[Federal Register Volume 73, Number 49 (Wednesday, March 12, 2008)]
[Rules and Regulations]
[Pages 13368-13401]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-4596]



[[Page 13367]]

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Part III





Department of Transportation





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Federal Highway Administration



Federal Transit Administration



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23 CFR Parts 771 and 774

49 CFR Part 622



Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic 
Sites; Final Rule

Federal Register / Vol. 73, No. 49 / Wednesday, March 12, 2008 / 
Rules and Regulations

[[Page 13368]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Federal Transit Administration

23 CFR Parts 771 and 774

49 CFR Part 622

[Docket No. FHWA-2005-22884]
RIN 2125-AF14 and 2132-AA83


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

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

ACTION: Final rule.

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SUMMARY: This final rule modifies the procedures for granting Section 
4(f) approvals in several ways. First, the final rule clarifies the 
factors to be considered and the standards to be applied when 
determining if an alternative for avoiding the use of Section 4(f) 
property is feasible and prudent. Second, the final rule clarifies the 
factors to be considered when selecting a project alternative in 
situations where all alternatives would use some Section 4(f) property. 
Third, the final rule establishes procedures for determining that the 
use of a Section 4(f) property has a de minimis impact on the property. 
Fourth, the final rule updates the regulation to recognize statutory 
and common-sense exceptions for uses that advance Section 4(f)'s 
preservation purpose, as well as the option of applying a programmatic 
Section 4(f) evaluation. Fifth, the final rule moves the Section 4(f) 
regulation out of the agencies' National Environmental Policy Act 
regulation, ``Environmental Impact and Related Procedures,'' into its 
own part with a reorganized structure that is easier to use.

DATES: Effective Date: April 11, 2008.

FOR FURTHER INFORMATION CONTACT: For FHWA: Diane Mobley, Office of the 
Chief Counsel, 202-366-1366, or Lamar Smith, Office of Project 
Development and Environmental Review, 202-366-8994. For FTA: Joseph 
Ossi, Office of Planning and Environment, 202-366-1613, or Christopher 
VanWyk, Office of Chief Counsel, 202-366-1733. Both agencies are 
located at 1200 New Jersey Avenue, SE., Washington, DC 20590. Office 
hours are from 7:45 a.m. to 4:15 p.m., e.t., for FHWA, and 9 a.m. to 
5:30 p.m., e.t., for FTA, Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This document, the notice of proposed rulemaking (NPRM) of July 27, 
2006, at 71 FR 42611, and all comments received by the U.S. DOT Docket 
Facility may be viewed through the Federal Docket Management System 
(FDMS) at http://www.regulations.gov. The FDMS is available 24 hours 
each day, 365 days each year. Electronic submission and retrieval help 
and guidelines are available under the help section of this Web site.
    An electronic copy of this document may be downloaded 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 
home page at: http://www.archives.gov and the Government Printing 
Office's Web site at: http://www.access.gpo.gov/nara.

Statutory Authority

    The principal statutory authority for this rulemaking action is 
Section 6009 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 
109-59, Aug. 10, 2005, 118 Stat. 1144).

Background

    Section 4(f) of the Department of Transportation Act of 1966 (Pub. 
L. 89-670, 80 Stat. 931) \1\ prohibits the use of land of significant 
publicly owned public parks, recreation areas, wildlife and waterfowl 
refuges, and land of a historic site for transportation projects unless 
the Administration (as defined in section 774.17 of this part) \2\ 
determines that there is no feasible and prudent avoidance alternative 
and that all possible planning to minimize harm has occurred. Early 
case law strictly interpreted Section 4(f), beginning with the Supreme 
Court's decision in Citizens to Preserve Overton Park v. Volpe, 401 
U.S. 402 (1971) (Overton Park). In Overton Park, the Court articulated 
a very high standard for compliance with Section 4(f), stating that 
Congress intended the protection of parkland to be of paramount 
importance. The Court also made clear that an avoidance alternative 
must be selected unless it would present ``uniquely difficult 
problems'' or require ``costs or community disruption of extraordinary 
magnitude.'' Id. at 411-21, 416.
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    \1\ Section 4(f) of the Department of Transportation Act of 1966 
was technically repealed in 1983 when it was codified without 
substantive change at 49 U.S.C. 303. A provision with the same 
meaning is found at 23 U.S.C. 138 and applies only to FHWA actions. 
This regulation continues to refer to Section 4(f) as such because 
it would create needless confusion to do otherwise; the policies 
Section 4(f) engendered are widely referred to as ``Section 4(f)'' 
matters.
    \2\ Section 774.14 of this final rule defines ``Administration'' 
as ``The FHWA or FTA, whichever is making the approval for the 
transportation program or project at issue. A reference herein to 
the Administration means the State when the State is functioning as 
the FHWA or FTA in carrying out responsibilities delegated or 
assigned to the State in accordance with 23 U.S.C. 325, 326, 327, or 
other applicable law.'' All references to the ``Administration'' in 
the preamble to this final rule are consistent with this definition.
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    Courts around the country have applied the Overton Park decision, 
reaching different conclusions as to how various factors may be 
considered and what weight may be attached to the factors an agency 
uses to determine whether an avoidance alternative is or is not 
feasible and prudent. Some courts have interpreted Overton Park to 
mandate the avoidance of Section 4(f) properties at the expense of 
other important environmental and social resources. Congress amended 
Section 4(f) in 2005 to address the uncertainty surrounding its 
application. Section 6009(b) of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 
(Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144) directed the Secretary 
of Transportation to promulgate regulations clarifying ``the factors to 
be considered and the standards to be applied'' in determining the 
prudence and feasibility of alternatives that avoid the use of Section 
4(f) property by transportation projects. The FHWA and FTA published a 
NPRM on July 27, 2006, at 71 FR 42611. The NPRM requested comments on 
the factors proposed to be considered and standards proposed to be 
applied when determining whether an avoidance alternative is feasible 
and prudent. The NPRM also solicited comments on a new, alternative 
method of compliance created by SAFETEA-LU section 6009(a) for uses 
that result in a de minimis impact to a Section 4(f) property and on 
other proposed changes to the Section 4(f) regulation. The comment 
period remained open until September 25, 2006. All comments, including 
several comments submitted late, have been fully considered in this 
final rule.

Profile of Respondents

    The docket received a total of 37 responses to the NPRM. Out of the 
37 responses, 17 were submitted by 20 State and regional transportation 
agencies; 6 responses were submitted by trade associations; 9 responses 
were submitted by 11 national and local

[[Page 13369]]

environmental advocacy groups; 2 responses were from Federal agencies; 
1 response was from a State Historic Preservation Officer; and 2 
responses were from private individuals. The trade associations 
submitting comments were: The American Association of State Highway and 
Transportation Officials, the American Council of Engineering 
Companies, the American Cultural Resources Association, the American 
Highway Users Alliance, the American Public Transportation Association, 
and the American Road and Transportation Builders Association. The 
Federal agencies submitting comments were the United States Department 
of the Interior and the Advisory Council on Historic Preservation. The 
national environmental advocacy organizations submitting comments 
included the National Recreation and Park Association, The Nature 
Conservancy, and the National Trust for Historic Preservation, the 
Rails to Trails Conservancy, the Surface Transportation Policy Project, 
the Natural Resources Defense Council, and Environmental Defense.

Overall Position of Respondents

    The majority of comments received in response to the NPRM were 
generally supportive of the proposed changes. Most comments agreed with 
the decision to clarify the feasible and prudent test in a manner that 
will continue a high level of protection of Section 4(f) properties 
from the impacts of transportation projects. Respondents from all 
across the board, including State Departments of Transportation (SDOTs) 
and the private sector, commented positively on the rule's specificity 
and the flexibility allowed in dealing with various aspects of Section 
4(f). Moreover, there was substantial support for the idea that 
implementation of the proposed regulations would improve transportation 
decisionmaking and expedite environmental reviews, while continuing to 
protect Section 4(f) properties.
    On the other hand, several respondents had a generally negative 
reaction to the proposed regulation. Concerns included that the 
proposed regulations do not track the actual process the Administration 
and applicant would follow in writing a Section 4(f) evaluation; that 
the rule exceeds the requirements of SAFETEA-LU by addressing de 
minimis requirements; that the proposed rule's writing, structure, and 
organization are very confusing and will cause more litigation; and 
that the proposed rule will not streamline environmental analysis or 
adequately protect Section 4(f) properties.

General Comments

    A general comment noted that the regulation often refers simply to 
``refuges'' while the statute refers to ``wildlife and waterfowl 
refuges.'' For consistency, we have replaced ``refuges'' with the 
statutory terminology throughout the final rule.
    Another general comment expressed concern that the final 
decisionmaking responsibility under the proposed rule rests with the 
U.S. DOT. We considered this view but concluded that the statute 
entrusts final decisionmaking responsibility for approving the use of 
Section 4(f) property with the Secretary of Transportation, who has 
delegated that responsibility to the modal Administrations within the 
U.S. DOT.
    Another comment asked if this rule would apply to the Federal 
Aviation Administration (FAA) and the Federal Railroad Administration 
(FRA). The final rule will apply only to the FHWA and FTA. However, 
section 6009 of SAFETEA-LU amended 49 U.S.C. 303, which applies to all 
U.S. DOT agencies including FAA and FRA. The FAA and FRA may choose to 
adopt or use this rule and other FHWA and FTA guidance on Section 4(f).
    Finally, one commenter suggested that ``inside metropolitan areas, 
any 4(f) related activities, analysis, and decisions should be carried 
out in the context of the region-wide environmental mitigation element 
of the metropolitan transportation plan.'' Reference is made to the 
transportation planning regulation (23 CFR part 450) published in 
February 2007. The FHWA and FTA do not agree with this comment. The 
environmental mitigation discussed in the metropolitan plan generally 
would not delve into the site-specific impacts of individual projects 
and the mitigation thereof. That impact assessment will continue to be 
performed at the project level generally as part of the documentation 
prepared under the National Environmental Policy Act (NEPA). The 
discussion in the transportation plan would identify broader 
environmental mitigation needs and opportunities that individual 
transportation projects might later take advantage of. For example, as 
a result of consultation with resource agencies, the plan might 
identify an expanse of degraded wetlands associated with a troubled 
body of water that represents a good candidate for establishing a 
wetlands bank or habitat bank for wildlife and waterfowl. The plan 
might identify locations where the purchase of development rights would 
assist in preserving a historic battlefield or historic farmstead. 
Assessments of each individual project would still be needed to 
determine the appropriateness of devoting project funds to one of the 
mitigation activities identified in the plan, to a mitigation bank 
discussed in the plan, or to new mitigation developed during the NEPA/
Section 4(f) process and not mentioned in the plan. We therefore did 
not make changes in response to this comment.

Section-by-Section Analysis of NPRM Comments and the Administration's 
Response

    For ease of reference, the following table is provided which maps 
the former sections of the rule into the corresponding new sections:

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          Former section in part 771                                 New section in part 774
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None..........................................  774.1 Purpose.
771.135(a)(1).................................  774.3 Section 4(f) approvals.
771.135(i) [in part]..........................  774.5 Coordination.
771.135(a)(2), (i) [in part], (j), (k), and     774.7 Documentation.
 (o).
771.135(b) [in part], (g)(1) [in part], (l),    774.9 Timing.
 (m) [in part] and (n).
771.135(b) [in part], (c), (d), (e), (g)(1)     774.11 Applicability.
 [in part], (m)(4) and (p) (5)(v).
771.135(f), (g)(2), (h), (p)(5) [in part], and  774.13 Exceptions.
 (p)(7).
771.135(p)(3), (p)(4), (p)(5) [in part] and     774.15 Constructive use determinations.
 (p)(6).
771.107(d) and 771.135(p)(1) and (p)(2).......  774.17 Definitions.
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[[Page 13370]]

    In this preamble, all references to provisions of 23 CFR part 774 
refer to the final rule as presented herein. Several provisions 
proposed in the NPRM were moved to new sections in response to comments 
on the NPRM. A reference to an NPRM section will be explicitly labeled 
as such.

Section 771.127 Record of Decision

    One comment objected to the provision for signing a Record of 
Decision ``no sooner than 30 days after publication of the final 
environmental impact statement (EIS) notice in the Federal Register or 
90 days after publication of a notice for the draft EIS, whichever is 
later.'' This sentence was incorporated verbatim from the FHWA and 
FTA's existing regulation implementing the National Environmental 
Policy Act (NEPA), and it is consistent with the NEPA regulations of 
the Council on Environmental Quality (CEQ), 40 CFR 1506.10(b). 
Substantive modifications to the FHWA and FTA joint NEPA regulation are 
outside the scope of this rulemaking. Thus, we have retained the 
language as proposed in the NPRM.

Section 774.1 Purpose

    This section clarifies the purpose of the regulations, which is to 
implement 49 U.S.C. 303 and 23 U.S.C. 138 (Section 4(f)). There were no 
major comments in response to this section. Therefore, we have retained 
the language as proposed in the NPRM.

Section 774.3 Section 4(f) Approvals

    This section sets forth the determination required by the 
Administration prior to approving a project that uses Section 4(f) 
property. Paragraph 774.3(a) is the traditional Section 4(f) approval, 
similar to the previous rule at paragraph 771.135(a)(1). Paragraph 
774.3(b) implements the new provision in section 6009(a) of SAFETEA-LU 
for making de minimis impact determinations in lieu of the traditional 
analysis. Section 774.3 includes cross-references to the definitions 
for ``use,'' ``feasible and prudent avoidance alternative,'' ``de 
minimis impact,'' and ``all possible planning,'' which are located in 
the definitions section, 774.17.
    Paragraph 774.3(c) provides new regulatory direction for how to 
analyze and select an alternative when it has been determined that no 
feasible and prudent avoidance alternatives exist and all viable 
alternatives use some Section 4(f) property. The paragraph provides a 
list of factors that should be considered in the analysis and selection 
of an alternative. The factors were drawn from case law experience and 
the FHWA ``Section 4(f) Policy Paper.'' \3\ It should be noted that the 
weight given each factor would necessarily depend on the facts in each 
particular case, and not every factor would be relevant to every 
decision. Our intent is to provide the tools that will allow wise 
transportation decisions that minimize overall harm in these 
situations, while still providing the special protection afforded by 
Section 4(f) by requiring the other weighed factors to be severe and 
not easily mitigated.
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    \3\ The FHWA ``Section 4(f) Policy Paper,'' issued March 1, 
2005, is available for review online at http://
environment.fhwa.dot.gov/projdev/4fpolicy.htm. A copy was also 
placed in the docket for this rulemaking.
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    Paragraph 774.3(d) provides a clear regulatory basis for 
programmatic Section 4(f) evaluations, and it distinguishes between the 
promulgation of new programmatic Section 4(f) evaluations and the 
application of an existing programmatic Section 4(f) evaluation to a 
particular project. Paragraph 774.3(e) provides cross-references to the 
sections of the regulation governing the coordination, documentation, 
and timing of approvals as a road map for the practitioner.
    Many comments were received in response to this section. The 
majority of comments were generally supportive of the approach proposed 
in the NPRM, although many offered minor re-wording for clarity. Those 
suggestions are discussed below for each paragraph. Several comments 
were strongly opposed to the proposed procedural structure. The NPRM 
proposed different processes for approving uses with de minimis and 
non-de minimis impacts to Section 4(f) property, and the proposed rule 
requires an additional step when approving projects for which all 
alternatives use some Section 4(f) property. A use with more than de 
minimis impacts would be processed with the traditional two-step 
inquiry pursuant to paragraph 774.3(a) (a determination that there is 
no feasible and prudent avoidance alternative, followed by a 
determination that the action includes all possible planning to 
minimize harm to the property). A use with de minimis impacts would be 
processed in a single step pursuant to paragraph 774.3(b) (without the 
need for the development and analysis of avoidance alternatives, and 
with the planning to minimize harm folded into the development of 
measures needed to reduce the impacts of the Section 4(f) use to a de 
minimis level). Projects for which all viable alternatives use some 
Section 4(f) property would be processed in two steps pursuant to 
paragraph 774.3(c) (a determination that there is no feasible and 
prudent avoidance alternative, followed by the selection of an 
alternative by weighing the factors in paragraph 774.3(c) and a 
determination, with documentation, that the action includes all 
possible planning to minimize harm).
    The commenters opposed to the structure proposed in the NPRM 
indicated that the regulation in all situations should first require a 
determination of which alternative minimizes harm to the Section 4(f) 
resource(s), followed by a determination of whether that alternative is 
feasible and prudent and may therefore be selected. Comments stated 
that in Overton Park, the Supreme Court required such a structure for 
Section 4(f) decisionmaking. We disagree. We have re-read Overton Park 
and considered this concern very carefully, but we do not agree that 
Overton Park stands for the process favored by these commenters or that 
the process proposed in the NPRM should be restructured. First, the 
NPRM structure follows the order of the requirements as they appear in 
the statute. Second, the statute does not require a determination of 
which alternative minimizes harm, it requires ``all possible planning'' 
to minimize harm. It is much more efficient to conduct all possible 
planning to minimize harm as the last step for the selected alternative 
than to undertake all possible planning repeatedly for each 
alternative, including those that are not feasible and prudent, and for 
a variety of reasons, cannot be selected. Such a process would be very 
inefficient. Finally, the structure and processes in the final rule are 
consistent with longstanding FHWA and FTA procedures, with the 
exception of the procedures for approving the new concept of de minimis 
impacts. For these reasons, we retained the structure proposed in the 
NPRM.
    Another comment strongly recommended the separation of the 
analysis, coordination, documentation, and timing requirements for de 
minimis impacts and the traditional Section 4(f) evaluation into 
discrete sections of the regulation. We decided not to make this 
proposed change because we do not agree that re-structuring the 
regulation in this manner would make it easier to use. In addition, for 
those who prefer the suggested structure, the existing joint FHWA/FTA 
``Guidance for Determining De Minimis Impacts to Section 4(f) 
Resources,'' December 13, 2005,\4\ already provides a complete

[[Page 13371]]

discussion of the process for determining de minimis impacts, separate 
from any discussion of the requirements for traditional Section 4(f) 
approvals.
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    \4\ http://www.fhwa.dot.gov/hep/guidedeminimus.htm.
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    Another comment requested definitions of numerous phrases used in 
section 774.3; for example, ``relative severity of the harm,'' 
``relative significance,'' and ``the ability to mitigate.'' We did not 
include the requested definitions in the final rule because these words 
are all used with their common English meanings. The provisions of 
section 774.3 will be applied to an extensive variety of fact 
situations, and regulatory definitions would unduly limit the 
applicability of the provisions to the particular fact situations 
anticipated in those definitions.
     Section 774.3--One comment suggested that section 774.3, 
which prohibits the use of Section 4(f) property unless certain 
determinations are made, should simply refer to ``section 4(f) 
property'' instead of ``public park, recreation area, or wildlife and 
waterfowl refuge, or any significant historic site.'' We agree that 
this suggested change improves the readability of the regulation, so we 
substituted the phrase ``Section 4(f) property'' and moved the 
terminology proposed in the NPRM into a new definition of ``Section 
4(f) property'' in section 774.17. The defined term is now used 
throughout the regulation.
     Paragraph 774.3(a)(1)--Another comment asked that we 
confirm ``that an alternative with a net benefit 4(f) use can be chosen 
over an alternative with no Section 4(f) use.'' If avoidance 
alternatives are determined not to be feasible and prudent then the use 
may be approved, whether or not it is a ``net benefit.'' For FHWA 
projects, the ``Nationwide Programmatic Section 4(f) Evaluation and 
Determination for Federal-Aid Transportation Projects That Have a Net 
Benefit to a Section 4(f) Property,'' 70 FR 20618, April 20, 2005, 
would generally apply to situations envisioned by the commenter. This 
programmatic Section 4(f) evaluation remains in effect. In cases where 
application of this programmatic evaluation is appropriate, the 
criteria for evaluating the existence of a feasible and prudent 
avoidance alternative is specified in the Findings section of the 
programmatic evaluation. If, through the application of this 
programmatic Section 4(f) evaluation, the FHWA determines that there 
are no feasible and prudent avoidance alternatives, then the 
alternative with a net benefit to Section 4(f) property can be 
selected. This programmatic Section 4(f) evaluation is applicable only 
to FHWA actions.
     Paragraph 774.3(b)--One comment requested clarification 
whether an analysis of avoidance alternatives must be conducted when 
determining that a de minimis impact occurs to a Section 4(f) property. 
An analysis of avoidance alternatives is not necessary for a de minimis 
impact determination, and the NPRM did not propose to require one. 
Using words taken directly from section 6009(a) of SAFETEA-LU, the NPRM 
would have allowed a Section 4(f) de minimis impact approval when ``the 
use of the property, including any avoidance, minimization, mitigation, 
or enhancement measures committed to by the applicant, will have a de 
minimis impact * * *.'' We agree with the commenter that the term 
``avoidance'' as used in this sentence could cause confusion. The final 
rule was reworded to clarify that the term ``avoidance,'' along with 
other mitigation or enhancement measures, is used in the context of 
project features or designs that minimize harm to the individual 
Section 4(f) property and not meant to imply that the applicant must 
search for alternatives avoiding the Section 4(f) property altogether. 
In this context, the term ``avoidance'' could mean a partial change to 
the alignment to avoid a portion of the Section 4(f) property. The 
sentence now reads ``* * * the use of the property, including any 
measure(s) to minimize harm (such as any avoidance, minimization, 
mitigation, or enhancement measures) committed to by the applicant, 
will have a de minimis impact, as defined in Sec.  774.17, on the 
property.'' The development and evaluation of alternatives that 
completely avoid the use of the Section 4(f) property is not required 
when the Administration intends to make a finding of de minimis impact 
determination. Indeed, to require such an analysis would defeat the 
purpose of the de minimis provision in the statute. However, if the 
Administration's intention of making a de minimis impact finding is not 
realized, then a traditional Section 4(f) evaluation, including the 
development and evaluation of alternatives that completely avoid the 
use of Section 4(f) property, would be necessary.
     Paragraph 774.3(c)--Two comments criticized the choice of 
the word ``may'' referencing the portion of the rule which allows the 
Administration to approve an alternative that ``minimizes overall 
harm'' in light of the enumerated factors. They explain that this 
articulation leaves the FHWA and FTA with too much discretion. We are 
concerned that if the words ``may select'' were replaced with the 
suggested ``shall select'' or ``must select,'' the provision would 
require the agencies to actually fund the project, which is not an 
obligation imposed by Section 4(f). In response to the comments, after 
``may approve'' we added the word ``only.'' This change clarifies our 
intent that the FHWA and FTA may only select the alternative that 
causes the least overall harm.
    When there is no feasible and prudent avoidance alternative, many 
comments suggested various replacements for the phrase ``most prudent'' 
as a criterion for choosing among several project alternatives and 
determining which would cause the least overall harm. After considering 
the range of proposals and their rationales, we have decided to remove 
the words ``most prudent'' from the analysis of overall harm. It 
appears to cause confusion and it detracts from the purpose of this 
portion of the rule, which is to provide clear criteria for choosing a 
course of action when all available alternatives use Section 4(f) 
property. Deleting the modifier ``most prudent'' appropriately shifts 
the focus of the multi-factor inquiry to the requirement of minimizing 
overall harm.
    Several commenters suggested that the proposed weighing of factors 
in determining the alternative with the least overall harm would not 
place a ``thumb on the scale'' in favor of the preservation of the 
Section 4(f) properties, as required by the statute. The FHWA and FTA 
agree that a reminder about the preservation purpose of the statute in 
the balancing of various factors is appropriate. Accordingly, paragraph 
774.3(c)(1) now states that the Administration may approve the 
alternative that causes the least overall harm ``in light of the 
statute's preservation purpose.'' The preservation purpose of Section 
4(f) is described in 49 U.S.C. 303(a), which states: ``It is the policy 
of the United States Government that special effort should be made to 
preserve the natural beauty of the countryside and public park and 
recreation lands, wildlife and waterfowl refuges, and historic sites.'' 
Virtually identical language appears in 23 U.S.C. 138. This addition 
does not change the settled principle that where there is no feasible 
and prudent avoidance alternative, Section 4(f) does not preclude the 
Administration from selecting any alternative from among those with 
substantially equal harm. In such instances, the selection will be 
based primarily on the relative performance of those alternatives with 
respect to factors (v) ``the degree to which each alternative meets the

