impact. These will not 
always be easy decisions on which all parties will agree, and it will 
be crucial in such cases that the agencies thoroughly explain the 
reasons for their decisions.

Title 49

Section 622.101 Cross-Reference to Procedures

    This section, which contains FTA's cross-reference to 23 CFR part 
771 for FTA's NEPA regulations, would be revised to include a cross-
reference to the new 23 CFR part 774, which would contain the proposed 
joint FHWA/FTA Section 4(f) regulations.

Rulemaking Analyses and Notices

    All comments received on or before the close of business on the 
comment closing date indicated above will be considered and will be 
available for examination in the docket at the above address. Comments 
received after the comment closing date will be filed in the docket and 
will be considered to the extent practicable. In addition to late 
comments, the FHWA and the FTA will also continue to file relevant 
information in the docket as it becomes available after the comment 
period closing date, and interested persons should continue to examine 
the docket for new material. A final rule may be published at any time 
after close of the comment period.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    We have determined preliminarily that this action would be a 
significant regulatory action within the meaning of Executive Order 
12866 and would be significant within the meaning of Department of 
Transportation regulatory policies and procedures because of 
substantial congressional, State and local government, and public 
interest. Those interests include the receipt of Federal financial 
support for transportation investments, appropriate compliance with 
statutory requirements, and balancing of transportation mobility and 
environmental goals. We anticipate that the direct economic impact of 
this rulemaking would be minimal. The clarification of current 
regulatory requirements is mandated in SAFETEA-LU. We also consider 
this proposal a means to clarify and reorganize the existing regulatory 
requirements. These proposed changes would not adversely affect, in a 
material way, any sector of the economy. In addition, these changes 
would not interfere with any action taken or planned by another agency 
and would not materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612) the agencies have evaluated the effects of this 
proposed action on small entities and have determined that the proposed 
action would not have a significant economic impact on a substantial 
number of small entities. This proposed action does not include any new 
regulatory requirements; it simply clarifies and reorganizes existing 
requirements. For this reason, the FHWA and the FTA certify that this 
action would not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 
1995, 109 Stat. 48). This proposed rule will not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $120.7 million or more in any one year (2 
U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform 
Act of 1995, the agencies will evaluate any regulatory action that 
might be proposed in subsequent stages of the proceeding to assess the 
affects on State, local, and tribal governments and the private sector.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, and the 
FHWA and the FTA have determined that this proposed action would not 
have sufficient federalism implications to warrant the preparation of a 
federalism assessment. The agencies have also determined that this 
proposed action would not preempt any State law or State regulation or 
affect the States' ability to discharge traditional State governmental 
functions.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction; 20.500 et seq., Federal Transit 
Capital Investment Grants. The regulations implementing Executive Order 
12372 regarding intergovernmental consultation on Federal programs and 
activities apply to these programs and were carried out in the 
development of this rule. The FHWA and FTA solicit comments on this 
issue.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. The FHWA and the FTA 
have determined that this proposal does not contain new collection of 
information requirements for the purposes of the PRA.
    The information collected in Section 4(f) evaluations is not 
requested of non-Federal agencies or private parties. The State and 
local governments and transit agencies compiling information are 
voluntarily serving as consultants to FHWA and FTA for their own 
convenience. As the proposers of the actions subject to Section 4(f), 
and the owners, operators, and maintainers of the resulting 
transportation facility, and key decision makers regarding the choices 
involved in project development, it is easier for them to prepare the 
Section 4(f) evaluations. Information is not requested of outside 
entities except within the PRA exception relating to ``facts or 
opinions submitted in response to general solicitations of comments 
from the public.'' (5 CFR 1320.3(h)(4)).

National Environmental Policy Act

    This proposed action would not have any effect on the quality of 
the environment under the National Environmental Policy Act of 1969 (42 
U.S.C. 4321) and is categorically excluded under 23 CFR 771.117(c)(20). 
The proposed action is intended to

[[Page 42617]]

lessen adverse environmental impacts by standardizing and clarifying 
compliance for Section 4(f), including the incorporation of clear 
direction to take into account the overall harm of each alternative.

Executive Order 12630 (Taking of Private Property)

    We have analyzed this proposed rule under Executive Order 12630, 
Government Actions and Interface with Constitutionally Protected 
Property Rights. We do not anticipate that this proposed rule would 
effect a taking of private property or otherwise have taking 
implications under Executive Order 12630.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. We certify that this proposed rule is not an economically 
significant rule and would not cause an environmental risk to health or 
safety that may disproportionately affect children.

