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Environmental Impact and Related Procedures--Programmatic Agreements and Additional Categorical Exclusions

American Government Special Collections Reference Desk

American Government

Environmental Impact and Related Procedures--Programmatic Agreements and Additional Categorical Exclusions

Gregory G. Nadeau
Federal Highway Administration
Therese W. McMillan
Federal Transit Administration
October 6, 2014


[Federal Register Volume 79, Number 193 (Monday, October 6, 2014)]
[Rules and Regulations]
[Pages 60100-60116]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23660]


=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 771

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2013-0049]
FHWA RIN 2125-AF59]
FTA RIN 2132-AB14


Environmental Impact and Related Procedures--Programmatic 
Agreements and Additional Categorical Exclusions

AGENCY: Federal Highway Administration (FHWA), Federal Transit 
Administration (FTA), Department of Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the FHWA and FTA joint procedures that 
implement the National Environmental Policy Act (NEPA) by adding new 
categorical exclusions (CE) for FHWA and FTA; allowing State 
departments of transportation (State DOT) to process certain CEs 
without FHWA's detailed project-by-project review and approval as long 
as the action meets specific constraints; and adding a new section on 
programmatic agreements between FHWA and State DOTs that allow State 
DOTs to apply FHWA CEs on FHWA's behalf, as described in section 1318 
of the Moving Ahead for Progress in the 21st Century Act (MAP-21).

DATES: Effective on November 5, 2014.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Owen Lindauer, Ph.D., 
Office of Project Delivery and Environmental Review (HEPE), (202) 366-
2655, or Jomar Maldonado, Office of the Chief Counsel (HCC), (202) 366-
1373, Federal Highway Administration,

[[Page 60101]]

1200 New Jersey Ave. SE., Washington, DC 20590-0001. For the FTA: Megan 
Blum, Office of Planning and Environment (TPE), (202) 366-0463, or 
Nancy-Ellen Zusman, Office of Chief Counsel (TCC), (312) 353-2577. 
Office hours are from 8:00 a.m. to 4:30 p.m. e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

General 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 the FTA, hereafter referred to as the ``Agencies,'' must meet 
related to the NEPA (42 U.S.C. 4321 et seq.). The Agencies' joint 
procedures at 23 CFR part 771 describe how the Agencies comply with 
NEPA and the Council on Environmental Quality (CEQ) regulations 
implementing NEPA; and include CEs that identify actions the Agencies 
have determined do not normally have the potential for significant 
environmental impacts and therefore do not require the preparation of 
an environmental assessment (EA) or environmental impact statement 
(EIS), pursuant to 40 CFR 1508.4. Section 771.117 establishes CEs for 
FHWA actions and Sec.  771.118 establishes CEs for FTA actions. 
Sections 771.117(c) and 771.118(c) establish specific lists of 
categories of actions, or ``(c)-list'' CEs, that the Agencies have 
determined normally do not individually or cumulatively have a 
significant effect on the human environment and do not require an EA or 
EIS. Sections 771.117(d) and 771.118(d) list examples of actions that 
may be categorically excluded from further NEPA review but require 
additional documentation demonstrating that the specific criteria for a 
CE are satisfied and that no significant environmental impacts will 
result from the action. The list of examples of actions that may be 
excluded as ``(d)-list'' CEs is not exclusive and the authority may be 
used for actions that are not included in the list of examples. 
Additionally, Sec. Sec.  771.117 and 771.118 include the requirement 
for considering unusual circumstances, which is how the Agencies 
consider extraordinary circumstances, in accordance with the CEQ 
regulations. The presence of ``unusual circumstances'' requires that 
the Agencies ``conduct appropriate environmental studies to determine 
if the CE classification is proper'' pursuant to Sec. Sec.  771.117(b) 
or 771.118(b). The potential for unusual circumstances for a project 
does not automatically trigger an EA or EIS. The FTA requires Agency 
approval for all CEs. The FHWA requires detailed project-by-project 
review and approval only for (d)-list CEs.
    Section 1318 of MAP-21 requires the Secretary of Transportation to: 
(1) survey and publish the results of the use of CEs for transportation 
projects since 2005 and solicit requests for new CEs; (2) publish a 
notice of proposed rulemaking (NPRM) to propose new CEs received by the 
Secretary to the extent that the CEs meet the criteria for a CE under 
40 CFR 1508.4 and 23 CFR part 771; and (3) issue an NPRM to move three 
actions found in 23 CFR 771.117(d)(1) through (3) to paragraph (c) to 
the extent that such movement complies with the criteria for a CE under 
40 CFR 1508.4. In addition, section 1318(d) directs the Secretary to 
seek opportunities to enter into programmatic agreements, including 
agreements that would allow a State to determine, on behalf of FHWA, 
whether a project is categorically excluded. The Agencies are carrying 
out this rulemaking on behalf of the Secretary.
    This final rule contains a description of the notice of NPRM issued 
on September 19, 2013 (78 FR 57587), a summary of public comments 
received on that NPRM and responses to those comments, and a 
description of the final regulatory text at the end of this rule. 
Changes to the regulatory text not described in the summary and 
response to comments are described in the Section-by-Section Analysis. 
Following the Section-by-Section Analysis, this rule explains the 
various rulemaking requirements that apply and how they have been met.

Notice of Proposed Rulemaking

    On September 19, 2013, the Agencies published an NPRM proposing 
amendments to 23 CFR 771.117 and 771.118 as mandated by sections 1318 
of MAP-21. The Agencies proposed to: (1) add four new CEs for FHWA and 
five new CEs for FTA, (2) allow FHWA to process CEs in Sec.  
771.117(d)(1) through (3) as (c)-list CEs when the action meets 
specified constraints, and (3) add a new section allowing programmatic 
agreements between FHWA and State DOTs to permit State DOTs to apply 
FHWA CEs on the Agency's behalf. The NPRM sought comments on how the 
Agencies proposed to interpret and implement the provision.
    The public comment period closed on November 18, 2013. The Agencies 
considered all comments received when developing this final rule.

Summary of and Responses to Comments

    The Agencies received comments from a total of 30 entities, which 
included 12 State DOTs (Alaska, California, Colorado, Florida, Ohio, 
Oklahoma, Oregon, Pennsylvania, Texas, Virginia, Wyoming, and 
Washington), 6 transit and rail agencies (Los Angeles County 
Metropolitan Transportation Authority, Metropolitan Transportation 
Authority of New York, New Jersey Transit, San Francisco Bay Area Rapid 
Transit District, Southern California Regional Rail Authority, and Utah 
Transit Authority), 4 public interest groups (National Trust for 
Historic Preservation, Natural Resources Defense Council, Southern 
Environmental Law Center, and Transportation Transformation Group), 3 
professional associations (American Association of State Highway and 
Transportation Officials, American Public Transportation Association, 
and American Road and Transportation Builders Association), 2 Federal 
agencies (U.S. Army Corps of Engineers and U.S. Department of the 
Interior), 1 Indian tribe (Osage Nation Historic Preservation Office), 
1 regional transportation consortium (Alameda Corridor-East 
Construction Authority, Orange County Transportation Authority, San 
Bernardino Associated Governments, and Southern California Regional 
Rail Authority) and 1 anonymous comment. The majority of commenters 
suggested additional clarifications on the use of CEs, including 
expanding or limiting their scope. The comments submitted have been 
organized by theme or topic.

General

    The FTA received 11 comments generally in support of the proposed 
rule change. Six of the comments provided overall support for all 
changes, while one comment specifically supported the new CEs added at 
Sec.  771.118(c)(14), (15), and (16). Four comments supported the 
changes made to Sec.  771.118(d), one of which offered additional 
supporting information.
    The FHWA received two comments that supported the consideration of 
programmatic CE agreements in Sec.  771.117(g). Two comments supported 
the statement in the preamble that early acquisitions of rights-of-way 
under Section 108(d) may be approved as (d) list CEs. One comment 
supported the six conditional constraints in 771.117(e) to condition 
the move of (d)-listed CE actions to the (c)-list. The FHWA reviewed 
109 comments on the new CEs, including the former (d)-list CEs

[[Page 60102]]

moved to the (c)-list. Additionally, FHWA received 28 comments on 
programmatic agreements in Sec.  771.117(g).
    The FTA and FHWA appreciate the comments received on the proposed 
rule.
    The FTA received a comment that suggested the numbering of the new 
CEs was incorrect. The numbering presented in the NPRM (i.e., the new 
CEs begin with Sec.  771.118(c)(14)) is correct as FTA recently added 
two new CEs at Sec.  771.118(12) and (13) through a separate rulemaking 
(see 79 FR 2107).

CE Development

    Five State DOTs and two professional associations noted that only a 
handful of the new CEs proposed by transportation agencies were 
considered appropriate to include and additional effort should have 
been expended to identify more.
    The Agencies are guided by their experience with CEs and considered 
the current administrative process for CE NEPA compliance. The Agencies 
also considered the survey results made public in the U.S. Department 
of Transportation National Environmental Policy Act Categorical 
Exclusion Survey Review (http://www.fhwa.dot.gov/map21/reports/sec1318report.cfm). The FHWA evaluated the results of the CE survey to 
determine which requested actions would be appropriate as CEs according 
to the criteria for a CE under 40 CFR 1508.4 and 23 CFR 771.117(a). The 
FHWA did not pursue requests for new CEs for actions that would 
duplicate already existing CEs, requests for new CEs that would not 
involve a FHWA action (e.g., projects ineligible for FHWA funding 
assistance), requests that would not meet the criteria for a CE under 
40 CFR 1508.4 and 23 CFR 771.117(a), or requests for new CEs for 
actions that would not have independent utility. The FHWA also 
eliminated proposed new CEs that would be covered by a statutorily 
mandated CE rulemaking under other MAP-21 provisions (e.g., emergency 
actions (section 1315), operational right-of-way actions (section 
1316), limited Federal assistance actions (section 1317), and the 
revision mandated by section 1318(c) for moving modernization of 
highways actions, highway safety actions, and bridge rehabilitation, 
reconstruction, or replacement actions from the (d)-list to the (c)-
list)). The FHWA evaluated the remaining actions proposed as CEs to 
eliminate those that did not meet the 40 CFR 1508.4 definition and 
those that were so broad that they could include actions with 
significant environmental effects. The FHWA determined that 13 requests 
of a total of 86 were appropriate for consideration. These 13 requests 
were grouped into 5 CEs. Four of the five CEs could be substantiated as 
new CEs. No additional information was provided during the comment 
period to substantiate new CEs.
    One professional association asked the Agencies to involve the 
regulated community as new CEs are developed. The commenter requested 
the Agencies to use stakeholder meetings as a forum to discuss the 
creation and implementation of CEs.
    The Agencies have involved State DOTs, transit authorities, 
metropolitan planning organizations, and other governmental agencies in 
the development of the new CEs in this rule. For example, the Agencies' 
new CEs created in this final rule are a direct response to the 
requests received for new CEs under the section 1318(a) survey process. 
The Agencies also relied on the public notification and comment process 
required in the rulemaking process, 40 CFR 1507.3, and the CEQ's 
guidance ``Establishing, Applying, and Revising Categorical Exclusions 
under the National Environmental Policy Act'' (75 FR 75628). The 
Agencies will provide outreach and training to their stakeholders such 
as State DOTs and transit agencies to ensure the appropriate 
implementation of the CEs. The FHWA is not planning to provide training 
to the public but FTA will be hosting a public Webinar that focuses on 
FTA's portion of the rule.