[[Page 13372]]

purpose and need for the project,'' (vi) ``after reasonable mitigation, 
the magnitude of any adverse impacts to resources not protected by 
Section 4(f),'' and (vii) ``substantial differences in costs among the 
alternatives.''
    Two comments proposed incorporating by reference the NPRM 
definition of ``feasible and prudent alternative'' into paragraph 
774.3(c), explaining that this change would ensure consistency in the 
use of the term, especially in the meaning of ``prudent.'' We decline 
to adopt this proposal because the term ``feasible and prudent 
alternative'' as used in the definitions and paragraph 774.3(a) 
signifies an alternative to the use of Section 4(f) property, whereas 
in paragraph 774.3(c) all alternatives under consideration use some 
Section 4(f) property and use of the term in this context would be 
confusing.
    Several comments proposed substituting the word ``balancing'' for 
the term ``considering,'' as a more precise way to describe the 
analytical process described in the NPRM. We have adopted the 
suggestion to replace the term ``considering'' with the term 
``balancing'' as a better way to articulate the intent of paragraph 
774.3(c). We agree that such an inquiry will necessarily involve a 
balancing of competing and conflicting considerations given that some 
of the factors may weigh in favor of one alternative, yet other factors 
may weigh against it. Mere ``consideration'' of the factors does not 
capture this idea--the factors must be weighed against each other. How 
the various factors listed in paragraph 774.3(c)(1) are balanced and 
weighed in a given instance is within the discretion of FHWA and FTA, 
and is subject to the facts and circumstances of the particular project 
and Section 4(f) properties involved. As previously noted, the FHWA and 
FTA have inserted a reminder that the preservation purpose of the 
statute in the balancing of the various factors must be given its 
proper weight.
    Several comments interpreted the balancing test of paragraph 
774.3(b) as satisfying the statutory requirement to undertake ``all 
possible planning to minimize harm'' to the Section 4(f) property. One 
comment proposed that we add a statement that performing the analysis 
pursuant to paragraph 774.3(c) satisfies FHWA's obligation to undertake 
all possible planning to minimize harm to Section 4(f) properties. 
Other comments suggested that paragraph 774.3(c) should expressly state 
that any alternative selected based on the enumerated factors should 
include all possible planning to minimize harm to Section 4(f) property 
resulting from the use.
    Contrary to the interpretation suggested in some comments, we did 
not intend that engaging in the balancing test alone would fulfill the 
requirement to undertake ``all possible planning to minimize harm'' to 
the Section 4(f) property. The selection of an alternative pursuant to 
paragraph 774.3(c) is not in itself a Section 4(f) approval and does 
not complete the evaluation process. After the alternative is selected, 
the additional step of identifying, adopting, and committing to 
measures that will minimize the harm to the Section 4(f) property must 
be documented before Section 4(f) approval can be granted. The extent 
of effort needed to satisfy the requirement to undertake all possible 
planning to minimize harm is included in the definitions section, 
774.17. When the characteristics of a Section 4(f) property lend 
themselves to mitigation, and with mitigation the alternative that uses 
that property would have a lower net impact, the balancing test would 
weigh these facts and may result in the alternative being selected. We 
addressed the confusion on this topic by dividing the NPRM paragraphs 
774.3(a)(1) and 774.3(b) each into two paragraphs and stating 
separately in each the requirement to undertake all possible planning 
to minimize harm. We also slightly reworded the paragraph for 
additional clarity.
    We received a variety of comments regarding the list of factors in 
paragraph 774.3(c)(1) which the Administration would balance in making 
the decision on which alternative causes the least overall harm. It is 
important to keep in mind the situations in which the factors will 
apply--these factors will only apply after a determination has already 
been made that there is no feasible and prudent alternative to avoid 
the use of Section 4(f) property. The point of the analysis is a 
comprehensive inquiry that balances the net harm to Section 4(f) 
properties caused by each alternative with all other relevant concerns. 
One comment provided examples of how the balancing of factors in 
paragraph 774.3(c) will help transportation agencies arrive at better 
overall decisions.
    We reiterate here the point made above and in the NPRM that this 
balancing must be done with a ``thumb on the scale'' in favor of 
protecting Section 4(f) properties. A scale that takes into account the 
preservation purpose of the statute must be used to compare the net 
harm to Section 4(f) properties (factors in paragraphs 774.3(c)(1)(i)-
(iv)) with other relevant concerns (the remaining factors). One 
commenter asked if this means ``an alternative with somewhat more harm 
to Section 4(f) properties could be selected over one with somewhat 
lesser harm if the one with lesser harm to Section 4(f) properties 
would result in more adverse effects to non-Section 4(f) properties/
higher costs/lesser ability to satisfy needs, or some combination 
thereof?'' The answer is yes, so long as the difference in overall harm 
is substantial. Where the factors favoring the selection of the 
alternative with greater harm to Section 4(f) property do not clearly 
and substantially outweigh the factors favoring the alternative with 
less harm to Section 4(f) property, the alternative with less harm to 
Section 4(f) property must be selected. As the significance of the 
Section 4(f) property or the degree of harm to the Section 4(f) 
property increases, another alternative must entail correspondingly 
greater harm to non-Section 4(f) properties to outweigh the harm to the 
Section 4(f) property and be selected. Because there is necessarily a 
degree of judgment involved in these decisions, the Administration must 
be mindful to carefully document its reasoning.
    With respect to the factors in paragraphs 774.3(c)(1)(ii) and 
(iii), one comment suggested that the determinations of the relative 
severity of the harm and relative significance of the Section 4(f) 
properties should be made solely by the officials with jurisdiction 
over the resource. We did not adopt this suggestion because, in 
practice, competing views are often expressed when multiple Section 
4(f) properties are being evaluated. The park may seem more important 
to the park official than the historic building beside the park, 
whereas the SHPO may feel just the opposite. The Administration, after 
listening to these competing points of view, must ultimately decide. In 
the statute, Congress chose to entrust the Secretary of Transportation 
with the final decision.
    With respect to the factor in paragraph 774.3(c)(1)(i), ``The 
ability to mitigate adverse impacts to each Section 4(f) property 
(including any measures that result in benefits to the property),'' one 
comment suggested that only ``legally binding'' mitigation (i.e., 
mitigation committed to in the ROD) should be considered. We do not 
agree because the purpose of the balancing test is to select an 
alternative, so there is no legally binding mitigation at that point in 
the process. However, we expect that mitigation used to offset harm 
would be a matter of record and the appropriate commitments should be 
included in the project decision.

[[Page 13373]]

Another comment stated that nothing in the regulation requires the 
adoption of any mitigation relied upon in this factor. This is not 
true. The new definition of ``all possible planning'' to minimize harm 
sets forth specific criteria which will govern whether the identified 
mitigation must be adopted. Where the availability of adequate 
mitigation measures is a factor that is relied upon in selecting an 
alternative, the measures that were identified in the analysis must be 
incorporated into the project through the CE determination, ROD or 
FONSI, or by other means. There is additional discussion of this issue 
in the analysis of section 774.17 below.
    Several commenters felt that the only consideration in alternative 
selection should be minimizing harm to the Section 4(f) properties. 
Consequently, in their view, the factors in NPRM subparagraphs 
774.3(b)(5) through (8), which introduce non-Section 4(f)-related 
concerns into the selection process, should be eliminated. We have 
carefully reviewed those comments but decided to keep the first three 
of these factors, now numbered 774.3(c)(1)(v)-(vii) for the reasons 
discussed below. The final factor in the NPRM, concerning joint 
planning, was dropped for other reasons, as discussed below following 
the discussion of the factors retained.
    The factors in 774.3(c)(1)(v)-(vii) were retained in the final rule 
for several reasons. First, the selection of an alternative in 
instances where all viable alternatives use some Section 4(f) property 
must be distinguished from the selection process where there is a 
viable alternative that avoids using Section 4(f) property. While the 
caselaw is not entirely consistent, there is ample support for the FHWA 
and FTA's approach in the courts. The Supreme Court's Overton Park 
decision did not consider this aspect of Section 4(f), as that case 
turned on the FHWA's failure to document any consideration of feasible 
and prudent alternatives to the use of the park. Second, since Section 
4(f) was enacted in 1966, Congress has identified many other types of 
environmental resources for protection under Federal law besides 
Section 4(f) properties; for example, threatened and endangered 
species, prime farmland, and wetlands of national importance. There is 
nothing in SAFETEA-LU to suggest that Section 4(f) protection should 
trump all other concerns when there is no feasible and prudent 
avoidance alternative. The FHWA and FTA's approach interprets Section 
4(f), as amended by SAFETEA-LU, in a way that gives appropriate weight 
to all of the resources impacted by a proposed transportation project. 
Third, 23 U.S.C. 109(h) directs FHWA to make final project decisions 
``in the best overall public interest, taking into account the need for 
fast, safe and efficient transportation, public services, and the costs 
of eliminating such adverse effects and the following: (1) Air, noise, 
and water pollution; (2) destruction or disruption of man-made and 
natural resources, aesthetic values, community cohesion and the 
availability of public facilities and services; (3) adverse employment 
effects, and tax and property value losses; (4) injurious displacement 
of people, businesses and farms; and (5) disruption of desirable 
community and regional growth.'' FTA law similarly requires that ``the 
preservation and enhancement of the environment and the interest of the 
community in which the project is located'' be considered. (49 U.S.C. 
5324(b)(3)(A)(ii)). These statutes support the FHWA and FTA's 
interpretation of Section 4(f) as allowing the consideration of other 
significant impacts when it is not possible to avoid using Section 4(f) 
property. As described in the NPRM preamble, the balancing approach 
adopted in this rule enables the Administration to take all of these 
concerns into account by allowing serious problems to outweigh 
relatively minor Section 4(f) impacts, as well as Section 4(f) impacts 
that can be satisfactorily mitigated.
    One comment pointed out that the list of factors in paragraph 
774.3(c)(1) is inconsistent with the lists in the proposed definitions 
of ``all possible planning'' and ``feasible and prudent alternative'' 
in 774.17, which includes some similar and some additional factors. 
This disparity, in the commenter's opinion, confused the application of 
the factors in the overall Section 4(f) analysis. This comment proposed 
that we combine the multi-factor lists. We considered this comment, but 
decided not to adopt it. The three lists of factors included in the 
NPRM apply to three distinct situations. The factors enumerated in the 
proposed definition of ``feasible and prudent alternative'' are used to 
determine whether an alternative that avoids using Section 4(f) 
property exists. If the analysis concludes that no such avoidance 
alternative exists, then a different set of factors, those in paragraph 
774.3(c), comes into play to guide the Administration in selecting from 
among the alternatives all of which use some Section 4(f) property. 
Once an alternative is chosen, if it uses Section 4(f) property, then 
the Administration has a further obligation to undertake all possible 
planning to minimize harm to that property. The third set of factors in 
the definition of this term is used to determine the appropriate extent 
of the planning to minimize harm.
    With respect to the factor in paragraph 774.3(c)(1)(vii), 
``[e]xtraordinary differences in costs among the alternatives,'' some 
comments suggested that the word ``extraordinary'' should be deleted, 
thus allowing any difference in costs to be considered and balanced 
with all other factors in determining which of the alternatives 
minimizes overall harm. Since this factor is a comparison of the costs 
of alternatives under consideration, all of which use Section 4(f) 
property, the FHWA and FTA agree that the difference in cost would not 
have to be ``extraordinary,'' but that the magnitude of the difference 
would determine its appropriate weight when balancing it with the other 
factors. Consideration of a minor difference in the cost among 
alternatives in the balancing test would be inappropriate in that there 
must be a measurable and significant degree of difference. For this 
reason we are substituting the word ``substantial'' in place of the 
word ``extraordinary'' in this factor. Requiring a substantial cost 
difference between alternatives emphasizes the importance of devoting 
funds to minimizing harm to the Section 4(f) property and other 
important resources more so than if any difference in cost were allowed 
to influence the choice of alternatives. When deciding whether to 
consider a cost difference ``substantial,'' in addition to considering 
the cost as a number in isolation, the FHWA and FTA may consider 
factors such as the percentage difference in the cost of the 
alternatives; how the cost difference relates to the total cost of 
similar transportation projects in the applicant's annual budget; and 
the extent to which the increased cost for the subject project would 
adversely impact the applicant's ability to fund other transportation 
projects.
    Several comments expressed confusion regarding the factor in NPRM 
paragraph 773.4(b)(8), ``[A]ny history of concurrent planning or 
development of the proposed transportation project and the Section 4(f) 
property.'' Some commenters were concerned about how this factor was 
related to, and would apply in, the balancing of factors and the 
ultimate determination of overall harm. Others suggested that the scope 
of concurrent planning in this context was unclear and others thought 
the term should be defined in section 774.17. In response to these 
comments, we have decided to eliminate concurrent

[[Page 13374]]

planning as a factor in determining overall harm. Concurrent planning, 
in which the ``concurrent or joint planning or development of the 
transportation facility and the Section 4(f) resource occurs,'' more 
appropriately relates to the applicability of Section 4(f) requirements 
to a specific property. Concurrent planning in this context is 
addressed in paragraph 774.11(i).
    Another comment pointed out the lack of reference to the no-action 
alternative in this paragraph, and asked whether that means it need not 
be discussed in the evaluation. The no-action alternative should always 
be considered in a Section 4(f) evaluation and the reasons for not 
selecting it must be identified.
     Paragraph 774.3(d)--Several comments on the NPRM indicated 
that programmatic Section 4(f) evaluations are misunderstood by some. 
In response, we have clarified what is meant by a programmatic Section 
4(f) evaluation in paragraph 774.3(d), and have specified the process 
for the development of a programmatic evaluation as well as the 
application of an existing programmatic evaluation. The paragraph makes 
clear that a programmatic Section 4(f) evaluation does not 
automatically satisfy Section 4(f) for an entire class of projects--
rather it establishes a simpler approach to compliance that is tailored 
to that class of projects. They are not exemptions and individual 
projects must still be reviewed in accordance with the process 
established in the programmatic Section 4(f) evaluation.
     Paragraph 774.3(e)--No substantive comments were received 
on this subsection. We have retained the language as proposed in the 
NPRM.

Section 774.5 Coordination

    One general comment recommended the separation of the analysis, 
coordination, format, and timing requirements for de minimis impacts 
into discrete sections of the regulation. We decided not to make this 
proposed change because we believe that grouping all of the 
requirements for coordination, all of the requirements for timing, and 
all of the requirements for documentation together is a reasonable 
structure for the regulation and is more consistent with the familiar, 
former regulation. For practitioners who need more guidance on the de 
minimis impact requirements, the joint FHWA/FTA ``Guidance for 
Determining De Minimis Impacts,'' December 13, 2005, discusses all of 
the de minimis impact requirements together in one document.
    Another general comment suggested that this section should be 
revised to explain the coordination of reviews performed under NEPA, 
Section 4(f), and Section 106 of the National Historic Preservation 
Act. We did not adopt this suggestion because it is already stated in 
23 CFR 771.105(a), which explains that it is the policy of the FHWA and 
FTA that ``[t]o the fullest extent possible, all environmental 
investigations, reviews, and consultations be coordinated as a single 
process, and compliance with all applicable environmental requirements 
be reflected in the environmental document required by this 
regulation.'' A similar statement with regard to the content of 
environmental documents is found at 23 CFR 771.133.
    We received a general comment that clear guidance is needed on the 
coordination process for Section 4(f) uses with impacts greater than de 
minimis, to ensure that the officials with jurisdiction are fully 
engaged in the development of avoidance alternatives and the 
determination of appropriate measures to minimize harm. We agree that 
coordination with the officials with jurisdiction is important and 
integral to Section 4(f) compliance, and note that the regulation 
already includes explicit coordination requirements in paragraph 
774.5(a). Additional guidance is included in the FHWA ``Section 4(f) 
Policy Paper,'' March 2, 2005, so we did not make any changes in 
response to this comment.
    One general comment requested that we clarify in the preamble to 
this regulation that the existing Section 4(f) de minimis impact 
guidance, issued on December 13, 2005, remains in effect and is not 
superseded by these regulations. We agree that the inclusion of 
requirements for de minimis impacts in these regulations was not 
intended to supersede or replace the existing guidance, but to ensure 
that the current Section 4(f) regulation is consistent with the Section 
4(f) statute, as amended by SAFETEA-LU. The joint FHWA/FTA ``Guidance 
for Determining De Minimis Impacts to Section 4(f) Resources,'' 
December 13, 2005, remains in effect, but the Administration may review 
it and make clarifying revisions some time in the future. The FHWA 
``Section 4(f) Policy Paper,'' March 2, 2005, which was written prior 
to enactment of the SAFETEA-LU amendment to the Section 4(f) statute, 
remains in effect except where it could be interpreted to conflict with 
this regulation, in which case the regulation takes precedence. The 
FHWA plans to update the ``Section 4(f) Policy Paper'' to reflect 
SAFETEA-LU and this final rule.
    One comment requested that the regulation address the additional 
coordination that is needed when the impacted Section 4(f) property was 
created or was improved with funds from various programs administered 
by the U.S. Department of the Interior. Guidance for such coordination 
is already addressed in the FHWA ``Section 4(f) Policy Paper'' and in 
the ``Guidance for Determining De Minimis Impacts to Section 4(f) 
Resources.'' However, because we agree that this coordination is 
important, we addressed the comment by adding a new paragraph (d) to 
section 774.5: ``When Federal encumbrances on Section 4(f) property are 
identified, coordination with the appropriate Federal agency is 
required to ascertain the agency's position on the proposed impact, as 
well as to determine if any other Federal requirements may apply to 
converting the Section 4(f) land to a different function. Any such 
requirements must be satisfied, independent of the Section 4(f) 
approval.''
     Paragraph 774.5(a)--A number of comments focused on the 
length of the notice and comment period. The NPRM proposed to continue 
the current 45-day comment period. The comments urged a period ranging 
from as short as 15 days, up to a maximum of 60 days. Specifically, one 
comment urged a maximum of 60 days with presumed concurrence if no 
comment was received within 15 days after the deadline. One comment 
urged a period of 60 days, but suggested that comments be open to the 
public and other Federal agencies, and not just to those with 
jurisdiction over the Section 4(f) property. One comment urged a period 
of at least 45 days, not to exceed 60 days.
    Several commenters reasoned that a period with a maximum of 60 days 
would be harmonious with the streamlining provisions of section 6002 of 
SAFETEA-LU and the comment period provided by Section 106 of the 
National Historic Preservation Act for consultation with State Historic 
Preservation Officers and the Advisory Council on Historic 
Preservation. Those urging a provision for presuming concurrence if the 
comments are not received by various deadlines stated that such a 
provision is needed because, in the experience of many applicants, 
comments are routinely submitted many months late. Another commenter 
thought the requirement for the U.S. Department of the Interior (DOI) 
to review Section 4(f) evaluations added minimal value to the process 
and suggested that DOI's role should be eliminated altogether.
    After considering all of the views submitted, we decided to keep 
the 45-day comment period in the final rule.

[[Page 13375]]

This period appears to be a reasonable length of time, in light of the 
current practice with which all are familiar. We did not eliminate the 
requirement for a comment period because the statute itself requires 
coordination with certain agencies, including DOI. However, we decided 
to adopt a deadline for the receipt of comments by adding the following 
at the end of paragraph 774.5(a): ``If comments are not received within 
15 days after the comment deadline, the Administration may assume a 
lack of objection and proceed with the action.'' This change addresses 
the concern that comments are routinely sent late, but it allows 
flexibility for the Administration to extend the comment period in 
individual cases upon request.
     Paragraph 774.5(b)--Several comments requested additional 
requirements for public notice, review, and comment related to de 
minimis impacts to historic properties. In response, the FHWA and FTA 
decided to accept the wording suggested by one of the commenters. 
Paragraph 774.5(b)(1)(iii) now says: ``Public notice and comment, 
beyond that required by 36 CFR Part 800, is not required.'' The 
regulation is consistent with the provisions of SAFETEA-LU that allow 
the de minimis impact determination to be made based on the process 
required under section 106 of the National Historic Preservation Act.
    Other comments requested additional guidance on public notice, 
review, and comment related to de minimis impacts to parks, recreation 
areas, and wildlife/waterfowl refuges. One commenter believes that 
public notice, review, and comment are adequately covered by NEPA and 
its implementing regulations, and any additional opportunities are 
unnecessary. We decided to retain the proposed regulatory text on 
public notice and comment, but to add: ``This requirement can be 
satisfied in conjunction with other public involvement procedures, such 
as a comment period provided on a NEPA document.'' SAFETEA-LU requires 
public notice and the opportunity for public review and comment before 
the Administration can make a de minimis impact determination. Where 
the NEPA process already provides opportunities for public notice, 
review, and comment [i.e., for environmental assessments (EAs) and 
EISs], the same opportunities can be used for projects where the 
Administration is considering a de minimis impact determination. For 
those actions that do not routinely require public review and comment 
under NEPA [e.g., categorical exclusions (CEs) and certain 
reevaluations] a separate public notice and opportunity for review and 
comment will be necessary for a de minimis impact determination. In 
these situations, the public notice and opportunity for review and 
comment should be based on the specifics of the situation and 
commensurate with the type and location of the Section 4(f) property, 
impacts, and public interest.
     Paragraph 774.5(b)(1)--Several comments suggested that the 
concurrence of the State Historic Preservation Officer (SHPO) or Tribal 
Historic Preservation Officer (THPO) in a proposed de minimis impact 
determination should be assumed if 30 days pass without written 
concurrence. We did not adopt this change because the statute 
explicitly requires written concurrence in the Section 106 
determination to support a de minimis impact determination. The joint 
FHWA/FTA ``Guidance for Determining De Minimis Impacts to Section 4(f) 
Resources,'' December 13, 2005, explains the use of Section 106 
programmatic agreements (PA) in making de minimis impact 
determinations. It says that when a Section 106 PA explicitly states 
that an individual Section 106 determination of ``no historic property 
affected'' or ``no adverse effect,'' is made in accordance with the PA, 
it may be relied upon as the basis for de minimis impact determination. 
If the PA specifies that the SHPO or THPO's concurrence in such a 
determination may be assumed after a specified timeframe, then the SHPO 
or THPO's signature on the PA itself constitutes the required written 
concurrence in the Section 106 determination that is necessary for a de 
minimis impact determination. With such a PA, a SHPO or THPO is within 
its rights asking for a side agreement that would specify conditions 
under which a nonresponse would not be used as the basis for a de 
minimis impact determination. In any case it is expected that the SHPO 
or THPO will be apprised of the agency's intention to make a de minimis 
determination under the PA approach and afforded an opportunity to 
engage in the process on a project-by-project basis, if desirable by 
either party.
    Several comments stated that paragraph 774.5(b)(1) should spell out 
the written concurrences necessary to support a de minimis impact 
determination for a historic property in order to clarify which 
concurrences are required. We agree, and the final rule explicitly 
states which parties must concur, consistent with 49 U.S.C. 
303(d)(2)(B) and 23 U.S.C. 138(b)(2)(B).
    A number of comments objected to the statement in paragraph 
774.5(b)(1) that public notice and comment other than the Section 106 
consultation is not required. These commenters pointed out that the 
Section 106 regulation (36 CFR part 800) has its own public involvement 
requirements, which may apply in a particular case. One commenter 
suggested alternative language to recognize that pertinent requirements 
of the Section 106 regulation must be met. We adopted the suggested 
language, and the sentence now says that ``public notice and comment, 
beyond that required by 36 CFR part 800, is not required.''
     Paragraph 774.5(b)(2)--Several commenters requested 
clarification of the sequence of events for coordinating with the 
official(s) with jurisdiction over parks, recreation areas, and refuges 
prior to making de minimis impact determinations. These commenters 
proposed revising the regulation to enable the Administration to notify 
the official(s) with jurisdiction of its intent to make a de minimis 
impact determination at any time during the coordination process, 
instead of postponing notification until the conclusion of the public 
review and comment period. The FHWA and FTA decided to adopt this 
proposed change by moving the clause ``following an opportunity for 
public review and comment'' from the beginning of the second sentence 
and inserting it directly before the concurrence requirement: 
``Following an opportunity for public review and comment as described 
in paragraph (b)(2)(i) of this section, the official(s) with 
jurisdiction over the property must concur in writing * * *. '' The 
regulation would still require the Administration to wait until after 
the public comment process before making a formal request for 
concurrence, but no specific timeframe is provided for notifying the 
officials with jurisdiction. The revised paragraph will begin with 
``The Administration shall inform the official(s) with jurisdiction of 
its intent * * *. '' The FHWA and FTA reasoned that it would be 
beneficial to have the flexibility to notify the official(s) with 
jurisdiction early in the coordination process to ascertain the 
position of the officials and so that the preliminary views of such 
official(s), if available, can be included in the notice provided to 
the public.
    One commenter suggested eliminating the provision that requires the 
Administration to inform the official(s) with jurisdiction of the 
intent to make a de minimis impact determination based on those 
officials' concurrence that the project will not adversely affect the 
Section 4(f) property. The FHWA and FTA decided not to make this

