[Federal Register Volume 78, Number 33 (Tuesday, February 19, 2013)]
[Rules and Regulations]
[Pages 11593-11603]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03494]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 771

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2012-0092]
FHWA RIN 2125-AF46
FTA RIN 2132-AB04


Environmental Impact and Related Procedures

AGENCY: Federal Highway Administration, Federal Transit Administration, 
DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends the Federal Highway Administration 
(FHWA) and Federal Transit

[[Page 11594]]

Administration (FTA) joint procedures that implement the National 
Environmental Policy Act (NEPA) by enacting a new categorical exclusion 
(CE) for emergency actions as required by the Moving Ahead for Progress 
in the 21st Century Act (MAP-21). The final rule modifies the existing 
lists of FHWA and FTA CEs and expands the existing CE for emergencies 
to include emergency actions as described in MAP-21 and pursuant to 
this rulemaking.

DATES: Effective February 19, 2013.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Adam Alexander, Office 
of Project Delivery and Environmental Review, (202) 366-1473, or Jomar 
Maldonado, Office of the Chief Counsel, (202) 366-1373, 1200 New Jersey 
Ave. SE., Washington, DC 20590-0001. For the FTA: Maya Sarna at (202) 
366-5811, Office of Planning and Environment; or Dana Nifosi at (202) 
366-4011, Office of Chief Counsel. Office hours are from 8 a.m. to 4:30 
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    On July 6, 2012, President Obama signed into law MAP-21 (Pub. L. 
112-141, 126 Stat. 405), which contains new requirements that the FHWA 
and FTA, hereafter referred to as the ``Agencies,'' must meet in 
complying with NEPA (42 U.S.C. 4321 et seq.). Section 1315(a) of MAP-21 
required the Secretary of Transportation to engage in rulemaking to 
categorically exclude from the requirements to prepare an environmental 
assessment (EA) or environmental impact statement (EIS) under 23 CFR 
part 771, the repair or reconstruction of any road, highway, or bridge 
damaged by an emergency that is either (1) declared by the Governor of 
the State and concurred in by the Secretary; or (2) declared by the 
President under the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5121 et seq.) if such repair or 
reconstruction activity is in the same location with the same capacity, 
dimensions, and design as the original road, highway, or bridge as 
before the declaration; and is commenced within a 2-year period 
beginning on the date of the declaration. In addition, pursuant to 
section 1315(b) of MAP-21, the Secretary must ensure that the 
rulemaking helps conserve Federal resources and protect public safety 
and health by providing for periodic evaluations to determine whether 
reasonable alternatives exist to roads, highways, or bridges that 
repeatedly require repair and reconstruction activities.
    The Agencies published a notice of proposed rulemaking (NPRM) 
addressing the section 1315 MAP-21 requirements on October 1, 2012 (77 
FR 59875). This final rule makes changes to 23 CFR 771.117(c)(9) and 
adds 771.118(c)(11) in response to MAP-21's section 1315 requirements 
and the comments provided during the NPRM comment period.
    It should be noted that the Agencies jointly published an NPRM in 
March 2012 (77 FR 15310) and subsequently a final rule on February 7, 
2013 (78 FR 8964), which, among other changes, created section 771.118. 
The Agencies are calling attention to this new section because it will 
be referenced throughout this final rule. Section 771.118 contains 
categorically excluded actions and examples, as well as criteria, for 
FTA actions. With this revision, section 771.117 applies to FHWA 
actions, and section 771.118 applies to FTA actions.
    It is important to emphasize that the availability of the CEs for 
emergency actions is subject to the same requirements for the use of 
any other CE in part 771. First, the CEs, like any other CE in part 
771, apply to the Agencies' actions. Second, the use of the emergency-
related CEs would include an identification of any unusual 
circumstances requiring further environmental studies to determine if 
the CE classification is proper (23 CFR 771.117(b) and 771.118(b)). 
Examples of unusual circumstances include significant environmental 
impacts, substantial controversy on environmental grounds, significant 
impacts on properties protected by 23 U.S.C. 138/49 U.S.C. 303 (also 
known as ``section 4(f)'' of the Department of Transportation Act) or 
section 106 of the National Historic Preservation Act (NHPA), or 
inconsistencies with any Federal, State, or local law, requirement or 
administrative determination relating to the environmental aspects of 
the action (23 CFR 771.117(b)(1)-(4) and 23 CFR 771.118(b)(1)-(4)). 
Third, the availability of the CEs does not exempt the applicability of 
other environmental requirements such as, but not limited to, section 7 
of the Endangered Species Act (ESA), section 106 of NHPA, section 404 
permits under the Clean Water Act (CWA), 23 U.S.C. 138/49 U.S.C. 303 
(section 4(f)), and bridge permits under the General Bridge Act of 
1946. These requirements must be met regardless of the applicability of 
the CE under NEPA. Some of these requirements may involve major Federal 
actions for other Federal agencies (e.g., approvals or issuance of 
permits) that would trigger a different NEPA process for those Federal 
agencies. Early coordination amongst the applicants and the Federal 
agencies is highly recommended to prevent a conflict in the Federal 
agencies' NEPA, permitting, and other review processes.
    Fourth, the action must comply with NEPA requirements relating to 
connected actions and segmentation (see, e.g., 40 CFR 1508.25 and 23 
CFR 771.111(f)). The Agencies recognize the importance of ensuring that 
projects are not improperly segmented. The action must have independent 
utility, connect logical termini when applicable (i.e., linear 
facilities), and not restrict consideration of alternatives for other 
reasonably foreseeable transportation improvements. Finally, a CE may 
not be established if the action normally has significant environmental 
impacts either individually or cumulatively and may not be applied to a 
proposed action if there are unusual circumstances. For example, a CE 
may not be used if the action induces significant impacts to planned 
growth or land use for the area; requires the relocation of significant 
numbers of people; has significant impacts on any natural, cultural, 
recreational, historic, or other resource; involves significant air, 
noise, or water quality impacts; or has significant impacts on travel 
patterns (23 CFR 771.117(a) and 23 CFR 771.118(a)).

