FR Doc 04-4338
[Federal Register: March 1, 2004 (Volume 69, Number 40)]
[Notices]
[Page 9679-9719]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr04-127]
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Part II
Department of Transportation
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Federal Motor Carrier Safety Administration
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National Environmental Policy Act Implementing Procedures; Notice
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2002-14095]
National Environmental Policy Act Implementing Procedures
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final Order.
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SUMMARY: The FMCSA is publishing its final Order on agency procedures
for implementing the National Environmental Policy Act of 1969 (NEPA).
Now that the FMCSA is a separate agency within the Department of
Transportation (Department or DOT), it has developed its own
environmental procedures for complying with NEPA, other pertinent
environmental regulations, Executive Orders, statutes, and laws to
ensure that it actively incorporates environmental considerations into
informed decisionmaking.
EFFECTIVE DATE: March 31, 2004.
FOR FURTHER INFORMATION CONTACT: Mr. David Miller, Office of Policy,
Plans, and Regulations (MC-PR), (202) 366-6408, or Mrs. Elaine Walls,
Office of the Chief Counsel (MC-CC), (202) 366-0834, FMCSA, U.S.
Department of Transportation, 400 Seventh St, SW., Washington, DC
20590-0001.
SUPPLEMENTARY INFORMATION:
Background
The FMCSA was established within the Department on January 1, 2000,
pursuant to the Motor Carrier Safety Improvement Act of 1999 (Pub. L.
106-159, 113 Stat. 1748 (December 9, 1999)). The FMCSA's primary
mission is to prevent commercial motor vehicle-related fatalities and
injuries. FMCSA activities contribute to ensuring safety in motor
carrier operations through strong enforcement of safety regulations;
targeting high-risk carriers and commercial motor vehicle drivers;
improving safety information systems and commercial motor vehicle
technologies; strengthening commercial motor vehicle equipment and
operating standards; and increasing safety awareness. To accomplish
these activities, the FMCSA works with Federal, State, and local
enforcement agencies, the motor carrier industry, labor organizations,
safety interest groups, and others.
The majority of the functions FMCSA inherited from the FHWA are
safety-related functions that were transferred from the former
Interstate Commerce Commission (ICC) to the Department when it was
established in 1966 (49 U.S.C. 102 and 102 note). The FMCSA also
inherited additional functions relating to registering motor carriers
operating in interstate and foreign commerce that had been carried out
by the ICC before 1996 and by the FHWA from 1996-1999.
When the FHWA assumed authority over motor carrier licensing in
1996, it did not adopt the ICC's environmental regulations because the
FHWA had its own. The FHWA's environmental impact regulations at 23 CFR
part 771, which are primarily geared to highway and urban mass
transportation construction projects, contain a categorical exclusion
(CE) for the promulgation of rules, regulations, and directives (23 CFR
771.117(c)(17)).
Draft Order
On September 26, 2003, FMCSA published its proposal to implement
environmental procedures for carrying out its responsibilities under
NEPA (68 FR 55713). We also solicited public comments on the draft
procedures.
Our NEPA Order establishes a process for assessing environmental
impacts, and for the preparation of Environmental Assessments (EAs),
Findings of No Significant Impacts (FONSIs), and Environmental Impact
Statements (EISs) for FMCSA actions. We will use this Order in
conjunction with NEPA, the Council on Environmental Quality (CEQ)
regulations at 40 CFR parts 1500-1508, DOT Order 5610.1C, as amended,
and other pertinent environmental regulations, Executive Orders,
statutes, and laws for consideration of environmental impacts of FMCSA
actions. We will also use the Order, to the fullest extent possible, to
conduct analyses and consultations required by the environmental
authorities noted above in conjunction with NEPA implementation to
reduce redundancy, paperwork, time, and cost.
This FMCSA Order supplements DOT Order 5610.1C, as amended. It is
important that persons using the FMCSA Order refer to those sections of
the DOT Order 5610.1C, as amended, and the CEQ regulations, which are
cross-referenced in this document. Reference to the DOT Order will
provide a wider perspective on the issues, as well as provide details
that may prove applicable to certain projects and actions.
The FMCSA Order will apply to all our actions, including the
decision to conduct research activities, promulgate regulations, award
grants, and conduct major acquisitions.
Comments to the Draft Order
We received two sets of comments to our draft Order--comments from
the Environmental Protection Agency (EPA) and comments signed by Public
Citizen, International Brotherhood of Teamsters, California Labor
Federation, and the Environmental Law Foundation. This latter comment
will be referred to as the Public Citizen comment.
Public Citizen raised six issues concerning the draft Order's
Appendix 14, Air Quality Analysis.
First, Public Citizen says Appendix 14 appears to be outdated. We
have revised and updated Appendix 14, Air Quality Analysis, to reflect
current EPA regulations and guidance as suggested by Public Citizen.
Second, Public Citizen stated that ``rulemaking'' is on the list of
CEs with respect to general conformity determinations. Public Citizen
states that under the Ninth Circuit holding in Public Citizen v. DOT,
316 F.3d 1002, 1030-31 (9th Cir. 2003), while the process of developing
and issuing regulations is exempt, the outcome of the rulemaking
process--the substantive result of the rule's implementation--is not
exempt. In that case, the court held that FMCSA was required to prepare
a conformity analysis for rules that it had promulgated. Although the
Supreme Court has granted the government's petition for writ of
certiorari in the case, Public Citizen notes that FMCSA did not ask the
Supreme Court to review the rulemaking holding. Public Citizen believes
FMCSA should clarify its guidance to include and explain the
application of a requirement for conformity determinations in the
context of this holding and its planned practices.
Under the regulations promulgated by the EPA, we understand
``rulemaking'' is not subject to the Clean Air Act (CAA) general
conformity review requirement. See 40 CFR 93.153(c)(2)(iii). Appendix
14, therefore, lists rulemaking as an exempt activity (and not, as
stated by Public Citizen, as a ``categorical exclusion''). Moreover,
EPA regulations establish threshold emission amounts for various
pollutants, below which no conformity review is required (49 CFR
93.153(b)). The Ninth Circuit Court found that FMCSA did not properly
analyze whether Presidential rescission of the moratorium against
cross-border truck operations would exceed that threshold. The United
States has sought Supreme Court review of that determination, as well
as the Ninth Circuit's conclusion that the CAA general conformity
review requirements apply to FMCSA rules implementing a
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presidential foreign policy decision. The Supreme Court has agreed to
review the determination.
In updating Appendix 14 of the Order, we have restated the EPA
regulations regarding applicable exemptions to the general conformity
review requirement. In the future, we will analyze the facts of a
proposed action on a case-by-case basis and rely on all applicable
laws, guidance, and rulings from the Courts and EPA in applying the EPA
regulations. Our revised guidance in the Order conforms to EPA's
general conformity rule and we will consider it to be our continuing
responsibility to conduct general conformity review where warranted.
Third, Public Citizen states that the comparison for a conformity
analysis is between the existing State Implementation Plan (SIP) (or in
the absence of an SIP, a Federal Implementation Plan (FIP)) and the
amended SIP (or FIP) to incorporate the Federal action.
We have revised Appendix 14 to document the procedures for
determining conformity, as outlined in EPA guidance and regulations.
Fourth, Public Citizen stated its belief that the last factor in
the list of factors of the draft Order is inconsistent with the
agency's conformity responsibilities. The last factor was ``the
estimate(s) in tons per year for the year when the maximum emissions
are expected to occur.''
We have modified Appendix 14 so that when a conformity
determination is necessary, emissions estimates will be developed in
accordance with 40 CFR 93.159(d)(2).
Fifth, Public Citizen stated that it believes the first full
paragraph on page 102 of the draft Order is inconsistent with the
agency's conformity obligations insofar as it limits the analysis of
mitigation measures or offsets necessary to achieve conformity to
``'the extent known.'' Public Citizen argues ``the agency is required
to identify mitigation measures or offsets and to ensure that they are
incorporated into legally enforceable requirements in the relevant SIPS
(or FIPs). Only after this has been accomplished may the agency action
proceed consistently with the conformity requirements of the Clean Air
Act.''
We have revised the procedures for developing conformity
determinations, and offsets or mitigation, to also reflect current EPA
guidance and regulations.
Finally, Public Citizen stated its belief that throughout Appendix
14, the discussion was limited erroneously to carbon monoxide (CO). It
argues that in addition to other criteria pollutants, analysis of
toxics should be included.
Public Citizen believes it is incorrect for the agency to assert
that ozone ``is not a concern at the Federal action level.'' It also
asserts that FMCSA's analysis must include ozone, particulate matter,
and all other relevant impacts.
We have revised Appendix 14 so that conformity analyses will be
shown for all National Ambient Air Quality Standards criteria
pollutants. The discussion should not be limited to carbon monoxide
only.
EPA Comments
In reference to Order's Planning and Early Coordination scoping
section (Chapter 2 section C.1.), EPA stated that the wording for
affected parties published in the draft Order ``may be misconstrued as
limiting invitations to participate in the scoping process to
governmental bodies only.'' EPA believes the wording ``known affected
private parties amongst the invitees'' is more appropriate.
We have adopted EPA's suggestions concerning the list of affected
parties who must be notified in writing and invited to participate in
the NEPA process for all FMCSA actions not categorically excluded. We
have changed the final Order to include the phrase ``known affected
private parties amongst the invitees.''
In reference to the Order's Environmental Documentation section,
EPA believes the wording is awkward. EPA suggested alternative wording
for identifying extraordinary circumstances. FMCSA has changed the
Order to include EPA's suggestion to describe extraordinary
circumstances that preclude the use of a CE. We have also changed item
3.a.(2) to read ``Has a reasonable likelihood of promoting controversy
regarding the potential for significant environmental effects (direct,
indirect, and cumulative).''
In reference to the Order's Appendix 2, entitled ``Categorical
Exclusions,'' EPA requested clarification of proposed category section
4.f., which reads ``Establishment of Global Positioning System (GPS),
intelligent transportation systems (ITS), or essentially similar
systems that use overlay of existing procedures.'' Second, EPA states
that section 4.g., which reads ``Procedural actions requested by users
on a test basis to determine the effectiveness of new technology and
measurement of possible impacts on the environment'' is unclear and
would benefit from further clarification.
In response to EPA's request for clarification here, FMCSA has
decided to remove the two CEs in sections 4.f. and 4.g. Our
justification for use of these two CEs was based on the approval of
similar category of actions or activity by another agency. Because we
have no additional experience, specifically FONSIs, to prove these
actions meet the definition of a CE, we are, therefore, removing them
from our final Order.
Other Issues
FMCSA has made a number of changes to section D of chapter 1 of the
Order, which explains the applicability of the Order. In paragraph 1,
we have added language from Sec. 1508.18 of CEQ's NEPA regulations.
This language supplements and clarifies language from Sec. 1508.18
that appeared in the proposed Order, and explains that the Order does
not apply to actions that the agency has no discretion to withhold or
condition if those actions are in accordance with specific statutory
criteria and the agency lacks control and responsibility over the
effects of the actions. This language is modeled after similar language
in NEPA regulations of other DOT administrations. (Changes have been
made to sections B.1. (Step 2), and D.1. of Chapter 2, and to Appendix
17 to conform to this addition to the Order.) Finally, FMCSA has
deleted the text citing rules of practice for certain agency
proceedings as examples of enforcement actions that are not covered by
the Order, because these rules of practice are covered more
appropriately by a Categorical Exclusion.
FMCSA has changed paragraph 2 of section D of Chapter 1 to reflect
the original intent of the agency in proposing this paragraph--to make
it clear that the scope of the Order's coverage includes applications
to FMCSA for grants and other similar actions, such as applications
submitted to the agency by States pursuant to the Motor Carrier Safety
Assistance Program. The broader language in the proposed Order, which
was based on language from other agencies' NEPA Orders, went beyond the
intended scope of the paragraph and included language that could have
been construed as covering FMCSA actions to which the Order does not
apply.
Any other edits FMCSA made to the Order were minor in nature and
merely done to address changes in program roles and responsibilities,
correct typographical errors, more fully define existing terms and
concepts, and clarify the extent of the agency's jurisdictional
parameters in certain subject matter areas. Overall, we believe that
our final Order will ensure that FMCSA actively incorporates
environmental considerations into its decisionmaking process.
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Implementation of FMCSA's NEPA Order
It is necessary for FMCSA to issue implementing procedures for
carrying out its responsibilities under NEPA, 42 U.S.C. 4321, et seq.,
as amended. You may access an electronic version of the Order including
all appendices at http://dms.dot.gov by referencing the docket number
at the heading of this document. To request a copy of the Order by
mail, please contact one of the persons listed under FOR FURTHER
INFORMATION CONTACT.
Authority: National Environmental Policy Act of 1969, as amended
[42 U.S.C. 4321 et. seq.]; the Council on Environmental Quality
Regulations at 40 CFR parts 1500-1508; DOT Order 5610.1C, as amended
on July 13, 1982 and July 30, 1985; and 49 CFR 1.73.
Issued on: February 24, 2004.
Warren E. Hoemann,
Deputy Administrator.
FMCSA Order 5610.1
U.S. Department of Transportation
Federal Motor Carrier Safety Administration
Subject: National Environmental Policy Act Implementing Procedures
and Policy For Considering Environmental Impacts.
Classification Code: 5610.1.
Date: March 1, 2004.
Office of Primary Interest: MC-PR.
1. Purpose. This order establishes policy and prescribes
responsibilities and procedures for the Federal Motor Carrier Safety
Administration's (FMCSA's) implementation of the following:
(a) National Environmental Policy Act (NEPA), 42 U. S. C. 4321, et
seq., as amended.
(b) 40 CFR parts 1500--1508, Council on Environmental Quality
Regulations for Implementing the Procedural Provisions of the National
Environmental Policy Act, as amended.
(c) DOT Order 5610.1C, Procedures for Considering Environmental
Impacts, as amended on July 13, 1982 and July 30, 1985.
(d) Executive Order 11514, ``Protection and Enhancement of
Environmental Quality,'' March 5, 1970, as amended by Executive Order
11991, May 24, 1977.
2. Action. The Offices of Administration; Research, Technology, and
Information Management; Policy and Program Development; Enforcement and
Program Delivery; Chief Counsel; Civil Rights; Field Operations Service
Centers; and Field Division Offices must ensure that the provisions of
this Order are followed in the consideration of environmental effects
of Federal Motor Carrier Safety Administration actions. Program
managers must submit draft program guidance for implementing this Order
to the Administrator for review and concurrence to ensure consistency
with this Order.
3. Changes. Recommendations and amendments for improvement of these
Federal Motor Carrier Safety Administration NEPA implementing
procedures must be submitted to the Regulatory Development Division,
MC-PRR, Office of Policy Plans and Regulation.
Table of Contents
Chapter 1. Introduction
A. Purpose.
B. FMCSA Policies.
C. Scope.
D. Applicability.
E. Legal Basis.
1. National Environmental Policy Act of 1969 (NEPA).
2. Council on Environmental Quality (CEQ) Regulations (40 CFR
parts 1500-1508).
3. Department of Transportation (DOT) Order 5610.1C, Procedures
for Considering Environmental Impacts.
4. Other relevant environmental statutes, laws, and Executive
Orders.
F. Common Environmental Acronyms.
G. Use and Organization of This Order.
1. Use.
2. Organization.
Chapter 2. FMCSA Responsible Parties, Duties, and Instructions for
Implementing NEPA
A. Responsible Parties for NEPA Implementation
1. Administrator, Federal Motor Carrier Safety Administration.
2. NEPA Liaison--Associate Administrator for Policy and Program
Delivery.
3. Heads of Headquarters Offices and Divisions.
4. The Office of Administration.
5. The Office of the Chief Counsel.
6. Office of Research, Technology, and Information Management.
7. FMCSA Program Staff.
8. Field Operations Service Center Administrators.
9. Heads of Units, Divisions, and Offices.
10. The Field Environmental Quality Advisor (FEQA).
11. Field Operations Service Center Program Staff.
B. FMCSA's Decisionmaking Process for NEPA Implementation.
1. Normal Circumstances.
2. Timing of Agency Action.
C. Planning and Early Coordination.
1. Scoping.
2. Environmental Planning Process.
D. Environmental Documentation.
1. Actions Affected.
2. Categorical Exclusions (CEs).
3. Limitations on Using Categorical Exclusions.
4. Environmental Assessment (EA).
5. Finding of No Significant Impact (FONSI).
6. Environmental Impact Statement (EIS).
7. Agency Responsibility for Documents Prepared by Applicants or
Proponents.
8. Documents Prepared by Contractors.
9. List of Preparers.
10. Reducing paperwork in preparation of environmental
documents.
11. Reducing delays in preparation of environmental documents.
12. Supplementation.
13. Signing FMCSA NEPA Documents.
14. Signature.
E. Special Areas of Consideration.
Chapter 3. Public Involvement, Legislative, and Interagency
Coordination
A. Citizen Involvement and Public Notice Process.
1. Public Involvement (40 CFR 1506.6).
2. Notice of Intent.
3. Intergovernmental Review.
B. Proposals for Legislation.
1. Preparation.
2. Processing.
C. Mitigating Measures.
D. Inter-Agency Coordination.
1. Lead Agencies and Cooperating Agencies.
2. Distribution of Environmental Documents.
3. Adopting Environmental Documents Prepared by Other Agencies.
4. Review of Environmental Statements Prepared by Other
Agencies.
5. Pre-decision Referrals to the Council on Environmental
Quality.
Appendices
Appendix 1--FMCSA Environmental Checklist
Appendix 2--FMCSA Categorical Exclusions (CE)
Appendix 3--FMCSA Regulations Typically Subject to an EA
Appendix 4--FMCSA Categorical Exclusion Determination (CED)
Appendix 5--FMCSA Environmental Assessment Cover Sheet
Appendix 6--FMCSA Environmental Assessment (EA)
Appendix 7--FMCSA Finding of No Significant Impact (FONSI)
Appendix 8--FMCSA Notice of Intent to Prepare An Environmental
Impact Statement
Appendix 9--FMCSA Environmental Impact Statement Model Cover Sheet
Appendix 10--FMCSA Environmental Impact Statement (EIS)
Appendix 11--FMCSA Notice of Availability of Environmental Impact
Statement
Appendix 12--FMCSA Record of Decision
Appendix 13--Form and Content of 4(f) Statements
Appendix 14--Air Quality Analysis
Appendix 15--Distribution of Environmental Impact Statements
Appendix 16--List of Relevant Environmental Statutes and Executive
Orders
Appendix 17--FMCSA's National Environmental Policy Act (NEPA) Review
Process
Appendix 18--Special Areas of Consideration When Implementing NEPA
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Chapter 1. Introduction
A. Purpose
This Order provides information pertaining to environmental
planning and establishes policy and procedures to ensure timely
environmental review for appropriate Federal Motor Carrier Safety
Administration (FMCSA) actions. Furthermore, this Order addresses the
policies and responsibilities for FMCSA's implementation of the
National Environmental Policy Act of 1969 (NEPA), as well as other
pertinent environmental regulations, Executive Orders, statutes, and
laws.
B. FMCSA Policies
1. NEPA establishes broad Federal policies and goals for the
protection of the environment and provides a flexible framework for
balancing the need for environmental quality with other essential
societal functions, including national defense. The FMCSA is expected
to manage those aspects of the environment affected by FMCSA
activities, comprehensively integrating environmental policy objectives
into planning and decisionmaking. Meaningful integration of
environmental considerations is accomplished by efficiently and
effectively informing FMCSA planners and decisionmakers. The FMCSA will
use the flexibility of NEPA to ensure implementation in the most cost-
efficient and effective manner. The depth of analyses and length of
documents will be proportionate to the nature and scope of the action,
the complexity and level of anticipated effects on important
environmental resources, and the capacity of FMCSA decisions to
influence those effects in a productive, meaningful way from the
standpoint of environmental quality.
2. The FMCSA will actively incorporate environmental considerations
into informed decisionmaking, in a manner consistent with NEPA.
Communication, cooperation, and, as appropriate, collaboration between
government and extra-government entities is an integral part of the
NEPA process. FMCSA personnel engaged in the NEPA process as
participants, preparers, reviewers, and approvers will balance
environmental concerns with mission requirements, technical
requirements, economic feasibility, and long-term sustainability of
FMCSA operations. While carrying out its missions, the FMCSA will also
encourage the wise stewardship of natural and cultural resources for
future generations. Decisionmakers will be cognizant of the impacts of
their decisions on cultural resources, soils, forests, rangelands,
water and air quality, fish and wildlife, and other natural resources
under their stewardship, and, as appropriate, in the context of
regional ecosystems.
3. Environmental analyses will reflect appropriate consideration of
non-statutory environmental issues identified by Federal and DOT
orders, directives, and policy guidance. Potential issues will be
discussed and critically evaluated during scoping and other public
involvement processes.
4. The FMCSA will ensure NEPA compliance and will provide for
levels and kinds of public involvement appropriate to the type of
action and its likely effects, taking into account the recommendations
as set forth in the CEQ regulations regarding public involvement.
a. The FMCSA will provide public notice of NEPA-related public
meetings and hearings in the following manner:
(1) By publishing notice in the Federal Register, in local
newspapers, newsletters, or by direct mailings of the availability of
environmental documents so as to inform those persons and agencies who
may be interested or affected;
(2) By posting notice on- and off-site in the area where the action
is to be located; and
(3) By requesting comments on environmental documents to secure
views either on the adequacy of the FMCSA action or the merits of the
alternatives discussed or both. (See 40 CFR 1506.6).
b. When any other related authority provides specific procedures
for public involvement, the responsible FMCSA official shall ensure
that such procedures are addressed in the NEPA review process.
c. The FMCSA will involve the public in its decisionmaking and will
have as its purpose the full disclosure of FMCSA actions and
alternatives to the public and giving the public a full opportunity to
influence FMCSA decisions.
5. The FMCSA will continually take steps to ensure that the NEPA
program is effective and efficient. Effectiveness of the program will
be determined by the degree to which environmental considerations are
included on a par with the agency mission in project planning and
decisionmaking. Efficiency will be promoted through the following:
a. Awareness and involvement of the decisionmaker and participants
in the NEPA process.
b. NEPA technical and awareness training, as appropriate, at all
decision levels of the FMCSA.
c. Where appropriate, the use of programmatic analyses and tiering
to ensure consideration at the appropriate decision levels, elimination
of repetitive discussion, consideration of cumulative effects, and
focus on issues that are important and appropriate for discussion at
each level.
d. Use of the scoping and public involvement processes to limit the
analysis of issues to those which are of interest to the public and/or
important to the decision.
e. Elimination of needless paperwork by focusing documents on the
major environmental issues affecting those decisions.
f. Integration of the NEPA process into all aspects of FMCSA
planning at an early stage, so as to prevent disruption in the
decisionmaking process; ensuring that NEPA personnel function as team
members, supporting the FMCSA planning process and sound FMCSA
decisionmaking. All NEPA analyses will be prepared by an
interdisciplinary team.
g. Partnering or coordinating with Federal, State, tribal and local
governmental agencies, organizations, and individuals whose specialized
expertise will improve the NEPA process.
h. Oversight of the NEPA program to ensure continuous process
improvement.
i. Clear and concise communication of data, documentation, and
information relevant to NEPA analysis and documentation.
6. The worldwide, transboundary, and long-range character of
environmental problems will be recognized, and, where consistent with
national security requirements and U.S. foreign policy, appropriate
support will be given to initiatives, resolutions, and programs
designed to maximize international cooperation in protecting the
quality of the world human and natural environment. Consideration of
the environment for FMCSA decisions involving activities outside the
United States will be accomplished pursuant to Executive Order 12114
(Environmental Effects Abroad of Major Federal Actions, 4 January
1979), the DOT Order, and the requirements of this Order. An
environmental planning and evaluation process will be incorporated into
FMCSA actions that may substantially affect the global commons,
environments of other nations, or any protected natural or ecological
resources of global importance.
C. Scope
1. The Federal Motor Carrier Safety Administration's primary
mission is to
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prevent commercial motor vehicle-related fatalities and injuries.
Administration activities contribute to ensuring safety in motor
carrier operations through rigorous enforcement of safety regulations,
targeting high-risk carriers and commercial motor vehicle (CMV)
drivers; improving safety information systems and commercial motor
vehicle technologies; strengthening commercial motor vehicle equipment
and operating standards; and increasing safety awareness. To accomplish
these activities, the FMCSA works with Federal, State, and local
enforcement agencies; tribal governments; the motor carrier industry;
labor, safety, and any other interested parties.
2. Any environmental impacts that result from FMCSA's oversight of
motor carrier operations would most likely be in areas affecting air
quality, noise, and hazardous materials transportation. Actions that
may result in environmental impacts include, for example, the
following:
a. Any action that may directly, indirectly, or cumulatively result
in a significant increase in noise levels, either within a commercial
motor vehicle's closed environment or upon nearby areas.
b. Any action that may directly, indirectly, or cumulatively result
in a significant increase in the energy or fuel necessary to operate a
commercial motor vehicle, including but not limited to the following:
(1) Actions which may directly or indirectly result in a significant
increase in the weight of a commercial motor vehicle; and (2) actions
which may directly or indirectly result in a significant adverse effect
upon the aerodynamic drag of a commercial motor vehicle.
c. Any action that may directly, indirectly, or cumulatively result
in a significant increase in the amount of harmful emissions resulting
from the operation of a commercial motor vehicle.
d. Any action that may directly, indirectly, or cumulatively result
in a significant increase in either the use of or the exposure to toxic
or hazardous materials in the operation or disposal of commercial motor
vehicles or commercial motor vehicle equipment.
e. Any action that may directly, indirectly, or cumulatively result
in a significant increase in solid waste, as in the disposal of
commercial motor vehicles or commercial motor vehicle equipment.
f. Any action that may directly, indirectly, or cumulatively result
in a significant depletion of scarce natural resources associated with
the manufacture or operation of commercial motor vehicles or commercial
motor vehicle equipment.
