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Draft Report: Not for Attribution or Quotation

SAFETEA-LU Section 6009 Implementation Study

DRAFT Phase II Report May 2011


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Table of Contents

Table of Contents ........................................................................................................................................... i List of Figures ............................................................................................................................................... ii List of Tables ................................................................................................................................................ ii Abbreviations ............................................................................................................................................... iv Executive Summary ...................................................................................................................................... 1 Introduction ................................................................................................................................................... 3

Background ............................................................................................................................................... 3 Phase I Study Findings .............................................................................................................................. 5 Phase II Report Contents .......................................................................................................................... 6

Phase II Evaluation Methodology ................................................................................................................. 7 Evaluation Approach ................................................................................................................................ 7

Update the de minimis impact determination inventory and report on the feasible and prudent avoidance alternatives standard inventory ............................................................................................ 7 Capture a greater diversity of views regarding impacts of the de minimis impact provision ............... 7 Capture the views of stakeholders on the impacts of the revised feasible and prudent standards ........ 8

Survey Instrument ..................................................................................................................................... 8 Data Quality and Research Limitations .............................................................................................. 10

Inventories................................................................................................................................................... 12 De minimis Impact Determination Inventory .......................................................................................... 12 Evaluations Inventory ............................................................................................................................. 16

Survey Results ............................................................................................................................................ 19 De minimis Impact Provision Survey Results ......................................................................................... 20

Efficiencies Resulting From the de minimis Impact Provision........................................................... 20 Post-Construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the de minimis Impact Provision ........................................................................................................ 23

Feasible and Prudent Avoidance Alternative Standards Survey Results ................................................ 26 Knowledge Level of the Updated Feasible and Prudent Standards .................................................... 27 Section 4(f) Property Protection under the Updated Feasible and Prudent Standards ........................ 27 Post-construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the Updated Feasible and Prudent Standard........................................................................................ 28 Effect of Assessment Criteria on the Determination of Whether an Avoidance Alternative is Feasible and Prudent ......................................................................................................................................... 28 Effect of “Least Overall Harm” Determination Factors ..................................................................... 30

Conclusions ................................................................................................................................................. 32


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De minimis Impact Provision .................................................................................................................. 32 Feasible and Prudent Avoidance Alternative Standards ......................................................................... 33

Appendix A: Phase II Survey Instrument……………………………………………………………….A: 1 Appendix B: Federal Register Notice, Docket No. FHWA-2010-0057, Request for Comments for a New Information Collection, 60-day notice………………………………………………B: 1 Appendix C: Federal Register Notice, Docket No. FHWA-2010-0106, Request for Comments for a New Information Collection, 30-day notice………………………………………………C: 1 Appendix D: Notice of OMB Actions…………………………………………………………………..D: 1 Appendix E: Additional Survey Results………………………………………………………………...E: 1 Appendix F: TRB Phase II Letter Report (forthcoming)

List of Figures

Figure 1. Total Reported Projects with Section 4(f) de minimis Impact Determinations by State, FHWA, FTA and FRA (as of December 2010) ........................................................................................................ 12 Figure 2: Number of de minimis Impact Determinations per Transportation Project (as of December 2010) ....................................................................................................................................................... 13 Figure 3. Projects with de minimis Impact Determinations by Resource Type (as of December 2010) .... 13 Figure 4. Share of de minimis Impact Determinations by NEPA Class of Action (as of December 2010) 14 Figure 5: De minimis Impact Determinations by Project Type, for Highway, Transit and Rail projects combined (as of December 2010) ............................................................................................................... 16 Figure 6. Total Number of Section 4(f) Evaluations, by State (as of December 31, 2010) ........................ 17 Figure 7. Experience with de minimis projects (number of projects) by stakeholder group ....................... 20 Figure 8. De minimis Impact Provision Time Savings Survey Responses ................................................. 21 Figure 9. De minimis Impact Provision Cost Savings Survey Responses .................................................. 22 Figure 10. “Activities, features, and attributes” of the Section 4(f) resource changed ............................... 23 Figure 11. User experience of the Section 4(f) resource has been or will be maintained ........................... 24 Figure 12. Use or demand for the Section 4(f) resource increased ............................................................. 25 Figure 13. Maintains protection of Section 4(f) resources .......................................................................... 25 Figure 14. Effect of the updated feasible and prudent standard on Section 4(f) property protection ......... 28 Figure 15. Effect of the updated feasible and prudent standard on the post-construction effectiveness of impact mitigation and avoidance commitments .......................................................................................... 28 Figure 16. Effect of “least overall harm” determination factors collectively ............................................. 31 Figure 17. Number of projects with a de minimis impact determination, per year – highway, transit, and rail projects.................................................................................................................................................. 32

List of Tables

Table 1. Survey Populations of Interest ........................................................................................................ 9 Table 2. Class of Action, Cost, and Size of Projects with de minimis Impact Determinations (as of December 2010) .......................................................................................................................................... 15 Table 3. Average Cost and Length of de minimis Impact Determinations by Project Type (as of December 2010) ....................................................................................................................................................... 16


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Table 4. Individual Section 4(f) Evaluations by NEPA Class of Action (from April 11, 2008 to December 31, 2010). .................................................................................................................................................... 18 Table 5. Phase II Survey Response Rate by Stakeholder Group ................................................................ 19 Table 6: Knowledge of the updated feasible and prudent standard ............................................................ 27 Table 7. Effect of assessment criteria on the determination of whether an avoidance alternative is feasible and prudent, average scores ........................................................................................................................ 29 Table 8. Effect of “least overall harm” determination factors when considered individually, average scores ....................................................................................................................................................... 30


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Abbreviations

AASHTO American Association of State Highway and Transportation Officials, nonprofit, nonpartisan association representing highway and transportation departments in the 50 states, the District of Columbia, and Puerto Rico

CE Categorical Exclusion, a category of actions which do not individually or cumulatively have a significant effect on the human environment

CFR Code of Federal Regulations, the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government

DOI United States Department of the Interior DOT United States Department of Transportation EA Environmental Assessment, under NEPA, when the significance of impacts of a

transportation project proposal is uncertain, an EA is prepared to assist in making this determination

EIS Environmental Impact Statement, NEPA requires Federal agencies to prepare EISs for major Federal actions that significantly affect the quality of the human environment. An EIS is a full disclosure document that details the process through which a transportation project was developed, includes consideration of a range of reasonable alternatives, analyzes the potential impacts resulting from the alternatives, and demonstrates compliance with other applicable environmental laws and executive orders

FAA Federal Aviation Administration FHWA Federal Highway Administration FR Federal Register, official daily publication for rules, proposed rules, and notices of

Federal agencies and organizations, as well as executive orders and other presidential documents

FRA Federal Railroad Administration FTA Federal Transit Administration NEPA National Environmental Policy Act, signed into law in 1970, NEPA established a

supplemental mandate for Federal agencies to consider the potential environmental consequences of their proposals, document the analysis, and make this information available to the public for comment prior to implementation

OMB Office of Management and Budget Overton Park Citizens to Preserve Overton Park v. Volpe: A decision by the Supreme Court of the

United States that established the basic legal standard for compliance with Section 4(f)

PRA The Paperwork Reduction Act of 1995 requires that agencies receive Office of Management and Budget clearance before requesting most types of information from the public ("information collections")

SAFETEA-LU

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, authorizes the Federal surface transportation programs for highways, highway safety, and transit for the 5-year period 2005—2009


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Section 4(f) United States Department of Transportation Act of 1966, Section 4(f), the statute that protects public parks, recreational areas, wildlife and waterfowl refuges, and public and private historical sites from use by proposed transportation projects

Section 106 National Historic Preservation Act of 1966, Section 106, requires Federal agencies to take into account the effects that their Federally funded activities and programs have on significant historic properties

Section 6009 SAFETEA-LU Section 6009 Parks, Recreation Areas, Wildlife and Waterfowl Refuges and Historic Sites, made the first substantive revision to Section 4(f) since the 1966 US Department of Transportation Act

SHPO State Historic Preservation Officer, administer the national historic preservation program at the State level, including Section 106

THPO Tribal Historic Preservation Officer, assumes the responsibilities of the SHPO for purposes of Section 106 compliance on tribal lands

TRB Transportation Research Board, one of six major divisions of the National Research Council


SAFETEA-LU Section 6009 Implementation Study, Phase II Draft Report 1

Executive Summary

This document, the Phase II Report–May 2010 (Phase II), presents findings from the second of two study phases by the U.S. Department of Transportation (DOT) to assess the implementation of Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Section 6009 of SAFETEA-LU amended Section 4(f) to: (1) provide a simplified approval process of projects that have de minimis impacts on Section 4(f) property (de minimis impact, in general terms, means that the use of the transportation project will not adversely affect the activities, features, and attributes of the Section 4(f) property; and (2) clarify the factors considered and the standards applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties. Phase I, which was published in February 2010, evaluated how the de minimis impact provision had been applied nationwide during its first three years of implementation. The report also reviewed the implementation process that DOT used to clarify the factors to consider and standards to apply for determining the prudence and feasibility of alternatives to avoid the use of a Section 4(f) property. During development of Phase I, DOT determined that sufficient information was not be available at the time to adequately evaluate the implications of the new prudent and feasible standards since the regulations implementing them had only been in effect for approximately six months. Based on this fact, along with recommendations for strengthening the Phase I findings that the Transportation Research Board (TRB) provided, DOT conducted a survey on the implementation of Section 6009 and its amendments for the Phase II study. Phase II provides an update to the de minimis impact provision evaluation, as well as an assessment of the application of the new prudent and feasible standards. The Phase II study findings are based on a two-section survey designed to collect information on both the de minimis impact provision and the revised feasible and prudent avoidance alternative standards. A total of one hundred twenty-eight individuals from four stakeholder groups—Federal transportation agencies, project sponsors, officials with jurisdiction over Section 4(f) resources, and citizen/advocacy groups—responded to the survey. Although each stakeholder group was equally targeted (i.e. no one group’s views were valued or sought any more than the others), the survey response rate across the four groups varied significantly. Fifty-nine respondents (84 percent) to the de minimis impact determination portion of the survey were Federal transportation agency or project sponsor staff (transportation officials). In comparison, the study team received 10 responses from officials with jurisdiction over Section 4(f) resources and one response from a citizen/advocacy group. For the feasible and prudent avoidance alternatives standards portion of the survey, 77 of the respondents (94 percent) were transportation officials, four were from officials with jurisdiction, and one was from a citizen/advocacy group. Based upon analysis of the Phase II survey results, DOT concludes the following: De minimis Impact Provision

• The Phase II survey results support the efficiency findings reported in Phase I. The majority of transportation officials (80 percent of Federal transportation agency respondents and 86 percent of project sponsor respondents) responding to the Phase II survey share the perception that the de minimis impact provision has improved the timeliness for completing transportation projects. Several transportation officials reported that the process associated with making a de minimis



impact determination often generates similar outcomes as would be reached with alternative processing options; yet, the de minimis impact provision often provides for a more streamlined process for achieving those outcomes. Similarly, the majority of transportation officials (56 percent of Federal transportation agency respondents and 62 percent of project sponsor respondents) reported that the de minimis impact provision has reduced the costs associated with completing a project. The majority of officials with jurisdiction did not have information on which to base an answer on the time and cost efficiencies (50 percent and 80 percent, respectively) associated with the de minimis impact provision. The one citizen/advocacy group responding to the survey reported that the de minimis impact provision does not result in time or cost savings.

• The majority of transportation professionals (67 percent of Federal transportation agency

respondents and 56 percent of project sponsor respondents) responding to the Phase II survey reported that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options. Overall, the officials with jurisdiction perceive that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options. However, given the small number of officials with jurisdiction responding to the survey, it is not possible to generalize the feedback collected from these individuals to the larger population.

Feasible and Prudent Avoidance Alternative Standards

• The Phase II survey results suggest that the new feasible and prudent standard protects Section 4(f) resources at least to the same degree they were protected before the feasible and prudent avoidance alternative definition was revised. Generally, Federal transportation agency and project sponsor respondents agreed that the new standard was helpful in articulating what constitutes a feasible and prudent alternative but that it had not had any substantial effect, positive or negative, on the Section 4(f) resources.

• A third of Federal transportation agency and project sponsor respondents indicated that the new feasible and prudent standard had no effect on the post-construction effectiveness of impact mitigation and avoidance commitments. Half of the officials with jurisdiction respondents indicated that the effectiveness of post-construction impact mitigation and avoidance commitments had decreased. However, it is not possible to generalize the feedback collected from these individuals to the larger population due to the small number of officials with jurisdiction that responded to the question.

• Ten assessment criteria intended to help clarify the determination of whether an avoidance alternative is feasible and prudent were developed as a part of the Final Rule. According to survey results, most respondents from all stakeholder groups believed that each assessment criterion had clarified the determination of whether an avoidance alternative is feasible and prudent.

• The Final Rule includes a “least overall harm” determination that balances seven factors, which are to be used when all alternatives result in the use of Section 4(f) property and there is no feasible and prudent alternative that avoids a Section 4(f) use. Survey respondents from all stakeholder groups generally agreed that the opportunity to weigh the factors has had a very positive effect on determining which alternative has the least overall harm.



Introduction

The purpose of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) Section 6009 Phase II Implementation Report is to provide Congress, the United States Department of the Interior (DOI), and the Advisory Council on Historic Preservation with an update on the implementation of the de minimis impact provision and an evaluation of the implementation of the revised feasible and prudent avoidance alternative standards. The study does not intend to serve as a legal audit of compliance. This Phase II report, in combination with the Phase I report, fulfills the requirement for the Secretary to study the implementation of the Section 6009 provisions.