Notice of Proposed Rulemaking

    The October 1, 2012, NPRM proposed to expand 23 CFR 771.117(c)(9) 
with a new subsection (ii) that provided for ``[t]he repair or 
reconstruction of any road, highway, or bridge that is in operation or 
under construction when damaged by an emergency declared by the 
Governor of the State and concurred in by the Secretary, or for a 
disaster or emergency declared by the President pursuant to the Robert 
T. Stafford Act (42 U.S.C. 5121) if the repair or reconstruction 
activity is: (A) [i]n the same location with the same capacity, 
dimensions, and design as the original road, highway, or bridge as 
before the declaration, and (B) [c]ommenced within a 2-year period 
beginning on the date of the declaration'' (77 FR 59878). In addition 
to the proposed CE language, the NPRM sought comments on whether the 
emergency activities categorically excluded under the revised CE should 
also include the following: (1) Construction of engineering and design 
changes to a damaged facility to meet current design standards; (2) 
repair and reconstruction of adjacent transportation facilities within 
the right-of-way damaged by the emergency (such as bike paths or 
ancillary structures); (3) construction of betterments to the

[[Page 11595]]

damaged facilities beyond those eligible under 23 U.S.C. 125; (4) 
construction of engineering and design changes to a damaged facility 
for the purpose of seismic retrofitting; (5) construction of 
engineering and design changes to a damaged facility to deal with 
future extreme weather events and sea level rise; and (6) construction 
of other engineering and design changes to a damaged facility to 
address concerns such as safety and environmental impacts.
    The NPRM also sought comment on whether the CE should include 
actions to repair, reconstruct, or replace a facility that has 
experienced catastrophic failure regardless of cause. Catastrophic 
failure was described as the sudden and complete failure of a major 
element or segment of the facility that causes a devastating impact on 
transportation services.
    Additionally, the NPRM requested comments on approaches to 
addressing section 1315(b) of MAP-21. Specifically, the Agencies 
requested comments on a proposal to address the requirements of this 
section in future rulemakings required by other provisions of MAP-21. 
Section 1106 of MAP-21 amends 23 U.S.C. 119 by requiring State 
departments of transportation (State DOTs) to develop risk-based asset 
management plans. The MAP-21 also created several new transit programs 
under chapter 53 of title 49 U.S. Code. The Agencies requested comments 
on several questions related to the periodic evaluation requirements in 
section 1315(b).
    The comment period for the NPRM closed on November 30, 2012, and 
additional comments were received on December 3, 2012. All comments 
were considered in the development of this final rule.

Summary Discussion of Comments Received in Response to the NPRM

    Comments were received from 12 State DOTs, 7 public interest 
groups, 4 transit agencies, and 2 Federal agencies. Commenters provided 
111 comments on the NPRM, which were organized thematically and 
according to whether the comment addressed section 1315(a) or section 
1315(b) of MAP-21, or were general comments.

General Comments

    Comments generally were supportive of the proposed rulemaking. 
Commenters offered specific comments to the statutory language adopted 
from section 1315(a) of MAP-21; provided input on the disposition of 
section 1315(b); commented on the six actions proposed for inclusion in 
the CE; and proposed revised language for consideration in the final 
rule. Eleven State DOTs, six public interest groups, one rail agency, 
and three transit agencies provided comments on the six additional 
activities listed in the NPRM for comment (see Section-by-Section 
Discussion of Comments below). The commenters indicated support for one 
or more of the listed activities. Seven State DOTs, three public 
interest groups, and two transit agencies expressed support for all six 
proposed activities.
    Regarding section 1315(b), one public interest group and seven 
State DOTs commented on the NPRM that they agreed that the periodic 
evaluations should be part of risk-based asset management plans 
developed by the State. The Agencies agree with this proposal and are 
addressing the periodic evaluations required under MAP-21 section 
1315(b) through a rulemaking implementing section 1106 of MAP-21 and 
through changes to implement the new programs authorized by MAP-21. As 
discussed in the Section-by-Section Discussion of Comments below, the 
Agencies relied on section 1315(b)'s requirement to ``ensure that the 
rulemaking helps conserve Federal resources and protect public safety 
and health'' in making improvements to the final CE.
    One commenter commented that ``once an event is determined to 
qualify for CE status, this decision should be treated as permanent and 
not subject to subsequent reconsideration.'' All NEPA decisions under 
23 CFR 771.117 are subject to compliance with sections 771.117(b) and 
771.129(c). The NEPA decisions under 23 CFR 771.118 are subject to 
compliance with sections 771.118(b) and 771.129(c). The final rule does 
not eliminate these requirements. Additional review resulting from 
unusual circumstances may warrant changes to the type of environmental 
review for a particular proposed project to ensure the Agencies provide 
the appropriate degree of consideration for environmental impacts 
resulting from proposed actions.
    One commenter recommended that the Agencies establish a flexible 
process for determining when CEs should be used rather than relying on 
a constraining list of activities eligible for CEs. The commenter also 
suggested providing set time limits on a project-by-project basis for 
the completion of NEPA. The final rule does not include either 
suggestion; the ideas proposed by the commenter fall outside the scope 
of this rulemaking.

Section-by-Section Discussion of Comments

Authorities for 49 CFR Part 622

    No comments were received on this proposed change. The amendment 
will add a reference to MAP-21 and section 1315 of that statute. The 
FTA had considered adding a reference to section 20017 of MAP-21, which 
created the new FTA Emergency Relief program. Since that time, FTA has 
determined that section 20017 does not provide authority for the CE 
being added by this rulemaking and is not needed for part 622. For 
information on the Agencies' authority for this rulemaking, see the 
section entitled ``Statutory/Legal Authority for This Rulemaking'' 
below.

Authorities for 23 CFR Part 771

    No comments were received on this change. The amendment will add a 
reference to MAP-21 and section 1315 of that statute. The FHWA had 
considered adding a reference to section 1106 of MAP-21, which created 
the requirement for risk-based asset management plans. Since that time, 
FHWA has determined that section 1106 does not provide authority for 
the CE language being added by this rulemaking and is not needed for 
part 771. For information on the Agencies' authority for this 
rulemaking, see the section entitled ``Statutory/Legal Authority for 
This Rulemaking'' below.

Section 771.117(c)(9)

    Three public interest groups, one rail agency, six State DOTs, and 
two transit agencies commented that the final rule should include 
language that expands the CE to cover catastrophic failures regardless 
of cause. One commenter specifically noted that a scenario could occur 
where there is a catastrophic failure of a major bridge or tunnel from 
a disaster that does not rise to the level of an emergency declared by 
the Governor and concurred in by the Secretary, or a disaster or 
emergency declared by the President under the Stafford Act. One 
commenter noted that ``the effects of catastrophic failures to public 
safety and transportation are essentially the same as emergencies, and 
the need to quickly and safely repair the failures remains the same.'' 
The commenter encouraged the Agencies to define all qualifying terms 
such as ``sudden and complete failure'' and ``devastating impact'' to 
account for different temporal and spatial scales. For example, ``a 
bridge may be rendered unusable due to river scouring over several 
months without the bridge completely collapsing; the impact of such a 
bridge failure would be