D. Applicability
1. This FMCSA Order applies to all FMCSA actions, including actions
with effects that may be major and which are potentially subject to the
agency's control and responsibility. Actions include: projects and
programs entirely or partly financed, assisted, conducted, regulated,
or approved by FMCSA; new or revised agency rules, regulations, plans,
policies, or procedures; and agency legislative proposals. Where FMCSA
has no discretion to withhold or condition an action if the action is
in accordance with specific statutory criteria and FMCSA lacks control
and responsibility over the effects of an action, that action is not
subject to this Order. See 40 CFR 1500.6; 40 CFR 1508.18. Actions do
not include bringing judicial or administrative civil or criminal
enforcement actions. See 40 CFR 1508.18.
2. These environmental procedures also apply to all FMCSA actions
in response to Motor Carrier Safety Assistance Program (MCSAP)
applications or other similar requests to FMCSA for a grant, award, or
other similar action. For major categories of FMCSA actions involving a
large number of applicants, the appropriate Program Office must prepare
and make available generic guidance describing the recommended level
and scope of environmental information that applicants should provide.
The appropriate Program Office must also begin the NEPA review and
planning processes as early as possible after receiving an application
for items described above, advising any potential applicants of issues,
such as the appropriate level and scope of any studies or environmental
information that the agency may require to be submitted as part of the
application, and the need to consult with appropriate Federal, tribal,
State, regional, and local governments. See 40 CFR 1501.2(d) and
1507.3.
E. Legal Basis
1. National Environmental Policy Act of 1969 (NEPA)
NEPA sets forth a national policy that encourages and promotes
productive harmony between humans and the environment. NEPA procedures
require that environmental information is available to public officials
and citizens before decisions are made and before actions are taken.
The NEPA process is intended to help public officials make decisions
that are based on an understanding of environmental consequences and
take actions that protect, restore, and enhance the environment.
2. Council on Environmental Quality (CEQ) Regulations (40 CFR parts
1500-1508)
The CEQ regulations establish policy requirements that are binding
on all Federal agencies for implementing NEPA and related statutory
requirements.
3. Department of Transportation (DOT) Order 5610.1C, Procedures for
Considering Environmental Impacts
DOT Order 5610.1C sets the policy and procedures that supplement
the CEQ regulations and applies them to DOT programs. The Federal Motor
Carrier Safety Administration must comply with the CEQ regulations and
the provisions of the DOT Order.
4. Other Relevant Environmental Statutes, Laws, and Executive Orders
Appendix 16 lists other relevant environmental statutes, laws, and
Executive Orders that must be reviewed for compliance.
F. Common Environmental Acronyms
ACHP Advisory Council on Historic Preservation
AC&I Acquisition, Construction, and Improvement
CAA Clean Air Act
CBRA Coastal Barriers Resource Act
CD Consistency Determination
CE Categorical Exclusion
CED Categorical Exclusion Determination
CEQ Council on Environmental Quality
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
CFR Code of Federal Regulations
CWA Clean Water Act
CZM Coastal Zone Management Act
DEIS Draft Environmental Impact Statement
DOT Department of Transportation
EA Environmental Assessment
EIS Environmental Impact Statement
E.O. Executive Order
ESA Endangered Species Act
FEIS Final Environmental Impact Statement
FEQA Field Environmental Quality Advisor
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety Administration
FMCSR Federal Motor Carrier Safety Regulations
FONSI Finding of No Significant Impact
FWPCA Federal Water Pollution Control Act (also commonly referred to
as the Clean Water Act)
FWS Fish and Wildlife Service
FR Federal Register
HMR Hazardous Material Regulations
LESA Land Evaluation and Site Assessment
MCSAP Motor Carrier Safety Assistance Program
[[Page 9685]]
NAAQS National Ambient Air Quality Standards
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Services
NPDES National Pollutant Discharge Elimination System
NPS Non-Point Source
NSPS New Source Performance Standard
NRCS Natural Resources Conservation Service
NRHP National Register of Historic Places
PCB Polychlorinated Biphenyls
Pub. L. Public Law
PPR Project Proposal Report
RCRA Resource Conservation and Recovery Act
ROD Record of Decision
SDWA Safe Drinking Water Act
SEIS Supplemental Environmental Impact Statement
SHPO State Historic Preservation Officer
SIP State Implementation Plan
THPO Tribal Historic Preservation Officer
TSCA Toxic Substance Control Act
TSDF Treatment, Storage, and Disposal Facility
USACE U. S. Army Corps of Engineers (Former Acronym--COE)
U.S.C. United States Code
G. Use and Organization of this Order
1. Use
This Order will be used in conjunction with NEPA, the CEQ
regulations, and as a supplement to DOT Order 5610.1C, as amended, for
consideration of environmental impacts of FMCSA actions. It will also
be used, to the fullest extent possible, to conduct analyses and
consultations required by environmental laws other than NEPA, statutes,
Executive Orders, and regulations in conjunction with NEPA
implementation to reduce redundancy, paperwork, time, and cost.
2. Organization
Chapter 2 of this FMCSA Order implementing NEPA procedures and
policies for considering environmental impacts supplements specific
paragraphs in DOT Order 5610.1C, as amended. It is important that
persons using this Order refer to those sections of the DOT Order
5610.1C, as amended, cross-referenced in this FMCSA Order. Reference to
the DOT Order will provide a wider perspective on the issues as well as
provide details that may prove applicable to certain projects and
actions. Additional chapters and/or changes providing guidance in
meeting new or changed requirements will be added to this Order as
necessary.
Chapter 2. FMCSA Responsible Parties, Duties, and Instructions for
Implementing NEPA
[Supplementary Instructions to DOT Order 5610.1C, 9/18/79, as amended
7/13/82 and 7/30/85]
A. Responsible Parties for NEPA Implementation
This FMCSA Order assigns the following NEPA implementation
responsibilities:
1. Administrator, Federal Motor Carrier Safety Administration
a. Responsibilities. Acts on matters relating to NEPA
implementation and is responsible for providing NEPA capabilities (40
CFR 1507.2) as follows:
(1) Establishes and maintains the capability (personnel and other
resources) to ensure adherence to the policies and procedures specified
by this Order. This capability can be provided through contract
support, matrix (other modal) support, and permanent staff, with
sufficient staff to ensure:
(A) FMCSA cognizance of the analyses and decisions being made; and
(B) Familiarity with the requirements of NEPA and the provisions of
this Order by every person preparing, implementing, supervising, and
managing projects involving NEPA analysis.
(2) Ensures environmental responsibility and awareness among
personnel to most effectively implement the goals and policies of NEPA.
All personnel who are engaged in any activity or combination of
activities that significantly affect the quality of the human
environment will be aware of their NEPA responsibility. Only through
alertness, foresight, and notification through Project and Program
managers to MC-P, and training and education will NEPA goals be
realized.
b. Environmental Analyses and Documentation. Approves all
environmental analyses and documentation for Administration-initiated
actions, unless delegated to another FMCSA responsible official or
another Federal agency. The Administrator may enter into contracts with
a State or private entity to conduct initial environmental analyses and
documentation, but the Administrator must review and approve all such
environmental analyses and documentation and remains responsible for
its scope and contents (see Section D.7. of Chapter 2):
(1) With the exception of highly controversial EISs (as defined by
Section 11.d of DOT Order 5610.1C), the Administrator delegates
approval authority to Field Operations Service Center Administrators
for FMCSA DEISs, FEISs, and SEISs for actions that originate within,
and having effects confined to, their respective area;
(2) Authority for the appropriate FMCSA Administrator-level Program
Office to approve highly controversial EISs (see Section D.6.b.(4) of
Chapter 2); and
(3) For all other FEISs (non-controversial), only a notice of
approval will be made to DOT (P-1) by the responsible Administrator-
level Program office via the Administrator.
(c) Decisions on How to Proceed with FMCSA Actions. The
Administrator, or the Administrator's designee, has authority to decide
whether or, at a minimum, how to proceed with every action the FMCSA
undertakes. Thus, the Administrator (unless his/her authority is
delegated) is the decisionmaker and the responsible FMCSA official.
(Authority to sign EISs as the responsible official will be governed by
Section D.14.a. of Chapter 2). The Administrator makes the following
delegations:
(1) The NEPA Liaison will act as the senior decisionmaker and
senior environmental advisor for NEPA compliance and NEPA
implementation of all FMCSA actions. The Administrator also delegates
the responsibility to the NEPA Liaison to ensure accountability for
implementation of the policies set forth in this Order. For
Headquarters-originated actions, the Administrator delegates the
responsibility to the NEPA Liaison to determine whether to prepare an
EA, EIS, a Finding of No Significant Impact (FONSI), or a decision
withdrawing the proposal on the basis of its environmental impacts (40
CFR 1508.9) in consultation with the Office Director for the program
sponsoring the action or the person with the delegated authority to
issue the regulation.
(2) The Field or Division Administrators or their delegated
Federal, State, or Division Program Managers, in consultation with
their FEQAs (see also Section D.13. of Chapter 2), will hold authority
to determine whether to prepare an EA, EIS, a Finding of No Significant
Impact (FONSI), or a decision withdrawing the proposal on the basis of
its environmental impacts (40 CFR 1508.9) for actions that originate
within, and have effects confined to, their respective area. For
Headquarters-originated actions, the NEPA Liaison makes this
determination in consultation with the responsible FMCSA Program
Manager.
[[Page 9686]]
2. NEPA Liaison--Associate Administrator for Policy and Program
Delivery
a. Is the principal FMCSA environmental advisor and decisionmaker
for the completion of the environmental analysis under NEPA, CEQ
regulations, DOT and FMCSA Orders, and other environmental laws,
statutes, and Executive Orders listed in Appendix 16. The Regulatory
Development Division (MC-PRR), in the Office of Policy, Plans and
Regulation is the Program Office that will assist the NEPA Liaison in
carrying out these duties.
b. Is responsible for overseeing NEPA compliance and NEPA
implementation of all FMCSA actions. The NEPA Liaison ensures
accountability for implementation of the policies set forth in this
Order and that all necessary NEPA analyses (CE, EA, and EIS) are
completed before initiation of an FMCSA action.
c. Reviews all FMCSA proposed projects and advises the responsible
FMCSA official (e.g., the FEQAs or Project Manager) on the appropriate
level of environmental analysis and documentation needed for the
proposal. For CEs, EAs and non-controversial EISs, the NEPA Liaison may
direct the FEQAs or program staff to determine the appropriate level of
environmental analysis and documentation needed for the proposal.
d. Provides expert advice on NEPA-related matters to FMCSA Heads of
Offices, Divisions, and Field Operations Service Center Units.
e. Acts as the intra-agency and interagency liaison and coordinates
NEPA-related matters on a national basis, and is the principal contact
for CEQ on all other FMCSA actions.
f. Provides and periodically updates this FMCSA Order, program
guidance and policies after consultation with the Chief Counsel, Heads
of Offices, Divisions, and Field Operations Service Center Units.
Updates must comply with 40 CFR 1507.3 requirements for public notice
and CEQ review.
g. Serves as FMCSA representative in coordination with outside
groups at the national level regarding NEPA-related matters.
3. Heads of Headquarters Offices and Divisions
a. Coordinate with the NEPA Liaison to ensure agency-wide
consistency in areas of shared or related responsibility.
b. Serve as the responsible agency officials under NEPA and CEQ
regulations for actions subject to their approval.
c. Ensure accountability for implementation of the policies set
forth in this Order.
d. In consultation with the NEPA Liaison, ensure that FMCSA staff
responsible for the supporting function of the responsible agency
official under CEQ and related authorities receive appropriate training
in how to carry out FMCSA's responsibilities.
e. Ensure completion of all environmental analysis and
documentation for Headquarters Office-originated actions in
consultation with environmental staff and the NEPA Liaison. This
responsibility includes ensuring that the appropriate environmental
planning, analyses, and documentation are completed for the respective
programs and actions.
f. Notify the Policy, Plans, and Regulations Office Director (MC-
PR) through appropriate chains of command of all actions involved in
the NEPA review. The notification must include electronically filed
monthly updates, electronically filed checklists, etc.
4. The Office of Administration
At the current time, the General Services Administration (GSA) is
responsible for all building acquisition and construction projects to
meet the needs of the FMCSA. The GSA is currently responsible for, and
is required to comply with, all statutory and regulatory requirements
of NEPA for such projects. In the event the FMCSA is authorized by
Congress or the GSA delegates authority for the purchase, lease, and/or
acquisition of real property in the future, the FMCSA's Office of
Administration will assume primary responsibility for all necessary
environmental analyses and documentation needed for building
acquisition and construction projects, in consultation with the FMCSA's
Office of Chief Counsel. The FMCSA will coordinate such environmental
analyses, as appropriate, with the interested general public, as well
as other Federal, State, local, and tribal government agencies.
5. The Office of the Chief Counsel
a. Responsible for legal interpretation of NEPA and related
authorities, and represents FMCSA in litigation under such authorities.
b. Must approve the implementation of the procedures of FMCSA
Environmental Orders in consultation with the NEPA Liaison, NEPA Field
Environmental Quality Advisors (FEQAs), MC-PR, and MC-RI (Office of
Information Management), for actions originated by the Administrator.
c. Responsible for the review and approval of FMCSA and non-FMCSA
environmental documents submitted for Associate Administrator level
review. See Section D.6.b.(3) of Chapter 2 for information on legal
review of Environmental Impact Statements (EISs).
d. Responsible for the review and approval of guidance and training
concerning this Order, in consultation with the NEPA liaison and the
Professional Development and Training division.
6. Office of Research, Technology, and Information Management
a. Responsible for preparation and completion of all environmental
analysis and documentation for all headquarters office- and
Administrator-originated actions. Ensures that all required analysis is
completed, and that it meets CEQ and DOT standards for quality and
completeness. The Regulatory Evaluation Team (MC-RIA) within the
Analysis Division is the program office that will carry out these
duties.
b. Ensures the division is adequately staffed and has technical
capabilities, through government employees, contractors, or some
combination of the two, to complete all necessary analysis.
c. Coordinates actions and evaluations with program offices and
NEPA Liaison, and ensure that relevant offices have an opportunity to
review and comment on environmental analyses.
7. FMCSA Program Staff
a. For purposes of this FMCSA Order, this includes all FMCSA
employees responsible for the management and implementation of program
actions, such as, promulgating regulations, project planning and
development, project management, and research.
b. Program staff are responsible for:
(1) Developing and maintaining a thorough understanding of NEPA
requirements and the requirement of related authorities, and of the
policies articulated in this FMCSA Order, DOT Order 5610.1C, as
amended, as these pertain to their program areas with the assistance of
the NEPA Liaison and the FEQA.
(2) Ensuring that NEPA and related authorities are complied with,
as early as possible in the planning of any action within their program
areas.
(3) Coordinating their programs, activities, and projects with
FEQAs and the NEPA liaison, as appropriate.
(4) Implementing all mitigation and other commitments resulting
from NEPA compliance for actions under their authority.
[[Page 9687]]
(5) Initiating early consultations with Field Operations Service
Center Units, the FEQAs, Heads of Offices and Divisions, the NEPA
liaison, as appropriate if uncertain regarding the need for
environmental analysis or documentation for any project. The Field
Operations Service Center Administrator will promptly notify the
Policy, Plans, and Regulations Office Director (MC-PR) and the NEPA
Liaison if uncertainty for NEPA review persists.
(6) Notifying the Policy, Plans, and Regulations Office Director
(MC-PR) through appropriate chains of command of all actions involved
in the NEPA review. The notification must include electronically filed
monthly updates, electronically filed checklists, etc.
8. Field Operations Service Center Administrators
a. Are accountable for execution of FMCSA's responsibilities under
NEPA and related authorities with respect to actions under their
jurisdiction.
b. Serve as the ``responsible agency official'' under CEQ
regulations (40 CFR 1506.5(c)) with respect to the environmental
effects of actions under their jurisdiction.
c. Maintain FEQA within their staffs, augmented as necessary
through interagency agreements and contracts, to ensure field
interdisciplinary competence in environmental matters.
d. In consultation with the FMCSA NEPA Liaison, ensure that all
field staff with responsibility for planning, approving, and
implementing Commercial Vehicle Safety Plan grants, etc., receive
training in how to carry out FMCSA's responsibilities under NEPA and
related authorities.
e. Comply with all environmental laws. What may appear to be a good
idea initially may not be environmentally acceptable. It is, therefore,
important that alternatives to a proposed action be available.
Coordination of FMCSA environmental analyses and documents with
Federal, State, local, and tribal officials may be necessary. Questions
concerning environmental matters should be directed to the FEQA and
appropriate Field Operations Service Center staff.
f. Notify the Policy, Plans, and Regulations Office Director (MC-
PR) through appropriate chains of command of all actions involved in
the NEPA review. The notification must include electronically filed
monthly updates, electronically filed checklists, etc.
9. Heads of Units, Divisions, and Offices
a. Ensure that all environmental analyses and documentation for
FMCSA actions (except building acquisition and construction actions)
they initiate, or are directed by higher authority to initiate, are
completed.
b. Ensure that a FEQA, Environmental Project Manager, and
Environmental Specialists are available within the Field Operations
Service Center territory.
c. Ensure that Field Operations Service Center Units and Field
Division Offices are notified as soon as possible of any needed
environmental analyses or documentation required for field proposed
actions and projects.
d. Notify the Policy, Plans, and Regulations Office Director (MC-
PR) through appropriate chains of command of all actions involved in
the NEPA review. The notification must include electronically filed
monthly updates, electronically filed checklists, etc.
10. The Field Environmental Quality Advisor (FEQA)
a. The Field Environmental Quality Advisor is the center of
expertise maintained at the Field Service Unit in which knowledge in
NEPA-related environmental matters and other related authorities, such
as the National Historic Preservation Act, the Clean Air Act, and the
Endangered Species Act, is vital.
b. The FEQA will be a collateral duty among others assigned to the
employee.
c. The FEQA will be located at the Field Service Unit where it can
influence decisionmaking early in FMCSA's planning or preparation for
any project or action subject to review under NEPA and related
authorities.
d. The FEQA is responsible for participating in FMCSA planning and
decisionmaking, for advising the Administrator, the Office Heads, the
Field Administrators, and other decisionmakers, and for providing
training and technical assistance to all pertinent FMCSA employees and
contractors.
e. Maintains interdisciplinary expertise in environmental matters,
through the employment of qualified staff and/or by interagency
agreement or under contract.
f. Reviews all documentary products of FMCSA NEPA analyses, and
assists program staff in ensuring that such products, and the analyses
they report, are adequate and defensible.
g. Maintains records of FMCSA NEPA compliance activities.
h. Routinely interacts with, and is assisted by, the NEPA Liaison.
i. Maintains needed guidance material, and recommends updates and/
or changes to this FMCSA Order, as appropriate. Updates must comply
with 40 CFR 1507.3 requirements for public notice and CEQ review.
j. Develops and maintains an up-to-date checklist for use in
determining whether an action requires an environmental assessment or
impact statement.
k. Notifies the Policy, Plans, and Regulations Office Director (MC-
PR) through appropriate chains of command of all actions involved in
the NEPA review. The notification must include electronically filed
monthly updates, electronically filed checklists, etc.
11. Field Operations Service Center Program Staff
a. Ensure completion of all environmental analyses and
documentation for FMCSA actions designated to them.
b. Assist Headquarters Units, where appropriate, with their
implementation of the procedures set forth in this Order.
c. Coordinate these environmental analyses and documents with
Federal, State, local, and tribal officials as necessary.
d. Maintain close coordination with appropriate Field Division
Office elements during the execution of these tasks. Questions
concerning environmental matters should be directed to appropriate
Field Operations Service Center Unit staff and the FEQA.
e. Empower the FEQA to advise and assist in planning and
decisionmaking on actions that could affect the human environment, in a
way and at a time in the planning and decisionmaking process that
maximizes the effectiveness of the FEQA's advice and assistance.
f. Ensure that all Field program staff involved in planning and
decisionmaking about actions that could affect the human environment
are made aware of FMCSA's responsibilities under NEPA and related
authorities, are acquainted with this FMCSA Order, DOT Order 5610.1C,
as amended, and other NEPA- or CEQ-related guidance, are held
accountable for the quality of their actions and decisions, and are
required to coordinate effectively with the FEQA.
g. Notify the Policy, Plans, and Regulations Office Director (MC-
PR) through appropriate chains of command of all actions involved in
the NEPA review. The notification must include electronically filed
monthly updates, electronically filed checklists, etc.
B. FMCSA's Decisionmaking Process for NEPA Implementation. (see Flow
Chart in Appendix 17)
1. Normal Circumstances
Under normal circumstances, FMCSA's compliance with the
[[Page 9688]]
procedural requirements of NEPA is handled as follows:
Step 1: Program staff determine a purpose and need for a particular
action, and develop a preliminary description of the action.
Step 2: In consultation with, or at the direction of the FEQAs or
NEPA Liaison, program staff determine whether a NEPA analyses is
required and, if so, the appropriate level of NEPA analysis and
documentation required.
Step 3: Program staff and the FEQA, in consultation with the NEPA
Liaison (or designee) and the Office of Information Management (MC-RI),
arrange for necessary environmental analysis and documentation to take
place, including public involvement for preparation of EAs and EISs [40
CFR 1501.4(b) and 1506.6]. Program staff make sure that there is
written documentation of all environmental analyses in the FMCSA docket
or record. When legal issues and/or public controversy are involved in
the action or NEPA analysis, program staff must notify the FEQAs and
Field Administrators, the NEPA Liaison, MC-P, and Chief Counsel, to
afford them an opportunity to participate.
Step 4: Program staff and the Office of Information Management (MC-
RI), in consultation with, or with oversight by, the FEQAs and the NEPA
Liaison ensure that the appropriate analysis and documentation are
completed, and that documents are circulated and filed in accordance
with the requirements of law, the CEQ regulations, this FMCSA Order,
DOT Order 5610.1C, as amended, any other NEPA-related guidance,
statutes, Executive Orders, and related authorities.
Step 5: Program staff, assisted as needed by the FEQAs and the NEPA
Liaison, provide the results of the NEPA review process to the relevant
FMCSA decisionmaker(s).
Step 6: The decisionmaker(s) decides whether and how the action
will proceed, and if it proceeds, what, if anything, will be done to
mitigate adverse impacts.
Step 7: Program staff, as assisted by the FEQAs and the NEPA
Liaison, ensure that any required final public notifications of the
environmental decision are issued.
Step 8: If the project or action has been approved by the
decisionmaker, it proceeds, subject to whatever mitigation (if any) and
monitoring activities have been chosen.
Step 9: If mitigation is to be performed, program staff, FEQAs, and
the NEPA liaison monitor the activity to ensure that it is carried out.
The extent to which all of the above steps in FMCSA's environmental
decisionmaking process can be carried out varies with the type of
action under consideration (see Chapter 3).
2. Timing of Agency Action
a. FMCSA is adopting the availability of, and the review process
for, draft EISs as set forth at 40 CFR 1506.10. No decision on the
FMCSA's proposed action shall be made or recorded (see 40 CFR 1505.2/
RODs in cases requiring an EIS) by the agency until the later of the
following dates:
(1) Ninety (90) days after publication of the notice by EPA
described in 40 CFR 1506.10(a) for a draft environmental impact
statement (DEIS); and
(2) Thirty (30 ) days after publication of the notice by EPA
described in 40 CFR 1506.10(a) for a final environmental impact
statement (FEIS).
b. Exceptions. An agency engaged in rulemaking under the
Administrative Procedure Act or other statute for the purpose of
protecting the public health or safety, may waive the time period in
subparagraph 2(a)(2) above and publish a decision on the final rule
simultaneously with publication of the notice of the availability of
the FEIS. See 40 CFR 1506.10(b)(2).
c. Time Periods May Run Concurrently. If the FEIS is filed within
ninety (90) days after a DEIS is filed with the EPA, then the minimum
thirty (30) day period and the minimum ninety (90) day period may run
concurrently. However, subject to 40 CFR 1506.10(d), the FMCSA shall
allow not less than 45 days for comments on draft statements.
d. Request for Reasonable Extensions. Requests for reasonable
extensions of the review period for the draft EISs shall be granted
whenever possible, and particularly when warranted by the magnitude and
complexity of the statement or the extent of citizen interest.
e. Reduction of Prescribed Periods. Requests to reduce the
prescribed periods for EIS processing based on compelling reasons of
national security must be made via the Administrator to EPA.
f. Emergency Circumstances. In emergency situations (such as life-
threatening natural or human-caused disasters), where it is necessary
to take an action with significant environmental impact without
observing the provisions of CEQ regulations, the process outlined above
(NEPA normal circumstance procedures) cannot be followed. CEQ
regulations (40 CFR 1506.11) permit Federal agencies to consult with
CEQ to discuss alternative arrangements. The FMCSA NEPA Liaison will
consult with CEQ to discuss alternative arrangements in such emergency
situations. This is only applicable to actions necessary to control the
immediate effects of the emergency; other actions remain subject to
NEPA review (40 CFR 1506.11). The FMCSA NEPA Liaison will also notify
Cooperating Agencies in this regard.
(1) Program staff should always alert the FEQAs and the NEPA
Liaison immediately when an emergency exists.
(2) FMCSA will limit such actions necessary to control the
environmental impacts of the emergency.
(3) In emergency situations where it is necessary to take an action
that does not have significant environmental impact without observing
the provisions of CEQ regulations, and the process in this Order cannot
be followed, the FMCSA NEPA Liaison will consult with DOT's Office of
the Assistant Secretary for Transportation Policy (P-1) to determine if
alternative arrangements are needed.