Background

Established in the U.S. Department of Transportation Act of 1966, Section 4(f) protects publicly owned parks, recreational areas, wildlife and waterfowl refuges, and public and private historical sites from use by transportation projects unless the United States Department of Transportation (DOT) determines that there is no feasible and prudent avoidance alternative and that all possible planning to minimize harm has occurred. Next to the National Environmental Policy Act (NEPA), Section 4(f) has been the most frequently litigated environmental statute in the Federal Highway and Transit Program.1

In 2005, Section 6009 of SAFETEA-LU made the first substantive revision to Section 4(f) since its inception. Section 6009(a) simplified the process and approval of projects that have only de minimis impacts on lands impacted by Section 4(f). Under the new provisions, once the U.S. DOT determines that a transportation use of Section 4(f) property results in a de minimis impact, analysis of avoidance alternatives are not required and the Section 4(f) evaluation process is complete. A de minimis impact, in general terms, means that the use of the transportation project will not adversely affect the activities, features, and attributes of the Section 4(f) property. Section 6009(b) of SAFETEA-LU required the DOT to promulgate regulations to clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties. In March 2008, the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) published a Final Rule2

• It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need;

that defines a "feasible and prudent" avoidance alternative as one that "avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property." The definition emphasizes that the use of Section 4(f) property is to be balanced against competing factors, with a "thumb on the scale" in favor of preserving the Section 4(f) property. The competing factors must pose the threat of severe problems or impacts. The definition describes an alternative as not feasible if it cannot be constructed on the basis of sound engineering judgment. The Final Rule defines an alternative as "not prudent" if:

• It results in unacceptable safety or operational problems; • After reasonable mitigation, it still causes:

o Severe social, economic, or environmental impacts; o Severe disruption to established communities;

1 Center for Environmental Excellence. Case Law Updates available at http://environment.transportation.org/clue/. 2 Federal Register. Vol. 73, No. 49

http://environment.transportation.org/clue/�



o Severe disproportionate impacts to minority or low income populations; or o Severe impacts to environmental resources protected under other Federal statutes;

• It results in additional construction, maintenance, or operational costs of an extraordinary magnitude;

• It causes other unique problems or unusual factors; or • It involves multiple factors of those listed above, that while individually minor, cumulatively

cause unique problems or impacts of extraordinary magnitude. The Final Rule also outlines clear criteria for selecting the alternative that causes the least overall harm. For projects where all of the reasonable alternatives involve some use of Section 4(f) property, the Final Rule lists factors that are to be balanced and weighed when making a decision as to which alternative will cause the least overall harm. The least overall harm alternative is determined by balancing the following factors:

• The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property).

• The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection.

• The relative significance of each Section 4(f) property. • The views of the official(s) with jurisdiction over each Section 4(f) property. • The degree to which each alternative meets the purpose and need for the project. • After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by

Section 4(f). • Substantial differences in costs among the alternatives.

SAFETEA-LU Section 6009(c) required the DOT to conduct a study and issue a report on the implementation of the new Section 4(f) provisions and requirements. Specifically, Section 6009(c) stipulated that the following should be evaluated:

• “The processes developed under [Section 6009] and the amendments made by this section and the efficiencies that may result;”

• “The post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects conducted” under Section 6009 and its amendments; and,

• “The quantity of projects with impacts that are considered de minimis under this section and the amendments made by this section, including information on the location, size, and cost of the projects.”3

As required in Section 6009 of SAFETEA-LU, the DOT conducted the implementation study in two phases. The Phase I study focused primarily on evaluation of the de minimis impact provision and the progress made in its implementation.4

3 Excerpted from SAFETEA-LU Sec. 6009. Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites, Stat. 1877, p. 119.

There was not sufficient information available at the time the Phase I analysis was being conducted to allow an evaluation of the implementation of the Section 4(f) Final Rule on the feasible and prudent avoidance alternative standards. The Final Rule was effective on April 11, 2008, and very few, if any, Section 4(f) evaluations had been completed under the new regulations. As

4 The Phase I Report is available at www.environment.fhwa.dot.gov/4f/Section_6009Study/index.asp.

http://www.environment.fhwa.dot.gov/4f/Section_6009Study/index.asp�



a result, Phase I presented a review of the process used to develop the Final Rule and discussed how the standards were clarified.

Phase I Study Findings

Phase I addressed the first three years of implementation from August 10, 2005 to November 1, 2008. The study team sought to identify the effectiveness and efficiencies that have resulted from implementation of the Section 6009(a) amendments (the de minimis impact provision). The terms efficiency and effectiveness in terms of de minimis impact provision are defined as:

Efficiency. The time and cost savings derived from de minimis impact determinations versus conducting and documenting alternative Section 4(f) processes.

Effectiveness. Maintaining protection of the Section 4(f) resource in the presence of the transportation project.

In order to identify the efficiencies and effectiveness resulting from implementation of the Section 6009 amendments, the study team interviewed stakeholders from 51 organizations across four groups: federal transportation agencies, project sponsors, officials with jurisdiction, and citizen/advocacy groups. This sample captured the range of variation among de minimis impact projects. The study team found that the majority of transportation agencies do not collect data regarding the duration or costs associated with the Section 4(f) processes. Given the lack of quantitative data on the duration of and costs associated with the Section 4(f) process, it was not possible to measure the time and costs savings attributable to the de minimis impact provision. However, the majority of transportation officials (79 percent) surveyed as part of the Phase I implementation study shared the perception that the de minimis impact provision has reduced the amount of time necessary to comply with Section 4(f). Furthermore, 57 percent reported that application of the de minimis impact provision has decreased the cost associated with fulfilling the Section 4(f) requirements. Some of the transportation agencies and officials with jurisdiction participating in the study found that use of the de minimis impact provision increased their coordination. The result was that the transportation agencies learned more about the activities, features, and/or attributes of the Section 4(f) resources, which provided information and an incentive to design projects sensitive to those elements in order to make a de minimis impact determination. Officials with jurisdiction participating in the Phase I interviews did not perceive time and cost savings; however, none reported that the de minimis impact provision had created additional work or increased the length of time needed to fulfill their Section 4(f) responsibilities. While not directly experiencing efficiency gains, officials with jurisdiction reported benefiting from the transportation agencies’ motivation to protect the resource knowing that a de minimis impact determination could mean a streamlined transportation project. The Phase I evaluation results suggested that the de minimis impact provision provides a common sense approach to fulfilling the Section 4(f) requirements for projects that clearly have no adverse impact on the Section 4(f) resources. The Phase I evaluation results suggest that the de minimis impact provision can enable transportation agencies to better balance the delivery of transportation projects with protection of public owned parks, recreation areas, wildlife and waterfowl refuges, and public and private historical sites. In addition, for the sample analyzed, the de minimis impact provision has primarily simplified the fulfillment of Section 4(f) requirements, particularly in cases where the official with jurisdiction initiates or sponsors the transportation project. In such cases, the managers of the resource desire the Section 4(f) use, as it results in an improvement to the resource.



Phase II Report Contents

In addition to this introductory section, this Phase II report consists of four primary sections: Phase II Evaluation Methodology describes the approach the study team took to conduct the analysis upon which the Phase II report findings are based. The section also includes information on data quality and research limitations for both the de minimis impact determination and feasible and prudent analyses. Inventories provides information on (1) projects with impacts that are considered de minimis, including information on projects’ location, type, and cost, and (2) the number of Section 4(f) evaluations, including project location information, that have been processed under the updated regulations. The de minimis impact determination inventory includes projects from 2005 (when SAFETEA-LU was adopted) through December 2010, while the Section 4(f) evaluations inventory includes project information from March 2008 through December 2010. Survey Results provides results from the stakeholder responses to the U.S. DOT’s two-section survey, which collected information on the de minimis impact provision and the revised feasible and prudent avoidance alternative standards. The final section, Conclusions, presents a discussion of the results from the survey and, where sufficient data are available, provides a comparison with Phase I results. Several appendices are also incorporated as references, including:

• Appendix A: Survey instrument for the de minimis impact provision evaluation and the feasible and prudent avoidance alternative evaluation

• Appendix B: Federal Register Notice, Docket No. FHWA-2010-0057, Request for Comments for a New Information Collection, 60-day notice

• Appendix C: Federal Register Notice, Docket No. FHWA-2010-0106, Request for Comments for a New Information Collection, 30-day notice

• Appendix D: Notice of OMB Action

• Appendix E: Additional Survey Results

• Appendix F: TRB Phase II Letter Report



Phase II Evaluation Methodology

Evaluation Approach

Phase II provides an update on the implementation of the de minimis impact provision and an evaluation of the implementation of the Final Rule on feasible and prudent avoidance alternative standards. The Phase II study methodology addresses the following goals:

1. Update the analysis of FHWA, FTA and Federal Railroad Administration (FRA) databases of projects with de minimis impact findings to identify any changes in national trends and patterns since Phase I and analyze the number of Section 4(f) evaluations developed since the updated feasible and prudent alternative standards were issued.

2. Capture a greater diversity of views regarding impacts of the de minimis impact provision; and

3. Capturing the views of stakeholders on the impacts of the revised feasible and prudent standards.

Update the de minimis impact determination inventory and report on the feasible and prudent avoidance alternatives standard inventory

Since 2005, FHWA, FTA and FRA have collected data from their field offices on projects where a de minimis impact determination has been made. Data collected from each office is compiled and saved in a spreadsheet (hereafter referred to as the “inventory”). The inventory includes information on project name, location, cost, size, NEPA class of action, type of Section 4(f) resource(s) impacted, number of de minimis impact determinations, nature of the de minimis impact and any associated mitigation, date of the Section 4(f) de minimis impact determination, and construction start and end dates. The U.S. DOT does not maintain a comprehensive inventory of projects that require a Section 4(f) evaluation. The study team relied upon data collected by the DOI for FHWA and FTA. The DOI maintains a Section 4(f) database for all individual Section 4(f) evaluations that the DOI reviews. Information captured includes the date DOI received the Section 4(f) evaluation, the NEPA class of action, and the date the DOI reviewed the evaluation. The DOI data do not include information on the Section 4(f) related time, cost or outcomes, nor does DOI collect information regarding de minimis impact determinations or programmatic Section 4(f) evaluations.

Capture a greater diversity of views regarding impacts of the de minimis impact provision

In its review of the Phase I study, the Transportation Research Board (TRB) commented that a larger sample size5

5 In the Phase I study 25 projects were selected for evaluation.

and greater diversity across the sampling units might have yielded results from which stronger inferences could be made. In order to collect a greater diversity of viewpoints, in particular in regards to non-transportation officials and user groups, on the effects of the de minimis impact provision, the study team designed an online survey instrument for Phase II to (1) collect information regarding the post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects where a de minimis impact determination was made, and (2) gather quantifiable data regarding cost and time savings associated with the de minimis impact provision. The study team sought to collect feedback from all identified individuals who had first-hand project level experience with projects for which a de minimis impact determination was made.



Capture the views of stakeholders on the impacts of the revised feasible and prudent standards

The U.S. DOT does not collect information on the total number of draft and final Section 4(f) evaluations that have been completed since the implementation of the Section 4(f) Final Rule on the feasible and prudent avoidance alternatives standards. As a result, the study team designed a survey instrument to (1) collect information on Section 4(f) evaluations that have been completed under the new regulations, and (2) capture the opinions of respondents as to their understanding and use of the revised feasible and prudent standards and how the Final Rule has clarified their determinations of avoidance alternatives and alternatives with the least overall harm. The study team sought to include input from all individuals who had first-hand project level experience with the application of the new feasible and prudent avoidance alternatives standards.

Survey Instrument

The study team developed a two-section survey to collect information on both the de minimis impact provision and the revised feasible and prudent avoidance alternative standards (see Appendix A). The survey included close-ended, structured questions designed to produce quantifiable information that could be measured and compared across stakeholder groups. The close-ended questions included multiple choice questions and statements asking respondents to specify their levels of agreement on Likert, or rating, scales. Additionally, the survey provided respondents with the opportunity to provide qualitative information to describe the reason for their answers to the close-ended questions. A team of transportation professionals with environmental policy, statistical and social science research, and research analysis backgrounds developed the survey, which additional transportation professionals reviewed. In accordance with the Paperwork Reduction Act (PRA) of 1995, the U.S. DOT obtained approval from the Office of Management and Budget (OMB) before conducting the survey data collection. As part of the approval process, the FHWA published a Federal Register (FR) notice on June 2, 2010 (see Appendix B) to provide the public with 60 days to comment on the agency’s plans to request OMB clearance for the survey. The FHWA published a second notice in the FR allowing for a 30-day comment period notifying the public that OMB approval is being sought and that comments should be submitted to OMB (see Appendix C). No public comments were received on either FR notice. In October 2010, OMB approved the survey without change (see Appendix D). The population of interest for the survey were stakeholders who had been involved in (1) project(s) where a de minimis impact determination was made and construction of the portion of the project related to the Section 4(f) resource was at least 75 percent complete, and/or (2) project(s) that required a Section 4(f) evaluation (either draft or final) since April 11, 2008. The population of interest included staff from the four stakeholder groups:

1. Federal transportation agencies, 2. State and local transportation agencies and transportation authorities, which are referred to here as

“project sponsors,” 3. Officials with jurisdiction over Section 4(f) properties, including State Historic Preservation

Offices (SHPOs), Tribal Historic Preservation Offices (THPOs), and Federal, state and local agencies with jurisdiction over park, recreation areas, or wildlife and waterfowl refuges, and

4. Citizen/advocacy groups, including user groups and groups interested in historic resources and state and local parks, recreation areas, and wildlife and waterfowl refuges.

The only population of interest for which the study team had contact information were the potential Federal respondents. In order to identify specific contacts for the other populations of interest, the online survey was initially distributed to environmental and legal staff at FHWA Division Offices, Federal Lands Highway Division Offices, FTA Regional Offices, and FRA and Federal Aviation Administration



(FAA) Headquarters. There are 52 FHWA Division Offices, 4 FHWA legal offices, 3 FLH Offices, and 10 FTA Regional Offices. The actual number of possible Federal transportation agency respondents is unknown. The survey was not distributed to individual Federal staff members. Instead, it was distributed to potential respondents via emails to agencies’ email distribution lists. Direct recipients of the email list notifications could have forwarded the survey to other staff, and thus the population of interest could have been larger than the number of email recipients. Eighty-five Federal transportation agency staff members responded to the survey. These Federal survey respondents were asked to identify appropriate points of contact for the three additional stakeholder groups for each project with which they had been involved. All individuals that the Federal survey respondents identified were sent a survey. The project sponsors and officials with jurisdiction identified were also asked to identify appropriate points of contact for each project with which they had been involved. The additional individuals that these survey respondents identified were also sent a survey. One hundred forty individuals from non-federal agencies were identified through this process (see Table 1 for details on the survey population).