[[Page 11596]]

devastating to the public and the economy in many areas'' of a State.
    The Agencies have decided to limit the CE language to the same 
circumstances that would trigger the FHWA and FTA emergency relief 
programs. Under the Agencies' emergency relief programs, the damage to 
the facility must have been caused by a natural disaster or a 
catastrophic failure from an external cause. Limiting the new CE 
language to the same circumstances that trigger the emergency relief 
programs would ensure consistency. It also will avoid the need to 
create a separate and independent process for the Secretary's 
concurrence with a Governor's emergency declaration for catastrophic 
failures that do not qualify for the emergency relief programs.
    The Agencies are amending section 771.117(c)(9) by adding the 
introductory phrase ``[t]he following actions for transportation 
facilities damaged by an incident resulting in an emergency declared by 
the Governor of the State and concurred in by the Secretary, or a 
disaster or emergency declared by the President pursuant to the Robert 
T. Stafford Act (42 U.S.C. 5121).'' This introductory phrase clarifies 
that all the actions covered in the amended and new CE language must be 
the result of the Agencies' (or their applicants or recipients') 
efforts to restore surface transportation in the aftermath of 
Presidentially declared emergency or disasters, or emergencies declared 
by the Governor of a State and concurred in by the Secretary.
    This introductory language also is included in 23 CFR 
771.118(c)(11) with the same intent. As mentioned above, categorically 
excluded FTA actions are now found at 23 CFR 771.118. Through this 
final rule, FTA is incorporating the new emergency CE established 
pursuant to section 1315 of MAP-21 by adding a new CE at section 
771.118(c)(11) that is equivalent to the CE applicable to FHWA found at 
23 CFR 771.117(c)(9). This new CE covers emergency repairs under 49 
U.S.C. 5324 for public transportation infrastructure ``damaged by an 
incident resulting in an emergency declared by the Governor of the 
State and concurred by the Secretary, or a disaster or emergency 
declared by the President pursuant to the Robert T. Stafford Act (42 
U.S.C. 5121).''

Section 771.117(c)(9)(i)

    One public interest group and three State DOTs expressed a desire 
to maintain the CE currently found in 23 CFR 771.117(c)(9) to ensure 
that flexibility is maintained with the final rule to continue 
categorically excluding emergency repairs under 23 U.S.C. 125, the FHWA 
Emergency Relief Program.
    The Agencies continue to believe that ``emergency repairs'' do not 
typically result in significant environmental impacts. ``Emergency 
repairs'' are defined in the FHWA Emergency Relief Program regulations 
as ``[t]hose repairs including temporary traffic operations undertaken 
during or immediately following the disaster occurrence for the purpose 
of: (1)[m]inimizing the extent of damage, (2) [p]rotecting remaining 
facilities, or (3) [r]estoring essential traffic'' (23 CFR 668.103). 
The original language in section 771.117(c)(9) is retained as new 
paragraph (c)(9)(i) to continue covering these types of actions. The CE 
language for emergency repairs under 23 U.S.C. 125 was not carried 
forward to section 771.118(c)(11), however, due to its lack of 
applicability to FTA actions.

Section 771.117(c)(9)(ii)

    One rail agency and three public interest groups commented on the 
section 1315(a) language noting that the language was overly 
restrictive and should be expanded to include infrastructure components 
specific to rail and transit infrastructure. One commenter proposed 
specific language to amend section 771.117(c)(9)(ii) to read ``[t]he 
repair or reconstruction of any road, highway, bridge, or transit 
facility that is in operation or under construction * * *'' and to 
amend proposed 23 CFR 771.117(c)(9)(ii)(A) to read ``[i]n the same 
location with the same capacity, dimensions, and design as the original 
road, highway, bridge, or transit facility as before the declaration * 
* * '' Another commenter proposed adding railroad right-of-way, 
railroad bridge, or railroad tunnel to proposed 23 CFR 
771.117(c)(9)(ii)(A). Another commenter recommended clarification of 
the wording to include ``critical transportation infrastructure 
including but not limited to any road, highway, rail, bridge, tunnel, 
or dock * * *''
    The Agencies added the term ``transit facility'' to the list of 
transportation facilities that are subject to the new CE language at 
sections 771.117(c)(9)(ii) and 771.118(c)(11)(ii). The addition of this 
term expands the CE language to include the emergency repair or 
reconstruction of all transit facilities following an emergency or 
disaster, not just those that are co-located on roads or highways. The 
term ``transit facility'' includes rail transit and components of ferry 
terminals and systems, such as docks, piers, platforms, pedestrian 
loading structures, and ticketing facilities. This addition goes 
further than the list of transportation facilities provided in section 
1315 of MAP-21. Documentation supporting this expansion is discussed 
below.
    The final rule also adds section 771.118(c)(11)(i) to cover 
emergency repairs pursuant to 49 U.S.C. 5324. This addition will cover 
activities under the Public Transportation Emergency Relief Program (49 
U.S.C. 5324) created by section 20017 of MAP-21. The types of 
activities covered (i.e., emergency repair of transit facilities) are 
analogous to the activities covered by the existing CE for emergency 
repairs in FHWA's Emergency Relief Program.
    To support the inclusion of public transportation infrastructure in 
sections 771.117(c)(9) and 771.118(c)(11), FTA revisited and cross-
referenced the substantiation record for FTA's March 2012 NEPA NPRM 
(Docket No. FTA-2011-0056-0002), which proposed a new list of CEs for 
FTA (77 FR 15310 (Mar. 15, 2012)). A substantiation record summary is 
provided in the docket for this rulemaking. The FTA also identified new 
supporting documentation, which includes, but is not limited to: The 
FTA documented CEs and Findings of No Significant Impact for past 
disaster-related projects, and for repair and reconstruction projects 
for transit facilities. The FTA also utilized comparative benchmarking, 
which provides support for the additional CE language by using the 
experience of other Federal agencies that conduct actions of similar 
nature, scope, and intensity. Although some of the actions covered by 
this added language might be covered by other CEs listed in sections 
771.117 and 771.118, there is value in adding this CE language 
specifically for the FTA's Emergency Relief Program for ease of 
application when a practitioner is faced with emergency or disaster-
related actions.
    One commenter indicated that it was not clear why bridges are 
specifically mentioned, but other critical infrastructure such as 
tunnels and docks were not included. The commenter recommended wording 
to add tunnels and docks.
    As discussed above, the term ``transit facility'' includes rail 
transit and components of ferry terminals and systems, such as docks, 
piers, platforms, pedestrian loading structures, and ticketing 
facilities. The Agencies have included ``tunnels'' in the list of 
transportation facilities covered by the CE language. Damaged tunnels 
can result in as much traffic and transit disruption as damaged bridges 
and therefore, deserve similar consideration. The types of tunnel-
related actions

