![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
National Environmental Policy Act Implementing Procedures
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: September 26, 2003 (Volume 68, Number 187)]
[Notices]
[Page 55713-55732]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se03-120]
-----------------------------------------------------------------------
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 proposed order; request for comments.
-----------------------------------------------------------------------
SUMMARY: The FMCSA is publishing for public comment its draft 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 draft 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.
DATES: Submit comments on or before November 10, 2003.
ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FMCSA-2002-14095 by any of the following methods:
? Web Site: http://dms.dot.gov. 
Follow the instructions
for submitting comments on the DOT electronic docket site.
? Fax: 1-202-493-2251.
? Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
? Hand Delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC, between 9 am and 5
pm, Monday through Friday, except Federal Holidays.
? Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://dms.dot.gov, including any personal
information provided. Please see the Privacy Act heading for further
information.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to
Room PL-401 on the plaza level of the Nassif Building, 400 Seventh
Street, SW., Washington, DC, between 9 am and 5 pm, Monday through
Friday, except Federal Holidays.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.
Comments received after the comment closing date will be included
in the docket and we will consider late comments to the extent
practicable. The FMCSA may, however, issue a final FMCSA environmental
Order at any time after the close of the comment period.
FOR FURTHER INFORMATION CONTACT: Ms. LaKisha R. Pearson or Mr. David R.
Miller, Office of Policy, Plans, and Regulations (MC-PR), FMCSA, U.S.
Department of Transportation, 400 Seventh St, SW., Washington, DC
20590-0001. Telephone: (202) 366-6408.
SUPPLEMENTARY INFORMATION:
Background
The FMCSA was established within the Department on January 1, 2000,
pursuant to the Motor Carrier Safety Improvement Act of 1999 (Public
Law No. 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). Additional functions
inherited from the FHWA relating to registering motor carriers
operating in interstate and foreign commerce were 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)).
Implementation of FMCSA's NEPA Order
It is necessary for FMCSA to issue its own implementing procedures
for carrying out its responsibilities under NEPA, 42 U.S.C. 4321, et
seq., as amended. FMCSA is soliciting public comments on the draft
procedures before making this environmental procedures Order final.
Except for most of the appendices, the full text of the draft Order is
being published for public
[[Page 55714]]
comment. Proposed Appendix 2 relating to categorical exclusions is
being published in full text because of its potential interest to the
public. An electronic version of the complete proposed Order including
all proposed appendices is available at http://dms.dot.gov.
Reference the docket number at the heading of this document. To request a
copy of the draft Order by mail, please contact the person listed under
FOR FURTHER INFORMATION CONTACT.
The proposed FMCSA NEPA Order would establish 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.
The FMCSA proposes to 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. It will also
be used, 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 proposed FMCSA Order supplements DOT Order 5610.1C, as
amended. It is important that persons using the proposed FMCSA Order
refer to those sections of the DOT Order 5610.1C, as amended, 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 proposed FMCSA Order would apply to all FMCSA actions including
the decision to conduct research activities, promulgate regulations,
award grants, and conduct major acquisitions.
An area of particular significance is Appendix 2 that contains
FMCSA's proposed ``categorical exclusions.'' As defined by the CEQ, a
``categorical exclusion'' or ``CE'' means a category of actions which
do not individually or cumulatively have a significant effect on the
environment and for which, therefore, neither an EA nor an EIS is
required. In Appendix 2, the FMCSA has provided a detailed description
of FMCSA actions and activities that FMCSA believes should be entitled
to a ``categorical exclusion'' from NEPA review. The use of a CE is
intended to reduce paperwork and delay by eliminating the unnecessary
preparation of EAs and EISs.
In developing FMCSA's list of proposed CEs, the FMCSA has collected
certain documentation over a period of time showing that these actions
do not typically have the potential to create significant environmental
impacts. This supporting documentation consists of the following:
1. Motor carrier historical perspective explaining how no
environmental documentation was required for years in motor carrier
licensing proceedings or rulemakings with no potential for significant
environmental impacts.
2. Copies (or data) of rulemaking actions published in the Federal
Register where the public had no objection to their implementation
based on environmental grounds.