Environmental Review Process Efficiency

    Three State DOTs and one professional association expressed concern 
that the NPRM proposed little to help expedite project delivery and did 
not fully embrace flexibilities emphasized in MAP-21. Two State DOTs 
and one professional association indicated that the proposed rule was 
overly prescriptive and could limit States' flexibility. Two transit 
agencies and one professional association indicated that the rule will 
save time and costs and streamline the environmental review process. 
One State DOT and one professional association suggested re-writing the 
rule in a manner that is consistent with congressional intent to 
streamline process and reduce cost, and remove language that is not 
specifically required for compliance with the statute. One professional 
association stated that all newly created CEs must be implemented in a 
programmatic fashion, with no further agency review. A federally 
recognized Tribe indicated that a shortened review period for 
evaluation of highway projects may cause tribal governments hardship.
    The Agencies have undertaken various initiatives that are 
consistent with the mandates in MAP-21 to expedite project delivery and 
reduce project costs. These include flexibilities developed through 
FHWA's Every Day Counts initiative (http://www.fhwa.dot.gov/everydaycounts), FHWA and State DOTs' revisions and refinements of 
programmatic CE (PCE) agreements to process projects qualifying for 
CEs, and FTA's creation of its list of CEs (78 FR 8964). The Agencies 
also revised their lists of CEs to include new CEs pursuant to MAP-21 
Sections 1315 (78 FR 11593), 1316, and 1317 (79 FR 2107), which provide 
further flexibility to the environmental review process, expedite 
project delivery, and reduce project costs. This rulemaking continues 
the Agencies' implementation of the MAP-21 provisions to ensure 
efficient and effective planning. The Agencies have relied on their 
experience implementing NEPA for surface transportation projects and 
their experience in using tools to implement this review process 
efficiently (e.g., FHWA is relying on its 25-year experience of using 
PCE agreements as a tool to expedite the NEPA review processes (see 
FHWA's 1989 PCE Memorandum)). The Agencies determined that the language 
adopted in this final rule appropriately balanced the goal of providing 
flexibility and expeditious project delivery with the need to satisfy 
the Agencies' environmental review requirements and responsibilities. 
The Agencies must continue to meet their legal obligations for a 
project even if the project qualifies for a CE, which includes the 
Agencies' responsibilities to consult with Tribes.
    The U.S. Army Corps of Engineers (USACE) noted that Nationwide 
Permit 23 (NWP 23)--the Clean Water Act (CWA) section 404 Nationwide 
Permit for actions that qualify for CEs approved by the USACE--is an 
example of efficient regulatory review consistent with the goals of 
MAP-21. The USACE noted that it had previously approved FHWA CEs for 
this purpose but has not approved the new FHWA CEs or any of the FTA's 
CEs for use with NWP 23. As a result, those FHWA CEs moved from the 
(d)-list to the (c)-list would continue to require submittal of a pre-
construction notification. Lastly, USACE noted that if FTA would like 
their CEs to be covered under the permit, FTA would need to request 
USACE review and receive approval prior to using any of its CEs with 
NWP 23.

[[Page 60103]]

    The Agencies agree that until the USACE approves the new CEs for 
use under NWP 23, the CEs could not be used to meet NWP 23 and a pre-
construction notification would be needed. The FTA understands that its 
categorically excluded actions under Sec.  771.118 are not currently 
covered under the USACE NWP 23. The FTA has formally requested that 
USACE review FTA's CEs in order to utilize NWP 23 and FTA will 
communicate with the USACE further concerning the application of NWP 23 
to FTA actions.

Other Requirements

    One federally recognized Tribe indicated that the exemption from 
further review and permit requirements for a project did not eliminate 
the need for establishing the area of potential effect for that project 
under section 106 of the National Historic Preservation Act (NHPA), 
particularly for projects in areas that have not been previously 
surveyed. The Tribe indicated that historic preservation requirements 
under section 106 of NHPA are considered satisfied if treatment has 
been agreed upon in a memorandum of agreement but there was no 
provision to ensure that federally recognized tribes are included in 
the development of the agreement. The Tribe commented that the new 
rulemaking may authorize a State to use State review and approval laws 
and procedures in lieu of Federal laws and regulations, which has the 
potential to significantly worsen consistency issues.
    Requirements under other Federal and State laws and regulations 
still apply, such as the CWA, Clean Air Act, NHPA, General Bridge Act 
of 1946, and Endangered Species Act (ESA). In the case of projects 
affecting historic properties (which includes properties of religious 
and cultural significance for Tribes that are listed on or eligible for 
the National Register), the Agencies must follow the section 106 
procedures outlined in 36 CFR part 800. This includes the initiation of 
the section 106 process (identifying the parties such as federally 
recognized Tribes), identification of historic properties (including 
defining the area of potential effect), evaluation of effects, and 
resolution of adverse effects. The final rule does not authorize a 
State to use or rely on State environmental review and approval laws in 
lieu of the Federal environmental requirements.
    The U.S. Department of the Interior (DOI) indicated that it 
transfers surplus Federal lands and buildings to State and local 
agencies for parks and recreation use in perpetuity, and these 
transfers include deeds with perpetual use requirements and perpetual 
Federal agency oversight. The DOI expressed concern that with the 
rulemaking the States might overlook consultation with DOI in 
situations where property at issue was acquired through DOI and the 
deed contained perpetual use requirements.
    The Agencies emphasize that the rule does not exempt a project that 
qualifies for a CE from compliance with all other requirements 
applicable to the action. The CE determination does not exempt a State 
from consultation requirements with the appropriate Federal land 
management agency if the project involves a property that has perpetual 
use requirements imposed by the Federal land management agency.

Documentation

    Five State DOTs, one regional transportation consortium, one 
professional association, one Federal agency, and one public interest 
group requested clarification in the final rule of the documentation 
necessary to ensure that the criteria for the CEs are satisfied. One 
professional association expressed concern that additional 
documentation beyond a project description is unnecessary. Two State 
DOTs expressed the opinion that some aspects of the NPRM will actually 
increase CE analysis and documentation. Two public interest groups 
appreciated the Agencies' reassertion that application of the new CEs 
must still take into account unusual circumstances. One public interest 
group suggested that any reduction in the documentation requirements, 
as advocated by a number of the State DOTs, would increase the 
potential for inconsistent and erroneous application of the new CEs. 
The public interest group urged the Agencies to actively monitor and 
audit the use of the CEs for the first few years to evaluate whether 
additional guidance is necessary.
    The final rule does not prescribe the specific amount of 
documentation needed to determine if a project qualifies for a CE or 
whether unusual circumstances exist such that additional environmental 
studies are needed to determine if the CE classification is proper. It 
is important to note that all projects that qualify for CE 
determinations require the consideration of unusual circumstances. 
Unusual circumstances include substantial controversy on environmental 
grounds or significant impacts on properties protected by section 4(f) 
of the Department of Transportation Act (23 U.S.C. 138 and 49 U.S.C. 
303) or section 106 of the 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); 
23 CFR 771.118(b)). This list of unusual circumstances is not all-
inclusive and the finding that there are unusual circumstances will 
depend on the context of the project. For example, the presence of 
listed species or critical habitat designated under ESA within the 
project area could signal unusual circumstances that require the 
Agencies and the applicant to conduct appropriate studies to determine 
if the CE classification is proper. In the Federal endangered species, 
threatened species or critical habitat context, early coordination with 
the appropriate agency (U.S. Fish and Wildlife Service or National 
Marine Fisheries Service) and the results of the consultation process 
under section 7 of ESA would be critical in the final assessment of 
whether the CE classification is proper.
    The amount of documentation needed for a project depends on the 
context in which the project takes place. Some actions may carry little 
risk of triggering unusual circumstances such that there is no 
practical need for or benefit from obtaining and preparing 
documentation other than the project's description. Other actions may 
have the potential to raise unusual circumstances or may raise 
questions about a potential CE determination due to their more 
environmentally invasive nature and would, therefore, warrant 
sufficient documentation (like information on studies, analyses, or 
surveys conducted) to prove that the CE classification is appropriate. 
The Agencies' regulations establish a presumption that the types of 
actions that qualify for a (c)-list CE typically do not require much 
more than the project description to make a determination that the CE 
covers the proposed project and that there are no unusual circumstances 
that require additional environmental studies to determine if the CE 
determination is proper. The presumption for actions that qualify for 
(d)-list CEs is that they require additional information to make an 
appropriate CE determination because they are types of actions that are 
more environmentally invasive and have a higher potential to trigger 
one or more unusual circumstances.
    In section 1318(c) of MAP-21, Congress required the Agencies treat 
actions that the Agencies have determined have a higher potential of 
triggering unusual circumstances as actions that do not have that 
higher potential to the extent that such movement complies with the 
criteria for a CE under 40 CFR 1508.4. The final

[[Page 60104]]

rule reflects the Agencies' reconciliation of this requirement with 
their experience and the CEQ regulations. Specifically for FHWA, this 
reconciliation resulted in the creation of constraints that allow a 
subgroup of those actions to be treated as having a reduced risk of 
triggering unusual circumstances or challenges to the determination. 
Documentation and any review considerations would need to demonstrate 
that the constraints for the use of the CE (i.e., those in paragraph 
(e)) have been met. Documentation may consist of checklists or other 
simplified reviews that address how the project meets constraints 
listed in Sec.  771.117(e).
    The Agencies received an anonymous comment that suggested CEs 
should be made available to the public and CEQ if they contain 
mitigation measures or if there are unresolved issues. The anonymous 
commenter, cited a court case (California v. Norton, 311 F.3d 1162, 
1176 (9th Cir. 2002)) that stated that it was ``difficult to determine 
if the application of an exclusion is arbitrary and capricious where 
there is no contemporaneous documentation to show that the agency 
considered the environmental consequences of its action and decided to 
apply a CE to the facts of a particular decision.'' The anonymous 
commenter also noted that the Agencies' regulations do not provide 
recommended courses of action, whether advanced as a categorical 
exclusion or a categorical exclusion created through imposition of a 
mitigation measure, for any proposal that involves unresolved conflicts 
concerning alternative uses of available resources (42 U.S.C. 
4332(2)(E)).
    The Agencies typically do not post CEs publicly as they issue a 
very large number each year and the process is designed to be 
expeditious and simple. In accordance with the CEQ NEPA implementing 
regulations, a categorical exclusion is a ``category of actions which 
do not individually or cumulatively have a significant effect on the 
human environment and which have been found to have no such effect in 
procedures adopted by a Federal agency . . .'' (emphasis added) (40 CFR 
1508.4). The Agencies generally have to demonstrate that any proposed 
CE changes are supported by past Agency experience and do not result in 
significant environmental impacts; this is done by examining past 
environmental documents and practices. Actions that can be 
categorically excluded tend to be straightforward and supported by past 
Agency actions, so posting them publicly is not deemed appropriate. On 
occasion, CEs may be posted publicly, such as when there is high public 
interest in the action or there are substantial mitigation measures 
included pursuant to other environmental laws. In these cases, the FHWA 
Division Office or FTA Regional Office determines whether to post the 
CE, in coordination with the project sponsor/applicant. In addition, 
the Agencies may engage in public involvement for certain CEs if it is 
determined that it would be appropriate or needed for compliance with 
requirements other than NEPA. In response to the comment that the 
Agencies' regulations do not provide a recommended course of action 
when there are unresolved issues concerning alternative uses of 
available resources, the Agencies believe that the process for 
considering unusual circumstances would take these into account and 
provide opportunities to address them as needed. As noted above, and in 
Sec. Sec.  771.117(b) and 771. 118(b), potential issues are addressed 
through the consideration of unusual circumstances, and in the cases of 
FHWA CEs a detailed project-by-project review, which involve conducting 
studies to determine whether a CE is appropriate.
    The FTA received a comment that requested clarification on the 
documentation requirements for Sec.  771.118(c) CEs and Sec.  
771.118(d) CEs. The commenter further suggested that the following 
language from the preamble of the NRPM be included in the regulatory 
text of the final rule: ``The project description [for a (c)-list CE] 
typically contains all of the information necessary to determine if the 
action fits the description of the CE and that no unusual circumstances 
exist that would require further environmental studies.''
    The FTA does not believe clarifying documentation requirements for 
the (c)-list CEs (Sec.  771.118(c)) versus the (d)-list examples (Sec.  
771.118(d)) in the regulatory text is necessary because it is more 
appropriate to provide clarity in FTA's ``Guidance for Implementation 
of FTA's Categorical Exclusions'' (23 CFR 771.118). In general, grant 
applicants should include sufficient information for FTA to make a CE 
determination. Generally, a description of the project in the grant 
application, as well as any maps or figures typically included with the 
application or as requested by the FTA Regional Office is sufficient 
for FTA. Submission of this information through the FTA grant 
application process or through other means does not mean an action that 
otherwise meets the conditions for a CE under Sec.  771.118(c) needs to 
be converted to a Sec.  771.118(d) action. Given the nature of the CEs 
listed under Sec.  771.118(c), documentation demonstrating compliance 
with environmental requirements other than NEPA, such as section 106 of 
the NHPA, or section 7 of ESA, may be necessary for the processing of 
the grant. That supporting documentation can be included in FTA's grant 
management system or kept in the FTA Regional Office's project files, 
and applicants should consult with their FTA Regional Office to 
determine which is preferred. Other applicable environmental 
requirements must be met regardless of the applicability of the CE 
under NEPA, but compliance with and documentation of other 
environmental requirements do not necessarily elevate an action that 
otherwise is categorically excluded under Sec.  771.118(c) to Sec.  
771.118(d).
    Section 771.118(d), which is an open-ended categorical exclusion 
authority, lists example actions and requires documentation to verify 
the application of a CE is appropriate (i.e., the action meets the 
criteria established in Sec.  771.118(a) and (b)).