Executive Order 13175 (Tribal Consultation)

    We have analyzed this proposed rule under Executive Order 13175, 
dated November 6, 2000, and believe that the proposed action would not 
have substantial direct effects on one or more Indian tribes; would not 
impose substantial direct compliance costs on Indian tribal 
governments; and would not preempt tribal laws. The proposed rulemaking 
addresses obligations of Federal funds to States for Federal-aid 
highway projects and to public transit agencies for capital transit 
projects and would not impose any direct compliance requirements on 
Indian tribal governments. While some historic Section 4(f) properties 
are eligible for Section 4(f) protection because of their cultural 
significance to a tribe, the proposed rule does not impose any new 
consultation or compliance requirements on tribal governments. 
Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use dated May 18, 2001. We have determined that it is 
not a significant energy action under that order because, although it 
is a significant regulatory action under Executive Order 12866, it 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.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

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 April and October of each year. The RINs 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 protection, Grant program--transportation, Highways 
and roads, Historic preservation, Mass transportation, Public lands, 
Recreation areas, Reporting and recordkeeping requirements, Wildlife 
refuges.

23 CFR Part 774

    Environmental protection, Grant programs--transportation, Highways 
and roads, Historic preservation, Mass transportation, Public lands, 
Recreation areas, Reporting and recordkeeping requirements, Wildlife 
refuges.

49 CFR Part 622

    Environmental impact statements, Grant programs--transportation, 
Mass transportation, Reporting and recordkeeping requirements.

    Issued on: July 18, 2006.
Sandra K. Bushue,
Deputy Administrator, Federal Transit Administration.

J. Richard Capka,
Federal Highway Administrator.

    For the reasons set forth in the preamble, and under the authority 
of 23 U.S.C. 103(c), 109, 138, and 49 U.S.C. 303, and the delegations 
of authority at 49 CFR 1.48(b) and 1.51, it is proposed to amend 
Chapter I of Title 23 and Chapter VI of Title 49, Code of Federal 
Regulations, by revising part 771, adding part 774, and revising part 
622, respectively as set forth below.

Title 23--Highways

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES [AMENDED]

    1. The authority citation for part 771 continues to read as 
follows:

    Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 109, 110, 128, 138 
and 315; 49 U.S.C. 303, 5301(e), 5323(b), and 5324; 40 CFR parts 
1500 et seq.; 49 CFR 1.48(b) and 1.51.

    2. Revise Sec.  771.127(a) to read as follows:


Sec.  771.127  Record of decision.

    (a) The Administration will complete and sign a record of decision 
(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 present the basis for 
the decision as specified in 40 CFR 1505.2, 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 
title. Until any required ROD has been signed, no further approvals may 
be given except for administrative activities taken to secure further 
project funding and other activities consistent with 40 CFR 1506.1.


Sec.  771.135  [Removed]

    3. Remove Sec.  771.135 in its entirety.
    4. Add part 774 to read as follows:

PART 774--PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES, 
AND HISTORIC SITES (SECTION 4(F))

Sec.
774.1 Purpose.
774.3 Section 4(f) approvals.
774.5 Coordination.
774.7 Format.
774.9 Timing.
774.11 Applicability.
774.13 Exceptions.

[[Page 42618]]

774.15 Constructive use determinations.
774.17 Definitions.

    Authority: 23 U.S.C. 103(c), 109(h), 138 and 204(h)(2); 49 
U.S.C. 303; Section 6009 of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 
109-59, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.48 and 1.51.


Sec.  774.1  Purpose.

    The purpose of this part is to implement 23 U.S.C. 138 and 49 
U.S.C. 303 which were originally enacted as Section 4(f) of the 
Department of Transportation Act of 1966 and are still commonly 
referred to as ``Section 4(f).''


Sec.  774.3  Section 4(f) approvals.