Table 1. Survey Populations of Interest

*The number of possible Federal transportation agency respondents is unknown. The number in the table refers to the relevant FHWA Division Offices, FAA and FRA offices, and Federal Lands and FTA regions that the survey was sent to. The study team sent an email to every individual identified within the populations of interest. The email included a web link to the online survey and a hard copy of the survey with its instructions as an attachment for those potential respondents that preferred not to file the survey electronically. In the few cases where the emails were undeliverable (due to an incorrect email addresses or because the individual was no longer with the organization), the study team identified another individual at that agency/ organization to whom the survey was sent. All stakeholder groups initially were given three weeks to complete the survey. A reminder email was sent to individuals who had not completed the survey after two weeks. Individuals who did not complete the survey by the requested due date were sent an additional follow-up email, and the due date to complete the survey was extended two weeks. The study team also made phone calls to the citizen and

Potential Respondents

71*

Project Sponsors 69

57

Transit agency 8

4

Officials with Jurisdiction 59

36

23

Citizen/Advocate Groups 12

SHPOsPark, recreation area, and/or wildlife and waterfowl refuge official

Stakeholder Group

Federal Transportation Agencies (Envrionmental and Legal Staffs)

State DOT

Rail agency



advocate groups who did not complete the survey by the requested date. Individuals who did not complete the survey after the extended due date were considered non-respondents. In addition to conducting surveys, the Phase II methodology initially proposed that the study team would conduct phone interviews to clarify survey responses, collect more detailed information, or develop case studies on select projects, if deemed appropriate. However, the study team ultimately determined that conducting case studies would not provide additional benefits to the research findings. After careful examination of the survey results and comments, the study team determined that additional research was not needed to clarify the information provided by survey respondents. In addition, as noted in TRB’s Phase I Letter Report on the proposed Phase II methodology, it would not be possible to generalize findings from a limited number of case studies. For these reasons, no in-depth case studies with survey respondents were performed.

Data Quality and Research Limitations

Data quality limitations associated with the Phase II study: Quality and Limitations of Inventory Data

• The FHWA, FTA and FRA have relied on their staff to self-report complete and accurate information on de minimis impact determinations. In some cases, the data are incomplete and/or reported to varying degrees of accuracy and detail.

• The DOI noted that their database of Section 4(f) evaluation submittals and related information cannot be guaranteed as completely accurate.

Quality and Limitations of Survey Data

• The only population of interest for which the study team had contact information was the potential Federal respondents. The online survey was initially distributed to environmental and legal staff at FHWA Division Offices, Federal Lands Highway Division Offices, FTA Regional Offices, and FRA and Federal Aviation Administration (FAA) Headquarters in order to identify specific contacts for the other populations of interest. Four FHWA Division Offices and three FTA regional offices did not respond to the survey. As such, project sponsors, officials with jurisdiction, and citizen/advocacy groups from states these divisions and regions represented were not included in the survey.

• There were low response rates for the officials with jurisdiction and citizen/advocacy group respondents when compared to transportation professionals’ responses (see Table 5). Due to the low response rates (25 percent or less), statistical analyses beyond reviewing the descriptive numbers and accompanying comments were not possible, nor is it possible to generalize the feedback collected from these individuals to the larger officials with jurisdiction and citizen/advocacy group populations. These potential respondents’ decisions not to participate in the survey, however, should not be construed as a failure of DOT to offer the opportunity. The study team followed up with potential officials with jurisdiction three times, and citizen/advocacy group respondents four times, which included a personalized phone call, to encourage their completion of the survey. The study team surmised the low response rate could be attributed to a number of factors, including:

• The Federal and project sponsor respondents identified the incorrect official with jurisdiction or citizen/advocacy group persons and/or the potential respondents had not been involved in a project that had applied either the de minimis impact provision or the updated feasible and prudent standard.



• Lack of understanding of or ambivalence toward the de minimis impact provision or updated feasible and prudent standard.

• Minimal role in the de minimis impact determination or the application of the updated feasible and prudent standard.6

• The first question of each survey section was intended to sort those with first-hand experience from those without experience. Individuals indicating that they did not have experience were excluded from the remainder of that section of the survey. However, some respondents indicated that they had experience with the de minimis impact provision and/or the updated feasible and prudent avoidance alternative standards (and thus were not excluded from the survey section) when in actuality the project(s) for which they were responding did not involve a de minimis impact determination or the updated feasible and prudent standards. The survey results reported in this report include these individuals, though for any project specific comments provided by these individuals, their lack of first-hand experience is noted.

• Some respondents did not answer all survey questions. Reasons for non-responses to any given survey items are unknown.

• Due to the limited number of projects (119)7

that have completed a final Section 4(f) evaluation using the revised feasible and prudent standards, the results of the Phase II survey cannot be generalized to the overall population. Instead, findings from the Phase II survey are intended to analyze initial perceptions of the effects of the revised prudent and feasible standards.

Research limitations associated with the Phase II study:

• Some of the Phase II survey questions regarding the efficiencies and effectiveness associated with the de minimis impact provision differed from questions in the Phase I pre-interview questionnaires. As such, a direct comparison between Phase I and Phase II could not be drawn.

6 The first two potential explanations should not have occurred given that points of contact were specified by Federal transportation staff and project sponsors who had presumably worked with the officials with jurisdiction contacts on relevant transportation projects. 7 The 119 projects include those related to Final Environmental Impact Statements, Environmental Assessments (EAs), and Categorical Exclusions (CEs). The DOI inventory did not include information on whether the Section 4(f) evaluations associated with EAs and CEs were draft versus final evaluations.



Inventories

De minimis Impact Determination Inventory

SAFETEA-LU Section 6009(c) required the Secretary of Transportation to prepare a report that evaluated the new provisions in that section of law. The law required that information on the number of projects with Section 4(f) impacts that are considered de minimis, including information on the location, size, and cost of the projects be reported. Since 2005, FHWA, FTA, and FRA have collected data from their offices on the number of projects with Section 4(f) impacts that are considered de minimis. The compiled data, hereafter referred to as the “inventory”, include information on project cost and size, class of action, type of Section 4(f) resource(s) impacted, nature of the de minimis impact and any associated mitigation, date of the Section 4(f) de minimis impact determination, and construction start and end dates. As of December 2010, Section 4(f) de minimis impact determinations had been made for 822 projects. Of these projects, 789 were highway projects (occurring in 47 states and the District of Columbia), 29 were transit projects (occurring in 13 states), and four were rail projects (occurring in three states). Since the Phase I Implementation Study, three states, Delaware, Hawaii, Massachusetts8

, and the District of Columbia, which previously had not had any de minimis impact determinations had such findings. Three states, Arizona, Louisiana and Nevada, along with Puerto Rico continue to have no de minimis impact determinations. Figure 1 illustrates the distribution of projects with de minimis impact determinations by state.

Figure 1. Total Reported Projects with Section 4(f) de minimis Impact Determinations by State, FHWA, FTA and FRA (as of December 2010)

8 The Phase I Implementation Study incorrectly noted that Massachusetts had one de minimis impact finding.



Of the 822 projects, 635 (77 percent) had a single de minimis impact determination.9

One hundred and nine projects (13 percent) had two de minimis impact determinations, and 78 projects (10 percent) had more than two determinations (see Figure 2). This distribution is similar to that reported in Phase I.

Figure 2: Number of de minimis Impact Determinations per Transportation Project (as of December 2010)

Approximately 57 percent (467) of the projects with de minimis impact determinations have been for historic property resources, 26 percent (210) for parks, 9 percent (72) for recreation areas, and 2 percent (20) for wildlife and waterfowl refuges. Approximately 5 percent (38) of the projects with de minimis impact determinations have been made on projects related to both historic properties and a park, less than 1 percent (6) for historic properties and recreation areas, less than 1 percent (6) for park and recreation area, and less than ½ percent (3) for historic properties, park, and recreation area. Figure 3 illustrates these data. The distribution of projects by resource type is similar to that reported in Phase I.

Figure 3. Projects with de minimis Impact Determinations by Resource Type (as of December 2010)

9 Where multiple Section 4(f) resources are present in the study area and potentially used by a transportation project, de minimis impact findings must be made for each individual Section 4(f) resource.

1 de minimis impact

determinations, 77%

2 de minimis impact

determinations, 13%

More than 2 de minimis impact determinations,

10%

Historic, Park and Recreation

0%

Park and Recreation1%

Historic and Recreation

1%Wildlife

Refuge Only2%

Historic and Park5%

Recreation Only9%

Park Only25%

Historic Only57%



Eighty percent (654) of de minimis impact determinations have been made on projects with categorical exclusions (CEs). Environmental assessments (EAs) account for 15 percent (121) of projects, environmental impact statements (EISs) account for 3 percent (28), and re-evaluations account for 2 percent (19) (see Figure 4). The distribution of projects by NEPA class of action is similar to that reported in Phase I.

Figure 4. Share of de minimis Impact Determinations by NEPA Class of Action (as of December 2010)

Table 2 provides a breakdown of project information by number of projects, NEPA class of action, and cost and land area by the type of Section 4(f) resource involved (i.e. historic only, non-historic only, and historic and non-historic), as well as between highway, transit, and rail projects.

Categorical Exclusion

80%

Environmental Assessment

15%

Environmental Impact Statement

3%Re-evaluaiton

2%



Table 2. Class of Action, Cost, and Size of Projects with de minimis Impact Determinations (as of December 2010)

*Not all of the transit projects with both historic and non-historic properties provided cost and/or size information. **No information on the length/size of the rail project concerning the historic property was provided to the study team. The size of the land area of the Section 4(f) de minimis impact use for projects in the inventory has ranged from less than one thousandth of an acre to 51 acres. The average size of the de minimis impact use is 1.15 acres. The median is 0.208 acres. The total project cost for highway projects that had at least one Section 4(f) de minimis impact determination ranged from $27,000 to $2,560,000,000. The median cost for highway projects involving non-historic property resources was $4,063,000; for highway projects involving historic property resources it was approximately $3,200,000; and for highway projects involving both historic and non-historic resources it was $8,000,000. The total project costs for transit projects that had at least one de minimis impact determination ranged from $400,000 to $1,300,000,000. The median cost for transit projects involving non-historic property resources was approximately $382,000,000, and for transit projects involving historic property resources it was $3,100,000. The total project costs for rail projects that had at least one de minimis impact determination ranged from $3,457,000 to $6,359,000. The median cost for rail projects involving non-historic property resources was approximately $4,980,000. The cost for the one rail project involving an historic property resource was $270,000. The distribution of projects with Section 4(f) de minimis impact determinations by highway project type are similar to those reported in Phase I. Bridge rehabilitation/replacement projects account for the largest proportion (23 percent) of the 789 highway projects that have had de minimis impact determinations. Projects classified as “Widening” and “Other” make up the next largest group of projects with de minimis impact determinations (19 percent and 16 percent respectively). For the 29 transit projects and four rail projects, facility construction or rehabilitation and expansion projects account for the majority of the projects that have had de minimis impact determinations. These type of projects included transit station modifications, transit stop construction, and railroad siding extensions and bridge rehabilitation projects. Figure 5 shows a combined distribution of project types for highway, transit and rail projects.

Non-Historic Historic Historic and Non-Historic

Non-Historic Historic Historic and Non-Historic*

Non-Historic

Historic**

295 450 44 10 16 3 3 1

327 875 168 10 16 5 3 1

CE 29% 47% 4% 17% 41% -- 50% --EA 6% 8% 1% 3% 3% 3% -- 25%EIS 1% 1% 0.4% 10% -- 7% 25% --

Re-evaluation 1% 1% 0.3% 3% 10% -- -- --Average $46,998 $11,230 $60,990 $462,544 $26,167 $399,170 $4,908 $270,000

Median $4,063 $3,200 $8,000 $382,000 $3,100 $399,170 $4,908 $270,000 Minimum $42 $27 $44 $400 $405 $193,641 $3,457 $270,000

Maximum $2,560,000 $260,000 $1,300,000 $1,300,000 $130,000 $604,700 $6,359 $270,000 Average 1.3037 0.8856 2.5227 0.1456 2.8742 0.5700 4.9222 --

Median 0.3030 0.1487 0.4848 0.0388 2.8742 0.5700 0.2596Minimum 0.0001 0.0001 0.0010 0.0037 0.0092 0.5700 0.2070 --

Maximum 40.6143 37.0000 51.0000 0.4000 5.7392 0.5700 14.3000 --

De Minimis Use Size (acres)

RAIL PROJECTSHIGHWAY PROJECTS TRANSIT PROJECTS

Class of Action

Total number of de minimis impact determinaions

Total number of projects

Cost (in

thousands)



Figure 5: De minimis Impact Determinations by Project Type, for Highway, Transit and Rail projects combined (as of December 2010)

Table 3. Average Cost and Length of de minimis Impact Determinations by Project Type (as of December 2010)

Costs are reported in 000s of dollars. Project lengths are reported in miles. *The cost of the new alignment rail project was not provided to the study team.

Evaluations Inventory

The DOI maintains a Section 4(f) database for all individual Section 4(f) evaluations that the DOI reviews. The DOI does not collect information regarding Section 4(f) de minimis impact determinations or programmatic Section 4(f) evaluations. The data the DOI provided to the U.S. DOT do not include information on the NEPA class of action, the time, cost or outcomes related to the Section 4(f) evaluations. From April 11, 2008 when the updated feasible and prudent avoidance alternative standards took effect to December 2010, DOI received 198 individual Section 4(f) evaluations. Of these, 159 were highway

Bridge23%

Widening18%

Other18%

Intersection/ Interchange

14%

Safety Improvements

9%

Transportation Enhancement

8%

Resurfacing/ Rehabilitation

5%New Alignment

5%

Project TypeAverage

Cost Average

Project LengthAverage

Cost Average

Project LengthAverage

Cost Average

Project LengthWidening $44,418 4.884 -- -- -- --Bridge $11,563 1.151 $264,366 0.034 $6,359 0.207 Other $9,465 2.118 $86,269 1.162 -- --Intersection/ Interchange $27,296 1.018 -- -- -- --Resurfacing/ Rehabilitation

$9,846 4.163 -- -- -- --

Transportation Enhancement $2,532 2.028 -- -- $136,728 0.260

New Alignment $184,878 5.385 $939,866 2.889 --* 14.300 Safety Improvements

$5,706 2.088 -- -- -- --

TRANSIT PROJECTSHIGHWAY PROJECTS RAIL PROJECTS



projects occurring in 40 states, 38 were transit projects occurring in 16 states, and one was a joint FHWA-FTA project. Since the updated feasible and prudent avoidance alternative standards took effect, eleven states have not developed an individual Section 4(f) evaluation. See Figure 6. It should be noted that the total number of Section 4(f) evaluations developed since the updated feasible and prudent alternative standards were issued does not necessarily equal to the number of projects that needed to implement the updated standard. This is because, if an avoidance alternative exists for a particular project, then that avoidance alternative must be selected. As a result, the Section 4(f) evaluation would not apply the updated feasible and prudent standards.