Outreach for New Rule

    Two professional associations recommended FHWA develop centralized 
training for CE determinations and processing or promote the new CEs 
that are now available. One of the professional associations suggested 
FHWA develop a centralized data base for guidance and frequently asked 
questions (FAQ) to increase consistency in the application of these new 
rules. The commenter urged that the new CEs be implemented in a uniform 
manner, without differences among offices. The commenter also opposed 
the issuance of regional guidance. One federally recognized Tribe 
commented that the new rulemaking has the potential to significantly 
worsen consistency issues. The FTA received three comments that 
provided suggestions how to best engage in outreach and communicate 
with the public on the new rule. The comments specifically suggested 
training for Federal staff and State DOTs and a centralized resource 
that includes guidance and FAQs.
    The Agencies provide consistency through national training and 
guidance. The Agencies support the National Highway Institute and the 
National Transit Institute, which conduct NEPA courses across the 
nation for employees of the Agencies, State DOTs, transit agencies, 
consultants, and other Federal, State, and local entities involved in 
transportation NEPA processes. The Agencies and their training 
institute partners update the NEPA-related courses to address new 
regulations,

[[Page 60105]]

policy, and guidance, including those related to CEs, as needed. The 
Agencies also have guidance on their NEPA processes, including CEs and 
ensure that training is consistent with the latest procedures and 
guidance. The Agencies will provide information on the availability of 
the new CEs to their environmental and field staff. To keep the public 
informed, FTA will update its ``Guidance for Implementation of FTA's 
Categorical Exclusions'' (23 CFR 771.118) to reflect the new CEs and 
post it on FTA's public Web site (www.fta.dot.gov /12347_15129.html). 
The FTA also plans to hold a public Webinar to provide additional 
guidance on the CE changes. The FHWA will provide information about 
these CEs through its Division Offices, Resource Centers, and the 
Office of Project Development and Environmental Review, as necessary.

Agency Procedures

    The Agencies received an anonymous comment suggesting that because 
the FHWA and FTA have their own missions, programs, and unique 
experiences, each agency should have its own separate NEPA procedures, 
not limited to just the CEs.
    The Agencies are more similar than they are dissimilar with respect 
to the environmental review process and are therefore not pursuing 
separate procedures at this time. The Agencies have, however, separated 
their procedures where appropriate due to their individual programs. 
For example, each Agency has separate public involvement procedures 
identified in Sec.  771.111 based on each Agency's experience.

Section 771.117(c)

    Six State DOTs and one professional association asked FHWA to add 
or adopt the FTA CEs for bridge removal and for preventative 
maintenance because those CEs would be beneficial to provide coverage 
for bridge removal projects in situations where the bridge replacement 
CE does not apply. Four of the State DOTs and the professional 
association suggested that bridge removal activities do not depend on 
whether they are being carried out as part of a highway project or a 
transit project. Four State DOTs and one professional association said 
that it would be beneficial to provide a CE specifically for 
preventative maintenance activities in culverts and channels because it 
would eliminate uncertainty about whether these types of activities are 
covered by other CEs. One State DOT expressed concern with a FHWA 
bridge removal CE due to the amount of impacts that could occur in a 
typically sensitive habitat area. This same commenter asked whether a 
road realignment would be covered under the bridge removal CE if the 
removal requires a road realignment to the new bridge or whether the 
bridge construction CE would cover this action. One State DOT indicated 
that it has a PCE agreement that identifies bridge removal as a CE 
action.
    The FHWA carefully considered whether to propose new CEs for bridge 
removal and for preventative maintenance activities and decided against 
it at this time. The FHWA was not able to identify projects that were 
limited to the act of removing the bridge with no additional action 
being taken (e.g., construction of a new water crossing). One possible 
scenario could be the removal of a bridge for safety purposes, but this 
action would qualify for the new CE in paragraph (c)(27) (highway 
safety or traffic operation improvements) if the constraints can be 
met, or the CE under paragraph (d)(13) if the constraints cannot be 
met.
    The FHWA does not believe that a preventative maintenance CE is 
needed at this time. In FHWA's experience preventative maintenance 
actions typically take place within the operational right-of-way and 
would qualify for the recently created CE under existing paragraph 
(c)(22) (79 FR 2107).
    Two State DOTs, one transit agency, and one professional 
association urged FHWA to move expeditiously to adopt a CE that 
specifically covers early right-of-way acquisitions under 23 U.S.C. 
108(d), in order to clarify that these types of activities, like 
hardship and protective acquisitions (23 CFR 771.117(d)(12)), are 
covered by a CE. The professional association commented that the mere 
acquisition of property does not impact the environment.
    The FHWA elected not to propose the requested CE because the Agency 
has not completed procedures to implement the amendments to 23 U.S.C. 
108 introduced by section 1302 of MAP-21. Early acquisition projects 
for hardship and protective purposes that meet the statutory conditions 
in 23 U.S.C. 108(d) may be processed as CEs under Sec.  771.117(d)(12), 
so long as no unusual circumstances exist that would lead FHWA to 
require the preparation of an EA or EIS. Early acquisition projects, 
depending on total estimated cost, also may meet the conditions 
specified by the CE for actions receiving limited Federal assistance in 
Sec.  771.117(c)(23).

Sections 771.117(c)(24) and 771.118(c)(16)

    Three State DOTs, one transit agency, one professional association, 
and one public interest group supported the addition of the new CE in 
Sec.  771.117(c)(24) for geotechnical studies and investigations for 
preliminary design. Three State DOTs and one professional association 
commented that this new CE could cause confusion by implying that these 
activities would trigger NEPA when there is no Federal action involved. 
Four State DOTs questioned the need for the CE because it implies that 
two NEPA approvals are needed (one for the preliminary investigation 
and one for the project itself) increasing documentation requirements 
and requiring reviewers to engage in environmental review for 
activities typically associated with the review itself. Some of the 
comments also applied to the FTA CE proposed for Sec.  771.118(c)(16).
    The Agencies' intent is to create new CEs for geotechnical and 
other investigations for preliminary design that involve ground 
disturbance. This can occur, for example, when these investigations or 
studies are undertaken to determine the suitability of a location for a 
project but the project itself is not ripe for analysis. The CEs apply 
when there is a Federal action involved, such as when FHWA undertakes 
the investigations (Federal Lands Highway programs) or when Federal-aid 
is used for these preliminary study actions. It is not intended to 
federalize actions taken by the applicants in furtherance of their 
applications without the use of Federal funds (see 40 CFR 1506.1(d) 
stating that the procedural requirements in NEPA are not intended to 
preclude the development by applicants of plans, designs, or 
performance of other work necessary to support an application for 
Federal, State, or local permits or assistance).
    Two State DOTs asked for clarification on the breadth of the new 
CEs in Sec. Sec.  771.117(c)(24) and 771.118(c)(16). One of the State 
DOTs requested the inclusion of paleontological studies as one of the 
activities covered by the CEs. Another State DOT asked the Agencies to 
limit the use of the CEs to stand-alone surveys that involve ground 
disturbing activities only or specify that the CEs are not needed if 
the area has no previously identified archeological resources. The 
State DOT also requested the Agencies to establish a scale to the CEs 
so that they apply for more than a few hand-dug shovel probes.

[[Page 60106]]

    The CEs cover geotechnical and other investigations for preliminary 
design that involve ground disturbance. The actions listed in the NPRM 
for these CEs were examples and are not an inclusive list. 
Paleontological studies would be covered by the CEs. The Agencies 
decided not to establish a scale for the CEs' applicability to provide 
for maximum flexibility for their use.
    Three State DOTs and one professional association requested the 
Agencies to allow the use of the CE in Sec.  771.117(c)(24) for all 
activities associated with preliminary investigations of a project 
instead of requiring the application of the CE for each individual 
investigation required for the project.
    The Agencies believe that the CE in Sec.  771.117(c)(24), as well 
as the CE in Sec.  771.118(c)(16), should be used for all activities 
associated with preliminary investigation that involve ground 
disturbance when there is a Federal action involved such as when FHWA 
undertakes the investigations (Federal Lands Highway programs) or when 
Federal-aid is used for these preliminary study actions.

Section 771.117(c)(25)

    Three State DOTs, two public interest groups, and one transit 
agency expressed support for the new CE in Sec.  771.117(c)(25) for 
environmental restoration and pollution abatement actions. One State 
DOT indicated that it interprets this CE as covering projects that 
exclusively install, repair, or replace culverts designed to allow fish 
passage. One State DOT requested the addition of ``overall watershed 
management'' to the language of the CE. One Federal agency asked that 
the constraint found in Sec.  771.117(e)(3) be applied to this proposed 
CE. One State DOT commented that it would gain little value from the CE 
because it normally designs projects to minimize and/or mitigate 
impacts to waterways and ecosystems.
    The new CE in Sec.  771.117(c)(25) is intended to cover actions 
that involve returning a habitat, ecosystem, or landscape to a 
productive condition that supports natural ecological functions. 
Restoration actions serve to re-establish the basic structure and 
function associated with natural, productive conditions. This may 
include culverts designed for fish passage. The CE in Sec.  
771.117(c)(25) also covers both pollution abatement practices and 
control measures designed to retrofit existing facilities or minimize 
stormwater quality impacts from highway projects and watershed 
management actions that fit these groups and are eligible for Federal-
aid highways. The actions listed in the NPRM for this CE were examples 
and are not an inclusive list. The FHWA does not believe that the CE 
needs a restriction similar to Sec.  771.117(e)(3) because in the 
FHWA's experience the typical highway actions associated with this CE 
do not result in adverse effects to historic properties, a use of a 
section 4(f) property other than a de minimis impact, or a finding that 
the action is likely to adversely affect a threatened or endangered 
species or critical habitat. The FHWA notes that this CE requires an 
evaluation of unusual circumstances, just as for any CE, and this 
evaluation would capture situations where an activity that otherwise 
qualifies for Sec.  771.117(c)(25) could result in adverse effects to 
historic properties or threatened and endangered species or critical 
habitat, or the use of section 4(f) properties that are not de minimis.