3. CE determinations by other modal administrations, explaining the
reasons why similar actions were so classified.
4. Written statements from FMCSA staff indicating that these
actions should be classified as CEs.
5. Other pertinent environmental assessments, studies, etc.
Many of FMCSA CE determinations are based on the evaluations of
similar actions of the former ICC and other current and former DOT
modal administrations, such as, the United States Coast Guard, the
Federal Aviation Administration, the Federal Railroad Administration,
and the Federal Highway Administration. The FMCSA's use of categorical
exclusions will reduce excessive and needless paperwork for agency
actions that have proven to have no potential for significant
environmental impacts.
The following is a brief description of the appendices that are not
published in full text in this document:
1. Proposed Appendix 1 contains an environmental checklist designed
to help FMCSA officials determine the proper level of NEPA analysis and
to identify areas of potential problems and concern.
2. As stated, proposed Appendix 2, FMCSA Categorical Exclusions, is
set forth in full text in this notice.
3. Proposed Appendix 3 lists the FMCSA regulatory actions that are
typically subject to an environmental assessment.
4. Proposed Appendix 4 contains the sample format of the document
FMCSA will use to give public notice of a categorical exclusion
determination.
5. Proposed Appendix 5 is a sample format for an environmental
assessment cover sheet.
6. Proposed Appendix 6 is a sample format for an environmental
assessment document.
7. Proposed Appendix 7 is a sample format for a Finding Of No
Significant Impact.
8. Proposed Appendix 8 is a sample format for an FMCSA notice of
intent to prepare an environmental impact statement.
9. Proposed Appendix 9 is a sample format for a cover sheet for an
FMCSA Environmental Impact Statement.
10. Proposed Appendix 10 is a sample format for an FMCSA notice
used when a draft, supplemental, or final Environmental Impact
Statement is published in full text in the Federal Register.
11. Proposed Appendix 11 is a sample format for a notice announcing
the availability of a draft, supplemental, or final Environmental
Impact Statement.
12. Proposed Appendix 12 is a sample format for an FMCSA Record of
Decision notice announcing that FMCSA has published a Final
Environmental Impact Statement.
13. Proposed Appendix 13 contains instructions for a Department
statement under section 4(f) of the Department of Transportation Act
(49 U.S.C. 303(c)). This section requires DOT to make special effort to
preserve the natural beauty of the countryside, public parks, and
recreation lands, wildlife and waterfowl refuges, and historic sites.
The proposed instructions would supplement the 4(f) requirements of
Attachment 2 to DOT Order 5610.1(C).
14. Proposed Appendix 14 contains guidance on the appropriate level
of air quality analysis needed for each FMCSA action.
15. Proposed Appendix 15 contains instructions on the CEQ
requirements for distribution of environmental impact statements. The
proposed appendix addresses draft, final, and supplemental EIS
documents and notices of hearings and meetings related to those
documents.
16. Proposed Appendix 16 contains a list of relevant environmental
statutes and Executive Orders.
17. Proposed Appendix 17 contains a flow chart/decision tree
depicting FMCSA's NEPA review process.
18. Proposed Appendix 18 contains information that supplements
Chapter 2 of the proposed Order dealing with special areas (e.g.,
hazardous materials, endangered species, etc.) that must be considered
when implementing NEPA.
The FMCSA encourages full public participation during the comment
period. Comments submitted will be considered in preparing a final
FMCSA environmental Order.
[[Page 55715]]
Proposed Order
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--M 5610.1
Office of primary interest--MC-PR (Office of Policy, Plans, and
Regulations)
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 and 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 (MC-P).
3. Heads of Headquarters Offices and Divisions.
4. The Office of Administration (MC-M).
5. The Office of the Chief Counsel.
6. FMCSA Program Staff.
7. Field Operations Service Center Administrators.
8. Heads of Units, Divisions, and Offices.
9. The Field Environmental Quality Advisor (FEQA).
10. 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 (See 40 CFR 1506.5).
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.
Appendix 2--FMCSA Categorical Exclusions (CE)
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
[[Page 55716]]
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
shall 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 prevent commercial motor vehicle-related fatalities and
injuries. Administration activities contribute to ensuring safety in
motor carrier operations through strong 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 interest groups; and others.