C. Planning and Early Coordination
1. Scoping
The environmental checklist, located in Appendix 1, is a tool to
assist in scoping, i.e., identifying environmental requirements and
potential consequences to consider in project planning efforts. Some
consultation with Federal, State, tribal, or local expert agencies may
be necessary to complete the environmental analysis checklist. The
responsible official (the Office Director for the program sponsoring
the action or the person with the delegated authority to issue the
regulation) must maintain a written record of contacts made and
responses received. For all FMCSA actions to which NEPA applies and
that are not categorically excluded (see Appendix 2), all known
interested (including those that might not be in accord with the action
on environmental grounds) or affected parties (Federal, State, tribal,
local, and private) must be notified in writing and invited to
participate in the NEPA process. Any other known affected private
parties amongst the invitees having regulatory involvement in the
outcome of, or otherwise having expressed an interest in the action,
will also be notified in writing. All other interested parties may be
informally contacted. For actions requiring preparation of an
Environmental Impact Statement (EIS), the scoping process must be
followed as described in 40 CFR 1501.7. Policy regarding public notice
and involvement is presented in
[[Page 9689]]
Sections A. and D.3. of Chapter 3 of this Order. The NEPA Liaison will
identify other environmental review and consultation requirements so
that FMCSA and cooperating agencies may prepare other required analyses
and studies concurrently with preparation of the EA or EIS (40 CFR
1502.25).
2. Environmental Planning Process
Consideration of the environmental consequences of a given action
(scoping) should begin early in the project planning process. This is
necessary not only for documentation purposes, but also because
environmental factors and compliance with Federal law may alter the
design, layout, or timing of a given action. The word ``action'' is a
comprehensive term used throughout this Order that includes all
undertakings that may have environmental impacts. See Section D of
chapter 1 for examples. Environmental analysis and documentation for
proposed actions are to be completed before initiation of the action.
For very broad actions, (e.g., actions that are regional in scope
or involving regulations on hours-of-service of drivers and hazardous
materials), the EIS tiering as discussed in the CEQ regulation (40 CFR
1502.20) may be appropriate. The first tier EIS would focus on broad
issues, such as, general location, mode choice, area-wide air quality
and land use implications of the major alternatives. The second tier
would address site-specific details on project impacts, costs, and
mitigation measures.
D. Environmental Documentation
1. Actions Affected
This FMCSA Order applies to all FMCSA actions as described in
section D of chapter 1, including the decision to conduct research
activities (research, development, test, and evaluation); promulgate
regulations; award grants; change operations; conduct major
acquisitions; and decommission FMCSA facilities or equipment (such as
noise pollution, radioactive monitoring equipment, and computers).
2. Categorical Exclusions (CEs)
a. Introduction. As defined by the Council on Environmental Quality
(CEQ), a ``categorical exclusion'' or ``CE'' means a category of
actions which do not individually or cumulatively have a significant
effect on the human environment and for which, therefore, neither an EA
nor an EIS is required. The use of a CE is intended to reduce paperwork
and delay by eliminating the unnecessary preparation of EAs and EISs.
All CEs are subject to ``extraordinary circumstances.'' (40 CFR 1508.4)
b. FMCSA List of CEs. A list of current FMCSA CEs can be found in
Appendix 2 of this Order. The CEs listed in Appendix 2 are subject to
review and any suggested modifications should be provided to the
Administrator. Additional CEs should be suggested by the responsible
FMCSA official when it becomes clear that the category of actions does
not individually or cumulatively result in significant effects. For
example, when through the preparation of EAs, FONSIs result after
numerous analyses of similar types of actions and monitoring confirms
the FONSI are appropriate, a new CE should be proposed.
3. Limitations on Using Categorical Exclusions
a. Extraordinary circumstances that preclude the use of a
categorical exclusion are when the proposed action:
(1) Has greater size or scope than is generally experienced for the
category of action.
(2) Has a reasonable likelihood of promoting controversy regarding
the potential for significant environmental effects (direct, indirect,
and cumulative).
(3) Has highly uncertain effects on the environment that involve
unique or unknown risks, or are scientifically controversial.
(4) Is reasonably likely to establish a precedent (or makes
decisions in principle) for future or subsequent actions that are
reasonably likely to have a future significant effect.
(5) Is reasonably likely to have significant effects on public
health, safety, or the environment.
(6) Is reasonably likely to be inconsistent with or cause a
violation of any Federal, State, local or tribal law or requirement
imposed for the protection of the environment.
(7) Is reasonably likely to cause reportable releases of hazardous
or toxic substances as specified in 40 CFR part 302, Designation,
Reportable Quantities, and Notification.
(8) Is reasonably likely to cause releases of petroleum, oils, and
lubricants, application of pesticides and herbicides.
(9) Is reasonably likely to generate air emissions that would
exceed de minimis levels or otherwise require a formal Clean Air Act
conformity determination.
(10) Has reasonable potential for degradation of already existing
poor environmental conditions, or reasonably likely to initiate a
degrading influence, activity, or effect in areas not already
significantly modified from their natural condition.
(11) Is reasonably likely to have an unresolved effect on
environmentally sensitive resources unless the impact has been resolved
through another environmental process (e.g., CZMA, NHPA, CWA, etc).
Environmentally sensitive resources include:
(A) Proposed federally listed, threatened, or endangered species or
their habitats.
(B) Properties listed or eligible for listing on the National
Register of Historic Places.
(C) A site that involves a unique characteristic of the geographic
area, such as prime or unique agricultural land, a coastal zone, a
historic or cultural resource, park land, wetland, wild and scenic
river, designated wilderness or wilderness study area, 100-year
floodplain, sole source aquifer (potential sources of drinking water),
ecologically critical area, or property requiring special consideration
under 49 U.S.C. 303(c). (49 U.S.C. 303(c) is commonly referred to as
section 4(f) of the Department of Transportation (DOT) Act, which
includes any land from a public park, recreation area, wildlife and
waterfowl refuge, or any historic site).
(12) Is considered together with other past, present, and
reasonably foreseeable future actions, and is likely to create
cumulatively significant impacts.
(13) Has a reasonably disproportionate (high and adverse) effect on
a minority or low income population.
(14) May cause a change in traffic patterns or an increase in
traffic volumes (road and/or waterway) that could require rerouting of
roads, waterways, or traffic.
b. The listed circumstances above and those in the DOT Order are
addressed in the Environmental Checklist (Appendix 1). If a CE is not
appropriate, an EA or an EIS must be prepared.
c. Complete an Environmental Checklist (Appendix 1) to substantiate
the use of each CE. The checklist must be submitted with the proposal
for the action. If a CE is not appropriate, the Environmental Checklist
will be used for developing an EA or EIS. A written Categorical
Exclusion Determination (CED) (Appendix 4) must be prepared as a part
of the Rulemaking Support Paper \1\ when a CE will be relied on to
promulgate a regulation that requires an environmental checklist.
Checklists and CEDs supplementary to the
[[Page 9690]]
requirements of this Order may be developed by subordinate offices for
specific types of actions. Those documents must be approved by the
Administrator before they are adopted for use.
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\1\ Required by FMCSA Order 2100.1.
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d. Even though a CE is appropriate, that fact does not exempt the
action from compliance with any other Federal law or any review or
consultation requirements contained in any applicable agreement. For
example, compliance with the Endangered Species Act, the Fish and
Wildlife Coordination Act, the National Historic Preservation Act, the
Clean Water Act, the Clean Air Act (conformity requirements), etc., is
always mandatory, even for actions that do not require an EA or EIS.
4. Environmental Assessment (EA)
An EA is a brief report that provides sufficient evidence and
analysis to determine the significance of the potential environmental
effects of the proposed action and its alternatives. The EA documents,
in summary, set forth the agency's consideration of environmental
effects in the planning stages of the action. The EA is the document
used to determine whether to prepare an EIS, a Finding of No
Significant Impact (FONSI), or a decision withdrawing the proposal on
the basis of its environmental impacts (40 CFR 1508.9).
a. An Environmental Assessment (EA) means a concise public document
that serves to:
(1) Briefly provide sufficient evidence and analysis for
determining whether to prepare:
(A) An Environmental Impact Statement; or
(B) A Finding of No Significant Impact.
(2) Aid an agency's compliance with NEPA when no environmental
impact statement is necessary.
(3) Facilitate preparation of a statement when one is necessary.
b. All EAs shall include brief discussions of:
(1) The need for the proposal;
(2) The no action alternative and alternatives as required by
section 102(2)(E) of NEPA;
(3) The environmental impacts of the proposed action and
alternatives;
(4) The significance of effects, including:
(A) The context(s) in which effects may occur; and
(B) The intensity of effects, using the Environmental checklist as
an outline, and including mitigation measures where they exist and are
adequate to reduce effects below significance; and
(5) A listing of agencies and persons consulted.
The EA, supported by the necessary appendices, must be concise for
meaningful review and use by the decisionmaker. Studies, technical data
and other documents incorporated by reference should be readily
available to the public.
c. Projects for which environmental assessments are normally
completed include new or revised regulations, directives or policy
guidance concerning activities that are not categorically excluded and
uncertainty about whether they may have significant environmental
effects.
5. Finding of No Significant Impact (FONSI)
A FONSI is a statement that a proposed action has been
environmentally assessed (EA completed) and determined not to
``significantly affect the quality of the human environment.'' The
FONSI must briefly present the reasons why the action will not have a
significant impact on the quality of the human environment.
a. The FMCSA is only required to circulate an EA if there is a
special reason to do so. The CEQ regulations require an agency to make
an EA available for 30 days [see 40 CFR 1501.4(e)(2)] if there is a
precedent-setting or unique action. Thus, the EA will be made available
to the public for review and comment for thirty (30) days and notice
will be provided in accordance with 40 CFR 1501.4(e)(2) and 1506.6.
Normally, the FONSI may be attached to the EA and combined into a
single document. However, if the EA is developed on a ``precedent-
setting or unique action'' as referred to in section 1501.4(e)(2), a
copy of the EA shall be made available to the public for a period of
not less than 30 days before the FONSI is made and the action is
implemented.
b. If the FMCSA is engaged in rulemaking under the Administrative
Procedure Act or other statute for the purpose of protecting the public
health or safety, it may make a finding of no significant impact
available for public review (including State and area-wide
clearinghouses) for thirty (30) days before the agency makes its final
determination whether to prepare an environmental impact statement and
before the action may begin. The circumstances are:
(1) The proposed action is, or is closely similar to, one which
normally requires the preparation of an environmental impact statement
under the procedures adopted by the FMCSA pursuant to 40 CFR 1507.3, or
(2) The nature of the proposed action is one without precedent. See
40 CFR 1501.4(e)(2).
c. Format. For FMCSA purposes a FONSI should be a separate, one
page document to which an EA is attached and which notes any other
environmental document related to it. The format should be as outlined
in Appendix 7.
d. Coordination. To ensure copies of the FONSI and the EA are
available to the public upon request, the originator must forward one
copy each to the Administrator and the responsible Associate
Administrator program office, and retain one copy each in the office of
the preparer and the appropriate program office. For actions involving
a notice to be published in the Federal Register or where a docket has
been established in the DOT Docket Management System (DMS), the
originator must forward one single-sided copy suitable for black and
white scanning to the staff responsible for the Federal Register notice
or FMCSA docket. The staff person responsible for the FMCSA docket will
forward the FONSI and EA to the appropriate docket for public viewing
on the World Wide Web (www).
6. Environmental Impact Statement (EIS)
a. An EIS is prepared for actions significantly affecting the
quality of the human environment. It describes in detail the nature and
extent of the environmental impacts of the proposed action and each
alternative. The EIS should discuss appropriate mitigation measures for
any adverse impacts associated with the proposed action or alternative.
FMCSA actions which normally require an EIS include the following:
(1) Actions addressed in an environmental assessment that concludes
preparation of an EIS is necessary to discuss significant environmental
impacts of the action(s), and where FMCSA cannot make a finding of no
significant effect.
(2) Actions which generate significant controversy because of
effects on the human environment.
(3) Actions for which there is a clear need for an Environmental
Impact Statement, such that it is unnecessary to first prepare an
Environmental Assessment. These would include actions having a
significant effect on the following:
(A) Air quality.
(B) Noise.
(C) Hazardous materials.
(D) Endangered species.
[[Page 9691]]
(E) Significant archaeological, cultural or historical resources.
(F) Wetlands.
(G) Property protected under section 4(f) of the DOT Act.
b. Preparation and Processing of EISs.
(1) Preparation of EISs. All draft, final, and supplemental EISs
(DEISs, FEISs, SEISs) must be prepared as directed in 40 CFR part 1502.
A template for the cover page of an FMCSA EIS is included in Appendix
9.
(2) Circulation of EISs. FMCSA is adopting the availability of, and
the review process for, draft EISs as set forth at 40 CFR 1506.10. The
originator of the draft EIS or the responsible Associate Administrator
program office must forward copies of the DEIS, FEIS, and SEIS, as
applicable, to the Administrator for distribution among Administrator
level offices and DOT elements, as appropriate, and for filing 5 copies
with the Environmental Protection Agency's (EPA's) Office of Federal
Activities. The copies of the environmental documents should be
forwarded to the Administrator in sufficient time for review and
comment by Administrator level offices and DOT elements as appropriate.
When the State process for intergovernmental review provides that
comments are obtained through a designated agency, the DEIS must be
circulated to that agency. When there is no designated agency for
intergovernmental review, the FMCSA project manager must obtain
comments directly from interested State and local agencies.
Additionally, comments must be solicited from the affected and
interested public, Federal agencies that have jurisdiction by law or
expertise with respect to any environmental impact involved or which
are authorized to develop and enforce environmental standards, and any
other Federal agency that is affected by the proposed action or has
requested a copy of the DEIS. The FEIS and SEIS will be circulated to
all those who commented on the DEIS or requested copies of the FEIS,
and to any other interested or affected organizations, agencies or
individuals.
(3) Legal Review. The Headquarters Office of the Chief Counsel must
provide final legal sufficiency review of all FMCSA DEISs, FEISs, and
SEISs prepared for all actions.
(4) Environmental Review and Approval. As noted above, the
Administrator has authority to approve all FMCSA DEISs, FEISs, and
SEISs in conjunction with the responsible official in the originating
program office. With the exception of highly controversial EISs (as
defined by Section 11.d. of DOT Order 5610.1C), this approval authority
is delegated to the Headquarters Division Offices and Field Operations
Service Center Administrators for FMCSA DEISs, FEISs and SEISs for
actions that originate within, and have effects confined to, their
respective area.
(A) Highly controversial EISs. The Administrator and the
appropriate FMCSA Associate Administrator program office must approve
highly controversial EISs. Before final FMCSA approval of a
controversial FEIS, however, the Administrator will notify the
Secretary of Transportation's Office of the Assistant Secretary for
Transportation Policy (P-1) and Office of the General Counsel (C-1)
that a controversial FEIS is under review and will provide them a copy
of the summary section contained in the FEIS. The Administrator as
appropriate, will give DOT [(P-1) and (C-1)] two weeks notice before
final approval of a highly controversial FEIS.
(B) Non-controversial EISs. For all other FEISs, only a notice of
approval will be made to DOT (P-1) by the responsible Associate
Administrator program office via the Administrator.
(5) Records of Decision (40 CFR 1505.2).
(A) A concise public Record of Decision (ROD) must be completed for
projects requiring an EIS (See Appendix 12). As required by 40 CFR
1505.2, the record must do the following:
(i) State what the decision was.
(ii) Identify all alternatives considered by the agency in reaching
its decision, specifying the alternative or alternatives which were
considered to be environmentally preferable. An agency may discuss
preferences among alternatives based on relevant factors including
economic and technical considerations and agency statutory missions. An
agency must identify and discuss all such factors including any
essential considerations of national policy which were balanced by the
agency in making its decision and state how those considerations
entered into its decision.
(iii) State whether all practicable means to avoid or minimize
environmental harm from the alternative selected have been adopted, and
if not, why they were not. A monitoring and enforcement program must be
adopted and summarized where applicable for any mitigation.
(A) The ROD is the document that completes the EIS process and
states whether and how to proceed with the proposed action. The
Environmental Project Manager must forward 12 copies of the ROD (these
can be submitted along with the copies of the FEIS) through the
appropriate chain of command to the Administrator. The twelve copies of
the ROD must be forwarded to the Administrator in sufficient time for
review and comment by Administrator level offices and DOT elements as
appropriate. After the ROD is reviewed and signed by the responsible
official (see section D.14. of this chapter), signed copies will be
forwarded to the Administrator for distribution among Administrator
level offices and DOT elements as appropriate and for publication in
the Federal Register. The responsible official must distribute the ROD
to appropriate agencies, organizations, individuals, and FMCSA dockets.
7. Agency Responsibility for Documents Prepared by Applicants or
Proponents
a. The CEQ regulations allow for applicants or proponents (e.g., a
cooperating local government) to prepare environmental documents for a
proposed action, but require that the FMCSA take an active guidance and
evaluative role during EA/EIS preparation, and take final
responsibility for the quality of the analysis and the resulting
document. If the FMCSA permits an applicant to prepare an EA or EIS,
the FMCSA:
(1) Will assist the applicant by outlining the types of information
required;
(2) Will independently evaluate the information submitted and shall
be responsible for its accuracy; or
(3) Will make its own evaluation of the environmental issues and
take responsibility for the scope and content of the environmental
document (40 CFR 1506.5).
b. Local governments, other applicants, or cooperating agencies may
conduct studies, etc., on FMCSA's behalf, but the FMCSA must oversee
and approve the work. FMCSA staff will provide guidance to assist
applicants in preparation of these documents.
8. Documents Prepared by Contractors
a. Contractors frequently prepare EISs and EAs. To obtain unbiased
analyses, contractors must be selected in a manner that avoids, to the
maximum extent possible, even the appearance of impropriety, including
but not necessarily limited to, avoiding any conflicts of interest.
Therefore, contractors must execute disclosure statements specifying
that they have no financial or other interest in the outcome of the
project or action. The contractor's efforts should be closely monitored
throughout the contract to ensure an adequate assessment/
[[Page 9692]]
statement and also to avoid extensive, time-consuming, and costly
analyses or revisions. FMCSA Action proponents and NEPA program
managers must be continuously informed and involved. When selecting a
contractor the following rules shall apply:
(1) A contractor shall be chosen solely by Federal agencies to
avoid any conflict of interest.
(2) Agencies shall prepare disclosure statements for execution by
contractors specifying that the contractor has no financial or other
interest in the outcome of the action.
(3) The responsible Federal official shall independently evaluate
the EIS and take responsibility for its scope and contents.
(4) All contractor-prepared documents must indicate the
contractor's level of involvement in the following ways:
(A) If contractor involvement is minimal and only for a limited
portion of the NEPA analysis process, then the contractor must be
included in the list of preparers and the FMCSA Environment Project
Manager will sign as the Environmental Project Manager.
(B) If the contractor has major involvement in the preparation of
the NEPA document, or if the contractor and the FMCSA preparer have
equal involvement in the preparation, then the ``cover page'' of the
NEPA document will indicate that the CED and/or checklist, EA, and/or
EIS was prepared by the contractor for the FMCSA and be signed by the
contractor as preparer, or that the documentation was prepared by both
the contractor and the FMCSA and be signed by the contractor and the
FMCSA Environmental Project Manager as preparers.
b. Types of Contracts and Agreements. Most FMCSA NEPA-related work
would normally be procured under Firm Fixed Price contracts (used when
all elements of a task are well-defined), but this may not always be
the most efficient kind of vehicle for the stated purpose. The type of
contract used is a determination for the Contracting Officer (CO). The
FMCSA may also use other different contract types, such as:
(1) Indefinite Delivery (used when delivery requirements are not
certain);
(2) Fixed Price with Economic Price Adjustment (used when market
prices for labor and/or materials are likely to be unstable over the
life of the contract);
(3) Fixed Price Award Fee (used when FMCSA wishes to provide an
incentive award and evaluation standards exist);
(4) Fixed Price Prospective Redeterminable (used when the costs can
be estimated reliably only during the first year of performance);
(5) Fixed Price Incentive (used when a proposed cost-sharing
formula would motivate a contractor to control costs);
(6) Cost Plus Fixed Fee (used when risks and requirements are
highly uncertain);
(7) Cost Plus Incentive Fee (used when risks and requirements are
highly uncertain);
(8) Cost Plus Award Fee (used when risks and requirements are
highly uncertain);
(9) Cost or Cost Sharing (used when risks and requirements are
highly uncertain); and
(10) Time and Materials (used when risks and requirements are
highly uncertain).
c. Interagency Agreements.
(1) The FMCSA can use Interagency Agreements (IAAs) (or ``Economy
Act'' Transfers, 31 U.S.C. 1535) to accomplish needed NEPA studies. For
example, it may be possible to obtain data on the air quality standards
for a particular region in the United States through agreement with the
Environmental Protection Agency, or on endangered species through the
U.S. Fish and Wildlife Service. Use of an IAA is a determination for
the CO.
(2) IAAs can provide the FMCSA with the interdisciplinary team it
needs to establish Statements of Work, the scope of NEPA analysis and
obtain the expertise needed to carry it out, and to develop contracts
for NEPA-related studies.
d. Statements of Work (SOWs).
(1) SOWs are used in formal contracting, and informal and formal
agreements to guide the development of data and deliverables.
(2) The FMCSA shall develop a SOW specifically for each proposed
action and the FMCSA and the consultant should have a specific
understanding of the nature of an acceptable deliverable before
finalizing any contract or agreement.
e. Role of the Contracting Officer, Subject Matter Expert, and
Project Manager.
(1) The FMCSA's Contracting Officer is responsible for all phases
of procurement, from initial distribution of the Request for Proposals
or Quotations (RFP/RFQ) to approving the final payment for NEPA
services.
(2) The subject matter expert (SME) is crucial to the success of
the procurement, as this person must develop the SOW, the specific
evaluation criteria, and review the deliverables along with the project
manager at each stage of the NEPA process.
(3) The Project Manager, here used in the sense of the Contracting
Officer's Representative, is the officially designated person who, with
the appropriate SMEs, evaluates the various contract deliverables and
recommends payments and other specific actions to the Contracting
Officer.
9. List of Preparers
The EA and the EIS must contain a list of preparers who assisted in
the preparation of the analysis. The list may also include members of
other government entities, such as the Department of Justice, the
Department of Labor, OSHA, etc., when they are responsible for a
particular analysis used in the preparation of the document. The list
should provide the name, affiliation or organization, and
qualifications of the preparer and identify the section(s) of the
document containing their analysis. See 40 CFR 1502.17 and 1506.5.
10. Reducing Paperwork in Preparation of Environmental Documents
Reduce excessive paperwork by:
a. Reducing the length of documents by means such as page limits.
b. Preparing analytic rather than encyclopedic documents.
c. Discussing only briefly issues other than significant ones.
d. Writing documents in plain language.
e. Following a clear format for documents.
f. Emphasizing the portions of the document that are useful and
reducing emphasis on background material.
g. Using the scoping process to identify significant issues,
deemphasize insignificant issues, and to narrow the scope of the
environmental process.
h. Summarizing the document and circulating the summary if the
document is unusually long.
i. Using program, policy, or plan environmental documents and
tiering to eliminate repetition.
j. Incorporating by reference.
k. Integrating NEPA requirements with other environmental review
and consultation requirements.
l. Requiring comments to be specific.
m. Attaching and circulating only changes to the draft documents
rather than the entire document when changes are minor.
n. Eliminating duplication with State and local procedures, by
providing for joint preparation, and with other Federal procedures, by
providing for adoption of environmental documents.
o. Combining environmental documents with other documents.
p. Using categorical exclusions.
q. Using findings of no significant impact.
[[Page 9693]]
11. Reducing Delays in Preparation of Environmental Documents
Reduce delays by:
a. Integrating the NEPA process into early planning.
b. Emphasizing interagency cooperation before the environmental
documents are prepared, rather than submission of adversary comments on
completed documents.
c. Insuring the swift and fair resolution of lead agency disputes.
d. Using the scoping process for an early identification of what
are and what are not the real issues.
e. Establishing appropriate time limits for the NEPA process.
f. Preparing environmental impact statements early in the process.
g. Integrating NEPA requirements with other environmental review
and consultation requirements.
h. Eliminating duplication with State and local procedures by
providing for joint preparation.
i. Combining environmental documents with other documents--and
describing the circumstances when this will be done.
12. Supplementation
FMCSA NEPA documentation must be periodically reviewed for adequacy
and completeness in light of changes in project conditions.
a. Supplemental NEPA documentation is required when:
(1) The FMCSA makes substantial changes in the proposed action that
are relevant to environmental concerns; or
(2) There are significant new circumstances or information relevant
to environmental concerns and bearing on the proposed action or its
impact.
b. This review requires a ``hard look'' to ascertain the adequacy
of the previous analyses and documentation in light of the changes in
project conditions listed above. If this review indicates no need for
new or supplemental documentation, a statement to that effect should be
prepared and attached to the documentation and included in the
administrative record. The NEPA Liaison and the Office of Information
Management must periodically review relevant existing NEPA analyses to
ascertain the need for supplemental documentation and document this
review.
c. In the event supplementation is required, the supplemental
analysis and documentation should be prepared in accordance with 40 CFR
1502.9 and included in the administrative record for the proposed
action.
13. Signing FMCSA NEPA Documents
Documentation resulting from FMCSA NEPA processes may require the
signature of the preparer/environmental project manager, environmental
reviewer, and/or the responsible FMCSA official. FMCSA documents which
require signatures consist of the following:
a. The Environmental Checklist (Appendix 1).
b. The Categorical Exclusion Determination (Appendix 4).
c. The cover page of an Environmental Assessment (Appendix 5).
d. The Finding of No Significant Impact document for FMCSA-
prepared, adopted, contractor, or applicant-prepared NEPA documents
(Appendix 7).
e. The cover page for an Environmental Impact Statement (EIS),
(Appendix 9).
f. The Record of Decision (ROD) for an EIS (Appendix 12).
14. Signature
Where a signature is required on each of the signature pages listed
in Section D.13. of Chapter 2, above, the following policy applies.
a. Signature of the Responsible Official. The responsible official
is the person with the authority for either making the decision or
developing the final recommendation for a decision on the actions
analyzed in the NEPA document. The purposes of the responsible
official's signature are to:
(1) Provide a means to monitor NEPA activity in the FMCSA; and
(2) Demonstrate that relevant environmental information was
considered by the decisionmaker when the decision was made.