    (a) The Administration may not approve the use, as defined in Sec.  
774.17(l), of land from a significant publicly owned public park, 
recreation area, or wildlife and waterfowl refuge, or any significant 
historic site unless a determination is made that:
    (1) There is no feasible and prudent alternative, as defined in 
Sec.  774.17(h), to the use of land from the property; and the action 
includes all possible planning, as defined in Sec.  774.17(b), to 
minimize harm to the property resulting from such use; or
    (2) The use of the property, including any avoidance, minimization, 
mitigation, or enhancement measures committed to by the applicant, will 
have a de minimis impact, as defined in Sec.  774.17(e), on the 
property.
    (b) If the analysis in paragraph (a)(1) of this section concludes 
that all of the feasible and prudent project alternatives use some 
Section 4(f) property, then the Administration may approve the most 
prudent alternative that minimizes overall harm by considering the 
following factors:
    (1) The relative severity of the harm to the protected activities, 
attributes, or features that qualify each Section 4(f) property for 
protection;
    (2) The relative significance of each Section 4(f) property;
    (3) The views of the official(s) with jurisdiction over each 
Section 4(f) property;
    (4) The ability to mitigate adverse impacts to each Section 4(f) 
property (including any measures that result in benefits to the 
property);
    (5) The degree to which each alternative meets the purpose and need 
for the project;
    (6) The magnitude of any adverse impacts to resources not protected 
by Section 4(f);
    (7) Extraordinary differences in costs among the alternatives; and
    (8) Any history of concurrent planning or development of the 
proposed transportation project and the Section 4(f) property.
    (c) The coordination requirements in Sec.  774.5 must be completed 
before the Administration may make Section 4(f) approvals under this 
section. Requirements for the format and timing of Section 4(f) 
approvals are located in Sec. Sec.  774.7 and 774.9, respectively.


Sec.  774.5  Coordination.

    (a) Prior to making Section 4(f) approvals under Sec.  774.3(a)(1), 
the Section 4(f) evaluation shall be provided for coordination and 
comment to the official(s) with jurisdiction over the property and to 
the Department of the Interior, and as appropriate to the Department of 
Agriculture and the Department of Housing and Urban Development. A 
minimum of 45 days shall be established by the Administration for 
receipt of comments.
    (b) Prior to making de minimis impact findings under Sec.  
774.3(a)(2), the following coordination shall be undertaken:
    (1) For historic properties, the consulting parties identified in 
accordance with 36 CFR part 800 must be consulted; and the official(s) 
with jurisdiction over the property must concur, in writing, in a 
finding of ``no adverse effect'' or ``no historic properties affected'' 
in accordance with 36 CFR part 800. The Administration shall inform the 
official(s) with jurisdiction of its intent to make a de minimis impact 
finding based on their concurrence in the finding of ``no adverse 
effect'' or ``no historic properties affected.'' Public notice and 
comment other than the consultation with consulting parties in 
accordance with 36 CFR part 800 is not required.
    (2) For parks, recreation areas, and refuges, public notice and an 
opportunity for public review and comment concerning the effects on the 
protected activities, features, or attributes of the property must be 
provided. Following the opportunity for public review and comment, the 
Administration shall inform the official(s) with jurisdiction of its 
intent to make a de minimis impact finding; and the official(s) with 
jurisdiction over the property must concur in writing that the project 
will not adversely affect the activities, features, or attributes that 
make the property eligible for Section 4(f) protection.
    (c) Uses of Section 4(f) property covered by a programmatic Section 
4(f) evaluation under Sec.  774.7(g) shall be documented and 
coordinated as specified in the programmatic Section 4(f) evaluation.


Sec.  774.7  Format.

    (a) A Section 4(f) evaluation prepared under Sec.  774.3(a)(1) must 
include sufficient supporting documentation to demonstrate why there is 
no feasible and prudent alternative, as defined in Sec.  774.17(h), 
that would avoid using the Section 4(f) property; and the evaluation 
must summarize all possible planning, as defined in Sec.  774.17(b), 
that occurred to minimize harm to the Section 4(f) property.
    (b) The documentation supporting a Section 4(f) approval should be 
presented in the NEPA document for the project in accordance with 
Sec. Sec.  771.105(a) and 771.133 of this title. If the Section 4(f) 
documentation cannot be included in the NEPA document, then it shall be 
presented in a separate document. The Section 4(f) documentation shall 
be developed by the applicant in cooperation with the Administration.
    (c) If all feasible and prudent alternatives use some Section 4(f) 
property, the applicant must select the most prudent alternative that 
minimizes overall harm by considering the factors listed in Sec.  
774.3(b). This information must be documented in the Section 4(f) 
approval document.
    (d) All Section 4(f) approvals under Sec.  774.3(a)(1) must be 
reviewed for legal sufficiency.
    (e) A Section 4(f) approval may involve different levels of detail 
where the Section 4(f) involvement is addressed in a tiered 
Environmental Impact Statement (EIS) under Sec.  771.111(g) of this 
title.
    (1) When the first-tier, broad-scale EIS is prepared, the detailed 
information necessary to complete the Section 4(f) approval may not be 
available at that stage in the development of the action. In such 
cases, the evaluation should be made on the potential impacts that a 
proposed action will have on Section 4(f) property and whether those 
impacts could have a bearing on the decision to be made. A preliminary 
determination may be made at this time as to whether there are feasible 
and prudent locations or alternatives for the action to avoid the use 
of Section 4(f) property. This preliminary determination shall consider 
all possible planning to minimize harm to the extent that the level of 
detail available at the first-tier EIS stage allows. It is recognized 
that such planning at this stage will normally be limited to ensuring 
that opportunities to minimize harm at subsequent stages in the 
development process have not been precluded by decisions made at the 
first-tier stage. This preliminary determination is then incorporated 
into the first-tier EIS.

