[Federal Register Volume 71, Number 220 (Wednesday, November 15, 2006)]
[Notices]
[Pages 66576-66587]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9201]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
Federal Highway Administration
[Docket Number: FTA-2006-24905]
Notice of Availability of Guidance on Section 6002 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU)
AGENCY: Federal Transit Administration (FTA), Federal Highway
Administration (FHWA), DOT.
ACTION: Notice of availability.
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SUMMARY: This notice announces the availability of final guidance on
the application of section 6002 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
(Pub. L. 109-59, 119 Stat. 1144) to projects funded by the Federal
Transit Administration (FTA), the Federal Highway Administration
(FHWA), or both. Section 6002 of SAFETEA-LU, which went into effect on
August 10, 2005, adds requirements and refinements to the environmental
review process for highway and public transportation capital projects.
The section 6002 guidance describes how the FTA and FHWA will implement
the new requirements within the environmental review process required
by the National Environmental Policy Act (NEPA) and other Federal laws.
The final guidance is available at the following URL: http://
www.fta.dot.gov/environment/guidance/ for FTA and at http://
www.fhwa.dot.gov/hep/section6002/ for FHWA.
DATES: Effective Date: November 15, 2006.
FOR FURTHER INFORMATION CONTACT: For FTA: Joseph Ossi, Office of
Planning and Environment (TPE), (202) 366-1613, or Christopher Van Wyk,
Office of Chief Counsel (TCC), (202) 366-1733, Federal Transit
Administration, U.S. Department of Transportation, 400 Seventh Street,
SW., Washington, DC 20590. For FHWA: Ruth Rentch, Office of Project
Development (HEPE), (202) 366-2034, or Janet Myers, Office of Chief
Counsel (HCC), (202) 366-2019, Federal Highway Administration, U.S.
Department of Transportation, 400 Seventh Street, SW., Washington, DC
20590.
SUPPLEMENTARY INFORMATION:
Availability of the Final Guidance and Comments
Copies of the proposed and final guidance on the application of
section
[[Page 66577]]
6002 of SAFETEA-LU to projects funded by the FTA, the FHWA, or both,
the comments received from the public on the proposed guidance, and the
agencies' response to comments received are part of docket FTA-2006-
24905 and are available for inspection or copying at the Docket
Management Facility, U.S. Department of Transportation, 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.
You may retrieve the guidance and comments online through the
Document Management System (DMS) at: http://dms.dot.gov. Enter docket
number 24905 in the search field. The DMS is available 24 hours each
day, 365 days each year. Electronic submission and retrieval help and
guidelines are available under the help section of the Web site. You
may download an electronic copy of this document by using a computer,
modem and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512'1661. Internet
users may reach the Office of the Federal Register's Web page at:
http://www.nara.gov/fedreg and the Government Printing Office's Web
page at: http://www.gpoaccess.gov/fr/index.html.
Background
On August 10, 2005, President Bush signed SAFETEA-LU. Section 6002
of SAFETEA-LU, which has been codified as 23 U.S.C. 139, prescribes a
number of changes to existing FTA and FHWA procedures for implementing
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-
4351, as amended, and for the implementing regulations of the Council
on Environmental Quality (CEQ), 40 CFR parts 1500 through 1508. Among
the topics addressed in section 6002 are the roles of the project
sponsor and the lead, participating, and cooperating agencies;
requirements for coordinating and scheduling agency reviews; the
authority for States to use Federal-aid funds to ensure timely
environmental reviews; a 180-day statute of limitations on claims, and
a process for resolving interagency disagreements.
On June 29, 2006, the FTA and FHWA published a Notice of
Availability and Request for Comments on the proposed guidance on the
implementation of SAFETEA-LU section 6002 in the Federal Register (71
FR 37156). The agencies requested and received comments on the proposed
guidance referenced in the June notice. The purpose of this notice is
to announce the availability of the final guidance. The final guidance
reflects the agencies' consideration of these comments and further
reviews by the FTA and FHWA. The final guidance is available on the
docket (number 24905), which can be accessed by going to http://
dms.dot.gov. The final guidance is available online line at http://
www.fta.dot.gov/environment/guidance/ for FTA and at http://
www.fhwa.dot.gov/hep/section6002/ for FHWA.
The purpose of the section 6002 guidance is to provide explanations
of new and changed aspects of the environmental review process for FTA
and FHWA NEPA practitioners. The guidance will inform readers about
which aspects of the environmental review process need to be done
differently as a result of SAFETEA-LU, and how the new procedures
should be handled. Although the guidance outlines a new environmental
review process for highway and public transportation capital projects,
it does not supersede any previous guidance or regulations promulgated
under NEPA. In particular, the previously mentioned CEQ regulations (40
CFR parts 1500-1508) and FHWA-FTA NEPA regulation (23 CFR part 771) are
supplemented by the section 6002 guidance and remain in effect. This
guidance is consistent with and implements the requirements of U.S. DOT
Order 5610.1C, ``Procedures for Considering Environmental Impacts.''
The intent of the guidance is to provide project sponsors with as
much flexibility as possible in administering the environmental review
process, while providing a framework to facilitate efficient project
management and decisionmaking in accordance with the law. The guidance
also is intended to assist agencies and related entities involved in
the development of environmental impact statements (EISs) to satisfy
the requirements of applicable Federal laws, regulations and policies.
Additionally, this guidance is intended to be non-binding and should
not be construed as a rule of general applicability. Because the size
and scope of EISs can vary, adjustments to the recommended approaches
included in the guidance may be appropriate, but the minimum statutory
requirement always is noted.
Response to Comments
In the notice of availability of the proposed guidance, the FTA and
FHWA requested comments on specific provisions in the proposed guidance
and comments on particular questions posed by the agencies in the
Federal Register notice. The agencies received comments from 29
parties. Commenters included four individuals, six transit agencies, 13
State highway agencies, one State environmental agency, one Federal
environmental agency, and four national transportation organizations.
Commenting entities included the New York Metropolitan Transit
Authority, San Francisco Bay Area Rapid Transit District, Central Puget
Sound Regional Transit Authority, Washington Metropolitan Area Transit
Authority, Lane Transit District, San Diego Association of Governments,
Virginia Department of Transportation, Maryland State Highway
Administration, Idaho Transportation Department, Montana Transportation
Department, North Dakota Transportation Department, South Dakota
Transportation Department, Wyoming Transportation Department, Ohio
Department of Transportation, Minnesota Department of Transportation,
Louisiana Department of Transportation and Development, Florida
Department of Transportation, California Department of Transportation,
West Virginia Department of Transportation Division of Highways, State
of Washington Department of Ecology, U.S. Environmental Protection
Agency, American Highway Users Alliance, American Association of State
Highway and Transportation Officials, American Road and Transportation
Builders Association, and American Public Transportation Association.
This section highlights the key issues identified in the comments
on the proposed guidance, including comments in response to the
agencies' specific questions. This section also describes the FTA and
FHWA response to the comments on section 6002 implementation. The key
issues are summarized and addressed below under general headings
relating to the topics addressed. The first seven headings relate to
the seven specific questions on which the FTA and FHWA requested
comments. The remaining headings pertain to topics addressed within the
three sections of the proposed guidance (Section 1: The Environmental
Review Process; Section 2: Process Management; and Section 3: Statute
of Limitations). Accordingly, the FTA and FHWA response is organized
under the following headings: Adequacy of Guidance, Flexibility of the
Process, Lead Agency Responsibilities, Methodologies for Project
Analysis, Coordination with Participating Agencies, Schedules for FTA
Projects, New Starts Alternatives Analysis, General Information About
the Environmental Review Process,
[[Page 66578]]
Applicability Requirements, Project Initiation, Lead Agencies,
Participating Agencies, Cooperating Agencies, Purpose and Need,
Alternatives Analysis, Preferred Alternative, Coordination and
Schedule, Requirements Placed on Non-U.S. DOT Federal Agencies,
Concurrent Reviews, Issues Identification and Resolution, Funding of
Additional Agency Resources, Statute of Limitations, and Other
Comments.
