[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