[[Page 13376]]

change. The sequence of events leading to the Administration's finding 
is important and will ensure that the official(s) with jurisdiction 
understand that their written concurrence is required for the 
Administration's de minimis impact determination and that they agree 
with any proposed mitigation necessary to the de minimis impact 
determination.
    One commenter suggested that the FHWA and FTA add a further 
provision to the coordination process in paragraph 774.5(b)(2) that 
would expressly allow the concurrence in the de minimis impact 
determination to be combined with other comments provided by the 
official(s) on the project. The FHWA and FTA decided to follow this 
recommendation and incorporated the proposed language: ``This 
concurrence may be combined with other comments on the project provided 
by the official(s).'' Another comment asked for clarification whether 
the coordination can be accomplished in conjunction with other public 
involvement procedures, such as a comment period provided on a NEPA 
document. The FHWA and FTA's NEPA regulation provides for integrated 
procedures in 23 CFR 771.105 and 771.133, so this point was clarified 
as suggested. With the clarifications described above, the new 
provision will help streamline the environmental review process because 
it will allow the official(s) with jurisdiction to combine comments on 
the de minimis impact proposal with comments submitted on other 
environmental issues related to the project.
     Paragraph 774.5(c)--One commenter believed that the 
coordination requirements discussed in section 774.5 did not 
differentiate between individual and programmatic Section 4(f) 
evaluations and requested clarification. Programmatic evaluations are 
differentiated by virtue of being addressed in a separate paragraph, 
774.5(c). We have now clarified what is meant by a programmatic 
evaluation in paragraph 774.3(d), as previously discussed.
    Another comment suggested a 60-day comment period be required when 
there is a use of land from a Section 4(f) property that is covered by 
a programmatic Section 4(f) evaluation. The comment also suggested that 
the coordination during the use of a programmatic Section 4(f) 
evaluation should ``be open to the public and not just the official(s) 
with jurisdiction.'' Programmatic Section 4(f) evaluations provide 
procedural options for demonstrating compliance with the statutory 
requirements of Section 4(f). The FHWA has issued five nationwide 
programmatic Section 4(f) evaluations. (FTA has not issued any, but has 
plans to do so.) Before being adopted, all of the FHWA programmatic 
evaluations were published in draft form in the Federal Register for 
public review and comment. They were also provided to appropriate 
Federal agencies for review. Each programmatic evaluation contains 
specific criteria, consultation requirements, and findings that must be 
met before the programmatic evaluation may be applied on any given 
project. A primary benefit to using this prescribed step-by-step 
approach is a reduction of the time it takes to achieve Section 4(f) 
approval.
    The NPRM did not stipulate any specific comment period or 
coordination process when programmatic Section 4(f) evaluations are 
used. When applied to individual projects each of the five approved 
programmatic evaluations has coordination requirements, but none of 
them requires a specific comment period.\5\ We did not make the changes 
proposed by the commenter because we believe the imposition of 
additional comment periods, coordination periods, or public involvement 
at the time a programmatic evaluation is applied to an individual 
project would severely limit the effectiveness of this approach.
---------------------------------------------------------------------------

    \5\ Three of the programmatic Section 4(f) evaluations have 
public involvement requirements. The ``Final Nationwide Programmatic 
Section 4(f) Evaluation and Determination for Federal-Aid 
Transportation Projects That Have a Net Benefit to a Section 4(f) 
Property'' requires project-level public involvement activities 
consistent with 23 CFR 771.111. The ``Final Nationwide Section 4(f) 
Evaluation and Approval for Federally-Aided Highway Projects with 
Minor Involvements with Historic Sites'' and the final 
``Programmatic Section 4(f) Evaluation and Approval for FHWA 
Projects that Necessitate the Use of Historic Bridges'' both require 
coordination with various parties in accordance with 36 CFR part 
800, which may include members of the public identified as 
interested persons, or consulting parties.
---------------------------------------------------------------------------

    One commenter expressed concern about the potential lack of public 
notice or opportunity to comment on the evaluation of certain historic 
resources, such as bridges, under the relevant programmatic Section 
4(f) evaluation, when the project is processed with a NEPA categorical 
exclusion (CE). It was suggested that, at a minimum, a CE project 
processed under a programmatic Section 4(f) evaluation should be posted 
on the applicant's Web site. The public involvement requirements 
related to categorical exclusions, as well as other classes of actions, 
are addressed in 23 CFR 771.111. The public involvement requirements 
for application of a particular programmatic Section 4(f) evaluation 
are specified in the programmatic evaluation itself. Hence, the FHWA 
and FTA concluded that the issue has been adequately addressed and 
additional requirements are not necessary.

Section 774.7 Documentation

    This section contains the requirements related to the documentation 
of the various Section 4(f) analyses and approvals. In the NPRM this 
section was titled ``Format.'' The title was changed to 
``Documentation'' to more accurately reflect the content of this 
section.
    In response to a general comment that it was difficult to locate 
the requirements for de minimis impact determinations, the section was 
re-ordered so that it now tracks the order of section 774.3, ``Section 
4(f) approvals.'' Thus, paragraph 774.7(a) now addresses the 
documentation of Section 4(f) evaluations prepared to comply with 
approvals under 774.3(a); paragraph 774.7(b) contains the format 
requirements for de minimis impact determinations under paragraph 
774.3(b); and paragraph 774.7(c) contains the requirements for 
determinations of the least overall harm under paragraph 774.3(c) when 
there is no feasible and prudent avoidance alternative. Paragraphs (d)-
(f) are additional documentation requirements for particular situations 
that have no corresponding paragraphs within section 774.3.
    Several comments demonstrated confusion over NPRM paragraph 
774.7(g) which contained the documentation requirements for 
programmatic Section 4(f) evaluations. This material was moved to 
paragraph 774.3(d) in the final rule so that the discussion of 
approvals using programmatic Section 4(f) evaluations and the 
documentation requirements are now grouped together. We felt this 
restructuring was needed to clarify the difference between promulgating 
a programmatic Section 4(f) evaluation and the subsequent application 
of the programmatic evaluation to an individual project decision.
    Paragraph 774.7(e) in both the NPRM and this final rule contains 
the requirements for making Section 4(f) approvals for tiered 
environmental documents. This paragraph received the most comments of 
any part of section 774.7; substantial parts of the paragraph were re-
worded for clarity in response to the comments, as described below.
     Paragraph 774.7(a)--One comment suggested that the last 
part of the sentence be revised to repeat the exact language from the 
statute. This section, though, does not set forth the standard

[[Page 13377]]

for Section 4(f) approvals, but rather provides the format of the 
documentation for Section 4(f) approvals. Thus, the language need not 
exactly duplicate the statutory standard for approvals, which is 
implemented by section 774.3. We believe that the language used is 
consistent with the statute but provides direction for project 
applicants preparing Section 4(f) documents.
    Another comment suggested adding the language ``or reduce its use 
significantly'' after ``that would avoid using the Section 4(f) 
property.'' We did not adopt this change because the language at the 
end of the paragraph requires a summary of ``the results of all 
possible planning to minimize harm to the Section 4(f) property.'' The 
documentation of ``all possible planning to minimize harm'' would show, 
among other things, how any reductions in the use of Section 4(f) 
property would be accomplished. In addition, the Section 4(f) caselaw 
is fairly uniform in holding that an alternative that uses Section 4(f) 
property is not properly considered an ``avoidance alternative'' under 
the statute. Incidentally, the words ``that would avoid using the 
Section 4(f) property'' which delimited ``avoidance alternative'' in 
the NPRM, have now been deleted as redundant.
     Paragraph 774.7(b)--Regarding paragraph 774.7(b), one 
commenter requested clarification that the mitigation measures 
suggested in the proposed regulation should be considered only if an 
applicant has committed to incorporate the measures into the project. 
The commenter suggested changing the provision to refer to ``any 
avoidance, minimization, mitigation, or enhancement measures committed 
to by the applicant.'' The FHWA and FTA decided not to make this 
proposed change because the statute requires any measures that are 
required to be implemented as a condition of approval of a de minimis 
impact determination to be part of the project. An applicant does not 
have a choice regarding whether to incorporate the measures into a 
project if the measures were mentioned when the impacts were classified 
as de minimis. Accordingly, the FHWA and FTA determined that the 
suggested language would be redundant since, as the regulation 
currently states, the applicant will automatically be required to 
incorporate these measures.
    Another commenter suggested that the determination whether the 
project impacts are de minimis for Section 4(f) purposes should be made 
before mitigation is applied, not after. This commenter claimed that 
this regulation would allow an applicant to illegally characterize the 
impacts of a project that are greater than de minimis impacts as de 
minimis to avoid having the project analyzed, assessed, and evaluated. 
The FHWA and FTA did not accept this proposal because it violates the 
governing statute. As amended by section 6009(a) of SAFETEA-LU, Section 
4(f) plainly requires that ``[t]he Secretary shall consider to be part 
of a transportation program or project any avoidance, minimization, 
mitigation, or enhancement measures that are required to be implemented 
as a condition of approval of the transportation program or project.'' 
49 U.S.C. 303(d)(1)(C). Mitigation measures must be applied up front, 
with the determination made after taking such mitigation into account. 
The proposed language has been retained.
    For consistency with paragraph 774.3(b) and the statute, the word 
``determination'' was substituted for ``finding'' in this paragraph.
     Paragraph 774.7(c)--One commenter pointed out that framing 
the regulatory provision in terms of what an ``applicant'' must do is 
misleading as it implies that, contrary to statute, the applicant has a 
decision-making role in the Section 4(f) approval process. This 
commenter proposed rewriting paragraph (c) to reflect the decision-
making role of the Administration in the Section 4(f) approval process: 
``the Administration, in consultation with the applicant, must select. 
. . .'' Section 4(f) assigns the responsibility for evaluating and 
approving transportation projects to the Secretary of Transportation 
(who, in turn, has delegated it to the modal administrations within the 
U.S. DOT). The FHWA and FTA agree with the comment that the 
Administration, and not the applicant, has the statutory authority to 
approve an alternative under Section 4(f), but declines to adopt the 
commenter's proposed text. Instead, the FHWA and FTA have decided to 
convey the same idea by using language consistent with paragraph 
774.3(c), to which the requirements in paragraph 774.7(c) pertain. The 
relevant portion of the provision now reads as follows: ``the 
Administration may approve only the alternative that causes the least 
overall harm in accordance with Sec.  774.3(c).'' This language relies 
heavily on the revised text of paragraph 774.3(c) and appropriately 
reserves the decision-making role to the Administration.
    In a slight variation on the comment discussed above, one commenter 
objected to the use of the word ``applicant'' because it fails to 
recognize the role of most applicants and the Administration as joint 
lead agencies in preparing the NEPA review of the project, in 
accordance with SAFETEA-LU section 6002. The commenter suggested 
changing the provision to read ``the applicant, with approval from the 
NEPA Lead Agency, must select. * * *'' The FHWA and FTA did not follow 
this recommendation because, whereas the responsibility for document 
preparation, review, and approval under NEPA is now shared between the 
Administration and the recipient of Federal funds, the Administration 
has the exclusive statutory authority to grant Section 4(f) approvals. 
An applicant's role under NEPA does not authorize it to make Section 
4(f) approvals unless the applicant is a State that has assumed Section 
4(f) responsibilities as part of an assumption of environmental 
responsibility under applicable law, such as 23 U.S.C. 325, 326, or 
327.
     Paragraph 774.7(d)--This paragraph requires a legal 
sufficiency review for certain Section 4(f) approvals. One commenter 
questioned its need. The Administration has legal responsibility to 
ensure compliance with applicable environmental laws, regulations, and 
Executive Orders. Section 4(f) has been extensively interpreted by the 
Courts, and the application of the law to a specific approval may 
involve the application of complex legal principles. The 
Administration's application of Section 4(f) benefits from the legal 
sufficiency review. Moreover, Administration attorneys familiar with 
the judicial interpretations of Section 4(f) law in the Federal Circuit 
where the project is located perform the legal sufficiency review. 
Thus, the legal sufficiency review enhances the likelihood that the 
Administration's Section 4(f) decisions will be appropriate and will be 
sustained in Federal court if litigation ensues. Finally, the legal 
sufficiency review is required by a Department-wide order implementing 
Section 4(f). See DOT Order 5610.1C. The requirement for a legal 
sufficiency review is retained.
    Paragraph 774.7(d) says: ``The Administration shall review all 
Section 4(f) approvals under Sec. Sec.  774.3(a) and 774.3(c) for legal 
sufficiency.'' A commenter suggested that the meaning of ``legal 
sufficiency'' in the context of a Section 4(f) approval be defined. We 
decline to define ``legal sufficiency'' as there are too many variable 
factors considered in a legal sufficiency review. These include, but 
are not limited to, the type of Section 4(f) approval under 
consideration, the law of the Federal Circuit where the project is 
located, and, most importantly, the facts and circumstances of the 
particular project. Legal sufficiency reviews assess the Section 4(f) 
documentation from the

[[Page 13378]]

perspective of legal standards, as well as technical adequacy. Because 
of the inherent differences among document writers and reviewers, the 
projects, court decisions in the relevant circuit, and other factors, 
the comments on legal sufficiency for one project may differ in content 
and format from those for another project with similar issues. This 
variability makes defining a standard for the review of legal 
sufficiency impractical.
     Paragraph 774.7(e)--Numerous comments were received about 
this section, which concerns Section 4(f) approvals of projects 
developed using tiered environmental impact statements. Most commenters 
thought it was helpful to clarify the different levels of detail 
necessary at the different stages, although several negatively 
commented on the proposal to consider the preliminary first-tier 
Section 4(f) approval final. Nearly all commenters were confused by 
some aspect of what the FHWA and FTA intended by authorizing a 
``preliminary'' Section 4(f) approval to be made at the conclusion of 
the first tier stage and a final Section 4(f) approval at the 
conclusion of the second-tier stage. One commenter thought we intended 
to ``immunize'' the first-tier Section 4(f) approval from 
reconsideration, even in the event it should subsequently be determined 
no longer valid during the second tier review. This was not our intent. 
A variety of revisions were suggested to clarify the intent of this 
section. All of these suggestions were considered in revising the 
provision to clarify what is required.
    The intent behind this section is that the relationship between the 
preliminary and final Section 4(f) approval should be analogous to the 
relationship between a first-tier EIS and a second-tier NEPA document. 
In the same manner that a second-tier NEPA document can rely on the 
conclusions of the first-tier EIS (thereby avoiding duplication), the 
final Section 4(f) approval may rely upon the conclusions reached in 
the preliminary Section 4(f) approval. However, both the second-tier 
NEPA document and the final Section 4(f) approval must still take into 
account any significant new information or relevant details that become 
known during the second-level review.
    If the second-tier NEPA document identifies a new or additional use 
of Section 4(f) property with greater than de minimis impacts, then 
additional consideration of feasible and prudent avoidance alternatives 
and of potential measures to minimize harm to Section 4(f) property 
will be necessary. If the second-tier NEPA document does not identify 
any new or greater than expected use of Section 4(f) property, or if 
there is a new or additional use of Section 4(f) property but its 
impacts are determined to be de minimis under paragraph 774.3(b) of 
this regulation, then the final Section 4(f) approval shall document 
the determination that the new or additional use is de minimis and may 
incorporate by reference the documentation developed for the first-tier 
preliminary approval since the first-tier information remains valid. In 
this situation, the applicant must consider whether all possible 
planning to minimize harm (which is defined in section 774.17) has 
occurred. Additional planning to minimize harm to a Section 4(f) 
property will often be needed during the second-tier study and can be 
undertaken without reopening the first-tier decision. Re-evaluation of 
the preliminary Section 4(f) approval is only needed to the extent that 
new or more detailed information available at the second-tier stage 
raises new Section 4(f) concerns not already considered. The final 
regulation clarifies the requirements for tiered Section 4(f) 
approvals, consistent with the above discussion.
     Paragraph 774.7(f)--One comment suggested that paragraph 
774.7(f) be revised to clarify that including a required Section 4(f) 
evaluation in the NEPA document is normal practice but is not 
mandatory. Another comment suggested that such inclusion in the NEPA 
document should be mandatory. We re-worded this paragraph to clarify 
our intent, but we do not agree that including the Section 4(f) 
evaluation in the NEPA document should be mandatory. There are many 
instances where the timing is off due to late discoveries or other 
circumstances beyond the control of the applicant. In such cases, 
processing a stand-alone Section 4(f) evaluation is permissible. Thus, 
applicants should endeavor to include any required Section 4(f) 
evaluation within the relevant NEPA document, to the extent possible.
    Another comment suggested that paragraph 774.7(b) should explicitly 
state that the Section 4(f) evaluation may be included in an appendix 
to the NEPA document, with a summary of the evaluation in the main body 
of the document. FHWA will allow the Section 4(f) evaluation to be 
included in an appendix to the NEPA document, so long as the appendices 
accompany the NEPA document and the distribution and commenting 
requirements of Section 4(f) will be met. The FHWA and FTA decline to 
include this provision in the final rule as we believe that guidance, 
not regulation, is the appropriate method for addressing the issue. The 
FHWA and FTA will address it in a future update of the Section 4(f) 
Policy Paper or the Technical Advisory on preparing and processing 
environmental documents.

Section 774.9 Timing

    This section addresses the timing of Section 4(f) approvals within 
the NEPA process, and after project approval or during construction, 
where necessary. There were no generally applicable comments on this 
section. Comments on specific paragraphs are discussed in turn below.
     Paragraph 774.9(a)--One comment asked for clarification 
that the analysis of possible Section 4(f) uses during project 
development is really only an evaluation of ``potential'' uses (i.e., a 
proposed project does not actually use Section 4(f) property at the 
time of project development). We agree, and have clarified this point 
by changing the beginning of the first sentence from ``Any use of 
lands'' to ``The potential use of lands.'' The same comment also 
suggested changing ``shall be evaluated early in the development'' 
within the same sentence to ``shall be evaluated as early as 
practicable in the development,'' because potential uses of Section 
4(f) property can only be evaluated after a certain minimum level of 
information about the proposed action and alternatives has been 
developed. We agree, and we have adopted these proposed edits in this 
final rule.
     Paragraph 774.9(b)--One comment sought clarification that 
Section 4(f) approval can be made ``in a separate Section 4(f) 
evaluation'' in certain circumstances. We agree, and accordingly added 
at the beginning of this paragraph ``Except as provided in paragraph 
(c), for * * *.'' Paragraph 774.9(c) covers the circumstances where a 
separate Section 4(f) approval is appropriate.
    Another comment sought clarification that an EIS, EA, or CE must 
always include the actual Section 4(f) approval. Section 4(f) approvals 
are incorporated and coordinated with the NEPA process, and to the 
extent practicable, the NEPA document should include all documentation 
and analysis supporting the Section 4(f) approval. However, the actual 
approval may be made in the subsequent decision document in order to 
consider public and interagency comment submitted in response to the 
NEPA document. The Section 4(f) approval and the supporting information 
are always available to the public for review upon request. As such,

[[Page 13379]]

we have retained the proposed language in the final rule.
     Paragraph 774.9(c)--Two comments pointed out that the 
introductory clause in NPRM paragraph 774.9(c), ``If the Administration 
determines that Section 4(f) is applicable'' repeats one of the 
numbered subparagraphs--``(2) The Administration determines that 
Section 4(f) applies to the use of a property.'' The redundant language 
has been deleted.
    One comment suggested replacing ``final EIS'' with ``ROD'' to 
ensure consistency with references to a FONSI and a CE in paragraph 
774.9(c). Both the FONSI and CE are decision documents, as is the ROD. 
The FHWA and FTA decided to follow this recommendation. The change 
helps clarify the timing of the separate Section 4(f) approval required 
by section 774.9. Paragraph (c) applies only after the NEPA process has 
been completed and the Administration has already made a Section 4(f) 
determination in a decision document.
    One comment recommended explicitly stating in paragraph 774.9(c)(2) 
that the identification of a new property subject to Section 4(f) does 
not require a separate Section 4(f) approval if the ``late 
designation'' exception in paragraph 774.13(c) applies. The FHWA and 
FTA agree with the substance of this comment, though not with the 
suggested language. Instead, the FHWA and FTA included the phrase 
``except as provided in Sec.  774.13 of this title'' at the end of the 
introductory sentence of paragraph (c): ``a separate Section 4(f) 
approval will be required, except as provided in Sec.  774.13, if * * 
*.'' The FHWA and FTA believe that the exceptions listed in section 
774.13 pertain to all three situations addressed in paragraph (c), not 
exclusively to the scenario in paragraph (c)(2). Furthermore, 
exceptions other than paragraph 774.13(c) dealing with ``late 
designation'' could potentially apply to the circumstances described in 
paragraph (c). Consequently, a more general statement concerning 
exceptions is appropriate.
    Another comment asked for clarification in paragraph 774.9(c)(2) 
that the provision requires a separate Section 4(f) approval when the 
Administration determines after project approval that Section 4(f) 
applies to a new use of Section 4(f) property. That was our intent, so 
we modified paragraph 774.9(c)(2) to state that ``Section 4(f) applies 
to `the use of' a property.''
    One comment proposed a slight revision to the provision by 
substituting ``if'' instead of ``when'' before enumerating situations 
necessitating a separate Section 4(f) evaluation. In the context of the 
introductory sentence, the choice of the word ``if'' better articulates 
the conditional nature of the applicability of paragraph (c) and is 
less likely to be misconstrued. We have therefore adopted this 
suggested change.
    One commenter asked for definitions of the phrases ``substantial 
increase in the amount of Section 4(f) property used,'' ``substantial 
increase in the adverse impacts to Section 4(f) property,'' and 
``substantial reduction in mitigation measures.'' These words were used 
with their plain English meanings. We think that the meanings of these 
phrases are self-evident, and they rely upon the context of each 
particular factual situation to which this paragraph of the regulation 
is being applied. Therefore, we did not provide definitions of these 
phrases.
     Paragraph 774.9(d)--Two comments expressed the opinion 
that new or supplemental environmental documents should always be 
required if a separate Section 4(f) approval is required after the 
original environmental document has been processed. The proposed 
regulation stated that a new or supplemental environmental document 
``will not necessarily'' be required in such instances and that project 
activities not directly affected by the separate Section 4(f) approval 
may proceed. Paragraph 774.9(d) of this Section 4(f) regulation deals 
strictly with Section 4(f) requirements and is not intended to explain 
when supplementation under NEPA is required. A provision in the joint 
FHWA/FTA NEPA regulation, located at 23 CFR 771.130, governs when 
supplementation is required under NEPA. It requires a supplemental EIS 
``whenever the Administration determines that: (1) Changes to the 
proposed action would result in significant environmental impacts that 
were not evaluated in the EIS; or (2) New information or circumstances 
relevant to environmental concerns and bearing on the proposed action 
or its impacts would result in significant environmental impacts not 
evaluated in the EIS.'' The circumstances that necessitate a separate 
Section 4(f) approval under paragraph 774.9(c) may or may not rise to 
the level of significance described in 23 CFR 771.130(a). It should 
also be noted that 23 CFR 771.130(c) provides for the preparation of 
environmental studies or, if appropriate, an EA to assess the impacts 
of the changes, new information, or new circumstances and determine 
whether a supplemental EIS is necessary. The NEPA question must be 
answered in the context of the particular new or changed impacts at 
issue, while the Section 4(f) question depends on the new or changed 
use of Section 4(f) property at issue. The FHWA and FTA recognize that 
the changes, new information, or new circumstance requiring a separate 
Section 4(f) evaluation may also require additional NEPA documentation. 
Paragraph 774.9(d) now states that when, in accordance with paragraph 
(c), a separate Section 4(f) approval is required and, in accordance 
with 23 CFR 771.130, additional NEPA documentation is needed, these 
documents should be combined for efficiency and comprehensiveness. 
Further, 23 CFR 771.130(f) provides for a supplemental EIS of ``limited 
scope'' when issues of concern affect only a limited portion of the 
project, and it states that any project activity not directly affected 
by the supplemental review may proceed. The FHWA and FTA believe that 
the last sentence in paragraph 774.9(d) is consistent with 23 CFR 
771.130(f) and that no change is warranted.
     Paragraph 774.9(e)--Several comments expressed support for 
the proposal in paragraph 774.9(e) that, when Section 4(f) applies to 
archeological sites discovered during construction, the Section 4(f) 
process may be expedited and the evaluation of alternatives may take 
into account the level of investment already made. One commenter 
objected to the expedited process and consideration of prior 
investment. Another stated that this provision is too vague. However, 
no substantive change was made to the language because this paragraph 
continues existing policy that has worked well in past applications. 
Because archeological resources are underground and can occur in 
unexpected locations, it is not always possible to anticipate their 
presence prior to construction. Thus, when such resources are uncovered 
during construction, it is appropriate to take the scientific and 
historical value of the resource into account in deciding how to 
expedite the Section 4(f) process. Further elaboration in the 
regulation would hamper the deliberation necessary when this 
circumstance arises.
    One commenter asked whether a particular applicant can enter into a 
programmatic agreement with their SHPO setting forth more detailed 
procedures to comply with Section 4(f) and the National Historic 
Preservation Act when archeological resources are discovered during 
construction. We believe that this would be appropriate and desirable 
as long as the proposed

[[Page 13380]]

agreement is reviewed by the Administration through the appropriate 
field office for consistency with this regulation. Another approach 
that is encouraged is the inclusion of procedures for identifying and 
dealing with archaeological resources in the project-level Section 106 
Memorandum of Agreement under the National Historic Preservation Act. 
Another comment sought clarification whether the exception in paragraph 
774.13(b) for archeological resources lacking value for preservation in 
place applies when the archeological resource is discovered during 
construction. It does, and this has been clarified in the final rule.