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 manufacture, operation, or disposal of
commercial motor vehicles or commercial motor vehicle equipment.
[[Page 55717]]
e. Any action that may directly, indirectly, or cumulatively result
in a significant increase in the problem of 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. 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 legislative proposals.
Actions do not include bringing judicial or administrative civil or
criminal enforcement actions. See 40 CFR 1508.18(a). Examples of
judicial or administrative civil or criminal enforcement actions would
be 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:
a. 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,
b. To issue an appropriate Order to compel compliance with the
statute or regulation, assess a civil penalty, or both if such
violations are found.
2. These environmental procedures also apply to all non-
Departmental applications to FMCSA for a permit, grant, certification,
award, license, approval, or other similar action. For major categories
of FMCSA actions involving a large number of applicants, the
appropriate Program Office shall prepare and make available generic
guidance describing the recommended level and scope of environmental
information that applicants should provide. The appropriate Program
Office shall also begin the NEPA review and planning processes as early
as possible after receiving an application for items described above,
advising any potential applicants to 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
CZMA 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
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
NRCS Natural Resources Conservation Service
NRHP National Register of Historic Places
NSPS New Source Performance Standard
PCB Polychlorinated Biphenyls
PL 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)
[[Page 55718]]
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). The
Administrator delegates the following:
(1) With the exception of highly controversial EISs (as defined by
Section 11.d of DOT Order 5610.1C), 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.
2. NEPA Liaison--Associate Administrator for Policy and Program
Delivery (MC-P)
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
[[Page 55719]]
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 (MC-M)
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-RIA (Office of
Data Analysis and Information Systems that would be responsible for
acquiring a contractor for environmental support), 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. 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.
(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.
7. 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
[[Page 55720]]
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.
8. 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.
9. 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.
10. 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 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 the appropriate level of NEPA
analysis and documentation required.
Step 3: Program staff and the FEQA, in consultation with the NEPA
Liaison (or designee), 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, 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.
[[Page 55721]]
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 also consult with DOT's Office
of the Assistant Secretary for Transportation Policy (P-1) to discuss
alternative arrangements in such emergency situations.
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 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, and local) must be notified in writing
and invited to participate in the NEPA process. Any other parties
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 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 to cover all undertakings
that may have environmental impacts. See Section D.1. of this chapter
for examples. Environmental analysis and documentation for proposed
actions are to be completed before initiation of the action.
For major actions, the EIS tiering as discussed in the CEQ
regulation (40 CFR 1502.20) may be appropriate (e.g., actions involving
regulations on hours-of-service of drivers and hazardous materials).
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 including the
decision to conduct research activities (research, development, test,
and evaluation); promulgate regulations; award grants and permits;
change operations; conduct major acquisitions; and decommission FMCSA
facilities or equipment (such as noise pollution or radioactive
monitoring equipment).
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
[[Page 55722]]
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) Is reasonably likely to create 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 would
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, or where the
proposed action results in the requirement to develop or amend a Spill
Prevention, Control, or Countermeasures Plan.
(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. Also, reasonable initiation of 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). (Section 303(c) of Title 49 U.S.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, 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. When the specific CE requires that a checklist be completed, an
Environmental Checklist (Appendix 1) will be completed and used to
substantiate the use of the 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) must be prepared when
a CE will be relied on to promulgate a regulation that requires an
environmental checklist. Checklists and CEDs supplementary to the
requirements of this Order may be developed by subordinate commands for
specific types of actions. Those documents must be approved by the
Administrator before they are adopted for use.
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 provide:
(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:
(A) Context(s) in which effects may occur.
(B) Intensity of effects, using the Environmental checklist as an
outline, and including mitigation measures
[[Page 55723]]
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
it is uncertain 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 areawide
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 assessed in an environmental assessment where a finding
of no significant effect is not made.
(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.
(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
[[Page 55724]]
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 Secretary or
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.
(B) 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
FMCSA 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 FMCSA official must distribute
the ROD to appropriate agencies, organizations, individuals, and FMCSA
dockets.
7. Agency Responsibility for Documents Prepared by Applicants or
Proponents (See 40 CFR 1506.5)
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/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 Contracting Officer's (CO) call. 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
[[Page 55725]]
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 CO's call.