Figure 6. Total Number of Section 4(f) Evaluations, by State (as of December 31, 2010)

The 198 individual Section 4(f) evaluations represent 194 projects.10 Forty percent (79) of the individual Section 4(f) evaluations are related to EISs (either draft or final); 24 percent (48) to EAs; and 36 percent (71) to CEs or were submitted to DOI unaccompanied by a NEPA document.11

10 Four of the Section 4(f) evaluations were submitted to DOI twice: three were supplemental NEPA documents, and one was a preliminary DEIS.

See Table 4.

11 Such Section 4(f) evaluations could also be related to a project that already completed NEPA but subsequently had a design change that necessitated a new Section 4(f) evaluation.



Table 4. Individual Section 4(f) Evaluations by NEPA Class of Action (from April 11, 2008 to December 31, 2010).

FHWA FTA JointFWHA/FTA

Draft EIS w ith Section 4(f) evaluation 52 23Final EIS w ith Section 4(f) evaluation 3 1EA w ith Section 4(f) evaluation 36 11 1Indiviidual Section 4(f) related to a CE or unaccompanied by a NEPA document

68 3

Total Number of Section 4(f) Evaluations 159 38 1



Survey Results

One hundred and twenty-eight individuals responded to the online survey. Of these respondents, 69 had first-hand experience with a project where a Section 4(f) de minimis impact determination was made and construction of the portion of the project related to the Section 4(f) resource was at least 75 percent complete. Eighty-two had first-hand experience with a project that required a Section 4(f) evaluation since the new feasible and prudent avoidance alternative standards were implemented (see Table 5). Twenty-six of the survey respondents (15 Federal transportation agency officials, 6 project sponsors, and 5 officials with jurisdiction over a Section 4(f) resource) responded that they did not have firsthand experience with a project where a de minimis impact determination was made nor a project that required a Section 4(f) evaluation since the new feasible and prudent avoidance alternative standards were implemented.

Table 5. Phase II Survey Response Rate by Stakeholder Group

* Indicates the percentage of relevant FRA offices, FHWA Division Offices and Federal Lands and FTA regions that are represented by the survey respondents.

Potential Respondents

Actual Respondents

Response Rate*

Number of Respondents

with First-Hand de minimis Experience

Number of Respondents

with First-Hand Feasible and

Prudent Experience

Federal Staff 86 -- 43 63

FHWA 60 88% 32 45

FHWA Federal Lands 6 100% 6 3

FTA 12 70% 4 8

FRA 7 100% 1 6

Unknown 1 -- 0 1

Project Sponsors 69 26 38% 16 14

State DOT 57 20 35% 13 11

Transit agency 8 4 50% 3 2

Rail agency 4 1 25% 0 0

Unknown 1 -- 0 1

Officials with Jurisdiction 59 15 25% 10 4

SHPOs 36 9 25% 6 3

Park, recreation area, and/or wildlife and waterfowl refuge official

23 6 26% 4 1

Citizen/Advocate Groups 12 2 17% 1 1

Stakeholder Group



De minimis Impact Provision Survey Results

Sixty-nine survey respondents reported having first-hand experience with a project where a de minimis impact determination was made and construction of the portion of the project related to the Section 4(f) resource is at least 75 percent complete. Fifty-eight respondents (84 percent) were Federal transportation agency or project sponsor staff, including:

• 32 respondents from 29 FHWA Division Offices • 6 respondents from 3 Federal Lands Highway Divisions • 4 respondents from 4 FTA Regional Offices • 1 respondent from FRA Headquarters • 13 respondents from 11 state DOTs • 3 respondents from 3 transit agencies

Ten responses from officials with jurisdiction over Section 4(f) resources were received, including:

• 6 respondents from 6 SHPOs • 3 respondents from 3 Federal resource agency field offices12

• 1 respondent from 1 local parks and recreation department

One response was received from a national environmental citizen/advocacy group.

The majority of both Federal transportation agency and project sponsor survey respondents have been involved in one to three projects for which a Section 4(f) de minimis impact determination was made. Only one Federal transportation agency and project sponsor respondent had been involved with more than 10 projects for which a de minimis impact determination was made. The majority of officials with jurisdiction over Section 4(f) resources had been involved with more than three projects (see Figure 7).

Figure 7. Experience with de minimis projects (number of projects) by stakeholder group

Efficiencies Resulting From the de minimis Impact Provision

In order to assess the impact that the de minimis impact provisions have had on the overall project timeline the survey asked the following question: Based on your experience across all projects, a Section 4(f) de minimis impact determination resulted in the following approximate time savings for the completion of the planning, design, and construction of the project, as compared to the potential time to complete the project without the use of the provision.

12 The study team determined that one of the Federal resource agency respondents was not associated with any project that had a de minimis impact finding.

40%

63%

53%

20%

6%

33%

10%

25%

12%

30%

6%

2%

Officials with jurisdiction (n=10)

Project sponsor (n=16)

Federal (n=43)

1-3 projects 4-6 projects 7-10 projects More than 10 projects



Eighty percent of the Federal transportation agency respondents and 86 percent of project sponsors reported that the de minimis impact provision has improved the timeliness for completing a project. In contrast, 25 percent of the officials with jurisdiction over Section 4(f) resources reported that the de minimis impact provision has improved the timeliness for completing transportation projects. The majority of the officials with jurisdiction responded “unknown” (see Figure 8). Based on the comments provided by transportation agency staff (both Federal and project sponsors) the time savings associated with the de minimis impact provision are attributed to three items:

• Elimination of the requirement to coordinate with and obtain comments from DOI

• Elimination of the FHWA/FTA legal sufficiency review process

• Elimination of the requirement to design and evaluate avoidance alternatives Four transportation agency respondents noted that the addition of the public comment and review requirements (for public parks, recreation areas, and wildlife and waterfowl refuges) minimized or negated any time savings associated with the de minimis impact provision. Three of these transportation officials noted that most projects for which a de minimis impact determination is made could also be processed through a Section 4(f) programmatic evaluation. Because a programmatic evaluation does not require a public comment period, in some cases, it may be less time consuming to utilize a Section 4(f) programmatic evaluation than to make a de minimis impact determination.

Figure 8. De minimis Impact Provision Time Savings Survey Responses

Several officials with jurisdiction indicated that they do not have direct knowledge on the time savings associated with the de minimis impact provision. One SHPO noted, “Significant time can be saved if a formal, full-blown Section 4(f) impact justification does not have to be made. Significant time can also be saved if problematic alternatives that fully avoid 4(f) properties do not have to be engineered.” In contrast, an official from the U.S. Fish and Wildlife Service (USFWS) noted that the de minimis impact provision was “a waste of time since it took much time with little to no benefit to natural resource conservation.” However, upon review of the project details for which this individual responded, it was determined that the project did not have a de minimis impact finding.

25%

6%

9%

44%

28%

6%

9%

25%

19%

14%

13%

28%

50%

13%

12%


Project Sponsor (n=16)

Federal (n=43)

No savings 1% - 10% savings 11% - 15% savings

16% - 25% savings > 25% savings Unknown



The one citizen/advocacy group response stated that it does not save any time, and noted, “it is waste of money om [sic] a bad project”.13

In order to assess the impact that the de minimis impact provision has had on overall project costs the survey asked the following question: Based on your experience across all projects, a Section 4(f) de minimis impact determination resulted in the following approximate cost savings for the completion of the planning, design, and construction of the project, as compared to the potential cost14

to complete the project without the use of the provision.

Fifty-six percent of the Federal respondents and 62 percent of project sponsors reported that the de minimis impact provision has reduced the costs associated with completing a project. Ten percent of the officials with jurisdiction reported that the de minimis impact provision has resulted in project cost saving, with the majority of the officials responding “unknown” (see Figure 9). The one citizen/advocacy group responded that the de minimis impact provision does not have any cost savings. Figure 9. De minimis Impact Provision Cost Savings Survey Responses

Federal transportation staff commented that cost savings associated with the de minimis impact provision result from less staff time being spent on paperwork and developing the more detailed analysis required for an individual Section 4(f) evaluation. In regards to cost savings, one project sponsor commented that the use of de minimis impact determination “seldom requires the complete re-design of a project to completely avoid takings from historic properties, which results in savings in both engineering design costs and time. This has been particularly true in the case of corner clips intended to address intersection improvements, where avoidance efforts prior to the de minimis impact determination process frequently resulted in higher levels of displacement for businesses and residences not subject to Section 4(f) regulations”. Another project sponsor noted, “In almost every case the same issues could have been addressed through the use of one of the programmatic 4(f) evaluations at the same cost level. Since no substantial changes to design or construction [sic] occur as a result of this process, no savings can be accounted for in those processes. The de minimis impact finding generally places an added burden on the 13 This was the comment from a national environmental advocacy organization and was based on a project regarding an historic resource. 14 It should be noted that the survey erroneously read “as compared to the potential time to complete the project” instead of “as compared to the potential cost to complete the project,” as reported here.

10%

19%

10%

38%

38% 5%

19%

2%

10%

6%

10%

80%

19%

36%



Federal (n=42)

No savings 1% - 10% savings 11% - 15% savings

16% - 25% savings > 25% savings Unknown



project environmental manager to assure adequate public participation, generally with little or no actual public comments being received, but with additional resource and time cost to the project.”

Post-Construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the de minimis Impact Provision

Survey participants were asked a series of questions regarding how the de minimis impact provision has impacted the protection of Section 4(f) resources. Please select the number on a scale from 1 to 5, where 1 is “NOT AT ALL” and 5 is “COMPLETELY TRUE”, that best represents the accuracy of each statement as it relates to your experience across all projects where a de minimis impact determination was made. Please choose “unknown” if you have no information on which to base an answer. ITH DE MINIMIS

• The “activities, features, and attributes” of the Section 4(f) resource changed as a result of the transportation project.

• User experience of the Section 4(f) resource has been or will be maintained at the same level as prior to the transportation project.

• Use or demand for the Section 4(f) resource increased as a result of the transportation project. • The de minimis impact provision at least maintains the protection of Section 4(f) resources as

compared to other Section (f) processing options (i.e., programmatic Section 4(f) evaluations and individual Section 4(f) evaluations).

The “activities, features, and attributes” of the Section 4(f) resource changed as a result of the transportation project

The majority of Federal respondents and project sponsors reported that the above statement was false15

(i.e. the activities, features, and attributes of the Section 4(f) resource did not change as a result of the transportation project where a de minimis impact determination was made). There was no majority response among the officials with jurisdiction. Forty percent reported that the statement was not true, while 30 percent reported that it was true (see Figure 10). The one citizen/advocacy group reported that the statement was not true.

Figure 10. “Activities, features, and attributes” of the Section 4(f) resource changed

1 = not at all 5=completely true Unknown = no information on which to base an answer

15 Responses of “1,” which is “not at all,” and “2” are classified as false while “4” and “5,” which is “completely true” are classified as true.

40%

100%

91%

10%

5%

30%

2%

20%Officials with

jurisdiction (n=10)


Federal (n=43)

1 or 2 3 4 or 5 Unknown



One SHPO commented, “rarely did a de minimis determination have any effect on a Section 4(f) resource at all, and so only occasionaly [sic] was there a determination where the "activities, features, and attributes" changed in any way.”

User experience of the Section 4(f) resource has been or will be maintained at the same level as prior to the transportation project

The majority of Federal respondents (70 percent) and project sponsors (87 percent) reported that the above statement was true16

(i.e. user experience of the Section 4(f) resource has been or will be maintained at the same level as prior to the transportation project). There was no majority response among the officials with jurisdiction. Forty percent reported that the statement was true, while 40 percent provided a neutral response (see Figure 11). The one citizen/advocacy group reported that the statement was not true.

Figure 11. User experience of the Section 4(f) resource has been or will be maintained

1 = not at all 5=completely true Unknown = no information on which to base an answer One Federal transportation official commented that the “de minimis impact allows minor improvements to occur, especially access safety improvements to park entrances, where those were avoided in most cases before.” Similarly, an official from USFWS noted that the construction project for which a de minimis impact determination was made “provided refuge visitors with an excellent opportunity to experience and enjoy the resources of the refuge while providing minimal negative impact.”

Use or demand for the Section 4(f) resource increased as a result of the transportation project17

The majority of Federal respondents answered “unknown”. These officials noted that they do not survey use or demand for a resource after a project is completed. There was no majority response among the project sponsors and the officials with jurisdiction (see Figure 12). Forty-four percent of project sponsors reported that the above statement was false

18

, while 31 percent answered “unknown”. In comparison, 30 percent of officials with jurisdiction answered that the above was not true, while 40 percent were neutral. The one citizen/advocacy group reported that the statement was not true.

16 Responses of “1,” which is “not at all,” and “2” are classified as false while “4” and “5,” which is “completely true” are classified as true. 17 Survey respondents likely would not be able to provide information on the use or demand for private historic properties. 18 Responses of “1,” which is “not at all,” and “2” are classified as false while “4” and “5,” which is “completely true” are classified as true.

10%

13%

14%

40%

2%

40%

87%

70%

10%

14%

Officials with jurisdiction(n=10)


Federal (n=43)




Figure 12. Use or demand for the Section 4(f) resource increased

1 = not at all 5=completely true Unknown = no information on which to base an answer One SHPO commented that their answer of “unknown” was due to “unmeasured future proximity impacts”. Another SHPO noted that one project with a de minimis impact determination, which involved replacing a bridge in a historic park, “probably helped the park in the long run.”

The de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options (i.e., programmatic Section 4(f) evaluations and individual Section 4(f) evaluations)

The majority of Federal respondents and project sponsors reported that the above statement was true19

, i.e. the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options (i.e., programmatic Section 4(f) evaluations and individual Section 4(f) evaluations) (see Figure 13). The one citizen/advocacy group reported that the statement was not true.