[[Page 42619]]

    (2) A preliminary Section 4(f) determination made in the first-tier 
stage shall be considered final and need not be revisited as part of a 
final Section 4(f) approval granted during the second-tier stage.
    (3) The final Section 4(f) approval shall be made in the second-
tier categorical exclusion (CE), environmental assessment (EA), or 
final EIS or in the record of decision (ROD) or finding of no 
significant impact (FONSI). Where the Section 4(f) approval is made in 
a second-tier final EIS or EA, the Administration will summarize the 
basis for its Section 4(f) approval in the ROD or FONSI.
    (f) A de minimis impact finding under Sec.  774.3(a)(2) must 
include sufficient supporting documentation to demonstrate that the 
impacts, after avoidance, minimization, mitigation, or enhancement 
measures are taken into account, are de minimis as defined in Sec.  
774.17(e); and that the coordination required in Sec.  774.5(b) has 
been completed.
    (g) The Administration may develop additional programmatic Section 
4(f) determinations. Programmatic Section 4(f) determinations shall be 
reviewed for legal sufficiency and approved by the Headquarters Office 
of the Administration.


Sec.  774.9  Timing.

    (a) Any use of lands from a Section 4(f) property shall be 
evaluated early in the development of the action when alternatives to 
the proposed action are under study.
    (b) For actions processed with EISs, the Administration will make 
the Section 4(f) approval either in its approval of the final EIS or in 
the ROD. Where the Section 4(f) approval is documented in the final 
EIS, the Administration will summarize the basis for its Section 4(f) 
approval in the ROD. Actions requiring the use of Section 4(f) 
property, and proposed to be processed with a FONSI or classified as a 
CE, shall not proceed until notification by the Administration of 
Section 4(f) approval.
    (c) If the Administration determines that Section 4(f) is 
applicable after the CE, FONSI, or final EIS has been processed, a 
separate Section 4(f) approval will be required when:
    (1) A proposed modification of the alignment or design would 
require the use of Section 4(f) property;
    (2) The Administration determines that Section 4(f) applies to a 
property; or
    (3) A proposed modification of the alignment, design, or measures 
to minimize harm (after the original Section 4(f) approval) would 
result in a substantial increase in the amount of Section 4(f) property 
used, a substantial increase in the adverse impacts to Section 4(f) 
property, or a substantial reduction in mitigation measures.
    (d) A separate Section 4(f) approval required under paragraph (c) 
of this section will not necessarily require the preparation of a new 
or supplemental environmental document. Where a separate Section 4(f) 
approval is required, any activity not directly affected by the 
separate Section 4(f) approval can proceed during the analysis, 
consistent with Sec.  771.130(f) of this title.
    (e) Section 4(f) may apply to archeological sites discovered during 
construction, as set forth in Sec. Sec.  774.11(f) and 774.13(b) of 
this part. In such cases, the Section 4(f) process will be expedited 
and any required evaluation of feasible and prudent alternatives will 
take account of the level of investment already made. The review 
process, including the consultation with other agencies, will be 
shortened as appropriate.


Sec.  774.11  Applicability.