Section 771.117(c)(26)

    Three State DOTs and one professional association suggested that 
the CE in Sec.  771.117(c)(26) be divided into two parts: one for 
highway resurfacing, restoration, rehabilitation, and reconstruction 
(4R) projects without the constraints applied, and the other for all 
other projects with constraints applied. The commenters indicated that 
4R projects often have no environmental impacts or have de minimis 
impacts because the projects do not expand the footprint of the travel 
surface. Two public interest groups opposed the shift of this CE from 
the (d)-list to the (c)-list even with the constraints proposed 
because: (1) This CE requires a case-by-case analysis to take into 
account the surrounding environment and particular context; (2) the 
constraints miss other environmental resources; and (3) adding more 
constraints would confuse the purpose of the (c)-list. Another public 
interest group urged the DOT to conclude that the wholesale transfer is 
simply not consistent with CEQ regulations at 40 CFR 1508.4. One State 
DOT suggested that Sec.  771.117(c)(26) actions should accommodate 
adding capacity to a highway as long as the project disturbance 
``widens less than a single lane width.'' Another State DOT asked that 
the term ``passing lanes'' be included in Sec.  771.117(c)(26) to 
clarify that the construction of intermittent passing lanes is an 
activity that FHWA has historically approved as a Sec.  771.117(d)(1) 
CE. One State DOT pointed out that the activities most likely to have 
the potential for significant impacts are the addition of shoulders and 
auxiliary lanes. A public interest group sought clarification on 
whether the term reconstruction included adding additional capacity or 
whether it simply meant reconstruction of an existing facility. The 
commenter recommended that only reconstruction that did not add 
capacity be moved to the (c)-list CE list.
    The FHWA agrees with the commenters that a wholesale transfer 
without qualifications would be inconsistent with 40 CFR 1508.4. 
However, FHWA found that, based on its experience, a transfer with 
qualifications (i.e., the constraints in paragraph (e)) would be 
consistent with 40 CFR 1508.4. (See NPRM preamble, 47 FR 57587, 57590-
91). The FHWA's proposed approach to moving the first three actions on 
the (d)-list to the (c)-list preserves the original (d)-listed CE 
actions through Sec.  771.117(d)(13) and acknowledges that the actions 
in Sec.  771.117(c)(26), (27), and (28) are identical except that those 
actions processed under Sec.  771.117(d)(13) do not meet the 
constraints in Sec.  771.117(e). The FHWA believes this approach meets 
the statutory requirements for the move and will result in greater 
consistency in application and fewer errors than further dividing the 
actions. Highway modernization actions, Sec.  771.117(c)(26), would not 
include actions that add capacity because in FHWA's experience such 
actions require a review of the context in which the project takes 
place, which means a detailed project-by-project review. The addition 
of auxiliary lanes such as climbing, turning, passing lanes, and other 
purposes supplementary to through-traffic movement (see definition in 
http://www.ops.fhwa.dot.gov/freewaymgmt/hovguidance/glossary.htm) 
rather than adding capacity, serves primarily to increase safety, which 
could qualify for CE in Sec.  771.117(c)(27) for safety projects. The 
FHWA notes that some actions formerly processed under Sec.  
771.117(d)(1), (2), and (3) may also qualify for the recently created 
CE in Sec.  771.117(c)(22) (if they are limited to the existing 
operational right-of-way), or Sec.  771.117(c)(23) (if the total costs 
and Federal investments in the project meet the criteria for that CE).

Section 771.117(c)(27)

    Two public interest groups opposed the shift of the new CE in Sec.  
771.117(c)(27) for highway safety projects from the (d)-list to the 
(c)-list even with the constraints proposed because (1) the CE requires 
a case-by-case analysis to take into account the surrounding 
environment and particular context, (2) the constraints miss other 
environmental resources, and (3) adding more constraints would confuse 
the

[[Page 60107]]

purpose of the (c)-list. Another public interest group urged the 
Department of Transportation to conclude that the wholesale transfer is 
simply not consistent with CEQ regulations at 40 CFR 1508.4.
    The FHWA's proposed approach to moving the first three actions on 
the (d)-list to the (c)-list preserves the original (d)-listed actions 
in Sec.  771.117(d)(13) and acknowledges that the actions in section 
771.117(c)(26), (27), and (28) are identical except that those actions 
processed under Sec.  771.117(d)(13) do not meet the constraints in the 
new Sec.  771.117(e). The FHWA believes this approach meets the 
statutory requirements for the move and will result in greater 
consistency in application and fewer errors than further dividing the 
actions. The constraints in Sec.  771.117(e) are intended to take into 
account considerations with regards to the surrounding environment and 
particular context that would necessitate additional documentation and 
oversight or approval by FHWA. The FHWA did not intend to cover all 
potential scenarios and issues that could raise these concerns, rather 
the decision to limit the constraints to those resource areas addressed 
was based on FHWA past experience in implementing these types of 
projects and the areas of concern that most frequently come up with 
these types of projects.

Section 771.117(c)(28)

    Two public interest groups opposed the shift of the new CE in Sec.  
771.117(c)(28) for bridge rehabilitation, reconstruction, and 
replacement activities from the (d)-list to the (c)-list even with the 
constraints proposed because: (1) The CE requires a case-by-case 
analysis to take into account the surrounding environment and 
particular context; (2) the constraints miss other environmental 
resources; and (3) adding more constraints would confuse the purpose of 
the (c)-list. One public interest group indicated that, in the absence 
of adequate constraints or conditions, these projects could include 
destruction and replacement of historic bridges, or the construction of 
massive new elevated bridge structures for grade-separated railroad 
crossings within historic districts. The commenter indicated that 
strong safeguards are needed to ensure that these CEs are not applied 
when the projects involve potentially significant impacts. The 
commenter also suggested that a more refined approach of separating out 
the activities that are truly unlikely to cause any sort of significant 
impact, such as a bridge rehabilitation and repair projects, and 
shifting those to the (c)-list and keeping in the (d)-list the more 
destructive projects like those that would require destroying an 
existing bridge structure or constructing a new one where none 
currently exists. One State DOT requested the addition of a 
qualification to cover ``design modification to meet current design 
standards.''
    The FHWA believes this approach meets the statutory requirements 
for the move and will result in greater consistency in application and 
fewer errors than further dividing the actions. The constraints in 
Sec.  771.117(e) are intended to take into account those considerations 
with regards to the surrounding environment and particular context that 
experience has shown necessitate additional documentation and oversight 
or approval by FHWA. The FHWA did not intend to cover all potential 
scenarios and issues that could raise these concerns, rather the 
decision to limit the constraints to those resource areas addressed was 
based on FHWA past experience in implementing these types of projects 
and the areas of concern that most frequently come up with these types 
of projects. In addition to these constraints, the CE for bridge-
related actions is subject to an evaluation of unusual circumstances 
that would take into account the potential for the action to result in 
significant environmental impacts. The FHWA considered the refined 
approach of segregating the activities covered in the CEs as suggested 
by the public interest group and decided against it because in the 
Agency's experience all activities mentioned can be classified as a CE 
as long as the constraints in Sec.  771.117(e) are met. Removing and 
disposing of a bridge or the construction of a new bridge at a new 
location (to replace an old bridge) would not typically result in 
significant impacts and there would not be a need for additional 
documentation and project-by-project approval by FHWA for the CE 
determination if the constraints are met. Finally, the FHWA notes that 
a rehabilitation, reconstruction, or replacement of a bridge would take 
into account current codes and design standards. However, the FHWA 
recognizes there may be situations where the modification of the bridge 
to accommodate current codes and design standards could result the 
failure to meet a constraint under Sec.  771.117(e). In these 
situations other CEs may be available for the project, such as the new 
CE in Sec.  771.117(d)(13).

Section 771.117(c)(29)

    Two State DOTs, one public interest group, and one transit agency 
supported the addition of the new CE in Sec.  771.117(c)(29) (ferry 
vessels).
    The Agencies will adopt this CE as proposed.

Section 771.117(c)(30)

    Two State DOTs, one public interest group, and one transit agency 
supported the addition of the new CE in Sec.  771.117(c)(30) for 
rehabilitation or reconstruction of ferry facilities. One State DOT 
asked that the phrase ``substantial increase in users'' be replaced 
with ``substantial increase in that facility's capacity'' as a 
constraint for the ferry facilities rehabilitation and reconstruction. 
The State DOT indicated that the constraint that facilities ``do not 
result in a substantial increase in users'' would be difficult to 
predict because of year-to-year fluctuation in ferry users. In the 
State DOT's experience it is nearly impossible to predict whether a 
particular ferry terminal project will result in an increase in users. 
The State DOT indicated that the term ``users'' is imprecise and can be 
interpreted in many ways. The commenter suggests using a more precise 
phrase, such as ``substantial increase in that facility's capacity.''
    The FHWA agrees with the commenter stating that an increase of 
users is not as accurate as capacity to apply in the rehabilitation or 
reconstruction of existing ferry facilities CE. The intent of this 
constraint in applying this CE is to ensure that project impacts 
undergo an appropriate level of review and capacity reflects this 
distinction better than users. The FHWA considered this comment and 
modified the constraint to state: ``does not result in a substantial 
increase in the existing facility's capacity.''

Section 771.117(d)

    Three State DOTs and one professional association supported the 
retention of the three (d)-listed CEs in the proposed rule as possible 
documented CE actions to retain flexibility.
    The FHWA will retain all of the actions formerly listed in Sec.  
771.117(d)(1), (2), and (3) via paragraph (d)(13). This will provide 
notice that such actions may be processed as (d)-list CEs if any of the 
constraints in Sec.  771.117(e) cannot be met for those actions, and it 
is determined with additional documentation that a CE classification is 
proper. It is also possible for those actions to be processed under

[[Page 60108]]

Sec.  771.117(c)(22) (if the actions are confined to the existing 
operational right-of-way) or Sec.  771.117(c)(23) (if the action meets 
the funding conditions specified in that CE).