A number of commenters raised questions that relate to issues other
than implementation of section 6002, such as inquiries about the FTA or
FHWA practices under NEPA that are not affected by the implementation
of section 6002. Because the section 6002 guidance is intended to focus
on topics relating directly to the new law, FTA and FHWA decided such
questions were beyond the scope of the guidance.
1. Adequacy of Guidance
In the notice of availability of the proposed guidance, the FHWA
requested comments on whether the guidance provided enough information
and instruction on how best to implement the new requirements under
section 6002. The FHWA received several comments on this question. In
general, commenters appear satisfied with the level of information
provided. Where commenters felt a particular part of the guidance
warranted additional information or a different interpretation, they
submitted their comments in the context of those specific questions.
The key comments in terms of the overall adequacy of the guidance, and
the agencies' response, appear below.
Several commenters stated that the FTA and FHWA should more
strongly emphasize their intention to apply section 6002 in a manner
that promotes faster processing of projects. We agree that the guidance
could benefit from more emphasis on the streamlining goals of section
6002. The FTA and FHWA have revised the answer to Question 6 of the
guidance to stress the opportunities for flexibility in designing an
environmental review process that meets the statutory requirements of
section 6002. This includes continuing to use existing procedures where
appropriate. Revisions have been inserted in appropriate places
throughout the guidance to identify opportunities to reduce paperwork
by documenting the steps taken under section 6002 within types of
documents already in use to comply with NEPA or other project-related
procedures.
One commenter stated there is a need for more information about how
to interpret the guidance in the case of States assuming Federal
responsibilities for NEPA or other aspects of the environmental review
process, on a pilot basis, under section 6005 of SAFETEA-LU. On April
5, 2006, FHWA published a notice of proposed rulemaking in the Federal
Register (71 FR 107040, April 5, 2006) for the implementation of
section 6005. Following issuance of the final rule and receipt of
applications from the pilot States, the FHWA will work with pilot
States to identify and address any issues created by the pilot States'
assumption of Federal environmental review responsibilities. We do not
feel it is necessary to address this issue in the section 6002
guidance.
2. Flexibility of the Process
In the notice of availability of the proposed guidance, the FHWA
requested comments on whether there are specific areas where the
guidance could and should provide more flexibility while still meeting
section 6002 requirements. The request also asked that commenters
consider how customization in particular areas might permit better
responses to issues of regional concern. Six commenters submitted
comments identified as responses to the FHWA questions on flexibility.
The FTA and FHWA have considered various comments and concluded that
the proposed guidance may not have identified the available
flexibilities clearly enough. The agencies have revised the final
guidance to highlight the flexibility inherent in implementation of
many of the provisions of section 6002. The guidance continues to
encourage agencies to tailor procedures to meet their needs, within the
statutory parameters of section 6002 and other applicable laws,
regulations, and funding agency requirements.
Several commenters also stated that, where possible, the guidance
should support the use of existing processes or procedures to meet
section 6002 administrative requirements. The FTA and FHWA agree with
this comment and the final guidance clarifies that existing processes
can be used as is, or modified as required, so long as the resulting
procedures meet the statutory requirements of section 6002 [23 U.S.C.
139] and other applicable Federal laws, regulations, and policies.
3. Lead Agency Responsibilities
The FHWA asked for comments concerning the adequacy of the
descriptions in the proposed guidance of the responsibilities,
authorities, and limitations of lead agencies. The FHWA also requested
comment on whether the division of labor, responsibility and authority
was appropriate. Several commenters addressed this topic through their
comments on specific questions in the proposed guidance. The FHWA and
FTA response to those comments appears with the relevant questions.
4. Methodologies for Project Analysis
The FHWA asked for comments on whether the proposed guidance
adequately addressed the process for involving participating agencies
in the selection of methodologies for project analysis. In particular,
the FHWA wanted to know whether the process in the proposed guidance
would serve to minimize the occurrence of debates about methodologies
late in the project development process. Two commenters indicated a
concern that the methodologies process could evolve into a document-
intensive and contentious process. The FTA and FHWA appreciate that the
determination of methodologies can be a challenging aspect of the
environmental review process and have considered the comments and made
several clarifications in the text of Question 38 of the final
guidance. The clarifications are intended to improve the guidance's
explanation of the timing of coordination and decisionmaking on
methodologies, and to facilitate the use of programmatic agreements on
methodologies to the extent appropriate.
5. Coordination With Participating Agencies
Comments were requested on whether the proposed guidance provided
sufficient detail about the coordination process with participating
agencies. In particular, comments were sought on whether changes in
schedule should require coordination with participating agencies. Two
commenters replied to these questions and stated that the guidance, by
requiring a project schedule for Federal-aid highway projects, is more
restrictive than section 6002 [23 U.S.C. 139(g)(1)(B)]. The statute
makes schedules an optional part of the required coordination plan. The
FHWA believes that a schedule is critical to successfully managing
large or complex projects, including managing the environmental review
process for such projects. The FHWA revised the final guidance to
clarify that the FHWA, in its Federal lead agency capacity, assumes
that a schedule will be used on all EA and EIS projects processed under
section 6002. If the non-Federal lead agency believes that a schedule
is not needed, then the non-Federal lead agency will be expected to
[[Page 66579]]
consult with the FHWA about how the project will proceed. For further
detail on the use and modification of schedules, see the comments and
responses to Questions 47-57.
The FTA and FHWA have considered comments on coordination needed
for changes to the schedule, along with the comments and have concluded
that the concurrence requirement for schedule modification should apply
only to cooperating agencies. This is consistent with the statute.
However, the FTA and FHWA note that a successful environmental review
process for a project often depends upon close and pragmatic
coordination of the original and any modified schedule with all
agencies that play a role in the review of a project.
6. Schedules for FTA Projects
The FTA requested comment whether it should require the development
of a schedule for all FTA projects requiring an EIS. The notice of
availability noted that section 6002 makes the inclusion of a project
schedule in the ``coordination plan'' for the project optional, but
that the FHWA was proposing the use of a project schedule for all EIS
and EA projects. The FTA sought comments on whether to require, in the
interest of good project management, the development of a project
schedule and its inclusion in the coordination plan for any transit
project requiring an EIS.
A number of commenters addressed this question. All but one
advocated keeping the schedule optional for FTA projects. These
commenters generally argued that complex transit projects will
frequently require schedule revisions, and the consultations required
to revise a schedule when one is included in the coordination plan
would defeat the objective of expediting by managing to a schedule. The
one commenter who disagreed with this point of view argued for a
mandatory schedule as a necessary project management tool. Having
considered all of these comments, FTA has decided to keep the schedule
optional.
7. New Starts Alternatives Analysis
The FTA requested comment whether it should continue to allow a New
Starts Alternatives Analysis, as defined in 49 U.S.C. 5309(a)(1), to be
developed as a non-Federal planning document not subject to NEPA
regulatory requirements, or require that the New Starts Alternatives
Analysis be merged into the NEPA document (normally an EIS for New
Starts projects), be subject to NEPA regulatory requirements, and be
signed by the FTA Regional Administrator.
The agencies received a number of comments on this question, and
the commenters unanimously agreed that the flexibility of the status
quo should be maintained. Accordingly, the FTA has decided to maintain
the flexibility of performing a Small Starts or New Starts Alternatives
Analysis as a planning study or as a NEPA document.
One commenter requested clarification on whether, in this guidance,
the term ``New Starts projects'' also encompassed ``Small Starts
projects'' or not. The FTA has now decided to distinguish between
transit fixed guideway projects that meet the Small Starts criteria [49
U.S.C. 5309(e)] and those that do not [49 U.S.C. 5309(d)], by referring
to them as ``Small Starts'' and ``New Starts'' respectively. The
requested clarifications, namely that this guidance applies to any FTA
project requiring an EIS, including but not limited to any Small Starts
project requiring an EIS, and that Question 13 on the New Starts
Alternatives Analysis also applies to Small Starts, have been made in
the final guidance.
8. General Information About the Environmental Review Process (Proposed
Guidance Questions 1-7)
Several parties offered comments on this segment of the proposed
guidance. A number of the comments related to editing the proposed
guidance for consistency in terminology and usage. The FTA and FHWA
have considered those concerns in preparing the final guidance. The
major comments on the content of this segment are described below.