    (a) The Administration will determine the applicability of Section 
4(f) in accordance with this part.
    (b) When another agency is the lead agency for the NEPA process, 
the Administration shall make any required Section 4(f) approvals 
unless the lead agency is another U.S. DOT agency.
    (c) Consideration under Section 4(f) is not required when the 
official(s) with jurisdiction over a park, recreation area or refuge 
determine that the property, considered in its entirety, is not 
significant. In the absence of such a determination, the Section 4(f) 
property will be presumed to be significant. The Administration will 
review a determination that a park, recreation area, or refuge is not 
significant to assure its reasonableness.
    (d) Where Federal lands or other public land holdings (e.g., State 
forests) are administered under statutes permitting management for 
multiple uses, and, in fact, are managed for multiple uses, Section 
4(f) applies only to those portions of such lands which function for, 
or are designated in the plans of the administering agency as being 
for, significant park, recreation, or refuge purposes. The 
determination of which lands so function or are so designated, and the 
significance of those lands, shall be made by the official(s) with 
jurisdiction over the property. The Administration will review this 
determination to assure its reasonableness.
    (e) In determining the application of Section 4(f) to historic 
sites, the Administration, in cooperation with the applicant, will 
consult with the official(s) with jurisdiction to identify all 
properties on or eligible for the National Register of Historic Places 
(National Register). The Section 4(f) requirements apply only to sites 
on or eligible for the National Register unless the Administration 
determines that the application of Section 4(f) is otherwise 
appropriate.
    (f) Section 4(f) applies to all archeological sites on or eligible 
for inclusion on the National Register, including those discovered 
during construction, except as set forth in Sec.  774.13(b).
    (g) Temporary recreational activity on property formally reserved 
for future transportation use will not subject the property to Section 
4(f). Where the property is formally reserved for transportation use 
before or at the same time an adjacent park, recreation area, or refuge 
is established and concurrent or joint planning or development occurs, 
then any resulting proximity impacts of the transportation project will 
not be considered a constructive use as defined in Sec.  774.17(d). 
Examples of such concurrent or joint planning or development include, 
but are not limited to:
    (1) Designation or donation of property for the specific purpose of 
such concurrent development by the entity with jurisdiction or 
ownership of the property for both the potential transportation project 
and the Section 4(f) property, or
    (2) Designation, donation, planning or development of property by 
two or more governmental agencies, with jurisdiction for the potential 
transportation project and the Section 4(f) property, in consultation 
with each other.


Sec.  774.13  Exceptions.

    The Administration has identified various exceptions to the 
requirement for Section 4(f) approval. These exceptions include, but 
are not limited to:
    (a) Restoration, rehabilitation, or maintenance of transportation 
facilities that are on or eligible for the National Register when:
    (1) The Administration finds that such work will not adversely 
affect the historic qualities of the facility that caused it to be on 
or eligible for the National Register, and
    (2) The official(s) with jurisdiction over the property have been 
consulted and have not objected to the

[[Page 42620]]