Figure 13. Maintains protection of Section 4(f) resources

1 = not at all 5=completely true Unknown = no information on which to base an answer Several Federal transportation officials and project sponsors provided comments further supporting their view that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section 4(f) processing options:

• “Application of the de minimis [impact provision] has been successful. Generally use of a protected property does not change for better or worse following application of the de minimis [impact provision].”

19 Responses of “1,” which is “not at all,” and “2” are classified as false while “4” and “5,” which is “completely true” are classified as true

30%

44%

28%

40%

25%

12%

10%

5%

20%

31%

56%



Federal (n=43)


20%

19%

9%

20%

6%

12%

40%

56%

67%

20%

19%

12%



Federal (n=43)




• “The de minimis [impact] finding we have made were all very consistent with the outcomes I would have anticipated if we'd gone through a traditional 4(f) process - they just took a lot less processing time to acheive [sic] the same results.”

• “Our de minimis [impact] situations all involved minor strip takes from public parks or refuge areas that in the past would have probably been programmatic minor use situations. In general the same sorts of mitigation/impact minimization measures to minimize harm that would have been used for the programmatic 4(f) evaluations were incorporated in the de minimis [impact] finding.”

Two officials with jurisdiction reported that the statement was false. However, one of the officials, a SHPO, included a comment that “the adoption of the de minimus [sic] [impact] rule for Section 4(f) has been extremely beneficial in our experience. Because a "No Adverse Effect" determination is required to utilize it, we have seen few substantive impacts to historic resources when it has been utilized. In fact, better transportation and historic preservation decisions have often been possible because of the availability of the de minimus [sic] [impact] rule.” The other individual who reported that the statement was not true was an official from the USFWS. This individual commented, “I don't believe that Section 4(f) provisions protects [sic] 4(f) resources. FHWA execution of the law is cursory, "a box check" exercise…the de minimis impact provision is really applied to the transportation project goals not transportation project-related natural resource adverse impacts.” However, after a review of the project details for which the individual was responding, it was determined that the particular project did not involve a de minimis impact determination.

Feasible and Prudent Avoidance Alternative Standards Survey Results

Eighty-two respondents reported having first-hand experience with a Section 4(f) evaluation (either draft or final) that applied the revised feasible and prudent standards. Seventy-seven (94 percent) of the respondents were transportation officials:

• 45 respondents from 38 FHWA Division Offices • 3 respondents from 2 Federal Lands Highway Division Offices • 8 respondents from 6 FTA Regional Offices • 6 respondents from FRA Headquarters • 1 respondent of unknown Federal affiliation • 11 respondents from 10 state DOTs • 2 respondents from 2 transit agencies • 1 respondent of unknown state affiliation

Four respondents were from officials with jurisdiction:

• 3 respondents from three SHPOs • 1 respondent from a Federal resource agency field office

One respondent was from a national historic preservation citizen/advocacy group. It should be noted that the total number of Section 4(f) evaluations done since the updated feasible and prudent standards does not necessarily equal the number of projects that needed to implement the updated standard. This is the case due to the fact that if an avoidance alternative exists, then that alternative must be selected and the standards would not be applied in the Section 4(f) evaluation. The total number of projects that implemented the updated standard is unknown as these data are not tracked.



Knowledge Level of the Updated Feasible and Prudent Standards On average, Federal transportation agency and project sponsor respondents reported having had the highest knowledge level of the updated feasible and prudent standard, while officials with jurisdiction over Section 4(f) resources reported the lowest average knowledge level20 (see Table 6). The one citizen/advocacy group respondent indicated being “extremely knowledgeable” on the updated standards. Considered together, since April 11, 2008 when the updated feasible and prudent standards took effect, federal transportation agency respondents indicated having had the most experience with Section 4(f) evaluations—having been involved with a total of at least 178 evaluations.21

Project sponsors indicated having been involved with at least 65 Section 4(f) evaluations over the same period. Officials with jurisdiction and citizen/advocacy groups reported having been involved with at least 17 and 10 Section 4(f) evaluations, respectively, since the implementation of the updated feasible and prudent standards.

Table 6: Knowledge of the updated feasible and prudent standard

1 = not at all familiar 5 = extremely knowledgeable

Section 4(f) Property Protection under the Updated Feasible and Prudent Standards

Respondents were asked to rate the degree to which the updated feasible and prudent standards had increased or decreased protection of Section 4(f) properties. Over half of the Federal transportation respondents indicated that the updated standards had no effect on protection of the Section 4(f) property; no Federal respondents ranked the effect lower than a value of three, or no effect on protection. In their comments, Federal respondents echoed their quantitative assessment. One remarked, “The 4(f) revisions have resulted in an improved process. The resources still maintain a strong level of protection.” Another stated, “For the projects that involve parks and refuges, the new ability to work within the new rules has allowed us to leave the properties in a better condition than if we had just avoided them. In the case of historic properties, we have been able to assist with the improvement of the facility, rather than just avoiding. In some past cases (over the past 20 years or so), some of these historic properties have been lost due to natural and man-made [sic] influences.” Similarly, more than a third of the project sponsors (and the sole citizen/advocacy group respondent) responding to the question specified that the updated standards had no effect on resource protection. One project sponsor commented, “Generally, the prudent and feasible standard follows the same process we had already been using. While it has helped internally with making sure the process is correctly followed, it has not had a substantial impact on the use and impacts associated with projects.” Two of the four officials with jurisdiction respondents indicated that the updated standards decreased protection of the Section 4(f) property. According to comments received from one USFWS official, “in the end no resource protection was gained and potential indirect and cumulative [sic] impacts will absolutely accrue over the life of the transportation project” (Figure 14).

20 It should be noted that the only question on the feasible and prudent section of the survey that showed a statistically significant difference among the groups’ median ranking values was the question regarding the respondents’ self-assessment of their knowledge of the updated feasible and prudent standard (p=0.01). No other question on the feasible and prudent section of the survey could be evaluated using the Kruskal-Wallis test due to the small number of officials with jurisdiction and citizen/advocacy group responses (n = or < 4 in both cases). 21 Not all respondents indicated the number of Section 4(f) evaluations they have been involved with since April 11, 2008.

1 2 3 4 5 Federal (n=64) 0% 6% 33% 38% 23% Average = 3.62

Project sponsors (n=14) 0% 21% 36% 36% 7% Average = 3.29 Officials with jurisdiction (n=4) 25% 0% 25% 25% 25% Average = 3.25



Figure 14. Effect of the updated feasible and prudent standard on Section 4(f) property protection

1 = decreased protection 5 = increased protection Unknown = no information on which to base an answer

Post-construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the Updated Feasible and Prudent Standard

Respondents were asked to rate how, if at all, the new feasible and prudent standards had affected the post-construction effectiveness of impact mitigation and avoidance commitments adopted. Respondents were invited to answer regarding projects with construction completed or partially completed. At least half of the respondents from all groups provided a response of “unknown” to this question; the one citizen/advocacy group respondent did not provide an answer. For those responding, a third of both Federal transportation agency and project sponsor respondents indicated that the updated standards had no effect on the post-construction effectiveness of impact mitigation and avoidance commitments. Two officials with jurisdiction respondents indicated that effectiveness was decreased, while the remainder of Federal and project sponsor respondents believed the updated standards increased effectiveness of post-construction impact mitigation and avoidance commitments (Figure 15).

Figure 15. Effect of the updated feasible and prudent standard on the post-construction effectiveness of impact mitigation and avoidance commitments

1 = decreased effectiveness22

Effect of Assessment Criteria on the Determination of Whether an Avoidance Alternative is Feasible and Prudent

5 = increased effectiveness Unknown = no information on which to base an answer

Respondents were asked to rate the degree to which 10 assessment criteria had each individually clarified the determination of whether an avoidance alternative is feasible and prudent. Factoring out survey respondents that answered “unknown” to this question, project sponsors had the highest average perception of 9 of the 10 criteria (see bold in Table 7 and Appendix E for additional results), indicating 22 It should be noted that the survey erroneously read “decreased protection” and “increased protection” instead of “increased effectiveness” and “increased effectiveness,” respectively, as reported here.



that they found the updated criteria to provide more clarity in determining the feasible and prudent avoidance alternative than the other responding groups. In most cases, respondents believed the assessment criteria had each clarified the determination of whether an avoidance alternative is feasible and prudent to some degree. Considering individual respondent’s rankings, “confused” rankings were indicated for:

• “An alternative is not prudent if it compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need” (one Federal respondent)

• “An alternative is not prudent if it results in unacceptable safety or operational problems” (one official with jurisdiction)

• “An alternative is not prudent if it results in additional construction, maintenance, or operational costs of an extraordinary magnitude” (one Federal and one official with jurisdiction)

• “An alternative is not prudent if it causes other unique problems or unusual factors” (three Federal, one project sponsor, and one official with jurisdiction)

The one citizen/advocacy group respondent provided a neutral response for all assessment criteria.

Table 7. Effect of assessment criteria on the determination of whether an avoidance alternative is feasible and prudent, average scores

1 = confused 5 = significantly clarified

*n = 62 for “An alternative is not prudent if, after reasonable mitigation, it still causes severe disproportionate impacts to minority or low income populations. Note: The project team examined the survey response mode for each of the assessment criteria under an assumption that the data the survey produced is ordinal and not interval; however, several assessment criteria have multiple mode values due to the limited response rate. Median was determined to provide a better measure of central tendency.

Federal (n=63)*


Official with Jurisdiction (n=4)

An alternative is not feasible if it cannot be built as a matter of sound engineering judgment 3.9 4.3 4.0

An alternative is not prudent if it compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need

3.8 4.3 3.3

An alternative is not prudent if it results in unacceptable safety or operational problems 3.9 4.4 2.0

An alternative is not prudent if, after reasonable mitigation, it still causes severe social, economic, or environmental impacts

3.8 3.8 3.3

An alternative is not prudent if, after reasonable mitigation, it still causes severe disruption to established communities

3.8 3.7 3.3

An alternative is not prudent if, after reasonable mitigation, it still causes severe disproportionate impacts to minority or low income populations

3.7 3.8 3.7

An alternative is not prudent if, after reasonable mitigation, it still causes severe impacts to environmental resources protected under other Federal statutes

3.9 4.1 3.3

An alternative is not prudent if it results in additional construction, maintenance, or operational costs of an extraordinary magnitude

3.7 4.5 2.0

An alternative is not prudent if it causes other unique problems or unusual factors 3.3 3.5 2.0

An alternative is not prudent if it involves multiple factors, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude

3.6 3.7 3.7



Effect of “Least Overall Harm” Determination Factors

Respondents were asked to rate the degree to which the seven factors to be balanced in making “least overall harm” determinations clarified the determination of the alternative with the least overall harm (see Table 8 and Appendix E for additional results). Factoring out survey respondents that answered “unknown” to this question, Federal respondents reported the highest average score for five of the seven factors, indicating that they generally believed the those five factors clarified the least overall harm determination more than the other responding groups did. Project sponsor and officials with jurisdiction respondents reported the highest average score for one factor each. One project sponsor commented that “[t]he 7 factors provide a reasonable set of objective criteria” for determining the least overall harm alternative. Another project sponsor noted “the clarification has had minimal impact except to provide a more substantial basis for the determination. Most helpful has been the ability of projects to meet or exceed the purpose and need as this was not clear before.” The lowest ranking possible—“confused” the least overall harm determination—was observed twice, both instances coming from project sponsors regarding “The relative significance of each Section 4(f) property” and “The views of the official(s) with jurisdiction over each Section 4(f) property” factors. It was pointed out by one project sponsor that the “relative significance” factor had been the least helpful and, as a result, “we have not been able to use this substantially in our decision-making.” The one citizen/advocacy group respondent provided a neutral response for all factors.

Table 8. Effect of “least overall harm” determination factors when considered individually, average scores

1 = confused 5 = significantly clarified

*n = 11 for “The degree to which each alternative meets the purpose and need for the project.” **n = 1 for “The relative significance of each Section 4(f) property.” Note: The study team examined the survey response mode for each of the determination factors under an assumption that the data the survey produced is ordinal and not interval; however, several assessment criteria have multiple mode values due to the limited response rate. Median was determined to provide a better measure of central tendency. The seven factors listed in Table 8 are to be considered together in determining the least overall harm alternative. As such, respondents were also asked to rate two aspects of their implementation:

(1) How effective the collective factors had been in making that determination, and (2) How successful the factors had been in protecting the Section 4(f) resource.

Federal (n=62)

Project Sponsor (n=12)*

Official with Jurisdiction

(n=2)** The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property) 3.98 3.82 3.50

The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection

3.72 3.55 3.00

The relative significance of each Section 4(f) property 3.76 3.27 3.00 The views of the official(s) with jurisdiction over each Section 4(f) property 3.90 3.45 2.50

The degree to which each alternative meets the purpose and need for the project 4.02 4.27 2.50

After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f) 3.77 3.50 3.00

Substantial differences in costs among the alternatives 3.68 3.91 4.00



Over half of both the Federal and project sponsor respondents indicated that the factors had collectively had a positive effect on determining the least harm alternative. While a smaller percentage of each group believed that this was the case for the relative success of the factors in protecting the Section 4(f) resource, no Federal or project sponsor respondents viewed the factors as having anything less than a neutral effect on either the least overall harm determination or the Section 4(f) resource protection perspective (see Figure 16). Conversely, one of the three officials with jurisdiction respondents, an official from the USFWS, indicated that the factors had collectively had an extremely negative effect on the least harm determination and on protecting the Section 4(f) resource; according to the Section 4(f) inventory, this particular respondent’s Section 4(f) experience appears to be limited to one project. The one citizen/advocacy group response was neutral for both questions.

Figure 16. Effect of “least overall harm” determination factors collectively …in making the least overall harm determination

…in protecting the Section 4(f) resource

1 = extremely negative effect 5 = extremely positive effect Unknown = no information on which to base an answer



Conclusions

De minimis Impact Provision

Since the adoption of SAFETEA-LU, the number of projects per year with a Section 4(f) de minimis impact determination for both highway and transit projects has followed an upward trend. In 2006, there were 78 projects with de minimis impact determinations. In 2010, the last year for which data for all months are currently available, there were 208 projects with de minimis impact determinations (see Figure 17). The vast majority of projects are CE projects with a single de minimis impact determination. In addition, de minimis impact determinations include a higher number of historic resources than non-historic resources. These national trends and patterns have remained largely unchanged from those reported in Phase I.