One commenter on Question 3 thought that the FHWA should adopt the
FTA policy of not applying section 6002 to projects that are processed
as environmental assessment (EA) and categorical exclusions (CE)
projects under NEPA. One commenter advised the FTA not to rule out the
use of section 6002 on EA projects. The FTA and FHWA have considered
the comments, and both agencies have considered the role that EAs play
in their programs. The FHWA and FTA have revised the final guidance to
indicate that neither agency at this time intends to apply section 6002
to CE projects. In the case of EA projects, the ``default case''
adopted by both agencies in the final guidance is that section 6002
will not apply. However, the FHWA and FTA recognize that in some cases
section 6002 may be appropriate for an EA project and, in such cases,
section 6002 procedures may be used. The text in the final guidance
relating to Question 8 has been revised accordingly. The decision of
the lead agencies to use section 6002 for an EA project will be
documented in, and communicated through, the coordination plan.
Another commenter suggested that the guidance should clarify that
some environmental laws are administered by the U.S. DOT agencies and
some are under the authority of other Federal agencies. The commenter
also asked that the guidance clarify that in some cases, such as the
New Jersey and Michigan Clean Water Act Section 404 programs, a Federal
program is partly or wholly operated under the authority of a State.
The agencies have revised Question 3 of the final guidance to
acknowledge these points.
A number of commenters supported giving lead agencies the option to
use interagency merger agreements, which currently provide for
integrated project review processes under NEPA, the Clean Water Act,
and other Federal laws, to meet the requirements of section 6002. Some
commenters on Question 6 thought that the guidance should provide more
information on the use of merger concurrence points and the effect of
section 6002 on signatory agencies' authority under the merger
agreements. Commenters held differing views on whether concurrence
points should apply in the future, and whether there is a need to
renegotiate merger agreements in light of the provisions of section
6002.
The FTA and FHWA agree that the use of merger agreements, where
they are in effect and working well, should continue. The agencies have
revised Questions 6, 9, and 48 in the final guidance to clarify this
point. The revisions include an explanation that the merger agreement
may be used by those entities that are signatories to it, but that the
environmental review process must provide to others the opportunities
for involvement specified in section 6002. The final guidance also
states that, where a pre-existing merger agreement includes concurrence
requirements, the lead agencies may continue to use those parts of the
merger agreement if they wish. However, if the lead agencies conclude
that concurrence on an issue is not achievable, then the lead agencies
must exercise their decisionmaking obligations under Section 6002. For
these reasons, lead agencies may find that, when preparing coordination
plans, they need to supplement the provisions of a merger agreement to
ensure that the requirements of section 6002 are satisfied.
Several commenters indicated that the FTA and FHWA should permit
merger processes to be ``grandfathered'' under
[[Page 66580]]
section 6002, treating such agreements as an ``existing environmental
review process * * * approved by the Secretary under section 1309 of
the Transportation Equity Act for the 21st Century * * *'' (TEA-21)
(Pub. L. 105-178; 112 Stat. 107), thereby allowing the substitution of
the merger agreement for section 6002 procedures. The FTA and FHWA do
not believe that a merger agreement is considered an ``existing
environmental review process'' within that provision unless it
adequately addresses the entire environmental review process, including
the Section 6002 procedures for providing opportunities for involvement
to all parties that are entitled to such opportunities and the
procedures for collaboration with participating agencies on
methodologies (see Question 9 in final guidance).
A commenter requested clarification in Question 7 as to whether the
Tier 2 EIS process had to start over with the section 6002 procedures
such as notice of initiation and invitations to participating agencies.
The FTA and FHWA have revised Question 7 to state that when initiating
a Tier 2 EIS, most section 6002 procedures will apply as though Tier 2
is a new project. However, the lead agencies have the discretion to
determine the degree to which Tier 2 environmental review procedures
should be modified in order to recognize the Tier 1 decisions that are
final and carried into the Tier 2 proceedings.
9. Applicability Requirements (Proposed Guidance Questions 8-10)
Several of the comments on this segment of the proposed guidance
related to how the FTA and FHWA would apply section 6002 to EA and CE
projects. The agencies addressed this topic in their response to
comments on Question 3 and Question 8 of the proposed guidance.
Commenters also suggested that the decision to use section 6002 for
an EA should require the agreement of the project sponsor. The FTA and
FHWA have considered this issue and have concluded that they will not
adopt a requirement that the project sponsor agree to the use of
section 6002 for an EA project. The agencies note, however, that if the
project sponsor is a joint lead agency, it would have to agree to the
use of Section 6002 process for an EA project as part of the joint
decisionmaking described in Section 11 (Lead Agencies) below. Private
sponsors will be free to make their views known, but the government
agencies responsible for NEPA must make the decision.
One commenter thought that the guidance should clarify in Question
9 whether an exemption from section 6002 procedures based on an
existing environmental review process approved under section 1309 of
TEA-21 may be applied on a project-by-project basis. The FTA and FHWA
have revised Question 9 to clarify that an environmental review process
that is approved as a substitute for section 6002 procedures must be
used for a program or for a pre-approved class of projects, but cannot
be substituted for section 6002 procedures on a project-by-project
basis.
A commenter described Question 10 of the proposed guidance as too
restrictive and in conflict with regulations at 23 CFR 771.130(d) and
40 CFR 1502.9(c)(4) that eliminate scoping from the process for a
supplemental EIS (SEIS). The commenter believed that section 6002
should not apply to SEISs that do not involve the reassessment of the
entire action. Question 10 has been revised to state that a SEIS under
23 CFR 771.130 for a project with a notice of intent that was issued
prior to the enactment of SAFETEA-LU will not need to follow the
SAFETEA-LU environmental review process if the SEIS does not involve
the reassessment of the entire action.
10. Project Initiation (Proposed Guidance Questions 11-13)
Several comments focused on the need for minor editing of the
proposed guidance. The FTA and FHWA have reviewed those comments and
the guidance, and made revisions as appropriate. Key comments on the
content of the guidance, and the agencies' responses, appear below.
Several commenters questioned the effectiveness of trying to meet
project initiation requirements when only limited information might be
available about permit and approval requirements or other project
details. They viewed the information required for the notice of
initiation as a violation of NEPA because a determination about needed
approvals requires knowledge of the alternatives to be considered and
such knowledge is not available until later in the environmental review
process.
After considering the comments, the FTA and FHWA agree with the
concern that in some cases not all project approval needs will be known
at the time of project initiation. Question 11 in the final guidance
has been revised to acknowledge that lead agencies will be expected to
act on the best available knowledge at the time of initiation. Because
the information in the notice of initiation will be used to plan the
project proceedings, it is in the interest of all parties to have as
much information as possible early in the process, and to pass along to
the Federal lead agency any new information as soon as it becomes
available.
Several commenters expressed concern about the added paperwork that
would be caused by the notice of initiation and asked whether the
notice of intent for an EIS or the use of existing project initiation
procedures could be combined with the notice of initiation under
section 6002. Also, a commenter asked whether programmatic notices of
initiation could be used rather than project-by-project notices. The
FTA and FHWA agree with the commenters that it is desirable to avoid
duplication and unnecessary paperwork. The agencies also recognize that
the purposes of the notice of initiation include advising the Federal
lead agency that it is time to start project review proceedings, and
helping the lead agencies determine the scope of the required
environmental review process. The agencies have revised Question 11 in
the final guidance to more clearly support the adaptation of existing
procedures to cover the notice of initiation requirement under section
6002. The procedure used must provide the information required under
the project initiation provisions of the statute, to the extent the
information is available. The use of one document to cover multiple
project needs is fully endorsed by the FTA and FHWA. Whatever form or
format is used also should indicate the timeframe within which the
environmental review process should commence. In light of the staffing
implications for all agencies involved, including the Federal lead
agency, the initiation notice must be from an individual appropriately
authorized by the project sponsor.
11. Lead Agencies (Proposed Guidance Questions 14-20)
Many commenters focused their comments on the operation of section
6002 with respect to lead agencies and lead agency decisionmaking. The
major comments and the Federal response are described below.