Administration finding in paragraph (a)(1) of this section.
    (b) Archeological sites where the Administration, after 
consultation with the official(s) with jurisdiction over the property, 
determines that the archeological resource is important chiefly because 
of what can be learned by data recovery and has minimal value for 
preservation in place. This exception applies both to situations where 
data recovery is undertaken or where the Administration decides, with 
agreement of the official(s) with jurisdiction, not to recover the 
resource.
    (c) Designations of park and recreation lands, refuges, and 
historic sites that are made, or determinations of significance that 
are changed, late in the development of a proposed action. With the 
exception of the treatment of archeological resources in Sec.  
774.9(e), the Administration may permit a project to proceed without 
consideration under Section 4(f) if the property interest in the 
Section 4(f) lands was acquired for transportation purposes prior to 
the designation or change in the determination of significance and if 
an adequate effort was made to identify properties protected by Section 
4(f) prior to acquisition. However, if the age of an historic site is 
close to, but less than, 50 years at the time of the governmental 
agency's acquisition, adoption, or approval, and except for its age it 
would be eligible for the National Register, and construction would 
begin after the site was eligible, then the site is considered a 
historic site eligible for the National Register.
    (d) Temporary occupancies of land that are so minimal as to not 
constitute a use within the meaning of Section 4(f). The following 
conditions must be satisfied:
    (1) Duration must be temporary, i.e., less than the time needed for 
construction of the project, and there should be no change in ownership 
of the land;
    (2) Scope of the work must be minor, i.e., both the nature and the 
magnitude of the changes to the Section 4(f) property are minimal;
    (3) There are no anticipated permanent adverse physical impacts, 
nor will there be interference with the protected activities, features, 
or attributes of the property, on either a temporary or permanent 
basis;
    (4) The land being used must be fully restored, i.e., the property 
must be returned to a condition which is at least as good as that which 
existed prior to the project; and
    (5) There must be documented agreement of the official(s) with 
jurisdiction over the property regarding the above conditions.
    (e) Proximity impacts that are not substantial enough to constitute 
a ``constructive use'' as defined in Sec.  774.17(d). Examples include:
    (1) Compliance with the requirements of 36 CFR 800.5 for proximity 
impacts of the proposed action, on a site listed on or eligible for the 
National Register, results in an agreement of ``no historic properties 
affected'' or ``no adverse effect'';
    (2) The impact of projected traffic noise levels of the proposed 
highway project on a noise sensitive activity do not exceed the FHWA 
noise abatement criteria as contained in Table 1 in Part 772 of this 
title, or the projected operational noise levels of the proposed 
transit project do not exceed the noise impact criteria for a Section 
4(f) activity in the FTA guidelines for transit noise and vibration 
impact assessment;
    (3) The projected noise levels exceed the relevant threshold in 
paragraph (e)(2) of this section because of high existing noise, but 
the increase in the projected noise levels if the proposed project is 
constructed, when compared with the projected noise levels if the 
project is not built, is barely perceptible (3 dBA or less);
    (4) There are proximity impacts to a Section 4(f) property, but a 
governmental agency's right-of-way acquisition, an applicant's adoption 
of project location, or the Administration approval of a final 
environmental document, established the location for a proposed 
transportation project before the designation, establishment, or change 
in the significance of the property. However, if the age of an historic 
site is close to, but less than, 50 years at the time of the 
governmental agency's acquisition, adoption, or approval, and except 
for its age it would be eligible for the National Register, and 
construction would begin after the site was eligible, then the site is 
considered a historic site eligible for the National Register;
    (5) Overall (combined) proximity impacts caused by a proposed 
project do not substantially impair the activities, features, or 
attributes that qualify a property for protection under Section 4(f);
    (6) Proximity impacts will be mitigated to a condition equivalent 
to, or better than, that which would occur if the project were not 
built;
    (7) Change in accessibility will not substantially diminish the 
utilization of the Section 4(f) property; or
    (8) Vibration levels from project construction activities are 
mitigated, through advance planning and monitoring of the activities, 
to levels that do not cause a substantial impairment of protected 
activities, features, or attributes of the Section 4(f) property.
    (f) Park road or parkway projects developed in accordance with 23 
U.S.C. 204.
    (g) Trail-related projects funded under the Recreational Trails 
Program, 23 U.S.C. 206(h)(2).
    (h) Transportation enhancement and mitigation projects where the 
use of the Section 4(f) property is solely for the purpose of 
preserving or enhancing the activities, features, or attributes that 
qualify the property for Section 4(f) protection; and the official(s) 
with jurisdiction over the property agrees in writing that the use 
benefits or improves said activities, features, or attributes of the 
property.
    (i) Alternative transportation facilities and services in parks and 
public lands that are funded under 49 U.S.C. 5320.
    (j) The Interstate System and individual elements of the Interstate 
System, with the exception of those elements formally designated by 
FHWA for Section 4(f) protection on the basis of national or 
exceptional historic significance.


Sec.  774.15  Constructive use determinations.

    (a) If the project results in a constructive use, as defined in 
Sec.  774.17(d), of a nearby Section 4(f) property, the Administration 
shall evaluate that use in accordance with Sec.  774.3(a)(1). The 
Administration is not required to determine that a project would not 
result in a constructive use of a nearby Section 4(f) property. 
However, such a determination may be made at the discretion of the 
Administration. When a constructive use determination is made, it will 
be based, to the extent it reasonably can, upon the following:
    (1) Identification of the current activities, features, or 
attributes of a property which qualify for protection under Section 
4(f) and which may be sensitive to proximity impacts;
    (2) An analysis of the proximity impacts of the proposed project on 
the Section 4(f) property. If any of the proximity impacts will be 
mitigated, only the net impact need be considered in this analysis. The 
analysis should also describe and consider the impacts which could 
reasonably be expected if the proposed project were not implemented, 
since such impacts should not be attributed to the proposed project;
    (3) Consultation, on the foregoing identification and analysis, 
with the