Section 774.11 Applicability

    This section is intended to answer many common questions about when 
Section 4(f) is applicable. There were no generally applicable comments 
on this section. Comments on specific paragraphs are discussed in turn 
below.
     Paragraph 774.11(a)--There were no major comments in 
response to this paragraph. Therefore, we have retained the language as 
proposed in the NPRM.
     Paragraph 774.11(b)--Several comments requested 
clarification on the roles of the various agencies involved in the 
Section 4(f) evaluation in relation to the provisions of 23 U.S.C. 139, 
which was created by SAFETEA-LU section 6002, regarding joint lead 
agencies. Section 4(f) only applies to U.S. DOT agencies, but there are 
transportation projects for which a non-U.S. DOT agency is the Federal 
lead agency and a U.S. DOT agency is a cooperating or participating 
agency. In these cases, only the U.S. DOT agency can make the Section 
4(f) approval. For example, a hospital expansion project was proposed 
in the midwest, utilizing funds from the U.S. Army Corps of Engineers, 
a non-U.S. DOT agency that was the lead agency under NEPA, and the U.S. 
Department of Housing and Urban Development, another non-U.S. DOT 
agency. The FHWA had funding involvement for the relocation of roads 
within the project area and was a cooperating agency. FHWA was, 
however, the Federal lead agency for Section 4(f) approvals. To further 
clarify this point, the word ``Federal'' was inserted in the first 
sentence of this paragraph: ``When another `Federal' agency is the 
Federal lead agency for the NEPA process * * *. ''
     Paragraphs 774.11(c) and (d)--These paragraphs were 
proposed to remain substantively unchanged from the previous 
regulation. Three comments objected to paragraph (c), which presumes 
that parks, refuges, and recreation areas are significant unless the 
official(s) with jurisdiction determine that the entire property is not 
significant. The FHWA and FTA proposed in paragraph (d) to retain the 
right to review such determinations of non-significance for 
reasonableness. One commenter objected to the presumption of 
significance, stating ``if the official with jurisdiction over the 
property chooses to not make a ruling on significance, we should assume 
the property is not significant as opposed to assuming it is.'' The 
same commenter felt that the Administration should not be permitted to 
overturn a non-significance determination. Another commenter proposed 
adding a public hearing requirement to this paragraph, and the third 
comment proposed deleting the paragraph (c) on significance altogether 
because it ``guts the statutory standard'' to allow the official(s) 
with jurisdiction over a property to declare it non-significant. After 
considering these comments, we decided to retain the language as 
proposed. The statute is limited by its own terms to significant 
properties ``as determined by the Federal, State, or local officials 
having jurisdiction over the park, area, refuge, or site.'' 49 U.S.C. 
303(c). Therefore, these paragraphs implement a provision of the 
statute itself and are part of the current Section 4(f) regulations at 
23 CFR 771.135(c) and (d). With respect to the presumption of 
significance in paragraph (c), the FHWA and FTA decided to keep the 
presumption since it continues to provide the benefit of a doubt in 
favor of protecting the Section 4(f) property, which has been the FHWA 
and FTA's policy on this issue for several decades.
     Paragraph 774.11(e)--Several comments were received on 
this paragraph, which specifies standards and procedures for 
determining the applicability of Section 4(f) to historic sites. Two 
comments asked for a definition of ``historic site.'' A definition was 
added to section 774.17, which defines the term as ``any prehistoric or 
historic district, site, building, structure, or object included in, or 
eligible for inclusion in, the National Register.'' The term ``includes 
properties of traditional religious and cultural importance to an 
Indian tribe or Native Hawaiian organization that are included in, or 
are eligible for inclusion in, the National Register.'' This definition 
is consistent with the definition of ``historic property'' used in the 
regulation implementing Section 106 of the National Historic 
Preservation Act (36 CFR part 800).
    Another comment on this paragraph stated that we should not limit 
historic sites to those that are eligible for the National Register of 
Historic Places, but also consider other sites that may be important 
for historic purposes. We agree with the commenter that it is important 
to allow for the possibility of protecting sites that are historic but 
not eligible for the National Register. The proposed text of paragraph 
774.11(e)(1) provides for this situation by stating that Section 4(f) 
applies ``only to historic sites on or eligible for the National 
Register unless the Administration determines that that the application 
of Section 4(f) is otherwise appropriate.'' This provision allows the 
Administration to consider sites that are historically important for 
protection but are not eligible for the National Register.
    Other comments stated that the section did not adequately address 
``negligible'' impacts to large historic districts. We think that 
changes to the proposed language to address this issue are not 
warranted. For example, in the case of historic districts, the 
assessment of effects under Section 106 of the National Historic 
Preservation Act would be based on the effect to the district as a 
whole, as opposed to individual impacts on each contributing property. 
Accordingly, when an assessment of effects on the overall historic 
district is performed, if the effects on the historic district are 
truly negligible, then the result of the assessment of effects would be 
a ``no adverse effect'' on the historic district. With appropriate 
concurrences, such finding would qualify the project as having de 
minimis impact and therefore not subject to further consideration under 
Section 4(f). On the other hand, where contributing elements of a 
historic district are individually eligible for the National Register, 
an assessment of the effects on the individual properties that are 
eligible would also be required. This assessment of effects would be 
independent of the assessment for the overall historic district and may 
or may not result in ``no adverse effect'' and de minimis impact 
determinations.
    Paragraph 774.11(e)(2), concerning the application of Section 4(f) 
to the Interstate Highway System, was moved to this location in the 
final rule (from paragraph 774.13(j) in the NPRM) so that all 
provisions governing the applicability to historic sites are in one 
location. One comment was received on the exemption of the Interstate 
Highway System. The comment expressed concern over the inclusion of 
this exemption in the proposed regulation. This exception was included 
in the NPRM in response to section 6007 of SAFETEA-LU (codified at 23 
U.S.C. 103(c)(5)), which states, in pertinent

[[Page 13381]]

part, that the Interstate Highway System is not considered to be a 
historic site subject to Section 4(f), with the exception of those 
individual elements of the Interstate Highway System formally 
designated by FHWA for Section 4(f) protection on the basis of national 
or exceptional historic significance. FHWA implemented this directive 
through a formal process that designated 132 significant elements of 
the Interstate Highway System for Section 4(f) protection after 
considering input from relevant agencies and the public. See 71 FR 
76019. While Section 4(f) does not apply to all other segments and 
features of the Interstate Highway System, Section 4(f) continues to 
apply to any historic sites located in proximity to an Interstate 
Highway that are unrelated to the Interstate Highway System. As an 
example, a highway project will widen and reconfigure an interchange on 
the Interstate System constructed 50 years ago that has some historic 
value but is not designated on the list of 132 significant elements. 
Section 4(f) does not apply to the use of this interchange. However, a 
historic farm, circa 1850 and on the National Register, also abuts the 
project. Section 4(f) would apply to the project's use of the historic 
farm because the farm is not part of the Interstate Highway System and 
its historic significance is unrelated to the Interstate Highway 
System.
     Paragraph 774.11(f)--One commenter requested specific 
procedures to be used for the identification of archaeological 
resources. The FHWA and FTA decided not to include procedures for 
identifying archaeological resources in this regulation because it is 
beyond the scope of this rulemaking. The FHWA and FTA believe that a 
good faith effort must be made to identify archaeological resources, 
but specifying procedures to be used in each situation is not 
appropriate in this regulation.
     Paragraph 774.11(g)--This paragraph of the final rule was 
added to clarify the applicability of Section 4(f) to Wild and Scenic 
Rivers. The provision is consistent with longstanding FHWA and FTA 
policy as set forth in FHWA's Section 4(f) Policy Paper. It was 
inserted in response to the comments of the U.S. Department of the 
Interior. The provision limits the applicability of Section 4(f), in 
accordance with the statutory language, to those portions of Wild and 
Scenic Rivers that are publicly owned and serve a function protected by 
Section 4(f). The paragraph states ``Section 4(f) applies to those 
portions of federally designated Wild and Scenic Rivers that are 
otherwise eligible as historic sites, or that are publicly owned and 
function as, or are designated in a management plan as a significant 
park, recreation area, or wildlife and waterfowl refuge. All other 
applicable requirements of the National Wild and Scenic Rivers Act must 
be satisfied, independent of the Section 4(f) approval.''
     Paragraphs 774.11(h) and (i)--These paragraphs of section 
774.11 concern the applicability of Section 4(f) to properties formally 
reserved for future transportation projects but temporarily serving a 
Section 4(f) purpose. One commenter noted that the NPRM had addressed 
interim Section 4(f) activity on property reserved for transportation 
use and the concurrent or joint development of parks, recreation areas, 
or refuges with transportation facilities in the same paragraph. That 
commenter suggested that these two topics should be separated because 
the NPRM was confusing. As these issues have been traditionally treated 
separately, the FHWA and FTA agree with this suggestion, and the topics 
of interim Section 4(f) activities and joint planning are now addressed 
in paragraphs 774.11(g) and (h), respectively.
    Another commenter was concerned with the term ``temporary 
recreational activity'' in the first sentence of this paragraph of the 
proposed rule, explaining that the word ``temporary'' could be 
construed to refer only to uses of relatively short duration. The FHWA 
and FTA have never imposed any time limit on how long a future 
transportation corridor can be made available for recreation while it 
is not yet needed for transportation, and there is no public purpose in 
limiting the time during which interim recreational activities may be 
permitted on the future transportation corridor.
    The commenter was also concerned that the proposed language did not 
consider other non-recreational temporary uses of a future 
transportation corridor, for example as a wildlife or waterfowl refuge. 
The FHWA and FTA decided to address these comments by clarifying the 
wording of the section. The language in the final rule says: ``[w]hen a 
property formally reserved for a future transportation facility 
temporarily functions for park, recreation, or wildlife and waterfowl 
refuge purposes in the interim, the interim activity, regardless of 
duration, will not subject that property to Section 4(f).'' The 
temporary activity is not protected under Section 4(f) in this case, 
regardless of whether the property owner has authorized the interim use 
of the transportation land or has simply not fenced the property off or 
taken other measures to prevent trespassing.
    Another comment suggested that allowing temporary recreational 
activity on a reserved transportation corridor is an exception to 
Section 4(f) and therefore should be moved from section 774.11, 
``Applicability,'' to section 774.13, ``Exceptions.'' We think that the 
proposed paragraph does not set forth an exception to Section 4(f), but 
rather explains the applicability of Section 4(f) in certain 
situations. Therefore, this provision was retained in the 
``Applicability'' section.
    Another comment addressed the second example of joint planning 
between two or more agencies with jurisdiction over the transportation 
project and Section 4(f) property. The comment suggested that a broader 
range of scenarios of joint planning be addressed in the rule, and 
suggested the example be revised to indicate that such planning could 
be done concurrently or in consultation between the agencies. It 
appears the concern involved the need for formal coordination, though 
the word ``formal'' did not appear in the NPRM. Since this paragraph of 
the rule deals with joint planning of transportation projects and 
Section 4(f) properties, any instance of concurrent planning would 
qualify for consideration of whether Section 4(f) applied. The basis 
for determining the compatibility of jointly-planned transportation 
projects and Section 4(f) properties, however, depends heavily upon the 
degree to which the multiple agencies involved have consulted on 
various aspects of the proposals. The purpose of this provision had 
been accurately described as:

    Section 4(f) is not meant to force upon a community, wishing to 
establish a less than pristine park affected by a road, the choice 
between a pristine park and a road. A community faced with this 
choice might well choose not to establish any park, thus frustrating 
Section 4(f)'s goal of preserving the natural beauty of the 
countryside.

See Sierra Club v. Dept. of Transp., 948 F.2d 568, 574-575 (9th Cir. 
1991). The consultation that occurs, formal or otherwise, will be 
examined on a case-by-case basis in light of this purpose to determine 
if a constructive use occurs when the jointly-planned transportation 
project is eventually proposed for construction. We have retained the 
proposed language in the final rule.

Section 774.13 Exceptions

    This section sets forth various exceptions to the otherwise 
applicable Section 4(f) requirements. The exceptions either are founded 
in statute or reflect longstanding FHWA and FTA policies governing when 
to apply Section 4(f). The exceptions are limited

[[Page 13382]]

in number and scope and do not compromise the preservation purpose of 
the statute, which is to ``preserve the natural beauty of the 
countryside and public park and recreation lands, wildlife and 
waterfowl refuges, and historic sites.''
    One comment asked for clarification whether an exception for a 
project under this regulation would also provide an exemption for the 
project from compliance with the NEPA and the National Historic 
Preservation Act. The answer is no. The exceptions in Section 774.13 
relate solely to the applicability of, and requirements for, Section 
4(f) approval. All other applicable environmental laws must still be 
addressed.
    Several comments favored additional exceptions beyond those 
proposed by the FHWA and FTA. One such comment suggested that an 
exception be added for active historic railroads and transit systems, 
along the lines of the exemption for the Interstate Highway System that 
was included in section 6007 of SAFETEA-LU. The FHWA and FTA decided 
not to pursue the suggested exception for several reasons. First and 
foremost, the FHWA and FTA do not have statutory authority for such an 
exception, as it was not included in section 6007. Second, there is 
already an exception in paragraph 774.13(a) for the restoration, 
rehabilitation, or maintenance of historic transportation facilities 
when there is no adverse effect on the historic qualities of the 
facility that caused it to be on or eligible for the National Register. 
For many FTA-funded maintenance or rehabilitation projects on historic 
transit systems, such as those in New York, Chicago, and Boston, 
system-specific programmatic agreements with the relevant SHPO under 
Section 106 have specified the conditions for a ``no adverse effect'' 
determination and, as a logical consequence, the conditions for the 
Section 4(f) exception noted above. Finally, when the project does 
result in an adverse effect and the traditional Section 4(f) evaluation 
process applies, the demonstration that there is no feasible and 
prudent avoidance alternative that would accomplish the project purpose 
of keeping the historic transportation facility in operation is usually 
straightforward. Therefore, the applicant in such a case can focus on 
how to minimize the harm to historic features of the transportation 
facility and still accomplish the project's purpose. Accordingly, the 
FHWA and FTA do not agree that the creation of a new exception for 
active, historic railroads and transit systems is necessary or 
permissible.
    Another comment suggested adding an exception for all ``local or 
state transportation projects that have not or will not receive U.S. 
Department of Transportation funds for construction of the project.'' 
In support of this proposal, the commenter cited a number of court 
cases holding that Section 4(f) requirements are triggered when a U.S. 
DOT agency approves a transportation project receiving Federal 
construction funds but not when the project is locally funded. The FHWA 
and FTA decided not to incorporate the proposed exception because 
Federal funding is not the sole determinant of Section 4(f) 
applicability. Section 4(f) may be implicated in other Administration 
approval actions not involving the disbursement of U.S. DOT funds when 
there is sufficient control over the project. For example, the U.S. DOT 
approval of a new interchange on the Interstate Highway System 
requiring the use of adjacent parkland may trigger Section 4(f) even if 
Federal funding is not involved. The overwhelming majority of projects 
not receiving U.S. DOT funding, including those in the court cases 
cited by the commenter, do not require any Administration approval at 
all and therefore would not trigger Section 4(f).
    Comments on specific paragraphs within Section 774.13 are discussed 
in order below.
     Paragraph 774.13(a)--Paragraph 774.13(a) is an exception 
from the Section 4(f) process for projects involving work on a 
transportation facility that is itself historic. The FHWA and FTA's 
policy for several decades has been that when a project involves a 
historic facility that is already dedicated to a transportation 
purpose, and does not adversely affect the historic qualities of that 
facility, then the project does not ``use'' the facility within the 
meaning of Section 4(f). If there is no use under Section 4(f), then 
its requirements do not apply. This interpretation is consistent with 
the preservation purpose of Section 4(f) and with caselaw on this 
issue.
    Two comments recommended revising this section to clarify that the 
exception for restoration, rehabilitation, or maintenance of 
transportation facilities applies only if the Administration makes a 
finding of ``no adverse effect'' in accordance with the consultation 
process required under Section 106. One comment pointed out that other 
interested parties besides the official(s) with jurisdiction may be 
participating in the Section 106 consultation. We agree and revised the 
paragraph to clarify these points.
     Paragraph 774.13(b)--Paragraph 774.13(b) is an exception 
from the Section 4(f) process for those archeological sites whose 
significance lies primarily in the historical or scientific information 
or data they contain. The exception does not apply when the 
Administration determines that a site is primarily important for 
preservation in place (e.g., to preserve a major portion of the 
resource in place for the purpose of public interpretation), or that 
the site has value beyond what may be learned by data recovery (e.g., 
as a result of considerations that may arise when human remains are 
present). This distinction between the primary values for what can be 
learned by data recovery versus the primary value for preservation in 
place has been central to the Administration's implementation of the 
statute for archeological sites for several decades.
    The intent of the exception is not to narrow unnecessarily the 
application of Section 4(f) when dealing with archeological sites, but, 
rather, to apply the protections of Section 4(f) only in situations 
where the preservation purpose of the statute would be sustained. 
Frequently, the primary information value of an archeological resource 
can only be realized through data recovery. In those cases, the primary 
mandate of Section 4(f)--to investigate every feasible and prudent 
alternative to avoid the site--would serve no useful purpose. 
Conversely, where the artifacts would lose essential aspects of the 
information they might yield if removed from the setting, or if the 
site is complex and it is not reasonable to expect to be able to 
recover much of the data resident there, or where technology does not 
exist to preserve the artifacts once removed from the ground, requiring 
the applicant to search for a feasible and prudent avoidance 
alternative is consistent with the statute.
    One commenter expressed the view that in light of the 1999 and 2000 
amendments to the Section 106 regulations concerning archeological 
resources, ``the outdated approach to archeology reflected in the 
Section 4(f) regulations is inconsistent with the National Historic 
Preservation Act (NHPA).'' Transportation projects subject to Section 
4(f) must also comply with the NHPA, an entirely different statute that 
also affords certain protection to historic sites. The NHPA has its own 
very detailed regulations that must be followed. An ``adverse effect'' 
to an archeological site under the NHPA is not the same as a ``use'' of 
an archeological site under Section 4(f).

[[Page 13383]]

    The comment did not propose specific revisions to the proposed 
regulation, but generally recommended that consideration be given to 
whether an archeological site may have ``broader religious or cultural 
significance to any Indian tribe(s),'' and that the Administration 
should be required to ``defer to the SHPO's or THPO's views regarding 
significance.'' We carefully considered these suggestions and decided 
to revise the wording in the final rule in response to the concerns 
raised. We agree that deference to the expertise of SHPOs and THPOs is 
warranted in determining whether an archeological site is worthy of 
preservation in place or is important chiefly for what could be learned 
through data recovery. Accordingly, the final rule requires that 
``[t]he official(s) with jurisdiction over the Section 4(f) resource 
have been consulted and have not objected to the Administration finding 
* * *'' regarding the relative importance of data recovery versus 
preservation in place.
     Paragraph 774.13(c)--This paragraph is an exception to the 
requirement for Section 4(f) approval for parks, recreational areas, 
wildlife and waterfowl refuges, and historic sites that are designated 
or determined to be significant late in the development of a 
transportation project. Late designation is not the same thing as a 
late discovery of a Section 4(f) property. This exception, which has 
been FHWA and FTA policy for several decades, applies only if a good 
faith effort was made during the NEPA process to identify all 
properties eligible for Section 4(f) protection. The purpose of the 
exception is to provide reasonable finality to the environmental review 
phase of project development.
    Many comments were received on the late-designation exception. One 
comment asserted that no exception is warranted until construction has 
begun in order to provide maximum protection to Section 4(f) 
properties. Another comment objected to the exception in the case of 
projects ``languishing'' in project development for long periods of 
time during which time a resource on the project site might be 
legitimately designated as a new or significant Section 4(f) property. 
In this commenter's view, such projects should not be allowed to 
proceed without a new Section 4(f) evaluation, even if the property in 
question was acquired by a transportation agency for transportation 
purposes prior to the new designation. The commenter suggested limiting 
the exception by including a ``staleness'' provision mandating that if 
a planned transportation project is not constructed within a specified 
period of time (three years was suggested) the exception would not 
apply and a new evaluation under Section 4(f) would be required. At the 
opposite end of the spectrum, we received comments asserting that 
project opponents frequently wait until late in project development to 
assert that properties are eligible for Section 4(f) protection, solely 
for the purpose of delaying the project. Several modifications were 
suggested to guard against that possibility. One such proposal 
suggested broadening this exception so that an applicant would only 
need to establish the project's location and complete the NEPA process 
in order to benefit from the late-designation exception. The comment 
proposed that the applicant not be required to take the additional step 
of acquiring the right-of-way for this exception to apply.
    The FHWA and FTA decided not to adopt any of the suggested changes 
to the proposed regulation. The exception is intended to balance 
competing interests--protecting Section 4(f) properties while 
facilitating timely project delivery. The exception provides that ``the 
Administration may permit a project to proceed without consideration 
under Section 4(f) if the property interest in the Section 4(f) land 
was acquired for transportation purposes prior to the designation or 
change in the determination of significance and if an adequate effort 
was made to identify properties protected by Section 4(f) prior to 
acquisition.'' These conditions will ensure that the initial Section 
4(f) approval was proper and that the project has progressed far enough 
to warrant special treatment. The acquisition of right-of-way typically 
is the last step of project development prior to construction. 
Conversely, if the right-of-way has not yet been acquired prior to the 
redesignation or change in significance, then the exception does not 
apply. Recognizing the variability in development schedules among 
different transportation projects, we did not include any arbitrary 
time limits. A ``staleness'' provision would often delay project 
implementation unnecessarily and may compromise project plans after 
considerable investment in engineering design and land acquisition. The 
regulatory language draws the line at purchase of the property to 
ensure that, prior to the redesignation or change in significance, the 
applicant has completed the NEPA process, has made a good faith effort 
to address Section 4(f) concerns, and has advanced the project beyond 
preliminary engineering into actual implementation activities. We also 
note that if, after the completion of the NEPA process and Section 4(f) 
approval, the project has to be modified in a way that would use newly 
designated Section 4(f) property, the applicant would be obligated to 
conduct a separate Section 4(f) evaluation in accordance with paragraph 
774.9(c).
    Lastly, a comment suggested that the FHWA and FTA should ``ensure 
internal consistency'' between this provision and Paragraph 
774.15(f)(4), which provides that there is no constructive use if the 
Section 4(f) designation occurs after either a right-of-way acquisition 
or adoption of project location through the approval of a final 
environmental document. We do not agree. The ``late designation'' 
exception in paragraph 774.13(c), which applies generally to both 
actual and constructive use, is distinct from the narrower exception in 
paragraph 774.15(f)(4), which addresses proximity impacts of a 
transportation project and applies only to constructive use.
    Several comments suggested removing or modifying the sentence at 
the end of paragraph 774.13(c) that, as worded in the NRPM, would 
preclude the use of the late-designation exception where a historic 
property is close to, but less than, 50 years of age. One commenter 
pointed out that the sentence would perpetuate the false assumption 
that properties over 50 years old are automatically eligible for the 
National Register. Another commenter stated that the provision is 
confusing because there is no parallel in Section 106 of the National 
Historic Preservation Act, and the sentence could be read to 
effectively extend Section 4(f) protections to properties that are not 
necessarily historically significant under Section 106. The commenter 
also pointed out the potential confusion caused by having an exception 
to the exception. The FHWA and FTA agree that this sentence was 
confusing and has modified it to say: ``if it is reasonably foreseeable 
that a property would qualify as eligible for the National Register 
prior to the start of construction, then the property should be treated 
as a historic site for the purposes of this section.'' The 
determination whether it is reasonably foreseeable should take into 
account the possibility that changes in the property beyond the 
Administration's control might reduce its eligibility, as well as the 
sometimes unpredictable nature of construction schedules.
     Paragraph 774.13(d)--Paragraph 774.13(d) is an exception 
to the requirement for Section 4(f) approval for temporary occupancies 
of Section 4(f)