Commenters were concerned about the FHWA requirement in the
proposed guidance that the State DOT serve as the non-Federal lead
agency under section 6002 [23 U.S.C 139(c)(3)] for projects currently
handled by local government agencies (hereinafter referred to as local
government agencies) that receive ``pass-through'' project funding.
Commenters suggested that the FHWA should allow local government
agencies, as subrecipients of Federal funds, to
[[Page 66581]]
serve as the mandatory non-Federal lead agency under section 6002.
Commenters felt that the local government agencies would be best
positioned to fulfill the section 6002 non-Federal lead agency role in
the case of locally initiated projects. Commenters also cited the added
burden that would be placed on the State DOTs if they were required to
serve as the non-Federal lead agency for local projects. One commenter
was concerned that the requirement that the recipient of funding serve
as the non-Federal lead agency would disturb the procedures presently
followed by the FTA and local transit agencies. Some commenters
expressed the view that State agencies should have the option, at the
State agency's discretion, to serve as a non-Federal joint lead agency
along with the local governmental agency. A few commenters encouraged
allowing the State DOT to continue allowing local government agencies
to prepare NEPA documents while the State DOT serves in a ``NEPA
reviewer'' and quality assurance role, rather than requiring the State
to hold the larger scope of responsibility described in the proposed
guidance.
The FHWA and FTA have considered the many comments on this topic
and have concluded that the proposed guidance correctly interpreted the
language of section 6002 on mandatory joint lead agencies. The final
guidance continues to reserve mandatory lead agency status to the U.S.
DOT agency and the direct recipient of Federal funds. The FTA and FHWA
believe that this interpretation follows the language of section 6002
and recognizes the legal relationships embedded in other Federal laws
and regulations relating to recipient and subrecipient
responsibilities. However, the FTA and FHWA agree that revisions to
Questions 14-16 are appropriate to clarify and provide more detail on
the lead agencies exercise of their discretion to extend invitations to
agencies to serve as joint lead agencies under CEQ regulations.
Question 15 of the final guidance notes that State or regional toll
authorities are among the agencies that lead agencies may invite to
serve as a joint lead agency. That part of the guidance also specifies
that agencies invited to serve as joint lead agencies under CEQ
regulations assume the full spectrum of decisionmaking roles and
responsibilities assigned to lead agencies under section 6002. Because
of the scope of the decisionmaking roles held by joint lead agencies,
the lead agencies will want to assess carefully which status (joint
lead, cooperating, or participating) is most appropriate for various
agencies with an interest in the project.
Question 16 revisions make it clear that the lead agencies
typically will invite a local governmental agency to serve as a joint
lead agency if it will be taking on design and construction
responsibilities for the project. Once the local governmental agency
accepts the invitation, the three agencies are ``lead agencies'' for
purposes of section 6002. The three agencies then will determine how to
allocate roles and responsibilities among themselves based on
resources, expertise, project needs, and other relevant factors.
However, the FHWA will continue to require the State, as the direct
recipient of the Federal-aid highway funds, to serve as a joint lead
agency on all projects regardless of the participation of a local
governmental agency as a joint lead agency. The State remains legally
responsible and liable for the proper performance of any NEPA or
section 6002 work assigned to the local governmental agency, and the
State must provide active oversight and supervision to the local
governmental agency's work. This means that the State must be an active
and knowledgeable participant in decisionmaking and must ensure that
the local governmental agency, in carrying out any responsibilities
assigned to it, fully complies with NEPA and section 6002. The FHWA's
legal relationship, including oversight for the environmental review
process, will continue to be with the State as the direct recipient of
Federal-aid highway funds. Thus, the lines of oversight and legal
responsibility of the FHWA, the State, and the local governmental
agency remain the same as they were prior to the enactment of section
6002.
Several commenters raised questions on this and other parts of the
proposed guidance about the FTA and FHWA interpretation of
decisionmaking roles for the section 6002 Federal lead agency and non-
Federal lead agencies. The main concern was that the U.S. DOT agencies
were reserving to themselves the final decisionmaking authority, when
section 6002 calls for joint decisionmaking between the two entities. A
second concern was that the guidance did not describe how the lead
agencies would resolve disagreements among themselves. The FTA and FHWA
have considered the comments on the topic of lead agency decisionmaking
and concluded that revisions should be made to the guidance to reflect
a stronger joint decisionmaking process under section 6002. The
agencies have revised Questions 19, 21, 32, 36, 38 and 39 to include
language that addresses these issues and to eliminate references to the
Federal lead agency making the final decision in specified situations.
The Federal lead agency and all joint lead agencies collectively
constitute the ``lead agency'' under section 6002 and they will engage
in joint decisionmaking on matters involving the environmental review
process. Disagreement on an issue must be resolved among those lead
agencies before further action can be taken on the project that relates
to the disputed issue. The effect of this decisionmaking process is
that each party effectively holds a veto over the decision and the
entities must cooperate in order to move the project forward on the
issue in question. This is consistent with the discussion of joint lead
agency decisionmaking in Conference Report 109-203 at pages 1046-1052.
12. Participating Agencies (Proposed Guidance Questions 21-29)
One commenter expressed concern that the information provided in
the proposed guidance was insufficient to advise lead agencies of how
to operate under the participating agencies provision of section 6002.
The FTA and FHWA have considered the comments and revised the final
guidance to provide additional detail and to emphasize areas of
flexibility.
A few commenters raised questions about the process for identifying
and inviting participating agencies. While commenters generally
endorsed the process described in the proposed guidance, some
commenters thought that the proposed guidance implied too broad an
interpretation of an ``interest'' that would support inviting an entity
to be a participating agency under section 6002. Those commenters
requested inclusion of a definition of ``interest'' in the guidance.
They suggested that the term be limited to mean those agencies that
have more than a remote or speculative interest in the project. The FTA
and FHWA have considered the comments and agree with the need to
clarify the intended interpretation of what level of interest is
sufficient to warrant participating agency status. The agencies have
revised Question 21 to provide that there must be more than a
tangential, speculative, or remote interest in the project to support
participating agency status. Indicators of an ``interest'' include
agencies that have an expertise in a topic relevant to the project,
have jurisdiction over some aspect of the project, or are responsible
for governmental function(s) that may be affected by the project or its
impacts. However, the final guidance also recognizes the flexibility
lead agencies have in this area, and the guidance
[[Page 66582]]
acknowledges that practices may vary from State to State.
A few commenters raised a question about the effect of agency
resources on the responsibility of participating agencies to
participate in the environmental review process under section 6002. The
FTA and FHWA revised Question 22 to address this concern. The FTA and
FHWA acknowledge that many agencies face resource constraints on their
operations, and that such constraints may affect the ability of an
agency to participate in every project. At the same time, section 6002
clearly establishes Congress's intent to make the environmental review
process work more efficiently in terms of the time required to deliver
projects. In order to meet the environmental review process
requirements under section 6002, some agencies may have to determine
which projects are priorities and to allocate resources accordingly.
The lead agencies also will be affected by this challenge, and they
will need to consider the potential effects of not having full
participation by an agency on a project. For example, non-participation
may have unfavorable impacts later when a participating or cooperating
agency has to make its own decisions on the project.
The FTA and FHWA also note that, in their experience, an agency
often finds it difficult to make meaningful contributions to the
environmental review process if it becomes fully involved for the first
time only after major decisions have been made. For these reasons,
participating agency resource constraints are an important factor that
the lead agencies should consider in developing the project
coordination plan, including the timing of decision points in the
process. The FTA and FHWA wish to emphasize that States still have the
authority under 23 U.S.C. 139(j) to use Federal funds received under
Title 23 and Title 49 to provide financial assistance to agencies for
the purpose of expediting the environmental review process. In the
final analysis, however, section 6002 does not provide any exemption
from participation for agencies that face staffing, financial, or other
resource constraints and the FTA and FHWA have not revised the final
guidance to create one.
Some commenters asked about the timing of the participating agency
invitations and asked whether participating agency invitations could be
handled prior to the beginning of scoping, or whether the scoping
process could be used to identify participating agencies. The FTA and
FHWA have revised Question 23 to clarify that the timing of invitations
to serve as participating agencies may vary. To the extent that the
lead agencies know prior to scoping that certain entities should be
invited to serve, the lead agencies may send invitations at or after
the time of the project notice of initiation. If, as the project
progresses, the lead agencies identify additional entities that should
be invited to serve as participating agencies, then they should invite
those entities promptly.