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necessitated by emergencies include dewatering to remove flood waters; 
repairs to electrical and mechanical systems; repairs to suspended 
ceilings and to ceiling or wall tiles; and, for highway tunnels, 
repairs to pavement. The environmental impacts from these types of 
actions would be similar for both highway and transit tunnels. Highway 
and transit tunnels are structurally and functionally similar, although 
design details and equipment are different because a tunnel is designed 
to address the operating needs of the mode(s) the tunnel serves. For 
example, the air vent system for a highway tunnel typically would be 
more extensive than for a tunnel serving only transit, but repairs 
performed on highway tunnel air vents within the right-of-way would not 
be expected to have significant environmental effects. In the Agencies' 
experience, the level of impacts for these actions is typically not 
significant because the actions are limited to the existing right-of-
way and must substantially conform to the preexisting design, function, 
and location of the original facility.
    The CEs would only cover the repair, reconstruction, retrofit, or 
replacement of an existing tunnel as long as it occurs within the 
existing right-of-way and in a manner that substantially conforms to 
the preexisting design, function, and location as the original. 
Including those conditions in the text of the CE ensures its 
applicability does not extend to construction of new tunnels. There may 
be situations when the nature of the damage to a tunnel (e.g., complete 
collapse) or the activity needed (e.g., substantial reconstruction or 
replacement) would warrant careful consideration of unusual 
circumstances. In these situations, the reviewer must determine if 
further environmental studies are needed to determine if the CE 
classification is proper or if a different class of NEPA review is 
warranted.
    In response to the six questions noted below, seven State DOTs, 
three public interest groups, and one transit agency commented overall 
on the questions and proposal, stating that the Agencies needed to 
allow for flexible interpretation of the language in section 1315(a) of 
MAP-21. A specific concern with section 1315(a) was that the language 
could preclude use of the CE for projects that meet current design 
standards. The commenters encouraged an interpretation of this language 
to mean that the project meets the ``present-day equivalent of the 
original design standards for the facility.'' One commenter 
specifically noted that they have experienced frequent emergency 
projects in recent years with extreme weather events that ``bring high 
rainfall and runoff rates, as well as tidal surges that lead to river 
and marsh flows over top of roads, bridges and culverts.'' The 
commenter noted this has resulted in washed out pipe culverts and 
collapse of the roadways over the culverts. The commenter also reported 
experience with pavement and long-term road closures due to storm surge 
events on coastal roadways resulting in interruption of travel and 
evacuation routes. The commenter noted that in-kind replacements 
guarantee repeat failures and are a waste of taxpayer money. In 
addition, another commenter noted that the Federal Emergency Management 
Agency (FEMA) includes some of the proposed activities as a CE under 44 
CFR 10.8(d)(2)(xv) (FEMA CE (xv)) for the``[r]epair, reconstruction, 
restoration, elevation, retrofitting, upgrading to current codes and 
standards, or replacement of any facility in a manner that 
substantially conforms to the preexisting design, function, and 
location.''
    The Agencies agree with these comments. Upgrades to current codes 
and standards can avoid repetitive damage to transportation facilities 
and can also help protect public safety and health. Additionally, in 
certain situations, environmental conditions have changed to a degree 
that would warrant consideration of more protective measures than the 
existing codes and standards. Allowing these actions for damaged 
facilities is consistent with MAP-21's section 1315(b) requirement that 
the Secretary ensure the rule helps conserve Federal resources and 
protect public safety and health.
    The Agencies have relied on their past experience as well as on 
benchmarking CEs covering similar activities, such as on the FEMA CE 
(xv) (44 CFR 10.8(d)(2(xv)), to modify the language originally proposed 
in 23 CFR 771.117(c)(9)(ii) of the NPRM for the final rule. The FEMA's 
CE is explicitly for ``[r]epair, reconstruction, restoration, 
elevation, retrofitting, upgrading to current codes and standards, or 
replacement of any facility in a manner that substantially conforms to 
the preexisting design, function, and location.'' The final rule 
modifies the proposed 23 CFR 771.117(c)(9)(ii) language and establishes 
771.118(11)(ii) to read, ``[t]he repair, reconstruction, restoration, 
retrofitting, or replacement of any road, highway, bridge, tunnel, or 
transit facility (such as a ferry dock or bus transfer station), 
including ancillary transportation facilities (such as pedestrian/
bicycle paths and bike lanes), that is in operation or under 
construction when damaged and the action: (A) [o]ccurs within the 
existing right-of-way and in a manner that substantially conforms to 
the preexisting design, function, and location as the original (which 
may include upgrades to meet existing codes and standards as well as 
upgrades warranted to address conditions that have changed since the 
original construction); and [i]s commenced within a 2-year period 
beginning on the date of the declaration.'' The Agencies' repair, 
reconstruction, restoration, retrofit, and replacement actions are 
similar to FEMA's actions of Federal financial assistance for 
transportation facilities. The Agencies' and FEMA's actions are 
typically carried out as permanent work that is eligible under a post-
disaster assistance program. The only difference between a FEMA-funded 
and a FHWA- or FTA-funded repair, reconstruction, restoration, 
retrofit, or replacement of road, bridge, or transit facility is the 
funding source. The nature and typical level of impacts are similar, 
particularly when the actions substantially conform to the preexisting 
design, function, and location. In the Agencies' experience the level 
of impacts for these actions are typically not significant because the 
actions are limited to the existing right-of-way and must substantially 
conform to the preexisting design, function, and location of the 
original facility. This is consistent with FEMA's availability and use 
of FEMA CE (xv) and a review of FEMA's publicly available NEPA 
documents. A substantiation record summary based on benchmarking is 
provided in the docket for this rulemaking.
    The term ``reconstruction'' means the demolition and rebuilding of 
a damaged facility, or part of a damaged facility, within the same 
footprint of the original. The term ``retrofitting'' refers to the 
addition of elements to a damaged facility to extend the life of the 
facility or to conform to a protective measure (e.g., earthquake 
retrofit, measure to reduce flood vulnerability, safety). The term 
``replacement'' is meant to capture situations where a comparable 
facility is needed. These actions are covered by the new CE language as 
long as they occur within the existing right-of-way and in a manner 
that substantially conforms to the preexisting design, function, and 
location as the original.
    The phrase ``substantially conforms to the preexisting design, 
function, and location'' is used to limit the amount of ground 
disturbance or resource impact. The phrase ``substantially conforms'' 
allows for some deviation from the

[[Page 11598]]