[[Page 13384]]

property. This exception is limited to situations where the official 
with jurisdiction over the resource agrees that a minor, temporary 
occupancy of Section 4(f) property will not result in any permanent 
adverse impacts and will not interfere with the protected activities, 
features, or attributes of the property, the property will be fully 
restored, and the ownership of the property will not change. This 
exception, which has been part of the Section 4(f) regulation since 
1991, is founded on the FHWA and FTA's belief that the statute's 
preservation purpose is met when the Section 4(f) land, though 
temporarily occupied, is not permanently incorporated into a 
transportation facility and is returned to the same or better condition 
than it was found, with the consent of the official with jurisdiction 
over the Section 4(f) resource. Some construction-related activities 
taking place on Section 4(f) property may be so minor in scope and 
duration that its continued preservation is in no way impeded. Using 
publicly owned land for construction easements can result in less 
disruption to the surrounding community and often may result in an 
enhancement of the protected resource, such as landscaping, 
installation of new play equipment, or other improvement following 
construction.
    A commenter asked whether a temporary occupancy not falling within 
this exception could be treated as a use with de minimis impact if the 
Section 4(f) land would be fully restored after construction. The 
answer is yes, a temporary occupancy that is determined to be a Section 
4(f) use may qualify for a de minimis impact determination by the 
Administration if the requirements for such determination are met. This 
circumstance would arise when one or more of the criteria for the 
temporary-occupancy exception are not met, but the requirements for a 
de minimis impact determination are met. De minimis impact 
determinations related to temporary occupancies are addressed in more 
detail in the joint FHWA/FTA ``Guidance for Determining De Minimis 
Impacts to Section 4(f) Resources,'' December 13, 2005.
    One comment asserted that excepting ``temporary'' occupancies of 
land from the provisions of Section 4(f) would be problematic for 
``megaprojects'' (usually defined as projects with a total estimated 
cost of more than $500 million) whose construction period might stretch 
over a decade or more. Another commenter expressed the opinion that 
occupation of Section 4(f) properties during such projects should not 
be considered ``temporary'' even if the occupancy period is less than 
the total time needed for construction. We agree that in some 
circumstances a very long-term occupancy of Section 4(f) properties, 
even if shorter in duration than the total time it takes to construct a 
particular project, could be contrary to the preservation purpose of 
Section 4(f) and, therefore, constitute a use. However, we did not 
change the relevant text (``[d]uration must be temporary, i.e., less 
than the time needed for construction of the project'') because the 
regulation imposes several other stringent conditions that would be 
difficult to satisfy in the case of a long-term occupancy. These other 
stringent conditions include the requirement that the occupancy not 
interfere with the activities, features, and attributes that qualify 
the property for Section 4(f) protection, and that the official with 
jurisdiction over the Section 4(f) property concur in its being 
occupied for this period of time.
    Another commenter recommended elimination of the conditions for the 
``temporary occupancy'' of land. These conditions, the commenter 
argues, create a major burden for determining whether the temporary-
occupancy exception applies. Another comment recommended changing the 
wording in paragraph 774.13(d)(1) from ``less than the time needed for 
construction'' to ``no greater than the time needed for construction.'' 
This change would allow the temporary occupancy of land to continue for 
the entire duration of construction. After carefully considering all of 
the comments, we decided that no change to the proposed language of 
paragraph 774.13(d) was warranted. If an applicant finds the exception 
burdensome, a traditional Section 4(f) evaluation, programmatic 
evaluation, or a de minimis impact determination are potentially 
available options. The paragraph is unchanged from the provision that 
has been in effect since 1991 and has not been controversial, and it 
strikes a reasonable balance between protecting Section 4(f) resources 
and advancing transportation projects.
    Other comments recommended revising paragraph 774.13(d)(3). One 
proposed adding the word ``significant'' to modify the word 
``interference,'' and another suggested deleting the words ``either a 
temporary or'' so that only permanent interference would be a concern. 
We considered these comments, but decided not to make any changes. The 
appropriate question is not whether an interference with the protected 
activities, features, or attributes of a Section 4(f) property is 
significant, but whether the interference, taken together with the 
requirements of the other criteria in this exception, constitutes a use 
of Section 4(f) property. The duration of the interference is but one 
of several criteria that must be satisfied in order for the exception 
to apply. The criteria must be addressed in consultation with the 
official(s) with jurisdiction to determine if the temporary-occupancy 
exception is appropriate. The official with jurisdiction over the 
property is in the best position to determine whether the temporary 
occupancy would interfere inappropriately with any of the protected 
activities, features, or attributes of the property.
    Several comments asked for clarification as to whether the 
condition of a Section 4(f) property after the temporary occupancy must 
be identical to the condition prior to the temporary occupancy, and one 
comment proposed an addition to the regulatory text to address the 
issue. One comment further requested that the regulation state that the 
restoration after a temporary occupancy must focus on the ``protected 
features, activities, or attributes'' of the site. We believe that the 
proposed text, which states that the land must be ``returned to a 
condition at least as good as that which existed prior to the project'' 
already provides the flexibility requested by these comments. The 
regulation does not require that the property be restored to a 
condition identical to its pre-occupancy condition. Often the 
official(s) with jurisdiction have plans to improve the property in 
some way and prefer to have the property restored in a manner that is 
consistent with those plans rather than returning to its pre-occupancy 
condition. Further, in light of the preservation purpose of Section 
4(f), the focus of the restoration should certainly be on the protected 
features, activities, and attributes that make the property eligible 
for Section 4(f) protection. Because the proposed regulatory text 
already covers the issues raised by the comments, we did not make the 
requested changes.
     Paragraph 774.13(e)--Paragraph 774.13(e) is an exception 
for park roads and parkway projects under FHWA's Federal Lands Highway 
Program, 23 U.S.C. 204. Projects under this program are expressly 
excepted from Section 4(f) requirements within the Section 4(f) statute 
itself. Several comments were received on this exception. One comment 
recommended deleting ``in accordance with'' and substituting the 
statutory term ``under.'' We agree, and modified the final rule 
accordingly. Another comment, repeated by several commenters, urged 
that the exception be

[[Page 13385]]

deleted, because parkways should be designed and routed so as to 
minimize damage to parks, and applying Section 4(f) would ensure that 
such planning occurs. We agree that park roads and parkways should be 
carefully designed and routed, and note that the FHWA's program funding 
these roads is jointly administered with the National Park Service 
pursuant to an interagency agreement that protects park values. 
However, by its own terms, the statutory language of Section 4(f) 
explicitly states that it does not apply to projects ``for a park road 
or a parkway under section 204'' of Title 23, United States Code. 49 
U.S.C. 303(c); 23 U.S.C. 138(a). Therefore, the Administration is not 
required to apply Section 4(f) to these projects.
     Paragraph 774.13(f)--Paragraph 774.13(f) is an exception 
for certain trails, paths, sidewalks, bikeways, and other recreational 
facilities designed primarily for non-motorized vehicles [all of which 
are referred to collectively as ``trails'' in the remainder of the 
discussion of paragraph 774.13(f)]. Such trails generally serve 
recreational purposes and therefore represent the kind of resource that 
Section 4(f) was enacted to protect. When the Administration funds the 
construction or maintenance of trails, the application of Section 4(f), 
including the consideration of avoiding the Section 4(f) property, 
would not advance the preservation purpose of the statute.
    One comment was received specifically concerning the construction 
of Recreational Trail projects. The Recreational Trails Program is an 
FHWA program that benefits recreation by making funds available to the 
States to develop and maintain recreational trails and trail-related 
facilities for both non-motorized and motorized recreational trail 
uses. The statute authorizing the Recreational Trails program (23 
U.S.C. 206) limits the circumstances under which trails for motorized 
vehicles can be constructed and requires that States give consideration 
to project proposals that benefit the natural environment or that 
mitigate and minimize the impact to the natural environment. In 
addition, these projects must comply with NEPA. The comment notes that 
recreational trails for all-terrain-vehicles (ATVs) and motorcycles can 
cause significant damage to park properties. The FHWA and FTA 
acknowledge the validity of this comment, but the authorizing statute 
at 23 U.S.C. 206(h)(2) specifically excepts Recreational Trail projects 
from Section 4(f) because they are intended to enhance recreational 
opportunities. Thus, the FHWA and FTA have no discretion to apply 
Section 4(f) to these projects.
    Several comments sought other types of clarification concerning 
trails. The FHWA and FTA have several longstanding, common-sense 
policies regarding trails which are articulated in the FHWA's Section 
4(f) Policy Paper.\6\ First, Section 4(f) does not apply to trails that 
are designated as part of the local transportation system. The reason 
for this policy is that such trails are not primarily recreational in 
nature, even though, like most transportation facilities, they may 
occasionally be used by the public for recreational purposes. A related 
long-standing FHWA and FTA policy from FHWA's Section 4(f) Policy Paper 
is that Section 4(f) does not apply to a permanent trail within a 
transportation corridor if the trail is not limited to a specific 
location within the right-of-way and the continuity of the trail is 
maintained following a change to the highway or transit guideway.\7\ 
For example, an FHWA-funded project would widen a 5-mile stretch of 
roadway that has a parallel sidewalk within its right-of-way. The 
sidewalk, which is used primarily for recreation, is not tied to any 
specific location within the right-of-way through an easement, permit, 
memorandum of agreement, or other legal document. As part of the 
widening project, the sidewalk would be relocated several hundred feet 
from its current location, for the length of the project. All existing 
connections with intersecting sidewalks and paths would be maintained 
in the new location. The trail exception in paragraph 774.13(f) would 
apply to this sidewalk. In this example, the preservation purpose of 
Section 4(f) would not be advanced by requiring a search for 
alternatives that avoid moving the sidewalk. A third long-standing FHWA 
and FTA policy on trails concerns Section 7 of the National Trail 
Systems Act, 16 U.S.C. 1246(g). The National Trail Systems Act includes 
an exception to Section 4(f) compliance for any segment of a National 
Scenic Trails and National Historic Trails that is not on or eligible 
for the National Register. In order to clarify the application of 
Section 4(f) to trails, the three FHWA and FTA policies described above 
were incorporated into the final rule in paragraph 774.13(f).
---------------------------------------------------------------------------

    \6\ ``Section 4(f) Policy Paper,'' March 1, 2005, Question 14. 
See http://environment.fhwa.dot.gov/projdev/4fpolicy.htm.
    \7\ ``Section 4(f) Policy Paper,'' March 1, 2005, Question 14. 
See http://environment.fhwa.dot.gov/projdev/4fpolicy.htm.
---------------------------------------------------------------------------

    One commenter asked that the trails exception specify that Section 
4(f) does not apply to trails that are located within a transportation 
corridor by permission of the transportation agency, regardless whether 
the trail is permanent or temporary. We see no basis for incorporating 
this suggestion into the final rule. Permanent trails within the 
transportation right-of-way would be covered by the exception in 
paragraph 774.13(f)(3) if the trail is not limited to a specific 
location with the right-of-way, and if the continuity of the trail is 
maintained after the project. Temporary trails within transportation 
corridors are already adequately covered by paragraph 774.11(h).
     Paragraph 774.13(g)--Paragraph 774.13(g) is the exception 
for transportation enhancement projects and mitigation activities. The 
transportation enhancement activities (TEAs) listed in 23 U.S.C. 
101(a)(35) that are eligible for certain FHWA funds include several 
activities that are intended to enhance Section 4(f) properties. Such 
TEAs must therefore use the Section 4(f) property, and avoidance of the 
property would be inconsistent with the authorizing statute in this 
case. Also, this exception is consistent with past FHWA and FTA 
practice and caselaw. A use of Section 4(f) property under the statute 
has long been considered to include only adverse uses--uses that harm 
or diminish the resource that the statute seeks to protect. 
Accordingly, this exception is limited to situations in which the 
official with jurisdiction over the Section 4(f) property agrees that 
the use will either preserve or enhance an activity, feature, or 
attribute of the property that qualifies it for protection under 
Section 4(f).
    Two comments were received on the exception for transportation 
enhancement projects and mitigation activities. One comment suggested 
that recreational facilities that have previously been improved with 
transportation enhancement funds should not be subject to Section 4(f). 
We see no legal basis for incorporating this suggestion into the final 
rule. The purpose of Section 4(f) is the preservation of Section 4(f) 
property without regard to the past history of the property. A 
transportation enhancement project may create, add to, or enhance the 
Section 4(f) activities, features, or attributes of a Section 4(f) 
property. The result would be an improved Section 4(f) resource more 
deserving of Section 4(f) protection not less deserving. That Section 
4(f) property would have to be afforded Section 4(f) protection in any 
subsequent transportation project that might use it.
    The other commenter believed this paragraph contradicts a statement 
in FHWA's ``Section 4(f) Policy Paper''

[[Page 13386]]

involving a TEA that does not incorporate land from the Section 4(f) 
property into a transportation facility. The statement from the 
``Section 4(f) Policy Paper'' cited by the commenter is from Question 
and Answer (Q&A) 24A. That Q&A illustrates two possible scenarios in 
which transportation enhancement funds are used for the construction of 
a walkway or bike path, one scenario resulting in a Section 4(f) use 
and one not resulting in a Section 4(f) use. The commenter suggested 
that the written concurrence of the officials with jurisdiction should 
not be needed for the latter scenario, since no Section 4(f) use would 
occur. The comment does not appear to suggest that coordination with 
the officials with jurisdiction would not be necessary at all, but 
rather it suggests that the required written concurrence of those 
officials in the second scenario would be unnecessary. Certainly, 
thorough coordination with the officials with jurisdiction over any 
Section 4(f) property involved in a project has been a fundamental 
principle in complying with Section 4(f). When a TEA or mitigation 
activity is proposed on a Section 4(f) property, the Administration 
must ensure that the resultant effect on the property is, in the view 
of the officials with jurisdiction over the property, acceptable and 
consistent with the officials' existing and planned use of that 
property. Such coordination and assurances are needed even in 
situations where no transfer of property to a transportation use is 
anticipated. While the ultimate decision on whether a Section 4(f) use 
occurs always rests with the Administration, documentation of the views 
of the officials with jurisdiction over the Section 4(f) property is 
needed in the administrative record. Accordingly, the requirement for 
the written concurrence of the officials with jurisdiction was not 
removed from the final rule, though the text was revised for greater 
clarity.
     NPRM Paragraph 774.13(i)--The FHWA and FTA proposed a 
Section 4(f) exception for the new FTA program that funds ``Alternative 
Transportation in Parks and Public Lands'' (49 U.S.C. 5320). Avoidance 
of parks and public lands seems inconsistent with a program authorized 
by Congress specifically to provide transportation facilities in parks 
and public lands. Nevertheless, several comments were strongly opposed 
to this exception, and none favored it. Considering the lack of support 
for the proposed exception and the lack of an explicit statutory basis 
for the exception, we removed it from the final rule.

Section 774.15 Constructive Use

    This section addresses the concept of the constructive use of 
Section 4(f) property, which can only occur where there is no actual 
physical taking of the property. One comment asserted that the proposed 
constructive use regulation is ``much more extensive than what exists 
now.'' Aside from reorganizing the content, the NPRM only proposed 
adding to two of the existing examples of when a constructive use 
occurs, a minor change from the current regulation. Many other comments 
were received suggesting additional examples, deletions, modifications, 
and clarifications regarding constructive use. One general comment was 
that, to improve the readability of the regulation, the definition of 
constructive use and the list of examples of circumstances not 
constituting constructive use should be consolidated in Section 774.15, 
which already contained the bulk of the provisions related to 
constructive use. We agree and have accordingly moved the definition of 
constructive use to paragraph 774.15(a) and the list of examples to 
paragraph 774.15(f). Another comment suggested breaking the several 
different but related provisions of NPRM paragraph 774.15(a) into 
separate paragraphs. Briefly, these provisions are: that a traditional 
Section 4(f) evaluation process is appropriate when there is a 
constructive use; that the Administration's determination that there is 
no constructive use need not be documented; and that a constructive use 
determination will be based on certain specified analyses. We agree 
that separating these provisions would improve the clarity and 
readability of the rule, so the final rule addresses these issues in 
three paragraphs designated (b), (c) and (d), respectively.
    Several comments asked that various terms be defined, including 
``not substantial enough to constitute a constructive use,'' 
``substantially impair the activities, features, and attributes,'' and 
``substantially diminish.'' We did not define these terms in the final 
rule because the words are all used with their common English meanings. 
The terms will be applied to a variety of fact situations, and 
narrowing the meaning of any of the terms would limit its applicability 
to particular fact situations that cannot be anticipated now. In 
addition, these terms are not new--the same terminology is used in the 
current regulation, and it has not been controversial or problematic. 
Additional guidance on the meaning of these terms can be found in 
FHWA's ``Section 4(f) Policy Paper.''
    Another general comment proposed adding a paragraph to the final 
rule to clarify that a finding of ``adverse effect'' under Section 106 
of the National Historic Preservation Act (NHPA) does not automatically 
equate to constructive use under Section 4(f), nor does an adverse 
effect create a presumption of a constructive use. We agree that the 
threshold for constructive use under Section 4(f) has generally been 
higher than the threshold for finding an adverse effect under Section 
106 of the NHPA. However, we believe that making this distinction in 
the Section 4(f) regulation would be inappropriate because the NHPA is 
an entirely separate statute with its own implementing regulation 
promulgated by another Federal agency.
    Comments on specific paragraphs within Section 774.15 are discussed 
in order below.
     Paragraph 774.15(a)--Paragraph 774.15(a) contains the 
definition of ``constructive use.'' The definition was moved here from 
NPRM Section 774.17 as discussed above.
    One comment asked for the word ``permanently'' to be added to the 
definition, so that a constructive use could not occur if the 
substantial impairment is only temporary. We did not adopt this 
proposal because some ``temporary'' impacts (for example, the 
construction impacts of a major, complex project) may last for many 
years. In addition, we think that the duration of the impacts can 
already be considered under the existing definition. A constructive use 
occurs when the proximity impacts are so severe as to substantially 
diminish the activities, features, or attributes that qualify the 
property for protection. The duration of a proximity impact is one 
factor that should be considered in determining if the protected 
activities, features, or attributes would be substantially diminished.
    Another commenter asked that the last sentence of the definition be 
deleted, as it purportedly discourages findings of constructive use. 
The sentence says ``substantial impairment occurs only when the 
protected activities, features, or attributes of the property are 
substantially diminished.'' An identical sentence appears in the 
current regulation. We carefully considered this comment, but decided 
to keep the sentence. It helps to explain what is meant by 
``substantial impairment.'' In addition, we believe that the concept of 
constructive use has been correctly applied since the promulgation of 
the constructive-use provision in 1991. Findings that a project 
constructively uses a Section 4(f)

[[Page 13387]]

property have been appropriately rare, because, by definition, there is 
no physical taking of property in these situations, and because the 
FHWA and FTA support the mitigation of proximity impacts on Section 
4(f) properties to the point that a substantial impairment of the 
protected activities, features or attributes does not often occur.
     Paragraphs 774.15(b), (c), and (d)--A number of comments 
were received on the constructive-use requirements in paragraphs 
774.15(b), (c), and (d), which are separated into distinct paragraphs 
in the final rule, as previously discussed. Each comment proposed an 
alternative re-wording purported to explain more clearly how a 
constructive use should be evaluated or to clarify that a constructive 
use determination is not required for each nearby Section 4(f) 
property. These provisions have been in place since 1991 and we think 
that they are clear and are being applied consistently. Therefore, we 
decided to adopt only one proposed re-wording and that is in paragraph 
774.15(c). The provision was clarified to convey our intent to avoid 
excessive documentation regarding determinations of no constructive 
use, and not to avoid determining whether or not a constructive use 
exists. Paragraph (c) now reads: ``The Administration shall determine 
when there is a constructive use, but the Administration is not 
required to document each determination that a project would not result 
in a constructive use of a nearby Section 4(f) property. However, such 
documentation may be prepared at the discretion of the 
Administration.'' The same commenter also requested a change to require 
``substantial evidence'' as the basis for a constructive use finding. 
We considered the comment but decided not to make the change because it 
would introduce a new term that provides little added value. The 
Administration may decide that a constructive use determination is 
inappropriate if the evidence of substantial impairment is inadequate.
    Another comment expressed concern with the inclusion of the phrase 
``to the extent it reasonably can'' in paragraph 774.15(d), related to 
basing a determination of constructive use on consultation with the 
official(s) with jurisdiction over the Section 4(f) property. The FHWA 
and FTA agree that a determination of constructive use should always be 
based upon the factors identified, so the phrase ``to the extent it 
reasonably can'' was removed from the final rule.
    Two comments expressed an opinion that paragraph 774.15(d)(2) would 
invite a great deal of inappropriate and irrelevant speculation about 
what might or could occur to Section 4(f) properties in the future if a 
project were not built. One suggested that we strike the last sentence, 
which states ``The analysis should also describe and consider the 
impacts which could reasonably be expected if the proposed project were 
not implemented, since such impacts should not be attributed to the 
proposed project.'' We disagree and have decided not to make the 
suggested change. First, the language proposed in the NPRM is not new, 
and we have not proposed any substantive change from current regulation 
or practice. We have no reason to believe, based on our experience with 
Section 4(f) and constructive use, that this consideration, taken 
together with other considerations, is an invitation to ``speculate'' 
about an owner's future plans regarding a Section 4(f) property. To the 
contrary, the provision requires an appropriate and relevant 
consideration that must be grounded in facts. Examples of the basis for 
reasonable expectations of future impacts include, in appropriate 
situations: discussions with the property owner, zoning applications, 
analysis of local development trends, and the existence of conservation 
easements or other legal protections to preserve the protected 
features, activities, and attributes of the property. The consideration 
of reasonably foreseeable non-project impacts is both appropriate and 
relevant to the decision of whether or not the proximity impacts of the 
project will cause a substantial impairment of the protected features, 
activities, or attributes of a Section 4(f) property. Also, including 
this information in the analysis could be beneficial to the resource by 
highlighting reasonably foreseeable impacts not caused by the 
transportation project because it would inform the State or local 
governmental authorities who are the best position to consider 
protective actions that are not within the power of the Administration.
     Paragraph 774.15(e)--Comments were received on the list of 
examples of situations in which a constructive use is presumed to 
occur. One comment asked for definitions of, and a method to measure, 
many phrases in the paragraph such as ``substantially interferes with 
use and enjoyment of a noise-sensitive facility,'' ``substantially 
diminish the utility of the building,'' and ``substantially reduces the 
wildlife use.'' These words are all used with their plain English 
meanings, and they generally describe situations that require judgment 
and are not conducive to standardized quantitative analysis. The 
relevant phrase must be applied to a particular set of facts to provide 
context. For example, one would need to know how a particular noise-
sensitive facility is used by the public and what the layout and design 
of the facility is in order to make a reasonable judgment whether a 
proposed transportation project would ``substantially interfere with 
use and enjoyment'' of that noise-sensitive facility. We did not make 
any changes to the regulation in response to this comment.
    Another comment suggested removing the examples from the regulation 
in favor of including or expanding the examples in the FHWA's ``Section 
4(f) Policy Paper.'' This comment expressed the view that the examples 
have the potential to lead to more frequent findings that proximity 
impacts constitute constructive uses. The FHWA and FTA considered this 
comment but have decided to retain the examples in the Section 4(f) 
regulation, where they have been codified since 1991 and have not 
resulted in the problems envisioned by the commenter. Illustrating the 
concept of constructive use through practical examples has facilitated 
the application of the concept in fact situations not represented in 
the examples.
    Another comment asked for a clarification that the list of examples 
in which a noise impact would be considered a constructive use is not 
an exhaustive list. We agree and restructured the paragraph in the 
final rule to clarify that these are simply illustrative examples of 
constructive use and not an exhaustive list. The reorganization of the 
paragraph also makes the examples easier to follow by separating them 
into subparagraphs.
    Two additional comments specifically focused on the examples of 
constructive use due to noise. One comment suggested that campgrounds 
should not be considered Section 4(f) properties because they are 
essentially multiple use areas. We disagree with this conclusion and 
therefore reject the suggestion. The FHWA and FTA have always 
considered publicly owned campgrounds to be recreational areas covered 
by Section 4(f), and this position is supported by case law. Another 
commenter suggested that an example be added to clarify that the 
provision applies not only to man-made facilities such as campgrounds, 
but also to natural areas where the protection of natural sounds is 
important. We agree that some Section 4(f) properties may include 
natural features emitting sounds that are enjoyed by humans, such as 
the enjoyment of listening to a babbling