Some commenters expressed concern about the difference in treatment
of Federal and non-Federal agencies with respect to response, or the
lack of response, to an invitation to be a participating agency. The
provisions of section 6002 relating to invitations to participating
agencies [23 U.S.C. 139(d)(2)-(3)] create a mandatory protocol for
handling Federal agency invitations and the subsequent responses or
lack of responses. The proposed and final guidance reflect that
statutory procedure in Question 25. Because participating agency status
carries with it certain responsibilities that accompany the benefits of
the opportunity for early and substantive participation in the project
decisionmaking process, the FTA and FHWA concluded that conferring
``involuntary'' participating agency status on non-Federal agencies is
neither feasible nor appropriate. The final guidance retains the
original procedure for non-Federal agencies.
A number of commenters proposed changes to the language in
Questions 26-27. Question 26 relates to how to handle situations in
which an agency becomes a participating agency after the environmental
review process is underway, either because new information indicates
that there is a need for the agency's participation, or because the
agency originally declined to participate but has changed its mind.
Question 27 addresses what happens if an agency declines to be a
participating agency but makes comments on the project anyway.
Commenters had varying concerns. The most prevalent issue raised was
how to ensure that decisions, once made, are not revisited
unnecessarily, yet how to make certain that a new participating
agency's interest and concerns were adequately addressed. The agencies
determined that the procedures described in Question 26 of the proposed
guidance establish the appropriate standards for the scenarios
described in both Question 26 and Question 27. The agencies have
revised Question 27 to clarify that the procedures in Question 26 apply
in the case of an agency that initially declines to be a participating
agency but later decides to submit comments on the project.
Question 27 of the proposed guidance stated that comments received
from agencies that declined to be participating agencies ``are not
entitled to any greater or lesser deference than those of the general
public.'' A number of commenters inferred from this proposed language
that participating agency comments would receive more weight than
comments from the general public. Commenters asked for a clarification
on this point. The FTA and FHWA have reviewed the text and have revised
the text for Question 27 by deleting the phrase in question and
inserting a reference to the process for handling comments that is
outlined in the text for Question 26 of the final guidance. The lead
agencies will consider all comments on a project, and evaluate the
comments by considering relevant factors that may affect the
credibility and weight that the agencies should afford the comments.
Some commenters suggested that the guidance should recognize that
participating agencies may have different roles and levels of
participation in the environmental review process and indicated that
lead agencies should have the authority to identify a core group of
participating agencies for regular meetings and provide more limited
opportunities for participation to the remaining participating
agencies. The FTA and FHWA have revised Question 28 to clarify that
expectations and commitments about agency participation should be
addressed in the coordination plan. It is appropriate to tailor an
agency's participation to its area of interest or jurisdiction, but the
lead agencies should make their choices after considering the potential
effects if the agency is not provided an opportunity for involvement in
some aspects of the environmental review process. Lead agencies also
are free to honor requests from participating agencies to limit the
participating agency's involvement, but in such cases the participating
agency remains bound by the section 6002 process and the participating
agency's self-imposed non-participation or selective participation may
deprive it of the ability to influence the outcome of specific decision
points in the process.
One commenter asked that the guidance be revised to reflect the
ability of participating agencies to submit comments later in the
process if additional information from technical studies or development
of the draft EIS becomes available. The FTA and FHWA
[[Page 66583]]
agree that there are occasions when significant and relevant new
information that is materially different than the information available
at the time of the original comment period would merit an additional
round of comments or require reconsideration of previous decisions on a
project. The lead agencies will have to determine on a case-by-case
basis whether such a situation exists. The FTA and FHWA have revised
Question 28 to reflect this aspect of the process.
13. Cooperating Agencies (Proposed Guidance Questions 30-31)
One commenter asked for clarification in Question 31. The FTA and
FHWA have revised Question 31 to indicate that invitations to agencies
to participate in the environmental review process should be explicit
about each role that the invited agency is being asked to serve. The
agencies also clarified that, in the interest of efficiency, the lead
agencies should use a single invitation whenever possible to address
both cooperating agency and participating agency status.
14. Purpose and Need (Proposed Guidance Questions 32-35)
A commenter noted that the guidance should better recognize that,
because other agencies may have to make decisions on the project, it
would be useful for the agencies to jointly develop the statement of
purpose and need. The FTA and FHWA agree with the suggestion and have
revised Question 31 accordingly.
Commenters questioned the use of the term ``collaboration'' in the
proposed guidance when discussing the decisionmaking process for
purpose and need (Question 32) and range of alternatives (Question 36).
Questions 32 and 36 have been revised to state that the lead agencies
are responsible for the development of the purpose and need statement
and the range of alternatives, after considering input from the
participating agencies and the public.
Section 6002 calls for giving participating agencies and the public
an opportunity for involvement on purpose and need and range of
alternatives. Commenters on this topic generally considered
``opportunity for involvement'' to authorize something different than,
and potentially less interactive than, ``collaboration.'' Several
commenters noted that the use of the phrase ``in a timely and
meaningful way'' in the answer to Question 34 did not provide enough
guidance on when or how lead agencies should provide an ``opportunity
for involvement'' on purpose and need. The FTA and FHWA have revised
Question 34 to clarify that the opportunity for involvement is not a
static concept, but flexible and depends on the project and issues
involved. ``Opportunity for involvement'' is intended to gather
information and perspectives, and to make sure that decisionmakers
understand the concerns of interested parties. The FTA and FHWA believe
it is important to provide maximum flexibility to the lead agencies on
the timing and nature of involvement opportunities. The agencies have
concluded that it would be difficult to provide a more precise
description in the guidance without becoming prescriptive.
A number of commenters expressed concerns about how the guidance
references the transportation planning process and its products in
Questions 33 and 35. Questions 33 and 35 have been revised to describe
the considerations that apply to using the results of the planning
process when developing the statement of purpose and need.
15. Alternatives Analysis (Proposed Guidance Questions 36-38)
Commenters made nearly identical comments on the purpose and need
and alternatives analysis segments of the proposed guidance with
respect to the use of the term ``collaboration'' and the desirability
of coordinating decisions on these issues with agencies that make
decisions on the project under other laws. The agencies responded to
those questions in the purpose and need segment of this notice, and
made the same revisions to both the purpose and need segment and this
alternatives analysis segment of the final guidance.
Commenters objected to the use of the term ``timely and
meaningful'' in Question 37 as overly broad, and to the statement in
the proposed guidance that opportunities for involvement on purpose and
need and range of alternatives ``may be concurrent or sequential'' as
failing to recognize that the range of alternatives for analysis can be
determined only after the purpose and need of the project is decided.
The agencies agree that the phrase ``timely and meaningful'' is overly
broad and have revised Question 37 by removing the phrase.
Additionally, the question has been revised to further explain that the
opportunity for involvement must be provided prior to the lead
agencies' decision regarding the range of alternatives. The agencies
also clarified that lead agencies must consider whether additional
opportunity for involvement on the range of alternatives is required if
changes to the purpose and need arise out of involvement by the
participating agencies and the public.
Some commenters stated that the guidance should clarify the
parameters of the collaboration process for choosing methodologies,
including the timeframes for comment. Another concern was that reaching
closure on methodologies during scoping may not be feasible, and that
the process for selecting methodologies discussed in Question 38 could
become time-consuming and contentious.
The FTA and FHWA have considered all of the comments on the process
for selection of methodologies and have concluded that revisions to
Question 38 are warranted. The agencies agree that collaboration on
methodologies need occur only with agencies that have some expertise,
experience, statutory mission, or jurisdiction relevant to the object
of the pending analysis. The FTA and FHWA note that this standard
should be interpreted reasonably, so that participating agencies are
not inappropriately excluded from collaborating on methodologies. If
the lead agencies elect to establish a comment period under section
6002 [23 U.S.C. 139(g)(2)(B)] to help bring closure to the selection
process, then they will need to follow procedures for giving notice of
the comment period (see Question 54). Issues on methodologies should be
raised and resolved as soon in the environmental review process as the
lead agencies believe there is sufficient information on the particular
issue to reasonably support selection of the methodology for analysis.