original footprint, design, and function, but does not allow 
construction of a facility that is substantially different in nature. 
This addition goes beyond the language provided in section 1315 of MAP-
21, but is consistent with the Agencies' practice in funding these 
actions. Work is restricted to the area within the existing right-of-
way as an additional measure to limit the likelihood of potential 
impacts to protected resources. The phrase ``which may include upgrades 
to meet existing codes and standards as well as upgrades warranted to 
address conditions that have changed since the original construction'' 
allows for the restoration of the facility taking into account up-to-
date codes and standards, but also allows for situations where 
restoration should accommodate changed conditions. For example, new 
flood risk information could be taken into account in the design of the 
transportation facility even when the community has not adopted a 
higher floodplain code. Another example is when the reconstruction of 
water crossing presents an opportunity to address fish passage 
concerns. In these situations conditions have changed since the 
original construction that may warrant a construction approach that 
goes beyond existing codes and standards. As previously noted, even if 
the new CE language applies, the Agencies must comply with the 
requirements of other environmental laws (e.g., section 106 under NHPA, 
section 404 of the CWA, 23 U.S.C. 138/49 U.S.C. 303 (section 4(f)), 
section 7 under ESA, bridge permits under the General Bridge Act of 
1946) to address impacts in those unique situations where protected 
resources are present in the existing right-of-way.
    The language in the final rule addresses the six additional 
activities proposed in the NPRM and comments received from the public 
on the inclusion of these activities. Below is a discussion of comments 
received on each of the proposed additional activities and how the 
final rule language reflects modifications to the proposal in response 
to these comments.
    (1) Construction of engineering and design changes to a damaged 
facility to meet current design standards
    One commenter expressed support for including this activity as a 
CE, noting that FEMA includes this activity as a CE under 44 CFR 
10.8(d)(2)(xv), which allows for a CE for the ``[r]epair, 
reconstruction, restoration, elevation, retrofitting, upgrading to 
current codes and standards, or replacement of any facility in a manner 
that substantially conforms to the preexisting design, function and 
location.'' Others commented in support of this provision with one 
noting that ``this provision would help to ensure that emergency repair 
projects can qualify for a CE when they are designed to meet current 
standards.''
    The Agencies agree with these comments and modified the proposed 
language in the NPRM. The new sections 771.117(c)(9)(ii) and 
771.118(c)(11)(ii) provide for the ``repair, reconstruction, 
restoration, retrofitting, or replacement of any road, highway, bridge, 
tunnel, or transit facility (such as a ferry dock or bus transfer 
station), including ancillary transportation facilities (such as 
pedestrian/bicycle paths and bike lanes), that is in operation or under 
construction when damaged and the action: (A) [o]ccurs within the 
existing right-of-way and in a manner that substantially conforms to 
the preexisting design, function, and location as the original (which 
may include upgrades to meet existing codes and standards as well as 
upgrades warranted to address conditions that have changed since the 
original construction); and [i]s commenced within a 2-year period 
beginning on the date of the declaration.'' A substantiation record 
summary which includes benchmarking FEMA's CE(xv), is provided in the 
docket for this rulemaking.
    (2) Repair and reconstruction of adjacent transportation facilities 
within the right-of-way damaged by the emergency (such as bike paths or 
ancillary structures);
    One commenter noted that ``adjacent facilities often are affected 
by emergencies and are in need of emergency repairs at the same time 
primary facilities are repaired. Not repairing adjacent facilities may 
expose the primary facility to further damage and increase the risk of 
repeated failure.'' Another commenter noted that many of the listed 
activities are already covered under 23 CFR 771.117(c) and expressed 
support for including this activity in the CE. One commenter 
recommended inclusion of ``transportation facilities and infrastructure 
damaged by the emergency'' in this provision.
    The Agencies agree with these comments and have included ancillary 
transportation facilities in the final CE language. Ancillary 
transportation facilities, such as pedestrian/bicycle paths, bike 
lanes, and streetscape, contribute to the function of the road, 
highway, bridge, tunnel, or transit facility and are co-located to 
provide for the overall functioning of the transportation system 
network. Permanently repairing such adjacent facilities that previously 
existed or are under construction at the time of the incident and are 
co-located with the primary transportation facility ensures that 
already approved transportation facilities are fully replaced and 
provides for the complete functioning of the transportation network 
damaged by the incident. With this change, the CE language would cover 
the whole project when the restoration of the road, highway, bridge, 
tunnel, or transit facility includes repairing damaged ancillary 
facilities. In the Agencies' experience, the level of impacts of 
restoring damaged ancillary transportation facilities is typically not 
significant when they are limited to the existing right-of-way and must 
substantially conform to the preexisting design, function, and location 
of the original facility. This is consistent with FEMA's availability 
and use of FEMA CE (xv) and a review of FEMA's publicly available NEPA 
documents. A substantiation record summary based on benchmarking is 
provided in the docket for this rulemaking.
    (3) Construction of betterments to the damaged facilities beyond 
those eligible under 23 U.S.C. 125;
    Two commenters noted that inclusion of betterments would provide 
the opportunity to address scenarios where a culvert affected by an 
emergency is too small to handle the current debris flows. Inclusion of 
betterments would provide opportunities to install appropriately sized 
culverts and to armor bridge abutments as part of permanent repairs 
resulting from an emergency and help reduce long-term environmental 
impacts by reducing the frequency of catastrophic failure. One 
commenter stated that some betterments are minor activities, such as 
installation of riprap or raising the elevation of the roadway, and 
that these activities may add to the safety and life expectancy of the 
facility. One commenter noted that many betterments are already listed 
CEs. Additionally, other commenters expressed concerns about the lack 
of specificity as to what constituted betterments beyond those eligible 
under 23 U.S.C. 125.
    The FHWA defines ``betterments'' as ``[a]dded protective features, 
such as rebuilding of roadways at a higher elevation or the lengthening 
of bridges, or changes which modify the function or character of a 
highway facility from what existed prior to the disaster or 
catastrophic failure, such as additional lanes or added access 
control'' (23 CFR 668.103). Under the FHWA Emergency Relief Program, 
betterments are eligible

[[Page 11599]]