Typically, for Administrator-initiated actions, the responsible
official is the Office Director for the program sponsoring the action.
For Administrator-initiated regulations, the responsible official is
the person with the delegated authority to issue the regulation.
b. Signature of the Environmental Reviewer. The environmental
reviewer is the individual responsible for reviewing the environmental
content of the document to ensure that the environmental analysis and
documentation complies with NEPA, CEQ regulations, DOT, and FMCSA NEPA
policies and procedures.
For Administrator-initiated actions, including those where document
preparation has been delegated to the Field, the environmental reviewer
must be a member of the FMCSA environmental staff in the
Administrator's office. For Administrator-initiated actions where
document preparation has been delegated to the Field, the Administrator
may also delegate environmental review of the document to the Field.
However, such delegation must be documented in formal correspondence
between the Administrator and the applicable Field office. For Field
initiated actions, the environmental reviewer must be a member of the
environmental staff in that organization. For actions initiated by
Headquarters Units, Divisions, and Offices, the environmental reviewer
must be a member of the FMCSA Headquarters environmental staff. In all
cases, the environmental reviewer cannot be the same individual as the
preparer of the NEPA document.
c. Signature of the Environmental Project Manager. For NEPA
documents that are prepared with in-house staff, the FMCSA staff member
coordinating the preparation of the environmental document is, and
signs as, the ``Environmental Project Manager.'' The Environmental
Project Manager is responsible for the quality of the environmental and
technical analysis and documentation.
(1) If contractor involvement is minimal and only for part of the
NEPA document, then the contractor must be included in the list of
preparers and the FMCSA Environment Project Manager will sign as the
Environmental Project Manager.
(2) If the contractor has major involvement in the preparation of
the NEPA document, or if the contractor and the FMCSA preparer have
equal involvement in the preparation, then the ``cover page'' of the
NEPA document will indicate that the CED and/or checklist, EA, and/or
EIS was prepared by the contractor for the FMCSA and be signed by the
contractor as preparer, or that the documentation was prepared by both
the contractor and the FMCSA and be signed by the contractor and the
FMCSA Environmental Project Manager as preparers.
d. Signature of applicant, contractors, or other preparers.
Applicants, contractors, and other preparers must sign-off on
environmental documents at the time they submit the documents to the
FMCSA.
E. Special Areas of Consideration
See Appendix 18 for additional information on evaluating special
areas of consideration, such as air quality, potential noise impacts,
hazardous materials, endangered species, the National Historic
Preservation Act,
[[Page 9694]]
wetlands, and determinations under section 4(f) of the DOT Act.
Chapter 3. Public Involvement, Legislative, and Interagency
Coordination
A. Citizen Involvement and Public Notice Process
In addition to the information in this Chapter, see Appendix 15,
which contains information on distribution of EISs and notices of NEPA
related hearings, meetings, and documents.
1. Public Involvement (40 CFR 1506.6)
a. The FMCSA will make diligent efforts to involve the public in
preparing and implementing its NEPA procedures. The FMCSA will provide
public notice of NEPA-related hearings and hold or sponsor public
hearings or meetings whenever appropriate in accordance with statutory
requirements applicable to FMCSA. The FMCSA will make environmental
documents available to inform those persons and agencies who may be
interested or affected. The FMCSA will provide:
(1) Notice in All Actions. In all cases mail notice to those who
have requested it on an individual action.
(2) Notice in Actions of National Concern. In the case of an action
with effects of national concern, provide notice to include publication
in the Federal Register.
(A) In addition, the FMCSA will post notices and press releases on
the FMCSA internet website.
(B) FMCSA will provide notice by mail to:
(i) News organizations and members of the public as appropriate or
expected to be interested in the action.
(ii) Federal, State, tribal, and local government agencies that
have jurisdiction by law or special expertise with respect to an
environmental impact involved or that are authorized to develop and
enforce environmental standards, or those agencies, organizations, and
individuals that have expressed a concern in the matter.
(iii) Those who have requested it on an individual action; and
(iv) National organizations reasonably expected to be interested in
the matter. If engaged in rulemaking, the FMCSA will provide notice by
mail to national organizations who have requested that notice regularly
be provided. The FMCSA shall maintain a list of such organizations.
(3) Notice in Actions of Local Concern. In the case of an action
with effects primarily of local concern, the FMCSA will:
(A) Notify State and area wide clearinghouse pursuant to Exceutive
Order 12372 entitled, ``Intergovernmental Review of Federal Programs.''
(see 47 FR 30959; July 16, 1982).
(B) Publish notice in local newspapers as appropriate (in papers of
general circulation rather than legal papers).
(C) Publish notice in newsletters or provide notice through other
local media (e.g., radio, television, etc.) that may be expected to
reach potentially interested persons.
(D) Notify affected Indian tribes when effects may occur on
reservations or impact tribal interests.
(E) Follow the affected State's public notice procedures for
comparable actions.
(F) Notify potentially interested community organizations including
small business associations.
(G) Send direct mailings to owners and occupants of nearby or
affected property.
(H) Post notice on- and off-site in the area where the action is to
be located.
b. When deciding whether to hold or sponsor a public hearing or
meeting, consider whether there is:
(1) Substantial environmental controversy concerning the proposed
action or substantial interest in holding the hearing.
(2) A request for a hearing by another agency with jurisdiction
over the proposed action supported by reasons why a hearing will be
helpful.
c. If a draft EIS is to be considered at a public hearing, the
FMCSA shall make the statement available to the public at least 15 days
in advance (unless the purpose of the hearing is to provide information
for the draft environmental impact statement).
d. The FMCSA must solicit appropriate information from the public.
e. The FMCSA must explain in its public notice where interested
persons can get information or status reports on environmental impact
statements and other elements of the NEPA process.
f. The FMCSA must make EISs (in addition to the distribution
described in 40 CFR 1502.19)., the comments received, and any
underlying documents available to the public pursuant to the provisions
of the Freedom of Information Act (5 U.S.C. 552), without regard to the
exclusion for interagency memoranda where such memoranda transmit
comments of Federal agencies on the environmental impact of the
proposed action. Materials to be made available to the public shall be
provided to the public without charge to the extent practicable, or at
a fee which is not more than the actual costs of reproducing copies
required to be sent to other Federal agencies, including CEQ.
2. Notice of Intent
As soon as the decision to prepare an EIS has been made, the
responsible FMCSA official, via the Administrator, must approve and
publish the required Notice of Intent (40 CFR 1508.22) in the Federal
Register. Where there is a lengthy period between the decision to
prepare an environmental impact statement and the time of actual
preparation, the Notice of Intent may be published at a reasonable time
in advance of preparation of the draft statement. In addition to
publishing the Notice of Intent in the Federal Register, the FMCSA will
provide notices and press releases on the FMCSA Internet Web site.
3. Intergovernmental Review
Responsible FMCSA officials will provide notice to other Federal,
State, local, and tribal government agencies when proposed actions are
likely to involve public interest. The EA or EIS must evidence this
solicitation, and consideration of the comments received.
B. Proposals for Legislation
1. Preparation
The originating Associate Administrator program office must ensure
completion of the environmental analysis and/or documentation for
legislative proposals which originate with FMCSA.
2. Processing
An EIS, if necessary, must be processed as required in paragraph
15.b. of DOT Order 5610.1C, via the Administrator (See 40 CFR 1506.8).
C. Mitigating Measures
The responsible FMCSA official must assure the execution and
monitoring of all mitigating measures committed to in any environmental
document (i.e., EA, FONSI, EIS, SEIS, or FEIS) and/or record of
decision for any FMCSA action. When implementing decisions, the FMCSA
shall:
1. Include appropriate conditions in grants, permits, regulations
or other approvals;
2. Condition funding or actions on mitigation;
3. Upon request, inform cooperating or commenting agencies on
progress in carrying out mitigation measures which they have proposed
and which were adopted; and
4. Upon request, make available to the public the results of
relevant monitoring.
[[Page 9695]]
D. Inter-Agency Coordination
1. Lead Agencies and Cooperating Agencies
The FMCSA will request the participation of each Cooperating Agency
in the NEPA process at the earliest possible time. The FMCSA will
coordinate and integrate State and tribal processes early in the NEPA
process. When FMCSA is a Lead Agency, it will use the environmental
analysis and proposals of Cooperating Agencies with jurisdiction by law
or special expertise, to the maximum extent possible.
a. Lead Agency Designation. For Field office actions, the program
office in the Field will assume responsibility for maintaining FMCSA
lead agency status. The Chief of the responsible Administrator-level
program office will assume this responsibility for Administrator-
originated actions. The Administrator will designate the responsible
Field Administrator for maintaining FMCSA lead agency status in
extraordinary circumstances (e.g., when an action transcends or
involves more than one Field office, etc.).
b. Proactively Soliciting Cooperating Agencies. FMCSA will actively
consider designation of Federal and non-Federal cooperating agencies in
the preparation of its analyses and documentation required by NEPA, and
will ensure that FMCSA actively participates as a cooperating agency in
other agencies' NEPA processes. Stakeholder involvement is important to
ensure decisionmakers have the environmental information necessary to
make informed and timely decisions efficiently. One of the benefits of
Cooperating Agency participation in NEPA analyses includes enhancing
agencies' ability to adopt environmental documents by allowing adoption
of an EIS without recirculating it as a draft EIS.
(1) Cooperating Agency Designation. FMCSA shall determine if
Federal and non-Federal agencies are interested and appear capable of
assuming the responsibilities of becoming a cooperating agency under 40
CFR 1501.6. If invited, Federal, State, tribal and local agencies that
elect not to be included as cooperating agencies, should still be
considered for inclusion in interdisciplinary teams engaged in the NEPA
process and on distribution lists for review and comment on the NEPA
documents.
(A) If the FMCSA determines that cooperating agencies will be
useful in the development and preparation of EAs and EISs, it will
notify, in writing, those Federal and non-Federal agencies that may be
interested in assuming the responsibilities of becoming a cooperating
agency. The FMCSA may consider the following factors, as appropriate on
a case-by case basis, for determining whether to invite, decline, or
end cooperating agency status:
(i) Whether the agency has jurisdiction by law (40 CFR 1508.15)
(e.g., Does the agency have authority to approve, veto, or finance a
proposal or portions of a proposal?);
(ii) Does the cooperating agency have the special expertise (40 CFR
1508.26) needed to help the lead agency to:
(a) Meet a statutory responsibility;
(b) Carry out an agency mission;
(c) Meet related program expertise or experience; or
(d) Meet the objectives of regional, State, and local land use
plans, policies and controls (40 CFR 1502.16(c))?
(iii) Does the agency understand what cooperating agency status
means and can it legally enter into an agreement to be a cooperating
agency?
(iv) Can the cooperating agency participate during scoping and/or
throughout the preparation of the analysis and documentation as
necessary and meet milestones established for completing the process?
(v) Can the cooperating agency, in a timely manner, aid in:
(a) Identifying significant environmental issues, including aspects
of the human environment (40 CFR 1508.14) and natural, social,
economic, energy, urban quality, historic and cultural issues (40 CFR
1502.16)?
(b) Eliminating minor issues from further study?
(c) Identifying issues previously the subject of environmental
review or study?
(d) Identifying the proposed action's relationship to the
objectives of regional, State and local land use plans, policies and
controls (40 CFR 1502.16(c))?
(vi) Can the cooperating agency assist in preparing portions of the
review and analysis and resolving significant environmental issues to
support scheduling and critical milestones?
(vii) Can the cooperating agency provide resources to support
scheduling and critical milestones, such as:
(a) Personnel? Consider all forms of assistance (e.g., data
gathering, surveying; compilation; research).
(b) Expertise? This includes technical or subject matter expertise.
(c) Funding? Examples include funding for personnel, travel and
studies.
(d) Models and databases? Consider consistency and compatibility
with lead and other cooperating agencies' methodologies.
(e) Facilities, equipment and other services? This type of support
is especially relevant for smaller governmental entities with limited
budgets.
(viii) Does the agency provide adequate lead-time for review and do
the other agencies provide adequate time for review of documents,
issues, and analyses?
(ix) Can the cooperating agency(s) accept the lead agency's final
decisionmaking authority regarding the scope of the analysis, including
authority to define the purpose and need for the proposed action? For
example, is an agency unable or unwilling to develop information/
analysis of alternatives they favor and disfavor?
(x) Are the agency(s) able and willing to provide data and
rationale underlying the analyses or assessment of alternatives?
(xi) Does the agency release predecisional information (including
working drafts) in a manner that undermines or circumvents the
agreement to work cooperatively before publishing draft or final
analyses and documents? Disagreeing with the published draft or final
analysis should not be a ground for ending cooperating agency status.
Agencies must be alert to situations where State law requires release
of information.
(xii) Does the agency consistently misrepresent the process or the
findings presented in the analysis and documentation?
(B) FMCSA program offices responsible for NEPA analysis must:
(i) Set time limits;
(ii) Assign milestones;
(iii) Assign responsibilities for analysis and documentation;
(iv) Specify scope and detail of the cooperating agency's
contribution;
(v) Establish other appropriate ground-rules addressing issues such
as availability of pre-decisional information; and
(vi) In appropriate cases, document the agency's expectations,
roles, and responsibilities (e.g., Memorandum of Agreement or
Understanding, or correspondence).
(2) Agencies That Decline Cooperating Agency Status. Federal
agencies that decline to accept cooperating agency status in whole or
in part are obligated to respond to the request. A copy of their
response should be provided to CEQ (40 CFR 1501.6(c)). If an agency
refuses to participate, FMCSA shall provide the agency refusing to
participate with a draft EIS for comment. Negative and/or controversial
comments may be referred to CEQ for resolution via the Administrator.
[[Page 9696]]
(3) Declining an agency's request to participate.
(A) If the FMCSA disagrees with the request by an agency to
participate in the development of an EA or EIS, the Associate
Administrator for Policy and Program Development (MC-PR) will contact
the requesting agency's responsible official to have a meeting to
discuss the matter and attempt to resolve the issues the FMCSA has
against participating.
(B) If no agreement can be reached between the requesting agency
and FMCSA:
(i) The Associate Administrator for Policy and Program Development
will prepare a letter for the FMCSA Administrator's signature declining
to participate with the requesting agency.
(ii) The letter will provide the specific reasons why the FMCSA
believes it should not or cannot participate with the cooperating
agency's request.
(iii) The FMCSA will coordinate its letter of declination with
OST's Office of the Assistant Secretary for Transportation Policy (P-1)
before the FMCSA Administrator signs and transmits this letter of
declination to the cooperating agency and CEQ.
c. CEQ Resolution. Request for Council on Environmental Quality
(CEQ) resolution concerning lead agency designation must be made via
the Administrator. The Administrator will contact CEQ for resolution of
environmental issues.
d. Adverse Comments and Delays. Matters to be discussed with the
Council on Environmental Quality (CEQ) must be coordinated with the
Administrator.
2. Distribution of Environmental Documents
a. FMCSA will provide a written notification to State, area-wide,
regional, local, and tribal officials through the State process or
otherwise, of any plan or project proposed in the State or locality.
Where the effect of an action or rulemaking, etc., crosses State/tribal
lines, the FMCSA will notify each entity of the proposal. Notification
must take place at the earliest practicable time in project planning.
The notification must contain all of the following:
(1) Name of the organization proposing the project.
(2) Geographic location of the project.
(3) Brief description of the project that will ensure appropriate
distribution.
(4) Program to be supported by the project.
(5) Date on which the actual development, construction, or other
activities involved in the physical implementation of the project is
scheduled to begin.
b. In areas where no State clearinghouse process exists, forward
the notification letter directly to affected State, area, regional,
local, and tribal entities with instructions to review and coordinate
the project.
c. It is recommended that interagency distribution of Environmental
Assessments or Environmental Impact Statements be handled using a
``Public Notice'' type cover letter addressed to ``All Interested
Parties.'' It should announce the availability of the EA, EIS, or SEIS,
describe the project, review environmental considerations, and solicit
comments. This practice eliminates the need for individual distribution
letters.
3. Adopting Environmental Documents Prepared by Other Agencies
a. Summary.
(1) Some FMCSA actions can be taken based on environmental
documentation that has been prepared by another Federal agency. The CEQ
Regulations (40 CFR 1506.3) encourage agencies to adopt the
environmental documentation of other Federal agencies whenever possible
to reduce costs and processing time of Federal actions. This adoption
may be complicated due to difference in internal agency judgment.
(2) In order to adopt another agency's environmental documentation
the FMCSA must be in agreement with the content and findings of the
document.
b. Specific Procedures. The following procedures must be adhered to
when adopting environmental documents produced by other agencies:
(1) Environmental Assessments (EAs). EAs produced by another agency
may be adopted. The responsible FMCSA official must ensure that the EA
prepared for, or by, the other agency is adequate for FMCSA's purposes.
If the EA is in fact adequate from a NEPA standpoint and meets FMCSA
requirements, the FMCSA may adopt the document. In doing so, the FMCSA
accepts the EA and takes full responsibility for its scope and content.
Should review of the EA by the responsible FMCSA official conclude
in a Finding of No Significant Impact (FONSI), a FONSI statement must
be prepared and should follow the format provided in Appendix 7. The
FONSI should be attached to the front of the EA. The use of Appendix 7
serves both as a statement adopting the lead agency's EA and as a
Finding of No Significant Impact for the FMCSA. A separate adoption
statement is not needed.
When the responsible FMCSA official determines that the lead
agency's EA is not adequate, the EA must be supplemented or rewritten.
This may be done by the lead agency at the request of the FMCSA. Should
the lead agency be unable to do so, or refuse, the responsible FMCSA
official must ensure that the EA is supplemented or rewritten, as
appropriate. In this instance, the FMCSA does not adopt the lead
agency's document. The lead agency's EA becomes the basis for the
FMCSA's EA, and is incorporated in the FMCSA EA to the extent it is
adequate.
(2) Finding of No Significant Impact (FONSI). A FONSI statement
itself may not be adopted. However, an EA resulting in a FONSI may be
adopted as discussed in Section D.4.b.(1) of Chapter 3.
(3) Environmental Impact Statement (EIS). The FMCSA may adopt the
EIS of another agency if the EIS adequately addresses the impacts of
the project within the FMCSA's area of jurisdiction and concern. The
FMCSA may either adopt the entire EIS or just a portion of it, in
accordance with the procedures described in 40 CFR 1506.3. When
adopting the EIS of another agency, the responsible FMCSA official must
state that the FMCSA has adopted another agency's EIS in the Record of
Decision. A suggested format for the statement is as follows:
``After an independent review of (specify lead agency)
Environmental Impact Statement, I have determined that the document
adequately addresses the impacts of the (specify action(s)). Therefore,
I hereby adopt the (specify entire EIS or portion thereof).''
4. Review of Environmental Statements Prepared by Other Agencies
Comments on Non-FMCSA EISs. In many instances, other Federal
agencies will submit copies of their EIS to the FMCSA for review. One
copy of all FMCSA comments must be sent to the Administrator and DOT
(P-1).
5. Pre-Decision Referrals to the Council on Environmental Quality
DOT Lead Agency Proposals. Field Offices and Administrator-level
program offices receiving a notice of intended referral from another
agency must provide DOT (P-1) with a copy of the notice via the
Administrator.
Appendices
Appendix 1--FMCSA Environmental Checklist
Appendix 2--FMCSA Categorical Exclusions (CE)
[[Page 9697]]
Appendix 3--FMCSA Regulations Typically Subject to an Environmental
Assessment
Appendix 4--FMCSA Categorical Exclusion Determination (CED)
Appendix 5--FMCSA Environmental Assessment Cover Sheet
Appendix 6--FMCSA Environmental Assessment (EA)
Appendix 7--FMCSA Finding of No Significant Impact (FONSI)
Appendix 8--FMCSA Notice of Intent to Prepare an Environmental Impact
Statement
Appendix 9--FMCSA Environmental Impact Statement Model Cover Sheet
Appendix 10--FMCSA Environmental Impact Statement (EIS)
Appendix 11--FMCSA Notice of Availability of Environmental Impact
Statement
Appendix 12--FMCSA Record of Decision
Appendix 13--Form and Content of 4(F) Statements
Appendix 14--Air Quality Analysis Guidance
Appendix 15--Distribution of Environmental Impact Statements
Appendix 16--List of Relevant Environmental Statutes and Executive
Orders
Appendix 17--FMCSA's National Environmental Policy Act (NEPA) Review
Process (Flow Chart)
Appendix 18--Special Areas of Consideration When Implementing NEPA
Appendix 1--FMCSA Environmental Checklist
Action Name:
(Give project name and FMCSA Docket No., and/or other ID codes);
Action Location:
(List specific location of action [i.e., border States]);
Action Description:
(Describe the action);
Action Category:
(List the category into which you believe the action falls).
Environmental Checklist
Note: The decisionmaker in consultation with a HEADQUARTERS OR
FIELD ENVIRONMENTAL QUALITY ADVISOR should complete this checklist.
Please read the information on how to properly complete this
checklist and make sure each question is answered using the
accompanying explanations found on the following pages in this
appendix. Attempting to answer these questions without reading the
accompanying explanations may result in an incorrect or incomplete
environmental analysis.
* Project Description:
Activity Year:
(* Note: Checklist preparer may want to attach additional
descriptive information on the proposed action such as diagrams,
site maps, and photographs.)
Part I. Checklist Analysis
------------------------------------------------------------------------
Yes No Need data
------------------------------------------------------------------------
1. Is there greater size or scope
than generally experienced for a
particular category of action?
2. Is the proposed action located
near a site that involves a unique
characteristic of the geographic
area, such as a historic or cultural
resource, park land, wetland, wild
and scenic river, ecologically
critical area, or property requiring
special consideration under 49
U.S.C. 303(c)?
3. Is there a likelihood that the
proposed action would be highly
controversial on environmental
grounds?
4. Is there a potential for effects
on the human environment that are
highly uncertain or involve unique
or unknown risks?
5. Will the action cause effects on
the human or natural environment
that may be precedent setting?
6. Are the action's impacts likely to
create cumulatively significant
impacts when considered along with
other past, present, and reasonably
foreseeable future actions?
7. Is the proposed action likely to
have an impact on a district, site,
highway, structure, or object that
is listed on or eligible for listing
on the National Register of Historic
Places, or to cause the loss or
destruction of a significant
scientific, cultural, or historic
resource?
8. Will the proposed action have a
significant effect on species or
habitats protected by the Endangered
Species Act or other statute?
9. Is there a likelihood that the
proposed action would be
inconsistent with or cause a
violation of any Federal, State,
local, or tribal law or requirement
imposed for the protection of the
environment?
10. Is the action likely to have an
impact that may be both beneficial
and adverse? A significant impact
may exist even if it is believed
that, on balance, the effect will be
beneficial such as likelihood that
air emissions exceed de minimis
levels or otherwise that a formal
Clean Air Act conformity
determination is required?
11. Are there reportable releases of
hazardous or toxic substances as
specified in 40 CFR part 302,
Designation, Reportable Quantities,
and Notification in the vicinity of
the proposed action?
12. Are there reportable releases of
petroleum, oils, and lubricants,
application of pesticides and
herbicides, or where the proposed
action results in the requirement to
develop or amend a Spill Prevention,
Control, or Countermeasures Plan?
13. Does the proposed action have the
potential to degrade already poor
environmental conditions? Does the
initiation of degrading influence
activity, or affect areas not
already significantly modified from
their natural condition?
14. Does the proposed action have the
potential to impact minority and/or
low-income populations?
Other environmental considerations
not included on checklist.
------------------------------------------------------------------------
Part II. Comments or Additional Information Related to Part I
The following space is provided to discuss the ``YES'' responses to
the above categories (identify by corresponding number), or to provide
any supplemental information.
Part III. Conclusions
1. This proposed action is a CE and it requires no further
environmental review. [ ]
Comments:
2. This proposed action is a CE, but it is recommended for further
review under one or more of the environmental authorities noted below
(list). [ ]
Comments:
3. An EA is recommended for this proposed action. [ ]
Comments:
4. An EIS is recommended for this proposed action. [ ]
Comments:
5. A SEIS is recommended for this proposed action. [ ]
Comments:
6. A FEIS is recommended for this proposed action. [ ]
Comments:
Date
* Preparer/Environmental Project Manager
Title/Position
Date
** Environmental Reviewer
Title/Position
* The FMCSA preparer signs for NEPA documents prepared in-house. The
FMCSA Environmental Quality Advisor signs for NEPA documents
[[Page 9698]]
prepared by an applicant, a contractor, or another outside party.
Considering Environmental Consequences
The 14 questions listed in this appendix comprise the analysis
portion of the Environmental Checklist. Each question calls for a
judgment by you, the decisionmaker and/or the Environmental Protection
Specialist, about the likelihood that a particular kind of
environmental consequence will result from the proposed action. The
purpose of this checklist is to serve as a tool for the decisionmaker
and/or the Environmental Protection Specialist to determine the proper
level of NEPA analysis with which to begin and to identify areas of
potential problems and concern.
Clarification and lists of things to consider for each question are
found below; however, these lists should not be considered exhaustive
by any means. Every situation and proposed action will have a unique
set of circumstances that you will need to take into account as you
contemplate the potential consequences of the proposed action.
Based on an internal review, external review (where appropriate),
and research, check ``YES,'' ``NO,'' or ``NEED DATA'' for each
question. Attach documentation as needed to support your answer.
The checklist is not complete until all ``Need Data'' issues have
been resolved and all blocks are checked either ``YES'' or ``NO.'' Once
you have done this, you need to go back, look at all the ``YES''
answers, and ask yourself, ``Do any of these YES's indicate potential
for significant effects to the human environment.'' Remember that the
human environment includes both the natural and historic/cultural
environment.
If it is known that significant effects will
occur which cannot be avoided or mitigated to a level of
insignificance, then an EIS should be prepared.
If it is unknown whether significant effects
will occur or there is no appropriate categorical exclusion applicable
to your action, an EA should be prepared with the potential for an EIS,
as necessary.