The FTA and FHWA have concluded that the language on documenting the
selection of methodology, and any objections thereto by participating
agencies, is appropriate and consistent with NEPA requirements. Such
documentation also is a good administrative practice, particularly in
the event of later litigation. That language is retained in the final
guidance.
A commenter raised a concern that the language in Question 38 on
``comments late in the process'' appears to conflict with 40 CFR part
1503 requirements for the consideration of comments received during the
draft EIS comment period. The NEPA regulation at 40 CFR 1503.4(a) does
require an agency preparing a final EIS to ``assess and consider''
comments made on a draft EIS. However, under 40 CFR 1503.4(a)(5), the
agency preparing the final EIS may ``explain why the comments do not
warrant further agency response, citing the sources, authorities, or
reasons which support the agency's position and, if appropriate,
indicate those circumstances which would
[[Page 66584]]
trigger agency reappraisal or further response.'' The FTA and FHWA have
concluded that the lead agencies are not required to revisit an issue
on which participating agencies had an opportunity to comment earlier
in the environmental review process. The exception would be if the
draft EIS is the first opportunity a participating agency has to
comment on significant and material new information affecting the
selection. The FTA and FHWA have determined that the language in the
proposed guidance represents an appropriate interpretation that is in
harmony with both the NEPA regulatory provisions and section 6002
requirements.
The FTA and FHWA also have revised Question 38 to clarify the
procedure for developing and applying a methodology for a program,
region, or class of projects.
16. Preferred Alternative (Proposed Guidance Questions 39-46)
Several commenters asked for clarification of Question 39,
concerning who decides whether the preferred alternative can be
developed to a higher level of detail. Some objected to the use of the
term ``locally preferred alternative'' because it is not a term used in
the statute. The agencies have revised Question 39 to eliminate the
term ``locally preferred alternative.'' The agencies also have adopted
in Question 39, as throughout the final guidance, language that
reflects joint decisionmaking among the lead agencies. If the joint
decisionmaking process does not result in mutual agreement on whether
there is a preferred alternative or whether the section 6002 criteria
for doing a higher level of design for a preferred alternative [23
U.S.C. 139(f)(4)(D)] are satisfied, then no action can be taken that
relies on such decision(s) until there is agreement among all of the
lead agencies.
Commenters asked for clarification of what ``accepted'' means in
Questions 39 and 41 with respect to the preferred alternative. The FTA
and FHWA have revised Question 41 to clarify this point. Some
commenters asked whether acceptance of the identification of a
preferred alternative affects the New Starts or Small Starts rating
process. The FTA has revised Question 41 to state that neither
acceptance of a preferred alternative, nor a decision to do a higher
level of design on a preferred alternative, affects the New Starts or
Small Starts rating process.
Several commenters asked the FTA and FHWA to consider ways to
reduce the analysis and documentation requirements for the
determination whether to do a higher level of design on the preferred
alternative (see Questions 42-44), and to clarify when the lead agency
can identify a preferred alternative. The FTA and FHWA have considered
all of the comments on this issue and appreciate the commenters' desire
to streamline the process for making the decision on doing a higher
level of detail. The agencies note that the criteria for the decision,
and the limitations on the purposes for which the work can be done and
the scope of work that can be performed, appear in section 6002 [23
U.S.C. 139(f)(4)(D)]. Those provisions echo language in NEPA
regulations and relevant case law. The agencies have concluded that the
requested revisions would not be consistent with those laws,
particularly with respect to the required finding of impartiality in
future decisionmaking on the selection of alternatives. Lead agencies
are encouraged to identify workable methods for expediting this
decision, but the requirement for project-by-project review is retained
in the final guidance.
The FTA and FHWA have clarified in Question 43 when the lead
agencies may decide on a preferred alternative and the performance of a
higher level of design work for the preferred alternative. In keeping
with NEPA and agency practices prior to SAFETEA-LU, a decision on a
preferred alternative cannot occur until after the lead agencies have
conducted sufficient scoping and analysis of alternatives to support
the identification. Further, there cannot have been sufficient scoping
until after an opportunity for the involvement of participating
agencies and the public on the purpose and need and the range of
alternatives has occurred.
A number of commenters asked the FTA and FHWA to consider amending
Question 40 to authorize, during the completion of the NEPA process,
design work that goes beyond the level of work described in section
6002. The types of work that the commenters indicated should be
permitted, and would not bias decisionmaking, included geotechnical
assessments, hydraulic and hydrologic analysis, traffic studies,
hazardous materials assessments, utility engineering, cost estimates,
and development of preliminary design drawings. The FTA and FHWA have
considered the various comments on the issues of the level of
additional design work and purposes for which additional design work
could be done for a preferred alternative during NEPA review and have
decided not to make the requested revisions. The agencies note that the
types of work listed by the commenters often are a part of the higher
level of design work allowed in order to meet NEPA or permitting agency
requirements for information about engineering and operational
feasibility, impacts, or other issues. The type of work is not
determinative. The key questions are whether the purpose of the
additional work is one that is authorized by law, and whether the scope
of work to be done is limited to what is needed to satisfy such
authorized purpose(s). The FTA and FHWA will continue to require good
faith and reasonable determinations that the permitted level of design
is what is needed to meet a purpose authorized by applicable laws and
regulations, including section 6002.
17. Coordination and Schedule (Proposed Guidance Questions 47-57)
This segment of the proposed guidance drew many comments,
particularly with respect to the need for a schedule and the process of
modifying a schedule. The concerns of many commenters focused on when
parties other than the lead agencies have a role in scheduling
decisions. With respect to transit projects, commenters questioned the
applicability of section 6002 to New Starts and Small Starts projects,
and one commenter suggested that FTA exempt Small Starts projects from
the project coordination plan requirements under section 6002 because
Small Starts projects are intended to have streamlined processes and
should be allowed to develop individualized plans for project planning,
development, and implementation.
The FTA and FHWA agree with the commenter's sentiments about the
importance of streamlining the process and having plans that are
tailored to the needs of the project. The FTA and FHWA believe the
coordination plan requirements will promote these objectives, not
hinder them. The agencies have made no change to the final guidance in
terms of the projects that are subject to the coordination plan
requirements.
Some commenters suggested the addition of language advising lead
agencies to give cooperating and participating agencies a role in the
development of project coordination plans. Question 47 has been revised
to state that because key elements of the coordination plan may be
setting expectations that require resource commitments by the
participating agencies, consultation with the participating agencies is
strongly encouraged.
[[Page 66585]]
A number of commenters submitted questions about the scope,
content, and use of schedules in project coordination plans under
section 6002. Some commenters objected to the FHWA requirement for a
schedule (Question 52), citing the optional nature of schedules under
section 6002 [23 U.S.C. 139(g)(1)(B)]. Others were concerned by the use
of the word ``negotiated'' in the Question 52 discussion of the process
for creating a schedule, especially the potential interpretation of
that word as requiring the agreement of participating agencies to a
proposed schedule. The FTA and FHWA have considered the various
comments on this topic. The agencies also have considered that section
6002 is intended to expedite the environmental review process, and to
avoid duplication and waste. The use of a project schedule is one
important tool to use to achieve those goals. Both the FTA and the FHWA
support tailoring the form and substance of project schedules to meet
the needs of the particular projects and the factors specified in
section 6002 [23 U.S.C. 139(g)(1)(B)(ii)].
The final guidance recognizes that schedules are optional, not
mandatory, under section 6002. The FTA decision to treat schedules as
optional remains unchanged in the final guidance. The FHWA believes
that management and stewardship of public funds within the Federal-aid
highway program dictates the need for a schedule for EA and EIS
projects. The final guidance states that FHWA assumes that a schedule
will be used on all EA and EIS projects processed under section 6002.
If the non-Federal lead agency believes that a schedule is not needed,
then the non-Federal lead agency will be expected to consult with the
FHWA about how the project will proceed. The development of a schedule
will involve consulting with the participating agencies, but does not
require consensus or concurrence.