Section 771.117(e)

Constraints Applicability
    Five State DOTs and one professional association commented that the 
constraints for the three moved (d)-list CEs were unnecessary and would 
preclude the use of CEs for projects with minor impacts. Two State DOTs 
and one professional association expressed concern with the constraints 
because they reflect a one-size-fits-all approach: all States would be 
subject to the same list of constraints, regardless of the unique 
circumstances in each State. These same commenters proposed that FHWA 
could alternatively issue guidance for determining whether additional 
documentation needs to be prepared to assess the potential for 
``unusual circumstances.'' This approach would build on the existing 
requirement in 23 CFR 771.117(b), which requires ``appropriate 
environmental studies to determine if the CE classification is proper'' 
for any action that ``could involve unusual circumstances.'' Two State 
DOT commenters stated that moving the first three actions from the (d)-
list to the (c)-list need not include the six constraints because of 
consideration of extraordinary circumstances was sufficient. One public 
interest group agreed with the Agencies that an ``unconditional'' move 
to the (c)-list was not warranted and that it supported, at the very 
least, the six ``constraints'' that were proposed for the move. One 
Federal agency supported the Agencies' efforts to condition the move of 
the three (d)-list CEs to the (c)-list and indicated that in their 
experience these types of projects could have greater than minimal 
impacts on aquatic resources.
    The FHWA believes the final regulation strikes a reasonable balance 
between taking into account the environmental context in which a 
project takes place with reducing documentation and promoting 
administrative expediency. The list of constraints was derived from a 
list originally established in a 1989 FHWA memorandum (FHWA 
Memorandum--Categorical Exclusion (CE) Documentation and Approval, Mar. 
30, 1989, http://environment.fhwa.dot.gov/projdev/docuceda.asp) 
(hereinafter FHWA's 1989 PCE Memorandum) on how to develop PCE 
agreements and refined based on the Agency's experience with these 
programmatic approaches. The FHWA's experience with State DOTs that use 
PCE agreements indicates that these constraints are appropriate for 
determining when a CE determination may be processed without project-
by-project review by FHWA. The constraints for Sec.  771.117(c)(26), 
(27), and (28) help to focus attention on projects with particular 
environmental concerns while speeding the approval of projects with 
minor or trivial environmental impacts.
    The constraints in Sec.  771.117(e) are different than the unusual 
circumstances specified in Sec.  771.117(b). Per Sec.  771.117(b), 
``any action which normally would be classified as a CE but could 
involve unusual circumstances will require the FHWA, in cooperation 
with the applicant, to conduct appropriate environmental studies to 
determine if the CE classification is proper.'' This means that when 
unusual circumstances may be present, documentation is expected to 
demonstrate there are no unusual circumstances that warrant a higher 
level of NEPA review even when the project does not require detailed 
documentation and Agency review. However, the potential for unusual 
circumstances for a project does not automatically trigger an EA or 
EIS. The constraints are not another articulation of the unusual 
circumstances; rather they are conditions that, if followed, would 
eliminate the need for detailed project-by-project review from FHWA. 
Failure to meet one or more of the constraints would mean that the 
project could not be processed with a (c)-list CE. The action may be 
approved as a (d)-list CE after detailed review of the project and 
appropriate documentation. However, failure to meet one or more of the 
constraints does not mean that the project has unusual circumstances 
that warrant the start of an EA or EIS process. The FHWA defined all 
the constraints in Sec.  771.117(e) in such a way that it is possible 
to assess whether the constraints can be met by considering the 
available information about a project's context and location. 
Preferably, available information could be assessed through a review of 
existing maps and databases without having to conduct field reviews or 
studies. For many CE actions, it should be similarly possible to 
consider unusual circumstances by reviewing maps and databases, but 
some projects may require field review or environmental analysis.
    Two public interest groups indicated that the decision to place 
conditions on the transfer of the CEs was appropriate but insufficient 
to properly protect environmental resources and to fully account for 
the nature of the (c)-list. The commenters indicated that the six 
constraints provided safeguards for impacts to species, wetlands, 
floodplains, historic places, and resources protected by section 4(f), 
but not others such as impacts to streams, air quality, non-endangered 
or threatened species, and light and noise pollution. The commenters 
and one other public interest group urged the DOT to conclude that the 
wholesale transfer to the (c)-list CEs from the (d)-list was simply not 
consistent with the CEQ regulations (40 CFR 1508.4), and therefore 
should be rejected. One of the public interest groups commented that 
the transfer of these three categories of actions to the (c)-list with 
the proposed six constraints would undoubtedly lead to violations of 40 
CFR 1508.4, as projects with significant impacts would be processed as 
a CE without any analysis. The commenter also stated that to safeguard 
against this concern, additional constraints would need to be placed in 
Sec.  771.117(e) to ensure that environmental resources will be 
sufficiently protected, but this would confuse the purpose of the (c)-
list, which has in the past been purely a list of activities that do 
not require case-by-case review. One State DOT suggested that these 
constraints ``encourage minimizing certain environmental impacts'' 
rather than avoiding detailed project-by-project FHWA review.
    The FHWA believes the constraints listed in Sec.  771.117(e) are 
appropriate for ensuring consideration of certain impacts occurs given 
a project's context and location. The FHWA's experience with the three 
(d)-list CE actions is very broad and includes projects that involve 
potentially significant effects. The FHWA's experience with State DOTs 
that use PCE agreements indicates that these constraints are 
appropriate for determining when a CE determination may be processed 
without detailed project-by-project review by FHWA. The FHWA disagrees 
that the six constraints are insufficient to appropriately consider 
project impacts for purposes of (c)-list classification. The 
constraints in Sec.  771.117(e) are intended to take into account 
considerations with regards to the surrounding environment and 
particular context that would otherwise necessitate additional 
documentation and detailed project-by-project review by FHWA. The FHWA 
did not intend to cover all potential scenarios and issues that could 
raise these concerns; the decision to limit the constraints to the 
listed resource areas was based on FHWA past experience in implementing

[[Page 60109]]

these types of projects and the areas of concern frequently associated 
with these types of projects. Although no FHWA regulatory requirements 
apply for controlling light pollution, such impacts would be 
considered, if applicable, in the evaluation of unusual circumstances. 
For example, artificial illumination of the night sky by a project in a 
context where darkness is necessary (such as where there is an 
observatory) would trigger a consideration of light pollution as an 
unusual circumstance.
Constraints' Purpose
    Two State DOTs requested more explanation on the purpose of the 
constraints for actions listed in Sec.  771.117(c)(26), (27), and (28). 
They asked whether the constraints were motivated to ensure that 
regulatory obligations were met (for example, section 404 of the CWA or 
section 106 of the NHPA compliance) rather than ensuring that project 
classification (significance of impacts) is correct and whether a 
project that does not meet the constraints could be processed as a CE, 
although it would be subject to a higher level of review. They noted 
that as long as all appropriate permits are obtained, and impacts are 
not found to be significant, then there is no need for this constraint.
    The FHWA list of constraints to actions listed in Sec.  
771.117(c)(26), (27), and (28) is meant to distinguish actions that 
normally would require a higher level of documentation and detailed 
project-by-project review by FHWA through a (d)-list CE compared to 
actions that should be processed as (c)-listed CEs. Some of the 
constraints exclude projects from a (c)-list CE for FHWA when they 
trigger a permit because the information needed for the permit requires 
additional environmental studies, documentation, and review. Such 
studies, review, and documentation are expected for FHWA (d)-list CEs 
to assist in the detailed project-by-project review. The constraints in 
Sec.  771.117(e) were based on FHWA past experience in implementing 
these types of projects and the areas of concern frequently associated 
with these types of projects. Projects that satisfy all constraints may 
be processed as (c)-list CEs. If one or more of the constraints cannot 
be met, the action could still be processed as a (d)-list CE under 
Sec.  771.117(d)(13).

Section 771.117(e)

    Two State DOTs and one professional association remarked that some 
of the constraints involve subjective determinations (e.g., ``more than 
a minor amount of right-of-way'' and ``major traffic disruptions or 
substantial environmental impacts''). One State DOT and one 
professional association remarked on the level of specificity of the 
constraints. Another State DOT suggested that FHWA should establish 
standard definitions, such as for a minor amount of right-of-way, for 
use by Division Offices and States for greater consistency of 
application. In contrast, one professional association recommended 
clarifying in the final rule that Division Offices and States may adopt 
specific thresholds for determining whether an action meets these 
criteria. Adopting specific thresholds, on a State-by-State basis, the 
commenter indicates, will help to simplify the process for determining 
that the criteria are met.
    The list of constraints was derived from a list originally 
established in the FHWA's 1989 PCE Memorandum. This list has been 
refined by experience over time and in most State DOTs' PCE agreements 
with FHWA. The FHWA recognizes for three of the constraints that each 
State's unique environmental context should be considered in 
determining whether an action meets these criteria. For constraints in 
Sec.  771.117(e)(1), (4), and (5), State DOTs and Division Offices may 
adopt specific thresholds for determining what is more than a minor 
amount of right-of-way (Sec.  771.117(e)(1)), what defines major 
traffic disruption or substantial environmental impacts from an 
existing road, bridge, or ramp closure or the construction of a 
temporary access (Sec.  771.117(e)(4)), and how to distinguish changes 
in access control that deserve further evaluation from ones that do not 
(Sec.  771.117(e)(5)), as appropriate.

Section 771.117(e)(1) Right-of-way

    The FHWA has substituted the term ``non-residential'' for 
``commercial'' in this constraint to be consistent with terminology in 
the Uniform Relocation Assistance and Real Property Acquisition for 
Federal and Federally-assisted Programs regulations (49 CFR part 24). 
Any displacement of persons within the meaning of the Uniform Act must 
be taken into account in determining whether the action meets the 
constraint. The text now reads ``[a]n acquisition of more than a minor 
amount of right-of-way or that would result in any residential or non-
residential displacement.''

Section 771.117(e)(2) Permits

    One State DOT recommended that flexibility be provided with the 
constraint in Sec.  771.117(e)(2) for a situation where a State DOT and 
FHWA Division Office enter into an agreement with the U.S. Coast Guard 
(USCG) and/or USACE that programmatically merges their respective 
permitting processes with actions on the (c)-list. Another State DOT 
suggested that the constraint in subparagraph (e)(2) is tied to 
regulatory compliance with other laws and would be satisfied 
independent of the CE classification and indicates it is unnecessary. 
Another State DOT said that forcing a State DOT to come up with 
documentation and a review process for each project that requires a CWA 
section 404 permit is burdensome and time consuming.
    Sufficient information about a project's proposed scope, location, 
and context should be available during planning and initial project 
scoping to indicate whether an individual section 404 permit by the 
USACE or a USCG permit would be needed. It is not necessary to fully 
develop information or documentation for such permits to determine 
whether this condition is met. An FHWA detailed project-by-project 
review is needed if, based on preliminary project information, a CWA 
section 404 individual permit is likely going to be required. If 
agencies can collaborate to develop programmatic approaches that more 
efficiently satisfy the requirements instead of completing individual 
permits, such approaches should also satisfy this constraint.
    The USACE stated that correlating the use of the three (c)-list CEs 
with activities that would generally comply with the terms and 
conditions of a nationwide or regional general permit (i.e., paragraph 
(e)(2)) would indirectly encourage transportation agencies to minimize 
impacts to aquatic resources while protecting the integrity of the CE). 
The USACE was supportive of the message that USACE would make the 
ultimate determination whether an action complies with the terms and 
conditions of a nationwide or regional general permit, as well as the 
appropriate NEPA class of action to qualify for NWP 23. The USACE 
suggested that the final rule recommend transportation agencies contact 
them when conducting re-evaluations or providing supplemental 
documentation in support of review under a (d)-list CE to properly 
address those issues which triggered an Individual Permit review 
process.
    The FHWA concurs with the USACE that correlating the use of the CEs 
with activities that comply with the terms and conditions of a 
nationwide or regional general permit would encourage transportation 
agencies to minimize impacts to aquatic resources. The USACE is in the 
best position to

[[Page 60110]]

make the final determination that an activity qualifies for a 
nationwide or regional general permit. Section 771.129(c) (re-
evaluations) would apply when an action affecting waters of the U.S. is 
initially determined to qualify for a CE under Sec.  771.117(c)(26), 
(c)(27), or (c)(28) but later is determined not to qualify for 
verification under a nationwide or regional general permit. Although 
the action may no longer qualify for the (c)-list CEs, it may qualify 
for a (d)-list CE (such as a CE under Sec.  771.117(d)(13)). In 
engaging in the re-evaluation process under Sec.  771.129(c), 
transportation agencies should communicate with the USACE to properly 
address those issues which triggered a section 404 Individual Permit 
review process.