[[Page 42621]]

official(s) with jurisdiction over the Section 4(f) property.
    (b) The Administration has reviewed the following situations and 
determined that a constructive use occurs when:
    (1) The projected noise level increase attributable to the project 
substantially interferes with the use and enjoyment of a noise-
sensitive facility of a property protected by Section 4(f), such as 
hearing the performances at an outdoor amphitheater, sleeping in the 
sleeping area of a campground, enjoyment of a historic site where a 
quiet setting is a generally recognized feature or attribute of the 
site's significance, enjoyment of an urban park where serenity and 
quiet are significant attributes, or viewing wildlife in an area of a 
wildlife and waterfowl refuge intended for such viewing;
    (2) The proximity of the proposed project substantially impairs 
esthetic features or attributes of a property protected by Section 
4(f), where such features or attributes are considered important 
contributing elements to the value of the property. Examples of 
substantial impairment to visual or esthetic qualities would be the 
location of a proposed transportation facility in such proximity that 
it obstructs or eliminates the primary views of an architecturally 
significant historical building, or substantially detracts from the 
setting of a park or historic site which derives its value in 
substantial part due to its setting;
    (3) The project results in a restriction of access which 
substantially diminishes the utility of a significant publicly owned 
park, recreation area, or a historic site;
    (4) The vibration impact from operation of the project 
substantially impairs the use of a Section 4(f) property, such as 
projected vibration levels from a rail transit project that are great 
enough to affect the structural integrity of a historic building or 
substantially diminish the utility of the building; or
    (5) The ecological intrusion of the project substantially 
diminishes the value of wildlife habitat in a wildlife or waterfowl 
refuge adjacent to the project or substantially interferes with the 
access to a wildlife or waterfowl refuge, when such access is necessary 
for established wildlife migration or critical life cycle processes, or 
substantially reduces the wildlife use of a wildlife or waterfowl 
refuge.


Sec.  774.17  Definitions.

    The definitions contained in 23 U.S.C. 101(a) are applicable to 
this part. In addition, the following definitions apply:
    (a) Administration. The Federal Highway Administration or the 
Federal Transit Administration, whichever is making the approval for 
the transportation program or project at issue.
    (b) All Possible Planning. All possible planning to minimize harm 
means that measures that would reduce the adverse impacts resulting 
from the use of Section 4(f) property must be included in the project 
unless such measures are not prudent. All possible planning does not 
require analysis of avoidance alternatives.
    (1) In evaluating the prudence of minimization and mitigation 
measures to minimize harm under Sec.  774.3(a)(1), the Administration 
will consider:
    (i) The views of the official(s) with jurisdiction over the Section 
4(f) property;
    (ii) With regard to public parks, recreation areas, and refuges, 
the measures may involve a replacement of land or facilities of 
comparable value and function, or monetary compensation to enhance the 
remaining property or to mitigate the adverse impacts of the project in 
other ways;
    (iii) With regard to historic sites, the measures normally serve to 
preserve the historic activities, features, or attributes of the site 
as agreed by the Administration and the official(s) with jurisdiction 
over the property in accordance with the consultation process under 36 
CFR part 800;
    (iv) Whether the cost of the measures is a reasonable public 
expenditure in light of the adverse impacts of the project on the 
Section 4(f) property and the benefits of the measure to the property, 
in accordance with Sec.  771.105(d) of this title; and
    (v) The impacts of the measures outside of the Section 4(f) 
property.
    (2) A de minimis impact finding under Sec.  774.3(a)(2) subsumes 
and obviates the requirement for all possible planning to minimize 
harm.
    (c) Applicant. The Federal, State, or local government authority, 
proposing a transportation project, that the Administration works with 
to conduct environmental studies and prepare environmental documents. 
For transportation actions implemented by the Federal government on 
Federal lands, the Administration or the Federal land management agency 
may take on the responsibilities of the applicant described herein.
    (d) Constructive Use. A constructive use occurs when the 
transportation project does not incorporate land from a Section 4(f) 
property, but the project's proximity impacts are so severe that the 
protected activities, features, or attributes that qualify a property 
for protection under Section 4(f) are substantially impaired. 
Substantial impairment occurs only when the protected activities, 
features, or attributes of the property are substantially diminished.
    (e) De Minimis Impact.
    (1) For historic sites, de minimis impact means that a 
determination of ``no adverse effect'' or ``no historic properties 
effected,'' in accordance with the regulation (36 CFR part 800) 
implementing Section 106 of the National Historic Preservation Act of 
1966, is appropriate.
    (2) For parks, recreation areas, and refuges, a de minimis impact 
is one that will not adversely affect the protected features, 
attributes, or activities qualifying the property for protection under 
Section 4(f).
    (f) Environmental Assessment (EA). Refers to a document prepared 
pursuant to NEPA and Sec.  771.119 of this title for a proposed project 
that is not categorically excluded but for which an EIS is not clearly 
required.
    (g) Environmental Impact Statement (EIS). Refers to a document 
prepared pursuant to NEPA and Sec. Sec.  771.123 and 771.125 of this 
title for a proposed project that is likely to cause significant 
impacts on the environment.
    (h) Feasible and Prudent Alternative. A feasible and prudent 
alternative avoids using Section 4(f) property and does not cause other 
severe problems of a magnitude that outweighs the importance of 
protecting the Section 4(f) property. In assessing the importance of 
protecting the Section 4(f) property, it is appropriate to consider the 
relative value of the resource to the preservation goals of the 
statute. An alternative may be determined not feasible and prudent if:
    (1) It cannot be built as a matter of sound engineering judgment;
    (2) It compromises the project to a degree that it is unreasonable 
to proceed with the project in light of its stated purpose and need;
    (3) It results in severe safety or operational problems;
    (4) After reasonable mitigation, it causes:
    (i) Severe social, economic, or environmental impacts;
    (ii) Severe disruption to established communities;
    (iii) Severe disproportionate impacts to minority or low income 
populations; or
    (iv) Severe impacts to environmental resources protected under 
other Federal statutes;
    (5) It results in additional construction, maintenance, or