A few commenters suggested that the factors for establishing a
project schedule, listed in Question 53 of the proposed guidance, were
incomplete because they failed to include a factor that recognized the
need to speed up the environmental review process. The FTA and FHWA
agree with the commenters that it is important to always keep in mind
that the section 6002 provisions are intended to expedite effective
project environmental reviews, which includes realistic schedules that
focus on timely decisionmaking. The agencies note that the factors
listed in Question 53 are derived from the statute. The FTA and FHWA
have revised Question 53 to recognize explicitly the importance of
using a schedule to help expedite project reviews, and the ability of
the lead agencies to consider whatever array of factors they believe
may have a substantial effect on moving the environmental review
process forward in an efficient and effective manner.
Some commenters raised concerns about how to handle needed changes
in project schedules. They expressed particular interest in how to
accommodate changes in the level of knowledge about issues affecting
the project. Commenters also asked for clarification about the type of
interaction with other agencies that is required before changing a
schedule. Section 6002 [23 U.S.C. 139(g)(1)(D)] permits the lead
agencies to lengthen a schedule for good cause. Concurrence of other
agencies is required only if a schedule is shortened, and even then
agreement is needed only from cooperating agencies that would be
affected by the shorter schedule. The agencies have revised Question 56
to clarify this point. If the component of the schedule that the lead
agencies propose to shorten does not apply to a particular cooperating
agency, then that agency's concurrence is not required for the change.
The FTA and FHWA do encourage lead agencies to consider the benefits
that can be obtained by coordinating proposed schedule changes with
both cooperating and participating agencies so that all affected
agencies can plan appropriately.
One commenter suggested that the guidance should emphasize that
there is flexibility in setting the deadlines for comments if there is
good cause for exceeding the section 6002 statutory time periods [23
U.S.C. 139(g)(2)], which may include where there is new information or
a substantial change to the project. The FTA and FHWA agree with the
commenter that there may be circumstances when good cause will exist
for the lead agencies to extend a comment period or, in extreme cases,
to reopen comments on an issue by creating a second comment period. It
is a lead agency decision whether such circumstances exist on a
particular project. The FTA and FHWA have revised Question 54 of the
final guidance to point out the lead agencies' ability to extend
comment periods for good cause. The lead agencies may provide notice to
participating agencies and the public about when a particular comment
period starts and concludes through distribution of the schedule or by
other means.
The agencies have revised Question 57 to clarify that where the
lead agencies decide to adjust a schedule, section 6002 [23 U.S.C.
139(g)(1)(E)] does require the lead agencies to provide a copy of the
revised schedule to the participating agencies, the State DOT, and the
project sponsor (if not the State). The revised schedule also must be
made available to the public.
18. Requirements Placed on Non-U.S. DOT Federal Agencies (Proposed
Guidance Questions 58-59)
Several commenters objected to the Question 58 language that
describes the 180-day deadline for decisions under Federal laws as
applying only to decisions made by Federal agencies. The commenters
stated that the deadline for decisionmaking also should apply to
decisions by State agencies that are made under Federal law, such as a
Section 401 water quality certification under the Clean Water Act, 33
U.S.C. 1341. The language of the statute itself references ``the
failure of the Federal agency to make the decision'' [23 U.S.C.
139(g)(3)(A)]. The Conference Substitute Report for SAFETEA-LU
[Conference Report on the Committee of the Conference on H.R. 3, House
of Representatives Report 109-23, page 1051] refers to the section as
``provid[ing] notice * * * of the failure of a Federal agency to make
decisions in the environmental review process (section 139(g)(3)).''
The FTA and FHWA have concluded that the language in the proposed
guidance is correct.
19. Concurrent Reviews (Proposed Guidance Question 60)
In connection with Question 60, one commenter asked for additional
information on how the FHWA will ensure that the participating agencies
fulfill their responsibilities under section 6002 [23 U.S.C. 139(h)(3)]
to identify issues of concern as early as practicable. The FTA and FHWA
believe that all lead and participating agencies have legal and general
governmental obligations to work cooperatively to improve the
environmental review process. In particular, the agencies point to the
roles and responsibilities specified in section 6002 for lead agencies
[23 U.S.C. 139(c)(6) and (h)(2)] and participating agencies [23 U.S.C.
139(d)(7) and (h)(3)]. The U.S. DOT is working with other Federal
agencies to help them understand their obligations under section 6002
and to encourage actions to meet those obligations. The FTA and FHWA
have revised the final guidance to better capture these points.
[[Page 66586]]
20. Issues Identification and Resolution (Proposed Guidance Questions
61-63)
A number of comments were submitted relating to dispute resolution
procedures and the effect of the new issue resolution provisions in
section 6002 [23 U.S.C. 139(h)]. Commenters wanted clarification on
which procedures apply, when they apply, and who can initiate the
procedures. Some commenters asked for clarification of the differences
between the SAFETEA-LU section 6002 procedure and other agency dispute
resolution processes (including ``informal'' procedures). The agencies
believe that the starting point for this topic is a better definition
of what the section 6002 procedure [23 U.S.C. 139(h)] does, and does
not, encompass. The FTA and FHWA agree with the commenters who observed
that the section 6002 process may be initiated only by the project
sponsor (as defined in section 6002) or the Governor of the State in
which the project is located. The agencies have revised Question 61 in
the final guidance to clarify this point.
The FTA and FHWA also note that the section 6002 dispute resolution
process applies ``at any time * * * to resolve issues that could delay
the completion of the environmental review process or could result in
denial of any approvals required for the project under applicable
law.'' Disputes that are likely to affect the progress of a project
often are disputes over decisions that lie outside the decisionmaking
authority of the lead agencies, so the lead agencies are not able to
impose a final decision if the dispute is not otherwise resolved. The
FTA and FHWA do believe the likelihood of success will be enhanced if
the individuals attending a dispute resolution meeting have the rank
and authority to make ``on-the-spot'' commitments that will bind their
respective agencies or organizations. The guidance has been revised to
highlight this principle and to recognize that the organizational level
of the persons invited should be guided by the kinds of issues in
dispute.
Some commenters stated that the dispute resolution guidance and
order issued under section 1309 of TEA-21 \1\ should be withdrawn
because section 1309 was repealed by section 6002 of SAFETEA-LU. Those
commenters suggested that the section 6002 provision was intended to
replace other agency dispute resolution procedures, and that States
should have the flexibility to establish their own dispute resolution
procedures so long as they are consistent with the provisions of
section 6002.
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\1\ U.S. Department of Transportation Collaborative Problem
Solving: Better and Streamlined Outcomes for All (2002), available
online at the following URL: http://www.environment.fhwa.dot.gov/
strmlng/adrguide/index.asp.
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The FTA and FHWA recognize that there is nothing in the section
6002 dispute resolution process that assures resolution of the
disagreement. The endpoint of the section 6002 process, as indicated in
Question 61 of the proposed guidance, is notice to specified
congressional committees that the dispute remains unresolved [23 U.S.C.
section 139(h)(4)(B)]. For these reasons, the FTA and FHWA encourage
separate dispute resolution procedures at the State and Federal levels
to address disagreements over important issues of concern. Lead
agencies may include dispute resolution procedures in project
coordination plans. This may be done on a project-by-project basis or
as part of program-wide coordination plan provisions.
Individual Federal agencies have recognized the value of dispute
resolution procedures and many have such procedures either as a matter
of administrative policy or as a result of statutory provisions. The
FTA and FHWA do not believe that the repeal of section 1309 of TEA-21
in any way affects Federal agency authority to maintain and apply
dispute resolution procedures. The FHWA and FTA have concluded that
most of the dispute resolution guidance developed after the adoption of
TEA-21 simply describes dispute resolution principles and practices
that continue to be useful. The U.S. DOT Order 5611.1A, entitled ``U.S.
Department of Transportation National Procedures for Elevating Highway
and Transit Environmental Disputes'' (October 10, 2003),\2\ which was
created under section 1309 of TEA-21, does not apply to section 6002
projects. The FHWA will develop updated procedures to guide FHWA-
initiated dispute resolution efforts on projects subject to Section
6002.
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\2\ The order is available online at http://
www.environment.fhwa.dot.gov/strmlng/dot5611_order.asp.