[[Page 13388]]

brook. When such features are a significant and officially recognized 
attribute of a park, then the Administration should consider whether 
the noise increase attributable to the highway or transit project would 
substantially diminish the continued enjoyment of the natural feature. 
However, we did not add this example to the regulation because the 
regulation is necessarily applied on a case-by-case basis and there are 
already four examples of a constructive use due to noise increases. 
Another substantially similar example is not desirable, as this narrow 
distinction can be adequately covered in future FHWA and FTA Section 
4(f) guidance.
    Another comment suggested rewording the example in paragraph 
774.15(e)(2) as follows: ``the location of a proposed transportation 
facility in such proximity that it substantially obstructs or 
completely eliminates the primary view * * *'' The FHWA and FTA decided 
not to make the proposed change. In some circumstances a substantial 
impairment could result from a partial obstruction or partial 
elimination of the primary view of a historic building, depending on 
the criteria that makes the property eligible for the National 
Register.
    Another comment on this paragraph referred to the noise abatement 
criteria in FHWA's noise regulation (23 CFR part 772), and expressed 
the opinion that, for certain types of properties there may be more 
appropriate measures of noise and unwanted sounds than those used in 
the noise regulation. The comment suggested that the FHWA and FTA 
consult with the National Park Service office working on 
``Soundscapes'' for further information. This comment and suggestion 
were discussed with FHWA highway noise experts, and the FHWA and FTA 
considered the views of the National Park Service office, as suggested. 
However, we have concluded that the suggestion is beyond the scope of 
this rulemaking because it concerns an entirely separate part of Title 
23, Code of Federal Regulations, which was not proposed for revision in 
the NPRM.
    Another commenter suggested that the noise threshold for 
constructive use should be specified as 57 dBA (Category A, Table 1 in 
23 CFR part 772). We disagree that a single threshold can be specified 
due to the varied purposes and functions of different types of Section 
4(f) property. The appropriate noise abatement criteria will depend on 
the activity category of the particular Section 4(f) property. When a 
Section 4(f) property is determined to be covered under Activity 
Category A in Table 1 of 23 CFR part 772, then the applicable noise 
abatement criteria would include the 57 dBA threshold. Examples of 
Section 4(f) resources covered under Category A are those for which a 
quiet setting is essential to their continued function, such as an 
amphitheater or the gardens of an historic monastery. The vast majority 
of Section 4(f) properties will not fall under Category A. Regardless 
of which Category the Administration deems applicable to the Section 
4(f) property, a constructive use occurs when the relevant noise 
criteria cannot be met, if the resulting noise substantially impairs 
the protected activities, features, and attributes of the Section 4(f) 
property.
    Several comments focused on the example of constructive use due to 
substantial impairment of aesthetic features. One comment asked that 
the final rule clarify that for visual and aesthetic effects to 
constitute a constructive use of an architecturally significant 
historic property, the site would have to derive its value in 
substantial part due to its setting. We did not adopt this comment. 
Historic buildings that are significant due to their architecture, do 
not as a rule, rely upon their setting. The language proposed 
(``[locating] a proposed transportation facility in such proximity that 
it obstructs or eliminates the primary views of an architecturally 
significant historical building'') captures the more important 
criteria--the views of such a building available to the public.
    Another comment suggested adding ``qualifying wild and scenic 
rivers'' to this paragraph. The Wild and Scenic Rivers Act, 16 U.S.C. 
1271-1287, sets forth those rivers in the United States designated as 
part of the Wild and Scenic River System. Within the System there are 
wild, scenic, and recreational designations. In determining whether 
Section 4(f) is applicable to a particular river within the System, one 
must look at the ownership of the river, how the river is designated, 
how the river is being used, and the management plan for the relevant 
portion of the river. Only if the river is publicly owned and is 
designated as a recreational river under the Wild and Scenic Rivers Act 
or is designated in the management plan for the river as serving a 
Section 4(f) purpose would it be considered a Section 4(f) property. A 
single river may be divided into segments that are separately 
classified as wild, scenic, or recreational. Only those segments that 
are classified as serving a purpose protected by Section 4(f), such as 
recreation, would be subject to Section 4(f). The designation of a 
river under the Wild and Scenic Rivers Act does not, by itself, impart 
the protections of Section 4(f). Section 4(f) protections are imparted 
only if the section of the river used by the proposed project fits one 
or more of the categories of properties protected by Section 4(f). For 
example, if a river is included in the System and is designated as 
``wild,'' but is not being used as, or is not designated under a 
management plan as, a park, recreation area, wildlife or waterfowl 
refuge and is not an historic site, then Section 4(f) would not apply. 
In light of these complexities, we believe that simply adding the 
phrase ``qualifying wild and scenic river'' could cause confusion and 
create the potential for the misapplication of Section 4(f). 
Accordingly, the FHWA and FTA decline to adopt the proposed language. 
However, we have clarified the applicability of Section 4(f) to Wild 
and Scenic Rivers by adding paragraph (g) to Section 774.11, which 
states: ``Section 4(f) applies to those portions of federally 
designated Wild and Scenic Rivers that are otherwise eligible as 
historic sites, or that are publicly owned and function as or are 
designated in a management plan as a significant park, recreation area, 
or wildlife and waterfowl refuge. All other applicable requirements of 
the Wild and Scenic Rivers Act must be satisfied, independent of the 
Section 4(f) approval.'' This language is consistent with long standing 
FHWA and FTA policy presented in the FHWA's ``Section 4(f) Policy 
Paper.''
    Several comments were received on the example of a constructive use 
due to vibration impacts. One commenter noted with approval that the 
proposed language apparently only considered the vibration impacts of 
operating a transportation project and not the construction impacts. 
Another commenter had the opposite view, and proposed that construction 
impacts be added to the regulation, along with other edits for clarity. 
We agree that severe construction vibration can substantially impair 
the use of a Section 4(f) property in the same way as severe 
operational vibrations. The final rule clarifies that vibration due to 
construction should be considered, and that vibration should be 
considered for any mode of transportation project to which this rule 
applies. Also in the same sentence, we replaced ``affect the structural 
integrity of'' with the simpler and clearer ``physically damage.'' 
Another comment on this section suggested that repair of damage should 
be mandatory, and that irreparable vibration damage should be 
considered a use. The comment proposed adding at

[[Page 13389]]

the end of the sentence, ``unless the damage is repaired and fully 
restored consistent with the Secretary of the Interior's Standards for 
the Treatment of Historic Properties, i.e., the site must be returned 
to a condition which is at least as good as that which existed prior to 
the project.'' We clarified the intent of this paragraph with language 
similar to what was proposed.
     Paragraph 774.15(f)--Many comments were received on 
paragraph 774.15(f), which provides examples of proximity impacts that 
are not severe enough to constitute a constructive use. Several 
comments asserted that the regulation would be easier to use if this 
list were moved to Section 774.15, Constructive Use, so that all 
examples regarding possible constructive uses are in one place. We 
agree, and moved NPRM paragraph 774.13(e) into paragraph 774.15(f) in 
this final rule. One general comment was that the list should be 
deleted for fear that the Administration will apply the paragraph as if 
it were an inclusive list of all possible proximity impacts that are 
not constructive uses. This fear is unfounded because the language, 
``examples include,'' makes it clear that the list is not all-
inclusive. Another comment asked that the examples indicate the 
requirement that an EA or EIS be prepared. The issue of which NEPA 
document to prepare depends on whether there are significant impacts 
expected and is addressed in 23 CFR Part 771. The issue is outside the 
scope of this regulation. Several comments on this paragraph requested 
clarification that an adverse effect under Section 106 is not 
automatically a Section 4(f) constructive use. We agree with this 
comment. The FHWA ``Section 4(f) Policy Paper,'' Question 3B, explains 
that if a project does not physically take (permanently incorporate) 
historic property but the project causes an adverse effect under 
Section 106, then one should consider whether the proximity impacts of 
the project constitute a constructive use. We did not, however, feel 
that this nuance needed clarification within the regulation itself.
    Several comments suggested modifying or deleting the last sentence 
in paragraph 774.15(f)(4), which disallows the use of a late-
designation exception where a historic property is close to, but less 
than, 50 years of age. In the case of a constructive use, the late-
designation exception says that a constructive use does not occur if a 
property has been acquired for transportation purposes after adequate 
effort to identify Section 4(f) resources or if the project location 
has been established in a final environmental document, and the 
property is subsequently designated as a Section 4(f) property or is 
determined to be significant. One commenter points out that the 
sentence proposed for modification or deletion perpetuates the false 
assumption that properties over 50 years old are automatically eligible 
for the National Register. Another commenter states that the provision 
is confusing because there is no parallel in Section 106, and the 
sentence could be read to effectively extend Section 4(f) protections 
to properties that are not necessarily historically significant under 
Section 106. The FHWA and FTA agree that this sentence could be 
confusing and have modified the sentence in question to clarify that if 
it is reasonably foreseeable that a property would qualify as eligible 
for the National Register prior to the start of construction, then the 
property should be treated as a historic site for the purposes of this 
section.
    One comment suggested that in paragraph 774.15(f)(6) we include 
consultation on the appropriateness of any mitigation proposed for 
proximity impacts in order to ensure that the views of the officials 
with jurisdiction over the Section 4(f) property regarding the 
appropriateness of the mitigation and the resulting condition of the 
Section 4(f) property are considered. We agree, and have made this 
change. The provision now reads: ``Proximity impacts will be mitigated 
to a condition equivalent to, or better than, that which would occur if 
the project were not built, as determined after consultation with the 
official(s) with jurisdiction.''
    Another comment requested that we revise this paragraph so that the 
analysis must include consideration of the condition of the Section 
4(f) resource as it existed prior to construction of the transportation 
project, rather than the condition that would exist if the project were 
not built. We did not make this change because it is more appropriate 
to consider the true future no-action scenario than to invent a highly 
unlikely, hypothetical future in which current conditions are frozen in 
time. This approach is consistent with NEPA practice, in which the 
Administration compares the impacts expected under the future build 
alternatives to the expected future no-action scenario.
    We received one comment on the example of a vibration impact not 
rising to the level of a constructive use of a Section 4(f) property. 
The comment suggested that the regulatory text should contain detailed, 
measurable limits for vibration levels based on guidance issued by FTA 
and guidance issued by the U.S. Bureau of Mines. (The FHWA does not 
have equivalent guidance on vibration.) The impact thresholds for 
vibration are presented in voluminous guidance that provides background 
on the complex science involved in their development and application. 
There are different vibration metrics whose appropriateness in a 
particular situation must be determined by acoustical experts. The 
background information that would be needed would be highly technical, 
voluminous, and difficult to properly present in the regulation. The 
FHWA and FTA does not agree with the notion that a single vibration 
threshold applicable in all situations could be specified in regulation 
and has therefore declined to do so.

Section 774.17 Definitions

    A few comments stated that the definitions should be moved to the 
beginning of the regulation because the beginning is the more common 
location. The NPRM explained that the definitions were placed at the 
end because some of them are lengthy and complex. The final rule 
includes cross-references to the definitions at key points within the 
regulatory text. Therefore, we did not adopt the suggestion to move the 
definitions. Other comments proposed definitions for various words that 
appear only once in this regulation. Where we felt it was appropriate 
to add clarification in those instances, it was done where the term 
appears and not in the definitions section. For example, an explanation 
of ``concurrent planning'' was integrated into paragraph 774.11(i). One 
comment suggested combining the definitions of ``all possible 
planning,'' ``de minimis impact,'' and ``feasible and prudent 
alternative'' in a separate section of the regulation. We did not adopt 
this suggestion because it would not have improved a reader's 
understanding of these terms.
    One commenter felt that including a definition of ``transportation 
facility'' would obviate the need for the exception for transportation 
enhancement activities. The idea likely behind this is that, with most 
transportation enhancement projects, there is no use of the Section 
4(f) property by a transportation facility. The FHWA and FTA decided 
not to follow this suggestion because an explicit exception for 
transportation enhancement activities is more definitive and covers a 
broader range of possible transportation enhancement activities.
    Many comments proposed additional definitions of various terms. 
These proposals were all carefully considered,

[[Page 13390]]

but in most cases were not adopted. Many of the proposed definitions 
are dependent on the context in which they are applied, and therefore 
do not lend themselves easily to definition. In other cases, the 
meaning of the term is obvious or the proposed definition is beyond the 
scope of this rulemaking. For example, we declined to include the 
definition for the NEPA term ``significant impact on the environment,'' 
which is addressed in the NEPA regulations of the Council on 
Environmental Quality (CEQ). One comment recommended the addition of 
definitions for all of the following words and phrases: ``Relative 
value,'' ``matter of sound engineering judgment,'' ``unreasonable to 
proceed,'' ``severe safety or operation problems,'' ``reasonable 
mitigation,'' ``severe social, economic, or environmental impacts,'' 
``severe disruption to established communities,'' ``severe 
disproportionate impacts to minority or low income populations,'' 
``severe impacts to environmental resources protected under other 
Federal statutes,'' ``operational cost of an extraordinary magnitude,'' 
``unique problems,'' and ``cumulatively cause unique problems or 
impacts of extraordinary magnitude.'' The FHWA and FTA decided that 
including definitions for these terms in this final rule was 
inappropriate or unnecessary as the terms are used in their plain 
English meaning and likely involve judgments that depend on the context 
of the specific project, location, and Section 4(f) property.
    Comments on specific definitions within Section 774.17 are 
discussed in order below.

     ``Administration''--One comment noted that SAFETEA-LU 
amended Sections 325, 326, and 327 of Title 23, United States Code to 
allow the FHWA (and in the case of Section 326, the FTA also) to assign 
certain specified environmental responsibilities to a State through a 
written memorandum of understanding (MOU) or agreement. Section 4(f) is 
one of the assignable responsibilities. When the FHWA or FTA enters 
into such MOU or agreement, the State will act in lieu of the FHWA or 
FTA for those responsibilities that are specified in this regulation as 
Administration responsibilities and that have been assigned to the 
State through the MOU or agreement. Therefore, the definition of 
``Administration'' was extended to include a State that has been 
assigned responsibility for certain environmental requirements in 
accordance with 23 U.S.C. 325, 326, or 327, or other applicable law, to 
the extent that the required agreement between the State and FHWA or 
FTA allows the State to act in place of the FHWA or FTA on Section 4(f) 
matters.
     ``All Possible Planning''--The NPRM proposed a definition 
of the statutory phrase ``all possible planning'' to minimize harm when 
a transportation project uses Section 4(f) property. A number of 
comments were received proposing various revisions to the regulatory 
language addressing ``all possible planning'' in the context of de 
minimis impact determinations. One commenter objected to the use of the 
word ``obviates'' because, in the commenter's opinion, it would imply 
that the Administration is not required to reduce impacts to the 
minimum level possible in the approval of a de minimis impact 
determination. Another commenter expressed a concern that paragraph (5) 
of this definition would relieve the Administration from any 
``independent obligation'' to comply with the ``all possible planning 
to minimize harm'' requirement of Section 4(f) when the Administration 
makes a de minimis impact determination. According to this comment, the 
proposed regulatory text is inconsistent with SAFETEA-LU section 6009 
which ``explicitly retained'' the ``all possible planning'' requirement 
with respect to projects with de minimis impact on non-historic Section 
4(f) properties. Other comments suggested replacing the phrase 
``subsumes and obviates'' with ``eliminates'' or ``is presumed to 
satisfy'' the requirement for all possible planning to minimize harm, 
in order to convey more clearly the idea that if a de minimis impact 
determination is made, then no separate minimization-of-harm finding is 
required.
    The FHWA and FTA carefully considered these objections and 
alternative language proposals and has deleted the word ``obviates,'' 
and has retained the word ``subsumes'' in response. The intent of the 
provision is not to eliminate the Administration's obligation to 
minimize harm to affected Section 4(f) properties, but rather to 
explain that, in a de minimis impact situation, the effort to reduce 
the impacts to de minimis levels and ``all possible planning'' to 
minimize harm are folded together into a single step. In other words, 
when a de minimis impact determination is approved, either the project 
already includes measure(s) to minimize harm to which the applicant is 
committed or the project will have such minor impacts on the Section 
4(f) property that the harm to it is negligible without additional 
measures. The FHWA and FTA believe that the word ``subsumes'' 
articulates this intended meaning better than ``presumed to satisfy.''
    Lastly, in the FHWA and FTA's view, paragraph (5) as revised is 
entirely consistent with the de minimis impact provision in SAFETEA-LU 
section 6009. Contrary to the commenter's interpretation, 49 U.S.C. 
303(d)(1)(B), as amended by SAFETEA-LU, does not impose on the 
Administration an ``independent obligation'' to comply with the 
minimization of harm requirement of Section 4(f). Rather, the purpose 
of the provision is to ensure that the applicant anticipating a de 
minimis impact determination conducts ``all possible planning'' to 
minimize harm when developing and committing to ``any avoidance, 
minimization, mitigation, or enhancement measures'' necessary to reduce 
impacts to de minimis levels. Furthermore, paragraph (5) of this 
definition must be read in conjunction with paragraph 774.3(a)(2) which 
precisely tracks the statutory language regarding the inclusion of 
measures to minimize harm, and the definition of ``De Minimis Impact'' 
in Section 774.17, which is an impact that ``will not adversely affect 
the features, attributes, or activities qualifying the property for 
protection under Section 4(f).''
     ``Applicant''--One comment was received on the definition 
of applicant. The comment notes that while the definition provides for 
the applicant to work with the Administration to conduct environmental 
studies and prepare environmental documents, the definition does not 
provide for the applicant to help prepare decision documents and 
determinations. While an applicant may in some cases be asked to help 
prepare decision documents and determinations, the definition was not 
changed because the applicant does not always do so. In any case, all 
decisions and determinations required under Section 4(f) are ultimately 
the responsibility of the Administration, unless the applicant is a 
State that has been specifically assigned Section 4(f) authority under 
the aforementioned statutes providing for such assignment.
     ``CE''--The proposed rule included definitions for the 
NEPA terms ``EIS'' and ``EA,'' including cross-references to the FHWA 
and FTA's NEPA regulations. A definition and cross-reference for the 
NEPA term ``CE'' was added for consistency. The definition states: 
``CE. Refers to a Categorical Exclusion, which denotes an action with 
no individual or cumulative significant environmental effect pursuant 
to 40 CFR Sec.  1508.4 and Sec.  771.117 of this title.'' When deciding 
whether to issue a CE from NEPA under

[[Page 13391]]

the FHWA and FTA NEPA regulations, FHWA and FTA take into account 
whether there are unusual circumstances.
     ``De Minimis Impact''--Several comments asked that the 
proposed definition of de minimis impact be expanded not only to 
describe what a de minimis impact is, but also to prescribe the process 
for making a de minimis impact determination. The FHWA and FTA have 
considered these comments and decided that the definition of de minimis 
impact will not include the procedures for making de minimis impact 
determinations because the regulation describes the process and 
documentation in paragraphs 774.5(b) and 774.7(b), which are the more 
appropriate locations.
    One comment requested that the definition address the transfer of 
lands in which there are Federal encumbrances under other statutes. The 
FHWA and FTA did not make this change because it is an issue unrelated 
to the definition and is addressed in paragraph 774.5(d). In addition, 
the joint FHWA/FTA ``Guidance for Determining De Minimis Impacts to 
Section 4(f) Resources,'' December 13, 2005, explains that Section 4(f) 
lands with other Federal encumbrances must address and comply with the 
requirements of the laws associated with those encumbrances.
    One comment recommended the elimination of de minimis impact 
determinations from the final rule. The FHWA and FTA retained the 
option to grant Section 4(f) approvals via a de minimis impact 
determination because Congress amended Section 4(f) in 2005 to allow de 
minimis impact determinations. (SAFETEA-LU, Pub. L. 109-59, sec. 
6009(a), 119 Stat. 1144 (2005)).
    One comment recommended a change to the proposed language that 
would allow a temporary adverse effect to be treated as a de minimis 
impact. The FHWA and FTA decided not to include this change because 
temporary occupancy of Section 4(f) property is already dealt with 
under paragraph 774.13(d). The final rule provides the flexibility to 
appropriately address temporary adverse impacts, which may or may not 
be de minimis.
    Several comments recommended changes to the definition of a de 
minimis impact for historic sites. One comment stated that the proposed 
definition of de minimis impact for historic sites did not adequately 
emphasize that the determination of ``no adverse effect'' or ``no 
historic property affected'' must be made in accordance with the 
requirements of the Section 106 regulation, including consultation. The 
FHWA and FTA agree and have reworded the definition to emphasize that 
the Administration must determine, in accordance with the Section 106 
regulation, that there is no adverse effect or that no historic 
property is affected. Another comment recommended language that would 
allow adverse effects to contributing elements of a historic district 
to be considered a de minimis impact if the historic district, as a 
whole, is not adversely affected. The FHWA and FTA did not adopt this 
suggestion because Section 106 policy and regulations define how 
adverse effects to historic districts are to be considered.
     ``EA''--One comment recommended deleting this definition 
from the regulation because it is defined in the CEQ's NEPA 
regulations. The proposed definition is consistent with the CEQ NEPA 
regulations and is necessary to provide consistency between the FHWA 
and FTA's Section 4(f) and NEPA regulations.
     ``EIS''--One comment recommended deleting this definition 
from the regulation because it is defined in the CEQ's NEPA 
regulations. The proposed definition is consistent with NEPA and the 
CEQ NEPA regulations and is necessary to provide consistency between 
the FHWA and FTA's Section 4(f) and NEPA regulations. Another comment 
asked that this definition define the phrase ``significant impacts on 
the environment.'' The concept of significant impacts is addressed by 
CEQ in its NEPA regulations and by various Federal courts in caselaw, 
and its definition is outside the scope of this rulemaking. The 
definition of EIS cross-references the NEPA regulations.
     ``Feasible and Prudent Avoidance Alternative''--This 
definition was the primary impetus for this rulemaking. In section 
6009(b) of SAFETEA-LU, Congress directed the U.S. DOT to ``promulgate 
regulations that clarify the factors to be considered and the standards 
to be applied in determining the prudence and feasibility of 
alternatives'' to using Section 4(f) properties for transportation 
projects. Because these are fact-specific determinations, the NPRM 
proposed a definition that requires consideration of the totality of 
the circumstances and the relative significance of the Section 4(f) 
property. The definition proposed six factors that could support a 
determination that there is ``no feasible and prudent avoidance 
alternative.'' A seventh factor is the accumulation of the other 
factors, and whether in combination the overall impact is severe.
    This definition was the subject of the most comments of any 
proposed section of the NPRM. The views expressed varied drastically, 
and a wide variety of revisions were proposed. In general, comments 
opposed to the proposed definition feared that it was not stringent 
enough to protect Section 4(f) properties because it involves a 
balancing test. The definition provided in this final rule addresses 
this concern by adding the word ``substantially'' to clarify that the 
balancing test is weighted in favor of avoiding the use of Section 4(f) 
properties: ``A feasible and prudent avoidance alternative avoids using 
Section 4(f) property and does not cause other severe problems of a 
magnitude that substantially outweighs the importance of protecting the 
Section 4(f) property.'' Another general concern was that the U.S. 
Supreme Court rejected any type of balancing test in Overton Park. 
After careful consideration, the FHWA and FTA do not agree with this 
view. In Overton Park, the Court instructed that cost, directness of 
route, and community disruption should not be considered ``on an equal 
footing with the preservation of parkland.'' 401 U.S. 402 at 412. The 
NPRM proposed to define a feasible and prudent avoidance alternative as 
one that ``avoids using Section 4(f) property and does not cause other 
severe problems of a magnitude that outweighs the importance of 
protecting the Section 4(f) property. In assessing the importance of 
protecting the Section 4(f) property, it is appropriate to consider the 
relative value of the resource to the preservation goals of the 
statute.'' This definition is consistent with the decision in Overton 
Park because it requires the Administration to take into consideration 
the importance of protecting the Section 4(f) property. Avoiding the 
Section 4(f) property is not on equal footing with other concerns but, 
as the NPRM noted, the consideration of avoidance alternatives must 
begin with a ``thumb on the scale'' on the side of avoiding the Section 
4(f) property. 71 FR 42611, 42613 (2006). Therefore, the definition in 
this final rule is unchanged from that proposed in the NPRM except for 
the aforementioned addition of ``substantial'' and a change in 
reference to ``preservation goals'' to refer to the ``preservation 
purpose'' in order to emphasize that the statute itself in 49 U.S.C. 
303(a) establishes as its purpose ``that special effort should be made 
to preserve the natural beauty of the countryside and public parks and