for Federal assistance if they are economically justified in accordance 
with 23 CFR 668.109(b)(6). Betterments may add protective features 
within the right-of-way such as rebuilding roadways at a higher 
elevation, installation of riprap, raising bridges, increasing the size 
of drainage structures, installation of seismic retrofits on bridges, 
and adding scour protection at bridges. Betterments may also add 
protective features that do not take place in the right-of-way such as 
relocating roadways or stabilizing slide areas. Another group of 
betterments involve the change of function or character of the 
transportation facility such as adding grade separations and improving 
access control. Upgrades to current codes and standards are eligible 
actions but are not considered to be ``betterments.'' The FTA does not 
currently use the term ``betterments.''
    The Agencies believe that they do not need to specifically call out 
``betterments'' in the new CE language because it is not a term of art 
that is used in the FTA Emergency Relief Program. The Agencies agree 
that the new CE language can include some improvements on the original 
project or facility that was damaged, particularly if they help 
conserve Federal resources and protect public safety and health (see 
MAP-21 sec. 1315(b)). Therefore, improvements that are related to the 
covered activities (i.e., repair, reconstruction, restoration, 
retrofitting, or replacement) and that meet the specified conditions 
(i.e., occur within the existing right-of-way and in a manner that 
substantially conforms to the preexisting design, function, and 
location as the original) are covered by the new CE language. For 
example, enlarging a culvert or armoring activities may be covered if 
they are needed for the upgrade of the facility to current codes, 
conditions, and standards.
    One commenter specifically commented that betterments ``may either 
deliberately or inadvertently facilitate increased traffic capacity 
and/or cause significant ground disturbance in previously undisturbed 
areas. These actions could significantly impact archaeological 
properties, historic facilities (such as the road or bridge needing 
repair), or a historic district that surrounds or is adjacent to the 
facility needing repair'' and noted that compliance with 36 CFR part 
800 typically is required for actions of this type. The commenter 
acknowledged that a CE does not equate to a waiver of section 106 
requirements, but thought that confusion may result on the part of 
agencies responsible for fulfilling NEPA requirements on the project. 
The commenter recommended that the final rule clarify that the CE does 
not exempt the Agencies from other regulatory requirements and should 
``specify extraordinary circumstances as an integral element of the 
categorical exclusion to ensure that where appropriate, the presence of 
historic properties may require a more extensive environmental review 
under NEPA.''
    The Agencies agree with the comment. The Agencies have clarified 
throughout the preamble of this final rule the requirement for 
consideration of unusual circumstances, which give rise to the 
potential for significant impacts on properties protected by 23 U.S.C. 
138/49 U.S.C. 303 (section 4(f)) or section 106 of NHPA (sections 
771.117(b)(3) and 771.118(b)(3)), when applying the CE to a proposed 
action. The Agencies also acknowledge the need for compliance with 
other environmental requirements in addition to NEPA. Finally, through 
the language in this final rule, the Agencies are applying this CE only 
to those improvements that are part of the reconstruction, retrofit, or 
replacement action when they occur within the existing right-of-way and 
substantially conform to the pre-existing design, function, and 
location as the original.
    (4) Construction of engineering and design changes to a damaged 
facility for the purpose of seismic retrofitting;
    One commenter suggested broadening this provision to allow for 
seismic retrofitting prior to a natural disaster or structure failure 
in addition to seismic retrofitting following an event that caused 
damage in order to extend the life of the facility. The commenter noted 
that seismic retrofitting to prevent damage might result in less damage 
to the environment than waiting to perform seismic retrofitting 
activities after damage has occurred. Another commenter expressed 
support for inclusion of seismic retrofitting activities in the CE.
    Seismic retrofits of a damaged facility (i.e., road, highway, 
bridge, tunnel, transit facility, or ancillary transportation facility) 
would be covered by the new CE language. The new CE language 
specifically addresses the need for expediency in the restoration of 
transportation infrastructure damaged by qualifying events and to 
capitalize on the opportunity created by these events to incorporate 
resiliency principles in these restoration activities. Incorporation of 
resiliency principles would help conserve Federal resources by avoiding 
repetitive damage to these facilities as a result of similar disasters 
and to avoid significant damage from other potential hazards. The 
Agencies agree that improving surface transportation facilities before 
a disaster strikes is the ideal approach. Seismic retrofits prior to a 
disaster are outside the scope of section 1315(a) of MAP-21 and this 
regulation. However, the Agencies note that there are other CEs in 23 
CFR part 771 that could be relied upon to make improvements to a 
transportation facility prior to a disaster such as 23 CFR 
771.117(c)(12), (c)(8), (d)(1), (d)(2), and (d)(3) for FHWA actions and 
23 CFR 771.118(c)(1), (c)(2), (c)(8), (d)(1), and (d)(6) for FTA 
actions.
    (5) Construction of engineering and design changes to a damaged 
facility to deal with future extreme weather events and sea level rise;
    One commenter expressed support for inclusion of this provision and 
provided an example of improvements made to a bridge, and processed as 
a CE, that allowed for improvements to the bridge as part of emergency 
repairs that increased the likelihood of the structure withstanding the 
stresses of future extreme weather events. The commenter also provided 
other examples of roadways that were improved to accommodate future 
storm events after being washed out. Another commenter expressed 
support of this provision and noted that recent severe storm events on 
the East Coast underscore the importance of providing flexibility to 
States to easily update infrastructure design to upgrade facilities 
after storm events to accommodate future storm events.
    The Agencies agree that the new CE language should allow for some 
improvements on the original transportation facility based on the 
Agencies' experience with past actions, consideration of FEMA's 
experience with its CE (xv), and the determination that those types of 
improvements do not typically have a significant effect on the 
environment. Changes to a damaged facility that are related to the 
covered activities (i.e., repair, reconstruction, restoration, 
retrofitting, or replacement) and that meet the specified conditions 
(i.e., occur within the existing right-of-way and in a manner that 
substantially conforms to the preexisting design, function, and 
location as the original) are covered by the new CE language. The 
phrase ``substantially conforms to the preexisting design, function, 
and location'' is used to limit the amount of ground disturbance or 
resource impact. The phrase ``substantially conforms'' allows for some 
deviation from the original footprint, but does not allow construction 
of a facility that is substantially different in nature. Improvements 
that are not covered by

[[Page 11600]]

the new CE language may be covered by other CEs in 23 CFR part 771 such 
as 23 CFR 771.117(c)(12), (c)(8), (d)(1), (d)(2), and (d)(3) for FHWA 
actions and 23 CFR 771.118(c)(1), (c)(2), (c)(8), (d)(1), and (d)(6) 
for FTA actions.
    One commenter raised concerns about the potential impacts of these 
types of actions on the human environment. The commenter provided that, 
as an example, projects covered by this provision could involve 
potential relocation of infrastructure to accommodate sea level rise. 
One commenter proposed inclusion of additional text should the final 
rule include the six proposed additional activities: ``(7) 
Modifications to the design or betterments to a damaged facility shall 
be a CE if such changes do not expand the footprint of the facility or 
have negative environmental impacts that would be greater than a 
reconstruction without such modifications or betterments.''
    The Agencies agree that some actions under the proposed activity 
could raise environmental impact concerns, which is one of the reasons 
for consideration of unusual circumstances prior to applying the CE. In 
the Agencies' experience the level of impacts for these actions is 
normally not significant. The Agencies have created restrictions that 
limit the amount and level of environmental impacts, including impacts 
on the human environment. The phrase ``substantially conforms to the 
preexisting design, function, and location'' is used to limit the 
amount of ground disturbance or resource impact. The phrase 
``substantially conforms'' allows for some deviation from the original 
footprint, but does not allow construction of a facility that is 
substantially different in nature. In addition, work is restricted to 
the area within the existing right-of-way as an additional measure to 
limit impacts to protected resources. The proposed actions must 
continue to meet the requirements of other environmental laws (e.g., 
section 106 under NHPA, section 404 of CWA, 23 U.S.C. 138/49 U.S.C. 303 
(section 4(f)), section 7 under ESA, bridge permits under the General 
Bridge Act of 1946) when protected resources are present in the 
existing right-of-way. The additional safeguards provided under other 
applicable laws and regulations provide further assurance that the 
activities included in the new FHWA and FTA CEs do not have the 
potential to result in significant impacts on the human environment. 
This is consistent with FEMA's availability and use of FEMA CE (xv) and 
a review of FEMA's publicly available NEPA documents. A substantiation 
record summary based on benchmarking is provided in the docket for this 
rulemaking.
    (6) Construction of other engineering and design changes to a 
damaged facility to address concerns such as safety and environmental 
impacts.
    Two commenters supported allowing proactive approaches to natural 
hazards under the emergency repairs CE, like design and engineering 
changes to address earthquakes, extreme weather events, sea level rise, 
and other safety and environmental impacts. One commenter stated that 
including these activities in the CE will allow States and transit 
agencies to reduce the impact of future emergency events, rather than 
limiting the agencies' efforts merely to reacting to emergencies. One 
commenter expressed support for this provision noting the example 
modifications to a roadway following a washout event that provided the 
opportunity for the State DOT to modify the roadway revetment and 
protect sea turtle nesting habitat. One commenter noted that these 
activities should be expanded to include transit related 
infrastructure.
    The final CE language in sections 771.117(c)(9)(ii) and 
771.118(c)(11)(ii) includes engineering and design changes to address 
safety and environmental impacts as long as they are related to the 
covered activities (i.e., repair, reconstruction, restoration, 
retrofitting, or replacement) and meet the specified conditions (i.e., 
occur within the existing right-of-way and in a manner that 
substantially conforms to the preexisting design, function, and 
location as the original). As discussed above, the final language 
includes ``transit facilities'' in the infrastructure covered by the 
new CE language.