(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.
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. 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
[[Page 55726]]
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.12. 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 decision-maker 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, 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.
(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 Executive
Order 12372 entitled, ``The President Intergovernmental Review of
Federal
[[Page 55727]]
Programs.'' (see 47 FR 30959; July 16, 1982).
(B) Publish notice in local newspapers (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 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.
(3) 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).
c. The FMCSA shall solicit appropriate information from the public.
d. The FMCSA shall 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.
e. The FMCSA shall 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 website.
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 or reports on proposed legislation for which the
FMCSA is primarily responsible.
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.
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 of assuming the
[[Page 55728]]
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) Agencies responsible for NEPA analysis are urged to:
(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 their 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.
(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
[[Page 55729]]
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.
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
[[Page 55730]]
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 protected species or habitats 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
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.
f. Establishment of Global Positioning System (GPS), intelligent
transportation systems (ITS), or essentially similar systems that
use overlay of existing procedures.
g. Procedural actions requested by users on a test basis to
determine the effectiveness of new technology and measurement of
possible impacts on the environment.
5. Training
a. Simulated exercises, including tactical and logistical
exercises that involve 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. Establishing the Following Types of Regulations
a. Regulations addressing Civil Rights procedures and guidance.
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 to handle the processing of applications for
operating authority and certificates of registration.
f. Regulations implementing the Motor Carrier Safety Assistance
Program (MCSAP), that provides financial assistance to States to
reduce the number and severity of accidents and hazardous materials
incidents involving commercial motor vehicles (CMVs) for the
following activities:
(1) Driver/vehicle inspections;
(2) Traffic enforcement;
(3) Safety audits; \1\
---------------------------------------------------------------------------
\1\ A ``safety audit'' is an examination of motor carrier
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.
---------------------------------------------------------------------------
(4) Compliance reviews; \2\
---------------------------------------------------------------------------
\2\ A ``compliance review'' is an on-site examination of motor
carrier operations (normally at the carrier's facility), 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.
---------------------------------------------------------------------------
(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 and overhead and 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;
(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 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 \3\ of transportation by motor
vehicles that describe the following activities:
---------------------------------------------------------------------------
\3\ 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.
---------------------------------------------------------------------------
(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
[[Page 55731]]
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,\4\ for the following activities:
---------------------------------------------------------------------------
\4\ ``Household goods'' 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 such other similar property as the FMCSA may
provide by regulation.
---------------------------------------------------------------------------
(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.
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 authorized carriers in the
transportation of property for-hire) with which to perform
transportation regulated by the Secretary;
(2) The leasing of equipment to motor private carriers or
shippers;
(3) The interchange of equipment between motor common carriers
in the performance of transportation regulated by the Secretary;
(4) To provide written lease requirements for authorized
carriers that do not own their transportation equipment; and
(5) 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 preservation of records procedures
for motor carriers and brokers, and household freight forwarders for
the types of records that must be retained and the retention periods
(e.g., until expiration or termination plus 3 years, 3 years, etc.).
r. Regulations implementing controlled substances and alcohol
use and testing procedures designed to help prevent accidents and
injuries resulting from the misuse of alcohol or use of controlled
substances by drivers of commercial motor vehicles and apply to
every person and all employers of such persons 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 waivers, exemptions and reconsiderations, and how it manages
delegations of authority to carry out certain rulemaking
functions.).
y. Regulations implementing general applicability, definitions,
general requirements, and information as they pertain to motor
carriers and commercial motor vehicle drivers.
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 a motor carrier, its officers,
drivers, agents, representatives, and employees directly concerned
with, or in control of a CMV to comply with when they inspect,
repair, and provide maintenance for that vehicle.
bb. Regulations concerning vehicle operation safety standards
(e.g., regulations requiring: certain motor carriers to use approved
equipment which is required to be
[[Page 55732]]
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.
Authority: NEPA, the National Environmental Quality Improvement
Act of 1970, 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: September 22, 2003.
Annette M. Sandberg,
Administrator.
[FR Doc. 03-24426 Filed 9-25-03; 8:45 am]