[[Page 13392]]

recreation lands, wildlife and waterfowl refuges, and historic sites.''
    More specific comments and changes are addressed below. One comment 
opposed the requirement that balancing be performed with a ``thumb on 
the scale'' in favor of the Section 4(f) property. This comment also 
opposed the requirement that problems with an avoidance alternative be 
severe and not easily mitigated before that alternative may be rejected 
as one that is not prudent and feasible. The requirement that balancing 
be done with a thumb on the scale is at the very heart of Overton Park, 
the only U.S. Supreme Court case interpreting the application of 
Section 4(f) at this time. Further, in the conference report 
accompanying SAFETEA-LU, Congress made clear that the U.S. DOT must set 
forth factors to be considered and the standards to be applied when 
determining whether an avoidance alternative is prudent and feasible, 
and that the factors must adhere to the legal standard set forth in 
Overton Park. H.R. Rep. No. 109-203, at 1057-58 (Conf. Rep.).
    The precise term that the NPRM proposed to define was ``feasible 
and prudent alternative.'' In this final rule, the defined term was 
changed to ``feasible and prudent avoidance alternative.'' This change 
was necessary to clarify that Section 4(f) directs the Administration 
to search for alternatives that avoid using Section 4(f) property. One 
comment had suggested that we clarify within the definition of 
``feasible and prudent alternative'' that the feasible and prudent 
standard applies to all project alternatives, not only avoidance 
alternatives. Based on this and other comments we took a close look at 
the definition and the way in which the term ``feasible and prudent 
alternative'' was used throughout the NPRM. We found that there were 
instances in which the use of the term was inconsistent with the 
definition. This has been corrected throughout the final rule and the 
definition has been clarified as ``feasible and prudent avoidance 
alternatives,'' as previously discussed. In responding to the comment, 
we point out that Section 4(f) itself speaks of a ``feasible and 
prudent alternative to using that land'', i.e., a feasible and prudent 
avoidance alternative. (49 U.S.C. 303(c)(1)). As a result, the concept 
of a feasible and prudent alternative is closely associated with the 
avoidance of Section 4(f) use.
    Several comments suggested that the words ``feasible'' and 
``prudent'' be split and defined separately in the final rule because 
the U.S. Supreme Court had discussed each term separately in Overton 
Park. Therefore, each word has ``a separate and distinct meaning,'' 
which could become confused by combining them into ``a single 
concept.'' The FHWA and FTA agree that the comment has merit, and have 
modified the definition to expand upon the meaning of each specific 
word in a separate paragraph within the definition of ``feasible and 
prudent avoidance alternative.'' The two terms were not completely 
separated into distinct definitions because ``feasible'' and 
``prudent'' are two factors that, when combined, constitute a single 
test. In other words, the key is not whether a particular avoidance 
alternative is feasible or prudent, but rather whether it is feasible 
and prudent. That being the case, the agencies believe the regulation 
should reflect this important link between the terms.
    Several comments opposed designating ``severe impacts to 
environmental resources protected under other Federal statutes'' as a 
factor in determining prudence. One favored changing the language to 
require another Federal agency to formally deny a permit under another 
Federal law before this factor could be considered in rejecting an 
avoidance alternative. This change was not adopted because there is no 
indication that Congress intended the Administration to elevate Section 
4(f) protection above all other environmental concerns. The FHWA and 
FTA believe that the factor proposed is a relevant concern for 
determining the prudence of an avoidance alternative and that the 
language proposed is adequate. Requiring an applicant to submit permit 
applications and obtain a formal denial when a regulatory agency has 
indicated its objections to an avoidance alternative would create 
additional process and delay that do not necessarily equate to better 
project development. In addition, there is substantial caselaw 
supporting the consideration of other environmental concerns.
    One comment expressed concern that designating ``additional 
construction, maintenance, or operational costs of an extraordinary 
magnitude'' as a factor in determining prudence does not clarify the 
issue of how much money should be spent to avoid the use of Section 
4(f) property. Other comments questioned the requirement that such 
costs be ``of extraordinary magnitude.'' We understand that deciding 
what amount constitutes a reasonable public expenditure for avoiding 
the use of a Section 4(f) property may not be simple. Nevertheless, it 
is not appropriate to set a single dollar amount or even a percentage 
of total project cost as the threshold. The decision must take into 
account multiple factors including the type, function, and significance 
of the Section 4(f) property. Having multiple factors to weigh, of 
which cost is but one, should simplify the decision about the prudence 
of an avoidance alternative. If increased cost alone is the only 
downside to an avoidance alternative, the preservation purpose of 
Section 4(f) requires that the increased cost reach an extraordinary 
magnitude before it would outweigh the protection of Section 4(f) 
property. Merely a ``substantial cost increase'' is not enough.
    One commenter recommended the deletion of the first two sentences 
of the definition of ``feasible and prudent avoidance alternative'' 
because the commenter felt that measuring the relative value of a 
Section 4(f) resource would be difficult and that the language is not 
consistent with paragraph 774.3(a). The FHWA and FTA decided not to 
delete these sentences because the regulation does not require the 
measurement of the relative value. Rather, it states that it is 
appropriate to consider the relative value of the Section 4(f) 
resource. Also, the FHWA and FTA do not agree that this definition is 
inconsistent with paragraph 774.3(a) and are following an explicit 
directive of Congress in providing a definition that elaborates on the 
meaning of that paragraph.
    One comment advocated that a feasible-and-prudent determination 
should be based only upon whether the alternative causes an 
extraordinary level of disruption rather than balancing the relative 
value of the resource and the preservation purpose of the statute 
against the drawbacks of the avoidance alternative. The FHWA and FTA 
decided not to change the definition in response to this comment 
because we continue to believe that it is appropriate to consider the 
relative value of the Section 4(f) resource and other resources 
affected by an avoidance alternative in assessing the importance of 
protecting the Section 4(f) property.
    Many comments questioned the proposed provision allowing the 
accumulation of multiple drawbacks to be considered cumulatively when 
assessing the prudence of an avoidance alternative. The FHWA and FTA 
decided to keep this provision because a substantial body of caselaw 
supports this approach, and because it allows for prudent 
transportation decisions that consider the totality of the 
circumstances surrounding each alternative. In some instances, such as 
where the Section 4(f) property is of relatively low significance, a 
series of

[[Page 13393]]

drawbacks associated with an avoidance alternative may cumulatively be 
so severe that it would not be prudent to reject the alternative using 
the low-quality Section 4(f) property.
    Several comments expressed concern with the use of the word 
``severe'' in the proposed definition for various reasons, while others 
supported this terminology. The FHWA and FTA proposed the term 
``severe'' as a way to encompass in simpler language, while still 
providing stringent protection for Section 4(f) properties, the more 
complex and often confusing language used in Overton Park--i.e., 
``unique problems or unusual factors'' and ``extraordinary magnitude.'' 
There is case law support for the idea that the Supreme Court did not 
literally intend that those precise terms must be used. We have 
reviewed each instance, including the context, where the term 
``severe'' was used in this definition, and decided to retain the term 
except in NPRM factor 3 (factor 2 in this final rule) which now states: 
``It results in unacceptable safety or operational problems.'' In this 
factor, the term ``severe'' was replaced with ``unacceptable'' to 
better reflect the Administration's knowledge of accepted standards and 
practices for designing safe and functional transportation projects. In 
the other instances, ``severe'' was retained for the reasons stated 
above.
    One comment was concerned that factors i, ii, and vi in the NPRM's 
definition of ``feasible and prudent'' are subjective and unnecessary, 
and that they may be adequately represented in the other factors. This 
commenter suggested that these three factors be deleted or that 
guidance be issued as to how they will be applied and by whom. The 
factors will be applied by the Administration in a manner consistent 
with this final rule. Additional guidance will be issued in the future 
if necessary. The first of these factors, whether an alternative can 
``be built as a matter of sound engineering judgment,'' defines when an 
alternative is feasible. This language was first used by the U.S. 
Supreme Court in Overton Park to explain the meaning of ``feasible,'' 
and was subsequently adopted verbatim by every U.S. Circuit Court that 
has considered the issue. The FHWA and FTA will leave this factor in 
the regulatory language because the conference report for SAFETEA-LU 
states that DOT must adhere to the legal standard set forth in Overton 
Park and this factor was so clearly articulated. Clarifying language 
was added to the final rule that makes clear the factor defines whether 
an avoidance alternative is ``feasible''. See H.R. Rep. No. 109-203, at 
1057-58 (Conf. Rep.).
    The second factor of concern to this commenter, whether a project 
can go forward in a way that meets its purpose and need, is at the 
heart of why the project is being built. For example, if a primary 
purpose of the project is to rectify a safety concern, it would not be 
prudent to choose an avoidance alternative that fails to address the 
safety issue. The FHWA and FTA will keep this factor because of its 
importance to meeting the transportation mission of the FHWA and FTA 
and the clear support in caselaw for eliminating alternatives that do 
not meet the transportation needs that the project is designed to 
fulfill. See, e.g., City of Alexandria v. Slater, 198 F.3d 862 (D.C. 
Cir. 1999).
    The final factor of concern to this commenter, whether an avoidance 
alternative causes ``unique problems or unusual factors,'' was included 
to ensure that the standard in the regulation is consistent with that 
set forth by the U.S. Supreme Court in Overton Park, which suggested 
that avoidance alternatives that ``involve unique problems'' could 
properly be rejected as not prudent.
     ``FONSI''--No comments were received on the proposed 
definition of ``FONSI'' and it is unchanged in this final rule.
     ``Historic Site''--One comment noted that the NPRM seemed 
to use the terms ``historic site'' and ``historic property'' 
interchangeably and suggested that only one be used and that a 
definition would be helpful. This final rule consistently uses the 
statutory term ``historic site'' and a definition of ``historic site'' 
was added to distinguish the term as it is used under Section 4(f) from 
its use under other statutes. The definition added is consistent with 
current FHWA and FTA policy and the National Historic Preservation Act. 
The definition states: ``Historic Site. For purposes of this part, the 
term ``historic site'' includes any prehistoric or historic district, 
site, building, structure, or object included in, or eligible for 
inclusion in, the National Register. The term includes properties of 
traditional religious and cultural importance to an Indian tribe or 
Native Hawaiian organization that are included in, or are eligible for 
inclusion in, the National Register.''
     Official(s) with Jurisdiction--One comment stated that the 
rule fails to provide clear guidance on the instances in which 
coordination with, or concurrence of, the officials with jurisdiction 
is required. The final rule requires coordination with the official(s) 
with jurisdiction at the following points:
    (1) Prior to making Section 4(f) approvals under paragraphs 
774.3(a) and 774.5(a);
    (2) When determining the least overall harm under paragraph 
774.3(c);
    (3) When applying certain programmatic Section 4(f) evaluations 
under paragraph 774.5(c);
    (4) When applying Section 4(f) to properties subject to Federal 
encumbrances under paragraph 774.5(d);
    (5) When applying Section 4(f) to archeological sites discovered 
during construction under paragraph 774.9(e);
    (6) When determining if a Section 4(f) property is significant 
under paragraph 774.11(c);
    (7) When determining the application of Section 4(f) to multiple 
use properties under paragraph 774.11(d);
    (8) When determining the applicability of Section 4(f) to historic 
sites under paragraph 774.11(e);
    (9) When determining if there is a constructive use under paragraph 
774.15(d);
    (10) When determining if proximity impacts will be mitigated to a 
condition equivalent to, or better than, that which would occur if the 
project were not built under paragraph 774.15(f)(6); and
    (11) When evaluating the reasonableness of measure to minimize harm 
under paragraph 774.3(a)(2) and Section 774.17.
    The final rule published today requires the concurrence of the 
official(s) with jurisdiction at the following points:
    (1) When finding that there are no adverse effects prior to making 
de minimis impact determinations under paragraph 774.5(b);
    (2) When applying the exception for restoration, rehabilitation, or 
maintenance of historic transportation facilities under paragraph 
774.13(a);
    (3) When applying the exception for archeological sites of minimal 
value for preservation in place under paragraph 774.13(b);
    (4) When applying the exception for temporary occupancies under 
paragraph 774.13(d); and
    (5) When applying the exception for transportation enhancement 
projects and mitigation activities under paragraph 774.13(g).
    The FHWA and FTA gave careful consideration to the statutory 
language in determining the appropriate role of other agencies within 
the procedures for granting Section 4(f) approvals. The statute 
requires consultation with the U.S. Departments of Agriculture, Housing 
and Urban Development, and

[[Page 13394]]

the Interior, but the ultimate responsibility for approving, or not 
approving, the use of Section 4(f) property is entrusted to the 
Administration. Although no other coordination is expressly required by 
the statute, the FHWA and FTA have decided to require consultation or 
concurrence at the points listed above with all officials with 
jurisdiction over the impacted properties in order to ensure that 
Section 4(f) approvals are granted only after careful consideration of 
all relevant facts.
    One comment questioned the role that designated Tribal Historic 
Preservation Officers (THPOs) have in the Section 4(f) process. A THPO 
has jurisdiction over historic sites located on tribal land and is 
therefore an official with jurisdiction over such historic sites. When 
a project affects a historic site on tribal land, a recognized THPO 
would be acting in place of the SHPO, not in addition to the SHPO. 
However, if in this case the tribe in question has no officially 
recognized THPO, then the SHPO would be an official with jurisdiction 
in addition to a representative of the tribal government.
    Applicants should be mindful of the interest that many tribes hold 
in properties of religious and cultural significance off tribal lands. 
Although the final rule does not designate the THPO as an official with 
jurisdiction over historic properties located off tribal lands, all 
interested tribes should be identified and consulted under the National 
Historic Preservation Act. The National Historic Preservation Act calls 
for the agency official to acknowledge the special expertise of tribes 
in assessing the National Register eligibility of historic properties 
that may possess religious and cultural significance to the tribe.
    One comment noted that the definition of ``official(s) with 
jurisdiction'' is unclear in the case of federally designated Wild and 
Scenic Rivers. Suggested language was provided. We agree that this 
point should be clarified, and have added a Paragraph (c) to the 
definition of ``Official(s) with Jurisdiction'' that states: ``In the 
case of portions of Wild and Scenic Rivers to which Section 4(f) 
applies, the official(s) with jurisdiction are the official(s) of the 
Federal agency or agencies that own or administer the affected portion 
of the river corridor in question. For State administered, federally 
designated rivers [Section 2(a)(ii) of the Wild and Scenic Rivers Act, 
16 U.S.C. 1273(a)(ii)], the officials with jurisdiction include both 
the State agency designated by the respective Governor and the 
Secretary of the Interior.'' Paragraph 774.11(g) explains how Section 
4(f) applies to designated Wild and Scenic Rivers, and portions 
thereof.
     `` ROD''--No comments were received on this definition and 
it is unchanged in this final rule.
     `` Section 4(f) Evaluation''--A definition was added for 
this term to clarify that a Section 4(f) Evaluation is the 
documentation prepared to evidence the consideration of feasible and 
prudent avoidance alternatives when the impacts to a Section 4(f) 
property resulting from its use are not de minimis. The documentation 
may be a stand-alone document or part of a NEPA document, and it may 
rely upon information contained in technical studies.
     ``Section 4(f) Property''--A definition was added that 
incorporates the statutory language.
     ``Use''--One comment recommended that the definition of 
``use'' be changed to clarify that a permanent use occurs when land is 
acquired for permanent incorporation into a transportation facility. 
The FHWA and FTA believe the proposed definition, which has been a part 
of the Section 4(f) regulations for many years, is clear as written and 
has not been the subject of controversy or confusion in the past. 
Therefore, the FHWA and FTA decline to make the suggested change.

Rulemaking Analyses and Notices

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

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

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 60l-612) the agencies have evaluated the effects of this rule 
on small entities and have determined that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule does not include any new regulatory burdens that will affect 
small entities. For this reason, the FHWA and the FTA certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). This rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $128.1 million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism)

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

Executive Order 12372 (Intergovernmental Review)

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

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. The FHWA and the FTA 
have determined that this rule does not contain new collection of

[[Page 13395]]

information requirements for the purposes of the PRA.

National Environmental Policy Act

    This rule will not have any effect on the quality of the 
environment under the National Environmental Policy Act of 1969 (42 
U.S.C. 4321) and is categorically excluded under 23 CFR 771.117(c)(20). 
The rule is intended to lessen adverse environmental impacts by 
standardizing and clarifying compliance for Section 4(f), including the 
incorporation of clear direction to take into account the overall harm 
of each alternative.

Executive Order 12630 (Taking of Private Property)

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

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

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

Executive Order 13175 (Tribal Consultation)

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

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use, dated May 18, 2001. We have determined that this 
rule is not a significant energy action because, although it is a 
significant regulatory action under Executive Order 12866, the rule is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects is not required.

Privacy Act

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

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RINs contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects

23 CFR Part 771

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

23 CFR Part 774

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

49 CFR Part 622

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

    Issued on: March 4, 2008.
James D. Ray,
Federal Highway Administrator, Acting Administrator.
James S. Simpson,
Federal Transit Administrator.

0
For the reasons set forth in the preamble, and under the authority of 
23 U.S.C. 103(c), 109, 138, and 49 U.S.C. 303, and the delegations of 
authority at 49 CFR 1.48(b) and 1.51, the FHWA and FTA hereby amend 
Chapter I of Title 23 and Chapter VI of Title 49, Code of Federal 
Regulations, as set forth below:



Title 23--Highways

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
1. The authority citation for part 771 continues to read as follows:

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


0
2. Revise Sec.  771.127(a) to read as follows:


Sec.  771.127  Record of decision.

    (a) The Administration will complete and sign a record of decision 
(ROD) no sooner than 30 days after publication of the final EIS notice 
in the Federal Register or 90 days after publication of a notice for 
the draft EIS, whichever is later. The ROD will present the basis for 
the decision as specified in 40 CFR 1505.2, summarize any mitigation 
measures that will be incorporated in the project and document any 
required Section 4(f) approval in accordance with part 774 of this 
chapter. Until any required ROD has been signed, no further approvals 
may be given except for administrative activities taken to secure 
further project funding and other activities consistent with 40 CFR 
1506.1.
* * * * *


Sec.  771.135  [Removed]

0
3. Remove Sec.  771.135.

0
4. Add part 774 to read as follows:

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

Sec.
774.1 Purpose.
774.3 Section 4(f) approvals.

[[Page 13396]]

774.5 Coordination.
774.7 Documentation.
774.9 Timing.
774.11 Applicability.
774.13 Exceptions.
774.15 Constructive use determinations.
774.17 Definitions.

    Authority: 23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and 
204(h)(2); 49 U.S.C. 303; Section 6009 of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.48 and 
1.51.


Sec.  774.1  Purpose.

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


Sec.  774.3  Section 4(f) approvals.

    The Administration may not approve the use, as defined in Sec.  
774.17, of Section 4(f) property unless a determination is made under 
paragraph (a) or (b) of this section.
    (a) The Administration determines that:
    (1) There is no feasible and prudent avoidance alternative, as 
defined in Sec.  774.17, to the use of land from the property; and
    (2) The action includes all possible planning, as defined in Sec.  
774.17, to minimize harm to the property resulting from such use; or
    (b) The Administration determines that the use of the property, 
including any measure(s) to minimize harm (such as any avoidance, 
minimization, mitigation, or enhancement measures) committed to by the 
applicant, will have a de minimis impact, as defined in Sec.  774.17, 
on the property.
    (c) If the analysis in paragraph (a)(1) of this section concludes 
that there is no feasible and prudent avoidance alternative, then the 
Administration may approve only the alternative that:
    (1) Causes the least overall harm in light of the statute's 
preservation purpose. The least overall harm is determined by balancing 
the following factors:
    (i) The ability to mitigate adverse impacts to each Section 4(f) 
property (including any measures that result in benefits to the 
property);
    (ii) The relative severity of the remaining harm, after mitigation, 
to the protected activities, attributes, or features that qualify each 
Section 4(f) property for protection;
    (iii) The relative significance of each Section 4(f) property;
    (iv) The views of the official(s) with jurisdiction over each 
Section 4(f) property;
    (v) The degree to which each alternative meets the purpose and need 
for the project;
    (vi) After reasonable mitigation, the magnitude of any adverse 
impacts to resources not protected by Section 4(f); and
    (vii) Substantial differences in costs among the alternatives.
    (2) The alternative selected must include all possible planning, as 
defined in Sec.  774.17, to minimize harm to Section 4(f) property.
    (d) Programmatic Section 4(f) evaluations are a time-saving 
procedural alternative to preparing individual Section 4(f) evaluations 
under paragraph (a) of this section for certain minor uses of Section 
4(f) property. Programmatic Section 4(f) evaluations are developed by 
the Administration based on experience with a specific set of 
conditions that includes project type, degree of use and impact, and 
evaluation of avoidance alternatives.\1\ An approved programmatic 
Section 4(f) evaluation may be relied upon to cover a particular 
project only if the specific conditions in the programmatic evaluation 
are met
---------------------------------------------------------------------------

    \1\ FHWA has issued five programmatic Section 4(f) evaluations: 
(1) Final Nationwide Programmatic Section 4(f) Evaluation and 
Determination for Federal-Aid Transportation Projects That Have a 
Net Benefit to a Section 4(f) Property; (2) Nationwide Section 4(f) 
Evaluations and Approvals for Federally-Aided Highway Projects With 
Minor Involvement With Public Parks, Recreation Lands, Wildlife and 
Waterfowl Refuges, and Historic Sites; (3) Final Nationwide Section 
4(f) Evaluation and Approval for Federally-Aided Highway Projects 
With Minor Involvements With Historic Sites; (4) Historic Bridges; 
Programmatic Section 4(f) Evaluation and Approval; and (5) Section 
4(f) Statement and Determination for Independent Bikeway or Walkway 
Construction Projects.
---------------------------------------------------------------------------

    (1) The determination whether a programmatic Section 4(f) 
evaluation applies to the use of a specific Section 4(f) property shall 
be documented as specified in the applicable programmatic Section 4(f) 
evaluation.
    (2) The Administration may develop additional programmatic Section 
4(f) evaluations. Proposed new or revised programmatic Section 4(f) 
evaluations will be coordinated with the Department of Interior, 
Department of Agriculture, and Department of Housing and Urban 
Development, and published in the Federal Register for comment prior to 
being finalized. New or revised programmatic Section 4(f) evaluations 
shall be reviewed for legal sufficiency and approved by the 
Headquarters Office of the Administration.
    (e) The coordination requirements in Sec.  774.5 must be completed 
before the Administration may make Section 4(f) approvals under this 
section. Requirements for the documentation and timing of Section 4(f) 
approvals are located in Sec. Sec.  774.7 and 774.9, respectively.


Sec.  774.5  Coordination.

    (a) Prior to making Section 4(f) approvals under Sec.  774.3(a), 
the Section 4(f) evaluation shall be provided for coordination and 
comment to the official(s) with jurisdiction over the Section 4(f) 
resource and to the Department of the Interior, and as appropriate to 
the Department of Agriculture and the Department of Housing and Urban 
Development. The Administration shall provide a minimum of 45 days for 
receipt of comments. If comments are not received within 15 days after 
the comment deadline, the Administration may assume a lack of objection 
and proceed with the action.
    (b) Prior to making de minimis impact determinations under Sec.  
774.3(b), the following coordination shall be undertaken:
    (1) For historic properties:
    (i) The consulting parties identified in accordance with 36 CFR 
part 800 must be consulted; and
    (ii) The Administration must receive written concurrence from the 
pertinent State Historic Preservation Officer (SHPO) or Tribal Historic 
Preservation Officer (THPO), and from the Advisory Council on Historic 
Preservation (ACHP) if participating in the consultation process, in a 
finding of ``no adverse effect'' or ``no historic properties affected'' 
in accordance with 36 CFR part 800. The Administration shall inform 
these officials of its intent to make a de minimis impact determination 
based on their concurrence in the finding of ``no adverse effect'' or 
``no historic properties affected.''
    (iii) Public notice and comment, beyond that required by 36 CFR 
part 800, is not required.
    (2) For parks, recreation areas, and wildlife and waterfowl 
refuges:
    (i) Public notice and an opportunity for public review and comment 
concerning the effects on the protected activities, features, or 
attributes of the property must be provided. This requirement can be 
satisfied in conjunction with other public involvement procedures, such 
as a comment period provided on a NEPA document.
    (ii) The Administration shall inform the official(s) with 
jurisdiction of its intent to make a de minimis impact finding. 
Following an opportunity for public review and comment as described in 
paragraph (b)(2)(i) of this section, the official(s) with jurisdiction

[[Page 13397]]

over the Section 4(f) resource must concur in writing that the project 
will not adversely affect the activities, features, or attributes that 
make the property eligible for Section 4(f) protection. This 
concurrence may be combined with other comments on the project provided 
by the official(s).
    (c) The application of a programmatic Section 4(f) evaluation to 
the use of a specific Section 4(f) property under Sec.  774.3(d)(1) 
shall be coordinated as specified in the applicable programmatic 
Section 4(f) evaluation.
    (d) When Federal encumbrances on Section 4(f) property are 
identified, coordination with the appropriate Federal agency is 
required to ascertain the agency's position on the proposed impact, as 
well as to determine if any other Federal requirements may apply to 
converting the Section 4(f) land to a different function. Any such 
requirements must be satisfied, independent of the Section 4(f) 
approval.