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Another commenter stated that the FTA and FHWA should not require
the completion of agency dispute resolution procedures before
initiation of the section 6002 issue resolution procedure. The FTA and
FHWA have considered this comment and agree that the final guidance
should clarify this point. The agencies emphasize that State and
Federal dispute resolution procedures, both formal and informal, should
operate to complement the section 6002 issue resolution procedure.
State or Federal agency dispute resolution procedures are not
considered as legally required prior to the initiation of the section
6002 issue resolution process. State or Federal agency dispute
resolution procedures may be used prior to, or concurrent with, the
section 6002 procedure. However, the FTA and FHWA strongly believe that
the State and Federal agency dispute resolution procedures provide an
effective method for solving major disagreements. The agencies know,
based on experience, that resolution of issues at the lowest possible
level through problem solving among the immediate parties to the
dispute typically is the most effective way to keep a project on track.
A few commenters indicated that more guidance is needed in Question
62 on the scope of the term ``issues of concern'' so that practitioners
can understand which types of disagreements are subject to the issue
resolution provisions of section 6002. Commenters generally were
concerned that too many issues would be referred for dispute resolution
procedures, thereby delaying the decisionmaking process. One commenter
observed that carefully defining the kinds of issues that are important
enough to trigger the dispute resolution procedures contributes to the
successful use of a dispute resolution procedure.
The FTA and FHWA have considered the comments on this point, and
have concluded that lead agencies and participating agencies should be
guided by the statutory language in section 6002 [23 U.S.C. 139(h)(3)-
(4)]. The agencies have revised Question 62 to track the statutory
language. The provision on participating agency responsibilities states
that participating agencies ``shall identify, as early as practicable,
any issues that could substantially delay or prevent an agency from
granting a permit or other approval that is needed for a project.'' In
practice, this means that both lead agencies and participating agencies
have responsibilities for identifying the importance of a disagreement.
The lead agencies need to manage the project and its schedule well
enough, and consult with participating agencies effectively enough, to
know when there is an issue that is unresolved and likely to cause
delay or prevent issuance of a permit needed for the project. A
participating agency has the obligation to come forward as soon as it
is aware that there may be an issue that will cause a substantial delay
or permit denial if not satisfactorily resolved. When a participating
agency informs the lead agencies of an issue of concern within the
meaning of section 6002, the lead
[[Page 66587]]
agencies should evaluate whether further dispute resolution efforts
using formal or informal processes other than section 6002 can be
productive. This step by the lead agencies does not foreclose the
initiation of the section 6002 issue resolution procedure by the
project sponsor or the State Governor, but the FTA and FHWA discourage
use of the section 6002 issue resolution procedure as the ``first
step'' after a participating agency disclosure of an issue of concern.
The FTA and FHWA believe that it is clear from the limiting language in
the statute itself that few disputes should be deemed of sufficient
importance to trigger the section 6002 issue resolution process.
Disputes of lesser importance should be resolved by the parties through
the section 6002 authorities for lead agency decisions, if applicable,
or through other dispute resolution procedures.
21. Funding of Additional Agency Resources (Proposed Guidance Questions
67-69)
One commenter asked that the guidance make it clear that no
additional funds are given to States for the purpose of providing the
financial assistance authorized by section 6002. The agencies have
revised Question 67 to make this point.
22. Statute of Limitations (Proposed Guidance Section 3)
The final guidance retains the election by the FTA and FHWA to
approach administration of the statute of limitations (SOL) provision
in section 6002 [23 U.S.C. 139(l)] in different ways. Comments received
on the SOL segment (Section 3) of the proposed guidance indicated that
the final guidance should provide greater emphasis on this fact, and
the FTA and FHWA have made appropriate revisions to Section 3 of the
final guidance.
Agencies receiving funding from the FTA should consult the part of
Section 3 of the final guidance that is specific to FTA. Similarly,
agencies receiving funding through the FHWA should refer to the FHWA
portion of Section 3 of the final guidance. Procedures described in
Appendix E apply only to FHWA and the recipients of Federal-aid highway
funding. Despite the differences in the implementation procedures
between FTA and FHWA, the agencies stress that they interpret the scope
and intent of the SAFETEA-LU SOL provision in the same way and that
their implementation decisions are based solely on administrative
differences between the FTA and FHWA programs.
For the FHWA, the final guidance replaces its earlier ``Interim
Guidance on the Use of 23 U.S.C. 139(l) Limitations on Claims
Notices,'' dated December 1, 2005, that informed actions to implement
the SAFETEA-LU SOL provision between the effective date of SAFETEA-LU
and the effective date of the final guidance on section 6002. The final
guidance contains not only SOL revisions responding to comments
received in the docket, but also changes initiated by the FHWA as a
result of the agency's experience with the SOL provisions since the
effective date of SAFETEA-LU.
Only a small number of major comments were submitted with respect
to the FHWA SOL guidance in Appendix E. Some commenters asked for
clarification in Appendix E about which Federal agencies may publish
the SOL notice, and how to handle publication where a substantial
period of time has elapsed between the FHWA Record of Decision (ROD)
and the last permit decision by other agencies. The FTA and FHWA have
considered the comment and have added clarifying language to Section 3
of the final guidance. The FHWA has revised Question E-16 in Appendix E
of the final guidance to clarify that the FHWA, as Federal lead agency,
expects to publish all notices regardless of the lapse of time between
the ROD and the last Federal agency project decision.
One commenter asked for guidance on whether the publication of a
SOL notice for a SEIS will reopen issues covered in the original EIS
for which a SOL notice previously was published. The FHWA amended
Question E-21 in the final guidance to include this issue. The effect
of a SEIS SOL notice on decisions covered by a SOL notice published for
an earlier ROD will depend on the circumstances. The FHWA believes that
litigation of earlier decisions that are unrelated to topics addressed
by the SEIS will be foreclosed by the expiration of the 180-day period
after the publication of the SOL notice covering those earlier
decisions. Any issues addressed in the SEIS proceedings, and the
Federal agency decisions that rely on the information developed during
the SEIS proceedings, would be subject to the SOL notice(s) published
in the Federal Register after the SEIS and related ROD.
Another commenter noted that the SOL notice is a Federal
requirement and expressed the view that the cost of the notice should
be borne by the FHWA. The SOL notices are an optional measure that will
be used on individual projects. As such, the cost of publishing the
notices is logically a project-related expense that may be necessary or
appropriate to the ultimate construction of an approved project. Until
a system is in place to handle State reimbursement of FHWA for SOL
notice costs, the FHWA will continue to pay for the publication of the
notices in the Federal Register.
23. Other Comments
A number of commenters asked whether electronic communications
could be used in place of hard copy letters for various actions that
require documentation, such as invitations to participating agencies.
The commenters cited the prevalence of electronic communications and
the potential timesavings that can be accomplished by using electronic
communications. The FTA and FHWA agree with the commenters that
electronic means of communication can be used, subject to certain
common sense recordkeeping and authentication requirements so that lead
agencies maintain the required project records and have assurance that
they are dealing with properly authorized agency representatives. The
FTA and FHWA revised the final guidance to reflect this view.
One commenter asked for guidance on how lead agencies should handle
situations where actions were taken after August 10, 2005, on a project
that is subject to section 6002, but the actions may not conform to all
requirements of the final guidance because the guidance did not exist.
The FTA and FHWA have considered the comment and have revised Question
8 of the final guidance to clarify how to handle such cases. If the
difference relates to a substantial requirement under the final
guidance, then the Federal lead agency will assess whether additional
action is needed and can be taken to cure the discrepancy.
The FTA and FHWA recognize and appreciate the efforts of all parties
who provided comments for consideration in the development and
finalization of the section 6002 guidance.
(Authority: 23 U.S.C. 315; Pub. L. 109-59, 119 Stat. 1144; 49 U.S.C.
5334; 23 U.S.C. 139; 49 CFR 1.48; 49 CFR 1.54)
Issued on: November 7, 2006.
James S. Simpson,
Federal Transit Administrator.
J. Richard Capka,
Federal Highway Administrator.
[FR Doc. 06-9201 Filed 11-14-06; 8:45 am]
BILLING CODE 4910-57-P