[[Page 42622]]

operational costs of an extraordinary magnitude;
    (6) It causes other unique problems or unusual factors; or
    (7) It involves multiple factors in paragraphs (1) through (6) of 
this definition, that while individually minor, cumulatively cause 
unique problems or impacts of extraordinary magnitude.
    (i) Finding of No Significant Impact (FONSI). Refers to a decision 
document prepared pursuant to NEPA and Sec.  771.121 of this chapter.
    (j) Official(s) with Jurisdiction. 
    (1) In the case of historic properties, the official with 
jurisdiction is the State Historic Preservation Officer or Tribal 
Historic Preservation Officer for the State or Tribal government 
wherein the property is located. When the Advisory Council on Historic 
Preservation (ACHP) is involved in a consultation concerning a property 
under Section 106 of the National Historic Preservation Act, the ACHP 
is also an official with jurisdiction over that property for purposes 
of this part.
    (2) In the case of public parks, recreation areas, and refuges, the 
official(s) with jurisdiction are the official(s) of the agency or 
agencies that own or administer the property in question, and who are 
empowered to represent the agency on matters related to the property.
    (k) Record of Decision (ROD). Refers to a decision document 
prepared pursuant to NEPA and Sec.  771.127 of this chapter.
    (l) Use. Except as set forth in Sec.  774.13 of this part, a 
``use'' of Section 4(f) property occurs:
    (1) When land is permanently incorporated into a transportation 
facility;
    (2) When there is a temporary occupancy of land that is adverse in 
terms of the statute's preservationist purposes as determined by the 
criteria in Sec.  774.13(d) of this part; or
    (3) When there is a constructive use of a Section 4(f) property as 
defined in paragraph (d) of this section.

Federal Transit Administration

Title 49--Transportation

CHAPTER VI--FEDERAL TRANSIT ADMINISTRATION, DEPARTMENT OF 
TRANSPORTATION

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES [AMENDED]

    5. Revise the authority citation for Subpart A to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303, 5301(e), 
5323(b), and 5324; Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, Aug. 
10, 2005, 119 Stat. 1144); 40 CFR parts 1500 et seq.; 49 CFR 1.51.

    6. Revise Sec.  622.101 to read as follows:

Subpart A--Environmental Procedures


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 orders are set forth in part 771 of title 23 of the 
Code of Federal Regulations. The procedures for complying with 49 
U.S.C. 303, commonly known as ``Section 4(f),'' are set forth in part 
774 of title 23 of the Code of Federal Regulations.

[FR Doc. 06-6496 Filed 7-24-06; 10:10 am]
BILLING CODE 4910-22-P