Section 771.117(e)(3) ESA, Section 106, Section 4(f)

    One State DOT suggested providing additional flexibility to satisfy 
the constraint in Sec.  771.117(e)(3) by allowing for ``programmatic'' 
agreements to address section 4(f), Land and Water Conservation Fund 
section 6(f), NHPA section 106, and the ESA. Another State DOT 
suggested that this constraint is tied to regulatory compliance of 
other laws and would be satisfied independently of the CE 
classification, making it unnecessary. A Federal agency asked that this 
constraint include compliance with the Bald and Golden Eagle Protection 
Act (BGEPA) and the Migratory Bird Treaty Act (MBTA).
    Section 4(f) programmatic evaluations include an alternatives 
analysis to avoid the use of a section 4(f) resource, which 
necessitates additional documentation and an FHWA finding, and often 
requires a detailed FHWA review. The FHWA has limited experience with 
programmatic agreements under section 6(f) of the Land and Water 
Conservation Fund Act and as a result, the FHWA decided not to develop 
a constraint around that threshold at this time. Programmatic 
approaches for section 106 of NHPA and section 7 of ESA may be 
considered in the evaluation of the constraints as long as the 
programmatic approaches meet the specified constraint thresholds. An 
example is when a State DOT relies on an existing section 106 
programmatic agreement that establishes conditions to prevent an 
undertaking from resulting in adverse effects to historic properties. 
The State DOT may not rely on a section 106 programmatic agreement that 
establishes treatment measures for adverse effects. Another example 
would be reliance on a programmatic approach under section 7 of the ESA 
that would allow projects to be determined to ``not likely to adversely 
affect'' threatened or endangered species or critical habitat. The FHWA 
considered the request to include compliance with other wildlife laws, 
such as the BGEPA and MBTA, and decided that consideration of the ESA 
was adequate based on past experience with PCE agreements. A factor in 
making this determination was that the BGEPA and MBTA do not have 
similar review thresholds as ESA (i.e., ``no effect,'' ``may affect/not 
likely to adversely affect,'' or ``may affect/likely to adversely 
affect''). All other requirements applicable to the activity under 
other Federal and State statutes and regulations still apply regardless 
of the Sec.  771.117(e) constraints, and must be met before the action 
proceeds, regardless of the availability of a CE for the transportation 
project under part 771.

Section 771.117(e)(4) Traffic Disruption

    One State DOT asked for clarification of the word ``substantial'' 
in the Sec.  771.117(e)(4) constraint especially as it relates to the 
overall improvements that the project would allow and as those impacts 
are mitigated during construction (such as providing public information 
that would help mitigate traffic disruption during construction). One 
State DOT noted that the constraint meant that the action could not be 
processed as a CE if road closures or the construction of temporary 
access to existing roads would result in major traffic disruptions. The 
commenter indicated that this would severely limit the application of 
these CEs, especially in heavily urbanized areas where traffic 
congestion is usually high and the transportation improvement project 
is more than likely needed to relieve existing congestion. The 
commenter disagreed that temporary access could result in major traffic 
disruptions. The commenter indicated that the construction of temporary 
access is typically used to provide temporary relief from traffic 
disruptions and are temporary in nature; therefore, it should not be 
equated with road closures or considered an exception to the use of a 
CE. Another commenter stated that this constraint was unnecessary as 
traffic disruption would be considered as part of unusual 
circumstances.
    In FHWA's experience, temporary road, bridge, detour, or ramp 
closures deserve a higher level of scrutiny and detailed project-by-
project review because they are the types of activities that have 
merited additional review given their potential to have substantial 
adverse impacts. The FHWA sees the value in allowing Division Offices 
and State DOTs to adopt specific criteria for the ``substantial'' 
threshold. The FHWA has revised the constraint to focus on the activity 
involved (i.e., the closure or construction) and further change is not 
warranted. This constraint would not automatically eliminate the use of 
the (d)-list CE.

Section 771.117(e)(5) Access Control

    Two State DOTs and one professional association recommended 
revising the constraint in Sec.  771.117(e)(5) to be limited to changes 
in access control ``that raise major concerns regarding environmental 
effects.'' They also asked that the final rule clarify that the 
Division Office and State DOTs can adopt specific criteria for 
determining if this constraint is met. Two State DOTs asked that the 
constraint for changes in access control mirror the language in Sec.  
771.117(e)(1) so it would read ``more than minor changes in access 
control.'' One State DOT and one professional association suggested 
that some access changes were sufficiently ``minor'' (e.g., closing 
just one access) to allow a project to be processed as a (c)-list CE. 
Some examples include the installation of medians or a C-curb break in 
access control for maintenance or emergency access, minimal 
alterations, or adjustments to driveways. One State DOT asked that the 
constraint be clarified to say the changes in access control would need 
to affect traffic patterns for more documentation to be required.
    Changing the text of the constraint to ``more than minor changes in 
access control'' or ``that raise major concerns regarding environmental 
effects'' would put this language at odds with the (d)-list CE for 
approvals of changes in access control (Sec.  771.117(d)(7)), which 
FHWA is not modifying at this time. The FHWA recognizes that some 
changes may raise minor concerns and result in no significant 
environmental impacts or no safety and operational performance issues, 
while others may raise concerns regarding their environmental effects 
and deserve a careful consideration of their safety and operational 
performance through further evaluation, but these decisions depend on 
the environmental context and regulatory framework of each State. The 
FHWA sees the value in allowing FHWA Division Offices and States to 
adopt specific criteria for the ``change in access control'' threshold. 
In establishing this threshold, State DOTs and FHWA Division Offices 
would focus on their experience with changes and access control and the 
range of impacts that result from the various changes in access that 
may occur in the

[[Page 60111]]

State. The State DOTs and FHWA Division Offices would establish, 
through a PCE agreement or other formalized programmatic agreement, 
which of those require detailed project-by-project review.

Section 771.117(e)(6) Floodplains and Wild and Scenic Rivers

    Two State DOTs asked that the constraint in Sec.  771.117(e)(6) 
regarding floodplains and wild and scenic rivers be removed because it 
may limit enhancement actions, or that it be revised to allow for some 
actions within the floodway. Two other State DOTs recommended revising 
this constraint to refer to projects with floodplain encroachment 
``that adversely affect the function of the floodplain.'' One State DOT 
and one professional association asked that the final rule clarify that 
the State DOTs and Division Offices may adopt specific criteria for 
determining if this constraint is met. One State DOT suggested the 
constraint be limited to a floodplain encroachment that requires a 
``Letter of Map Revision'' which they believe is alluded to in the 
discussion, but not in the proposed regulatory language. Another State 
DOT asked that FHWA consider replacing the text with a restriction 
against projects that ``result in an increase in the designated 
regulatory floodway, or may result in an increase of more than 1 foot 
of surface water elevation in the base floodplain when no regulatory 
floodway is designated, or may increase the risk of damage to property 
and loss of human life, or may result in modification of a 
watercourse.'' One State DOT suggested that the constraint be limited 
to ``a significant floodplain encroachment'' because if a simple 
auxiliary lane project pushes the roadway shoulder 1 foot into the 
floodplain for even just a few feet, the project could not be processed 
as a (c)-list CE. One State DOT indicated that floodplain encroachments 
and involvement of a wild and scenic river entail separate processing 
requirements, regardless of a CE class of action and therefore did not 
think this constraint was necessary.
    The FHWA believes the Sec.  771.117(e)(6) constraint is necessary 
to assess the level of documentation detail necessary for a CE 
classification when a project involves a floodplain encroachment or a 
wild and scenic river. After considering the suggestions from 
commenters on how to revise this constraint, the FHWA decided to retain 
the constraint language as proposed in the NPRM. A floodplain 
encroachment would trigger consideration of practicable alternatives 
under Executive Order 11988 and the FHWA implementing regulations at 23 
CFR part 650, subpart A. It also indicates a higher risk of 
environmental impacts that deserve careful evaluation and 
consideration. This means that additional documentation, analysis, and 
detailed review is needed to meet the floodplain management 
requirements and, therefore, a (d)-list CE is more appropriate. The 
action could proceed as a (c)-list CE if it encroaches on floodplains 
but the action is for a functionally dependent use or an action that 
facilitates open space use. Functionally dependent uses are actions 
that must occur in close proximity to water (e.g., bridges).

Section 771.117(g)

    Three State DOTs and one professional association stated the 
statute included no rulemaking requirements for PCE agreements. Four 
State DOTs indicated that imposing these requirements through 
rulemaking was inconsistent with the intent of the statute. The 
commenters recommended that FHWA release non-binding guidance, 
including a template agreement, rather than issue regulations on PCE 
agreements. Two State DOTs objected to the proposal to establish new 
requirements for all PCE agreements and the requirement for all 
existing agreements to be amended for consistency with the new 
requirements. One State DOT said existing agreements should be 
``grandfathered'' and thus exempt from any new requirements and 
expressed concern that existing PCE agreements may be overturned.
    The FHWA considers this rulemaking to be appropriate in light of 
the statutory change that allows for State DOTs to enter into 
agreements with FHWA to make CE determinations on FHWA's behalf. The 
FHWA has taken a careful look at the requirements that were proposed in 
the NPRM in light of the comments submitted to determine which were 
necessary in the regulatory text and which could be implemented 
administratively. The Agency decided that those requirements that were 
substantive (i.e., elements that the agreement must have) should be 
established through rulemaking and those that were either procedural 
(i.e., steps that must be met) or administrative (i.e., how FHWA 
processes the agreement internally) could be removed from the 
regulatory text and established through other means. As a result, the 
Agency decided to retain requirements in subparagraphs (g)(1) (State 
DOT's responsibilities), (g)(2) (five year term), (g)(3) (monitoring 
requirements), and (g)(4) (stipulations for amendments, termination, 
and public availability), but remove from the regulatory text the legal 
sufficiency and FHWA Headquarters review in subparagraph (g)(5) of the 
NPRM. The FHWA believes that its Headquarters program office and legal 
office should engage in review of these agreements, but establishing 
this requirement in the regulatory text is unnecessary because it is an 
internal process that is better established through internal 
administrative protocols.
    Although FHWA disagrees with commenters expressing preference for 
guidance instead of rulemaking on this subject, the Agency is receptive 
to the suggestion of developing guidance including a template agreement 
on this topic. The FHWA disagrees with the commenters' proposal to 
exempt renewal of existing or certain future agreements from this rule 
because this would result in inconsistent development of PCE 
agreements. Finally, in an effort to provide more clarity to the 
regulatory text the FHWA has deleted the phrase ``[n]otwithstanding 
paragraph (d) of this section'' as proposed in the NPRM because it was 
unnecessary since the introductory paragraph of 771.117(d) now 
contemplates the use of programmatic agreements as an alternate method 
for approvals.
    Five State DOTs and one professional association expressed concern 
that the proposed rule did not allow PCE agreements to include CEs that 
were not specifically listed in the regulations. The commenters also 
noted that State DOTs should be allowed to approve CEs that are not 
listed in FHWA's regulations, as long as those CEs are ``consistent 
with'' the criteria in the CEQ regulations.
    The FHWA evaluated these comments and determined that new CEs not 
specifically listed in the regulations would not be allowed in the PCE 
agreements unless they are established in accordance with CEQ 
regulations and guidance (40 CFR 1507.3 and 1508.4, and Establishing, 
Applying, and Revising Categorical Exclusions under the National 
Environmental Policy Act (75 FR 75628, Dec. 6, 2010)). To make this 
clear, the FHWA has added additional language in the text of the rule 
specifying that this authority is limited to CEs specifically listed in 
771.117(c) and the activities identified in (d).
    One State DOT compared and contrasted the CE processing 
flexibilities for States under a PCE agreement with 23 U.S.C. 326 where 
the State has assumed responsibility and liability for FHWA decisions. 
The commenter suggested that a 23 U.S.C.