Figure 17. Number of projects with a de minimis impact determination, per year – highway, transit, and rail projects

In Phase II, the study team sought to increase the diversity of viewpoints to study the efficiency and effectiveness of the de minimis impact provision. None of the four stakeholder groups’ views were valued or sought more than any of the others. However, the survey response rate across the four groups varied significantly. Survey responses were collected from a higher ratio of transportation agency staff than officials with jurisdiction over Section 4(f) resources and representatives from citizen/advocacy groups. The Phase II survey results support the efficiency findings reported in Phase I. The majority of transportation professionals (both Federal and project sponsors) shared the perception that the de minimis impact provision has improved the timeliness for completing transportation projects. However, as highlighted in Figure 8, the range of time savings reported by survey respondents varied. The majority of Federal transportation agencies and project sponsors reported times savings between 1 and 25 percent. Several of the Federal transportation officials and project sponsors reported that the de minimis process often generates similar outcomes as would be reached with alternative processing options; yet, the de minimis impact provision provides for a more streamlined process for achieving those outcomes. The one exception is that in some cases the additional time needed to complete the de minimis public comment and review requirements, that may not otherwise be required or other project review processes that would extend the review period on projects for public parks, recreation areas, and wildlife and waterfowl refuges can negate some or all of the time savings. In addition to time savings, the majority of transportation officials (both Federal and project sponsors) reported that the de minimis impact provision has reduced



the costs associated with completing a project. Similarly, the majority reported cost savings of 1 to 25 percent. The majority of officials with jurisdiction responded “unknown” to questions regarding the cost and time savings associated with the de minimis impact provision. Federal transportation agencies and project sponsors reported that the application of the de minimis impact provision has been successful. The vast majority of transportation professionals reported that the activities, features, and attributes of the Section 4(f) resources have not changed as a result of transportation projects that are processed with the de minimis impact provisions. Similarly, the majority reported that user experience of the Section 4(f) resource did not change as a result of the project, or answered unknown. Similarly, the majority of transportation officials reported that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options. The officials with jurisdiction who responded to the survey were more varied in their views regarding the effectiveness of impact mitigation and avoidance commitments associated with the de minimis impact provision. However, overall the officials with jurisdiction perceive that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options. However, given the small number of officials with jurisdiction responding to the survey, it is not possible to generalize the feedback collected from these individuals to the larger population.

Feasible and Prudent Avoidance Alternative Standards

Section 6009(b) of SAFETEA-LU directed the U.S. DOT to issue regulations to clarify application of the legal standards in determining whether alternatives are prudent and feasible. Congress maintained that the fundamental legal standard contained in the Overton Park decision for evaluating the prudence and feasibility of avoidance alternatives remain as the legal authority for these regulations. However, SAFETEA-LU directed the U.S. DOT to provide more detailed regulations on applying these standards. In March 2008, FHWA and FTA published a Final Rule that defines a "feasible and prudent avoidance alternative” as one that "avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property. In assessing the importance of protecting the Section 4(f) property, it is appropriate to consider the relative value of the resource to the preservation purpose of the statute." The definition emphasizes that the use of Section 4(f) property is to be balanced against competing factors, with a "thumb on the scale" in favor of preserving the Section 4(f) property. U.S. DOT designed a survey to collect information regarding the effect(s) of the revised feasible and prudent avoidance alternative definition and associated standards on implementation of Section 4(f). The study team targeted Federal, project sponsor, official with jurisdiction, and citizen/advocacy group respondents in order to capture the views of stakeholders on the impacts of the revised feasible and prudent avoidance alternative standards. Due to the limited number of projects that have completed final Section 4(f) evaluations using the revised standards, the results of the Phase II survey cannot be generalized to the overall population. Instead, findings from the Phase II survey are intended to analyze initial perceptions of the effects of the revised prudent and feasible avoidance alternative standards. According to most respondents, the new standards protect Section 4(f) resources at least to the same degree they were protected before the clarification of feasible and prudent alternatives in the revised regulations. Generally, transportation professionals (both Federal and project sponsors) agreed that the new standards were helpful in articulating what constitutes a feasible and prudent avoidance alternative but that it had not had any substantial effect, positive or negative, on the Section 4(f) resources. And that



the updated standards have provided a better means of documenting and supporting the decisions being made. One project sponsor pointed out “[b]ecause of the emphasis on safety as a paramount consideration, historic bridges in particular have not been significantly more protected through the analysis models provided by this clarified process,” suggesting one scenario where the factors had not been particularly beneficial. One Federal transportation agency respondent went on to state that “there is still the issue of defining ‘substantial’ cost differences or impacts of ‘extraordinary magnitude’ between alternatives. Often it's apparent, while other times it isn't as easily distinguishable or taken as fact by those officials with jurisdiction.” Two of the four officials with jurisdiction respondents had a negative view on the impact of the new feasible and prudent standards on the protection of Section 4(f) resources, stating “in the end no resource protection was gained.” However, given the small number of officials with jurisdiction responding to the survey, it is not possible to extrapolate reliably as to whether this sentiment is shared among other officials with jurisdiction. Considering the attempts that were made to follow-up with non-respondents, the low response rate also suggests that this group does not have a strong opinion for or against the updated standard. Similarly, most transportation agency respondents that provided an answer to the question indicated that the updated standards had no effect on the post-construction effectiveness of impact mitigation and avoidance commitments. Although two officials with jurisdiction respondents indicated that effectiveness was decreased, again it is difficult to discern whether this is indicative of a more general view. The Final Rule defines a “feasible and prudent avoidance alternative” as one that “avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property.” Respondents were asked to rate the degree to which 10 assessment criteria had each individually clarified the determination of whether an avoidance alternative is feasible and prudent. According to survey results, most respondents, regardless of group responding, believed that each assessment criterion had clarified the determination of whether an avoidance alternative is feasible and prudent. Project sponsors held this view most strongly among the responding groups. Very few individual “confused” rankings were received, suggesting that differences among groups’ opinions on the effectiveness of the updated feasible and prudent standards are minimal. Among those that indicated that a particular criterion had confused the process, one official with jurisdiction expressed the concern that “[d]ifferent people have different definitions of terms like ‘unacceptable safety or operational problems’ and ‘unique problems or unusual factors,’ and that highway engineers “tend to define these in terms that best suit their preferred alternatives.” It is unknown whether other officials with jurisdiction share this view. The Final Rule also includes a “least overall harm” determination that balances seven factors, which are to be used when all alternatives result in the use of Section 4(f) property and there is no feasible and prudent alternative that avoids a Section 4(f) use. Respondents were asked to evaluate each of the seven factors on a scale ranging from 1 (“confused” the determination of the alternative) to 5 (“significantly clarified” the determination). They were then asked to rate the seven factors when considered together. Transportation respondents, both in their rankings and comments, tended to agree that the opportunity to weigh the factors has had a positive effect on determining which alternative has the least overall harm. One project sponsor cautioned, “depending on the advocacy behind each factor, [the] balancing may be skewed to factors that have the greatest advocacy.” In this case, it would be incumbent upon the agency preparing the 4(f) evaluation to evaluate each factor impartially. The Phase II study findings do not reveal any fundamental issues with implementing the Section 6009 provisions. However, given the relatively small number of Section 4(f) evaluations that have been processed using the updated feasible and prudent avoidance alternative standards, and the feedback received on potential areas of confusion, it would beneficial to all stakeholders if additional information



about the regulation and revised provisions were provided. FHWA has recently updated the content for all courses that cover the Section 4(f) regulation to address the new provisions, and is currently updating the Section 4(f) Policy Paper. This updated Policy Paper, expected to be released in 2011 and which will address the revised regulation, will provide further information and guidance to foster increased knowledge among practitioners, stakeholders, and the public.

This collection of information is voluntary and will be used to report to Congress on the implementation of provisions in Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) amending Section 4(f) law and to support U.S. DOT’s Environmental Stewardship Strategic Goal. Public reporting burden is estimated to average 20 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Please note that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection is 2125-0625. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Highway Administration, 1200 New Jersey Avenue, SE, Washington, DC 20590.

OMB Burden Statement

Appendix A: Phase II Survey Instrument

A: 1

The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) Section 6009, Parks, Recreation Areas, Wildlife and Waterfowl Refuges and Historic Sites, requires the U.S. Department of Transportation (U.S. DOT) to study the implementation of and the amendments made by Section 6009 to Section 4(f) of the 1966 U.S. DOT Act. Section 4(f) established requirements for approving transportation projects that will use historic sites or publicly owned parks, recreational areas, and wildlife or waterfowl refuges. The implementation study is being conducted in two phases. The completed Phase I focused primarily on the de minimis impact provision. Phase II will continue the de minimis impact provision analysis and evaluate the implementation of the revised rule on feasible and prudent avoidance alternatives standards. As such, this survey includes two sections. The first section focuses on the de minimis provision and the second section focuses on the feasible and prudent standards. Knowledge on the use of either or both provisions is requested, so please complete the survey regardless of your level of experience with them. We thank you in advance for your participation in this survey.

1. Please provide your contact information before beginning the survey.

Introduction

Name:

Title/Position:

Length of service in current position:

Agency or Organization:

City:

State: 6

Email Address:

Phone Number:


A: 2

SAFETEA-LU amended existing Section 4(f) legislation to simplify the processing and approval of projects that have only de minimis impacts on lands protected by Section 4(f). As codified in the new regulations (23 CFR 774), once the U.S. DOT determines that a transportation use of Section 4(f) property results in a de minimis impact, and the responsible official(s) with jurisdiction over the resource agrees in writing, analysis of avoidance alternatives are not required and the Section 4(f) process is complete. The following survey questions were designed to collect information regarding the post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects where a de minimis impact determination was made. Citizen/advocacy or other user groups with interest in the Section 4(f) resource should answer the questions as applicable to them. All respondents should feel free to supplement their responses with additional explanations.

2. How many projects have you been involved in where the following is true (1) you’ve

played a key role, (2) a de minimis impact determination was made, and (3) the

construction of the portion of the project related to the Section 4(f) resource is at least

75 percent complete?

SECTION I: DE MINIMIS IMPACT PROVISION

0

nmlkj

1-3

nmlkj

4-6

nmlkj

7-10

nmlkj

More than 10

nmlkj


A: 3

3. Please select the number on a scale from 1 to 5, where 1 is “NOT AT ALL” and 5 is

“COMPLETELY TRUE”, that best represents the accuracy of each statement as it relates

to your experience across all projects where a de minimis impact determination was

made. Please choose “unknown” if you have no information on which to base an

answer.

SECTION 1: EXPERIENCE WITH DE MINIMIS

1 2 3 4 5 Unknown

The “activities, features, and attributes” of the Section 4(f) resource changed as a result of the

transportation project.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

User experience of the Section 4(f) resource has been or will be maintained at the same level as

prior to the transportation project.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

Use or demand for the Section 4(f) resource increased as a result of the transportation project. nmlkj nmlkj nmlkj nmlkj nmlkj nmlkjThe de minimis impact provision at least maintains the protection of Section 4(f) resources as

compared to other Section (f) processing options (i.e., programmatic Section 4(f) evaluations and

individual Section 4(f) evaluations).

nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

Please explain the reasons for these ratings:

55

66


A: 4

4. Based on your experience across all projects, a Section 4(f) de minimis impact

determination resulted in the following approximate time savings for the completion of

the planning, design, and construction of the project, as compared to the potential time


5. Based on your experience across all projects, a Section 4(f) de minimis impact

determination resulted in the following approximate cost savings for the completion of

the planning, design, and construction of the project, as compared to the potential time


0% (no savings)

nmlkj

1% - 10% savings

nmlkj

11% - 15% savings

nmlkj

16% - 25% savings

nmlkj

More than 25% savings

nmlkj

Unknown

nmlkj

Please explain the reason for your rating:

55

66

0% (no savings)

nmlkj

1% - 10% savings

nmlkj

11% - 15% savings

nmlkj

16% - 25% savings

nmlkj

More than 25% savings

nmlkj

Unknown

nmlkj


55

66


A: 5

For each project (up to five projects) that meets the following criteria 1) you played a key role, 2) a de minimis impact determination was made, and 3) construction of the portion of the project related to the Section 4(f) resource is at least 75 percent complete, please complete the following questions. If you have been involved with more than five de minimis impact determinations, please respond for the five projects where construction is complete or furthest along.

6. Please provide the following information for Project 1:


SECTION 1: DE MINIMIS IMPACT PROJECT CONTACT INFORMATION

Project Name:

Project Location (City/State):

Status of construction (enter either "complete" or "at least 75%

complete"):

Name for official with jurisdiction over the Section 4(f) resource contact

(i.e., SHPO/THPO, or the park, recreation area, or wildlife or waterfowl

refuge contact):

Email address for official with jurisdiction contact:

Phone number for official with jurisdiction contact:

Name for contact at citizen/advocacy group with interest in the Section

4(f) resource:

Email address for citizen/advocacy group contact:

Phone number for citizen/advocacy group contact:

Project Name:


Status of construction (enter either "complete" or "at least 75% complete"):

Name for official with jurisdiction over the Section 4(f) resource contact (i.e.,

SHPO/THPO, or the park, recreation area, or wildlife or waterfowl refuge contact):



Name for contact at citizen/advocacy group with interest in the Section 4(f) resource:




A: 6




Project Name:










Project Name:










Project Name:











A: 7

This completes Section 1 of the survey. Questions in the next section focus on the feasible and prudent standard.

DE MINIMIS IMPACT SURVEY END


A: 8

Section 6009(b) of SAFETEA-LU required the U.S. DOT to promulgate regulations to clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties. In March 2008, FHWA and FTA published a rule which defines a "feasible and prudent" avoidance alternative as one that "avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property." The definition emphasizes that the use of Section 4(f) property is to be balanced against competing factors, with a "thumb on the scale" in favor of preserving the Section 4(f) property. The following survey questions were designed to (a) identify the Section 4(f) evaluations (either draft or final) that have been completed under the new regulations and (b) to collect information regarding the effect of the revised feasible and prudent avoidance alternative definition on implementation of Section 4(f). Citizen/Advocacy or other user groups with interest in the Section 4(f) resource should answer the questions as applicable to them. All respondents should feel free to supplement their responses with additional explanations.