Note: If an EA or EIS is necessary, then you must also consider
the significance of impacts on the socioeconomic environment and
environmental justice. Significant impacts in either of these two
realms alone are NOT enough to trigger an EA or EIS. However, if an
EA or EIS is prepared due to the potential for significant
environmental impacts, then these documents should include
discussion of any potentially significant socioeconomic or
environmental justice impacts as well. Please see the discussion for
Question 12 for further guidance.
If you answered ``NO'' to all the questions, or
all ``YES'' responses were adequately researched and found to have no
potential for significant impacts, and there is a Categorical Exclusion
(CE) to cover the proposed action, then you do not need to prepare
either an EA or EIS.
If the appropriate CE requires documentation
such as a Categorical Exclusion Determination (CED) and/or this
Environmental Checklist, make sure the documentation is complete,
submit it with the appropriate planning documents, and place it in the
project file.
Question 1
Is there greater size or scope than generally experienced for a
particular category of action?
Think about whether your action is likely to
Result in the use, storage, release, and/or
disposal of toxic materials such as fertilizers, cleaning solvents,
laboratory wastes, or other hazardous materials such as explosives;
Involve a facility that may contain
polychlorinated biphenyls (PCBs), urea formaldehyde, or friable
asbestos;
Be on or near an EPA or State Superfund, or a
priority cleanup site;
Involve construction on or near an active or
abandoned toxic, hazardous, or radioactive materials generation,
storage, transportation, or disposal site;
Involve use of a site that contains underground
storage tanks (USTs) as evidenced by historical data or physical
evidence such as vent pipes or fill caps;
Have a significant possibility of accidental
spills of oils, hazardous, or toxic materials;
Require the use or storage of explosives; or
Require the storage or transportation of a large
amount of fuel.
Agencies that may require consultation include the following:
EPA
OSHA
Appropriate Federal, State and local authorities,
and Indian tribes
Think about whether your action is likely to be inconsistent with
such authorities as:
EPA's solid waste management guidelines
A State Implementation Plan (SIP) under the Clean
Air Act
OSHA noise standards
Executive Order 12898 (Environmental Justice)
Executive Order 12372 (Review of Federal Programs)
Are you in compliance with the following laws?
Clean Air Act
Clean Water Act
Resource Conservation and Recovery Act
Comprehensive Environmental Response Compensation,
and Liability Act (CERCLA--Superfund)
Toxic Substance Control Act
Occupational Safety and Health Act
The Noise Control Act
Question 2
Is the proposed action located near a site that involves a unique
characteristic of the geographic area, such as a historic or cultural
resource, park land, wetland, wild and scenic river, ecologically
critical area, or property requiring special consideration under 49
U.S.C. 303(c)?
Think about whether your action is likely to:
Alter a natural ecosystem;
Cause damage to or require the removal of any
terrestrial, marine, or aquatic vegetation;
Affect the water supplies of humans, animals, or
plants;
Affect the water table;
Result directly or indirectly in construction on
slopes greater than 15%;
Result in construction on or near hydric soils,
wetland vegetation, or other evidence of a wetland;
Result in construction on or near any other
natural feature that could affect the safety or health of the public;
Be located on or near a wildlife refuge, a
designated wilderness, a wild and scenic river, a National Natural
Landmark, a National Historic Landmark, or a National Monument
designated under the Antiquities Act;
Be located on or near designated open space, or
a designated conservation area;
Be located on or near an area under study for
any such designation;
Be located on or near any other environmentally
critical area;
Have adverse visual, social, atmospheric,
traffic, or other effects on such a critical area even though it is NOT
located on or near the area;
Change the use of park lands; or
Alter a wetland.
Find out whether there is some possible, even improbable, effect of
your action that would be so serious if it occurred that further review
is appropriate.
For example, you want to acquire land in a non-sensitive area that
is generally unlikely to have adverse effects on the environment.
However, if there is an environmentally sensitive
[[Page 9699]]
area downstream from the land you want to acquire, and use of the land
might have the potential to cause pollution as groundwater flows
through the sensitive area, then you must conduct further review.
Agencies that may require consultation include:
Army Corps of Engineers
US Fish and Wildlife Service
National Marine Fisheries Service
Appropriate Federal, State and local authorities,
and Indian tribes
Think about whether your action is likely to be inconsistent with
such authorities as:
Executive Order 11990, Protection of Wetlands
Executive Order 13089 (Coral Reef Protection)
Executive Order 13158 (Marine Protected Areas)
DOT Order 5660.1A (Wetlands)
Are you in compliance with the following laws?
Clean Water Act
Wild and Scenic Rivers Act
Coastal Zone Management Act
National Historic Preservation Act
American Indian Religious Freedom Act
Native American Graves Protection and Repatriation
Act
Archaeological Resources Protection Act
Question 3
Is there a likelihood that the proposed action would be highly
controversial on environmental grounds?
Consider first whether your action is likely to be controversial in
any way. If so, consider whether this controversy is likely to have an
environmental element. For example, if the FMCSA decides to close a
unit, controversy could be generated on economic grounds; however,
unless this controversy encompasses a potential significant
environmental impact, it does not trigger further NEPA analysis on its
own.
Environmental controversies can be about a variety of things:
Impacts on historic buildings, archaeological sites, and other cultural
resources; impacts on traffic or parking on a community or
neighborhood; and, of course, impacts on natural resources such as
water, air, soil, and wildlife. To avoid missing a controversial issue
that should be addressed under NEPA, be sure not to interpret the word
``environmental'' too narrowly.
Consideration should be given to Executive Order 12372 (Review of
Federal Programs).
Question 4
Is there a potential for effects on the human environment that are
highly uncertain or involve unique or unknown risks?
First, is there anything you do not know about the action's
potential impacts? Second, does what you do not know have any
significance?
For example, consider a conservation plan's implementation when the
full effects of the plan will not be known until after implementation
and monitoring.
Question 5
Will the action cause effects on the human or natural environment
that may be precedent setting?
To answer this question, you must look forward and outward, and
consider the possibility that what is done with your particular action
will pave the way for future actions that could have serious
environmental consequences.
For example, you decide to issue a waiver under 49 CFR 381.215 from
49 CFR 392.66(a)(3) for a commercial motor vehicle that has been found
to have a mechanical condition which would likely produce a carbon
monoxide hazard to the occupants. It may be possible to issue this
waiver because of the type and circumstance of the mechanical
condition, or perhaps the mechanical condition of other parts and
accessories mitigates the hazard. Although the nature of the particular
situation may allow a CE to occur, if your action were taken as
precedent for allowing ALL similar mechanical conditions to allow non-
unique carbon monoxide hazards, then a higher level of review of the
action may be in order.
Question 6
Are the action's impacts likely to create cumulatively significant
impacts when considered along with other past, present, and reasonably
foreseeable future actions?
Consider whether the action is related to other actions (by FMCSA
or others) with impacts that are individually insignificant but that
may, taken together, have significant effects.
For example, is the action part of an ongoing pattern of pollutant
discharge, traffic generation (truck or bus), economic change, or land-
use change in its locality that could collectively affect human health
or the condition of the environment? (For further information on
cumulative effects see: The Council on Environmental Quality's,
``Considering Cumulative Effects'' published January 1997.)
Question 7
Is the proposed action likely to have an impact on a district,
site, highway, structure, or object that is listed on or eligible for
listing on the National Register of Historic Places, or to cause the
loss or destruction of a significant scientific, cultural, or historic
resource?
Some preliminary investigation will be necessary to determine
whether significant scientific, cultural or historic resources exist in
the area of potential effect of the proposed action.
Think about whether your action is likely to affect:
Districts, sites, buildings, vessels, aircraft,
structures, or objects included in or eligible for the National
Register of Historic Places;
A building, structure, truck, bus, or aircraft
that is over 45 years old;
A neighborhood or commercial area; that may be
important in the history or culture of the community;
A neighborhood, commercial, industrial, or rural
area that might be eligible for listing on the National Register as a
district;
A known or probable cemetery, through physical
alteration or by altering its visual, social, or other characteristics;
A rural landscape that may have cultural or
aesthetic value;
A place of traditional cultural value in the
eyes of a Native American group or community;
A known archaeological site, or land identified
by archaeologists as having high potential to contain archaeological
resources;
An area identified by archaeologists or a Native
American Group as a sacred site or as having high potential to contain
Native American cultural items; or
The historic/cultural character of communities
or neighborhoods. Agencies that may require consultation include:
Appropriate State (e.g. State Historic
Preservation Officer) and local authorities (e.g., local historic
preservation groups)
Applicable Native American populations.
Think about whether your action is likely to be inconsistent with
such authorities as:
E.O. 13006, Locating Federal Facilities on
Historic Properties in Our Nations Central Cities;
E.O. 13007, Indian Sacred Sites;
E.O. 13175, Consultation and Coordination with
Indian Tribal Governments;
E.O. 11593, Protection and Enhancement of the
Cultural Environment;
[[Page 9700]]
Are you in compliance with the following laws?
National Historic Preservation Act;
Archaeological Resources Protection Act;
American Indian Religious Freedom Act;
Native American Graves Protection and
Repatriation Act;
Question 8
Will the proposed action have a significant effect on species or
habitats protected by the Endangered Species Act or other statute?
To answer this question, you must have information on protected
species or habitats in the area of potential effect of the proposed
action.
Think about whether your action is likely to
Affect an endangered or threatened species, or
its critical habitat;
Affect a species under consideration for listing
as endangered or threatened, or its critical habitat;
Affect migratory birds;
Affect a protected marine mammal; or
Affect essential fish habitat protected by the
Magnuson-Stevens Fishery Conservation and Management Act.
Agencies that may require consultation include:
US Fish and Wildlife Service
National Marine Fisheries Service
Are you in compliance with the following laws?
Endangered Species Act
Fish and Wildlife Coordination Act
Magnuson-Stevens Fishery Conservation and Management
Act as amended in 1996
Migratory Bird Treaty Act
Executive Order 13186, Responsibilities of Federal
Agencies To Protect Migratory Birds
Question 9
Is there a likelihood that the proposed action would be
inconsistent with or cause a violation of any Federal, State, local, or
tribal law or requirement imposed for the protection of the
environment?
Think about whether your action is likely to
Adversely affect the ambient air quality due to
dust, vehicle or equipment emissions, open burning, etc.;
Result in toxic or unusual air emissions;
Adversely affect the ambient air quality due to
the operation and/or maintenance of vehicles, vessels, or aircraft;
Significantly increase the ambient noise levels
of the area (includes operation and/or maintenance of machinery,
vehicles, vessels, aircraft, loudspeaker systems, alarms, etc.);
Include the use of equipment with unusual noise
characteristics; or
Have noisy activities continue past normal
working hours.
Question 10
Is the proposed action likely to have an impact that may be both
beneficial and adverse? A significant impact may exist even if it is
believed that, on balance, the effect will be beneficial such as
likelihood that air emissions exceed de minimis levels or otherwise
that a formal Clean Air Act conformity determination is required?
Think about whether your action is likely to Adversely affect a
SIP;
Adversely affect national primary ambient air
quality standards (NAAQS);
Violate the carbon monoxide standards;
Violate ozone standards;
Violate lead standards; or
Violate particulate matter standards.
Think about whether your action is likely to
Change traffic patterns;
Increase traffic volumes;
Increase access constraints; or
Require substantial new facilities.
Question 11
Are there reportable releases of hazardous or toxic substances as
specified in 40 CFR part 302, Designation, Reportable Quantities, and
Notification in the vicinity of the proposed action?
To answer this question, you must have historic information on
reportable releases of hazardous or toxic substances as specified in 40
CFR part 302.
Question 12
Are there reportable releases of petroleum, oils, and lubricants,
application of pesticides and herbicides, or where the proposed action
results in the requirement to develop or amend a Spill Prevention,
Control, or Countermeasures Plan?
To answer this question, you must have historic information on
reportable releases of petroleum, oils, and lubricants, application of
pesticides and herbicides, and have an understanding of the
requirements for developing and amending a Spill Prevention, Control,
or Countermeasures Plan.
Question 13
Does the proposed action have the potential to degrade already poor
environmental conditions? Does the initiation of degrading influence
activity, or effect areas not already significantly modified from their
natural condition?
To answer this question, you must have historic information of the
area of potential effect and determine if the proposed action will
further degrade or improve the already poor environmental conditions.
In addition, you must determine the likelihood of the degrading
activities, previously described, having an effect on areas not already
modified from their natural condition.
Question 14
Does the proposed action have the potential to impact minority and/
or low-income populations?
Think about whether your action is likely to
Adversely impact minority and low-income
communities;
Adversely impact how public services (i.e.,
transportation) are made available to minorities and low-income
communities in the vicinity of the action; and
Adversely change the environment in minority and
low-income communities.
Other Environmental Considerations
Address any potential environmental effects that may be of concern,
but do not fall into any of the other categories. As the decisionmaker,
you could recognize something problematic in your unique situation that
could not be foreseen in the development of a generalized guideline
such as this.
Socioeconomic Impacts and Environmental Justice
If you are preparing an EA or an EIS due to the potential for
significant environmental impacts, you must also consider and analyze
any potential for significant impacts on the socioeconomic environment
and issues of environmental justice.
Think about whether your action is likely to
Change traffic patterns or increase traffic
volumes (road and/or waterway);
Require the rerouting of roads/waterways or
traffic;
Be located near any existing bottleneck in
vehicle traffic (e.g., a bridge intersection);
Have access constraints;
Affect a congested intersection;
Be inconsistent with existing zoning,
surrounding land use, or the official land use plan for the specific
site and/or the delineated area;
Be inconsistent with surrounding architecture or
landscape;
[[Page 9701]]
Increase or decrease the population of the
community;
Increase the population density of the area;
Intrude on residential or business uses in the
affected area;
Relocate private residences or businesses;
Affect the economy of the community in ways that
result in impacts to its character, or to the physical environment;
Result in a higher proportion of effects
affecting low income or minority groups;
Require substantial new utilities;
Be regarded as burdensome by local or regional
officials or the public because of infrastructure demands (e.g., sewer,
water, utilities, street system, public transit);
Be regarded as burdensome by local or regional
officials or the public because of support facilities demands (e.g.,
schools, hospitals, shopping facilities, and recreation facilities);
Alter a group's use of land or other resources
(e.g., sustenance fishing); or
Disproportionately have a high and adverse
effect on a minority or low income population.
Appendix 2--FMCSA Categorical Exclusions (CE)
The following are actions that, unless consideration of the factors
in Section D.3.a. of Chapter 2 triggers the need to conduct further
analysis, are categorically excluded from further analysis and
documentation in an environmental assessment or environmental impact
statement. These categories of activities have been found by FMCSA to
not have the potential to significantly affect the quality of the human
environment, except when ``extraordinary circumstances'' are involved.
(Note: Where there is the potential for extraordinary circumstances, an
environmental checklist must be completed to determine whether the
circumstances warrant further analysis in an EA or EIS. Ordinarily,
documentation of a decision regarding the applicability of a
categorical exclusion and the basis for that decision should be limited
to the space of one page. If more detailed justification is considered
necessary, the decisionmaker should consider whether an environmental
assessment is a more appropriate level of documentation.)
1. Administration
a. Preparation of guidance documents that implement decisions
authorized by the applicable FMCSA's Office of Business Operations
Directive or other Federal agency regulations, procedures, manuals,
internal orders, and other guidance documents not required to be
published in the Federal Register under the Administrative Procedure
Act, 5 U.S.C. 552(a)(1).
b. Routine intra-agency personnel, fiscal, and administrative
activities, actions, procedures, and policies which clearly do not have
environmental impacts, such as, hiring, recruiting, processing and
paying of personnel, and recordkeeping.
c. Routine procurement and contract activities and actions for
goods and services, including office supplies, equipment, mobile
assets, and utility services for routine administration, operation, and
maintenance in accordance with Executive Orders 13101, 13148, and other
applicable Executive Orders and Departmental policies regarding
``greening the government.''
d. Decisions to set up or decommission equipment or temporarily
discontinue use of facilities or equipment, such as:
(1) Noise pollution monitors used in enforcement of the Noise
Control Act of 1972.
(2) Radioactive material detectors used in enforcement of the
Hazardous Material Transportation Acts.
(3) FMCSA-owned commercial motor vehicles used in the:
(A) Office of Enforcement and Program Delivery;
(B) Office of Research and Technology; or
(C) Commercial Vehicle platform of the Intelligent Vehicle
Initiative.
This does not preclude the need to review decommissioning under
Section 106 of the National Historic Preservation Act.
e. Routine and permitted movement of agency personnel and
equipment, and the routine movement, handling, and distribution of non-
hazardous and hazardous materials and wastes incidental to the routine
and permitted movement of personnel and equipment in accordance with
applicable regulations. Examples would include moving personnel from
the Boise, Idaho, Division Office to the Pierre, South Dakota, Division
Office or moving the agency's Intelligent Transportation System/
Commercial Vehicle Operation Technology Truck working display from
McLean, Virginia, to an awareness training venue in Oak Ridge,
Tennessee.
f. Personnel and other administrative actions associated with
consolidations, reorganizations, or reductions in force resulting from
identified inefficiencies, reduced personnel or funding levels, skill
imbalances, or other similar causes.
g. Financial assistance or procurements for motor carrier
activities that do not commit the FMCSA or its applicants to a
particular course of action affecting the environment.
h. Hearings, meetings, or public affairs activities held at
locations developed for such activities.
2. Purchase, Lease, and Acquisitions
Lease of space in buildings or towers for a firm-term of one year
or less when the intended use is in conformity with current uses.
3. Operations
Realignment of mobile assets, including motor vehicles, to existing
operational facilities that have the capacity to accommodate such
assets or where supporting infrastructure changes will be minor in
nature to perform as new terminals or for repair and overhaul.
Note. If the realignment would result in more than a one for one
replacement of assets at an existing facility, then the checklist
required for this CE must specifically address whether such an
increase in assets could trigger the potential for significant
impacts to sensitive resources before use of the CE can be approved.
4. Data Gathering, Review of Environmental Tests, Studies, Analyses and
Reports, and Research Activities
a. Data gathering, information gathering, and studies that involve
no detectable physical change to the environment.
b. Research activities that are in accordance with inter-agency
agreements and which are designed to improve or upgrade the FMCSA's
ability to manage its resources. Examples of these resources would
include FMCSA's stored data, its assets, and its properties, including
its Intelligent Transportation System/Commercial Vehicle Operation
Technology Trucks and its Safety Trucks.
c. Environmental studies undertaken to define the elements of a
proposal or alternatives sufficiently so that the environmental effects
may be assessed.
d. Contracts for activities conducted at established laboratories
and facilities, to include contractor-operated laboratories and
facilities, on FMCSA-contracted property where all airborne emissions,
waterborne effluents, external radiation levels, outdoor noise, and
solid and bulk waste disposal practices are in compliance with existing
applicable Federal, State, and local laws and regulations.
e. Planning and technical studies that do not contain
recommendations for authorization or funding for future
[[Page 9702]]
construction, but may recommend further study. This includes
engineering efforts or environmental studies undertaken to define the
elements of a proposal or alternatives sufficiently so that the
environmental effects may be assessed and does not exclude
consideration of environmental matters in the studies.
5. Training
a. Simulated inspection exercises, including those involving small
numbers of personnel.
b. Training of an administrative or classroom nature. Examples
would include training to inspect a commercial motor vehicle brake
system or to learn more about NEPA and how to prepare and develop
environmental analyses for Environmental Assessments (EAs) and
Environmental Impact Statements (EISs).
6. The Following Types of Regulations,\2\ and Actions Covered by This
Order Taken Pursuant to Those Regulations
a. Regulations concerning Civil Rights procedures and guidance.
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\2\ ``Regulations'' as used in this section includes
interpretative rules and guidance, policy statements, orders, and
other similar agency actions.
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b. Regulations which are editorial or procedural, such as, those
updating addresses or establishing application procedures, and
procedures for acting on petitions for waivers, exemptions and
reconsiderations, including technical or other minor amendments to
existing FMCSA regulations.
c. Regulations concerning internal agency functions or organization
or personnel administration, such as, funding or delegating authority.
d. Regulations concerning the training, qualifying, licensing,
certifying, and managing of personnel.
e. Regulations concerning applications for operating authority and
certificates of registration.
f. Regulations implementing the following activities, whether
performed by FMCSA or by States pursuant to the Motor Carrier Safety
Assistance Program (MCSAP), which provides financial assistance to
States to reduce the number and severity of accidents and hazardous
materials incidents involving commercial motor vehicles (CMVs).
(1) Driver/vehicle inspections;
(2) Traffic enforcement;
(3) Safety audits; \3\
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\3\ A ``safety audit'' is an examination of motor carrier's
operations to provide educational and technical assistance on safety
and the operational requirements of 49 CFR parts 100 through 178 and
parts 350 through 399) and to gather critical safety data needed to
make an assessment of the carrier's safety performance and basic
safety management controls.
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(4) Compliance reviews \4\
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\4\ A ``compliance review'' is an on-site examination of motor
carrier operations (normally at the carrier's facility). An
investigator can examine items, such as driver's hours-of-service,
maintenance and inspection, driver qualification, commercial
driver's license requirements, financial responsibility, accident
involvement, hazardous materials, and other safety and
transportation records to determine whether a motor carrier has
systems, policies, programs, practices or procedures to ensure
compliance with the applicable Federal safety regulations.
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(5) Public education and awareness; and
(6) Data collection; and provide reimbursement for:
(A) Personnel expenses;
(B) Equipment and travel expenses;
(C) Indirect expenses for:
(i) Facilities (not including fixed scales, real property, land or
buildings) used to conduct inspections or house enforcement personnel.
Examples of facilities would include a motor vehicle trailer for
inspection personnel to take cover while doing paperwork during a
roadside inspection;
(ii) Support staff;
(iii) Equipment to the extent they are measurable and recurring
(e.g., rent, overhead, maintenance and minor improvements);
(iv) Expenses related to data acquisition, storage, and analysis;
and
(v) Clerical and administrative expenses.
g. Regulations implementing procedures to:
(1) Promote adoption and enforcement of State laws and regulations
pertaining to CMV safety that are compatible with the FMCSRs and HMRs;
(2) Provide guidelines for a continuous regulatory review of State
laws and regulations; and
(3) Establish deadlines for States to achieve compatibility with
appropriate parts of the FMCSRs and HMRs with respect to interstate
commerce.
h. Regulations implementing procedures to collect fees that will be
charged for motor carrier registration and insurance for the following
activities:
(1) Application filings;
(2) Records searches; and
(3) Reviewing, copying, certifying and related services.
i. Regulations implementing procedures for which motor carriers and
brokers designate their agents (persons) for whom court process may be
served, describing activities, such as:
(1) The forms upon which the carrier can make the designations;
(2) The eligible persons that can be agents, and how carriers shall
make the designations in each State in which it is authorized to
operate and for each State traversed during such operations, and
(3) Where such designations must be made.
j. Regulations implementing uniform Single-State registration
procedures for motor carriers registered with the Secretary of
Transportation.
k. Regulations for all brokers \5\ of transportation by motor
vehicles that describe the following activities:
---------------------------------------------------------------------------
\5\ A ``broker'' is a person who, for compensation, arranges, or
offers to arrange, the transportation of property by an authorized
motor carrier. The broker has accepted the shipments and is legally
bound to transport them.
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(1) The duties and obligations of a broker;
(2) The records and accounts a broker must keep;
(3) The type of brokerage service the broker must perform; and
(4) The charges and compensation a broker is entitled to receive.
l. Regulations requiring every motor carrier to issue and keep a
receipt or bill of lading (or record) for property tendered for
transportation in interstate or foreign commerce containing such
information as:
(1) What must be contained on the receipt; and
(2) Who shall be given the original freight bill and who shall be
given a copy, as well as how it can be transmitted to the payer.
m. Regulations implementing procedures applicable to the operations
of household good carriers engaged in the transportation of household
goods,\6\ for the following activities:
---------------------------------------------------------------------------
\6\ As defined in 49 U.S.C. 13102(10) and amended by the Motor
Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, title II,
Sec. 209(a), Dec. 9, 1999, 113 Stat. 1764), the term ``household
goods'' as used in connection with transportation, means personal
effects and property used or to be used in a dwelling, when a part
of the equipment or supply of such dwelling, and similar property if
the transportation of such effects or property is--
(A) arranged and paid for by the householder, except such term
does not include property moving from a factory or store, other than
property that the householder has purchased with the intent to use
in his or her dwelling and is transported at the request of, and the
transportation charges are paid to the carrier by, the householder;
or
(B) arranged and paid for by another party.
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(1) The information that carriers must give to prospective shippers
prior to holding themselves out to perform such service;
(2) How carriers are to estimate the shipping costs which the
shippers will be required to pay for these shipments;
(3) How to determine the weight of the shipments prior to assessing
any shipping charges;
(4) How to accept shipments and provides carrier notification of
delay;
(5) The liability of carriers; and
(6) How to file complaints.
[[Page 9703]]
n. Regulations that apply to actions by motor carriers registered
with the Secretary to transport property for the following:
(1) The leasing of equipment (e.g., a motor vehicle, straight
truck, tractor, semi-trailer, full trailer, any combination of these
and any other type of equipment used by carriers in the transportation
of property) with which to perform transportation regulated by the
Secretary;
(2) The interchange of equipment between motor common carriers in
the performance of transportation regulated by the Secretary;
(3) To provide written lease requirements for authorized carriers
that do not own their transportation equipment; and
(4) To set forth requirements for carriers to obtain exemptions for
lease arrangements.
o. Regulations that apply to the transportation by motor vehicle of
C.O.D. shipments by all common carriers of property subject to 49
U.S.C. 13702, except such transportation which is auxiliary to or
supplemental of transportation by railroad and performed on railroad
bills of lading, and for such transportation that is performed by
freight forwarders and on freight forwarder bills of lading for the
following activities:
(1) Tariff filing requirements;
(2) Extension of credit to shippers;
(3) Presentation of freight bills; and
(4) Computing time for shipments.
p. Regulations that govern the processing of claims for overcharge,
duplicate payment, or over-collection for the transportation of
property in interstate commerce or foreign commerce by motor carriers
for information concerning how to document and investigate claims, keep
records, and dispose of claims.
q. Regulations implementing record preservation procedures for
motor carriers, brokers, and household goods freight forwarders,
including record types retained and retention periods.
r. Regulations implementing employer controlled substances and
alcohol use and testing procedures designed to prevent accidents and
injuries resulting from the misuse of alcohol or use of controlled
substances by drivers of commercial motor vehicles who:
(1) Operate a commercial motor vehicle (as defined in 49 CFR
382.107) in commerce in any State; and
(2) Are required by 49 CFR part 383 to possess a commercial
driver's license (CDL).