[[Page 60112]]

326 Memorandum of Understanding (MOU) should provide the opportunity 
for States to make CE approvals for actions not listed in regulation.
    The Agencies considered this comment and found it not to directly 
relate to the MAP-21 section 1318 provisions. The provisions of 
paragraph (g) in Sec.  771.117 do not apply to the section 326 program.
PCE Workload
    One State DOT was concerned that PCE agreement monitoring and 
reporting requirements will increase the States' workload and may 
result in State DOTs requiring additional staff to ensure PCE 
compliance. The proposed oversight and quality control/quality 
assurance requirements are similar to those mandated by a CE Assumption 
MOU under 23 U.S.C. 326 (State assumption of responsibility for 
categorical exclusions). Under that program, the State DOT had to hire 
additional staff to successfully assume CE responsibilities. The State 
DOT also said it is foreseeable that States will be required to hire 
additional staff and revise procedures in order to comply with the 
proposed PCE requirements where the intent of MAP-21 was not to add 
additional staffing and workload requirements to CE approvals.
    The comment expressing concern about the burden to State DOTs tied 
to monitoring PCE agreements did not distinguish between monitoring of 
PCE agreements or monitoring of MOUs executed pursuant to 23 U.S.C. 326 
where a State is responsible and legally liable for the CE 
determinations it makes. The commenter's concern is based on its 
experience with the monitoring process under a section 326 MOU and not 
a PCE agreement. It may have been appropriate for the commenting State 
DOT to hire additional staff to assume CE responsibilities because they 
were not only making CE determinations, but also were assuming 
responsibilities for compliance with all associated environmental laws 
and regulations associated with that CE determination. The quality 
control and quality assurance requirement in Sec.  771.117(g) for State 
DOTs may already be incorporated in existing CE processing procedures. 
This monitoring requirement should be comparable to the manner of 
monitoring existing PCE agreements.
    Two public interest groups and one State DOT suggested that Sec.  
771.117(g)(3) be expanded to explain further what ``monitoring'' of PCE 
agreements should entail. The State DOT suggested that in the 
alternative the provision be removed. One public interest group 
requested a clarification of public disclosure requirements of PCE 
documents and suggested that citizens be allowed to monitor any PCE 
agreement.
    The FHWA will retain the requirement for monitoring for all PCE 
agreements. The purpose of monitoring comes from FHWA's oversight 
obligation of the Federal-aid program to ensure that CE determinations 
are appropriate and that State DOTs comply with all environmental 
requirements. The approach for conducting monitoring should be 
determined between each State DOT and FHWA Division Office. Division 
Office staff should determine the frequency and level of detail for 
monitoring events as well as the composition of the monitoring team. 
This monitoring also should identify best practices and lead to the 
implementation of corrective actions based on report findings and 
observations. The State DOT and the FHWA Division Office will determine 
the extent to which monitoring information will be made available 
through posting on the Web.

Section 771.118(a) and (b)

    The FTA received two comments that expressed concern over the 
potential impacts of the actions included in the new CEs on sensitive 
habitats and protected resources.
    Sections 771.118(a) and (b) include the requirement for considering 
unusual circumstances, which is how the Agencies consider extraordinary 
circumstances in accordance with the CEQ regulations. These refer to 
circumstances in which a normally excluded action could have a 
significant environmental impact and, therefore, requires appropriate 
environmental studies to determine if the CE classification is proper. 
Examples of unusual circumstances include substantial controversy on 
environmental grounds, significant impacts on properties protected by 
section 4(f) of the DOT Act or section 106 of the NHPA, or 
inconsistencies with any Federal, State, or local law, requirement, or 
administrative determination relating to the environmental aspects of 
the action (23 CFR 771.118(b)). The unusual circumstances provisions 
contained in Sec.  771.118(a) and (b) apply to all existing and newly 
proposed CEs, and serve as a safeguard to prevent significant impacts 
to sensitive habitats and protection resources, among other concerns. 
An example of this practice would be if sizeable swaths of habitat are 
impacted for an action, then that unusual circumstance would likely 
require FTA and the grant applicant to conduct appropriate 
environmental studies under Sec.  771.118(b)(1) to determine whether 
the CE classification is proper.

Section 771.118(c)(14)

    The FTA received two comments requesting clarification on how Sec.  
771.118(c)(14) differs from the existing CEs. Specifically, one comment 
requested clarification on the types of repair and replacement work 
applicable to this new CE versus those in Sec.  771.118(c)(8) 
(maintenance, reconstruction, and rehabilitation of facilities). The 
second comment asks whether the necessary realignment of a road 
following a bridge removal would be covered under the new CE or another 
CE.
    The new CE expands upon existing CEs to include permanent bridge 
removal and the resulting change to the associated transportation 
network. The CE further addresses the potential need to realign the 
transportation network connected to the bridge and any activities 
associated with the work not included in previously established CEs. 
These activities could include in-channel work, pier removal or 
reduction, and materials disposal. Section 771.118(c)(8) specifically 
focuses on the repair of existing facilities that do not change the 
facility's use, while this new CE includes permanent bridge removal 
that changes the end use.
    The FTA received a comment requesting clarification on the 
circumstances where reducing pier height would serve to make in-water 
navigation safer when conducting a complete bridge removal.
    In some instances, when removing a bridge, it is decided to leave 
piers in place, rather than remove them. The considerations in this 
decision are varied, but include cost considerations as well as 
environmental considerations (e.g., avoidance of exposure in cases of 
contaminated sediments and other CWA considerations, as well as cost 
considerations). In cases where piers are left in place, they are 
reduced in height to be below water level, but above sediment levels, 
to allow for water craft to safely traverse over the piers. The 
decision to leave piers in place is also based on coordination with 
stakeholders, permitting agencies, and project engineers, and depends 
on the project context (e.g., location, conditions, etc.).

[[Page 60113]]

Section 771.118(c)(15)

    The FTA received three comments recommending the text of the CE be 
amended to include ``and drainage pipes'' at the end of the last 
sentence. The commenters noted that expanding existing culverts and 
existing drainage pipes would likely result in similar impacts, and 
since culverts often are used as drainage pipes, the language should be 
clarified by including drainage pipes so to avoid confusion and an 
unintended distinction.
    The FTA agrees with the comment, and will amend Sec.  
771.118(c)(15) to read ``Preventative maintenance, including safety 
treatments, to culverts and channels within and adjacent to 
transportation right-of-way to prevent damage to the transportation 
facility and adjoining property, plus any necessary channel work, such 
as restoring, replacing, reconstructing, and rehabilitating culverts 
and drainage pipes; and, expanding existing culverts and drainage 
pipes.'' At times, this preventative maintenance may require expanding 
existing culverts or drainage pipes in order to properly manage the 
stormwater flow. The FTA reassessed its supporting documentation and 
found the addition of expanding existing ``drainage pipes'' is 
supported by FTA's record (see ``FTA Section 1318 Substantiation'' 
document). In practice, culverts and drainage pipes both provide or 
maintain stormwater drainage, with culverts typically being larger in 
diameter than drainage pipes. Due to their functional similarity and 
anticipated similar impacts, as well as the limitation to expanding 
only existing culverts or pipes, FTA listed both examples in the CE 
language in order to avoid confusion for practitioners, as suggested by 
the comments received.
    The FTA received a comment that suggested the text of the new CE be 
broadened to read ``Preventative maintenance, including safety 
treatments, to drainage facilities, including culverts and channels . . 
.''
    The intent of this CE is to focus on rainwater conveyance methods 
that can be useful in preventing future flooding at transit facilities. 
The FTA considered the suggestion to include drainage facilities, but 
FTA interprets drainage facilities to be a broad term that includes 
rainwater conveyance and treatment; therefore, if the CE language 
includes ``drainage facilities,'' the CE would cover a broader range of 
activities than proposed in the NPRM. Furthermore, FTA re-reviewed the 
benchmarking examples in the ``FTA Section 1318 Substantiation'' 
document, considered past experience and reviewed past EAs and findings 
of no significant impact in hopes of being able to support the broader 
language. The FTA does not have sufficient substantiation to cover the 
broader range of activities and, therefore, is not able to proceed with 
the proposed change (i.e., adding ``to drainage facilities, 
including'') at this time. If grantees would like to pursue stormwater 
management activities unconnected to a broader proposal and outside the 
scope of this CE, FTA recommends considering the use of the CEs at 
Sec.  771.118(c)(3) or (d).

Section 771.118(c)(16)

    The summary of comments on Sec.  771.118(c)(16), and how they are 
addressed, is included in the discussion above on the FHWA Sec.  
771.117(c)(24) CE.

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 (FHWA-2013-0049) at 
Regulations.gov. The Agencies also considered comments received after 
the comment closing date and filed in the docket prior to this final 
rule.

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 determined that this action is not a significant regulatory 
action under section 3(f) of Executive Order 12866 nor is it 
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 impacts of this rulemaking are 
minimal. The changes to this rule are requirements mandated by MAP-21 
to increase efficiencies in environmental review by making changes in 
the Agencies' environmental review procedures.
    The activities in this final rule add Sec.  771.117(c)(24), 
(c)(25), (c)(26), (c)(27), (c)(28), (c)(29), and (c)(30) and Sec.  
771.118(c)(14), (c)(15), (c)(16), (d)(7), and (d)(8), pursuant to 
section 1318 of MAP-21, and 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. The CE 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. The program changes 
in this final rule establish criteria for PCE agreements between State 
DOTs and FHWA. These agreements further expedite NEPA environmental 
review for highway projects and enable projects to move more 
expeditiously through the Federal environmental review process. The PCE 
changes will reduce the preparation of extraneous environmental 
documentation and analysis not needed for compliance with NEPA, and 
will ensure that projects are built in an environmentally responsible 
manner. The changes contained within this rule will not adversely 
affect, in any material way, any sector of the economy. In addition, 
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. Consequently, a 
full regulatory evaluation is not required.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.), the Agencies must consider whether this final rule would have a 
significant economic impact on a substantial number of small entities. 
``Small entities'' include small businesses, not for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000. The Agencies do not believe this final rule 
will have a significant economic impact on entities of any size, and 
the Agencies received no comment in response to our request for any 
such information in the NPRM. These revisions could expedite 
environmental review and thus would be less of an impact on small 
business entities than any current impact on small business entities. 
Thus, the Agencies determined that this final rule will not have a 
significant economic impact on a substantial number of small entities.

[[Page 60114]]

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 
$148.8 million or more in any one year (2 U.S.C. 1532).