Statutory/Legal Authority for This Rulemaking

    The Agencies derive explicit authority for this rulemaking action 
from 49 U.S.C. 322, which provides authority to ``[a]n officer of the 
Department of Transportation [to] prescribe regulations to carry out 
the duties and powers of the officer.'' That authority is delegated to 
the Agencies through 49 CFR 1.81(a)(3), which provides that the 
authority to prescribe regulations contained in 49 U.S.C. 322 is 
delegated to each Administrator ``with respect to statutory provisions 
for which authority is delegated by other sections in [49 CFR Part 
1].'' Included in 49 CFR part 1, specifically 49 CFR 1.81(a)(5), is the 
delegation of authority with respect to NEPA, the statute implemented 
by this final rule. Moreover, the Council on Environmental Quality 
regulations that implement NEPA provide at 40 CFR 1500.6 that 
``[a]gencies shall review their policies, procedures, and regulations 
accordingly and revise them as necessary to insure full compliance with 
the purposes and provisions of [NEPA].''

Rulemaking Analyses and Notices

    The Agencies considered all comments received before the close of 
business on the comment closing date indicated above, and the comments 
are available for examination in the docket at the above address. The 
Agencies also considered comments received after the comment closing 
date and filed in the docket prior to this final rule.

Immediate Effective Date

    The Agencies have determined that this rule be made effective 
immediately upon publication. The Administrative Procedure Act (5 
U.S.C. 553(d)) requires that a rule be published 30 days prior to its 
effective date unless one of three exceptions applies. One of these 
exceptions is when the agency finds good cause for a shorter period. 
Here, the Agencies have determined that ``good cause'' exists for 
immediate effectiveness of this rule because this rule is expected to 
apply in many cases that address the immediate need to fund repairs of 
transit systems facilities and equipment damaged by Hurricane Sandy. 
Hurricane Sandy affected mid-Atlantic and northeastern States in 
October 2012, and particularly devastated transit operations in New 
Jersey and New York. These operations serve about 40 percent of all 
transit riders in the country. With Congress' passage of supplemental 
appropriations, Public Law 113-2, that fund FTA's Emergency Relief 
Program authorized at 49 U.S.C. 5324, immediate promulgation of the 
categorical exclusion for actions under that program will expand the 
FTA's ability to support much needed Hurricane Sandy recovery efforts 
and process these new funding requests in an expeditious manner, while 
still ensuring that the environment is protected. Thus, it is in the 
public interest for this final rule to have an immediate effective 
date. The Agencies acknowledge that although the justification for 
making this rule immediately effective stems from the need for transit 
recovery actions in response to Hurricane Sandy, the revisions 
contained within this final rule will be immediately applicable to a 
broader suite of the Agencies' funded and approved projects.

[[Page 11601]]

Executive Orders 12866 and 13563 (Regulatory Planning and Review) and 
DOT Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). The 
Agencies have determined that this action would not be a significant 
regulatory action under section 3(f) of Executive Order 12866 nor would 
it be significant within the meaning of Department of Transportation 
regulatory policies and procedures (44 FR 11032). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. It 
is anticipated that the economic impact of this rulemaking would be 
minimal. The changes that this rule proposes are requirements mandated 
by MAP-21 increase efficiencies in environmental review by making 
changes in the Agencies' environmental review procedures.
    The activities this final rule adds to sections 771.117(c)(9) and 
771.118(c)(11), which are described in section 1315(a), are inherently 
limited in their potential to cause significant environmental impacts 
because the use of the CEs is subject to the unusual circumstances 
provision in 23 CFR 771.117(b) and 23 CFR 771.118(b), respectively. 
These provisions require appropriate environmental studies, and may 
result in the reclassification of the NEPA evaluation of the project to 
an EA or EIS, if the Agencies determine that the proposal involves 
potentially significant or significant environmental impacts. These 
changes would not adversely affect, in any material way, any sector of 
the economy. In addition, these changes would not interfere with any 
action taken or planned by another agency and would not materially 
alter the budgetary impact of any entitlements, grants, user fees, or 
loan programs. Consequently, a full regulatory evaluation is not 
required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the Agencies evaluated the effects of this final 
rule on small entities and anticipate that this action would not have a 
significant economic impact on a substantial number of small entities. 
The revision could streamline environmental review and thus would be 
less than any current impact on small business entities.

Unfunded Mandates Reform Act of 1995

    This final rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This final rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$148.1 million or more in any one year (2 U.S.C. 1532). Further, in 
compliance with the Unfunded Mandates Reform Act of 1995, the agencies 
will evaluate any regulatory action that might be proposed in 
subsequent stages of the proceeding to assess the effects on State, 
local, and tribal governments and the private sector.

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. This action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132, and the Agencies have determined that this action would 
not have sufficient federalism implications to warrant the preparation 
of a federalism assessment. The Agencies have also determined that this 
action will not preempt any State law or State regulation or affect the 
States' ability to discharge traditional State governmental functions. 
The NPRM invited State and local governments with an interest in this 
rulemaking to comment on the effect that adoption of specific proposals 
may have on State or local governments. No comments on this issue were 
provided by State or local governments.

Executive Order 13175 (Tribal Consultation)

    The Agencies have analyzed this action under Executive Order 13175, 
dated November 6, 2000, and believe that it would not have substantial 
direct effects on one or more Indian tribes; would not impose 
substantial direct compliance costs on Indian tribal governments; and 
would not preempt tribal law. Therefore, a tribal summary impact 
statement is not required.

Executive Order 13211 (Energy Effects)

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

Executive Order 12372 (Intergovernmental Review)

    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 for each collection of information they conduct, 
sponsor, or require through regulations. The Agencies determined that 
final rule does not contain collection of information requirements for 
the purposes of the PRA.