(3) Examples of the topics covered include rules prescribing
activities for:
(A) Pre-employment controlled substances test requirements;
(B) Random, post accident, reasonable suspicion, return to duty and
follow-up alcohol and controlled substances testing procedures for
employers and employees;
(C) Random testing rates,
(D) Requirements for drivers to report immediately to a specimen
collection site; and
(E) An action required by employers if an employee has a positive
test result, and recordkeeping.
s. Regulations intended to help reduce or prevent truck and bus
accidents, fatalities, and injuries by requiring drivers to have a
single commercial motor vehicle driver's license and by disqualifying
drivers who operate commercial motor vehicles in an unsafe manner and
provide for:
(1) A prohibition against a commercial motor vehicle driver having
more than one commercial motor vehicle driver's license;
(2) A requirement for drivers to notify their current employer and
State of domicile of certain convictions;
(3) A requirement for drivers to provide previous employment
information when applying for employment as an operator of a commercial
motor vehicle;
(4) A prohibition against an employer allowing a person with a
suspended license to operate a commercial motor vehicle;
(5) Periods of disqualification and penalties for those persons
convicted of certain criminal and other offenses and serious traffic
violations, or subject to any suspensions, revocations, or
cancellations of certain driving privileges; testing and licensing
requirements for commercial motor vehicle operators;
(6) A requirement for States to give knowledge and skills tests to
all qualified applicants for commercial drivers' licenses which meet
the Federal standard; and
(7) Requirements for the State-issued commercial license
documentation.
t. Regulations to ensure that the States comply with the provisions
of the Commercial Motor Vehicle Safety Act of 1986, by:
(1) Including the minimum standards for the actions States must
take to be in substantial compliance with each of the statutory
requirements of 49 U.S.C. 31311(a); and
(2) Having the appropriate laws, regulations, programs, policies,
procedures and information systems concerning the qualification and
licensing of persons who apply for a commercial driver's license, and
persons who are issued a commercial driver's license.
And, establish procedures for:
(1) Determining whether a State is in compliance with the rules of
this part; and
(2) The consequences of State noncompliance.
u. Regulations implementing rules of practice for motor carrier,
broker, freight forwarder and hazardous materials proceedings before
the Assistant Administrator/Chief Safety Officer, under applicable
provisions of the Federal Motor Carrier Safety Regulations (49 CFR
parts 350-399), including the commercial regulations (49 CFR parts 360-
379) and the Hazardous Materials Regulations (49 CFR parts 171-180) to
determine whether:
(1) A motor carrier, property broker, freight forwarder, or its
agents, employees, or any other person subject to the jurisdiction of
the FMCSA, has failed to comply with the provisions or requirements of
applicable statutes and the corresponding regulations; and,
(2) To issue an appropriate order to compel compliance with the
statute or regulation, assess a civil penalty, or both if such
violations are found.
v. Regulations prescribing the minimum levels of financial
responsibility required to be maintained by motor carriers of property
and passengers operating motor vehicles in interstate, foreign, or
intrastate commerce.
w. Regulations to enable States to enter into cooperative
agreements with the FMCSA to enforce the safety laws and regulations of
a State and the agency concerning motor carrier transportation by
filing a written acceptance of the terms.
x. Regulations implementing procedures for the issuance, amendment,
revision and rescission of Federal motor carrier regulations (e.g., the
establishment of procedural rules that would provide general guidance
on how the agency manages its notice-and-comment rulemaking
proceedings, including the handling of petitions for rulemakings,
waivers, exemptions, and reconsiderations, and how it manages
delegations of authority to carry out certain rulemaking functions).
y. Regulations implementing:
(1) Aiding or abetting prohibitions;
(2) Motor carrier identification and registration reports,
including Performance and Registration Information Systems Management
program registrations;
(3) Motor carrier and driver assistance with routine accident
investigations;
(4) Relief during regional and local emergencies, including tow
trucks responding to emergencies;
[[Page 9704]]
(5) Locations where motor carriers, drivers, brokers, and freight
forwarders must store records;
(6) Requirements about motor carriers, drivers, brokers, and
freight forwarders copies of records; and
(7) Prohibitions on motor carriers, agents, officers,
representatives, and employees from making fraudulent or intentionally
false statements on any application, certificate, report, or record,
including interstate motor carrier noise emission applications,
certificates, reports, or records required by FMCSA.
z. Regulations establishing:
(1) The minimum qualifications for persons who drive CMVs as, for,
or on behalf of motor carriers; and
(2) The minimum duties of motor carriers with respect to the
qualifications of their drivers.
aa. Regulations requiring motor carriers, their officers, drivers,
agents, representatives, and employees directly in control of CMVs to
inspect, repair, and provide maintenance for every CMV used on a public
road.
bb. Regulations concerning vehicle operation safety standards
(e.g., regulations requiring: Certain motor carriers to use approved
equipment which is required to be installed such as an ignition cut-off
switch, or carried on board, such as a fire extinguisher, and/or
stricter blood alcohol concentration (BAC) standards for drivers,
etc.), equipment approval, and/or equipment carriage requirements (e.g.
fire extinguishers and flares).
cc. Special local regulations issued in conjunction with a motor
vehicle rodeo or motor vehicle parade; provided that, if a permit is
required, the environmental analysis conducted for the permit included
an analysis of the impact of the regulations.
dd. Regulations concerning rules of the road, traffic services, and
marking of intelligent transportation systems.
7. Recreational Activities and Events
a. Approval of recreational activities or events (such as an FMCSA
picnic) at a location developed or created for that type of activity.
b. Approvals of motor vehicle rodeo and motor vehicle parade event
permits for the following events:
(1) Events that are not located in, proximate to, or above an area
designated environmentally sensitive by an environmental agency of the
Federal, State, or local government. For example, environmentally
sensitive areas may include such areas as critical habitats or
migration routes for endangered or threatened species or important fish
or shellfish nursery areas.
(2) Events that are located in, proximate to, or above an area
designated as environmentally sensitive by an environmental agency of
the Federal, State, or local government and for which the FMCSA
determines, based on consultation with the Governmental agency, that
the event will not significantly affect the environmentally sensitive
area.
Appendix 3--FMCSA Regulations Typically Subject to an EA
The following actions are typically subject to an environmental
assessment:
(1) Regulations addressing compliance with interstate motor carrier
noise emission standards.
(2) Regulations implementing procedures for motor carrier routing
(commercial).
(3) Regulations addressing principles and practices for the
investigation and voluntary disposition of loss and damage claims and
processing salvage (i.e., disposition of damaged property).
(4) Regulations addressing exemptions (not included in Appendix 2),
commercial zones, and terminal areas.
(5) Regulations that apply exclusively to passenger carriers.
(6) Regulations that apply to driving of commercial motor vehicles.
(7) Regulations addressing parts and accessories necessary for safe
operation.
(8) Regulations that apply to hours of service of drivers.
(9) Regulations that apply to transportation of hazardous
materials, including driving and parking rules.
(10) Regulations that apply to transportation of migrant workers.
(11) Regulations that address employee safety and health standards
(not included in Appendix 2).
Appendix 4--FMCSA Categorical Exclusion Determination (CED)
``Public Notice--All Interested Parties'' FMCSA Categorical Exclusion
Determination for (Title of Proposed Project)
(Brief, concise description of the location and the proposed
action. Should be only one or two paragraphs.)
This action is not expected to result in any significant adverse
environmental impacts as described in the National Environmental Policy
Act of 1969 (NEPA). The proposed action has been thoroughly reviewed by
the FMCSA, and the undersigned have determined this action to be
categorically excluded from further environmental documentation, in
accordance with FMCSA's NEPA Implementing Procedures and Policy for
Considering Environmental Impacts (FMCSA Order 5610.1), since
implementation of this action will not result in any of the following:
1. Significant cumulative impacts on the human environment.
2. Substantial controversy or substantial change to an existing
environmental condition.
3. Impacts that are more than minimal on properties protected under
4(f) of the DOT Act as superseded by Pub. L. 97-449, and Section 106 of
the National Historic Preservation Act.
4. Inconsistencies with any Federal, State, tribal, or local laws
or administrative determinations relating to the environment.
Date
*Preparer/Environmental Project Manager (as applicable)
Title/Position
Date
Environmental Reviewer
Title/Position
In reaching my decision/recommendation on the FMCSA's proposed
action, I have considered the information contained in this CED (and in
any attached environmental checklists or other supplemental
environmental analyses) on the potential for environmental impacts.
Date
Responsible Official
Title/Position
The FMCSA preparer signs for NEPA documents
prepared in-house. The FMCSA environmental project manager signs NEPA
documents prepared by an applicant, a contractor, or another outside
party.
Appendix 5--FMCSA Environmental Assessment Cover Sheet
Public Notice--All Interested Parties
Title of Document
(Environmental Assessment)
Responsible Agency Names(s)
Title of Action
Location
Contact Name
Address
Telephone/Fax/E-mail (as appropriate)
Abstract of the Document
Date of Distribution
Appendix 6--FMCSA Environmental Assessment (EA)
``Public Notice--All Interested Parties'' FMCSA'S Environmental
Assessment for (Title of proposed action)
The FMCSA's environmental assessment (EA) was prepared in
accordance with FMCSA's NEPA Implementing Procedures and Policy for
Considering Environmental Impacts
[[Page 9705]]
(FMCSA Order 5610.1) and complies with the National Environmental
Policy Act of 1969 (Pub.L. 91-190) and the Council of Environmental
Quality Regulations dated 28 November 1978 (40 CFR parts 1500-1508).
This environmental assessment serves as a concise public document
to briefly provide sufficient evidence and analysis for determining the
need to prepare an environmental impact statement or a finding of no
significant impact (FONSI). This environmental assessment concisely
describes the proposed action, the need for the proposal, the
alternatives, and the environmental impacts of the proposal and
alternatives. This environmental assessment also contains a comparative
analysis of the action and alternatives, a statement of the
environmental significance of the preferred alternative, and a list of
the agencies and persons consulted during EA preparation.
Date
*Preparer/Environmental Project Manager (as applicable)
Title/Position
Date
Environmental Reviewer
Title/Position
In reaching my decision/recommendation on the FMCSA's proposed
action, I have considered the information contained in this EA on the
potential for environmental impacts.
Date
Responsible Official
Title/Position
*The FMCSA preparer signs for NEPA documents prepared in-house. The
FMCSA environmental project manager signs for NEPA documents prepared
by an applicant, a contractor, or another outside party.
Environmental Assessment (EA) Format
I. Purpose of and Need for Proposed Action
The preparer of the EA will need to examine the objectives of the
proposed action, the problems to be resolved by the action, and the
environmental issues raised by the action, if any, as determined
through scoping.
II. Description of the Proposed Action, No Action, and Alternatives
Examine the size, location, nature of proposed action, tied to
purpose and need above. Also examine the size, location, and nature of
any alternative actions that would meet the purpose and need when
required by section 102(2)(E) of NEPA. A description of the No Action
Alternative is also useful here, indicating the state of the
environment as it exists today and in the future if the agency decides
not to implement its proposal.
III. Description of the Environmental Impacts of the Proposed Action,
including the Alternatives and No Action
The preparer of the EA would describe the potential environmental
impacts for each alternative, including all proposed Action
Alternatives and No Action, and all issues identified during scoping
and any other issues that have become apparent in the course of
analysis. The preparer of the EA may examine the context(s) in which
effects may occur, including the intensity of effects, using the
Environmental Checklist as an outline. The preparer should also include
mitigation measures (avoidance, minimization, repair, rehabilitation,
restoration, preservation, and compensation) where they exist and are
adequate to reduce effects below significance.
IV. Comments and Coordination
The preparer of the EA must include a list of agencies, tribes,
groups or individuals who commented during the preparation of the EA
and who have submitted comments to the notice of availability. A copy
of each comment to the notice of availability must be appended to the
EA. A list (may be in table format) of names, titles, educational and
experience background, and analyses or document sections for which each
person who prepared, reviewed, or who were consulted during the EA's
preparation.
V. Appendicies (if any), Including References, Maps, Reports, etc.,
That Substantiate the EA Analysis
VI. Section 4(f) Evaluation (49 U.S.C. 303) (if any)
VII. Other Compliance Information (if any)
The preparer of the EA must include any other environmental
statutory evaluations completed, such as section 6(f) of the Land and
Water Conservation Fund Act of 1965, section 106 of the National
Historic Preservation Act, section 404 of the Clean Water Act, section
7 of the Endangered Species Act, Clean Air Act 1990 (conformity),
Executive Order 12898 and DOT Order 5610.2 Environmental Justice
assessments,
Appendix 7--FMCSA Finding of No Significant Impact (FONSI)
``Public Notice--All Interested Parties''
FMCSA'S Finding of No Significant Impact for (Title of proposed action)
In accordance with the National Environmental Policy Act of 1969
(NEPA) (Pub. L. 91-190) and the Council of Environmental Quality
Regulations dated 28 November 1978 (40 CFR parts 1500-1508), and FMCSA
Order 5610.1, this action has been thoroughly reviewed by the FMCSA and
it has been determined, by the undersigned, that this project will have
no significant impact on the human environment. Therefore, no
Environmental Impact Statement (EIS) will be prepared.
This finding of no significant impact is based on the attached
FMCSA prepared environmental assessment (reference other environmental
documents as appropriate and if this action is related to other
projects) which has been determined to adequately and accurately
discuss the environmental issues and impacts of the proposed action and
provides sufficient evidence and analysis for determining that an
environmental impact statement is not required.
[Use the following language only if needed]:
The following environmental agreements have been reached with
agencies having jurisdiction by law or expertise on environmental
issues:
(List any agreements reached during the environmental analysis for
this EA.)
The following mitigation and monitoring measures will be
implemented to ensure that the action will have no significant impact
on the quality of the human environment:
(List mitigation and monitoring measures agreed upon with others,
or established independently by FMCSA.)
Date
Environmental Reviewer
Title/Position
I have considered the information contained in the EA, which is the
basis for this FONSI. Based on the information in the EA and this FONSI
document, I agree that the proposed action as described above, and in
the EA, will have no significant impact on the environment.
Date
Responsible Official
Title/Position
[[Page 9706]]
Appendix 8--FMCSA Notice of Intent to Prepare An Environmental Impact
Statement
Public Notice--All Interested Parties
FMCSA'S Notice of Intent To Prepare an Environmental Impact Statement
The Federal Motor Carrier Safety Administration (FMCSA) intends to
prepare an Environmental Impact Statement on the following action and/
or project:
Name of Action/Project
Location of Action/Project
FMCSA Docket Number
The proposed action/project will:
(Enter a brief description of the purpose and need for the project,
and a description of the proposed action to meet that purpose and
need.)
Alternatives to the proposed action include:
(Describe briefly any alternatives identified that will meet the
purpose and need for the project; include a description of the No
Action alternative.)
Public scoping (if appropriate at this stage) will include:
(Describe the scoping and public involvement plan for the EIS,
including any meetings, field trips, or other public events scheduled
as part of scoping.)
For further information:
Name of Contact
Title
Address
Phone Number
(Fax and E-mail addresses, if appropriate)
Appendix 9--FMCSA Environmental Impact Statement Model Cover Sheet
FMCSA'S EIS Model Cover Sheet Format
Public Notice--All Interested Parties
FMCSA'S EIS Cover Sheet for (Title of Document/Volume /Total
of Volumes)
(Draft or Final Environmental Impact Statement)
or
(Supplemental Environmental Impact Statement)
FMCSA Docket Number
Responsible Agency Name(s)
Title of Action/Project
FMCSA Docket Number
Location
Contact Name(s)
Address
Telephone/Fax/E-mail (as appropriate)
[Add one paragraph abstract of the Document]
The Federal Motor Carrier Safety Administration (FMCSA) [enter a
brief description of the underlying purpose and need to which the
agency is responding in proposing the alternatives, including the ``no
action'' alternative]. This Environmental Impact Statement (EIS)
examines the environmental effects of: [List the environmental analyses
that were made in the EIS (i.e., potential impacts on natural
resources, air quality, water quality, endangered species, and
community, social, and cultural resources were examined, together with
the potential for the generation or release of toxic, hazardous, and
radioactive wastes).] Date of Publication:
Date Comments Must be Received:
(For DEIS/SEIS: Allow at least 45 Days from Date of Publication)
(For FEIS: Allow at least 30 Days from Date of Publication)
Appendix 10--FMCSA Environmental Impact Statement (EIS)
``Public Notice All Interested Parties''
FMCSA (State whether Draft, Supplemental, or Final)
Environmental Impact Statement
(Volume / Total of Volumes)
For (Title of action)
Document Number:
Prepared By: (Responsible agency name(s) and contractor name, if
appropriate, or prepared by: contractor name for responsible agency
name(s)) (Location).
Contact Information: (Name, address, telephone/fax/e-mail, as
appropriate).
Abstract: (One-paragraph abstract of the document).
Date of Publication:
Date Comments Must Be Received:
FMCSA Docket Number:
(For DEIS/SEIS: allow at least 45 Days from date of publication)
(For FEIS: allow at least 30 Days from date of publication)
Date
* Preparer/Environmental Project Manager (as applicable)
Title/Position
Date
Environmental Reviewer
Title/Position
In reaching my decision/recommendation on the FMCSA's proposed
action, I have considered the information contained in this EIS on
environmental impacts.
Date
Responsible FMCSA Official
Title/Position
* The FMCSA preparer signs for EISs prepared in-house. The FMCSA
environmental project manager signs for EISs prepared by an applicant,
a contractor, or another outside party.
Appendix 11--FMCSA Notice of Availability of Environmental Impact
Statement
FMCSA's Notice of Availability of (Draft/Supplemental/Final) EIS for
(Title of Proposed Action)
The Federal Motor Carrier Safety Administration (FMCSA) has filed
with the Environmental Protection Agency and made available to other
governmental and private bodies a (Draft / Supplemental / Final)
Environmental Impact Statement on the following action/project:
Name of Action/Project
Location of Action/Project
FMCSA Docket Number
This proposed action/project will:
(Enter brief description of the purpose and need for the action,
alternatives, plus no action, location of project, affected
environment, etc.)
Copies of Draft/Final environmental Impact Statement are available
from:
Name of Contact
Title
Address
Phone Number
(Fax and E-mail addresses, if appropriate)
[For Draft EISs only, use the following language:]
Council on Environmental Quality regulations provide for a 45-day
review and comment period, which begins with the date of the Federal
Register notice of the availability of the Draft Environmental Impact
Statement. That date is (insert date here); comments are due to the
FMCSA contact named above no later than (insert date here).
Date
*Preparer/Environmental Project Manager (as applicable)
Title/Position
Date
Environmental Reviewer
Title/Position
Date
Responsible FMCSA Official
Title/Position
Appendix 12--FMCSA Record of Decision
``Public Notice--All Interested Parties''
FMCSA Record of Decision
The FMCSA has published a Final Environmental Impact Statement
(FEIS) on the following project:
(Name of action/project)
(Location of action/project)
(FMCSA Docket Number)
(Describe each of the following topics:)
The purpose and need for the action/project was:
[[Page 9707]]
Alternatives examined included:
Environmental consequences of the action/project include:
The decision is:
The environmentally preferable alternative(s) is (are):
I (selected/did not select) the environmentally preferable
alternative because:
The following are the economic, technical, FMCSA statutory mission,
national policy considerations (as applicable) that were weighed in
reaching my decision: (Explain how these considerations, as applicable,
entered into the decisionmaking process.)
All practicable means of avoiding or minimizing environmental harm
from the selected alternative(s) were/were not adopted because:
The following mitigation, monitoring, and enforcement has been
adopted (if applicable):
In reaching my decision/recommendation on the FMCSA's proposed
action, I have considered the information contained in the above-
mentioned FEIS on the potential for environmental impacts.
Date
Responsible FMCSA Official
Title/Position
Appendix 13--Form and Content of 4(f) Statements
Form and Content of 4(f) Statements
1. These instructions are to supplement the 4(f) requirements of
Attachment 2 to DOT Order 5610.1C.
2. Section 4(f) of the Department of Transportation Act states that
special effort should be made to preserve the natural beauty of the
countryside, public parks, and recreation lands, wildlife and waterfowl
refuges, and historic sites. Section 4(f) further states that the
Secretary of Transportation (Secretary) shall not approve any program
or project which requires the use of 4(f) lands (see paragraph 4.)
unless:
a. There is no feasible and prudent alternative to the use of such
lands, and;
b. Such program includes all possible planning to minimize harm to
4(f) lands resulting from such use.
3. Subsequent legal decisions have indicated that the protection of
parklands and other 4(f) areas is of paramount importance; that such
lands are not to be lost unless there are truly unusual factors
present, or unless the cost or community disruption resulting from
alternatives reaches extraordinary magnitudes; and that the Secretary
cannot approve the destruction of parkland unless alternatives present
unique problems.
4. Section 4(f) lands include any publicly owned land from a park,
recreation area, or wildlife or waterfowl refuge, or any land from an
historic (including archaeological) site.
a. Publicly Owned land--Any land owned in fee simple or land
subject to public easement or other interest in the land by a Federal,
State, or local agency or entity.
b. Historic Site--For the purposes of Section 4(f), an historic
site is significant only if it is on or eligible for inclusion on the
National Register of Historic Places, or if the FMCSA or the DOT lead
Federal agency determines that the application of Section 4(f) is
appropriate. Consultation with the State Historic Preservation Officer
(SHPO) and the Keeper of the Register (DOI) is required to identify
such properties, unless the FMCSA official and the SHPO have agreed
that the property does not meet the eligibility criteria, then the
Keeper of the Register need not be consulted for a determination.
c. Archaeological Site--Section 4(f) generally applies to
archaeological sites on or eligible for the National Register. If the
SHPO concurs in a FMCSA determination that a data recovery program will
negate ``an adverse'' effect to an archaeological property on or
eligible for the National Register, Section 4(f) does not normally
apply. (See the Advisory Council Historic Preservation Handbook:
Treatment of Archaeological Properties, November 26, 1980, Part II,
Section X.)
d. Multiple-Use Lands--Where Federal lands or other large public
land holdings are managed for multiple uses under a statute authorizing
such management, Section 4(f) applies only to portions of multiple-use
lands that are used for or are designated as being for public park,
recreation, wildlife or waterfowl refuge, or historic purposes. The
official having jurisdiction over the land (see paragraph 7) determines
its significance.
e. Temporary 4(f)--Type Use of Acquired (Non-4(f)) Lands--This use
shall not be subject to 4(f) actions if:
(1) The land was not previously used for parks, recreation,
wildlife or waterfowl refuge purposes or was not listed on or eligible
for the National Register before acquisition by the transportation
agency; and
(2) The lease, permit, or license clearly states that the use is
temporary (time period specified or subject to the transportation
agency owning the land) and that after that period the transportation
use will commence.
f. The amount of land taken or affected is immaterial; the law
clearly refers to any 4(f) lands having Federal, State, local, or
tribal significance as determined by the officials having jurisdiction
over the land. The 4(f) lands' significance must be determined as one
entity and not be divided into significant and non-significant parcels.
g. Enhancement of the 4(f) lands by the proposed project is also
immaterial; the Secretary must still approve the use of the land.
h. Also included are former 4(f) lands, if the transfer of
ownership or the change in use was to avoid a Section 4(f) issue.
i. ''Use of land'' under Section 4(f) generally means the
acquisition of title to or an easement in land for a transportation
program or project. In unusual circumstances, serious adverse impacts
such as severe increases in noise or air pollution, or access
disruption may constitute a ``constructive use,'' even where no
acquisition is involved, and Section 4(f) would apply.
j. Facilities (e.g., roadside rest areas) located on 4(f) lands and
provided by the transportation agency solely for the use by the users
of the transportation facility will not normally be subject to Section
4(f).
k. Projects (e.g., pedestrian, bicycle or equestrian bridges) that
require the use of 4(f) lands for recreation purposes will not normally
be subject to Section 4(f).
5. The language of Section 4(f) and subsequent legal
interpretations clearly indicate the need for a rigorous 4(f) statement
to accompany any FMCSA project using lands under the protection of this
statute. The 4(f) statement should include the information discussed in
the following paragraphs.
6. A comprehensive description of the 4(f) lands affected or taken
by the project should be presented.
a. The type and amount of lands required by the project should be
indicated. This should include the acreage needed for permanent surface
easements, aerial easements, underground easements, drainage and
utility easements, etc., as well as that needed for temporary
construction easements.
b. The existing 4(f) lands should be described including ownership,
administrative jurisdiction, location, size, available recreational
facilities, use, patronage, unique or irreplaceable qualities present,
type of vegetation or landscaping, type of wildlife (including resident
and migratory species), historical or cultural (including architectural
or artistic) significance, etc.
c. The relationship of the 4(f) lands to other similarly used lands
near the project should be clearly indicated.
[[Page 9708]]
d. Adverse impacts of the project on 4(f) lands should be
discussed. This discussion should pay particular attention to the
special nature of 4(f) lands and should include detailed information
concerning the effect of the project on natural views, local historical
values, pedestrian and other access, recreational use, vegetation,
wildlife, etc. Care should be taken to include a rigorous analysis of
aesthetic, air, water, and noise pollution on 4(f) lands near and
adjacent to the project. If these impacts are insignificant, the
reasons for this determination should be given in detail.
e. Secondary impacts of the project on involved 4(f) lands should
also be discussed, as these can often be of a greater magnitude than
direct primary impacts. Such a discussion should include possible
change in nearby land values that could lead to private development in
the area which would reduce the natural beauty or scenic qualities of
the 4(f) lands, increased access which may lead to excessive patronage
and overuse of the lands, etc.
f. General statements made in the above discussions and
descriptions should be supported by numerical data. In addition, maps,
plans, elevations, pictorial drawings, photographs (including aerial
photographs), or other graphics should be presented which show the
affected 4(f) lands and their relationship to the proposed project.