11. How many Section 4(f) evaluations have you been involved with in your current

role?

12. On a scale of 1 to 5, where 1 is “NOT AT ALL FAMILIAR” and 5 is “EXTREMELY

KNOWLEDGEABLE,” please rate your knowledge of the updated feasible and prudent

standard.

13. Since April 11, 2008, have you been involved in any Section 4(f) evaluations (either

draft or final)?

SECTION 2: FEASIBLE AND PRUDENT STANDARD

0

nmlkj

1-3

nmlkj

4-6

nmlkj

7-10

nmlkj

More than 10

nmlkj

1

nmlkj 2

nmlkj 3

nmlkj 4

nmlkj 5

nmlkj

Yes

nmlkj

No

nmlkj

If yes, number of completed evaluations:


A: 9

14. Based on your experience across ALL projects with a Section 4(f) evaluation since

April 11, 2008, has the new feasible and prudent standard increased or decreased the

protection of Section 4(f) properties, where 1 is “DECREASED PROTECTION” and 5 is

“INCREASED PROTECTION”?

15. For those projects with construction completed or partially completed, has the new

feasible and prudent standard increased or decreased the post-construction

effectiveness of impact mitigation and avoidance commitments adopted as part of the

project, where 1 is “DECREASED PROTECTION” and 5 is “INCREASED

PROTECTION”?

SECTION 2: EXPERIENCE WITH FEASBILE AND PRUDENT STANDARD

1

nmlkj 2

nmlkj 3

nmlkj 4

nmlkj 5

nmlkj Unknown

nmlkj

Additional comments on your rating:

55

66

1

nmlkj 2

nmlkj 3

nmlkj 4

nmlkj 5

nmlkj Unknown

nmlkj

Additional comments on your rating:

55

66


A: 10

16. The final rule defined a “feasible and prudent avoidance alternative” as one that

avoids using Section 4(f) property and does not cause other severe problems of a

magnitude that substantially outweighs the importance of protecting the Section 4(f)

property.

Based on your experience, evaluate on a scale from 1 to 5, where 1 is “CONFUSED” and

5 is “SIGNIFICANTLY CLARIFIED,” how have each of the following assessment criteria,

considered individually, affected the determination of whether an avoidance alternative

is feasible and prudent: 1 2 3 4 5 Unknown

An alternative is not feasible if it cannot be built as a matter of sound engineering judgment. nmlkj nmlkj nmlkj nmlkj nmlkj nmlkjAn alternative is not prudent if it compromises the project to a degree that it is unreasonable to

proceed with the project in light of its stated purpose and need.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

An alternative is not prudent if it results in unacceptable safety or operational problems. nmlkj nmlkj nmlkj nmlkj nmlkj nmlkjAn alternative is not prudent if, after reasonable mitigation, it still causes severe social, economic,

or environmental impacts.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

An alternative is not prudent if, after reasonable mitigation, it still causes severe disruption to

established communities.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

An alternative is not prudent if, after reasonable mitigation, it still causes severe disproportionate

impacts to minority or low income populations.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

An alternative is not prudent if, after reasonable mitigation, it still causes severe impacts to

environmental resources protected under other Federal statutes.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

An alternative is not prudent if it results in additional construction, maintenance, or operational

costs of an extraordinary magnitude.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

An alternative is not prudent if it causes other unique problems or unusual factors. nmlkj nmlkj nmlkj nmlkj nmlkj nmlkjAn alternative is not prudent if it involves multiple factors, that while individually minor,

cumulatively cause unique problems or impacts of extraordinary magnitude.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj


A: 11

17. The final rule includes a “least overall harm” determination, which balances seven

factors, which are to be used when all alternatives result in the use of Section 4(f)

property and there is no feasible and prudent alternative that avoids a Section 4(f) use.

Based on your experience, please evaluate on a scale from 1 to 5, where 1 is

“CONFUSED” and 5 is “SIGNIFICANTLY CLARIFIED,” how have each of the seven

factors, considered individually, affected the determination of the alternative with the

least overall harm:

18. The seven factors listed in Question 17 are to be considered together in determining

the least overall harm alternative. Please rate on a scale from 1 to 5, where 1 is

“EXTREMELY NEGATIVE” and 5 is “EXTREMELY POSITIVE,” how effective have these

factors been in making this determination.

SECTION 2: FEASIBLE AND PRUDENT LEAST OVERALL HARM DETERMINATION

1 2 3 4 5 Unknown

The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that

result in benefits to the property).nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

The relative severity of the remaining harm, after mitigation, to the protected activities, attributes,

or features that qualify each Section 4(f) property for protection.nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

The relative significance of each Section 4(f) property. nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

The views of the official(s) with jurisdiction over each Section 4(f) property. nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

The degree to which each alternative meets the purpose and need for the project. nmlkj nmlkj nmlkj nmlkj nmlkj nmlkjAfter reasonable mitigation, the magnitude of any adverse impacts to resources not protected by

Section 4(f).nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

Substantial differences in costs among the alternatives. nmlkj nmlkj nmlkj nmlkj nmlkj nmlkj

1

nmlkj 2

nmlkj 3

nmlkj 4

nmlkj 5

nmlkj Unknown

nmlkj


55

66


A: 12

19. Please rate on a scale from 1 to 5, where 1 is “EXTREMELY NEGATIVE” and 5 is

“EXTREMELY POSITIVE”, how successful have these seven factors been in the

protection of Section 4(f) resources.

20. Please use the space below to provide any additional comments on the new

standards for determining a feasible and prudent avoidance alternative.

55

66

1

nmlkj 2

nmlkj 3

nmlkj 4

nmlkj 5

nmlkj Unknown

nmlkj


55

66


A: 13

Information from survey responses could be used to select projects to conduct additional research into how the regulatory feasible and prudent definition has affected the Section 4(f) process. For any projects selected, the study team will be contacting stakeholders for participation in exploratory discussions over the telephone. Please provide the following information for all Section 4(f) evaluations (either draft or final) that you have been involved with since April 11, 2008. If you have been involved with more than five evaluations, please respond regarding those where a final evaluation is complete or furthest along.

21. Project 1:

SECTION 2: FEASIBLE AND PRUDENT PROJECT CONTACT INFORMATION

Project name:

Project location (City/State):

Describe your role in the Section (f) evaluation:

Name for the official with jurisdiction over the Section 4(f) resource contact (i.e.


Email address for official with jurisdiction:

Phone number for official with jurisdiction:




Total project cost:

NEPA Class of action:

Was a least harm analysis conducted (enter Yes or No):

Type(s) and number of Section 4(f) resources (historic property park/recreation area, or

wildlife/waterfowl refuge):

Resource name(s):

Size of Section 4(f) resource (e.g., total acreage or length in miles):

Size of Section 4(f) impact (e.g., total acreage or length in miles):

Status of Section 4(f) evaluation (enter Draft or Final) and percent complete:

Estimated cost of Section 4(f) evaluation:

Status of construction (enter Complete, Partially Complete, or Not Started):


A: 14

22. Project 2: Project name:










Total project cost:





Resource name(s):







A: 15




Name of Section 4(f) official with jurisdiction contact (i.e. SHPO/THPO, or the park,

recreation area, or wildlife or waterfowl refuge contact):






Total project cost:





Resource name(s):







A: 16











Total project cost:





Resource name(s):







A: 17











Total project cost:





Resource name(s):







A: 18

Thank you for completing the Section 6009 Phase II questionnaire. We greatly appreciate your time and participation. If necessary, the study team may contact respondents to clarify survey responses or collect more detailed information. Once you click the "Done" button your survey response will be submitted.

Thank You!


A: 19

30898 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Notices

Reports Clearance at 410–965–0454 or by writing to the above e-mail address.

1. Report to United States Social Security Administration by Person Receiving Benefits for a Child or for an Adult Unable to Handle Funds/Report to the United States Social Security Administration—0960–0049. SSA uses

the information it collects on Forms SSA–7161–OCR–SM and SSA–7162– OCR–SM to: (1) Determine continuing entitlement to Social Security benefits; (2) correct benefit amounts for beneficiaries outside the United States; and (3) monitor the performance of representative payees outside the

United States. The respondents are individuals living outside the United States who are receiving benefits on their own (or for someone else) under Title II of the Social Security Act.

Type of Request: Revision of an OMB- approved information collection.

Form No. Number of respondents

Frequency of response

Average bur-den per

response (min.)

Estimated annual burden

SSA–7161–OCR–SM ...................................................................................... 30,560 1 15 7,640 SSA–7162–OCR–SM ...................................................................................... 271,142 1 5 22,595

Total .......................................................................................................... 301,702 ........................ ........................ 30,235

2. Real Property Current Market Value Estimate—0960–0471. SSA considers a person’s resources when evaluating eligibility for Supplemental Security Income (SSI) payments. The value of an individual’s resources, including non-

home real property, is one of the eligibility requirements for SSI payments. SSA obtains current market value estimates of the claimant’s real property through Form SSA–L2794. The respondents are small business

operators in real estate, state and local employees, and other individuals knowledgeable about local real estate values.


Type of respondents Number of respondents

Frequency of response

Average burden

of response (min.)

Estimated annual burden

(hours)

Small Business Operators in Real Estate ....................................................... 4,894 1 20 1,631 State and local government ............................................................................. 490 1 20 163 Individuals ........................................................................................................ 54 1 20 18

Total .......................................................................................................... 5,438 ........................ ........................ 1,812

3. Employer Verification of Earnings After Death—20 CFR 404.821 and 404.822—0960–0472. When SSA records show a wage earner is deceased and an employer reported wages for the wage earner for a year subsequent to death, SSA must contact the employer and verify the reported wage and employee information. SSA uses Form SSA–L4112 to verify that the wage information the employer previously submitted is correct for the employee and the year in question. The respondents are employers who report wages for employees who have died.


Number of Respondents: 50,000. Frequency of Response: 1. Average Burden per Response: 10

minutes. Estimated Annual Burden: 8,333

hours.

Date: May 26, 2010. John Biles, Director, Office of Document Management, Social Security Administration. [FR Doc. 2010–13092 Filed 6–1–10; 8:45 am]

BILLING CODE 4191–02–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA–2010–0057]

Agency Information Collection Activities: Request for Comments for a New Information Collection

AGENCY: Federal Highway Administration (FHWA), Department of Transportation. ACTION: Notice and request for comments.

SUMMARY: The U.S. Department of Transportation FHWA invites public comments about our intention to request the Office of Management and Budget’s (OMB) approval for a new information collection: SAFETEA–LU Section 6009 Phase 2 Implementation Study Survey. The information to be collected for this study will be used to satisfy a Congressional mandate in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) to study and submit a Report to Congress on the implementation of SAFETEA–LU Section 6009 and its amendments. The survey results will allow U.S. DOT to

fulfill the implementation study requirement. We are required to publish this notice in the Federal Register by the Paperwork Reduction Act of 1995. DATES: Please submit comments by August 2, 2010. ADDRESSES: You may submit comments identified by DOT Docket ID Number 0057 by any of the following methods:

Web Site: For access to the docket to read background documents or comments received go to the Federal eRulemaking Portal: Go to http:// www.regulations.gov. Follow the online instructions for submitting comments.

Fax: 1–202–493–2251. Mail: Docket Management Facility,

U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001.

Hand Delivery or Courier: U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Carol Braegelmann, FHWA Office of Project Development and Environmental

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B: 1

http://www.regulations.gov

http://www.regulations.gov

30899 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Notices

Review, (202) 366–1701. Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION:

Title: SAFETEA–LU Section 6009 Phase 2 Implementation Study Survey.

Background: Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) amended existing Section 4(f) legislation to simplify the process and approval of projects that have only de minimis impacts on lands protected by Section 4(f). SAFETEA–LU also required the U.S. Department of Transportation (U.S. DOT) to promulgate regulations to clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties. As mandated in the legislation, U.S. DOT conducted a study on the implementation of new Section 4(f) provisions and its amendments (herein referred to as Phase I). During development of the Phase I study, U.S. DOT determined that sufficient information would not be available during Phase I to adequately evaluate the new prudent and feasible standards. Based on this fact, along with recommendations provided by the Transportation Research Board (TRB) on strengthening the Phase I findings, U.S. DOT is requesting approval to sponsor a one-time survey on implementation of Section 6009 and its amendments. The U.S. DOT and John A. Volpe National Transportation Systems Center (Volpe Center) have designed the survey and will submit the survey plan and its associated information collection burden to OMB for approval.

The information collection supports the U.S. DOT’s Environmental Stewardship Strategic Goal. U.S. DOT will be better able to evaluate how SAFETEA–LU Section 6009 may improve environmental decision- making and expedite environmental reviews of transportation infrastructure projects. The survey will solicit information on: (1) The post- construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects where a Section 4(f) de minimis impact finding or Section 4(f) finding under the revised Section 4(f) regulations was made; and, (2) the processes developed to address the Section 4(f) de minimis impacts and revise the feasible and prudent standards and the efficiencies that may

result. U.S. DOT will use the results to evaluate the effectiveness and any resulting efficiencies of SAFETEA–LU Section 6009 and its amendments.

Respondents: The proposed survey will be a web-based survey located on the Survey Monkey Web site (http:// www.surveymonkey.com). Staff members at state and local transportation agencies and transportation authorities, State Historic Preservation Offices (SHPO), Federal, State and local agencies with jurisdiction over park, recreation areas, or wildlife and waterfowl refuges, and citizen/advocacy groups will be asked to complete the survey. U.S. DOT estimates that approximately 120 participants (30 state DOTs, 15 transit and other transportation agencies, 25 SHPOs, 25 park and recreation officials, and 25 citizen groups) will complete the survey.

Frequency: This is a one-time collection.

Estimated Average Burden per Response: Approximately 20 minutes per participant for the one-time survey.

Estimated Total Annual Burden Hours: Approximately 40 hours.

Public Comments Invited: You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection of information is necessary for the U.S. DOT’s performance, including whether the information will have practical utility; (2) the accuracy of the U.S. DOT’s estimate of the burden of the proposed information collection; (3) ways to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB’s clearance of this information collection.

Authority: The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.

Issued On: May 27, 2010.