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 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a), 91 FR 27534, May 10, 2012, require DOT agencies to 
achieve environmental justice (EJ) as part of their mission by 
identifying and addressing, as appropriate, disproportionately high and 
adverse human health or environmental effects, including interrelated 
social and economic effects, of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. The DOT Order requires DOT agencies to address 
compliance with the Executive Order and the DOT Order in all

[[Page 11602]]

rulemaking activities. In addition, both Agencies have issued 
additional documents relating to administration of the Executive Order 
and the DOT Order. On June 14, 2012, the FHWA issued an update to its 
EJ order, FHWA Order 6640.23A, ``FHWA Actions to Address Environmental 
Justice in Minority Populations and Low Income Populations'' (available 
online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). FTA 
also issued an update to its EJ policy, ``FTA Policy Guidance for 
Federal Transit Recipients'', 77 FR 42077, July 17, 2012 (available 
online at www.fta.dot.gov/legislation_law/12349_14740.html).
    The Agencies have evaluated the CE under the Executive Order, the 
DOT Order, the FHWA Order, and the FTA Circular. The Agencies have 
determined that the designation of the new CE for emergency actions 
through this rulemaking will not cause disproportionately high and 
adverse effects on minority or low income populations. The rule simply 
adds a provision to the Agencies' NEPA procedures under which they may 
decide in the future that a project or program does not require the 
preparation of an EA or EIS. The rule itself has no potential for 
effects until it is applied to a proposed action requiring approval by 
the FHWA or FTA.
    At the time the Agencies apply the CE established by this 
rulemaking, the Agencies have an independent obligation to conduct an 
evaluation of the proposed action under the applicable EJ orders and 
guidance. The adoption of this rule does not affect the scope or 
outcome of that EJ evaluation. Nor does the new rule affect the ability 
of affected populations to raise any concerns about potential EJ 
effects at the time the Agencies consider applying the new CE. Indeed, 
outreach to ensure the effective involvement of minority and low income 
populations in the environmental review process is a core aspect of the 
EJ orders and guidance. For these reasons, the Agencies also have 
determined no further EJ analysis is needed and no mitigation is 
required in connection with the designation of the CE for emergency 
actions.

Executive Order 13045 (Protection of Children)

    The Agencies have analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. The Agencies certify that this action would not concern an 
environmental risk to health or safety that may disproportionately 
affect children.

Executive Order 12630 (Taking of Private Property)

    The Agencies do not anticipate that this action would affect a 
taking of private property or otherwise have taking implications under 
Executive Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights.

National Environmental Policy Act

    Agencies are required to adopt implementing procedures for NEPA 
that establish specific criteria for, and identification of, three 
classes of actions: Those that normally require preparation of an EIS; 
those that normally require preparation of an EA; and those that are 
categorically excluded from further NEPA review (40 CFR 1507.3(b)). The 
Council on Environmental Quality (CEQ) regulations do not direct 
agencies to prepare a NEPA analysis or document before establishing 
Agency procedures (such as this regulation) that supplement the CEQ 
regulations for implementing NEPA. The CEs are one part of those agency 
procedures, and therefore establishing CEs does not require preparation 
of a NEPA analysis or document. Agency NEPA procedures are generally 
procedural guidance to assist agencies in the fulfillment of agency 
responsibilities under NEPA, but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular proposed action. The requirements for establishing agency 
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The 
determination that establishing CEs does not require NEPA analysis and 
documentation was upheld in Heartwood, Inc. v. U.S. Forest Service, 73 
F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 
(7th Cir. 2000).

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 RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects

23 CFR Part 771

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

49 CFR Part 622

    Environmental impact statements, Grant programs--transportation, 
Public transit, Recreation areas, Reporting and record keeping 
requirements.
    In consideration of the foregoing, the FHWA and FTA amend 23 CFR 
part 771 and 49 CFR part 622 as follows:

Title 23

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES.

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

    Authority:  42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 
138, 139, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR Parts 1500-
1508; 49 CFR 1.81, 1.85; Pub. L. 109-59, 119 Stat. 1144, sections 
6002 and 6010; Pub. L. 112-141, 126 Stat. 405, section 1315.


0
2. Amend Sec.  771.117 by revising paragraph (c)(9) to read as follows:


Sec.  771.117  FHWA categorical exclusions.

* * * * *
    (c) * * *
    (9) The following actions for transportation facilities damaged by 
an incident resulting in an emergency declared by the Governor of the 
State and concurred in by the Secretary, or a disaster or emergency 
declared by the President pursuant to the Robert T. Stafford Act (42 
U.S.C. 5121):
    (i) Emergency repairs under 23 U.S.C. 125; and
    (ii) The repair, reconstruction, restoration, retrofitting, or 
replacement of any road, highway, bridge, tunnel, or transit facility 
(such as a ferry dock or bus transfer station), including ancillary 
transportation facilities (such as pedestrian/bicycle paths and bike 
lanes), that is in operation or under construction when damaged and the 
action:
    (A) Occurs within the existing right-of-way and in a manner that 
substantially conforms to the preexisting design, function, and 
location as the original (which may include upgrades to meet existing 
codes and standards as well as upgrades warranted to address conditions 
that have changed since the original construction); and
    (B) Is commenced within a 2-year period beginning on the date of 
the declaration.
* * * * *

0
3. Amend Sec.  771.118 by adding paragraph (c)(11) to read as follows:


Sec.  771.118  FTA categorical exclusions.

* * * * *
    (c) * * *

[[Page 11603]]

    (11) The following actions for transportation facilities damaged by 
an incident resulting in an emergency declared by the Governor of the 
State and concurred in by the Secretary, or a disaster or emergency 
declared by the President pursuant to the Robert T. Stafford Act (42 
U.S.C. 5121):
    (i) Emergency repairs under 49 U.S.C. 5324; and
    (ii) The repair, reconstruction, restoration, retrofitting, or 
replacement of any road, highway, bridge, tunnel, or transit facility 
(such as a ferry dock or bus transfer station), including ancillary 
transportation facilities (such as pedestrian/bicycle paths and bike 
lanes), that is in operation or under construction when damaged and the 
action:
    (A) Occurs within the existing right-of-way and in a manner that 
substantially conforms to the preexisting design, function, and 
location as the original (which may include upgrades to meet existing 
codes and standards as well as upgrades warranted to address conditions 
that have changed since the original construction); and
    (B) Is commenced within a 2-year period beginning on the date of 
the declaration.
* * * * *

Title 49

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
4. The authority citation for subpart A is revised to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303; 23 U.S.C. 139 
and 326; Pub. L. 109-59, 119 Stat. 1144, sections 6002 and 6010; 40 
CFR parts 1500-1508; 49 CFR 1.81, 1.85; and Pub. L. 112-141, 126 
Stat. 405, section 1315.

    Issued on: February 8, 2013.
Victor M. Mendez,
Federal Highway Administrator.
Peter Rogoff,
Federal Transit Administrator.
[FR Doc. 2013-03494 Filed 2-15-13; 8:45 am]
BILLING CODE 4910-22-P