These graphics should be of sufficient scale and detail to allow an
analysis of the use to be made.
7. A statement of the tribal, local, State, or national
significance of the 4(f) lands should be presented. This statement
should come from the officials having jurisdiction over the lands when
at all possible, and should address the significance of the entire area
involved, and the actual land affected or taken by the project. When
such a statement cannot be obtained from the officials having
jurisdiction, the lands will be presumed to be significant. Any
statement of insignificance from whatever source is subject to review
by the FMCSA for bias.
8. A complete description of all alternatives and their impacts
that were considered in order to avoid effects on, or the taking of,
4(f) lands should be presented. The Secretary cannot approve a project
unless there is no feasible and prudent alternative to the use of
involved 4(f) lands.
a. Alternatives considered should be sincere attempts to avoid or
reduce impacts on 4(f) lands and not those contrived to satisfy the
letter of the law.
b. The FMCSA must critically examine the project as a whole and its
relation to nearby 4(f) lands to determine if the applicant has
considered all reasonable alternatives to avoid or minimize the use of
these lands, including the ``status quo'' or ``do nothing''
alternative.
c. In order to evaluate the feasibility and prudence of the
alternatives, rigorous and detailed information must be presented for
each one. If the alternatives are determined not to be feasible and
prudent, this information should include evidence that they present
truly unique and unusual technical problems or that they will result in
costs or community disruptions that reach extraordinary magnitudes.
(See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (2 ERC
1250) (1971)).
d. Evidence supporting determination on feasibility and prudence
should include, but not be limited to:
(1) A description of each alternative, including a discussion of
the type and amount of land required (especially through 4(f) lands),
maps, plans, elevations, or other graphics, sufficient to assess
potential impacts of the alternative.
(2) A cost estimate for each alternative, including figures showing
percentage differences in total costs for the various alternatives
(including the proposed project).
(3) A discussion of the environmental and community impacts of each
alternative, including figures showing the number of people displaced,
the number of homes or businesses removed, the degree of air and noise
pollution caused by the alternative, and other numerical data that will
allow a proper evaluation of the magnitude of the impacts to be made,
if appropriate.
(4) An assessment of the technical or engineering feasibility of
each alternative, which includes full consideration of new or
innovative construction techniques.
9. If there is no feasible and prudent alternative to the use of
4(f) lands by the proposed project, then a description of measures to
minimize harm to the protected area should be presented. The Secretary
cannot approve a project unless it includes all possible planning to
minimize harm to the involved 4(f) lands.
a. The FMCSA must examine the relationship of the proposed project
to the affected 4(f) lands and determine whether all possible measures
to minimize harm were considered; it should ensure that the statement
treated alternative designs, sites and/or routes.
b. All planning undertaken to minimize harm to 4(f) lands should be
described in detail. A statement of actions taken, or to be taken, to
implement this planning should also be included, along with an
estimated schedule showing when this implementation will take place.
c. Measures to minimize harm should include, but not be limited to,
the following:
(1) The replacement of land and facilities, or the provision of
compensation adequate for the functional replacement of land and
facilities.
(2) Measures to reduce visual intrusion and related aesthetic
impacts, such as landscape screenings, appropriate architectural
design, etc.
(3) Measures to reduce noise impacts, such as sound barriers, etc.
(4) Measures to reduce construction impacts, such as control of
drainage and erosion, proper disposal of spoil material, protection of
trees and other vegetation, control of temporary air and noise
pollution, maintenance of vehicular and pedestrian access during
construction, etc.
(5) Measures to enhance the natural beauty of the lands traversed,
such as the provision of more usable landscaped open space in congested
urban areas, etc.
10. Evidence of concurrence, or a description of efforts to obtain
concurrence of officials having jurisdiction over Section 4(f) lands
regarding the proposed action and measures planned to minimize harm
should be presented. Evidence of consultation with grantor agencies,
where land acquired with Federal grant money is involved, should also
be presented. Concurrence of these officials to the proposed project,
however, does not remove the necessity for the preparation of a
detailed and rigorous 4(f) statement.
11. Approval of the 4(f) statement in accordance with FMCSA's NEPA
Implementing Procedures and Policy for Considering Environmental
Impacts (FMCSA Order 5610.1) shall be accomplished by having the proper
approving official sign a 4(f) determination approval statement. This
approval page shall contain the following paragraph:
``Based on this 4(f) statement, I have determined that there is no
feasible and prudent alternative to the use of this 4(f) land(s) and
that all possible planning to minimize harm to this land(s) has been
accomplished.''
The dated approval page must be inserted as the first page inside
the cover of the final document.
[[Page 9709]]
12. Section 4(f) statements should be made a part of, and be
supported by, data within Environmental Impact Statements, or FMCSA
Supplementary Statements, whenever such are prepared as part of a
project, e.g., whenever the use of or effect on the 4(f) lands will
``significantly affect the quality of the human environment.''
a. When incorporating a 4(f) statement into an EIS as required by
FMCSA's NEPA Implementing Procedures and Policy for Considering
Environmental Impacts (FMCSA Order 5610.1), one of two methods for
presentation of the 4(f) information may be used. The 4(f) statement
may be presented as a complete separate section of the EIS or the 4(f)
information may be incorporated throughout the text of the EIS.
b. When the 4(f) statement is presented as a complete separate
section of an EIS, that section must contain the detailed analysis of
issues, alternatives, and mitigation measures to be implemented. A 4(f)
statement presented in this manner shall be written in sufficient
detail to allow the 4(f) section to stand independent of the EIS.
c. When the 4(f) information is incorporated throughout the text of
an EIS a summary of findings of the 4(f) investigation shall be
presented in an appropriate section of the EIS. This summary should
concisely describe the 4(f) issue and direct the reader to quickly
locate detailed information needed to rigorously evaluate the 4(f)
issue.
d. When a 4(f) statement is incorporated throughout the text of an
EIS, the front cover of the EIS shall clearly indicate that the
document is an Environmental Impact/Section 4(f) Statement.
e. When the 4(f) statement is incorporated throughout the text of
an EIS, the requirement of paragraph 11 of this appendix shall be
combined with the EIS approval page.
13. Some uses of 4(f) lands will only minimally affect the 4(f)
land. In such instances, the 4(f) statement shall be an independent
document accompanied by a Finding of No Significant Impact (FONSI) or
Categorical Exclusion Determination Statement.
Appendix 14--Air Quality Analysis
This appendix offers guidance on how to determine the appropriate
level of air quality analysis for Federal Motor Carrier Safety
Administration (FMCSA) actions subject to environmental review. Where
projects are of greater scope than characteristic FMCSA actions, these
actions should be developed in coordination with the Office of the
Secretary of Transportation (OST) and the Environmental Protection
Agency (EPA).
Two primary laws apply to air quality: The National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4347), and the Clean Air Act as
amended (CAA) (42 U.S.C. 7401 et seq.). NEPA and its implementing
regulations (40 CFR Parts 1500-1508) and guidelines establish broad
Federal policies and goals for the protection of the environment and
provide a framework for balancing the need for environmental quality
with other essential societal functions, including national defense.
The CAA established National Ambient Air Quality Standards (NAAQS)
for six pollutants, termed criteria pollutants. The six pollutants are:
Carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), ozone (O3),
particulates (PM-10 and PM-2.5), and sulfur dioxide (SO2). The CAA
requires each State to adopt a plan to achieve the NAAQS for each
pollutant within timeframes established under the CAA. These air
quality plans, known as State implementation plans (SIP), are subject
to Environmental Protection Agency (EPA) approval. In default of an
approved SIP, the EPA is required to promulgate a Federal
implementation plan (FIP).
Every effort should be made to reflect information necessary to
address any applicable State and local air quality requirements in the
NEPA document.
These requirements can include, but are not limited to, provisions
such as State indirect source regulations and State air quality
standards
FMCSA Responsibilities
National Environmental Policy Act
FMCSA has a responsibility under NEPA to include in its EA or EIS
sufficient analysis to disclose the potential impacts of a proposed
action, including whether the action would affect an area's attainment
and maintenance of air quality standards established by the Clean Air
Act.
Clean Air Act
It is FMCSA's affirmative responsibility under Section 176(c) of
the CAA to assure that its actions that are covered by the general
conformity requirements conform to applicable SIPs in nonattainment and
maintenance areas. Before FMCSA can fund or support in any manner an
activity, it must address the conformity of the action with the
applicable SIP using the criteria and procedures prescribed in the
general conformity rule (see CAA--General Conformity Requirements
section).
Requirements
National Environmental Policy Act
The requirements for air quality analysis under NEPA are distinct
from those of the general conformity rule of the CAA. However, the NEPA
document should reflect findings of a conformity analysis. When a NEPA
analysis is needed, the impacts of the alternatives on air quality are
assessed by evaluating the alternatives against the NAAQS. The proposed
action's emissions are analyzed for each reasonable alternative,
including the no action alternative. The analysis should include direct
emissions as well as indirect emissions that are reasonably
foreseeable. For purposes of quantitatively evaluating health impacts
under NEPA, provide all estimated criteria air pollutant
concentrations, e.g., 1--or 8-hour average concentrations for ozone.
In most cases, further analysis would not be required for areas
that are in attainment with the NAAQS for criteria pollutants. However,
based on the nature of the proposed action, additional analysis may be
appropriate. The methodologies and scope of these analyses should be
determined through consultation with Federal, State, and local air
quality agencies.
Categorical Exclusions (CEs)
Typically, actions that are categorically excluded under this Order
would have no effect or a de minimus effect on air quality and would
not result in more than a de minimus increase in emissions from
commercial motor vehicle (CMV) activity. As such, an air quality
analysis is generally not necessary. If there is some question as to
whether a particular project normally processed as a CE would have the
potential for a significant air quality impact, the screening criteria
listed in the analysis section of this appendix can be used to
determine whether further analysis is needed. If the screening analysis
shows that the proposed action has the potential to substantially
increase emissions from CMV activity, a national-level analysis should
be conducted to develop an estimate of emissions associated with the
proposed action (see Analysis section), and if appropriate, the results
should be documented in an environmental assessment.
[[Page 9710]]
Environmental Assessment (EA)/Finding of No Significant Impact (FONSI)
NEPA and the CAA Amendments of 1990 have separate requirements and
processes; however, their steps can be integrated and combined for
efficiency, and results of conformity analysis should be reflected in
environmental documents. Also, an air quality analysis can require the
coordination of many different agencies. Such coordination and
subsequent analysis takes time; therefore, air quality impacts should
be addressed as early as practicable when preparing an EA.
The preparation of an EA/FONSI may not require substantial
analytical backup. Such a judgment could be based on the screening
criteria, previous analyses for similar Federal agency actions or
previous general analyses for various classes of projects that are
current. In general, a simplified national analysis procedure should be
adequate for most Federal agency actions processed with an EA/FONSI
(see Analysis Section). If the analysis shows that the proposed action
will not create a new violation or exacerbate an existing violation,
the proposed action will normally lead to a FONSI.
Clean Air Act--General Conformity Requirements
Section 176(c) of the CAA, as amended in 1990, requires that
Federal agency actions conform to the appropriate Federal or State air
quality implementation plans (FIPs or SIPs) in order to attain the
CAA's air quality goals. Section 176(c) states:
``No department, agency, or instrumentality of the Federal
Government shall engage in, support in any way or provide financial
assistance for, license or permit, or approve, any activity which does
not conform to an implementation plan.''
General conformity is defined as conformity to the implementation
plan's purpose of eliminating or reducing the severity and number of
violations of the NAAQS and achieving expeditious attainment of such
standards, and that such Federal agency activities will not:
(1) Cause or contribute to any new violation of any standard in any
area.
(2) Increase the frequency or severity of any existing violation of
any standard in any area.
(3) Delay timely attainment of any standard or any required interim
emission reductions or other milestones in any area.
The CAA 1990 amendments required the EPA to issue rules that would
ensure Federal agency actions conform to appropriate FIP or SIP. A
final rule for determining conformity of general Federal agency actions
(40 CFR part 93, subpart B) was published in the Federal Register (FR)
on November 30, 1993, and became effective January 31, 1994. In
addition, 40 CFR part 51, subpart W specifies requirements for
conformity which States must include in their respective SIPs. EPA
published separate rules addressing conformity of highway, roadway, and
transit plans and projects (40 CFR part 93, subpart A, and 40 CFR part
51, subpart T) on November 24, 1993 and several subsequent amendments.
The remaining conformity discussion addresses only general conformity
since FMCSA actions are subject to this rule.
The general conformity rule establishes the procedures and criteria
for determining whether certain Federal agency actions conform to State
or Federal air quality implementation plans. To determine whether
conformity requirements apply to a proposed Federal agency action, the
following must be considered: the nonattainment or maintenance status
of the area; the project's emission levels; exemptions from conformity
and presumptions to conform; and the regional significance (discussed
below) of the project's emissions. The procedures for assessing
conformity for FMCSA actions are presented in the analysis section of
this appendix.
The general conformity rule only applies in areas that EPA has
designated nonattainment or maintenance. A nonattainment area is any
geographic area of the U.S. that experiences a violation of one or more
NAAQS and is designated as nonattainment by EPA. A maintenance area is
any geographic area of the U.S. previously designated nonattainment for
a criteria pollutant pursuant to the CAA Amendments of 1990 and
subsequently re-designated to attainment. A list of all areas
designated as nonattainment or maintenance areas is maintained in 40
CFR part 81 (commonly known as the Green Book) by the EPA Office of Air
Quality Planning and Standards (OAQPS) on their Web site. This serves
as the official register of all nonattainment and maintenance areas.
The general conformity rule covers direct emissions of criteria
pollutants or their precursors from Federal agency actions, as well as
indirect emissions that are reasonably foreseeable, and can practicably
be controlled and maintained by the Federal agency through continuing
program responsibility.
A conformity determination is not required if the emissions caused
by the proposed Federal agency action are not reasonably foreseeable;
if the emissions caused by the proposed Federal agency action cannot
practicably be controlled and maintained by the Federal agency through
its continuing program responsibility; if the action is listed as
exempt or presumed to conform; or if the action is below the emission
threshold (de minimis) levels (40 CFR 93.153).
Exemptions
Certain Federal actions are exempt from the requirement of the
general conformity rule because they result in no emissions or
emissions are clearly below the rule's applicability emission threshold
levels. These include, but are not limited to:
(i) Judicial and legislative proceedings;
(ii) Continuing and recurring activities such as permit renewals
where activities conducted will be similar in scope and operation to
activities currently being conducted;
(iii) Rulemaking and policy development and issuance;
(iv) Routine maintenance and repair activities, including repair
and maintenance of administrative sites, roads, trails, and facilities;
(v) Civil and criminal enforcement activities, such as
investigations, audits, inspections, examinations, prosecutions, and
the training of law enforcement personnel;
(vi) Administrative actions such as personnel actions,
organizational changes, debt management or collections, cash
management, internal agency audits, program budget proposals, and
matters relating to the administration and collection of taxes, duties,
and fees;
(vii) The routine, recurring transportation of material and
personnel;
(viii) The granting of leases, licenses such as for exports and
trade, permits, and easements where activities conducted will be
similar in scope and operation to activities currently being conducted;
or
(ix) Research, investigations, studies, demonstrations, or training
where no environmental detriment is incurred;
A complete list of all actions that would result in no emissions
increase or an increase in emissions that is clearly de minimis can be
found at 40 CFR 93.153(c)(2) and 93.153(d).
The general conformity rule (58 FR 63250, November 30, 1993)
includes a provision that permits agencies to develop a list of actions
presumed to conform which would be exempt from the requirements of the
rule unless
[[Page 9711]]
regionally significant. To date, FMCSA does not have a list of actions
that are presumed to conform. Notification of such a list and the basis
for the presumption of conformity would be published in the Federal
Register in the future. For those actions that are not exempt from the
general conformity requirements, FMCSA must conduct a screening process
to determine if the proposed action has the potential to generate
emissions in excess of the de minimis thresholds (see Analysis
section).
Analysis
General Procedures
In the preparation of the air quality section of the NEPA document,
FMCSA must present the results of the air quality analysis for all
analyzed alternatives. The scope of the air quality analysis must be
designed so that it provides a comparison of alternatives with regard
to the air quality standards set forth in the CAA. If the results of
the analysis determine that the proposed action would result in
emissions below de minimis levels, no conformity determination is
required. However, if the air quality analysis determines the proposed
action would result in emissions above de minimis levels, FMCSA must
perform a conformity analysis and determination.
The conformity review and determination does not address how
emissions of pollutant(s) of concern affect human or ecological
receptors. However, completion of the conformity analysis would provide
the necessary data to evaluate the effects on these receptors.
The general conformity analysis should be reflected in the air
quality analysis section of the NEPA document. As a matter of practice,
the general conformity analysis should be performed concurrently with
the NEPA document. The draft and final conformity determinations may be
provided as an appendix or separate volume of the NEPA documents or
incorporated into the body of the NEPA document.
Analysis
When the analysis indicates potentially significant air quality
impacts, it may be necessary to consult further with State or local air
quality agencies and/or with EPA. It also is advisable to include such
officials in the EIS scoping process to represent agencies with air
quality expertise. These officials will help identify specific analyses
needed, alternatives to be considered, and/or mitigation measures to be
incorporated into the action.
Evaluation Criteria
Figure 1 contains a flow chart that describes the evaluation
criteria and procedure to help determine if a conformity determination
is required. If a proposed action is not exempt from the general
conformity requirements, the potential for the proposed action to
generate direct or indirect emissions in excess of the de minimis
thresholds must be evaluated.
The potential for a proposed action to generate emissions in excess
of the de minimis thresholds in a nonattainment or maintenance area can
be determined using the following evaluation criteria. Actions that
would not modify the elements of CMV traffic presented in these
criteria would have air quality impacts that are clearly de minimis and
no further air quality analysis is required.
Increase in CMV mileage
Would the proposed action result in an overall increase in CMV
mileage? An increase in the number of miles traveled could result in an
increase in overall emissions.
Routing
Would the proposed action result in a geographical shift of CMV
operations at the regional level? For example, if the proposed action
were to shift CMV travel to different interstates, a region may
experience an increase in CMV mileage, although the number of miles
traveled nation-wide may not increase.
Operation
Would the proposed action result in a change in how CMVs are
operated? For example, would idling times be increased or would speeds
be restricted during operation. These changes in operation could result
in an increase in overall emissions.
Fleet Mix
Would the proposed action result in a shift in the mixture of CMVs
in any regional fleet? The use of different types of CMVs, vehicles of
different ages, or vehicles with different maintenance regimes should
be considered changes in the fleet mix. Emissions from CMVs can vary
substantially and changes in the fleet mix may result in changes in the
amount of emissions from the fleet.
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Emissions from FMCSA proposed actions that would have the potential
to modify the elements of CMV operation listed above must be assessed
using the methodology described below.
National Analysis Methodology
For FMCSA actions with the potential to increase emissions that
impact CMV activity uniformly nation-wide,
[[Page 9713]]
emissions should be calculated at the national scale. These nation-wide
estimates of emissions can then be assigned to each nonattainment area
in proportion to the national level of CMV activity. Estimates of
potential nation-wide emission increases should be developed using EPA-
approved models unless otherwise approved by the EPA (40 CFR
51.859(c)). In accordance with CEQ NEPA guidelines (40 CFR 1500-1508),
this simplified analysis would allow FMCSA to determine the scope of
the potential emission increase without the need for excess paperwork
and delay.
If the project's emissions are below annual threshold levels (de
minimis levels) and are not regionally significant, then the
requirements of the general conformity regulation do not apply to the
Federal agency action or project (and therefore, a conformity
determination is not required). If the potential emission increase from
the proposed action is greater than the de minimis threshold in a
nonattainment area or maintenance area, then the agency must prepare a
conformity determination based on analysis using criteria stated in
EPA's General Conformity Rule (40 CFR parts 51 and 93).
Conformity Determination
In determining whether emission threshold levels are exceeded, and
that a conformity determination is required, agencies must consider
direct and indirect emissions. Direct emissions are those that are
caused by or initiated by the Federal agency action and occur at the
same time and place as the action. Indirect emissions are those caused
by the Federal agency action, but that occur later in time and/or may
be removed in distance from the action. Temporary construction
emissions must be considered in determining whether emission threshold
levels are exceeded.
The general conformity rule adopted a definition of indirect
emissions, which excludes emissions that may be attributable to the
Federal agency action, but that the Federal agency has no authority to
control. In addition to assessing direct emissions, FMCSA is
responsible for assessing indirect emissions of criteria pollutants and
precursors that are caused by a Federal agency action, are reasonably
foreseeable, and can practicably be controlled by FMCSA through its
continuing program responsibility. FMCSA may compare emissions with and
without the proposed Federal agency action during the year in which
emissions are projected to be greatest in determining whether emission
threshold levels are exceeded.
If a Federal agency action does not exceed the threshold levels or
is presumed to conform, the action may still be subject to a general
conformity determination if it has regional significance. If the total
of direct and indirect emissions of any pollutant from a Federal agency
action represent ten percent or more of a maintenance or nonattainment
area's total emissions of that pollutant, the action is considered to
be a regionally significant activity and conformity rules apply. Parts
of the overall Federal agency action that are exempt from conformity
requirements (e.g., emission sources covered by New Source Review (CAA
Section 111)) should not be included in the analysis. The purpose of
the regionally significant requirement is to capture those Federal
agency actions that fall below threshold levels, but have the potential
to impact the air quality of a region.
The conformity analysis would be conducted on the proposed action
and would show whether the conformity requirements would apply and
explain the basis for the conclusion, including if and how the
following were used:
Criteria pollutant(s) or precursors expected to
be emitted, if any;
Emissions of pollutants of concern occurring in
a nonattainment or maintenance area;
Whether the alternative is exempt from the CAA
conformity requirements;
Emissions estimates for pollutant(s) of concern,
if needed.
For purposes of demonstrating conformity, present emission
estimates, i.e., tons per year, of only the pollutant(s) of concern.
The CAA General Conformity rule (40 CFR 93.159) requires that emissions
estimates use the latest planning assumption, the most accurate
estimation techniques, current models, and the latest emission factors.
Section 93.159(d)) requires emissions estimates for:
The mandated attainment year in the CAA, or the
farthest year in which emissions re specified in the maintenance plan,
if applicable;
The year during which the total of direct and
indirect emission from the action is expected to be the greatest on an
annual basis;
Any year for which the applicable SIP specifies
an emissions budget. The general conformity rule, in Sec. 93.158,
provides options for demonstrating conformity. Options include showing
that the emissions resulting from the action are specifically accounted
for in the SIP or in a SIP budget; that the emissions are accounted for
in a SIP revision or a planned SIP revision to which the State has
committed; that the action is specifically included in a transportation
plan and transportation improvement program found to conform under the
Transportation Conformity rule; or that enforceable mitigation measures
will fully offset the emissions increases.
Documentation for a conformity determination must:
Briefly describe how the conformity
determination criteria would be met;
Summarize how any conformity analysis was
conducted based on the latest local or area-wide planning assumptions
(e.g., employment, population, travel, and congestion);
Summarize the methodology for calculating
emissions of the pollutant(s) of concern;
Briefly describe the methodology (including
assumptions and input data) for air quality modeling (for use in NEPA
air quality section);
Briefly describe any mitigation measures or
offsets needed to fully offset the project's emissions and to
demonstrate conformity; and
Briefly describe the process for implementing
and enforcing the mitigation measures or offsets.
In addition, the comparison of the proposed action with regard to
conformity is required to show how the action would conform to the
applicable implementation plan, and to the extent known, any mitigation
measures or offsets needed to demonstrate conformity. If mitigation
measures are necessary, they would be determined on a project-by-
project basis.
A proposed action cannot be approved or initiated unless conformity
does not apply or a positive conformity determination is issued (i.e.,
the action conforms to the SIP). If initial analysis does not indicate
a positive conformity determination, alternative actions (including
mitigation measures as part of the action) should be considered and
further consultation, analysis, and documentation will be necessary.
If a proposed action is modified after the project has been
determined to be below de minimis levels, all emissions from the
proposed action must be reevaluated against the de minimis thresholds
to determine if a conformity determination is necessary. In a Record of
Decision (ROD) or Finding of No Significant Impact (FONSI), briefly
describe any conformity determination(s). In a ROD, include any
commitments to implement mitigation measures or offsets needed to
achieve conformity with the applicable implementation plan, and
reference the
[[Page 9714]]
preparation of a NEPA mitigation action plan.
If FMCSA has not made a needed final conformity determination at
the time a final NEPA document is issued, issue the final conformity
determination concurrent with the ROD, and in addition to describing
the final conformity determination, provide responses to public
comments on the draft determination. If a modification to the proposed
action occurs after the final conformity determination has been issued,
any increase in emissions must be below the de minimis levels or a new
determination will be necessary.
Once the final conformity determination is issued, FMCSA must
complete the action in five years, unless a continuous program to
implement the action is in place. Otherwise, a new conformity
determination is required.
Appendix 15--Distribution of Environmental Impact Statements
Distribution of Environmental Impact Statements
CEQ regulations require distribution to the following:
A. Draft EISs
Other agencies with jurisdiction by law or
special expertise with respect to the environmental impacts involved or
that are authorized to develop and enforce environmental standards
(including cooperating agencies)
Federal
State
Local (including counties)
Tribal
The applicant, if any
Any person, organization, or agency requesting the
entire EIS
Indian tribes when the effects may be on a
reservation
Any agency that has requested to receive EISs on
actions of the kind proposed
Environmental Protection Agency
After distributing the EIS to the parties listed above, send five
(5) copies to pertinent EPA Regional Offices and 5 copies to: U.S.