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. The Agencies analyzed this final rule in 
accordance with the principles and criteria contained in Executive 
Order 13132 and determined that this action will not have a substantial 
direct effect on the States, the relationship between the Federal 
Government and the States, or the distribution of power and 
responsibilities among the various levels of government, and, 
therefore, does not have federalism implications. The Agencies also 
determined that this action would 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 State or local governments provided comments on this issue.

Executive Order 13175 (Tribal Consultation)

    Executive Order 13175 requires agencies to assure meaningful and 
timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. The Agencies analyzed this action under Executive 
Order 13175, and determined that it 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 law.
    The Agencies received one comment in response to their request in 
the NPRM for comments from Indian tribal governments on the effect that 
adoption of specific proposals might have on Indian communities. One 
federally recognized Indian Tribe commented that a tribal summary 
impact statement was in order. The Indian tribe indicated that it was 
concerned that a shortened review period for evaluation of highway 
projects may cause tribal governments hardship. The Indian Tribe also 
expressed concerns with exempting the highway projects from other laws 
and allowing states to use State reviews and approval laws and 
procedures in lieu of Federal laws and regulations.
    In their response to the comments, the FHWA reiterated that the 
rule does not exempt a project that qualifies for a CE from compliance 
with all other requirements applicable to the action. The Agencies 
determined that the language adopted in this final rule appropriately 
balanced the goal of providing flexibility with the need to satisfy the 
Agencies' environmental review requirements and responsibilities. The 
Agencies must continue to meet their legal obligations for a project 
even if the project qualifies for a CE, which includes the Agencies' 
responsibilities to consult with Tribes. The final rule does not 
authorize a State to use or rely on State environmental review and 
approval laws in lieu of the Federal environmental requirements.
    The rule does not preempt tribal law. Projects that qualify for CEs 
must meet the compliance requirements under other laws, including 
tribal laws if the project will take place within tribal lands. The 
rule would not impose substantial direct compliance costs on Indian 
tribal governments. The rule affects the environmental review process 
of projects that will receive Federal-aid from FHWA or FTA, or that 
would require an approval from those Agencies. It does not impose 
requirements on Indian tribal governments other than those that are 
typical for any other Federal agency grantee. Finally, the rule would 
not have substantial direct effects on one or more Indian Tribes. The 
final rule does not increase the burden of review more than what is 
already expected for these types of projects. Therefore, a tribal 
summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    The Agencies analyzed this action under Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use,'' dated May 18, 2001. The Agencies 
determined that this action is not a significant energy action under 
the 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.), no Federal agency shall conduct or sponsor a collection of 
information unless in advance the agency has obtained approval by and a 
control number from the Office of Management and Budget (OMB), and no 
person is required to respond to a collection of information unless it 
displays a valid OMB control number. The Agencies determined that this 
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) (77 FR 27534) 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 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

[[Page 60115]]

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)). The FTA also issued an update to its EJ policy on 
July 17, 2012 (FTA Policy Guidance for Federal Transit Recipients 
(available online at www.fta.dot.gov/legislation_law/12349_14740.html)).
    The Agencies evaluated this final rule under the Executive Order, 
the DOT Order, the FHWA Order, and the FTA Circular. The Agencies 
determined that designation of the new CEs and establishing procedures 
for PCE agreements through this rulemaking will not cause 
disproportionately high and adverse human health and environmental 
effects on minority or low income populations. This 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 a 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 a new CE. Indeed, outreach to 
ensure the effective involvement of minority and low income populations 
where there is potential for EJ effects is a core aspect of the EJ 
orders and guidance. For these reasons, the Agencies also determined 
that no further EJ analysis is needed and no mitigation is required in 
connection with the designation of the CEs and procedures for PCE 
agreements.

Executive Order 13045 (Protection of Children)

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

Executive Order 12630 (Taking of Private Property)

    The Agencies analyzed this final rule under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights and determined the rule will not affect a taking of 
private property or otherwise have taking implications under Executive 
Order 12630.

National Environmental Policy Act

    This action will not have any effect on the quality of the human 
environment and does not require analysis under NEPA. 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. The CEQ's requirements for establishing 
Agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The 
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 NEPA regulations. The CEs are one 
part of those agency procedures (40 CFR 1507.3(b)), and therefore 
establishing CEs or allowing for programmatic approaches to processing 
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 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 record keeping requirements.

49 CFR Part 622

    Environmental impact statements, Grant programs--transportation, 
Public transit, Public transportation, Recreation areas, Reporting and 
record keeping requirements.

    In consideration of the foregoing, the Agencies are amending title 
23, Code of Federal Regulations part 771, and title 49, Code of Federal 
Regulations 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, and 1.91; Pub. L. 109-59, 119 Stat. 1144, 
sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, sections 
1315, 1316, 1317, and 1318.


0
2. Amend Sec.  771.117 by:
0
a. Adding paragraphs (c)(24) through (30);
0
b. Revising paragraph (d) introductory text;
0
c. Removing and reserving paragraphs (d)(1) through (3);
0
d. Adding paragraph (d)(13);
0
e. Redesignating paragraph (e) as paragraph (f);
0
f. Adding new paragraph (e); and
0
d. Adding paragraph (g).
    The additions and revisions read as follows:


Sec.  771.117  FHWA categorical exclusions.

* * * * *
    (c) * * *
    (24) Localized geotechnical and other investigation to provide 
information for preliminary design and for environmental analyses and 
permitting purposes, such as drilling test bores for soil sampling; 
archeological investigations for archeology resources assessment or 
similar survey; and wetland surveys.
    (25) Environmental restoration and pollution abatement actions to 
minimize or mitigate the impacts of any existing transportation 
facility (including retrofitting and construction of stormwater 
treatment systems to meet Federal and State requirements under sections 
401 and 402 of the Federal Water Pollution Control Act (33 U.S.C. 1341; 
1342)) carried out to address water pollution or environmental 
degradation.
    (26) Modernization of a highway by resurfacing, restoration, 
rehabilitation, reconstruction, adding shoulders, or adding auxiliary 
lanes (including

[[Page 60116]]

parking, weaving, turning, and climbing lanes), if the action meets the 
constraints in paragraph (e) of this section.
    (27) Highway safety or traffic operations improvement projects, 
including the installation of ramp metering control devices and 
lighting, if the project meets the constraints in paragraph (e) of this 
section.
    (28) Bridge rehabilitation, reconstruction, or replacement or the 
construction of grade separation to replace existing at-grade railroad 
crossings, if the actions meet the constraints in paragraph (e) of this 
section.
    (29) Purchase, construction, replacement, or rehabilitation of 
ferry vessels (including improvements to ferry vessel safety, 
navigation, and security systems) that would not require a change in 
the function of the ferry terminals and can be accommodated by existing 
facilities or by new facilities which themselves are within a CE.
    (30) Rehabilitation or reconstruction of existing ferry facilities 
that occupy substantially the same geographic footprint, do not result 
in a change in their functional use, and do not result in a substantial 
increase in the existing facility's capacity. Example actions include 
work on pedestrian and vehicle transfer structures and associated 
utilities, buildings, and terminals.
    (d) Additional actions which meet the criteria for a CE in the CEQ 
regulations (40 CFR 1508.4) and paragraph (a) of this section may be 
designated as CEs only after Administration approval unless otherwise 
authorized under an executed agreement pursuant to paragraph (g) of 
this section. The applicant shall submit documentation which 
demonstrates that the specific conditions or criteria for these CEs are 
satisfied and that significant environmental effects will not result. 
Examples of such actions include but are not limited to:
* * * * *
    (13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) 
of this section that do not meet the constraints in paragraph (e) of 
this section.
    (e) Actions described in (c)(26), (c)(27), and (c)(28) of this 
section may not be processed as CEs under paragraph (c) if they 
involve:
    (1) An acquisition of more than a minor amount of right-of-way or 
that would result in any residential or non-residential displacements;
    (2) An action that needs a bridge permit from the U.S. Coast Guard, 
or an action that does not meet the terms and conditions of a U.S. Army 
Corps of Engineers nationwide or general permit under section 404 of 
the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 
1899;
    (3) A finding of ``adverse effect'' to historic properties under 
the National Historic Preservation Act, the use of a resource protected 
under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions 
resulting in de minimis impacts, or a finding of ``may affect, likely 
to adversely affect'' threatened or endangered species or critical 
habitat under the Endangered Species Act;
    (4) Construction of temporary access, or the closure of existing 
road, bridge, or ramps, that would result in major traffic disruptions;
    (5) Changes in access control;
    (6) A floodplain encroachment other than functionally dependent 
uses (e.g., bridges, wetlands) or actions that facilitate open space 
use (e.g., recreational trails, bicycle and pedestrian paths); or 
construction activities in, across or adjacent to a river component 
designated or proposed for inclusion in the National System of Wild and 
Scenic Rivers.
* * * * *
    (g) FHWA may enter into programmatic agreements with a State to 
allow a State DOT to make a NEPA CE certification or determination and 
approval on FHWA's behalf, for CEs specifically listed in paragraphs 
(c) and (d) of this section. Such agreements must be subject to the 
following conditions:
    (1) The agreement must set forth the State DOT's responsibilities 
for making CE determinations, documenting the determinations, and 
achieving acceptable quality control and quality assurance;
    (2) The agreement may not have a term of more than five years, but 
may be renewed;
    (3) The agreement must provide for FHWA's monitoring of the State 
DOT's compliance with the terms of the agreement and for the State 
DOT's execution of any needed corrective action. FHWA must take into 
account the State DOT's performance when considering renewal of the 
programmatic CE agreement; and
    (4) The agreement must include stipulations for amendment, 
termination, and public availability of the agreement once it has been 
executed.

0
3. Amend Sec.  771.118 by adding paragraphs (c)(14) through (16) and 
adding paragraphs (d)(7) and (8) to read as follows:


Sec.  771.118  FTA categorical exclusions.

* * * * *
    (c) * * *
    (14) Bridge removal and bridge removal related activities, such as 
in-channel work, disposal of materials and debris in accordance with 
applicable regulations, and transportation facility realignment.
    (15) Preventative maintenance, including safety treatments, to 
culverts and channels within and adjacent to transportation right-of-
way to prevent damage to the transportation facility and adjoining 
property, plus any necessary channel work, such as restoring, 
replacing, reconstructing, and rehabilitating culverts and drainage 
pipes; and, expanding existing culverts and drainage pipes.
    (16) Localized geotechnical and other investigations to provide 
information for preliminary design and for environmental analyses and 
permitting purposes, such as drilling test bores for soil sampling; 
archeological investigations for archeology resources assessment or 
similar survey; and wetland surveys.
    (d) * * *
    (7) Minor transportation facility realignment for rail safety 
reasons, such as improving vertical and horizontal alignment of 
railroad crossings, and improving sight distance at railroad crossings.
    (8) Modernization or minor expansions of transit structures and 
facilities outside existing right-of-way, such as bridges, stations, or 
rail yards.
* * * * *

Title 49

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
4. The authority citation for part 622 is revised to read as follows:

    Authority:  42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 
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; and Pub. L. 112-141, 
126 Stat. 405, sections 1315, 1316, 1317, and 1318.

    Issued on: September 26, 2014.
Gregory G. Nadeau,
Acting Administrator, Federal Highway Administration.

Therese W. McMillan,
Acting Administrator, Federal Transit Administration.
[FR Doc. 2014-23660 Filed 10-3-14; 8:45 am]
BILLING CODE 4910-22-P

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