Juli Huynh, Chief, Management Programs and Analysis Division. [FR Doc. 2010–13226 Filed 6–1–10; 8:45 am]



Federal Aviation Administration

Notice of a Finding of No Significant Impact (FONSI) and Record of Decision (ROD) on a Final Environmental Assessment (FEA) for the Proposed Federal Action at the Macon County Airport, Franklin, NC

AGENCY: Federal Aviation Administration, DOT. ACTION: Notice.

SUMMARY: The FAA is issuing this notice to advise the public of the approval of a FONSI/ROD on an FEA for a proposed Federal action at the Macon County Airport, Franklin, NC. The FONSI/ROD states that the proposed projects are consistent with the National Environmental Policy Act of 1969 and will not significantly affect the quality of the environment.

The FEA evaluated Macon County Airport’s proposal to extend Runway 7/ 25 600 feet to a total length of 5,000 feet, extend the existing parallel taxiway, and construct a 300-foot runway safety area.

After reviewing the FEA, the FAA has determined that project would not significantly affect the quality of the human environment. Therefore, the preparation of an Environmental Impact Statement (EIS) is not required.

The FEA and the FONSI/ROD are available for review at: FAA Southern Region, Atlanta Airports

District Office, 1701 Columbia Avenue, Suite 2–260, College Park, GA 30337.

Macon County Courthouse, Tax Collector’s Office, 5 West Main Street, Annex Bldg., Franklin, NC 28734– 3005.

FOR FURTHER INFORMATION CONTACT: Parks Preston, Federal Aviation Administration, Atlanta Airports District Office, 1701 Columbia Ave., Campus Bldg., Suite 2–260, College Park, GA 30337. 404–305–7149.

Issued in College Park, Georgia on May 19, 2010. Scott L. Seritt, Manager, Atlanta Airports District Office. [FR Doc. 2010–13260 Filed 6–1–10; 8:45 am]



Federal Aviation Administration

Fourth Meeting: RTCA Special Committee 223: Airport Surface Wireless Communications

AGENCY: Federal Aviation Administration (FAA), DOT.

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http://www.surveymonkey.com

http://www.surveymonkey.com

51328 Federal Register / Vol. 75, No. 160 / Thursday, August 19, 2010 / Notices

U.S.C. 1382 and 1384) and procedures governing proceedings to enforce these provisions. Answers may be filed within 21 days after the filing of the application.

Docket Number: DOT–OST–2010– 0198.

Date Filed: August 3, 2010. Parties: Members of the International

Air Transport Association. Subject: Mail Vote 642—Resolutions:

024a—Establishing Passenger Fares and Related Charges; 024e—Rules for Payment of Local Currency Fares (Memo 1578). Intended effective date: 1 December 2010.

Renee V. Wright, Program Manager, Docket Operations, Federal Register Liaison. [FR Doc. 2010–20577 Filed 8–18–10; 8:45 am]

BILLING CODE 4910–9X–P




Agency Information Collection Activities: Request for Comments for a New Information Collection

AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice and request for comments.

SUMMARY: The U.S. Department of Transportation (U.S. DOT) FHWA invites public comments about our intention to request the Office of Management and Budget’s (OMB) approval for a new information collection: SAFETEA–LU Section 6009 Phase 2 Implementation Study Survey. The Federal Register notice with a 60- day public comment period soliciting comments on this information collection was published on June 2, 2010. We are required to publish this notice in the Federal Register by the Paperwork Reduction Act of 1995. DATES: Please submit comments by September 20, 2010. ADDRESSES: You may send comments within 30 days to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention DOT Desk Officer. You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the U.S. DOT’s performance; (2) the accuracy of the estimated burden; (3) ways for the U.S. DOT to enhance the quality, usefulness, and clarity of the collected information;

and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. All comments should include the Docket number FHWA–2010–0106. FOR FURTHER INFORMATION CONTACT: Carol Braegelmann, (202) 366–1701, FHWA Office of Project Development and Environmental Review, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION:

Title: SAFETEA–LU Section 6009 Phase 2 Implementation Study Survey.

Background: Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) amended existing Section 4(f) legislation to simplify the process and approval of projects that have only de minimis impacts on lands protected by Section 4(f). SAFETEA–LU also required the U.S. DOT to promulgate regulations to clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties.

As mandated in the legislation, U.S. DOT conducted a study on the implementation of new Section 4(f) provisions and its amendments (herein referred to as Phase I). During development of the Phase I study, U.S. DOT determined that sufficient information would not be available during Phase I to adequately evaluate the new prudent and feasible standards. Based on this fact, along with recommendations provided by the Transportation Research Board (TRB) on strengthening the Phase I findings, U.S. DOT is requesting approval to sponsor a one-time survey on implementation of Section 6009 and its amendments. The U.S. DOT and John A. Volpe National Transportation Systems Center (Volpe Center) have designed the survey and will submit the survey plan and its associated information collection burden to OMB for approval. The information collection supports the U.S. DOT’s Environmental Stewardship Strategic Goal. U.S. DOT will be better able to evaluate how SAFETEA–LU Section 6009 may improve environmental decision-making and expedite environmental reviews of transportation infrastructure projects.

The survey will solicit information on: (1) The post-construction effectiveness of impact mitigation and

avoidance commitments adopted as part of projects where a Section 4(f) de minimis impact finding or Section 4(f) finding under the revised Section 4(f) regulations was made; and (2) the processes developed to address the Section 4(f) de minimis impacts and revise the feasible and prudent standards and the efficiencies that may result. U.S. DOT will use the results to evaluate the effectiveness and any resulting efficiencies of SAFETEA–LU Section 6009 and its amendments.

Respondents: The proposed survey will be a web-based survey located on the Survey Monkey Web site (http:// www.surveymonkey.com). Staff members at state and local transportation agencies and transportation authorities, State Historic Preservation Offices (SHPO), Federal, state and local agencies with jurisdiction over park, recreation areas, or wildlife and waterfowl refuges, and citizen/advocacy groups will be asked to complete the survey. U.S. DOT estimates that approximately 120 participants (30 state DOTs, 15 transit and other transportation agencies, 25 SHPOs, 25 park and recreation officials, and 25 citizen groups) will complete the survey.

Frequency: This is a one-time collection.

Estimated Average Burden per Response: Approximately 20 minutes per participant for the one-time survey.

Estimated Total Annual Burden Hours: Approximately 40 hours.

Authority: The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.

Issued On: August 11, 2010. Juli Huynh, Chief, Management Programs and Analysis Division. [FR Doc. 2010–20538 Filed 8–18–10; 8:45 am]

BILLING CODE P




Agency Information Collection Activities: Notice of Request for Approval of a New Information Collection

AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of request for approval of a new information collection.

SUMMARY: The FHWA invites public comments about our intention to request the Office of Management and Budget’s

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Appendix C: 30-Day Notice

C: 1

NOTICE OF OFFICE OF MANAGEMENT AND BUDGET ACTION

Date 10/29/2010

Department of TransportationFederal Highway AdministrationFOR CERTIFYING OFFICIAL: Nitin Pradhan FOR CLEARANCE OFFICER: Patricia Lawton

In accordance with the Paperwork Reduction Act, OMB has taken action on your request received09/10/2010

ACTION REQUESTED: New collection (Request for a new OMB Control Number) TYPE OF REVIEW REQUESTED: RegularICR REFERENCE NUMBER: 201008-2125-001AGENCY ICR TRACKING NUMBER: TITLE: Proposal for SAFETEA-LU Section 6009 Phase 2 Implementation Study SurveyLIST OF INFORMATION COLLECTIONS: See next page

OMB ACTION: Approved without changeOMB CONTROL NUMBER: 2125-0625The agency is required to display the OMB Control Number and inform respondents of its legal significance in accordance with 5 CFR 1320.5(b).

EXPIRATION DATE: 10/31/2012 DISCONTINUE DATE:

BURDEN: RESPONSES HOURS COSTS

Previous 0 0 0

New 120 40 0

Difference

Change due to New Statute 0 0 0

Change due to Agency Discretion 120 40 0

Change due to Agency Adjustment 0 0 0

Change Due to Potential Violation of the PRA 0 0 0

TERMS OF CLEARANCE:

OMB Authorizing Official: Kevin F. Neyland Deputy Administrator, Office Of Information And Regulatory Affairs

Appendix D: OMB Approval

D: 1

List of ICs

CFR CitationForm NameIC Title Form No.

Proposal for SAFETEA-LU Section 6009 Phase 2 Implementation Study Survey

Appendix D: OMB Approval

D: 2

Appendix E. Additional Survey Results

Effect of Assessment Criteria on the Determination of Whether an Avoidance Alternative is Feasible and Prudent (Question 16)

Federal respondents (n=63)* 1 2 3 4 5 N/A

An alternative is not feasible if it cannot be built as a matter of sound engineering judgment. - 2% 37% 29% 32% 2%

An alternative is not prudent if it compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need. 2% - 37% 40% 21% 2%

An alternative is not prudent if it results in unacceptable safety or operational problems - - 29% 49% 21% 2%

An alternative is not prudent if, after reasonable mitigation, it still causes severe social, economic, or environmental impacts - 5% 33% 43% 19% -

An alternative is not prudent if, after reasonable mitigation, it still causes severe disruption to established communities - 5% 35% 41% 19% -

An alternative is not prudent if, after reasonable mitigation, it still causes severe disproportionate impacts to minority or low income populations. - 3% 40% 39% 18% -

An alternative is not prudent if, after reasonable mitigation, it still causes severe impacts to environmental resources protected under other Federal statutes. - 5% 27% 44% 24% -

An alternative is not prudent if it results in additional construction, maintenance, or operational costs of an extraordinary magnitude. 2% 8% 27% 43% 21% -

An alternative is not prudent if it causes other unique problems or unusual factors. 5% 11% 46% 29% 10% - An alternative is not prudent if it involves multiple factors, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.

- 10% 35% 43% 13% -

*n=62 for "An alternative is not prudent if, after reasonable mitigation, it still causes severe disproportionate impacts

to minority or low income populations."

Project Sponsor (n=13) 1 2 3 4 5 N/A

An alternative is not feasible if it cannot be built as a matter of sound engineering judgment. - 8% 15% 15% 54% 8%

An alternative is not prudent if it compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need. - - 8% 46% 38% 8%

An alternative is not prudent if it results in unacceptable safety or operational problems - - 8% 38% 46% 8%

An alternative is not prudent if, after reasonable mitigation, it still causes severe social, economic, or environmental impacts - 8% 31% 23% 31% 8%

An alternative is not prudent if, after reasonable mitigation, it still causes severe disruption to established communities - 8% 31% 38% 15% 8%

An alternative is not prudent if, after reasonable mitigation, it still causes severe disproportionate impacts to minority or low income populations. - 25% 25% - 25% 25%

An alternative is not prudent if, after reasonable mitigation, it still causes severe impacts to environmental resources protected under other Federal statutes. - 8% 8% 46% 31% 8%

An alternative is not prudent if it results in additional construction, maintenance, or operational costs of an extraordinary magnitude. - - - 46% 46% 8%

An alternative is not prudent if it causes other unique problems or unusual factors. 8% - 38% 31% 15% 8%

An alternative is not prudent if it involves multiple factors, that while individually minor, cumulatively cause unique problems or impacts of extraordinary - 8% 31% 38% 15% 8%

E: 1

magnitude.

OWJ (n=4) 1 2 3 4 5 N/A

An alternative is not feasible if it cannot be built as a matter of sound engineering judgment. - - 25% 25% 25% 25%

An alternative is not prudent if it compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need. - 25% 25% - 25% 25%

An alternative is not prudent if it results in unacceptable safety or operational problems 25% 25% 25% - - 25%

An alternative is not prudent if, after reasonable mitigation, it still causes severe social, economic, or environmental impacts - 25% 25% - 25% 25%

An alternative is not prudent if, after reasonable mitigation, it still causes severe disruption to established communities - 8% 23% 46% 15% 8%

An alternative is not prudent if, after reasonable mitigation, it still causes severe disproportionate impacts to minority or low income populations. - - 50% - 25% 25%

An alternative is not prudent if, after reasonable mitigation, it still causes severe impacts to environmental resources protected under other Federal statutes. - 25% 25% - 25% 25%

An alternative is not prudent if it results in additional construction, maintenance, or operational costs of an extraordinary magnitude. 25% 25% 25% - - 25%

An alternative is not prudent if it causes other unique problems or unusual factors. 25% 25% 25% - - 25%

An alternative is not prudent if it involves multiple factors, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.

- 25% - 25% 25% 25%

Effect of “Least Overall Harm” Determination Factors When Considered Individually (Question 17)

Federal (n=62) 1 2 3 4 5 N/A

The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property). - 2% 23% 45% 24% 6%

The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection.

- 6% 27% 44% 15% 8%

The relative significance of each Section 4(f) - 6% 26% 47% 16% 5% The views of the official(s) with jurisdiction over each Section 4(f) property. - 2% 24% 52% 18% 5% The degree to which each alternative meets the purpose and need for the project. - - 29% 35% 31% 5% After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f). - 5% 31% 42% 18% 5%

Substantial differences in costs among the alternatives. - 5% 35% 40% 15% 5%

Project Sponsor (n=12)** 1 2 3 4 5 N/A

The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property). - - 33% 42% 17% 8%

The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection. - 8% 42% 25% 17% 8%

The relative significance of each Section 4(f) 8% - 42% 42% - 8% The views of the official(s) with jurisdiction over each Section 4(f) property. 8% - 33% 42% 8% 8% The degree to which each alternative meets the purpose and need for the project. - - 17% 33% 42% 8% After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f). 9% - 27% 45% 9% 9%

Substantial differences in costs among the alternatives. - - 33% 33% 25% 8% **n=11 for "The degree to which each alternative meets the purpose and need for the project."

E: 2

OWJ (n=4) 1 2 3 4 5 N/A

The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property). - - 25% 25% - 50%

The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection. - - 50% - - 50%

The relative significance of each Section 4(f) - - 25% - - 75% The views of the official(s) with jurisdiction over each Section 4(f) property. - 25% 25% - - 50% The degree to which each alternative meets the purpose and need for the project. - 25% 25% - - 50% After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f). - - 50% - - 50%

Substantial differences in costs among the alternatives. - - 25% - 25% 50%

E: 3

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