Environmental Protection Agency, Office of Federal Activities, EIS
Filing Section, Mail Code 2252-A, Room 7241, Ariel Rios Building (South
Oval Lobby), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
For all deliveries by courier, including express delivery services
other than the U.S. Postal Service, use 20004 as the zip code. If the
documents are to be hand-delivered, ask the security guards to phone
(202) 564-2400 for an escort to the Filing Section. Telephone inquiries
can also be made to: (202) 564-7167 or (202) 564-7153.
B. Final EISs
All of the above, plus
Any person, organization, or agency that submitted
substantive comments on the draft EIS
C. Supplemental EISs
All of the above (A. and B.)
D. Notice of NEPA-Related Hearings, Meetings, and Documents
Federal Register
FMCSA Docket assigned to the project
FMCSA's Office of Communications (MC-CM)
Local newspapers of general circulation
Newsletters (of the agency or other organizations)
Those who requested a hearing or meeting or
requested notices to the individual action (40 CFR 1506.6(b)(1))
National organizations reasonably expected to be
interested in the matter or who have requested notice regularly be
provided (40 CFR 1506.6(b)(2))
Potentially interested community organizations
including small business associations (40 CFR 1506.6(b)(3)(vi))
Owners and occupants of nearby or affected property
(40 CFR 1506.6(b)(3)(viii))
Distribution to Any or All of the Following Is Appropriate Where
Scoping, Analysis, Public Participation, or Expressed Interest So
Indicate
U.S. Senators for the States where the action will
occur
U.S. Representatives for the Districts where the
action will occur
Governors for the States where the action will occur
Governing body of any Federally recognized Indian
tribe that may be affected by the action.
Elected officials of the local jurisdiction
where the action will occur or that may be affected by the action:
County commissioners, Township council, or
equivalent
Mayor
Head of City Council
City or County Executive
City or County Manager, Administrator
Cooperating agency(ies) where FMCSA is the lead
agency
U.S. Environmental Protection Agency
(5 copies to headquarters and five copies to pertinent EPA Regional
Offices where the action will occur)
Public libraries
Agencies with jurisdiction by law or expertise:
1. Federal agencies such as:
U.S. Department of Interior, including
National Park Service
Fish and Wildlife Service (with appropriate
documentation for coordination under the Endangered Species Act)
U.S. Department of Justice
U.S. Department of Commerce
U.S. Department of Health and Human Services
U.S. Department of Housing and Urban Development
U.S. Army Corps of Engineers (with any permit
application under Section 404 of the Clean Water Act or Section 10 of
the Rivers and Harbors Act)
Advisory Council on Historic Preservation (with
appropriate determination under Section 106 of the National Historic
Preservation Act)
Federal Emergency Management Agency (with
appropriate determination under Executive Order 11988)
U.S. Geological Survey
U.S. Small Business Administration
2. State agencies such as:
State Environmental Protection Agency,
Environmental Quality Department, or Pollution Control Agency
State Attorney(s) General
State and Local Air Quality Board(s)
State Historic Preservation Officer (with
appropriate determination under Section 106 of the National Historic
Preservation Act)
State Department of Natural Resources
State Department of Transportation, including
State Motor Vehicle Administration
State Motor Carrier Agency(ies)
State Highway Patrols
State Utility Commissions
State Department of Public Safety
State Fish and Game
State and Local Parks and Recreation Agency(ies)
State Land Use Board/Commission/Department
Community Development Agency
3. Governments of Federally recognized Indian tribes and native
entities within the State of Alaska potentially affected by the action,
and/or specific pertinent agencies as directed by the tribal or native
Alaskan government
4. County and Local agencies such as:
County Planning Commission/Engineering
Department
City Landmark Commission and or Historic
Preservation Commission
Fire Department
[[Page 9715]]
Police Department
Building Department
Land Use and/or Zoning Department or Commission
Parks and Recreation
5. Non-governmental groups and organizations such as:
Representatives of affected low-income and
minority groups (with translations, etc., where needed)
Non-Federally recognized Indian tribes
Native Hawaiian groups (in Hawaii)
Other indigenous groups where applicable
Environmental groups (Audubon, Greenpeace,
Friends of the Earth, Natural Resources Defense Council, Sierra Club,
etc.)
Industry groups (Chamber of Commerce, Downtown
associations, American Trucking Associations, Inc., American Bus
Association, Associated General Contractors, National Private Truck
Council, United Motor Coach Association, etc.)
Utility companies (gas, electric, water, etc.)
Neighborhood groups
Adjacent landowners
Print and electronic media
Appendix 16--List of Relevant Environmental Statutes and Executive
Orders
List of Relevant Environmental Statutes and Executive Orders
1. Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use (E.O. 13211, 66 FR 28355)
2. American Indian Religious Freedom Act (AIRFA) (42 U.S.C. 1996, et
seq.)
3. Antiquities Act (16 U.S.C. 433, et seq.)
4. Archeological and Historic Preservation Act (AHPA) (16 U.S.C. 469)
5. Archeological Resources Protection Act (ARPA) (16 U.S.C. 470, et
seq.)
6. Architectural Barriers Act (42 U.S.C. 4151, et seq.)
7. Clean Air Act (CAA) (Pub. L. 95-95 / 42 U.S.C. 7401, et seq.)
8. Clean Water Act of 1977 (CWA) (Pub. L. 95-217 / 33 U.S.C. 1251, et
seq.)
9. Community Environmental Response Facilitation Act (CERFA) (42 U.S.C.
9620 et seq.)
10. Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA), also commonly referred to as SUPERFUND (Pub. L.
96-510 / 26 U.S.C. 4611, et seq.)
11. Consultation and Coordination With Indian Tribal Governments (E.O.
13175, 65 FR 67249)
12. Coral Reef Protection (E.O. 13089, 63 FR 32701).
13. Department of Transportation Act, Section 4(f) (Pub. L. 89-670 / 49
U.S.C. 303, Section 4(f), et seq.)
14. Developing and Promoting Biobased Products and Bioenergy (E.O.
13134, 64 FR 44639)
15. Emergency Planning and Community Right-to-Know Act (42 U.S.C.
11001-11050, et seq.)
16. Endangered Species Act of 1973 (ESA) (Pub. L. 93-205 / 16 U.S.C.
1531, et seq.)
17. Energy Efficiency and Water Conservation at Federal Facilities
(E.O. 12902, 59 FR 11463)
18. Environmental Effects Abroad of Major Federal Actions (E.O. 12114,
44 FR 1957)
19. Environmental Review of Trade Agreements (E.O. 13141, 64 FR 63169)
20. Environmental Quality Improvement Act (Pub. L. 98-581 / 42 U.S.C.
4371, et seq.)
21. Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations (E.O. 12898, 59 FR 7629)
22. Federal Compliance with Pollution Control Standards (E.O. 12088, 43
FR 47707)
23. Federal Insecticide, Fungicide, and Rodenticide Act (Pub. L. 86-139
/ 7 U.S.C. 135, et seq. )
24. Federal Records Act (FRA) (44 U.S.C. 2101-3324, et seq.)
25. Federalism (E.O. 13132, 64 FR 43255)
26. Fish and Wildlife Act of 1956 (Pub. L. 85-888 / 16 U.S.C. 742, et
seq.)
27. Fish and Wildlife Coordination Act (Pub. L. 85-624 / 16 U.S.C. 661,
et seq.)
28. Fisheries Conservation and Recovery Act of 1976 (Pub. L. 94-265 /
16 U.S.C. 1801 et seq.)
29. Greening the Government Through Leadership in Environmental
Management (E.O. 13148, 65 FR 24595)
30. Greening the Government Through Federal Fleet and Transportation
(E.O. 13149, 65 FR 24607)
31. Greening the Government Through Waste Prevention, Recycling, and
Federal Acquisition (E.O. 13101, 63 FR 49643)
32. Historic Sites Act (16 U.S.C. 46, et seq.)
33. Indian Sacred Sites (E.O. 13007, 61 FR 26771)
34. The President Intergovernmental Review of Federal Programs (E.O.
12372, 47 FR 30959)
35. Invasive Species (E.O. 13112, 64 FR 6183)
36. Locating Federal Facilities on Historic Properties in our Nation's
Central Cities (E.O. 13006, 61 FR 26071)
37. Magnuson-Stevens Fishery Conservation and Management Act as amended
through October 11, 1996. (16 U.S.C. 1801, et seq.)
38. Marine Protected Areas (E.O. 13158, 65 FR 24909)
39. Marine Protection, Research, and Sanctuaries Act of 1972 (Pub. L.
92-532 / 16 U.S.C. 1431, et seq. and 33 U.S.C. 1401, et seq.)
40. Migratory Bird Treaty Act (16 U.S.C. 703-712, et seq.)
41. National Environmental Policy Act of 1969 (NEPA), (Pub. L. 91-190 /
42 U.S.C. 4321, et seq.)
42. National Historic Preservation Act of 1966 (NHPA) (Pub. L. 89-665 /
16 U.S.C. 470, et seq.)
43. Native American Graves Protection and Repatriation Act (NAGPRA) (25
U.S.C. 3001, et seq.).
44. Noise Control Act of 1972 (Pub. L. 92-574 / 42 U.S.C. 4901, et
seq.)
45. Implementation of the North American Free Trade Agreement (NAFTA
(E.O. 12889, 58 FR 69681)
46. Procurement Requirements and Policies for Ozone Depleting
Substances (E.O. 12843, 48 FR 21881)
47. Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13101-13109, et
seq.)
48. Protection and Enhancement of Cultural Environment (E.O. 11593, 36
FR 8921)
49. Protection and Enhancement of Environmental Quality (E.O. 11514, 35
FR 4247)
50. Protection of Children From Environmental Health Risks and Safety
Risks (E.O. 13045, 62 FR 19885.)
51. Protection of Wetlands (E.O. 11990, 42 FR 26961)
52. Recreational Fisheries (E.O. 12962, 60 FR 307695)
53. Requiring Agencies to Purchase Energy Efficient Computer Equipment
(E.O. 12845, 58 FR 21887)
54. Resource Conservation and Recovery Act of 1976 (RCRA), (Pub. L. 94-
580 / 42 U.S.C. 6941, et seq.)
55. Responsibilities of Federal Agencies To Protect Migratory Birds
(E.O. 13186, 66 FR 3853)
56. Safe Drinking Water Act (SDWA) (Pub. L. 93-523 / 42 U.S.C. 201, et
seq.)
57. Toxic Substances Control Act (TOSCA) (7 U.S.C. 136, et seq.)
58. Wild and Scenic Rivers Act (Pub. L. 90-542 / 16 U.S.C. 1271, et
seq.)
Note: All Public Law (Pub. L.) and DOT Order Numbers should be
referenced as amended.
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Appendix 18--Special Areas of Consideration When Implementing NEPA
This appendix supplements the information that appears in Chapter
2, FMCSA Responsible Parties, Duties, And Instructions For Implementing
NEPA.
1. Air Quality
Both the Clean Air Act (CAA) and the National Environmental Policy
Act (NEPA) require that air quality be considered in the preparation of
environmental documents for any proposed action. The CAA also requires
that all Federal actions conform to the State Implementation Plan
(SIP). The Environmental Protection Agency's General Conformity Rule,
40 CFR parts 51 and 93 applies to FCMSA actions.
The level of detail in air quality analyses will vary considerably
according to the action, the existing level of air quality in the area,
and degree of controversy. The only pollutants of concern for a project
analysis are those that would be directly affected by the action.
See Appendix 14 for guidance on the appropriate level of air
quality analysis for a project.
2. Noise
In compliance with the Noise Control Act of 1972, the responsible
FMCSA official must ensure that commercial motor vehicles (CMVs) and
commercial motor vehicle equipment operated by motor carriers conform
to the Interstate Motor Carrier Noise Emission Standards of the
Environmental Protection Agency in 40 CFR part 202.
If an action involving a construction activity is proposed, an
analysis of potential noise impacts should be prepared, including the
following for each alternative under detailed study:
a. A brief description of noise sensitive areas (residences,
businesses, schools, parks, etc.), including information on the number
and types of activities which may be affected.
b. The extent of the impact (in decibels) at each sensitive area.
This includes a comparison of the predicted noise levels with both the
noise abatement criteria and the existing noise levels. (Traffic noise
impacts occur when the predicted traffic noise levels approach or
exceed the noise abatement criteria or when they substantially exceed
the existing noise levels). The criterion used for defining a
``substantial increase'' in noise levels should be identified. Use of a
table for this comparison is recommended for clarity.
c. Noise abatement measures which have been considered for each
impacted area and activity and those measures that are reasonable and
feasible and that would ``likely'' be incorporated into the proposed
action. Estimated costs, decibel reductions and height and length of
barriers should be shown for all abatement measures.
d. Noise impacts for which no prudent solution is reasonably
available and the reasons why.
3. Hazardous Materials
The responsible FMCSA official must document whether the proposed
action will result in impacts on the use, transportation, and storage
of hazardous materials or on the number or severity of hazardous
materials accidents or incidents.
An accident is defined as an event that occurs when the vehicle
transporting the goods is involved in a collision. Any accident
involving the shipment of hazardous materials would be considered as a
hazardous materials accident regardless of whether any of the material
was spilled or was exposed to the atmosphere. Similarly, a non-
hazardous materials shipment accident would be considered as a non-
hazardous materials shipment accident even if fuel from the tractor
spilled during an accident. An event that occurs when the vehicle
transporting the goods spills some of the hazardous materials cargo but
is not involved in a collision is termed an enroute incident. An event
resulting in the spill or release of hazardous materials material
during loading or unloading is defined as a loading/unloading incident.
The analysis must identify any moderate to significant adverse impacts
to public safety and health, transportation, property damage, water
resources, and biological resources from releases of hazardous
materials associated with safety-related accidents and incidents. Also,
mitigating measures and countermeasures should be identified.
The analysis of the action should also identify any impacts on
water quality and public health and safety from oil and fuel leaks and
spills, particularly from tankers, commercial motor vehicles (CMVs),
and fuel storage tanks. Runoff of hazardous materials from roads,
infrastructure construction, and deterioration of discarded vehicles
have an impact on wetlands, surface and groundwater quality as well.
The 1981 FHWA research report entitled ``Constituents of Highway
Runoff'' and the 1987 report entitled ``Effects of Highway Runoff on
Receiving Waters'' contain procedures for estimating pollutant loading
from highway runoff and would be helpful in determining the level of
potential impacts and appropriate mitigative measures.
To estimate the likely impacts of potential hazardous materials
incidents/accidents, the following impact categories should be
considered:
Injuries and deaths
Cleanup costs
Property damage
Evacuation
Product loss
Traffic incident delay
Environmental damage
For guidance, consult FMCSA's Hazardous Materials Incident
Prevention Manual (http://www.fmcsa.dot.gov/factsfigs/accidenthm/forewhaz.htm
) and the Final Report on Comparative Risks of Hazardous
Materials and Non-hazardous Materials Truck Shipment Accidents/
Incidents, March 2001, prepared for FMCSA by Battelle (http://www.fmcsa.dot.gov/Pdfs/HMRiskFinalReport.pdf
).
4. Endangered Species
a. Responsibilities. If an action involving a construction activity
is proposed, the following requirements apply.
(1) During the scoping process, the responsible FMCSA official must
request from the Regional Directors of the Fish and Wildlife Service
(FWS) and the National Marine Fisheries Services (NMFS), information on
whether any species which is listed, or proposed to be listed, on the
Federal Endangered Species List may be present in the area of a
proposed action.
(2) The responsible FMCSA official must ensure that an action
enhances the continued existence of species' listed as endangered or
threatened and is not likely to jeopardize the continued existence of
such species. If a proposed action may affect any species that is
listed, or is proposed for listing, as an endangered or threatened
species, then the responsible FMCSA official must initiate informal or
formal consultation with the following: Terrestrial Species--Department
of Interior, FWS and for Marine Species--Department of Commerce, NMFS.
Any consultation must be reflected in the resulting environmental
documentation.
(3) When applicable, the responsible FMCSA Official must ensure
that the environmental documentation in the case file includes the
biological assessment, the results of the consultation process, the
analysis of any procedures taken to avoid impacts on the species, and
any other pertinent information to document compliance with this law.
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b. Public and Agency Involvement. The responsible FMCSA official
must coordinate with the FWS and the NMFS regarding the initiation of a
consultation process, as well as to explore the necessity to prepare a
biological assessment, as required by section 7 of the Endangered
Species Act (ESA) (16 U.S.C. 1531, et seq.) and the ESA implementation
regulations (50 CFR part 402). A copy of the EA, EIS, or any other
public notice document prepared for a proposed action affecting, or
potentially affecting, endangered species, must be sent to the
Endangered Species Specialist of the appropriate FWS and NMFS field and
regional offices.
c. Content of NEPA Documentation. Any EA or EIS for a proposed
action must state the presence or absence of endangered species within
the physical area of the action. If endangered species are likely to be
present, the EA or EIS must describe the species, summarize the
potential for effects on the species, and if necessary, summarize the
biological assessment, the results of the consultation process, the
analysis of any procedures taken to avoid impacts on the species, and
any other pertinent information to document compliance with this law.
5. National Historic Preservation Act (NHPA) and Related Executive
Orders
If an action involving a construction activity is proposed, the
following requirements apply.
a. General requirements. The responsible FMCSA official must comply
with the National Historic Preservation Act of 1966, as amended (16
U.S.C. 470, et seq.) (NHPA), the regulations which implement the NHPA
(36 CFR part 800), and E.O. 11593, 36 FR 8291, Protection and
Enhancement of the Cultural Environment. The responsible FMCSA official
must also take into account E.O. 13006, 61 FR 26071, Locating Federal
Facilities on Historic Properties in our Nation's Central Cities, if
the FMCSA action includes locating FMCSA facilities in metropolitan
areas.
b. Responsibilities Under Section 106 of the NHPA.
(1) General. The responsible FMCSA official must comply with the
NHPA Section 106 process regarding historic and cultural resources.
Historic and cultural resources include any district, site, building,
structure, or object significant in American history, architecture,
archaeology, or culture. The regulations setting forth the NHPA Section
106 process were revised and finalized December 12, 2000 and became
effective January 11, 2001 (65 FR 77697), and are codified at 36 CFR
part 800. Citations to the NHPA Section 106 regulations refer to the
regulation published in the December 12, 2000, Federal Register notice
(65 FR 77697). When a FMCSA proposed action triggers the requirements
of Section 106 and NEPA, the Section 106 process must be integrated
with, and conducted concurrently with, any applicable NEPA
environmental analysis, to the extent practicable (40 CFR 1502.25(a);
36 CFR 800.2(a)(4), 800.3(b) and 800.8).
(2) Determine If an Undertaking is Present. Before taking an
action, the responsible FMCSA official must determine if the action is
an ``undertaking'' in accordance with 36 CFR 800.16(y). If the action
is an ``undertaking,'' the responsible official must determine whether
it is a type of action that has the potential to cause effects on
historic properties if historic properties were present (it is
irrelevant whether historic properties are there or not at this point
in the process). If it is a type of action that has the potential to
cause effects on historic properties, then the responsible FMCSA
official must investigate the action area to determine if the action
may actually affect any resources listed, or eligible for listing, on
the NRHP.
Criteria for evaluating eligibility for listing on the NRHP are
given in 36 CFR 60.4. (In brief, 36 CFR 60.4 states that properties of
historical, architectural, or archaeological significance should be
considered for NRHP evaluation if they are associated with events and
persons significant in our past, or that have distinctive character,
artistic values or are the work of a master, or have yielded or are
likely to yield important information in pre-history or history. This
section provides specific criteria and should be referenced.) If the
type of action is one that does not have the potential to cause effects
on historic properties if historic properties were present, then the
responsible official has no further obligations under Section 106.
(3) For Undertakings, Identify the Appropriate SHPO/THPO and
Consult. If an FMCSA action is an undertaking that could affect
historic properties, the responsible FMCSA official must identify the
appropriate State Historic Preservation Officer (SHPO), appropriate
Tribal Historic Preservation Officer (THPO), or appropriate Indian
tribe (36 CFR 800.3(c) and (d)). The responsible official must consult
the appropriate preservation officer or Indian tribe and plan to
involve the public in carrying out and completing the Section 106
process in consultation with the SHPO/THPO (36 CFR 800.3(e)).
(4) Public and Agency Involvement. At all appropriate stages of the
Section 106 process, the responsible FMCSA official must ensure proper
public participation, as required by 36 CFR part 800. The extent of
public involvement will depend upon the specific action and the
historic resources involved. In most cases, the responsible official
must provide the public with information about the undertaking and its
effects on historic properties and seek public comment and input (36
CFR 800.2(d)(2)). Consulting parties should be identified in
consultation with the SHPO/THPO (36 CFR 800.3(f)). Consulting parties
can include the Advisory Council on Historic Preservation; the National
Park Service, Indian tribes, Native Hawaiian Organizations;
representatives of local governments; applicants for Federal
assistance, permits, licenses and other approvals; and individuals and
organizations with a demonstrated interest in the undertaking (36 CFR
800.2(b)-(c)).
c. Content of NEPA Documentation. Unless the NEPA process is being
used to comply with NHPA per 36 CFR 800.8, to the extent practicable,
EAs and EISs for actions that have the potential to, or will,
significantly affect historic properties should summarize the results
of the Section 106 process. The summary should include information on
the presence or absence of historic properties; the significance of
impacts to historic properties; any treatments/mitigation that may be
developed to avoid significant adverse effects on historic properties,
and a summary of the consultation and public notice efforts and
results. The EA or EIS should also include a copy of any action
Memorandum of Agreement/Programmatic Agreement developed in compliance
with Section 106. EAs and EISs must fulfill the requirements of 36 CFR
800.8 when prepared as the main instrument for compliance with Section
106.
6. Wetlands
If an action involving a construction activity is proposed, the
following requirements apply.
a. Responsibilities.
(1) FMCSA actions require compliance with the provisions of
Executive Order 11990, Protection of Wetlands (except as noted in
Section 1(b) of the order); and DOT Order 5660.1A, Preservation of the
Nation's Wetlands.
(2) The responsible FMCSA official must coordinate with the
applicant and the lead Federal agency when applicable, to ensure the
action is
[[Page 9719]]
planned, constructed, and operated to assure the protection,
preservation, and enhancement of wetlands to the fullest extent
practicable.
(3) The responsible FMCSA official must document the effects of
each action on wetlands in accordance with DOT Order 5660.IA.
b. Public and Agency Involvement. Appropriate opportunity for early
review of proposals for new construction in wetlands should be provided
to the public and to agencies with special interest in wetlands. When
applicable, the public notice must state the acreage of wetlands taken
or impacted. This will include the U.S. Fish and Wildlife Service,
State wildlife and/or natural resources agencies, and other parties as
appropriate.
c. Content of NEPA Documentation. Information developed in
accordance with DOT Order 5660.IA, along with the ``Wetlands
Findings,'' must be included in either the EA, EIS, or in the
Environmental Analysis Checklist and/or CED if required. Any measures
included with the proposed action to protect wetlands must also be
summarized.
7. Determinations Under Section 4(f) of the DOT Act [49 U.S.C. 303(c)]
If an action involving a construction activity is proposed, the
following requirements apply.
a. Responsibilities.
(1) Section 4(f) of the DOT Act states that ``The Secretary must
not approve any program or action which requires the use of any land
from a public park, recreation area, wildlife and waterfowl refuge, or
historic site unless: (A) there is no feasible and prudent alternative
to the use of such land; and (B) such program includes all possible
planning to minimize harm to such park, recreation area, wildlife and
waterfowl refuge, or historic site resulting from such use.''
Furthermore, direct use of the land is not the sole qualifier for
considering 4(f). Should the action be in close proximity to affect the
lands in question, one will normally prepare a 4(f) statement. See, DOT
Order 5610.1C, for further direction.
(2) The responsible FMCSA official must ensure that Section 4(f)
statements and determinations are prepared per Section 4(f) of the DOT
Act of 1966, as amended (49 U.S.C. Section 303), and Section 12 of DOT
Order 5610.1C.
(3) A 4(f) analysis consists of an investigation by the responsible
FMCSA official who determines if there is use of 4(f) property. Even
when there is no direct use of a 4(f) property, an analysis supporting
this finding must be prepared. When there is use of 4(f) property, a
4(f) statement is required. Based on this 4(f) statement, a 4(f)
determination will be prepared for signature by the appropriate area
and district or Administrator level official. The 4(f) determination
may be made part of the 4(f) statement.
b. Integration of 4(f) Statement with EISs. Originators of EISs for
FMCSA actions requiring determinations under section 4(f) of the DOT
Act must incorporate the required 4(f) determination in the EIS. The
form and content of 4(f) statements, and data needed to support the
4(f) determinations and conclusion are contained in Appendix 13.
c. Public and Agency Involvement. The responsible FMCSA official
must give the official having jurisdiction over the section 4(f)
property, the Department of Interior, and as appropriate, the
Department of Agriculture and the Department of Housing and Urban
Development an opportunity to review all draft section 4(f) statements.
When the 4(f) statement is contained within an EIS, consultation with
the departments must be performed in accordance with procedures for
review of the draft EIS. When the 4(f) statement is associated with a
FONSI, the statement must be sent to the above Departments for review,
using the same procedures and points of contact as used for an EIS.
d. Legal Review. District legal officers must provide legal
sufficiency review of FMCSA section 4(f) determinations for actions
that originate within their area. The Office of Chief Counsel must
provide final legal sufficiency review of all other FMCSA section 4(f)
determinations.
e. Approval of 4(f) Statements. The responsible FMCSA official has
the authority to approve 4(f) statements.
8. Other
This section does not cover all environmental and historic and
cultural resource mandates that may fall under the umbrella of the NEPA
environmental planning process. For a more complete list of
environmental and historic and cultural resource laws, consult Appendix
16.
[FR Doc. 04-4338 Filed 2-27-04; 8:45 am]
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