Sec.  774.7  Documentation.

    (a) A Section 4(f) evaluation prepared under Sec.  774.3(a) shall 
include sufficient supporting documentation to demonstrate why there is 
no feasible and prudent avoidance alternative and shall summarize the 
results of all possible planning to minimize harm to the Section 4(f) 
property.
    (b) A de minimis impact determination under Sec.  774.3(b) shall 
include sufficient supporting documentation to demonstrate that the 
impacts, after avoidance, minimization, mitigation, or enhancement 
measures are taken into account, are de minimis as defined in Sec.  
774.17; and that the coordination required in Sec.  774.5(b) has been 
completed.
    (c) If there is no feasible and prudent avoidance alternative the 
Administration may approve only the alternative that causes the least 
overall harm in accordance with Sec.  774.3(c). This analysis must be 
documented in the Section 4(f) evaluation.
    (d) The Administration shall review all Section 4(f) approvals 
under Sec. Sec.  774.3(a) and 774.3(c) for legal sufficiency.
    (e) A Section 4(f) approval may involve different levels of detail 
where the Section 4(f) involvement is addressed in a tiered EIS under 
Sec.  771.111(g) of this chapter.
    (1) When the first-tier, broad-scale EIS is prepared, the detailed 
information necessary to complete the Section 4(f) approval may not be 
available at that stage in the development of the action. In such 
cases, the documentation should address the potential impacts that a 
proposed action will have on Section 4(f) property and whether those 
impacts could have a bearing on the decision to be made. A preliminary 
Section 4(f) approval may be made at this time as to whether the 
impacts resulting from the use of a Section 4(f) property are de 
minimis or whether there are feasible and prudent avoidance 
alternatives. This preliminary approval shall include all possible 
planning to minimize harm to the extent that the level of detail 
available at the first-tier EIS stage allows. It is recognized that 
such planning at this stage may be limited to ensuring that 
opportunities to minimize harm at subsequent stages in the development 
process have not been precluded by decisions made at the first-tier 
stage. This preliminary Section 4(f) approval is then incorporated into 
the first-tier EIS.
    (2) The Section 4(f) approval will be finalized in the second-tier 
study. If no new Section 4(f) use, other than a de minimis impact, is 
identified in the second-tier study and if all possible planning to 
minimize harm has occurred, then the second-tier Section 4(f) approval 
may finalize the preliminary approval by reference to the first-tier 
documentation. Re-evaluation of the preliminary Section 4(f) approval 
is only needed to the extent that new or more detailed information 
available at the second-tier stage raises new Section 4(f) concerns not 
already considered.
    (3) The final Section 4(f) approval may be made in the second-tier 
CE, EA, final EIS, ROD or FONSI.
    (f) In accordance with Sec. Sec.  771.105(a) and 771.133 of this 
chapter, the documentation supporting a Section 4(f) approval should be 
included in the EIS, EA, or for a project classified as a CE, in a 
separate document. If the Section 4(f) documentation cannot be included 
in the NEPA document, then it shall be presented in a separate 
document. The Section 4(f) documentation shall be developed by the 
applicant in cooperation with the Administration.


Sec.  774.9  Timing.

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


Sec.  774.11  Applicability.

    (a) The Administration will determine the applicability of Section 
4(f) in accordance with this part.
    (b) When another Federal agency is the Federal lead agency for the 
NEPA process, the Administration shall make any required Section 4(f) 
approvals unless the Federal lead agency is another U.S. DOT agency.
    (c) Consideration under Section 4(f) is not required when the 
official(s) with jurisdiction over a park, recreation area, or wildlife 
and waterfowl refuge determine that the property, considered in its 
entirety, is not significant. In the absence of such a determination, 
the

[[Page 13398]]

Section 4(f) property will be presumed to be significant. The 
Administration will review a determination that a park, recreation 
area, or wildlife and waterfowl refuge is not significant to assure its 
reasonableness.
    (d) Where Federal lands or other public land holdings (e.g., State 
forests) are administered under statutes permitting management for 
multiple uses, and, in fact, are managed for multiple uses, Section 
4(f) applies only to those portions of such lands which function for, 
or are designated in the plans of the administering agency as being 
for, significant park, recreation, or wildlife and waterfowl refuge 
purposes. The determination of which lands so function or are so 
designated, and the significance of those lands, shall be made by the 
official(s) with jurisdiction over the Section 4(f) resource. The 
Administration will review this determination to assure its 
reasonableness.
    (e) In determining the applicability of Section 4(f) to historic 
sites, the Administration, in cooperation with the applicant, will 
consult with the official(s) with jurisdiction to identify all 
properties on or eligible for the National Register of Historic Places 
(National Register). The Section 4(f) requirements apply to historic 
sites on or eligible for the National Register unless the 
Administration determines that an exception under Sec.  774.13 applies.
    (1) The Section 4(f) requirements apply only to historic sites on 
or eligible for the National Register unless the Administration 
determines that the application of Section 4(f) is otherwise 
appropriate.
    (2) The Interstate System is not considered to be a historic site 
subject to Section 4(f), with the exception of those individual 
elements of the Interstate System formally identified by FHWA for 
Section 4(f) protection on the basis of national or exceptional 
historic significance.
    (f) Section 4(f) applies to all archeological sites on or eligible 
for inclusion on the National Register, including those discovered 
during construction, except as set forth in Sec.  774.13(b).
    (g) Section 4(f) applies to those portions of federally designated 
Wild and Scenic Rivers that are otherwise eligible as historic sites, 
or that are publicly owned and function as, or are designated in a 
management plan as, a significant park, recreation area, or wildlife 
and waterfowl refuge. All other applicable requirements of the Wild and 
Scenic Rivers Act, 16 U.S.C. 1271-1287, must be satisfied, independent 
of the Section 4(f) approval.
    (h) When a property formally reserved for a future transportation 
facility temporarily functions for park, recreation, or wildlife and 
waterfowl refuge purposes in the interim, the interim activity, 
regardless of duration, will not subject the property to Section 4(f).
    (i) When a property is formally reserved for a future 
transportation facility before or at the same time a park, recreation 
area, or wildlife and waterfowl refuge is established and concurrent or 
joint planning or development of the transportation facility and the 
Section 4(f) resource occurs, then any resulting impacts of the 
transportation facility will not be considered a use as defined in 
Sec.  774.17. Examples of such concurrent or joint planning or 
development include, but are not limited to:
    (1) Designation or donation of property for the specific purpose of 
such concurrent development by the entity with jurisdiction or 
ownership of the property for both the potential transportation 
facility and the Section 4(f) property; or
    (2) Designation, donation, planning, or development of property by 
two or more governmental agencies with jurisdiction for the potential 
transportation facility and the Section 4(f) property, in consultation 
with each other.


Sec.  774.13  Exceptions.

    The Administration has identified various exceptions to the 
requirement for Section 4(f) approval. These exceptions include, but 
are not limited to:
    (a) Restoration, rehabilitation, or maintenance of transportation 
facilities that are on or eligible for the National Register when:
    (1) The Administration concludes, as a result of the consultation 
under 36 CFR 800.5, that such work will not adversely affect the 
historic qualities of the facility that caused it to be on or eligible 
for the National Register, and
    (2) The official(s) with jurisdiction over the Section 4(f) 
resource have not objected to the Administration conclusion in 
paragraph (a)(1) of this section.
    (b) Archeological sites that are on or eligible for the National 
Register when:
    (1) The Administration concludes that the archeological resource is 
important chiefly because of what can be learned by data recovery and 
has minimal value for preservation in place. This exception applies 
both to situations where data recovery is undertaken and where the 
Administration decides, with agreement of the official(s) with 
jurisdiction, not to recover the resource; and
    (2) The official(s) with jurisdiction over the Section 4(f) 
resource have been consulted and have not objected to the 
Administration finding in paragraph (b)(1) of this section.
    (c) Designations of park and recreation lands, wildlife and 
waterfowl refuges, and historic sites that are made, or determinations 
of significance that are changed, late in the development of a proposed 
action. With the exception of the treatment of archeological resources 
in Sec.  774.9(e), the Administration may permit a project to proceed 
without consideration under Section 4(f) if the property interest in 
the Section 4(f) land was acquired for transportation purposes prior to 
the designation or change in the determination of significance and if 
an adequate effort was made to identify properties protected by Section 
4(f) prior to acquisition. However, if it is reasonably foreseeable 
that a property would qualify as eligible for the National Register 
prior to the start of construction, then the property should be treated 
as a historic site for the purposes of this section.
    (d) Temporary occupancies of land that are so minimal as to not 
constitute a use within the meaning of Section 4(f). The following 
conditions must be satisfied:
    (1) Duration must be temporary, i.e., less than the time needed for 
construction of the project, and there should be no change in ownership 
of the land;
    (2) Scope of the work must be minor, i.e., both the nature and the 
magnitude of the changes to the Section 4(f) property are minimal;
    (3) There are no anticipated permanent adverse physical impacts, 
nor will there be interference with the protected activities, features, 
or attributes of the property, on either a temporary or permanent 
basis;
    (4) The land being used must be fully restored, i.e., the property 
must be returned to a condition which is at least as good as that which 
existed prior to the project; and
    (5) There must be documented agreement of the official(s) with 
jurisdiction over the Section 4(f) resource regarding the above 
conditions.
    (e) Park road or parkway projects under 23 U.S.C. 204.
    (f) Certain trails, paths, bikeways, and sidewalks, in the 
following circumstances:
    (1) Trail-related projects funded under the Recreational Trails 
Program, 23 U.S.C. 206(h)(2);

[[Page 13399]]

    (2) National Historic Trails and the Continental Divide National 
Scenic Trail, designated under the National Trails System Act, 16 
U.S.C. 1241-1251, with the exception of those trail segments that are 
historic sites as defined in Sec.  774.17;
    (3) Trails, paths, bikeways, and sidewalks that occupy a 
transportation facility right-of-way without limitation to any specific 
location within that right-of-way, so long as the continuity of the 
trail, path, bikeway, or sidewalk is maintained; and
    (4) Trails, paths, bikeways, and sidewalks that are part of the 
local transportation system and which function primarily for 
transportation.
    (g) Transportation enhancement projects and mitigation activities, 
where:
    (1) The use of the Section 4(f) property is solely for the purpose 
of preserving or enhancing an activity, feature, or attribute that 
qualifies the property for Section 4(f) protection; and
    (2) The official(s) with jurisdiction over the Section 4(f) 
resource agrees in writing to paragraph (g)(1) of this section.


Sec.  774.15  Constructive use determinations.

    (a) A constructive use occurs when the transportation project does 
not incorporate land from a Section 4(f) property, but the project's 
proximity impacts are so severe that the protected activities, 
features, or attributes that qualify the property for protection under 
Section 4(f) are substantially impaired. Substantial impairment occurs 
only when the protected activities, features, or attributes of the 
property are substantially diminished.
    (b) If the project results in a constructive use of a nearby 
Section 4(f) property, the Administration shall evaluate that use in 
accordance with Sec.  774.3(a).
    (c) The Administration shall determine when there is a constructive 
use, but the Administration is not required to document each 
determination that a project would not result in a constructive use of 
a nearby Section 4(f) property. However, such documentation may be 
prepared at the discretion of the Administration.
    (d) When a constructive use determination is made, it will be based 
upon the following:
    (1) Identification of the current activities, features, or 
attributes of the property which qualify for protection under Section 
4(f) and which may be sensitive to proximity impacts;
    (2) An analysis of the proximity impacts of the proposed project on 
the Section 4(f) property. If any of the proximity impacts will be 
mitigated, only the net impact need be considered in this analysis. The 
analysis should also describe and consider the impacts which could 
reasonably be expected if the proposed project were not implemented, 
since such impacts should not be attributed to the proposed project; 
and
    (3) Consultation, on the foregoing identification and analysis, 
with the official(s) with jurisdiction over the Section 4(f) property.
    (e) The Administration has reviewed the following situations and 
determined that a constructive use occurs when:
    (1) The projected noise level increase attributable to the project 
substantially interferes with the use and enjoyment of a noise-
sensitive facility of a property protected by Section 4(f), such as:
    (i) Hearing the performances at an outdoor amphitheater;
    (ii) Sleeping in the sleeping area of a campground;
    (iii) Enjoyment of a historic site where a quiet setting is a 
generally recognized feature or attribute of the site's significance;
    (iv) Enjoyment of an urban park where serenity and quiet are 
significant attributes; or
    (v) Viewing wildlife in an area of a wildlife and waterfowl refuge 
intended for such viewing.
    (2) The proximity of the proposed project substantially impairs 
esthetic features or attributes of a property protected by Section 
4(f), where such features or attributes are considered important 
contributing elements to the value of the property. Examples of 
substantial impairment to visual or esthetic qualities would be the 
location of a proposed transportation facility in such proximity that 
it obstructs or eliminates the primary views of an architecturally 
significant historical building, or substantially detracts from the 
setting of a Section 4(f) property which derives its value in 
substantial part due to its setting;
    (3) The project results in a restriction of access which 
substantially diminishes the utility of a significant publicly owned 
park, recreation area, or a historic site;
    (4) The vibration impact from construction or operation of the 
project substantially impairs the use of a Section 4(f) property, such 
as projected vibration levels that are great enough to physically 
damage a historic building or substantially diminish the utility of the 
building, unless the damage is repaired and fully restored consistent 
with the Secretary of the Interior's Standards for the Treatment of 
Historic Properties, i.e., the integrity of the contributing features 
must be returned to a condition which is substantially similar to that 
which existed prior to the project; or
    (5) The ecological intrusion of the project substantially 
diminishes the value of wildlife habitat in a wildlife and waterfowl 
refuge adjacent to the project, substantially interferes with the 
access to a wildlife and waterfowl refuge when such access is necessary 
for established wildlife migration or critical life cycle processes, or 
substantially reduces the wildlife use of a wildlife and waterfowl 
refuge.
    (f) The Administration has reviewed the following situations and 
determined that a constructive use does not occur when:
    (1) Compliance with the requirements of 36 CFR 800.5 for proximity 
impacts of the proposed action, on a site listed on or eligible for the 
National Register, results in an agreement of ``no historic properties 
affected'' or ``no adverse effect;''
    (2) The impact of projected traffic noise levels of the proposed 
highway project on a noise-sensitive activity do not exceed the FHWA 
noise abatement criteria as contained in Table 1 in part 772 of this 
chapter, or the projected operational noise levels of the proposed 
transit project do not exceed the noise impact criteria for a Section 
4(f) activity in the FTA guidelines for transit noise and vibration 
impact assessment;
    (3) The projected noise levels exceed the relevant threshold in 
paragraph (f)(2) of this section because of high existing noise, but 
the increase in the projected noise levels if the proposed project is 
constructed, when compared with the projected noise levels if the 
project is not built, is barely perceptible (3 dBA or less);
    (4) There are proximity impacts to a Section 4(f) property, but a 
governmental agency's right-of-way acquisition or adoption of project 
location, or the Administration's approval of a final environmental 
document, established the location for the proposed transportation 
project before the designation, establishment, or change in the 
significance of the property. However, if it is reasonably foreseeable 
that a property would qualify as eligible for the National Register 
prior to the start of construction, then the property should be treated 
as a historic site for the purposes of this section; or
    (5) Overall (combined) proximity impacts caused by a proposed 
project do not substantially impair the activities, features, or 
attributes that qualify a property for protection under Section 4(f);

[[Page 13400]]

    (6) Proximity impacts will be mitigated to a condition equivalent 
to, or better than, that which would occur if the project were not 
built, as determined after consultation with the official(s) with 
jurisdiction;
    (7) Change in accessibility will not substantially diminish the 
utilization of the Section 4(f) property; or
    (8) Vibration levels from project construction activities are 
mitigated, through advance planning and monitoring of the activities, 
to levels that do not cause a substantial impairment of protected 
activities, features, or attributes of the Section 4(f) property.


Sec.  774.17  Definitions.

    The definitions contained in 23 U.S.C. 101(a) are applicable to 
this part. In addition, the following definitions apply:
    Administration. The FHWA or FTA, whichever is making the approval 
for the transportation program or project at issue. A reference herein 
to the Administration means the State when the State is functioning as 
the FHWA or FTA in carrying out responsibilities delegated or assigned 
to the State in accordance with 23 U.S.C. 325, 326, 327, or other 
applicable law.
    All possible planning. All possible planning means that all 
reasonable measures identified in the Section 4(f) evaluation to 
minimize harm or mitigate for adverse impacts and effects must be 
included in the project.
    (1) With regard to public parks, recreation areas, and wildlife and 
waterfowl refuges, the measures may include (but are not limited to): 
design modifications or design goals; replacement of land or facilities 
of comparable value and function; or monetary compensation to enhance 
the remaining property or to mitigate the adverse impacts of the 
project in other ways.
    (2) With regard to historic sites, the measures normally serve to 
preserve the historic activities, features, or attributes of the site 
as agreed by the Administration and the official(s) with jurisdiction 
over the Section 4(f) resource in accordance with the consultation 
process under 36 CFR part 800.
    (3) In evaluating the reasonableness of measures to minimize harm 
under Sec.  774.3(a)(2), the Administration will consider the 
preservation purpose of the statute and:
    (i) The views of the official(s) with jurisdiction over the Section 
4(f) property;
    (ii) Whether the cost of the measures is a reasonable public 
expenditure in light of the adverse impacts of the project on the 
Section 4(f) property and the benefits of the measure to the property, 
in accordance with Sec.  771.105(d) of this chapter; and
    (iii) Any impacts or benefits of the measures to communities or 
environmental resources outside of the Section 4(f) property.
    (4) All possible planning does not require analysis of feasible and 
prudent avoidance alternatives, since such analysis will have already 
occurred in the context of searching for feasible and prudent 
alternatives that avoid Section 4(f) properties altogether under Sec.  
774.3(a)(1), or is not necessary in the case of a de minimis impact 
determination under Sec.  774.3(b).
    (5) A de minimis impact determination under Sec.  774.3(b) subsumes 
the requirement for all possible planning to minimize harm by reducing 
the impacts on the Section 4(f) property to a de minimis level.
    Applicant. The Federal, State, or local government authority, 
proposing a transportation project, that the Administration works with 
to conduct environmental studies and prepare environmental documents. 
For transportation actions implemented by the Federal government on 
Federal lands, the Administration or the Federal land management agency 
may take on the responsibilities of the applicant described herein.
    CE. Refers to a Categorical Exclusion, which denotes an action with 
no individual or cumulative significant environmental effect pursuant 
to 40 CFR 1508.4 and Sec.  771.117 of this chapter; unusual 
circumstances are taken into account in making categorical exclusion 
determinations.
    De minimis impact. (1) For historic sites, de minimis impact means 
that the Administration has determined, in accordance with 36 CFR part 
800 that no historic property is affected by the project or that the 
project will have ``no adverse effect'' on the historic property in 
question.
    (2) For parks, recreation areas, and wildlife and waterfowl 
refuges, a de minimis impact is one that will not adversely affect the 
features, attributes, or activities qualifying the property for 
protection under Section 4(f).
    EA. Refers to an Environmental Assessment, which is a document 
prepared pursuant to 40 CFR parts 1500-1508 and Sec.  771.119 of this 
title for a proposed project that is not categorically excluded but for 
which an EIS is not clearly required.
    EIS. Refers to an Environmental Impact Statement, which is a 
document prepared pursuant to NEPA, 40 CFR parts 1500-1508, and 
Sec. Sec.  771.123 and 771.125 of this chapter for a proposed project 
that is likely to cause significant impacts on the environment.
    Feasible and prudent avoidance alternative. (1) A feasible and 
prudent avoidance alternative avoids using Section 4(f) property and 
does not cause other severe problems of a magnitude that substantially 
outweighs the importance of protecting the Section 4(f) property. In 
assessing the importance of protecting the Section 4(f) property, it is 
appropriate to consider the relative value of the resource to the 
preservation purpose of the statute.
    (2) An alternative is not feasible if it cannot be built as a 
matter of sound engineering judgment.
    (3) An alternative is not prudent if:
    (i) It compromises the project to a degree that it is unreasonable 
to proceed with the project in light of its stated purpose and need;
    (ii) It results in unacceptable safety or operational problems;
    (iii) After reasonable mitigation, it still causes:
    (A) Severe social, economic, or environmental impacts;
    (B) Severe disruption to established communities;
    (C) Severe disproportionate impacts to minority or low income 
populations; or
    (D) Severe impacts to environmental resources protected under other 
Federal statutes;
    (iv) It results in additional construction, maintenance, or 
operational costs of an extraordinary magnitude;
    (v) It causes other unique problems or unusual factors; or
    (vi) It involves multiple factors in paragraphs (3)(i) through 
(3)(v) of this definition, that while individually minor, cumulatively 
cause unique problems or impacts of extraordinary magnitude.
    FONSI. Refers to a Finding of No Significant Impact prepared 
pursuant to 40 CFR 1508.13 and Sec.  771.121 of this chapter.
    Historic site. For purposes of this part, the term ``historic 
site'' includes any prehistoric or historic district, site, building, 
structure, or object included in, or eligible for inclusion in, the 
National Register. The term includes properties of traditional 
religious and cultural importance to an Indian tribe or Native Hawaiian 
organization that are included in, or are eligible for inclusion in, 
the National Register.
    Official(s) with jurisdiction. (1) In the case of historic 
properties, the official with jurisdiction is the SHPO for the State 
wherein the property is located or, if the property is located on 
tribal land,

[[Page 13401]]

the THPO. If the property is located on tribal land but the Indian 
tribe has not assumed the responsibilities of the SHPO as provided for 
in the National Historic Preservation Act, then a representative 
designated by such Indian tribe shall be recognized as an official with 
jurisdiction in addition to the SHPO. When the ACHP is involved in a 
consultation concerning a property under Section 106 of the NHPA, the 
ACHP is also an official with jurisdiction over that resource for 
purposes of this part. When the Section 4(f) property is a National 
Historic Landmark, the National Park Service is also an official with 
jurisdiction over that resource for purposes of this part.
    (2) In the case of public parks, recreation areas, and wildlife and 
waterfowl refuges, the official(s) with jurisdiction are the 
official(s) of the agency or agencies that own or administer the 
property in question and who are empowered to represent the agency on 
matters related to the property.
    (3) In the case of portions of Wild and Scenic Rivers to which 
Section 4(f) applies, the official(s) with jurisdiction are the 
official(s) of the Federal agency or agencies that own or administer 
the affected portion of the river corridor in question. For State 
administered, federally designated rivers (section 2(a)(ii) of the Wild 
and Scenic Rivers Act, 16 U.S.C. 1273(a)(ii)), the officials with 
jurisdiction include both the State agency designated by the respective 
Governor and the Secretary of the Interior.
    ROD. Refers to a Record of Decision prepared pursuant to 40 CFR 
1505.2 and Sec.  771.127 of this chapter.
    Section 4(f) evaluation. Refers to the documentation prepared to 
support the granting of a Section 4(f) approval under Sec.  774.3(a), 
unless preceded by the word ``programmatic.'' A ``programmatic Section 
4(f) evaluation'' is the documentation prepared pursuant to Sec.  
774.3(d) that authorizes subsequent project-level Section 4(f) 
approvals as described therein.
    Section 4(f) Property. Section 4(f) property means publicly owned 
land of a public park, recreation area, or wildlife and waterfowl 
refuge of national, State, or local significance, or land of an 
historic site of national, State, or local significance.
    Use. Except as set forth in Sec. Sec.  774.11 and 774.13, a ``use'' 
of Section 4(f) property occurs:
    (1) When land is permanently incorporated into a transportation 
facility;
    (2) When there is a temporary occupancy of land that is adverse in 
terms of the statute's preservation purpose as determined by the 
criteria in Sec.  774.13(d); or
    (3) When there is a constructive use of a Section 4(f) property as 
determined by the criteria in Sec.  774.15.

Federal Transit Administration



Title 49--Transportation

CHAPTER VI--FEDERAL TRANSIT ADMINISTRATION, DEPARTMENT OF 
TRANSPORTATION

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
5. Revise the authority citation for Subpart A to read as follows:

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


0
6. Revise Sec.  622.101 to read as follows:

Subpart A--Environmental Procedures


Sec.  622.101  Cross-reference to procedures.

    The procedures for complying with the National Environmental Policy 
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes, 
regulations, and orders are set forth in part 771 of title 23 of the 
Code of Federal Regulations. The procedures for complying with 49 
U.S.C. 303, commonly known as ``Section 4(f),'' are set forth in part 
774 of title 23 of the Code of Federal Regulations.

[FR Doc. E8-4596 Filed 3-11-08; 8:45 am]
BILLING CODE 4910-22-P